Hu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 169
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 169
File number(s): SYG 265 of 2023
SYG 263 of 2023Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 March 2024 Catchwords: MIGRATION – Public Interest Immunity – Resident Return (Subclass 155) visas – leave to amend Grounds of Judicial review Legislation:
Australian Constitution 1900 s 75(v)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 134
Australian Security Intelligence Organisation Act 1979 (Cth) s 17
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 231
Migration Act 1958 (Cth) ss 102(b), 128, 131, 503A(2)(c), 476A(1)(c), 476A(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9,10
Cases cited:
Alister v The Queen (1984) 154 CLR 404
Al Rawi v Security Service [2012] 1 AC 531
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Attorney-General for New South Wales v Chidgey (2008) 182 A Crim R 536
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Commissioner of Police (NSW) v Attorney-General (NSW) [2022] NSWSC 595
Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1
HT v The Queen [2019] HCA 40
Hu and Chang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86
Judicial Review and Public Interest Immunity (2020) 99 AIAL
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Timor Sea Oil and Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832
Sankey v Whitlam (1978) 142 CLR 1
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SDVC v Director-General of Security [2022] HCA 32
The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 9 February 2024 Date of hearing: 16 February 2024 Place: Parramatta Counsel for the Applicants: Mr Lenehan & Ms Baw Solicitor for the Applicants: Vision Legal Pty Ltd Counsel for the Respondent: Dr Renwick & Mr Kaplan Solicitor for the Respondent: Australian Government Solicitors ORDERS
SYG 265 of 2023
SYG 263 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAO CHANG
First Applicant
XIAO HU
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.The claim for public interest immunity in relation to the material annexed to the confidential affidavit of Mr Quinn is upheld.
2.Leave is granted to the applicants to amend their Grounds of Judicial review.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This judgment concerns a further aspect of 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 met in Australia and married here.
They were both granted permanent resident status in Australia in 2009. Both applicants applied to become Australian citizens in 2017 but were refused on character grounds.
Both applicants have previously been the holders of Resident Return (Subclass 155) visas (“visas”). These visas allow them to leave and return to Australia.
The second applicant has two recorded criminal convictions. In 2015, she was convicted of common assault, fined $500.00 and placed on a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) bond for a period of 12 months. In 2018, the second applicant 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.
The first applicant has three criminal convictions. In 2008, he was convicted of common assault and fined $300.00. The first applicant appealed to the District Court of NSW, where the sentence was reduced to being placed on a s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) bond for 12 months with no conviction being recorded. In 2015, he was convicted of Assault Occasioning Actual Bodily Harm. The first applicant was fined $1500.00 and placed on a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) bond to be on 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 be concluded in October 2020.
Both applicants have deposed to being the owners of two brothels, located in Surry Hills, Sydney. Both brothels have been the subject of inspections by the Australian Border Force officials in 2022, checking on the visa status of workers and employees at the locations.
In July 2022, the applicants again applied for a Resident Return (Subclass 155) visa. In doing so, 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 of the date of this judgment. The second applicant stated that she travelled to Thailand for the purposes of undergoing medical treatment in October 2022 and was joined by her husband 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 s 128 of the Migration Act 1958 (Cth) (“the Act”). They had both attended the airport on 1 December 2022, but were told that they could not board their flight as they had no return visas to Australia. The 1 December 2022 email had no attachments. These attachments were sent in the email of 5 December 2022.
The asserted basis for the delegate of the Minister cancelling the applicants’ Resident Return visas relates to answers given on previous incoming passenger cards provided by both applicants that they did not have criminal convictions. In the first applicant’s case, this related to incoming passenger cards in January 2016, January 2018 (twice), November 2019, and February 2020. In relation to the second applicant, 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’ visas on the basis of non-compliance with s 102(b) of the Act, by giving incorrect answers in the incoming passenger cards as outlined above. In cancelling the applicants’ visas, this deprived the applicants the right to return to Australia, notwithstanding they held Permanent Resident visas.
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 an application in this Court seeking judicial review of, first, the decision of the original delegate on 30 November 2022 to cancel the applicants’ visas pursuant to s 128 of the Act and second, the decision of a second delegate on 6 June 2023 declining to revoke the cancellation pursuant to s 131 of the Act.
The 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 had not been referred to in their decisions. That material had not been provided to the applicants as part of pre-trial disclosure and was not included in the Court Books filed with the Court.
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 that the costs of the hearing for 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 PII in respect of some of the material held by the Department and that any material originating from AUSTRAC was protected by s 134 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Court notes that the material from AUSTRAC is not pressed to be produced by the applicants.
The PII claim relates to three documents, which are attached in an unredacted form to a confidential affidavit also sworn by Mr Quinn. The PII claim relates to three categories of information:
(a)Information concerning Australia’s intelligence capabilities with respect to immigration;
(b)Information about the applicants; and
(c)The surnames and contact details of Departmental staff in the Intelligence division of the Department.
The applicants did not press for the information contained within the third category above and documents that could be provided were provided with relevant information redacted.
On 1 February 2024, a hearing was held in relation to a claim by the applicants for access to the confidential affidavit of Mr Quinn. That claim was unsuccessful: (see; Hu and Chang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 86).
On 16 February 2024, a further 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. A further matter involved whether leave should be granted to enable the applicants to amend their Originating Application to include, as Grounds of Judicial Review, claims of apprehended bias and procedural unfairness.
SHOULD PUBLIC INTEREST IMMUNITY APPLY TO THE DOCUMENTS ATTACHED TO THE QUINN CONFIDENTIAL AFFIDAVIT?
Minister’s Submissions
As the Minister is the moving party it is appropriate to deal with their submissions initially.
First, the Court notes that it has been provided with and perused with an unredacted copy of the documents to which PII is sought. The Minister opposes any of the material to which PII is claimed, being made available to the applicants, or even on a restricted basis to their legal representatives.
It was submitted that, in determining whether or not to allow a claim of PII, a Court must balance the public interest in withholding the disclosure of the information or the production of a document, against the public interest in ensuring that the courts performing the functions of justice should have access to the relevant evidence: (see; Sankey v Whitlam (1978) 142 CLR 1 (“Sankey”) at [44], approved of in Alister v The Queen (1984) 154 CLR 404 at [412], where the following was said:
Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step of the process - the balancing exercise- can only be taken when it appears that both aspects of the public interest to require consideration- i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the document sought or documents of that class, and, on the other hand, that thou art or likely to be documents which contain material evidence. The court that can then consider the nature of the injury which the nation of the public service would be likely to suffer, and the evidentiary value and importance of the documents in the litigation.
In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Hunt CJ at [676] stated:
[676] It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his 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 that the disclosure of the documents or information would materially assist, given the nature of the issues in the proceedings. Second, establishing that there is a sound basis for the claim of immunity. Third, the balancing exercise.
As to the first of these steps, it was said in Commissioner of Police (NSW) v Attorney-General (NSW) [2022] NSWSC 595 (“Commissioner”) that:
[59] …the essential enquiry is to the extent to which the documents and information will, or are likely to, materially assist on an identified issue in the proceedings, not mere potential or conceivable relevance assessed with or without reference to the issues in the proceedings.
The issues must be identified “with some degree of particularity having regard to the nature of the proceedings in question”: (see; Commissioner at [60]). If the documents are not material in the sense described, the Court will not proceed to conduct the balancing exercise.
At the second step, consideration should be given as to whether the harm to the public interest could arise from the disclosure depends upon there being “a real possibility, as opposed to a probability, of harm” and “the incurring of the identified risk [of harm] is itself injurious to the public interest”: (see; Commissioner at [58]).
If a claim of public interest immunity is upheld, the documents or information need not be produced to the Court and the documents or information are not available to be, and cannot be, adduced in evidence or relied upon by the Court (see; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [14]).
It is trite to say that effective law enforcement is a proper basis for claiming PII. 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 in the future.
The Minister claimed that the three documents to which the claim of PII applies, contain sensitive information “concerning Australia’s intelligence capabilities with respect to immigration” and “about the applicant’s”. It is submitted that, given Mr Quinn’s position within the Department, his evidence should be given substantial weight.
It is secondly submitted that there is no public interest in the disclosure of the redacted documents. It is conceded that the documents were before each decision-maker, being first, the delegate who cancelled each of the applicant’s Residency Return visas and secondly, the delegate who decided not to revoke the cancellation decision. It was also conceded that the documents were not referred to in each of the decision-makers record of decision. It was submitted that, on the face of each decision, the delegate found that there were grounds for cancellation of each applicants’ visa based on answers provided on the incoming passenger cards, and secondly, the decision-maker had no regard to the matters raised in the documents over which the Minister claims PII in exercising their residual discretion.
It is submitted that the documents have no bearing upon any grounds of review that are currently pleaded by the applicants. While the applicants have foreshadowed amending the application to raise complaints of procedural unfairness and apprehended bias, it is submitted that the documents will not be produced merely because they may be (or are) relevant or might permit the applicants to discover whether they might have a case at all; rather, it must be “on the cards” that the documents would “materially assist” the applicants: (see; Attorney-General for New South Wales v Chidgey (2008) 182 A Crim R 536 at [58]-[59] and [64]-[68]).
It was submitted that there is no public interest in the disclosure. As a result, the balancing exercise need not be carried out given the public interest in the maintenance of non-disclosure is overwhelming.
Applicant’s Submissions
It was submitted that the consideration of PII claims does not mean that all must be assessed in an identical manner. For example, in HT v The Queen [2019] HCA 40, Keifel CJ, Bell and Keane JJ observed that the balance may be struck differently depending upon whether the matter is civil or criminal. Their Honours referred (with apparent approval) to Lord Mance in Al Rawi v Security Service [2012] 1 AC 531 where the following was said:
[101] In a criminal trial, the general rule is that, if material is necessary to prove the defendant’s innocence or avoid a miscarriage of justice, then “the balance comes down resoundingly in favour of disclosing it”: R ve Keane [1994] WLR 746, 751-752, per Lord Taylor of Gosforth CJ. If the Crown still does not wish to disclose the material, it can and must forego further prosecution.
It was submitted that the identification of the public interest favouring disclosure sheds some light on the correct approach to claims of PII in the context of judicial review proceedings. It was submitted that there is a broader public interest in the enforcement of limitations on executive powers, duties, and functions.
This point was made by a number of the members of the Court in Sankey (albeit in the different context of a private criminal prosecution against former ministers of the Whitlam government). Justice Stephen noted that the public interest favouring disclosure at [56]:
…consisted not only of the usual quite general concern that the course of justice should not be impeded but also of more particular considerations which flow from the unusual character of the present proceedings, involving as they do criminal charges against a former Prime Minister and senior members of his ministry directly related to their conduct in office… To accord privilege to such documents as a matter of course is to come close to conferring immunity from conviction upon those who may occupy or may have occupied high officers of state it proceeded against in relation to the conduct in those offices.
Justice Brennan stated the following in Church of Scientology Inc v Woodward (1982) 154 CLR 25 (“Church of Scientology”) when he referred to Sankey at [16]:
… the veil of secrecy is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s 17 is never entirely excluded from consideration.
His Honour was there dealing with a challenge to the exercise of a power under s 17 of the Australian Security Intelligence Organisation Act 1979 (Cth), which self-evidently presented a particularly acute public interest against disclosure in which it was stated, “discovery would not be given against the Director-General save in a most exceptional case”: (see; Church of Scientology at [76]).
Reliance was also placed on the writing of Matthew Varley and Tristian Lockwood in “Judicial Review and Public Interest Immunity” (2020) 99 AIAL Forum 34,41-42” where the following was stated:
It remains to be seen whether, in an appropriate case, the effective inability of an applicant to obtain review of executive action is itself a consideration to be weighed in the public interest immunity balancing exercise. It is already established that the maintenance of integrity of the criminal justice system is such a consideration.
Systemic considerations of the type identified above, are to be understood against the backdrop of s 75(v) the Australian Constitution (“Constitution”), which provides, “an entrenched minimum provision of judicial review” in respect of decisions of officers of the Commonwealth: (see; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [103]).
In Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, those features of the constitutional landscape led the Court to hold that the impugned provision in issue there (s 503A(2)(c) of the Act) was invalid to the extent it operated to prevent the Minister for Immigration and Border Protection from being required to divulge or communicate information to the High Court when exercising jurisdiction under s 75(v) of the Constitution, or the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act. Justice Gagelar (as he was then) later explained in SDVC v Director-General of Security [2022] HCA 32 (in dissent as to the result) at [149]:
The principle on which Graham turned was that a Commonwealth law cannot impair the ability of the court, through the application of a judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of a power legislatively conferred on office of the Commonwealth have been observed in a particular case.
Reliance was placed on the judgment of Leeming JA in Re Timor Sea Oil and Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832. That decision concerned a claim for PII in relation to certain Cabinet-in-Confidence documents. First, Leeming JA rejected at [15], that there is any “usual practice” which permitted a claim for PII to be established on the basis that the material, including the confidential affidavit, was not made available to the other sides legal representatives.
At [19] Leeming JA had the following to say (citations omitted):
Thirdly, the application by the Commonwealth to proceed in closed Court, and its application to read paragraphs 30 – 34 of Ms McGregor’s affidavit while preserving their confidentiality, infringe the basic notions of procedural fairness. Put simply, the Commonwealth seeks to obtain an order in its interests without the plaintiff seeing 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 have said to be defining or essential characteristic of a Court: Wainhou v New South Wales, Lawrence v New South Wales. There are, as mentioned in argument, instances where such a course may be appropriate, the point recognised by the qualification given by French CJ and Keifel J to adherence “as a general rule” to open court principles.
At [29] his Honour stated:
…But I could see no sound basis for proceeding to determine the Commonwealth’s motion without that information being provided on a strictly confidential basis to nominated legal representatives of the plaintiff. I did not understand the Commonwealth to articulate any such basis when I invited it to do so.
Counsel for the applicants also relied on s 229 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which states:
Safeguarding public interest in open justice
In deciding whether to make a suppression order or a non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 231 of FCFCOAAct sets out the grounds for making such an order which include at (1)(b):
Grounds for making an order
•(1) The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:
•(b) (that) the order is necessary to prevent prejudice to the interests of the Commonwealth or State or Territory in relation to national or international security.
Reference was also made to The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34, a decision of the Western Australian Supreme Court of Appeal. At [41] the following was said (citations omitted):
In determining whether public interest immunity applied to information that would identify an individual survey respondent as being the source of the commercial in confidence information provided, the primary Judge confined his consideration by reference to the proposed limited disclosure to counsel and solicitors of the parties. The appellant contended that the public interest immunity could not be avoided by the simple expedient of confining disclosure to the parties lawyers. We agree that the initial question of whether the documents or information attract public interest immunity is to be determined on the basis of unrestricted production or disclosure for the purposes of the litigation. Public interest immunity protects complete, not partial, secrecy. This is implicit in the rule that ordinarily there is no disclosure of the documents or information to the legal representatives of the parties even for the purpose of determining the objection to production on the ground of public interest immunity: Commonwealth v Northern Land Council at 619; Alister v The Queen at 469, Jackson v Wells at 307-308; Relationships Australia v Pasternak at 471-474. However, in our view the effectiveness or appropriateness disclosure limitations of the type imposed in this case may be relevant factors to consider that the balancing stage of the process.
It is common ground that the material, which is the subject of the PII claim was supplied to both the initial delegate who cancelled the applicant’s visas and the subsequent delegate who made a Non-Revocation order as to the cancellation.
The applicants wish to amend their claims to include new Grounds of Judicial Review on the basis of procedural unfairness and apprehended bias. The material that is the subject of the claims is submitted as “will or are likely to materially assist”: (see; Commissioner of Police (NSW v Attorney-General (NSW) [2022] NSWSC 595 at [59]).
It was further submitted that, in so far as the material relates to law enforcement investigations concerning their activities, the applicants are aware of an investigation by Australian Border Force officials that resulted in their employees and them being questioned. Further, the applicants are aware of an ongoing investigation by the Australian Federal Police called Operation Inglenook, into human trafficking within the sex worker industry.
CONSIDERATION
The Court notes that, at this stage, the material that is the subject of the PII claim has been supplied to the Court in an unredacted form and it has been read.
First, the Court is satisfied that the material, including the confidential affidavit of Mr Quinn, that is sought to be protected correctly attracts a claim of PII. It is material, which if disclosed, might compromise Australia’s intelligence capabilities with respect to immigration and is information about the applicants. The fact that the applicants may be aware of some interest by the authorities in them is not a matter the Court can give great weight to. The material may or may not contain other information that the applicants may not be aware of.
Second, the Court needs to consider whether there is any public interest in the disclosure of the information. The respondent submits that this issue turns on whether or not it is “on the cards” that the information may materially assist the applicants having regard to the issues in the case. It was submitted that the information did not form the basis of either the delegate’s initial decision to cancel the applicants’ visas nor in the subsequent non-revocation decision. That is, there were evident grounds for the cancellation of the visas for the reasons given in the written reasons for the decisions.
This feeds into the contention by the applicants that they look to amend the initiating application to include two additional Grounds of Judicial Review being, first, one of procedural unfairness and second, of apprehended bias. The material that is the subject of the PII claim will shed light on those issues, particularly on the basis that the material could have led to an unconscious bias against the applicants.
A claim of bias is serious and requires evidence, such as a transcript of a Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that a Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [38]).
The law in relation to apprehended bias is well known. In SCAA the following was said:
[11] Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial Tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
The public interest in disclosure is to enable the applicants to properly address the Court as to whether there is jurisdictional error in the decisions, and for the Court to properly exercise its supervisory function under s 75(v) of the Constitution.
The third consideration is the balancing exercise. The respondent submits that there is potential damage to current or future law enforcement activities should the information be disclosed. The Court should accept the evidence in the confidential affidavit of Mr Quinn, and on the basis of the confidential material disclosed to the Court.
In the Court’s view, taking into account all the considerations, the material should not be disclosed, even on a restricted basis to the applicant’s legal representatives on strict conditions. The material, if disclosed, could compromise law enforcement activities. There is an overwhelming public interest in those activities being protected such that it outweighs the interests of the applicants in having access to the material for the purpose of these proceedings, even if it hampers their case.
SHOULD THE APPLICANTS BE GRANTED LEAVE TO AMEND THEIR GROUNDS OF JUDICIAL REVIEW?
The particular issue in this case is that the relevant decision-makers had access to the information that is the subject of the PII claim. The respondent claims that the decisions were made without reference to the material and can be justified for the reasons given. That is, there were legitimate grounds to cancel the visas on the basis of the multiple non-disclosures on incoming passenger cards.
Yet, the applicants were apparently granted their Resident Return visas after making full disclosure of their criminal convictions. To grant the visas and then cancel them after the applicants left the country and deny them the right to return, on the basis of previous non-disclosures on incoming passenger cards, could be described as opportunistic by the Minister. This is in circumstances where, apparently, no action had been previously taken to seek to cancel the applicants’ permanent residency visas.
There is thus potential for submissions that the process adopted by the respondent was procedurally unfair.
A claim that the protected material may have infected the decision-maker’s minds, in the Court’s view, is a legitimate claim. That however cannot be determined to finality at this stage.
In the Court’s view, it would be inappropriate to limit the applicants’ right to advance whatever Grounds of Judicial Review that they may wish to agitate. In the Court’s view, the grounds are not futile. That is not to say they will be successful, rather that the applicants should have the opportunity to put such matters as they wish for the Court to consider.
CONCLUSION
The orders of the Court are as follows:
1) The claim for public interest immunity in relation to the material annexed to the confidential affidavit of Mr Quinn is upheld.
2) Leave is granted to the applicants to amend their Grounds of Judicial review.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 1 March 2024
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