BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 489

Federal Court of Australia

BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 489 Appeal from: BDF15 v Minister for Immigration & Anor [2020] FCCA 923

File number: NSD 570 of 2020

Judgment of: NICHOLAS J

Date of judgment: 11 May 2021

Catchwords: MIGRATION – procedural fairness – where the Secretary provided documents to the Administrative Appeals Tribunal – where the Minister by his delegate made a certificate pursuant to s 438 of the Migration Act 1958 (Cth) in respect of such documents – where the Tribunal did not disclose the existence of the certificate to the appellant and found that the documents were subject to legal professional privilege – where Minister accepted that such non-disclosure amounted to a denial of procedural fairness – where the appellant sought the production of the documents before the Federal Circuit Court – whether the documents were subject to legal professional privilege – whether privilege waived – whether denial of procedural fairness was material to outcome of application so as to amount to jurisdictional error – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 418, 425, 438, 440

Cases cited: AWB Ltd v Cole (2006) 152 FCR 382 Baker v Campbell (1983) 153 CLR 52 Carter v The Managing Partner, Northmore Hale Daly & Leake (1995) 183 CLR 121 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Mann v Carnell (1999) 201 CLR 1 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 241 Osland v Secretary, Department of Justice (2008) 234 CLR 275 Sankey v Whitlam (1978) 142 CLR 1 Waterford v The Commonwealth of Australia (1987) 163 CLR 54