Hu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 86
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86
File number(s): SYG 265 of 2023
SYG 263 of 2023Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 February 2024 Catchwords: MIGRATION – Ex Tempore – a claim made for public interest immunity relating to certain information held by the Commonwealth Legislation: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ss 134
Federal Circuit and Family Court of Australia Act 2021 – ss 231, 229
Migration Act 1958 (Cth) ss 131, 128, 102(b)
Cases cited: Alister v The Queen [1984] 154 CLR
Assistant Commissioner Condon v Pompano Pty Limited [2013] 252 CLR 38
Attorney General of New South Wales v Stuart (1994) 34 NSWLR 667
Australian Statistician v Leighton Contractors Pty Limited [2008] WASCA 34
Commonwealth v Northern Land Council [1993] HCA 24
El Ossman v Minister for Immigration and Border Protection [2017] 636 FCA
Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) ALR 45
Jackson v Wells [1985] FCA 606
Jaffarie v Director-General of Security [2014] FCAFC 102
MacAlister v The Queen [1990] HCA 15
New South Wales Commissioner of Police v Attorney General at New South Wales [2022] NSWSC 595
Parkin v O’Sullivan [2009] FCA 1096
Regina v Bebic (NSWCA, Samuels JA, Nagle CJ and Cantor J, 27 May 1982)
Relationships Australia v Pasternak [1996] 20 Fam LR 604
RE Timor Sea Oil & Gas Australia Pty Limited (in liquidation) [2020] NSWSC
Sankey v Whitlam 1978] HCA 43
SDVC v The Director-General of Security [2022] HCA 32
Division: Division 2 General Federal Law Date of hearing: 1 February 2024 Place: Parramatta Number of paragraphs: 32 Counsel for the Applicants: Mr Lenehan & Ms Baw Solicitor for the Applicants: Vision Legal Pty Ltd Counsel for the Respondent: Dr Renwick SC and Mr Kaplan Solicitor for the Respondent: The Australian Goverment Solicitor ORDERS
SYG 265 of 2023
SYG 263 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAO CHANG
Applicant
XIAO HU
Applicant
AND: MINISTER FOR IMMIGRATION, CITZENSHIP AND MULTICULUTRAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for access to the protected Affidavits of Mr Geoffrey Quinn is dismissed.
2.The matter is listed for further Hearing at 9:30am on 16 February 2024.
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
EX TEMPORE, REVISED FROM TRANSCRIPTJUDGE D HUMPHREYS
INTRODUCTION
This judgment concerns a claim for public interest immunity (‘PII’) relating to certain information held by the Commonwealth in relation to both applicants. The history of the matter is somewhat complex and needs to be set out in detail. The applicants are husband and wife. They are Chinese nationals. The applicants apparently met in Australia and married here many years ago. Both applicants were granted permanent residency status in Australia in 2009. Both applicants apparently applied to become Australian citizens in 2017 but were refused citizenship on character grounds. The Court is not aware of any action that has been taken to cancel the applicants’ permanent residency visas.
Both Ms Hu and Mr Chang have previously been the holders of Resident Return subclass 155 visas. These visas allow them to leave Australia and then subsequently return to Australia on the basis of their permanent residency status. Ms Hu has two recorded criminal convictions. In 2015 she was convicted of common assault, fined $500, and placed on a section 9 bond for a period of 12 months. In 2018 she was again convicted of common assault. She was placed on a community correction order for a period of 18 months which concluded in April 2020.
Mr Chang has three criminal convictions. In 2008 he was convicted of a common assault and fined $300. He subsequently appealed to the Sydney District Court, where the conviction was overturned and he was placed on a section 10 bond for a period of 12 months with no conviction being recorded. In 2015, he was convicted of assault occasioning actual bodily harm. He was fined $1500, placed on a section 9 bond to be of good behaviour for two years. In 2018 he was again convicted of assault occasioning actual bodily harm and placed on a two year community correction order to conclude in October 2020.
Both applicants have deposed to being the owners of two brothels located in Surry Hills in Sydney. The applicants have conceded that the brothels have been the subject of inspections by Australian Border Force officials in 2022, checking on the visa status of the workers and the employees at the locations. In July 2022, the applicants again applied for a Resident Return subclass 155 visa. In doing so, it is common ground between the parties, they disclosed to the Department the fact that they had criminal convictions as set out above. Both applicants were granted the visas they sought.
Towards the end of 2022 each of the applicants travelled separately to Thailand, where they remain as at the date of this judgment. Ms Hu states she travelled to Thailand for the purpose of undergoing medical treatment in October 2022. She was joined by her husband about one month later in November 2022. They had purchased return tickets and intended to return to Australia on 1 December 2022.
While overseas, on 1 and 5 December 2022 each of the applicants received correspondence from the Department notifying them that their Resident Return visa had been cancelled under section 128 of the Migration Act (‘the Act’). They both attended the airport in Thailand on 1 December but were told they could not board their flights as they had no return visas to Australia. The 1 December email apparently had no attachments. These were contained in the subsequent email of 5 December 2022.
The asserted basis for the delegate of the Minister cancelling the applicants’ Resident Return visa relates to answers given on previous incoming passenger cards provided by both applicants that they did not have criminal convictions. In Mr Chang’s case, this related to incoming passenger cards in January 2016, January 2018 on two occasions, November 2019 and February 2020. In relation to Ms Hu, this related to incoming passenger cards in May 2018, July 2019, December 2019, and November 2022. The delegate concluded that they were satisfied there were grounds for cancelling the applicants’ return residency visas on the basis of non-compliance with section 102(b) of the Act by giving incorrect answers in the incoming passenger cards as outlined above. In cancelling the applicants’ Return Resident visas this deprived the applicants of the right to return to Australia notwithstanding they still hold permanent resident visas. Effectively, they are now stranded offshore.
Both applicants sought a review of the decision of the delegate to cancel their Resident Return visas. On 6 June 2023, a non-revocation decision was made by a separate delegate of the Minister. On 27 June 2023, the applicants filed applications in this Court seeking judicial review first of the decision of the original delegate on 30 November 2022 to cancel their Return Resident visas pursuant to section 128 of the Act and second the decision of a second delegate on 6 June 2023 declining to revoke the cancellation of their Resident Return visas pursuant to section 131 of the Act.
Their matter was originally set down for Final Hearing on 6 October 2023. Around 4.30 pm on 5 October 2023 the Minister advised the legal representatives for the applicants that both delegates, at the time they made their decisions, had material before them, referred to as protected material, that was not referred to in their decisions. That material has not been provided to the applicants as part of the normal pre-trial disclosure and has not been included in the court books filed with the Courts. On 11 October 2023, the Court made orders that the material in the possession of the respondent be made available to the applicants by 13 October 2023, and costs of the hearing of that day be paid by the respondent. Subsequently, some redacted documents were provided to the applicants.
On 18 October 2023, the respondent filed an Affidavit affirmed by Geoffrey Quinn, Acting Assistant Secretary of the Department of Home Affairs. That open Affidavit sought to claim public interest immunity in respect of some of the material held by the Department and that any material originating from AUSTRAC was protected by section 134 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The Court has been provided with further Affidavits from Mr Quinn dated 17 October 2023.
The Court notes that, the material provided by AUSTRAC is not sought to be produced, but it is still the subject of a PII claim.
The PII claim relates to three documents which are attached in an unredacted form to the confidential Affidavits of Mr Quinn. The PII claim relates to three categories of information: first, the information concerning Australia’s intelligence capabilities with respect to information; second, information that is particular to the applicants; and third, the surnames and contact details of departmental staff in the intelligence division of the Department. The applicants do not press for the information contained within the third category above and suggest that the documents could be provided with this information redacted.
On 29 January 2024, a hearing was held to determine whether the claim for PII should be upheld in relation to the redacted parts of the documents that were provided. That hearing was ultimately adjourned until this morning, 1 February, for the respondent to consider the matter further.
THE APPLICANT’S SUBMISSIONS
At the commencement of the hearing on 29 January 2023, counsel for the applicants objected to the Court receiving the confidential Affidavits of Mr Quinn that attached an unredacted copy of the documents to which PII was claimed. It was submitted the better course was for the Court to make the confidential affidavits of Mr Quinn, less the unredacted attachments available to the legal representatives of the applicants with strict conditions as to non-disclosure of the claimed protected material either directly or indirectly to the applicants or any other person. This would allow them to properly argue whether the PII claim should be upheld.
Further, depending upon the nature of the material that was the subject of the PII claim, counsel foreshadowed seeking to file an Amended Initiating Application for judicial review in the substantive proceedings that would include a claim of apprehended bias on the part of the decision-makers in respect of the initial Return Resident visa cancellation, as well as the non-revocation review decision, and a claim that the process that had occurred in this matter was procedurally unfair.
Significant reliance has been placed by the applicants in this matter on the judgment of Leeming JA in RE Timor Sea Oil & Gas Australia Pty Limited (in liquidation) [2020] NSWSC at 1832. That decision concerned a claim for PII in relation to certain Cabinet in confidence documents. First, Leeming JA rejected at [15] that there was any usual practice which permitted a claim for PII to be established on the basis that the material including a confidential affidavit was not made available to the other sides’ legal representatives. At paragraph 19, Leeming JA had the following to say, (citations omitted):
Thirdly, the application by the Commonwealth to proceed in a closed court and its application to read paragraphs 30 to 34 of Ms McGregor’s affidavit, whilst preserving her confidentiality infringe on the basic notions of procedural fairness. Put simply, the Commonwealth seeks to obtain an order in its interests without the plaintiff let alone testing or being heard as to the evidence on which the Commonwealth relies. That 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 has said to be a defining and essential characteristic of the Court, see Wainohu v New South Wales and Lawrence v New South Wales. 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 Kiefel J to adherence as a general rule to open court principles.
At paragraph 29 his Honour went on to state:
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.
Counsel for the applicants also relied on section 229 of the Federal Circuit and Family Court of Australia Act 2021 which states:
In deciding whether or not to make a suppression order or 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 of the same Act sets out grounds for making such a suppression or non-publication order which include at 1(b):
That the order is necessary to prevent prejudice to the interests of the Commonwealth or the state or territory in relation to national or international security.
Reference is also made to the Australian Statistician v Leighton Contractors Pty Limited [2008] WASCA 34 where the following was said at paragraph 41:
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 applicants 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 the documents or information attract public interest immunity is to be determined on the basis of the 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.
Reference was also made to Commonwealth v Northern Land Council [1993] HCA 24 at 619, Alister v The Queen [1984] 154 CLR at 469, Jackson v Wells [1985] FCA 606 at 307 and 308, Relationships Australia v Pasternak [1996] 20 Fam LR 604 at 471 to 474.
However, in our view the effectiveness or appropriateness of disclosure limitations of the type imposed in this case may be relevant factors to consider in the balancing stage of the process.
THE RESPONDENT’S SUBMISSIONS
The respondent opposes any material to which the public interest immunity is claimed, including the confidential affidavits of Mr Quinn being made available to the applicants even on a restricted basis to their legal representatives. It was submitted 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 information or the production of a document as against the public interest in ensuring that the Courts perform the functions of justice should have access to the relevant evidence, Sankey v Whitlam 1978] HCA 43 at 44, approved of in MacAlister v The Queen [1990] HCA 15 at 412. In Attorney General of New South Wales v Stuart at 675 and 676, Hunt CJ at Common Law, as he was then, stated:
It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate if legitimate forensic purpose for seeking 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 the disclosure of the documents or information would materially assist in the nature of the issues in the proceeds; second, whether or not there is a sound basis for the claim of immunity; and third, the balancing exercise. As to the first of these steps, as was said in New South Wales Commissioner of Police v Attorney General at New South Wales [2022] NSWSC 595 (“Commissioner”) at paragraph 59:
The essential enquiry is the extent to which the documents and information will, or are likely to, materially assist the identified issue in the proceedings, not merely 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 paragraph 60. If the documents are not material in the sense described, the Court will not proceed to conduct the balancing exercise. As to 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 “incurring the identified risk (of harm) is of itself injurious to the public interest”, 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 Limited [2013] 252 CLR 38 at 41.
Now, it is right to say that effective law enforcement is a proper basis for the claiming of 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. The Court was taken to a significant number of cases and, in particular, the ones that the Court has regard to are El Ossman v Minister for Immigration and Border Protection [2017] 636 FCA at paragraph 30, Jaffarie v Director-General of Security [2014] FCAFC 102 at paragraphs 25 to 27, and particularly Parkin v O’Sullivan [2009] FCA 1096 at paragraphs 23 to 30.
I have regard particularly in Parkin v O’Sullivan which is a judgment of Sundberg J of the Federal Court in Melbourne on 30 September 2009. He sets out at paragraphs 23 and onwards the appropriate course to be followed by reference to a significant number of cases including Regina v Bebic (NSWCA, Samuels JA, Nagle CJ and Cantor J, 27 May 1982) and Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) ALR 45. At paragraph 29, Sundberg J said:
In some cases considered above, reference has been made to disclosure of confidential information to legal advisers subject to appropriate undertakings. Such undertakings were offered in the present case.
I note that they have been offered in this particular case as well:
There are many cases in which access has been denied to legal advisers who have offered undertakings on the ground that the risk to national security flowing from inadvertent disclosure is simply too high. There is an elaborate discussion of risk in Regina v Khazaal [2006] NSWSC at 31 to 39, and Traljesic v The Attorney-General Commonwealth [2006] 150 FCR 199 at paragraphs 22 to 23.
His Honour goes on to say at paragraph 30:
Having carefully studied the redacted parts of the respondent’s Affidavit I have concluded that they should not be made available to the applicants’ legal advisers, even on the giving of appropriate undertakings. There are many cases that establish that courts should attach a very considerable weight to the view of what national security requires as is expressed by the responsible officer.
In this particular case the material has been provided to me and I have studied it with some closeness. I have also been taken to the case of SDCV v The Director-General of Security (“SDVC”) which was a decision of the High Court of Australia reported at [2022] HCA 32. I have considered first of all in terms of the material that is in the Affidavit itself is simply incapable, that being the second Affidavit of Mr Quinn which is the confidential Affidavit, it is simply unable to be redacted or otherwise altered in such a way as would not allow the disclosure of further information which would compromise the actual information contained within the redacted documents which I have seen in unredacted form.
At SDVC at [287] and [302] a number of courses were set out. They include the disclosure of the gist of the material. In my view, having read the material itself, even to disclose the gist of the material would be likely to compromise the Commonwealth’s intelligence gathering opportunities or methodologies and/or gaps in intelligence gathering as well as it would provide information which would alert the applicants in relation to any ongoing inquiries that may or may not be applicable to them. The second course was the appointment of a special advocate. I have not been asked to do that and in light of what I have said above, I am not satisfied that the appointment of a special advocate would in any way assist in relation to the disposition of these issues one way or the other.
The third issue would be the disclosure to the applicants’ legal representatives of Mr Quinn’s Affidavit on the basis of confidentiality. I have considered this course very carefully as to whether or not it could be disclosed to the applicants’ legal representatives. I have studied the material of itself. It would seem to me that there would be grave danger if that course was adopted that there could well be inadvertent disclosure, and in saying that I make no aspersion against the applicants’ legal representatives. It is simply a case that the material itself and the nature of it is such that it would be almost impossible to discuss that information without being in a position with the applicants without actually disclosing the nature of it. In my view, whilst that is a course that might well be available in some cases, it is inappropriate in this particular matter.
There is also the fourth and final option which would be to reject the confidential evidence at all. I have had regard to what I consider to be the overriding requirements for open justice and procedural fairness.
It would seem to me that if there was a sound basis for the decision under review to have been taken that the information should not have been provided to the delegates and, indeed, it should have proceeded on that basis and that would have certainly meant that there would be a much more open process. In my view, looking at the material itself I am satisfied that it is material to the matter. I am satisfied that it attracts public interest immunity. I then move on to the final matter which whether or not balancing the legitimate needs of the Commonwealth to protect intelligence capabilities as the need for the applicants to be able to advance all legitimate grounds of a judicial review, that the matter should be resolved in favour of the Commonwealth given the nature of the material that I have looked at, the sensitivity of it and what might happen were it to be disclosed inadvertently to the applicants in the matter. The Court therefore upholds the application for public interest immunity in relation to Mr Quinn’s confidential Affidavits.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Humphreys. Associate:
Dated: 7 February 2024
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