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[2001] FCA 1444
Federal Court of Australia
2001-10-16
Tamberlin J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Initially, there were two matters before me. The first was an application for judicial review of a decision of Ms Gail Bryant made under s 23 of the Freedom of Information Act 1982 (Cth) ("the FOI Act") on 11 May 2001. The second matter was an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") made on 7 September 2001 which affirmed the decision of Ms Bryant. I was informed during the hearing of these matters that the applicant did not propose to proceed with the application for judicial review. Accordingly, the appropriate order in respect of that application is that it be dismissed with costs. 2 The only matter for determination is the notice of appeal from the AAT decision. The question of law claimed to arise on the appeal is: "[W]hether the combined effect of s 503A(8) of the Migration Act 1958 and s 38 of the Freedom of Information Act 1982 precludes the Respondent from granting access to documents, sought under the Freedom of Information Act, where access was denied purportedly pursuant to section 503A of the Migration Act."
background 3 The applicant is said to be a national of the Peoples Republic of China who has been in an immigration detention centre at Villawood since 5 January 2001. On 8 January 2001, she applied for a protection visa in Australia. That application was rejected by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") on 8 March 2001 and that decision was affirmed by the Refugee Review Tribunal ("the RRT") on 8 December 2001. Mrs Kwok's application for review of the RRT decision is set down for hearing on 1 November 2001. I am informed that the applicant intends to seek leave to amend her application for judicial review of the RRT decision to allege that certain documents which were in the possession of the Minister and his Department were not forwarded to the RRT pursuant to s 418(3) of the Migration Act 1958 (Cth) ("the Migration Act"). The documents referred to are subject to a dispute over access. The applicant contends that access to the documents are necessary for her to be able to prosecute the review proceedings in relation to the RRT decision. 4 The applicant entered Australia on 10 March 2000 and was, until 5 January 2001, in possession of a long stay tourist visa which permitted her multiple entries into Australia. In January 2001, she left Australia to visit a relative in Canada. The journey necessitated that she transit the United States of America. The applicant contends that she possessed visas which allowed her to enter the United States and Canada. It is said that upon arrival in Hawaii, the applicant's visa to the United States was cancelled, she was informed that her Canadian visa was also cancelled, and she was placed on a return flight to Australia. When the applicant arrived back in Australia on 5 January 2001, she was detained by immigration officials and her visa to Australia was cancelled. The applicant's solicitor contends that it is his belief that the Minister was in possession of documentation which allegedly implicated the applicant in criminal activities in the nature of misappropriation of funds. On Saturday 6 January 2001, an injunction was granted by a Judge of this Court to prevent the applicant being removed from Australia that day, pending her lodging an application for a protection visa. This was lodged on 8 January 2001. The applicant denies that she was involved in any criminal activities and has alleged in her application for a protection visa that such allegations are an attempt by the authorities in southern China to implicate her with her husband. It is said that her husband has been incarcerated in China since March 2001 in retaliation for his attempts to reform a public transport board of which he was a senior official and to expose corruption within that board. 5 On 1 February 2001, the solicitor for the applicant wrote to a delegate of the Minister stating that a decision should not be made in respect of his client until the Department of Immigration and Multicultural Affairs ("the Department") had evidence of the specific charges made against the applicant and until she had had an opportunity to comment on that information. 6 On 28 February 2001, the delegate sent a fax to the solicitor stating that: " … information obtained from the PRC government concerning Mrs Kwok, is classified as protected information under S503A of the Migration Act. As a result, I am unable to make this information available to Mrs Kwok or yourself." 7 On 5 March 2001, the solicitor wrote to the delegate seeking access under the FOI Act to documents that revealed: "1. The name of the agency which supplied you, or DIMA, with the allegedly protected information 2. A copy of the notice published by the Minister in the Gazette, or at the very least a reference to the relevant issue and page of the Gazette. 3. A copy of any request made by the relevant agency that information the information [sic] sought, relating to Mrs Kwok, be treated as confidential." 8 On or about 16 March 2001, the Department made available a copy of the Gazette notice referred to in par 2 referred to above. Other than that, access was denied pursuant to s 503A of the Migration Act. On 26 March 2001, the applicant's solicitor requested a review of that decision. The decision, communicated by letter on 11 May 2001, was that: "There is no provision under the FOI Act which provides for the release of documents containing information protected under S503A of the Migration Act 1958, such information falls outside the scope of the FOI Act and cannot be released, therefore this cannot be reviewed." 9 The applicant then applied to the AAT for review of this decision and sought expedition of those proceedings. The application to the AAT was heard and dismissed by Senior Member MD Allen who gave extemporary reasons for his decision on 7 September 2001.
Migration Act 10 Section 503A of the Migration Act relevantly reads: "(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. … (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. … (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." 11 Sections 501, 501A, 501B and 501C are concerned with the refusal or cancellation of a visa on character grounds and matters related thereto.
Freedom of Information Act 12 Section 38(1)(a) and (b) relevantly provide: "Documents to which secrecy provisions of enactments apply 38. (1)Subject to subsection (1A), a document is an exempt document if: (a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and (b) either: (i) that provision is specified in Schedule 3; or (ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment. (1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment. (2) Where a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person." 13 Section 55(1) relevantly provides: "55. (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: (a) a decision refusing to grant access to a document in accordance with a request; or (aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates, or … 14 Section 4 of the FOI Act provides that the expression "document" includes "any paper or other material on which there is writing" or any part of such paper or other material.
submissions 15 The information sought by the applicant is the name of the agency that supplied the information said to be protected under s 503A of the Migration Act and a copy of any request made by that agency that the information sought relating to the applicant be treated as confidential. 16 The applicant submits, firstly, that the name of the agency and the terms of the request cannot be described as "information" within the meaning of s 503A. It is submitted that the provision should be given a narrow reading because it operates to cut down what is said to be the principle of natural justice which requires that a party be given access to material which will enable a proper presentation of the applicant's case. Reliance is placed on the principle that, unless legislation expressly provides, there is a presumption that the principles of natural justice have not been excluded: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109; FAI Insurances Ltd v Winneke (1982) 151 CLR 342. 17 Secondly, it is submitted by the applicant that even if the documents can be described as "information" within the meaning of s 503A, they cannot be relevant to the exercise of a power to refuse or cancel a visa on character grounds. 18 Section 503A was inserted into the Migration Act in 1998 by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). Prior to that amendment, the Minister was required to establish claims of public interest immunity where it was sought to compel the production of documents for inspection. The purpose of s 503A, according to the parliamentary debates, was to increase the protection of information obtained from law enforcement agencies. The following passage appears in the second reading speech in the Senate and the House of Representatives (Parl Debs, Senate, 11 November 1998 at 60; HR, 2 December 1998 at 1231): "Protection of criminal intelligence Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in my most recent discussions with officials of international law enforcement agencies." 19 It is my view that, in cases of ambiguity, the provisions of s 503A should be read in accordance with the objective expressed in the second reading speech. This expressed statement of the objective of the provision in my view dispels any suggestion that the statute should be read narrowly or strictly. There is no reason why the language used should not be given its ordinary and natural meaning unhindered by any implied limitations said to be broadly derived from principles of natural justice. In the present case, no declaration has been made by the Minister pursuant to s 503A(3) and, in the absence of such a declaration, the information must not be divulged except in accordance with s 503A(1). In addition, s 503A(8) is cast in comprehensive language so as to subject any other provision in respect of the giving of information to the provisions of s 503A, whether passed before or after 1998. 20 By approaching the section with regard to the ordinary and natural meaning of the expression "information", it is my view that the name of the agency and the terms of the request for confidentiality can be said to be "information". As the Full Court pointed out in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 217-218, the expression "information" is a broad expression and can include, according to the Oxford English Dictionary (2nd ed, 1989), "[k]nowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told". The name of the agency giving the information and the terms of the request, if disclosed, would clearly communicate knowledge about facts. Accordingly, I do not accept the applicant's first submission. 21 The second submission is that even if the name of the agency, and the terms of the request, amount to "information", nevertheless, such information cannot be relevant to the exercise of powers under the sections referred to in s 503A(1). In my view, the name of the agency could be relevant to the exercise of the power. The status, history and reputation of the agency, for example, may be important in making a decision as to whether the information is reliable or worthy of weight, and if so, what importance ought to be attached to it. Likewise, the terms of the request may be relevant in exercising the relevant powers because they might disclose the reasons for the request which, in turn, may reflect on the conduct of the applicant. 22 The important factor in this submission, however, is that the appeal to this Court is made on the basis of an error of law. The determination of questions of fact is for the AAT. There is no evidence to cast doubt on the fact that a request was made. Accordingly, the applicant has not made good any case that there was not a request which would enliven the operation of s 503A. This was also the case in the recent Full Court decision in Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 at [12]. In that case, the Minister was not called upon to establish that the information was protected information and there had been no recourse to the issue of a subpoena, the giving of a notice to produce, or the process of discovery.
Conclusion 23 For the above reasons, I am satisfied that the decision of the AAT does not disclose any error of law and, accordingly, I dismiss the appeal in accordance with the usual rule. Costs will follow the event and the applicant must pay the respondent's costs of this appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
Solicitor for the Respondent: Australian Government Solicitor
Kwok
Minister for Immigration and Multicultural Affairs