(a) Folios 41 and 63 fall outside the scope of documents the subject of Mr Nikjoo's FOI request to the Department made on 25 July 2011

(b) The balance of the decision made by the Australian Information Commissioner is affirmed.

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FREEDOM OF INFORMATION - Access and exemptions - Whether access to requested documents would found an action for breach of confidence - The iniquity principle - Application of section 22 of the Freedom of Information Act 1982

PRACTICE AND PROCEDURE - Recusal application - Apprehended bias and negligence - Application misconceived - Application refused

PRACTICE AND PROCEDURE - Summons - - Grounds for refusing request to issue summons

Administrative Appeals Tribunal Act 1975 (Cth) - ss 35(2); 37; 40(1C)

Freedom of Information Act 1982 (Cth) - ss 7; 11; 22; 32; 45; 55K; 93A

B and Brisbane North Regional Health Authority [1994] QlCmr 1

Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434

Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 282 ALR 685

Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2012] AATA 113

Re PMMC/WJPJ and Australian Prudential Regulation Authority [2009] AATA 801; (2009) 112 ALD 210

Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, Version 1.1, revised June 2012

1. Fardin Nikjoo made a request under the Freedom of Information Act 1982 (Cth) (the FOI Act) for access to certain documents held by the respondent, the Secretary of the Department of Immigration and Border Control (the Department). Mr Nikjoo described the requested documents in these terms:

I sponsored [my former wife] ... as my fiancé on a subclass 300 visa (prospective marriage) in 2000-2001 ... and she came to Australia. She left me almost a year later. However, she stayed in Australia.

Being aware of the conditions attached to the subclass 300, there are certain circumstances under which she may be able to stay and/or apply for a further visa in Australia. I am now concerned about any false adverse information which may or may not have been given to the [Department about me]. This is a request for access to such information and/or documents [containing] such information.

1. On internal review an officer of the Department upheld the decision made by the primary decision-maker to refuse Mr Nikjoo's FOI request, finding:

[The requested documents] contain information of a specific nature that is inherently confidential in that it is not widely known and was conveyed to the Department by a third party on a basis of a mutual understanding that the information was confidential and would not be disclosed to any other party. They contain information affecting the author. Although they were not marked as confidential, their contents are such that they import that they would be used only for the purpose they were given.

There is no authority from the author to disclose the information.

Unauthorised disclosure will cause detriment to the author as it would reveal to the public matters personal to the author and others. Revelation is likely to cause embarrassment and discomfort.

1. The Information Commissioner on review affirmed the decision to refuse to grant Mr Nikjoo access to the requested documents on the ground that their disclosure would found an action for breach of confidence and therefore the documents were exempt under the FOI Act.
2. Mr Nikjoo seeks review of that decision by the Administrative Appeals Tribunal.

1. At the request of the Secretary, the Tribunal (differently constituted) made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) restricting access to the following documents provided to the Tribunal in these proceedings: the Secretary's confidential statement of facts and contentions of 2 July 2013; the documents identified by the Secretary as falling within the scope of Mr Nikjoo's FOI request; the confidential submissions made by the Secretary to the Information Commissioner and various background documents.
2. In addition orders were made that parts of the substantive hearing be held in private.

1. Mr Nikjoo has made a number of requests to the Registrar of the AAT to issue a summons to his former wife to produce documents and attend the Tribunal to give evidence. He described the documents sought in the following terms:

Supporting letters and/or evidence and/or documents you received from other third parties and provided to the respondent in the process of applying for your Australian permanent visa.

1. As the terms of his FOI request reveal, Mr Nikjoo suspects that his former wife gave "false information" to the Department. He asserts that the only possible explanation for his former wife, a citizen of Iran, being permitted to remain in Australia, is that the Department accepted the truth of her claims. He says that there is a proper basis for that conclusion: his knowledge of immigration law and the Department's practices, attained in his role as a migration agent. Given the confidentiality orders together with the obligation imposed by the FOI Act not to disclose exempt matter, in these reasons I will not detail the nature of the claims Mr Nikjoo suspects were made by his former wife.
2. Mr Nikjoo's first request for a summons was made on 2 July 2013 and refused. On 16 August 2013 Mr Nikjoo made a request in almost identical terms. That request was also refused. He subsequently made a further request and indicated that he would be content if his former wife gave evidence to the Tribunal in his absence. At the hearing on 27 August 2013 I refused the amended request and gave reasons for that decision. That hearing was adjourned and the Secretary directed to provide an open Statement of Facts and Contentions.
3. When the hearing reconvened on 7 November 2013 Mr Nikjoo repeated his request for a summons to be issued upon his former wife. I refused to allow the summons to issue for the following reasons.
4. First, the documents which Mr Nikjoo requests the Tribunal to compel production of under summons, broadly fall within the scope of his FOI request. It is likely that the summons, if issued, would be met with a claim that the disclosure of these documents would result in an action for breach of confidence: precisely the same issue the hearing was set to determine. While not determinative of whether a summons should be allowed to issue, a claim for confidentiality of a document is nonetheless a relevant factor to be taken into account in deciding whether a request for summons to issue should be refused under s 40(1C) of the AAT Act (see discussion by Stone J about setting aside a subpoena where a claim of confidentiality is made in Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [36]).
5. Second, s 64 of the FOI Act prohibits the Tribunal from permitting access to a document claimed to be an exempt document. In my opinion in proceedings under the FOI Act, it would be inappropriate for the Tribunal to compel production of a document under summons, which is also the subject of an FOI request.
6. Third, regarding Mr Nikjoo's request that a summons be issued for his former wife to give evidence, the reason for that request, as Mr Nikjoo admits, was so that he could question her about the information contained in the requested documents. For the reasons set out above in my opinion it would be inappropriate to compel Mr Nikjoo's former wife to give evidence about the content of documents which are likely to give rise to a claim for confidentiality.
7. Fourth, it was not clear to me what evidence his former wife could give that would be relevant to my determination in relation to Mr Nikjoo's FOI request. That determination turns principally on whether disclosure of the requested documents would result in an action for breach of confidence. I am not persuaded that providing Mr Nikjoo with an opportunity to attack his former wife's credibility was either relevant or necessary given the issues for decision.
8. Fifth, in respect of Mr Nikjoo's amended application, I was not persuaded that his former wife's evidence would assist me in determining whether, as he contends, the requested documents were exempt because of the "iniquity defence". As set out at [40] below in deciding that issue I proceeded on the assumption that, as Mr Nikjoo suspects, the information provided to the Department by his former wife was false.

1. In a letter addressed to the President of the Tribunal dated 22 August 2013 Mr Nikjoo requested "the disqualification of the senior member allocated to hear the matter on the basis of apprehended bias". The President directed me, as the Tribunal constituted to determine Mr Nikjoo's application for review, to determine that request. The stated ground for Mr Nikjoo's disqualification application was my decision to refuse his request for a summons to be issued. I refused to disqualify myself. On the first day of hearing, I gave reasons for that decision.
2. When the hearing resumed on 7 November 2013 Mr Nikjoo again requested that I disqualify myself on the grounds of "demonstrated bias". In support he provided me with a letter addressed to the President of the Tribunal, dated 6 November 2013. The request to the President was expressed to be an application to reconstitute the Tribunal under s 21A of the AAT Act.

1. Before dealing with Mr Nikjoo's allegation of bias I will consider his submission that his application should be treated as falling within s 21A of the AAT Act.
2. Section 21A of the AAT Act provides that the President may direct that the Tribunal be reconstituted where he or she "considers that the matters to which the proceeding relates are of such public importance" as to justify the reconstitution. Section 21A is only engaged where there is some basis on which the President might conclude that the matters to which the proceedings relate are of such public importance as to justify reconstitution (see Andelman v Administrative Appeals Tribunal [2011] FCA 815 and Mellor and Australian Postal Corporation [2010] AATA 288). While I accept that the matters to which the proceedings relate are of importance to Mr Nikjoo there is nothing before me to suggest that they are of such public importance to justify reconstitution and nor has this been suggested by Mr Nikjoo.
3. For completeness I note that after the hearing the President directed that I determine Mr Nikjoo's request of 6 November 2013.

1. The rules of natural justice, among other things, require that the Tribunal be, and be seen to be, impartial or unbiased (the bias rule). The test of apprehended bias, one of the manifestations of the bias rule, is whether a fair-minded lay observer, having knowledge of the material objective facts, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to determining the application before it (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344; Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 282 ALR 685 at 692; Re PMMC/WJPJ and Australian Prudential Regulation Authority [2009] AATA 801; (2009) 112 ALD 210 at 213; Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2012] AATA 113).
2. The High Court in Ebner (at 345) set out a two-step test to determine whether apprehended bias is established:

[First] .... the identification of what it is said might lead the judge ... to decide a case other than on its legal and factual merits. [And] second ... an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

1. The stated grounds for Mr Nikjoo's application were that I had demonstrated bias by (i) deciding to refuse his requests for a summons and, (ii) "[my] strange claim that [I] had not seen form 1040, statutory declaration form included in the T - documents".
2. In respect of the second ground I understand Mr Nikjoo to be referring to comments attributed to me made on the first day of hearing. On that day, in the context of clarifying with the Solicitor for the Secretary, Ms Hooper, what information had been provided to Mr Nikjoo I commented that he would be aware from the schedule of documents prepared by the original decision-maker that the requested documents included "statutory declarations from third parties" (see documents lodged under s 37 of the AAT Act, T 10, p 10). Mr Nikjoo has apparently attributed to me a comment made by Ms Hooper and promptly corrected, in that exchange.
3. Even if Mr Nikjoo's recollection was correct, he has failed to explain how the purported error on my part might give rise to a reasonable apprehension of bias. If, as I understand him to contend, the purported error constitutes legal error, of itself that would not give rise to a reasonable apprehension of bias: legal error and apprehended bias are not one and the same thing.
4. The gravamen of Mr Nikjoo's complaint is my decision to refuse his requests for summonses to be issued. He contends among other things that I accepted false claims made by the Secretary and "completely ignored" his extensive submissions and evidence which he contends puts "beyond doubt" that his former wife gave false information to the Department. He argues that in light of this "indefensible" decision it is inevitable I will bring a closed mind to his substantive application. Apart from the contention that the only possible explanation for the offending Summons decision is bias on my part, Mr Nikjoo has failed to articulate what it is that has, or might, lead me to decide his application other than on its legal and factual merits.
5. I do not question the sincerity of Mr Nikjoo's views, but in my opinion they are misconceived and lack an objective basis. He has provided no basis on which it could be said that a fair-minded lay observer, versed in the relevant principles, and knowing the relevant facts, might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determining of the substantive application. For these reasons I refuse the disqualification application.

1. The FOI Act gives every person a legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency, in this case the Department, other than an "exempt" document (s 11). Subject to a number of exceptions and exemptions, on receipt of a "request", the agency must grant the FOI applicant access to the requested document.
2. An exempt document is defined to include documents referred to in Division 2, Part IV of the FOI Act (ss 7, 32). These include "[d]ocuments containing material obtained in confidence":

45 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence.

1. Section 45(2) sets out a number of exceptions to s 45(1). None are relevant to this matter.
2. Section 93A of the FOI Act instructs that in reviewing the decision made by the Information Commissioner to refuse to grant Mr Nikjoo access to the requested documents, I must have regard to the Guidelines issued by the Australian Information Commissioner (the Guidelines).
3. The Guidelines state:

Documents containing material obtained in confidence (s 45)

5.139 Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure. (See the Explanatory Memorandum, Freedom of Information Bill 1992; Re Kamminga and Australian National University [1992] AATA 84; dissenting judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 [443].)

...

Breach of confidence

5.142 A breach of confidence is the failure of a recipient to keep information, which has been communicated in circumstances giving rise to the obligation of confidence, confidential. (Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41.) The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity. (Re Petroulias and Others and Commissioner of Taxation [2006] AATA 333.)

5.143 To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information:

1. it must be specifically identified
2. it must have the necessary quality of confidentiality
3. it must have been communicated and received on the basis of a mutual understanding of confidence
4. it must have been disclosed or threatened to be disclosed, without authority
5. unauthorised disclosure of the information has or will cause detriment. (Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 [443] referring to Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 32 ALR 485. For examples of the application of these criteria see Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11; 'B' and Department of Immigration and Citizenship [2013] AICmr 9; ACP Magazines Limited and IP Australia [2013] AICmr 20; Upper Dumaresq Action Group and Australian Competition and Consumer Commission [2013] AICmr 47; and 'AF' and Department of Immigration and Citizenship [2013] AICmr 54.)

1. Paragraphs 5.145 to 5.151 of the Guidelines expand on each of these criteria.
2. The Secretary bears the burden of proving that the decision made in relation to the requested documents was justified (s 61 of the FOI Act).

1. It will be recalled that Mr Nikjoo requested "... information and/or documents [containing] false adverse information which may or may not have been given to the [Department about me]". The original decision-maker did not determine whether as alleged the information contained in the documents was false but rather treated the request, correctly in my opinion, as a request for documents containing information given to the Department by Mr Nikjoo's former wife which objectively may be characterised as adverse to Mr Nikjoo.
2. On internal review the decision-maker identified the following documents as falling within the scope of Mr Nikjoo's request:

File note of a telephone conversation between DIAC staff and [Mr Nikjoo's former wife]

Letter and Statutory Declarations from third parties

Would disclosure of the documents found an action for breach of confidence?

1. I have inspected folios 48-50, 63, and 74-78 and am satisfied that each meets the five criteria listed at [32] above. I understand that this is agreed between the parties. The principal issue in dispute is whether, as Mr Nikjoo contends, the documents would not give rise to an action for breach of confidence because his former wife provided false information to the Department and, in so doing, committed a civil wrong or serious misdeed of public importance. In support Mr Nikjoo relies on the following passage from the Guidelines:

Unauthorised disclosure or threatened disclosure

...

5.152 For example, the agency may have told the person providing the information about the people to whom the agency would usually disclose such information. The law may require disclosure to third parties in the performance of an agency's functions, which will amount to authorised use and/or disclosure. Similarly, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group.

1. The iniquity principle or rule was described by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434 at 456:

That principle [the iniquity rule], in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of the iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in addressing such crime, wrong or misdeed.

1. The Secretary contends that the iniquity defence is ordinarily only available where disclosure is to a proper authority, citing in support B and Brisbane North Regional Health Authority [1994] QlCmr 1, at [130]:

If the defence is ordinarily only available to excuse a breach of confidence where disclosure is to a proper authority, there is little scope for its practical application to a contemplated disclosure to an applicant for access under the FOI Act. With some potential exceptions, the kinds of proper authority to whom a disclosure must be made in the public interest are government agencies such as the police, regulatory authorities, authorities concerned with public health or safety, and the like. The FOI Act is generally used by persons outside government to obtain access to documents in the possession of government agencies, so the contemplated disclosure will rarely, if ever, be to a "proper authority" (though there is no restriction in theory on a government agency using the FOI Act to obtain access to documents in the possession of another government agency subject to the FOI Act, such that, for instance, the prospect of the Queensland Police Service or the Criminal Justice Commission making an FOI application for access to documents held by a local authority is a permitted, if unlikely, use of the FOI legislation). Even in respect of Gummow J's preferred alternative approach to the treatment of crimes, civil wrongs or serious misdeeds of public importance, His Honour made it clear ... that equity would not enforce the confidence if "the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed".

1. For current purposes I will assume but not decide that as Mr Nikjoo suspects, some of the information contained in the requested documents was false and was relied upon by the Department in its decision to permit his former wife remain in Australia. As pointed out by the Secretary the "proper authority" in this case is the Department. It has been notified of Mr Nikjoo's concerns. What, if any, action should be taken, as a result of being appraised of those concerns, is a matter for the Department. The Department will be in no better position to investigate Mr Nikjoo's concerns if he were to be granted access to the requested documents.
2. I accept that as a citizen of Australia Mr Nikjoo has an interest in the integrity of the immigration system, however in my opinion he does not have a "real and direct interest" in redressing his former wife's alleged misdeed.
3. For these reasons I am not satisfied that the so-called iniquity principle or rule is available in this case. I am satisfied that the documents are exempt under s 45 of the FOI because their disclosure to Mr Nikjoo would found an action for breach of confidence.

Should access be refused under s 22 of the FOI Act?

1. The Secretary's delegate on internal review decided not to release the file note (folio 41) and the envelope addressed to the Department (folio 63) on the grounds that they contained irrelevant information and fell within s 22 of the FOI Act. In the decision of 18 February 2013 the Information Commissioner did not expressly address whether these documents should be released to Mr Nikjoo. Mr Nikjoo accepts that both documents are irrelevant to his request.
2. Section 22 enables an agency to delete irrelevant or exempt material from documents that fall within the scope of an FOI request. It sets out a procedure to be followed where the decision-maker concludes that it is possible to make a copy of a document "with such deletions [so] that the copy ... would not disclose ... information that would reasonably be regarded as irrelevant to that request". In my opinion if the entirety of a document could reasonably be regarded as irrelevant to an FOI request, s 22 has no application. I note that a different conclusion was reached on the application of s 22 (in relation to similar, but not identical, version of the provision) in Re Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395 (at [30]).
3. While I agree with the decision not to grant Mr Nikjoo access to the envelope and the file note, my decision is based on different grounds to those relied on by the Secretary.

1. I am satisfied that all but two of the documents identified by the Secretary as falling within the scope of Mr Nikjoo's request (the file note (folio 41) and the envelope addressed to the Department (folio 63)) are exempt documents by the operation of s 45 of the FOI Act.
2. I have decided that the preferable decision is to set aside the decision made by the Australian Information Commissioner on 18 February 2013 under s 55K of the Freedom of Information Act 1982 (Cth) and in substitution decide:
   • (a) Folios 41 and 63 fall outside the scope of documents the subject of Mr Nikjoo's FOI request to the Department made on 25 July 2011
   • (b) The balance of the decision made by the Australian Information Commissioner is affirmed.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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