Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1142
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1142
File number(s): SYG 914 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 6 November 2024 Catchwords: MIGRATION – whether Court should grant orders not to adduce information under claim of public interest immunity – whether Court should grant orders not to adduce third party information not relevant to the proceedings – orders granted Legislation: Evidence Act 1995 (Cth) ss 55(1), 56(2) 130(1), 130(4)(e)
Migration Act 1994 (Cth) ss 116(1)(b), 477(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 r 17.01
Cases cited: Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; [2008] FCAFC 123
Brennan v State of New South Wales [2006] NSWSC 167
Jacobson v Rogers (1995) 182 CLR 572; [1995] HCA 6
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 6 November 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr T Hillyard, Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 914 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPARTAP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 130(1) of the Evidence Act 1995 (Cth), the information contained in Annexures EM-1 and EM-3 which is redacted in red not be adduced as evidence.
2.Pursuant to ss 55(1) and 56(2) of the Evidence Act 1995 (Cth) the information contained in Annexures EM-1 and EM-3 which is redacted in black not be adduced.
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 SKAROS
INTRODUCTION
The First Respondent (the Minister) seeks two orders. The first, relates to a claim of public interest immunity over information (redacted in red) which is contained in documents that were filed with the Court as annexures to the Affidavit of Emily Maker affirmed on 4 October 2024 (the Maker Affidavit). The second, relates to information (redacted in black) which is contained in the same annexed documents and is third party information that is not relevant to the proceedings.
The Court has a broad power under Rule 17.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021, on the application of a party, to make any order at any stage in a proceeding.
BACKGROUND
The Minister’s claim for public interest immunity in relation to the information redacted in red is in the context of proceedings commenced in this Court on 16 April 2020. By that application, the applicant sought an extension of time to pursue an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 February 2020 affirming the decision of a delegate of the Minister to cancel the applicant’s Student (Class TU) (Subclass 500) visa.
It is useful to briefly set out the key events leading up to commencement of the proceedings in this Court and the Minister’s claim of public interest immunity.
The applicant, who is a 30-year-old male citizen of India, first arrived in Australia in December 2014 as the holder of a Student (Class TU) (Subclass 573) visa. On 13 November 2018, the applicant was granted a Student (Class TU) (Subclass 500) visa (the visa), which was due to cease on 25 December 2020.
On 15 October 2019, the delegate issued the applicant a ‘Notice of Intention to Consider Cancellation’ (NOICC) pursuant to s 116(1)(b) of the Migration Act 1994 (Cth) (the Act) on the basis that the applicant had not complied with condition 8202(2) of the visa.
On 14 November 2019, the delegate cancelled the applicant’s visa pursuant to s 116(1)(b) of the Act.
On 22 November 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 2 January 2020, the Tribunal invited the applicant to appear before it at a hearing on 24 January 2020 to give evidence and present arguments. The applicant attended the hearing.
On 19 February 2020, the Tribunal affirmed the delegate’s decision to cancel the visa. The applicant was notified of that decision on 24 February 2020.
The applicant did not commence these proceedings within the 35-day limit prescribed by s 477(1) of the Act and sought an extension of time pursuant to s 477(2) of the Act.
Relevantly, in compliance with orders made on 18 June 2020 by a Registrar of this Court, the Minister filed the Court Book on 27 July 2020. The Minister’s written submissions were filed on 22 October 2020.
On 23 August 2024, the Minister filed further written submissions which replaced those filed on 22 October 2020.
On 3 September 2024, the parties were notified by email that the matter was listed for an extension of time hearing in person at the Parramatta Registry on 10 October 2024.
On 4 October 2024, the Minister filed the Maker Affidavit which annexed two documents containing the redacted information.
On 10 October 2024, the parties appeared before the Court and made submissions in respect of the Minister’s claim of public interest immunity, the request for third party information not relevant to the proceedings not be adduced, and the extension of time application.
In respect of the extension of time application, the Court made orders pursuant to s 477(2) of the Act that time for making the originating application be extended up to an including 16 April 2020 and gave ex tempore reasons for that order. The matter was listed for final hearing on 6 November 2024.
In respect of the claim of public interest immunity, the Court indicated it would consider the submissions and provide reasons following the hearing.
Leave was also granted for the Minister to provide a post hearing note in relation to the request for an order that third party information (redacted in black) which is not relevant to the proceedings not be adduced.
For reasons that follow, the Court ordered that the applicant’s claim for public interest immunity be upheld.
CLAIM OF PUBLIC INTEREST IMMUNITY
On 8 October 2024, the Minster filed written submission in support of the claim for public interest immunity over the information redacted in red. The Minister also relied on the Maker Affidavit and affidavit of Jeffrey John Carige affirmed on 8 October 2024 (the Carige Affidavit).
The documents in issue were annexed to the Maker Affidavit and are marked ‘EM-1’ and ‘EM- 3’. Ms Maker is a solicitor employed by the law firm representing the Minister. Ms Maker stated that while reviewing the Department’s file she identified material which had not been included in the Court Book. That material comprised of:
(1)An email dated 20 June 2019 sent to the Border Watch Allegations and Referral Team (annexure marked EM-1); and
(2)A document titled ‘Job Details Report’ dated 20 June 2019: (annexure marked EM-3).
Ms Maker stated that the annexures marked EM-1 and EM-3 contain allegations in relation to the applicant from a source that requested to remain anonymous. She said the Minister seeks to claim public interest immunity over parts of the annexures, which are redacted in red, that reveal, or have the potential to reveal, the identity of the source of the allegations.
Ms Maker also referred to the unredacted versions of the material, which are marked as Confidential Annexure EM-2 and Confidential Annexure EM-4. She indicated that the confidential annexures would be placed in a sealed envelope and could be provided to the Court if it wished to view them. The Court did not consider it necessary to view the Confidential Annexures.
In respect of the information redacted in red, over which the Minister claims public interest immunity, the Minister seeks an order pursuant to s 130(1) of the Evidence Act 1995 (Cth) (Evidence Act) that the information is not adduced as evidence.
The Court has had regard to the Minister’s written submissions which set out the relevant principles.
The claim for public interest immunity was made by the Minister pursuant to ss 130(1) and 130(4)(e) of the Evidence Act, which relevantly provide:
(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.
…..
(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:
…..
(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;
As submitted by the Minister, public interest immunity is a doctrine of substantive law and represents a fundamental immunity: Jacobson v Rogers (1995) 182 CLR 572 at 588-589. It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest.
In determining whether a claim for public interest immunity should be upheld, the Court is required to balance the weight of the public interest in withholding the information against the public interest in the disclosure of the information: Brennan v State of New South Wales [2006] NSWSC 167 at [41]).
In this matter, the Minister relies on the well-recognised category of public interest immunity in respect of documents, the production of which, would reveal or tend to reveal the identity of a confidential source of information. It was submitted that as a general rule, where public interest immunity is raised, 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: Sankey v Whitlam (1978) 142 CLR 1 at 38-39 per Gibbs ACJ.
The Minister submitted that it is not necessary to show that disclosure would actually identify the informer or the fact that the informer has provided information to the Minister’s department (the Department). The Minister relied on Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 per Heerey, Moore and Tracey JJ, where the Court observed at [41] that, when considering if information would reveal, or could reveal, or tend to reveal the identity of an informer:
… Consistently with the underlying public policy of public interest immunity, the benefit of the doubt should be in favour of non-disclosure. There is always the risk that seemingly innocuous information in a particular document, when combined with information in another document or the reader’s background knowledge, may reveal the identity of an informer, or at least give rise to strong suspicion.
And at [52]:
That such adverse consequences may ensue is not to be dismissed as speculative. Assessing what is likely to happen in the future, or would be likely to have happened had not something intervened, is not a matter of scientific demonstration or proof. Nor, unlike findings as to alleged past events, is it a case of all or nothing; 51 per cent probability win, 49 per cent probability lose: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643. The point is that such fears may well be held by potential future informers who may, if disclosure is permitted in the present case, decide that informing ASIC is just not worth it.
The Full Court also observed that the fact that the identity of an informer may be known to some people, and even to the person seeking production, is by no means conclusive against immunity. The Full Court further observed that, in any event, the fact the identity may be known to some seems irrelevant to the question whether a particular document might identify an informer (at [42]).
The public interest in withholding the information
In relying on the above principles, the Minister submitted that the portions of the documents over which the Minister claims public interest immunity (the information redacted in red), if disclosed, would reveal, or could reveal, or tend to reveal, the identity of the informer and that the informer had provided the information to the Department in confidence.
The Minister sought to rely on the Cariage Affidavit. Mr Cariage is the Assistant Secretary of the Immigration Compliance Intelligence Branch located within the Department of Home Affairs and is responsible for delivering intelligence capability that supports the operations of the Immigration program and other capabilities in the Department, including the Border Watch program. His previous role was Assistant Secretary of the Support Operations Branch within the Department. In that role he was responsible for managing the delivery of direct intelligence support to operations led by the Australian Border Force and law enforcement partners.
In his affidavit, Mr Cariage stated that he has been shown the Confidential Annexures (EM-2 and EM-4) which contain the information over which the Minister seeks to claim public interest immunity. In his affidavit, Mr Cariage stated the Department relies on, or has due regard to, community information when administering the Act. He stated that, in his opinion, and based on his experience and knowledge, he believes that there is a public interest in protecting third parties by not revealing identifying information to ensure the Department's continued ability to receive relevant or potentially relevant information and circumstances that have not been made known by a visa applicant.
In respect of the information contained in Confidential Annexures EM-2 and EM-4 over which the Minister claims public interest immunity (being the information redacted in red in annexures EM-1 and EM-3), Mr Cariage stated that the information should not be disclosed to any party, including the applicant, on the basis that the information would, if revealed:
(a) Disclose the existence of a confidential source of information relating to the enforcement or administration of the Act who provided the information to the Department on an anonymous basis;
(b) Potentially found an action by the informant for breach of confidence;
(c) Potentially hinder, inhibit or diminish the ability of the Department to properly administer the Act insofar as the Department relies on the receipt of community information from third parties, and the likelihood of the flow of information of this kind "drying-up" in the future, if the Department has been unable to adequately maintain their confidence;
(d) Potentially compromise the wellbeing of the third parties referred to in the documents; and/or
(e) Potentially compromise the Department’s ability to undertake investigations in the future.
In relying on the Cariage Affidavit, the Minister submitted that the public interest in protecting informers, and encouraging future informers, is important to the Department. It was submitted that the Minister and his Department are tasked with the responsibility for administering the Act, including responsibility for the assessment and determination of applications for visas by non-citizens. It was submitted that, in assessing an application for a visa, there may be information, facts and circumstances that would be relevant to the assessment of the application, but which may not have been made known to the Department by the visa applicant (either deliberately or inadvertently), and that the Department relies on third parties to provide information which may be relevant to the assessment of a visa applicant’s eligibility to meet particular visa requirements for the grant of a visa.
The Court gives weight to the evidence of Mr Cariage, who has viewed the confidential annexures and has provided an opinion, by virtue of his knowledge and experience with the Department, that the redacted information should not be disclosed.
While the Court has not viewed the redacted information, it is evident from the material that it has viewed (annexures EM-1 and EM-3), that the redacted information provides details in response to questions about the informant’s connection with the applicant, the informant’s connection with another individual (not related to the proceedings), and how the informant was able to obtain information about the applicant. This information has the potential to disclose the identity of the confidential source of the information.
The Court also gives weight to opinion of Mr Cariage regarding the risk (or harm) that may arise, as set out at [36] above, if the redacted information were to be disclosed.
For the above reasons, the Court is satisfied that harm may result if the redacted information is disclosed. It follows, that there is public interest in withholding the information.
The public interest in disclosing the information
The information over which the Minister claims public interest immunity is that which may disclose the identity of the confidential source of the information. The information is redacted in red in annexures EM-1 and EM-3
Annexures EM-1 and EM-3 (in their redacted form) have been provided to the applicant by the Minister, together with the Maker Affidavit. The substantive (unredacted) information was identical in both annexures. The information provided by the informant, who requested to remain anonymous, alleged that the applicant had been working overtime and working on a cash basis. It alleged that the applicant’s Confirmation of Enrolment (CoE), had been cancelled a long time ago, and that the applicant had not enrolled into another course to maintain student visa conditions 8105 (work limitations), 8202 (meet course requirements) and 8506 (must maintain eligibility). It also alleged that the applicant is not a genuine overseas student. The annexures indicate that the information was received by the Department on 15 May 2019 via the Department’s online form and alleged that the ‘offences’ occurred on 7 February 2019.
Noting that the substantive (adverse) information had been disclosed to the applicant through the provision of annexures EM-1 and EM-3, the Court asked the applicant why he thought information relevant to the identity of the informant should be disclosed to him and whether he required that information to present his case.
In submissions, the applicant disputed the allegations contained in the annexures and said that on 7 February 2019, when he was alleged to have committed the ‘offences’, he was not even in Australia. The Court noted that the annexures appeared to disclose details of the allegations and asked the applicant why it would be important for him to know who made the allegations. The applicant said he wants to know who said he committed the ‘offences’ because he does not believe the information is correct. The Court noted that the allegations do not relate to criminal offences, but they relate to breaches of visa conditions. The applicant said he was not sure how ‘they’ found out because on 7 February 2019 he was still overseas.
The applicant’s submissions did not convincingly demonstrate that disclosure of the redacted information is necessary for the proper administration of justice. The Court considers that the information, which has now been disclosed to the applicant in annexures EM-1 and EM-3, contains the content (in full) of the adverse information received by the Department and the applicant will have the opportunity to make submission on that information (which will be admitted into evidence) in the substantive proceedings before this Court.
CONCLUSION
Firstly, the Court is satisfied that the information over which the Minister seeks to claim public interest immunity falls within s 130(4)(e) of the Evidence Act because disclosure of the information (redacted in red) would disclose, or enable the applicant to ascertain, the identity of a confidential source of information. The Court is further satisfied that the information relates to administration of the law of the Commonwealth, being the Act and Regulations, for which the Minister and the Department have the responsibility of administering in the course of assessing the visa eligibility (or otherwise) of non-citizens.
Secondly, in balancing the nature of the injury likely to be suffered by disclosure against the evidentiary value and importance of the redacted information in the present matter, for reasons discussed above, the Court considers that the balance falls in favour of non-disclosure of the redacted information.
Accordingly, the Court upholds the Minister’s claim for public interest immunity over the information that is redacted in red in annexures EM-1 and EM-3.
OTHER INFORMATION NOT RELEVANT TO THE PROCEEDINGS
As indicated above, the Minister has also sought an order in respect of the information redacted in black in Annexures EM-1 and EM-3 on the basis that the information relates to third parties not relevant to the present proceedings.
The Minister submitted that the black redactions cannot rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The black redactions apply to:
(a) the name; date of birth or approximate age; passport number; gender; nationality; email address; telephone number; visa and various internal Department client identifiers in relation to a person who is not a party to these proceedings but was subject to the same ‘dob-in’ as the applicant.
(b) the surnames or last initial of employees of the Minister’s Department and employees of the Minister’s solicitors.
(c) a portion of an email address used by the Department for ‘dob-ins’.
The Minister submitted that the aforementioned information has no probative value to the issues before the Court, being whether the Tribunal exceeded its jurisdiction when deciding to confirm the delegate’s decision to cancel the applicant’s visa. As such, the Minister submitted the information (redacted in black) is inadmissible under ss 55(1) and 56(2) of the Evidence Act.
The Court is satisfied that the redacted third-party information, being irrelevant to the present proceedings, provides a valid basis upon which to grant the order sought.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 6 November 2024
0
5
3