Chu Sing Wun v The Minister for Immigration & Ethnic Affairs [1995] FCA 815

CATCHWORDS

PRACTICE AND PROCEDURE - public interest immunity - refusal of permanent visa - refusal based on confidential information - judicial review of decision refusing visa - previous refusal had also been the subject of judicial review - motion for production of documents in those previous proceedings was refused on grounds of public interest immunity - particulars of confidential information sought by way of interlocutory relief in the second proceedings - whether previous decision in respect of public interest immunity forecloses applicant from obtaining particulars - whether, regardless of any such foreclosure an order for particulars should be refused as a matter of discretion - motion for particulars dismissed.

Administrative Decisions (Judicial Review) Act 1973 (Cth) ss.5, 16

CHU SING WUN v. THE MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

No. WAG 115 of 1994

CARR J.

PERTH

13 OCTOBER 1995

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 115 of 1994

GENERAL DIVISION )

B E T W E E N : CHU SING WUN

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 13 OCTOBER 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The applicant have leave to re-amend his application in terms of the minute of proposed re-amended application filed on 18 September 1995. That minute is to stand as the re-amended application without the need to file and serve any further document.

2. The motion is otherwise dismissed.

3. The applicant is to pay the respondent's costs of the motion to be taxed if not agreed.

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

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 115 of 1994

GENERAL DIVISION )

B E T W E E N : CHU SING WUN

Applicant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 13 OCTOBER 1995

REASONS FOR JUDGMENT

Introduction

This is a motion on notice whereby the applicant Mr Chu Sing Wun seeks leave to re-amend his application under the Administrative Decisions (Judicial Review) Act 1973 (Cth) ("the ADJR Act") in terms of a minute which has been filed, and also seeks an order that the respondent "disclose to the applicant" certain particulars.

Factual Background

The applicant was born in China and is now resident in Hong Kong. His principal application is for judicial review of the respondent's decision made on 12 September 1994 to refuse his application for a permanent entry visa (Class 122).

In summary, the history of this matter [which I have taken largely from the reasons for
judgment of Beaumont J. in previous related proceedings: Chu Sing Wun v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 118 ALR 345 at p.346] is as follows:

1. In 1987, Mr Chu applied for permission to enter Australia under the Business Migration Program ("BMP"). That application was rejected because the applicant was said to have "failed to meet the character requirements for migrant entry".

2. On 31 October 1991, the applicant applied for a Class 122 visa under the BMP.

3. On 12 February 1992, that application was refused. By letter dated 19 February 1992, the applicant was informed of the decision to refuse his application "on the grounds that [he] does not satisfy the public interest criteria as specified [in the regulations]".

4. On 17 March 1992, the applicant instituted proceedings in this Court (No. WAG 31 of 1992) seeking judicial review of the decision made on 12 February 1992.

5. By letter dated 24 July 1992, the Australian Government Solicitor informed the solicitors for the applicant that the Minister consented to the decision then under review being set aside and "a fresh decision being made concerning your client's application for a resident visa ... I confirm also that my client offers to re-interview your client with a view to allowing him an opportunity to clarify certain information relating to this application."

6. In July 1992, the application in proceedings No. WAG 31 of 1992 was dismissed by consent.

7. On 27 August 1992 the applicant was interviewed in Hong Kong for the
purpose of re-considering his application for a Class 122 visa. Prior to this interview, the respondent's department submitted certain written questions to the applicant. At the interview, the applicant was informed that he was given seven days "in which to make a submission". By letter dated 28 August 1992, Business Migration Services Pty Ltd, acting on behalf of the applicant, informed the Australian Consulate-General in Hong Kong that the applicant would not be submitting further material. A decision on his application was requested.

8. By letter dated 30 October 1992, the Minister, by his delegate, informed Business Migration Services Pty Ltd that he had decided to refuse the application.

9. On 26 November 1992 the applicant filed a further application in this Court (No. WAG 195 of 1992) seeking judicial review of the decision made on 30 October 1992 ("the 1992 application").

10. The 1992 application was heard by Beaumont J. on 19 and 20 October 1993 and his Honour's reserved judgment was delivered on 22 October 1993. His Honour dealt with three of the applicant's grounds for judicial review, namely denial of natural justice, taking into account irrelevant considerations and error of law. His Honour found that there had not been a denial of natural justice and that the decision-maker had not taken into account irrelevant considerations. However, his Honour held that an error of law had been made which it appeared was likely to have influenced the decision-maker. It is not necessary for the purpose of these proceedings to describe the particular error of law. The matter was remitted to the respondent for determination according to law.

11. On 12 September 1994 the respondent once again refused Mr Chu's application on the ground that he did not meet the "good character" requirement of the Public Interest Criteria in the Migration Regulations, and declined to exercise his discretion to waive that requirement.

12. On 17 October 1994, Mr Chu filed an application in this Court for judicial review of that decision.

13. On 29 March 1995 Branson J. heard a motion, filed on behalf of the respondent in these proceedings, to strike out that application on the ground that it is an abuse of the process of the Court, has a tendency to cause prejudice, embarrassment or delay in the proceedings, is vexatious, discloses no reasonable basis for the application, and on the grounds of res judicata and issue estoppel. On 11 April 1995 Branson J. dismissed that motion.

The Application for Leave to Amend

The applicant submits that the amendments to the application for review are sought for the purposes of enabling the resolution of the real issues between the parties and that there will be no prejudice to the respondent if leave to amend is granted. The respondent does not object to the grant of leave to amend, but reserves the right to challenge the whole of or part of the proposed re-amended application on the grounds of abuse of process or issue estoppel.

Leave will be granted to re-amend the application in terms of the minute already filed. There will be an order dispensing with further filing and service of the re-amended application and the minute will stand as such re-amended application.

The Motion for Particulars

Each of the respondent's two respective decisions, dated 30 October 1992 (being the decision challenged in the 1992 application) and 20 September 1994 (being the decision challenged in these proceedings) was preceded by a departmental report and recommendation. In each of those departmental reports there was a paragraph numbered 6 which read as follows:

"6. Confidential information has been received from confidential sources on a number of occasions since 1985 which, on the basis of intelligence, indicates that:

. Mr Chu is well recorded by relevant authorities as an associate of known criminals, known Triads and convicted drug traffickers;

. Mr Chu is strongly implicated as being directly involved in criminal activity;

. in the view of the confidential and expert source it is likely that on the "balance of probabilities" Mr Chu is involved in organised criminal activity;

. unconfirmed intelligence indicates that the Silver Spring sauna has Triad involvement;

. the Chequers Health Centre in Sydney, of which Mr Chu is part owner, is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross section of the organised crime community in Sydney."

[The Silver Spring Sauna is a business in Hong Kong owned by Mr Chu].

Each departmental report also contained the following relevantly identical paragraphs, save that they were numbered differently. I shall use the numbering in the later report:

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

33. Balanced against Mr Chu's interests is the need to protect confidential sources of information on which Australian officers overseas rely in order to safeguard national law enforcement interests. To disclose to Mr Chu the detail of the adverse material could reveal the sources of that material and cause serious harm to those sources and to Australia's ability to rely on those sources in future. I suggest that, in the circumstances, a reasonable and sufficient degree of natural justice has been afforded to Mr Chu by putting to him and allowing him to address, on a number of occasions:

. his convictions from the 1960's and 1970's;

. the nature and operation of his sauna and bath house businesses and our concerns that these may be involved in prostitution and other illicit activities;

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

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

As part of the interlocutory proceedings in the 1992 application, the applicant filed a motion seeking orders that the respondent produce for inspection some 17 documents which contained material taken into account in making the decision challenged in that matter. It was common ground in those proceedings and at the hearing of this motion that those documents either comprised, recorded or related to the "confidential information" referred to in paragraph 6 of the two departmental reports. Public interest immunity had been claimed on the basis of two confidential affidavits (to
which the documents were annexed) which had been filed by the respondent. The first confidential affidavit apparently set forth the reasons for the claim to public interest immunity and annexed 16 documents. Public interest immunity was claimed in respect of the contents of the first confidential affidavit, those annexures and the identity of the deponent. The second confidential affidavit had annexed to it another document. Again, in the second confidential affidavit, a claim to public interest immunity was asserted by the respondent in respect not only of the contents of the two confidential affidavits and their respective annexures, but also in respect of the facts and grounds upon which the claim for public interest immunity was made, as fully set out in those affidavits. In the course of previous argument on the public interest immunity claim before Sweeney J, counsel for the respondent stated that the claim related to "law enforcement, national security, international relations and proper working of government". Counsel also said that:

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

French J. concluded his reasons for judgment in the following terms:

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

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

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

[It was common ground that French J. had inspected the confidential documents which were the subject of the public interest immunity claim].

There was no appeal against French J's judgment. In the present notice of motion, the applicant seeks an order:

"That within 14 days the Respondent disclose to the Applicant sufficient particulars of the alleged factual basis of the following allegations to afford him a fair and adequate opportunity to respond to them, namely that:-

(a) he is recorded by relevant authorities as an associate of known criminals, known triads and drug traffickers.

(b) he is "strongly" implicated as being directly involved in criminal activity.

(c) in the view of a confidential and expert source it is likely that on the balance of probabilities he is involved in organised criminal activity.

(d) unconfirmed intelligence indicates that the Silver Spring Sauna has triad involvement.

(e) the Chequers Health Club in Sydney is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross-section of the organised crime community in Sydney."

The Applicant's Contentions

The applicant says that he is seeking disclosure of the above particulars of the factual material or basis upon which the respondent's delegate relied because those matters were critical to the decision to reject his application for a visa. Further, so it is put, these matters are central to the grounds raised in the re-amended application and the applicant has always contended that such disclosure was and is essential to enable him properly to respond to the allegations.

The applicant submits that French J's ruling on the public interest immunity point was made in the context of the applicant's complaint in those proceedings that the fact that confidential information had been taken into account had not been made known to the applicant. It is said that the position now is quite different i.e. that fact is now known and what is complained of is failure to disclose the nature and/or content of the material sufficiently to enable the applicant properly to respond to it. Furthermore, the
applicant submits that French J's ruling was clearly contemplated by his Honour as being subject to any further direction by the trial judge. The application for production and inspection of documents was not further pursued before Beaumont J. who, so it is submitted, mentioned it in his reasons for judgment only in passing. The applicant contends that I should undertake a balancing exercise between the competing public interests (the public interest invoked in support of the immunity and the public interest in the open, proper and fair administration of justice) to decide not only whether a claim for public interest immunity should be upheld but if it should, then the extent of it. The proper approach, so it was submitted, is to examine the public interest in confidentiality and determine whether it is possible to protect that interest while simultaneously according to the applicant an opportunity properly to present his case.

In my view, the above submission is misconceived. It is misconceived because it ignores implicitly the difference between judicial review of administrative action and a review on the merits. The essence of the applicant's complaint is that in the absence of the particulars sought, he has not been afforded a fair and adequate opportunity to respond to the matters referred to in paragraph 6 of the departmental report dated 3 August 1994. However, in my view, the situation is that if there has been a failure to afford the applicant a fair and adequate opportunity so to respond and if those circumstances fall within one or more of the grounds contained in s.5 of the ADJR Act, then the applicant will be successful in his principal application.

I do not consider that the distinction which the applicant attempts to make between the present circumstances and the circumstances which were before French J. is a valid one. In each case, the question was and is, respectively, whether non-disclosure of the relevant detail to the applicant constituted a denial of natural justice. I accept that there are additional grounds in the present matter and I shall return to that aspect below. Nor do I read the paragraphs from French J's reasons for judgment, which I have set out above, in the same way in which the applicant says they should be read. In my view French J. clearly upheld the claim for public interest immunity in respect of the confidential material. What his Honour was referring to as being a matter for the trial judge was whether, in determining whether there had been a denial of natural justice, the trial judge would refer to the content of the confidential material.

Mr L.W. Roberts-Smith QC, senior counsel (with Mr A.J. Goldfinch) for the applicant, relied on the fact that the re-amended application was based on grounds which extended beyond denial of natural justice, although that ground was also relied upon. This submission would appear to have been made to counter the argument that if there had been a failure to afford the applicant a fair and adequate opportunity to respond to the contents of paragraph 6 of the departmental report, then the applicant would be successful in the principal application without the need for recourse to the contents or particulars of any documents containing the allegations. I was referred to grounds 1C and 6(e) of the re-amended application. Ground 1C reads as follows:

"The Applicant had a legitimate expectation that, to the extent full disclosure of information held by the Respondent may have revealed sources properly to be kept confidential, the Respondent would have afforded him a reasonable alternative means of addressing the accuracy, reliability and weight of the
relevant material, and responding to it, which legitimate expectation was denied by the Respondent's failure to afford any such alternative."

In my view this ground (although expressed as a legitimate expectation) simply restates the complaint of procedural unfairness. Ground 6(e) is in the following terms:

"The decision was an unreasonable exercise of power in that the Respondent arrived at it in a manner which was itself unreasonable, namely without making adequate inquiries of the Applicant about the matters the subject of the confidential information held by the Respondent."

Again, in the context of the applicant having been given a draft of the departmental report and at least two interviews, the expression "adequate inquiries" comes back to the same complaint of not putting to Mr Chu the contents or particulars of the documents in which the information summarised in paragraph 6 of the departmental report is contained.

Next, I was referred to the fact that in his re-amended application the applicant seeks relief which includes an order directing the respondent to grant the applicant's application for a permanent visa. It was submitted that because such an order was claimed, it was appropriate to direct the respondent to provide particulars of the factual basis of the allegations summarised in paragraph 6 of the departmental report. Although in an appropriate case, following judicial review, relief in the form of such an order may be granted, where the decision requires the formation of a belief or a residual discretion (both of which circumstances apply in this matter) usually, if not invariably, the order made is one which remits the matter for further consideration according to law: Minister for Immigration and Ethnic Affairs v. Conyngham (1986)
11 FCR 528 at pp.536 and 541 (Full Court); Li Shi Ping v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 (Full Court). In my view, the applicant is putting the cart before the horse. If the factual circumstances of the manner in which the administrative power has to date been exercised justify what is a fairly unusual order, then that is one matter. It is an entirely different matter, and in my opinion inappropriate, to use an application for an order of that type as the basis for an order for particulars of the information which was supplied in confidence to the respondent.

Mr Roberts-Smith QC referred me to the fact that reliance was placed in the re-amended application on alleged abuse of power. I have examined grounds 7(a) and (b) of the re-amended application and in my view those grounds, in essence, simply re-state the alleged effect of the applicant not having access to or particulars of the documents in which the confidential information is recorded and the opportunity to contest any factual matters contained in those documents. Next it was said to be necessary to have the particulars because the re-amended application includes the "no evidence" ground. Mr Roberts-Smith QC submitted that because the respondent drew my attention to the fact that that ground and a submission of relevant unreasonableness were abandoned before Beaumont J. due to the applicant not having access to the confidential information, this "effectively acknowledges" that provision of the particulars sought is necessary to determine those grounds. Further, so it was submitted, provision of these particulars will enable the Court properly to determine these two grounds. I do not accept those submissions. The transcript of the proceedings before Beaumont J. formed part of the evidence adduced at the hearing of
this motion. The transcript shows that counsel for the applicant foreshadowed a possible appeal (coupled with an application for leave to appeal out of time) against French J's decision upholding public interest immunity when addressing Beaumont J. It also shows that Beaumont J. gave counsel for the applicant the opportunity to tender the confidential documents without viewing them. Counsel declined that opportunity.

The various functions of particulars are summarised in Bullen & Leake and Jacob's Precedents of Pleadings (12 ed) pp.112-113 and reproduced in Australian High Court and Federal Court Practice Vol. 2 at p.60,741. In my view, in attempting to justify the request for particulars by reference to the "no evidence" and unreasonableness grounds, the applicant is seeking to obtain evidence for the purposes of proving his case at the trial of this application. Other authorities at the page referred to above confirm that particulars are not statements of material facts and that it is not the function of particulars to provide a party with facts upon which to found a defence. In my opinion, similar principles apply to the present circumstances and for those reasons I reject this particular basis for the motion. I have further reasons, outlined below, for taking that course.

The Respondent's Contentions

Those of the respondent's contentions to which it is necessary for me to refer, were, in summary, as follows:

. The motion proceeds on the assumption that the Federal Court will undertake a merit review rather than judicial review.

I think there is considerable substance in this submission. As shown above, the motion sets out virtually the full text of the allegations in paragraph 6 of the departmental report. When the applicant speaks, as he does in his motion, of "... sufficient particulars of the [following] allegations to afford him a fair and adequate opportunity to respond to them ..." he is using language more appropriate to the level at which the decision was made on the merits than the resolution of a question of judicial review.

. The applicant has not sought specific particulars but asks simply for "sufficient particulars".

Again, I consider that there is substance in this objection but, on its own, it would not, in my opinion be fatal to the motion. During the course of argument, I asked Mr Roberts-Smith QC to tell me what particulars his client sought. He (implicitly) declined to do so other than to refer me to a migration adviser's memorandum dated 26 October 1993 to the respondent's department [Exhibit AJG4 to Mr Goldfinch's affidavit of 18 August 1995]. That memorandum sought responses to the following:

". who are the known criminals, known Triads and convicted drug traffickers with whom Mr Chu is alleged to associate;

. what are the criminal activities in which Mr Chu is alleged to be directly involved;

. what is the organised criminal activity in which Mr Chu is alleged to be involved;

. Silver Spring sauna is claimed to have Triad involvement - what is meant by `Triad involvement'; and

. of the Chinese running Chequers Health Centre in Sydney, who is suspected of being involved in drugs, or are all shareholders/ directors and staff suspected."

Mr Roberts-Smith QC did not suggest that this list was exhaustive. However, the list
serves, in my opinion, to emphasise the point that if the respondent's delegate were a Court then it is a most reasonable request for further and better particulars. The reality is that events have moved beyond that. The question in the present proceedings is whether what took place in the decision-making process fell within one or other of the grounds contained in s.5(1) of the ADJR Act and thus warrant the making of an order of review. The request set out immediately above, and its refusal, may well form part of the matters to be considered at the hearing of this application, but that does not, in my view, require an interlocutory order that those particulars be supplied as part of these proceedings.

. This Court is (in the absence of any appeal from French J's judgment) bound by his Honour's decision that the material contained in the confidential documents is to be protected on the ground of public interest immunity.

This was variously put on the basis that it was an adjudication in rem or that the request for such particulars amounted to an abuse of process or was precluded on the principles of issue estoppel in the strict sense or in the extended sense in Henderson v. Henderson (1843) 3 Hare 167 E.R. 313 as adopted by the High Court in Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589 at p.598.

Mr S. Owen-Conway QC, senior counsel (with Mr S. Bhojani) for the respondent, submitted that it was open to French J. to have rejected the public interest immunity claim in respect of portions of the documents. The fact that his Honour did not order or direct that certain portions of the confidential material be made available to the applicant supported, so it was put, the view that no part of the confidential material
should be made available to him. This submission, so it would appear, was to counter the applicant's contention that there was room for a compromise whereby there should be some release of the particulars sought. The respondent says that the request assumes that some particulars can be given without breaching public interest immunity but without stating any facts or evidence upon which such an assumption is founded.

I do not consider that I have to rule on these matters, because I propose to deal with the motion as an exercise of discretion. In other words, I will assume, without deciding, that French J's ruling does not preclude the making of an order that particulars be provided. However, I do not think that such an assumption requires me to ignore his Honour's decision or precludes me from taking it into account in the exercise of my discretion. I have decided that the motion should be dismissed. First, I incorporate the various reasoning set out above in which I express my opinion pointing to that conclusion. Secondly I have regard to the manner in which this matter has been conducted to date. I accept that these are separate proceedings but all of the proceedings to date relate to the same application but with different decisions in respect of that application. Accordingly, I consider that if the applicant had in mind obtaining limited particulars as an alternative to production and inspection of documents containing the confidential information, then he should have made such an application when the matter was before French J. Thirdly, although this motion, framed as a request for particulars, may be technically different from an application for production and inspection of the documents, the essence of what the applicant isseeking is, in my view, too similar to warrant re-opening the question of public interest immunity. French J. undertook an inspection of the confidential documents and I am not prepared
to infer that his Honour, when balancing the two public interests, gave no consideration to the possibility that some limited particulars might have been formulated from those documents and provided to the applicant. Fourthly I refer to the manner in which the proceedings were conducted before Beaumont J. The transcript shows that at that hearing the respondent proposed that Beaumont J. look at the confidential material. Counsel who then appeared for the applicant opposed that course and submitted that the details contained in the confidential material "... would be only relevant to our no evidence case ...". It is quite clear from counsel's remarks (at p.98 of the transcript) that he withdrew the "no evidence" and relevant unreasonableness claims because he had been denied access to the confidential documentation. As a result, counsel for the respondent submitted that it was not necessary for Beaumont J. to read the confidential material. In my view, this militates against exercising a discretion in favour of an applicant who now asks another judge to read the confidential material and work out a set of particulars which the applicant speculates may result in a compromise which will reconcile the competing public interests. Furthermore, conscious of Branson J's earlier judgment in this matter and without in any manner anticipating the outcome of the eventual hearing, I have had regard to Beaumont J's judgment. I have done so as part of the process of assessing whether in the present proceedings it would be unfair and thus unjust to deny the applicant the particulars which he seeks for the proper prosecution of these proceedings. I refer to the following paragraph in the reasons for judgment of Beaumont J. (at p.351):

"In my opinion, the foregoing material, taken as a whole, afforded the applicant an adequate opportunity to deal with the matters mentioned in para 6 of the departmental report. In my view, this material fairly put
the applicant on notice that the respondent was giving consideration to the question whether he should form a belief as to the character of the applicant, by virtue of the information received by the respondent, to the effect that the applicant was involved in criminal activity and associated with organised crime, as stated in para 6 of the report. Not only was the applicant put on notice of these matters, but he was also invited to respond to the adverse suggestions put to him. In these circumstances, the whole process was, I think, procedurally fair."

Finally, I shall move away from matters of discretion of the above type and give some brief consideration to the matter of the public interest immunity claim. I consider that the claim for public interest immunity should be upheld. I do not think that it is appropriate for me to call for the confidential documents. The claim was supported before French J. by an affidavit sworn by the Secretary of the respondent's department. That affidavit disclosed that the Minister personally had read the confidential documents and had issued instructions to object, on public interest privilege grounds, to the production of those documents. That is not a conclusive factor but it is entitled to particular weight. French J. has inspected the confidential documents and his Honour came to the conclusion which I have described above. Like French J, I consider that the interests to be protected by the claim for public interest immunity in respect of the particulars sought in this motion outweigh the applicant's interest in obtaining access to the confidential material, albeit this time by way of particulars rather than by production and inspection of documents.

There is reference in the departmental report to the need to protect confidential sources of information on which Australian officers overseas rely in order to safeguard national law enforcement interests. In my view, the protection of those interests outweighs the applicant's interest in obtaining particulars of the alleged factual basis of the allegations
made.

For the above reasons the motion will be dismissed.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Date: 13 October, 1995

Counsel for the Applicant: Mr L.W. Roberts-Smith QC,

with Mr A.J. Goldfinch

Solicitors for the Applicant: Finlay Phillips

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

Mr S. Bhojani

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 10 October 1995

Date of Judgment: 13 October 1995

Top