AGG17 v Commonwealth of Australia

the delegate's REASONS 7 The Minister must not approve an application for citizenship unless he is satisfied of the identity of the person: s 24(3) of the Citizenship Act. 8 Division 1 of Pt 3 of the Citizenship Act is titled "Bogus documents". The expression "bogus document", as used in that Division, has the same meaning as that given under s 5(1) of the Migration Act: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false and misleading statement, whether or not made knowingly. 9 In accordance with s 45B(2) of the Citizenship Act, the Minister's delegate gave written notice to the applicant that his Taskera had been seized. In the written reasons given for the seizure, the delegate stated that she did not have the "requisite training, study or experience to make an assessment of the authenticity of such document" and that the Taskera had been, in accordance with the delegate's usual practice, referred to a document examination unit within the Department of Immigration and Border Protection for assessment. The reasons refer to a report prepared by a document examiner (being the DE report). The delegate noted that the author of the report had reached the following conclusion: I am of the opinion that the photo on the document has been added after one of the wet stamps, the document has been re-assembled and the area under the photo has been altered. I consider that there is more evidence that the alteration was done by someone other than the issuing authority. Therefore, it is my opinion there is qualified support that this is a legitimately manufactured document. Furthermore I am of the opinion that the document has been fraudulently altered. My findings with respect to the manufacture have been qualified in recognition of the low quality security of the document. 10 The delegate read the contents of the whole of the DE report. She stated that, based on the examiner's conclusions, the applicant's Taskera: …. was a 'bogus document', as defined in the Migration Act. In particular, I formed the view that the document had been altered by a person who did not have authority to do so. 11 The delegate went on to conclude that the Taskera was seized upon the delegate forming a reasonable suspicion that the Taskera was a bogus document that had been given to an officer of the Department.

The DE report 12 The DE report is comprised of three pages and a seven page attachment. Two pages of the attachment are redacted in full. The portions of the document that are not redacted commence with a statement to the effect that the Taskera is "a low quality document, which has a few basic security features". The security features are said by the document examiner to be relatively easy for a counterfeiter to simulate. 13 The document examiner's conclusions, extracted at [9] above are said by the document examiner to have been "based on the observations above". The immediately preceding paragraphs state: (original spelling and grammar retained); As a result of my examination of the Taskera … I have determined the following: 1. It contains the security features expected in genuine examples of this document, however the security is limited. There is, however, evidence that the document has been re-assembled and the area under the photo has been altered. 2. The security characteristics introduced during the document issuing in one of the wet stamps and signature are operating correctly, but the value of their security is limited. One of the wet stamps is under the photo, which is evidence that the photo was put on after this wet stamp. 3. The personal data is produced in the expected manner and there is evidence that the photo has been put on after the original wet stamp. 14 Although the language is somewhat disjointed, it is clear from these paragraphs that the document examiner considered the positioning of one of the "wet stamps" relative to the position of the photograph to be a matter of significance in her assessment of the security characteristics of the document. It is also apparent that the "security features" considered by the document examiner included the relative placement of the photograph, the wet stamp and the signature. Although there is reference in these paragraphs to there being "evidence that the document has been re-assembled" the evidence is not identified in the un-redacted parts of the document, except to the extent that the evidence included the relative positions of the photograph and the wet stamp.

PUBLIC INTEREST IMMUNITY - THE PRINCIPLES 15 Argument on the interlocutory application proceeded on the basis that the admission of the DE report into evidence on the substantive application would be governed by s 130 of the Evidence Act 1995 (Cth). Whilst s 130 of the Evidence Act governs a claim for public interest immunity in respect of the admission of evidence, its terms closely reflect the common law governing immunity claims made in a pre-trial context: see Eastman v The Queen (1997) 76 FCR 9 at 63 (von Doussa, O'Loughlin and Cooper JJ); Chapman v Luminis (2000) 100 FCR 229 at [54] (von Doussa J); and SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281 at [9] (Besanko J). It is nonetheless the common law that applies in the present context. 16 The wider context is one in which the Minister would be in default of the pre-trial order of 3 March 2017 if relevant documents are withheld from the court book without lawful excuse. A lawful excuse may be a proper claim for public interest immunity. It is accepted by the Minister that the substantive portions of the redacted material are relevant to the issues to be determined in the proceedings. 17 The contact details of the author of the DE report have been redacted on the basis of relevance and are, in addition, subject to a discrete claim for public interest immunity. I am satisfied that the contact details for the document examiner are not relevant to any substantive issue falling for determination in the proceedings and disclosure of them will not be ordered on that basis. It is not necessary to determine the public interest immunity claim in respect of that portion of the DE report. 18 In determining a claim for public interest immunity, it is necessary to weigh the public interest invoked in support of the claim for non-disclosure of the redacted material, against the public interest in the administration of justice in the particular circumstances of the case. This requires a court to identify the harm that would be done by the disclosure of the information redacted from the DE report, and then to consider whether the administration of justice in the proceedings would be frustrated or impaired by its non-disclosure. If it appears that harm would be done to the public interest by the disclosure of the material, but the document or information is also likely to contain material evidence, then the Court must balance the competing aspects of the public interest so as to determine which of them should prevail: Alister v The Queen (1984) 154 CLR 404 at 412 (Gibbs CJ); Sankey v Whitlam (1978) 142 CLR 1 at 38 - 43 (Gibbs ACJ); 58 - 64 (Stephen, Aikin JJ agreeing at 103); 95 - 96 (Mason J). Factors relevant to balancing the competing public interests may include the nature of the interest affected by disclosure, the seriousness of the issues in relation to which production is sought, the likelihood that production of the documents will affect the outcome of the case and the likelihood of an injustice occurring should the documents not be produced: Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38 (Black CJ, Gummow and French JJ).

THE public interest in non-disclosure 19 The Minister relies on two affidavits of Michael John Minns. Mr Minns is an Assistant Secretary in a branch of the Department responsible for verifying the identity of persons who apply for visas or citizenship. 20 In his affidavit affirmed on 7 June 2017 (first affidavit), Mr Minns states that production of the redacted parts of the DE report would, to adopt his words: (1) reveal the methods used by the Department in the course of its regular examination of identity documents; (2) reveal information provided to the Department by international border and security agencies on a confidential basis, the release of which would compromise ongoing co-operation between the Department and those agencies; and (3) likely frustrate, compromise or impede the Department's ongoing ability to detect fraudulent and counterfeit identity documents, particularly identity documents, particularly those emanating from Afghanistan: to the prejudice of, among others, the Department, the Australian Government and the wider Australian community. 21 Mr Minns affirmed a further affidavit on 28 August 2017 (second affidavit). The second affidavit is presently the subject of suppression and confidentiality orders. It has not been read by the applicant or his legal representatives. The applicant did not object to the Court reading the affidavit for the purpose of determining the public interest immunity claim. 22 On the basis of the first and second affidavits, the following general propositions may be accepted: (1) understanding a person's true identity is crucial to making an informed assessment about whether a person or his or her associates pose a threat to Australia's national security; (2) the Department's identity verification activities are crucial to the operation of Australia's terrorism threat advisory system; (3) it is a core role of the Department to verify the identity of non-citizens who apply for visas and Australian citizenship; (4) document examiners within the Department rely upon "reference information", some of which is obtained though international law enforcement sources on a confidential basis and is not otherwise obvious or publicly available; (5) document examiners within the Department utilise confidential methods and technology; and (6) where the methods employed by the Department are not publicly known and not otherwise obvious in nature, the disclosure of the methods might diminish the Department's ability to detect counterfeit documents by enabling counterfeiters to take steps to avoid detection by those methods. 23 The importance of the interests sought to be protected by the present claim cannot be seriously questioned. 24 In relation to the document examination methods of the Department, it is submitted by the respondents that the protection of methods of that kind is a "traditional head for claiming public interest immunity": respondents' written submissions, [29]. The submission may be accepted to the extent that where disclosure of confidential intelligence capabilities would enable counter-intelligence capabilities to be developed, the injury to the public interest is such that a compelling case favouring disclosure must be established. However, to say that is to say nothing more than to restate the test that is to apply in the resolution of the claim, being a test involving weight and relativity. 25 The circumstance that the material sought to be withheld from production concerns national security interests is, of course, an important consideration to which considerable weight must be attached: Alister at 435. However, the weight to be afforded that circumstance must always be assessed in light of the circumstances of the case. Disclosure of material forming the subject of a claim may be injurious to the public to a greater or lesser degree. The circumstances may be such that disclosure would create a risk of harm, but the risk is properly characterised as low and the feared harm properly characterised as slight. Whilst, ordinarily, it will not be difficult to establish a compelling case against disclosure in security cases, I do not accept the proposition that where the interest sought to be protected relates to national security, the claim must be upheld except where it can be shown that the document is critical to establishing the innocence of a person accused of a criminal offence. Whether a sufficiently compelling case favouring the disclosure of the material can be established remains to be assessed in all of the circumstances, the nature and subject matter of the proceedings among them. The case for disclosure will only be sufficient if it outweighs the interests favouring non-disclosure in all of the circumstances. The authorities upon which the respondents relied are not to be understood as prescribing binding legal principles requiring claims for immunity based on national security grounds to be upheld in all cases except those in which the criminal guilt or innocence of a person is at stake. 26 The redacted material comprises four paragraphs on page two of the document appearing under the heading "I have found the following as a result of my examination". Those paragraphs in turn refer to two pages of an attachment titled "Attachment 1", each of which is redacted in full. Although the redacted material refers to "Attachment 2" and "Attachment 3", the redacted pages form a part of the only attachment to the DE report. The remaining five pages of that attachment have been disclosed to the applicant. 27 It is said by Mr Minns that the disclosure of the information contained in the first redacted paragraph would have the effect of revealing matters that are not "obvious" to persons who might fraudulently alter documents (second affidavit, [28]). The concerns are twofold. First, it is said that disclosure of the information would in turn disclose the particular focus of the document examiner's attention. Whilst that is true, I do not agree that the focus of the examiner's attention is "not obvious" or otherwise confidential. The particular focus of the examiner's attention is made plain in the un-redacted portions of the document and I do not consider the redacted information in the first paragraph to expressly contain any information additional to that which is contained in the un-redacted material: the author of the report considered the relative positions of the photograph and wet stamp to be of significance. Having regard to the information that has already been made known to the applicant, this aspect of the redacted information lacks the quality of secrecy necessary to establish a prima facie claim for public interest immunity. The first paragraph otherwise contains an opinion or supposition expressed by the examiner about the significance of the relative placement of the photograph and the wet stamp. The opinion appears to be orthodox and there is no specific claim by Mr Minns that disclosure of the fact or content of the opinion would, in and of itself, undermine the relevant capacities of the Department. 28 Mr Minn's other concern about the first redacted paragraph relates to the methodology by which a particular irregularity in the document was identified. The particular methodology is revealed in the redacted portion of Attachment 1. 29 To the extent that Mr Minns deposes, without qualification, that all methodologies, tools or technologies used by document examiners are to be regarded as confidential, I do not accept the unqualified evidence. 30 In the absence of specific evidence about a particular methodology, it may be open to a court to infer, from the very nature of the methodology, that a quality of confidentiality or secrecy attaches to it. In other instances, the inference will not be reasonably open, especially where the use of the tool in relation to the document is neither surprising nor unorthodox. By way of perhaps extreme example, a broad assertion of confidentiality attaching to all methodologies and tools employed by undercover agents could not on any reasonable view support a claim for public interest immunity in respect of information revealing that an agent had used binoculars. 31 It is reasonable to infer that persons of ordinary intelligence who might seek to avoid detection would readily expect their counterfeit articles to be subject to very close forensic scrutiny, and that tools may be employed that enable examination of the document other than with the naked eye. 32 Proper respect is to be afforded the evidence of Mr Minns as the officer giving evidence in support of the claim: Sankey at 45 - 46. However, the requirement that the Court give considerable weight to claims concerning national security does not require a court to ignore gaps in the evidence in respect of specific matters that ought to be deposed to in support of the claim. Whilst I would accept Mr Minns' generalised evidence that the availability and use of tools revealed in the DE report are "not obvious", it does not follow that the Court must regard the availability and use of the tools as secretive, such that they could not be discovered by a moderate degree of forethought or unsophisticated research. 33 If utmost secrecy is asserted in respect of a particular tool, it is reasonable to expect the respondents to adduce evidence to the effect that use of that particular tool could not be readily ascertained or predicted, including by reference to information available in the public domain. Mr Minns' evidence does not go so far in respect of the particular tools in question. This affects the Court's assessment of the degree of the risk of injury to the public interest that may be created by disclosure of the material to the applicant in the proceedings. 34 The second paragraph of the redacted material concerns an irregularity affecting the Taskera. This aspect of the claim is to be considered in light of what is revealed in the un-redacted portion of the report, namely that "the area under the photo has been altered". There can be no proper claim for confidentiality in relation to the mere fact that the document examiner examined the area under the photograph, determined it to have been altered and considered that issue to be significant. 35 Insofar as the nature of the alteration under the photograph is sought to be protected, it is difficult to reconcile this aspect of the claim for public interest immunity against the circumstance that the nature of the irregularity concerning the placement of the photograph over the wet stamp is not sought to be protected. Mr Minns does not explain why the disclosure of the nature of the alteration to the area under the photograph is the subject of this claim and yet information concerning the relative placement of the wet stamp and the photograph is not. In light of this peculiarity, it is difficult to afford significant weight to that part of Mr Minn's affidavit in which he claims, at a level of generality, that disclosure of particular areas of significance to a document examiner would assist persons to avoid detection in their attempts to fraudulently alter documents in the future. The nature of the wet stamp irregularity is revealed, and yet the nature of the alteration under the photograph is not. The differences are curious and unexplained. 36 The remainder of the second paragraph and the whole of the third paragraph of the redacted material contain opinions and inferences drawn by the document examiner in relation to the alteration of the area under the photograph and the circumstance in which it might have occurred. The reasoning reveals additional facts about the nature of the alteration which appear relevant, in the document examiner's assessment, to the later conclusion (already disclosed to the applicant) that the document has been "fraudulently altered". 37 The fact that a document examiner may express opinions about why a document has been altered and by whom is not of itself confidential, nor do the opinions themselves have a quality of confidence about them. Next, it is said by Mr Minns that the information in Attachment 1 demonstrates how the particular alteration was made. That is not immediately apparent from the attachment itself. The attachment depicts the alteration but does not, in and of itself, directly reveal information as to how the alteration was effected. If the revelation is indirect, Mr Minns does not explain the inferences a person might draw from the attachment so as to more effectively circumvent detection by the Department. To the extent that the attachment reveals the degree of scrutiny to which a document may be put, that, too, is a matter that may fairly be anticipated by many (although not all) persons intent upon creating counterfeit articles. 38 The fourth paragraph of the redacted material relates to the examiner's determination that "there is ... evidence that the document has been reassembled". This paragraph discloses the particular manner in which the document is said to have been reassembled. The method by which the reassembly was identified by the document examiner is not explained in the paragraph, nor is it revealed in any other part of the DE report. I accept that disclosure of this information would reveal that certain features of the Taskera were considered to be of significance to the examiner, and that the examiner considered those features to evidence that the document had been reassembled. Mr Minns' evidence is that the particular irregularity identified by the document examiner is similar to features identified by document examiners in other cases, such that the revelation of the fact of the irregularity might enable others to circumvent detection of similar irregularities, presumably by taking more care when replicating them. 39 Again Mr Minns' concerns about persons gaining knowledge about the particular features of documents that may be of interest to document examiners are difficult to reconcile against the revelation, with no claim for immunity, of a number of other aspects of the Taskera that were of interest to the examiner. No explanation is given by Mr Minns as to why he has concerns about the irregularity contained in paragraph 4, and yet apparently no concerns about the revelation of the other irregularities thought by the examiner to be of significance. 40 Whilst Mr Minns' affidavit evidence refers to confidential reference material and bodies of confidential knowledge obtained by Australian authorities for use in forensic document examination, it is not at all clear whether any such information was relied upon by the author of the DE report and, if so, how the information would be revealed if the report were to be disclosed. This is a further disconnect between the generalised paragraphs of both the first and second affidavits and the particular information subject to the public interest immunity claim. I consider this aspect of the public interest immunity claim to be of a boilerplate kind, involving a generalised claim of a risk to national security without sufficient evidence to demonstrate that the risk would arise or transpire if the material forming the subject matter of the claim were to be divulged. 41 In summary, with respect to that part of the redacted information that has already been made known to the applicant, I do not consider there to be a prima facie claim for public interest immunity. To that extent, the claim is not to be upheld. 42 As I have said, I do not consider the evidence relied upon by the respondents to be sufficient to show that all persons intent upon fraudulently replicating or altering a document would be assisted or enabled if it were revealed that the document examiner used the tools referred to in Attachment 1. I nonetheless accept that there may be some persons to whom the potential for a document examiner to use such tools would not occur, even with some forethought or unsophisticated research. I find there to be a prima facie claim of public interest immunity in that respect. 43 In respect of the remainder of the information, I am satisfied that there is a prima facie claim for public interest immunity, in that disclosure of the information may create a risk that, if made publicly available, the information may enable a person, so-minded, to take steps to avoid altering a document in such a way that was allegedly detected in the present case. 44 Whilst I accept that there is some risk that the effectiveness of the Department's document examination processes may be undermined by the disclosure of the material (other than the non-confidential material), I consider the degree of risk to be low and the degree of incursion into the Department's capacities to be minor. However, the ultimate harm that may be caused by persons assuming false identities to enter and remain in Australia is, as I have said, significant and, accordingly, there is a real public interest in non-disclosure of that part of the material that is not already known.

THE PUBLIC INTEREST IN DISCLOSURE 45 The prejudice that may be occasioned by non-disclosure of the redacted material is to be determined having regard to the nature of the claim and the importance of the material to its disposition. 46 The third amended originating application contains an opening paragraph to the effect that jurisdiction to grant the relief sought in the action arises under: (1) section 13(7) and s 16(1) and (2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth); (2) section 39B(1) of the Judiciary Act 1903 (Cth); (3) section 45C of the Citizenship Act; and (4) sommon law causes of action pleaded in the statement of claim. 47 Div 1 of Pt 3 of the Citizenship Act relevantly contains the following provisions: 45A Prohibition on, and forfeiture of, bogus documents (1) A person (whether a citizen or non-citizen) must not give a bogus document to the Minister, a person acting under a delegation or authorisation of the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given. (2) A bogus document given in contravention of subsection (1) is forfeited to the Commonwealth. 45B Seizure of bogus documents (1) If the Minister reasonably suspects that a document is forfeited under subsection 45A(2), then the Minister may seize the document. (2) As soon as practicable after seizing the document, the Minister must give written notice of the seizure to the person who gave the document to the official under subsection 45A(1). (3) The notice must: (a) identify the document; and (b) state that the document has been seized; and (c) specify the reason for the seizure; and (d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice: (i) to recover the document; or (ii) for a declaration that the document is not forfeited. (4) For the purposes of paragraph (3)(d), the period must (a) start on the date of the notice; and (b) end 90 days after that date. 45C Document condemned as forfeited (1) If a document is seized under subsection 45B(1), then: (a) the person who gave the document to the official under subsection 45A(1); and (b) if that person is not the owner of the document - the owner; may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction: (c) to recover the document; or (d) for a declaration that the document is not forfeited. (2) The proceedings: (a) may be instituted even if the seizure notice required to be given under subsection 45B(2) in relation to the document has not yet been given; and (b) may only be instituted before the end of the period specified in the seizure notice. (3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period. (4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is: (a) an order for the person or owner to recover the document; or (b) a declaration that the document is not forfeited. (5) For the purposes of subsection (4), if the proceedings go to judgment, they end: (a) if no appeal against the judgment is lodged within the period for lodging such an appeal - at the end of that period; or (b) if an appeal against the judgment is lodged within that period - when the appeal lapses or is finally determined. 45D Dealing with a document after it is condemned as forfeited (1) If, under section 45C, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister. (2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister: (a) must give a direction for the safe keeping of the document; and (b) must authorise access to the document for the purposes of those proceedings. (3) A direction given under this section is not a legislative instrument. 48 In this action, declarations are sought to the effect that the Taskera is not a "bogus document" within the meaning of s 45A of the Citizenship Act, that the Taskera is not forfeited to the Commonwealth and that the delegate's decision to seize the Taskera is affected by error. The applicant seeks an injunction "preventing the respondents from forfeiting the Taskera" and an order that the Taskera be returned to the applicant. The applicant also seeks an award of damages and costs. 49 It is to be recalled that the question of whether a document falls within the definition of the phrase "bogus document" turns upon whether the Minister reasonably suspects that the document is, relevantly, counterfeit or has been altered by a person who does not have authority to do so: see para (b) of the definition in s 5(1) of the Migration Act. Notwithstanding the subjective element of the definition, it is the applicant's contention that in proceedings commenced "under" s 45C of the Citizenship Act, the task of the Court is to objectively determine whether the Taskera is counterfeit or has been altered by a person who does not have authority to do so. Whether that is the proper construction of s 45C is a matter of some controversy between the parties. Relatedly, the parties are in dispute as to whether s 45C is itself a separate and distinct source of jurisdiction to grant declaratory relief, quite apart from the other pleaded causes of action. It is not necessary to decide these controversies in order to resolve the public interest immunity claim. 50 For the reasons that follow, the DE report, on any view, assumes critical forensic importance on that part of the proceedings involving the exercise of the Court's supervisory jurisdiction under s 39B of the Judiciary Act. That, of itself, is sufficient to predominate over the significant interests favouring non-disclosure of the material. 51 Insofar as the claim constitutes an application for judicial review, the onus lies on the applicant to establish that the delegate's decision to seize the Taskera is vitiated by error: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [71] (Kenny J) and the cases cited therein; SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 at [67] (Jessup J). The task of the Court on that aspect of the application is to assess (at least) whether the delegate lawfully formed the state of satisfaction required by the definition of the phrase "bogus document". Similarly, insofar as the claim is founded in the tort of detinue, the onus would remain on the applicant to establish (among other things) that he has an immediate right to the possession of the Taskera: see BIS Cleanaway (trading as CHEP) & Ors v Tatale & Anor; Brambles (trading as CHEP) v Tatale & Anor [2007] NSWSC 378 at [38]; Chep Australia Ltd & Ors v Bunnings Group Ltd [2010] NSWSC 301 at [23]. That task would necessarily involve a collateral challenge to the legality of the delegate's decision to seize the Taskera and would also turn, at least, on whether the delegate lawfully formed the reasonable suspicion required by the "bogus document" definition. 52 On any view of the facts and law, the applicant would be disabled in a practical and legal sense from establishing that the delegate's decision to seize the Taskera was vitiated by error. The disability arises because the reasonableness of the Minister's suspicions in respect of the Taskera falls to be assessed by reference to the reasons given for the formation of the suspicion and the material relied upon as the evidentiary foundation for it. The reasoning of the document examiner, as exposed in the DE report, was implicitly adopted by the decision-maker and is therefore to be regarded as forming a part of decision-maker's own reasoning: Okwume v Commonwealth of Australia [2016] FCA 1252 at [154]. If I am wrong in characterising the DE report in that way, it is incontrovertible that the DE report was taken into account by the delegate. Indeed, the delegate could not have formed the requisite state of mind without it. For that reason alone, the document has central importance in the proceedings. 53 Among other things, it is alleged that the delegate either failed to consider the question of whether the alterations were made by a person without authorisation, or that there was no evident or intelligible basis for the suspicion in that respect. The importance of the redacted material to these grounds is obvious. The applicant cannot discharge the burden of proof in respect of the critical parts of the action without reference to the whole of the reasons of the delegate and without reference to all of the material to which the delegate had regard. I accept that the applicant would be prejudiced in the presentation of his case if the claim were to be upheld. 54 It is also submitted that if the applicant is unsuccessful in these proceedings, then a series of legal and practical consequences would befall him, ranging from refusal of his citizenship application, to cancellation of his protection visa, to the prospect of being held in immigration detention. Underlying the submissions concerning eligibility for citizenship was an assumption that the Minister, having concluded that the Taskera was a "bogus document" (as defined) might now proceed to find that the applicant was not the person he claimed to be and that the applicant was not a person of "good character" within the meaning of s 21(2)(h) of the Citizenship Act. 55 It is not necessary to traverse all of the statutory consequences that might follow if the applicant is unable to effectively challenge the legality of the decision to seize the Taskera in these proceedings. It is sufficient to find that the inability to rely upon the Taskera for identity and forensic purposes has practical and legal consequences for the applicant that are far-reaching. Although commenced in the Court's civil jurisdiction, this is not a private law controversy concerning rights to possession of an ordinary chattel. It is a public law controversy concerning the legality of the seizure of an identity document pursuant to, or purportedly pursuant to, powers conferred by a statute. 56 In summary, the upholding of the claim for public interest immunity over the document would severely prejudice the administration of justice in proceedings in which the legality of administrative acts taken in reliance upon the very same document are subject to challenge. If the whole of the DE report is not disclosed, it would be open to the Minister to answer the grounds of review by demonstrating that the redacted DE report before the Court is not a complete account of the information upon which the document examiner (and hence the delegate) relied. As the applicant could not demonstrate that there was nothing in the remaining portions capable of supporting the requisite reasonable suspicion, the applicant could not discharge his onus in the proceedings and his grounds of review would fail. 57 The upholding of the claim for public interest immunity in the circumstances would seriously prejudice the effective exercise of this Court's supervisory jurisdiction conferred by s 39B of the Judiciary Act. The procedure for obtaining the Court's relief established by s 45C of the Citizenship Act would also be undermined especially if, as the respondents contend, the entitlement to declaratory relief turns on whether the delegate's subjective suspicion was reasonably (and thus lawfully) formed. 58 In my evaluation, the interests favouring disclosure of the redacted information should predominate over the interests favouring non-disclosure.

RELIEF 59 Having ruled on the public interest immunity claim, I do not consider it necessary or appropriate to make any further order compelling inclusion of the DE report in the court book. That obligation arises under the order in paragraph 3 of the orders made on 3 March 2017. The time for compliance with that order has passed. The respondents will be granted an extension of time within which to comply with the obligation. 60 Nothing in these reasons should be taken to preclude any application by the respondents for orders pursuant to s 37AG(1)(b) of the Federal Court of Australia 1976 (Cth) in respect of that part of the DE report in respect of which a prima facie claim for public interest immunity has been demonstrated. 61 The parties should be heard as to the appropriate form of orders. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.