FEDERAL COURT OF AUSTRALIA

Jaffarie v Director General of Security [2014] FCAFC 102

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK & PERRAM JJ:

1    The Applicant, Mr Sayed Akbar Jaffarie, is a citizen of Afghanistan and is a Shia Muslim of Hazara ethnicity.

2    On or about 6 June 2013, the Australian Security Intelligence Organisation (“ASIO”) assessed Mr Jaffarie to be “directly or indirectly a risk to security, within the meaning of section 4” of the Australian Security Intelligence Organisation Act 1979 (Cth) (“Australian Security Intelligence Organisation Act”).

3    The Department of Immigration and Border Protection was furnished with that assessment on 17 June 2013. A series of decisions were then taken pursuant to the Migration Act 1958 (Cth) (“Migration Act”), including:

    a decision taken on 19 June 2013 to cancel Mr Jaffarie’s subclass 309 visa under s 116;

    a decision taken on 25 June 2013 refusing an application for a Partner (Migrant) (Class BC) visa;

    a decision taken on 26 August 2013 affirming the decision of 25 June 2013;

and

    a decision taken on 25 September 2013 refusing Mr Jaffarie a Bridging E (Class WE) Visa under s 501.

4    On 10 October 2013 Mr Jaffarie commenced proceedings in the High Court of Australia seeking review of the security assessment made on 6 June 2013 and each of the decisions taken under the Migration Act. On 14 November 2013 a Judge of that Court remitted the matter to this Court, other than the applications seeking review of the decisions taken on 19 and 25 June 2013 and the decision taken on 26 August 2013. The reason for the High Court retaining that part of the matter, as explained by Senior Counsel for the First and Second Respondents, was that only the High Court could grant an order quashing the decision taken on 19 June 2013 and that this Court did not have jurisdiction in respect to the other two decisions by reason of ss 476A and 476B of the Migration Act. There was agreement by Counsel for Mr Jaffarie that these were matters retained by the High Court and agreement as to those matters which were before this Court.

5    An Amended Application was filed in this Court on 23 January 2014. That application is said to be made “under s 476A of the Migration Act 1958 and section 39B of the Judiciary Act 1903”. Central to that application was a document that was described as “the Unclassified Reasons” for ASIO’s adverse security assessment in respect to the Applicant. The grounds upon which judicial review was sought of those matters now before this Court focussed upon the meaning to be given to the term “security” as that term is defined in s 4 of the Australian Security Intelligence Organisation Act and as used in s 17(1) of that Act.

6    On 23 January 2014 a notice of a matter arising under the Constitution or involving its interpretation was given pursuant to s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”). No State or Territory Attorney-General has sought to intervene.

7    The Chief Justice of this Court has directed that the proceeding be heard and determined by a Full Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth). Such a direction may be made where the Chief Justice “considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction”. See: FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44 at [25], (2013) 211 FCR 158 at 165 per Gray and Dodds-Streeton JJ.

The procedural history

8    Some brief mention should be made as to the progress of the hearing whereby the application was heard. It assumes some importance to both the manner in which the grounds of review have been resolved and the order to be made as to costs.

9    The hearing before this Court commenced on 1 April 2014. The evidence relied upon at the outset by both the Applicant and the Respondents was compiled in an Application Book jointly prepared by the parties. That Application Book included an Amended Statement of Agreed Facts. Leave was granted to file a Second Further Amended Application at the outset of the hearing on that day. That amendment focussed attention on whether the information provided by ASIO to the Department constituted a “security assessment” or an “adverse security assessment” within the meaning of and for the purposes of ss 35(1) and 37 of the Australian Security Intelligence Organisation Act. In response to that amendment, Senior Counsel for the First and Second Respondents tendered a further “Message Cover Sheet” on the letterhead of ASIO dated 11 June 2013. A “call” for one document by Senior Counsel for Mr Jaffarie could not be answered during the course of the hearing and an adjournment was granted to permit the First and Second Respondents to answer the “call” and to obtain instructions on issues which had emerged during the course of the hearing, including whether the Respondents wished to tender the “Classified” document furnished to the Department in June 2013.

10    The hearing on 1 April 2014 was adjourned.

11    On 10 April 2014 the Respondents filed an affidavit affirmed on 9 April 2014 by an Assistant Director in the Security Assessments Liaison Section of ASIO, Ms Palisi. Ms Palisi annexed a copy of an e-mail received from an officer of ASIO. The Director-General of Security, Mr David Irvine, also swore an “Open Affidavit” on 9 April 2014. That affidavit referred to the Unclassified Reasons that had been provided to the Applicant and (inter alia) annexed a further “Truncated Final Appreciation” which further addressed the adverse security assessment in respect to the Applicant. On 16 April 2014 Mr Irvine swore a further “Open Affidavit”. That “Open Affidavit” made reference to a further document described as “my confidential affidavit”. The “confidential affidavit” was not filed in Court. Instead, it was said to have been provided “to the Australian Government Solicitor … to be securely stored with the Final Appreciation”. If the Court wished “to inspect these documents”, Mr Irvine’s “Open Affidavit” stated that it would be made available. Mr Irvine filed a further “Open” affidavit on 21 May 2014, annexing a Briefing Note for the Director-General dated 5 June 2013.

12    The proceeding thereafter came back before a single Judge of this Court on 10 and 28 April 2014 for the purpose of making directions as to the future conduct of the hearing. On 28 April 2014, Senior Counsel for the Respondents confirmed that a claim for public interest immunity privilege was raised in respect to:

    the “Classified” statement of reasons – that being the same document as the document described as the “Final Appreciation”; and

    the “confidential affidavit” of Mr Irvine sworn on 16 April 2014.

Senior Counsel also confirmed that the evidence to be relied upon in respect to the judicial review application was:

    the materials contained in the Application Book, that Book containing an Amended Statement of Agreed Facts and the “Unclassified reasons”;

    the affidavit of Ms Palisi; and

    the two “Open” affidavits of Mr Irvine sworn on 9 and 16 April 2014.

Counsel for the Applicant confirmed that he did not wish to cross-examine Ms Palisi but that he did wish to cross-examine Mr Irvine. That cross-examination, it was accepted, could not seek to challenge the claim being made for public interest immunity. But there remained, or so it was submitted, areas of fact separate from the claim for privilege which were appropriate for cross-examination.

13    All three Judges of the Court resumed the hearing on 22 May 2014. At this resumed hearing:

    the parties were advised that the claim for public interest immunity privilege would be upheld and that the reasons for upholding the claim would be provided at the same time as the judgment in the substantive proceeding;

    the Court heard argument as to whether leave should be given to further amend the Application and permitted some amended grounds of review but not others – the final document embracing the grounds to be resolved being contained in a document described as the Third Further Amended Application; and

    the Court heard argument as to whether the Director-General should be cross-examined, not upon those matters going to the claim for public interest immunity privilege, but in respect to the evidence that had been given by way of affidavit and relied upon in the substantive judicial review application.

All members of the Court then read – but returned to Senior Counsel for ASIO – the confidential affidavit of Mr Irvine sworn on 21 May 2014.

14    Needless to say, the manner in which Mr Jaffarie was advancing his challenge was constantly changing and the grounds shifted from both that point of time when the proceeding was remitted to this Court by the High Court and that point of time when the s 78B notices were given under the Judiciary Act. But nothing ultimately turns upon these changes. The matter remitted to this Court remained essentially the same matter as was the subject of the High Court’s order and the notice of the “matter arising under the Constitution” the subject of the s 78B notices remained much the same.

15    It is ultimately concluded that each of the grounds in the Third Further Amended Application fail and that there should be no order as to costs.

The role played by ASIO

16    Central to both the claim for public interest immunity privilege and the claimed invalidity of the Final Appreciation given by the Director-General to the Department is s 17 of the Australian Security Intelligence Organisation Act. That section, in its entirety, provides as follows:

Functions of Organisation

(1)    The functions of the Organisation are:

(a)    to obtain, correlate and evaluate intelligence relevant to security;

(b)    for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;

(c)    to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(ca)     to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b);

(d)    to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director-General, determines on matters relating to protective security; and

(e)    to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979; and

(f)    to co-operate with and assist bodies referred to in section 19A in accordance with that section.

(2)    It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth.

Of immediate relevance is s 17(1)(c).

17    The term “security” as employed in s 17 and elsewhere in the Act is defined by s 4 as follows:

security means:

(a)    the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i)    espionage;

(ii)    sabotage;

(iii)    politically motivated violence;

(iv)    promotion of communal violence;

(v)    attacks on Australia’s defence system; or

(vi)    acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa)    the protection of Australia's territorial and border integrity from serious threats; and

(b)    the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

Some of these expressions – for example, “politically motivated violence” and “acts of foreign interference” – are further defined in s 4. In ensuring that ASIO is confined to the discharge of those functions and the exercise of such powers as are conferred, “special responsibility” is entrusted to the Director-General. Section 20 thus provides:

Special responsibility of Director-General in relation to functions of Organisation

The Director-General shall take all reasonable steps to ensure that:

(a) the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organisation is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

That section serves to emphasise the importance attached by the Commonwealth legislature to keeping the discharge by ASIO of its functions to that which is “necessary” – and not merely, for example, what ASIO itself considers to be “desirable”.

18    The phrase “security assessment” is further addressed in Part IV of the Australian Security Intelligence Organisation Act. Relevantly, s 35, an interpretation provision, provides in s 35(1) in part as follows:

In this Part, unless the contrary intention appears:

adverse security assessment means a security assessment in respect of a person that contains:

(a)    any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b)    a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

…

The reference to “prescribed administrative action” can be left to one side. Section 35(1) provides the following further definition:

security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.

And, finally, s 37(1) provides as follows:

The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

19    In informing the Department of its assessment as to the risks posed by Mr Jaffarie, ASIO was discharging the function entrusted to it by s 17(1)(c). A comparison between s 17(1)(c) and s 17(1)(ca) may have the consequence that ASIO is given greater flexibility as to the manner in which it communicates advice to “Ministers and authorities of the Commonwealth” than the advice it may communicate to “a State or an authority of a State …”.

20    But whatever may be the difference between s 17(1)(c) and s 17(1)(ca), a question briefly arose during the hearing before this Court as to whether a “security assessment or assessment” provided to the Department had to take the form of “a statement in writing … expressing any recommendation, opinion or advice …” within the meaning of the definition set forth in s 35(1).

21    That question occasioned the amendment to the Further Amended Application and the tender of the “Message Cover Sheet” dated 11 June 2013. In relevant part, that document provided as follows:

1.    ASIO assesses SAYED AKBAR JAFFARIE to be directly or indirectly a risk to security, within the meaning of Section 4 of the Australian Security Intelligence Organisation ACT 1979.

2.    ASIO therefore recommends that SAYED AKBAR JAFFARIE’s application for a Permanent visa subclass 100 be refused.

3.    ASIO therefore recommends that SAYED AKBAR JAFFARIE’s Temporary Offshore Spouse (provisional) visa be cancelled.

4.    Public Interest Criterion 4002, Part 1, schedule, 4, migration regulation refers.

That document, it is concluded, satisfies the requirements imposed by ss 35 and 37.

22    The argument briefly flirted with by Counsel for Mr Jaffarie that the advice provided to the Department did not constitute “a statement in writing … expressing any recommendation, opinion or advice…” within the definition set forth in s 35(1) was quickly abandoned.

Public interest immunity privilege & the cross-examination of the Director-General

23    It is against the back-drop of the important national security functions entrusted to ASIO that the claim for public interest immunity privilege (or Crown privilege as it used to be called) was made.

24    Documents that disclose matters affecting national security have long attracted claims for privilege: e.g., Duncan v Cammell Laird and Company Limited [1942] AC 624. Indeed, claims for public interest immunity privilege have been accepted in the specific context of the privilege now being claimed, namely in respect to security assessments comparable to that made in respect to Mr Jaffarie: e.g., Plaintiff M46 of 2013 v Minister for Immigration and Border Protection [2014] FCA 90, (2014) 139 ALD 277.

25    The claim for privilege in the present case was founded upon:

    an Open affidavit of the Director-General sworn on 9 April 2014 and 21 May 2014; and

    a confidential affidavit sworn by the Director-General on 21 May 2014.

Notwithstanding the fact that it is said that courts “will often receive documents and affidavits without making them available to the parties or their legal representatives” (Parkin v O’Sullivan [2009] FCA 1096 at [24], (2009) 260 ALR 503 at 509 per Sundberg J), the Court read the confidential affidavit of Mr Irvine but ultimately only relied upon the Open affidavit of 9 April 2014. That Open affidavit set forth both “general considerations” and more specific comments directed to security assessment. As a “general consideration”, the Director-General stated that it was “fundamental to the effective operation of an organisation such as ASIO that the specific details of its areas of interest, the identity of subjects of security interest, the degree of its ability to obtain intelligence in relation to those subjects, its sources, investigative techniques and work methods (modus operandi), its successes and the information derived from its successes, be kept in the strictest possible secrecy”. In respect to security assessments, the Director-General set forth (inter alia) the fact that adverse security assessments routinely set out or reveal:

•    the precise details of ASIO’s assessments;

•    the investigative process followed in undertaking the assessment;

•    the security issues that have been identified and which require resolution;

•    the sources of information that ASIO has relied on in forming the assessment;

•    the methods used to gather intelligence or corroborate information; and

•    any gaps in ASIO’s intelligence holdings and limits in its capabilities.

It was the opinion of the Director-General that the adverse security assessment in respect to Mr Jaffarie either fell within a “class” of documents for which privilege has in the past been upheld, or was privileged by reason of the contents of the particular assessment against Mr Jaffarie. Although not conclusive, a Court will give “full respect” to the reasons advanced in support of a claim to privilege: cf. Sankey v Whitlam (1978) 142 CLR at 1 at 146 per Gibbs ACJ. And in cases involving national security, Wilson and Dawson JJ in Alister v R (1983) 154 CLR 404 at 435 said that:

… Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister.

See also: R v Lodhi (2006) 163 A Crim R 508 at 517 per Whealy J.

26    The “weight” to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less “weight”, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the “weight” to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible – always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.

27    Upon the basis of that Open affidavit, it was concluded that the claim for privilege advanced should be upheld, including the claim for privilege in respect to Mr Irvine’s further confidential affidavit sworn on 21 May 2014. Even though the Court had read the confidential affidavit, it was considered that the preferable course was to resolve the claim for privilege – if at all possible – upon the basis of material that was available to the parties and their representatives. “The disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely”: Alistair v R (1984) 154 CLR 404 at 469 per Gibbs CJ, Wilson, Brennan and Dawson JJ. The public disclosure of as much information as possible not only ensures that the Court itself receives as much assistance as possible from the parties, it also ensures that the Court itself remains subject to public scrutiny. In the absence of scrutiny, “abuses may flourish undetected”; the very fact that “courts of law are held openly and not in secret is an essential aspect of their character”: Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J.

28    No different conclusion should be reached in the present proceeding in respect to the claim for privilege than was reached by Tracey J in Plaintiff M46, supra.

29    A separate question, however, arose as to whether the Director-General should be made available for cross-examination. That question arose because affidavits that had been sworn by the Director-General were read not only in support of the claim for privilege – but also had been read by the Respondents in the substantive judicial review proceeding and as a factual basis upon which one or other of the grounds of review should be rejected.

30    Counsel for Mr Jaffarie accepted that he could not cross-examine the Director-General, even on issues going to the merits of the grounds of review in the substantive proceeding, if to do so would disclose those matters the subject of the claim for privilege. Even if such evidence could be of assistance in the resolution of the legal merit of the arguments found within the grounds of review, the claim for privilege – it was accepted – would have the consequence that such evidence could not be given: cf. Hennessy v Wright (1888) 21 QBD 509. A “successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument”: Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61 per Mason J. Similarly, in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police [2008] HCA 4 at [5], (2008) 234 CLR 532 at 550 to 551 Gleeson CJ noted that the “consequence of success of such a claim is that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings”. Where a claim for Crown Privilege (or public interest immunity privilege) has been upheld in respect to a document, the privilege also extends to secondary evidence or oral evidence as to the contents of the document: Broome v Broome [1955] P 190 at 196 per Sachs J. See also: Christie v Ford (1957) 2 FLR 202 at 206. But Counsel for Mr Jaffarie further maintained that there nevertheless remained factual areas susceptible to cross-examination which were of relevance and which did not trespass into the prohibited zone of privilege. Those areas were identified and the cross-examination of the Director-General proceeded.

31    Given the constraints on permissible cross-examination, it was (perhaps) not surprising that the cross-examination of the Director-General produced little evidence of any assistance to the case sought to be advanced on behalf of Mr Jaffarie.

The reasons provided by ASIO

32    On 17 June 2013 the Director-General forwarded to the Department its adverse security assessment in respect to Mr Jaffarie. That assessment was described as the Final Appreciation. The Amended Statement of Agreed Facts referred to this document as the Classified Reasons. The claim for public interest immunity privilege in respect to that document has been upheld. The communication of that assessment to the Department was, in any event, conditional upon it being treated as confidential in accordance with s 503A of the Migration Act.

33    Mr Jaffarie has at no stage sought access to the Final Appreciation and a copy has not been provided to him or his legal representatives.

34    Presumably conscious of the need to disclose some explanation for the adverse security assessment that had been made, the Department upon receipt of the assessment (or shortly thereafter) requested ASIO to provide a version of the assessment that could be provided to Mr Jaffarie. Such a document was prepared and was referred to in the Amended Agreed Statement of Facts as the Unclassified Reasons. The Unclassified Reasons were provided to Mr Jaffarie on 30 August 2013 for the purposes of his making submissions in respect to the decision to be taken in September 2013 pursuant to s 501 of the Migration Act.

35    The difference between the “Classified” and “Unclassified” version of ASIO’s reasons was explained in the Amended Statement of Agreed Facts as follows:

7.    On 17 June 2013, the First Respondent (the Director-General) furnished to the Department a security assessment that the Applicant was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act) (the Adverse Security Assessment). The Respondents assert that the classified Statement of Grounds, which sets out the complete reasons for the making of the Adverse Security Assessment, is highly sensitive and highly classified (the Classified Reasons). If the Classified Reasons were sought by the Applicant, it would be subject to a claim for public interest immunity by the First Respondent.

8.    A separate document, which sets out in an unclassified form the reasons for the making of the Adverse Security Assessment, was provided to the Applicant as described in paragraph 19 below (the Unclassified Reasons). The Unclassified Reasons do not contain the complete reasons for the making of the Adverse Security Assessment.

9.    There is no material inconsistency between the opinions and reasons advanced in the Unclassified Reasons and the Classified Reasons (although the Classified Reasons claim further, and more detailed, reasons for the Adverse Security Assessment than those contained in the Unclassified Reasons). In particular, the Classified Reasons do not contain a statement or rely on an assumption inconsistent with the statement in the Unclassified Reasons that:

“People smuggling poses a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented individuals to gain entry to Australia, potentially including individuals of security concern”

36    Prior to the commencement of the hearing in this Court, the Unclassified Reasons provided the sole insight on the part of Mr Jaffarie into the assessment made by ASIO. The Unclassified Reasons provided in their entirety as follows:

For Official Use Only

On 6 June 2013 ASIO assessed Mr Sayed Akbar Jaffarie was directly or indirectly a risk to Australia’s security, within the meaning of section 4 of the ASIO Act.

Based on ASIO’s investigations, including a security assessment interview with Mr Jaffarie on 11 October 2012, ASIO assessed Mr Jaffarie:

•    had been involved in people smuggling targeting Australia (including facilitating and providing support for people smuggling activities);

•    maintained the capability to participate in people smuggling activities, including sourcing passengers, for passage on irregular maritime ventures;

•    associated with individuals involved in people smuggling;

•    had concealed and protected his involvement in people smuggling activities by providing false and misleading information to Australian authorities; and

•    would continue to engage in people smuggling activities if allowed to continue to reside in Australia.

People smuggling poses a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented individuals to gain entry to Australia, potentially including individuals of security concern.

ASIO’s security assessment of Mr Jaffarie considered his role in facilitating and coordinating people smuggling activities, his association with individuals involved in people smuggling ventures targeting Australia, and his character relevant to security.

Potential Consequences to Security

ASIO assesses individuals involved in people smuggling activity entering and residing in Australia have the potential to increase the level and strength of onshore-based involvement in people smuggling or irregular maritime arrivals to Australia.

Regard [h]as been to the requirements of procedural fairness and any relevant legislative test.

37    As the hearing progressed, however, further materials exposed the manner in which ASIO had proceeded. These further materials were contained within:

    the Briefing Note annexed to Mr Irvine’s “Open” affidavit sworn on 21 May 2014;

    the e-mail annexed to Ms Palisi’s affidavit, namely the e-mail forwarded on 17 June 2013; and

    the “Truncated Final Appreciation” annexed to Mr Irvine’s “Open” affidavit sworn on 9 April 2014.

38    The Briefing Note stated in what it identified as the “Key Message” as follows:

Mr Jaffarie is currently in the Australian community on an offshore spouse (provisional) reunion visa and was referred by DIAC for a security assessment concerning his application for an Australian Partner (Migrant) (Subclass 100) visa and subsequent permanent residence status in Australia.

ASIO assesses Mr Jaffarie is a key Australia-based member of the Sayed Abbas maritime people smuggling syndicate xxxxxxx xxxxxxx xxxxx xxxxx xxxxxx xxxxxx xxxxxx xxxxxx xxxx xxxxx xxxxxx xxxxx xxxxxx xxxxx xxxxx xxxxxx ASIO assesses it would not be consistent with the requirements of security for Mr Jaffarie to be granted permanent residence status to reside in Australia. The information relied upon by ASIO in forming this assessment is set out in the attached minute.

39    The e-mail forwarded to the Department on 17 June 2013 stated in relevant part as follows:

NAME: JAFFARIE/JAFFARIE Sayed Akbar

DOB: X January XXXX, Kamrag, Afghanistan

Permanent Visa Subclass 100, reference: OSFXXXX/XXXXX/srsXXXXXX

Temporary Visa Subclass 309.

1.    ASIO assesses that Sayed Akbar Jaffarie is directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.

2.    ASIO assesses:

a)    that the requirements of security make it necessary or desirable for Mr Jaffarie’s Partner (Provisional) (subclass 309) temporary visa to be cancelled under the Migration Act 1958 (the Migration Act); and

b)    that it would not be consistent with the requirements of security for Mr Jaffarie to be granted a Partner (Migrant) (Subclass 100) permanent visa under the Migration Act.

3.    ASIO recommends that the Minister for Immigration and Citizenship:

a)    cancels Mr Jaffarie’s Partner (Provisional) (subclass 309) temporary visa; and

b)    refuse to grant Mr Jaffarie a Partner (Migrant) (subclass 100) permanent visa.

4.    Public Interest Criterion 4002. Part 1, schedule 4, migration regulation refers.

40    The Truncated Final Appreciation, as its title suggests, took the form of the Final Appreciation but with parts being deleted. Thus, for example, paragraph 4 provided as follows:

Based on ASIO’s investigations, it is assessed Mr Jaffarie:

a.    has been involved in people smuggling targeting Australia […] (including facilitating and providing support for people smuggling activities);

b.    maintains the capability to participate in people smuggling activities targeting Australia, including sourcing passengers […] for passage on irregular maritime ventures;

c.    maintains an ongoing association with individuals involved in facilitating and coordinating irregular maritime ventures targeting Australia;

d.    has sought to conceal and protect his involvement in people smuggling by providing false and misleading information to Australian authorities […]; and

e.    will continue to engage in people smuggling activities targeting Australia if allowed to continue to reside in Australia.

Particular attention was given by Counsel for Mr Jaffarie to paragraphs 12 and 23 of the Truncated Final Appreciation. Paragraph 12 provided as follows:

Security assessment of Mr Jaffarie

Activities relevant to security: Involvement in People Smuggling

12.    ASIO assesses Mr Jaffarie has sourced Potential Irregular Immigrants (PIIs) to Australia through the Hazara community in Australia, […] in an extensive Indonesia-based people smuggling syndicate led by Sayed Abbas Azad (Sayed Abbas),6 […] this syndicate has organised or been involved in the facilitation of […] Suspected Irregular Entry Vessels (SIEV) targeting Australia […]

[…]

[…]

Footnote 6 provided as follows:

Sayed Abbas Azad aka Abbas […] is a prominent Indonesia-based Afghan people smuggler who has organised irregular maritime ventures targeting Australia. Abbas was arrested and detained in Indonesia in August 2011 for immigration offences. He remains in gaol in Indonesia and may face extradition to Australia for his involvement in maritime people smuggling once he serves his sentence in Indonesia. […]

Paragraph 23 of the Truncated Final Appreciation provided as follows:

When ASIO asked Mr Jaffarie at interview about his connections to Sayed Abbas and his involvement in people smuggling activities he said he had no involvement or contact with Sayed Abbas, noting he had not heard of Sayed Abbas until the police had previously mentioned the name to him. Mr Jaffarie denied involvement in people smuggling when asked on a number of occasions, saying ‘No, nothing like that’, ‘Never’, and ‘I swear I don’t have any idea about that’. […] ASIO assesses Mr Jaffarie lied about this matter to conceal his involvement with the Sayed Abbas Syndicate.

Liang and the liberty of the subject

41    The manner in which the Unclassified Reasons should be construed was briefly the subject of submissions. But it is a matter of some considerable importance.

42    On behalf of the Commonwealth Respondents, recourse was had to the oft-repeated observations that a “court will not be concerned with looseness in the language ... nor with unhappy phrasing of the reasons of the Tribunal’s thoughts” and that the “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. After referring to these statements, Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 continued on to observe:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…

See also: Kirby J at 291 to 293. Applied: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], (2007) 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36], (2007) 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ; SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [13] per Siopis, Perram and Davies JJ.

43    But the manner in which any particular set of reasons provided by a Commonwealth Minister or a statutory authority are to be construed must always necessarily depend upon the statutory context in which they are provided and the facts and circumstances of any individual case. A greater degree of scrutiny may, for example, be exercised where reasons have been provided in the expectation that they will be carefully analysed (TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 at [36] per Emmett J) or where the reasons have been drafted by those with considerable expertise or legal qualifications (Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37], (2012) 205 FCR 306 at 315 to 316 per Lander, Flick and Jagot JJ).

44    So, too, may considerable attention to detail be directed to reasons provided which affect the liberty of the subject – even in a context where questions of national security are said to be of relevance. The days have long gone when (for example) it was able to be said:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public: The Zamora [1916] 2 AC 77 at 107 per Lord Parker.

Although courts remain “sensitive” to claims being made, it is now accepted that they will not act on “mere assertions that questions of national security [are] involved”: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 420 per Lord Roskill. The imperative to have some degree of judicial supervision is manifest; to preclude judicial supervision would be a “draconian and dangerous step”: R v Secretary of State for the Home Department; Ex parte Ruddock [1987] 2 All ER 518 at 526 to 527. In rejecting an argument that the Secretary of State in that case could “invariably maintain silence”, Taylor J there observed:

I recognise there could occur a case where the issue raised was so sensitive and the revelations necessarily following its decision so damaging to national security that the court might have to take special measures (for example sitting in camera or prohibiting the mention of names). Conceivably (although I would reserve the point) in an extreme case the court might have to decline to try the issues. But in all such cases, cogent evidence of potential damage to national security flowing from the trial of the issues would have to be adduced, whether in open court or in camera, to justify any modification of the court’s normal procedure. Totally to oust the court's supervisory jurisdiction in a field where ex hypothesi the citizen can have no right to be consulted is a draconian and dangerous step indeed. Evidence to justify the court's declining to decide a case (if such a course is ever justified) would need to be very strong and specific.

Just as the Secretary of State could there not “maintain silence”, in the present case the Director-General quite properly has voluntarily disclosed the rudimentary basis upon which he has proceeded. That reasoning process which has been disclosed can be carefully scrutinised. “Mere assertions” are not good enough. When resolving an application for judicial review of “an exclusion order” made under the Prevention of Terrorism (Temporary Provisions) Act 1989 (UK) and when considering whether the Secretary of State had properly exercised the discretion, Sedley J in R v Secretary of State for the Home Department; Ex parte McQuillan [1995] 4 All ER 400 at 421 has similarly observed that “the courts would scrutinise his reasoning closely and draw the boundaries of rationality tightly around his judgment”.

45    In the present proceeding, it is thus considered appropriate that the “Unclassified Reasons” may be construed with some considerable care given:

    the important responsibilities entrusted to ASIO in its assessment of matters going to the security of the Commonwealth;

    the fact that adverse security assessments may well have an immediate consequence – as was the fact in the present case – upon the liberty of the subject and an ability to remain in Australia;

    the fact that presumably a great deal of care was taken by those who drafted the “Unclassified Reasons” to ensure that the version provided to Mr Jaffarie accurately disclosed to him the basis upon which ASIO had proceeded; and

    the fact that the “Unclassified Reasons” were carefully prepared to ensure that there was no “inconsistency” between what Mr Jaffarie was being told and what the Department was being told.

A tension necessarily exists between the unquestioned public interest and public importance in protecting the security interests of the Commonwealth – and the importance of the role played by ASIO – on the one hand, and the equally unquestioned public interest in protecting the liberty of the subject and the proper administration of justice. Sometimes those on one side of the line or the other, and on occasions those on both sides of the line, may be dissatisfied with conclusions reached as to how that balance is to be achieved. But there is no tension in reaching a conclusion that the “Unclassified Reasons” may properly be read with a considerable degree of care. They may be read with the same careful attention to detail as the care taken by those who prepared those reasons. The fact that the “Unclassified Reasons” may have been voluntarily provided and not pursuant to any statutory obligation to do so does not, it is considered, detract from the degree of care with which those reasons may be read: cf. East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [228], (2008) 254 ALR 112 at 168 per Ashley and Redlich JJA; Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105 at [52], (2009) 179 FCR 323 at 337 to 338 per Flick J (Spender and Lander JJ agreeing). In judicial review proceedings in which decisions affecting a person’s status to remain in Australia are taken on the basis of an adverse security assessment furnished by ASIO, the reasons provided for that assessment will be examined closely. In such a context there will be little work for the principle that latitude is to be allowed in considering the reasons given by an administrative decision-maker or, as it has been put on other occasions, that the reasons are not to be approached with an eye closely attuned to the detection of error.

46    Had attention been confined to the “Unclassified Reasons”, considerable difficulty may have been experienced in concluding that the Director-General had properly exercised the power conferred by s 17(1) of the Australian Security Intelligence Organisation Act to “advise” the Minister given (for example):

    the indiscriminate reference at the outset of those reasons to Mr Jaffarie being “directly or indirectly” a risk to Australia’s security;

    the recitation of either statutory language or the statement of mere conclusions such as “people smuggling poses a serious risk to Australia’s territorial and border integrity”; and

    the absence of any finding or detail being provided in respect to Mr Jaffarie.

Such criticisms have, it may be noted, a similarity to those advanced in submissions in R v Secretary of State for the Home Department; Ex parte McQuillan [1995] 4 All ER 400 at 413. Read with the appropriate degree of care and scrutiny, it may well have been concluded that the balance fell in favour of Mr Jaffarie and in favour of a conclusion that the Director-General had erred in law.

47    The same degree of care and scrutiny should also be exercised when reading the balance of the reasoning of the Director-General which has been disclosed in addition to that set forth in the “Unclassified Reasons”.

48    Such “deference” as may be extended by courts to those entrusted with making an assessment of national security interests is founded in part upon the reasoning standing behind the basis upon which such assessments have been formed and a confidence on the part of the courts, that those making those assessments are forever conscious of the legal limitations placed upon their powers. The existing difficulties confronting those who seek to challenge such assessments, including the inability to seek merits review, and the absence of an ability to invoke the Administrative Decisions (Judicial Review) Act 1977 (Cth), are well recognised: Bush C “National Security and Natural Justice” (2008) 57 AIALF 78; McGarrity N “Review of the proscription of terrorist organizations: What role for procedural fairness?” (2008) 16 AJ Admin L 45; Hardy K, “ASIO, adverse security assessments, and a denial of procedural fairness” (2009) 17 AJ Admin L 39; Burton L and Williams G, “The Integrity Function and ASIO’s Extraordinary Questioning And Detention Powers” (2012) 38 Mon LR 1; Groves M “The Insecurity Of Fairness In Security Cases” (2013) 24 PLR 151.

49    Notwithstanding such constraints, the Courts – it is respectfully considered – should be vigilant to ensure that those who exercise power should keep within the limitations of their powers and equally vigilant to ensure the rights of citizens are protected.

50    It is in this manner that the reasoning processes of ASIO should be construed when resolving each of the grounds of review ultimately relied upon by Mr Jaffarie.

The grounds of judicial review relied upon

51    The Third Further Amended Application set forth a variety of grounds of review. The grounds there set forth are to be applied to the entirety of the publicly available reasoning process of the Director-General.

52    The grounds of review that received particular attention and which are in need of resolution, are (in summary form) arguments that:

    the phrase “Australia’s territorial and border integrity” is “constrained” by an accepted meaning of the phrase in international law such that a “serious threat” is “limited to acts that threaten to attack a State or to subject it to division, secession, occupation or annexation…”;

    the Director-General erred in his construction and application of the term “security” and the expression “serious threat” as found in s 17 of the Australian Security Intelligence Organisation Act by including “people smuggling”;

    the security assessment was “irrational, illogical or unreasonable”;

    the decisions of the Minister to cancel Mr Jaffarie’s visa and to refuse to grant a visa are contrary to Chapter III of the Constitution; and

    the Minister has denied Mr Jaffarie procedural fairness.

Each of these grounds, it may be accepted, may constitute jurisdictional error: Craig v The State of South Australia (1995) 184 CLR 163 at 180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [41], (2001) 206 CLR 323 at 339 to 340 per Gaudron J. The amended grounds of review express each of these arguments in various ways. But, however expressed, none of these grounds of review, it is concluded, prevail.

Australia’s territorial and border integrity

53    No submission was advanced challenging the Constitutional competence of the Commonwealth Legislature to enact the Anti-People Smuggling and Other Measures Act 2010 (Cth) (“Anti-People Smuggling and Other Measures Act”) and, in particular, Schedule 2 to that Act. It was that Act which (inter alia) inserted paragraph (aa) into the definition of “security” in s 4 of the Australian Security Intelligence Organisation Act.

54    The submission that was advanced, however, was that:

    a confined meaning should be given to para (aa) of the definition of “security” set forth in s 4 of the Australian Security Intelligence Organisation Act; and that

    such a confined meaning was supported by the Constitutional heads of power that under-pinned the Australian Security Intelligence Organisation Act (and amending Acts).

Paragraph (aa) relevantly refers to “the protection of Australia’s territorial and border integrity”.

55    This phrase, it was submitted, had a well-accepted meaning in international law. The Max Planck Encyclopaedia of Public International Law thus stated that:

… territorial integrity and political independence are two core elements of Statehood. Territorial integrity refers to the territorial ‘oneness’ or ‘wholeness’ of the State [while] political independence refers to the autonomy in the affairs of the State with respect to its institutions, freedom of political decisions, policy making, and in matters pertaining to its domestic and foreign affairs”: (Oxford University Press, 2011).

Such a meaning, it was then submitted, confined a threat to “territorial integrity” for the purposes of para (aa) to a threat “to attack a State or to subject it to division, secession, occupation or annexation…”. The term “integrity”, on this approach, was said to refer “to the indivisibility of Australia’s territory and borders, and their immunity from armed attack, division, secession, occupation or annexation”.

56    “People smuggling”, on this approach, was said to fall short of what constituted a “serious threat” to the “protection of Australia’s territorial and border integrity…”.

57    It is unnecessary to resolve any question as to whether the phrase “territorial integrity” has such an accepted meaning in international law as is advanced on behalf of Mr Jaffarie.

58    Such a confined meaning is neither supported by the natural and ordinary meaning of the phrase employed in paragraph (aa) nor by any of the Constitutional heads of power that were relied upon as supporting the Anti-People Smuggling and Other Measures Act. That Act would be amply supported by the immigration power in s 51(xxvii) of the Constitution. The source of the suggested limitation advanced on behalf of Mr Jaffarie was nevertheless said to be found by reference to s 51(vi), (xxvii), (xix) and/or (xxix). No such limitation or constraint upon the natural and ordinary meaning of the phrase employed in paragraph (aa) is to be found in any of these provisions.

59    There is certainly no constraint within s 51(vi) which would confine the competence of the Commonwealth legislature to define the term “security” in a manner consistent with the confined interpretation sought to be distilled from international law. The ambit of the power conferred by s 51(vi) to make laws with respect to “the naval and military defence of the Commonwealth and of the several States” is, it is well-recognised, not to be “narrowly construed”: White v Director of Military Prosecutions [2007] HCA 29 at [106], (2007) 231 CLR 570 at 611 per Kirby J. And, “unlike some other powers, its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law”: Andrews v Howell (1941) 65 CLR 255 at 278 per Dixon J. But, whatever may be the operation of s 51(vi) in times of war as opposed to times of peace, the power conferred “is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public”: Thomas v Mowbray [2007] HCA 33 at [7], (2007) 233 CLR 307 at 324 per Gleeson CJ. “The operation of s 51(vi) is ‘not confined to time[s] of war’…”: [2007] HCA 33 at [240], (2007) 233 CLR 307 at 392 per Kirby J (in dissent). The amendments there under challenge, it may be noted, were enacted in 2005 when Australia was not at war and were held to be valid. See also: The Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 259 per Fullagar J.

60    Nothing in the manner in which s 51(vi) has been construed provides support for the limitation of meaning sought to be ascribed to paragraph (aa). There is, in particular, no reason why a “serious threat” to “territorial and border integrity” is confined to an “attack” which threatens the “oneness” of Australia. There is nothing inherent in the defence power conferred by s 51(vi) which would limit the power in that manner. Indeed, a reading of s 51(vi) which confines the legislative competence of the Commonwealth Legislature to resisting an “attack” upon the borders of Australia is a reading which is not self-evidently correct and one which is inconsistent with the manner in which that power has been construed to-date.

61    Section 51(xxvii) provides even less reason for any constraint being imposed upon the natural and ordinary meaning of the words employed in paragraph (aa). That placitum confers the power to make laws with respect to “immigration and emigration”. That power is “clearly ample enough to authorize Parliament to control the entry of persons into Australia” (Ex parte De Braic (1971) 124 CLR 162 at 164 per Barwick CJ, McTiernan and Owen JJ agreeing). The right to exclude persons from Australia is included within the power to regulate immigration: Robtelmes v Brenan (1906) 4 CLR 395 at 415 per Barton J. That power would clearly extend to steps to prevent or monitor “people smuggling” and to protect “Australia’s territorial and border integrity from serious threats”. That subject-matter would either fall within s 51(xxvii) or that power together with the “incidental power” conferred by s 51(xxix) of the Constitution: cf. Williamson v Ah On (1926) 39 CLR 95 at 108 per Isaacs J.

62    And, with reference to s 51(xix) Starke J in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 132 to 133 observed:

… the Parliament has ample power to authorize the Executive to exclude persons and to suppress and prevent acts detrimental to the Commonwealth, in respect of subjects over which it has power. Thus it would be a valid law, in my opinion, if the Parliament provided that any alien who in the opinion of the Minister was an undesirable resident of Australia might be deported: it would be valid because the Parliament has full power over the subject of aliens…

See also: NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 at [8], (2014) 220 FCR 44 at 47 per Allsop CJ and Katzmann J.

63    Nor can any reason to limit the natural and ordinary meaning of the words employed in para (aa) be found within the external affairs power, namely s 51(xxix). Although the expression “external affairs” is “imprecise and indeed ambiguous” (Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 188 per Gibbs CJ), the expression is “wide enough to cover places, persons, matters or things” and “is unqualified”: Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 632 per Dawson J. Section 51(xxix) is not confined to the execution of treaties or conventions: R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687 per Evatt and McTiernan JJ.

64    The term “security” and the phrase “the protection of Australia’s territorial and border integrity” is thus not to be read in the confined manner advanced on behalf of Mr Jaffarie. Nothing in paragraph (aa) suggests that the phrase should be given anything other than the natural and ordinary meaning of the words employed; indeed, if anything, the statutory context in which the phrase is employed strongly suggests that no pedantic or unnecessary construction should be placed upon the phrase. And nothing in s 51(vi), (xxvii), (xix) or (xxix) suggests any different conclusion. Nor does the confined role entrusted to ASIO, as opposed to the role entrusted to law-enforcement agencies to monitor compliance with those who seek to illegally enter Australia, dictate a confined meaning to be given to paragraph (aa).

65    It may be further observed that such a confined construction of paragraph (aa) of the definition of “security” employed in s 4 of the Australian Security Intelligence Organisation Act could well set “the bar too high” and frustrate the ability of ASIO to properly monitor and assess threats to Australia’s national interests: cf. Suresh v Canada (The Minister of Citizenship and Immigration) [2002] SCC 1 at [88], [2002] 1 SCR 3 at 50 to 51. To give the phrase “the protection of Australia’s territorial and border integrity” the confined meaning advanced on behalf of Mr Jaffarie may well hamstring ASIO in its ability to confront the ever growing threat of terrorism and associated evils.

66    The submission is thus rejected that the Director-General had either misconstrued the ambit of the definition of “security”, or exceeded the powers conferred by not confining his assessment to that which constituted an “attack” on the “oneness” of Australia.

Security and a serious threat v People smuggling?

67    The most viable ground of review relied upon by Mr Jaffarie was an argument that the Director-General may have misconstrued what constitutes a “serious threat” for the purposes paragraph (aa) of the definition of “security” in s 4 of the Australian Security Intelligence Organisation Act.

68    The legislative “purpose” sought to be achieved by the amendments effected in 2010 by the Anti-People Smuggling and Other Measures Act was set forth in the Explanatory Memorandum to the Bill as follows:

The purpose of this Bill is to strengthen the Commonwealth’s anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation. The Bill will put in place laws to provide greater deterrence of people smuggling activity and to address the serious consequences of such activity. The Bill will also provide greater capacity for Australian Government agencies to investigate and disrupt people smuggling networks. In this manner, the Bill supports an intelligence led approach to countering the crime of people smuggling.

Schedule 1 to that Act effected amendments to (inter alia) the Criminal Code Act 1995 (Cth) and the Migration Act. Schedule 2 effected the amendments to the Australian Security Intelligence Organisation Act.

69    The 2010 amendment of present relevance was the amendment to the definition of “security” by adding paragraph (aa) such that “security” is now defined (relevantly) as meaning “the protection of Australia’s territorial and border integrity from serious threats”.

70    The germ of an argument was exposed if attention was confined to the Unclassified Reasons. That account of the reasoning process undertaken by ASIO potentially exposed error in either:

    proceeding from a possibly erroneous assumption that all people smuggling is necessarily a “serious threat” to “Australia’s territorial and border integrity”; or

    failing to identify any basis upon which it could be concluded that the particular activities of Mr Jaffarie and his involvement in “people smuggling” constituted such a “serious threat”.

71    Any unlawful encroachment upon “Australia’s territorial and border integrity” is a matter which may well warrant the active attention of one or other of Australia’s statutory authorities or Departments of State, including the Department of Immigration and Border Protection and those responsible for the enforcement of the Criminal Code (as amended in 2010). But the only encroachments that fall within the purview of ASIO are those that constitute a “serious threat”. ASIO is not a law enforcement agency; “its functions are more discrete”: Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 at [32], (2006) 149 FCR 540 at 547 per Nicholson, Mansfield and Bennett JJ. The Legislature, it may readily be inferred, sought to draw a distinction between encroachments and those that constitute a “serious threat”. It was only the latter that were entrusted to ASIO and it is only the latter that can lawfully provide a factual basis for an “adverse security assessment”. Where that line may be drawn in any particular case may well create difficulties; and questions may arise as to the extent to which ASIO itself can determine – free of judicial scrutiny – whether a particular set of facts constitutes a “serious threat”. But such potential problems do not presently arise for determination.

72    Nor is it necessary for present purposes to attempt any detailed exposition of what may constitute a “serious threat”. Caution must necessarily be exercised in any judicial exposition of what may constitute a “serious threat” to security. Such phrases, it is respectfully considered, must be interpreted “flexibly”. But ultimately any assessment on the part of ASIO that the facts constitute a “serious threat” must be an assessment “grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible”: cf. Suresh v Canada (The Minister of Citizenship and Immigration) [2002] SCC 1 at [90], [2002] 1 SCR 3 at 51. When addressing the question as to whether a statutory provision requiring the Minister to consider “danger to the security of Canada” was Constitutionally “vague”, the Court there observed:

[89]    While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to refoule a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while “danger to the security of Canada” must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.

[90]    These considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious,” in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.

French CJ in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 at [68], (2012) 292 ALR 243 at 266 cited with approval these observations in Suresh, supra, as to what was meant by the term “serious”. See also: Zaoui v Attorney-General [2004] 2 NZLR 339 at 372 to 373 per Williams J.

73    When construing the “Unclassified Reasons” as to why ASIO concluded that Mr Jaffarie “was directly or indirectly a risk to Australia’s security”, it is necessary to determine whether such reasons as were exposed demonstrated that the assessment made by ASIO was founded upon something which “objectively” demonstrated that the risk was “serious” or – perhaps expressed differently – “substantial rather than negligible”. The particular “evidence” upon which ASIO founded its assessment, it may readily be accepted, may legitimately attract a claim for public interest immunity privilege. But that which was exposed in the “Unclassified Reasons” is to be scrutinised with some degree of care.

74    The only express finding made by ASIO in respect to Mr Jaffarie in the “Unclassified Reasons” was that he “was directly or indirectly a risk to Australia’s security, within the meaning of section 4 of the ASIO Act”.

75    There were thereafter set forth in the “Unclassified Reasons” findings as to (for example) “people smuggling pos[ing] a serious threat to Australia’s territorial and border integrity” and findings as to individuals involved in people smuggling having “the potential to increase the level and strength of onshore-based involvement in people smuggling or irregular maritime arrivals to Australia”.

76    But these more generally expressed findings potentially fell short of being findings directly made as to either:

    why the “people smuggling” the subject of the assessment constitutes a “serious threat”; or

    what it was about Mr Jaffarie’s participation in those “people smuggling activities” that may transform what may otherwise be a reprehensible and unlawful activity on his part in “people smuggling” into a “serious threat.”

Other than the conclusion at the outset that Mr Jaffarie was “directly or indirectly a risk to Australia’s security” there thereafter followed no finding to support that conclusion. The closest that the “Unclassified Reasons” came to such a finding was the statement that:

“ASIO’s security assessment of Mr Jaffarie considered his role in facilitating and coordinating people smuggling activities, his association with individuals involved in people smuggling ventures targeting Australia, and his character relevant to security.”

But the basis upon which such “consideration” proceeded remained undisclosed. Nor are any findings reached as a result of any such “consideration”.

77    Not all involvement in “people smuggling”, it was suggested during the course of the hearing, necessarily constituted a “serious threat” within the meaning of and for the purposes of the definition in s 4 of the Australian Security Intelligence Organisation Act.

78    “People smuggling” is made a criminal offence punishable by imprisonment for up to 20 years by s 233C of the Migration Act. This provision (and its predecessor, s 232A) is an offence which has attracted some degree of judicial attention (e.g., R v Alif [2012] QCA 355, [2013] 2 Qd R 140; R v Ahmad [2012] NTCCA 1, (2012) 256 FLR 423; Taru Ali v R [2013] NSWCCA 211, (2013) 281 FLR 257) and academic commentary (Wallace D “Migrant Smuggling, Criminal Fault and the Legal Status of Australia: PJ v The Queen” (2013) 39 Mon LR 246). Commonwealth offences relating to unauthorised entry into Australia have, however, long pre-dated these provisions and have existed in one form or another since federation. Their evolution has been traced by Allsop P (as his Honour then was) in Karim v R [2013] NSWCCA 23 at [23] to [29], (2013) 274 FLR 388 at 397 to 398. It is an offence which “presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk of health and life; and it imposes significant costs upon the Australian public”: R v Feng Lin [2001] NSWCCA 7 at [3], (2001) 119 A Crim R 194 at 194 to 195 per Mason P.

79    But ASIO is not a law enforcement agency: Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30, (2006) 149 FCR 540 at 547. Nicholson, Mansfield and Bennett JJ there stated:

[32] … In the case of ASIO, it is not a “law enforcement agency” as it is not responsible for the enforcement of any laws of the Commonwealth; its functions are more discrete: see ss 17, 27A, 27B of the ASIO Act…

See also: R v Thomas (No 4) [2008] VSCA 107 at [44], (2008) 218 FLR 242 at 253 per Maxwell ACJ, Buchanan and Vincent JJA. And, moreover, the impact upon Australia’s security of “people smuggling” may vary from case to case. Examples pursued in exchanges with Counsel for the parties ranged from “facilitating and co-ordinating” the annual smuggling into Australia of fruit pickers to assist in harvesting, to the smuggling into Australia of nuns. Neither activity may constitute a “serious threat”.

80    There is in the present proceeding no finding in the “Unclassified Reasons” as to the extent or volume of such “people smuggling” with which Mr Jaffarie was involved. The smuggling of large numbers of persons may constitute a more “serious threat” than the smuggling of small numbers of persons. Conversely, the smuggling of a small number of (for example) insurgents or terrorists may pose a more “serious threat” than the smuggling of a far larger number of fruit pickers. But nothing is known of such matters. No finding is set forth in the “Unclassified Reasons” which brings Mr Jaffarie within the reach of paragraph (aa) of the definition of “security”.

81    The only way to arrive at the conclusion reached by ASIO in its “Unclassified Reasons” is to say that all people smuggling constitutes a “serious threat” or that anyone “facilitating and coordinating people smuggling” constitutes a “serious threat” to “the protection of Australia’s territorial and border integrity…”. But that is not what paragraph (aa) says. No finding set forth in the “Unclassified Reasons” necessarily brings the activities of Mr Jaffarie within the purview of the functions of ASIO – as opposed to (for example) the Department of Immigration and Border Protection.

82    Had the explanation provided by ASIO for its security assessment remained that set forth in the “Unclassified Reasons”, the argument initially advanced on behalf of Mr Jaffarie may have had considerable merit.

83    But all such prospects of success, it is respectfully concluded, evaporated when reference is made to the Truncated Final Appreciation. What that document adds to an understanding as to the manner in which the Director-General formed his assessment as to why Mr Jaffarie was a “serious threat” and why his people smuggling activities fell within that expression are the assessments made by ASIO that Mr Jaffarie:

    works with Mr Sayed Abbas Azad and that Mr Abbas leads “an extensive Indonesia-based people smuggling syndicate” which has been involved in or facilitated a number of “irregular entry vessels” targeting Australia;

    “is a prominent member of the Sayed Abbas maritime people smuggling syndicate in Australia and is directly involved in people smuggling”;

    lied about his involvement in people smuggling and in stating that he had not heard of Mr Abbas and that he did so “to conceal his involvement with the Sayed Abbas syndicate”; and

    “has a significant monetary incentive to continue his involvement in people smuggling.”

It is considered that these further findings carry the concerns otherwise expressed in the “Unclassified Reasons” much further. Although these further findings may be generally expressed, it is concluded that they do take the assessments beyond mere assertions that all people smuggling necessarily constitutes a “serious threat”. Whether the findings of fact are correct or are founded upon reliable information is not presently relevant. Of present relevance is the rejection of an argument that the Director-General misconstrued the phrase “serious threat” by reason of necessarily equating all “people smuggling” with a “serious threat”, or by reason of concluding that Mr Jaffarie constituted “directly or indirectly a risk to Australia’s security” without any findings being made as to the nature and extent of his actual involvement in “people smuggling”.

84    It is thus concluded that the Director-General committed no error in his construction and application of paragraph (aa) of the definition of “security” in s 4 of the Australian Security Intelligence Organisation Act. Nor did the Minister commit any separate error in placing reliance upon the “assessment” that had been provided to him.

The security assessment as an exercise of judicial power?

85    A separate argument advanced on behalf of Mr Jaffarie is that the making of the security assessment is an interference with the judicial power of the Commonwealth and contravenes Chapter III of the Constitution. It is submitted that the “conferral of powers upon an administrative agency to determine that a non-citizen lawfully present in Australia has committed an offence with the automatic consequence that he is to be detained involuntarily and removed from Australia without judicial order or oversight is novel…” and “does not fall within an established “exceptional case”…”.

86    The argument, with respect, is misconceived.

87    It may readily be accepted that ss 1, 61 and 71 of the Constitution prescribe the doctrine of separation of legislative, executive and judicial powers (The State of New South Wales v The Commonwealth (1915) 20 CLR 54 at 88 to 90 per Isaacs J) and that it is only a Chapter III court that can exercise the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ). It may also be readily accepted that “the adjudgment and punishment of criminal guilt under a law of the Commonwealth” has “become established as essentially and exclusively judicial in character”: Chu Kheng Lim v Minister for Immigration, Local Government and Ethic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

88    The difficulty with this argument as advanced on behalf of Mr Jaffarie is that the making of the adverse security assessment by ASIO has none of the hall-marks of an exercise of judicial power and that the consequences he seeks to attribute to the making of such an assessment are factually misplaced.

89    The “function” being discharged by ASIO in furnishing the “security assessment” to the Department of Immigration and Border Protection on 17 June 2013 was that conferred by s 17(1)(c) of the Australian Security Intelligence Organisation Act. The document so furnished was but an “assessment”. It did not determine any guilt or innocence of Mr Jaffarie.

90    The making of an adverse security assessment unquestionably led to a chain of events, two of which were:

    the cancellation of his subclass 309 visa pursuant to s 116(1)(g) of the Migration Act; and

    the refusal of a bridging visa pursuant to s 501(1) of the Migration Act.

The cancellation of the visa pursuant to s 116 was a more immediate consequence than the refusal of the visa pursuant to s 501.

91    Section 116 relevantly provides as follows:

Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(g)    a prescribed ground for cancelling a visa applies to the holder.

…

(3)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Regulation 2.43 of the Migration Regulations 1994 (Cth), in turn, relevantly provides as follows:

Grounds for cancellation of visa (Act, s 116)

(1)    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

…

(b)    that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;

For the purposes of s 116, it would follow that the Minister “must” cancel Mr Jaffarie’s visa upon the assessment being made that he was “directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979”.

92    The consequences flowing from the adverse security assessment for the purposes of s 501 of the Migration Act were less immediate. Section 501(1) provides as follows:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

And s 501(6) provides in relevant part as follows:

For the purposes of this section, a person does not pass the character test if:

…

(b)    the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

…

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

The reasons provided by the Minister in respect to his August 2013 decision expressly set forth the text of s 501(6)(b) and (d) and state in part as follows:

Protection of the Australian Community

6.    Having found that Mr JAFFARIE does not pass the character test by virtue of sections 501(6)(b) and 501(6)(d)(v), I gave great weight to the protection of the Australian community.

7.    I note ASIO’s assessment that Mr JAFFARIE has been involved in people smuggling activities and is likely to continue to be involved in such activities. People smuggling is of great concern to the Australian government and Australian community.

The refusal of the s 501 bridging visa was, accordingly, not the inevitable consequence of ASIO providing the adverse security assessment. Unlike the constraint upon the Minister imposed by s 116(1)(g) and Regulation 2.43, s 501 retained unto the Minister a discretionary power.

93    It was, however, the cancellation of the visa pursuant to s 116 and the refusal of a bridging visa pursuant to s 501 which called into play ss 13 and 14 of the Migration Act. Those sections provide as follows:

13    Lawful non-citizens

(1)    A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

(2)    An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14    Unlawful non-citizens

(1)    A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2)    To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

Upon the cancellation of his visa pursuant to s 116, Mr Jaffarie became an “unlawful non-citizen” and liable to detention pending removal from Australia pursuant to ss 189 and 196. Section 189(1) thus provides as follows:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

And s 196(1) provides as follows:

An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

94    But none of these provisions, and most immediately the making of the adverse security assessment, involved any exercise of the judicial power of the Commonwealth.

95    The making of that assessment by ASIO was not the determination of any “guilt” on the part of ASIO. And such consequences as thereafter flowed – including his detention for the purposes of his removal from Australia – were not the imposition of any “punishment”. “The right to deport is the complement of the right to exclude; the right to exclude is involved in the right to regulate immigration”: Robtelmes v Brenan (1906) 4 CLR 395 at 415 per Barton J. And exclusion or expulsion is not a “punishment” for an offence: Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562 at 584. McHugh J there concluded:

[44]    Nor does the continued detention of a person who cannot be deported immediately infringe Ch III of the Constitution. Chapter III is always infringed where the detention of a person other than by a curial order — whatever the purpose of the detention — is authorised by a law of the Commonwealth and imposes punishment. However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive purpose. That does not mean, however, that a law authorising detention in the absence of a curial order, but whose object is purely protective, cannot infringe Ch III of the Constitution. Even a law whose object is purely protective will infringe Ch III if it prevents the Ch III courts from determining some matter that is a condition precedent to authorising detention.

[45]    A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive. The Parliament of the Commonwealth is entitled, in accordance with the power conferred by s 51(xix) and without infringing Ch III of the Constitution, to take such steps as are likely to ensure that unlawful non-citizens do not enter Australia or become part of the Australian community and that they are available for deportation when that becomes practicable.

McHugh J there went on to cite with approval the following observations of Latham CJ in O’Keefe v Calwell (1949) 77 CLR 261 at 278:

Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens ... Exclusion in such a case is not a punishment for any offence. Neither is deportation ... The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence.

Nor does a power to detain “aliens” for the purpose of expulsion or deportation infringe Chapter III of the Constitution: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 32 per Brennan, Deane and Dawson JJ.

96    The making of the adverse security assessment and the “furnishing” of the advice contained within that assessment to the Department does not involve any exercise of the judicial power of the Commonwealth.

97    This argument is rejected.

Irrationality, illogicality and unreasonableness?

98    A further ground of review relied upon by Mr Jaffarie asserts that the security assessment made by the Director-General is “irrational, illogical or unreasonable”. A variant of this ground, perhaps, was that ground which maintained that there had been a failure “to have regard to the necessary consequence of the decision that the applicant would be either … removed from Australia or indefinitely detained…”.

99    The facts which make out the particular ground of review of “irrationality, illogicality or unreasonableness” in administrative decision-making are the exception, rather than the rule. And more so is there reason for caution where decision-making affects national security.

100    The extra need for caution where an applicant seeks judicial review of a decision affecting national security and where assessments have been made as to security is well recognised: e.g., Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 74. Brennan J there observed:

… The gravity of the risk against which protection is needed affects the scope of the inquiries which it is prudent to make, and thus the degree of relevance between the intelligence which the Organization might legitimately assemble and the conduct which is apprehended. But, it may be said, how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded.

See also: Sagar v O’Sullivan [2011] FCA 182 at [83] to [90], (2011) 193 FCR 311 at 326 to 327 per Tracey J; Parkin v O’Sullivan [2006] FCA 1413 at [17], (2006) 162 FCR 444 at 448 per Sundberg J.

101    Notwithstanding an accepted need for caution, the present ground of review remains an available ground upon which the decision of the Director-General may be impugned. “Irrationality” or “unreasonableness”, according to Lord Scarman, “is too often treated as a rare bird which is not to be allowed any very extensive flight”: “The Development of Administrative Law: Obstacles and Opportunities” [1990] PL 490 at 492. Whatever may be the prospects of success of such an argument in the present case, it is respectfully considered that such prospects should not distract attention from the need to ensure that the conduct of the Director-General – like all exercising statutory power – is always susceptible to judicial scrutiny. And this includes the need to carefully scrutinise the reasons for the decision provided by the Director-General, or at least so much of that reasoning process as has been disclosed to Mr Jaffarie.

102    Notwithstanding these accepted – and not insignificant – obstacles to success, Counsel for Mr Jaffarie contended that the assessment of the Director-General was “irrational, illogical or unreasonable” by reason of:

    the failure to take into account, or even be aware of, the decision of an Indonesian Court in respect to Mr Abbas;

    the failure to defer making any assessment until the decision of the Indonesian Court was known; and

    the failure to take into account either the asserted fact that Australia had failed in an attempt to have Mr Abbas extradited to Australia to face criminal proceedings in Australia.

103    These contentions, notwithstanding the courage with which they were advanced, all fail. The assessment made by the Director-General was based upon the information therein set forth. What further information may or may not have been available, or what different assessment may have been made at a later point of time, does not strip the assessment made by the Director-General of its validity by reason of irrationality, illogicality or unreasonableness.

104    None of the matters referred to by Counsel for Mr Jaffarie were matters which the Minister was “bound” to take into account.

Procedural fairness

105    The argument advanced on behalf of Mr Jaffarie as to there being a denial of procedural fairness focussed attention upon the fact that:

    the Minister had available to him as part of his decision-making processes the “Classified Reasons” furnished by ASIO,

whereas Mr Jaffarie had only available to him:

    the “Unclassified Reasons”.

The confined character of the information disclosed to Mr Jaffarie was then sought to be contrasted with:

    the character of the information disclosed during the course of the hearing, including the “Truncated Final Appreciation” and the Briefing Note and e-mail forwarded on 11 June 2013.

On behalf of Mr Jaffarie it was submitted that there “was simply no process of evaluation or consideration undertaken by ASIO as to which material ought to be and which ought not to be the subject of a confidentiality undertaking from the Department under s 503A of the Migration Act”. One specific aspect of the alleged denial of procedural fairness was the argument that there had been no disclosure at the outset of “the finding by an Indonesian Court that Australia had failed to establish a reasonable case that Mr Sayeed Abbas Azad was engaged in crimes against Australia while in Indonesia”.

106    There can be no question but that during the course of the hearing more information became available to Mr Jaffarie as to the basis upon which his adverse security assessment had been founded. As a result of that further disclosure of information, Mr Jaffarie became better informed of ASIO’s reasoning process than was hitherto available to him by reason of the disclosure of the “Unclassified Reasons”.

107    In particular, that further information made possible an explanation – or, at least, a partial explanation – as to the basis upon which the view was formed that Mr Jaffarie was “directly or indirectly a risk to Australia’s security…”. That explanation, it has been concluded, may not otherwise have been apparent from a reading of the “Unclassified Reasons”.

108    But there has been no denial of procedural fairness.

109    The Director-General implicitly accepted that Mr Jaffarie was entitled to procedural fairness. The “Unclassified Reasons” thus concludes with the statement:

Regard [h]as been given to the requirements of procedural fairness and any relevant legislative test.

And, as with many cases involving arguments as to natural justice or a denial of procedural fairness, the argument frequently descends – not to an argument as to whether those rules apply – but rather to an argument as to the content of those rules in a particular case.

110    The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, “whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context”: Habib v Director-General of Security [2009] FCAFC 48 at [77], (2009) 175 FCR 411 at 430 per Black CJ, Ryan and Lander JJ.

111    The touchstone of present relevance is whether enough information had been disclosed to Mr Jaffarie in the “Unclassified Reasons” to enable him to make meaningful submissions. The mere fact that more information may have been made available to him during the course of the present hearing does not necessarily say anything as to whether the initial disclosure in the “Unclassified Reasons” was sufficient to afford procedural fairness.

112    In resolving that question a balance necessarily must be struck between protecting that information which must remain undisclosed by reason of the claim for public interest immunity and the legitimate and important rights of ensuring procedural fairness to Mr Jaffarie: cf. Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314. Carr and Sundberg JJ there addressed the extent to which there should be disclosure of information which had also been held to be subject to a claim for public interest immunity privilege and concluded:

The question which the appellant wants answered by way of judicial review is whether the delegate fairly disclosed to him all that could properly be disclosed of the material which is both personal and adverse to him, consistent with the protection of the public interest in maintaining confidentiality about the source of the information. Given that the appellant is being denied access to information which would otherwise have to be put to him as a matter of procedural fairness, we do not think that he should have to shoulder the burden of establishing a prima facie case that the delegate has not disclosed fairly all that could be disclosed or that that "is on the cards". In our view, the appellant would be placed in a nearly-impossible position by such a requirement. That position results from the public interest in protecting the source of information by the imposition of secrecy. It seems to us that a balance can be struck between preserving that public interest and ensuring that there has been procedural fairness, by the Court examining the confidential material and assessing whether the summary is a fair one. We do not see this as any reflection upon the integrity of the decision-maker. The matter is one where there may well be room for differing opinions. Judicial review of the confidential material might be seen simply as the price payable, (on particular occasions such as this), for adjusting procedural fairness requirements downwards in the course of protecting another public interest: (1997) 78 FCR at 328.

Applied: Leghaei v Director-General of Security [2005] FCA 1576 at [88] per Madgwick J. An appeal was dismissed: Leghaei v Director-General of Security [2007] FCAFC 37, (2007) 97 ALD 516.

113    It is concluded that in the context of decisions being made as to national security, an argument as to a denial of procedural fairness is not to be resolved by identifying further information which could (with the benefit of hindsight) have been disclosed to an affected person. The argument is to be resolved by the more generally expressed touchstone as to whether the person has – on balance – been given sufficient information to fairly put him in a position where he can make meaningful submissions. In the present case, and notwithstanding the fact that further information was disclosed to Mr Jaffarie during the hearing, the “Unclassified Reasons” put him in a position whereby he could make meaningful submissions as to the issues of which he was aware, including:

    his involvement with people-smuggling;

    the finding that he had “concealed and protected his involvement in people smuggling activities by providing false and misleading information”; and

    his “association with individuals involved in people smuggling”.

As the course of the hearing revealed, Mr Jaffarie could have been told at the outset (for example) of his alleged involvement with Mr Abbas. It is regrettable that the information which was ultimately disclosed to Mr Jaffarie was not disclosed at the outset. As full and as frank a disclosure of such information as is consistent with maintaining a claim for public interest immunity privilege should be made at the outset; the disclosure of as much information as possible should not depend upon judicial intervention to “encourage” the disclosure of information which could have been, and should have been, disclosed voluntarily. In different circumstances, a failure to disclose at the outset all of that information which could be legitimately disclosed may attract a different conclusion. But, on balance, it is concluded that enough was disclosed to enable Mr Jaffarie the opportunity to make meaningful submissions.

114    The argument as to a denial of procedural fairness is rejected.

Conclusions

115    In providing advice to the Department on 17 June 2013, ASIO was discharging the function entrusted to it by s 17(1)(c) of the Australian Security Intelligence Organisation Act 1979 (Cth). The advice provided constituted a “statement in writing … expressing … advice” for the purposes of ss 35(1) and 36 of that Act.

116    The confined meaning sought to be ascribed to para (aa) of the definition of “security” for the purposes of s 17 of the Australian Security Intelligence Organisation Act is rejected. The Director-General did not err in making the Final Appreciation which was furnished to the Department.

117    Nor did the Minister err in relying upon that report. Nor did the Minister fail to have regard to the “necessary consequence” of the refusal of the bridging visa being Mr Jaffarie’s removal from Australia or his indefinite detention.

118    In respect to that part of the matter remitted to this Court by the High Court’s order made on 14 November 2013, it follows that the security assessment made by ASIO is valid. It also follows that the challenge to the decision made in August 2013 refusing Mr Jaffarie a bridging visa pursuant to s 501 of the Migration Act also fails.

119    But no order should be made as to costs. It is likely that Mr Jaffarie would have succeeded before this Court had the evidence been confined to that initially set forth in the Application Book and the Agreed Statement of Facts. It only became clear that the Application (as amended) had to fail when the Respondents thereafter tendered material further exposing ASIO’s reasons and to an extent greater than that set forth in the Unclassified Reasons. The tender of that additional material was, to some extent, the result of judicial intervention. One can hardly fault Mr Jaffarie for commencing the proceeding upon the basis of the material then available to him.

120    It is concluded that each of the grounds upon which the Application for review as was advanced in this matter is to be rejected. The parties are to bring in Short Minutes of Order to give effect to these reasons within 14 days.

Associate:

Dated:    18 August 2014

REASONS FOR JUDGMENT

white J:

121    I agree that the challenges of the applicant to the security assessment made by the Director General of Security dated 17 June 2013 and to the decision of the Minister for Immigration and Border Protection made on 25 September 2013 refusing his application for a Bridging E (Class WE) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) should be rejected. I also agree with the joint reasons of Flick and Perram JJ. I add the following.

122    As the joint reasons indicate, the grounds of the applicant’s challenge to the assessment and decision developed during the progress of the matter in this Court. The applicant articulated his revised grounds in a series of documents in the form of an amendment to the application filed in the High Court on 10 October 2013. Some proposed amendments were disallowed by this Court.

123    Ground 18, which relates to the decision of the Minister, was added by leave on the afternoon of the resumed hearing on 22 May 2014. It provides:

[18]    Further and in the alternative, the decision identified in paragraph 12 involved jurisdictional error in that the Second Respondent failed to have regard to the necessary consequence of the decision that the Applicant would … either be removed from Australia or indefinitely detained: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38.

The decision identified in paragraph 12 was the refusal by the Minister personally to issue a bridging visa. It was wrongly said in that paragraph to have been made on 26 September 2013, but nothing turns on that mistake. Paragraph 12 was the counterpart of paragraph 10 in the application filed in the High Court on 10 October 2013.

124    Ground 18 was not included in the form of the amended grounds proposed by the applicant when the hearing resumed on the morning of 22 May 2014. When applying later that day to amend the application still further in a form which included ground 18, the applicant’s counsel said only:

It’s a matter that arises because of a very recent decision of this Court in NBMZ and it doesn’t require anything else except a review of the documentation that’s before your Honours.

Neither the applicant nor the respondent sought to supplement the evidential material before the Court in the light of the addition of ground 18.

125    The submissions of the parties following the hearing on 22 May were made in writing. The applicant’s written submissions filed on 2 June made no reference to ground 18. The respondents’ submissions lodged on 11 June 2014 did address ground 18 and the applicant responded to those submissions on 16 June 2014. The effect was that the respondents did not have submissions of the applicant to which they could respond, and the applicant’s submissions were in the nature of a response to those made by the respondents, rather than a freestanding submission. This means that the Court did not receive detailed submissions in the ordinary way relating to ground 18.

126    The gist of the ground is that the Minister failed to have regard to a relevant matter which he was bound to consider, namely, that the “necessary consequence” of the refusal of the bridging visa would be that the applicant would either be removed from Australia or detained indefinitely.

127    NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1, on which the applicant relies for the submission, concerned a decision of the Minister for Immigration and Citizenship not to grant an applicant a protection visa, even though he had been assessed independently as a refugee. The Minister had held that the applicant failed the character test by reason of his conviction for an offence of damaging Commonwealth property at a detention centre. The Full Court held that the Minister’s decision was affected by a jurisdictional error as he had not taken into account the legal consequences of a refusal of a protection visa. Having regard to Australia’s non-refoulement obligation and to the provisions of the Migration Act, those consequences involved the indefinite detention of the applicant: NBMZ at [9]-[10], [17]-[18] per Allsop CJ and Katzmann J, at [164]-[178] per Buchanan J.

128    There is a difference between the present case and NBMZ. Although the present applicant has asserted that his life will be endangered if he is returned to Afghanistan, he has not sought a protection visa. Australia’s obligation of non-refoulement has not been enlivened. In that circumstance, the legal consequence of the Minister’s decision is more likely to be deportation rather than indefinite detention, but that is not necessarily so.

129    I will assume, for the purposes of determining ground 18, that the two premises on which it is based are established. That is to say, that having regard to ss 189, 196, 198, 501F(2) and 501F(3), it is a necessary consequence of the refusal of the bridging visa that the applicant will be deported or detained indefinitely, and that, in accordance with NBMZ, these were matters which the Minister was bound to consider. However, in my opinion, the applicant did not establish that the Minister failed to have regard to the consequence of his decision.

130    The applicant is an Afghani citizen of Shia Muslim and Hazara ethnicity. He entered Australia in November 2008 under a Partner (Provisional) (Class UF) (Subclass 309) visa, which he obtained because his wife is an Australian citizen. The applicant lived in the community until taken into detention on 19 June 2013.

131    Acting under s 501 of the Migration Act, the Minister cancelled the applicant’s Subclass 309 visa on 19 June 2013 and, on 25 June 2013, refused his application for a Partner (Migrant) (Class BC) visa. By virtue of ss 13 and 14 of the Migration Act, the applicant became an “unlawful non-citizen” and had that status at the time of the Minister’s decision on 25 September 2013.

132    The Minister refused a bridging visa because he was not satisfied that the applicant passed the character test. His reasons indicate that he relied on the adverse security assessment furnished by ASIO for that conclusion.

133    In my opinion, the Minister’s statement of reasons for his decision of 25 September 2013 contains indications that he was alert to the consequences for the applicant of that decision. The applicant does not have children himself but the Minister referred to the five children of the applicant’s brother who are in Australia and to the emotional hardship they would suffer if a bridging visa was refused.

134    The Minister noted that the interests of those children was a primary consideration and referred expressly to the adverse effect which refusal of the visa (which would necessarily involve the applicant’s removal from Australia or his detention) would have on the applicant and his family. He considered, however, that these were outweighed by the need for protection of the Australian community.

135    The Minister also referred to third party material provided in support of the applicant’s visa applications. Some of this was in the nature of reports on the applicant’s medical condition and some in the nature of character references. The latter showed a clear appreciation that the consequences for the applicant of refusal of a visa would be his removal from Australia, as did letters from the applicant’s solicitor and his wife.

136    That the Minister was alert to the consequence of a refusal of a bridging visa may also be inferred from the very context in which he made his decision. The prospect of the applicant’s removal from Australia was at the heart of that context. As the reasons of Flick J indicate, ASIO assessed that the applicant is, directly or indirectly, a risk to the protection of Australia’s territorial and border integrity from severe threats. The prospect that an unlawful non-citizen who was found to be such a risk would be deported was obvious. It is reasonable to infer from the Minister’s reasons that he made the decision to refuse a bridging visa with the contemplation that the applicant would be deported or detained and Australia thereby protected from the activities in which he had been assessed as engaging.

137    For these brief additional reasons, I consider that the applicant did not make out ground 18.

138    I agree that the Parties should bring in Short Minutes of Order to give effect to these reasons within 14 days.

THE ORDERS OF THE COURT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Associate:

Dated:    18 August 2014