Doshi and Secretary, Department of Home Affairs (Freedom of Information)
[2025] ARTA 805
•24 June 2025
Doshi and Secretary, Department of Home Affairs (Freedom of Information) [2025] ARTA 805 (24 June 2025)
Applicant:Tom Doshi
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2023/9840
Applicant:Secretary, Department of Home Affairs
Respondent: Tom Doshi
Tribunal Number: 2024/0140
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:24 June 2025
Decision:The Tribunal sets aside the decision of the Acting Freedom of Information Commissioner dated 6 December 2023 and in substitution decides that documents 1 to 6 are exempt documents under the Freedom of Information Act 1982.
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Deputy President P Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision of the Acting Freedom of Information Commissioner - request for documents related to a visa cancellation under the Migration Act 1958 (Cth) – Department of Home Affairs contends that some material in the documents in issue is irrelevant under s 22 and exempt from disclosure under ss 33(a) and (b), 37(1)(a) and (2)(b), 38 and 47E(d) of the Freedom of Information Act 1982 (Cth) – the s 38 claim for exemption related to s 503A of the Migration Act 1958 (Cth) and whether information was communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information - the claims for exemption are upheld – decision set aside and substituted by a decision that the documents in issue are exempt from disclosure
Legislation
Migration Act 1958 (Cth)
Freedom of Information Act 1982 (Cth)
Cases
AFR and Department of Home Affairs (Freedom of Information) [2023] AICmr 120
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026
Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 147 FCR 545
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Lobo and Department of Immigration and Citizenship [2011] AATA 705
Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 143 FCR 15
Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of Information) [2019] AATA 5537
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367Vella v Minister for Immigration and Border Protection [2014] FCA 1177
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982
Australian Government Security Classification System, Information Security Management GuidelinesStatement of Reasons
The two applications for review arise from a request by Mr Doshi for access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). Mr Doshi made his access request to the Department of Home Affairs on 17 May 2018. On 6 December 2023, the acting Freedom of Information Commissioner made the decision[1] which both parties have sought to review.
[1] AFR and Department of Home Affairs (Freedom of Information) [2023] AICmr 120.
At the time of his request, Mr Doshi’s visa had been cancelled (11 June 2015) and his request for revocation of that decision was being considered by the Minister. Later, on 13 November 2019, the Minister decided not to revoke the cancellation decision. Mr Doshi appealed that refusal decision to the Federal Court who quashed the decision and remitted the matter to the Minister.[2]
[2] Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026.
The documents sought by Mr Doshi related to his request that the Minister exercise discretionary powers under the Migration Act 1958 (Cth) (the Migration Act) in relation to his visa cancellation. The Secretary identified seven documents as falling within the scope of the request. The claim in relation to document 7 is now resolved. With respect to the six remaining documents, the exemptions claimed fall into five categories:
(a)Section 33(a)(iii) and (b) – international relations;
(b)Section 37(1)(a) – prejudicing the enforcement or proper administration of the law;
(c)Section 37(2)(b) – disclosing lawful methods or procedures in relation to breaches or evasions of the law;
(d)Section 38 – secrecy provisions; and
(e)Section 47E(d) – effect on the proper and efficient conduct of the operation of an agency.
There is a further issue because the Secretary has deleted some matter as being irrelevant pursuant to s 22 of the FOI Act. Mr Doshi has requested the Tribunal to determine whether the deleted material is irrelevant.
The Legislative Scheme
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General: [3]
… 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.
[3] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(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.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides as a general rule that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)
Section 11A(5) provides the following:
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 public interest.
Documents affecting international relations – s 33
Section 33 in Division 2 of Part IV of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)the security of the Commonwealth;
(ii)the defence of the Commonwealth; or
(iii)the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: See also subsection 4(10).
In Secretary, Department of Prime Minister and Cabinet and Summers,[4] Perry J said with respect to s 33 of the FOI Act:
[33] First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”… Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant…
[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[35] Thirdly, the Full Court observed in Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 … that the relevant time for considering damage that might be caused by disclosure for the purposes of s 33(a) is the time at which disclosure is to occur, in contrast to s 33(b). As the Court explained:
26. …That is to say, disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under s 33(1)(a)(iii). On the other hand, if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under s 33(1)(b), even if that matter is no longer confidential at the time when access is sought.
[36] Finally, it is clear from s 58(2) that the Tribunal has no discretion to permit disclosure once satisfied that the ground of exemption in s 33(a) or (b) is established even though an agency may permit access in accordance with other laws and practices.
[4] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The Tribunal is required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner. The FOI Guidelines at [5.39] provides that the phrase ‘international relations’ has been interpreted as meaning the ‘ability of the Australian government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them’; it encompasses intangible damage, such as loss of trust and confidence in the Australian government.[5]
[5] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 at [5.39] and [5.40] (‘FOI Guidelines’).
For s 33(b) to apply, the ‘only question’ is whether ‘the disclosure of the document would divulge information or matter that has been communicated in confidence’.[6]
[6] Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 143 FCR 15 at 21 [25].
Thomas Geoffrey Bowan is the Assistant Secretary, Eastern and South-East Europe Branch in the Australian Department of Foreign Affairs and Trade (DFAT). He has over 20 years’ experience in matters of foreign policy and international relations. He has provided an affidavit deposing to his opinion that disclosure of the documents claimed to be exempt under s 33 would damage Australia’s international relations. The key points he makes are as follows:[7]
(a)It is a long-standing and generally accepted principle in international diplomacy, recognised amongst government and the diplomatic community, that all diplomatic communications, including discussions of the kind referred to in the exempt material, are conducted with an expectation of confidentiality and discretion. This convention is founded on the general and consistent practices surrounding the exchange of diplomatic communications between states.
(b)…High level communications may be especially sensitive but there is an expectation that any diplomatic communication, irrespective of the level at which the communication is conducted with a foreign government, is conducted on the basis and expectation of confidence.
(c)Disclosing confidential diplomatic communications has a real potential to damage the relationship between the states concerned and adversely affect Australia’s current and future equities and interests that we are pursuing. This is true regardless of the sensitivity of the information provided or the time that had elapsed since the communications occurred because it represents a breach of the convention, and therefore of trust…
(d)If trust is lost between Australia and a foreign government, the consequences could be serious. If Australia is perceived as not being able to maintain confidences, Australian officials are also less likely to be given information about developments in the country that could impact on the security of Australian citizens there or be informed of other matters relevant to Australia.
(e)…there is a real prospect that releasing the exempt material would be damaging to Australia’s bilateral relations with Albania and to international relations more broadly.
[7] Affidavit of Thomas Geoffrey Bowan affirmed 2 August 2024, 3-5 at [15], [16], [18], [21] and [23].
Mr Bowan was cross examined about some of the statements in his affidavit. He explained his comments in his affidavit and made some appropriate concessions. He accepted that sometimes diplomatic communications between DFAT and representatives of foreign nations are deliberately disclosed.[8] He said that communications might be revealed to the extent that had been agreed or, upon exercising a judgment, as to the public position of the foreign nation.[9] He accepted that there is no blanket rule that every diplomatic communication is confidential,[10] but he maintained that the release of documents or advice received from foreign nations would run the risk of causing damage.[11] He said with respect to the material claimed to be exempt that he had gone over the documents in issue very carefully one by one and he was confident that if the documents were released it would cause serious damage to our standing as a diplomatic partner.[12] He explained that the public disclosure of information provided by another nation on a confidential basis would reduce the trust of that particular nation and would have implications beyond that particular bilateral relationship.[13]
[8] Transcript, 48 [7].
[9] Ibid 51.
[10] Ibid 52 [37].
[11] Ibid 53.
[12] Ibid.
[13] Ibid 54.
Mr Bowan has very significant experience in foreign policy and international relations. During cross examination he made appropriate concessions. I accept his evidence in particular with respect to the potential for damage to international relations if the relevant documents were released.
The s 33 exemptions are claimed over parts of documents 1 and 4 and the whole of documents 5 and 6.
Pages 98 and 99 of document 1 contain a report dated 22 May 2015 prepared by the Director of the Character Support Section of the Department of Home Affairs (the Department). This report (or an earlier version of it dated 3 March 2015) appears again at pages 111-112, 141 and 230. The unredacted part of the report contains background about Mr Doshi including from open-source information available on the internet that referred to the arrest of Mr Doshi in Albania ‘suspected of perjury, forswearing and fake testimony’. It contains a reference to a DFAT cable received on 28 November 2014 and to ‘Rome Post’s further enquiries’ followed by details that have been redacted as an exempt claim under s 33(a)(iii). The DFAT cable from Rome to Canberra entitled ‘Albania: Immigration: Mr Tom Doshi’ is document 4. The report provides for the next steps and proposed action, namely to cancel Mr Doshi’s visa (which does in fact happen on 11 June 2015).
The balance of the redactions claimed to be exempt under s 33 in document 1 are extracts of internal Department emails or with DFAT in about December 2014 to March 2015 in relation to the potential cancellation of Mr Doshi’s visa. Some of the emails contain similar information to the report, namely the background information about Mr Doshi and references to the DFAT cable of 28 November 2014. An email from DFAT to the Department dated 3 March 2015 says ‘We don’t have serious concerns about any foreseeable impact on the Albanian-Australia bilateral relationship’ followed by a passage redacted as being exempt under s33(a)(iii) and (b).[14]
[14] Document 1, 135.
I have had access to and have considered the redacted passages from within documents 1 and 4 and I accept the evidence of Mr Bowan that if revealed they would disclose sensitive and confidential information from Albania and would cause damage to international relations. It is apparent that diplomatic enquiries to Albania have resulted in information being provided to DFAT which has been relied upon by the Department. This information from Albania is contained in the redacted passages of the report and the emails. The information was provided on a confidential basis and its release would be a breach of trust that would damage Australia’s diplomatic relationship with Albania. I am satisfied that the redacted passages are limited to information exempt under s 33(a)(iii) and (b).
I have had access to and have considered documents 5 and 6 which are claimed to be fully exempt under ss 33(a)(iii) and (b). The evidence given in relation to these documents is the subject of a confidentiality order. I am satisfied that they are fully exempt as claimed.
I note that whilst Mr Doshi and his representatives have not had access to the confidential evidence given by Mr Bowan, counsel for Mr Doshi was asked to and did provide some topics which were put to Mr Bowan in the closed session of the hearing.
Documents relating to law enforcement – ss 37(1)(a) and (2)(b)
Section 37 relevantly provides:
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; …
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;…
The FOI Guidelines,[15] with respect to exemptions, provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’ and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
[15] FOI Guidelines (n 5).
It follows that the use of the word “could” in the first element of s 37(2) is less stringent than “would”, which is used in the second element of s 37(2)(b). The first element requires analysis of a reasonable expectation rather than the certainty of the relevant disclosure occurring. The second element requires a higher level of satisfaction, namely that prejudice would “reasonably likely” be caused by the disclosure. The word “likely” can, in some contexts, mean “probably”, and in other contexts mean a real or not remote chance or possibility.[16] Given the general object of the FOI Act is to give access to information held by the Australian Government, the words “reasonably likely” require the higher standard, namely a meaning of “probably” in the sense of more likely than not. In other words, the Secretary will have to establish that prejudice will, on the balance of probabilities, be caused by the disclosure.
[16] Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 380 and Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 308 - 13.
As for the meaning of “prejudice”, I would adopt Deputy President Forgie in Lobo and Department of Immigration and Citizenship:[17]
[212] … The meaning of “prejudice” in this context is that of “... harm; detriment; disadvantage ...”. The harm, detriment or disadvantage is to the ability of the methods or procedures to prevent, detect, investigate or deal with matters arising out of breaches or evasions of the law.
[17] [2011] AATA 705.
I note that the evidence relevant to s 37(2)(b) is also relevant to the alternative claim that the documents are conditionally exempt under s 47E(d) because of the effect of their disclosure on the proper and efficient conduct of the operation of the Department.
Documents 1, 2, 3 and 4 have been redacted in part based on exemptions claimed under ss 37(1)(a) and (2)(b).
There are three types of prejudice alleged to arise if these parts of the documents are disclosed.
(a)The first is a prejudice to the conduct of an investigation of a breach, or possible breach, of the law.
(b)The second is a prejudice to the enforcement or proper administration of the law in a particular instance.
(c)The third is a prejudice to lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law.
Mr Nigel Muir gave oral and affidavit evidence in relation to these claimed exemptions. His affidavits are dated 7 August 2024 and 12 February 2025. Mr Muir has over 20 years’ experience in the Department and is currently the Senior Director of the Immigration Compliance Governance Branch. He previously worked as the Director and the Acting Assistant Secretary in the Character and Cancellations Branch (CACB) between 2017 and 2024. In his role of Acting Assistant Secretary, he led the CACB, which has responsibility for identifying and processing non-citizens whose visas may be subject to refusal or cancellation on character grounds under section 501 of the Migration Act.
In his first affidavit, Mr Muir referred to the cancellation of Mr Doshi’s visa in June 2015, his request for revocation of that cancellation decision, the subsequent refusal to revoke the cancellation decision, his appeal to the Federal Court and the subsequent decision of the Federal Court on 22 July 2020 to quash the cancellation decision and to remit the matter for redetermination. Since the decision of the Federal Court, Mr Doshi has made further representations and the Department is considering whether to revoke the cancellation of Mr Doshi’s visa. In his recent affidavit, Mr Muir says that consideration of whether to revoke the cancellation decision is ongoing.[18]
[18] Affidavit of Nigel Muir dated 7 August 2024, 4 [17].
Mr Doshi does not accept that there is an ongoing investigation because of a lack of evidence and because so much time has elapsed since the matter was remitted to the Minister in 2020. Mr Doshi says that making a decision one way or the other on a revocation request is not an investigation. He refers to communications from his lawyers to the Department seeking information from the Minister as to the basis for concerns that Mr Doshi does not pass the character test.[19] The Department has declined to provide that information saying that it is under no obligation to enter into more specific discussion about the decision making process.[20] Mr Muir accepts that a considerable amount of time has passed since the Federal Court decision but says that it is not exceptional and that the Department has been making various attempts to obtain information it could rely on to make a further decision. Under cross examination about the purported lack of activity in the investigation, Mr Muir said that enquiries are under way with both domestic and international agencies to obtain further information.[21] He was not able to expand on these activities in the open session. It may not appear to Mr Doshi that the Department is doing much, but that is not surprising given the sensitive nature of the investigatory information which has not been disclosed to Mr Doshi. Further questions about the investigation were answered by Mr Muir in the closed session.
[19] Affidavit of Ellen Moore dated 20 December 2024 and annexure EJEM1 which is a letter to the Department dated 23 November 2022.
[20] Ibid; Annexure EJEM2 which is a letter from the Department dated 23 May 2023.
[21] Transcript, 88 [16] – [17].
Mr Muir has very significant experience in visa cancellations and he gave his evidence with candour. I accept his evidence that the investigation into cancelling Mr Doshi’s visa is ongoing.
The next submission from Mr Doshi is that an investigation as to whether he passes the character test for the purposes of s 501 on the Migration Act does not come within s 37(1)(a), which requires there to be an investigation of a breach or possible breach of the law. He says that breaches of the character test are not confined to breaches of the law and there is no evidence that the current investigation relates to a breach or potential breach of an Australian law.[22]
[22] Section 37(3) defines law to mean a law of the Commonwealth or of a State or Territory.
In response to that submission, the Secretary says that the ongoing investigation as to whether Mr Doshi passes the character test for the purposes of s 501 of the Migration Act is an investigation for the purposes of the exemption. In any event, the Secretary relies upon the second part of s 37(1)(a), which does not require an investigation of a breach or possible breach of the law but simply requires there to be prejudice to the “enforcement or proper administration of the law”. I accept that an investigation relating to the character test under the Migration Act comes within the meaning of the enforcement or proper administration of the law.
The next question under s 37(1)(a) is whether disclosure of the documents in question would, or could reasonably be expected to, prejudice the ongoing investigation as to whether Mr Doshi passes the character test. Mr Muir says in his first affidavit that disclosure of the exempt material has the potential to adversely impact the consideration process.[23] Under cross examination, it was put to Mr Muir that the revelation of information from about 10 years ago could not possibly cause prejudice, but Mr Muir disagreed for reasons he said would be explored in the closed session.[24] Further, I note that the redacted part of paragraph 18 of Mr Muir’s supplementary affidavit articulated the risk of prejudice to the ongoing consideration if there was disclosure of particular passages from the documents in issue. I have read those redactions and considered the further oral evidence of Mr Muir from the closed session, and I am satisfied that prejudice would arise if the material claimed to be exempt was disclosed.
[23] Affidavit of Nigel Lee Muir affirmed 7 August 2024, 5 [18].
[24] Transcript, 89.
With respect to the claimed exemptions under s 37(2)(b), there are two elements that must be satisfied. The first element should be read with its chapeau in s 37(2) so as to require that its disclosure would, or could reasonably be expected to, disclose certain lawful methods or procedures. The second element is that the disclosure would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. The evidence relevant to these two elements is within the redacted part of the first Muir affidavit and was expanded upon by Mr Muir during the closed session. Having considered that evidence, I am satisfied in relation to both elements of s 37(2)(b).
Documents to which secrecy provisions apply – s 38 of the FOI Act and s 503A of the Migration Act
Section 38 of the FOI Act relevantly provides:
38Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or law or any other enactment or Norfolk Island law.
(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment or law concerned or any other enactment or Norfolk Island law.
Schedule 3 of the FOI Act specifies s 503A of the Migration Act which provides as follows:
Protection of information supplied by law enforcement agencies or intelligence agencies
(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA:
(a) the officer must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; and
(b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA.
Note: Authorised migration officer and gazetted agency are defined by subsection (9).
This exemption is claimed by the Secretary in relation to information received from the Australian Federal Police, which is a gazetted agency within the meaning of s 503A(9) of the Migration Act. It is apparent from my perusal of the documents relevant to this claim that information was communicated to an authorised migration officer and that it was relevant to an exercise of power under the relevant provisions of the Migration Act. I understand there to have been no dispute about these elements of s 503A of the Migration Act.
The issue in dispute under s 38 is whether the information was communicated on condition that it be treated as confidential. Mr Doshi submits that the communications claimed to be exempt under this provision did not express a condition of confidentiality. He refers to other examples of communications which include an express condition of confidentiality within the body of the document (in most cases an email). One example is Vella v Minister for Immigration and Border Protection,[25] where the letter in question included an express statement as follows:[26]
This information is disclosed to you on the following basis:
It is provided to you in your capacity as an authorised migration officer within the meaning of section 503A Migration Act 1958 (Cth) (MA) and is disclosed to you on the condition that the information is to be treated as confidential information in accordance with section 503A MA;
·This confidential information (within the meaning of section 503A of the MA) is provided for use in connection with and for the purpose of the exercise of the Minister of Immigration & Border Protection’s powers under section 501, 501A, 501B or 501C MA.
[25] [2014] FCA 1177.
[26] Ibid [25].
Mr Doshi says that no such statement is included in the communications sought to be exempted under s 38. Mr Doshi says that the question whether the information was communicated subject to a condition of confidentiality must be proved by admissible evidence.[27]
[27] Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 147 FCR 545, 550-1 [19] – [22].
Mr Muir says in his first affidavit that communications between CACB and the AFP are confidential and it is understood that information shared will be kept confidential.[28] This understanding of confidentiality is enforced by the use of caveats and disclaimers that relate to the information exchanged.[29] Further, security classifications and protective markings are also used to indicate the sensitivity of the information.[30]
[28] Affidavit of Nigel Muir affirmed 7 August 2024, 3 [13].
[29] Ibid [14].
[30] Ibid.
The Secretary called evidence from the AFP with respect to the confidentiality of its communications with the Department. Ms Allison Buck is a retired member of the AFP who held the rank of Commander. She provided an affidavit dated 26 July 2024 on which she was cross examined at the hearing before me. In her affidavit she says with respect to confidentiality as follows:[31]
[15] Where other domestic or international agencies provide the AFP with information and assistance, or the AFP provides them with information and assistance, in most, if not all cases, this is done on a mutual understanding that the information will be kept confidential and used in strict confidence. The understanding of confidentiality may be either implicit or expressly stated, depending on the case.
[16] There is a long standing practice and understanding between the AFP and DHA that all information exchanges are to remain strictly confidential.
[17] In my experience, in all cases where information is provided to the AFP by international partners the understanding is the information must be kept confidential unless otherwise agreed. In cases where I in my various roles have received such information, if I wanted to share that information outside the AFP I sought permission before doing so.
[18] The usual AFP practice is to include express caveats or disclaimers warning that email correspondence and any attachments may contain information that is confidential.
[19] From my involvement and knowledge of the matters referred to in the documents, I can say this understanding of confidentiality applied in relation to the exchanges which are evidenced in the documents, and the information conveyed in those exchanges, wherever it is recorded.
[31] Affidavit of Allison Buck affirmed 26 July 2024, 4 [15] – [19].
Documents 1 and 4 have been redacted in part based on exemptions claimed under s 38. Those redactions appear in document 1 at pages 98, 111, 141, 152-153, 154, 161-162, 168-169, 174, 184, 185, 186, 188, 196-197, 201, 225 and 230.
Document 1 pages 152-153, 154, 161-162, 168-169, 174, 184, 185, and 196-197 are emails marked “PROTECTED”. Document 1 pages 98, 111, 141 and 230 are versions of the report which is marked “PROTECTED”. Document 1 pages 188 and 201 is an email dated 2 December 2014 from the Department marked “UNCLASSIFIED” which contains the same information as the report.
Document 4 is marked “PROTECTED”.
The requirement of s 503A of the Migration Act that ‘information is communicated … on condition that it be treated as confidential information’ places a focus on how the information was communicated as opposed to whether the information itself was confidential. The marking of a communication as “PROTECTED” may not be determinative as to whether the information within it is confidential, but it would indicate that there is an intention that the information ‘be treated as confidential information’. The purpose of marking a document is to ensure that it is appropriately treated. “PROTECTED” is a security classification assigned to a document where ‘confidentiality of the information needs protection’.[32] In my view, if the AFP marks a communication with “PROTECTED” then it is expressing a condition that it be treated as confidential information. The same cannot be said with respect to the use of a standard email disclaimer or warning that the communication may be confidential.
[32] Australian Government Security Classification System, Information Security Management Guidelines.
Further, at the time of the relevant communications there was a memorandum of understanding between the AFP and the Department that they would protect any confidential information from unauthorised access or disclosure. This memorandum was provided after there was a call for its production during the hearing. The parties agreed that the memorandum of understanding could be received as evidence. Both parties then provided written submissions. The memorandum provided a broad definition of confidential information to include all information that is by its nature confidential or that is identified by the Participant (defined as the AFP and the Department) as confidential.
It is the cumulative effect of the memorandum of understanding and the marking of the document “PROTECTED” that satisfies the requirement of s 503A of the Migration Act that ‘information is communicated … on condition that it be treated as confidential information’.
Mr Doshi submits that it is apparent from the Department’s practice (with respect to AFP police certificates) and from the terms of the memorandum itself, that not everything provided by the AFP to the Department is confidential. I accept that submission. Moreover, the question arising from s 503A is not whether material is actually confidential but rather whether the relevant communication was made on a condition of confidentiality. The Secretary submits that the memorandum provides the condition of confidentiality but, as I have found, there is no blanket confidentiality over all material provided by the AFP to the Department. The Secretary needs to establish under the terms of the memorandum of agreement, in order to satisfy the definition of confidential information, either that the information is by its nature confidential or that it was identified in the communication as being confidential. In my view it is sufficient identification for the communication to be marked with a classification as to confidentiality. It follows that the documents marked “PROTECTED” would come within s 503A of the Migration Act.
However, the Secretary cannot rely on the markings to establish the condition of confidentiality in the email dated 2 December 2014 from the Department because it is marked “UNCLASSIFIED” in Document 1 pages 188 and 201. Nevertheless, I have read the passages in that email that are claimed to be exempt under s 38 and it is my view that they contain information which by its nature is confidential thereby satisfying the definition of confidential information in the memorandum of understanding. I note that the information contained in those passages in the 2 December 2014 email is the same information that has been redacted pursuant to s 38 in the report dated 22 May 2015 prepared by the Director of the Character Support Section of the Department, which is referred to previously in these reasons and which is found at pages 98 and 99 of document 1. Ms Buck gave confidential evidence specifically about the report at page 98 of document 1. Her evidence supports my finding that the passages in the 2 December 2014 email contain information of a confidential nature.
The confidential information in the 2 December 2014 email would be protected from disclosure by the understanding between the AFP and the Department as expressed in their memorandum of understanding. It follows that, pursuant to the memorandum of understanding, this information was communicated on condition that it be treated as confidential information. Whilst it may be preferable from an evidentiary point of view, there is no requirement that the particular communication include an express statement that it is being provided on the condition that the information is to be treated as confidential information in accordance with s 503A.
In conclusion, I accept all the claims for exemption under s 38 of the FOI Act.
Effect on agency operations – s 47E(d)
Section 47E provides relevantly:
47E 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:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The FOI Guidelines advise on the meaning of ‘substantial adverse effect’ at paragraph 6.18:
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’ [see Re Thies and Department of Aviation [1986] AATA 141 [24]. The word ‘substantial’, 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’ [Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367 383].
The phrase ‘could reasonably be expected’ requires more than a mere assumption or allegation that damage may occur. The Guidelines provide at paragraph 6.92:
…The particulars of the predicted effect should be identified during the decision-making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied on, the relevant particulars and reasons should form part of the decision maker’s statement of reasons, if they can be included without disclosing exempt matter (s 26, see Part 3)
All of the information in the documents claimed to be conditionally exempt under s 47E(d) have already been found to be exempt from disclosure and therefore there is no need to consider the s 47E(d) claim. In any event, the facts which supported my findings made in relation to s 37 would provide a sufficient basis to satisfy s 47E(d). The public interest against disclosure would outweigh the public interest favouring disclosure because revealing the Department’s methods and procedures could prejudice their ability to perform its functions under the Migration Act.
Redactions of Irrelevant Information under s 22
Some information contained in the documents in issue has been redacted under s 22 of the FOI Act as being irrelevant to Mr Doshi’s request. Mr Doshi takes no issue with the redaction of email addresses, phone numbers and names but he wants the Tribunal to consider the basis for redacting entire pages on the claimed basis that they are irrelevant. I have reviewed these redactions and am satisfied that there is material in the documents in issue that does not relate to Mr Doshi. I consider that the extent of redactions on the basis of s 22 is appropriate and justified.
Summary
I have accepted as exempt from disclosure the passages of documents claimed under ss 33, 37 and 38. I have also accepted that the passages claimed under s 47E(d) are exempt from disclosure.
The decision under review is set aside to the extent necessary to reflect my findings and substituted with a decision accordingly.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
.....................[sgd]...................................................
Associate
Dated: 24 June 2025
Date(s) of hearing: 25 and 26 February 2025 Applicant’s Counsel: Mr James Hartley Applicant’s Representative: Ms Ellen Moore (Clothier Anderson Immigration Lawyers)
Respondent’s Counsel: Mr Graeme Hill SC and Mr Nicholas Swan Respondent’s Representative: Ms Dorsa Salehi (Australian Government Solicitor)
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