Wun, C.S. v The Minister for Immigration Local Government and Ethnic Affairs

[1993] FCA 407

CHU SING WUN v. THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WAG195 of 1992
FED No. 407
Number of pages - 9
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1)

CATCHWORDS

Practice and Procedure - public interest immunity - refusal of permanent visa - refusal based on confidential information - alleged denial of natural justice - application for judicial review - whether documents relied upon to be produced - immunity question related to substantive ground - balancing process - motion for production dismissed.

Migration Regulations

HEARING

PERTH, 24 May 1993

#DATE 2:6:1993

Counsel for the Applicant: Mr W. Martin QC with Mr A.J. Goldfinch

Solicitors for the Applicant: Finlay Phillips

Counsel for the Respondent: Mr S. Owen-Conway QC with Mr S. Bhojani

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The Court orders that:

On the applicant's motion filed 19 May 1993:

1. The motion is dismissed.

2. The applicant to pay the respondent's costs of the motion.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

REASONS FOR JUDGMENT ON MOTION FOR PRODUCTION OF DOCUMENTS

FRENCH J On 31 October 1991, Chu Sing Wun, a resident of Hong Kong, lodged an application for a permanent entry visa under the provisions of the Business Migration Program. He was interviewed by an officer of the Department of Immigration Local Government and Ethnic Affairs (DILGEA) on 20 December 1991. On 19 February 1992, the Regional Migration Director with the Migration Office of the Australian Consulate General in Hong Kong wrote to Mr Chu's migration advisor informing him that the application had been refused. The stated basis of the refusal was that Mr Chu did not satisfy public interest criteria specified under the Migration Regulations. The Regional Director said in his letter that he had noted, inter alia:

" ... confidential material that strongly implicates Mr Chu as being directly involved in criminal activity and identifies him as a known associate of Triad and criminal elements."

While also noting Mr Chu's denial of any such association, the decision-maker said he gave "great weight to the material linking Mr Chu with organised crime". An application for review of that decision was filed in this Court in March 1992, but was resolved by consent on the basis that the application would be dismissed and the question of the permanent entry visa reconsidered.

1. On 30 October 1993 the First Assistant Secretary, Entry Compliance and Systems Division of DILGEA wrote to Mr Chu's migration advisor informing him that he had received a submission on the visa application from Mr Callanan of the Hong Kong office of DILGEA. He had carefully considered the submission and decided to refuse the grant of a visa. Mr Callanan's submission to the delegate referred, among other things, to:
   

"6. Confidential information has been received from confidential sources on a number of occasions since 1985 which, on the basis of intelligence, indicates that: . Mr Chu is well recorded by relevant authorities as an associate of known criminals, known Triads and convicted drug traffickers; . Mr Chu is strongly implicated as being directly involved in criminal activity; . in the view of the confidential and expert source it is likely that on the "balance of probabilities" Mr Chu is involved in organised criminal activity; . unconfirmed intelligence indicates that the Silver Spring sauna has Triad involvement; . the Chequers Health Centre in Sydney, of which Mr Chu is part owner, is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross section of the organised crime community in Sydney."

In a later part of the submission it was argued that:

"34. More weight could be attached to the information provided by confidential and reliable sources which strongly indicates that Mr Chu is a known associate of criminals, Triads and drug traffickers and is himself strongly implicated as being directly involved in criminal activity. The information held on him is based on consistent intelligence collected over the last seven years. It is not, like some intelligence, based on one or two isolated events or anonymous allegations. You may therefore choose to give considerable weight to this information."

And at para.38:

"38. Balanced against Mr Chu's interests is the need to protect confidential sources of information on which Australian officers overseas rely in order to safeguard national law enforcement interests. To disclose to Mr Chu the detail of the adverse material could reveal the sources of that material and cause serious harm to those sources and to Australia's ability to rely on those sources in future. I suggest that, in the circumstances, a reasonable and sufficient degree of natural justice has been afforded to Mr Chu by putting to him and allowing him to address, on a number of occasions: . his convictions from the 1960's and 1970's; . the nature and operation of his sauna businesses and our concerns that these may be involved in prostitution and other illicit activities;

. the inferences that could be drawn from his approaches to this office to offer information on Triad and criminal activities of which he led us to believe he had knowledge;

. our belief that he is a Triad member or associated with Triad members."

Mr Chu complains that apart from questions put to him in the course of an interview by an officer of DILGEA about his knowledge of Triad activities, the matters referred to in the submission to the delegate were not put to him. He was given no detail of the allegations.

1. The present application for review of the decision of 30 October 1992 was filed in this Court on 26 November 1992. At the first directions hearing on 16 December, leave was given to file an amended application by 23 December and directions made for the filing of affidavits. The respondent was required to include with his affidavits "exhibits of all documents relevant to the decision". On 5 February, the time for filing affidavits was extended and a direction given that the applicant apply to the Registrar for an appointment to fix a hearing date. On 5 March 1993 at a further directions hearing, there was filed in Court an affidavit sworn that day by Deborah Joy Bates, an Acting Assistant Secretary in the Entry Compliance and Systems Division of DILGEA. Exhibited to her affidavit were 332 pages from the relevant departmental file, including Mr Callanan's submissions to the delegate. At para. 6 of the affidavit Ms. Bates said:
   

"Exhibited to me and marked "DJB-2" is an affidavit sworn on 3 March 1993 ("the closed affidavit") which relates to material taken into account in making the decision. I claim public interest privilege in respect of the contents of the closed affidavit, annexures to it, and the identity of the deponent for the reasons set forth in the closed affidavit. On the basis of the claim of public interest privilege made by me I object to the disclosure of Exhibit "DJB-2" to any person except by leave of this Honourable Court."

1. The question of the public interest immunity claim came on for hearing before Sweeney J on 22 April 1993. In the course of argument, senior counsel for the Minister said that the claim related to "law enforcement, national security, international relations and proper working of Government". Sweeney J then made an order in the following terms:
   

"1. Within 21 days an affidavit or affidavits be filed and served by or on behalf of the Respondent containing the facts and grounds upon which the claim for public interest immunity is made so far as is possible without revealing the material for which immunity is claimed.

2. The claim to immunity be otherwise adjourned to a date to be fixed by the listing officer.

3. The costs of today be reserved."

1. On 13 May 1993, an affidavit was filed sworn by the Secretary of DILGEA, Mr Christopher Conybeare. Mr Conybeare referred to the confidential affidavit exhibited to Ms Bates affidavit. It was sought to kept the identity of the deponent secret. There are also, he said, some sixteen confidential annexures to Ms Bates' affidavit. He referred to a further confidential affidavit sworn on 5 May 1993 by the same deponent as had sworn the earlier confidential affidavit. Mr Conybeare explained the claim for privilege thus:
   

"6. I object to the production of each of the documents annexed to the first affidavit and the document annexed to the second affidavit on the grounds of public interest privilege. Further, I object to the disclosure of the grounds upon which privilege is claimed, the disclosure of which would itself be contrary to the public interest in that such disclosure would defeat the public interest for which privilege is claimed.

7. I verily believe that the facts and grounds upon which the claim for public interest immunity is made are fully set out in the first affidavit and second affidavit.

8. I have recently had discussions with the Respondent in relation to this application and the Respondent's claim for privilege. The transcript of the proceedings before Justice Sweeney on 22nd day of April 1993 has been drawn to the Respondent's attention. During my discussions with the Respondent, he informed me that he supports the claim for public interest privilege for the documents referred to in paragraph 6 above having personally read those documents, the first affidavit and the second affidavit. The Respondent instructed me to object to the production of each of the documents referred to in paragraph 6 above on the grounds of public interest privilege. He also instructed me on his behalf to object to the disclosure of the grounds upon which privilege is claimed, the disclosure of which would itself be contrary to the public interest in that such disclosure would defeat the public interest for which privilege is claimed."

As was pointed out by senior counsel for the applicant, the Secretary's affidavit was somewhat less forthcoming on the grounds for the immunity claim than the remarks made by senior counsel for the respondent before Sweeney J. On 19 May, the applicant filed a motion seeking orders that the respondent produce for inspection the documents referred to as annexures to the first affidavit and the second affidavit referred to in the affidavit sworn by Mr Conybeare. Alternatively, an order was sought to punish the respondent for contempt of the order of Sweeney J made on 22 April 1993.

1. Mr Conybeare's claim in his affidavit that disclosure of the grounds upon which immunity is claimed would defeat the public interest for which it is claimed is inconsistent with the statement made by senior counsel for the Minister before Sweeney J that:
   

"The grounds upon which immunity are claimed have been made clear by me in open court today. The facts upon which the claim is based are confidential."

The grounds referred to were the matters of "law enforcement, national security, international relations and proper working of Government" referred to earlier in the argument. The affidavit of Mr Conybeare leaves the reader to accept, as a matter of trust, what amounts to little more than a bald assertion of a right to public interest immunity. I do not however consider that it constitutes a contempt for there is no reason to suppose that the affidavit was sworn other than in good faith and in the belief that the deponent was complying with the order which in its terms was somewhat open-ended.

1. It is important to bear in mind that public interest immunity is not an inherent legal status attaching to official documents or classes of official documents. Rather, it is the expression of a self-imposed judicial restraint. The decision of the Court when such a claim is made involves the striking of a balance between the public interest in the administration of justice and the public interest invoked in support of the immunity. Where the interests affected by the disclosure of documents involve national security or the relationships with other governments or unfair prejudice to third parties the impact of which is peculiarly within the knowledge of the Executive, the contentions of the Executive will be given particular weight. Inspection of the documents by the Court can be undertaken as an aid to the Court in determining whether documents for which public interest immunity is claimed should be produced.

2. The application for review in the present case is based upon grounds which include denial of natural justice. One element of the denial relied upon is the fact that the delegate took into account the information supplied by an unidentified informant to which reference has already been made. The applicant alleges that he was given no or no reasonable opportunity to place evidence or submissions before the respondent on those materials. It is apparent that this ground raises a serious question to be tried. It is debateable, however, whether it and related grounds require disclosure, for the purposes of these proceedings, of the content of the material. It appears clear from the evidence filed so far in this case, that the delegate took into account material containing allegations against the applicant which fact was not disclosed to the applicant until after the event. The question whether non-disclosure of the relevant detail to the applicant constituted a denial of natural justice is necessarily related to considerations of the kind underlying the claim for public interest immunity. If the confidential material is not disclosed then the question whether there has been a denial of natural justice may well fall to be determined without reference to the content of that material except so far as it is apparent from evidence on the public record. That, however, will be a matter for the trial judge.

3. Having regard to the nature of the issues to be determined at the substantive hearing and the material already on the record in respect of which no claim for immunity is made, I am satisfied that the interests which it is sought to protect by the claim for public interest immunity outweigh the applicant's interest in obtaining access to the confidential material. The applicant already has access to material set out in Mr Callanan's submissions which indicate explicitly the inferences suggested to the delegate as arising from the confidential information. The question whether that information should have been disclosed to the applicant if it were to be taken into account is one of the matters for debate at the substantive hearing. In my opinion the motion should be dismissed with costs.