Federal Court (Full Court). Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"? Was s 376(1)(b) of the Migration Act 1958 (Cth) such that "the relevant quality of confidence attaches to the information at the point the information is given"?
The Tribunal affirmed the decision of a delegate to cancel the Apellant's Partner (Provisional) (Class UF) (Subclass 309) visa under s 116 of the Migration Act 1958 (Cth) on the basis that he may pose a risk to the safety of individuals in the Australian community, in particular, his wife and children.
The Full Court summarised the relevant facts as follows at [3]:
(1) [The Appellant], a national of Tonga, was granted a visa in September 2014 on the basis of his relationship with his wife.
(2) Between late 2014 and early 2018, there were seven alleged instances of domestic violence perpetrated by [the Appellant] against his wife and children.
(3) Over the course of 2018, [the Appellant's] wife made email contact with the Minister detailing [the Appellant's] alleged conduct and requesting the Minister to cancel [the Appellant's] visa. At various points in the correspondence, [the Appellant's] wife recanted this position.
(4) In March 2018, [the Appellant's] wife made a report to the police, resulting in [the Appellant's] arrest and seven charges being laid against him.
(5) In May 2018, a delegate of the Minister sent [the Appellant] a Notice of Intention to Consider Cancellation of his visa under s 116 of the Act.
(6) [the Appellant's] visa was cancelled by a delegate of the Minister in September 2018.
(7) Also in September 2018, a delegate of the Minister issued a certificate under s 376 of the Act, classifying emails from [the Appellant's] wife to the Minister as confidential. This certificate was withdrawn, and a new certificate was issued in October 2018. Both certificates concerned the same documents. The Tribunal provided [the Appellant] with both certificates upon issue and invited his comments.
(8) The Tribunal heard [the Appellant's] application for review of the Minister’s decision in December 2018. [The Appellant's] wife appeared as his authorised representative at the Tribunal hearing.
(9) Following the hearing, [the Appellant] was convicted of one of the seven offences with which he was charged and placed on a conditional release order for a period of six months. A final apprehended violence order was also made for a period of six months in favour of his wife and children. The solicitor acting for [the Appellant] in relation to the criminal charges informed the Tribunal of this outcome.
The Full Court went to to say as follows:
21 ... In written submissions, ... [the Appellant] emphasises his wife’s email to the Minister on 13 September 2018, in which she is recorded writing: “I done [sic] everything I could to get him kicked out of the country”; “I am so ashamed to admit I was 100% manipulating the system to receive this exact outcome”; and “I convincingly manipulated the system to send him away.”
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that "the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an “iniquity” arising from emails sent by [the Appellant's] wife to the Minister"?
Question 2: Was s 376(1)(b) such that "the relevant quality of confidence attaches to the information at the point the information is given"?
The FCAFC answered those questions as follows:
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