FEDERAL COURT OF AUSTRALIA Pangilinan v Secretary of the Department of Immigration and Border Protection [2014] FCA 740 Citation: Pangilinan v Secretary of the Department of Immigration and Border Protection [2014] FCA 740 Appeal from: Pangilinan v Secretary of the Department of Immigration [2014] FCCA 294 Parties: MARTINIAO PANGILINAN v SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION File number: NSD 214 of 2014 Judge: RARES J Date of judgment: 27 May 2014 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Federal Court Rules 2011 (Cth) Freedom of Information Act 1982 (Cth) Privacy Act 1988 (Cth) Cases cited: Aspen Pharma Pty Ltd v H Lundbeck A/S (2013) 216 FCR 508 applied McKinnon v Secretary, Department of Treasury (2006) 228 CLR 243 applied Mulherin v FC of T (2013) ATC ¶20-423 applied Pangilinan v Secretary of the Department of Immigration [2014] FCCA 294 affirmed Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028 referred to Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 applied Zhang v Minister of Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 referred to Date of hearing: 27 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 34 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 214 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MARTINIAO PANGILINAN Appellant AND: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: RARES J DATE OF ORDER: 27 MAY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 214 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MARTINIAO PANGILINAN Appellant AND: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: RARES J DATE: 27 MAY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal against a decision of the Federal Circuit Court to dismiss an appeal from the decision of the Administrative Appeals Tribunal made on 16 August 2013 to affirm two parts of the Secretary's decision under review that refused access to, first, a file created in 1993, being file A930360414 (the 1993 file) that had been destroyed, and, secondly, 16 documents on the basis of claimed exemptions in respect of those documents under the Freedom of Information Act 1982 (Cth): Pangilinan v Secretary of the Department of Immigration [2014] FCCA 294. I will describe the initial background, then the legislative scheme, before turning to how the issues arise. Background 2 Originally, the appellant commenced the proceedings heard by his Honour in the Court below in this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal in that proceeding. 3 Robertson J considered that the proceeding should be remitted to the Federal Circuit Court pursuant to s 44AA of the Administrative Appeals Tribunal Act: see Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028, which is how the trial judge came to deal with the matter. 4 The appellant is a national of the Philippines who entered Australia in May 1991 on a one-month temporary visitor visa. He was detained in March 1993, and then lodged an application for refugee status. That was refused. He believed that he challenged that refusal in proceedings he had brought in this Court to review it and that he had received a decision from this Court favourable to him. He also appears to have become a group member in a representative proceeding in this Court that led to his having been released from immigration detention in August 1993. The representative proceedings were dismissed by French J on 6 October 1993: Zhang v Minister of Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384. 5 The appellant subsequently lodged an application for a class 816/class 818 entry permit. That application was refused, and the decision of the delegate was later affirmed by the Immigration Review Tribunal on 29 January 1999. 6 In December 2003, the appellant was briefly detained before being released from detention on a bridging visa granted on departure grounds after a bond was lodged on his behalf. He departed Australia on 18 February 2004. He then brought unsuccessful proceedings in 2005 challenging the refusal of his visa in the Federal Magistrates Court and this Court. Both applications were dismissed. The legislative scheme 7 Under r 33.12 of the Federal Court Rules 2011 (Cth) that governed the appellant's application that was before Robertson J, before his Honour remitted the proceedings to the Federal Circuit Court, a notice of appeal from the Tribunal had to state the part of the decision the subject of the appeal or which the applicant contended should be varied, the precise question or questions of law to be raised on the appeal, any findings of fact that the Court is asked to make, the relief sought instead of the decision appealed from or the variation of the decision that is sought, and briefly, but specifically, the grounds relied on in support of the relief or variation sought. Under r 33.15, an applicant may apply to the Court for leave to raise, on the hearing of the appeal, a question of law that was not stated in the notice of appeal. 8 Relevantly, the Freedom of Information Act provided: "11A Access to documents on request … (5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. Note 1: Division 3 of Part IV provides for when a document is conditionally exempt. Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)). Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document. 11B Public interest exemption – factors Scope (1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). (2) This section does not limit subsection 11A(5). Factors favouring access (3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; (d) allow a person to access his or her own personal information. Irrelevant factors (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest: (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; (aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island; (b) access to the document could result in any person misinterpreting or misunderstanding the document; (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; (d) access to the document could result in confusion or unnecessary debate. Guidelines (5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A. … 22 Access to edited copies with exempt or irrelevant matter deleted Scope (1) This section applies if: (a) an agency or Minister decides: (i) to refuse to give access to an exempt document; or (ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; … Access to edited copy (2) The agency or Minister must: (a) prepare the edited copy as mentioned in paragraph (1)(b); and (b) give the applicant access to the edited copy. … 24A Requests may be refused if documents cannot be found, do not exist or have not been received Document lost or non-existent (1) An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i) is in the agency's or Minister's possession but cannot be found; or (ii) does not exist. … 47F Public interest conditional exemptions—personal privacy General rule (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters: (a) the extent to which the information is well known; (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; (c) the availability of the information from publicly accessible sources; (d) any other matters that the agency or Minister considers relevant. …" 9 The expression "personal information" was defined in s 4 by reference to the definition of the same expression in the Privacy Act 1988 (Cth), which was: "personal information" means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion." The present dispute 10 On 17 November 2011, the appellant lodged with the Department a request for access to documents under the Freedom of Information Act. In the request, the appellant identified the documents to which he sought access as being the record of his application for refugee status in 1993 and an accurate record of the result of what he identified as the Federal Court's decision in 1993 of his application for refugee status under humanitarian grounds. He also sought a number of other documents in an attached letter. 11 A delegate of the Secretary made a decision on 12 December 2011 identifying six departmental files that fell within the scope of the appellant's request and released three of those files in full. The delegate also released two other departmental files, but made certain redactions under s 47F of the Freedom of Information Act to remove personal information relating to third parties. The delegate refused to release the remaining departmental file, being the 1993 file, under s 24A(1)(b)(ii), namely because the delegate was satisfied that all reasonable steps had been taken to find the 1993 file and that it did not exist, having been destroyed. Subsequently, on 19 December 2011, the delegate made a decision to release two more departmental files and a set of case notes with certain redactions pursuant to s 47F. On 12 and 19 December 2011, the released documents were sent to the appellant by registered post, and on 10 January 2012, they were also emailed to him. 12 The appellant sought an internal review of the delegate's decision by an email of 25 January 2012. The internal review was conducted by a second delegate who released in full four additional documents which she identified as having fallen within the scope of the appellant's request for an accurate record of the results of the 1993 Federal Court decision. She also released another departmental file with one redaction and further pages from two of the files that had been released by the first delegate. The second delegate found that the pages that remained redacted in the two departmental files that had been released with redactions were exempt under ss 47F and 22(1)(a)(ii) of the Act, those affected by the latter section on the basis that the redactions were of information that would reasonably be regarded as irrelevant to the request for access. The second delegate upheld the remainder of the earlier decisions by the first delegate in all relevant respects. 13 Following the Department's internal review, the appellant sought a review by the Australian Information Commissioner of those parts of the second delegate's decision that refused him access to documents he sought. On 27 November 2012, the Commissioner affirmed the Department's internal review decision. Commissioner noted that the departmental files indicated that the appellant had been a party to the class action in Zhang 45 FCR 384. He found that those proceedings dealt with issues of natural justice and had not addressed or decided the appellant's 1993 refugee status claim. In those circumstances, the Commissioner found that it was unlikely that a Federal Court decision on his refugee status existed and that the documents that had been released to the appellant supported the Department's view that the decision the appellant had referred to could not be located or did not exist. The Commissioner also found that the documents and redactions not provided to the appellant pursuant to s 47F(1) contained information and or opinions about individuals who were not the appellant, and that the public interest in maintaining those persons' privacy outweighed any public interest that might exist in the full disclosure of the documents. The Tribunal's decision 14 The appellant then applied to the Tribunal for review of the Commissioner's decision. During the course of the review, as the Tribunal noted in its reasons, the Department released further documents to the appellant over which it had previously claimed exemptions. In the end, the Secretary and the appellant remained at issue over two categories of documents. The first, was the 1993 file that the Department said had been destroyed, and the second, comprised 16 redacted documents from four Departmental files, some of which had been redacted in full, others in part. 15 The Tribunal's decision identified the relevant provisions of the Act that governed the process of its review. It stated that the issues were whether, first, the Secretary had taken all reasonable steps to find the documents falling within the scope of the appellant's request, and secondly, whether the Commissioner had correctly refused the appellant access to documents over which exemptions were applied. The Secretary led evidence from an officer in the Department of searches that she had conducted on its systems and databases relating to the appellant's request on three separate occasions in February 2012 and May 2013. The Tribunal found that those searches all yielded the same results, and that the officer had also conducted a search relating to the appellant's visa history that yielded records that had already been provided to him, with the exception of some records over which exemptions were claimed. 16 The officer's evidence in relation to the 1993 file showed that it had been created in 1993 and destroyed on 12 November 2002 under a records disposal authority. That authority stated that, in effect, files dealing with applications for entry for permanent residence that were refused, rejected or withdrawn or where no further action had occurred should be destroyed 10 years after the last action was completed. The Tribunal found that another officer of the Department had given evidence of additional searches that she had conducted, including searches on the Commonwealth Courts Portal website, to ascertain whether other proceedings involving the appellant existed. The Tribunal noted that the Commissioner had been satisfied that the Secretary had taken all reasonable steps to find the documents and had made inquiries of those officers who had assisted in locating the documents, and that the additional searches the Department had undertaken met the requirements of the guidelines of the Office of the Commissioner. 17 The Tribunal was satisfied that the Secretary had taken all reasonable steps in accordance with s 24A(1) to find the documents within the scope of the appellant's request, and that the documents comprising the 1993 file no longer existed. On that basis, the Tribunal concluded that the part of the Secretary's decision that refused access to the 1993 file should be affirmed. 18 Next, the Tribunal considered whether the exemptions had been correctly applied. It recorded that, during the hearing of the application, the Secretary advised it that a large number of documents previously the subject of claimed exemptions would be released to the appellant, and that that left the 16 documents that were the subject of its decision in dispute. 19 The Secretary contended before the Tribunal that the conditional exemption provided in s 47F(1) applied to 12 of the 16 remaining documents, and that the remaining four documents were obviously misfiled or irrelevant to the appellant's request. The Tribunal said that the redacted parts of the 12 documents referred to information concerning the migration status and details of other people or the personal information of other people that that those persons would not wish to be disclosed, and that it appeared that some of that information had been obtained by the Department through its information gathering powers. The Tribunal found that the information appeared to be of no current relevance to the appellant. It referred to the provisions of ss 11A(5) and 11B of the Act. The Tribunal found that none of those 12 documents, so far as they were redacted wholly or partially would, if provided to the appellant, achieve or promote the ends that favoured access set out in s 11B(3). It found that the public interest in maintaining the individuals' rights to privacy outweighed any public interest in disclosure. 20 Last, the Tribunal turned to the four documents that the Secretary said fell outside the scope of the appellant's request because they were obviously misfiled or simply irrelevant to it. It referred to s 22(1)(a)(ii) of the Act. The Tribunal found that it was satisfied that the four documents were irrelevant to the appellant's request. It concluded that the exemptions in respect of the 16 documents were correctly applied by the Commissioner and, relevantly, affirmed the decision not to grant the appellant access to them. The proceedings in the Court below 21 The proceedings before the trial judge took a course that was generous to the appellant. The appellant had attached a number of grounds of review to his application to this Court that was remitted to the Federal Circuit Court. He also subsequently filed a document on 16 January 2014 that contained 28 paragraphs headed "Grounds relied on" that he told his Honour were the grounds he wished to advance as to why the Tribunal fell into error. 22 The trial judge found that none of those grounds or the ones that the appellant initially relied on identified an error of law. His Honour considered each of the 28 grounds in turn and explained briefly why each of them failed. He then considered whether, even if he were wrong in holding that the appellant's grounds of appeal from the Tribunal did not disclose an error of law, the Tribunal's reasoning on its face disclosed anything that might be so classified. He found that the Tribunal applied the correct tests as required by the Freedom of Information Act and arrived at a conclusion open to it on the evidence. His Honour then dismissed the application. This appeal 23 The appellant filed a notice of appeal in this Court that contained four pages of what were said to be grounds relied on. They are very discursive and so far as I can understand them do not identify any question of law. That position is, of course, understandable where persons without legal training are trying to grapple with a technical legal question. It is important to ensure, as I have, that in cases such as the present the appellant is given an opportunity to identify how he or she contends that the Court's jurisdiction is invoked. The appellant also filed what, I think, are his written submissions but headed "Abandoned grounds" although they appear to argue why the trial judge made errors of law. The appellant appeared today by telephone from the Philippines and argued his case orally. During the course of argument, I explained to him that it was necessary for him to identify a question of law, and that I had been unable to discern one in the papers that he had either filed with his notice of appeal or otherwise. 24 The appellant was, I think, able to narrow down his points and explain in his address why he was challenging the decision of the Tribunal. He argued that the 1993 file appeared to have been destroyed outside the Departmental protocols applicable for the destruction of files of that nature, and that the Department erred in failing to release to him the decision of this Court to which the 1993 file related. The appellant identified Departmental records that were before the Tribunal that suggested that the 1993 file initially had been recorded as destroyed in 1998, and subsequently had been recorded as destroyed on 12 November 2002. Those internal records also recorded that the file should only have been destroyed at the earliest, if the protocols were observed, in 2004. He contended that the destruction of the 1993 file affected his human rights. He also submitted that the Tribunal had erred in affirming the decision to redact the material in the 16 documents. He argued that he was legally entitled to access the redacted parts of the 16 documents, and that the refusal to grant him access to those affected his human rights and would cause him to suffer injustice. Consideration 25 Importantly, the requirements imposed by r 33.12 include that the questions of law raised by the appeal are to be stated separately from the grounds relied on in support of it. Edmonds, Griffiths and Pagone JJ said in Mulherin v FC of T (2013) ATC ¶20-423 at 15,613-15,614 that the purpose of that requirement is that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. They said that: "A question of mixed fact and law will not suffice to ground jurisdiction, nor will a question of fact." Their Honours went on to say at 15,614: "6 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527, Ryan J indicated his view, undoubtedly correct, that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law. A little later his Honour said (at 527): [I]t simply begs the question of law to commence it with the words 'whether the Tribunal erred in law'. If the question, properly analysed, is not a question of law no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law. 7 Moreover, the question or questions of law must be engaged by the Tribunal in its reasons and decision such as to ground error, or not be so engaged by the Tribunal in error, to be 'the subject matter of the appeal itself' in the sense referred to by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178." 26 The subject matter of an appeal under s 44(1) of the Administrative Appeals Tribunal Act is the precise question or questions of law stated in the notices of appeal as required by r 33.12(2): Aspen Pharma Pty Ltd v H Lundbeck A/S (2013) 216 FCR 508 at 516 [44] per Yates J, with whom Jessup and Jagot JJ agreed. 27 In my opinion, no question of law was raised in the notice of appeal from the Tribunal to this Court as heard in the Federal Circuit Court or in the grounds which the appellant argued before the trial judge. Similarly, no question of law was identified by the appellant in his arguments on this appeal. In those circumstances, there was no jurisdiction to entertain any proceedings on appeal from the Tribunal in the Federal Circuit Court because no error of law was identified there. 28 As I have indicated, I have tried to identify with the appellant through the course of argument today whether there is some conceivable question of law that might be raised by leave, but despite his careful attempts to persuade me, I am unable to see any such question of law. The Tribunal made findings of fact with which the appellant disagreed. However, provided that there was evidence to support the findings of fact, the mere wish of the appellant to challenge those findings cannot amount to or raise a question of law. 29 The Tribunal found as a fact that the 1993 file had been destroyed. It found that the Commissioner was satisfied that the Secretary had taken all reasonable steps to find the documents, being the 1993 file, and that the Secretary had made enquiries of those officers who assisted in seeking to locate the documents and had made additional searches. accordingly, it found as a fact that the Secretary had taken all reasonable steps to find the documents, comprising the 1993 file, within the scope of the appellant's request, and that the 1993 file no longer existed. In those circumstances the Secretary had power under s 24A(1) to refuse the request for access to the documents in the 1993 file because they did not exist. No error in the Tribunal's finding that the decision to refuse access to the 1993 file under s 24A(1) has been established. I am unable to see that any question of law in relation to that matter existed either in the proceedings below or in this appeal. 30 The second basis upon which the appellant claimed that a question of law arose is in relation to the 12 redacted documents. The Tribunal made a finding of fact that the public interest in maintaining the individuals' rights to privacy outweighed any public interest in their disclosure. It is well established that, when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters. In Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400-401 [42], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: "… when used in a statute, the expression 'public interest' imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492 at 505], when a discretionary power of this kind is given, the power is 'neither arbitrary nor completely unlimited' but is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view'." 31 Their Honours there approved what Hayne J had said in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 243 at 443-444 [55] concerning the public interest criterion under s 58(5) of the Freedom of Information Act. There, his Honour said that: "… the Tribunal is not charged with the task of deciding what assessment of the public interest is to be preferred. Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?" 32 The Tribunal undertook a weighing process in arriving at its conclusion that none of the 12 documents, so far as they were redacted, would promote or achieve the ends set out in s 11B(3) of the Act. I see no arguable error of law in the way in which it fulfilled its function to assess the public interest. Accordingly, the appellant cannot demonstrate any error of law in this respect. 33 As to the four documents that the Tribunal found wholly or partly to fall outside the scope of the appellant's request, the Tribunal appeared to have examined them and concluded that they were irrelevant to that request. It follows that there is no basis upon which I can identify any possible question of law arising from that finding of fact. Conclusion 34 For these reasons I am of opinion that the appeal must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 16 July 2014