Wong and Minister for Immigration and Citizenship
[2008] AATA 347
•30 April 2008
ADMINISTRATIVE APPEALS TRIBUNAL
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2007/1499
GENERAL ADMINISTRATIVE DIVISION
)
Re
Tai Shing Wong
Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION (CORRIGENDUM) [2008] AATA 347
TribunalJustice Tamberlin, Presidential Member
Professor G D Walker, Deputy President
Ms N P Bell, Senior Member
Date26 May 2008
PlaceSydney
WHEREAS:
1. The Tribunal published its Decision in this matter on 30 April 2008.
2. The Tribunal wishes to amend the Decision to rectify an error, whereby all of the exempt documents were not referred to.
3. Now the Tribunal orders that the Decision of the Tribunal should be amended to refer to all exempt documents.
4. The numbered documents referred to in paragraph [78] of the Decision should read as follows:
‘4, 20, 21, 30, 31, 68, 69, 70, 74, 75, 76, 77, 78, 80, 81, 82 and the undisclosed folios on file ASB2000/2133 ‘
5. The numbered documents referred to in paragraph [82] of the Decision should read as follows:
‘54-65 ‘
…………[sgd].…………….
Justice Tamberlin
Presidential Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 347
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1499
GENERAL ADMINISTRATIVE DIVISION )
Re Tai Shing WONG
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalJustice Tamberlin Presidential Member
Professor GD Walker, Deputy President
Ms NP Bell, Senior Member
Date30 April 2008
PlaceSydney
DecisionThe decision under review is affirmed.
..................sgd............................
Presidential Member
CATCHWORDS – FREEDOM OF INFORMATION – applicant seeks documents relevant to visa refusal – s 37(2)(b) exemption – documents would prejudice effectiveness of procedures revealed – personal privacy exemption – legal professional privilege – independent advice – ulterior purpose – not open for the tribunal to conduct judicial review – no reasonably arguable case – decision under review is affirmed.
…
RELEVANT ACT/S:
Freedom of Information Act 1982 (Cth) (the FoI Act): ss 23, 33(2), 37(2)(b), 40(1)(d), 41(1), 42
Migration Act 1958 (Cth) (the Act): s 501
Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 36(1), (3), 36A, 44
…
CITATIONS
Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 46
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 490
Wong v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 155 FCR 268
Re Anderson and Australian Federal Police (1986) 11 ALD 355
Re Mijares v Minister for Immigration and Multicultural Affairs [2000] AATA 214
Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443
Re Rees and Australian Federal Police (1999) 57 ALD 686
Re Meschino and Centrelink [2002] AATA 627
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Waterford v The Commonwealth (1987) 163 CLR 54
Seven Network Ltd v News Ltd [2005] FCA 142
Rich v Harrington [2007] FCA 1987
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and another (2005) 143 FCR 314
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1
…
REASONS FOR DECISION
30 April 2008
Justice Tamberlin, Presidential Member, Professor GD Walker, Deputy President, Ms NP Bell, Senior Member
Basic facts and background
1. The applicant Mr Tai Shing Wong was born on 26 November 1957 in the People’s Republic of China (PRC) and is a citizen of that country. He has had resident status in Hong Kong since 1994 and his wife and children currently live there.
2. Mr Wong arrived in Australia on 22 August 1999 on a visitor's visa. Shortly after arriving, he applied for a student visa in order to undertake a 3-year business management course. On 12 November 1999, he was granted a subclass 560 student visa, valid to 5 January 2001.
3. In order to continue his studies, he applied for a renewal of his subclass 560 student visa on 15 December 2000. He was granted a bridging visa while his application was being processed. On 22 January 2002, the Minister, acting personally under s 501(3) of the Migration Act 1958 (Cth) (the Act), decided to refuse Mr Wong’s application to renew his student visa on character grounds.
4. On 7 February 2002, Mr Wong was apprehended and taken into detention. At that time he was served with a notice of refusal dated 25 January 2002 containing the decision of 22 January 2002. He remained in detention at Villawood Detention Centre, New South Wales, for some time but is currently under a form of community detention.
5. On 18 February 2002, Mr Wong applied under the Freedom of Information Act 1982 (Cth) (the FoI Act) for copies of all documents containing information on which the Minister had made his decision on 22 January 2002 to refuse a subclass 560 student visa and for copies of all visa applications made by him and all documents held on files.
6. A delegate of the respondent informed the applicant on 15 April 2002 that certain documents would be released in full, others would be released with deletions and that exemption was claimed for certain other documents. Mr Wong applied on 17 May 2002 for an internal review of that decision.
7. On 28 May 2002 the Minister refused an application for revocation of the refusal decision.
8. On 15 July 2002, an officer authorised to make decisions under s 23 of the FoI Act refused Mr Wong access to certain documents for which exemption was claimed but decided to release certain others. Mr Wong applied to this Tribunal on 13 December 2002 for review of that decision. That application, N2002/1343, was decided on 24 January 2006: Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 46 (the 2006 decision). The Tribunal decided that the documents listed in the respondent’s amended schedule of exempt documents dated 29 November 2005 (the schedule) were exempt from disclosure, except for documents 41 and 79 in the schedule (for clarity, the same numbering of the relevant documents has been maintained throughout these proceedings).
9. The applicant appealed to the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appeal was primarily on the ground of a question of law relating to the Tribunal’s rulings that certain questions put to the witnesses in cross-examination were not required to be answered by reason of an Attorney-General’s certificate dated 10 May 2005 under ss 36 and 36A of the AAT Act. Conti J ( in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 490 at [7])referred to the full court of the Federal Court the following question:
…
Does the court on an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (“the Act”) in relation to whether under s 36A of the Act the answering of a question would not be contrary to the public interest:
(a)Make a decision on the merits, by reaching its own opinion;
(b)Determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion; or
(c)Determine the issue on some other basis?
…
10. By reason of s 36D(3) of the AAT Act, the Tribunal that made the 2006 decision, being constituted by a presidential member who was not a Federal Court judge, could not have decided pursuant to s 36(3) to disclose certain material covered by an Attorney-General’s certificate under s 36(1).
11. The full court decided that the appropriate course was to make a decision on the merits, by reaching its own opinion: Wong v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 155 FCR 268 (“Wong”).
12. On 3 April 2007, Conti J made the following consent orders:
(i)Pursuant to subsection 36A(2) of the Administrative Appeals Tribunal Act 1975, the answering of the questions set out in the document titled “Applicant’s List of Relevant Questions” filed in these proceedings on 20 December 2006 would not be contrary to the public interest by reason that it would prejudice the international relations of Australia;
(ii)The decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 January 2006 is set aside;
(iii)The case is remitted to the Tribunal to be heard and decided again;
(iv)The respondent pay the applicant's costs.
13. This application is related to a number of other proceedings to which the applicant is a party. The course of those proceedings up to the date of the 2006 decision is summarised in that decision (paras 10 to 18). Since then there has been further litigation in the Federal Court for judicial review and in the High Court, in which the applicant concedes has been largely unsuccessful.
14. At present there is a suit pending in the Federal Court awaiting the outcome of this application. The matter pending in the Federal Court is the substantive proceeding, which seeks to overturn the ministerial decisions made in his case on the ground that they are tainted by an extraneous consideration. That consideration is the alleged existence of an understanding between the Commonwealth and the government of the PRC that, in the absence of an extradition treaty between the two countries, the Minister will use his or her powers under the Act to repatriate to China certain PRC citizens for the purpose of interrogation and possible prosecution for certain offences under the law of China. The applicant seeks to use the documents sought by his FoI request to support his case in the Federal Court proceedings.
15. Over time, the respondent has progressively released further documents and in its amended schedule of exempt documents dated 22 November 2007 (the amended schedule), it now claims exemption for a total of only 55 documents.
16. On 5 November 2007, the Minister for Immigration and Citizenship revoked the certificate under s 33(2) of the FoI Act in respect of document 82. A redacted version of that document was released to the applicant.
17. On 21 June 2007, the Attorney-General revoked the certificate he had given on 10 April 2005 under the AAT Act.
Applicable law
18. In these remitted proceedings the respondent claims exemption from disclosure under ss 37(2)(b), 40(1)(d), 41(1) and 42 of the FoI Act. Those sections relevantly provide as follows:
37.Documents affecting enforcement of law and protection of public safety
(1)…
(a) …
(2)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
(c) …
…
40.Documents concerning certain operations of agencies
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e) …
(2)…
41.Documents affecting personal privacy
(1)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)
…
42.Documents subject to legal professional privilege
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
43.…
Issues
19. The issues for the Tribunal to determine in this case on remittal, therefore, are:
(a)Whether the documents listed in the respondent’s amended schedule are exempt from disclosure by reason of ss 37(2)(b), 40(1)(d), 41(1) or 42 of the FoI Act; and
(b)If not, whether all or any of those documents are exempt from partial disclosure pursuant to s 42 of the FoI Act; and
(c)Whether the claims for exemption should be set aside on the ground that there is sufficient evidence to indicate that the claim is made for an ulterior or extraneous purpose, namely to assist in the extradition of Mr Wong.
New affidavit evidence
20. Both parties filed a number of further affidavits in the current proceedings.
21. An affidavit of Mr Peter Leung, the applicant’s solicitor, dated 6 July 2007 attaches a letter from the respondent’s solicitor releasing documents 66, 72, 7, 15, 16, 67, 68, 69, 73, 74, 4, 14, 20, 21, 30 and 31.
22. Mr Leung's affidavit of 11 October 2007 attaches a further letter from the respondent’s solicitor releasing documents 14, 80 and 81.
23. Mr Leung swore a further affidavit on 23 November 2007 attaching two further letters from the respondent’s solicitor, which released documents 82, 61 and 71. It also annexed the Minister’s revocation of the s 33(2) certificate and Conti J’s consent orders of 3 April 2007.
24. A number of the released documents attached to the three affidavits have been redacted.
25. The respondent filed an affidavit dated 6 September 2006 by Valmai Margaret Avery, a senior official with the respondent holding the position of manager of Movement Alert List (MAL) Policy and attaching a copy of the respondent’s departmental fact sheet relating to MAL. Ms Avery also swore a confidential affidavit dated 22 November 2007 giving further information about MAL and its operation and attaching a confidential exhibit relating to it.
26. Also filed by the respondent was an affidavit sworn on 13 August 2003 by John Charles Eyers, assistant secretary in charge of the Legal Services and Litigation Branch of the respondent. The affidavit outlines the branch’s structure and its responsibilities in relation to providing advice to the Minister and other officers on the outcome and legal implications of court and Tribunal decisions and arranging for representation in, and the conduct of, the respondent’s litigation. The affidavit’s contents are summarised in the 2006 decision (paras 54 to 57).
27. In an affidavit dated 7 September 2007, Mr Eyers updated his affidavit of 13 August 2003. He confirmed its contents, but added that since it had been sworn, there had been changes to the name of the branch of which he is assistant secretary. Legal Opinions section is now part of the Legal Co-ordination & Procurement Branch rather than the branch of which he is assistant secretary. Some of the Department of immigration and Citizenship (the Department) employees named in the earlier affidavit now held different positions and some are no longer with the Department.
Evidence at the hearing
28. At the hearing the applicant tendered all his affidavits filed in the earlier proceedings in 2005 – 2006, together with Exhibits R1 to R13 in those proceedings. The respondent objected but the documents were admitted subject to relevance.
29. Pursuant to a summons, Mr Peter Coyne, who had given evidence in the earlier proceedings, was examined in chief by Mr Wilson on behalf of the applicant. Mr Coyne said that when he was posted in Beijing in 2000, he had contact with a Mr Dong at the Ministry of Public Security (MPS), as well as regular communications with Ms Nelly Siegmund, Mr Craig Riviere and others in Australia. The Department held a list of persons whom MPS was seeking and wished to have returned to China.
30. It was the practice of MPS to make the first contact about a particular individual who was suspected of criminal activity. MPS would describe the activities of an individual whom it wished to have returned to China for interrogation or prosecution. There were some names on the list that pre-dated Mr Coyne’s posting in Beijing.
31. Mr Coyne had first become aware of the list when a senior officer visited the Beijing post. The list was part of the briefing material he supplied and there were about 10 or 15 names on it. It would be updated when there was a new name to add or some significant event had occurred, but additions were infrequent. Some of the information on the list might have been passed on to MPS, such as possible dates of return or delays in return. The practice was for MPS to supply written information to him, which he would pass on to Canberra as part of his duties under his Beijing posting.
32. MPS would also ask him to make enquiries on their behalf concerning developments in Australia. He would pass on such an enquiry to Canberra and transmit the answer to MPS if Canberra so intended. The communications usually occurred orally at a formal meeting. Essentially, they only passed on to MPS information concerning the person’s possible return.
33. The reference to “another for the list” in Exhibit A18 was to information he was sending to Ms Siegmund in connection with the list of fugitives. During his time in Beijing, he had sent approximately three or four additional names to Ms Siegmund for the list.
34. The applicant's name was on the list because Mr Coyne knew of MPS’s interest in him. MPS documents connected the applicant with alleged smuggling by the Yuan Hua group. He had told MPS about developments relating to the applicant in Australia because part of his job was to co-operate with MPS. It was not his responsibility, however, to inform MPS that any particular person was returning on a particular date, that being done by the Australian Federal Police liaison officer.
35. The purpose of his fax of 14 July 2000 was to give Canberra relevant information pursuant to a request from MPS. The information was supplied for action by Canberra, but not necessarily action affecting the applicant’s return to China.
36. The reference to ”high level approaches” meant MPS, where Mr Dong was located at about the middle of the hierarchy.
37. Mr Coyne thought it unlikely that he had passed Exhibit A2 on to MPS. He would have been told by MPS that the applicant was in Australia and that they were interested in him. He was also told that the matter was very sensitive, but denied that it was because of the absence an extradition treaty between Australia and China.
38. Sometimes Mr Coyne had asked Canberra about the immigration status of some of the persons named on the list. It was possible that someone on the list could have been an Australian citizen, but that would have been very rare. He would have sent the name to Canberra for inclusion on the list, but without knowing what action would be taken in relation to it.
39. Occasionally, MPS had given him supporting documents that did not bear the stamp “law enforcement – protected”.
40. Later recalled for further examination, Mr Coyne explained that the “May delegation” mentioned by Mr Riviere (transcript pp82-83) was a delegation of MPS personnel who had visited Australia in May 2000. Mr Coyne had accompanied them during their visit and had been present when the list and the persons whom the PRC wanted returned to that country had been discussed. There had also been discussion about the signing of the minutes of understanding document and general briefings on the activities of the Department in relation to border security. The delegation had inspected some aspects of the Department’s operations.
41. Mr Coyne believed that the list had already been in existence before the May delegation’s visit, but he did not recall seeing it. The minutes of understanding did not alter the operation of the list in any way.
42. It had been part of Mr Coyne's duties to maintain liaison with the Australian Federal Police representative in Beijing in relation to PRC nationals and to keep him informed of developments in relation to individuals of concern. If a person named on the list were to be returned to the PRC, he would be required to send information to MPS about that person. The transportation of the individual was not his responsibility. That was done onshore, possibly with some AFP involvement. He kept the AFP representative informed of developments because if an individual were removed, it would be the AFP’s responsibility to inform MPS of the person's arrival date.
43. Mr Riviere, who also gave evidence in the earlier proceedings, was also examined in chief by the applicant pursuant to a summons. He stated that Ms Jennifer Grattidge had assisted with the preparation of submissions to the Minister in relation to persons named on the list. When he received information about particular individuals, he passed it on to staff in order to enable them to update the list. It was kept in electronic format, but hard copies were made. All documents in it were “quarantined” and only certain staff had direct access to the list.
44. When he had joined the branch in March 2001, he had been told by Mr Sargent that the list related to certain PRC citizens who were wanted in connection with certain crimes. They were to be considered for visa refusal or cancellation. Nothing was said about their possible return to China, but that would have been the result of refusing or cancelling a visa.
45. At the earlier proceedings, Mr Riviere had expressed concern about the release of Exhibit A6 pursuant to the FoI Act because it contains details of procedures adopted in relation to potential flight risks. He was less concerned about the release of information relating to the “case load”.
46. Mr Riviere said he was broadly familiar with the manner in which the Minister followed the list. He was given updates through the regular reports concerning PRC citizens, who were regarded as flight risks on the basis of experience with one individual who had gone underground. Asked whether PRC citizens might be regarded as flight risks because they could leave the country, Mr Riviere said that that would be an element but he was not sure what weight should be attributed to it.
47. After the applicant had been detained, he had probably informed Beijing. It was common practice to notify Beijing because the respondent’s compliance division liaised with PRC law enforcement authorities. He assumed that the information would be passed on to PRC officials. In relation to Exhibit A8, he confirmed that he received enquiries for updates from Beijing and complied with such requests.
48. He was aware of the “please repatriate” request by PRC officials in Exhibit A10. He had read the submission, and when he cleared it, he was aware that the PRC authorities intended to prosecute. Asked whether the intention was to detain and return him, he replied that it was for the Minister to make a decision under the Act. Mr Riviere’s role was to prepare the material for him.
49. Mr Riviere was asked about what the submission described as the applicant's history of evading law enforcement authorities. He said that there must have been evidence that he had evaded PRC law enforcement officials, but could not recall if the supporting material had been attached. The reference on page 98 to evading customs authorities, although not specifically relating to arrest, would have been interpreted as showing evasive law enforcement activity.
50. In response to a question by Dr Allars, he agreed that the criminal facts summary in Exhibit A9 (documents C1-10) noted that the applicant had fled to Australia.
51. There were about 20 names on the list and he had personally had dealings in relation to the case of one person who had in fact been returned to China. He did not think any persons on the list were Australian citizens. He was not aware of what the reference to “May delegation” in document 82 meant.
52. Mr Riviere said he could add nothing further to the evidence he had already given about the information Mr Sargent had provided him with in relation to the list. He did not recall any mention of the absence of an extradition treaty and could not say if he had been aware that there was no such treaty. He was not sure if he had formed the view that the powers in the Act had been used to return persons to the PRC in the absence of an extradition treaty.
53. Ms Jennifer Grattidge also gave evidence pursuant to a summons issued at the request of the applicant. She said that in 2001, she had been working under the supervision of Mr Riviere and her duties included responsibilities in relation to the list of PRC citizens. She had access to it and could modify it.
54. Mr Riviere had briefed her about the list. He had said that it contained the names of PRC citizens about whom there were character concerns and that she should monitor it, as some of the individuals named were in the community. It might be necessary from time to time to ascertain if they were still in Australia. She would prepare character submissions in relation to the application of s 501 of the Act, using the client files relating to the named persons and any law enforcement information about them that had been received from overseas. She had no investigative powers of her own.
55. As part of her duties she would put new information on the files and prepare s 501 submissions to the Minister on the basis of the information contained in them. The submissions could lead to visa cancellation or refusal.
56. Ms Grattidge had come into the branch partly because of her experience in the character section, including in the preparation of character submissions to the Minister. All the individuals named on the list were the subject of allegations concerning crime in the PRC and in relation to at least some of them, there was law enforcement information that had been received from the PRC, presumably via Peter Coyne in Beijing.
57. Ms Grattidge had sent the email Exhibit A6 to Mr Konarski conveying information about the applicant and saying that a submission concerning him had gone to the Minister. She was alerting Mr Konarski to the possibility that the applicant might have to be detained. She had described the information as “very sensitive” because it was known that all the people named on the list had criminal records and might disappear into the community.
First issue: s 37(2)(b) of the FoI Act – Effectiveness of procedures for investigating breaches and evasions of law
58. In relation to the claim of an exemption under s 37(2)(b) of the FoI Act, the onus is on the Minister to show that disclosure of the content of the documents could reasonably be expected to disclose lawful methods or procedures for the prevention, detection and investigation of matters which arise out of breaches of the law, where such disclosure would be likely to prejudice the effectiveness of those methods or procedures. The expression “law” in this section is broad enough to include a reference to the Act. In this case, the lawful procedure identified by the Minister is the way in which the MAL procedures are implemented, namely the way in which the MAL is used to identify and follow the movements of non-citizens of concern to the Department.
59. The non-confidential evidence of Ms Avery indicates that, due to the complexity of the procedures in place for the handling of visa applications by the Department, these procedures cannot properly be informed from sources of information such as public information, the media or other more informal sources. The MAL includes a computer database which stores details about people of concern to Australia and their immigration documentation. Some limited information from the MAL is available on the internet. The confidential evidence of Ms Avery gives more detailed information about the MAL and its operations, and attaches a further exhibit which discloses with particularity the way in which the system operates. It also sets out the way in which disclosure of certain features of the MAL may possibly assist someone to gain unauthorised access to the system and alter its records.
60. In Re Anderson and Australian Federal Police (1986) 11 ALD 355 at 364-365, the Tribunal decided that a document relating to matters of police investigation was exempt because disclosure of the contents would confirm procedures which might otherwise have only been the subject of suspicion in the mind of a party seeking to circumvent or frustrate a police investigation. A finding of this kind is sufficient to establish a breach of the language of s 37(2)(b) of the FoI Act. The Tribunal also held at 373 that a document which revealed internal methods used by the police to identify persons under surveillance during a public demonstration has been held to be likely to prejudice the effectiveness of lawful surveillance procedures by enabling the details of such procedures to be identified.
61. The character of the MAL methodology in this context was considered by the Tribunal in Re Mijares v Minister for Immigration and Multicultural Affairs [2000] AATA 214, where it was held that details of how the MAL operates, supplied to the Tribunal in a confidential document, were exempt under s 37(2)(b) of the FoI Act.
62. In order to come within the exemption in s 37(2)(b), it is not sufficient that there is an “identification” of the MAL as an investigative procedure. Rather, the Minister must establish that production of the document will also disclose the procedure by which lawful methods or procedures are carried out in such a way as to limit the effectiveness of those methods or procedures.
63. The term “lawful methods or procedures” in s 37(2)(b) is a reference to the lawfulness of the procedures used to prevent, detect, investigate or deal with breaches or evasions of Australian law. It is not a reference to the lawfulness of a decision by the Minister in relation to cancellation or non-renewal of a visa, or to the lawfulness of a decision to claim an exemption under s 37 of the FoI Act. The submissions of Mr Wong in relation to that aspect of this case are considered at paragraph 85. In our view, which we elaborate below, it cannot be suggested in this case that the MAL, and the procedures and details of the way in which it operates to investigate breaches of the law, is anything other than lawful.
64. The question therefore is whether it can be said that documents 14, 15, 16, 67, 70, 71 and 73 (as listed in the ”amended schedule”) disclose the methods or procedures of the MAL in such a way or to such an extent so as to prejudice the effectiveness of such procedures. In order to determine this question, we have examined the content of the documents in the light of the evidence adduced in affidavits and cross-examination.
65. Documents 14, 15 and 16: These documents include a status report on Mr Wong and communications with government agencies, and they give summaries of the details and information gathered. On their face they form part of a mosaic as to the way in which the MAL gathers and collates information. These documents properly fall within the s 37(2)(b) exemption.
66. Documents 67 and 73: Document 67 is a communication which details a request from the PRC and discloses investigations which had taken place in the PRC. In our view, it is a document which also comes within s 37(2)(b). Document 73 is virtually identical to document 67, and consequently also attracts the exemption.
67. Documents 70 and 71: These documents disclose certain records of the Department, the nature of the searches made in the MAL, and the manner in which they are made. They also fall within the s 37(2)(b) exemption.
68. Accordingly, we find that documents 14, 15, 16, 67, 70, 71 and 73 are exempt from disclosure under s 37(2)(b) of the FoI Act.
Second issue: ss 40(1)(d) and 40(2) of the FoI Act – Documents concerning operations of an agency
69. Because of the conclusions we have reached in relation to s 37(2), it is not necessary for the Tribunal to address the second issue relating to ss 40(1)(d) and 40(2). However, the Tribunal briefly comments below on some matters arising from s 40(1)(d).
70. To substantiate a claim for an exemption under s 40(1)(d) of the FoI Act, the Department must show that disclosure of a document could be reasonably expected to have a substantial adverse effect on the proper and efficient conduct of an agency. However, according to s 40(2), a document is not exempt from disclosure if such disclosure would, on balance, be in the public interest.
71. The first question arising under this issue is whether disclosure could be expected to have a “substantial adverse effect”. The authorities indicate that the effect must be real, significant and not merely nominal: see Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 at 452. An example of where the Tribunal has found a substantial adverse effect is Re Rees and Australian Federal Police (1999) 57 ALD 686. In that case, the Tribunal held at 720 that disclosure of details of close co-operation between Australia and overseas police forces had a substantial adverse effect on the way in which the Australian police force operates.
72. The reference to the “proper and efficient operation of the Department” in s 40(1)(d) refers to the way in which the Department performs its functions under the Act. In the present case, the efficient implementation of the Act calls for investigation by the Minister of the character of non-citizens. If the methodology of those investigations is disclosed, then it could reasonably be expected that evasive techniques will be adopted by non-citizens of interest to circumvent or impede those investigations, thereby disrupting their proper and efficient operation. It has been held, for example, that the operations of Centrelink in investigating claims would be subverted, and a substantial adverse effect suffered, if details as to its system for monitoring claims were disclosed: see Re Meschino and Centrelink [2002] AATA 627.
73. The documents in relation to which the exemption under s 40(1)(d) is claimed are the same documents as those in relation to which the exemption under s 37(2) is claimed, as discussed above. In our view, the evidence referred to above is sufficient to also establish that disclosure could reasonably be expected to have a substantial adverse effect on the proper conduct of the operations of the Department.
Third issue: s 41(1) – Personal privacy
74. Section 41(1) of the FoI Act provides that “[a] document is an exempt document if its disclosure … would involve the unreasonable disclosure of personal information about any person”. Under s 4 of the FoI Act “personal information” is defined as:
… information or an opinion …, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
…
75. This definition is self-evidently broad. Its application can mean that s 41(1) of the FoI Act will render exempt from disclosure information which is “personal information” not relevant to the affairs of government, but which is likely to only satisfy the curiosity of the person requesting it: see Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 (per Heerey J) (“Colakovski”).
76. Disclosure under the Act is to the world at large, and therefore it is not necessary for a person who would be affected by the disclosure to establish any particular unfairness, embarrassment or hardship: Colakovski at 441 (per Heerey J). Where the information has no relevance to administration or matters of government but relates only to the personal details or affairs of an individual, then the relatively low threshold necessary to satisfy this provision will be made out: see Colakovski at 441 (per Heerey J).
77. The decision in Colakovski concerned records created by the Australian Telecommunications Corporation investigating anonymous phone calls made to Mr Colakovski’s home. Access to the records was denied because the “personal information” in question revealed not only the identity of the caller but also the reasons asserted for making the calls. Heerey J pointed out at 441 that the focus of the FoI Act is on the public interest in making information concerning the actions and omissions of government accessible to the public, and therefore allowing the information to be used to examine the conduct of government agencies. If information is of no such relevance to administrative or governmental conduct, then it is difficult to resist the conclusion that disclosure of the information is unreasonable. While considerations of embarrassment, prejudice or other harmful effects on reputation may be relevant, they are not of themselves determinative or controlling considerations.
78. Documents 4, 20, 21, 30, 31, 68, 69, 70, 74, 75, 76, 77, 78, 80 and 81: In our view, the disclosure of these documents would be unreasonable because it would unnecessarily reveal the identity and personal details of persons other than the applicant who are under investigation. In the case of documents 77, 78, 80 and 81, for example, mobile telephone numbers are listed, and consequently disclosure may result in harassing or unsolicited calls being made to those numbers. By way of further example, document 4 contains a bundle of names and details entered in the MAL in relation to student visa applications made by persons other than the applicant. The details given are of a personal nature such as birth date, nationality, names of parents and place of birth. These details are not relevant to the affairs of the government or its agencies, and no need has been shown for their disclosure. Accordingly, we find that these documents are exempt from disclosure pursuant to s 41(1) of the FoI Act.
Fourth issue: s 42 – Legal professional privilege
79. The Minister asserts an exemption over the remaining documents in dispute by reference to s 42 of the FoI Act. That section exempts documents from disclosure which would be privileged from production in legal proceedings on the ground of legal professional privilege. The test for legal professional privilege is whether the dominant purpose for the making of a communication, or the preparing of a document, was to provide legal advice or assistance, or for use in legal proceedings: see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
80. In order to answer the question whether these documents are exempt on the basis that they attract legal professional privilege, we have inspected the relevant documents, and have made the determinations summarised below.
81. Documents 32-40 and 42-53: These documents are communications between the Department and external legal representatives, which on their face are made either for giving legal advice, or in the course of, or for the purpose of conducting or advising in respect of, legal proceedings. Accordingly, we are of the view that they are exempt under s 42 of the FoI Act.
82. Documents 54-57 and 59-65: These are documents which record discussions and exchanges between legal and other officers within the Department in relation to the conduct of legal proceedings.
83. In relation to advice and communications given by in-house counsel, the High Court in Waterford v The Commonwealth (1987) 163 CLR 54 at 62 (per Mason and Wilson JJ) and 70 (per Brennan J) observed that the professional relationship which enlivens the privilege must be of such a nature as to ensure that the advice is independent, notwithstanding any employment relationship between the adviser and the employer. The relationship must be independent in order to ensure that the personal interests of the adviser do not influence the legal advice or the impartiality with which legal proceedings are conducted on the client’s behalf. This requirement for independence has been reaffirmed in later cases: see Seven Network Ltd v News Ltd [2005] FCA 142 at [5]; Rich v Harrington [2007] FCA 1987 at [36]-[46].
84. In the present case, however, there is no evidence to show that the internal legal advisers are not independent and the relevant documents otherwise fail to satisfy the requirements for legal professional privilege. Accordingly, having examined the documents in the light of the above principles, we are of the view that these documents are exempt on the ground of legal professional privilege.
Fifth issue: Ulterior purpose
85. The principal and overarching submission advanced by the applicant is that none of the documents for which exemption from disclosure is claimed are properly exempt because the Department is not exercising its discretionary powers under the Act for the purpose of performing its functions under that Act, but rather is exercising those powers at the request of the authorities of the PRC for the ulterior and unauthorised purpose of effecting (in the absence of any extradition treaty between Australia and the PRC) the extradition of the applicant to face criminal charges in the PRC. The applicant submits that the initiating and abiding purpose of the Minister’s exercise of power to refuse renewal of the applicant’s visa is a purpose foreign to the power given to the Minister under the Act. Therefore, it is said, the claims for exemption should be refused since they are infected by the ulterior purpose.
86. There are a number of difficulties with advancing this submission as to ulterior purpose in the present case. The first is that the submission misconceives the jurisdiction of the Tribunal on this appeal. The applicant, in pressing the ulterior purpose submission, is in effect seeking judicial review of the decision of the Minister in relation to the exercise of his powers under the Act.
87. As Smithers J pointed out in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23 (“Lawlor”):
…
It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.
…
88. In addition, Deane J said at 31:
…
An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution.
…
89. These statements of principle in Lawlor have been approved on numerous occasions by later decisions of the Full Court of the Federal Court, with the result that it is well established that the Tribunal has jurisdiction to make decisions even when the original decision of the decision-maker is affected by error: see Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Zubairv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and another (2005) 143 FCR 314; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1.
90. The first answer, therefore, to the ulterior purpose submission of the applicant is that it is not open on this appeal before the Tribunal to conduct judicial review, which is what, in effect, the applicant seeks by this submission.
91. The second answer in respect of the ulterior purpose submission is that the evidence relied upon by the applicant does not point to any reasonably arguable case that the Minister’s decision not to renew the applicant’s visa was taken for the ulterior purpose of acting at the behest of officials of the PRC.
92. In summary, the principal evidence relied on by the applicant was as follows:
(a)documents sent from officials in the PRC to Australian officials showing that the applicant was allegedly involved in fraud and smuggling, and that the authorities of the PRC wanted to locate, detain and repatriate him;
(b)documents demonstrating that officials in the PRC had in fact requested that the applicant be monitored, detained and ultimately repatriated to the PRC;
(c)documents evidencing a requirement that Australian officials consult with, and react to requests from, officials in the PRC before taking any action in relation to the applicant and other non-citizens of interest;
(d)a suggestion in correspondence from the PRC that Australian investigations of the applicant extend to any accomplices in his alleged crimes;
(e)an acknowledgment by Mr Riviere in cross-examination that deportation pursuant to the Act was used as an alternative to powers under extradition treaty (especially where no such treaty existed);
(f)an acknowledgment by Mr Riviere in cross-examination that he personally was aware of the request for repatriation from the PRC when he prepared his advice to the Minister;
(g)information that suggested the Department had a special practice for dealing with requests for repatriation in high profile cases;
(h)documents suggesting that certain members of the Department, and in particular Mr Riviere, had an attitude towards the applicant that he was an alleged criminal that Australia was “harbouring”, and that it might be convenient to detain him pursuant to the power in s 192 of the Act without waiting for the Minister’s decision under s 501;
(i)an acknowledgment by Mr Coyne in cross-examination that he was a “conduit” for information to flow between officials in the PRC and Australian officials;
(j)an acknowledgment by Mr Riviere in cross-examination that the assessment of a person’s “flight risk” would be informed by the attitude of officials in the PRC to that person; and
(k)an acknowledgment by Mr Riviere in cross-examination that officials in the PRC were informed of every development in respect of persons of interest to the PRC listed on the MAL.
93. Taken as a whole, this evidence, at most, suggests a conclusion that the Minister and the Department, when making certain decisions pursuant to their powers under the Act, cooperated with overseas authorities in order to investigate the character of non-citizens and protect the Australian community. The fact that this cooperation is ongoing, and may in some circumstances serve the purposes of both the PRC as well as Australia, does not support a conclusion that the power to refuse renewal of a visa under the Act is being exercised for a purpose foreign to that Act, namely, to achieve the extradition of a non-citizen in the absence of an extradition treaty. Simply because there is currently no extradition treaty between Australia and the PRC does not mean that an exercise of a power under the Act which results in the removal from Australia to the PRC of a non-citizen is necessarily outside the powers and discretions conferred by that Act. Nor can it be said that the co-operation and exchange of information on a sophisticated, organised and continuing basis between authorities in the two countries points to a conclusion that there Minister misused a power relevant to claims for exemption under the FoI Act. The Tribunal is not satisfied that the evidence in this case is sufficient to warrant the conclusion that there was any operative ulterior purpose. It is one thing to conclude that the Minister was aware that non-renewal may lead to the removal of the applicant, but quite another to conclude that the non-renewal was for the ulterior purpose of achieving the applicant’s extradition.
94. Accordingly, for the above reasons, we conclude that the ulterior purpose submission of the applicant is not made out.
Conclusion
95. For the above reasons the decision under review is affirmed.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Presidential Member, Professor GD Walker, Deputy President and Ms NP Bell, Senior Member
Signed: ....................sgd..........................................................
Lucas Bastin, AssociateDate/s of Hearing: 27, 28 November and 17 December 2007
Date of Decision: 30 April 2008
Solicitor for the Applicant: Mr P Leung,
Counsel for the Applicant: Mr R Wilson
Solicitor for the Respondent: Ms B Griffin, AGS
Counsel for the Respondent: Dr M Allars,
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