Alkizaie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 2354

Alkizaie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2354 (2 May 2022)

Division:GENERAL DIVISION

File Number(s):      2021/6533

Re:Jaisem ALKIZAIE

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:2 May 2022

Place:Sydney

The Tribunal directs, pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975, that:

a)the following information must not be published:

(i)the information contained in the ISCE records at S1 (pages 1-2) included in the documents filed by the Respondent on 29 March 2021 (Supplementary T-Documents); and

b)the information specified in paragraph (a) must not be disclosed to any person other than:

i.the Applicant and his legal representatives;

ii.the Respondent and his legal representatives; and

iii.members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.

..............................[sgd]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - application for an order of confidentiality under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) – where the Respondent has requested non-disclosure of material before the Tribunal to the Applicant – principles of open justice – Applicant allowed access - orders made under s 35(4) of the AAT Act.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 35, 39

Australian Citizenship Act 2007 (Cth) s 21, 24

CASES

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

2 May 2022

1. This matter concerns an application for review of a decision dated 3 September 2021 by a delegate of the Respondent to refuse an application for citizenship by conferral by the Applicant, made on 1 April 2016, on the basis that they could not be satisfied as to the Applicant’s identity under s 24(3), nor of his good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

2. On 11 April 2022, the Respondent in the matter requested that the Tribunal grant a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in the following terms:

   … to restrict access to information redacted from the ISCE records at S1 (pages 1-2) included in the documents filed by the respondent on 29 March 2021 (Supplementary T-Documents) to the following people:

   (b)the respondent and his legal representatives; and

   (c)staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties (including the member making a decision under review before the Tribunal).

3. On 19 April 2022, the Applicant’s representative made written submissions opposing the confidentiality order on various bases, and requested that the parties be heard on the matter.

4. This matter was listed for an interlocutory hearing by telephone on 28 April 2022, in which the Tribunal heard oral submissions from both the Applicant and the Respondent.

   THE SUBMISSIONS

5. The Respondent argued that the confidentiality sought was justified on the basis that:

   (b)the redacted information is sensitive insofar as it may have the tendency to be prejudicial to the diplomatic relations between Iraq and Australia; and

   (c)the public interest in the protection of diplomatic relations between Iraq and Australia may be undermined if the information were proposed to be disclosed.

6. The Respondent also argued that the material in question had not been primarily relied upon by the original decision-maker in coming to their decision, and as such its non-disclosure to the Applicant would not be significantly prejudicial.

7. The Applicant opposed the request for confidentiality on two main grounds:

   (1)that such an order would contravene the principle of open justice contained in s 35(5) of the AAT Act; and

   (2)there were insufficient reasons provided by the Respondent in their application for the request  for confidentiality to be granted.

8. The Applicant did not object to the redaction of the names of any person mentioned in the relevant documents.

9. The Applicant also argued that there was no evidence that the information provided had been communicated in confidence, or was regarded as confidential, nor any evidence that the information was provided on the basis that the Applicant would not see it.

10. The Applicant claimed that the names of any Iraqi government departments which provided information to the Australian government needed to be disclosed so that the veracity or quality of the information provided could be tested and weighed against contrary evidence from the Iraqi Consulate in Sydney.

    THE LAW

11. Section 35 of the AAT Act provides:

    Public hearings and orders for private hearings, non-publication and non-disclosure

    Public hearing

    (1)  Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

    Private hearing

    (2)  The Tribunal may, by order:

    (a)direct that a hearing or part of a hearing is to take place in private; and

    (b)give directions in relation to the persons who may be present.

    Orders for non-publication or non-disclosure

    (3)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

    (a)information tending to reveal the identity of:

    (i)     a party to or witness in a proceeding before the Tribunal; or

    (ii)    any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

    (b)information otherwise concerning a person referred to in paragraph (a).

    (4)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

    (a)relates to a proceeding; and

    (b)is any of the following:

    (i)     information that comprises evidence or information about evidence;

    (ii)    information lodged with or otherwise given to the Tribunal.

    (5)  In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

    that hearings of proceedings before the Tribunal should be held in public; and

    that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

    that the contents of documents lodged with the Tribunal should be made available to all the parties.

    However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

12. Section 39 of the AAT Act provides that:

    Rights of parties to present case--Divisions other than Security Division

    (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

    CONSIDERATION

13. In considering the particular circumstances of this case, the Tribunal first has regard to the observations of the High Court’s observations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [25] that “the application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.”

14. In the current case, these circumstances include firstly the fact that the Applicant is legally represented; secondly, that the authenticity of the information in the document in question may be an important factor in relation to both the Applicant’s identity and his credibility.

15. This issue may be important in determining the outcome of the Applicant’s request for review of the delegate’s decision.

16. Further guidance is provided by the decision of Brennan J, as he then was, as President of this Tribunal in Re Pochi and Minister for Immigration and Ethnic Affairs 1979 2 ALD 33, which deals generally with the issue of openness in relation to the proceedings and evidence before the Tribunal.

17. In referring to powers conferred to the Tribunal under s 35 of the Act, Brennan J stated as follows:

    Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant — they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

    An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases — that is to say, where “the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public” cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14).

    To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: “When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.”

18. In the current matter, it is clear that the names of any particular government official involved in providing the relevant information is not of importance and I note the Applicant’s representative was not seeking for such information to be disclosed.

19. The identity of the Iraqi departments which provided information in my view of sufficient importance to the Applicant’s case as to the authenticity of this licence that the names of those Departments should be disclosed.

20. In relation to the remaining material, in my view, it is sufficient for the material to be provide to the Applicant and his legal representative should the Respondent intend to rely on it in these proceedings. Having reviewed the material in question, in my view, to allow the Respondent to rely on it without granting the Applicant and his representative access may be unacceptably prejudicial and may impede their ability to effectively address the case put to them by the Respondent.

21. As such, I find that an appropriate order of non-disclosure under s 35(4) of the AAT Act would be in similar terms to the following:

    (1)to restrict access to information redacted from the ISCE records at S1 (pages 1-2) included in the documents filed by the respondent on 29 March 2021 (Supplementary T-Documents) to the following people:

    a.the respondent and his legal representatives; and

    b.the applicant and his legal representatives

    c.staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties (including the member making a decision under review before the Tribunal).

22. I also note that, if this material were to be accepted by the Tribunal and access not given to the Applicant or his representatives, the objective weight the Tribunal would be able to assign to it, taking into account that the Applicant had no opportunity to examine or respond to the relevant material, may be limited in some regards.

23. I note that the Respondent told the Tribunal that it may elect not to rely on the material in question. However, given that that material appears to have been or may have been before the original decision-maker, it is relevant to the current proceedings.

    DECISION

24. It is unclear to the Tribunal the level of reliance the Respondent will have on this material in making its case. The Tribunal is of the opinion that the material is relevant to the Applicant and his representatives as it relates to the substantive proceedings before the Tribunal.

25. The Tribunal notes that the Applicant has consented to the redaction of the names of people contained in the material.

26. As such, the Tribunal directs, pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975, that:

    a)the following information must not be published:

    i.the information contained in the ISCE records at S1 (pages 1-2) included in the documents filed by the Respondent on 29 March 2021 (Supplementary T-Documents); and

    ii.the information specified in paragraph (a) must not be disclosed to any person other than:

    i.the Applicant and his legal representatives;

    ii.the Respondent and his legal representatives; and

    iii.members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

.......................[sgd].................................................

Associate

Dated: 2 May 2022

Date(s) of hearing:	28 April 2022
Solicitors for the Applicant:	Ms K. Bones, Legal Aid NSW
Solicitors for the Respondent:	Ms L. Taylor, MinterEllison