Plaintiff B60 of 2012 v Minister for Foreign Affairs and Trade

[2013] FCA 1303

FEDERAL COURT OF AUSTRALIA

Plaintiff B60 of 2012 v Minister for Foreign Affairs and Trade [2013] FCA 1303

Citation:	Plaintiff B60 of 2012 v Minister for Foreign Affairs and Trade [2013] FCA 1303
Parties:	PLAINTIFF B60 OF 2012 v MINISTER FOR FOREIGN AFFAIRS AND TRADE and MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
File number:	QUD 757 of 2012
Judge:	DOWSETT J
Date of judgment:	6 December 2013
Catchwords:	PRACTICE AND PROCEDURE – discovery – public interest immunity – assessments of Defence Intelligence and ASIO – whether PII claims over assessments should be upheld – whether public interest in secrecy of intelligence gathering methods prevails
Legislation:	Australian Security Intelligence Organization Act 1979 (Cth) Migration Regulations 1994 (Cth) Sch 4
Cases cited:	Church of Scientology v Woodward (1982) 154 CLR 25 applied Conway v Rimmer [1968] AC 910 cited Leghaei v Director General of Security (2007) 241 ALR 141 cited Parkin v O’Sullivan (2009) 260 ALR 503 cited
Date of hearing:	26 July 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicant:	Mr DP O'Gorman SC with Mr M Plunkett
Solicitor for the Applicant:	Howden Saggers Lawyers
Counsel for the Respondents:	Mr SP Donoghue SC with Ms AM Mitchelmore
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 757 of 2012

BETWEEN:

PLAINTIFF B60 OF 2012
Applicant

AND:

MINISTER FOR FOREIGN AFFAIRS AND TRADE
First Respondent

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
Second Respondent

JUDGE:	DOWSETT J
DATE:	6 DECEMBER 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE APPLICANT

1. The applicant is a citizen of Iran where she resides.  She holds degrees in materials engineering from an Iranian university.  In 2010 she applied for, and was awarded a scholarship to undertake post-graduate work at the University of Queensland, leading to the degree of Doctor of Philosophy in Engineering.  She was to be supervised by Professor Andrejs Atrens, Professor of Materials Engineering in that University.  On 19 April 2010 the applicant applied for a class 574 visa in order to enter and remain in Australia for the purpose of undertaking her doctoral studies.  For such a visa, the applicant had to satisfy public criterion 4003 prescribed by the Migration Regulations 1994 (Cth) (the “Regulations”). That criterion is as follows:

   The applicant:

   (a)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests; and

   (b)is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and

   (c)       either:

   (i)is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011  for the purpose of preventing the person from travelling to, entering or remaining in Australia; or

   (ii)if the applicant is declared - is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011 .

2. On 18 November 2010 a Senior Migration Officer advised the applicant that her application had been refused because she “failed to meet public interest criterion 4003(b)”, in that she was a person who had been determined by the Foreign Minister, or a person authorized by that Minister to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction (“WMD”).

   THE SECURITY COUNCIL RESOLUTIONS

3. The evidence discloses that the Security Council of the United Nations Organization has resolved, on numerous occasions, to impose sanctions upon Iran in connection with the proliferation of WMD.  Australia supports those sanctions.  It may be that criterion 4003 was adopted in order to give effect to such support.  However those resolutions are only of marginal relevance for present purposes.

   THESE PROCEEDINGS

4. The applicant applied in the High Court for a writ of certiorari quashing the criterion 4003 decision, the decision to refuse to grant the visa and various associated decisions, together with other relief.  On 23 November 2012 Kiefel J remitted the proceedings to the Federal Magistrates Court.  On 10 December 2012 Federal Magistrate Burnett ordered that the proceedings be transferred to this Court.  The circumstances leading to the order for transfer are not apparent.  In these proceedings the first and second respondents are the Minister for Foreign Affairs and Trade and the Minister for Immigration, Multicultural Affairs and Citizenship respectively.  The applicant claims that she was denied procedural fairness in that she was not told of any adverse information, or invited to comment on any such information.  She also claims that the decisions must be based on irrelevant considerations, or must have been made without regard to relevant considerations. 

   DISCOVERY AND THE CLAIM TO PUBLIC INTEREST IMMUNITY

5. On 6 February 2013 I ordered that the first respondent give discovery of documents which were before the relevant decision-maker in making each of three decisions.  At that time it was anticipated that a claim for public interest immunity might be made in respect of otherwise discoverable documents.  In the event such a claim was made.  The documents subject to the claim are identified in Schedule 2 to the affidavit of Amanda Louise Gorley filed on 20 February 2013 as follows:

No	Description of document	Date of document	Extent of privilege claimed	State grounds of privilege
1.	WMD assessment undertaken by the Defence Intelligence Organisation (copy)	8 June 2010	Entire document	Public interest immunity
2.	Qualified security assessment undertaken by ASIO (copy)	8 November 2010	Partial	Public Interest Immunity
3.	Handwritten summary of WMD assessment undertaken by the Defence Intelligence Organisation (copy)	12 November 2010	Partial	Public Interest Immunity
4.	WMD assessment undertaken by the Defence Intelligence Organisation (copy)	17 June 2011	Entire document	Public Interest Immunity
5.	Handwritten summary of WMD assessment undertaken by the Defence Intelligence Organisation (copy)	31 August 2011	Partial	Public Interest Immunity
6.	WMD assessment undertaken by the Defence Intelligence Organisation (copy)	19 January 2012	Entire document	Public Interest Immunity
7.	Handwritten summary of WMD assessment undertaken by the Defence Intelligence Organisation (copy)	7 February 2012	Partial	Public Interest Immunity

THE CHALLENGE

1. The applicant challenges the claims to public interest immunity. 

   THE PUBLIC INTEREST

2. In Conway v Rimmer [1968] AC 910, Lord Reid said, at 940:

   It is universally recognized that here there are two kinds of public interest which may clash.  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.  There are many cases where 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 interests, public or private, can be allowed to prevail over it. 

3. Lord Morris of Borth-y-Gest said at 954-955:

   It is, I think, a principle which commands general acceptance that there are circumstances in which the public interest must be dominant over the interest of the private individual.  To the safety or the well-being of the community the claims of a private person may have to be subservient.  This principle applies in litigation.  The public interest may require that relevant documents ought not to be produced.  If, for example, national security would be or might be imperilled by the production and consequent disclosure of certain documents, then the interests of the litigant must give way.  There are some documents which can readily be identified as containing material the secrecy of which it is vital to protect.  But where disclosure is desired and is resisted there is something more than a conflict between the public interest and some private interest.  There are two aspects of the public interest which pull in contrary directions.  It is in the public interest that full effect should be given to the normal rights of a litigant.  It is in the public interest that in the determination of disputes the courts should have all relevant material before them.  It is, on the other hand, in the public interest that material should be withheld if, by its production and disclosure, the safety or the well-being of the community would be adversely affected.

4. In Church of Scientology v Woodward (1982) 154 CLR 25 at 76, Brennan J (as his Honour then was) said:

   Yet discovery would not be given against the Director-General save in a most exceptional case.  The secrecy of the work of an intelligence organisation which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice … .

   …

   Nevertheless, the veil of secrecy is not absolutely impenetrable … But the veil is not penetrated merely by a plaintiff’s deposition that he is not a security risk.  That, after all, may be the very matter which is under investigation.  Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover.

5. In Parkin v O’Sullivan (2009) 260 ALR 503 at [32], Sundberg J said:

   In seeking to establish an exceptional case the applicants point out that they may be unable to make out their cases if the claim to immunity is upheld.  The authorities establish that this consequence of the outcome of the process of balancing public interest immunity against the public interest, upon which the applicants rely, of having conventional access to evidentiary material, is not exceptional.  Thus in the Scientology case … Brennan J referred to the obstacles in a plaintiff’s path in judicial review proceedings against the Director-General arising out of the restrictions imposed upon discovery in aid of proving what is and is not relevant to security.  In the same case … Mason J noted that a successful claim for privilege may exclude from consideration the very material on which a plaintiff hopes to base its argument. 
   These observations of Mason J were quoted with approval by Gummow, Hayne, Heydon and Kiefel JJ in [Gypsy Jokers Inc v Commissioner of Police WA (2008) 234 CLR 532]. In that case at [5], Gleeson CJ said that the consequence of success of a claim for public interest immunity against disclosure of information is that the information is not available as evidence to be taken into account in deciding the outcome of judicial review proceedings. The court would not be able to have regard to some, or perhaps any, of the information on which a public official’s belief was based.

6. As to the weight to be attributed to opinions as to the consequences of disclosure, Sundberg J said, at [30]:

   … There are many cases that establish that courts should attach very considerable weight to the view of what national security requires as is expressed by the responsible officer …  Although usually expressed in connection with the inspection of protected documents themselves, those observations apply also to an affidavit, such as that sworn in this case, which supplies the reasons for the claim to privilege.  In the open part of his affidavit the respondent says that the disclosure of the redacted portions of his affidavit would be likely to prejudice national security.  In the balance of the affidavit, in particular the redacted parts, he explains the basis for his opinion.  Having read those parts, I am satisfied that the opinion is soundly based.  Accordingly, the respondent may rely on his affidavit in support of his public interest claim without providing for the applicants’ legal representatives the redacted parts thereof. 

7. In Leghaei v Director General of Security (2007) 241 ALR 141 the Full Court said at [56]-[58]:

   56In Alister v R … Wilson and Dawson JJ said that questions of national security raised issues of great importance which will seldom be wholly within the competence of the Court to evaluate.  Their Honours went on to observe that:

   It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister. 

   57In that case, Brennan J also noted that the Court is “ill-equipped itself to evaluate pieces of evidence obtained by ASIO … .

   58Similar views were expressed by Lord Nicholls of Birkenhead in A v Secretary of State … as follows:

   … All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here.  All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice.  Courts are not equipped to make such decisions, nor are they charged with that responsibility.

8. The applicant submits that the public interest in her having access to these documents outweighs the public interest which the claim of public interest immunity is said to protect.  She relies upon the following considerations:

   ·the absence of any known evidence of association with the proliferation of WMD;

   ·the fact that the Australian Government selected her for the scholarship and was willing to meet the associated financial cost;

   ·potential damage to the applicant’s career;

   ·potential damage to her capacity to travel internationally;

   ·her academic achievements to date; and

   ·that there is a public benefit in her being able to carry out her research in Australia.

9. The applicant also submits that she has a substantial basis for asserting that the relevant decision-making processes miscarried, that basis being her assertion that she is aware of no past or present connection with WMD, and that her proposed research did not relate to such matters.  The applicant also submits that the available material demonstrates that a misconstruction of criterion 4003(b) underlies the decisions, in that the relevant decision-maker did not give any, or sufficient recognition to the requirement in criterion 4003(b) that the applicant’s presence in Australia be associated with the proliferation of WMD.

   THE APPLICANT’S EVIDENCE

10. Concerning her proposed work at the University of Queensland the applicant says that to the best of her knowledge, the results of her research were to be published generally in academic journals and at conferences.  Her thesis was also to be published.  As far as she is aware, her proposed research programme had no connection, directly or indirectly with the proliferation of WMD.  The applicant has no interest in that subject or in weapons generally.  She is unaware of any relationship between her previous studies, or her proposed research at the University of Queensland and WMD.  She was amazed and shocked to hear that her visa application had been refused because of a concern that she might be directly or indirectly associated with the proliferation of such weapons.  The applicant was not, at any time advised of facts which were adverse to her application.  Nor was she asked to provide additional information.  She was reluctant to commence legal proceedings for fear of harming her chances of resolving the problem.  She sought access to documents under Freedom of Information legislation.  The applicant is concerned that the refusal of her application may, in the future make it difficult for her to obtain visas to visit Australia or other countries.

11. Professor Atrens has also sworn an affidavit in support of her application.  He says that in 2009 he was the lead researcher, with Professor Evan Gray of Griffith University, in research conducted for the Australian Research Council in connection with the topic “Influence of Hydrogen on Metallic Components for Clean Energy”.  The project was partly funded by the Australian Government.  It involved ordinary, commercially available engineering material.  The results were to be published.  It was expected that a doctoral candidate would receive a scholarship to prepare a thesis in connection with the matter, which thesis would also be published.  As far as Professor Atrens knows the project did not involve any systems, knowledge or engineering skills directly related to the manufacture, production, distribution, delivery or proliferation of WMD.  Nor did it involve chemical, biological or nuclear material related to those matters.

12. The PhD scholarship was advertised internationally and attracted 29 applicants.  The present applicant was well qualified, with degrees from a reputable university.  She possessed the skills, knowledge and scholarship necessary to undertake PhD research.  Neither respondent consulted Professor Atrens about the project.  However he has subsequently made representations concerning the applicant’s position.

    THE RESPONDENT’S EVIDENCE

13. The first respondent has filed “unclassified” affidavits by two deponents, Stephen David Meekin and David Taylor Irvine, in support of the claim to public interest immunity.  The first respondent has also filed a “classified” affidavit by each deponent.  The unclassified affidavits appear on the Court file in the usual way.  The first respondent seeks to prevent access by the applicant, her legal advisers and other persons to the classified affidavits, save to the extent that I may otherwise decide.  I understand that if I were to allow access to such documents by any person other than myself, the first respondent would probably seek to withdraw them. 

    Mr Meekin

14. Stephen David Meekin is the Deputy Secretary Intelligence and Security within the Department of Defence (the “Department”).  He is responsible for the Defence Intelligence and Security Group (“DISG”) and reports directly to the Secretary of the Department.  DISG includes:

    ·Defence Intelligence Organisation (“DIO”);

    ·Australian Signals Directorate (“ASD”);

    ·Defence Imagery and Geospatial Organisation (“DIGO”)’ and

    ·Defence Security Authority (“DSA”).

15. Mr Meekin is a very senior public servant concerned with areas of national security.  Prior to his entry into the public service he was a senior Army officer with substantial experience in intelligence matters, and wide experience within the national and international intelligence communities.  In his unclassified affidavit Mr Meekin deposes to his experience in intelligence and intelligence-related matters and provides “necessarily limited evidence in support of the public interest immunity claim made by the Commonwealth acting through the [Department] in relation to certain identified documents”.  Mr Meekin considers that disclosure of these documents, and the information contained in them would be likely to prejudice the national security and defence of Australia. 

1. With respect to the WMD assessments dated 8 June 2010, 17 June 2011 and 19 June 2012, Mr Meekin considers that they should, as a class be immune from disclosure because, as a class such documents “pose a special risk of damage to national security and defence if they are disclosed”.  This risk is said to arise from the context in which, and the purpose for which they are prepared as well as the kinds of information which they routinely contain. 

2. Mr Meekin asserts, and I accept that the proliferation of WMD is a pressing concern for the Australian Government, and that the consequences of an attack, using such weapons would be very serious.  I accept also that there are extremist groups which are willing to use, and are capable of using those weapons, and that such groups wish to obtain chemical, biological or radiological weapons.  The countries which cause most concern in this regard are not located within close proximity to Australia.  Iran is one such country.  Despite its geographic remoteness the relevant technology might spread relatively quickly from one part of the world to another.

3. As I have said, Australia supports various Security Council resolutions concerning proliferation of WMD, particularly as they relate to Iran.  These resolutions require that other nations not assist Iran in seeking access to, or improving its access to WMD.  I accept that Australia has undertaken a duty to exercise vigilance in order to prevent specialized teaching or training of Iranian nationals within its territory, in disciplines which might contribute to the proliferation of nuclear weapons.

4. Agencies under Mr Meekin’s supervision are responsible for protecting Australia’s national security by obtaining, correlating and evaluating intelligence, in connection with existing and emerging threats to defence and national security interests.  They advise the government in connection with such matters.  In particular they provide independent intelligence assessments, advice and related services to the Minister for Defence, the Department of Defence and the Australian Defence Force, in order to support the defence of Australia and its interests. 

5. National programmes concerning WMD are frequently closely guarded secrets.  It is difficult for the intelligence agencies of other countries to gather information concerning such programmes.  It is fundamental to the work of intelligence agencies that they be able to maintain secrecy in connection with their sources, capabilities, investigative techniques and work methods, together with their areas and persons of operational interest and the extent of their ability to obtain intelligence in relation to those areas and persons.  The practice of neither confirming nor denying the possession of, or access to information, or gaps in information is important to the maintenance of security and to the operation of these agencies.  Any departure from such practice could compromise current or future collection activities and/or place Commonwealth officers and other persons at risk.  In other words the capacity to collect and analyse information covertly is of great importance.

6. Mr Meekin considers that WMD assessments comprise:

   … a discrete class of documents created for the specific purpose of informing the Australian Government of a visa applicant’s links to the proliferation of WMD.  They are documents of a class which, if disclosed, will likely prejudice Australia’s natural [national] security and defence interests by revealing in a high level of detail specific information concerning the Australian Government’s ability to collect information from many disparate sources, how Australia’s Defence Intelligence agencies and organisations integrate and analyse that intelligence information, and the scope and limits of the Australian Government’s awareness of WMD programmes and threats.

7. Such assessments are usually in a form which would readily permit identification of methodology and topics of interest.  They contain information which, together with other information would enable other intelligence agencies to “build up a coherent and comprehensive picture from individual pieces of information including information which may appear to be innocuous or meaningless”.  Mr Meekin considers that there is a high risk:

   … that disclosure of the WMD assessments, either alone or in conjunction with other facts which I consider would likely already be known by other persons, would enable foreign intelligence agencies and others to draw reliable inferences in relation to sensitive sources of intelligence, including methods of intelligence collection, … .  I further consider that this would present a real risk to Australia’s national security and defence because it would allow intelligence sources and capabilities used today to be circumvented or deployed against the Commonwealth’s interest.

   Another possible risk to the public interest might flow from identification of intelligence staff members who have particular areas of expertise. 

8. WMD assessments have a very limited distribution within the Australian Government and are dealt with on a highly confidential basis.  They carry a very high national security classification.  Mr Meekin considers that if such documents were to be disclosed in the course of court proceedings, there would be a formal and significant change to current practice, with a reduction in the quality of the information available to decision-makers.

9. I have read Mr Meekin’s classified affidavit.  He elaborates upon various aspects of this information.  The additional material supports the claims in his unclassified affidavit. 

10. Given Mr Meekin’s experience in the areas of intelligence and security, his familiarity with Australia’s security operations and the high level of responsibility which he bears, I accept his expert opinion as to the threat to the public interest which would be posed by disclosure of these documents.  The thrust of his concern does not primarily address the confidentiality of any particular information concerning this applicant.  Rather, he seeks to protect the operation of the Australian security and intelligence agencies.  His concern is that the disclosure of such information, and the disclosed documents themselves, might disclose much about each agency’s knowledge or lack of knowledge, capacity, interests, methods and personnel.

11. In considering Mr Meekin’s evidence, I have kept in mind the risk that, like any specialized group, the intelligence community may become, or have become preoccupied with itself, its own values and perceived importance, so that his affidavit might not present a reliable basis for the balancing exercise which I must perform.  However nothing in Mr Meekin’s affidavit appears to be extreme, irrational or illogical.  In particular I accept that expert analysts are able to make much from a collection of relatively small scraps of apparently unconnected information.  I take into account, too the very high security classification attributed to documents of this kind.  It seems unlikely that an operational intelligence or security service would want to burden itself with an unduly large number of unnecessarily highly classified documents.  That WMD assessments are so treated weighs heavily with me in reaching my conclusions concerning Mr Meekin’s evidence. 

12. The intelligence mission in connection with WMD assessments is quite focussed.  Relevant government agencies receive assistance from the various intelligence and security agencies, which agencies no doubt perform many other tasks, using the same, or similar techniques.  Any compromise in connection with WMD assessments may have unpredictable consequences in other areas of operation.  It cannot be assumed that such a compromise could be readily accommodated.  Thus Mr Meekin considers that any compromise may result in the need for substantial changes to the agencies’ procedures and/or their advice to government.

13. Mr Meekin also refers to a system of classification codes which has been used in this case to mark-up the WMD assessments.  The codes are said to represent “five key national security and defence-sensitive features, the disclosure of which would lead to harm to the public interest”.  They are set out in a table as follows:

Code	Ground of claim
SCT	Discloses sources, capabilities, analytical techniques and work methods
IOI	Discloses areas of intelligence and operational interest
EDK	Discloses extent of DIO’s knowledge, or particular knowledge, on a subject relating to national security and defence
FLR	Information supplied by a foreign liaison agency or information which would otherwise damage foreign liaison relationships
DRC	Discloses confidential Defence designations, operational titles, officer identities, indexing, referencing file numbers and classifications

1. Mr Meekin gives further information concerning these codes.  He submits that if I do not uphold the class claim then nonetheless, the information in the WMD assessments which this code system identifies, ought be immune from disclosure.  The three hand-written summaries of WMD assessments and the qualified security assessment have been similarly marked.  On the same basis Mr Meekin claims public interest immunity with respect to the marked portions of all four documents. 

   Mr Irvine

2. David Taylor Irvine is the Director-General of Security, holding office under the Australian Security Intelligence Organisation Act 1979 (Cth) (the “ASIO Act”). In that capacity he has control of the Australian Security Intelligence Organisation (“ASIO”). Mr Irvine seeks to support a claim to public interest immunity with respect to documents 2 and 7, being the qualified security assessment dated 8 November 2010 and the hand-written note dated 7 February 2012. Effectively, they are ASIO’s documents.

3. ASIO’s function is:

   •to obtain, correlate and evaluate intelligence relevant to security;

   •for purposes relevant to security to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; and

   •to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

4. It is in the public interest that ASIO discharge its core function, namely to protect Australia’s security and to provide advice to government in relation to matters relevant to such protection.  I accept that it is fundamental to the effective operation of ASIO that specific details of its areas or subjects of interest, its ability to obtain intelligence, its sources, techniques and work methods, its successes and information derived from its successes be kept secret.  This goal may require that it neither confirm nor deny activities which may, or may not have occurred.  The need to protect the secrecy of ASIO’s operations and its information and intelligence holdings is recognized by statute.  I accept Mr Irvine’s view that the disclosure of certain information contained in the various documents would be likely to prejudice national security.  He has identified that information using the codes “A”, “B” and “C”.  Information coded “A” would disclose ASIO’s knowledge on a subject relating to security.  Information coded “B” would disclose ASIO classifications and administrative identifiers.  Information coded “C” is information which would disclose content which is subject to Mr Meekin’s claims to public interest immunity.

5. Mr Irvine’s relies upon the same considerations and logic as that adopted by Mr Meekin.  In his classified affidavit, he has expanded upon the material in his unclassified affidavit. In view of my extensive discussion of Mr Meekin’s evidence, I need not say anything more about Mr Irvine’s evidence. 

   PUBLIC INTEREST IMMUNITY

6. In the circumstances I conclude that the WMD assessments are documents of a class which ought, for that reason alone, be treated as immune from disclosure, subject to any consideration of the public interest in the applicant’s having an opportunity to enter Australia and/or to seek judicial review of the decisions which have precluded such entry.  This view is based upon my acceptance of Mr Meekin’s evidence.  For similar reasons I uphold the claim to immunity in connection with the marked positions of the other four documents.  In so doing, I also have regard to Mr Irvine’s evidence.

   PUBLIC INTEREST IN DISCLOSURE

7. The applicant submits that there is no evidence of any connection with WMD and that, in those circumstances, the public interest in her having access to the documents is strengthened.  That argument fails to take account of the observations of Brennan J in the Scientology case that the “veil of secrecy” cannot be penetrated “merely by the plaintiff’s deposition that he is not a security risk”.  However the applicant also submits that given the absence of such evidence, it may be inferred that there has been, in the decision-making process, a failure to give effect to the proper construction of criterion 4003(b).  In effect the applicant submits that the relevant decision-maker cannot have recognized that the criterion focusses upon the applicant’s presence in Australia and the relationship between that presence and the proliferation of WMD.  The applicant submits that her own evidence, and that of Professor Atrens establish that the decision cannot be based upon a conclusion that her proposed research or presence in Australia would present the “requisite risk”. 

8. Criterion 4003(b) requires that the visa applicant not have been determined to be a person:

   ·whose presence in Australia,

   ·may be directly or indirectly,

   ·associated with the proliferation of WMD.

9. The expression “may be directly or indirectly associated with” contains three features which suggest that the relevant association may include a very broad range of possible “relationships”.  Those features are the word “may”, the phrase “directly or indirectly” and the words “associated with”.  The breadth of the provision makes it virtually impossible to identify, in advance, any general limits.  It is quite possible that the applicant’s presence in Australia, taken in conjunction with other, presently unknown factors would suggest a relevant association.  It is also possible that the applicant might not, herself be aware of something in her past or in her associations, in Iran or elsewhere which might raise a relevant concern.  She may satisfy educational or other criteria which suggest that the applicant could be identified by those conducting WMD programmes in Iran as a potential worker in that area.  Use of the word “may” implies a bare possibility.  The focus is the possibility of an association, not a demonstrated association.

10. In balancing the conflicting public interests, as well as considering the applicant’s interests, one must acknowledge that from the point of view of the Australian government, it is Iran which is responsible for any negative impact upon the applicant. There is undoubtedly a level at which the Security Council’s resolutions are designed to have negative impact upon Iranian citizens, in the hope that such impact will create popular pressure for change in Iranian government policy concerning WMD.  Australian government policy may also reflect that design.  This Court has no role in advancing government policy.  However, to the extent, that the applicant relies upon the consequences for her of the Australian governments’ policies, the Court should not be tempted to go beyond its proper role, simply because, in other circumstances, such consequences may seem harsh or oppressive.  As far as I can see the applicant has no right to enter Australia.  However the Australian government may have contributed to her having a reasonable expectation that she would be permitted to do so in order to take up her scholarship.

11. I accept that the public interest in the decision-making process and in effective judicial review would be better served if the applicant were able to challenge the decisions in the usual way (with access to all relevant documents) than if she were unable to do so.  The public interest will rarely be served by arbitrary and unexplained decisions.  The Australian government’s conduct in offering her the scholarship is a further ground for doubting the appropriateness of the decisions.  No doubt it is in the public interest that good students be brought to this country for research purposes. There can be no public interest in excluding a person who has no association with WMD, nor in damaging a young woman’s future career or her capacity to travel. 

12. On the other hand, there is a public interest in the protection of Australia’s security.  Such protection necessarily depends upon intelligence gathering, evaluation and distribution.  It also relies upon counter-intelligence measures.  Whilst these functions may once have been relatively unsophisticated, that is no longer the case.  There is nothing surprising about the proposition that we seek to maintain our own secrets and discover the secrets of others.  Our secrets include the extent of our own knowledge of the secrets of others, and the methods we use to collect information and evaluate and distribute it.

13. Clearly, there is a substantial imbalance between the consequences for the nation of any compromise of its intelligence and security agencies, and the consequences for the nation and the applicant flowing from a refusal to allow her to enter the country, or to have judicial review of such refusal.  Regrettably, the applicant will probably suffer some short and, perhaps longer term adverse consequences as a result of the fact that she has been refused a visa.  However the consequences are unlikely to be permanent.  They would be generally alleviated by Iran’s acceptance of the views of the international community.  In the end the public interest in allowing her to challenge the various adverse decisions is significant, but it is far outweighed by the public interest in the protection of the effective operation of our security and intelligence agencies.  The whole notion of society involves the compromise to an acceptable degree, of individual interests in order to serve the common good.  The public interest in the upholding of such individual interests may also have to be compromised in seeking to achieve the greater good.

    ORDERS

14. I uphold the claim to public interest immunity in connection with the WMD assessments and the marked parts of the other documents.  The parties should bring in a draft order.  I shall hear submissions as to costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       6 December 2013