NAAO v Secretary, Department of Immigration & Multicultural Affairs [2002] FCAFC 64 | Case summary

THE COURT: 1 This appeal is concerned with the proper interpretation of s 503A of the Migration Act 1958(Cth) ("the Act") and, in particular, with what is the "information" which is protected from disclosure pursuant to that section and the conditions for that non-disclosure. 2 Section 503A relevantly provides: "503A Protection of information supplied by law enforcement agencies or intelligence agencies (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). … (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. Note: For specification by class, see section 46 of the Acts Interpretation Act 1901." 3 The appeal arises in the following circumstances, the facts of which are substantially taken from the reasons for judgment of the primary judge. 4 The appellant, who is said to be a national of the People's Republic of China, has been in immigration detention at Villawood since 5 January 2001. On 8 January 2001 she applied for a protection visa in Australia. That application was rejected on 8 March 2001 by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), and that decision was affirmed by the Refugee Review Tribunal ("the RRT") on 8 December 2001. The appellant's application for review of the RRT decision was determined adversely to her by Hely J on 1 November 2001: Kwok v Minister for Immigration & Multicultural Affairs [2001] FCA 1566. 5 The appellant entered Australia on 10 March 2000 and was in possession of a long-stay tourist visa which permitted her multiple entries into Australia until 5 January 2001. In January 2001 she left Australia to visit a relative in Canada. The journey necessitated that she transit the United States of America. The appellant contends that she possessed visas which allowed her to enter the United States and Canada. It is said that upon arrival in Hawaii the appellant'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. 6 When the appellant arrived back in Australia on 5 January 2001, she was detained by immigration officials, and her visa to Australia was cancelled. The solicitor for the appellant deposed to his belief that the Minister was in possession of documentation which allegedly implicated the appellant in criminal activities in the nature of misappropriation of funds. The appellant 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. 7 On 1 February 2001, after an interview between a delegate of the Minister and the appellant, the solicitor for the appellant wrote to the delegate. That letter said in part: "It is submitted that a decision should not be made until the Department has evidence of the specific charges made against [the appellant], and until [the appellant] has had an opportunity to comment on the information." 8 On 28 February 2001, the delegate of the Minister sent a fax to the appellant's solicitor which included the following statement: "…information obtained from the PRC government concerning [the appellant], is classified as protected information under S503A of the Migration Act. As a result I am unable to make this information available to [the appellant] or yourself." (Emphasis added) 9 On 5 March 2001, the solicitor for the appellant wrote a letter to the Delegate, which included the following: "You say that, 'information obtained from the PRC government concerning [the appellant] is classified as protected information under s503A Migration Act.' Protected information under s503A is information s communicated to an authorised Migration officer s by a gazetted agency s on condition that it be treated as confidential. In addition, a 'gazetted agency' is s one that is responsible for law enforcement etc in Australia or a foreign country s and is specified in a notice published by the Minister in the Gazette. We do not doubt that you are an 'authorised Migration Officer'. However, could you please supply, pursuant to the Freedom of Information Act, or otherwise, 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 sought, relating to [the appellant], be treated as confidential." 10 On 16 March 2001, an officer of the Department responded to the request, saying: "I cannot release information related your requests numbered 1 and 3 as such information is protected by section 503A of the Migration Act 1958 (copy of section 503A attached). I have made a decision on your request numbered 2." That letter contained a photocopy of the Commonwealth of Australia Gazette No. GN 23 of 9 June 1999. The letter also contained the statement: "Please note that the refusal of access to information under section 503A of the Migration Act 1958 cannot be reviewed under the FOI Act." 11 The Gazette provided, relevantly: "NOTICE UNDER SECTION 503A OF THE MIGRATION ACT 1958 AS AMENDED BY THE MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) ACT 1998. I, PHILIP RUDDOCK, Minister for Immigration and Multicultural Affairs, acting under subsection 503A(9) of the Migration Act 1958 as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998: 1) SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1. 2) This Instrument comes into effect on 1 June 1999(1). Dated 31st May 1999. Minister for Immigration and Multicultural Affairs [NOTE: Subsection 503A(9) of the Migration Act 1958 as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 provides that the Minister may, by notice in the Gazette, specify a gazetted agency meaning a body, agency or organisation that is responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country.]" Schedule 1, headed "List of Countries", included: "C. … China People's Republic of, …" 12 On 26 March 2001 the appellant applied for review of the decision to refuse to disclose documents containing the name of the agency which supplied to DIMA information allegedly protected under s 503A of the Act relating to her, and a copy of any request made by the relevant agency that the information sought, relating to the appellant, be treated as confidential. The letter from the solicitors making that application referred to the claim that the information and documentation sought is allegedly protected by s 503Aand continued: "Section 503A does not protect the name of the organisation itself or any request by the agency that information be treated as confidential. In the latter respect we note that s22 Freedom of Information Act 1982 provides for an applicant to be provided with access to documents, subject to the deletion of exempt material." 13 The officer of the Department responsible for dealing with applications under the Freedom of Information Act 1982 (Cth) ("the FOI Act") responded by letter dated 30 March 2001, relevantly saying: "I consider that the name of the source of the protected information and any conditions under which the information was provided to be part of the protected information." The correctness of this opinion, which was accepted as correct by the primary judge, is the primary question on this appeal. 14 This reply was followed by a letter of 6 April 2001 by the appellant's solicitor which relevantly said: "Section 503A deals with information that is communicated to inter alia DIMA on condition that it be treated as confidential. The section does not cover the name of the agency communicating the information, or so much of the information that deals with an alleged request for confidentiality. It is intolerable in a democratic society that our client is denied knowledge of not only the case against her, but of information and documentation that would permit her to know whether DIMA is acting within the law in withholding this information." 15 The appellant sought review by the Administrative Appeals Tribunal ("the AAT") of that decision, and in an ex tempore judgment on 7 September 2001, the AAT said: In this matter the applicant has made a request pursuant to the Freedom of Information Act seeking certain documents from the Department of Immigration and Ethnic Affairs. The specific request related to information obtained from the government, The People's Republic of China, respecting the applicant. It is common ground that the applicant was refused a visa and one of the grounds of refusal was the material forwarded to the respondent from the government agencies of The People's Republic of China. The evidentiary basis of this last statement does not appear. The AAT concluded its decision by saying: "As far as I am concerned the provisions of section 503A are mandatory and pursuant to paragraph 38(1)(b)(ii) of the Freedom of Information Act the documents are exempt from production under that Act and therefore the application is dismissed." 16 The appellant appealed from the decision of the AAT to a single judge of the Federal Court of Australia pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The question of law said to arise on that appeal was: "[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." Section 503A(8) of the Actprovides: "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." 17 Sections 38(1)(a) and (b) of the FOI Actrelevantly 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." 18 The primary judge stated: "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."

The primary judge recorded his decision as follows: 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. … 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. 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." The primary judge concluded: "… I am satisfied that the decision of the AAT does not disclose any error of law and, accordingly, I dismiss the appeal …" 19 On 19 October 2001, a notice of appeal was filed. The first two grounds of that notice of appeal were as follows: "1. His Honour erred in holding that the name of the agency which provided documents to the respondent relating to the alleged affairs of the appellant is 'information' for the purposes of section 503A of the Migration Act 1958. 2. His Honour erred in holding that any request for confidentiality (being the words requesting confidentiality, exclusive of their context) contained in documents provided to the respondent is 'information' for the purposes of section 503A of the Migration Act 1958." 20 Three further grounds were included in that notice of appeal, and at the hearing of the appeal, leave was sought to amend those grounds as follows: "3. His Honour erred in in failing to decide whether, in this particular case, the name of the agency is in fact 'relevant' to the exercise of a power under sections 501, 501A, 501B, or 501C of the Migration Act. 4. His Honour erred in failing to decide, in this particular case whether any request for confidentiality (being the words requesting confidentiality, exclusive of their context) contained in documents provided to the respondent is in fact 'relevant' to the exercise of a power under sections 501, 501A, 501B, or 501C of the Migration Act. 5. In finding that there was no evidence to cast doubt upon the fact that a request for confidentiality was made, his Honour erred in applying a reverse onus of proof. Particulars (a) There is no evidence that a request for confidentiality was in fact made. (b) There was no finding by the Administrative Appeals Tribunal that a request for confidentiality was made." 21 The Court indicated that it would reserve its consideration of granting leave to argue those grounds until hearing the argument on the appeal. 22 In addition, at the invitation of the Court, the appellant was permitted to add a further ground: "6. His Honour erred in holding that section 503A of the Migration Act operated to preclude the respondent from giving access to documents sought under section 15 of the Freedom of Information Act in circumstances where the documents were not provided by a gazetted agency within the meaning of section 503A(1) of the Migration Act." That ground is directed to the question of whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act. 23 The first two grounds of appeal are the grounds crucial to the determination of this appeal. 24 It is true that the source of information communicated to an authorised migration officer and any condition upon which that information was communicated can be described accurately as "information". However, the source of information communicated to an authorised migration officer and the condition on which that information is communicated is not itself the "information" which is protected from disclosure by s 503A(1). The information which is protected by s 503A(1) is information which is: (i) communicated to an authorised migration officer; (ii) by a gazetted agency; (iii) on condition that it be treated as confidential information; and (iv) relevant to the exercise of a power under s 501, 501A, 501B or 501C. 25 The identity of the agency which provided "protected information" to the respondent is not itself protected information within s 503A of the Act. Not only is the source of the information not itself information which is protected, any condition upon which the information is communicated is also not "protected information". In our judgment, neither the name of the agency which communicated information to an authorised migration officer, nor the condition upon which that communication occurred, is itself information which is protected from being divulged pursuant to s 503A(1). 26 Whilst the operation of s 503A(1) has been the substantive point of the argument on appeal, the fundamental question for the AAT was whether each document containing the information sought was an exempt document within the meaning of s 38 of the FOI Act. In order to establish that proposition, it would be necessary for the respondent to prove in a proper fashion: · that the information had been communicated by a gazetted agency; · that it had been communicated by that agency to a person who was an authorised migration officer; · that the information was so communicated on condition that it be treated as confidential; and · that the information was relevant to the exercise of the relevant power. (see Wu v Minister for Immigration & Multicultural Affairs [2001] FCA 89 at [10]). This would require disclosure of the identity of the agency and the communication of the condition as to confidentiality. This illustrates that the argument that such matters are confidential is inconsistent with s 38 of the FOI Act. 27 The issue may have become obscured because the appellant chose to make a limited request for information rather than to seek all of the substantive information. If the latter course had been taken, the obligation upon the respondent to prove the elements of s 503A may have been more obvious. 28 In the light of our conclusions on the central questions on the appeal, it is unnecessary to consider the amended grounds 3, 4 and 5, and therefore leave to amend those grounds should not be granted. It should be noted, however, that one of the requirements for protection from disclosure pursuant to s 503A is that that information is relevant to the exercise of a power under ss 501, 501A, 501B or 501C of the Act; it is not a sufficient compliance with that condition for protection from disclosure that the information might be relevant to the exercise of any such power. 29 Insofar as the proposed amended ground 5 is concerned, it would have been an error for the primary judge to "apply a reverse onus of proof". However, we understand the primary judge's reference "[t]here is no evidence to cast doubt on the fact that a request was made" to be simply a statement that an appeal lies to the Federal Court only on questions of law, and that whether the request was made is a matter of fact. If his Honour did intend to suggest that an applicant under the FOI Act has an onus to disprove an exemption asserted pursuant to s 38, then we respectfully disagree, as will be plain from the manner in which we have dealt with the first two grounds of appeal. 30 It is unnecessary also to consider the amended ground 6, in light of the Court's findings on the first two grounds of the appeal. That ground raises the question of whether the Gazette of 9 June 1999 earlier set out is a valid specification for the purposes of s 503A(9) of the Act. The letter of 28 February 2001 by a delegate of the Minister to the appellant's solicitor merely states that the information refers to "information obtained from the PRC government concerning [the appellant]". 31 It would seem that the PRC Government is not itself a "gazetted agency" within s 503A(9) of the Act. The purported specification by the Minister is in fact a description by genus, the genus including each body, agency or organisation that is responsible in the People's Republic of China for law enforcement, criminal intelligence, criminal investigation or security intelligence. The purported specification is no more than a repetition in the terms used in the Act of the same bodies, etc, referred to in the Act which are required to be specified, albeit limited to all bodies, etc, of that description in the enunciated countries. Counsel for the respondent submitted that this was a sufficient specification within the requirement of s 503A(9) of the Act, relying on s 46(2) of the Acts Interpretation Act 1901 (Cth) which relevantly provides: "Where an act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution: (a) specifying, declaring or prescribing a matter or thing; or (b) doing anything in relation to a matter or thing; then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things." 32 The word "specified" is normally used in the sense of stating in detail or with specificity (TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 503) or to state in explicit terms so that there is clarity and precision (see the authorities referred to by Burchett J in Tickner v Chapman (1995) 57 FCR 451 at 480-481, see also Black CJ at 457-458 and Keifel J at 491-492 in that case). Section 46(2) of the Acts Interpretation Act was only introduced in 1990. There is nothing in the second reading speeches in respect of the introduction of s 46(2) which bears on the present question. 33 The only authority to which we were referred which has considered s 46(2) is the judgment of Dunford J in Concord Council v Optus Networks Pty Ltd (1996) 90 LGERA 232. That decision considered s 116(1) of the Telecommunications Act 1991(Cth) which provides: "The regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory." 34 The Telecommunications (Exempt Activities) Regulations 1991 (Cth) provided in regs 4, 5 and 6 as follows (so far as relevant): "4. For the purposes of subsection 116(1) of the Act, the following carriers are specified: (a) a general carrier; and (b) a mobile carrier. 5. For the purposes of subsection 116(1) of the Act, the following exempt activities are specified: … 6. For the purposes of subsection 116(1) of the Act, a carrier may engage in the exempt activities set out in regulation 5 despite a law of a State or Territory about: (a) the assessment of the environmental effects of engaging in the exempt activity; (b) the protection of places or items of significance to Australia's natural or cultural heritage, but not including provisions of the law that provide for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders; (c) town planning; (d) the planning, design, siting, construction, alteration or removal of a structure; (e) the powers and functions of a local government body; (f) the use of land; (g) tenancy; (h) the supply of fuel or power, including the supply and distribution of extra low voltage power systems, but not including provisions of the laws that provide for the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements." 35 In Concord, Dunford J noted at 257: "The Regulations do not name the carriers or the exempt activities referred to, but no objection is taken in this regard." His Honour continued: "They do not name the various laws of the different States and Territories which are not to apply to the relevant carriers but describe such laws as including laws about (a) the assessment of the environmental effects of engaging in the exempt activity; … (c) town planning; (d) the planning, design, siting, construction, alteration or removal of a structure; and (e) the powers and functions of a local government body." 36 The plaintiffs in that case submitted that the laws which are not to apply had not been "specified". Dunford J referred to the observations of Herron CJ in Clyne v Cardiff (1965) 65 SR (NSW) 213 at 217: "The word specify, as relates to provisions of an Act, means more than to refer to them by reference to the legal effect or legal implication of a Board's decision. Such would not specify the provisions explicitly enough or with sufficient definition. …" 37 In the same case, Sugerman J (at 221) held that there was "much force" supporting the view that "specified" in the particular section meant specified by enumeration of sections, parts or the like; but went on to state (at 222) that, even if it was possible to specify provisions, not by enumerating them but by means of a summary statement of their effect, the summary statement: "must then be capable of serving as an unambiguous identification of the provisions whose operation is intended to be excluded - an identification as unambiguous as if the provisions had been enumerated." 38 Dunford J referred to s 46(2) of the Acts Interpretation Act, and held that there had been, in the case before him, an identification of the matter or thing by referring to a class or classes of matters or things. Dunford J said at 259: " 'Matter', and 'thing' are words of very wide import, and must, in my view encompass 'laws'. The laws of the States or Territories from which the carriers are to be exempt are specified or identified by reference to classes of laws and the section renders it unnecessary to identify the subject laws by reference to the name or year and number of the act, and so the strict meaning of 'specified' is not relevant, and they can be identified with certainty and precision from the description of the class and having regard to the context, subject matter and purposes of the legislation, they are sufficiently specified." (Emphasis added) 39 The laws of the States or Territories from which the carriers were to be exempt in that case were identified by reference to species of laws of a State or Territory being, for instance, laws of that state or territory about town planning. Whilst the decision upon the question of construction in that case may be debatable, at least there was an identification of a species from a genus, the identification consisting in the description of the character of the species by reference to known circumstances as citizens of Australia are presumed to know Australian law. 40 That is to be contrasted with what the Minister has purported to do in respect of specifying the bodies, agencies or organisations which are to be "gazetted agencies" for the purposes of s 503A of the Act. That specification is by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description. 41 Whether the source of the information is or is not a "gazetted agency" within the proper meaning of s 503A is however not a question directly before this court. If the source of the information is not a "gazetted agency", as properly construed, one of the pre-conditions to protection from disclosure is not met. That question arises only after the source of the information is identified and so, given the matters in issue before the AAT and the primary judge, is truly for another day. It is unnecessary and, as a consequence, inappropriate to express any concluded view on whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act. 42 It follows that the appeal should be allowed and the orders of the primary judge set aside. The applicant seeks an order that the respondent be directed to produce to the appellant's solicitors all documents in the possession, custody or control of the respondent, its officers or agents which it has received from the government or agencies of the government of the People's Republic of China, and which pertain to the conduct or affairs of the appellant, but only in so far as they reveal: (a) the name of the agency from which the document originated; and (b) any request for confidentiality therein (being the words requesting confidentiality, exclusive of their context). This Court would not normally make a substantive order which it is within the jurisdiction of the AAT to make. However, as there is no remaining residual discretion to be exercised, in our opinion, the making of the orders sought is appropriate (s 44(4) AAT Act). The respondent should pay the appellant's costs of the appeal and the proceedings at first instance, to be taxed if not agreed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Gyles and Conti.

NAAO v Secretary, Department of Immigration & Multicultural Affairs

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