Elhamid v Minister for Immigration
[2011] FMCA 386
•26 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELHAMID v MINISTER FOR IMMIGRATION | [2011] FMCA 386 |
| MIGRATION – Review of an offshore Delegate’s decision – cancellation of a Spouse (Migrant) (Applicant Offshore) (BC100). PROCEDURAL – Notice to Produce – claim for public interest immunity over produced material – four statutory declarations over which public interest immunity is claimed – granted. |
| Migration Act 1958 (Cth), s.128 Federal Court of Australia Act1976 (Cth), s.61 |
| Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 72 Commonwealth of Australia v Northern Land Council & Anor (1993) 176 CLR 604 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 Kumar v Minister for Immigration and Citizenship [2007] FMCA 995 Kumar v Minister for Immigration and Citizenship[2008] FCAFC 166 Le v Minister for Immigration and Citizenship [2008] FMCA 1209 Leghaei v Director General of Security [2005] FCA 1576 Minister for Immigration and Citizenship v Kumar [2009] HCA 10 Sagar v O’Sullivan [2011] FCA 182 |
| Applicant: | MOHAMAD YASIN ABRAHIM ABD ELHAMID |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 138 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 May 2011 |
| Date of Last Submission: | 20 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Godwin |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The four statutory declarations provided to the Department of Immigration and Citizenship in answer to the Notice to Produce identified as item 6 in the index to the Court Book are granted public interest immunity and no inspection is permitted.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2011
| MOHAMAD YASIN ABRAHIM ABD ELHAMID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the court orders made on 22 February 2011, the solicitors for the Respondent were required to file a bound volume which was to be indexed, labelled and paginated containing all the documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing the Court Book was marked Exhibit ‘A’.
The Applicant is a citizen of Egypt who arrived in Australia in 2004 and married an Australian citizen in Australia in 2006. They honeymooned in Egypt from 16 October 2006 for four months. The Applicant applied for a spouse visa on 29 October 2006. The Applicant’s wife returned to Australia in February 2007. The Applicant did not take up residence in Australia until 19 June 2007. The couple initially lived with the wife’s mother until 19 November 2007 when the couple moved to their own accommodation. The Applicant obtained a job at “Kleen Heat Gas” while the wife did not gain employment until 18 July 2010.
On 18 August 2009 the couple moved to a more suitable residence. The Applicant wife had adult children from a previous marriage. One of those children moved into the couple’s house on 25 June 2010. On 10 August 2010 the Applicant was granted a Spouse (Migrant) (Applicant Onshore) (BC100) Visa. On 23 October 2010, the Applicant returned to Egypt to see his family. His wife did not accompany him as she had only recently started her new job. He had a return ticket to Australia for a flight departing Egypt on 3 December 2010. On 2 December 2010 the Applicant was contacted by the Australian Embassy in Egypt and invited to come to an interview. He was told that he had to attend immediately as his flight was departing the following day. The Applicant attended an interview on 2 December 2010, conducted by Mary Antonio, the Minister’s Delegate.
At the end of that interview the Delegate informed the Applicant that his visa had been cancelled under s.128 of the Migration Act 1958. The Delegate then handed the Applicant a letter dated 2 December 2010 advising him that his visa had been cancelled because:
“you were not in an ongoing relationship with your sponsor at the time of granting your visa and failed to notify the department of your change of circumstances” (CB 9)
The letter notified him that he had until 30 December 2010 to show why the ground of cancellation did not exist and/or to give reasons whey the visa should not have been cancelled. Attached to the letter was a “decision record” of the visa cancellation under s.128 of the Migration Act 1958.
Notice to Produce
The Notice to Produce issued to the Respondent on 22 April 2011 which required the production of four Statutory Declarations which were referred to in the index to the Court Book – Item 6 (CB – Index). The Notice to Produce was in the following form:
Pursuant to regulation 15A.17 of the Rules of the Federal Magistrates Court of Australia you are required to produce at the hearing of these proceedings on 28 April 2011 the following documents:
1. 4 statutory declarations referred to at item 6 of the index to the Court Book.
2. Any covering correspondence which is accompanied by one or more of the 4 statutory declarations referred to in item 6 of the index to the Court Book.
3. Unredacted copies of pages 6 and 7 of the Court Book.
On 18 May 2011, Lynne Maree Gillam, Assistant Secretary Compliance Status Resolution in the Department of Immigration and Citizenship filed an affidavit. Within that affidavit Ms Gillam states:
5. The Department is often provided with information from third parties which is relevant to a non-citizen’s eligibility to meed particular visa requirements (“community information”). It is common for such third parties either to withhold their identity or request that it be concealed from the non-citizen.
6. The Department relies on community information when administering the Migration Act. There is a public interest in protecting persons who provide this type of information in order to bring the Department’s attention to facts and circumstances that have been concealed by non-citizens or are otherwise not known to the Department. In my opinion, the candour with which such persons provide this information would be undermined and diminished if the Department’s ability to keep confidences if compromised.
7. I have inspected the Department’s records as they relate to the Department’s communication with the informant in this particular case. These records show that the informant expressed concerns for their safety and that of their family should their identity be revealed to the Applicant. The Department’s records also show that the Department assured the informant on numerous occasions that their identity would remain confidential.
8. I have reviewed the Exempt Documents and am of the opinion that they have the characteristics of being non-disclosable and immune from disclosure on public interest grounds because their disclosure would, or would tend to:
(a) reveal the identity of a confidential source of information to the Department, being the informant, in the course of its administration of the Migration Act;
(b) potentially found an action by the informant for breach of confidence, particularly given the Department’s assurances of confidentiality;
(c) potentially put in jeopardy the physical safety and well being of the informant, a matter which the informant raised with the Department as a serious concern at the time of providing the relevant information; and
(d) as a result of paragraph (c), hinder or inhibit the ability of the Department to administer the Migration Act insofar as the Department relies on the receipt of information from members of the community, and the likelihood of the follow of this information “drying-up” if sources were subjected to potential harm by virtue of the Department’s inability to adequately maintain their confidences.
Submission on behalf of the Respondent
Ms Francois, appearing for the Respondent produced the documents in a sealed envelope indicating that a claim for public interest immunity is made and the Respondent resists any application for inspection. Mr Godwin, representing the Applicant, pressed for access to the documents. Ms Francois indicated that she read the affidavit of Ms Lynne Maree Gillam in support of the claim of public interest immunity. Mr Godwin indicated that there was no objection in the affidavit being read.
Ms Francois relied on the affidavit of Ms Gillam which indicated that the basis of the claim is that the information was given on a confidential basis and there was a promise to maintain that confidentiality as there was a fear of harm expressed in one of the Statutory Declarations. Ms Francois referred the Court to the decision in Sagar v O’Sullivan [2011] FCA 182 per Tracy J, initially at [41] where his Honour states:
[41] The onus of establishing their cases falls on the Applicants: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; Re IBM Global Services Australia Ltd [2005] FCAFC 66 at [27]. It was, no doubt, with this in mind that they sought discovery of the documents which contained the adverse security assessments and the reasons that those assessments had been made. Their attempt to inspect these documents failed because a judge of this court was persuaded that the documents fell within a class which attracted public interest immunity. No appeal was brought from that decision.
Then at [51] – [57] his Honour states:
[51] If it be the case (as I consider it is) that all of the facts on which the Director-General relied in making his decisions are to be found in the four documents, the next issue which arises is whether any of that material could be disclosed in open court or on a confidential basis to the court consistently with Sundberg J’s ruling that the documents in which it appears are subject to public interest immunity.
[52] The consequences of a successful claim for public interest immunity have been referred to in a number of cases in recent years. In Gypsy Jokers Inc v Cmr of Police (2008) 234 CLR 532 at 556 Gummow, Hayne, Heydon and Kiefel JJ quoted with approval the dictum of Mason J in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61, that:
Intelligence is relevant to security if it can reasonably be considered to have a real connection with that topic, Judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim of Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument — that there is no real connection between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.
Ms Francois submits that there are two different courses that the matter may take. One is that the Respondent might choose to try to put information before the Court on a confidential basis or the other is that the Respondent might choose to withdraw the information altogether on the grounds of public interest immunity. It is submitted that the latter course that has been taken by the Respondent that is that the Court should not see that information and that it should not be disclosed on the basis of public interest immunity. Ms Francois acknowledges however, that the Court is, of course, entitled to test that claim for public interest immunity if properly made. I am advised that if I wished to go to the original documents and determine how that claim is put, I would then be required not to sit to hear any further applications if that claim was upheld, unless Mr Godwin waived any objection to that course.
Ms Francois submits that the administration of justice is preserved by the fact that the claim can be reviewed by the Court but once upheld it binds the next Court not to look at the documents and not to see them. Mr Godwin has indicated that he wishes to have the documents shown to him on a confidential basis and the Minister resists that on the basis that the documents should be, if the claim is upheld, not inspected at all because that interferes with their confidentiality.
In support of this submission, Ms Francois refers the Court to Commonwealth of Australia v Northern Land Council & Anor (1993) 176 CLR 604 at 620 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ where their Honours stated:
There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party.18 No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined.
For these reasons we would allow the appeal.
18 As in Alister v The Queen (1984) 154 CLR, at 469.
Ms Francois submits that it is now common practice that if the Court chooses to inspect documents, then a different judge will then later hear the matter if the claim is upheld. That course is opposed and the Respondent’s claim rises and falls on the basis that if the Court is satisfied that there is a valid public interest immunity claim, there should be no confidential disclosure to the Applicant’s counsel.
Ms Francois referred the Court to the decision in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 in which the Constitutional validity of legislation that enabled the Commissioner of Police to declare certain dwellings to be fortified premises for the purposes of organised crime and to withhold the information upon which those determinations were made. The High Court held that it was not unconstitutional because the Courts still retained a power to determine that the information used by the Commissioner was properly the subject of being made confidential pursuant to that section. The Court made observations generally about public interest immunity at [23] – [24]:
[23] In such a proceeding for judicial review of a decision of the Commissioner of Police to issue a fortification removal notice, an attempt by an Applicant to gain access by discovery or on subpoena to material relied upon by the Commissioner, and thereby support a case of reviewable error by the Commissioner, could be expected, as to at least some of that material, to be met by a claim of public interest immunity.14
[24] For the purpose of ruling on such a claim the Supreme Court might inspect for itself, and without disclosure to the Applicant, the materials in question.15 A successful claim to such immunity (preferably by decision of a judicial officer other than the trial judge) would have the consequence that the material was not admitted into evidence and would be denied both to the Court and the Applicant. The handicap to which an Applicant (and the Court) thereby are subjected appears from the following observations by Mason J in Church of Scientology Inc v Woodward,16 which were made when dealing with matters of national security:
Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, Judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument — that there is no real connexion between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials. 14 See Sankey v Whitlam (1978) 142 CLR 1 at 61–62, as to the protection of police informers by the privilege.15 Sankey v Whitlam (1978) 142 CLR 1 at 46 and 110.16 (1982) 154 CLR 25 at 61
This point is reinforced in the judgment of Crennan J at [178] – [180]
[178] That limited review is the context in which the Commissioner may make a claim, that information is confidential so as to exempt it from disclosure. The Applicant for review does not canvass the merits of the Commissioner’s decision to issue the fortification removal notice. The procedure for exemption has some similarity to a claim for public interest immunity, the common law exclusionary rule of evidence by which information is immune from disclosure in litigation, if disclosure would injure a State interest.
[179] Commonly, claims by a member of the executive to confidentiality or public interest immunity involve balancing the public interest in the administration of justice and the disclosure of all relevant material against the need to exempt certain information from disclosure so as to avoid some particular injury or prejudice to a specified public interest154 such as national security, or as here, combating and reducing the incidence of organised crime (s 7A(a)).
[180] In ruling on a claim for public interest immunity, a court may look at information in documents which is not revealed to a party seeking them,155 and a court may resolve a claim finally without one of the parties being shown certain material relied on for determination of a proceeding.156
154 Sankey v Whitlam (1978) 142 CLR 1; Alister v R (1984) 154 CLR 404. See also Conway v Rimmer [1968] AC 910; Air Canada v Secretary of State for Trade [1983] 2 AC 394.155 Sankey v Whitlam (1978) 142 CLR 1 at 46 per Gibbs ACJ, 110 per Aickin J.156 Alister v R (1984) 154 CLR 404 at 469–470 per Gibbs CJ, Wilson, Brennan and Dawson JJ.
Ms Francois also referred the Court to the decision in Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 72 in the majority judgment per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [24] – [29]:
[24] It follows from this second proposition that the steps the Tribunal was bound to take in order to afford procedural fairness are not necessarily to be identified with the steps that should be taken by a court deciding a matter by adversarial procedures15. Nonetheless, it must be recognised that just as courts mould their procedures to accommodate what has become known as public interest immunity16, so too the content of the Tribunal's obligation to accord the appellant procedural fairness may be informed by those same considerations. No doubt care must be exercised in transposing what is said in the context of adversarial litigation about public interest immunity and its application to those who inform police about criminal activity to the wholly different context of inquisitorial decision-making by the Executive where the subject-matter of the information imparted was not that someone had committed a crime in Australia. Nonetheless, in identifying what the Tribunal had to do in order to give the appellant procedural fairness, it is necessary to recognise that there is a public interest in ensuring that information that has been or may later be supplied by an informer is not denied to the Executive government when making its decisions17.
[25] The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision-maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. It is neither necessary nor appropriate to attempt to state some all-encompassing rules about how administrative decision-makers should deal with information supplied in this way. Not least is that because use of the expression "informer" in the context of administrative decision-making not only does not reveal what kind of information is conveyed by the informant, but also does not reveal what relevance the information may have to the decision that is to be made. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case18.
[26] What is important to notice in the present case, however, is first, that information was supplied confidentially to the Department by someone who sought to remain unknown to the appellant, and secondly, that the information bore on whether the appellant was entitled to a protection visa. The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.
[27] The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.
[28] The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was.
[29] So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa19 as the "problem of confidentiality". Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.
15 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 315 per Gibbs CJ; Allars, "Neutrality, the Judicial Paradigm and Tribunal Procedure", (1991) 13 Sydney Law Review 377.16 Sankey v Whitlam (1978) 142 CLR 1 at 42–43 per Gibbs ACJ, 95–96 per Mason J; Alister v R (1984) 154 CLR 404 at 412 per Gibbs CJ.17 cf Alister v R (1984) 154 CLR 404.18 See, eg, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13–14 [37] per Gleeson CJ, 16 [48] per McHugh and Gummow JJ.19 (1985) 159 CLR 550 at 629.
Ms Francois submits that the affidavit of Ms Gillam should be accepted on the basis that if the Department is not able to protect those who come before it to give information to come before it, having concerns about their safety, they will not do so and that will harm the public interest in the administration of the Migration Act. The way that is to be balanced is to ensure that an Applicant is given the substance of the information and an opportunity to comment on it. The submission by the Respondent is to resist the Applicant’s request for inspection of the documents produced under the Applicant’s Notice to Produce.
Submissions on behalf of the Applicant
Mr Godwin submits that the assertion that the identity of the informant would be apparent from the contents of the documents that are the subject of the public interest immunity claim, is not supported by any evidence of the Minister. There is no evidence to that effect in the affidavit of Ms Gillam. In respect of the interview of the Applicant in Cairo by the Minister’s delegate on 2 December 2010, which appears at p.5 and p.6 of the Court Book, what is relevant to this Application is what appears on p.6, where the claim of non-disclosable information is made in relation to the substance of the material that appears to have been discussed with the Applicant in the course of the interview.
Mr Godwin submits that the Applicant is in Cairo and remains there for the foreseeable future unless this Court provides relief that is being sought and he manages to return to Australia. That provides a context in which the Applicant’s application for his legal representatives to have exclusive access to that information over which the public interest immunity is claimed.
Mr Godwin contends that the Court should look at the material in assessing the claim and that should be distinguished from the position taken by his Honour Jenkinson J in the Northern Land Council case. Consequently, the question is whether or not the Court should allow a confidential inspection of the material by the Applicant’s counsel with access being restricted to that individual in order to be able to present the case on behalf of the Applicant. In support of this contention, Mr Godwin tendered three cases.
In Leghaei v Director General of Security [2005] FCA 1576 per Madgwick J where there was a public interest immunity claim over material relating to breaches of national security. At [100] – [105] his Honour describes the steps taken to ensure the confidentiality of that highly sensitive material:
[100] The considerable efforts made by the representatives of the parties and the Court in relation to the preservation of the confidentiality of certain documents and parts of these proceedings should be documented, for whatever possible value this experience might have for other cases.
[101] At the instigation of the first Respondent, counsel for the Applicant and the Applicant's instructing solicitor, of their own volition, after giving appropriate undertakings as to confidentiality, underwent a process of obtaining a security clearance, in order that they might obtain, in accordance with my direction or by consent (as the case may be), access to the confidential material put before the Court. The granting of such access to counsel for the Applicant and his instructing solicitor proved, as one would expect, a beneficial arrangement.
[102] As proposed by the first Respondent, employees and legal representatives of the first Respondent facilitated the transport and storage of the confidential material, including the confidential transcripts and associated court documents.
[103] A secure computer, printer and office facilities were provided for the Applicant's legal representatives to produce their confidential submissions, and a secure computer, printer, briefcase and appropriate safe were provided to the Court for the purpose of storing documents and preparing the judgment.
[104] Arrangements were made for the attendance of an appropriately security-cleared court officer and transcript staff to assist with the closed court proceedings. Having complete confidence in my Associate, I declined to direct that she undergo a security clearance process, although she was willing to consent to such a procedure. She was, however, as indeed all in-Court staff were, closely briefed in relation to procedures as to accessing confidential information and storage procedures etc to allow her to assist me with the preparation of this judgment.
[105] The publication of these reasons was withheld until any alleged security concerns in relation to the release of the public part of this judgment had been addressed.
Mr Godwin submits that in this matter we have the affidavit of Ms Gillan and at its highest she states:
The material could potentially put in jeopardy the physical safety and wellbeing of an informant.
(Affidavit of Ms Gillam para.8(c))
Mr Godwin then referred to my decision in Kumar v Minister for Immigration and Citizenship [2007] FMCA 995 where at para.[3] I made a non-publication order pursuant to s.61 of the Federal Court of Australia Act 1976 that access be limited to counsel in respect of both parties.
Although this was criticised by the Federal Court in Kumar v Minister for Immigration and Citizenship[2008] FCAFC 166 (not publicly available due to effective non-publication order), there was nothing said in Minister for Immigration and Citizenship v Kumar [2009] HCA 10 that specifically criticised this course of action.
Mr Godwin also referred to the decision in Le v Minister for Immigration and Citizenship [2008] FMCA 1209 per Scarlett FM where his Honour addressed the issue of non-disclosable information and at para.[15] his Honour stated:
[15] At the hearing, two emails were produced about the information from the community source. I was prepared to allow the Applicant’s solicitor access to the documents but I directed that they be kept in a sealed envelope and not to be disclosed without leave. A short summary of the first email is that it is an account of a telephone conversation between an anonymous woman claiming to be calling from within Vietnam and an officer of the Department of Foreign Affairs and Trade. The woman alleged that the Applicant’s brother had hired a man to sponsor the Applicant to migrate to Australia. The woman provided the names of the Applicant and her brother and the city where the Applicant resides.
Mr Godwin submits that he disagrees with the contention advanced by Ms Francois that documents attract either public interest immunity or confidentiality orders. Mr Godwin submits that an alternative approach should be adopted in assessing a claim of public interest immunity as it is a balancing exercise, in the interest of justice, to ensure the parties have all the information necessary for them to properly put their case before the Court. Mr Godwin submits, however, that in this balancing exercise the Court can accommodate both sides by protecting the informant and making sure the material is confined to legal advisors to ensure that the Applicant himself never gets access to it or any indication of what it says. On the other hand, the administration of justice allows the Applicant’s representative sufficient access to enable him to address the Court in a meaningful way in support of their case. Mr Godwin argues that confidentiality orders can be sufficient to address the public interest immunity claim. Mr Godwin indicated that if it is the view of the Court that the documents should be inspected to resolve this application, his instructions are not to press for or raise any objection in respect to me continuing to hear this case.
Inspection of documents
After reviewing the contents of the Court Book and particularly the documents in which the redactions appear (CB 6), together with a review of the authorities advanced by both counsel, I formed the view that it was appropriate to review the documents subject to the public interest immunity claim. Prior to undertaking this step I noted the distinction in the authorities quoted between issues of national security which potentially could involve a large number of individuals, compared to the authorities which address the issue of individual informants. This distinction becomes insignificant where the identity of an informant places the individual potentially in a position of great personal harm should their identity become known. Similarly, if by the way the case is presented it could lead to an inference as to the identity of the informant.
I acknowledge the observation made by Mr Godwin in respect of the content of Ms Gillam’s affidavit in that she suggests that the “material could potentially put in jeopardy the physical safety and wellbeing of the informant” is the highest the claim could be put. While undertaking to review of all of the evidence before the Court, I formed a view of the possible identity of the informant. The Applicant had been informed during the initial interview at the Australian Embassy in Cairo on 2 December 2010 that the information had been provided by an informant and the Applicant was instructed to comment on this, providing evidence to support his claim. Consequently, it is not an issue that there was an informant but specifically, the identity of that informant.
After examining the four statutory declarations I have formed the view that for an abundance of caution the document should not be released and the Application for public interest immunity should be granted. This decision is not to be taken as any form of criticism of Mr Godwin who requested access on a confidential basis for his review only and no reference to his client or parties facilitating his brief. There is material within the evidence before the Court that does provide the basis for drawing an inference as to the identity of the informant as referred to by the Minister’s Delegate Mary Antonio in Egypt on 2 December 2010. This cannot be avoided but does not detract from the gravity of the public interest immunity claim.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 26 May 2011
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