Bui v Minister for Immigration
[2019] FCCA 3363
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3363 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary)(Class UK) visa – application in a case – applicant seeking disclosure of documents the subject of a section 376 certificate – public interest immunity claimed by the Minister – whether disclosure of documents outweighs public interest in confidentiality – application in a case dismissed. |
| Legislation: Evidence Act 1995, s 130(5)(a) Federal Circuit Court of Australia Act 1999, s. 45 Migration Act 1958, s. 376 |
| Cases cited: AB & EF v CD [2017] VSC 350 D v National Society for the Prevention and Cruelty to Children [1978] AC 171 El Jejieh v Minister for Home Affairs [2019] FCCA 838 Rogers v Home Secretary [1973] AC 388 Sankey v Whitlam (1978) 142 CLR 1 |
| Applicant: | PHUONG THAO BUI |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1217 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 9 October 2019 |
| Date of Last Submission: | 9 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Mr Chaile |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Confidential exhibit ‘MAT-1’ to the Affidavit of Michael Anthony Thomas affirmed 3 October 2019:
(a)not be placed on the file held by the Registry of the Court;
(b)
be retained securely in the chambers of Judge Blake pending the outcome of the Applicant’s Application in a case filed on
19 September 2019;
(c)be returned to the First Respondent’s solicitors once the Applicant’s Application in a case filed on 19 September 2019 is determined.
The Application in a case filed on 19 September 2019 be dismissed.
The substantive matter be listed for hearing, not before Judge Blake, on a date to be fixed.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1217 of 2017
| PHUONG THAO BUI |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in a case filed by the Applicant on 19 September 2019, seeking discovery of material that is the subject of a certificate issued pursuant to section 376 of the Migration Act 1958 (‘Act’).
The Minister opposes the application for discovery on the basis that the documents are subject to a claim of public interest immunity.
For the reasons that follow, I have determined that the documents not be disclosed to the Applicant.
Background
The present application in a case is brought in circumstances where the Applicant, in the substantive proceeding, seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 22 May 2017. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (Class UK) visa (‘visa’).
In arriving at its decision, the Tribunal had regard to information provided to it that was the subject of a certificate issued pursuant to section 376 of the Act (the ‘Information’). The substance of the allegations contained in the Information, but not the source of the Information, was put to the Applicant during the Tribunal proceedings, and she was given the opportunity to comment on it.
The Amended Application filed with the Court on 9 September 2019 sets out four grounds of review. Relevantly for the present matter, ground 1 provides, inter alia, that the Tribunal denied the Applicant procedural fairness or acted unreasonably, in failing to provide the Applicant a meaningful opportunity to refute the credibility of the Information. Ground 2 provides, inter alia, that the Tribunal failed to give proper consideration to the Applicant’s submission as to the credit and motivation of the person who provided the Information.
The Applicant now seeks to obtain discovery of the documents that contain the Information, so as to advance her case in respect of Grounds 1 and 2.
In support of her claim, the Applicant relevantly filed an affidavit of her instructing solicitor affirmed on 18 September 2019. That affidavit, among other things, sets out the attempts by the Applicant’s solicitor to obtain access to the Information.
The Minister filed written submissions on 3 October 2019 in support of the claim for public interest immunity over the Information. The Minister also relied on an affidavit of Michael Anthony Thomas affirmed on, 3 October 2019, in support of the claim for public interest immunity.
Legal Principles
Section 45 of the Federal Circuit Court of Australia Act 1999 deals with discovery in the Court. It relevantly provides that discovery is not allowed unless the Court declares that it is appropriate in the interests of the administration of justice to permit the discovery.
The relevant principles concerning the approach that the Court should take to dealing with a claim of public interest immunity were set out in the written submissions of the Minister. I reproduce those below:
‘5. The Minister’s claim of public interest immunity is governed by s 130 of the Evidence Act 1995 (Cth) (the Evidence Act), and to the extent that that provision is not relevant, the established principles at common law. Section 130 of the Evidence Act closely reflects the common law. It covers “information or a document that relates to matters of state”.
6. The overriding common law principle is that a court ought not order the production of information or a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.
7. Accordingly, whether a claim of PII ought to be upheld requires the Court to consider two conflicting aspects of the public interest:
7.1. whether harm would be done by the disclosure of matters of state; and
7.2. whether the proper administration of justice would be frustrated or impaired if the documents were withheld.
8. The final step – the balancing exercise – can only be undertaken when it appears that both aspects of the public interest require consideration, i.e. when it appears on the one hand that damage would be done to the public interest by producing the documents and, on the other hand, that there are or are likely to be documents which contain material evidence. The Court can then consider the nature of the injury likely to be suffered by disclosure and the evidentiary value and importance of the documents in the particular litigation.’ (citations omitted)
The Applicant accepted that the principles above were the ones to be applied by the Court in the present matter.
I deal below with the application of these principles to the present matter.
Would harm be done by the disclosure of the Information?
The Minister relies upon an affidavit of Michael Anthony Thomas affirmed on 3 October 2019. Mr Thomas holds the position of Assistant Secretary of the Border Intelligence Fusion Centre. In that position, Mr Thomas has responsibility for certain tactical intelligence functions for the Department of Home Affairs (‘Department’). This includes co-ordination of information provided by the community to the Department that is of potential interest, including the collection and triage of that information.
In his affidavit, Mr Thomas deposes to having reviewed the Information. At paragraph 8 of his affidavit, Mr Thomas deposed that in his opinion, the Information in the relevant folio should not be disclosed because the Information, if revealed, would:
‘8.1 disclose, or enable a person to ascertain, the identity of a confidential source of information relating to the enforcement or administration of the Act who provided the information to the Department on a confidential basis;
8.2 give rise to a risk that the confidential source commence proceedings against the Department for breach of confidence;
8.3 potentially compromise the physical safety and well-being of the source or third parties referred to in the documents; and
8.4 as a result of paragraphs [8.1], [8.2] and [8.3], hinder or inhibit or diminish the ability of the Department to properly administer the Act insofar as the Department relies on the receipt of community information from third parties, and the likelihood of the flow of information of this kind “drying up” in the future, particularly if a person were subjected to potential harm because the Department had been unable to adequately maintain their confidences.’
Mr Thomas was not required for cross examination. As such, his evidence is unchallenged. Counsel for the Applicant, however, criticised his affidavit on the basis that Mr Thomas had only been informed by the Department about the certificate issued under the Act. Initially, this submission was advanced on the basis that Mr Thomas had affirmed the affidavit without knowledge of the particular information in this case. On the face of the affidavit, this was not the case and the submission was ultimately confined to a submission that the Court ought to read the affidavit closely. This contention was advanced because it was said that in some instances, Mr Thomas is not speaking about the folio containing the Information in this case, but is rather speaking from his general experience. As I understood the submission, it was said that the Court needs to take care distinguishing between each, and should potentially place less weight on those statements that are not specific to the Information.
A review of the affidavit discloses firstly that Mr Thomas has seen the Information. So much may be taken from the express words in paragraph 4 of the affidavit.
Then, at paragraph 6, Mr Thomas discusses the receipt of community information and the fact that it is common for the Department to receive such information. The statements made by Mr Thomas in that paragraph are clearly based on his knowledge and experience in the role.
In paragraph 7 of his affidavit, Mr Thomas deposes, among other things, that he believes there is a public interest in protecting third parties by not reviewing identifying information. He also offers the opinion that if the Department’s ability to keep identifying information confidential is compromised, there would be an adverse effect on the likely candour and willingness of such persons to provide this information to the Department in the future. These statements are clearly based on his knowledge and experience.
Paragraph 8 of the affidavit, which has been referred to above, is in a different category. Having deposed that he has reviewed the Information at paragraph 4 of his affidavit, and made comments based on his personal experience (as noted above), Mr Thomas sets out the public interest grounds as to why the Information contained in the relevant folio should not be disclosed. In doing so, he deposes to the risks and harm that may arise if the Information is disclosed. In my view, it is plain from the text of paragraph 8 that these statements are based both on Mr Thomas’ knowledge and experience, and his review of the relevant Information. So much is apparent from the opening words of paragraph 8 of his affidavit, where he says ‘I am of the opinion that the folio should not be disclosed…’. The ‘folio’ is previously defined by Mr Thomas at paragraph 4 of his affidavit.
There are two other matters that arise. First, having reviewed the Information, it is clear that disclosure of the Information would reveal the identity of the source of the Information. Second, I am satisfied that there is a basis for the view expressed by Mr Thomas in paragraph 8 that disclosure of the Information would disclose the identity of a confidential source ‘who provided the Information to the Department on a confidential basis’.
As I have already indicated, the evidence of Mr Thomas is unchallenged. I accept it, and I accept the risks Mr Thomas has identified in paragraph 8 of his affidavit of the Information being disclosed. Accordingly, for the above reasons, I find that harm would be done if the Information were to be disclosed.
Would the administration of justice be impaired if the Information was withheld?
The Applicant submits that the Information was significant to the conclusions ultimately reached by the Tribunal. I did not understand the Minister to cavil with that proposition. To the extent that it might be said the Information was not significant or taken into account by the Tribunal, I would not accept that proposition.
Paragraphs [42] to [46] of the Tribunal’s decision deal with the Information supplied to the Tribunal. As I have already noted, the allegations contained in the Information (excluding the source of the information) were put to the Applicant, and the Applicant was given a chance to respond. The Tribunal then proceeds to weigh the Applicant’s response to the Information, against the Information itself. The Tribunal then reaches a conclusion in relation to the matters in issue insofar as it concerns the credibility of the Applicant.
When the above matters are taken into account, I find that the proper administration of justice would ordinarily require the disclosure in full of the Information to the Applicant.
Should the Information be disclosed to the Applicant?
Given the competing considerations identified above, the Court is required to balance the competing interests. This requires the Court to consider the nature of the injury likely to be suffered by disclosure against the evidentiary value and importance of the Information in the present matter: see Sankey v Whitlam (1978) 142 CLR 1 (‘Sankey’) at 38-9.
The Minister made a number of submissions as to why the Information should not be disclosed. In addition to those matters already mentioned, the Minister submitted that:
a)the Court ought to give considerable weight to the evidence of Mr Thomas as an Assistant Secretary of the Department – see Sankey at [43]-[44] – and further, that ‘great weight’ should be given to ‘the opinion of the appropriate Minister as conveyed through his representative’: see Rogers v Home Secretary [1973] AC 388 at 406;
b)there is a well-established principle that a Court should not order discovery of documents that would disclose or enable a person to ascertain the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth. The rationale for that immunity was said to derive from comments of Lord Diplock in D v National Society for the Prevention and Cruelty to Children [1978] AC 171 (‘DNS’) at 218, set out below;
‘a private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law’
c)documents provided to government, regulatory or investigatory bodies fall within a class of documents immune from disclosure;
d)the importance of protecting confidential informants is the same regardless of whether the relevant proceedings are criminal or civil in nature;
e)in undertaking the balancing exercise, the scales ‘begin heavily tilted in favour of nondisclosure’.
The Applicant contended that the public interest weighed in favour of disclosure. In addition to pointing to the fact that the Information was of significance to the Tribunal’s decision (whose decision the Applicant now seeks to review), the Applicant submitted, among other things, that:
a)as contemplated by section 130(5)(a) of the Evidence Act 1995 (‘EA’), the Information was of central importance to the proceeding;
b)the present controversy arises in circumstances where what is ultimately in issue is the Applicant’s ability to remain in Australia. In this context, it was submitted that the subject matter of the proceeding was of significant importance because it goes to the Applicant’s ability to remain in Australia. This places the proceeding in a different category to ordinary civil proceedings.
The Applicant also took the Court to the decision of the Supreme Court of Victoria in AB & EF v CD [2017] VSC 350 (‘AB’). That proceeding concerned whether the identity of a well-known police informant ought to be disclosed. In that matter, Justice Ginnane permitted the disclosure of the identity of the police informant. He did so notwithstanding not only the risk of death to the informant and her children, but also having regard to the likely ‘chilling effect’ of the proposed disclosures on potential police informers. The effect of the Applicant’s submission was that given disclosure occurred in those circumstances, the disclosure ought to occur here.
I have considered closely the competing submissions of the parties in relation to the authorities on which they relied. I do not accept, in the present proceeding, the submission made by the Minister that ‘great weight’ attaches to the evidence given by Mr Thomas by virtue of his position as Assistant Secretary. While I acknowledge the statements made in the authorities to which I have been referred by the Minister, those statements were made in the context of public interest immunity claims on national security grounds. This case does not fall within that category. I accept, however, the statement of Gibbs ACJ in Sankey that ‘even where the claim is that the document belongs to a class which should be withheld, the court is still required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest...’.
I have considered the submissions of the Applicant in relation to the effect of the decision in AB in the present proceedings. I am not persuaded that that decision is helpful in determining the present matter. I hold that view for two reasons. Firstly, the background facts and circumstances giving rise to the decision of Justice Ginnane are unique to say the least. If proof is needed of this, one need only look to the fact that there is now a Royal Commission into a number of matters concerning the role and use of police informants, as prompted by the individual involved in that proceeding. Second, the foundational underpinning of His Honour’s reasons in that case was that ‘there is a strong public interest in ensuring a lawyer’s breach of duty and obligations do not undermine fairness of the trial, or the negotiation of a plea of guilty’. It is plain that His Honours reasons rested in part on ensuring access to a fair trial, which is a cornerstone of our society, and the rule of law. This matter is far removed from that.
What is relevant to note when the authorities are considered is as follows. First, there can be little doubt there is a public interest in protecting the identity of sources of information: see DNS. Second, that the importance of protecting a source of information has been recognised in a variety of situations: see, for example, DNS; Finch v Grieve (1991) 22 NSWLR 578 at 596; Gilson v Minister for Immigration and Multicultural Affairs [1997] FCA 642. Third, that Courts have upheld claims of public interest immunity over documents to which section 376 of the Act applies: see El Jejieh v Minister for Home Affairs [2019] FCCA 838; Hussein v Minister for Home Affairs [2018] FCCA 3801.
I have had regard to the competing submissions of each of the parties. On balance, I am of the view that the public interest sways in favour of the Information not being disclosed. I have reached this view for the following reasons.
I give weight to the evidence of Mr Thomas. His evidence was unchallenged. He is a person who clearly has responsibility for the triage of community information and is in a position to speak to the effect that disclosure of sources of information would have on the work undertaken by the Department. Moreover, he has seen the information and the risks he has identified relate to the disclosure of the Information as contained in the folio.
Second, I am satisfied having regard to the evidence of Mr Thomas, and having reviewed the documents, that disclosure of the Information would identify a confidential source of information. The Information discloses the identity and contact details of the source.
Third, I accept that the source of the information provided the information on a confidential basis – see paragraph 8.1 of Mr Thomas’ affidavit.
Fourth, I accept the evidence of Mr Thomas that disclosure of the Information would affect the candour and willingness of individuals to provide information to the Department and that disclosure may result in the flow of information ‘drying up’ in the future.
Fifth, while the source of the Information has not been revealed to the Applicant, the allegations were put to the Applicant and she was given an opportunity to respond to them. This is not a case where important information has been withheld and the Applicant has not been able to comment or address it. The Applicant has had an opportunity to address it in the context of proceedings which determine her eligibility to remain in Australia.
Ultimately, this case falls to be determined on the particular public interest considerations that arise in the context of the instance of litigation. For the reasons that I have set out above, I am satisfied that the public interest weighs in favour of non-disclosure.
The Applicant submitted that if I formed the view that the Information ought not to be disclosed, I should consider making an order that the Information is disclosed in a form that is redacted such as to prevent the identity of the source from being disclosed. The Minister resisted this course.
Having reviewed the Information, I am of the view that the Information is not of a kind in which limited disclosure can properly be ordered. It is plain that the documents contain information likely to be known by only a small category of persons. The Information also comprises handwritten notations, and the handwriting may be identifiable. Furthermore, the Information comprises photographs which could enable the identity of the source to be disclosed. I am satisfied that each of the above factors could result in the disclosure of the identity of the source of the Information. To the extent that this may not be the case, I accept the submission of the Minister that there is a possibility of deductive reasoning being applied to the Information such that seemingly benign pieces of information may in this case, if disclosed, be combined with other pieces of information so as to enable inferences to be drawn which would lead to the identity of the source of the Information being revealed.
For the reasons set out above, I uphold the Minister’s claim for public interest immunity over the Information. The Information is not to be disclosed in any form, whether redacted or otherwise.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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