BKXP and Department of Foreign Affairs and Trade (Freedom of Information) - [2022] AATA 423

BKXP and Department of Foreign Affairs and Trade (Freedom of Information) [2022] AATA 423 (2 March 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s):2018/5540
Re:BKXP
APPLICANT

Department of Foreign Affairs and TradeAnd
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:2 March 2022
Place:Sydney

The reviewable decision is affirmed.
..........................[sgd].............................................
Deputy President B W Rayment OAM QC
Catchwords
FREEDOM OF INFORMATION – country information assessments prepared by the Department of Foreign Affairs – access to draft version of reports – access to source and commentary documents - public interest considerations – substantial adverse effect considerations – documents affecting national security, defence or international relations, reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of information Act 1982 (Cth)
Migration Act 1958 (Cth)
Cases
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Carr v The State of Western Australia [2007] HCA 47
Kline v Official Secretary to the Governor-General [2013] HCA 52
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
O’Sullivan and Australian Federal Police [2011] AATA 188
Secondary Materials
Direction No. 84 – Consideration of Protection Visa Applications under s 499
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
2 March 2022

The applicant applied for a protection visa and, following refusal by a delegate of the immigration authorities applied to this Tribunal in its Migration and Refugee Division (MRD) for review of the delegate’s decision.
A Ministerial direction under s.499 of the Migration Act 1958, Direction 84, bound both the delegate and the Migration and Refugee Division of this Tribunal to take into account, amongst other things, particular country information published by the respondent (DFAT) concerning the applicant’s country of origin (China).
Clause 3 of Direction 84 provided as follows:
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
The terms of Direction 84 are similar to its predecessor, Direction 56 made on 21 June 2013. So for at least eight years, a similar direction has been in place. Its terms have led the respondent (DFAT) to formulate processes which have been followed by its Country Information Service now for a number of years, in the knowledge that decision-makers are bound by direction 84 or its predecessor to take into account what the country reports say. Those processes involve first a framework document, which will be explained below, but which allows DFAT to know what information decision-makers need to obtain. Then they involve at first one or more persons from DFAT’s Country Information Service, who will visit the country in question and with the help of the embassy or consulate abroad (the post), interview locals including in some cases diplomats from foreign countries who also have local knowledge, prepare, with others in some cases, progressive drafts of the report which will be sent to various persons for checking and comment, including the post abroad, Australia’s security agencies, trusted non-government organisations and the like. The drafts will be progressively refined as they pass through more hands. The facts asserted will be vetted by more senior persons within the respondent from the point of view of bilateral relations with the country concerned. Statements made on sensitive matters, such as human rights abuses, can occasion concerns from the country in question. Australia must be sure it can defend statements made in such an area if they are challenged. At all stages up to final approval of a report, its communications including the progressive drafts are classified and accordingly, not made available to the public. Statements made in drafts are not intended by their direct authors (who will often be junior officers) to be released to the public, unless and until they have been through the vetting process by more senior or more specialised members of DFAT and other Commonwealth officers who are consulted. To take one example, a statement made in an early draft may be incorrect, or omit important matter, and may be corrected by a later draft. Releasing an incorrect draft under the FOI request may confuse or positively mislead a decision-maker, or make a decision-maker doubtful or cautious in accepting an inconsistent (correct) statement in the final report. Although these proceedings arise under the Freedom of Information Act, they confront or challenge DFAT processes about the gathering of information for country reports for protection status determinations, except as to the FOI request for the final country reports themselves. Where a conditional exemption is engaged by a particular document, such as a deliberative document, or a document the disclosure of which may adversely affect the efficient and proper operations of an agency, including DFAT itself, public interest questions must be resolved before a decision is made to release the document. DFAT regards its classification of the drafts and associated documents as an important part of the proper and efficient conduct of its operations, to use the language of s.47E (d) of the Freedom of Information Act 1982 (the FOI Act, or the Act). Vetting drafts from the point of view of avoiding or minimising damage to Australia’s bilateral relations with other countries is one object of the classification of drafts and to that extent the processes of DFAT lead to an unconditional exemption under s.33(a)(iii) of the FOI Act.
The applicant made a request for documents under the FOI Act in the following terms:
1. A copy of all country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes in relation to China (country information), including but not limited to:
a. DFAT Summary of CIRs re: The Treatment of Children in China, 24 July 2003, CX82789;
b. DFAT RRT Country Information Request – Population and family planning regulations in Fujian Province, 13 March 2012, CX83325;
c. DFAT RRT Information Request, 12 November 2010, CHN37505; and
d. DFAT Country Report: People’s Republic of China, 3 March 2015.
2. A copy of all draft versions of each piece of country information.
3. A copy of all material relied upon by DFAT in preparing each piece of country information, including file notes, correspondence with any source contacted, audio video recordings, source material and any other records.
4. A copy of all correspondence between DFAT and the Department of Immigration and Border Protection regarding each piece of country information.
5. A copy of all correspondence between DFAT and the Administrative Appeals Tribunal or the Immigration Assessment Authority regarding each piece of country information.
6. The names and positions of the authors of each piece of country information.
7. The names and positions of the owner and/or person responsible for final sign off of each piece of country [information].
For the purposes of this review, the reviewable decision is taken by s.42D(4) of the Administrative Appeals Tribunal Act 1975 to be a reconsidered decision of the respondent dated 2 July 2019.
By that decision, the respondent gave access to some documents within the scope of the request, and gave partial access to others, and refused access to a number of documents.
The review went before the Information Commissioner in the first instance, and then to this Tribunal when the Information Commissioner decided that it was more appropriate for the Tribunal to deal with the review.
The applicant no longer seeks access to several documents and those documents are omitted from the ones examined in these reasons. This review focuses upon the documents listed in Exhibit A, a list agreed between the parties.
The matters in issue on the review relate to some exemptions expressed in the FOI Act to be unconditional, and to some conditional exemptions asserted by the respondent to apply, and to the correctness of decisions by the respondent that it would, on balance, be contrary to the public interest to give access to conditionally exempt documents.
Search issues, and any scope issues which previously were in dispute between the parties, no longer arise.
Mr Mostafa of counsel for the applicant, submitted that the drafts and other documents ought to be, as he put it, “interrogable” in the public interest. That would enable an applicant who may be adversely affected by a statement in the final report to know its basis, he submitted.
The respondent’s case on this review is well summarised in the reviewable decision.
The reviewable decision sets forth at paragraphs 19-21 the process followed within DFAT to arrive at a published country information report:
19. The process of deciding whether a person is owed protection obligations under the Convention Relating to the Status of Refugees 1951 (Refugee Convention) or under Australia’s complementary protection regime can be difficult and complex. Country information reports are intended to assist decision makers with their deliberations. The Department is independent from the protection visa decision making process, which is undertaken by Home Affairs. The requirement for decision makers to take into account the country information reports (where they are available) means that they must be as rigorous, accurate and reliable as possible.
20. The Department’s Country Information Section (CIS), based in Canberra, prepares the country information reports. Country information reports are prepared for protection status determination purposes only and provide the Department’s best judgement and assessment at the time of publication. They are distinct from Australian Government policy with respect to the countries in question. The reports provide a general, rather than an exhaustive country overview. They are prepared with regard to the current caseload for decision makers in Australia without reference to individual applications for protection visas. Country information reports do not contain policy guidance for decision makers.
21. Preparation of country information reports will commonly involve the following steps:
a. CIS consults Home Affairs’ Country of Origin Information Section (COISS) and the AAT on priority caseloads for updated or new country information reports.
b. The Director of CIS or a senior executive officer within Multilateral Policy Division (MPD) contacts the Head of Mission at the relevant post to request assistance with the preparation of the report and to propose timing for a field visit.
c. A responsible CIS officer contacts Home Affairs’ COISS and the Migration and Refugee Division of the AAT (AAT MRD) to request specific information about the current caseload and any specific information shortfalls relevant to the claims being made.
d. The CIS officer undertakes documentary research of open source and Departmental information.
e. The CIS officer undertakes a field visit to the relevant country, where the officer typically has discussions with relevant government officials from the country, international and non-governmental organisations, journalists, other diplomatic missions, academics, human rights groups and representatives of specific groups in the Australian asylum claim case load.
f. The CIS officer uses the information gathered to prepare an initial draft of the report, which [is] shared with the relevant Australian diplomatic post for preliminary comment.
g. The CIS officer then sends a revised draft to the Department's geographic division with responsibility for bilateral relations with the relevant country and to the Office of National Intelligence (ONI) (formerly the Office of National Assessments) for their comment.
h. The CIS officer sends a de-classified version of the draft (without footnotes) to Home Affairs for comment from the COISS country experts.
i. Once comments from the Department's geographic desk, ONI and COISS have been incorporated into the draft, the CIS officer sends it to the post for formal clearance by the relevant Head of Mission.
j. The head of MPD then formally clears the report for publication and release to decision makers at Home Affairs and the AA T. The country information report is then published on the DFAT website.
As to the drafts and the final published country information reports, the reviewable decision at paragraphs 25-31 asserts that:
25. The Department has in place strict security arrangements to protect draft reports
from unauthorised use or disclosure. Draft reports are classified until the final stage
of the process, and the clearance process requires explicit approval by the relevant
Head of Mission and Canberra based senior executive officer that text of the final
report can be publicly released as an unclassified document. Draft reports are never
made publicly available, or made available outside the areas of the Government that
specifically contribute to their drafting. In consulting with Home Affairs' COISS, the
Department expressly states in correspondence that COISS is not to share draft
reports with visa decision makers and that any comment that the Department
considers have originated from decision makers will be disregarded. The
Department therefore takes explicit measures to ensure that decision makers do not
see draft reports. This means any material in the draft reports that is excluded from
the published reports is never seen by decision makers and so is not able to improperly influence the protection visa decision making process.
26. The integrity of the country information assessment regime is heavily reliant on a single, publicly available document representing the Department's best judgement
and assessment of a country as at the time of publication.
27. Each published country information report represents the Department's carefully
considered assessment with respect to the political, economic and social climate of
the country concerned at the relevant time. It is for protection status determination
processes only, and is distinct from Australian Government policy with respect to the
country in question. The process involves a complex assessment of information
from a range of sources that, in isolation, may not represent the best or most reliable
evidence or may be skewed toward a particular bias. The experts in the
Department's CIS consider and weigh this information during the intensive drafting
and consultation process.
28. Disclosure of information that was excluded from the final reports for various
reasons has the serious potential to undermine the integrity and credibility of the
entire country information process.
29. The disclosure of draft reports could also undermine and adversely affect the
determination of protection visa applications more generally as decision makers
could no longer rely on a single definitive version of a country report. Furthermore,
should drafts be made publicly available, it would likely open up an area of legal
challenge of visa decision making that could result in country information reports
losing their status as final and authoritative. This would have a substantial adverse
effect on the Department's mandated role in preparing authoritative country
information reports, because the integrity of the reports would be undermined. More
broadly, this would have a very substantial adverse effect on the ability of the
Australian Government to effectively and efficiently manage and process protection
visa applications overall.
30. The initial drafting of the reports occurs at a junior officer level (APS5-EL 1 ). The
judgements, assessments and nuances contained within the draft reports have
therefore not been internally reviewed, tested, or cleared by more senior officers,
and are not likely of a publicly releasable standard. As such, the assessments and
judgements in the draft reports do not represent the Department's fully considered
view.
31. The release of drafts could set a precedent that would make it difficult (if not
impossible) for the Department to continue to produce its country information
reports. It could, for example, limit the Department's ability to use junior officers,
because the Department would need to manage the risk of a draft containing
material that was potentially damaging to international relations or contained errors
or inaccuracies due to the relative inexperience of the drafter. This would have
significant resource implications for the Department's operations, and would
severely limit the Department's ability to play a central role in providing country
information to assist decision makers at the primary and review levels. For example,
if draft reports could only be prepared by senior officers this would necessarily mean
that fewer reports could be prepared in a given period, and reports would take
longer to write, because of the competing demands on senior officials in the
Department.
In the public session the respondent relied mainly upon the evidence of Dr Lee to prove those aspects of the reviewable decision just mentioned. Dr Lee’s evidence did support the various assertions in the reviewable decision which I have set out above.
Of the various documents said to be exempt, the most numerous are the drafts of the published country reports, which number 102 documents extending over some 2,800 pages. It will be convenient in these reasons first to consider the draft reports, both as to whether exemptions are engaged, and, where relevant, as to whether it is, on balance, in the public interest that they should be disclosed.
The various exemptions said to affect those documents, or parts of them, include both conditional and unconditional exemptions specified in the FOI Act. I have heard evidence both in open session, with cross-examination by Mr Mostafa for the applicant, and in confidential session, in the absence of the applicant. The evidence was led by the respondent from senior officers of DFAT, and an officer of the Department of Home Affairs.
Dr Lee, the First Assistant Secretary of the Multilateral Policy Division of DFAT since February 2018, was previously Deputy Head of Mission at the Australian Embassy in Indonesia for four years, and from 2012 to 2014, was Australia’s Ambassador for Climate Change, and from 2009 to 2012, was High Commissioner to Bangladesh.
As part of his duties, he is responsible for DFAT’s preparation of country reports, prepared for the purposes of Direction 84 as is indicated in paragraph 21 of the reviewable decision set out above.
At paragraphs 30-34 of his affidavit, Dr Lee said:
30. From previous discussions with Ms Marcia Pius, the Director of CIS, I understand that the process of preparing the reports typically involves the following steps:
30.1. Based on an email drafted by the Director of CIS, I contact the Head of Mission at the Post accredited to the country under research to request assistance with the preparation of the report and to propose timing for a field visit.
30.2. A CIS research officer contacts the Department of Home Affairs' Country of Origin Information Services Section (COISS) and the Migration and Refugee Division of the Administrative Appeals Tribunal (MRD) to seek a framework document for the country, which will include numbers in the current caseload and information relating to the claims being made. The framework documents typically also highlight areas where decision-makers are unable to obtain information relevant to claims.
30.3. The research officer commences documentary research of both open-source material and DFAT reporting (usually in the form of cables).
30.4. The research officer undertakes a field visit to the country under research. The field visit typically includes discussions with relevant government officials from the country under research, international and non-governmental organisations, journalists, academics, human rights groups and representatives of specific groups in the Australian asylum caseload.
30.5 The research officer uses the information gathered to prepare an initial draft of the report. The initial draft is then shared at junior level with the Australian Post that hosted the visit, to ensure that the information contained within the draft is accurate and the analysis accords with the Post's understanding of the actual situation in the country.
30.6. The revised draft is then sent to the Division within the Department responsible for bilateral relations with the country under research and to the Office of National Intelligence (ONI) (formerly Office of National Assessments (ONA)) for their comment, to ensure that the information and analysis in the draft are consistent with their understanding.
30.7. A de-classified version of the draft (whereby the footnotes are stripped) is sent to COISS to seek any comment from the country of origin information researchers within COISS. The email covering the draft states explicitly that the draft is not to be shared with decision makers. If CIS has reason to believe that it has, any comments provided by COISS will be disregarded. In this way, CIS can utilise the subject knowledge of COISS researchers while ensuring that decision makers are kept separate from the process.
30.8. It is vital for decision makers to be strictly excluded from the process of drafting to ensure that there is no actual or apprehended bias arising from their subsequent decisions. For this reason, AA T MRD is not provided with a draft of the report, as AAT MRD has no research function but rather relies on CIS and COISS to provide country of origin information. AAT MRD and Home Affairs decision makers are provided only with the final, cleared public report, which is then also published on the Department's website.
30.9. A further draft of the report, taking into account any comments obtained from the Department's bilateral divisions, ONI and COISS researchers, is sent back to the Post for formal Head of Mission clearance. The Head of Mission has a formal clearance role and must confirm that the information, analysis and assessments contained in the draft report are accurate and fairly portrayed, and that the content of the report, stripped of footnoted references, can be released to the public.
30.10. The version of the report as cleared by the Head of Mission is sent to me and I have the final responsibility to decide to release the report to decision-makers and to make it publicly available.
31. The reports are updated periodically as required, to reflect changes to economic, political, human rights and humanitarian situations in relevant countries. The updates to reports follow a similar process as described above.
32. Drafts are currently prepared by relatively junior officers and are subject to a rigorous review and clearance process. It is important to bear in mind that a country information report is not simply a collation of objective facts. It is a record of assessments and evaluations based on a combination of factual information and analysis. A draft report will often go through multiple points of review from various perspectives, such as from the relevant Australian overseas mission (Post) and from more experienced members of the CIS, in order to arrive at a final product that is reflective of the Department's considered views.
33. As noted at 30.4 above, CIS officers gather information for the preparation of the reports from a variety of formal and informal sources. Given that the reports deal with sensitive issues of human rights abuses and persecutory conduct in countries, the information obtained informally is often more valuable than that received through more formal channels.
34. Early drafts will include references to source material. This facilitates the review process, because those who are examining the draft report can see for themselves the factual material which the drafter relied upon in making their various assessments and opinions. The final report will generally not include these source references. The reason for this is that it protects sources by preventing attribution of sources. I discuss protection of sources further below.
I accept that evidence, upon which he was not cross-examined in the relevant respects.

Each of documents 1-100, and documents 195 and 196 in Exhibit A, claim exemptions for the drafts under sections 47C, 47E(d) and 33(a)(iii) of the FOI Act. Of those, only s.33(a)(iii) is a complete exemption provision. The confidential evidence concerning the exemption in s.33(a)(iii) was not exhaustive but rather illustrated certain concrete examples. Since, as will appear, I have concluded that the drafts all attract conditional exemptions and since I have also concluded that on balance, it is not in the public interest to disclose the draft reports, and having regard to the way the case was conducted in public session, it will not be necessary to discuss in any detail the impact of s.33(a)(iii) in relation to the drafts.
Section 47C provides as follows:
Public interest conditional exemptions – deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purpose of, the deliberative process involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a)  operational information (see section 8A);
(b) purely factual material.
Note:          An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Note:          Access must generally be given to a conditionally exemptdocument unless it would be contrary to the public interest (see section 11A).
Section 47E(d) provides as follows:
Public interest conditional exemptions – certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
The guidelines issued under s.93A of the Act by the Information Commissioner have relevance to public interest factors, amongst other things. Section 93A is in the following terms:
Guidelines
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901 .
(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a)  paragraph 9A(b) (information publication scheme);
(b)  subsection 11B(5) (public interest factors);
(c)  subsection 15(5A) (decisions on requests).
(3) Guidelines are not legislative instruments.
The words “a substantial adverse effect” in s.47E(d) are discussed in the guidelines at paragraphs 5.19 to 5.21 in the following terms:
Substantial adverse effect
5.19 Several conditional exemptions require the decision maker to assess the impact and scale of an expected effect or event that would follow disclosure of the document. That is, the expected effect needs to be both ‘substantial’ and ‘adverse’.
5.20 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’. The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’.
5.21 A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons in order to show their deliberations in determining the extent of the expected effect. Of course, it may sometimes be necessary to use general terms to avoid making the Statement of Reasons itself an ‘exempt document’ (s 26(2)).
WHETHER S.47C AND s.47E(d) ARE ENGAGED BY THE DRAFTS
My inspection of the drafts and associated documents including source documents, satisfies me that all of them are conditionally exempt under both s.47C and s.47E(d) of the FOI Act. From the earliest draft to the penultimate draft, they are documents of a deliberative nature. They are classified, a matter which is known to those who prepare them, and they are progressively amended, supplemented, and refined as they pass through the drafting proceed. Each draft is in effect a recommendation by its author or authors, intended to be submitted to others in due course for their consideration. They therefore engage s.47C.
The reasons indicated in the evidence for the drafts being classified are various. To effectively declassify the drafts, by releasing them under the FOI Act in this case, and in the case concerning Bangladesh, the review in which was heard at the same time as this review, would frustrate the processes determined upon by DFAT for the preparation of country information reports prepared for protection determination purposes. It would also have an effect on the processes followed by DFAT for the future preparation of country reports. The effect in both respects, would be a substantial adverse effect within the meaning of s.47E(d), so that that provision is also engaged. Some incorrect drafts would be released, if the drafts were released. Experts within DFAT or within intelligence agencies or the post will not have checked some drafts. That risks detracting from the final report, if the drafts are released. The drafts contain some matter which if released, would or could reasonably be expected to damage Australia’s bilateral relations. The drafts are progressively vetted, so that in DFAT’s estimation, the final report may be relied upon by decision-makers. Earlier drafts have not been refined to that extent. Source information appears in some reports and DFAT expressly or impliedly undertook not to reveal non-open sources. Releasing the drafts with source information would prejudice the ability of DFAT to obtain such information in the future. Merely to remove names would not necessarily protect sources of particular information because particular information may lead to the identification of its source. Foreign diplomats who communicated information to DFAT did so on understandings as to confidentiality of the communication.
Releasing drafts in these proceedings could affect not only the past, but also the future. DFAT may be obliged to change its processes radically if the drafts are made available in this case. For example, junior officers who do initial leg-work may no longer be able to be involved and more senior and specialised officers may need to be involved in the early stages, with a consequent disturbance to their schedules. Dr Lee gave evidence as to the likely effect, in his opinion, of releasing the drafts in this case on DFAT’s future processes in relation to country reports.
For those reasons I also conclude that the release of the drafts would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of DFAT, to use the language of s. 47E(d) of the Act. The words “would or could reasonably be expected to” have been authoritatively construed in relation to s.33(a)(iii) of the Act, as is discussed below, and I have assumed the same meaning for the expression in s.47E(d).
Both s.47C and s.47E(d) are conditional exemptions, and sections 11A(5) of the Act, together with s.11B of the Act, read together with the objects provisions, particularly s.3. Those provisions are as follows:
Section 3:
Objects — general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Section 11A(5)
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Section 11B
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
S.11B(5) requires regard to be had to the guidelines published by the Information Commissioner. Those guidelines include at 6.4-6.6 the following:
6.4 There is a single public interest test to apply to each of the conditional exemptions. This public interest test is defined to include certain factors that must be taken into account where relevant, and some factors which must not be taken into account
6.5 The public interest test is considered to be:
·something that is of serious concern or benefit to the public, not merely of individual interest
·not something of interest to the public, but in the interest of the public
·not a static concept, where it lies in a particular matter will often depend on a balancing of interests
·necessarily broad and non-specific, and
·related to matters of common concern or relevance to all members of the public, or a substantial section of the public.
6.6 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.
THE SUBMISSIONS OF THE APPLICANT ON THE PUBLIC INTEREST
Mr Varess, who instructed Mr Mostafa of counsel for the applicant gave evidence that in his experience decision-makers often place considerable reliance on DFAT country information reports, and the respondent did not put that evidence in issue. I accept that evidence of Mr Varess.
The main point made by the applicant on the question of the public interest was that assessments made by DFAT should be “interrogatable” so that claimants for protection status would be able to ascertain the basis of those assessments, in effect, for the purpose of challenging them in an appropriate case. He submitted that on the basis of DFAT assessments being opaque, those affected adversely by them without knowing how they were arrived at were at a disadvantage. He referred to the Information Commissioner’s guidelines, and submitted that the release of the documents would enhance scrutiny and shed light upon the reasons for government decision-making.
Mr Mostafa submitted that the release of drafts would not produce an undesirable consequence because a decision-maker would know that a draft was only a draft and would not prefer a draft to a final version. He submitted that redactions could overcome arguments made by the respondent about dangers (such as the suggestion that the release of drafts may impede the future gathering of information by the respondent) which release of the drafts might occasion.
Mr Mostafa also stressed in his submissions that it is for the respondent to discharge an onus in accordance with s.61(1)(b) of the FOI Act. In that connection he referred to the decision of DP Forgie in O’Sullivan and Australian Federal Police [2011] AATA 188 at [45] and following.
THE SUBMISSIONS OF THE RESPONDENT ON THE PUBLIC INTEREST
Mr Justin Davidson, who appeared for the respondent, submitted that the release of the drafts would tend to undermine the policy objective of the country reports being the authoritative statement, such that decision-makers might rely upon any differences between the drafts and the final published report, so that decision-making in the area may no longer be consistent, as is the intention of the making of a direction under s.499 of the Migration Act1958.
He also submitted, referring to evidence to be called in the review, that if the drafts were released, that would have an impact on the comprehensive and rigorous way in which they are prepared at present. The respondent accepted that to give access to the drafts will promote understanding of how the final country information was arrived at, but submitted that such access would come at too high a cost.
He referred also to the need to protect sources, submitting that mere redaction of the name of the source would not be sufficient to protect their identity, because they may be identifiable by reason of the particular information attributed to a source in the drafts. This is a matter to which evidence was directed in confidence.
Mr Davidson also put submissions about the drafts insofar as they were identical with the final published country information report. He submitted that although such parts of the drafts are not exempt, the work of their dissection from the drafts would not be practicable within the meaning of s.22(1)(c) of the FOI Act. I should say at once concerning this submission that my examination of the draft documents, which number 102, and which extend to some 2800 pages, certainly suggests that such a task would be very onerous and time consuming. Such a limited disclosure would be of no use to the applicant, such that to give access to those parts of the drafts which found their way into the final published version would disclose information that would reasonably be regarded as irrelevant to the FOI request. In my opinion, a task which would, if done, tell the applicant nothing about the balance of the contents of the drafts. It would reasonably be regarded as irrelevant to the request and it is not reasonably practicable for the agency to do it.
It should also be mentioned that the applicant submitted after the hearing was concluded that the effect of certain subsequent statements attributed to government spokesmen was to recognise that matters dealt with in evidence at the hearing as to the relationship with China have changed since that time. The respondent submitted to the contrary. No application has been made to reopen the evidence before the Tribunal. It is the Tribunal’s duty to attend to the evidence before it, and a suggestion such as that made in correspondence by the applicant would require the re-opening of the case.
CONSIDERATION
I accept that on balance, it is not in the public interest that the drafts should be disclosed.
In the interests of brevity, I will call that finding, which arises with other documents listed in Exhibit A as well, the public interest finding. Unless otherwise stated that shorthand expression will incorporate the proposition that my reasons are the same as those for the draft reports, set out below.
I received evidence in confidential session from Ms Lawson which satisfies me that a number of the drafts contain statements which if released, would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth, thus attracting an unconditional exemption under s.33(a)(iii) of the FOI Act. However, because I make the public interest finding none of the draft documents, all of which engage s.47C and s.47E(d) will be released, and in these reasons it is not necessary to deal with s.33(a)(iii) in relation to the drafts.
It seems to me that the reasons I have given for finding that the drafts are exempt under s.47E(d) also bear on the public interest question.
Drafts, particularly earlier drafts contain errors of fact or evaluation, including omissions of necessary qualifications which were weeded out by more senior officers as the drafts were refined. Release of drafts containing errors may detract from the authority of the final reports, and confuse or mislead decision-makers.
As is shown in the confidential evidence of Ms Lawson, there are remarks in some of the drafts which if released in their present form, would or could reasonably be expected to cause damage to Australia’s bilateral relations with the country in question. Once the drafts had been vetted from that point of view, the department was satisfied that if the comments lead to challenges from the country in question, DFAT will be able to defend them in the language in which they are cast.
The work of those who prepared draft reports was done on the basis that it will be considered by others from a variety of different points of view. They know all drafts are classified and that their work will be checked by superiors. If it had been otherwise, they may have been hesitant to frankly state their views. A wholesale change in Departmental processes, so that senior and more experienced drafters would be required to be involved at all stages would no doubt be disruptive, and that would be contrary to the public interest.
In the construction of an Act, context and purpose are generally to be taken into account. As was remarked in Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645; at [37] the FOI Act “does not pursue its objects, as legislative purposes, at any cost”. Rather, as French CJ, Crennan, Kiefel and Bell JJ explained:
‘… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.’

As was observed by Gleeson CJ in Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 at 143 [5]:
‘Another general consideration relevant to statutory construction is one which I referred in Nicholls v R. It was also discussed, in relation to a similar legislative scheme, in Kelly v R. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act). It is also required by corresponding state legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
It should also be mentioned that in accordance with s.61 of the FOI Act, the onus rests upon the respondent to establish that the decision is justified, or that the Tribunal should give a decision adverse to the applicant. This provision was recently discussed by Perry J, sitting as a Deputy President of the Tribunal in Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537 at [39]-[47].
Her Honour there said:
[39]  It was not in issue that, by virtue of s 61(1)(a) of the FOI Act, the onus lies upon the Department on this review of establishing that the decision of the Information Commissioner is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request for access. That provision does not specify that the onus must be discharged on the balance of probabilities or according to some other standard.
[40] The Department submitted in its SFIC at [44] that “the phrase ‘could reasonably be expected to’ does not require the decision-maker to be satisfied, on the balance of probabilities, that the release of the document will cause damage of a relevant kind. What is required is a possibility (and not probability) of damage that is reasonably based and supported not only by assertion but by evidence of probative value” (footnotes omitted). The respondent submitted that the onus of establishing that the exemptions are made out must be discharged by the Department on the balance of probabilities, relying upon the decision in Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 ; at [30] and [36] (Buchanan J) and [91] (Flick J) (citing with approval Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73 ; (Jorgensen) at [65] (Weinberg J)): see the respondent’s statement of facts, issues and contentions (RSFIC) at [16]; cf eg the approach adopted in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 ; at [115] (Flick and Perry JJ).
[41]  However, the decision in Fisse concerned the question of whether the Tribunal had erred in holding that a report was exempt under s 34(1)(a) of the FOI Act on the ground that it was created for the purpose of consideration by, and was in fact submitted to, Cabinet, as well as s 36(1)(b) on the ground that disclosure would be contrary to the public interest because it would breach Cabinet confidentiality. Section 33, on the other hand, requires the Tribunal relevantly to engage in an evaluative task, namely, to determine whether, if disclosed, the document “would, or could reasonably be expected to, cause damage” to one of the enumerated interests. The answer initially given by Mr Howe QC for the Department to this difficulty was that the Tribunal must be satisfied on the balance of probabilities that damage to the international relations of the Commonwealth is a reasonable possibility (T, 21 March 2019 at 8.34–9.9) — a test, with respect, that makes little sense. On being further pressed, however, he submitted that “basically your Honour simply needs to be satisfied as to whether or not the infliction of harm is a real possibility based upon matters of substance and not just mere assertion or allegation and the like” (T, 21 March 2019 at 9.8–9). However, even to speak of “a real possibility” is to impose a gloss on the words of the section.
[42]  In this regard it is true that in Jorgensen Weinberg J stated with respect to the onus imposed by s 61 of the FOI Act that it “seems” that the applicant has the onus of proving that the decision to claim the exemption is justified “on the balance of probabilities”, citing Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 (Searle) at 116. It is also true to say that the grounds on which the exemption was claimed in Jorgensen included s 37(1)(b) of the FOI Act which provided that a document was exempt if its disclosure “would, or could reasonably be expected to” have certain effects. However, Weinberg J does not appear to have definitively decided the issue, but only to have indicated what “seems” to be the test. Nor, with respect and in any event, does the decision in Searle support the proposition that an applicant must establish that it is more probable than not that an exemption expressed in terms of reasonable expectations applies to the documents in question. To the contrary, the Full Court in Searle held that the words “could reasonably be expected to” in s 43(1)(b) and (c) of the FOI Act “are ordinary words of the English language and are used in the sense in which they would be employed in common parlance” (at 122). In so holding, the Full Court approved the approach of Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 (Cockcroft) at 190 that:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v West [ (1985) 159 CLR 550 ] per Mason J and per Gibbs CJ.
The majority of the Tribunal thought an assessment of what was more probable than not was called for. As Woodward J has pointed out, there are difficulties in this approach for the legislature has chosen not to introduce the notion of a “probable” result: cf Ex parte White; Re White (1885) 14 QBD 600 . It is also unnecessary to consider whether an “even chance” or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s 43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision.
(emphasis added)
[43]  With respect to these passages, the Full Court in Searle at 123 explained that:
Their Honours did not suggest … that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words “could reasonably be expected” meant what they said. The practical application of their Honours’ view will not necessarily lead to a result different from that proposed by Sheppard J [also in Cockcroft ].
In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.
(emphasis in the original)
[44]  Applying these principles, the Full Court in Searle found at 123 that the Tribunal in that case had fallen into error:
In par 58 of its reasons, the Tribunal said:
A decision-maker is required to make a judgment as to whether there is a ‘reasonable’ basis for a claim that disclosure of information would destroy or diminish the commercial value of such information, as distinct from something that is ‘irrational, absurd or ridiculous’.
However, the question under s 43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant’s behaviour, but with the effect of disclosure. The Administrative Appeals Tribunal failed to determine that question and erred in law in this respect.
[45]  The Full Court’s understanding in Searle of the relevant passages in Cockcroft was subsequently approved by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 ; (McKinnon) at [60] who held that:
The expression “not irrational, absurd or ridiculous” is not synonymous with “reasonable grounds”. Of course, absurd, irrational or ridiculous grounds are not reasonable grounds. But the words “reasonable grounds” do not denote grounds which are “not irrational, absurd or ridiculous”. The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them.
(See also McKinnon at [129] (Callinan and Heydon JJ); and eg in the Tribunal, Bui at [15]–[17] (Allen SM).)
[46]  This view of the authorities is reflected in the Guidelines issued by the OAIC (the FOI Guidelines) to which regard must be had by virtue of s 93A(2) of the FOI Act. Specifically, the FOI Guidelines state at [5.17] that the use of the word “could” in this context is less stringent than “would”, and requires an analysis of the reasonable expectation rather than the certainty of an event or damage occurring: see also eg Lobo at [74] (Deputy President Forgie).
[47]  Applying the decisions in Searle and Cockcroft and the FOI Guidelines, the question posed by s 33 is therefore (relevantly) whether disclosure of the Letters “would, or could reasonably expected to” cause damage to the international relations of the Commonwealth.
Therefore Courts and this Tribunal are bound to construe s.33(a)(iii), and it follows, s.47E(d) of the Act as explained by the Full Court of the Federal Court in Cockcroft, noting the remarks of Hayne J in McKinnon.
Where s.47C is being considered, which uses different language, the Tribunal requires evidence which is relevant and rationally probative, rather than evidence which proves the matter on the balance of probabilities, although in practice, there is often little difference between the two. Under s.47C, in this case, the relevant facts appear from the terms of the documents in question itself, and their context.
The statements made in Summers affect not only the exemptions claimed under s.33(a)(iii) but those claimed under s.47E(d), which both use the language “would, or could reasonably be expected to”. The s.47C exemptions require the Tribunal to make factual and evaluative determinations, and for that purpose, the Tribunal requires relevant and rationally probative evidence.
S.11A (5) of the Act has a temporal element. The public interest question should be decided at the date of these reasons.
I accept the submissions of Mr Davidson for the respondent on the public interest question in relation to the drafts.
Mr Mostafa’s submissions summarised in paragraph [34] above suggested that applicants seeking a protective determination were at a disadvantage if they wished to challenge adverse comments in a final report published by DFAT, which the decision-maker is bound to take into account. Decision-makers are not bound by a DFAT report and they may access the reports concerning the same country, here China, of other countries, such as the United Kingdom and the United States State Department, Canada and non-government organisations. In the MRD, such reports are available through the AAT library. Delegates dealing with protection determinations have access to similar reports from the COISS section of their department. Applicants may give evidence of their own experience in the country in question, or lead evidence from others, if it happens that a suggestion they wish to make of a factual matter differs from a DFAT assessment in a country report.
No evidence was led before me that any applicant was in fact disadvantaged by the statements in any DFAT report. Nor was Dr Lee challenged on his evidence that DFAT had an independent role in the preparation of the reports and strove to make its assessments rigorous and defensible. He said that DFAT takes very seriously its responsibility to ensure that the information on which decision-makers rely is as accurate as possible. He added that the Head of Mission has a formal clearance role and must confirm that the information, analysis and assessments contained in the draft final report are accurate and fairly portrayed, before the final report is published. I accept Dr Lee’s evidence.
It is true that the practice of DFAT is not to identify source information for statements in the published report. DFAT must protect its confidential sources, and not revealing sources enables it to do so. Identifying all open sources might perhaps make that task somewhat more difficult. Whether or not to identify open sources assessed to be reliable is a matter, in my opinion, for individual countries, including this country, to decide when drafting final country reports.
Those are my reasons for finding that, on balance, it is not in the public interest to disclose the draft reports.
The cross-examination of Dr Lee by Mr Mostafa, dealt, amongst other things, with the different position of a remark in a draft report attributed in a footnote to an open source. If the open source document were assessed by DFAT to be reliable, and the open source found its way into the final published report, Dr Lee agreed that the footnoted open source could be released without damage in the respects discussed in paragraphs 32-74 of his affidavit. In the light of that evidence a further document has been prepared by DFAT and is to be provided by DFAT to the applicant upon the publication of these reasons. It no longer forms part of this review. The preparation of the document in this case, and the similar document in LHTT, which concerns the Bangladesh report and its drafts, occasioned much delay in the provision of these reasons. I mention that in another case, that kind of delay may justify a practical refusal reason to justify a refusal to provide such documents.
ASSOCIATED DOCUMENTS, INCLUDING DOCUMENTS COMMENTING ON DRAFT REPORTS
For the most part these documents bear a relationship to the drafts, including commentary by various persons. Where I have found that s.47E(d) applies to documents in this group and stated that it is not in the public interest for them to be disclosed, my reasons for the finding as to the public interest are the same as I have given above in relation to the drafts.
Exemption for documents 101-104 is claimed under s.47E(d) and s.33(a)(iii).The reviewable decision describes the exemptions for these documents in paragraphs 79-81 as follows:
Unofficial translations
79. The documents also include some unofficial translations of Chinese documents (for example, legislation or policy). Such documents are not a definitive record and are not prepared for public distribution. This information is also referred to in Departmental reporting (for example, in a cable) that refers to the government document but based on the unofficial translation. These documents, by nature of their significance to protection visa concerns, involve sensitive issues where unintended harm to Australia's international relationships may flow from an incorrect interpretation, particularly if the context is not understood.
Section 33
80. I consider disclosure of such material would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth of Australia by impeding the ability to maintain good working relations with the Chinese Government and international organisations. I have therefore decided this material is exempt under s 33(a)(iii) of the FOI Act.
Section 47E(d)
81. I also consider that disclosure of this material risks sources being identified, and would therefore hamper the Department's ability to obtain this information in the future. Disclosure may also lead to different views about the accuracy of the translation, which could be used to challenge a country information report and undermine the intended operation under the Ministerial Direction. This would in turn, have a substantial adverse effect on the Department's proper and efficient conduct of its operations in sourcing information from other countries. I therefore consider this material is conditionally exempt under s 47E(d) of the FOI Act. I accept public interest factors from disclosure include that disclosure would promote the objects of the FOI Act and inform the community of the Government's operations. However, I give greater weight to not damaging Australia's international relations or impeding the future flow of such information.
Those remarks are cast at a general level. I have received confidential evidence from Ms Lawson on the subject-matter of the documents with greater particularity and have examined them. Ms Lawson’s evidence satisfies me that the documents are exempt under s.47E(d). For reasons also appearing from the confidential evidence of Ms Lawson, it is not, on balance, in the public interest for the documents to be released. Ms Lawson’s evidence also satisfies me that at least in part the documents are also exempt under s.33(a)(iii) but it is not necessary further to discuss that matter.
Document 105 is a set of notes. They are deliberations associated with the draft country information reports, and are claimed to be exempt under s.47C and s.47E(d). As to s.47C they are opinions, or advice prepared in the course of deliberative processes. Their release would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of DFAT, in the same way and for the same reasons as documents 1-100, 195 and 196. I make the public interest finding.
NAMES OF OFFICERS AND SOURCES

As mentioned earlier, the applicant stated that names of junior officers and names of sources are not sought. As to the names of Commonwealth officers, in my opinion, they are all exempt. Section 47F provides for a conditional exemption if disclosure of personal information about any person is unreasonable, and for the most parts the documents in question are exempt and the public interest does not favour their release. It is unreasonable to reveal the names of officers who authored the documents or who are mentioned in them. It follows from the fact that some of the documents themselves will not be released that there is no public interest in revealing the names of Commonwealth officers who were their authors. The applicant in paragraphs 6 and 7 of the FOI request in effect seeks to interrogate the respondent about the names of senior officers involved in sign-off. Some information has in fact been led by Dr Lee to the effect that the Head of Mission has a sign-off role and that he himself has a role in the matter. The FOI Act is concerned with documents not interrogatories. Exhibit A does not include any sign-off documents and nor does the FOI request. As to sources, not only should their names be released but the sources may be evident from the nature of the information in question, and the sources from a country may be at risk if their identity is revealed directly or indirectly. Moreover the implicit or explicit confidentiality agreed to by DFAT is a sufficient reason to keep such details secret.
SOURCE DOCUMENTS AND COMMENTARY DOCUMENTS
These documents fall within a number of categories. Insofar as the redactions exclude names of junior personnel or sources, the applicant does not oppose any such redaction, which therefore will pass without mention. For reasons just mentioned, I would reject access to the names of more senior officers.
Documents 101-104 are source documents, for which exemption is claimed under s.47E(d) and s.33(a)(iii). The confidential evidence of Ms Lawson satisfies me that they are exempt on both bases. Since s.33(a)(iii) is not a conditional exemption it is not necessary to make public interest findings.
Document 105 is in a similar category to the draft reports in that it constitutes a set of notes on the subject matter of draft country reports and is claimed to be exempt under s.47C and s.47E(d). Those sections are engaged, and it is not, on balance, in the public interest that they be disclosed for substantially the same reasons as apply to the draft country reports. I will summarise this finding below as the public interest finding, which also incorporates, where relevant, a finding that it is contrary to the public interest for the identity of a source providing information in confidence to DFAT to be publicly released.
Document 106 is an email chain claimed to be exempt in full on various grounds. Some of it is irrelevant to the FOI request and is therefore exempt under s.22 of the FOI Act. Some of it is unconditionally exempt under s.7(2A) of the Act. The main purpose of the email chain is to attach and discuss the contents of draft report 33. It attracts s.47C and s.47E(d). I also make the public interest finding.
Document 107 is a commentary document discussing issues dealt with in the draft reports which is exempt under s.47C and 47E(d). I make the public interest finding.
Documents 108 and 109 are notes of meetings with sources in China, and are in my opinion wholly exempt under s.33(a)(iii) in that their disclosure would or could reasonably be expected to cause damage to the international relations of the Commonwealth, for reasons given in the confidential evidence of Ms Lawson. Redactions of names would not avoid identification of sources because of the content of the information.
Parts of the email exchange in document 110 are irrelevant. Other parts are asserted to be conditionally exempt under s.47E(d), and s.47C. Those parts of the email chain which are not irrelevant are conditionally exempt under those sections. I make the public interest finding.
Document 111 is an email chain which attracts an unconditional exemption under s.7(2A) of the FOI Act in part. As to the balance of it, discusses a draft report and is exempt under s.47E(d). I make the public interest finding.
The email exchanges in documents 112 and 113 contain emails commenting or quoting comments made by others about draft country reports. They are, like the drafts, conditionally exempt under s.47E(d) and s.47C of the Act. I make the public interest finding. To a minor extent, there is also matter within the emails which is irrelevant to the FOI request.
Document 114 is an email exchange with a source, exempt under s.47F(1) and s.47E(d), on a subject matter dealt with in draft reports. The implicit confidentiality of the emails is clear and disclosure of the exchange would breach such confidentiality, to the detriment of the conduct of the operations of DFAT, because persons who communicate on such a basis with DFAT expect their communications to remain private. For that reason it is on balance, contrary to the public interest for the exchange to be publicly released.
Document 115 consists of internal commentary on a draft report which is exempt under s.47E(d). I make the public interest finding.
Document 116 is exempt under s.7(2A) of the FOI Act.
Document 117 is an email exchange with a source exempt under s.47F(1) and s.47E(d). I make the public interest finding.
Document 118 is wholly exempt under s.7(2A) of the Act.
Document 119 consists of internal commentary within DFAT upon drafts which is exempt under s.47E(d). I make the public interest finding.
Document 120 contains commentary on a draft report which is exempt under s.47E(d). I make the public interest finding.
Document 121 makes comment upon or alterations to a draft and is exempt under s.47E(d). I make the public interest finding.
Document 122 is a map which is, for reasons explained in the confidential affidavit of Ms Lawson, matter exempt under s.33(a)(iii) of the Act.
Documents 123-125 are proved to be exempt at the present time under s.33(a)(iii) in the confidential evidence of Ms Lawson, which I accept.
FRAMEWORK DOCUMENTS
Documents 126-130 are within the categories discussed in the evidence of Mr Luke Mansfield, First Assistant Secretary of the Refugee, Humanitarian and Settlement Division within the Department of Home Affairs. In paragraphs 28-34 of his affidavit, Mr Mansfield expressed concerns about the release of those documents which indicate knowledge gaps within the Department of Home Affairs. Such information is not revealed publicly by the Department in the detail contained in the Framework Documents which are documents 126A, 126B, 127 and 128. Exemption is claimed for those documents under s.47E(d) amongst others. Mr Mansfield said that if the documents were released publicly, it is unlikely that the Department would provide information in this format to DFAT in the future, specifically information relating to issues, gaps, risks and sensibilities, which would in turn limit DFAT’s ability to gather relevant information for country information for protection status determinations. He said the harm arising from the public release of this information would be too significant.
Mr Mansfield’s position makes him well-placed to express those views and I accept them. His cross-examination by Mr Mostafa extended to the concern expressed by Mr Mansfield that non-genuine applicants might seek to exploit gaps in the knowledge of the Department of Home Affairs in claims that they were entitled to protection. Mr Mansfield expressed in the witness box a similar concern about knowledge gaps becoming known to criminal syndicates and people smugglers. He was asked why that remark was not made in his affidavit and said that he had been reflecting on the matter since he affirmed his affidavit.
Mr Mansfield also expressed concern that the Framework documents might reveal information about small cohorts of protection status claimants.
The exemptions claimed for the Framework Documents based upon s.47E(d) appear to me to be correct both in relation to the Department of Home Affairs and in relation to DFAT, and their public release would, on balance be contrary to the public interest for reasons given in Mr Mansfield’s evidence to which I have referred.
The confidential evidence of Ms Lawson also satisfies me that documents 126A-128 are exempt under s.33(a)(iii) of the Act.
Document 129 is a draft cable, information about which appears in document 130. It appears to contain deliberative matter within s.47C of the Act, and to reveal knowledge gaps within Home Affairs, so as to be within the scope of Mr Mansfield’s expressed concerns and therefore to be a document which is not in the public interest to disclose.
Document 130 is related. To the extent to which it contains relevant matter, it is exempt on a number of bases, including s.47E(d) and because it reveals knowledge gaps on the part of Home Affairs, it is contrary to the public interest to release it for reasons given in Mr Mansfield’s evidence.
DOCUMENTS 152, 154, 156, 157 AND 159
Document 152 and document 154 redact references to documents 101-104 which I have found to be exempt and not in the public interest to disclose. Those redactions are consequential upon the exemptions allowed above.
Document 156 redacts the caseload numbers in the MRD of the AAT which is exempt under s.33(a)(iii) for reasons given in Ms Lawson’s evidence concerning document 177.
Document 157 redacts those parts of an email chain consisting of communications with a source, exempt under s.33(b) and s.33(a)(iii) and conditionally exempt under s.47E(d).
Document 159 redacts another email with a source, also exempt under s.33(a)(iii) and conditionally exempt under s.47E(d). Document 159 is a communication impliedly in confidence from an international organisation to a person receiving the communication on behalf of the respondent and is therefore within the unconditional exemption set out in s.33(b) of the FOI Act. As to the question of the communication being impliedly in confidence, I have relied upon paragraph 46 of Dr Lee’s affidavit of 31 October 2019 and certain of the contents of the document and its predecessor email.
DOCUMENTS 161-163
The redactions from document 161 and 162 are, in the light of the confidential evidence of Ms Lawson, clearly exempt under s.33(a)(iii) of the Act. Portions of the communications are irrelevant to the request.
Most of the redactions from document 163 are similarly exempt under s.33(a)(iii) of the Act, as explained in Ms Lawson’s confidential evidence. A small portion of the document is exempt under s.47E(d) and it is not in the public interest for it to be disclosed for reasons which appear from Mr Mansfield’s evidence.
DOCUMENTS 167 AND 168
The redaction from document 167 engages the exemption contained in s.47E(d) of the Act and it is not in the public interest to disclose it for reasons explained in paragraph 64 of Ms Lawson’s confidential affidavit.
The redactions from document 168 engage s.47F(1) of the Act and it is not in the public interest to disclose those passages for reasons explained in paragraph 64 of Ms Lawson’s confidential affidavit.
DOCUMENTS 172, 173, 174, 176-178, 180 AND 182
Document 172 is properly redacted as to matter which is irrelevant to the FOI request.
From document 173 a name is redacted and the applicant does not press for release of the name. Matter is also redacted from an email forming part of the document which is properly redacted on the ground of irrelevance to the request.
The same applies to document 174, which redacts a name, to which the applicant does not seek access, and also redacts matter irrelevant to the request.
Document 176 is an email from Home Affairs asserting that in a published country report, errors were made. Submissions made by the respondent after the hearing copied to the applicant indicate that the redacted parts of the document are in the category of commentary and deliberations upon a future country report correcting the then existing country report. The redacted portions of document 176 are exempt for the same reasons as commentary upon a draft country report is exempt. I make the public interest finding.
The confidential evidence of Ms Lawson satisfies me that those parts of documents 177 and 178 redacted are exempt under s.33(a)(iii) of the FOI Act.
Document 180 redacts names not pressed by the applicant, matter which is irrelevant to the request, deliberative matter which is conditionally exempt under s.47C, and for which I make the public interest finding. It also contains matter which is exempt under s.33(a)(iii) for reasons mentioned in the confidential parts of Ms Lawson’s affidavit. The document also contains matter which is exempt under s.47E(d) for reasons explained in paragraphs 28-34 of Mr Mansfield’s affidavit which also show why it would be contrary to the public interest to disclose the redacted portions.
The exchange of emails in document 182 has been released in part and the parts released show the applicant the subject of the chain. The parts redacted are claimed to be exempt under s.47E(d) and s.47C and in one case also under s.33(a)(iii). The communications were between DFAT and the COISS section of the Department of Home Affairs, the function of which is to provide decision-makers with up to date open source country of origin information as a supplement to DFAT’s country information reports. The parts redacted from the documents released include discussion of matters not cleared for publication by senior management within DFAT, and which touch upon sensitive issues such as human rights, dealt with in final country information reports where they are fully researched and DFAT is satisfied that it can defend the text if China may express concern about, or disagreement with, matter in the (final) country reports. The evidence before the Tribunal suggests that while accuracy is not sacrificed, care is taken with the language in which sensitive matters are discussed in the final reports. That care is not necessary to be taken with drafts or the remarks redacted from document 182, and recommendations and opinions by individuals, whether from Home Affairs or DFAT, about future country reports and the language in which they might be expressed are very similar to draft country reports which I have found it, on balance, not to be in the public interest to release under the Act. Because I find that it is not in the public interest to release the redacted portions of document 182 it is not necessary to decide whether release of portions of the document are in any event exempt under s.33(a)(iii).
DOCUMENTS 188 AND 189
These documents have been released in part and the redacted portions are said to be exempt under s.47E(d), upon the ground that their release would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency, namely Home Affairs. Framework documents issued by Home Affairs are exempt for reasons explained in the affidavit of Luke Mansfield of 29 October 2019 at paragraphs 28-34. Caseload information, provided by the former Refugee Review Tribunal falls into a similar category. The redacted portions of documents 188 and 189 are exempt for reasons specified in correspondence after the hearing by the respondent copied to the applicant. I make the public interest finding.
CONCLUSION
For all of those reasons the reviewable decision will be affirmed.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

....................[sgd]....................................................
Associate
Dated: 2 March 2022

Date(s) of hearing: 17, 18, 19 February 2020

Date final submissions received: 14 February 2022

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Varess

Counsel for the Respondent: Mr J Davidson

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	17, 18, 19 February 2020
Date final submissions received:	14 February 2022
Counsel for the Applicant:	Mr B Mostafa
Solicitors for the Applicant:	Varess
Counsel for the Respondent:	Mr J Davidson
Solicitors for the Respondent:	Australian Government Solicitor