AID18 v Minister for Home Affairs

[2019] FCCA 3667

FEDERAL CIRCUIT COURT OF AUSTRALIA

AID18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3667

Catchwords:
MIGRATION – Judicial review – s.473GB certificate – notice to produce underlying documents – claim of public interest immunity – identity of informer – revelation of investigatory methods – immunity claim upheld.

Legislation:

Migration Act 1958 (Cth), ss.473GB(3)(b), (5)

Cases cited:
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

Jarvie v Magistrates’ Court (Vic) [1995] 1 VR 84

Applicant: AID18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 40 of 2018

Judgment of: Judge Young

Hearing date: 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Darwin

Delivered on: 26 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the First Respondent: Mr Macliver

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr Macliver

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The matter be adjourned to 1 May 2020 at 10:15 am for hearing of the substantive application (allowing half a day).

2. The Minister is to respond to the applicant’s Notice to Produce in accordance with the Court’s findings within 14 days of this order.

3. Costs reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 40 of 2018

AID18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interlocutory hearing about whether public interest immunity applies to a number of documents produced by the Minister in response to the applicant’s notice to produce. I have been provided with the documents that the applicant seeks to have produced and over which the Minister claims the immunity. I might say the notice to produce is not before me but I understand that the substance of the notice to produce is reproduced in the order made by consent between the parties on 5 November 2019, that is, where the applicant sought copies of the material underlying the non-disclosure certificate issued under sub-section 473GB(5) of the Migration Act 1958 and which has been referred to at paragraph 3 of the Immigration Assessment Authority’s decision.

3. It is not in dispute that the Authority had regard to the s 473GB certificate and exercised its discretion not to disclose that material to the applicant. The only ground of review remaining to the applicant is Ground 2 of his amended application which asserts that the Authority committed jurisdictional error by unreasonably failing to consider whether to release material to the applicant that was the subject of the certificate pursuant to s 473GB(3)(b) or, alternatively, by unreasonably deciding not to disclose the material to the applicant. It was said that full particulars will be provided, presumably once the documents subject to the certificate are examined by the applicant, if they are to be examined. That is the background to the notice to produce.

4. The Minister has provided the documents subject to the claim in a form edited or redacted to remove the particular information subject to the claim. The unredacted versions or the unedited versions have been provided to the court in sealed envelopes following the procedure recommended by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305, [67]. The material has been provided as annexures to two affidavits from departmental officers. The parties proposed that I inspect the unredacted versions and rule on the claim after hearing submissions. That is the course I adopted.

5. One affidavit has been sworn by Frances Ann Finney, who describes herself as assistant secretary of the Humanitarian Program Operations Branch of the Department of Home Affairs. Her affidavit sets out, at paragraphs 11.1 through to 11.6, the grounds of objection which are somewhat discursive but which I interpret as squarely raising a claim of public interest immunity and, in particular, two of the four conventional grounds for immunity, the first being that the information may disclose the identity of a confidential informer and, secondly, that disclosure of the material may reveal investigatory methods used by the Department in its investigation, analysis and examination of the claims of various applicants.

6. The material annexed at FAF1 to the affidavit of Ms Finney, I am satisfied, identifies an informer or informers and, having regard to the identity of the informer or informers, I infer that that information was provided on a condition of confidentiality. The other material that is redacted refers to the financial relationship between the applicant and the person who is asserted to be his brother, which was an issue before the Authority.

7. As I understand it, it was raised by the delegate and then subsequently by the Authority that the applicant had not disclosed the fact that his brother, or a person who was alleged to his brother, was present in Australia and that relationship with highly relevant to the applicant’s claims, in particular, that the applicant had not been born in Iran. It was apparent from the brother’s circumstances, as I understand it, that the brother was born in Iran and that fact was inconsistent with the applicant’s claims.

8. The relationship between the applicant and the person who was said to be his brother or, in the case of the applicant, not to be his brother was relevant. The chart that was redacted contains some relatively mundane information but also contains information that appears to me suggest how that information may have been gathered. The substance of the information has been revealed but the precise information relating to various codes and detailed information, which appears to me to point to investigatory methods, has not been revealed.

9. Similarly, in chart 2 in that material, there is reference to a download of the applicant’s phone data. Mr Solomon-Bridge submitted that would appear to be quite mundane if it is simply his phone information and is hardly revealing of an investigatory method. I do not accept that. As a general submission I accept what he says but, in relation to the particular material, I am satisfied that the redacted material may well reveal an investigatory method and, having regard to the likely minimal forensic value to the applicant of that information in the balancing exercise that I must follow I am satisfied that I should come down on the side that that information is subject to the immunity.

10. The other material in the annexure potentially reveals investigatory methods and, again, adopting the balancing process that I am required to adopt I do not consider that information is of any particular forensic use to the applicant. I am satisfied that I should come down on the side of the Minister there and I am satisfied that that material is subject to the immunity. I uphold the claim in respect of all of the material in FAF1.

11. Turning to the other material, the annexure to the affidavit of Michael Anthony Thomas at annexure MAT1, I found this material somewhat more difficult to deal with. Mr Thomas identifies himself as the assistant secretary responsible for the Border Intelligence Fusion Centre within the Department of Home Affairs. In other words, this appears to be the intelligence collating unit of the Department in relation to those people coming within the ambit of the Department’s responsibility. 

12. Much of the redacted material or the material in respect of which the immunity claim is made simply identifies an officer or officers in the Border Intelligence Fusion Centre, their telephone number and their email addresses. I discussed this material at length with Mr Macliver and I asked him if there was any authority to suggest that the identity of investigating officers was covered by public interest immunity. He was not able to point me to any authority. I was directed to Jarvie v Magistrates’ Court (Vic) [1995] 1 VR 84. That was the only case I was referred to in relation to identity of investigating officers and it was not in dispute that the identity of a covert officer was subject to an immunity. There is no suggestion here that the officers identified in MAT1 are covert officers and I am not satisfied that their names are subject to the public interest immunity.

13. Mr Solomon-Bridge did not press the application in respect of internal telephone numbers and internal email addresses.

14. In addition to this material in MAT1 Mr Macliver pointed out that there is other material, specific material, that either identifies an informer or informers or reveals investigatory methods. I should refer to the page numbers. The annexure is not completely paginated but there is some pagination.

15. I am satisfied that page 2 of 22 identifies or may identify an informer or informers and as they appear to be the same informer or informers as appear in FAF1 I am also able to infer that the information was provided on a condition of anonymity.

16. Similarly, at 3 of 22 and the material at 5 of 22, while it does not specifically identify an informer, I am satisfied that there is information that may potentially identify an informer by a process of inference and I am satisfied that is also covered.

17. There are references to TRIM numbers that probably reveal the methods of the department. It is pointless information but I am prepared to conclude that it is covered by the immunity.  There are email addresses and officers named there but Mr Solomon-Bridge does not seek the email addresses, so I consider that those remain confidential as well, but not the names of the officers.

18. Similarly, at page 6 there is information about when perhaps and where information was provided and, while it does not identify the informer or informers, I am satisfied that that information might be used to draw inferences as to identity, so I include that as well.

19. Page 7 of 22 I am satisfied may reveal investigatory methods, apart from the identification of the officers.

20. At 8 of 22 I was told that there is a four-letter acronym there that ought to be subject to the immunity. With some hesitation, I am prepared to accept that that acronym may have a meaning to someone and may reveal something about methods. I am also satisfied that it is probably very unlikely to be of any forensic value to the applicant, so I will include that as well.

21. On page 10 of 22 there is an identifier number for the applicant, which may reveal investigatory methods, and I will include that as well. That is at 10 and 11.

22. The material that I am not satisfied is covered by the claim of public interest immunity in MAT1 is the names of the departmental officers.  That is all.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  16 December 2019