FEDERAL COURT OF AUSTRALIA

Leghaei v Director-General of Security [2007] FCAFC 56

IMMIGRATION & CITIZENSHIP –national security – appeal from single judge dismissing application for review of decision to furnish adverse security assessment – orders dismissing the appeal foreshadowed by the Full Court on 23 March 2007 and confidential reasons handed down – request made by parties that the Full Court refrain from formally making orders dismissing the appeal – request made by First Respondent for confidentiality in relation to certain sections of the reasons – uncontested evidence submitted by Deputy Director-General of Security in relation to national security concerns raised by the reasons – confidential reasons redacted in form attached hereto - access to masked portions restricted – formal orders made dismissing the appeal with costs.   

Federal Court of Australia Act 1976 (Cth), ss 23 and 50

MANSOUR LEGHAEI v DIRECTOR-GENERAL OF SECURITY AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

ACD 3 OF 2006

TAMBERLIN, STONE AND JACOBSON JJ

30 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  Until further order, access to the masked portions in the open reasons for judgment (outlined in full in the confidential reasons) is restricted to Judges of the Court, Mr Peter Hanks, Mr Vince Sharma and appropriately security cleared representatives of the First Respondent and officers or employees of the Australian Security Intelligence Organisation.

2.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1                     On 23 March 2007, the Court handed down confidential reasons for judgment in this matter and made orders as outlined in short minutes of order handed up by the parties on that day. The orders provided for the parties to file submissions as to which parts of the reasons should remain confidential on grounds related to national security.

2                     The Court has since been provided with an affidavit sworn by the Deputy Director-General of Security dated 30 March 2007. This affidavit addresses ASIO’s national security concerns in relation to disclosure to the appellant or the public of particular facts in the confidential reasons.

3                     In view of the unchallenged evidence of the Deputy Director-General, and in light of the written submissions of counsel for both parties, we have come to the view that an order should be made as suggested by the First Respondent restricting access to certain sections of the reasons for judgment. Section 50 of the Federal Court of Australia Act 1976 (Cth), which allows the Court to restrict the publication of evidence and the names of parties and witnesses in certain circumstances, does not apply to reasons for judgment. However, the Court has power under s 23 of the Act to make orders in relation to matters in which it has jurisdiction as the Court thinks appropriate.

4                     Therefore, we order that the confidential reasons for judgment dated 23 March 2007 be redacted in the formed attached hereto and that access to the masked portions be restricted to Judges of the Court, Mr Peter Hanks, Mr Vince Sharma and appropriately security cleared representatives of the First Respondent and officers or employees of the Australian Security Intelligence Organisation.

5                     When we handed down confidential reasons for judgment on 23 March 2007, the parties requested that the Court defer making formal orders dismissing the appeal until after a decision had been made as to whether certain sections of the reasons should remain confidential. It is now appropriate that we formally order that the appeal be dismissed with costs.

Associate: 

Dated:         30 April 2007