Wong and Minister for Immigration Multicultural and Indigenous Affairs
[2006] AATA 46
•24 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1343
GENERAL ADMINISTRATIVE DIVISION ) Re
Tai Shing Wong
Applicant
And
Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date24 January 2006
PlaceSydney
Decision The documents listed in the respondent’s amended schedule dated 29 November 2005 are exempt from disclosure, except for documents 41 and 79 in the schedule.
..............................................
Professor GD Walker
Deputy President
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1343GENERAL ADMINISTRATIVE DIVISION )
ReTai Shing Wong
Applicant
AndMinister for Immigration Multicultural and Indigenous Affairs
Respondent
DIRECTION TO AMEND WRITTEN DECISION [2006] AATA 46
TribunalProfessor GD Walker, Deputy President
Date20 March 2006
PlaceSydney
WHEREAS:
1.Professor GD Walker released a written decision in this matter, which was dated 24 January 2006;
2.It has come to the Tribunal’s attention that there is an error in the decision in so far as a word is missing from paragraph 113 of the decision;
3.The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies section 43AA of the Administrative Appeals Tribunal Act 1975;
NOW THE TRIBUNAL THEREFORE DIRECTS:
That the decision of the Tribunal as recorded at paragraph 113 should read as follows:
113. As has been indicated, I have reached the conclusion that the evidence does not support a prima facie case of improper conduct and accordingly I cannot give any significant weight to that part of the applicant’s submissions.
……[sgd] GD Walker…………..
Professor GD Walker
Deputy President
CATCHWORDS
Freedom of Information application – immigration – applicant applied for student visa – applicant refused a student visa on the ground that he failed to pass the character test – disclosure of exempt documents – disclosure of protected information – whether authorised migration agent is prohibited from disclosing the name of the agency which provided information concerning the applicant – definition of “gazetted agency” in s 503A of the Migration Act 1958 – whether notice published in the Gazette was valid – held documents listed in the respondent’s amended schedule dated 29 November 2005 are exempt from disclosure, except for documents 41 and 79 in the schedule.
Administrative Appeals Tribunal Act 1975 ss 36, 36A, 45
Freedom of Information Act1982 ss 11, 22, 23, 33(1)(b), 33(2), 36, 36(3), 37(1)(b), 37(2)(b), 38, 40(1)(d), 41(1), 42, 45, 61(1)
Migration Act1958 s 503A
Migration Legislation (Protected Information) Act 2003
Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Re Governor of Brixton Prison; ex parte Soblen [1963] 2 QB 243
Chu v Telstra Corporation Ltd [2005] FCA 1730
Drake v Minister for Immigration (1979) 24 ALR 577
Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443
Re Wallace and Australian Federal Police [2004] AATA 845
Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111
Re Meschino and Centrelink [2002] AATA 627
Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445
Utter v Cameron [1974] 2 NSWLR 50
Minister for Immigration and Multicultural and Indigenous Affairs v Gunner (1998) 84 FCR 400
Hot holdings Pty Ltd v Creasy (2002 210 CLR 438
Re Kamminga and Australian National University (1992) 26 ALD 585
Maxwell v Murphy (1957) 96 CLR 261
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Waterford v Commonwealth 91987) 163 CLR 54
Re Murphy and Australian Electoral Commission (1994) 33 ALD 718
Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 (1 December 2003)
NAAO v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 66 ALD 545
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 (6 August 2002)
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (includes remarks) [2002] FCA 1271 (18 October 2002)
Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 (31 October 2002)
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1436 (6 November 2002)
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 (6 February 2004)
REASONS FOR DECISION
24 January 2006 Professor GD Walker, Deputy President Summary
1. This is an application by Tai Shing Wong (“the applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) made on 15 July 2002 that the applicant be denied access under the Freedom of Information Act1982, either in whole or in part, to files held by the Department of Immigration and Multicultural and Indigenous Affairs in relation to the applicant.
Background
2. Tai Shing Wong, was born on 26 November 1957, and is aged 48. He is a national of the People’s Republic of China (“China”). He has had resident status of Hong Kong since 1994 and his wife and children presently live there.
3. On 22 August 1999, Mr Wong entered Australia on a visitor visa. Shortly after his arrival, he applied for a student visa in order to undertake a three year business management course. On 12 November 1999 he was granted a subclass 560 student visa, valid to 5 January 2001.
4. On 15 December 2000, Mr Wong applied for a renewal of his subclass 560 student visa in order to continue his studies. Mr Wong was granted a bridging visa under the Migration Act1958 while his application was being processed. On 22 January 2002, the Minister, acting personally under s501(3) of the Migration Act1958 (“the Act”), decided to refuse Mr Wong’s application for renewal of his student visa.
5. 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, which contained the decision dated 22 January 2002. Mr Wong has been in detention in Villawood Detention Centre, New South Wales, since that date.
6. On 18 February 2002, Mr Wong lodged an application under the Freedom of Information Act 1982 (“the FoI Act”) for copies of all information on which the Minister had made his decision on 22 January 2002 to refuse the grant of subclass 560 student visa and for copies of all visa applications made by him and all documents held on files (T2 p5).
7. On 15 April 2002, a delegate of the Respondent advised the Applicant that the documents held by the Department relating to him were contained in the following files (T4 p28):
·ABS2000/2133 Box file containing student applications
·CLF2001/9179 Wong, Tai Shing 25/11/1957
·CCF2002/352 Mr Wong’s litigation file
·IOF2000/464 Investigation section file
·IOF2002/104 Investigation section file
The delegate advised the Applicant that the following documents would be released in full:
·Of file ASB2000/2133 folios 1-17
·Of file CLF2001/9179 folios 1-15, 23, 27-37
·Of file CCF2002/352 folios 1-62, 68-71
·Of file CCF2002/616 folios 1-21
·Of file IOF2000/464 folios 1-3, 6, 13-15, 17-19, 22-36, 38-43, 46-48, 50-63, 70-72, 79-176, 191-203
·Of file IOF2002/104 folios 205-237, 240, 246, 249-250, 252-253, 257-259, 261, 263-270, 275-276.
The delegate advised that the following documents would be released with deletions:
·Of file CCF2002/352 folios 63-64
·Of file IOF2000/464 folio 37
·Of file IOF2002/104 folios 204, 238-239, 251, 256, 260, 262, 272-274
The delegate advised that the following documents would be exempt from release:
·Of file ASB2000/2133 all remaining documents in the file box
·Of file CFL2001/9179 folios 16-22, 24-26
·Of file CCF2002/352 folios 65-67
·Of file CCF2002/616 folios 22-23
·Of file IOF2000/464 folios 4-5, 7-12, 16, 20-21, 44-45, 49, 64-69, 73-78, 177-186, 188-190
·Of file IOF2002/104 folios 241-244, 245, 247-248, 254-255, 271
8. On 17 May 2002, Mr Wong applied for a review of this decision (T5 p36).
9. On 15 July 2002, an officer authorised to make decisions under s23 of the FoI Act refused Mr Wong access to whole or part of documents held by the Department (T2 p5). In making this decision, he examined the documents held by the department, and contained in files numbered:
·ASB2000/2133 (box file containing student applications);
·CLF2001/9179 (Wong, Tai Shing 25/11/1957);
·CCF2002/352 (Mr Wong’s Litigation file);
·CCF2002/616 (Mr Wong’s litigation file);
·IOF2000/464 (Investigation Section File);
·IOF2002/104 (Investigation section file); and
·ICF2002/306 Investigation Section file.
·ICF2002/306 FOI request file
The delegate decided to release:
·File CLF2001/9179 in full
·File CCF2002/616 folio 36
·File IOF2000/464 folios 66-69, 75-78, 179-187, 188-
190
·File IOF2000/104 folios 77 (previously 256), 80-81 (previously 259-260), 177
·File IOF2002/104 folios 1-9, 30-41
The delegate affirmed the decision of the exemption of folios:
·ASB2000/2133 all other applications in the box file
·IOF2000/104 folio 92 (previously 271)
·CLF2002/352 parts of folios 63-64
·IOF2000/464 folio 37 and folios 204, 238-239, 272-274
He also decided to exempt the following folios:
·CCF2002/352 folios 74, 97-98, 100-101, 164
·IOF2002/104 folios 57-58 (238-239), 93-95 (272-274),
183, 189,190-196
·CLF2002/616 folios 23, 37-41
·ICF2002/306 folios 118-119
10. On 13 September 2002, Mr Wong lodged an application for a review of this decision with the Tribunal (T1 p4).
11. While it is not relevant to the current matter, the tribunal notes the applicant’s involvement in a number of other proceedings. Shortly after receiving notification of the Minister’s decision of 22 January 2002 to refuse the renewal of his student visa, Mr Wong sought revocation of the decision under s501C of the Act. On 28 May 2002, the Minister decided not to revoke his earlier decision. On 7 June 2002, Mr Wong was informed of this decision.
12. Mr Wong also lodged an application for review of the decision to refuse the renewal of his subclass 560 student visa with the Federal Court, on the basis that the Minister had erred by applying the incorrect test under s501(3) of the Act. On 6 August 2002, Tamberlin J dismissed the application.
13. At the same time, Mr Wong also lodged an appeal with the Federal Court on the basis that the Minister had erred in his application of s501C(4) of the Act. On 6 November 2002, Wilcox J dismissed the application.
14. On 5 July 2002, Mr Wong made an application to the Federal Court, seeking an order to administer interrogatories, in the form of seven questions, to the Minister. On 10 October 2002, Wilcox J ordered that the interrogatories, amended as directed by the Court, be answered by the respondent.
15. The Minister appealed against this decision on 17 October 2002. On 31 October 2002, the Full Court of the Federal Court, comprising Hill, Moore and Branson JJ, held that the application for interrogatories was based on an unfounded allegation of ulterior purpose on the part of the Minister, and ordered that the decision of Wilcox J be set aside and that the application for leave to administer interrogatories be refused.
16. On 13 August 2003, the respondent filed and served an amended schedule of exempt documents on the Administrative Appeals Tribunal and the applicant.
17. On 14 August 2003, the tribunal constituted by the then Deputy President, Mr RP Handley, heard as a preliminary issue in the current proceedings the question whether s503A(1) of the Act protected some of the documentary material at issue in the case from disclosure to the applicant. Deputy President Handley found “that s503A(1) does not protect either documents supplied by the Ministry of Public Security of the People’s Republic of China or Interpol Canberra from disclosure, because they are not “gazetted agencies” for the purposes of s503A(9) of the Act”. On 4 September 2003, the Minister for Immigration and Multicultural and Indigenous Affairs appealed against the decision to the Federal Court on the following questions of law:
(a)whether the Tribunal erred in law in applying section 503A of the Act as it was prior to the amendments effected by the Migration Legislation Amendment (Protected Information) Act 2003 (“the Protected Information Act”) and not as it was after those amendments and in having regard to Commonwealth Gazette Notice No GN23, 9 June 1999 (“the 1999 Gazette Notice”) and not Commonwealth Gazette Notice No GN32, 13 August 2003 (“the 2003 Gazette Notice”)
(b)whether the Tribunal erred in law in finding that the Ministry of Public Security of the People’s Republic of China was not a “gazetted agency” for the purposes of subsection 503A(9) of the Act
(c)whether the Tribunal erred in law in finding that Interpol Canberra was not a “gazetted agency” for the purposes of subsection 503A(9) of the Act.
18. On 6 February 2004, Lindgren J of the Federal Court decided that the appeal from the Administrative Appeals Tribunal should be dismissed as incompetent, stating at paragraphs 163-169:
163. …
… In the present case, the Deputy President’s ruling was not ‘the effective decision or determination of the application for review’ which was before the AAT.
The Minister submits that the AAT proceedings can properly be divided into two or more separate parts in respect of which independent ‘decisions’ may properly be given, and, apparently, that one of those parts is a part relating to Attachments C1-10.
165. I do not agree.
…
168. I will dismiss the application in the AAT appeal as incompetent.
169. In the alternative to his submissions that the AAT appeal is not incompetent, in his written submissions the Minister seeks leave to amend to apply under s 39B of the Judiciary Act. …
I refuse the application. The AAT has not committed any jurisdictional error, and, on the evidence, is not about to do so. …
19. On 29 November 2004, following the release of a large volume of documents to the applicant, the respondent filed an amended schedule of documents upon which it still claimed exemption. Subsequently, during the hearing a year later, the respondent filed a further amended schedule of documents dated 29 November 2005, which takes account of the release of some further documents. It is this most recent schedule that lists the documents still in issue in these proceedings.
20. At the hearing of the substantive issue in this matter, the applicant was represented by Robert Wilson, of counsel, instructed by Peter Leung, solicitor, and the respondent was represented by Dr Margaret Allars, of counsel, instructed by Sharon Hanstein, solicitor, of Blake Dawson Waldron, solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with exhibits tendered by the parties at the hearing. For the respondent, Craig Riviere and Peter Coyne gave oral evidence in person.
Relevant Law and Policy
21. A decision in this matter requires consideration of a number of provisions of the FoI Act. Section 11 of the FoI Act gives a person the right to obtain access to documents held by an agency or an official document of a Minister, other than an exempt document.
22. Section 23 of the FoI Act provides that a decision to refuse information must be made by an authorised person:
(1) Subject to subsection (2), a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.
A decision in respect of a request made to a court, or made to a tribunal, authority or body that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body by the principal officer of that court, tribunal, authority or body or, subject to the regulations, by an officer of that court, tribunal, authority or body acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the principal officer of that court, tribunal, authority or body.
23. Section 37 of the FoI Act provides for documents that are exempt on the basis of the enforcement of the law and protection of public safety:
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
(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; or
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
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;
24. Section 33 of the FoI Act provides documents may be exempt if they affect national security, defence or international relations:
(1) A document is an exempt document if disclosure of the document under this Act:
(a) …
would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
25. Section 41 of the FoI Act provides that a document may be exempt if it affects 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).
26. Section 503A of the Migration Act1958 provides for the protection of information supplied by law enforcement agencies or intelligence agencies in the making of a decision relevant to good character:
(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:
(a) the officer must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and
(b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.
Note: Authorised migration officer and gazetted agency are defined by subsection (9).
(2) If:
(a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or
(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
(c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
(d) if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.
(3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.
Note: Commonwealth officer is defined by subsection (9).
(4) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration.
(5) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).
(6) This section has effect despite anything in:
(a) any other provision of this Act; and
(b) any law (whether written or unwritten) of a State or a Territory.
(7) To avoid doubt, if information is divulged or communicated:
(a) in accordance with paragraph (1)(a) or (b); or
(b) in accordance with a declaration under subsection (3);
the divulging or communication, as the case may be, is taken, for the purposes of the Information Privacy Principles set out in section 14 of the Privacy Act 1988 , to be authorised by law.
(8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.
(9) In this section:
authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914.
Note: A Minister is not a Commonwealth officer.
gazetted agency means a body, agency or organisation that is:
(a) responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and
(b) specified in a notice published by the Minister in the Gazette.
Issue
27. The issue for the tribunal to determine in this case is, therefore, whether disclosure of the exempt documents, in whole or in part, to Mr Wong:
(a)would be contrary to s 503A of the Migration Act 1958; and/or
(b)would be prejudicial to investigations under ss 33(1)(b), 37(1)(b) and/or (2)(b) of the FoI Act, or are exempt under s 36, a 38, s 40, s 41, s 42 or s 45 of the Act; and/or
(c)whether partial disclosure of the information not released upon internal review is possible pursuant to s 22 of the FoI Act.
Evidence
28. The applicant did not give evidence but the evidence adduced on his behalf included two affidavits sworn by Mr Peter Leung, the applicant’s solicitor, dated 30 April 2003 (Exhibit A15) and 3 December 2004 (Exhibit A16) respectively. The affidavits set out the background and course of these proceedings, including the Minister’s refusal to renew the applicant’s student visa, the applicant’s detention, the application for revocation of the decision under s503C of the Migration Act and the judicial review proceedings in the High Court and the Federal Court.
29. Mr Leung states that on his instructions his client intends, if his application is successful, to use the documents in making further representations to the respondent seeking revocation of the original decision to refuse the visa, and also to make representations to the Chinese Embassy in Australia opposing what he sees as the attempts by the government of the People’s Republic of China (“PRC”) to have him returned to China for interrogation and prosecution notwithstanding the absence of an extradition treaty between China and Australia. He also hopes to clear his name in China and defend the allegations that have made against him. Mr Wong also intends to use the documents in connection with certain judicial review proceedings he has on foot in the Federal Court seeking to overturn the ministerial decisions made in his case. Mr Leung also notes that the applicant’s wife and child currently live in Hong Kong. Mr Wong says that he wishes to remain in Australia to complete the course of study that he was undertaking before his detention.
30. In review proceedings in this tribunal under the FoI Act, the agency or minister to whom the request was made has the onus of establishing that a decision on the request was justified or that the tribunal should give a decision adverse to the applicant (s61(1)).
31. The respondent’s first witness was Mr Craig Riviere, who swore an affidavit dated 19 March 2003 (Exhibit R4). At that date he was an officer of the Department of Immigration and Multicultural and Indigenous Affairs employed in its investigations, policy and co-ordination section (“IPCS”), having joined the department in March 2001. He had been assistant director since September 2001 and was a delegate of the Minister for the purposes of the FoI Act. By the time he was called to give evidence in chief before the tribunal, however, Mr Riviere had moved to the Attorney-General’s Department.
32. The responsibilities of the IPCS included liaison with overseas governments, Commonwealth agencies and Australian, foreign and international bodies involved in law enforcement. Security or criminal intelligence and related information provided by those agencies enabled the department to conduct character assessments of visa applicants and visa holders for the purposes of considering the grant or refusal of visas under the character provisions of the Act. It had a role in preventing and deterring unauthorised entry into Australia and in the detection, investigation and prosecution of breaches of migration law, including the use of false documents, the making of false statements, people smuggling, contrived marriages and the provision of migration assistance by persons not registered as migration agents. In his view the disclosure of information received from law enforcement agencies would make them reluctant to provide such information in the future and would hamper the department’s function of making assessments under s501 of the Migration Act in relation to criminal history or associations. The department relies on those agencies for information of that kind, and disclosing it could reveal sources, procedures and personnel related to law enforcement.
33. Mr Riviere said that in the course of his duties with the IPCS he had become aware of the high degree of importance that law enforcement agencies place on the security of the information they provide to the department and the security of their identities as sources of that information. The Commonwealth had recognised the importance of protecting information security or intelligence information or both provided by such agencies, through its amendments to s503A of the Migration Act in 1998, as well as by establishing agreements with a number of foreign governments to govern exchanges of directed at strengthening law enforcement co-operation and combating illegal immigration. If law enforcement agencies no longer provided such information, character assessments would be less effective and non-citizens who were not of good character might be permitted to enter or remain in Australia. Breaches or potential breaches of the Act might go undetected. Consequently, the integrity of the migration program could be undermined and the Commonwealth’s ability to protect the Australian community would be reduced.
34. The respondent at the hearing claimed that only two documents are protected by s503A of the Migration Act. The first is folios 177-178 of file IOF 2000/464, listed in the schedule as document 7, which is an Interpol “wanted” notice, sent from Interpol Canberra to the Attorney-General’s Department. The second is Exhibit A28, or document 82, which was not discovered until late in the proceedings and was tendered on the last day of the hearing. Mr Riviere’s evidence does not deal with that document. Those two documents are the only ones in Group 2 of the schedule, which comprises documents for which s503A protection is claimed. Document 82 is now the subject of Minister’s certificates under ss 33(2) and 36(3) of the FoI Act, as is indicated below.
35. Mr Riviere also refers to folios 60-63 of file IOF 2002/104 (document 68) consisting of internal emails, the disclosure of which could reasonably be expected to reveal lawful procedures for preventing a breach of the Act. His evidence on that point was supplemented in his confidential affidavit (Exhibit R5).
36. In his open affidavit Mr Riviere also referred to the Movement Alert List (“MAL”), a computer database that stores details about people of immigration concern to Australia. He describes it as a key tool in detecting whether persons whom Australia may wish to exclude make an application for entry to Australia. It forms part of Australia’s complete system of border protection. Information provided by law enforcement agencies and departmental officers in Australia and overseas is a source of information recorded on MAL. In his confidential affidavit of 19 March 2003, Mr Riviere elaborates on the reasons why disclosure of information on the working of MAL would be harmful to national security.
37. Much of the applicant’s cross-examination of Mr Riviere related to matters of detail about the nature of the search made for relevant documents, where documents were originally located, what copies existed and had been found, and what instructions Mr Riviere had received from his supervisors in relation to his administrative duties. On 6 December 2004, however, when Mr Riviere was being cross-examined about a document marked for identification as MFI 2, Mr Wilson asked him about paragraph 1 of that document in approximately these words: “Doesn’t this say more, and show that the department had a PRC case-load that was being monitored by the Minister and was very sensitive, a list of people the PRC wanted back?”
38. The respondent objected to that question, and after considering extensive written and oral submissions, I delivered on 9 December 2004 an oral ruling, supplemented by written reasons on 25 January 2005, allowing the question. The hearing was then adjourned on the respondent’s application so that the respondent might seek from the Commonwealth Attorney-General a certificate under ss36 and 36A of the Administrative Appeals Tribunal Act. A certificate was granted on 10 April 2005 (Exhibit R6). It certified that the disclosure of certain information concerning the matters specified in a confidential schedule to the certificate would be contrary to the public interest as prejudicial to Australia’s international relations within s36(1)(a). It also certified pursuant to s36A that the answering by a person of a question, the answer to which would disclose information concerning the matters in the confidential schedule would be contrary to the public interest for the same reason. By issuing that certificate the Attorney-General automatically became a respondent in the proceedings (ss36(3A), 36A(2A)). I will refer to him where necessary as “the second respondent” but the designation “the respondent” will be reserved for the original respondent, the Minister.
39. When the cross-examination of Mr Riviere resumed, Mr Wilson on behalf of the applicant put a series of questions to him designed to elicit evidence that might support the applicant’s case for disclosure of documents for which the respondent claimed exemption. The second respondent objected to those questions on the basis that the certificate excused the witness from answering them, as they related to information in the confidential schedule. I upheld those objections.
40. The applicant then sought, pursuant to s45 of the Administrative Appeals Tribunal Act, a reference to the Federal Court of a question of law, namely the answering of the questions on which I made the rulings just mentioned was in fact not contrary to the public interest. The respondents did not oppose that application. Nevertheless, for the reasons given with my decision dated 25 January 2005, I declined to recommend to the President that such a reference be made.
41. The certificate thus limited the scope of the applicant’s cross-examination of Mr Riviere, with the result that it did not seem to me that Mr Riviere’s evidence, in chief or in cross-examination, greatly assisted the applicant’s case.
42. Next, the respondent called Mr Peter Coyne, Principal Migration Officer (Compliance) based at the Australian Embassy in Beijing. Mr Coyne, who is fluent in Mandarin, is one of a number of officers stationed at several of DIMIA’s overseas posts as part of a range of measures taken to reduce the number of illegal entrants trying to enter Australia and to counter people smuggling. His duties include working to identify and report on the activities of people smugglers and to counter the efforts of foreign nationals seeking to enter Australia illegally through the use of false or fraudulent papers and other forms of malpractice. A significant part of his role is liaison and information exchange with PRC authorities in Beijing, particularly the Ministry of Public Security (“MPS”). MPS is a government department in charge of law enforcement operations nation-wide. Its functions include police supervision, domestic security, economic crimes investigation, public security, border control, criminal investigation, entry and exit control, international co-operation and drug control.
43. Information is exchanged between DIMIA and MPS on the basis that the information is to be held in confidence by the receiving party. Liaison and information exchange take place largely in the framework of the MOU and the “Minutes of Discussions between the Department of Immigration and Multicultural Affairs of Australia, the Australian Federal Police and the Ministry of Public Security of the People’s Republic of China Concerning Strengthening Law Enforcement Co-operation and Combating Illegal Immigration” dated 16 May 2000 (“the Minutes”).
44. Mr Coyne’s contact and information exchange with MPS occurs primarily through formal meetings with MPS officers which he attends together with the regional director, usually once or twice a month, hand-delivery to the embassy of sensitive information, the exchange of faxes, usually two or three times a month, telephone conversations, usually weekly, and contact in the course of formal social occasions such as dinners.
45. Of the documents still in contention, Mr Coyne is familiar with IOF2002/104, folios 190-196 (document 4) and IOF2000/464, folios 177-178 (document 7). Each of those documents has been in his possession but he could not recall the precise circumstances in which they came into his possession. They contain information of a kind which he personally, or through the regional director, often received from MPS. When such documents came into his possession he was of the opinion that they were intended to be treated as confidential. There were several reasons for that, including the formal framework under which the exchange of information took place, notably the MOU and the Minutes, the circumstances surrounding the exchanges, including the fact that they took place hand-to-hand in the presence of relatively senior department officers including the regional director, and relatively senior MPS officers; the sensitive nature of the documents and the fact that many were stamped by MPS with the words “Law Enforcement – Protected” and their Chinese equivalent. His practice was to transmit such documents as soon as possible to central office in Canberra by fax or diplomatic bag. He stores such documents in a B-class security container that is locked when he is not in his office. His office is also locked when he is not there.
46. Document 4, Mr Coyne said, consisted of materials received from MPS together with his fax cover sheet attaching the documents from MPS addressed to Craig Riviere dated 2 April 2002. He faxed them to Mr Riviere on 2 April 2002. The documents from MPS are Interpol “wanted” notices in relation to persons other than the applicant. As far as he could recall, the documents were given to him by MPS on or about 2 April 2002.
47. Document 7 was originally part of attachment C1-10, an attachment to the submission to the Minister in relation to the refusal of the applicant’s student visa application. The whole of C1-10 has been released to the applicant, except for document 7. Mr Coyne’s evidence does not appear to refer to document 7 specifically. He describes C1-10 as comprising 102 pages received from MPS in a bound booklet. Some of the contents of the booklet were in the Chinese language and some were translations.
48. To the best of his recollection the booklet was given to him by MPS on or about 3 November 2000, whereupon he sent it to Mr Andrew Richards, an IPCS officer. At the foot of each page of the booklet were stamped the words “Law Enforcement – Protected” in English and Chinese. To the best of his recollection that stamp was already on the documents when they were given to him and was applied by or on behalf of MPS. The information in C1-10, Mr Coyne said, is relevant to the exercise of a power under s501 because it is relevant to an assessment of whether the applicant is of good character within the meaning of s501(6).
49. Mr Coyne’s confidential statutory declaration, also dated 19 March 2003, contains additional information in support of the proposition that certain documents were supplied in confidence and on the basis that they would remain confidential.
50. Ms Catherine Murphy’s evidence on behalf of the respondent related mainly to document 7 (Exhibit R13). Ms Murphy is manager of DIMIA’s Entry Operations Centre (“EOC”) and at the time of swearing her affidavit on 20 March 2003 she had held that position for about three years.
51. EOC’s responsibilities include providing a round-the-clock helpdesk to answer queries from airline staff and other agencies about the immigration status of persons travelling to, and persons in, Australia. EOC is also responsible for maintaining the department’s databases containing information about the immigration status of non-citizens and the department’s warning databases, including MAL. It reviews and maintains the quality of MAL entries.
52. EOC receives by mail Interpol “wanted” notices from Interpol Canberra. Those notices contain details of fugitives sought by Interpol. They are stamped “Confidential – Intended Only For Police and Judicial Authorities”. That stamp is on the notices when they are received by EOC and to the best of Ms Murphy’s knowledge the stamp is applied by, or on behalf of, Interpol Canberra.
53. Document 7, Ms Murphy stated, is a copy of the Interpol notice relating to the applicant. It bears the stamp referred to above, which was on it when it was received by EOC. To the best of her knowledge the stamp was applied by, or on behalf of, Interpol Canberra. The Interpol notice relating to the applicant, Ms Murphy stated, is relevant to the exercise of a power under s501 of the Act, specifically s501(6). Ms Murphy’s confidential affidavit bearing the same date gives further details about the working of MAL and about document 7 specifically.
54. Ms Murphy was not required for cross-examination, nor was Mr John Eyers whose affidavit, dated 13 August 2003, related to matters of legal professional privilege (Exhibit R11). The affidavit states that Mr Eyers is assistant secretary of the DIMIA Legal Services and Litigation Branch, which is responsible for providing legal advice to the Minister and the department and for arranging representation for, and conduct of, the department’s litigation. The arrangements for conducting litigation involve advising the area responsible for managing the particular visa subclass or policy involved in the decision under review, managing the litigation on behalf of the policy area, including seeking instructions from it, informing the policy area of significant events in the litigation and advising on the outcome and legal implications of the judgment or decision.
55. Mr Eyers states that Euphrasia Chen was at the material time the legal officer responsible for managing the various legal proceedings involving the Minister that have been instituted by the applicant. The department instructed Blake Dawson Waldron to represent the Minister at that time in those proceedings and also briefed John Basten QC, Margaret Allars and Timothy Reilly of counsel to appear in some of the proceedings.
56. He understands that Ms Chen was the person who made the hand-written annotations at folio 91 of document 35 and folios 106-107 of document 48.
57. Mr Eyers also stated that Samantha Boyle was at the relevant time acting Director of the Enforcement and Citizenship Litigation Section and Mr Justin Gibbs was legal officer in the Legal Opinions Section. Ms Chen, Ms Boyle and Mr Gibbs were all admitted legal practitioners. Mr Gibbs was asked by Livio Chicco and Craig Riviere of the Investigations Policy and Co-ordination Section, to provide legal advice in relation to the draft notification letter for the Minister’s decision not to revoke his earlier decision to refuse the applicant’s visa under s501(3). A large number of other officers in the department who are not legal officers received legal advice from legal officers in the branch. They included Craig Riviere, Peter Coyne, John Sargent, Tom Irvine and Dan Crennan. Those officers in turn communicated that advice received in confidence to other department officers who are also not lawyers and who need that advice in order to carry out their duties.
Application of the Law and Findings of Fact
58. As stated above, the issue for the tribunal to decide is whether certain information contained in the documents listed above is protected from disclosure, either in full or in part, pursuant to ss33(1)(b), 36, 37(2)(b), 38, 40(1)(d), 41, 42 and 45 of the FoI Act and s503A of the Migration Act 1958.
59. The respondent lodged extensive written submissions (Exhibit R14) supplemented orally, which discussed the general legal principles involved and then proceeded to make submissions about the individual documents or groups of documents for which exemption is claimed, listed in the amended schedule dated 29 November 2005. The applicant also made both written (Exhibit A29) and oral submissions but adopted a different approach, dictated no doubt at least in part by the fact that he had no access to the original documents or to the confidential affidavits and that his cross-examination of the respondent’s witnesses was markedly restricted by the operation of the Attorney-General’s certificates. The applicant did not systematically consider the individual documents or groups of documents in the schedule and made no submissions as to why they were not exempt from disclosure by reference to particular provisions of the FoI Act and particular parts of the evidence. Instead, he took essentially a four-part approach.
60. First, the applicant submitted that he is entitled to have access to the whole of file A97/175010, of which to date only folio 153 has been released. Exemption is claimed for folio 154 (document 73) but access to the other folios in the file has been refused on the ground that they relate to persons other than the applicant and therefore fall outside the scope of the FOI application of 18 February 2002, which seeks disclosure of documents related to the applicant’s visa applications only. The tribunal does not have that file, except for document 73.
61. The applicant argues that it is clear that for some official purpose or function, the documents relating to his visa affairs were placed within that file. “The [other] documents in that file will demonstrate, if only in part, how the applicant’s relevant affairs were dealt with or, in other words, how the applicant’s relevant affairs were processed. The file therefore contains information which is connected with the visa application which was relied on for the purpose of the decision to refuse the visa application” (Exhibit A29 paragraph 2).
62. The only evidence relating to file A97/175010 is in the affidavit of Mr Riviere, who deposes that he examined it during the course of the FOI proceedings in the tribunal. Folios 153 and 154 relate to the applicant, but all other folios are about individuals other than Mr Wong and those folios, Mr Riviere said, do not fall within the scope of the FOI request. The latter part of that statement is in part a conclusion of law, but Mr Riviere’s observations of fact about the content of the other folios in the file are uncontradicted. Although the original FOI request of 18 February 2002 is not free from ambiguity, the evidence before me supports the conclusion that apart from folios 153 and 154, the contents of file A97/175010 fall outside the request, and I will proceed on that basis. If the applicant remains of the view that he is entitled to access to the whole file that is a matter for a judicial review application. The respondent’s position does not appear to be a reviewable decision for this tribunal within the meaning of s55(1)(a) of the FoI Act because it is not a refusal to grant access to a documents “in accordance with a request”. I return below to the applicant’s claims of non-compliance on the respondent’s part.
63. The second part of the applicant’s submissions was a challenge to the scope of the s36 certificate (Exhibit R6) in so far as it relates to Exhibit A28 (document 82), a list of names located late in the proceedings and tendered on the final day of the hearing. The applicant pointed out that the introductory words of s36(1) provide that a certificate may relate to “the disclosure of information concerning a specified matter” or to “the disclosure of any matter contained in a document”. In this case the certificate (Exhibit R6) relates to “the disclosure of information concerning the matters specified in Schedule 1 to this Certificate”. That certificate, the applicant argued, could be effective in prohibiting the applicant from gaining access to the document only if it related to “the disclosure of any matter contained in a document” and that the certificate is expressed only in terms of the more limited first limb of s36(1). That submission was written and filed before the document had been uncovered and tendered. When it was produced, I ruled that its contents were protected by the certificate.
64. After the hearing had concluded, the Minister personally issued two certificates dated 14 December 2005 in relation to document 82, one under s33(2) of the FoI Act and the other under s36(3). The legal effect of those certificates is to establish conclusively that document 82 is exempt from disclosure. Accordingly, that part of the applicant’s final submissions has been overtaken by the course of the proceedings, although the applicant retains his right of appeal to the Federal Court if he considers the ruling to have been wrong.
65. The third part of the applicant’s submissions raised the public interest arguments as set out in his submissions dated 8 September 2004 (Exhibit R3) in response to the respondent’s objection to his cross-examination of Mr Riviere. Those submissions are also discussed in my reasons for decision in allowing that course of cross-examination dated 25 January 2005. “In general terms”, the applicant contended, “it is submitted that the respondent had at material times an established procedure whereby he would exercise Migration Act powers, at the request of PRC officials, to effect the return of people to the PRC to face interrogation and prosecution and that his purpose in so exercising those powers was to acquiesce in the request made by the PRC officials. This is unlawful …” (Exhibit A29 paragraph 4). The public interest therefore favours denial of any exemptions that might have the effect of concealing such (alleged) wrongdoing, the applicant submitted.
66. Two of the exemptions claimed by the respondent involve public interest considerations. The exemption in s36(1)(b) for documents prepared as part of government deliberative processes is conditioned upon disclosure being contrary to the public interest. The exemption in s40(1)(d) where disclosure would have “a substantial adverse effect of the proper and efficient conduct of the operations of an agency” does not apply if disclosure would be in the public interest (s40(2)).
67. In addition, a document the disclosure of which would bring to light unlawful or improper conduct in the operations of an agency would fail to meet even the threshold requirement of having a substantial adverse effect on the proper and efficient conduct of the agency’s operations. Again, where s41(1) exempts documents the disclosure of which would involve the unreasonable disclosure of personal information about any person, the concept of “unreasonable disclosure” necessarily imports an element of public interest, the applicant said.
68. There were two main public interest considerations at work in this case. The first was that, in the applicant’s submission, the evidence showed that the respondent had at material times an established procedure whereby he would exercise migration act powers, at the request of PRC officials, to effect the return of people to the PRC to face interrogation and prosecution and that his purpose in so exercising those powers was to acquiesce in the request made by the PRC officials. That was unlawful: Schlieske v Minister for Immigration and Ethic Affairs (1988) 84 ALR 719. The applicant submitted that he was not, however, required to establish that as a fact; it was enough for him to show that there is evidence that it could be the case. If the evidence raises a case to answer, the respondent must produce evidence of a lawful purpose, otherwise the claim for exemption must be denied; that is the test laid down in R v Governor of Brixton Prison; ex parte Soblen [1963] 2 QB 243).
69. The claim of an extraneous purpose was not the only public interest consideration, however. There was also the individual’s right to know about the workings of government, especially where they affect the life and liberty of the individual.
70. A subsidiary point concerned those exemption claims that turn upon the effects of disclosure on the effects of lawful of investigation methods or on the proper and efficient conduct of an agency’s operations (s37(2)(b), s40(1)(d)). Where the information contained in a document has already been released, the applicant argued, the release of the document itself would have only a minimal effect and it would be difficult for the respondent to show that the activities in question would be prejudiced to any significant degree. He did not, however, identify any particular documents to which that argument might apply.
71. The applicant’s fourth line of argument consisted of a challenge to the accuracy and sufficiency of the respondent’s search for the relevant documents and the accuracy and sufficiency of the respondent’s schedule of exempt documents. One variant of that argument has already been referred to above. It is the applicant’s claim to access to file A97/175010 which, except for two folios, the respondent says relates to persons other than the applicant and falls outside the FOI request. The applicant seeks access to that file, even if the names of the other applicants are deleted.
72. As regards the accuracy and sufficiency of search, the applicant submits that Mr Riviere’s claim that 74 folios of the “Beijing Papers” were copies of earlier documents that had been considered previously was unsupported by any satisfactory evidence that a proper comparison had been made. Nor was it possible to be satisfied that electronic attachments to emails had been properly traced. Mr Wilson also pointed to a number of instances of what he termed “strangeness” in emails and faxes, including the existence of horizontal lines suggesting re-photocopying, different typefaces and sentences ending too abruptly. Those features, it was submitted, suggest omissions or deletions that are not properly reflected in the respondent’s schedule of exempt documents. Consequently, it was argued, the tribunal should require the respondent to adduce proper evidence to demonstrate that those concerns are of no moment, and should in any event compare a number of copies made available to the applicant with the original documents to ensure that full and true disclosure has been made.
73. The respondent did not invoke s24A of the FoI Act in response to those contentions, nor indeed did she make any submissions at all on the adequacy of search. The applicant’s submissions made no reference to s24A either. Mr Riviere’s evidence did mention the steps he had taken to locate relevant documents but it was not specifically directed to the question whether all reasonable steps were taken, which is the requirement set out in s 24A(a).
74. The Federal Court has recently stressed the circumscribed nature of the ground of refusal in s24A and criticised the “tempered and erroneous view” that earlier tribunal decisions had adopted in relation to its requirements: Chu v Telstra Corporation Ltd [2005] FCA 1730 at paras 15, 34, 36 per Finn J. It is also far from clear that the other requirements of s24A are in fact met in this case, such as the existence of a refusal or the respondent’s belief that the document cannot be found or does not exist.
75. As there is no basis for applying s24A, the tribunal is left to perform its function in the usual way. In particular, it cannot exercise the power in s55(5) to require the respondent to conduct further searches when s24A does not apply.
76. The tribunal’s function in these proceedings is therefore to determine whether the respondent has made out the grounds of exemption in relation to the various documents in its amended schedule of exempt documents. The merits review procedure under s43 of the AAT Act initiated by the application for review in this case places the tribunal in the shoes of the decision-maker (Drake v Minister for Immigration (1979) 24 ALR 577 at 589). The Act requires it to make the correct or preferable decision in relation to those exemption claims. When s24A does not apply, it is hard to see how contentions that the respondent has not properly searched for, or disclosed, documents within its possession that fall within the scope of the request, are relevant to the merits review task that the tribunal has before it. It might be argued that a failure to conduct an adequate search, or disclosing documents bearing signs of “strangeness”, might constitute a purported, but not actual, grant of access within s55(1)(ab) of the FoI Act. In that event it might be said to constitute a reviewable decision. Neither party, however, presented any submissions relating to that paragraph. In my view Mr Riviere’s evidence suffices to prevent it from applying.
77. That being so, any remaining question of whether the respondent has carried out her duty under s18 of the FoI Act to give access to documents in accordance with the Act would appear to be a matter for judicial review, possibly by way of an application for an order in the nature of mandamus. Even assuming that the tribunal has jurisdiction in such matters, the applicant did not raise the question of compliance with s18 as an issue in his application for review or his statement of facts and contentions (Exhibit A5). I therefore do not think it is appropriate for the tribunal to undertake the kind of investigation contemplated in the applicant’s fourth line of argument, beyond drawing the inferences that flow from Mr Riviere’s evidence, as has been done above.
78. The most convenient course now is to consider the various applications for exemption, grouping the documents in the manner set out in the respondent’s amended schedule dated 29 November 2005. In many instances, the respondent has relied on several different provisions of the FoI Act as grounds of possible exemption, but it was common ground at the hearing that if a single ground for exemption is satisfied, the document is exempt from disclosure.
Group 1A Documents: Law enforcement
References under heading "exemption claimed" are references to sections in the Freedom of Information Act 1982 save that references to "s503A" are references to section 503A of the Migration Act 1958.
GROUP 1A – DOCUMENTS: LAW ENFORCEMENT Primary documents Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
15 IOF2000/464 – folios 44-45 12/02/0I Not apparent N/A MAL system record s33(1)(b);
s40(l)(d),
s45,
s37(2)(b),Whole 16 IOF2002/104 – folio 66 19/02/02 Not apparent N/A MAL system record s33(l)(b);
s37(2)(b),
s40(l)(d),
s45,Whole 66 10F2000/464 – folio 16 26/08/00 Exempt Exempt Facsimile s33(l)(b);
s40(1)(d),
s45,
s37(2)(b)Whole 67 IOF2000/464 – folio 49 26/08/00 Exempt Exempt Facsimile s33(l)(b),
s37(2)(b),
s40(1)(d),
s46Whole – largely copy of doc 66 68 IOF2002/104 – folios 60-63 18 and 21/01/02 and 21/02/02 Various Various Internal emails s37(2)(b);
s40(l)(d)Whole 69 I0F2002/104 – Folios 57-58 19 and 20/02/02 Various Various Internal emails s41(l),
s36,
s37(2)(b)Part 70 Beijing Papers – folio 49 13/07 and 14/07/00 Various Various Internal emails s37(2)(b);
s40(l)(d)Part 71 Beijing Papers – folio 63 N/A N/A N/A DIMIA case notes s37(2)(b);
s40(1)(d)Part Copies 72 CCF2002/352 – folio 85 26/08/00 Exempt Exempt Facsimile s33(1)(b),
s40(1)(d),
s45,
s37(2)(b)Whole – copy of doc 66 73 A97/175010 – folio 154 26/08/00 Exempt Exempt Facsimile s33(1)(b),
s37(2)(b),
s40(1)(d),
s45Whole – copy of doc 67 74 I0F2002/104 – folios 64-65 18/01/02 and 21/02/02 Various Various Internal emails s37(2)(b);
s40(1)(d)Whole – partial copy of doc 68 79. In relation to this category of documents, the respondent claims that individual documents are exempt through the operation of up to four different provisions of the FoI Act. As the main basis of the applicant’s case rests on contentions relating to the public interest, it is appropriate to consider the claimed ground of exemption that involves a public interest test, namely s40(1)(d), especially as the respondent claims that all group 1A documents are exempt under that section (the reference in relation to document 69 to s41(1) is an obvious typographical error and should read s40(1)(d)).
80. The first ingredient of this exemption is that disclosure would or could reasonably be expected to have a “substantial adverse effect”. In Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443, 452, Deputy President Forgie noted that concern may be generated by matters of many differing degrees of gravity. “What is required by the exemption in s41(d) is made out is an adverse effect that is real or of substance and not that which is insubstantial or nominal” (paragraph 47). In that case it was held that while disclosing a list of the names of people who had been suspected of importing unregistered medical equipment (and had either already been charged with an offence or would not be charged because their offences were statute barred) was not exempt, “Disclosure which leads to an elimination of a means of obtaining information could, in some circumstances, have an adverse effect on the operations of the department such that the effect was substantial” (paragraph 48).
81. In Re Wallace and Australian Federal Police [2004] AATA 845, Senior Member Dwyer upheld a claim for exemption under this provision in relation to information provided by the Thai police to the federal police on the understanding that the information would be kept confidential. Close co-operation between the Thai police and the AFP was necessary to maintain co-operation in relation to drug importation investigations between the AFP and the police in other countries. Disclosing the information in those circumstances would have a substantial adverse effect by interfering with the close links between the AFP and the Thai police.
82. The second ingredient in s40(1)(d) is that the effect must be on the “proper and efficient conduct of the operations of an agency”. That includes the way in which an agency discharges or performs any of its functions (Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111, 116). Re Meschino and Centrelink [2002] AATA 627 concerned the possible release of reports from a computer program used for monitoring the use made of social security information on Centrelink’s computers, to ensure that information was protected from misuse and that payments were not made a result of fraud. Deputy President Forgie held that disclosing the reports in relation to the applicant for access would have a substantial adverse effect on Centrelink’s proper and efficient monitoring of the manner in which its functions are carried out, and therefore on its “operations”. Starting from the proposition that FOI access is treated as access to the world at large, Forgie DP said “it was reasonable to expect that there would be those who would seek to subvert Centrelink’s proper functions by seeking to obtain a pension or other benefit to which they were not entitled or that they might wish to gain information held about a person on Centrelink’s files for reasons unconnected with any function they might have under social security law … [Access to the computer reports would enable such persons] to glean whether the file had been the subject of scrutiny by investigators within Centrelink … I am satisfied that this would enable them either to desist or to modify their behaviour either in relation to that file or generally … the value of the CRAM reports would be substantially compromised as a result of disclosure. That in turn would lead to a substantial adverse effect on Centrelink’s proper and efficient monitoring of the manner in which its functions are carried out and so on the proper and efficient conduct of its operations within the meaning of s40(1)(d) of the FoI Act” (paragraphs 23-24).
83. In group 1A, documents 15, 16 and (in part) 71 contain information about the operation of the MAL system. Documents 68 and 74 give an illustration of how that system operated in a particular case, one involving a “flight risk”. Documents 66, 67, 72 and 73 relate to relations with Interpol, while documents 69 and 70 in part contain information about co-operation with MPS and about other applicants. Mr Coyne’s statutory declaration states that a significant aspect of his role in the prevention of illegal entry into Australia and countering people smuggling is liaison and information exchange with PRC government authorities in Beijing and particularly MPS. Information exchange between DIMIA and MPS takes place on the basis that the information exchanged is held in confidence by the receiving party. His confidential statutory declaration gives addition reasons for the need to maintain confidentiality of material supplied by MPS.
84. Mr Riviere’s affidavit explains how security or criminal intelligence and related information provided by law enforcement agencies enables DIMIA to conduct character assessments, prevent and deter unauthorised entry and investigate and prosecute breaches of migration law, including the provision of false documents, the making of false statements, people smuggling, and contrived marriages. The information so provided is often of a sensitive nature and could reveal the existence and identity of informants or contain details of an ongoing criminal investigation. In the course of his duties Mr Riviere has become aware of the high degree of importance that law enforcement agencies place on the security of the information they provide to DIMIA and their reluctance to provide sensitive information and unless they are sure that both the information and its sources can be protected. If law enforcement agencies did not provide that information, the department’s ability to conduct thorough character assessments, or detect and prevent potential breaches would be reduced, with a resulting undermining of the integrity of the migration program and a decrease of the level of protection provided by the Commonwealth to the community. His confidential affidavit gives further reasons for the need to maintain confidentiality of information received from law enforcement agencies or concerning the operation of MAL. In particular, communications from MPS and Interpol Canberra are critical to the proper and efficient conduct of DIMIA’s operations. Ms Murphy’s two affidavits reinforce that position with further detail about the use made of Interpol “wanted” notices in the operation of the MAL system.
85. On the evidence I am satisfied that disclosure of the documents in group 1A would, or could reasonably be expected, to have a substantial adverse effect on the proper and efficient conduct of DIMIA’s operations.
86. The final ingredient in this exemption is the requirement in s40(2) that disclosure of the document would not, on balance, be in the public interest, on the assumption that access granted under the FoI Act is access to the world at large. This involves a balancing of competing public interests (Searle at p116), in which the applicant’s motives for requesting access are irrelevant (s11(2)(a)).
87. The risk of damage to the Minister’s relations with overseas law enforcement authorities, in that case the FBI, was held by Wilcox J to meet the requirements of s40(1) in Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445, 449. An AFP officer had given evidence to the effect that the AFP relied on good relations with those authorities and that those relations would be affected by disclosure of the documents under consideration. The effect would be both adverse and substantial. Deputy President McMahon had held that there was no public interest favouring disclosure of the material, and noted that the applicant had not attempted to identify any such public interest. Wilcox J on appeal agreed with that conclusion. The respondent’s position was that the tribunal should reach a conclusion similar to the one in Gersten.
88. The applicant Mr Wong claimed, however, that a public interest in the disclosure of an unlawful exercise of power, in this case the use of the Minister’s powers under s501(3) and s501C of the Migration Act for the improper purpose of returning persons to the PRC at the request of PRC officials to face interrogation and prosecution, for the purpose of complying with the PRC request, outweighed any public interest in non-disclosure. As the respondent pointed out, the applicant based virtually his whole case of that proposition. The respondent also submitted that there was no recognised category of public interest in exposing alleged wrongdoing.
89. As was said in Soblen (at pp307-308) and in other cases since, a party alleging an improper purpose bears a heavy onus of proof. But if there is evidence on which it could reasonably be supposed that the Minister was using the power for an ulterior purpose, the order could be upset unless some answer is forthcoming (Soblen pp302, 308). In the context of s40(2), I held in an interlocutory decision in this case that evidence (including cross-examination) is admissible for the purpose of providing such a prima facie evidentiary basis to be used in the public interest balancing process (at paragraph 23). I also found that the public interest test is not limited as to subject matter and that the matters alleged by the applicant could fall within it.
90. The applicant based his argument for the existence of an improper purpose wholly on Schlieske. In that case, the Minister signed a deportation order directed to the appellant, who was a West German citizen wanted in that country for a number of alleged crimes. Extradition proceedings had failed on two occasions. Officers of the department arranged for a West German temporary travel permit. They booked a seat on a Lufthansa flight and directed the airline to receive the appellant on board the flight. By majority the Full Court issued orders restraining the Minister from exercising the deportation power by delivering the appellant into the custody of any officer or agent of the German Federal Republic, or by taking any steps for any purpose other than the removal of the appellant from Australia. The court declined, however, to grant an injunction against deporting the appellant at all and rejected the argument that the Minister’s purpose was so tainted by an unlawful object of surrendering Schlieske to the German authorities that no lawful deportation to Germany could now be effected.
The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act and the proper implementation of the deportation order. But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition (at p 731).
91. The authorities could not, therefore, arrange with the German authorities for the appellant to be escorted on the flight by two German officers who had come to Australia for the purpose. They could not communicate flight arrival details to the foreign authorities, nor could they arrange for the Australian escort to surrender the person to the authorities in the foreign country, rather than the escort’s role ending when the deportee disembarks in the country of destination (pp730-731).
92. Schlieske shows that the circumstances in which a court will infer an improper purpose behind a deportation are quite limited.
93. Other cases in which a similar approach has been taken include Utter v Cameron [1974] 2 NSWLR 50, in which Lee J, following Soblen, held that a court would not interfere solely because extradition is in fact being achieved knowingly by the Commonwealth, although not purposely.
94. The next question to consider is whether the applicant has laid a prima facie evidentiary basis for the public interest balancing process. The applicant’s submissions on improper purpose were of a general nature and did not particularise the particular exhibits, affidavits or passages in the transcript on which he proposed to rely, apart from Exhibit A6 (formerly MFI 2) with its reference to “a very sensitive PRC caseload”.
95. The evidence that could be taken to support that proposition includes Exhibit A1, a fax cover sheet dated 14 July 2000 from Peter Coyne to Nelly Siegmund, who at the time was assistant secretary of the DIMIA border protection branch and in charge of ICPS. The document, which is the cover sheet of a six-page fax, bears the handwritten note “Another one for the list”. The other five pages are not in evidence. Exhibit A2 is a fax dated 29 August 2000 from Margaret Brown, of the International Branch of the Attorney-General’s Department, to Mr Len Mitchell at DIMIA attaching an Interpol fax and asking, among other things, if the department intends to deport Mr Wong. There is also a handwritten note addressed to “Natalie” that reads “Please check with Andrew Richards – is Mr Wong on his list of PRC crims?”. In different handwriting, the word “Yes” follows that question. A file note by Andrew Richards of ICPS dated 5 September 2000 (Exhibit A3) refers to the release of information to the Attorney-General’s Department, and through them to Interpol, on the PRC “Fugitives”. The information dealt specifically with the applicant.
96. Exhibit A4 includes an email from Peter Coyne to Nelly Siegmund dated 18 December 2000 on the subject of the applicant. The email reads “This is a case (on our list) on which we have received high level representations – on eof. [sic] … Most recently Dong asked re progress on this particular case. We are surprised that a fresh application is being lodged as we understood cancellation was proceeding on the existing student visa”. In his oral evidence Mr Coyne said that he had regular dealings in Beijing with a Mr Dong, who was an MPS official.
97. Exhibit A6 has already been mentioned. It is the email dated 18 January 2002 from Jennifer Grattidge (whose position is not given) to Richard Konarski and Craig Riviere at DIMIA. As has been mentioned, it states that “the Investigations section handles a very sensitive PRC caseload. It is a caseload monitored closely by our Minister”. It gives details of the applicant’s case and states that the minister would shortly be considering whether or not to refuse Mr Wong’s visa under s501(3). The email outlines the procedure followed in some cases and states that PRC nationals are seen to be “a flight risk” and should be taken into immigration detention as soon as the minister’s letter is delivered to them.
98. Exhibit A7 includes an email from Roger Neilson to John Sargent of DIMIA dated 7 February 2002 incorporating the statement that “We will meet with MPS on/about 20 Feb at their request to discuss fugitives”. In a further email the following day (Exhibit A8) Mr Neilson informs Mr Sargent that “In fact MPS are coming in an hour or so to see me with AFP rep. – a new and “urgent” case. I was speaking to them at a function last night and we had confirmed 19 Feb for our next meeting so it will be interesting to see what has prompted the ‘urgency’”.
99. Exhibit A9 consists of the material formerly known as C1-10 (except for document 7). This was the already mentioned annexure to the minute, or briefing papers, to the minister on the subject of the applicant’s visa application. It consists of materials received from the PRC authorities dealing with the investigation into alleged smuggling, bribery and tax evasion by the applicant and includes a request to Interpol for publication of an international “wanted” notice.
100. Exhibit A10 is a request dated 25 August 2000 from Interpol Beijing to Interpol Canberra summarising the allegations against the applicant and stating in the concluding paragraph “With a view to early arrest of Wong Tai Shing to face trial you are requested to check records of exit-entry of Wong since Aug 1999, his visa validity and present whereabouts. Please detain him and repatriate him to China thru channels you deem proper”. A letter from MPS to the Australian embassy in Beijing dated 14 July 2000 (Exhibit A12) reports that the applicant had absconded from Hong Kong to Australia with an illegally-obtained Hong Kong ID card. On 22 August 1999, AFP arrested him at Sydney airport for carrying a large volume of undeclared cash. The letter requests the embassy’s assistance in checking the applicant’s entry and exit records, ascertaining whether he is currently in Australia and his current ID status, and “repatriating him to China if he is currently in Australia”.
101. In an email to Miriam Moore and Dan Crennan of DIMIA dated 16 July 2001 (Exhibit A13), Craig Riviere discusses the procedure to be followed if the applicant’s visa were to be refused on character grounds. It contemplates providing the minister with the applicant’s response to the notice of intention to cancel while the applicant is being detained for the four hours permitted by s192. “It is our preference to take action this way so that we may afford the applicant natural justice BUT avoid the likelihood that he will go underground while the minister is reaching a decision. This applicant is a high flight risk who we expect to abscond if presented with a Notice of Intention to Cancel”.
102. That evidence can be taken as offering prima facie support for the following propositions:
· Pursuant to a memorandum of understanding and certain minutes of discussions between Australia and the PRC, there is a regime of co-operation between the two countries covering, among other matters, collaboration in law enforcement, entry and exit control, drug control, and the combating of illegal immigration.
· Pursuant to presumably more long-standing arrangements, Australia is a party to co-operative arrangements with Interpol. One aspect of those arrangements is that Interpol from time to time sends Australia “wanted” notices about fugitive offenders or suspected offenders. From time to time also the Interpol Beijing office may communicate directly with Interpol Canberra.
· In furtherance of the co-operation agreements, China’s MPS from time to time sends to DIMIA details of Chinese offenders or suspected offenders who are thought to be in Australia. Those communications may contain a request for information on the offender’s whereabouts and visa status and a request for his or her return.
· DIMIA keeps a list of such requests, which is monitored by the respondent.
· On or about 14 July 2000, the MPS sent a request to the Australian embassy in Beijing containing details about the applicant and requesting information about his whereabouts and movements and asking that he be repatriated to China if currently in Australia.
· On or about 25 August 2000, Interpol Beijing sent a similar communication to Interpol Canberra, detailing the offences alleged against the applicant, that concluded with the words, “Please detain him and repatriate him to China thru channels you deem proper”.
· When it was known that a decision by the minister on the applicant’s visa was forthcoming, departmental officials arranged in advance that if the decision was unfavourable to the applicant, he would be taken into immigration detention immediately and invited to make his submissions to the minister from there.
103. There is little evidence of what action, if any, DIMIA took in response to requests of the kind described above, beyond supplying information. Nor is there any evidence of an intention to act unlawfully or of any other improper purpose. Nor did the PRC requests imply that the PRC authorities expected the Commonwealth to act otherwise than in accordance with its own laws, as the reference to “channels you deem proper” indicates. That the evidence shows that the PRC wished that the applicant be returned is relevant but not decisive.
104. Nevertheless, I think the applicant is justified in submitting that the evidence calls for an explanation in the way contemplated in Soblen and later cases. In that sense he has laid a prima facie evidentiary foundation for the public interest balancing process.
105. Before undertaking that process, however, it is necessary to consider the respondent’s evidence in reply to the evidentiary foundation laid by the applicant.
106. The first point to notice in that connection is that the open and confidential evidence shows that a leading preoccupation of DIMIA staff in the management of character cases is the prevention and management of flight risks. Non-citizens who abscond and endeavour to hide in the wider community place major demands on public resources. Procedures have been established to prevent or minimise the possibilities of that kind of evasion. The evidence also shows that PRC citizens as a group are regarded as a flight risk. In relation to the applicant personally it was considered that he would become one if he were to receive notice of a ministerial refusal of his visa.
107. This is not a case involving exercise of the power of deportation or of removal of a resident whose visa has been cancelled because of criminal convictions in Australia. The applicant was in this country on a short-term visa. As the exercise of a power to refuse a student visa and a power to refuse to revoke that refusal, the decisions in this case are harder to characterise as being mixed with an improper purpose of effecting an extradition than they might be in the case of a longer-term resident. In deciding whether to grant a further student visa, the minister in applying the character test in s501(6), could also reasonably act on evidence that did not show any criminal convictions but only that the applicant was wanted for prosecution by the authorities in his country of origin. Refusing a student visa on that ground could not readily be interpreted as involving any taint of an improper purpose of effecting an extradition.
108. Those considerations go far towards explaining the actions of the respondent and his department. As Schlieske shows, the mere knowledge that the person being removed is likely to face criminal charges on return to his or her home country is not evidence of an improper purpose, even if the Australian authorities are content to acquiesce in that result or indeed welcome it.
109. In addition, in contrast with the Schlieske case, there is here no history of prior unsuccessful attempts to extradite. There is no evidence of any arrangements for a co-ordinated removal and repatriation of PRC nationals in Mr Wong’s position, such as having MPS officers come to Australia for the purpose of escorting the person on the flight, or arranging for him to be met at the airport in China by MPS officials. China is the applicant’s country of origin and citizenship and it is quite normal and proper to remove a person who is refused a visa on character grounds to his or her country of origin. To do otherwise would risk resentment by the governments of other countries at having foreign wrongdoers or suspected wrongdoers deposited on their territory.
110. Finally, there is no evidence of the minister’s purpose in personally exercising the power. It can only be presumed that he acted on the grounds set out in the departmental briefing papers, which themselves contained no evidence of improper purpose. Parliament has provided specific protections against abuse of the power in the requirement that notice of the making of a decision under s501C must be laid before each house of the parliament within 15 sitting days (s501C(8)); Minister for Immigration and Multicultural Affairsv Gunner (1998) 84 FCR 400, 407-408. Even if the evidence had shown an improper purpose on the part of subordinate officials, that purpose could not without more be imputed to a Minister personally taking the decision at issue: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 444-446.
111. Taking the evidence as a whole, therefore, the respondent has answered the prima facie evidence of extraneous or wrongful purpose. I therefore conclude that the public interest balancing process in this case is to be performed on the basis that the applicant is seeking access to documents in circumstances in which no prima facie case of improper purpose remains.
112. As Mr Wilson pointed out, in applying s40(2) the tribunal must balance competing public interests that must be identified. That requires an assessment of the importance of those interests in relation to each other. The evidence in relation to the operation of the list of PRC nationals raised, in his submission, the question of whether the Minister had acted from an improper motive in reaching his decisions on the applicant’s visa applications. That represented a gross departure from an acceptable or proper standard of public administration and the public interest required the disclosure of any documents that might help to bring such misconduct to light. To that was linked a broader public interest in the candid revelation of activities affecting the liberty of an individual.
113. As has been indicated, I have reached the conclusion that the evidence does support a prima facie case of improper conduct and accordingly I cannot give any significant weight to that part of the applicant’s submissions.
114. That still leaves, however, the broader public interest in the possibility of public access to information in the hands of government with a view to creating a more informed and focussed quality of debate concerning public affairs (see Re Kamminga and Australian National University (1992 26 ALD 585, 588). That, after all, is the underlying purpose of the FoI Act. It is for that reason that the objects of the legislation, as set out in s3, include a requirement that “the provisions of this Act shall be interpreted so as to further the object [of extending as far as possible the right of the Australian community to access to information in the possession of the Commonwealth] and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information”. It is also no doubt for that reason that s61(1) places on the respondent “the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant”. Those directions apply to the process of giving effect to the public interest test in s40(2).
115. The public interests considerations that weigh against disclosure in this case are similar to those advanced in connection with the question of the adverse effect on the proper and efficient operations of an agency. Mr Coyne’s evidence was that a significant aspect of the department’s work in preventing illegal entry into Australia and countering people smuggling is liaison and information exchange with MPS and other PRC government authorities. Such exchanges take place on the basis that the information exchanged is held in confidence by the receiving party. His confidential statutory declaration added weight to those considerations.
116. In his evidence, Mr Riviere explained how security or criminal intelligence and related information provided by law enforcement agencies enables DIMIA to conduct character assessments, prevent and deter unauthorised entry and investigate and prosecute migration law breaches. That information is often of a sensitive nature and could reveal the identity of informants or details of current criminal investigations. Mr Riviere stressed the importance that law enforcement agencies everywhere place on the security of the information they provide to DIMIA. They would be unwilling to provide sensitive information if they could not be sure that it would be kept confidential. If that information were not provided, the department’s ability to protect the community would be compromised.
117. In Gersten (at p449) Wilcox J, in dismissing an appeal against a tribunal decision, noted that the public interest evidence given on behalf of the department was not challenged at the hearing. The same is true in this case. Messrs Coyne and Riviere were cross-examined, but the parts of their evidence dealing with the adverse consequences of disclosure were not challenged.
118. I therefore conclude that disclosure of the documents in group 1A under the FoI Act would not be in the public interest. As the documents are exempt, in whole or in part, under s40(1)(d), it is not necessary to determine whether they would also be exempt under other provisions of the FoI Act.
Group 1B Documents: Department’s operations
GROUP 1B – DOCUMENTS: DEPARTMENT’S OPERATIONS
Primary documents Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
4 IOF2002/104 – folios 190-196 27/12/00 and 02/04/02 Various/exempt Various/exempt Facsimile and documents s33(1)(b);
s40(1)(d),
s45,
s41(1),Whole 14 ICF2002/306 – folio 127 N/A N/A N/A Report on Mr Wong s37(2)(b),
s33(1)(b),
s40(1)(d),
s45,Part 20 IOF2002/104 – folio 92- 21/03/02 Various Various Internal emails s33(1)(b);
s40(1)(d),
s45, s41(1),Whole 21 IOF2000/464 – folio 7 01 and 02/08/00 DIMIA officers DIMIA officers Internal emails s33(1)(b);
s36,
s40(1)(d),
s41,
s45,Whole Copies 30 IOF2002/104 – folio 189 21/03/02 Various Various Internal email s33(1)(b);
s40(1)(d),
s45, s41(1),Whole – copy of part of doc 20 31 IOF2002/104 – folio 183 21/03/02 Various Various Internal email s33(1)(b);
s40(1)(d),
s45,
s41(1),Whole – copy part of doc 20 119. The respondent invokes s40(1)(d) in relation to group 1B also, besides also relying on other provisions. The 1B documents have many features in common with group 1A and their content is not of a purely administrative or procedural nature. They deal with the operation of the MAL system and with instances of the general pattern of co-operation with the PRC on criminal investigation and enforcement. Document 31 illustrates procedures within DIMIA and its collaboration with the Department of Foreign Affairs and Trade in giving effect to those arrangements. They are generally of a more intra-governmental nature than the documents in group 1A, although document 4 consists mainly of copies of notices received from MPS in their original form. The part of document 14 for which exemption is claimed shares that character.
120. The differences between group 1B and group 1A are not, in my view, significant and the documents meet the requirements of s40(1)(d) for the same reasons as those in group 1A. Applying the public interest test in s40(2) leads to a similar result for the same reasons.
121. As the group 1B documents are exempt under s40(1)(d), it is not necessary to determine whether they are exempt under other provisions of the FoI Act also.
Group 2 Documents: Section 503A of the Migration Act
References under heading "exemption claimed" are references to sections in the Freedom of Information Act 1982 save that references to "s503A" are references to section 503A of the Migration Act 1958.
GROUP 2 – “SECTION 503A” DOCUMENTS Primary documents Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
7 I0F2000/464 – folios 177-178 19/10/00 Interpol N/A Document s33(1)(b);
s40(1)(d),
s45, s503AWhole 82 Exhibit A28 08/02/0I N/A N/A Document s33
s36.
s37(2)(1)
s40(1)(d)
s41
s45
s503A,
s38Whole 122. In relation to this group of documents the respondent does not primarily rely on exemptions under the FoI Act but on s503A of the Migration Act, the terms of which are set out above. In a secondary sense, a claim under s503A is also a claim under the FoI Act, because s38 of the FoI Act declares a document to be exempt if its disclosure is prohibited under a provision of an enactment that is specified in Schedule 3. As s503A is specified in Schedule 3 of the FoI Act, a document covered by s503A is exempt under the FoI Act.
123. Under the latest amended schedule submitted by the respondent, the only two documents for which s503A protection is claimed are documents 7 and 82. Document 82 is no longer in issue here because of the effect of the Minister’s certificates of 14 December 2005 mentioned earlier.
124. A document to which 503A applies need not be disclosed to a court, tribunal or certain other bodies, and document 7 for that reason is not before the tribunal. The tribunal is thus called upon to determine whether document 7 is exempt without actually having the opportunity of seeing it. It is described, however, as a communication from Interpol Canberra to a departmental officer in Canberra and is said to meet the four elements of the test for the application of s503A. The respondent states that the information in document 7 was relevant to the exercise of power under s501, s501A, s501B or s501C of the Migration Act. In paragraph 9 of her affidavit, Ms Murphy says that document 7 is stamped “CONFIDENTIAL INTENDED ONLY FOR POLICE AND JUDICIAL AUTHORITIES”. That stamp was on the notice when it was received by the Entry Operations Centre and to the best of her knowledge and belief was applied by or on behalf of Interpol Canberra.
125. The applicant queried whether document 7 meets the requirements of s503A as regards source and other matters but, not having access to the document, was not in a position to construct detailed arguments in that regard. He did point out, however, that while Interpol Canberra is now a specified agency, MPS still is not.
126. The applicant also contends that the section should be applied as it stood before the amendments, because the documents were presumably communicated under the old law and there is a presumption against retrospectivity.
127. The respondent argued, however, that the tribunal should apply s503A in its current form and on the basis of the gazette notices of 13 August 2003 and 3 September 2003, which include Interpol Canberra as a gazetted agency for the purposes of s503A.
128. The applicant submitted that s503A should be applied as it stood before the 2003 amendments because the amendments were not intended to be retrospective and the documents had been communicated under the pre-existing law. The presumption against retrospectivity should be applied. The applicant did not further develop those arguments, but it does seem to me that the amendments extending the immunity to the Minister and altering the manner of specifying a gazetted agency are procedural in nature and therefore not subject to the general rule that statutes are not to be given retroactive operation: Maxwell v Murphy (1957) 96 CLR 261.
129. It is not disputed that Interpol Canberra is specified as a gazetted agency. Ms Murphy’s affidavit shows that document 7 also satisfies the other ingredients of s503A. It was communicated by the gazetted agency to an authorised migration officer on the condition that it be kept confidential. It is relevant to the exercise of the power under s501(6) of the Act. Document 7 is thus exempt from disclosure under s503A of the Migration Act.
Group 3A Documents: Communications and notes of communications between DIMIA and its legal representatives
GROUP 3A – COMMUNICATIONS AND NOTES OF COMMUNICATIONS BETWEEN DIMIA AND ITS LEGAL REPS Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
32 CCF2002/352 – folios 65-67 01/03/02 DIMIA's legal rep DIMIA s42 Whole 33 CLF2002/616 – folio 22 13/03/02 DIMIA's legal reps DIMIA Facsimile s42 Whole 34 CLF2002/616 – folios 24-29 04/04/02 DIMIA's legal rep DIMIA Email (additional- and attachment) s42 Whole 35 CCF2002/352 – folios 90-95 04/04/02 DIMIA's legal rep and DIMIA officer DIMIA Email with annotations s42 Whole 36 ICF2002/306 – folios 39-44 04/04/02 and 03/05/02 DIMIA’s legal rep and DIMIA officer DIMIA officers Emails s42 Whole – part is copy of doc 34 37 CCF2002/352 – folio 73 08/04/02 DIMIA DIMIA's legal rep s42 Whole 38 CLF2002/616 – folios 30-31 14/05/02 DIMIA’s legal rep DIMIA s42 Whole 39 Additional 15/05/02 DIMIA's legal reps DIMIA s42 Whole 40 CLF2002/616 – folios 32-33 14 and 16/05/02 DIMIA's legal rep and DIMIA DIMIA and DIMIA's legal reps Emails s42 Whole – part is copy of doc 38 41 Additional 30/05/02 DIMIA officer DIMIA s42 Whole 42 Additional 30/05/02 DIMIA officer N/A File note s42 Whole 43 CLF2002/616 – folios 37-40 30/05/02 DIMIA's legal reps N/A Draft submissions and chronology for legal proceedings s42 Whole 44 CLF2002/616 – folio 42 31/05/02 DIMIA officer N/A File note recording conversation between DIMIA and legal rep s42 Whole 45 CLF2002/616 – folio 43 31/05/02 DIMIA DIMIA's legal rep Email (additional- and attachment) s42 Whole 46 CLF2002/616 – folio 44 05/06/02 DIMIA DIMIA's legal rep s42 Whole 47 CLF2002/616 – folio 45 05/06/02 DIMIA officer N/A File note recording conversations between DIMIA officers and between DIMIA and legal rep s42,
s36Whole 48 CCF2002/352 – folios 105-122 06/06/02 DIMIA's legal reps DIMIA Email attaching draft written submissions for court proceeding s42 Whole 49 CCF2002/352 – folios 123-127 06/06/02 DIMIA's legal reps DIMIA Email attaching amended draft written submissions for court proceeding s42 Whole 50 CLF2002/616 – folio 46 06/06/02 DIMIA officer N/A File note recording conversations between DIMIA officers and between DIMIA and legal rep s42,
s36Whole 51 CLF2002/616 – folio 47-48 06/06/02 DIMIA's legal rep DIMIA s42 Whole 52 CCF2002/352 – folios 128- 131 11/06/02 DIMIA's legal reps DIMIA Email attaching memorandum s42 Whole 53 Additional 13/06/02 DIMIA's legal reps DIMIA s42 Whole 130. By s42(1) of the FoI Act a document is exempt if it would be privileged from production in legal proceedings on the ground of legal professional privilege (or, more accurately, client legal privilege).
131. The law recognises that the privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the dominant purpose of seeking or giving legal advice or in connection with anticipated or pending litigation: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Waterford v Commonwealth (1987) 163 CLR 54.
132. The applicant presented no arguments in relation to the group 3A or 3B documents and adduced no evidence on that issue. He did not cross-examine Mr John Eyers, whose affidavit outlining the arrangements for the provision of legal services by DIMIA’s legal branch and its outside lawyers and counsel has been outlined above. The respondent’s claims for privilege in relation to groups 3A and 3B could therefore be taken as not being in dispute. Nevertheless, as s61 of the FoI Act places an express burden of proof on the respondent in this case, it is necessary for the tribunal to consider whether the evidence supports the respondent’s claim for exemption on the ground of client privilege.
133. The respondent’s argument proceeded on the assumption that the common law, rather than ss118 and 119 of the Evidence Act1995 (Cth) provides the principles to be applied in this case. That seems an appropriate assumption. Even if ss118 and 119 applied to the tribunal (see s33(1)(c)), they extend in terms only to the adducing of evidence, not to the granting of access to documents.
134. It will be recalled that Mr Eyers deposed that Euphrasia Chen was at the relevant time a legal officer in the Enforcement and Citizenship Litigation Section of DIMIA’s legal services and litigation branch and that she was responsible for managing the various litigation proceedings involving the Minister instituted by the applicant. DIMIA also instructed Blake Dawson Waldron Lawyers and briefed John Basten QC, Dr Margaret Allars and Timothy Reilly of counsel. Samantha Boyle was a senior legal officer in the Enforcement and Citizenship Litigation Section and Justin Gibbs was a legal officer, and then a senior legal officer, in the Legal Opinions Section.
135. Of the documents in group 3A, documents numbered 32, 33, 34, 35, 38, 39 and part of document 40 are communications from Sharon Hanstein, Andrew Carter or other lawyers at Blake Dawson Waldron to Euphrasia Chen in relation to litigation involving the present applicant. Document 36 is a memorandum of advice from Sharon Hanstein to Craig Riviere in relation to the Federal Court and High Court proceedings involving Mr Wong. Document 37 and part of document 40 are communications from Euphrasia Chen addressed to Sharon Hanstein relating to the Wong litigation.
136. Documents 42 and 44 are file notes by Ms Chen summarising relevant conversations with Catherine Bateup, a lawyer with Blake Dawson Waldron. Document 47 is a file note by Ms Chen of a conversation with Justin Gibbs concerning the Minister’s s501C decision. Document 50 is a file note by Ms Chen concerning telephone conversations with Ms Bateup and Mr Gibbs about a hearing in the Wong litigation.
137. Documents 48, 49, 51, 52 and 53 are communications from Ms Bateup to Ms Chen concerning the Wong litigation. Documents 45 and 46 are responses from Ms Chen to Ms Bateup.
138. All of those documents meet the common law test of having been prepared for the dominant purpose of a lawyer providing legal advice or assistance or for use in legal proceedings. They thus satisfy the requirements of the s 42 exemption. No other ground of exemption is claimed for the group 3A documents, apart from documents 47 and 50, in respect of which there is a claim under s36. In view of my finding under s 42, it is not necessary to determine whether s36 also applies.
139. That leaves document 41, an email from Livio Chicco to Peter Coyne dealing with the Minister’s s501(3) decision, the requirements for tabling in parliament under s501C(8) and the fact that Mr Wong had sought judicial review. Although that communication makes some reference to litigation, neither of the parties to it was a lawyer engaged in the provision of professional legal services and it could not be regarded as incidental to such provision except in the most tenuous way. I am satisfied that it is not exempt under s42. No other ground of exemption is claimed for that document.
Group 3B Documents: Communications between DIMIA officers
GROUP 3B – COMMUNICATIONS BETWEEN DIMIA OFFICERS Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
54 CCF2002/352 – folio 72 04/04/02 DIMIA officer DIMIA officer Internal email s42,
s36Whole 55 CCF2002/352 – folios 77-80 10 and 12/04/02 Various DIMIA officers Various DIMIA officers Internal mail s42,
s36,Whole 56 Beijing Papers – folio 84 – 87 10/04/02 Various DIMIA officers Various DIMIA officers Internal mail s42,
s36,Whole – copy part of doc 55 with annotations 57 ICF2002/306 – folios 17-19 10/04/02 Various DIMIA officers Various DIMIA officers Internal emails s42,
s36,
s33(1)(b);
s40(1)(d),
s45Whole – part is copy of doc 55 58 ICF2002/306 – folios 125-126 04/06/02 DIMIA officer Various DIMIA officers Internal email s42,
s36Whole 59 ICF2002/306 – folios 123-124 05/06/02 Various DIMIA officers Various DIMIA officers Internal emails s42,
s36Whole 60 ICF2002/306 – folios 131-132 06/06/02 Various DIMIA officers Various DIMIA officers Internal emails s42,
s36Whole 61 Additional 04/06/02 and 06/06/02 DIMIA officers DIMIA officers Emails and attachments s42,
s36Whole Copies 62 ICF2002/306 – folios 133-135 06/06/02 Various DIMIA officers Various DIMIA officers Internal emails s42,
s36Whole 63 CCF2002/352 – folio 75 04/04/02 DIMIA officer DIMIA officer Internal email s42,
s36Whole – copy of doc 54 64 ICF2002/306 – folio 8 04/04/02 DIMIA officer DIMIA officer Internal email s42,
s36Whole – copy of doc 54 65 CCF2002/352 – folio 76 10/04/02 DIMIA officer DIMIA officer s42
s36Whole – copy of doc 55 140. The respondent submitted that s42 exempts all the documents in group 3B from disclosure. He also submitted that they are all exempt under s36 as well, and that document 57 is further exempt pursuant to s33(1)(b), s40(1)(d) and s 45. Documents 63 and 64 are copies of document 54 and document 65 is a copy of document 55. All the documents are emails.
141. As in the case of group 3A, the applicant presented no submissions in relation to this group, nor did he adduce any evidence, including by way of cross-examination, in relation to it.
142. In order to explain the operation of s42 in relation to the group 3B documents, it is necessary to say a little more about the nature of each document than is given in the respondent’s amended schedule, without disclosing the document’s actual contents.
143. Document 54 is from Euphrasia Chen to DIMIA Law Enforcement Liaison seeking a 503A(3) exemption for the purposes of litigation.
144. Document 55 is from Tom Irvine to Craig Riviere and relates to the judicial review proceedings, the attitude of MPS to disclosure of documents and legal advice from Blake Dawson Waldron and Euphrasia Chen. Document 56 is a copy of document 55.
145. Document 57, from Euphrasia Chen to Peter Coyne, deals with litigation and advice from Blake Dawson Waldron. It also includes Mr Coyne’s response and a consequential communication from Mr Riviere to Mr Chicco.
146. Document 58 is from Tom Irvine to Craig Riviere about some legal advice from Justin Gibbs, and includes Mr Riviere’s response. There is also an email from Mr Irvine to Mr Gibbs concerning legal advice.
147. Document 59 is from Mr Irvine to Mr Gibbs, and Mr Irvine to Mr Riviere about Mr Gibbs’ advice, and includes Mr Riviere’s response.
148. Document 60, from Mr Riviere to Mr Sargent, deals with legal advice from Mr Gibbs, Ms Chen and Blake Dawson Waldron concerning the Wong litigation.
149. Document 61 is an exchange of emails between Mr Riviere and Mr Irvine about a draft letter to Mr Wong and the need for legal advice.
150. Document 62 consists of emails between Mr Irvine, Mr Gibbs and Mr Riviere concerning legal advice from Blake Dawson Waldron in relation to the tabling notice required by s501C(8) in the Wong case.
151. From the above it can be seen that the group 3B documents comprise communications between legal officers in the DIMIA legal branch and other officers of the department for the purposes of the conduct of legal proceedings, or the legal aspects of DIMIA operations, and communications among other DIMIA officers in confidence relating to legal advice received, or to be sought, from Legal Branch lawyers or from DIMIA’s external legal representatives. Those other officers themselves were not lawyers but required legal advice in order to carry out their duties, as Mr Eyers explained in his affidavit.
152. I am satisfied that all the group 3B documents are exempt under s42 and there is accordingly no need to consider the application of other exempting provisions.
Group 4: Documents containing personal information about third parties
GROUP 4 – DOCUMENTS CONTAINING PERSONAL INFORMATION Doc
Document
Date
Author
Recipient
Description
Exemption Claimed
Part Only
ASB2000/2133 – all folios except those already released Various Various DIMIA Student visa applications Not relevant to request; s41(1) Whole 75 I0F2000/464 – folios 36-37 18/12/00 Various Various Internal emails s41(1) Part 76 IOF2002/104 – folio 11 3110 1I02 DIMIA officer Various Internal email s41(1) Part 77 CCF2002/352 – folios 63-64 19 and 25/02102 Various Various Emails s41(1) Part 78 CLF2002/6l6 – folio 23 19/03/02 DIMIA's legal reps DIMIA s41(1) Part 79 Additional – Beijing papers – folio 48 14/07/00 DIMIA officer DIMIA officer Facsimile s41(1),
s37(2)(b)Part 80 Additional – Beijing papers – folio 68 12/04/02 DIMIA officer Exempt Facsimile s41(1),
s37(2)(b)Whole 81 Additional – Beijing papers – folio 89 27/02102 DIMIA officer Exempt Facsimile s41(1),
s37(2)(b)Whole 153. The respondent claims that all the documents in group 4 are exempt under s41(1), which exempts documents the disclosure of which would involve the unreasonable disclosure of personal information about any person. The section is headed “Documents affecting personal privacy” and is plainly designed primarily to protect confidential information relating to persons other than the applicant. Documents 79, 80 and 81 are said also to be exempt under s37(2)(b).
154. The first exemption claim under group 4 relates to file number ASB2000/2133 (it has not been given a separate document number in the schedule). This file consists of three large lever arch folders of student visa applications by persons other than the applicant. They contain a great deal of private information, including addresses, passport details, medical reports, certain medical particulars about family members, academic records, financial details and course enrolment confirmations.
155. Besides claiming exemption for the file under s41(1), the respondent also submitted that it falls outside the applicant’s FOI request. Given the very general nature of the applicant’s submissions in this case, it could be thought that the applicant claims that the documents are relevant to the request on grounds similar to those relating to his claim in relation to file A97/175010, which has been discussed above. That file also related to persons other than the applicant, but the applicant argued that the file would demonstrate, if only in part, how the applicant’s relevant affairs were dealt with or processed. The file therefore contained information connected with the visa application and might have been relied upon for the purposes of making the decision to refuse the visa application.
156. Nothing in the evidence, however, supports the proposition that the Minister’s decisions on Mr Wong’s student visa application turned on anything other than the circumstances of his own case. I am unable to see how the applications and personal details of persons with no connection to the applicant could in any acceptable sense be regarded as included within the scope of his FOI request. Nor am I able to see how disclosure of a great deal of personal information about other applicants could represent anything other than an unreasonable disclosure, especially when there is no suggestion of any impropriety in those applications or in the manner in which the department dealt with them.
157. The other documents in group 4 may now be considered.
158. Document 75 is identical to Exhibit A4, the exemption claim relating only to the name of a third party that appears in it.
159. Document 76 is an email from Ms Jennifer Grattidge to Mr Riviere dealing with the transfer of some files or parts of files and the exemption claim relates only to the names of three other persons unrelated to the present application.
160. Documents 77 and 78 are some emails passing between Euphrasia Chen and Sharon Hanstein and the exemption claim relates only to the mobile number of a partner in Blake Dawson Waldron.
161. Document 79 is a fax from Flora Yan of the Migration office at the Australian consulate-general in Hong Kong, to Mr Coyne. It contains information about Mr Wong’s visa applications, and exemption is sought in respect of some information received from the Australian Federal Police.
162. Document 80 is a fax from Mr Coyne to MPS about aspects of the DIMIA co-operation with MPS. It does not mention anyone other than Mr Wong.
163. Document 81 is an email from Mr Coyne to MPS and follows on from document 80. Again, it mentions no-one other than Mr Wong.
164. There seems to be no public interest argument for rejecting the exemption claim for the deletion of the names of unconnected third parties from documents 75 and 76. Again, there would not seem to be any public interest ground that would make it anything other than unreasonable to disclose the mobile telephone number of a Blake Dawson Waldron partner. A mobile number has much in common with a home number and making it widely available would create an unnecessary risk of intrusion into the subscriber’s privacy. Anyone wishing to contact a Blake Dawson Waldron partner can readily do so through the firm’s switchboard in the ordinary way,
165. Documents 80 and 81 contain no information about anyone other than the applicant and disclosing them to him would not appear to be unreasonable. Consequently, I do not think they are exempt under s41(1). They do, however, contain information relevant to law enforcement co-operation with MPS and exemption is also claimed for them under s37(2)(b).
166. The first element of that exemption is that disclosure would, or could reasonably be expected to, disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law [of the Commonwealth]. The information in documents 80 and 81 relates to lawful methods of co-operation with MPS in preventing, detecting, investigating or dealing with matters arising out of putative evasion of a visa applicant’s obligation to satisfy the Minister that he or she passes the character test in s501(6).
167. Applying the character test in s501(6) requires consideration of whether the applicant has a substantial criminal record, has been involved in criminal conduct or associations, or is not of good character in view of the person’s past and present criminal or general conduct or both. The character test does not differentiate between a record of offences in Australia or elsewhere or whether the conduct or associations occurred within Australia or elsewhere. The test thus directs attention to fact situations that may occur inside or outside Australia. As the respondent pointed out, a person who needs a visa to remain in Australia is likely to have been born outside Australia and if there is a criminal record or past conduct of relevance to the character test, much of it may have occurred outside Australia.
168. The proper application of the character test requires the department to detect, investigate and deal with matters relevant to the character test. A breach of the law in a foreign country is in that sense a matter that may relate to the evasion of Australian law relating to the lawful issue, and continued holding, of a visa. Such evasions must be detected, investigated and dealt with in order to ensure fulfilment of the statutory requirement that a visa holder at all times satisfy the Minister that he or she passes the character test. That requirement would be evaded if persons subject to the character test were able to obtain access to lawful methods of detecting, investigating or dealing with the matters comprising the character test.
169. The second element of the exemption is that disclosure would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. Disclosing the procedures established between DIMIA and MPS for detecting, investigating or dealing with information relevant to the character test would be reasonably likely to prejudice the effectiveness of those methods or procedures. As was said in Re Murphy and Australian Electoral Commission (1994) 33 ALD 718, 723, a procedure’s effectiveness is prejudiced when disclosure gives the requester “authoritative knowledge” of investigative techniques. The evidence of Mr Riviere, Mr Coyne and Ms Murphy outlined above in connection with s40(1) and the group 1A documents shows how disclosing information about lawful co-operation with MPS would enable prospective immigrants to evade the measures established for detecting false or misleading information or illegal entry.
170. I therefore conclude that all the group 4 documents referred to above are exempt by reason of s41(1) or s37(2)(b) respectively.
171. Document 79 is a different matter, however. As it contains no information about anyone other than the applicant, there is no apparent reason why its disclosure to him could be regarded as unreasonable within the meaning of s41(1). As regards s37(2)(b), it discloses nothing about lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of evasions of the law. It relates to nothing more than a routine communication between two AFP offices of a kind that most lay persons would assume occur all the time. The document itself is a purely internal fax between two officers, one in Hong Kong and the other in Beijing. It has nothing to do with co-operation with MPS or any other body. In my view document 79 is not exempt from disclosure.
Conclusions
172. I therefore conclude that the documents listed in the respondent’s amended schedule dated 29 November 2005 are exempt from disclosure, except for documents 41 and 79 in the schedule.
173. Documents 41 and 79 are not covered by the Attorney-General’s certificate under s36 (Exhibit R6) or by the Minister’s certificates dated 14 December 2005.
174. The applicant made no submissions on the question of partial disclosure pursuant to s22 and I am satisfied that the documents for which exemption is claimed for the whole document are wholly exempt.
I certify that the 174 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDates of Hearing 6, 8 and 9 December 2004, 19, 20, 21 and 22 April 2005, 28 and 29 November 2005
Date of Decision 24 January 2006
Counsel for the Applicant Mr R Wilson
Solicitor for the Applicant Mr P Leung
Counsel for the Respondent Ms M Allars
Solicitor for the Respondent Ms S Hanstein, Blake Dawson Waldron, Solicitors
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