Wong v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 149 FCR 291; [2006] FCAFC 163

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Catchwords

1. Administrative Law
2. › Administrative Appeals Tribunal
3. › Public interest immunity
4. › Attorney-General's certificate under s 36A
5. › Whether Court decides public interest question on the merits or reviews for error of law
6. › Administrative Appeals Tribunal Act 1975 (Cth), ss 36, 36A, 36D, 44
1. Administrative Law
2. › Administrative Appeals Tribunal
3. › Appeal on question of law
4. › Deemed question of law
5. › Jurisdiction of Federal Court where no Tribunal decision on public interest question
6. › Administrative Appeals Tribunal Act 1975 (Cth), ss 36A(2)(a), 36D(2)(b), 44, 45
1. Evidence
2. › Public interest immunity
3. › Answering of questions contrary to public interest
4. › Security, defence or international relations
5. › Court's role in assessing competing public interests
6. › Administrative Appeals Tribunal Act 1975 (Cth), ss 36(1)(a), 36A(2)(a)

Quick Take

When the Attorney-General certifies under s 36A of the AAT Act that answering questions would be contrary to the public interest for reasons of national security, defence or international relations (s 36(1)(a) or (b)), the Federal Court on appeal under s 44 must decide the public interest question on the merits by reaching its own opinion, not merely review the Attorney-General's opinion for legal error. The Court's task is analogous to assessing a claim for public interest immunity at common law, weighing the effective performance of Tribunal functions against the stated reason for non-disclosure.