FEDERAL COURT OF AUSTRALIA

FUD18 v Minister for Home Affairs [2019] FCA 1858

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 30 September 2019 be dismissed.

2.    The applicant pay the respondent’s costs of the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    On 23 September 2019 the solicitors for the respondent, the Minister for Home Affairs, served a Notice to Produce on the applicant (FUD18) pursuant to r 30.28 of the Federal Court Rules 2011 (Cth). By an interlocutory application filed on 30 September 2019, the applicant seeks an order setting aside the Notice to Produce.

Background

2    The applicant is a Vietnamese citizen. He first travelled to Australia with his wife and two daughters in around September 2000, when his wife was granted permanent residence. The applicant’s wife and two daughters were granted Australian citizenship on 22 September 2004. Although his wife and two daughters then lived in Australia, the applicant spent the majority of his time in Vietnam where he was a senior executive in a large State-owned corporation. He did not become an Australian citizen.

3    The applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) Visa on 24 August 2010 and was granted a Bridging A visa on the basis of that application.

4    On 18 February 2011, the Investigative Security Agency of Vietnam issued an arrest warrant for the applicant. An Interpol Red Notice (IRN) was published in relation to the applicant on 11 March 2011.

5    On 20 April 2011, the applicant lodged an application for a Return (Residence) (Class BB) Five Year Resident Return (subclass 155) visa (subclass 155 visa). This application was made on the basis that it was a “more logical application to make given [the applicant’s] prior permanent residence status”.

6    Over seven years later, on 25 June 2018, a delegate of the Minister notified the applicant of his decision to refuse the application for the grant of the following visas:

(1)    Partner (Temporary) (Class UK) (Subclass 820) visa; and

(2)    Partner (Residence) (Class BS) (Subclass 801) visa.

7    On 28 June 2018, a delegate of the Minister wrote to the applicant advising him that the Minister intended to consider refusing to grant the subclass 155 visa under s 501(1) of the Migration Act 1958 (Cth) on the basis that (First Notice):

[t]he Department of Home Affairs holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s 501(6)(h) of the Migration Act.

8    On 27 July 2018, a delegate of the Minister wrote to the applicant to “re-issue” the First Notice and provide further or updated information. In the Second Notice, the Minister stated:

The Department of Home Affairs holds information received by the Australian Federal Police and Interpol that you are subject to an active Interpol Red Notice (IRN) which remains in effect. This is the same IRN referred to in the Internet media articles listed below (see enclosures). Please note that not all IRNs are approved for public dissemination and thus the relevant IRN in this case does not appear on the Interpol website.

On the basis of the active IRN, you may not pass the character test by virtue of s501(6)(h) of the Migration Act.

9    The Second Notice also advised the applicant that, although the Department could disclose the existence of an Interpol Red Notice (IRN), its content was protected from disclosure under s 503A of the Act. The Second Notice therefore invited the applicant to comment on any factors he believed to be relevant to whether he would pass the character test.

10    On 14 September 2018, after further correspondence with the applicant’s solicitor, the Department confirmed that permission had been granted to disclose the contents of the IRN in full. A copy of the IRN was provided to the applicant.

THE PRINCIPAL PROCEEDINGS

11    By way of an originating application filed on 17 September 2018, the applicant sought interlocutory and declaratory relief under s 476A of the Act, with respect to the Second Notice and his application for a subclass 155 visa. The originating application was subsequently amended.

12    The applicant sought, amongst other matters, an order restraining the Minister from refusing the visa application on the basis of the Second Notice and a declaration that it was not reasonable to infer from the IRN that the applicant would present a risk to the Australian community or a segment of it. He also sought a writ of mandamus requiring the Minister to make a decision on the visa application.

13    The grounds of the amended originating application as they presently stand are as follows:

1.    Any decision to refuse the Visa Application [on the basis of the Second Notice] would involve an error of law constituting a jurisdictional error.

Particulars

a.    The Notice was based only on one ground, being s 501(6)(h) of the Migration Act 1958 (“the Act”) which requires the existence of two elements, being:

    i.    An Interpol notice is in force in relation to the Applicant; and

    ii.    [struck out]

iii.    It is reasonable to infer from the Interpol notice that the Applicant would present a risk to the Australian community or a segment of that community.

b.    An Interpol Red Notice in relation to the Applicant file number 2011/13450 (IRN) was published on 11 March 2011.

c.    Any inference from the IRN that the Applicant would present a risk to the Australian community or a segment of that community would be unreasonable.

2.    Any decision to refuse the Visa Application on the basis of the Notice would be legally unreasonable.

Particulars

   a.    The Applicant repeats the particulars from Ground 1.

b.    In addition, the Applicant returned to Australia in 2010, the matters alleged in the Notice were known to the Respondent from at least September 2011 and no action was taken by the Respondent prior to proceedings being commenced in the Federal Circuit [Court] of Australia on 29 May 2018 seeking an Order for Mandamus for the unreasonable delay in processing that application (see SYG 1506/2018).

3.    Any decision to refuse the Visa Application on the basis that the Applicant did not meet the requirements of Public Interest Criterion 4003 as prescribed by the Migration Regulations 1994 would involve the taking into account of a mandatorily irrelevant consideration.

Particulars

a.    Compliance with PIC 4003 by the Applicant for a Return (Residents) (Class BB) Five Year Resident Return (Sub-Class 155) Visa was not a criterion for the grant of such a visa.

4.    The Respondent has refused, or in the alternative unreasonably delayed, making a decision on the Visa Application when he has a duty pursuant to ss 47 and 65 of the Migration Act 1958 to consider the Visa Application and make a decision on it.

Particulars

   a.    The Visa Application was made on 20 April 2011.

b.    Between April 2011 and June 2018 the Visa Application was sporadically considered by officers of the Respondent’s Department who formed opinions that:

i.    the Applicant met the requirements for the Visa Application to be granted; and

ii.    there was nothing which disqualified the Applicant from having the Visa Application granted.

c.    On 29 May 2018 the Applicant commenced proceedings in the Federal Circuit Court in relation to the unreasonable delay in the processing of the Visa Application.

d.    The Respondent procured the dismissal of the Federal Circuit Court proceedings on the basis that his Department had issued a Notice of Intention to Consider Refusal of the Applicant’s Sub-Class 155 Resident Return Visa application under s 501 of the Migration Act 1958 (First Notice) on 28 June 2018.

e.    On 27 July 2018 the Respondent’s Department withdrew the First Notice and issued the Notice.

f.    On 27 June 2018 the Department referred the Visa Application to the Department of Foreign Affairs and Trade for assessment of compliance with Public Interest Criteria 4003(a).

14    The matter was listed for hearing on 9 April 2019. During the course of the hearing, and from the evidence adduced, it became clear that the applicant was proposing to challenge the IRN and to seek to have it “deleted” by Interpol. It also became clear that the Minister was content not to make a decision whether to refuse the visa application having regard to s 501(6)(h) until after the applicant’s application to have the IRN deleted had been decided by Interpol. The proceedings were accordingly adjourned by consent on 9 April 2019. It was then anticipated that the process would be complete by January 2020.

15    A notation to the orders made on 9 April 2019 read as follows:

THE COURT NOTES that the respondent has by his submissions stated that he is prepared not to decide whether to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) pending the outcome of the applicant’s application to Interpol (see p 266 of the affidavit of David Prince filed on 24 August 2018), noting that the applicant’s solicitor anticipates that the application will be resolved by the end of January 2020 and assuming that the applicant’s solicitor would keep the respondent informed of the progress and resolution of that application.

16    It was common ground that Interpol deliberated on and finalised the applicant’s request for deletion of the IRN on 3 July 2019. It was common ground that the IRN is still in force.

legislative CONTEXT

17    Section 65 of the Act provides as follows (notes omitted):

65 Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

    (i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of the same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

18    It follows from the terms of s 65(1)(a)(iii) that the applicant cannot be granted a visa unless the Minister is satisfied that the grant of the visa “is not prevented [among other things] by s 501” of the Act. As mentioned, the Second Notice invited submissions from the applicant in relation to s 501(6)(h).

19    Sections 501(1) and 501(6)(h) provide:

501  Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:          Character test is defined by subsection (6).

…

Character test

(6)      For the purposes of this section, a person does not pass the character test if:

…

(h)      an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

The Notice to Produce

20    After being informed that the request made by the applicant to Interpol had been completed, the Minister sought certain documents from the solicitors for the applicant, including Interpol’s response to the applicant’s application for the IRN to be deleted. Informal production was not made and the Minister issued a Notice to Produce dated 23 September 2019 requiring the applicant to produce the following:

1.    A copy of the application to the Commission for the Control of INTERPOL’s files (Commission) to access documents relating to the applicant’s INTERPOL Red notice (the ‘Request for Access’ referred to at page 266 of the David Prince’s affidavit filed on 24 August 2018), and

2.    Any and all correspondence to and from the Commission in relation to the Request for Access including, but not limited to, the Commission’s decision on the Request for access, and

3.    A copy of the application to INTERPOL to delete the Red Notice in respect of the applicant (the ‘Complaint’ referred to at page 266 of the David Prince’s affidavit filed on 24 August 2018), and

4.    Any and all correspondence to and from INTERPOL in relation to the Complaint including, but not limited to, INTERPOL’s decision on the Complaint.

21    The document identified by the third category is no longer sought, the parties agreeing that a copy of that document is already in the Minister’s possession

Relevant Principles

22    Rule 30.28 of the Rules provides:

30.28    Notice to produce

(1)    A party may serve on another party a notice, in accordance with Form 61, requiring the party served to produce any document or thing in the party’s control:

   (a)    at any trial or hearing in the proceeding; or

(b)    at any hearing before a Registrar or any examiner or other person having authority to take evidence in the proceeding.

(2)    If the document or thing required to be produced under subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing.

(3)    If a notice under subrule (1) specifies a date for production, and is served 5 days or more before that date, the party served with the notice must produce the document or thing in accordance with the notice, without the need for a subpoena for production.

Note:    A party who fails to comply with a notice under subrule (1) may be liable to pay any costs incurred because of the failure.

23    A Notice to Produce served pursuant to r 30.28 has the same coercive effect as a subpoena to produce documents. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6], Collier J set out the following six principles relevant to the validity of a Notice to Produce served under r 30.28:

(1)    The party which has issued a Notice to Produce bears the onus of establishing that the documents the subject of the Notice are sufficiently relevant to justify production (Seven Network Ltd v News Ltd (No 11) at [6], Cheung at [55]).

(2)    Timing of the issue and service of a Notice to Produce is a relevant factor in respect of any application to set aside the Notice.

(3)    A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery.

(4)    It is necessary that the material sought has an apparent relevance to the issues in the principal proceedings. The test of apparent relevance in this context is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. (Seven Network (No 11) at [6], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [14]).

(5)    A Notice to Produce cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case.

(6)    A Notice to Produce may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity (Tony Azzi Automobiles Pty Ltd v Volvo [2006] NSWSC 283 at [20], Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31).

24    The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence. The question has been framed as whether the documents sought are of “apparent relevance to the issues” in the proceedings – see: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385. It has been framed as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” – see: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 (Waddell J). The concept of “apparent relevance” was explained by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103 as involving the question whether the material “could possibly throw light on the issues in the main case”.

25    In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ concluded that “a subpoena had a legitimate forensic purpose if it [appeared] to be ‘on the cards’ that the documents [would] materially assist the defence” in a criminal proceeding.

The Application

26    The applicant sought to set aside:

(1)    paragraphs 1, 2 and 4 of the Notice to Produce on the grounds that the Minister had not demonstrated that the documents were sufficiently relevant to justify production; and

(2)    paragraph 4 of the Notice to Produce on the basis of public interest immunity.

Relevance

27    The applicant’s position was that the only relevant issue of fact in the proceedings was whether it would be unreasonable for the Minister to draw an inference from the IRN that the applicant would present a risk to the Australian community or a segment of that community.

28    The applicant submitted that paragraphs 1, 2 and 4 of the Notice to Produce sought access to documents that were “necessarily irrelevant” to this (or any) issue. This submission was based on the proposition that the Minister could not look at any information outside of the IRN when considering the application of s 501(6)(h). The applicant submitted that the inferences available to be drawn “from” the IRN are to be determined by reference only to the IRN and without recourse to any other facts or documentation.

29    The Minister submitted that he could have regard to other evidence or material in determining what could reasonably be inferred from the IRN. There was not necessarily a stark dividing line between the IRN and surrounding context. To answer the question whether it would be reasonable to infer “from” the IRN that the applicant would present a risk to the Australian community or a segment of it, the IRN could be examined in context, including with reference to documents relating to the IRN. It was reasonably likely, the Minister submitted, that the documents sought under the Notice to Produce would provide such context. It was not in dispute, for example, that Interpol’s decision would comprise a statement of reasons, containing (amongst other matters) a summary of the proceedings, the submissions of the parties and a statement of the facts – see Article 38 of the Statute of the Commission for the Control of Interpol’s Files, which reads:

Article 38: Nature and content of decisions

(1)    The decisions of the Requests Chamber shall be final and binding on the Organization and the applicant.

(2)    Decisions shall be given in writing in one of the Organization’s working languages. They shall be reasoned and shall contain, inter alia, a summary of the proceedings, the submissions of the parties, a statement of the facts, the application of INTERPOL’s rules, an analysis of legal arguments, and operative parts.

(3)    Decisions shall be provided to the applicant and the source of the data, subject to confidentiality requirements and restrictions and in accordance with Article 41 of the present Statute.

30    The applicant submitted:

[Interpol’s decision] will be a mixture of hearsay representations as to facts and almost certainly second, third or fourth hand hearsay and expressions of opinion of persons whose expertise the [Minister] has not sought to establish. It will be wholly inadmissible to prove any of what is stated in it. Consequently it could not inform the Court’s assessment of the reasonableness of an inference to be drawn from the Interpol Notice.

31    The Court is not concerned, at this point, with whether the documents are in fact admissible or are likely to be admissible. More specifically, the question at this point is not whether the documents will ultimately be admissible to prove the truth of the facts stated within them or whether the documents contain hearsay. Indeed, they may not be tendered for the purpose of proving the truth of the facts contained within them. For example, they may be tendered to provide some explanation of the meaning to be attributed to the IRN or to show what material was before the Minister relating to the decision-making process.

32    The applicant submitted that the documents could not be relevant because, if his construction of s 501(6)(h) were correct, then he must win no matter what the content of the documents. He submitted that, if his construction of s 501(6)(h) were incorrect, he must lose no matter what the content of the documents. The Minister did not concede that the former proposition was correct. The second proposition was said by the applicant to flow from the fact that a future decision could not be said to be necessarily unreasonable if the Minister could take into account material outside of the IRN because the applicant would not be able to establish the content of the material which would be before the decision-maker at the time the decision came to be made.

33    It seems to me that the appropriate course is to determine the questions of:

(a)    the correct construction of s 501(6)(h) and whether certain material can or cannot be used in drawing a conclusion from the IRN; and

(b)    whether the declaration sought should be made

on the basis of all of the evidence each party wishes to adduce on the issue, rather than in the abstract.

34    In my view, the documents sought are of “apparent relevance to the issues” in the proceedings (Waind); they are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” (Spencer Motors); they “could possibly throw light on the issues in the main case” (Arnotts); and they are sought for a legitimate forensic purpose in that it is “on the cards” that the documents sought would materially assist the Minister’s case (Alister).

35    Further, even if the applicant’s first proposition is correct (see [32] above), it does not necessarily follow that the material sought under the Notice to Produce has not been shown to have apparent relevance. The applicant seeks, amongst other matters, an order restraining the Minister from refusing the visa application on the basis of the Second Notice and a declaration that it is not reasonable to infer from the IRN that the application would present a risk to the Australian community or a segment of it. He also seeks a writ of mandamus requiring the Minister to make a decision under s 65 on the visa application. Quite apart from the apparent relevance of the documents to the issue thrown up by s 501(6)(h), it is reasonably likely that the documents will be relevant to whether relief should be granted, and if so, what relief.

36    For those reasons, I am satisfied that the material sought under the Notice to Produce is both relevant and sought for a legitimate forensic purpose.

37    The Minister also submitted that the state of satisfaction under s 501(6)(h) includes that the IRN is “in force” at the time of the making of the relevant decision, and that the documents the subject of the Notice to Produce would assist the Minister in reaching a state of satisfaction in that regard. However, it was conceded by the applicant that the IRN is presently “in force”. Whether or not the IRN is in force when a decision is ultimately made is not presently an issue in the proceedings and therefore evidence which indicates that it was in force as at the date of the documents captured by the Notice to Produce is unlikely to be relevant in these proceedings. If the question of whether the IRN is “in force” later becomes an issue in the proceedings, then the documents sought are not reasonably likely to assist in relation to that question given that the documents sought necessarily pre-date the time when the issue would arise.

38    In addition, the Minister submitted that the applicant had previously undertaken to provide documents captured by the Notice to Produce. That submission was based on the notation recorded in the orders made on 9 April 2019. In my view, the Minister’s submission in that regard sought to make too much of the notation and, in particular, sought to make too much of the words “the applicant’s solicitor would keep the respondent informed of the progress and resolution” of the application to Interpol. I am comfortably satisfied that the applicant’s solicitor did keep the Minister informed of the “progress” and “resolution” of the application.

Public Interest Immunity

39    The applicant only advanced the claim of public interest immunity in relation to paragraph 4 of the Notice to Produce.

40    The applicant noted that Interpol was an international organisation established pursuant to a Constitution which was adopted by its General Assembly at its 25th session in Vienna in 1956. Australia was a State party to the adoption of that Constitution.

41    Article 5 of the Constitution provides for various organs by which Interpol operates, including the Commission for the Control of Files (Commission). It provides:

The International Criminal Police Organization – INTERPOL shall comprise:

•    The General Assembly

•    The Executive Committee

•    The General Secretariat

•    The National Central Bureaus

•    The Advisers

•    The Commission for the Control of Files

42    Articles 36 and 37 provide for the operation of the Commission:

THE COMMISSION FOR THE CONTROL OF FILES

Article 36

The Commission for the Control of Files is an independent body which shall ensure that the processing of personal information by the Organization is in compliance with the regulations the Organization establishes in this matter.

The Commission for the Control of Files shall provide the Organization with advice about any project, operation, set of rules or other matter involving the processing of personal information.

The Commission for the Control of Files shall process requests concerning the information contained in the Organization’s files.

Article 37

The members of the Commission for the Control of Files shall possess the expertise required for it to accomplish its functions. Its composition and its functioning shall be subject to specific rules to be laid down by the General Assembly.

43    Interpol conducts its relationships with member States through National Central Bureaus as contemplated by Article 5 and Articles 31 and 32:

NATIONAL CENTRAL BUREAUS

Article 31

In order to further its aims, the Organization needs the constant and active co-operation of its Members, who should do all within their power which is compatible with the legislations of their countries to participate diligently in its activities.

Article 32

In order to ensure the above cooperation, each country shall appoint a body which will serve as the National Central Bureau. It shall ensure liaison with:

(a)    The various departments in the country;

(b)    Those bodies in other countries serving as National Central Bureaus;

(c)    The Organization’s General Secretariat.

44    The applicant referred to two sets of regulations that Interpol had established concerning the processing of personal information:

(1)    Interpol’s Rules on the Processing of Data (RPD); and

(2)    Statute of the Commission for the Control of Interpol’s Files (Statute).

45    Article 6 of the RPD provides for each member State’s National Central Bureau to have direct access to the Interpol information systems. It provides:

Article 6: Access to the INTERPOL Information System

(1)    National Central Bureaus are entitled to direct access to the System in the performance of their functions pursuant to the Constitution. This access shall include:

(a)    the recording, updating, and deletion of data directly in the Organization’s police databases, as well as the creation of links between data;

(b)    direct consultation of the Organization’s police databases, subject to specific conditions determined for each database and to restrictions and confidentiality rules laid down by their sources;

(c)    use of lNTERPOL’s notices and diffusions allowing the transmission of requests for cooperation and international alerts;

(d)    following up on positive query results;

(e)    transmission of messages.

(2)    Access by national entities and international entities to the INTERPOL Information System is subject to authorization, and to the conditions provided for in Articles 21 and 27, respectively, of the present Rules.

46    Article 21 of the RPD contemplates that National Central Bureaus can authorise institutions of their countries to access the Interpol information system, and determine the extent of their access and processing rights. That article includes:

Article 21: Granting authorizations to directly access the INTERPOL Information System at the national level

(1)    The National Central Bureaus alone shall be entitled to authorize the institutions of their countries to access the INTERPOL Information System and determine the extent of their access and processing rights. The National Central Bureaus shall take, to the extent possible, all the necessary measures to allow the criminal investigation authorities involved in international police cooperation in their countries to have access to the INTERPOL Information System.

(2)    Prior to granting authorizations for direct access, the National Central Bureaus must ensure that:

(a)    the institution to which it intends to grant direct access to the INTERPOL Information System is an entity legally authorized to fulfil the role of a public institution in enforcing the criminal law;

(b)    the nature of the activities and tasks of this institution do not violate the aims or the neutrality of the Organization;

   (c)    the national laws do not prohibit such access by this institution;

   (d)    the institution will be able to observe the present Rules;

(e)    the access and processing rights it intends to grant are directly connected with the activities and tasks of this institution.

47    Article 18 of the RPD is concerned with rights of access, correction and deletion of data. It includes:

Article 18: Rights of access, correction and deletion of data

(1)    Any person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL’s Files a request for access to, or correction and/or deletion of data processed in the INTERPOL Information System concerning that person or entity.

(2)    These rights of access to, or correction and deletion of data shall be guaranteed by the Commission for the Control of INTERPOL’s Files and be governed by separate rules. Unless otherwise specified in those rules, requests for access to, or correction and/or deletion of data may not be processed in the INTERPOL Information System.

48    The Commission has authority to make binding decisions on requests for correction and deletion of data processed in the Interpol information system: Article 3 of the Statute. The Commission has two chambers: a “Supervisory and Advisory Chamber” and a “Requests Chamber”: Article 6(1) of the Statute. The function of making final and binding determinations on requests for correction or deletion of data is performed by the Requests Chamber: Article 6 and 3(1)(c) of the Statute. Sessions of the Commission, including the Requests Chamber, occur in camera, generally only with members of the Commission and its Secretariat in attendance: Article 16 of the Statute.

49    Article 20 of the Statute provides for confidentiality of the Commission’s files and requests to the Commission. Article 21 of the Statute provides for consultation by the Commission with General Secretariat, sources of data or other entities with access to the Interpol Information System. Chapter 4 of the Statute deals with the Requests Chamber. Sub-Chapter 1 deals with the institution of proceedings to access, correct and delete data held by the Commission. Communication after the submission of a request is dealt with in Article 31 of the Statute. Article 32 provides that the Requests Chamber shall examine the admissibility of each request.

50    Sub-Chapter 2 is entitled “Procedure after a request has been declared admissible”. It comprises Articles 33 to 37. Article 33 deals with the scope of the Requests Chamber’s examination of requests. Article 34 permits consultation, including in accordance with Article 21.

51    The applicant’s public interest immunity claim centred on Article 35(3) of the Statute. It is necessary to set out the whole of the Article:

Article 35: Communication of information

(1)    Information connected with a request shall be accessible to the applicant and the source of the data, subject to the restrictions, conditions and procedures set out in this article.

(2)    Prior to disclosing information, the Requests Chamber shall consult the owner of that information, namely the applicant or source of the data.

(3)    The communication of information may be restricted at the decision of the Requests Chamber, on its own initiative or at the request of the source of data, the General Secretariat or the applicant, for one or more of the following reasons:

   (a)    To protect public or national security or to prevent crime;

   (b)    To protect the confidentiality of an investigation or prosecution;

   (c)    To protect the rights and freedoms of the applicant or third parties;

(d)    To enable the Commission or the Organization to properly discharge their duties.

(4)    Any restriction on the disclosure of information must be justified and must specify whether some information, such as summaries, may be provided. The absence of justification alone will not lead to the disclosure of the content of the information but may be taken into consideration by the Requests Chamber in assessing and deciding on a request.

(5)    Where deemed appropriate, and provided that this does not compromise the confidentiality of the case, the Requests Chamber may direct the applicant to contact the competent authorities of the source(s) of data.

52    The applicant submitted that Article 35 (read in the context of the whole of the legal framework under which Interpol operates) was to be construed as preventing communication of any information connected with a request and that, in seeking production under the Notice to Produce, the Minister would breach or cause a breach of Article 35. Based on that proposition, the applicant then submitted that Australia would damage its international relations in seeking production under the Notice to Produce. That submission is rejected.

53    As mentioned, Article 35 is also found in “Sub-Chapter 2: Procedure after a request has been declared admissible”. Article 35(1) provides that information connected with a request shall be accessible to the applicant and the source of the data, subject to any restrictions set out in Article 35.

54    Article 35(3) provides for the restriction which the terms of Article 35(1) anticipated. Article 35(3) provides that the communication of information may be restricted at the request of the applicant, or the source of the data, or the General Secretariat, or by the Requests Chamber of its own initiative for one or more of the limited reasons identified in paragraphs (a) to (d). Article 35(3) does not contain a general prohibition on the communication of information connected with a request. It permits a restriction of communication to those who would be otherwise entitled to access under Article 35(1), namely the applicant and the source of the data.

55    Article 35(3) does not touch upon whether a litigant in Australia, including the Minister, might use ordinary domestic processes to obtain documents from a person under compulsion.

56    In any event, even if the applicant’s construction were correct, there was no evidence that there was a restriction made under Article 35(3) at any person’s request or by the Requests Chamber of its own motion.

57    The applicant submitted that it would be injurious to the public interest to require production because it would cause “damage to international relations”. The applicant submitted (footnotes omitted):

43.    An effect of allowing the Notice to stand is to deny to individuals and entities of foreign States protections afforded to them by the Interpol regulatory framework and thereby restrict their ability to participate freely and confidentially in Interpol processes.

44.    To compromise Interpol’s ability to give individual’s [sic] affected by its processing of data the entitlement to challenge that processing confidentially through an independent quasi-judicial Commmision [sic] damages a foundational element of Interpol’s architecture. As the Constitution shows, the functioning of the independent Commission is an important support for the integrity, and international confidence in the integrity, of the Interpol system.

45.    Another effect of allowing the Notice to stand will be to give to the Court and the respondent, each being an organ of the Australian state, access to information to which they are not entitled under the rules, other than with the prior consent of Vietnam.

46.    Further, if the Court were to require production of the documents it would, as an organ of the Australian State, be requiring the production of Interpol data for a purpose wholly unrelated to the enforcement of the criminal law and would be doing so outside the Interpol regulatory framework which depends upon the supervision and accountability by the Australian National Central Bureau for all access to and use of Interpol data by Australian governmental entities.

47.    In each of those ways the Court would cut across Australia’s commitments and obligations pursuant to the Interpol Constitution, rules and Statute. Those commitments and obligations are owed primarily to other member States and to Interpol as an international organization; and are owed for the benefit of state parties and the individuals affected by Interpol’s processing of data. By cutting across those commitments and obligations the Court would damage Australia’s international relations.

58    In S v Boulton (2006) 151 FCR 364 at [160] to [161], Jacobson J observed:

[160]    Public interest immunity is not a residual category of privilege in which courts can limit access to information upon the basis of weighing the public interest in disclosure against any competing factor that can be described as public interest; R v Young [(1999) 46 NSWLR 681] at [55].

[161]    In R v Young, Spigelman CJ at [55]-[56] clearly explained that D v National Society [(1978) AC 171] is not to be seen as a charter for the unlimited creation of new classes of public interest immunity. It is only where new classes of documents emerge that are important to the working of government that the categories may be extended.

59    In Sankey v Whitlam (1978) 142 CLR 1 at 38, Gibbs ACJ referred to Lord Reid in Conway v Rimmer [1968] AC 910 at 940, who had stated that “[t]here is a public interest that harm shall not be done to the nation or the public service by disclosure of certain documents”. Acting Chief Justice Gibbs went on to say at 39 (footnotes omitted):

An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. In the present case no suggestion has been made that the contents of any particular documents are such that their disclosure would harm the national interest. The claim is to withhold the documents because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments (Conway v. Rimmer; Reg. v. Lewes Justices; Ex parte Home Secretary; Australian National Airlines Commission v. The Commonwealth), papers brought into existence for the purpose of preparing a submission to cabinet (Lanyon Pty. Ltd. v. The Commonwealth), and indeed any documents which relate to the framing of government policy at a high level (cf. In re Grosvenor Hotel, London [No. 2]). According to Lord Reid, the class would extend to “all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies”: Conway v Rimmer.

60    There is no direct evidence that Australia’s interests would be adversely affected by requiring production of the documents sought under the Notice to Produce. There was no evidence to suggest that production would damage Australia’s relations with Vietnam or Interpol or otherwise. There was no evidence of any opposition to production by any person apart from the applicant. The mere fact that Australia might not have been able to gain access to the documents directly from Interpol is not sufficient to draw the conclusion that access to the documents in Court proceedings using compulsory processes would cause damage to Australia’s interests. It is an ordinary feature of litigation that the parties can, through the use of Court procedures, obtain access to material which they otherwise would not have been able to access. I do not accept that requiring production of the documents would cause a breach of Article 35 of the Statute, or of Australia’s obligations more generally.

61    Also telling against the claim for public interest immunity is Article 44 of the Statute, which provides:

Article 44: Publication of decisions, recommendations and opinions

Subject to the confidentiality requirements, restrictions and other conditions set forth in the present Statute, the Commission shall endeavour to make its decisions, opinions, recommendations and reports public in all working languages of the Organization.

62    The claim for public interest immunity is rejected.

Conclusion

63    The interlocutory application must be dismissed with costs.

Associate:

Dated:    11 November 2019