BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 29 October 2020
• Neutral Citation: [2020] FCAFC 181
• Date: 29 October 2020
• Court: Full Federal Court (Australia)

Federal Court of Australia

BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181

Appeal from:	BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 384
File number:	NSD 375 of 2020
Judgment of:	RANGIAH, SC DERRINGTON AND ABRAHAM JJ
Date of judgment:	29 October 2020
Catchwords:	MIGRATION – procedural fairness – legal professional privilege – hearing before the Administrative Appeals Tribunal – whether the Tribunal failed to warn the appellant that he was entitled to assert legal professional privilege – whether the Tribunal acted in excess of power by asking questions that called for the disclosure of communications the subject of legal professional privilege – whether the appellant had waived privilege by conduct inconsistent with the maintenance of legal professional privilege – whether the failure by the Tribunal was material so as to amount to jurisdictional error
Legislation:	Evidence Act 1995 (Cth) s 132 Migration Act 1958 (Cth) ss 5H, 36, 36(2)(a), 36(2)(aa), 47(1), 65, 65(1), 276, 276(1), 277, 277(1)(c)(i), 280, 280(1), 280(3), 411(1)(c), 412, 414, 414(1), 420, 423A, 424AA, 422B, 433, 433(1A), 433(2), 474(1), 474(2), 501CA(4) Migration Amendment (Protection and Other Measures) Act 2015 (Cth) ss 2(1), 15(4) Migration Amendment (Regulation of Migration Agents) Act 2020 (Act No. 71 of 2020) Tribunals Amalgamation Act 2015 (Cth) Sch 2 Pt 1 ss 87 and 88 Federal Court Rules 2011 (Cth) r 36.24
Cases cited:	Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 384 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 PQSM v Minister for Home Affairs [2020] FCAFC 125 Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; (2007) 159 FCR 1 XFCS v Minister for Home Affairs [2020] FCAFC 140
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	139
Date of last submission/s:	9 October 2020, 14 October 2020
Date of hearing:	2 October 2020
Counsel for the Appellant:	Mr LT Livingston and Mr PF Santucci
Solicitor for the Appellant:	Marque Lawyers
Counsel for the Respondents:	Ms K Hooper
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 375 of 2020
BETWEEN:	BWO19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	RANGIAH, SC DERRINGTON AND ABRAHAM JJ
DATE OF ORDER:	29 OctoBer 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of the Federal Circuit Court of Australia (FCC), reasons for judgment for which were delivered on 9 March 2020 (Reasons), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 April 2019. The Tribunal had affirmed a decision made by a delegate of the first respondent (Delegate) under s 65 of the Migration Act 1958 (Cth) (Migration Act) to refuse the appellant a Protection (Class XA) (Subclass 866) Visa (Protection Visa).

2. The application for judicial review before the FCC was based on two grounds: that the Tribunal erred by failing to exercise its jurisdiction by misdirecting itself as to the nature of the evidence before it in taking the view that certain claims in relation to arrests were not raised until after the Delegate’s refusal and subsequent application for review; and that the Tribunal exceeded its jurisdiction by failing to observe an inviolable limitation or restraint on the exercise of its power in questioning the appellant concerning communications between the appellant and his lawyer before advising him that legal professional privilege entitled him to refuse to answer.

3. The primary judge dismissed both grounds: the first, on the basis that it misstated the concerns expressed by the Tribunal in relation to the evidence (Reasons [46]); the second, on the basis that the Tribunal’s questions were procedural and did not invite the disclosure of legal advice (Reasons [72]). In any event, the appellant’s conduct was inconsistent with the maintenance of legal professional privilege and any privilege was waived by implication (Reasons [80]). Further, any failure on the part of the Tribunal to warn the appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was immaterial and did not demonstrate jurisdictional error (Reasons [81]).

4. This appeal is concerned only with the primary judge’s findings in...