Choi, Pat Tai v Minister for Immigration and Multicultural Affairs

[1998] FCA 1098

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – public interest immunity – refusal of application for Business Short Stay Visa based on information supplied by authorities of foreign countries that applicant associated with Triads – allegation that applicant participated in ceremony in Macau in 1983 by which he became, or was promoted as, a member of Wo Shing Tong Triad group – denial of allegation by applicant – impossibility of applicant’s disproving allegation, at least in absence of access to information relied on by Minister – weighing of competing public interests.

PAT TAI CHOI  v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS   

NG 824 of 1997

JUDGE:  LINDGREN J
DATE:  25 AUGUST 1998
PLACE:  SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  824  of   1997

BETWEEN:	PAT TAI CHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		25 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The motion brought by notice of motion filed 26 May 1998 be dismissed.

2. Costs be reserved.

3. The proceeding be stood over to 1 September 1998 at 9.30 am for the making of further directions.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  824 of 1997

BETWEEN:	PAT TAI CHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	25 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION

The applicant (“Mr Choi”) filed his application on 7 October 1997 and an amended application on 3 December 1997. He also filed a statement of claim on 7 October 1997. The case which he seeks to make is therefore to be found in the amended application and the statement of claim. By his amended application, Mr Choi seeks review of a decision made by a delegate of the respondent (“the Minister”), notified to him on 12 September 1997, not to grant to him a subclass 456 Business Visa (Short Stay) in accordance with s 501 of the Migration Act 1958 (“the Act”).

The ground of the Minister’s decision was that provided for in s 501(2)(a) of the Act: that the Minister was satisfied that Mr Choi was not of good character. The factual material on which the Minister was so satisfied is an allegation that Mr Choi underwent a ceremony in Macau in 1983 by which he either became, or was “promoted” as, a member of the Wo Shing Tong Triad group, supported by general information tending to show “once a Triad, always a Triad”.

GROUNDS  OF  SUBSTANTIVE  APPLICATION

Mr Choi relies on ss 476(1)(e) and 476(1)(g) and (4) of the Act. The grounds described in pars (e) and (g) of s 476(1) are as follows:

“(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

“(g) that there was no evidence or other material to justify the making of the     decision.”

Subsection 476(4) elaborates on s 476(1)(g) by providing that the “no evidence” ground is not to be taken to have been made out unless s 476(4) is satisfied.  In order for that subsection to be satisfied, it is necessary (i) that the decision-maker be required by law to reach the decision only if a particular matter is established, yet there was no evidence or other material from which the decision-maker could reasonably have been satisfied that the matter was established;  or (ii) that the decision-maker have based the decision on the existence of a particular fact which did not exist.

THE MOTION

Mr Choi moves on a notice of motion filed 26 May 1998 seeking production for inspection of certain documents held at the Australian Consulate General Hong Kong Migration Office, Hong Kong.  The documents sought are described in the notice of motion as follows:

“File INT/5/22 ‘CHOI Pat Tai’.”

and:

“File INT/3/25 ‘Wo Shing Tong Triad’.”

The titles of the files suggest that the former relates to Mr Choi and that the latter relates generally to the Triad group referred to earlier.  Mr Choi seeks an order that inspection be allowed to his legal representatives.

THE EVIDENCE  
Mr Choi has consistently maintained that he is not a member of, or associated with, the Wo Shing Tong Triad group;  that he did not participate in any ceremony in Macau in 1983;  that he is of good repute in Hong Kong;  and that the authorities are mistaken.

If Mr Choi is correct, he is in an awful position, since it is difficult, if not impossible, for him to disprove the allegation made against him, at least without having access to the information on which the Minister has relied.

The evidence led by Mr Choi on the motion included evidence of events of late 1995 and early 1996, touching on an earlier unsuccessful application by him.  Apparently, what was involved at that time was a cancellation of a visitor’s visa issued to Mr Choi and rejection of an application by him for a new one. 

Mr Choi has tendered several documents relating to that application.  His solicitors in Hong Kong, Winston Chu & Company, wrote a letter dated 28 October 1995 to the Australian Consulate General in Hong Kong, referring to the allegation that he had participated in a ceremony of the Wo Shing Tong Triad group in 1983 in Macau.  The letter denied the allegation.  The letter included the following:

“So far, the only handle on which we can get a hold of in dealing with the vague allegation of our client's association with the Triads is his alleged attendance of [sic] a promotion ceremony in Macau in 1983 and we can only try to deal with the allegations as best as we can.  Again, we must state that if you find our client's submission not answering the allegations, it is because we do not know what the allegations are.”

The letter went on to refer to business trips which Mr Choi had made to Macau in 1983, and it identified individuals with whom he used to stay in Macau at that time. 

Other documents relating to the 1995 application show that reservations were expressed within the Department of Immigration and Ethnic Affairs (“the Department”) as to whether the evidence that Mr Choi had participated in the ceremony in Macau twelve years previously, on which the Department was relying, was adequate.   The documents do not identify what that evidence was.

Mr Choi made the current application on 20 August 1997.  He applied for a temporary business entry visa (subclass 456) to visit Australia to attend a directors’ meeting here (he is a director of an Australian-incorporated company) and to review and explore further investments in Australia.  His application was supported by a detailed letter dated 28 August 1997 from his present solicitors, Blessington Judd.  No doubt because of the events of late 1995 and early 1996, those solicitors addressed the earlier allegation of an association with the Triads.  They again denied the allegation and referred to the evidence upon which the authorities had proceeded as “hearsay”.

There is in evidence a “summary decision record” in relation to the current application. It is dated 12 September 1997 and is signed by Tim Menetrey. After reviewing the evidence, Mr Menetrey reached the decision impugned, again by reference to the question of Mr Choi’s character because of his supposed association with the Triad organisation based on the alleged event of 1983, and concluded that he was not a person of good character by reason of his association with an organisation believed to be involved in criminal conduct (the summary refers to s 501(2)(b) of the Act).

FIRST CLAIM FOR PUBLIC INTEREST IMMUNITY

In response to Mr Choi’s motion, the Commissioner of the Australian Federal Police (“AFP”) makes a claim of public interest immunity, as does the Minister.  I will address the AFP’s claim first.

The evidence on which the Commissioner relies is found in two affidavits by Michael Joseph Keelty.  Mr Keelty gives evidence in relation to three documents, folios 12, 13 and 15 in the file “INT5/22 Choi Pat Tai”, referred to earlier.  These are the documents which the AFP resists producing.

I do not think it necessary to give a detailed account of Mr Keelty’s evidence.  He has long been a member of the AFP and there is no question of his authority or qualification to make the affidavit.  Shortly, he states that he has been informed by Federal Agent David Schramm, Director of the AFP’s international division, and believes, that production of the folios marked 12, 13 and 15 from file “NT/5/22 Choi Pat Tai”,

“would, or would tend to:
(a) damage the relationship between the AFP and other law enforcement agencies;  and
(b) reveal the sources of confidential police information.”

He states that be believes it would be against the public interest for the documents or parts of them to be produced.  He elaborates on the two grounds “relations with other law enforcement agencies” and “sources of confidential police information”.  Again, shortly, with respect to the former, he refers to the fact that the AFP liaises and exchanges confidential information with a network of law enforcement agencies in Australia and other nations in relation to various matters of common concern;  that cooperation between those agencies is in the public interest;  and that if those agencies came to think that information supplied by them to the AFP would or might be compelled to be disclosed, this would be inimical to the future free flow of information.  With respect to “sources of confidential police information”,  he states that disclosure of the material, the subject of the present claim, that is the three documents, would or would tend to reveal the source of information conveyed to the AFP in strict confidence.

A confidential affidavit sworn by Mr Keelty elaborates on these claims at some length. 

The three folios 12, 13 and 15 to which I referred are marked “confidential”.  I have read them.  But for one matter, they do not appear to reveal anything that Mr Choi does not already know.  Only in one respect could they even possibly assist Mr Choi in disproving the allegation made against him and be even arguably relevant to his proving that the decision was based on the existence of a particular fact which did not exist.  That one piece of information is of such a specific nature that it might enable Mr Choi to direct his efforts to gathering evidence inconsistent with it, and, therefore, with the accusation made against him.   Of course, this is not for one moment to suggest that it would enable him to do so, thereby enabling a terrible mistake to be exposed.  But for the one matter to which I have referred, the documents do not appear to reveal anything that Mr Choi does not already know, that is, that there is on file the allegation in relation to the ceremony in Macau in 1983.

SECOND CLAIM FOR PUBLIC INTEREST IMMUNITY

I turn to the claim of public interest immunity made on behalf of the Minister.  This claim is supported by an affidavit of Dario Castello sworn 2 July 1998.  He holds the position of Assistant Secretary of the Border Control Branch in the Department, has held that position since October 1997, and has been employed in the Department since 1961.  Again, there is no question as to his capacity, experience or qualification to make the affidavit in support of the Minister’s claim.   Mr Castello’s affidavit relates to the file “INT/3/25 Wo Shing Tong Triad”.

Exhibited to his affidavit and contained in an envelope are the folios from that file in respect of which the claim is made.  These were received in confidence from Canadian authorities.  There is annexed to his affidavit a letter dated 3 June 1998 from the Canadian Consulate-General to Mr Tim Menetrey, Consul (Immigration) of the Migration Office, Hong Kong, referring to the “confidential” classification of the documents supplied, and affirming that the Canadian authorities would regard it as having serious repercussions for Canadian interests if their contents were to be disclosed.

I have read the confidential folios.  Insofar as they refer to individuals, they seem to have no connection whatsoever with Mr Choi.  This is a reason why Mr Choi and his legal representatives should not see them.

The nature of the claim made in relation to these documents is the necessity in the Australian public interest for a free flow of information internationally between immigration authorities, and for the Canadian authorities to be able to rely upon confidentiality being maintained when they supply information and documents in confidence to such authorities of Australia.

Disclosure has been made of other material in the file.  There has been exhibited, without any request for confidentiality, the following extract from the file: 

“(B) It is our contention that persons join Triad societies for life.  Core of original Triad movement was quote if I should change my mind and deny my membership of the Hung (Triad) Family I will be killed by a myriad of swords unquote.  Triad renunciation scheme from 1989-91, gave persons chance to rehabilitate (of which very few did).  Those who did should probably be considered admissible while those who did not however, are obviously maintaining their vows of membership for life, regardless of whatever story lawyer will spin.
(C) What must be kept in mind is that revealing their activities could mean death or harm to them by other Triad members.  Disclosures could result in phenomenal sums of money relating to their quote business unquote dealings.  Or, penalties in HKong for continuous Triad membership could result in 7 years imprisonment (in PRC it is death).  Thus it is hardly likely you could ever get truthful confessions about their activities.
(D) Despite claims we have seen, these persons join Triads of their own volition.  While they may go through quiescient period, they can be re-activated any time in their life and help out their fellow Triad members who they bonded with for life.
(E) FYI it is estimated that only 15 per cent of Triad members have any convictions.”

REASONING  
I do not find it necessary to refer to the numerous authorities on public interest immunity.  The parties have referred to Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404; Young v Quin (1985) 4 FCR 483 and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.

They did not refer to Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1995) 39 ALD 328 (FCA/Carr J). This case came to my notice shortly before I came onto the Bench to deliver this judgment. It related to an application by a citizen of Hong Kong for a permanent entry visa (class 122), under the Business Migration Program, and its refusal on the ground of failure to meet character requirements. A second application was also refused. Departmental reports which preceded each decision stated that confidential information from confidential sources indicated that the applicant was an associate of Triads and convicted drug traffickers, and was strongly implicated as being directly involved in criminal activity. Further particulars of his activities were given.

These allegations are more extensive than those against Mr Choi.  What is important, for present purposes, however,  is that there was a claim of public interest immunity in response to an application for production of 17 documents which contained material that had been taken into account when the conclusion relating to character was arrived at. 

The claim for public interest immunity had been upheld by French J earlier on 2 June 1993 (unreported).  French J had said this:

“It is important to bear in mind that public interest immunity is not an inherent legal status attaching to official documents or classes of official documents.  Rather, it is the expression of a self-imposed judicial restraint.  The decision of the Court when such a claim is made involves the striking of a balance between the public interest in the administration of justice and the public interest invoked in support of the immunity.  Where the interests affected by the disclosure of documents involve national security or the relationships with other governments or unfair prejudice to third parties the impact of which is peculiarly within the knowledge of the Executive, the contentions of the Executive will be given particular weight.  Inspection of the documents by the Court can be undertaken as an aid to the Court in determining whether documents for which public interest immunity is claimed should be produced.
…………………………………………………………………………………………….
Having regard to the nature of the issues to be determined at the substantive hearing and the material already on the record in respect of which no claim for immunity is made, I am satisfied that the interests which it is sought to protect by the claim for public interest immunity outweigh the applicant’s interest in obtaining access to the confidential material.  The applicant already has access to material set out in Mr Callanan’s submission which indicate explicitly the inferences suggested to the delegate as arising from the confidential information.  The question whether that information should have been disclosed to the applicant if it were to be taken into account is one of the matters for debate at the substantive hearing.  In my opinion the motion should be dismissed with costs.”

I decide the present motion by weighing up the public interest in the open administration of justice on the one hand, and the public interest in the free flow of confidential information internationally in respect of the granting of entry visas and the keeping out of Australia of persons of bad character on the other hand.  It has not been submitted that s 130 of the Evidence Act 1995 (Com) has produced any change in the weighing up exercise to be performed in this case, and I do not think that it has done so.

Mr Choi is not a citizen of Australia and seeks the privilege of coming here.  He is a director of an Australian company and apparently holds a substantial shareholding in it.  As Mr Cheung submitted on behalf of his client, there is an Australian public interest, not only in Mr Choi’s having his present application dealt with fairly, but also in Australia’s being perceived overseas to be a country which deals fairly with such applications.

Against this must be weighed the strong desirability that the Australian authorities continue to enjoy the reputation of being able to keep confidential, information which they receive from overseas authorities in relation to the criminal activity and associations of persons  who wish to come here.  The affidavits of Mr Keelty and Mr Castello are sufficiently detailed. There has been no cross-examination of them.  Although I appreciate the considerable difficulty which faces a person wishing to cross-examine a public officer making a claim to public interest immunity, in the absence of it I would find it difficult not to accept the affidavit evidence in the present case (cf Somerville v Australian Securities Commission (1995) 60 FCR 319 (FC) at 353G-355B).

I have the sworn affidavit evidence of Mr Keelty in the one case and of Mr Castello in the other, deposing to a public interest which seems obvious enough.  As I indicated earlier, in relation to the folios from file INT/3/25, it seems quite clear that the detailed information contained in them relating to individuals ought not to be disclosed.   The more general information relating to Triad societies has already been disclosed.

In relation to folios 12, 13 and 15 of file INT/5/22, the position may not be quite so obvious.  However, here too I think the claim for public interest immunity should be upheld.  The specific information to which I referred is of a kind that is itself unlikely to be wrong.  What would be more significant is the background to how that information came to be on the file, who provided it and how it is said to be relevant to the allegation against Mr Choi.  But that background is not revealed at all in the documents.  In my opinion, the advantage to Mr Choi of disclosure in these circumstances is outweighed by the resultant injury, or likely injury, to the public interest in the free flow of information to which I have referred.

CONCLUSION  
Weighing the two competing public interest considerations identified earlier, I think that an order for production for inspection should not be made.  It follows that the motion brought by notice of motion filed 26 May 1998 will be dismissed. 

Before parting from the matter, again I refer to the unenviable position of a person placed as Mr Choi is, in the event that the allegation made against him is, indeed, unfounded.  Obviously, it behoves the authorities in such circumstances to check with all the greater care that this is not so.

[There followed a short discussion on costs.]

Costs are reserved.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             8 September 1998

Solicitor for the Applicant:	Mr R Cheung of Blessington Judd
Counsel for the Respondent:	Mr GT Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Australian Federal Police:	Mr I Temby QC
Solicitor for the Australian Federal Police:	Australian Government Solicitor
Date of Hearing:	17 August 1998
Date of Judgment:	25 August 1998