Liu and Anor and Department of Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1141
•17 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1141
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1123
GENERAL ADMINISTRATIVE DIVISION
Re: YANG LIU AND
YU RONG ZHANG
Applicants
And:DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 17 November 2005
Place: Melbourne
Decision:The Tribunal varies the decision under review by granting the applicants access to the documents released to them in full or in part by the respondent during the hearing.
(sgd) G.D. Friedman
Senior Member
FREEDOM OF INFORMATION - application for visa - investigation - documents on applicants’ files - information obtained in confidence - third party documents - whether documents exempt from disclosure
Freedom of Information Act 1982 ss 4, 22(1)(c), 33A(1)(b), 36(1), 37(1)(a), 37(1)(b),
37(2)(b), 40(1)(d), 42, 43(1)(c), 58(1), 61
Arnold v Queensland (1987) 73 ALR 607
Re Boehm and Commonwealth Ombudsman (1985) 8 ALN N29
Re Mann and Australian Taxation Office (1985) 3 AAR 261
Re Toohey and Department of Prime Minister and Cabinet (1985) 9 ALN N94
REASONS FOR DECISION
17 November 2005 G.D. Friedman, Senior Member
1. This is an application by Yang Liu and Yu Rong Zhang (the applicants) for review of an internal review decision made under s 54 of the Freedom of Information Act 1982 (the FOI Act), by an authorised review officer (ARO) of the Department of Immigration and Multicultural and Indigenous Affairs (the respondent) dated 9 August 2004. The ARO affirmed a decision dated 7 June 2004, to refuse access to a number of documents (the exempt documents) held by the respondent, although the ARO did grant access to additional documents.
2. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975, together with one exhibit (Exhibit A1) lodged by the applicant and three exhibits (Exhibits R1-R3) lodged by the respondent.
BACKGROUND
3. Ms Zhang was born in China on 8 September 1972. Mr Liu was born in China on 20 October 1972. On 16 March 1999 Ms Zhang arrived in Australia on a three-year student visa. On 21 January 2001 she departed Australia for China, where she met Mr Liu. On 4 May 2001 Ms Zhang applied for migration to Australia: Class BN (Skilled Independent) visa subclass 136. File OSF 2001/01566 (the first file) was opened in the name of Ms Zhang. On 22 May 2001 Mr Liu applied for a subclass 136 visa.
4. On 18 September 2001 Ms Zhang returned to Australia. On 24 November 2001 Ms Zhang and Mr Liu were married in Sydney. On 28 November 2001 Mr Liu was included on Ms Zhang’s application as her spouse. On 21 January 2002 Ms Zhang departed from Australia. On 18 April 2002 the applicants were granted a subclass 136 visa. On 6 May 2002 the respondent opened an investigation file in relation to possible offences committed by Mr Liu.
5. In August 2003 Ms Zhang departed from Australia and has not returned. On 29 April 2004 Mr Liu applied for Australian citizenship. On 4 May 2004 consideration of citizenship was deferred until 4 May 2005. On 7 May 2004 Ms Zhang made a request under the FOI Act for access to the following documents:
136 application - granted 18/4/02 & student visas & all other files
6. On 10 May 2004 Mr Liu made a request under the FOI Act for access to the following documents:
456 visas (& refusal) 136 visa, citizenship application (ref 131400212) & all documents & files including compliance, investigation, MAL & such like
7. On 22 May 2004 Mr Liu departed from Australia and has not returned. On 27 May 2004 file CLF 2004/30961 (the second file) was opened in the name of Mr Liu.
8. The respondent processed the applications together, and on 7 June 2004 decided to grant partial access to the documents sought, or parts of documents, and to refuse access to other documents. On 16 June 2004 the applicant sought internal review of the decision, and on 9 August 2004 the respondent affirmed the decision. On 24 September 2004 the applicants lodged an application with the Tribunal for review of the decision, with 29 documents in dispute. During the hearing the respondent granted access, in whole or in part, to a number of documents for which it had claimed exemption initially. At the end of the hearing 20 documents remained in dispute, as well as 56 documents relating to third parties (the third party documents) that did not refer to the applicants but had been placed on the applicants’ investigation files.
EVIDENCE
9. In an affidavit affirmed on 11 March 2005 (Exhibit R1) Mr S. Hennell, Investigator, New South Wales Fraud Analysis Unit (the Fraud Unit) of the respondent in Sydney, stated that he was familiar with the documents sought by the applicants. He said that the documents are contained on three files created by the respondent; the first file, the second file and file ICF 2002/280 which is an investigation file (the third file) in Mr Liu’s name which was created in May 2002. He stated that most of the documents in dispute are contained on the third file.
10. In respect of document 2 Mr Hennell said that it contains a number of serious allegations about Mr Liu, and disclosure would enable identification of the author. Mr Hennell stated that disclosure would also prejudice an investigation, and may diminish the flow of information from the public to the respondent. He said that document 3 refers to document 2 and relevant information has been deleted for similar reasons.
11. In respect of document 7 Mr Hennell said that this is a printout of an entry in the Nexus Database of the Fraud Unit, and the deletions refer to information contained in documents 2 and 3 that may identify the source of information provided to the respondent.
12. In respect of document 10 Mr Hennell said that this is a copy of a document on the respondent’s integrated computer-based system for reporting on matters concerning international passengers. He said that the exempt material contains information received in confidence from the New South Wales Police (the Police) about an investigation, and also refers to personal information about a third party.
13. In respect of document 41 Mr Hennell said that this is an email to another officer of the respondent, and the exempt material is a handwritten record of a telephone conversation containing details of information received in confidence from a law enforcement agency about an investigation.
14. In respect of document 57 Mr Hennell said that this is an email to another officer of the respondent, and the exempt material is information relating to an investigation of Mr Liu and another person.
15. In respect of document 96 Mr Hennell said that this is a request for information about Mr Liu, and is exempt in full because disclosure would prejudice the effectiveness of the method of obtaining information used by the respondent in investigations.
16. In respect of document 111 Mr Hennell said that this is a 14-page minute to the Manager of the Fraud Unit which summarises allegations against the applicants. He said that disclosure of the exempt portions would hinder the investigations or enforcement of the law in future, and would also lead him to be less frank and candid in future documents of this nature, The result of this could in turn have an impact on the effectiveness of investigations by the respondent. He said that the document also contains information about the methods and sources of information, and information concerning third parties.
17. In respect of document 112 Mr Hennell said that this consists of emails from another officer of the respondent, and his responses to them. The emails concern information, provided in confidence by a law enforcement agency relating to the applicants, and personal information about third parties.
18. In an affidavit affirmed on 20 October 2005 (Exhibit R3) Mr Hennell stated that:
…when an investigation becomes more general and does not relate solely to the person who triggered the initial investigation, … best practice is to create separate files…
However he said that this did not occur in relation to the applicants, as the third party documents were placed on the applicants’ investigation files. He noted that 55 of the documents do not mention the applicants by name or contain any information about them. One document (document 121) contains Mr Liu’s name but no other personal information.
19. Mr Hennell said that the third party documents fall into four categories: The first is material submitted by the applicants and their representatives and retained on the investigation files (documents 67, 68, 88, 94, 95, 106, 115, 116, 117, 118 and 119). Mr Hennell said that release of the documents would be unreasonable because the reputation of the third parties might be damaged, if it became known that they have been associated with an investigation into breaches or possible breaches of the law. He said that in addition, the documents contain information about persons who are the subject of ongoing investigation, and/or possible enforcement action by the respondent.
20. The second category is material obtained from the respondent’s records (documents 46, 47, 58, 59, 60, 61, 62, 63, 64, 65, 66, 69, 70, 71, 72, 73, 74, 76, 82, 84, 85, 90, 91, 93, 102 and 104). Mr Hennell said that during his investigation he extracted information from the respondent’s database, about movements in and out of Australia of a number of persons other than the applicants. He said that release of the documents would be unreasonable for reasons similar to those described in respect of the first category.
21. The third category is material obtained from sources external to the respondent (documents 81, 83, 86, 101, 103, 105, 108, 109 and 123). Mr Hennell said that release of the documents would be unreasonable for reasons similar to those described in respect of the first and second categories. There is a likelihood that release would prejudice investigations and possible enforcement action.
22. The fourth category is documents created by the investigator during the investigation (documents 75, 87, 89, 107, 110, 114, 120, 121, 122 and 124). Mr Hennell said that during the investigation, he copied documents from other files or created documents to communicate with other officers abut the investigation. He said that release of the documents would be unreasonable for reasons similar to those described in respect of the first, second and third categories. There is a likelihood that release would prejudice investigations and possible enforcement action.
23. Mr Hennell stated that the Police had informed him that they did not authorise the release of any documents that originated with the Police, and they were provided to the respondent for the purposes of the respondent’s investigations (documents 10, 41, 111 and 112). Mr Hennell said that under a Memorandum of Understanding, all such documents remained confidential unless otherwise specified by the Police. Therefore, in the context of the ongoing investigation such confidentiality had been maintained by the Police. He said that accordingly the documents should not be released to the applicants.
24. Mr Hennell noted that documents relating to business affairs concerned third parties, and as a result should not be released. This is due to the fact that disclosure could be expected to unreasonably affect the third parties, in respect of lawful business, commercial or financial affairs. He said that documents relating to persons or companies that remain the subject of ongoing investigation, and/or possible enforcement action by the respondent should not be released. This is because most of these persons are unlikely to be aware of the investigation, which would be prejudiced if they were to become aware of the action by the respondent.
25. In oral evidence Mr Hennell noted that significant portions of the relevant documents have been released to the applicants. Under cross examination he emphasised the importance of protecting the identity of persons who provide information used by the respondent in investigations. He also said that further disclosure of information may prejudice existing and future investigations carried out by the respondent.
26. In an affidavit affirmed on 23 March 2005 (Exhibit R2) Mr G. Fogden, intelligence analyst, Australian Customs Service (ACS), stated that document 77 is a printout of records held in the ACS National Information System (NIS). This records information gathered by ACS officers, at Australian ports, from passengers arriving in and departing Australia. He said that the document contains detailed information about Mr Liu and some information about Ms Zhang, and information about a number of other people. He stated that personal information about third parties has been deleted from the document to protect the privacy of individuals. Mr Fogden stated that information relating to current investigations into persons of interest, with respect to suspected offences under customs legislation, has also been deleted, together with information concerning the methods of investigation.
27. Mr Fogden stated that document 80 is an ACS intelligence summary which contains information similar to that in document 77. He said that the reasons outlined above in relation to deletions to document 77 also apply to this document. Mr Fogden stated that document 43 contains personal information about a third party, and also contains annotations about the nature of investigations conducted by ACS. Also, document 57 contains information about persons under investigation by ACS for possible breaches of the law.
28. In oral evidence, Mr Fogden noted that significant portions of documents 77 and 80 have been released to the applicants. Under cross examination he confirmed that a decision had been made not to prosecute Mr Liu. However disclosure of the methodologies and capabilities of investigative techniques would compromise current and future investigations.
CONSIDERATION OF THE ISSUES
29. The relevant sections of the FOI Act for which exemptions were claimed are:
·s 33A(1)(b) documents affecting relations with States;
·s 36(1) internal working documents;
·s 37(1)(a) documents affecting enforcement of law and protection of public safety (prejudice to conduct of an investigation);
·s 37(1)(b) documents affecting enforcement of law and protection of public safety (confidential source of information);
·s 37(2(b) documents affecting enforcement of law and protection of public safety (prejudice to effectiveness of methods or procedures re breaches of the law);
·s 40(1)(d) documents concerning certain operations of agencies;
·s 41 documents affecting personal privacy; and
·s 43(1)(c) documents relating to business affairs etc.
30. The Tribunal notes that under s 61 of the FOI Act the respondent … has the onus of establishing that a decision given in respect of the request was justified, or that the Tribunal should give a decision adverse to the applicants. The Tribunal also recognises that under s 22 and s 58(1) of the FOI Act it has the power to delete exempt matter or irrelevant material if this if this will make a document non-exempt.
31. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
32. The Tribunal accepts Mr Hennell’s evidence contained in his two affidavits and his oral evidence regarding the matters contained on the investigation files. The Tribunal also accepts that current and future investigations into possible breaches of migration law would be jeopardised if information provided to the respondent by third parties in confidence was divulged. The Tribunal accepts Mr Fogden’s evidence that disclosure of the methodologies and capabilities of investigative techniques would compromise current and future investigations with respect to possible offences under customs legislation.
33. In respect of the documents for which exemption was claimed under s 33A(1)(b) of the Act (documents provided by the Police), the Tribunal finds that disclosure of each would divulge information; the information was communicated in confidence; the information was communicated by or on behalf of a State authority; and the information was communicated to a Commonwealth authority. The Tribunal also concludes that the respondent can only perform its role effectively, if it continues to receive information from a wide range of sources including State authorities. On this basis there is a strong public interest in non-disclosure, and the Tribunal is satisfied that in this case there is no overriding public interest in disclosure (Arnold v Queensland (1987) 73 ALR 607 at 616; Re Mann and Australian Taxation Office (1985) 3 AAR 261 at 273). Therefore documents 10, 41, 111 and 112 are exempt from disclosure.
34. In respect of the document for which exemption was claimed under s 36(1) of the FOI Act, the Tribunal accepts the evidence from Mr Hennell that the document is not purely a factual one. The document represents his views as to the possible conclusions to be drawn from the material collected, and his recommendations for future action. The Tribunal concludes that disclosure …would disclose matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place; it is part of the deliberative processes, including the decision-making processes…(Re Toohey and Department of Prime Minister and Cabinet (1985) 9 ALN N94). In all the circumstances, disclosure would be contrary to the public interest because disclosure might hinder future investigations. Therefore document 111 is exempt from disclosure.
35. In respect of the documents for which exemption was claimed under s 37(1)(a) of the FOI Act, the Tribunal accepts Mr Fogden’s evidence about the ongoing nature of investigations, and concludes that disclosure of the documents …would, or could reasonably be expected to,… prejudice the effectiveness of the conduct of an investigation by ACS of a breach, or possible breach, of the law… by divulging information that might have an adverse effect on methods of investigation. Therefore documents 43, 57, 77 and 80 are exempt from disclosure. In relation to the relevant third party documents, the Tribunal accepts Mr Hennell’s evidence that disclosure of the documents that contain information about persons or companies that are the subject of investigation by the respondent, would be reasonably likely to prejudice the investigation and possible enforcement action because most of the persons would be unaware of the investigations. Therefore documents 46, 47, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 81, 82, 84, 85, 88, 89, 90, 91, 93, 94, 95, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123 and 124 are exempt from disclosure.
36. In respect of the documents for which exemption was claimed under s 37(1)(b) of the FOI Act, the Tribunal accepts Mr Hennell’s evidence that document 2 contains serious allegations against Mr Liu by a third party. It also accepts that the respondent relies on information provided by the public, in relation to possible breaches of migration law. Document 7 is a computer entry that records information about document 2, and document 111 is a minute that contains similar information. The Tribunal concludes that release of information identifying the informant …would, or could reasonably be expected to, … prejudice the conduct of an investigation of a breach, or possible breach, of the law…. Therefore documents 2, 7 and 111 are exempt from disclosure.
37. In respect of the documents for which exemption was claimed under s 37(2)(b) of the FOI Act, the Tribunal accepts Mr Fogden’s evidence about the ongoing nature of investigations, and concludes that disclosure of the documents …would, or could reasonably be expected to,…disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches …of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures... The Tribunal also accepts Mr Hennell’s evidence that disclosure of the respondent’s internal documents 96 and 111 concerning the investigation involving Mr Liu may disclose lawful methods of investigation. Document 107 contains information on methods of investigation not generally known to the public, and disclosure would be likely to prejudice their effectiveness. Therefore documents 57 (paragraph four), 77, 80, 96, 107 and 111 are exempt from disclosure.
38. In respect of the documents for which exemption was claimed under s 40(1)(d) of the FOI Act, the Tribunal accepts Mr Hennell’s evidence that release of document 2 and documents referring to that document or material contained in the document concerning the source of allegations against Mr Liu …would, or could reasonably be expected to,…have a substantial adverse effect on the proper and efficient conduct of the operations of… the respondent. This is because disclosure would substantially diminish the flow of information to the respondent (Re Boehm and Commonwealth Ombudsman (1985) 8 ALN N29). The Tribunal is reasonably satisfied that disclosure of the documents would not, on balance, be in the public interest. Therefore documents 2, 3, 7 and 111 are exempt from disclosure.
39. In respect of the documents for which exemption was claimed under s 41(1) of the FOI Act, the Tribunal accepts Mr Hennell’s evidence and Mr Fogden’s evidence that the documents, or parts of documents, contain personal information about third parties as defined in s 4 of the Act. The Tribunal concludes that disclosure would be unreasonable because it would be an invasion of the privacy of the third parties, and may damage those persons’ reputations. Disclosure of personal information would also be unreasonable because it may damage evidence that would otherwise be used in any investigation by forewarning the subjects of the investigation. Therefore documents 1, 10, 11, 21, 22, 27, 35, 43, 45, 77, 80, 111, 112 and 137 are exempt from disclosure.
40. In respect of the 56 third party documents, the Tribunal accepts Mr Hennell’s evidence that the documents concern businesses or the affairs of persons other than the applicants. Some of these documents were obtained from sources external to the respondent. Although they were placed on the applicants’ files, they do not relate to the personal affairs of the applicants, and disclosure would be unreasonable for the reasons outlined by Mr Hennell. Therefore documents; 46, 47, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 81, 82, 84, 85, 88, 89, 90, 91, 93, 94, 95, 105, 106, 107, 108, 109, 110, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123 and 124 are exempt from disclosure.
41. In respect of the documents for which exemption was claimed under s 43(1)(c) of the FOI Act, the Tribunal is satisfied that the documents contain …information …concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking…. The Tribunal accepts Mr Hennell’s evidence that disclosure of the documents may affect the person adversely in his or her business affairs, or may prejudice the future supply of information to the Commonwealth for the purpose of administration of a law or an agency. Therefore documents 67, 68, 81, 83, 86, 87, 88, 101, 103 and 105 are exempt from disclosure.
42. In relation to the third party documents the Tribunal is satisfied that they were placed on the applicants’ files because Mr Hennell chose to do so, and not because they were relevant to the applicants or any investigation involving the applicants. In the circumstances the Tribunal is satisfied that that under s 22(1)(c) of the FOI Act, it would not be reasonably practicable to make deletions to remove personal information, and disclose parts of documents that would render the documents meaningless.
43. The Tribunal is satisfied that the respondent has discharged its onus that a decision given in respect of the request was justified.
DECISION
44. The Tribunal varies the decision under review by granting the applicants access to the documents released to them in full or in part by the respondent during the hearing.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Senior Member.
(sgd) Lydia Zozula
Associate
Dates of hearing: 7 April 2005, 8 June 2005, 27 October 2005
Date of decision: 17 November 2005Counsel for applicant: Mr T. Hurley
Solicitor for applicant: Maddocks Lawyers
Counsel for respondent: Mr J. Pizer
Solicitor for respondent: Australian Government Solicitor
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