CUS15 v Minister for Immigration
[2019] FCCA 2588
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUS15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2588 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – certificate issued pursuant to s. 438(1) of the Migration Act 1958 – public interest immunity claim over documents the subject of said certificate – Applicant seeking disclosure of documents – claim of public interest immunity upheld. |
| Legislation: Evidence Act 1995, ss.130(1), 130(5) Migration Act 1958, ss.438(1)(a) |
| Cases cited: AGG17 v Commonwealth of Australia [2018] FCA 242 Minister for Immigration and Border Protection and SZMTA & Anor [2019] HCA 3 |
| Applicant: | CUS15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2868 of 2015 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 September 2019 |
| Date of last submission: | 2 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Healer |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the First Respondent: | Ms Lucas |
| Counsel for the Second Respondent: | None |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The First Respondent’s claim for public interest immunity over documents the subject of a Certificate dated 23 June 2014 of a delegate of the First Respondent be upheld.
Costs be reserved.
NOTATION
The substantive proceedings remain listed for hearing on 2 December 2019 at 10am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2868 of 2015
| CUS15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The substantive matter comes to the Court as an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 1 December 2015. The matter the subject of this decision is an interlocutory dispute between the parties.
The present interlocutory dispute between the parties concerns the following issue: whether certain documents the subject of a certificate issued by a delegate of the Minister under section 438(1)(a) of the Migration Act 1958 (‘Act’) ought to be disclosed to the Applicant. The documents are the subject of a claim for public interest immunity by the First Respondent (‘Minister’), who resists disclosure on those grounds.
For the reasons that follow, I have concluded that the Minister’s claim for public interest immunity over the documents should be upheld.
Background
The background to the present matter is as follows. The Applicant is a citizen of Iran who applied for a protection visa (‘Visa’) on 31 October 2012. He had spent some time in the United States prior to coming to Australia. In the course of background checks that occurred, a delegate of the Minister became aware of two matters concerning the Applicant. The first was that he had sought asylum in the United States, and the second was that he was wanted in the United States in relation to an assault charge.
On 23 June 2014, a delegate of the Minister issued a certificate and notification under section 438(1)(a) of the Act. The certificate specified that the disclosure of information covered by the certificate would be contrary to the public interest. Documents described as folios 88-90 were said to contain details of other countries’ government advice to the Department. Folios 103-188 were said to refer to procedures and persons involved in making enquiries through Australia’s law enforcement overseas. The existence of the certificate was not brought to the attention of the Applicant.
On 13 February 2019, the High Court delivered judgment in Minister for Immigration and Border Protection and SZMTA & Anor [2019] HCA 3 (‘SZMTA’). Two key principles emerge from that decision. First, the High Court unanimously held that the fact of a notification to the Tribunal that section 438 of the Act applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to an applicant for review. Second, by majority, the High Court held that a breach by the Tribunal of that obligation will result in jurisdictional error if, and only if, the breach is material in the sense that the breach deprives an applicant of the possibility of a successful outcome.
While the existence of the certificate was not brought to the attention of the Applicant, it is apparent that the issues the subject of the documents in respect of which the certificate was issued were nevertheless raised with the Applicant when his matter came before the Tribunal and were given detailed consideration by the Tribunal: see Court Book pp. 406, 407, 412 and 413. Those issues were the Applicant’s US immigration history and an outstanding criminal charge against him in the US.
On 1 December 2015, the Tribunal decided to affirm the decision of the delegate to refuse the Visa.
The Applicant filed an application for review of the Tribunal’s decision in this Court on 24 December 2015. An amended application was subsequently filed by the Applicant on 8 June 2017 (‘Application’). Relevantly, the fourth ground of review in the Application is as follows:
‘The decision of the [AAT] was affected by jurisdictional error, as the [AAT’s] failure to put the material covered by the certificate issued by the [Minister] under s 438(1)(a) of the Migration Act 1958 (Cth) to the applicant for comment constituted a denial of procedural fairness’.
The hearing of the Application for review in this Court was held in abeyance pending the High Court’s judgment in SZMTA.
The Applicant now seeks disclosure of the documents subject to the Minister’s certificate so as to demonstrate the materiality of the breach of procedural fairness by the Tribunal. The Minister contends that the relevant documents are protected by public interest immunity and should not be disclosed.
Relevant principles
There was no dispute of substance between the parties as to the principles that a Court should apply in determining a claim for public interest immunity. It was accepted that common law principles apply in relation to determining a claim for public interest immunity, and that the statutory position set out in section 130 of the Evidence Act 1995 reflects the common law.
The relevant principles to be applied in a case such as this are as follows:
a)
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: see Sankey v Whitlam (1978)
142 CLR 1;
b)A Court asked to determine a claim of public interest immunity needs to weigh the public interest invoked in support of the claim for non-disclosure against the public interest in the administration of justice in the particular circumstances of the case. This requires a Court to identify the harm that would be done by the disclosure of information. If it appears that harm would be done in the public interest by the disclosure of the material, but that the document or information is also likely to contain material evidence, then the Court must balance the competing aspects of the public interest so as to determine which of them should prevail: AGG17 v Commonwealth of Australia [2018] FCA 242 at [18];
c)in undertaking the balancing exercise, it is incumbent on the Court to balance the competing public interests, not the privilege of the executive: Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 at [34];
d)the Minister bears the onus, as the party claiming immunity, to show why non-disclosure should be ordered: Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1124-5.
The present claim for public interest immunity
The Minister filed an affidavit of Brendan Joseph Dowling in the proceedings. Mr Dowling is the Regional Director for the Americas at the Department of Immigration and Border Protection. Mr Dowling annexed to his affidavit four documents. Annexure BJD-1 to the affidavit of Mr Dowling (‘Annexure 1’) is a copy of the certificate. Annexure BJD-2 to the affidavit of Mr Dowling (‘Annexure 2’) is a copy of what is described as folios 88-90, 103-104, 106-113 and 117 of the relevant file in redacted form (these documents had been previously supplied to the Applicant’s representatives). Annexure BJD-3 to the affidavit of Mr Dowling (‘Annexure 3’) is a copy of the above-mentioned folios in unredacted form. Annexure BJD-4 to the affidavit of Mr Dowling (‘Annexure 4’) is a copy of the whole of what was described as folios 107, 114-116, and 118. Annexures 2, 3 and 4 were contained within sealed envelopes and provided to the Court. They had not been reviewed by the Applicant or his representatives. The Applicant’s representatives did not press to review Annexures 2, 3 and 4 prior to the determination of the claim for public interest immunity.
At the commencement of the hearing, the Applicant’s representatives objected to the last sentence of paragraph 6, and all of paragraph 10, of Mr Dowling’s affidavit. The objection was made on the basis that Mr Dowling had expressed opinions but had failed to adequately set out his expertise or knowledge such as to provide a basis for the expression of the opinion.
Consideration of this issue needs to take account of the entirety of Mr Dowling’s affidavit. The affidavit makes clear that:
a)Mr Dowling holds the position of Regional Director for the Americas within the Department and that he has held that position since 2018;
b)In his position, it is his role to lead engagement with governments in the region on all Home Affairs issues, which primarily covers all engagements relating to counterterrorism, cyber security and border protection;
c)The information within the documents has come about having regard to ‘long standing cooperation and relationships that have developed over time in the interests of timely and efficient information sharing between Australian government agencies and their counterparts in other countries’;
d)In Mr Dowling’s experience these arrangements rely on a degree of trust between officials on either side to inform sensible decision-making and information sharing.
Mr Dowling was not required for cross examination by the Applicant.
I find that it is evident from Mr Dowling’s role, the scope of his role, his experience and the work that he performs, that he is a person with specialised knowledge, that his specialised knowledge is based on his experience and that the opinions he ventures are based on that specialised knowledge. In that circumstance, I will have regard to the entirety of Mr Dowling’s affidavit, and will not uphold the objections to his evidence.
I turn now to deal with the documents in issue and the application of the principles described earlier to those documents.
The Applicant claims that when the relevant principles are applied to this matter, the Court should be persuaded that the factors in this case favour disclosure. Those factors include the following:
a)That the information will establish whether the breach of the obligation of procedural fairness was a material one, as required by SZMTA. The Applicant concedes that he cannot make out the materiality threshold on the basis of the information disclosed in Annexure 2 of Mr Dowling’s affidavit;
b)That the information will be determinative of the fourth ground of the Application for review, which if successful, would result in the matter being disposed of in the Applicant’s favour;
c)That the Applicant faces the risk of grave consequences upon return to Iran and he faces serious harm if he is unsuccessful in these proceedings;
d)That the Minister’s case is a weak one, and the conclusion of Mr Dowling that, among the other consequences, there would be a ‘greater degree of bureaucracy’ is not a conclusion that can be logically drawn in the circumstances of this case.
The Minister relies among other things, on the unchallenged evidence of Mr Dowling in support of the claim that disclosure not take place. The evidence of Mr Dowling is:
a)That the information contained in the documents has come about relying on long-standing cooperation in relationships that have developed over time in the interests of timely and efficient information sharing between Australian government agencies and their counterpart countries;
b)That the arrangements referred to above rely on a degree of trust between officials on either side to inform sensible decision-making and information sharing;
c)That it is greatly in the public interest that Australia be able to obtain information such as identity checks from foreign government agencies quickly;
d)That in Mr Dowling’s opinion, foreign government agencies would be unlikely to wish to continue to provide information by the lawful methods and processes described in the documents, if the documents were disclosed. This would have a consequence, among other things, of Australia not being able to receive information in as timely a manner as is desirable, which in turn would be contrary to Australia’s public interest and would prejudice the effectiveness of the methods and procedures that the Department may rely on.
Applying the relevant principles to these facts, the first matter to be considered is the identification of harm that would be done by the disclosure of the information. The evidence discloses that, at the least, the following harm would be done by the disclosure of information:
a)Foreign government agencies would be unlikely to wish to continue providing information by the lawful methods and processes described in the documents;
b)Australia may not receive information from foreign sources in a timely manner; and
c)There may be prejudice to the effectiveness of methods and procedures that the Department would rely on.
I am satisfied on the basis of the evidence that the harm is as identified and described above and would be harm to the public interest.
The next issue is whether the documents contain material evidence. The documents do contain some material relevant to the Application. What the Minister described as the ‘gist’ of the relevant material has, however, been disclosed to the Applicant. That the ‘gist’ of the material has been disclosed, is not, however, the end of the matter. The matters of relevance to the Application were matters that are known to the Applicant. So much may be seen from the material contained in the Court Book; see, for example, pages 221, 230 and 236. In particular, page 236 is an extract of records from the United States Department of Justice that was provided by the Applicant in the course of his application for the Visa. Consequently, while the documents therefore contain material relevant to the Applicant, the Applicant is aware of those matters and is in a position to deal with them. Indeed, the Tribunal dealt with them at length in its reasons.
While the documents contain the material described above, which is relevant, it is clear that they also contain other information which is not relevant. That information relates to sources of information, and the methods and processes by which the information is obtained. In reality, it is this information that is the subject of the public interest immunity claim. I regard this information, however, as not being material to the Applicant’s claim.
I accept the proposition that the Applicant may suffer grave consequences if his Application is rejected. That is a matter to be taken into account having regard to all of the circumstances of the matter and I do so.
There are four other matters which I have considered in weighing the question of whether the material ought to be disclosed. First, it is clear that insofar as Annexure 2 and Annexure 3 are concerned, the Minister has taken a measured view to the process of redaction. What has been redacted consists largely of the sources of information.
Second, part of the material contained within the documents makes clear that information provided by a source has been provided on the basis that it is not to be disclosed. This provides support for the evidence of Mr Dowling.
Third, a review of Annexure 4 discloses the nature and extent of inquires made, with whom those inquiries were pursued, and the information shared in the course of pursuing those inquiries. Names of sources, both organisation and individual, are disclosed. It is this information that is sought to be disclosed. It is not material to the Applicant’s claims. The substance of the matters that are material to the Applicant’s claims (being the assault charge against the Applicant, and his US migration history) have been disclosed to the Applicant.
The Applicant says that the fact that disclosure has occurred undermines the assertion that the national interest is served by maintaining secrecy. That submission misses the point. That is, there is a distinction between sources of information and methods or processes of information gathering, which are sought to be protected by the Minister in this instance, and the content of the information about which the Applicant was already aware. Further, the Applicant’s submission does not take account of the fact that a document may, in the interests of procedural fairness be capable of explication without undermining any claim for privilege where it is appropriate, whether under the general law or under section 438 of the Act: see NAVK v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 160 at [121].
Fourth, the Applicant concedes that there may be administrative inconvenience incurred if the documents are disclosed, but suggests the Court should give that no weight, and that the Court should be wary of ‘amorphous’ statements. A Court should naturally test and weigh carefully any submission that documents not be disclosed, given the nature of the test and the balancing exercise the Court is required to undertake. However, the evidence of Mr Dowling is not just that there would be ‘a greater degree of bureaucracy’ but also that the ability of the Australian Government to obtain information quickly may be hampered.
For the above reasons, weighing all of the matters I am required to weigh, I find the documents the subject of the certificate out not be disclosed.
Finally, the Applicant contended that if I formed the view that the material ought not to be disclosed, I should consider making an order to release the material in a manner that ensures no prejudice to the Applicant. It was submitted that I had the power to do this under section 130(5) of the Evidence Act 1995. The Applicant, when asked was not able to furnish the express terms of what might be regarded as an appropriate order for the Court to consider.
I am not persuaded that it is appropriate to make any order of the type contemplated by the Applicant. I am of this view because, for the reasons previously articulated, the documents are properly subject to a claim for public interest immunity, the ‘gist’ of the relevant matters has been put to the Applicant, the information sought to be protected is not material to the Applicant’s claim, and I see no utility in the Applicant having access to sources of information or information gathering processes to advance his claim, given the harm which has been identified.
Weighing all of the above matters discussed above, I find that the documents the subject of the certificate ought not be disclosed on public interest grounds.
For all of the above reasons, I uphold the claims for public interest immunity.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 September 2019
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