Akz15 v Commonwealth of Australia and Anor (No.2)

[2015] FCCA 2732

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKZ15 v COMMONWEALTH OF AUSTRALIA & ANOR (No.2) [2015] FCCA 2732

Catchwords:
MIGRATION – Protection (Class XA) visa.

PRACTICE AND PROCEDURE – Application for production of the unredacted documents – public interest immunity – application dismissed.

ASP15 v Minister for Immigration & Anor [2015] FCCA 2731

Applicant: AKZ15

First Respondent: COMMONWEALTH OF AUSTRALIA

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2163 of 2015

Judgment of: Judge Street

Hearing date: 7 October 2015

Date of Last Submission: 7 October 2015

Delivered at: Sydney

Delivered on: 7 October 2015

REPRESENTATION

Counsel for the Applicant: Mr J F Gormley

Solicitors for the Applicant: Michaela Byers, Solicitor

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitors

ORDERS

1. The matter be stood over for further mention on 20 October 2015 at 9:30am.

2. The oral application for production of the unredacted documents SC2-SC17 is dismissed.

3. The question of costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2163 of 2015

AKZ15

Applicant

And

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were remitted to this Court from the High Court of Australia and the Court made orders on 10 September facilitating the determination of any dispute concerning a claim for public interest immunity.  

2. The applicant sought production of unredacted copies of the documents identified as SC2 to SC17 in the affidavit of Shane Connelly of 6 October 2015.  The applicant has been in immigration detention since 17 February 2012 and has brought proceedings alleging, in substance, that his continuing detention is unlawful. 

3. Mr Connelly, a senior police officer, has sworn an affidavit identifying the grounds upon which a claim of public interest immunity has been made in respect of the redactions made in documents SC2 to SC17.  Mr Connelly identified that the redactions had been made to exclude the names of human sources, other information that would tend to directly identify a contravention of human sources, and descriptions of the information provided by those human sources where those descriptions could identify a source in question.  In para.30.3, Mr Connelly said:

   In my opinion, given the potential consequence of exposing the identity of a confidential human source as explained earlier in this affidavit, a precautionary approach should be applied to this task and this is how I have directed officers of the AFP to redact the documents in question.  I am satisfied that the redactions that have been made are appropriate when regard is had to the above mentioned principles.

4. I am satisfied that the deponent properly identified the claims for public interest immunity and that the material redacted falls within the three descriptions identified.  Whilst I accept there is a reference to a precautionary approach that was applied to the task in the redactions, I accept that the deponent is satisfied that the redactions made were appropriate, applying the correct principles. 

5. A substantially similar argument was advanced in matter ASP15 v Minister for Immigration & Anor [2015] FCCA 2731 in which this Court identified the relevant principles and I apply those principles in this case. In those circumstances, I am satisfied that harm would be done to the public interest if the unredacted documents were produced. I am also satisfied that the redactions fall within a proper claim of public interest immunity.

6. For the same reasons as given in ASP15, I consider the relevance of the documents to be tenuous, but accept that there is an argument that the applicant has, by reason of which it might be argued that disclosure of the human source and information that might identify the human source may permit the applicant to evaluate the quality and credibility of information concerning the matters the subject of investigations by law enforcement agencies. 

7. However, the applicant is, in my opinion, able to advance the substance of the case the applicant wishes to articulate concerning the unreasonable delay.  On a balancing exercise, the interests of preserving public interests immunity outweigh the interests of disclosure in the present case. 

8. I note that the Court was invited to inspect the documents the subject of the redaction.  The Court has looked at the whole of the affidavit of Mr Connelly and the material in its redacted form and is satisfied that the claim for public interest immunity should be upheld.  

9. Accordingly, this is not a case where it is necessary for the Court to inspect the unredacted documents in order to determine the claim.  For these reasons, the oral application for production of the unredacted documents is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 21 October 2015