Rodriguez Aguirre v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 1191
•18 SEPTEMBER 2002
FEDERAL COURT OF AUSTRALIA
Rodriguez Aguirre v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1191
ROBERTO RODRIGUEZ AGUIRRE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 686 of 2002ALLSOP J
18 SEPTEMBER 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N686 of 2002
BETWEEN:
ROBERTO RODRIGUEZ AGUIRRE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
18 SEPTEMBER 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N686 of 2002
BETWEEN:
ROBERTO RODRIGUEZ AGUIRRE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
ALLSOP J
DATE:
18 SEPTEMBER 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I have before me an application being an appeal from a decision of the Administrative Appeals Tribunal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
It is important at the outset to understand the nature of the appeal from the Administrative Appeals Tribunal (the Tribunal). This Court hears appeals from the Tribunal on a question of law from a decision of the Tribunal. In that sense, it is in fact a misnomer to call the application an “appeal” in that the application gives a right to the appellant to correct the decision of the Tribunal on a question of law. It is not the function of the Court in an application of this kind to stand in the shoes of the Tribunal and make the decision again. The Tribunal, however, in discharging its functions does stand in the shoes of the Department and makes the decision again, afresh, as if it were the decision maker. This is sometimes called a process of merits review. It is in fact the making again of the decision afresh.
All this Court is entitled to do under the Administrative Appeals Tribunal Act is, in effect, to deal with errors of law of the Tribunal. To a degree that may be an oversimplification, but what is undoubted is that there must be a question of law to attract the review by this Court. With that explanation in the background, I turn to the application before me.
The applicant is not a citizen of Australia. In a decision made on 30 January 2001, a delegate of the Minister refused an application for a visa made by the applicant in the Extended Eligibility (Temporary) (Class TK) and a permanent visa in the General (Residents) (Class AS). It is unnecessary to go into the reasons for that refusal. The applicant sought review of that decision by the Migration Review Tribunal (the Migration Tribunal). That review was conducted and a decision was handed down on 30 April 2002. The Migration Tribunal affirmed the decision of the delegate. I am not hearing an application to review the Migration Tribunal decision.
It became apparent to the applicant in the course of his dealings with the Department that information had come to the Department's attention which was detrimental to the position of the applicant. It is unnecessary to be specific about that information beyond what I will refer to in due course. Shortly after the decision of the delegate, solicitors then acting on behalf of the applicant made an application under the Freedom of Information Act 1982 (Cth) for the provision of the whole of the Department's file. The whole of the Department's file had been provided to the Migration Tribunal so that it might undertake its tasks of review identified under the Migration Act 1958 (Cth).
Section 362A of the Migration Act provides as follows:
Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
I interpolate that subss (2) and (3) are not relevant.
Unless s 375A spoke to the matter, the applicant was entitled to see any material from the Department file which went to the Migration Tribunal. Section 375A however does deal with a relevant circumstance. Under subs 375(1), if the Minister has certified in writing that the disclosure of information otherwise than to the Tribunal would be contrary to the public interest for any reason specified in the certificate and includes a statement that the document must only be disclosed to the Tribunal, then under subs 375A(2) the Migration Tribunal was forbidden by statute from disclosing to the applicant the documents in question. Such a certificate was given. It was given in relation to seven folios of documents. Those folios included the folios which are in contention in the proceedings before me.
The above background explains why the solicitors then acting for the applicant made the application under the Freedom of Information Act. An internal review was conducted by the Department as to whether or not the documents the subject of the application should be made available to the applicant. This led to some further information being provided to the applicant. He nevertheless remained dissatisfied and availed himself of his rights to make an application to the Tribunal under the Administrative Appeals Tribunal Act in order that the Tribunal might review the decision of the officer of the Department in relation to disclosure.
At this point of events, two sections of the Freedom of Information Act were apparently relevant. The first was subs 41(1) which is in the following terms:
A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
The second relevant provision was subs 37(1), which is, relevantly, in the following terms:
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law;
…
Subsection 41(1) related particularly to a document which had a list of names and details of people with the same name as the applicant. That document is not a relevant concern for me in this appeal.
The documents with which I am particularly concerned are the documents dealt with by the Tribunal by reference to subs 37(1). These documents were folios 60, 78, 80 and 81 of the Departmental file. They are in fact pp 35-38 of exhibit A, which is the book of documents prepared for the proceedings. The four folios comprise three documents. The first is entitled "Allegation Received Report". The second is a letter to the Department of which the applicant is the subject. Those two documents are folios 60 and 78 on pp 35 and 36 of exhibit A, respectively. Folios 80 and 81 are pp 37 and 38 of exhibit A and comprise two pages of one letter to the Department, the subject of which letter is also the applicant. Each of these letters contain information about the applicant which was unfavourable to him and threw into question the bona fides of a marriage which he had entered into in Australia. I need not go further into details.
The first folio, that is folio 60, being the record of a Departmental officer, stated that the complainant was concerned about confidentiality and was afraid that the applicant and his wife would find out about the call. Folio 78, p 36 of exhibit A was, as I said, a letter from someone which stated that the information provided should be treated with the utmost confidence. The second page of the third document, that is folio 81, p 38 of exhibit A, contained a written request by the author of that letter to treat the matter with the utmost confidentiality. It was these matters which had apparently weighed on the Department to keep these folios from the applicant; that is, that the documents were exempt from disclosure because they would or could reasonably be expected to disclose to the applicant the existence or identity of a confidential source of information in relation to the enforcement or administration of the law for the purposes of par 37(1)(b) of the Freedom of Information Act.
The Tribunal in its review came to the view, as expressed in [34] and following of its reasons, that the confidentiality could be accommodated by editing the folios in question by deleting certain information from the pages before they were given to the applicant. That explains the form of pp 35-38 of exhibit A, where the allegations harmful to the position of the applicant have been unmasked, or at least some of them, but certain other information which would identify the provider of the information has been kept masked. This process of masking was done under the authority of s 22 of the Freedom of Information Act, which provision is in the following terms:
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act—that the matter deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section.
It is from that decision of the Tribunal to apply par 37(1)(b) and s 22 to folios 60, 78, 80 and 81 of the Departmental file that the applicant appeals. In the notice of appeal, complaint was initially made in relation to the improper application of s 41 of the Freedom of Information Act. As Ms Allars, counsel for the respondent, pointed out, the documents withheld as exempt after the decision of the Tribunal were withheld as exempt by reason of s 37, not s 41. In those circumstances, having explained that to the applicant, I, with the consent of the respondent, amended the notice of appeal by including a reference to s 37 of the Freedom of Information Act.
The notice of appeal states the question of law raised on the appeal as being that the deletions made in relation to the partially exempt folios 60, 78, 80 and 81 are not in accordance with the Freedom of Information Act, s 22, and therefore the decision of the Tribunal was incorrect. Section 22, the terms of which are set out above, provides that where an agency or the Minister – and I interpolate the Tribunal, by reason of the provisions of the Administrative Appeals Tribunal Act – decides not to grant a request for access on the ground that the document is exempt, but it is possible for the Tribunal to make a copy of the document with deletions so that the copy with such deletions would not be an exempt document, and it is reasonably practicable for that to be done, then that process may be undertaken and access may be granted to the partially masked document in copy form.
That is what happened here. The Tribunal was perfectly entitled to apply s 22 if it was otherwise correct in relation to s 37 and the confidentiality questions raised by it in relation to the portions of the document masked.
In relation to this matter, there needs to be identified a question of law vitiating the decision of the Tribunal. The task of the Tribunal, as it was the task of the Departmental officers, was to assess whether disclosure of the document would or could reasonably be expected to disclose the matters referred to in par s 37(1)(b).
That is fundamentally a question of fact as long as the Tribunal did not display an inappropriate legal approach or ask itself the wrong question or otherwise misconceive its function. From the terms of the reasons of the Tribunal it can be confidently concluded that the Tribunal did not misconceive its function. It directed itself to the correct questions raised by s 37 and came to the factual conclusion that disclosure of the document would lead to the matters referred to in par 37(1)(b) insofar as the Tribunal was referring to the masked portions.
Ms Allars, if I may say so with respect, helpfully and thoroughly identified the relevant issues for a proper application of s 37. I will leave her submissions on the file and I do not propose to deal with them in detail save to say that I am grateful for their detailed assistance.
The three matters in particular to which Ms Allars refered in respect of par 37(1)(b) are set out in [34] of the submissions, they being as follows:
(i)Is the deleted part of the document a confidential source of information?
(ii)If so, was it properly classified as relating to the enforcement or administration of the law?
(iii)Would its release in full disclose the identity of the confidential source or in the alternative could it reasonably be expected to do so?
In particular, Ms Allars referred to Department of Health v Jephcott (1985) 8 FCR 85, where Forster J and Keely J dealt with the notion of the confidential source of information. Ms Allars has identified various cases which have applied and dealt with Jephcott's case. Following Jephcott’s case, supra, I am satisfied from my reading of the Tribunal's decision that it has not approached the matter inconsistently with the notion of confidentiality identified in that case and I am satisfied that there was probative material on the basis of which a Tribunal acting rationally could conclude that there was a confidential source: cf R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; Buck v Bavone (1976) 135 CLR 110 and the other cases referred to in Bull v Repatriation Commission (2001) 188 ALR 756 at [23] – [25].
The second matter to which Ms Allars referred was the question of relationship for the enforcement or administration of the law. I am likewise satisfied that the information was in connection with the administration of s 243(1) of the Migration Act.
The third element referred to by Ms Allars was the question of the disclosure revealing the identity of the confidential source. From a perusal of pp 35-38 of exhibit A, that is folios 60, 78, 80 and 81, which have been masked, I think it can be confidently concluded that the Tribunal did not make a legal error in concluding, as it did, that there would be such a disclosure. Indeed, as I would understand it, and I do not say this in any way critically of the applicant, the identity of his accuser, if I may use that expression, is one of the matters which he wishes to learn.
The applicant was directed to file written submissions. No submissions were filed. However, with the assistance of an interpreter, he put short submissions to me today as to his position. It is fair to say that he is deeply distressed by the allegations made against him in the folios. He asked me rhetorically: how could it be proved that the matters stated in the letters were true? The applicant said he wants justice and he wants the proof of the matters said against him brought forward because he disputes those matters as a matter of fact. He says he has been in Australia for a period of years, worked and paid his taxes, and I think in fairness to him, his proposition might be put as follows: that he is disturbed by having his position in the country affected by an anonymous denunciation. Although he understands the nature of the denunciation, he does not understand who is making it.
The regime of the Migration Act and the provisions of the Freedom of Information Act referred to above are such that on their plain reading, the Department is entitled to hold back material in circumstances described in s 37, above. Jephcott's case indicates that there is no question of balancing the public interest and reading down s 37 to remove from its operation circumstances such as the present case if the matter otherwise falls within the terms of s 37.
In my view, the decision of the Tribunal on the application of ss 22 and 37 of the Freedom of Information Act displays no error of law and is confined to factual questions found within the terms of those two sections, which I will not repeat.
In these circumstances, I have no alternative but to dismiss the application by way of appeal under s 44 of the Administrative Appeals Tribunal Act.
I am not able to discern any reason why the usual order for costs should not apply.
The orders of the Court will be:
1.The application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act be dismissed.
2.The applicant pay the respondent’s costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 30 September 2002
The Applicant appeared in person with the assistance of an interpreter. Counsel for the Respondent: M Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 18 September 2002 Date of Judgment: 18 September 2002
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