Haneef and Department of Immigration and Citizenship
[2008] AATA 587
•8 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1972
GENERAL ADMINSITRATIVE DIVISION ) Re MOHAMED HANEEF Applicant
And
DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Justice Tamberlin, Presidential Member
Dr B H McPherson CBE, Deputy President
Date8 July 2008
PlaceBrisbane
Decision Document 8 is exempt from disclosure under s 36(1) of the Freedom of Information Act 1982 (Cth). Documents 38, 40, 46, 52 and 56 are not exempt. The decision under review is otherwise affirmed.
..............Signed.................
Justice Tamberlin, Presidential Member
CATCHWORDS – freedom of information – applicant seeks disclosure of documents relevant to cancellation of visa – statutory interpretation – s 36(1) exemption – whether disclosure would reveal deliberative processes involved in the functions of an agency – whether disclosure contrary to the public interest – decision under review affirmed in part.
…
RELEVANT ACTS:
Freedom of Information Act 1982 (Cth): ss 3, 36(1), 58
Crimes Act 1914 (Cth): ss 3W(1), 3W(2), 23CA, 23CB, 23DA
Migration Act 1958 (Cth): ss 147, 499, 501(3)(b), 501(6), 501C, 503A, 503D
…
CITATIONS
Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255
Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414
…
REASONS FOR DECISION
8 July 2008 Justice Tamberlin, Presidential Member
Dr B H McPherson CBE, Deputy President1. This is an application by Dr Haneef for review of a decision by the Department of Immigration and Citizenship (“the Department”) to exempt from disclosure six documents sought by Dr Haneef pursuant to the Freedom of Information Act 1982 (Cth) (“the FoI Act”). The exemptions are claimed under s 36(1) of the FoI Act, which provides that a document is exempt from disclosure if its disclosure “(a) would disclose matter in the nature of, or relating to, an opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or the Government of the Commonwealth; and (b) would be contrary to the public interest.”
Background
2. The decision to claim exemption was made on 24 April 2008. Under cover of a letter of 24 April 2008, a First Assistant Secretary in the Migration and Temporary Entry section of the Department, Mr Peter Vardos, advised Maurice Blackburn Lawyers, solicitors for Dr Haneef, of the claim for exemption.
3. The original request by Dr Haneef called for documents relating to the cancellation of his Subclass 457 Business (Long Stay) (Class UC) visa, which had an expiry date of 30 August 2010; the decision to detain Dr Haneef in 2007 and to his ongoing detention at that time; the issue of a Criminal Justice Stay Certificate (and any other Criminal Justice Certificate) in respect of him; and any documents recording or relating to communications between Government Departments concerning Dr Haneef. When making his decision on Dr Haneef’s request, Mr Vardos recorded that he was mindful that disclosure of various documents had been separately made under the FoI Act by the Australian Federal Police and by the Attorney-General’s Department. Mr Vardos also provided to Dr Haneef a “Decision Record”, which set out his decision together with findings on material questions of fact, and references to evidence or other material on which the decision was based.
4. In relation to the documents in respect of which the exemption is claimed under s 36(1) of the FoI Act, the decision record reads as follows:
“Exemptions Under Subsection 36(1) of the FOI ACT
The documents I have exempted under subsection 36(1) are internal working documents. The documents to which you have sought access are documents which contain advice and recommendations prepared for the deliberative processes whose disclosure would be contrary to the public interest.
In coming to this view, I considered the following factors in favour of disclosure:
·There is a general public interest in making information held by the Government accessible to the public;
·A person or the general public is entitled to have access to documents containing decisions which affect them. Disclosure may reveal the reasons for decision; and
·The need for openness and accountability of the Department’s operations.
On the other hand, I considered the following in favour of non-disclosure:
·Advice to Ministers or other senior officers or free expression of opinion, if disclosed, would hamper the flow of advice from bureaucrats or others if they thought this advice could be subject to later scrutiny;
·Disclosure would mean officers would be reluctant to record sensitive issues; and
·Disclosure would inhibit full and frank discussions and may leave some people reluctant to record an opinion or provide advice.
On balance, I have decided that the public interest to exempt such documents outweighs the public interest in disclosing documents and there [sic] exempt them from disclosure under subsection 36(1) of the FOI Act.”
5. Under s 58 of the FoI Act, this Tribunal has the power to review any decision that has been made by an agency or a Minister in respect of a request for disclosure under the FoI Act, and also to decide any matter in relation to the request that could have been decided by the agency or Minister. Any such decision of the Tribunal under s 58 has the same effect as a decision of the agency or Minister. The issue for determination by the Tribunal in this case, therefore, is whether the claim of exemption under s 36(1) of the FoI Act in relation to the six documents still in dispute is an appropriate claim because disclosure would not only inappropriately reveal deliberative processes involved in the functions of the Department but also be contrary to the public interest.
How the issue arises
6. The factual background to Dr Haneef’s litigation here in Australia is described in detail in the Full Federal Court’s decision in Minister for Immigration and Citizenshipv Haneef (2007) 163 FCR 414. We reiterate below the salient points.
7. Dr Haneef is an Indian national. He was born on 29 September 1979. He is married and has a daughter who was born on 26 June 2007. In April 2002, he graduated Bachelor of Medicine from a medical college in Bangalore. He completed an internship in 2003 and then travelled to the United Kingdom where he worked in a number of hospitals between July 2004 and August 2006. He returned to India and then decided to undertake postgraduate training in Australia.
8. Dr Haneef and his wife arrived in Australia on 11 September 2006. He entered on a Subclass 457 Business (Long Stay) (Class UC) visa. The visa expiry date was 30 August 2010. He secured employment with the Gold Coast Regional Health Services at Southport Hospital. In the middle of March 2007 his wife, who was then pregnant with their first child, returned to India so she would have family support during the birth. The couple did not have any family or other support networks in Australia.
9. On 29 June 2007, an event occurred in London which began a chain of events that led to the cancellation of Dr Haneef’s visa and his confinement in immigration detention. At about 1.40 am on 29 June 2007, a bomb was discovered in a car parked outside a nightclub in Haymarket. The device, described as a vehicle-borne improvised explosive device, was manually defused. At about 8.00 pm on the same day, another car was found in Park Lane in Mayfair containing a similar device which was also defused. At about 3.15 pm on 30 June 2007, a Jeep Cherokee was driven into the front doors of Terminal One at Glasgow Airport in Scotland. The vehicle burst into flames. Two persons were found at the scene.
10. Arising out of these events, authorities in the United Kingdom arrested seven persons on suspicion of being, or having been, concerned in the commission, preparation or instigation of an act of terrorism contrary to s 41 of the Terrorism Act 2000 (UK). Advice was provided to the Australian Federal Police (“AFP”) by the Metropolitan Police Service, Counter Terrorism Command, that Dr Haneef was a person of interest to their investigation because of his alleged association with two of the suspects detained by the authorities in the United Kingdom.
11. On 2 July 2007 at about 11.00 pm, Dr Haneef was arrested by the AFP and members of the Queensland Police attached to the Joint Counter Terrorism Team (Brisbane). Under s 3W(1) of the Crimes Act 1914 (Cth), a constable may arrest, without warrant, a person for an offence if the constable believes on reasonable grounds that the person has committed or is committing the offence, and that proceeding by summons would not achieve one or more of a number of specified purposes. Section 3W(2) provides that if a person has been arrested for an offence under s 3W(1) and, before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds that the person committed the offence or that holding the person in custody is necessary to achieve one of the specified purposes, then the person must be released.
12. Under s 23CA of the Crimes Act, a person arrested for a terrorism offence may be detained for the purpose of investigating whether the person committed the offence or whether the person committed another terrorism offence that he or she is reasonably suspected of having committed. The detention period cannot extend beyond the end of the “investigation period” prescribed by the section. That period is four hours after the arrest, unless extended under s 23DA (s 23CA(4)). An investigating official may apply at or before the end of that time, for a period to be specified during which the questioning of the person is reasonably suspended or delayed (s 23CB). On 3 July 2007, a magistrate authorised an extension of the investigating period for 48 hours.
13. On 5 July 2007, in the Brisbane Magistrates Court, Magistrate Gordon heard an application brought by the AFP for an order specifying the reasonable time during which suspension or delay of questioning could be disregarded pursuant to s 23CB. His Honour made the order which was sought. On 9 July 2007, the AFP brought a second such application. It was made at about 4.00 pm. Mr Stephen Keim SC appeared on behalf of Dr Haneef. His Honour adjourned the application to 11 July 2007. At the resumed hearing, Mr Thomas Howe QC appeared as counsel for the AFP. Magistrate Gordon reserved his decision to 13 July 2007 on which date Mr Howe QC informed him that the AFP had decided not to proceed with the application.
14. On 14 July 2007 at about 9.30 am, Dr Haneef was charged in the Brisbane Magistrates Court before Magistrate Payne with the following offence:
“On or about the 25th of July 2006 in the United Kingdom, Mohamed HANEEF did, contrary to section 102.7(2) of the Criminal Code (Cth) intentionally provide resources, namely a subscriber information module (SIM) card to a terrorist organisation consisting of a group of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organisation was a terrorist organisation.”
15. An immediate application for bail was made. The magistrate reserved her decision until 9.30 am on 16 July 2007. On 16 July 2007 at about 10.15 am, she announced her decision, which was to grant Dr Haneef bail. She did so on condition that he:
(a)post a surety in the amount of $10,000, or two sureties in the amount of $5,000;
(b)report to the officer in charge, Southport Police Station, each Monday, Wednesday and Friday, between the hours of 6.00 am and 10.00 pm unless he received the prior written consent of the Commonwealth Director of Public Prosecutions to report elsewhere or at such other times;
(c)notify the Commonwealth Director of Public Prosecutions of a residential address within 24 hours of his release from custody and thereafter to advise in writing the Commonwealth Director of Public Prosecutions within 24 hours of any change of residential address;
(d)not apply for any passport; and
(e)not attend any point of international departure, and not leave Australia.
16. On the same day Mr Peter White, the Assistant Secretary, Character Assessment and War Crimes Screening of the Department sent a minute to the Minister for Immigration and Citizenship (“the Minister”) to which was attached an Issues Paper. The stated purpose of the minute was to provide information on Dr Haneef’s case and to seek the Minister’s decisions on whether Dr Haneef did not pass the character test under s 501(6) of the Migration Act 1958 (Cth) (“the Act”), whether it was in the national interest to cancel his visa under s 501(3)(b) of the Act and whether, in those circumstances, his visa should be cancelled. The Minister signed a decisional option at the end of the Issues Paper in the following terms:
“I reasonably suspect that Dr HANEEF does not pass the character test AND I am satisfied that cancellation of the visa is in the national interest. I have decided to exercise my discretion under subsection 501(3)(b) to cancel his Subclass 457 Business (Long Stay) (Class UC) visa. My reasons for my decision will be set out in the Statement of Reasons.”
17. Mr Peter Russo, Dr Haneef’s solicitor, was informed at about 1.45 pm by members of the media that the Minister was about to hold a press conference to announce the cancellation decision. His firm had not received any notice of the cancellation decision before the Minister’s announcement at the press conference held on that day.
18. At 3.45 pm on 16 July 2007, Adrian McCabe, the Queensland Deputy State Director of the Department, accompanied by two staff from his office, went to the Brisbane Watch House and delivered the following documents to Dr Haneef:
1.a Notice of Visa Cancellation under s 501(3) of the Act dated 16 July 2007;
2.a copy of s 501 of the Act;
3.a copy of Directions made under s 499 of the Act;
4.a Minute to the Minister dated 16 July 2007 – this was the Issues Paper;
5.the Minister’s Statement of Reasons dated 16 July 2007;
6.a copy of s 503A of the Act; and
7.a copy of s 501C of the Act.
When giving the documents to Dr Haneef, Mr McCabe drew his attention to his right to make representations to the Minister about the revocation of the decision as set out in the final paragraphs of the Notice of Visa Cancellation. Mr Russo was present at the time. The Notice of Visa Cancellation was signed by Mr White.
19. Dr Haneef and his solicitors decided not to post bail. Their objective was that Dr Haneef should remain in the custody of the Queensland Department of Corrective Services rather than be taken into immigration detention.
20. On 17 July 2007, the Attorney-General issued a Commonwealth Criminal Justice Stay Certificate under s 147 of the Act. It recited that Dr Haneef was an unlawful non-citizen who was to be, or was likely to be, deported from Australia and that the Attorney-General considered that he should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth. The Attorney-General certified in the document “that the stay of the removal or deportation of Mohamed HANEEF (also known as ATHAR) from Australia is required for the administration of criminal justice.”
21. On 18 July 2007, Dr Haneef’s solicitors filed an application for an order in the nature of certiorari to quash the Minister’s decision to cancel his visa. He also sought an order in the nature of prohibition and/or an injunction to restrain the Minister from acting upon the cancellation of the visa. It was a ground of the application that the Minister had misconstrued the expression “association” in s 501(6)(b) of the Act. It was also a ground that he had failed to take into account relevant considerations, had taken into account irrelevant considerations and had made the decision for an improper purpose. The alleged improper purpose was to have Dr Haneef detained when he had been granted bail.
22. On 27 July 2007, the charge against Dr Haneef was dismissed when the Commonwealth Director of Public Prosecutions announced that he would offer no evidence. To that point Dr Haneef had been held in the custody of the Queensland Department of Corrective Services. Upon the dismissal of the charge he was released from that custody and immediately taken into immigration detention by officers of the Department.
23. On the evening of 27 July 2007, Dr Haneef was informed by an officer of the Department that he could elect to leave Australia voluntarily or remain pending the hearing of his judicial review application which had been set down for 8 and 9 August 2007. He decided to leave Australia voluntarily and did so on 28 July 2007. The Commonwealth Criminal Justice Stay Certificate was cancelled prior to his departure.
24. Dr Haneef returned to Bangalore. He informed his solicitor that he wished to continue with his application to have the decision to cancel his visa set aside. The decision had affected his reputation and would affect his ability to travel to other countries in the future. He also told his solicitor that he wished to return to Australia and to his position as a medical doctor.
25. The application to quash the Minister’s decision came on for hearing before Spender J on 8 and 9 August 2007, and on 21 August 2007 his Honour delivered judgment. His Honour made an order in the nature of certiorari quashing the Minister’s cancellation decision, an order restraining the Minister from acting upon the cancellation of the visa and an order that he pay Dr Haneef’s legal costs. His Honour also made a declaration that when Dr Haneef departed Australia on 27 July 2007 his immigration status was that of a lawful non-citizen. His Honour stayed his own orders for a period of 21 days and directed that the order of certiorari not issue from the Registry until 21 days from 21 August 2007. As the Full Court noted in Haneef 163 FCR 414, there is recent authority that a declaratory order cannot be stayed pending appeal: see Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255.
26. On 5 September 2007, the Minister lodged an appeal to the Full Court from the judgment of Spender J.
27. On 21 December 2007, the Full Court delivered its judgment on the appeal. The appeal was dismissed.
28. On 13 March 2008, the Attorney-General appointed Mr John Clarke QC to conduct a judicial inquiry (“the Inquiry”) into Dr Haneef’s case, the terms of reference being to examine and report on:
“1. the arrest, detention, charging, prosecution and release of Dr Haneef, the cancellation of his Australian visa and the issuing of a criminal justice stay certificate;
2. the administrative and operational procedures and arrangements of the Commonwealth and its agencies relevant to these matters;
3. the effectiveness of cooperation, coordination and interoperability between Commonwealth agencies and with state law enforcement agencies relating to these matters; and
4. having regard to (a), (b) and (c), any deficiencies in the relevant laws or administrative and operational procedures and arrangements of the Commonwealth and its agencies, including agency and interagency communication protocols and guidelines.”
29. The Inquiry was asked to report by 30 September 2008. Advertisements called for submissions to reach the Inquiry by 16 May 2008 and a preliminary hearing of the Inquiry was held on 30 April 2008. Mr Clarke QC provided a preliminary indication of the manner in which he proposed to conduct the Inquiry and invited interested parties to make brief statements. He noted that, at that stage, the Inquiry was in the early stages of gathering relevant documents and identifying persons to be interviewed, and he indicated that he had received assurances from each of the relevant governmental agencies that they would “fully cooperate” with the Inquiry and would provide him with all relevant documents and information and with access to any personnel he wished to interview.
30. On the hearing of the application to this Tribunal, Mr Vardos gave evidence that, with the exception of two documents, all the documents which are the subject of Dr Haneef’s request under the FoI Act have been voluntarily provided in full by the Department to the Clarke Inquiry. The two documents not supplied are believed to contain information provided to the Department by a “gazetted agency” on a confidential basis to assist the Minister to make a decision under s 501 of the Act, and s 503D of the Act prevents “an authorised migration officer” from disclosing the gazetted agency’s details (as would have occurred if these two documents had been supplied to the Inquiry), although the relevant gazetted agency is negotiating the disclosure of the documents to the Inquiry.
31. In Mr Vardos’ decision of 24 April 2008, the claims for exemption were made in respect of 282 documents. Subsequently, the claims for exemption were removed in relation to 141 documents and the Department stated that it would consider its position in relation to the others. Shortly before the hearing, the Department indicated that 73 documents were duplicates, and Dr Haneef did not pursue release of them. By the time the Tribunal hearing was completed, the claims for exemption, based solely on s 36(1) of the FoI Act, applied to only six documents.
Submissions and findings
32. To succeed in its claims for exemption, the Department must show that disclosure of the documents in question: (i) would disclose matter in the nature of or relating to an opinion, advice or recommendation obtained, prepared or recorded or consultation or deliberation that has taken place, in the course of or for the purposes of the deliberative processes involved in the functions of a governmental agency or Minister; and (ii) would be contrary to the public interest.
33. The onus being on the Department to make good the exemption under s 36(1) of the FoI Act, it is appropriate first to record the Department’s general submissions as to its interpretation of that provision.
34. The Department submits that the documents contain advice that was given in the course of and for the purpose of the deliberative processes involved in the functions of the Minister. The Department submits that the expression “deliberative processes” is a reference to the agency’s or Minister’s “thinking processes”. Understanding the expression, it is said, involves weighing up or evaluating competing considerations that could have a bearing on the relevant course of action, decision or proposal. The six documents, says the Department, are concerned with both the policy making processes and the non-policy decision making processes involved in agency, ministerial or governmental functions. The Department accepts that the concept of the “deliberative processes” does not extend to every document prepared by the Minister or the Department in the course of discharging its functions, but insists that a pattern of particular facts considered by a decision-maker can, in and of itself, be part of a deliberative process. The Department also accepts that information which goes to the implementation of a decision once it has already been made is not part of the “deliberative processes” of an agency or Minister as there is no further deliberation required in order to reach the relevant decision.
35. In the present case, the six documents in dispute (which we shall refer to, as counsel did, as Documents 8, 38, 40, 46, 52 and 56) all pre-date the hearing on 14 July 2007 before Magistrate Payne in the Brisbane Magistrates Court. They generally involve matters such as the formulation and assessment of options which the Minister might consider in order to decide whether to cancel Dr Haneef’s visa. We consider each document in turn.
Document 8
36. Document 8 is described as a draft options paper. It was drafted on 5 July 2007, at approximately the same time as the hearing in the Brisbane Magistrates Court before Magistrate Gordon. The claim for exemption under s 36(1) of the FoI Act is on the basis that the document reveals the deliberative processes of a range of Australian agencies, and that disclosure would be contrary to the public interest. The Department says that Document 8 discloses the thought processes of an officer of the Department in relation to the way in which the functions of government agencies might operate in the present circumstances, and that in any event the document was drafted within the Department and was not used to inform further governmental or ministerial action. The factual information in the document is said to be inextricably intertwined with non-factual information. This, it is argued, is part of a preliminary process of eliciting views or brainstorming with the intention of formulating options which the Minister might employ in dealing with Dr Haneef’s case. Due to the nascent nature of the advice contained in Document 8, the Department describes the contents of the document as “mere musings”.
37. The evidence adduced by the Department in relation to Document 8 refers to the likely adverse effects of exposing the document to publicity. Chief among these adverse effects is that advisers, investigators and officers of government agencies would be reluctant to present full and frank advice to decision-makers during deliberations if they knew or feared that such advice would be disclosed to the public as a matter of course.
38. The Department also submits that Document 8 contains only preliminary and tentative opinions, and it would not assist the public in any endeavour to understand how the ultimate decision was reached. Moreover, it is said that the document will not assist anyone, including Dr Haneef, to make comprehensive and helpful submissions to the Inquiry or any other independent body, especially since the document will be furnished in confidence to the Inquiry in order to assist it to carry out its functions. Against these arguments, it is acknowledged that the express purpose of the FoI Act is to make information as far as is possible available to the Australian public, and to limit the exceptions to that objective to those which are necessary for the protection of essential public interests: see s 3 of the FoI Act. It is apparent from the use of the expressions “essential” and “necessary” in s 3(1)(b) that the exemptions are intended to be of a limited nature and that unwarranted withholding of disclosure can result in significant detriment to the public interest.
39. Contrary to these submissions, Dr Haneef says that there is a salutary effect of exposing departmental documents to publicity. This consideration, it is said, offsets the contention that the candour and frankness of officers and agencies will be reduced as a result of any fear of premature discourse, because such officers and agencies will simply take greater care to justify or qualify the options which they recommend for consideration during the relevant deliberative processes. Dr Haneef also says that, as he is the person most affected by the decision at hand, disclosure of the documents will be in his personal interests, as it will allow him to fully understand the reasons and considerations behind that decision and also equip him to make more focused and useful submissions to the Inquiry. In particular, the Inquiry will benefit from such disclosure, as Dr Haneef’s better informed submissions will allow it to conduct its investigations more effectively and efficiently. All of these matters would also be in the public interest, promoting as it would openness of administration and a more constructive and effective Inquiry.
40. In our view, Document 8 comes within the scope of s 36(1)(a) of the FoI Act. It discloses matter in the nature of or relating to the giving of advice or opinions or recommendations for the purpose of participating in and enriching the deliberative processes involved in the Minister’s ultimate decision to cancel Dr Haneef’s visa. Document 8 gathers information, and expresses some very preliminary or nascent opinions about the import of that information. It does so for the purpose of formulating, at some future stage, recommendations and options to be presented to the Minister. Document 8 contains matter relating to deliberative processes which bear on the wisdom, expediency or appropriateness of a particular course of action. It does so by raising, through an exercise of comparison, a possible range of actions. Given the breadth of the language in s 36(1)(a), it is clear that the contents of this document are within the compass of that subsection. This conclusion is supported by two further observations. The first is that the material contained in the document cannot be said to relate only to matters of fact or to matters not concerning the relevant deliberations, such as those matters which are properly characterised as procedural or administrative steps in the processing of an application. Secondly, the document was created on 5 July 2007, which was, in the contemporary context where circumstances were developing rapidly, quite some time before the eventual decision by the Minister to cancel Dr Haneef’s visa. This point demonstrates that Document 8 was drafted as a very preliminary piece of consideration, operating not as the culmination of research and consideration, but as the starting point of such.
41. In relation to the second limb of s 36(1) of the FoI Act, we find that disclosure of Document 8 would be contrary to the public interest. In comparison with the documents which remain the subject of a claim for exemption under s 36(1), the content of Document 8 will more readily be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case and the way in which various Australian governmental agencies and officers handled it. Document 8 was drafted at a time when Dr Haneef release from AFP detention was imminent, and the Department’s response to that release was not yet formulated. The preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond – all of these characteristics of the document demonstrate that disclosure would more readily lead to its misconstruction in the public arena than the other documents considered below.
42. Accordingly, we have reached the conclusion that this document qualifies for exemption under s 36 of the FoI Act.
Documents 38 and 40
43. Documents 38 and 40 are identical in substance. They differ only because the signature of the authorising officer is present on one, but not the other. We shall consider these two documents together.
44. Documents 38 and 40 are dated 9 July 2007. They are from a senior officer of the Department to the Chief of Staff to the Minister. The exemption under s 36(1) of the FoI Act is claimed for the whole of each document. The documents differ from Document 8 in that they set out three specific options. They are not in any way expressed to be tentative or requiring further investigation and information before the feasibility of those options can be confirmed. The consideration and evaluation of these options is directly relevant to the final decision. Compared to Document 8, Documents 38 and 40 are closer in time to the date of the Minister’s decision to cancel Dr Haneef’s visa, and they more directly relate to the provision in the Act pursuant to which the visa was cancelled. Each option canvassed in the documents is evaluated for its respective merits and demerits. Accordingly, we find that Documents 38 and 40 are clearly an important part of the deliberative process which the Department and the Minister engaged in before selecting the final course of action in respect of the cancellation of Dr Haneef’s visa.
45. Notwithstanding the finding that these documents form part of the deliberative process, we find that no convincing evidence has been presented to the Tribunal by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure of the documents. At most, the Department has referred to a general apprehension that its officers may resort to a lack of candour if concerned that their draft opinions and the various options that they propose might later be subjected to public scrutiny. This, in our view, does not in the case of Documents 38 and 40 demonstrate that it would be contrary to the public interest for the documents to be disclosed. In comparison with Document 8, these two documents (as with the remaining three documents discussed below) are less tentative and more precise in their terms, and they are less likely to be misconstrued if disclosed. Accordingly, it cannot be said that disclosure Documents 38 and 40 would be contrary to the public interest in the way that disclosure of Document 8 would be. We find that Documents 38 and 40 are not exempt.
Document 46
46. Exemption is claimed under s 36(1) of the FoI Act for the whole of Document 46. It is addressed to the Minister, and provides an update on the options which may be pursued in relation to the cancellation of Dr Haneef’s visa. It differs from the documents discussed above because it contains additional material setting out certain scenarios which may develop precedent to or consequent upon the decision of Magistrate Payne in the Brisbane Magistrates Court. The document is dated 12 July 2007, which is only three working days before the decision to cancel Dr Haneef’s visa was made on 16 July 2007. This document, in our view, falls within the scope of s 36(1)(a) of the FoI Act because the consideration of options, including those which are not pursued and the reasons given for not pursuing them, are central to the deliberative process.
47. That being said, we are again of the view that the Department has not provided to the Tribunal any specific focused evidence as to any significant harm which might be caused if this document is disclosed. For the same reasons we give in relation to Documents 38 and 40, we find that Document 46 is not exempt under s 36(1) of the FoI Act as its disclosure would not be contrary to the public interest.
Documents 52 and 56
48. Documents 52 and 56 are virtually identical. They do not differ in substance. The differences between the two comprise only minor points of expression and formatting. Accordingly, we shall consider these two documents together.
49. Documents 52 and 56 were both created on 13 July 2007. Only parts of each document are the subject of exemption claims. They are described as drafts of the Statement of Reasons eventually given by the Minister in relation to the cancellation of Dr Haneef’s visa on 16 July 2007 (see [16] above). The Department submits that the fact that these documents are in draft form justifies a finding that disclosure would not be in the public interest. The same general objection regarding the discouragement of candour and frankness is also advanced by the Department, but again it is not supported by any specific evidence which indicates that publication of these documents would be adverse to the public interest. Moreover, we are of the view that there is a very cogent public interest in having the unexpurgated reasons for cancellation of the visa made public, and that this is a consideration which should be given due weight. Far from accepting the Department’s submission that disclosure of the documents would run contrary to the public interest, we find that the public interest in respect of these documents warrants disclosure.
50. Accordingly, those parts of Documents 52 and 56 in respect of which an exemption is claimed are not exempt and should be made available.
Conclusion
51. For the above reasons, we conclude that Document 8 should be exempt from disclosure pursuant to s 36(1) of the FoI Act, but that Documents 38, 40, 46, 52 and 56 are not exempt and should therefore be disclosed. Finally, as requested by counsel, we also order that the decision under review be otherwise affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of the Hon. Justice Tamberlin, Presidential Member, and Dr B H McPherson CBE, Deputy President.
Signed: .........Signed.....................................................
Lucas Bastin, Associate to the Hon. Justice Tamberlin
Dates of Hearing: 17 and 18 June 2008
Date of Decision: 8 July 2008
Counsel for the Applicant: Mr D Rangiah and Ms N Kidson
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the Respondent: Mr R Beech-Jones SC and Mr S McLeod
Solicitor for the Respondent: Australian Government Solicitor
2