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15 Jul 2009

Informants and statutory requirements of disclosure

by James Stellios

Common law and statutory requirements of procedural fairness should be applied so as to protect informants whose information assists the administration of statutory schemes. Great care must be taken when interpreting statutory provisions that incorporate private law principles to accommodate the scope and purpose of the public law regime.

In Minister for Immigration and Citizenship v Kumar [2009] HCA 10, Mr Kumar, a non-citizen, married an Australian citizen in Australia. Shortly thereafter, he applied for a Partner (Residence) (Class BS) visa and a Partner (Temporary) (Class UK) visa. Eligibility for each visa under the Migration Regulations 1994 relevantly turned on the applicant demonstrating that he was in a "married relationship" with his spouse.

The Minister's delegate was not satisfied that the parties had, as is required under the Regulations, a mutual commitment to a shared life or that the relationship between them was genuine and ongoing, and refused to grant the visas.

These decisions were upheld by the Migration Review Tribunal. During the Tribunal proceedings, Mr Kumar was informed in writing that the Tribunal had "received information, in confidence, stating that [his marriage was] contrived for the sole purpose of migrating to Australia". The Tribunal's letter to the applicant was provided in accordance with the requirement in section 359A of the Migration Act 1958 (Cth). At the Tribunal hearing, Mr Kumar denied that the accusation was true. In upholding the delegate's decision, the Tribunal indicated that it relied on the "credible and significant adverse information before the Tribunal".

A Federal Magistrate dismissed Mr Kumar's application for review, but a Full Court of the Federal Court held that the Tribunal had committed jurisdictional error by failing to provide "the identity of the informant and the full nature of the information", thereby breaching the requirement in section 359A. In allowing the Minister's appeal, the High Court (joint judgment of Chief Justice French, and Justices Gummow, Hayne, Kiefel and Bell) provided important observations on the operation of section 359A in the context of information provided to a delegate by an informant.

Section 359A of the Migration Act 1958 (Cth)

Section 359A of the Migration Act requires the Tribunal to explain and invite comment on "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The requirement does not apply to, amongst other things, information that is "non-disclosable information", and "non-disclosable information" includes information or matter "whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence". The basic structure of section 359A is replicated in other provisions of the Migration Act requiring decision-makers to provide information to applicants, including sections 57, 119, 120, 129 and 424A. These provisions form part of the exhaustive statement of the requirements of procedural fairness that are owed by decision-makers under the Migration Act.

What the Federal Court said

In deciding that there had been a breach of section 359A, the Full Federal Court considered that the information was not "non-disclosable" and, thus, was not excluded from the general obligation of disclosure under the section. In reaching that conclusion, it was influenced by the position at general law that confidences are not protected in relation to the commission of crimes and fraud. Thus, to the extent that the information provided to the Tribunal revealed criminal or fraudulent activity, it would not be protected at general law by the doctrines protecting confidential information and, thus, could not fall within the exclusion in section 359A from the general obligation of disclosure.

What the High Court said

In allowing the appeal, the High Court cautioned against "the immediate translation into public law of such private law concepts". The general law principles protecting confidential information may have been developed for very different purposes to those reflected in the legislative scheme. For example, protection at general law has been refused for information revealing criminality in circumstances where the public interest would require disclosure. "The translation from private to public law", the Court said, "must accommodate the scope and purpose of the public law regime".

Provisions like section 359A in the Migration Act were, the Court said, designed to accommodate the competing objectives of affording applicants procedural fairness and providing protection for informants who assist decision-makers to make decisions under the Act. While the denial of protection at general law to information about the commission of crimes or fraud might assist the administration of criminal law, the denial of protection for such information provided to decision-makers under the Migration Act would frustrate the administration of that Act.

The Court then referred to the decision in VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 as pointing to how the competing interests underlying s 359A should be accommodated. In VEAL, the Court held that common law requirements of procedural fairness did not require the Tribunal to give an applicant a copy of an informant's letter or provide the informant's name. The disclosure of that information would "give no significance to the public interest in the proper administration of the Act". Common law procedural fairness only required the Tribunal to tell the applicant "what was the substance of the allegations made in the letter and asking him to respond to those allegations".

With that in mind, the Court in Kumar considered that the fact that the informant may have provided information revealing the commission of offences "did not deny to the information and the identity of the informer the character of non-disclosable information within the meaning of" the provision. In conclusion, the Court said, the disclosure to Mr Kumar that the Tribunal had received information, in confidence, that his marriage was contrived for the purposes of migrating to Australia did not result in a breach of section 359A of the Act.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.