EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1020
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1020
File number: ADG 501 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 11 October 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection Visa (subclass 866) (class XA) cancellation – failure to comply with s 101 Migration Act 1958 (Cth) – s 438 notification certificates – applicant request for access to redacted information – public immunity interest (PII) claim – request refused and PII claim upheld. Legislation: Freedom of Information Act 1982 (Cth).
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 231
Migration Act 1958 (Cth) ss 101, 109, 375A, 438, 438(3).
Cases cited: Alister v The Queen (1984) 154 CLR 404, 469
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney-General for New South Wales v Chidgey (2008) 182 A Crim R 536
Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595
Commonwealth v Northern Land Council (1993) 176 CLR 604
Jackson v Wells (1985) 5 FCR 296
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Relationships Australia v Pasternak (1996) 20 Fam LR 604
Re Timor Sea Oil and Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832
Sankey v Whitlam (1978) 142 CLR 1
The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 2 October 2024 Place: Parramatta Counsel for the Applicant: Mr Kikkert (Acting on a pro bono basis) Solicitor for the Applicant: Jane Cox (Acting on a pro bono basis) Counsel for the Respondents: Mr Forsaith Solicitor for the First Respondents: Max Plitsch (Australian Government Solicitor) Solicitor for the Second Respondents: Submitting appearance, save as to costs
Table of Corrections 18 October 2024 Added “(Acting on a pro bono basis)” to the appearance details for Mr Kikkert. ORDERS
ADG 501 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEF16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for access to the redacted content in the section 438 notifications is refused.
2.The claim for Public Interest Immunity by the First Respondent is upheld.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) on 07 December 2018. The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (“the delegate”) to cancel the applicant’s Protection (Class XA) (Subclass 866) visa (“the visa”).
The basis for the Tribunal’s decision was a finding that the applicant had failed to comply with s 101 of the Migration Act 1958 (Cth) (“the Act”) by providing incorrect answers to certain questions on his protection visa application form, and failing to answer others. The applicant’s failure to comply with s 101 occurred chiefly in conviction with the applicant’s claimed identity.
This judgment addresses whether certain information that was provided to the Tribunal, pursuant to s 438 of the Act, some of which was provided to the applicant, should or should not be made available to the applicant on the basis of public interest immunity (“PII”).
For the reasons set out below, the application for access to the redacted content is refused and the claim for public interest immunity in relation to the redacted parts of the documents is upheld.
BACKGROUND
It is uncontested that on 9 January 2010, the applicant arrived at Sydney airport on a Visitor (Class TV) (Subclass 651) visa as the holder of a German passport, with the name of EH (full name not reproduced to maintain the applicant’s anonymity), born in Iraq in July 1978.
On 16 February 2010, the applicant approached a police station in Adelaide claiming to have arrived in Australia on 13 February 2010 as a stowaway on a ship.
On 22 February 2010, the applicant applied for a Protection Visa on the basis that:
(a)his identity in fact was AL, born in Iran in March 1973;
(b)his only country of former habitual residence was Iran;
(c)he was not a dual citizen;
(d)he departed Iran on 14 January 2010 without a travel document as a stowaway on a cargo ship and arrived in South Australia by sea on 13 February 2010;
(e)he fled Iran because he feared persecution as a result of his involvement in the Iranian Green Movement from mid-2009; and
(f)he lived in a park in Adelaide in the three days prior to presenting himself to police.
On 25 March 2010, the applicant participated in an interview with a Departmental Officer in connection with his Protection visa application. At the time, he made claims consistent with those in his application and as set out above.
Around the same time, a Forensic Document Examiner of the Document Examination Branch of the then Department of Immigration and Border Protection (“the Department”), conducted an examination of two documents issued by Iranian authorities upon which the applicant relied as evidence of his identity. In a file note dated 25 March 2010 the examiner concluded the documents were genuine.
On 14 May 2010, a delegate of the Minister granted the applicant a Protection visa.
In June 2014, the Department commenced an investigation into the applicant’s identity on account of there being no record of his initial entry into Australia. An examination of the Department’s Overstayers Database suggested EH as a potential match, because there was no record of him having left Australia after his Visitor visa expired.
On 19 November 2014, Departmental officers interviewed the applicant in relation to his identity, putting it to him, amongst other things that:
(a)he was EH, born July 1978 in Iraq, was a German citizen who had previously lived in Münster, Germany;
(b)had entered Australia on 9 July 2010 on a Visitor Visa using the German passport;
(c)German authorities had confirmed the German passport was a genuine document and had not been reported lost or stolen; and
(d)there were photographs of him on a Facebook profile under the name of AL, which included an image the Department alleged was taken in Münster, Germany.
The applicant maintained that he had arrived in Australia by ship, denied the abovementioned allegations and that he had ever been to Germany. He accepted there were photographs of him on the profile, but denied that he was its creator and that the photograph allegedly taken in Germany was of him.
A document entitled “National Identity Verification and Advice VIC Identity Confirmation Report” dated 23 December 2014, was prepared by a Departmental officer in connection with an investigation of the applicant’s identity. This report concluded, with reference to a chronology of events described above, the file note, and various other matters, that the applicant was in fact AL but that he also held German citizenship in the name of EH.
On 20 April 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (“NOICC”) pursuant to s 109 of the Act. That NOICC set out the matters described above and particularised the applicant’s alleged incorrect answers and failure to answer questions in his Protection Visa application.
In his response, the applicant provided a statutory declaration which stated, inter alia, that:
(a)he was not a German citizen also known as EH, and that he had never been to Germany;
(b)contrary to what he had previously told the Department, he did in fact enter Australia on 9 January 2010 on the visitor Visa using the German passport;
(c)stated that the German passport was not his but was given to him in Jakarta by a people smuggler;
(d)accepted that the photograph allegedly taken in Germany was of him, but stated in fact it was taken in Armenia; and
(e)claimed that his brother had created the Facebook profile in the name of AL without his knowledge.
On 5 August 2016, a delegate of the Minister made the decision to cancel the applicant’s Protection visa. Underpinning this decision was a finding that the applicant held another identity as EH.
FIRST ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The applicant sought merits review at the Tribunal. Three documents were sent to the Tribunal in which it was certified pursuant to s 375A of the Act that disclosure of the contents of the documents would be contrary to the public interest.
On 21 December 2016, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Protection Visa. The applicant sought judicial review in the then Federal Circuit Court. On 10 November 2017, consent orders were made quashing the decision of the Tribunal on the basis that the Tribunal had failed to disclose the existence of the s 375A notifications to the applicant.
SECOND ADMINISTRATIVE APPEALS TRIBUNAL DECISION
By letter dated 4 January 2018, the delegate of the Minister purported to revoke the previous s 375A notifications. This was on the basis that the delegate’s decision was a “Part 7 reviewable decision” whereas s 375A was located in Part 5 of the Act and therefore had no application. The delegate stated that the certificates were issued under the wrong provision. On the same day, the same delegate executed three s 438 notifications in substitution for the s 375A notifications. The certificates, in substance, related to the same documents (in whole or in part) that contained information that should not be disclosed to the applicant.
On 26 February 2018, the applicant’s legal representative requested from the Department various documents, including those related to the application for the Protection visa and its cancellation, under the Freedom of Information Act 1982 (Cth).
On 30 April 2018, a Freedom of Information case Officer made a decision to release a number of documents to the applicant’s representative, including:
(a)a redacted copy of file number CLF 2010/26609 which included a redacted copy of a file note; and
(b)a redacted copy of file number BCC 2015/39320 which included a redacted copy of the identity report relating to the applicant.
On 3 July 2018, the applicant was invited to attend a hearing before the Tribunal. The next day, the applicant’s legal representatives made a request to the Tribunal for the release of “copies of any certificates issued pursuant to section 438 (or 375A)” of the Act. The Tribunal provided these notifications accompanied by a letter. The letter commented that the Tribunal had formed a preliminary view that the s 438 certificates were valid, and invited submissions on this question.
The applicant’s representatives responded to the Tribunal’s invitation. They submitted that the s 438 relating to file no CLF 2016/4299 was invalid and conceded the remaining notifications appeared to be valid. On the latter point, they requested the Tribunal consider exercising its discretion to provide the relevant information in an “appropriately redacted” form.
Subsequently, the Tribunal provided further documentation in which the names of the officers involved in the preparation of the documents were redacted. That notification did not disclose the balance of the documents identified in the s 438 notification on the basis that:
(a)the file note concluded the applicant’s identity documents were genuine;
(b)the conclusions of the identity report were known to the applicant and form the basis for the decision under review; and
(c)the remainder of the documents that the Tribunal had decided not to disclose were irrelevant to the review;
On 7 December 2018, the Tribunal affirmed the decision under review, following three separate hearing days. The Tribunal found that the s 438 certificates were valid, and that the applicant had not complied with s 101 of the Act. Accordingly, grounds for the cancellation of his visa existed. Ultimately, the Tribunal determined that, having regard to the balance of the relevant circumstances, the applicant’s Protection visa should be cancelled. Further, the Tribunal found it was unlikely the applicant would have been granted a Protection visa had he revealed the fact that he held German citizenship.
THE APPLICATION BEFORE THE COURT
Accordingly, the matter for initial determination by the Court is whether grounds exist for the PII claim made by the Minister. In considering the matter, the Court was provided with two Affidavits of Michelle Cozadinos dated 13 March 2024. Both Affidavits annexed a copy of the Identity Confirmation Report, the first was in a redacted form and the second was not. The Court has read the unredacted copy and is aware of the nature of those parts that are redacted and for which PII is claimed.
The first redaction can be described broadly as the means of contact with a foreign government. The second relates to the methodology used by the Forensic Document Examiner and other checks that took place.
The Court was also provided with two Affidavits of Catherine Genn. The redacted parts relate to the last name of a Departmental Officer and methodologies used by the Forensic Documents Examiner.
THE LAW
The Court notes first, the judgment of Leeming JA in Re Timor Sea Oil and Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832. That decision concerned a claim for PII in relation to certain Cabinet-in-Confidence documents. First, Leeming JA rejected at [15] there is any “usual practice” which permitted a claim for PII to be established on the basis that the material, including the confidential affidavit, was not made available to the other sides legal representatives.
At [19] Leeming JA had the following to say (citations omitted):
Thirdly, the application by the Commonwealth to proceed in closed Court, and its application to read paragraphs 30–34 of Ms McGregor’s affidavit while preserving their confidentiality, infringe the basic notions of procedural fairness. Put simply, the Commonwealth seeks to obtain a court order in its interests without the plaintiff seeing let alone testing or being heard as to the evidence on which the Commonwealth relies. This is contrary to a defining characteristic of a court. The application of procedural fairness and adherence, as a general rule, to the open court principles have said to be defining or essential characteristic of a court: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44]; Lawrence v State of New South Wales [2020] NSWCA 248 at [76]. There are, as mentioned in argument, instances where such a course may be appropriate, a point recognised by the qualification given by French CJ and Keifel J to adherence “as a general rule” to open court principles.
At [29] His Honour stated:
… But I could see no sound basis for proceeding to determine the Commonwealth’s motion without that information being provided on a strictly confidential basis to nominated legal representatives of the plaintiff. I did not understand the Commonwealth to articulate any such basis when I invited it to do so.
The Court also notes s 229 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)which states:
Safeguarding public interest in open justice
In deciding whether to make a suppression order or a non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 231(1)(b) of the same Act sets out the grounds for making such an order which include at (1)(b):
(that).. the order is necessary to prevent prejudice to the interests of the Commonwealth or State or Territory in relation to national or international security.
In The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34, a decision of the Western Australian Supreme Court of Appeal. At [41] the following was said (citations omitted):
In determining whether public interest immunity applied to information that would identify an individual survey respondent as being the source of the commercial-in-confidence information provided, the primary judge confined his consideration by reference to the proposed limited disclosure to counsel and solicitors of the parties. The appellant contended that the public interest immunity could not be avoided by the simple expedient of confining disclosure to the parties’ lawyers. We agree that the initial question of whether documents or information attract public interest immunity is to be determined on the basis of unrestricted production or disclosure for the purposes of the litigation. Public interest immunity protects complete, not partial, secrecy. This is implicit in the rule that ordinarily there is no disclosure of the documents or information to the legal representatives of the parties even for the purpose of determining the objection to production on the ground of public interest immunity: Commonwealth v Northern Land Council (619); Alister v The Queen (1984) 154 CLR 404, 469; Jackson v Wells (1985) 5 FCR 296, 307 – 308; Relationships Australia v Pasternak (1996) 20 Fam LR 604, 614 – 616. However, in our view the effectiveness or appropriateness of disclosure limitations of the type imposed in this case may be relevant factors to consider that the balancing stage of the process.
In determining whether or not to allow a claim of public interest immunity, a Court must balance the public interest in withholding the disclosure of the information or the production of a document, against the public interest in ensuring that the courts performing the functions of justice should have access to the relevant evidence;(see; Sankey v Whitlam (1978) 142 CLR 1 at [44], approved of in Alister v The Queen (1984) 154 CLR 404 at [412].
In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at [675]-[676] Hunt CJ at CL stated:
It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the judge proceeds to the balancing process.
A three-stage process is to be followed. First, determining whether the evidence sought to be obtained is material, in the sense that there are concrete grounds to believe that the disclosure of the documents or information would materially assist given the nature of the issues in the proceedings. Second, establishing that there is a sound basis for the claim of immunity. Third, the balancing exercise.
As to the first of these steps, it was said in Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [59] (“Commissioner”) that:
… the essential enquiry is the extent to which the documents and information will, or are likely to, materially assist on an identified issue in the proceedings, not mere potential or conceivable relevance assessed with or without reference to the issues in the proceedings.
The issues must be identified “with some degree of particularity having regard to the nature of the proceedings in question”; (see: Commissioner at [60]). If the documents are not material in the sense described, the Court will not proceed to conduct the balancing exercise.
As the second step, consideration should be given as to whether the harm to the public interest could arise from the disclosure depends upon there being “a real possibility, as opposed to a probability, of harm” and “the incurring of the identified risk [of harm] is itself injurious to the public interest”; (see: Commissioner at [58]).
If a claim for public interest immunity is upheld, the documents or information need not be produced to the Court and the documents or information are not available to be, and cannot be, adduced in evidence or relied upon by the Court;(see: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [14]).
It is trite to say that effective law enforcement is a proper basis for claiming public interest immunity. This includes material which might disclose law enforcement or intelligence gathering methodologies, as well as preventing prejudice to the prosecution of offences, both current and into the future.
Secondly, it must be “on the cards” that the documents would “materially assist” the applicants; (see: Attorney-General for New South Wales v Chidgey (2008) 182 A Crim R 536 at [58]-[59] and [64]-[68]).
If there is no public interest in the disclosure, the balancing exercise need not be carried out as the public interest in the maintenance of non-disclosure is overwhelming.
CONSIDERATION
The applicant claims that the Minister has failed to establish that the documents relate to matters of State. I do not accept this where in one case, the material relates to contact with a foreign government. This surely is a matter of State.
The balance of the redacted material relates to the identity of a particular department or officer by reference to her last name, the methodology used by the Forensic Document Examiner in order to establish whether or not the Iranian documents provided by the applicant were valid and genuine, and lastly the methodology used for various checks and enquiries which satisfied the Department that the applicant did in fact have a second identity. I am satisfied that this material, if disclosed, might prejudice law enforcement or intelligence gathering methodologies as they relate to the identification of persons who have been granted various visas based on their claims as to their identity.
The Minister submits that the Tribunal did not refer during the course of its reasons to any of the documents or parts of the documents that were not disclosed to the applicant and in this sense, the redacted information is not relevant to the outcome of the decision.
Reliance was placed on Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 (per Bell Gageler and Keane JJ) where the following was said:
… the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section [s 438] applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decisions in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for the decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified by inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
In the current case, there is no evidence of “active consideration” of the discretion in s 438(3), and the Court is satisfied that the Tribunal did not have regard to the s 438 documents that were not disclosed to the applicant and thus did not have regard to any of the information subject to the PII claim.
In the circumstances, I am not satisfied that the redacted material was relevant to the Tribunal’s ultimate decision. I am not satisfied that it was ‘on the cards’ that the redacted parts of the documents would materially assist the applicant. That being the case, it is not necessary for the Court to carry out the third stage of the consideration set out above, as there is no public interest in the disclosure and the need for the maintenance of nondisclosure of law enforcement methodologies and the other information subject of the reductions is overwhelming.
I have considered the material provided to the Court by the applicant consisting of a ‘Landinfo Report’ dated 5 January 2021 that describes passports, ID and civil status documents from Iran. I do not consider that document to be of use or relevant in these proceedings as it is no more than a general description of various documents including a ‘shenasnameh’ or identity document issued to citizens of Iran. While describing the documents, it provides no assistance in the methodologies that might be used to identify whether or not documents are genuine or false.
The application for access to the redacted parts of the document is refused and I uphold the claim for public interest immunity in relation to the redacted parts of the documents.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 11 October 2024
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