Kindler and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 1037

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/289

GENERAL ADMINISTRATIVE DIVISION		)
Re		PIERRE PAUL KINDLER

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member PM  McDermott, R.F.D

Date1 December 2006

PlaceBrisbane

Decision

(a)   The decision under review is affirmed

(b)   I order the return to the respondent of folios 34, 38, 41, 44, 56, 57, 76, 77, 78 which are contained in file CLF 1999/28664.

...................[Sgd]....................

PM McDermott, R.F.D

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – documents sought in relation to visa application – applicant seeks access to documents to defend allegations – Minister to discharge onus of proof – documents found to be confidential source of information – documents related to administration of relevant legislation – release of documents would disclose identity of source – risk of harassment – no legal enforceable right to access documents – order to return confidential documents – decision under review affirmed

Freedom of Information Act 1982, s 37(1) (b)
Migration Act 1958
Migration Regulations 1994

Electronic Frontiers Inc and Australian Broadcasting Authority [2002] AATA 449

Re Green and Australian Telecommunications Corporation (1992) 28 ALD 655

Re Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466

Re Gold and Australian Federal Police; Re Gold and National Crime Authority (1994) 37 ALD 168

McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645; (1986) 11 ALN N110

Re Maskell and CEO, Centrelink (2004) 80 ALD 228; [2004] AATA 522

Re Miniter (previously Woods) and CEO, Centrelink (2004) 80 ALD 457; [2004] AATA 601

Re Robertson and Secretary, Department of Family and Community Services (Centrelink) (2006) 90 ALD 218; [2006] AATA 245

Department of Health v Jephcott (1985) 8 FCR 85; (1985) 62 ALR 421; (1985) 9 ALD 35

McEniery and Medical Board of Queensland (S82 of 1993, Decision No 94002)

Kioa v West (1985) 159 CLR 550; (1985) 62 ALR 321; (1985) 60 ALJR 113; (1985) 9 ALN N28

Sinclair and Secretary to Department of Social Security (Q85/47, 16 October 1985)

R v Lewes Justices; Ex parte Secretary of State for Home Department [1973] AC 388

D v National Society for Prevention of Cruelty to Children (1977) 76 LGR 5; [1978] AC 171; [1977] 1 All ER 589; [1977] 2 WLR 201

Re Cosco Holdings Pty Ltd and Department of Treasury (1998) 51 ALD 140

MIMA v Lay Lat [2006] FCAFC 61

Aguirre v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1191

REASONS FOR DECISION

1 December 2006     Senior Member PM McDermott, R.F.D

1.  Mr Pierre Paul Kindler has applied under the Freedom of Information Act1982 to have access to certain documents in the possession of the Department of Immigration and Multicultural Affairs. The Department has refused to give Mr Kindler access to those documents. I have to decide whether the Freedom of Information Act gives Mr Kindler a right of access to those documents.

Background

2.  Mr Kindler, who is not an Australian citizen, married a citizen of Australia and then made an application for a Spouse Partner (Permanent Residence) Visa (Class BS). On 24 September 2004 the delegate of the Minister refused his application.  On 22 June 2006 the Migration Review Tribunal affirmed the decision of the delegate.

3.  Mr Kindler is aware that some members of the community have provided information to the Department which he believes to be detrimental to his position. The Migration Review Tribunal, in its reasons for affirming the decision of the delegate, mentioned that “the Department also received ‘dob-in’ letters alleging that the marriage was contrived and that the visa applicant paid money to his sponsor” [Para 23].

4.  This background explains why Mr Kindler has made an application under the Freedom of Information Act 1982 to have access to the file of the Department.

Reviewable Decision

5.  On 24 April 2004 the FOI Officer of the Department identified a number of documents within the scope of the request made by the applicant. The FOI Officer made a decision to withhold certain documents and delete material from other documents.

6.  The FOI Officer in her Statement of Reasons stated:

“For information to be exempt under section 37(1) (b) I must be satisfied that there would be a reasonable expectation that the identity of the confidential source of information will be ascertainable from the contents of the documents” (T2, Statement of Reasons, para. 22).

7.  The decision of the FOI Officer led to some further documentation being provided to Mr Kindler. However, Mr Kindler remains dissatisfied with that decision and on 5 May 2006 he made an application for review of that decision to this Tribunal. In that application Mr Kindler stated that he needed access to the documents “to defend myself”. He has stated in his submission: “I need access to the requested documents so that I can answer the allegations against me, with a hope to have the Respondent agree to exercise her discretion to grant me a visa in the public interest”.

Reason for Request

8.  At the hearing Mr Kindler stated that he required access to the documents so that he could answer what he regarded as being false allegations that have been made against him.

9. However, in these proceedings the reason why an applicant seeks access is not material. This is because under s 11(2) of the Freedom of Information Act, the right of access of a person is not affected by any reasons that the person gives for seeking access. It has been pointed out that access to a document must be considered as access to the world at large, that is even if the applicant seeks the document for a worthy purpose: see Electronic Frontiers Inc v Australian Broadcasting Authority [2002] AATA 449 at [96] per Deputy President Forgie.

10.  There have also been a number of decisions of this Tribunal which have recognised that the reasons why an applicant has sought information are not relevant in determining the right of access to documents: see ReGreen and Australian Telecommunications Corporation (1992) 28 ALD 655 at [17], [23], [32] (Deputy President Forgie, Brigadier Brumfield and Dr Urquhart); Re Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466 at [43] (Deputy President Forgie).

11.  In Re Gold and Australian Federal Police; Re Gold and National Crime Authority (1994) 37 ALD 168 the applicant was denied access to documents under inter alia s 37(1)(b) of the Freedom of Information Act 1982. The applicant sought information from the respondents so that he could clear his name from false allegations that were made against him. Deputy President McDonald remarked, at [3] that while “Mr Gold may have his reasons for seeking the information, and those reasons may be valid, they can play no part in the decision-making processes applied by the original decision-maker or the Tribunal in deciding his right of access to the documents sought”.

12. Similarly, in this case the fact that Mr Kindler has sought access to the documents containing information from members of the public so that he can answer allegations that have been made against him, is not, by reason of s 11(2) of the Freedom of Information Act, a sufficient reason why he should be granted access to those documents.

Onus of Proof

13.  In these proceedings under Part VI of the Freedom of Information Act1982, the Minister has the onus of establishing that all of the relevant documents are exempt from disclosure: see s 61. If, in respect of a particular document, the Minister does not discharge that onus then Mr Kindler is entitled to have access to that document.

Claimed Exempt Documents

14.  At the hearing the respondent claimed that a number of documents were exempt documents. These documents are the whole of folios 34, 38, 41, 44, 56, 57, 77, 78 and part of folio 76 which are contained in file CLF 1999/28664.

15.  The advocate for the Minister tendered before the Tribunal an affidavit dated 14 August 2006 of the FOI Officer of the Department [ex R2]. In that affidavit the FOI Officer provided information about each of the relevant documents.

16.  Mr Kindler became aware after the affidavit of the FOI Officer of the Department was tendered, that folios 77 and 78 are the movement records printout of a person other then Mr Kindler. In those circumstances Mr Kindler stated that he did not wish to continue his claim to have access to those folios once he became aware of the nature of the folios.

17.  During the course of the hearing of this application, as not infrequently happens during the hearing of applications under the Freedom of Information Act, the advocate for the Minister stated that he had instructions to give Mr Kinder access to more information which is recorded on folio 76. I consider that it was entirely appropriate that Mr Kindler was given such access, as the additional information that was released did not reveal the confidential source of that information. After having access to that additional information, Mr Kindler stated that he nevertheless still wished to continue his application to have access to the whole of folio 76.

Nature of Exempt Documents

18.  The FOI Officer of the Department has in her affidavit released information about each of the documents which are claimed to be exempt documents [Ex R2].

·Folio 34

19.  Folio 34 is an undated letter to the Department from a member of the community which stated that Mr Kindler is involved with a marriage of convenience and setting out other matters relevant to his character. The document bears the signature of the writer.

·Folio s 38 and 41

20.  Folio 38 is a letter dated 2 June 2000 to the Department from a member of the community expressing concerns about the character of Mr Kindler. Folio 41 is in the same terms as folio 38.

·Folio 44

21.  Folio 44 is an undated letter to the Department from a member of the community expressing concerns about the character of Mr Kindler.

·Folios 56 and 57

22.  Folio 56 is an undated letter to the Department. Folio 57 is the envelope in which the letter was sent to the Department. The letter was sent by members of the community. The letter expresses concerns about the character of Mr Kindler.

·Folio 76

23.  Folio 76 is a file note which records information provided by a member of the public. The information is relevant to the visa application that Mr Kindler has lodged. I have already mentioned that during these proceedings part of that document was released to Mr Kindler.

Consideration of the Matter

24.  I have examined the documents that Mr Kindler now wishes to have access to. These documents are the whole of folios 34, 38, 41, 44, 56, 57 and folio 76.

25.  In McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 where Muirhead J enunciated [at 649] what I refer to as “three tests” that must be considered by this Tribunal when considering this ground of exemption. Those matters are:

(i)Is the document a confidential source of information?

(ii)If so, was it properly classified as relating to the enforcement or administration of the law?

(iii)Would the release of the document in toto disclose the identity of the confidential source or in the alternative could it be reasonably expected to do so?

26. These “three tests” that were enunciated by Muirhead J were based on the construction of s 37 (1)(b). These tests have been applied in a number of decisions of this Tribunal: see, ReMaskell and CEO, Centrelink (2004) 80 ALD 228; [2004] AATA 522; ReMiniter (previously Woods) and CEO, Centrelink (2004) 80 ALD 457; [2004] AATA 601; Re Robertson and Secretary, Department of Family and Community Services (2006) 90 ALD 218; [2006] AATA 245.

First Test

27.  In McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 Muirhead J enunciated the first test of whether a document is a confidential source of information. His Honour remarked [at 649] that a source is confidential if the information is provided under an express or implied pledge of confidentiality: see also Department of Health v Jephcott (1985) 8 FCR 85.

28.  In applying the first test that was enunciated by Muirhead J I have examined all of the documents that have been claimed to be exempt documents. None of those documents have any express indication of confidentiality. It remains for me to consider whether the documents can be regarded as being the subject of an implied obligation of confidence.

29.  There are remarks in folio 37 which indicate that the writer of that document did not want any further involvement after providing the information to the Department. The fact that the writer of that document did not have an address on that document is also evidence that the writer did not want any further involvement with the Department. The writer has also in that document indicated that he or she fears retribution. That, in my opinion, is adequate evidence that the writer of that document was providing information to the Department on a confidential basis.

30.  Folios 38 and 41 contain identical information. Folio 38 was sent to the Brisbane office of the Department. Folio 41 was sent to the previous Minister (Hon P Ruddock MP) as well as the Canberra office of the Department. I have concluded that the FOI Officer was correct in concluding that both documents, which contain an allegation concerning the character of Mr Kindler, were sent on a confidential basis to the Department and Minister. The fact that the writer of the letter sent the letter to the Minister as well as the Canberra office of the Department is, in my view, significant in concluding that the information was provided on a sensitive basis. I have also had regard to the fact that there is some personal information about the writer after his signature block. I consider that this personal information was inserted to indicate that the writer wished the allegations to be seriously treated at a high level within the Department. It would not be appropriate for me to reveal the nature of the personal information as that would enable the writer to be identified. I also consider that this personal information indicates that the writer of the letter would have expected the document to be kept confidential.

31.  In considering document 44 I have concluded that the document was provided on a confidential basis. The document, like documents 38 and 41, raise serious allegations about the character of Mr Kindler. I consider that the concluding remarks in the document concerning the records of the Department are in my judgment a clear indication concerning the confidential nature of the document.

32.  I have already mentioned that documents 56 and 57 consist of an undated letter to the Department and the envelope in which the letter was sent to the Department. That letter was sent to the Department from members of the community who expressed concerns about the character of Mr Kindler. That letter does not contain any address; it also does not list the names of the writers. However, the initials as well as information about the background of the writers appear in the document. I have concluded that the writers provided the information on a confidential basis as they did not want to be readily identified. I consider that the information about their background was inserted in the letter to indicate that the writers wished the allegations to be considered seriously by the Department.

33.  Document 76 is a file note from the Fraud Analysis Unit of the Department. It records very detailed information about Mr Kindler which was provided by a member of the public. The information is relevant to the visa application that Mr Kindler has lodged.

34.  I have already mentioned that during this hearing more of document 76 was released to Mr Kindler. I consider that the information in the document is provided on an implied confidential basis because of the fact that the informant did not provide a name. I have also had regard to the fact that the informant has provided very detailed information concerning Mr Kindler. I do not consider that the informant would have provided that information if it was released to Mr Kindler.

35.  During the hearing the advocate for the Minister tendered an extract from the website of the Department concerning the confidentiality of information provided by callers to the “Immigration Dob-in Line” [ex. R4]. The Immigration Dob-in Line website contains the statement that the Department will treat “information provided by members of the public about people working or living illegally in Australia in the strictest confidence”.

36.  I have decided not to base my decision on the existence of this assurance of confidentiality on the website of the Department. I am unaware when the assurance of confidentially was placed on the website. Some of these documents date from 2000 and there is no material before me as to when the assurance of confidentially was placed on the website.

Second test

37.  In applying the “second test” that was enunciated by Muirhead J I have examined all of the documents that have been claimed to be exempt documents.

38.  I am satisfied that the information in those documents relates to the policy of the Minister in relation to the administration of the Migration Act 1958 and the Migration Regulations 1994. All of the documents contain information concerning the character of Mr Kindler who is an applicant for a visa. The character of an applicant will be considered by the Minister in considering an application for a visa. Some of those documents contain allegations concerning the visa application.

Third test

39.  In applying the “third test” that was enunciated by Muirhead J I have examined all of the documents that have been claimed to be exempt documents.

40.  I am satisfied that the release of the folios 34, 38, 41, 44 in toto would disclose the identity of the confidential source. This is because all of those documents contain the signatures of the writers.

41.  I am satisfied that the release of folios 56 and 57 in toto would disclose the identity of the confidential sources. This is because the initials of the writers as well as their background appear in the documents. The distinctive handwriting is also something that may enable one of the writers to be identified.

42.  I am satisfied that the release of  folio 76 in toto would disclose the identity of the confidential source which provided information to the officer of the Fraud Analysis Unit of the Department. There would be a limited number of persons who would have knowledge of the very detailed information in the document. In my view the release of the document would enable the identity of the person who provided that information be revealed. 

Risk of harassment

43. I mention that the FOI Officer considered that there was a risk that the writer of folios 38 and 41 would suffer harassment. I have not chosen to base my decision on such a ground as there is no material before me that Mr Kindler has harassed any person. Indeed, in considering the application of section 37(1) (b) of the Freedom of Information Act it is not necessary for me to consider this issue.

Natural Justice

44.  Central to the submissions of Mr Kindler is his contention that in his case there was a “breach of natural justice”. He claimed that he was denied natural justice by the delegate of the Minister and the Migration Review Tribunal. Mr Kindler referred to the decision of the delegate of the Minister, who declined his application for a visa after considering “community information”. Mr Kindler also pointed out that the Migration Review Tribunal in affirming the decision of the delegate had, in a number of paragraphs of the reasons of that Tribunal, referred to the “dob-in” documents.

45.  I have given careful consideration to this issue of natural justice that was raised by Mr Kindler. The natural justice issue was raised in McEniery and Medical Board of Queensland (S82 of 1993, Decision No 94002) which concerned the administration of the Freedom of Information Act1992(Qld). A copy of the decision in McEniery was tendered at the hearing.

46.  In McEniery the plaintiff medical practitioner sought access to a letter of compliant which had been forwarded to the Medical Board of Queensland. The Information Commissioner (of Queensland) had to determine whether the letter of compliant was an exempt matter under s 42(1)(b) of the Freedom of Information Act1992 (Qld) which concerned a “confidential source of information, in relation to the enforcement or administration of the law”.

47.  In McEniery, at [28], the Information Commissioner remarked: “The legal requirement that government agencies observe the rules of natural justice (now also commonly referred to as the requirements of procedural fairness, or the duty to act fairly) whenever they apply to an agency’s activities, will also affect the question of whether the supplier of information to a government agency, and the agency itself, could reasonably expect the confidentiality of the supplier’s identity to be preserved while taking appropriate action in respect of the information conveyed”. 

48.  The Information Commissioner in McEniery placed reliance on remarks made by Mason J in Kioa v West (1985) 60 ALJR 113 at 127 concerning the developing common law duty to act fairly.

49. With respect to the Information Commissioner, I consider that the developing rules of natural justice do not inform the construction of s 37 (1)(b) of the Freedom of Information Act1982, and I give my reasons for that conclusion.

50.  In McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 Muirhead J pointed out [at 649] that the presiding member (Hon JBK Williams, CBE, Senior Member) in Sinclair and Secretary to Department of Social Security (Q85/47, 16 October 1985) had “considered with some care the origins of s 37(1) (b)”.

51.  In Sinclair the presiding member had referred to cases concerning informers that were enumerated in such cases as R v Lewes Justices; Ex parte Secretary of State for Home Department [1973] AC 388 and D v National Society for Prevention of Cruelty to Children [1978] AC 171. The presiding member pointed out that at common law in criminal proceedings, a witness cannot be asked the name or identity of an informant except in circumstances where the identity of the informant could assist in showing that the defendant was innocent of the offence charged. The presiding member pointed out that this principle has been extended to include information given to bodies other than the police, such as a Gaming Board, which could not function effectively unless the confidentiality of all communications to it relating to the character and reputation of applicants was maintained.

52.  The presiding member in Sinclair remarked [at 12] “It appears to me that the legislature, in framing s 37(1)(b), had in contemplation, and was giving statutory recognition to, the common law principles to which I have referred.”

53.  Another decision which has assisted me is ReCosco Holdings Pty Ltd and Department of Treasury(1998) 51 ALD 140. The applicant in that case was denied access to documents held by the respondent under ss 33A and 42 of the Act. Deputy President Forgie emphasised that it is not for the Tribunal to consider whether the respondent has afforded an applicant natural justice but that the Tribunal must consider whether documents should be released under the Freedom of Information Act1982. The Deputy President, at [61], remarked, “my considerations are limited to disclosure under the Freedom of Information Act.”

54.  For those reasons I consider that it is no part of my duty in these proceedings to consider whether the delegate of the Minister or the Migration Review Tribunal denied natural justice to Mr Kindler.

55.  I also make the observation that there are statutory standards of procedural fairness that are prescribed by the Migration Act 1958: see MIMA v Lay Lat [2006] FCAFC 61 at [64-68]. In Aguirre v Minister for Immigration & Multicultural Affairs [2002] FCA 1191 Allsop J pointed out at [9] that under s 375A of the Migration Act the Migration Review Tribunal may be forbidden by statute from disclosing certain documents to an applicant where the Minister has certified that the disclosure of information other than to that Tribunal would be contrary to the public interest for the reasons specified in the certificate of the Minister. I have not had regard in these proceedings as to whether there has been a certificate issued by the Minister. This is because s 375A is not listed in the secrecy provisions in Schedule 3 of the Freedom of Information Act: see also s 38.

Ruling

56. I consider that the respondent has discharged the onus of establishing that folios 34, 38, 41, 44, 56, 57 and 76 which are contained in file CLF 1999/28664 documents are exempt documents under s 37(1) (b) of the Freedom of Information Act1982.

57. Having regard to s 11 (1)(a) of the Freedom of Information Act1982, Mr Kindler does not have a legally enforceable right of access to those documents.

58. Once it is established in these proceedings that a document is an exempt document I am constrained by s 58 (2) of the Freedom of Information Act1982 from deciding that access to the document, so far as it contains the exempt matter, is to be granted.

59.  I also made the observation that by reason of the decision in Department of Health v Jephcott (1985) 8 FCR 85 there is no question in this case of balancing the public interest to remove from its operation a document that falls within the clear terms of s 37. See also Aguirre v Minister for Immigration & Multicultural Affairs [2002] FCA 1191 at [26] per Allsop J.

Procedural orders

60.  It is necessary for me to make some procedural orders.

61. At the hearing of this application I made an order under s 64(1) of the Freedom of Information Act that unexpurgated versions of the exempt documents which were provided to the Tribunal be restricted to the Tribunal. Having regard to my decision in this application, it is necessary for me, having regard to s 64(2) of the Freedom of Information Act to return those documents to the respondent.

62.  I order the return of folios 34, 38, 41, 44, 56, 57, 76, 77, 78 which are contained in file CLF 1999/28664.

Decision

63.  The decision under review is affirmed.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member PM McDermott, R.F.D

Signed:         Michelle Brazier
  Legal Research Officer

Date/s of Hearing  17 August 2006, 7 September 2006     
Date of final submissions         25 September 2006
Date of Decision  1 December 2006

The Applicant was self represented; a migration agent was also present with the applicant

Solicitor for the Respondent       Mr Lo