On 30 May 2017 I requested copies of documents, cables or correspondence to and/or from Mr Pezzullo or his office in relation to the US refugee resettlement deal/program with the Trump administration.

On 13 September 2017 the then Department of Immigration and Border Protection declined access to 16 documents: Three cables dated 31 January 2017, 9 February 2017 and 17 February 2017 and emails dated 8 February 2017 (x2), 27 January 2017 (x3), 5 February 2017 (x4) and 7 February 2017 (x4). Those documents cover a period of only three weeks in relation to an agreement that has spanned over several years.

On 28 January 2017 former Prime Minister Turnbull phoned President Trump and discussed the refugee resettlement deal with the United States. The transcript of that entire conversation was leaked and published in full on 3 August 2017. The following excerpt provides important details about the arrangement:

“Yes, the agreement, which the Vice President just called the Foreign Minister about less than 24 hours ago and said your Administration would be continuing, does not require you to take 2,000 people. It does not require you to take any. It requires, in return, for us to do a number of things for the United States – this is a big deal, I think we should respect deals. The obligation is for the United States to look and examine and take up to and only if they so choose – 1,250 to 2,000. Every individual is subject to your vetting. You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you. The obligation is to only go through the process. So that is the first thing. Secondly, the people — none of these people are from the conflict zone. They are basically economic refugees from Iran, Pakistan, and Afghanistan. That is the vast bulk of them. They have been under our supervision for over three years now and we know exactly everything about them… This is a big deal. It is really, really important to us that we maintain it. It does not oblige you to take one person that you do not want. As I have said, your homeland officials have visited and they have already interviewed these people. You can decide. It is at your discretion. So you have the wording in the Executive Order that enables the Secretary of Homeland Security and the Secretary of State to admit people on a case by case basis in order to conform with an existing agreement. I do believe that you will never find a better friend to the United States than Australia. I say this to you sincerely that it is in the mutual interest of the United States to say, “yes, we can conform with that deal – we are not obliged to take anybody we do not want, we will go through extreme vetting” and that way you are seen to show the respect that a trusted ally wants and deserves. We will then hold up our end of the bargain by taking in our country 31 [inaudible] that you need to move on from… Please, if we can agree to stick to the deal, you have complete discretion in terms of a security assessment. The numbers are not 2,000 but 1,250 to start. Basically, we are taking people from the previous administration that they were very keen on getting out of the United States. We will take more. We will take anyone that you want us to take. The only people that we do not take are people who come by boat. So we would rather take a not very attractive guy that help you out then to take a Noble [sic] Peace Prize winner that comes by boat. That is the point… “

The first exempt cable is dated 31 January 2017. The same day Trump’s former spokesman Sean Spicer told the media that the Obama-era plan to take refugees from Australia’s offshore detention centres is still in place, but with ‘extreme vetting’. His comments were later contradicted by a White House source who said the president was still considering the deal.

On 2 February 2017 the US president tweeted that he planned to review the Obama-era agreement to take up to 1,250 refugees from Australian detention camps on Nauru and Manus, with former Prime Minister Turnbull insisting that he had a ‘commitment’ from Trump on plan.

The second exempt cable is dated 9 February 2017, the same day that it was reported that US officials stopped screening refugees on Nauru for potential resettlement and Minister Peter Dutton confirmed that “There is a lot of work being done at an officials level with people from my department and the Department of Homeland Security and the Department of State in the US, but it’s not something that I have anything to comment”.

On 22 March 2017 it was reported that the architect of the US-Australia refugee deal, Anne Richard, the then Assistant Secretary of State for Population, Refugees and Migration in the US State Department, said the agreement for America to take refugees from Nauru and Manus Island was loosely contingent on Australia considering resettling people from Central America and Africa in exchange, although not in a one-for-one swap; that she was approached by the Australian embassy; that the Australian Government was given series of ‘sample cases’ to assess accepting up to 50 refugees from El Salvador, and that the deal struck with the Obama administration would see refugees resettled from Costa Rica under the transfer agreement and required the Australian authorities to work to reunite separated refugee families.

On 16 May 2019 it was reported that Australia resettled two Rwandan men accused of murdering eight tourists with machetes and axes, possibly as part of the so-called “people swap” deal with the United States brokered under the Coalition government. The US news outlet Politico reported that two men – charged with terrorism offences by American prosecutors over the heinous 1999 crimes but never convicted – have been relocated to Australia and accepted as “humanitarian” entrants, or refugees. I note the reports that the national security committee of cabinet was briefed about all aspects of the American refugee swap deal in late 2016, including the resettlement of two Rwandan men.

Then on 16 June 2019 Minister Dutton confirmed publicly that the United States has rejected more than 300 refugees under the Australia-US refugee deal, leaving the men in Australia’s offshore processing centres on Manus Island and Nauru. Mr Dutton said there were 95 people who have either withdrawn from consideration or rejected an offer, 295 who were in the pipeline for approval and 531 who had been re-settled.

The Department of Home Affairs relies on the following reasons to withhold the documents:

• Disclosure-including ongoing efforts to ensure the full implementation of ‘the Arrangement’ would greatly reduce the US’ willingness to cooperate with the Australian government in the future.

• Broader ramifications if United States officials lose confidence in the Australian Government’s ability or willingness to protect material relating to a highly sensitive policy.

• Would directly inhibit future negotiations between the Australian Government and foreign governments, including the negotiation of potential third country resettlement arrangements for refugees in Papua New Guinea and Nauru.

• Any future third country resettlement negotiations would be imperiled if the countries or multilateral parties with whom Australia were to engage feared that the sensitive terms of the Arrangement would be made public. Should a party foresee disclosure under Freedom of Information provisions they will be disinclined to enter into an arrangement.

• If details of the Arrangement, including the requested correspondence relating to the Arrangement are disclosed, it will jeopardise negotiation of future third country resettlement arrangements both multilaterally and bilaterally.

• The requested documents contain information that would have been regarded at the relevant time as being communicated in confidence by the United States to the Australian Government. Generally, the information communicated by US officials dealt with an issue of considerable international sensitivity at the time.

• The documents have a national security classification which indicates that the harm that may arise from unauthorised disclosure could be expected to cause serious damage to the national interest.

The Department has relied extensively on sections 33(a)(i) and 33(a) (iii) of the FOI Act (Cth) which include the ‘would or could reasonably be expected’ test. In other words, it requires the decision maker to assess the likelihood of the predicted or forecast event [as outlined by the Department above], effect or damage occurring after disclosure of a document. It is noted that the mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation. There must, based on reasonable grounds, be at least a real, significant or material possibility of prejudice. Moreover, the term ‘reasonably expected’ requires that there be ‘real’ and ‘substantial’ grounds for expecting the damage to occur which can be supported by evidence or reasoning. An allegation of possible damage, or a mere possibility of damage, is insufficient to meet the ‘reasonable expectation’ test.

The documents which fall within the scope of my FOI request and the effect of their release must be examined in the context of the leak from the office of the President of the United States of the private telephone conversation with the former Prime Minister Malcolm Turnbull, a public tweet from the President of the United States, a leak from the Government’s National Security Committee in relation to its knowledge about the transfer of two Rwandan men accused of murder to Australia, public comments from the ‘Architect of the US-Aus Refugee deal’, national and international reporting about the transfer of two Rwandan men to Australia and public updates from the responsible Minister, Peter Dutton. None of this has prevented the deal from going ahead or caused damage to the US Australian relationship and all of the details are in the public domain viewable by third party governments and international organisations.

Without the benefit of examining the documents I note previous comments from the OIC that ‘a significant number of the documents appear to be predicated on the understanding that the information contained in the documents would be kept confidential.’ I note that the classification markings on a document (such as ‘secret’ or ‘confidential’) are not of themselves conclusive of whether the exemption applies and that an agency still needs to produce evidence supporting the claim that information was communicated in confidence by a foreign entity. The decision maker must make an independent assessment of that claim in light of the available evidence. Similarly, even where a foreign government or agency has identified a document as secret or confidential, the decision maker is still required to make an independent assessment that the information was communicated in confidence. Clearly such an assessment has not been made.

Given the information that is already publicly available I cannot see how disclosure of the subject documents would or could reasonably be expected to give rise to any real, significant or material possibility of prejudice as asserted.

In the circumstances, I respectfully request the full or partial release of all of the documents falling within the scope of my 2017 FOI request.

Yours faithfully

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