Mijares and Minister for Immigration and Multicultural Affairs
[2000] AATA 214
•21 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N99/973
GENERAL ADMINISTRATIVE DIVISION )
Re WILLIAM GONZALEZ MIJARES
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date21 March 2000
PlaceSydney
Decision 1. That the applicant be given access to that part of document 31 for which exemption has been claimed. 2. In all other respects, the decision under review is affirmed.
(Sgd) BJ McMahon
..............................................
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – visa applications – whether disclosure would involve an unreasonable disclosure of personal information – whether disclosure would affect enforcement of law and public safety – whether disclosure would affect the deliberative processes of government – whether disclosure contrary to public interest – whether disclosure would reasonably have a substantial effect on the proper and efficient conduct of agency operations – Freedom of Information Act 1982 ss 24A; 37(2)(b); 36(1); 40(1)(d); 41(1)
Administrative Appeals Tribunal Act 1975 s35
Colakovski v Australian Telecommunications Corporation 100 ALR 111
Re Waterford and Department of Treasury (No.2) (1984) 1 AAR 1 (applied)
Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs
(1996)23 AAR 142
The Australian Law Reform Commission Report 77: Open Government: a review of the federal Freedom of Information Act 1982
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President)
This is an application to review a decision made by a delegate of the respondent under the Freedom of Information Act 1982.
On 19 March 1999, an agent for the applicant applied for access to "all the files concerning Mr Gonzalez's repeat applications for a subclass 126 visa, and also to the file maintained in respect of his border apprehension and deportation". A number of documents were identified as falling within the terms of the request and were made available to the agent for the applicant. There remained portions of 12 documents for which claims for exemption were made. Documents numbered 3, 12 and 18 were identical, as were documents 6 and 21, and 9 and 28. Accordingly, in reality, there were parts only of 8 documents remaining in dispute when this matter came on for hearing.
The background to the application appears from documents that were made available to the applicant's agent. Mr Mijares is a Venezuelan national born on 6 December 1962. Prior to coming to this country, he had contact with one or more locally engaged staff at the Australian embassy in Santiago. From that embassy, he obtained a Migrant Visa Subclass 126 (Independent Entrant). He arrived at Sydney airport on 6 March 1999 and presented his passport endorsed with this visa. In fact the visa had been cancelled by a delegate under section 128 of the Migration Act on 21 January 1999 because, as the decision-maker had put it, the visa application "was fraudulently entered by the delegated decision maker who acted dishonestly and fraudulently in granting the visa". Mr Mijares indicated at Sydney airport that he had not received notification of the cancellation of the decision. The visa was therefore again cancelled under section 116(1)(f) after hearing submissions from the applicant and a friend on his behalf. Because he was no longer the holder of a valid visa, he was refused immigration clearance and was then detained in the immigration detention centre in Villawood. He left Australia two days later on 8 March 1999 and has not since returned.
Although claims for exemption were made by the respondent and, accordingly, must be dealt with by this Tribunal in this application for review, the principal submission made by counsel for the applicant at the hearing was that there was no evidence amongst the documents made available to the applicant of any note or memorandum made by an officer of the Department in refusing to grant the applicant a border visa.
This is a class 773 visa and is different from the subclass 126 visa for which the applicant had previously applied. Evidence was given by an officer of the Department, Ms Brand, that no such memorandum or note had come to her attention as the Departmental Freedom of Information Officer, notwithstanding reasonable efforts to locate such a document.
The applicant's agent, Mr Lombard, had written to the manager of the Parramatta office of the Department on 7 March 1999 concerning a border visa. There was, however, no formal application made for one. Section 47(3) precludes the Minister from dealing with any application for a visa unless it is made in the prescribed form. As there was no such formal application, I am satisfied that there could not have been any note or memorandum of an officer dealing with a refusal to grant such a visa. I am therefore satisfied, for the purposes of section 24A of the Freedom of Information Act, that the documents to which counsel for the applicant referred do not exist, even if it could be said that they fell within the terms of the request.
Exemptions were claimed in respect of portions of documents 3 (and its duplicates documents 12 and 18), 6 (and its duplicate document 21), 9 (and its duplicate document 28) and 29. These claims were based upon subsection 37(2)(b) of the Freedom of Information Act. It was claimed that disclosure under the Act could be reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
All those extracts from documents had reference to the operation of a computer system designed to record details of what Mr Mitchell called "people of concern". In his affidavit he said:
"I am employed in the Law Enforcement Liaison and Movement Alert (LELMA) section of the Department of Immigration and Multicultural Affairs (DIMA), Central Office, Canberra, Australian Capital Territory. I have been employed with DIMA since 1986. I have been employed in the LELMA section since its creation in September 1998.
The LELMA section deals with immigration movement records, provides law enforcement liaison and administers the Movement Alert List (MAL) system.
Parts of the documents in this case are exempted under paragraph 37(2)(b) of the Freedom of Information Act 1982 (the Act). The release of certain codes, field descriptions, instructions relating to the persons referred to in the MAL system, and information provided in confidence by law enforcement bodies, may enable someone to understand how DIMA classifies and responds to non-citizens of concern, and may enable someone to circumvent the system with the aim of achieving the entry of persons normally not permitted to enter under the Migration Act 1958.
MAL is a computer database which stores details about people of immigration concern to Australia. MAL is a key tool in detecting applications for entry to Australia from people whom Australia may wish to exclude. It forms part of Australia's complete system of border protection.
Although the existence of MAL is publicly known, the details of the database are not disclosed to the public. There are certain types of information held on MAL and certain ways of organising information, that if known to someone intent on undermining border controls, might enable them to work out ways to avoid detection as a person likely to breach migration law.
DIMA staff are only granted access to the MAL database if they are authorised to access "protected" material and demonstrate a genuine need to access the database. Certain records within the database are of a more significant national security concern and are only available to a limited group of users of the system. Information on the working of the MAL system is contained in a "restricted" access MSI, MSI 197. These are indications of the importance DIMA places on protecting these methods related to law enforcement.
"Protected" and "restricted" are security classifications. The "protected" classification refers to sensitive material and resources which require a substantial degree of protection. The "restricted" classification refers to national security material which requires some protection. The test for assigning the "restricted" classification is whether its unauthorised disclosure, loss, compromise, misuse of which, or damage to, could possibly be harmful to the national security."
Migration Series Instruction (referred to by Mr Mitchell as MSI 197) was tendered in evidence. Because of the confidential nature of the document, an order was made under section 35 of the Administrative Appeals Tribunal Act prohibiting its disclosure in terms set out in the order. It is clear, however, from the numerous paragraphs of the instruction to which I was referred, that the document, and the computer program associated with it, are important, and indeed vital, aids in protecting Australia's borders.
The references in the portions of the documents for which exemption is claimed were references to numbers and codes of the MAL system. It was the uncontested evidence of Mr Mitchell that disclosure of these codes might help form a picture of the way in which the system works and would thus be open to abuse from hackers or others interested in circumventing Australia's border controls. Such an outcome could reasonably be expected, he said, because of the proliferation of hackers and their well-publicised attempts to invade records of large organisations. The fact that these attempts have mainly occurred in the United States of America is of little importance in these days of global electronic access. Not only would disclosure of these codes make the task of the maliciously inclined hacker easier than it would otherwise would be, it could also assist, and might reasonably be expected to assist, those engaged in illegal activities such as people smuggling. Mr Mitchell's evidence was that entry into the system would give a person engaged, for example, in people smuggling the power to access entries and even to change them. The references to codes and numbers and procedures could reasonably be expected to inform those with an interest in the subject, of the identity of persons who would have access to the system and therefore the level of access which an intervener would need to achieve. It would also give some indication of the system's structure. Mr Mitchell's evidence was that the system is used extensively. The millions of visas issued each year result from applications which are checked against the system.
I am satisfied that disclosure of the extracts concerned could reasonably be expected to imperil the effectiveness of a method for preventing, detecting, investigating or dealing with breaches of the Migration Act 1958 by providing unauthorised access to the database constituted by the movement alert list.
Claims for exemption were made under section 41(1) of the Freedom of Information Act in relation to parts of documents 7, 17 and 30. Section 41(1) provides that a document is an exempt document if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person. The information in each of the three documents consisted of references to third parties who may have been involved in dealings at the Australian embassy in Santiago. The information is clearly personal. The only question is whether its disclosure would be unreasonable.
The right of the applicant to access all information must be a factor to be taken into account. In the present case, however, the uncontested evidence was that the applicant has already been given all of the documents concerning his refusal of entry into Australia. The disclosure of the information for which exemption is claimed is therefore unlikely to be of any assistance to the applicant. On the other hand, disclosure (which would be public disclosure) could be seriously prejudicial to the persons concerned. As there may be further legal action, it is, in my view, unreasonable to disclose it. As Lockhart J pointed out in Colakovski v Australian Telecommunications Corporation 100 ALR 111 at 121, there is an element of public interest in the concept of "unreasonable" in section 41. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in the Act are satisfied. It is in the public interest, in my view, that the rights of any accused person be protected pending any further legal action. I am satisfied, therefore, that the respondent has made out its claim for exemption in respect of these three extracts.
The final claim relates to document 31. This is the third page of a document known as a possible parliamentary question. The whole of the first page has already been made available to the applicant. All of the second page, except for the portion containing personal information, has been made available. The present claim concerns the final sentence on the third page for which exemption is claimed under subsections 36(1) and 40(1)(d) of the Freedom of Information Act. Those sections are in the following terms:
"36. (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose a matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to the public interest.
40. (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
…
(2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."
The three-page document was prepared by officers of the Department. It was checked, in turn, by a section head and then by a branch head before being made available to the Minister. It is a document prepared to enable a Minister to respond in Parliament to a question, which might reasonably be anticipated. The document dealt with the arrival of Mr Mijares in Sydney, the cancellation of his visa which "had been obtained fraudulently and was invalid" and his subsequent departure. The document sets out the facts as these officers understood them relating to the dealings Mr Mijares had at the Santiago embassy and the facts surrounding his arrival on the morning of 8 March 1999. The document informs the Minister of representations which have been made on Mr Mijares' behalf by other parliamentarians and suggest the way in which the Minister might respond to any likely question. The document notes in the last paragraph that a television station had given the case some coverage. It then goes on to contain advice concerning the media, which is the subject of the present application for exemption.
I was informed that advice contained in possible parliamentary questions was of particular sensitivity to Ministers and, indeed, the workings of government. The first question to be addressed is whether the extract in question is part of a document falling within the terms of subsection 36(1)(a), that is to say whether it is a document of consultation or deliberation in the course of the deliberative processes involved in the functions of an agency. The section has been heavily criticised and is reviewed by the Australian Law Reform Commission in its report number 77 on the Freedom of Information Act 1982 at paragraph 9.15. Nevertheless, as the report indicates, this Tribunal has consistently rejected the suggestion that the section be narrowed to apply only to deliberative material associated with policy formulation. This Tribunal has consistently held that the section covers all the "thinking processes" of an agency involved in its function. The tests propounded in Re Waterford and Department of Treasury (No.2) (1984) 1 AAR 1 at 19-20 have continued to be followed by this Tribunal. Having regard to the need for consistency in decision making, I will accept that the extract in the document concerned is what is referred to in the marginal note of section 36 as an internal working document. The question then arises whether disclosure of the extract in question would be contrary to the public interest.
Concepts of public interest for this purpose have been considerably narrowed in recent years. The observations made by Davies J in the early case of Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169 at 178 are now no longer accepted without question.
The more recent developments have been collected by Deputy President McDonald in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs 23 AAR 142 at 155 to 157. I agree with the observations he made as follows:
"Prior to the passage of the FOI Act, in the Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, Justice Mason (as he then was), in granting an injunction for a threatened breach of the Crimes Act 1914 (Cth), drew a distinction between detriment that a citizen may suffer from disclosure of information relating to his affairs and detriment to the government from publication of material concerning its actions. In relation to the latter, His Honour said (at 52):
"… it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
Accordingly, the Court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected."
The sentiments expressed by His Honour have now found legislative effect in s 59A(a) of the Freedom of Information Act 1989 (NSW), but not in Federal FOI Act.
One of the early attempts to define what is constituted by the public interest, and one often quoted since, is to be found in Re Howard and Treasurer (Cth) (1985) 3 AAR 169 where at 178, the then President of the Tribunal (Justice Davies) listed the considerations as:"1.The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.
2.Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.
3.Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.
4.Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.
5.Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process."
The enunciation of the first four principles by Davies J has been criticised by some in subsequent decisions and academic critiques (see the citations at 41 of the decision in Eccelston's case and the detailed discussion carried out by the Information Commissioner with respect to the so-called "Howard principles"; also the discussion by the Information Commissioner of Western Australia in Veale and Town of Basendean (unreported, Decision No D00494, 25 March 1994)), but accepted by others. In the context of determining whether those principles are still of paramount consideration, what is often not recognised is the paragraph of the decision immediately following the statement of principles, which is in the following terms:
"The FOI Act has been in operation since 1 December 1982. As was said in Re Murtagh and Commissioner of Taxation (Cth (1984) 1 AAR 419; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN257, and Re Lianos and Secretary, Department of Social Security (1985) 2 AAR 503, the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act"
As is evident from the above passage, Davies J did not see the principles as being immutable but rather envisaged a flexible approach, governed by time and experience, being taken. A similar conclusion as to the significance of the above quoted paragraph was reached by the Queensland Information Commissioner in Eccleston's case at 38, par 106.
The difficulties associated with giving substance to the otherwise amorphous concept of public interest were highlighted in the Australian Law Reform Commission Publication, Report No 70, Administrative Review Council, Report No 40, "Open Government: a review of the federal Freedom of Information Act 1982", at 96, in which the following factors were nominated as being of possible relevance in determining the public interest, namely:"Ÿ the general public interest in government information being accessible
·whether the document would disclose the reasons for a decision
·whether the disclosure would contribute to debate on a matter of public interest
·whether disclosure would enhance scrutiny of government decision making processes and thereby improve accountability and participation."
and the following as possibly not being relevant:
"Ÿ the seniority of the person who is involved in preparing the document or who is the subject of the document
·that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information
·that disclosure would cause a loss of confidence in the government
·that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason."
As will be seen from the above, a number of the principles listed by Davies J in Re Howard stand, as time has passed and experience in administration of the FOI Act has grown, to be considered differently than was the case when they were first pronounced – a fact readily recognised by the learned judge at the time the decision was given."
The words in question relate to the media and some possible consequences which the authors saw if there were any further media interest. In my view, disclosure of this sentence would not be contrary to the public interest. There is no credible evidence that it would be in the public interest to keep information away from the media, nor is there any credible evidence that disclosure of the sentence concerned would bring about a state of affairs which would be contrary to the public interest as presently understood.
In a sense, the claim is linked to the claim under section 40(1)(d) in that it was alleged that disclosure of this part of the possible parliamentary question might have a "substantial adverse effect on the proper and efficient conduct of the operations" of the Department. The evidence to support this submission came from Ms Brand. In her view, release of the sentence concerned might result in increased activities in Santiago from persons who had received visas in circumstances similar to those of the applicant and because of the small size of the Santiago establishment (three Australian employees and seven locally engaged employees) this would put an undue strain on the resources of the embassy.
Such evidence is speculation upon speculation and can be given no weight. There is nothing to suggest the outcome to which Ms Brand alluded, nor is there any reason to believe that embassy staff would be unable to deal with any applications likely to be made to it. In any event, the degree of adverse effect must be substantial and the adverse effect must be on the proper and efficient conduct of the operations of the agency. The evidence goes nowhere near discharging the respondent's onus in establishing this ground for exemption.
Accordingly, I see no reason why the applicant should not have access to the relevant portion of document 31. In all other respects, I will hold that the decision under review be affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed: J. Healy .....................................................................................
Jacqueline Healy, AssociateDate/s of Hearing 9 March 2000
Date of Decision 21 March 2000
Counsel for the Applicant K Peterson
Representative for Applicant George Lombard Consultancy Ltd
Counsel for the Respondent S Lloyd
Solicitor for the Respondent S Hanstein, Legal Branch