Minister for Immigration and Citizenship v Kumar [2009] HCA 10

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, KIEFEL AND BELL JJ

MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

AND

AMIT KUMAR & ANOR RESPONDENTS

Minister for Immigration and Citizenship v Kumar [2009] HCA 10

11 March 2009

S473/2008

ORDER

1. Appeal allowed.

2. Set aside orders 1 and 2 of the Full Court of the Federal Court of Australia entered on 23 May 2008 and order that the appeal to that Court be dismissed.

3. The appellant pay the first respondent's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

S J Gageler SC, Solicitor-General of the Commonwealth with L A Clegg for the appellant (instructed by Australian Government Solicitor)

M L Brabazon SC with J G Azzi for the first respondent (instructed by Rasan T Selliah & Associates)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Citizenship v Kumar

Administrative law – Procedural fairness – Migration Review Tribunal ("Tribunal") – Application for spousal visas – Migration Act 1958 (Cth) ss 5, 357A, 359A – Definition of "non-disclosable information" – "Non-disclosable information" whose disclosure would found an action for breach of confidence – Relevance of "iniquity defence" – Whether Tribunal obliged to disclose to applicant information given to Tribunal in confidence by informant – Whether obligation to disclose extends to identity of informant.

Equity – Breach of confidence – Interaction of public and private law.

Words and phrases – "Non-disclosable information".

Migration Act 1958 (Cth), ss 5, 357A, 359A.

1. FRENCH CJ, GUMMOW, HAYNE, KIEFEL AND BELL JJ. The Full Court of the Federal Court (Tamberlin, Finn and Besanko JJ)[1] allowed an appeal by the first respondent (Mr Kumar) against the dismissal by the Federal Magistrates Court (Lloyd‑Jones FM)[2] of his application for certiorari to quash a decision of the second respondent ("the Tribunal") and for mandamus requiring the Tribunal to hear and determine according to law an application by Mr Kumar. That application was for review by the Tribunal of the decision of a delegate of the appellant ("the Minister") that Mr Kumar is not entitled to the grant of a Partner (Temporary) (Class UK) visa, nor to the grant of a Partner (Residence) (Class BS) visa, as provided by the Migration Regulations 1994 ("the Regulations")[3] made under the Migration Act 1958 (Cth) ("the Act")[4]. 2. The Full Court made orders for certiorari and mandamus directed to the Tribunal and in this Court the Minister seeks the setting aside of those orders. The Tribunal entered a submitting appearance. 3. This Court made orders on 30 September and 12 December 2008 limiting, until further order, the publication of certain portions of the reasons for judgment of the Full Court, of Mr Kumar's summary of argument and of the evidence. The appeal was heard in open court without the need to refer in the argument to that material and these reasons are prepared on the same footing. 4. Mr Kumar was born in Fiji on 14 September 1982. On 8 May 2004 at Lidcombe in New South Wales and pursuant to the provisions of the Marriage Act 1961 (Cth), Mr Kumar married Ms Rachel Sunita Krishna, an Australian citizen born in Australia on 26 September 1983. 5. The Tribunal upheld the decision of the delegate, made on 29 September 2004, that the delegate was not satisfied that the parties were in a genuine and continuing marriage relationship and was not satisfied that the parties had a mutual commitment to a shared life as husband and wife. 6. Mr Kumar had applied for permanent residence on "spouse grounds" on 10 June 2004, shortly after the marriage ceremony. The delegate noted that a permanent visa normally cannot be granted until two years have lapsed since the application was made, the process being "intended to test whether the relationship is continuing, 2 years after the visa application". However, a Partner (Temporary) (Class UK) visa might be granted immediately to permit presence in Australia until a decision be made on the permanent visa application. The two visa applications must be made at the same time (Regulations, Sched 1, item 1214C(3)(a)). The applicant for this temporary visa must seek to remain in Australia as "the spouse" of the person the applicant had intended to marry after entry into Australia (Regulations, Sched 1, item 1214C(3)(d)). 7. For the purposes of the Regulations, Mr Kumar is the spouse of Ms Krishna if they are in a "married relationship" within the meaning of reg 1.15A(1A). This states: