Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 287
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 287
File number(s): MLG 1906 of 2017 Judgment of: JUDGE EGAN Date of judgment: 21 April 2022 Catchwords: MIGRATION – claim for public interest immunity – applicable considerations and principles – weighing up exercise – interests of justice require the claim for public interest immunity to be granted – application allowed. Legislation: Evidence Act 1995 (Cth) ss 130 and 133.
Migration Act 1958 (Cth) ss 65, 352(4) and 359A.
Migration Regulations 1994 (Cth) Sch 2 Cl.820.211(2)(a)(i) and 820.221.
Cases cited: Alister v The Queen (1984) 154 CLR 404.
Sankey v Whitlam (1978) 142 CLR 1.
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 25 March 2022 Date of hearing: 11 March 2022 Place: Brisbane Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Clothier Anderson Counsel for the First Respondent: Ms J Lucas Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1906 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI NGOC NGUYEN
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
21 APRIL 2022
IT IS ORDERED THAT:
1.The First Respondent’s Application in a Case filed on 17 September 2021 be granted.
2.The costs of and incidental to the First Respondent’s Application in a Case filed on 17 September 2021 reserved.
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 Egan
Introduction
The applicant is a citizen of Vietnam who applied for a Partner (Temporary) (Class UK) Visa on 30 June 2014 pursuant to the provisions of s 65 of the Migration Act 1958 (Cth) (the Act).
The criteria for the grant of the visa was set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 820.211(2) relevantly provided as follows:
“820.2 Primary Criteria
Note: the primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.
….
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 – by the spouse or defacto partner; or
(ii) if the applicant’s spouse has not turned 18 – by a parent or guardian of the spouse who:
(A) Has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa – either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) Satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
On 8 April 2016, a delegate of the Minister refused to grant the partner visa. The matter was referred to the Administrative Appeals Tribunal (the Tribunal) for review on 18 April 2016.
In its decision dated 4 August 2017, the Tribunal, when recording that officers from the Department conducted a site visit at the applicant’s home on 22 December 2015, said at [5] of its reasons as follows:
“[5]The primary decision notes that, on 22 December 2015, officers from the Department conducted a site visit at Ms Nguyen’s home. The decision further states that the officers raised concerns over several inconsistent responses given by the parties and from discrepancies which were apparent during the home visit and subsequent interview. Ms Nguyen was offered an opportunity to comment on the adverse evidence before the department about her relationship with her sponsor and provided a written statement detailing her responses. However, the delegate commented that there was ‘strong’ evidence to suggest that the parties are in a contrived relationship for the purpose of Ms Nguyen obtaining a permanent resident visa. The delegate also remarked that she strongly believed that the sponsor appears to be more committed to his ex-wife and family than he is to his marriage to Ms Nguyen.”
The Tribunal refused to grant the application for the visa on the ground that it was not satisfied that the applicant had met the relevant criteria under clause 820.211(2)(a)(i) and clause 820.221.
The applicant filed an Originating Application for Review on 31 August 2017. On 7 June 2021 the applicant filed an Amended Application for Review, the grounds of which were as follows:
“1. The Tribunal made a jurisdictional error by failing to comply with s 359A of the Migration Act 1958 (Cth) (‘the Act’).
Particulars
a)The Tribunal relied on “information gleaned from the site visit” as the reason or part of the reason for affirming the decision under review.
b)The Tribunal failed to give clear particulars of the information to the applicant, ensure the applicant understood why the information was relevant and the consequences of relying on it in the review, and give the applicant an opportunity to comment or respond to the information.
2.In the alternative to ground 1, the Secretary breached s 352(4) of the Act by failing to provide documents that were in the Secretary’s possession or control which were relevant to the review, with the result that the Tribunal failed to conduct the review required by statute.
Particulars
a)The documents relating to the site visit, listed at item 13 of the court book index (‘Site Visit Documents’) were part of the Department’s file and were in the possession or control of the Secretary.
b)The Site Visit documents were plainly relevant to the review.
c)The failure of the Secretary to provide the Site Visit Documents and/or to consider whether the Site Visit documents were relevant constituted a breach of s 352(4) of the Act.
d)The breach of s 352(4) by the Secretary disabled the Tribunal from conducting the review required by the Act.
3. The Tribunal’s decision was affected by jurisdictional error, in that its treatment of supposed inconsistencies in the evidence was irrational, unreasonable or constituted a constructive failure to review.
Particulars
a) The Tribunal relied on several supposed inconsistencies in the evidence given by the applicant and that given by her sponsor.
b)Several of the supposed inconsistencies were either minor or were not inconsistencies at all.
c)Several of the inconsistencies did not rationally support a conclusion that the applicant was not being truthful.
d) The Tribunal failed to appreciate the proper nature of its task, or to perform it reasonably and fairly.
It was apparent from Grounds 1 and 2 of the Amended Application for Review that the applicant was calling into question the asserted failure on the part of the Tribunal to give clear particulars to the applicant of relevant circumstances surrounding the site visit conducted on 22 December 2015.
On 17 September 2021, the first respondent filed an Application in a Case seeking the following order:
“The Applicant claims public interest immunity over the following information: (a) information marked with proposed redactions in a document entitled “Site Visit and Interview Plan” marked Exhibit ECHS-1a to the Affidavit of Emily Constance Hanckel Spice of 16 September 2021. (b) information under the heading “Reasons for Referral” marked with proposed redactions on page 2 of a document entitled “BFU-Referral” marked Exhibit ECHS-2a to the Affidavit of Emily Constance Hanckel Spice of 16 September 2021.”
It was submitted on behalf of the First Respondent that ‘ … it is impermissible for the redacted material to be provided to the Applicant in this proceeding or their legal advisers, even on a restricted basis, before the First Respondent’s PII claim is decided by the Court, because that would be an “encroachment on the confidentiality claimed for the documents”.’
To put the above objection in context, one Emily Spice, in an affidavit filed on 17 September 2021, identified that there were two documents which were the subject of the first respondent’s claim for public interest immunity. Un-redacted copies of the two documents were respectively placed in sealed envelopes marked “ECHS – 1b” and “ECHS – 2b”. At paragraphs [4] – [8] inclusive of her affidavit, Ms Spice deposed as follows:
“[4]The following information is the subject of the first respondent’s claim of public interest immunity:
a. Sensitive information in the Site Visit and Interview Plan:
i. Part A – Referral details
ii. Part B – Site visit plan
iii. Part C – Interview plan
iv. Part D – Sign off
(the Site Visit Plan)
The Site Visit Plan was listed at items 13(a) to (d) of the Court Boook filed in this matter on 30 May 2018.
b. The safeguards profiles in the BFU Referral for the Site Visit (the Site Visit Referral).
[5]I have been shown a copy of the Site Visit Plan referred to at [3a] above. A copy of the Site Visit Plan with the sensitive information redacted is marked “Exhibit ECHS-1a”. The surnames of departmental officers in the Site Visit Plan have also been redacted by the first respondent on the basis of relevance.
[6]An unredacted copy of the Site Visit Plan is marked “Exhibit ECHS-1b”and is placed in a sealed exhibit to this affidavit in accordance with the statement of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67]. I am not aware of any reason which would prevent the Court from viewing the documents contained In “Exhibit ECHS-1b” to determine the public interest immunity claim and admissibility of the Site Visit Plan in this proceeding.
[7]I have been shown a copy of the Site Visit Referral referred to at [3b] above. A copy of the Site Visit Referral with the safeguards profiles redacted is marked “Exhibit ECHS-2a”. The surnames of the departmental officers in the Site Visit Referral have also been redacted by the first respondent with the consent of the applicant.
[8]An unredacted copy of the Site Visit Referral is marked “Exhibit ECHS-2b” and is placed in a sealed exhibit to this affidavit in accordance with the statement of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67]. I am not aware of any reason which would prevent the Court from viewing the document contained in “Exhibit ECHS-2b” to determine the public interest immunity claim and admissibility of the safeguards profiles in the Site Visit Referral in this proceeding.”
The un-redacted documents placed into the previously sealed envelope marked “Exhibit ECHS - 1b” corresponded with the redacted documents contained in “Annexure DJL – 1” to the affidavit of David Leonard filed on 29 September 2021, and the redacted documents contained in “Annexure JPW – 1” to the affidavit of James Watson filed on 19 October 2021.
The un-redacted documents placed into the previously sealed envelope marked “Exhibit ECHS – 2b” corresponded with the redacted document contained in “Annexure DJL – 2” to the affidavit of David Leonard filed on 29 September 2021.
Mr Watson was a Commander (SES Band 1) in the Australian Border Force, and at [4] of his affidavit, he deposed that he had broad operational command for ongoing operations which involved the carrying out of investigations involving the planning and undertaking of site visits in Partner Visa matters.
At [7] – [25] inclusive of his affidavit, when supporting the claim for public interest immunity, Mr Watson deposed as follows:
“[7]The Site Visit Plan contains the methods and strategies the Department uses to plan and conduct site visits. It brings together information from various sources as a result of different lines of investigations, the totality of which informs the Department’s investigative efforts. It also sets out the Department’s methodology for site visits. The sensitive information in the Site Visit Plan discloses information the Department’s current investigative techniques which are likely to be used in future investigations.
[8]The sensitive information has not previously been disclosed by the Department to the applicant, and is not of a type ordinarily disclosed to visa applicants generally. I believe that the sensitive information is likely unknown to the applicant or other applicants.
[9]I believe there would be an adverse effect on the ability of the Department to conduct unannounced site visits in the future if the sensitive information in the Site Visit Plan were disclosed to the applicant or any other individuals because site visits are an effective investigative tool for the very reasons that they are unannounced visits. They allow the Department to test the veracity of information relating to partner visa applications by gathering other information in circumstances where the applicant is precluded from the opportunity to influence the information and the site visit information is therefore likely reliable. Disclosure of the sensitive information would enable applicants to ascertain:
9.1. the reasons for site visits
9.2. information surveyed and analysed by investigators prior to site visits, and
9.3. the likely lines of questioning during site visits.
[10]Disclosure of the information would enable applicants to modify their behaviour in order to avoid the effective use of site visits by taking away the element of surprise. For example, applicants may be able to determine whether a site visit is likely to occur and could take steps to collude with others and create a ‘cover story’ to be provided to investigators. The Department will therefore be prejudiced in its ability to obtain information that it requires to make an informed decision of partner visa applications.
[11]I believe there is a public interest in protecting the integrity of the Department’s processes to verify the genuineness of relationships where an applicant has applied for a partner visa.
Assessment of risk
[12]In this affidavit, I describe various risks to the efficient operation of Australia’s migration program. In many instances, these risks are not capable of precise quantification. Rather, they are matters of professional judgment, having regard to a large number of potential variables and based on experience of the kind described earlier in my affidavit.
[13]Where i have made assessments of risk in this affidavit, I have had regard to both the likelihood of a particular outcome and the gravity of its consequences. In some cases, the likelihood of a particular outcome may not be high. However, in circumstances where the potential consequences include the erosion of the effectiveness of screening processes I consider that any material increase in likelihood should be avoided wherever possible.
Evidence in support of claims
Page 2 Research and Findings
[14]I am informed by the Department’s legal advisors that an affidavit affirmed by David James Leonard on 28 September 2021 relates to the redacted information on page 2 of the Site Visit Plan under the heading Reasons for Referral.
Pages 4, 5, 6 and 7
[15]In respect of the redactions on pages 4, 5, 6 and 7, the information discloses a key investigative tool for the Department in investigating relationships in partner visa matters. I am unable to expand upon the investigative tool in this affidavit because to do so would require me to give evidence that would itself attract a claim of public interest immunity. In the event that the Court would require further evidence in order to uphold any of the public interest immunity claims, I respectfully request an opportunity to do this (including by way of confidential affidavit).
[16]Currently, to my knowledge, applicants are not aware of the extent to which the Department relies on this information, and the particular aspects of this type of information that is considered relevant by the Department. If an applicant knew the extent to which the redacted information is used and relied on by the Department, it would enable an applicant to change their behaviour to circumvent the Department’s checks.
[17]The information also reveals the limitations of the Department’s access to this type of information. If the information is read in conjunction with other information in the Site Visit Plan, it also shows how the Department pieces together information when it is conducting an investigation. Currently applicants are not aware of the extent to which the Department investigates aspects of information that applicants provide to it in the course of applying for a visa.
[18]If applicants were aware of the limits of the Department’s investigations into this type of information, it would enable applicants to circumvent the Department’s investigations more easily than they do currently, when they do not know the extent of the Department’s investigations into this type of information and how the Department pieces together information from different sources.
Page 8
[19]In respect of the redaction on page 8, this information reveals the types of departmental investigations that are undertaken about a property prior to a site visit being conducted. Applicants are not currently aware of the extent of checks that are undertaken about a property before a site visit is undertaken and how far back in time those checks are undertaken.
[20]The information also discloses an investigative tool and the matters that are flagged as of interest from the use of that tool. If applicants were aware that this investigative tool was commonly used in partner visa matters, it would be easier for applicants to mask the true nature of their relationship in future investigations by ensuring that they did not raise a flag on this tool. In particular, by knowing the flags, applicants could more easily make sure they did not trigger the flags.
[21]The disclosure of the redacted information would compromise the Department’s ability to investigate relationships of concern by allowing applicants to more easily evade Departmental checks.
Page 10 Risk Assessment
[22]In respect of the redactions under the hearing ‘Risk Assessment’ on page 10, this information reveals key aspects of the Department’s considerations prior to undertaking a site visit which the applicant would not be aware are considered. It discloses the checks and searches that are conducted. By implication, it also discloses the checks that are not conducted when the Department is assessing person and third party risk prior to a site visit and which agencies are not consulted prior to a site visit.
[23]Applicants would not generally be aware of the types of checks that the Department conducts when undertaking a risk assessment prior to a site visit. If applicants were aware of the Department’s methodology in undertaking these risk assessments, they could more easily circumvent the Department’s site visit by targeting gaps in the methodology. For example, if an applicant were aware of when an officer might leave a site visit premises due to certain risks, an applicant wishing to prevent a site visit could ensure those risks are present.
Page 11 and 12 Interview Plan
[24]In respect of the redactions under the heading ‘Part C - Interview Plan’ on pages 11 and 12, this information concerns the Department’s strategy in conducting this site visit. The information reveals the lines of the Department’s enquiry in partner visa matters. It reveals the topics that are of operational and investigative interest. The Department uses the substantially the same methods as are set out in this Interview Plan in ongoing operations.
[25]Applicants would not be aware of the specific topics and questions that are likely to be asked in a site visit. If they were aware of the topics and questions, it could lead to applicants being able to prepare answers to those areas of interest which would frustrate the Department’s ability to obtain information about whether individuals are in a genuine relationship. There is a risk that the disclosure of this information would allow visa applicants to circumvent the Department’s strategy when conducting site visits in similar matters.”
‘Mr Leonard relevantly held the position of Assistant Secretary, Immigration Integrity and Assurance in the Department of Home Affairs, and at [4] of his affidavit he deposed that he had responsibility for management of the Department’s pre-decision visa risk systems which informed visa processing officers of potential risks relating to visa applications. He also deposed that he had responsibility for the Office of Migration Agent Regulatory Authority as well as responsibility relating to assurance and quality frameworks across the “migration continuum”.
At [10] – [16] inclusive of his affidavit, when supporting the claim for public interest immunity, Mr Leonard deposed as follows:
“[10]The information redacted under the heading ‘Reasons for Referral’ on page 2 of the Site Visit Referral and the under the heading ‘Reasons for Referral’ on page 2 of the Site Visit Plan includes details of the risk system indicators the Department assesses visa applications against to identify applicants who may not have a bona fide basis for their application.
[11]These indicators are developed based on the Department’s extensive experience in processing visa applications and patterns of behaviour employed by previous applicants who have been found to be non-genuine.
[12]Risk system indicators play an important role in identifying those visa applications where closer examination of bona fides is most warranted and in identifying those applications that do not raise flags in order to improve the overall efficiency of processing for low risk applicants. If the redacted material was to be revealed it would disclose key checks the Department undertakes in processing visa applications and inform future applicants with non-genuine bona fides seeking to evade departmental scrutiny.
[13]The Department continues to use indicators like those identified in the redacted material extensively in its operations.
[14]I believe that the indicators identified in the redacted material would not be known to the applicant or other visa applicants. I am not aware of the indicators (either historical or those that are still in use) being publicly disclosed.
[15]I believe there would be an adverse effect on the ability of the Department to identify unmeritorious applications in the future if the indicators used to identify applications for closer scrutiny were disclosed to the applicant or any other individuals. Combining the indicators included in the redacted material with the applicant’s circumstances would allow applicants to form a picture as to the matters which raise flags for further Departmental scrutiny. If applicants were aware of the indicators the Department uses and matters which flag referral for further scrutiny, an applicant (or their agent) would be able to ensure that the visa applicant’s circumstances follow a different pattern to avoid additional scrutiny. Furthermore, organised criminal organisations and other unlawful facilitators also seek to understand the department’s operating methods and make use of that information to exploit applicants and the immigration system. For this reason, the disclosure of the redacted material would compromise the efficient operation of Australia’s migration program. This risk is not capable of precise quantification. Rather, it is a matter of professional judgment, having regard to a large number of potential variables and based on experience of the kind described earlier in my affidavit. I consider that the disclosure of the indicators would result in a material increase in the likelihood of applicants or agents circumventing Departmental checks. In circumstances where the potential consequences include the erosion of the effectiveness of screening processes, I consider that any material increase in likelihood should be avoided wherever possible.
[16]I believe there is a public interest in protecting the integrity of the Department’s processes to verify the genuineness of a relationship where an applicant has applied for a partner visa. I am of the opinion that the redated information should not be disclosed on public interest grounds because the disclosure would give rise to a risk of the Department’s investigations being comprised and circumvented by visa applicants.”
Relevant Considerations
When considering the competing submissions advanced at the time of the hearing of this application, and when noting that the current claim for public interest immunity had not been made in the context of a criminal proceeding, the Court has had regard to the provisions of s. 130 Evidence Act 1995 (Cth). That section relevantly provided as follows:
“130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.”
In Sankey v Whitlam (1978) 142 CLR 1 at 38 - 43, Gibbs ACJ comprehensively considered the circumstances in which a Court might not order the production of a document or documents, saying as follows:
“The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer ([1968] AC) at 940, as follows: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.” It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer, at 940 , “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production.
An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. In the present case no suggestion has been made that the contents of any particular documents are such that their disclosure would harm the national interest. The claim is to withhold the documents because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However, it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments (Conway v Rimmer ([1968] AC) at 952, 973, 979, 987, 993 ; R v Lewes Justices; Ex parte Secretary of State for Home Department ([1973] AC) at p 412(1978) 21 ALR 505 at 527Australian National Airlines Commission v Commonwealth (1975) 6 ALR 433 ; 132 CLR 582 at 591 ), papers brought into existence for the purpose of preparing a submission to cabinet (Lanyon Pty Ltd v Commonwealth (1974) 3 ALR 58 ; 129 CLR 650 ), and indeed any documents which relate to the framing of government policy at a high level (cf Re Grosvenor Hotel, London (No 2) [1964] 3 All ER 354 ; [1965] Ch 1210 at 1247, 1255 ). According to Lord Reid, the class would extend to “all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies”: Conway v Rimmer at 952 .
One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least communications between ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However, this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind. Another reason was suggested by Lord Reid in Conway v Rimmer, at 952 :
“To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind.”
Of course, the object of the protection is to ensure the proper working of government, and not to protect ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.
Although it is sometimes categorically stated that documents of this class will not be ordered to be disclosed, at least if proper objection is taken, it has been acknowledged in some authorities that the protection(1978) 21 ALR 505 at 528which this class enjoys is not absolute. In Conway v Rimmer ([1968] AC) at 952 , Lord Reid recognized one exception — that cabinet minutes and the like can be disclosed when they have become only of historical interest. In Lanyon Pty Ltd v Commonwealth , Menzies J said (ALR at 60; CLR at 653) that there might be “very special circumstances” in which such documents might be examined. In Attorney-General v Jonathan Cape Ltd[1976] QB 752 , Lord Widgery CJ, at 764, accepted that no court would compel the production of cabinet papers, but nevertheless refused an application to restrain publication of the diaries of a former cabinet minister, which revealed, amongst other things, details of cabinet discussions and of advice given to cabinet. He said, at 767: “… it seems to me that the degree of protection afforded to Cabinet papers and discussion cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others require protection until a new political generation has taken over.” Later his Lordship said, at 770: “The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility.” He concluded that there cannot be a single rule governing the publication of such a variety of matters. These remarks, although directed to a different issue, afford useful guidance in considering the present question.
Although the statement that cabinet documents and other papers concerned with policy decisions at a high level (State papers, as I shall henceforth call them) are immune from disclosure was repeated in Conway v Rimmer , it accords ill with the principles affirmed in that case. The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary. That principle, in my opinion, must also apply to State papers. It is impossible to accept that the public interest requires that all State papers should be kept secret for ever, or until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed; this will be so, to take Lord Widgery's example, when new taxation proposals have passed into legislation. In other cases it may be necessary to maintain secrecy for many years. This may be so where the documents concern national security or diplomatic relations, to give two obvious examples. In other words, State papers do not form a homogeneous class, all the members of which must be treated alike. The subject matter with which the papers deal will be of great importance, but all the circumstances have to be considered in deciding whether the papers in question are entitled to be withheld from production, no matter what they individually contain.
If State papers were absolutely protected from production, great injustice would be caused in cases in which the documents were(1978) 21 ALR 505 at 529necessary to support the defence of an accused person whose liberty was at stake in a criminal trial, and it seems to be accepted that in those circumstances the documents must be disclosed: Duncan v Cammell, Laird & Co[1942] AC 624 at 633–4 ; Conway v Rimmer 1968 AC at 966–7, 987 ; R v Lewes Justices; Ex parte Secretary of State for Home Department [1973] AC at 407–8 . Moreover a minister might produce a document of his own accord if it were necessary to do so to support a criminal prosecution launched on behalf of the government. The fact that State papers may come to light in some circumstances is impossible to reconcile with the view that they enjoy absolute protection from disclosure.
The fact that members of the Executive Council are required to take a binding oath of secrecy does not assist the argument that the production of State papers cannot be compelled. In Attorney-General v Jonathan Cape Ltd , Lord Widgery CJ dealt with the suggestion that the publication of the diaries in that case would have been a breach by the minister of his oath as a privy councillor, and said that it was necessary to show that whatever obligation of secrecy or discretion attaches to former cabinet ministers, that obligation is binding in law and not merely in morals (see at 767). Similarly, State papers are not protected from disclosure because they are confidential or because the minister has taken an oath not to reveal them. The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2)[1973] 2 All ER 1169 ; [1974] AC 405 at 433 .
For these reasons I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection — the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made. Moreover, no such order should be enforced until the government(1978) 21 ALR 505 at 530concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf Conway v Rimmer [1968] AC at 953 ).
It was submitted on behalf of the first respondent that should the redacted documents be disclosed in their entirety, there would be a real risk of prejudice to the proper functioning of government, and that that consideration justified the Court upholding the public interest immunity claim. Reliance was specifically placed upon the contents of the affidavits of Mr Watson and Mr Leonard.
It was submitted on behalf of the applicant that the redacted documents ought to be disclosed in an un-redacted form because any “injury which the nation or the public service would be likely to suffer” was outweighed by the evidentiary value and importance of the documents in the subject litigation. [1] It was submitted that the information obtained by departmental officers during the course of the site visit assumed “great significance” in the decision of the Minister’s delegate to refuse the visa, and that such information was relied upon by the Tribunal in affirming the delegate’s decision, and in particular, in rejecting the evidence that the applicant and her sponsor which was otherwise said to be consistent. It was further submitted that the un-redacted documents were specific to the applicant and to the site visit to her home, and that the documents were not such as to disclose relevant departmental procedures or policies which would, if known generally, hinder the efficient administration of the department regarding the assessment of partner visa applications.
[1] Alister v The Queen (1984) 154 CLR 404 at 407 – 408.
Having considered it necessary to view the two (2) respective documents for the purpose of weighing up their relevance and significance to the public interest immunity claim, and in light of the respective submissions made by opposing Counsel, the Court examined the documents in question. [2] The Court did so having regard to the applicant’s submission that the full contents of the redacted documents ought to be revealed having regard to the importance attached to the contents of the documents by both the delegate and the Tribunal. The Court has also had regard to the applicant’s submissions to the effect that the information in the redacted documents was important, and that the granting of the application in a case would hamstring the applicant in the presentation of submissions at the final substantive hearing of the Amended Application for Review.
[2] Section 133 Evidence Act 1995 (Cth).
The Court accepts the submissions made on behalf of the first respondent to the effect that the effectiveness of keeping confidential the Department’s methods and strategies used in connection with the investigation of the validity of partner visa applications would be adversely diminished should the subject un-redacted documents be ordered to be produced. The Court had the benefit of looking at the documents in their entirety, and was satisfied that the concerns of Mr Watson and Mr Leonard have been made out. The Court finds that should the documents the subject of the claim for privilege be produced, the Department’s effective strategies and investigative modus operandi would make their way into the public domain.
The damage to the effective relevant administration of the Department should the documents be disclosed would occur even if limited disclosure, on an undertaking by the lawyers for the applicant, was to be ordered. That finding in no way should be taken as a questioning of the integrity of either the applicant’s Counsel, or of his instructing solicitor. Rather, it is merely a recognition of the fact that should the strategies and procedures of the Department be disclosed to them in this matter, they would inherently be invested with such knowledge for use by them, legitimately, and on instructions, in other like cases. To enable that to be done would be contrary to public policy.
The Court has conducted a balancing exercise which has fallen in favour of the first respondent. That exercise necessarily cannot involve disclosure of those redacted portions of the documents under consideration. Nonetheless, those parts of the documents which are un-redacted are able to be the subject of submissions at the final hearing of the matter. It cannot be said that the applicant had not been put on notice by the Tribunal as to the gist of the contents of the redacted documents, as set out by it in its s. 359A letter to the applicant. At [22] – [29] inclusive of its reasons, the Tribunal said as follows:
“[22]On 18 July 2017, pursuant to s.359A of the Act, the Tribunal wrote to Ms Nguyen, by way of her authorised recipient (her migration agent), to give her clear particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.
[23]The letter stated that, as noted at the end of the hearing on 13 July 2017, during the hearing the Tribunal observed that she and her sponsor had given a number of answers which were inconsistent with information provided by the other. The Tribunal reminded her that, at the tie, it had informed her that it would write to her about these matters.
[24]The particulars of the information are that:
·When asked when she had started working at the Van Mai restaurant she said that was in November 2013. While Mr Nghiem said that he was not sure, he said it was after they had married. The Tribunal notes that the parties married on 28 June 2014.
·When asked when she had finished working at the Van Mai restaurant Ms Nguyen said that she could not remember exactly but that it had probably been about nine months ago. By contrast, Mr Nghiem said that Ms Nguyen had finished working there over a year ago or that it was one and a half years ago.
·When asked whether the celebratory meal after the signing off of the parties’ marriage certificate was a lunch or a dinner, Ms Nguyen said that it was a diner whereas Mr Nghiem said that it was a lunch.
·When asked whether she had given her husband a card or a gift for his birthday earlier in the year Ms Nguyen said that she had not but that she had cooked him a meal which she explained was customary. Her husband said that MS Nguyen had not done anything to celebrate his birthday – which the Tribunal noted was his 40th birthday. He did not mention that Ms Nguyen had cooked him a meal.
·When asked whether the parties had celebrated Vietnamese New Year together earlier in the year, Ms Nguyen said that she and her husband had taken the two children to the Springvale temple. By contrast, Mr Nghiem said that it was just the two of them who had gone to the Springvale temple.
·When discussing a previous trip to Philip Island, Ms Nguyen said that she and Mr Nghiem had gone there on Christmas Day whereas Mr Nghiem said that they had gone at the end [of] 2013 and to celebrate the New Year.
·When asked who puts out the rubbish bins, Ms Nguyen said that her husband or their housemate Phong does this whereas Mr Nghiem said that he does not know but that it was either Ms Nguyen or Phong.
·When asked what kind of contraception the parties both used, Ms Nguyen said pills whereas Mr Nghiem said condoms and then that Ms Nguyen also took pills and then he said that they mainly used pills.
·When asked how or what impact the departmental site visit had had on their relationship, Ms Nguyen said that it had no impact whereas Mr Nghiem said that he was upset and then added that he had been very upset.
[25]The Tribunal informed Ms Nguyen that this information is relevant to the review because to meet the definition of ‘spouse; under s.5F of the Act, she must be in a ‘married relationship’. Three of the four requirements for a “married relationship’, for the purposes of the Act, are that she and Mr Nghiem have a mutual commitment to a shared life as husband and wife to the exclusion of all others (s.5F(2)(b)), that the relationship is genuine and continuing (s.5F(2)(c)) and that they live together or do not live separately and apart on a permanent basis (s.5F(2)(d)).
[26]The letter continued that it would be expected that the parties to a spouse relationship would be consistent in their evidence about these matters.
[27]The Tribuinal informed Ms Nguyen that if the Tribunal relies on this information in making its decision, it may conclude that she does not meet htree of the mandatory criteria for a spousal relationship within the meaning of s.5F of the Act. The consequences of this information being relied upon would mean that the Tribunal could not find that she meets cl.801.221(2)(c) of Schedule 2 to the Regulations.
[28]The Tribunal invited Ms Nguyen to comment on or respond to the information by 1 August 2017.
The response to the s.359A letter
[29]On 23 July 2017, within the timeframe for replying, Ms Nguyen’s representative forwarded two pages of comments outlining how he had been instructed to respond.”
The obvious tension between upholding a claim for privilege and the due administration of justice has, in this matter, been carefully weighed up by this Court. The Court is satisfied that the interests of justice require the claim for privilege to be upheld.
The application in a case filed on behalf of the first respondent is accordingly granted.
The respective envelopes previously containing the un-redacted documents and respectively marked ‘Exhibit ECHS-1b’ and ‘Exhibit ECHS-2b’ have had such un-redacted documents respectively placed in them, and the Court has caused such envelopes to be securely stapled so as to prevent re-opening unless otherwise appropriately ordered.
And it is so ordered.
The Court will hear the parties as to costs
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 11 March 2022
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