FEDERAL COURT OF AUSTRALIA

PPHF v Director-General of Security [2011] FCAFC 70

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicants pay the costs of the Director–General of Security.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

EMMETT J

1    I agree with Robertson J that the appeal should be dismissed. In particular, I agree that there is nothing in the language of s 36 of the Australian Security Intelligence Organisation Act 1979 (Cth) to suggest that it only applies to a security assessment in relation to the exercise of power or the performance of a function, the exercise or performance of which has been triggered or activated by an application for a visa. Secondly, it is clear, in my view, as Robertson J indicates, that s 36(b) is concerned with the status of a person referred to at the time at which the security assessment is made. It would be curious if a person who was taken to have been granted a special purpose visa should, for all time thereafter, be within paragraph (iii), but a person who had held a valid permanent visa, but whose visa had been cancelled, no longer fell within paragraph (ii). I agree that there was no error on the part of the Administrative Appeals Tribunal.

Associate:

Dated:    26 May 2011

REASONS FOR JUDGMENT

PERRAM J

2    I agree that the appeal should be dismissed for the reasons given by Robertson J.

Associate:

Dated:    26 May 2011

REASONS FOR JUDGMENT

ROBERTSON J

3    This appeal concerns the jurisdiction of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal held that it did not have jurisdiction to hear the applicants’ applications for review of security assessments made by the Australian Security Intelligence Organisation (“ASIO”). I have had the benefit of the written and oral submissions of the parties. The issues are of undoubted importance, particularly to the applicants, but in my view the outcome of these appeals is clear.

4    The appeals are brought under s 44 of the Administrative Appeals Tribunal Act 1975 and are therefore on a question of law.

5     The applicants submit that the Tribunal erred in law in finding that s 36(b) of the Australian Security Intelligence Organisation Act 1979 (“the ASIO Act”) operated in respect of each of them so that s 54, conferring a right to apply to the Tribunal for merits review of an adverse or qualified security assessment, did not apply to them. No question arises in relation to judicial review, for example under s 39B of the Judiciary Act 1903.

6    The facts in relation to the applicants are to be found in the reasons for decision of the Tribunal dated 17 December 2010.

7    The applicants are three Sri Lankan nationals who were rescued at sea in late 2009 and taken aboard the “Oceanic Viking” to Indonesia. From Indonesia they were subsequently brought to Christmas Island. Prior to their transfer to Christmas Island the Acting Minister for Immigration and Citizenship made declarations that they were each “taken to have been granted special purpose visas”. The special purpose visas commenced on 23 and 24 December 2009 and were described as ceasing at the time the subjects entered Australia. In each case that was only a matter of days later. Thus, in the case of each of the three applicants, the special purpose visa expired at the end of 29 December 2009 on their arrival at Christmas Island: s 33(5)(b)(ii) of the Migration Act 1958 (“the Migration Act”)

8    Prior to the making of the declarations, each of the applicants was the subject of an adverse security assessment made by ASIO and furnished to the Department of Immigration and Citizenship (“the Department”). In one case the assessment was made and furnished to the Department the day before the Acting Minister declared that the applicants had special purpose visas. The other assessments were made and furnished a number of days earlier. More specifically, the security assessments were furnished to officers of the Department on 11 December 2009 in the case of PPHF and in the case of BYRH and on 23 December 2009 in the case of VGZS.

9    On 25 December 2009, the applicants were informed orally of the making of the adverse security assessments relating to them and were told that they did not meet “the security requirements for the grant of a visa to settle in Australia permanently”. They were also told that they would be granted a short term visa to enable them to travel to Australia.

10    The questions of law are the proper construction of certain provisions of the ASIO Act.

11    Part IV of that Act not only deals with security assessments but also contains s 54 which provides:

(1)    An application may be made to the Tribunal for a review of an adverse or qualified security assessment.

12    The Tribunal is defined in s 35(1) to mean the Administrative Appeals Tribunal.

13    An “adverse security assessment” and a “qualified security assessment” together with “security assessment” or “assessment” are also defined in s 35(1).

14    I set out s 36 of the Act, also in Part IV.

This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to:

(a)    a security assessment in relation to the employment, by engagement outside Australia for duties outside Australia, of a person who is not an Australian citizen or is not normally resident in Australia; or

(b)    a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958 ) in respect of a person who is not:

(i)    an Australian citizen;

(ii)    a person who is, within the meaning of the Migration Act 1958 , the holder of a valid permanent visa; or

(iii)    a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa.

15    Reading s 36(b) together with the definition of “prescribed administrative action” in s 35 yields the following:

A security assessment in relation to an action of a kind [being] “the exercise of any power or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act …”.

16    As found by the Tribunal, each of the security assessments was in the following form:

1.    ASIO assesses the following individual from the Oceanic Viking caseload to be directly or indirectly a risk to security within the meaning of Section 4 of the Australia Security Intelligence Act 1979;

    [Here, the applicants are named]

2.    ASIO therefore recommends that any application for a visa by this individual be refused.

3.    Public Interest Criterion 4002, Part 1, Schedule 4, Migration Regulation refers.

17    The applicants submit that s 36(b) does not operate in relation to them because:

(a)    the adverse security assessments were not made in relation to a migration decision that could be described as a prescribed administrative action as defined in s 35(1); or

(b)    each of the applicants was granted a special purpose visa and thus was not covered by the exclusion in s 36 of the ASIO Act.

Issue (a): whether each security assessment was in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action.

18    In my opinion the key expressions are “in relation to”, “action of a kind” and “the exercise of any power … in relation to a person under the Migration Act 1958”.

19    These expressions show that a security assessment within s 36(b) may be made in relation, generally, to the exercise of powers or the performance of functions in relation to a person as long as that exercise or performance is under the Migration Act or the regulations under that Act.

20    In the present cases, the applicants accept the finding in [11] of the Tribunal’s decision that the adverse security assessments were made in relation to anticipated visa applications by the applicants, although those applications might not actually have been made. I read ground (c) of the notice of appeal accordingly.

21    I reject the argument that the security assessments could not have been used by officers of the Department “in relation to” the exercise of any power or the performance of any function under the Migration Act because no application for a visa had been made at the time the ASIO assessments were made and furnished to the Department. In my view this follows from applying ordinary principles of statutory construction and, contrary to the applicants’ submissions, does not involve reading words into the statutory language.

22    Thus, the assessments are assessments in relation to action of the kind referred to in paragraph (b) of the definition prescribed of administrative action in s 35.

Issue (b): whether each security assessment was in respect of a person who was not a person taken by subsection 33(2) of the Migration Act to have been granted a special purpose visa

23    I set out again the dates on which certain events occurred.

24    PPHF was the subject of an adverse security assessment on 11 December 2009 and that assessment was furnished to officers of the Department on that day. On 23 December 2009 the Acting Minister declared under s 33(2)(b)(i) of the Migration Act that PPHF was taken to have been granted a special purpose visa.

25    The same dates apply to BYRH, the third applicant.

26    As to VGZS, he was the subject of an adverse security assessment on 23 December 2009 and that assessment was furnished to officers of the Department on that day. On 24 December 2009 the Acting Minister made a declaration under s 33(2)(b)(i) of the Migration Act that VGZS was taken to have been granted a special purpose visa.

27    Thus each applicant was not taken by subsection 33(2) to have been granted a special purpose visa at the time of the making and furnishing of the adverse security assessment.

28    Section 36 is concerned with whether or not Part IV does or does not apply to a security assessment. The Part does not apply to or in relation to a security assessment of a particular kind. In my view, the words “in respect of a person who is not” or “a person who is taken to have been granted a special purpose visa” qualifies the kind or character of the security assessment and the status of the person at the time of its making.

29    I conclude that the status of the person in s 36(b)(iii) applies at the time the adverse security assessment is made.

30    Here each security assessment was in respect of a person who at that time was not a person taken to have been granted a special purpose visa.

31    It was common ground between the parties that a security assessment as defined means a security assessment furnished to the Commonwealth Agency. However, nothing turns in this case on the date of making as against the date of the furnishing the assessment.

32    If the status of the person were not referable to the making of the assessment then the result would, in my view, often be arbitrary.

33    The applicants put their submissions on the special purpose visa point under five headings, which I consider in turn.

i.    Ordinary and natural meaning of s 36(b)

34    In my view the applicants’ submissions focus too narrowly on only some of the words in s 36(b)(iii). The key words, as I have identified them above, are “in respect of a person who is not” a person who is taken to have been granted a special purpose visa.

35    The ordinary and natural meaning of the provision is therefore that the security assessment be in relation to a person who has not the relevant characteristic at the time the assessment is made.

ii.    Inconsistent with the context in Part IV

36    I do not see any inconsistency with other provisions of Part IV. The applicants rely on s 38 but s 38 is itself in Part IV and is one of the provisions excluded by s 36, where s 36 applies.

37    Thus a notice in writing of the making of the assessment and containing information in the prescribed form is not required to be given where s 36 applies.

iii.    Contrary to principles of statutory interpretation

38    Since, applying ordinary principles of construction, I do not find there is a doubt as to Parliament’s intention, the principle to which Finn J referred to in Buck v Comcare (1996) 66 FCR 359 at 364-365 has, in my view, no role to play. However, I accept that because the general position is that merits review is available under Part IV the exclusionary provision in s 36(b) should be construed with particular care to discern its meaning and operation.

iv.    Construction introduces words into s 36(b) which are not there

39    I do not regard the construction of s 36(b) to which I have come as involving the reading into the statute of any words. Rather, that construction flows from the words which have been used by the Parliament.

v.    Inconsistency with s 37(3) and (4)

40    The provisions which continue to apply because they are expressly excluded from the operation of s 36 are subsections 37(1), (3) and (4)).

41    The first of those provides that the functions of ASIO continue notwithstanding the exclusion of certain other provisions by force of s 36. Subsection 37(3) is consequential on s 37(1). Subsection 37(4) is consequential on sub-section 37(3).

42    The reference to the Tribunal in subsections 37(3) and 37(4), admitted to be surplusage in relation to those within s 36, are too slender a basis on which to read down s36(b).

Orders

43    For these reasons I find no error of law in the decision of the Tribunal and I would dismiss the appeals.

Associate:

Dated:    26 May 2011