FEDERAL COURT OF AUSTRALIA

BSX15 v Minister for Immigration and Border Protection [2017] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    Within fourteen (14) days, the appellant is to file and serve a written submission (not exceeding 3 pages in length) addressing the appropriate form of orders to be made, including as to costs.

2.    Within twenty-one (21) days, the respondents are each to file and serve a written submission in response to the submissions filed in accordance with Order 1, (not exceeding 3 pages in length).

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1.1    Background

1    The appellant is a citizen of Iraq who arrived in Australia at Christmas Island without a visa on 31 October 2012. Shortly after his arrival he was granted a bridging visa. He lived in the Australian community from then until 22 October 2013, when he attended the offices of the Department of Immigration and Citizenship in Melbourne for the purpose of being interviewed by officers of the Australian Security Intelligence Organisation (ASIO). At the conclusion of the interview the appellant was placed in immigration detention, where he has remained.

2    The appellant was interviewed by officers of ASIO on three occasions, the last of which was in January 2014. On or about 26 September 2014, officers of ASIO provided the second respondent, the Director-General of Security (Director-General) with a director-general’s briefing note, a “Classified Statement of Grounds” and a draft adverse security assessment. On the same day the Director-General signed and dated an adverse security assessment in relation to the appellant (Security Assessment) and authorised the provision of a copy of it to the Department of Immigration and Border Protection (Department). The Security Assessment provided that ASIO assessed that the appellant was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act 1958 (Cth) (Migration Act).

3    On 15 October 2015 the appellant applied for a protection visa. No decision has been made in respect of that application.

4    In the proceedings at first instance, and in the present appeal, the appellant seeks orders quashing the Security Assessment and restraining the first respondent, the Minister for Immigration and Border Protection (Minister), from having regard to the Security Assessment in making any decision under the Migration Act.

5    The appellant’s Amended Originating Application sought judicial review of the Security Assessment on the grounds that it was made contrary to the requirements of procedural fairness, that its making was legally unreasonable and that it was made without taking into account the requirements of Security Assessment Determination No 2 issued by the Director-General. The primary judge rejected all of these grounds.

6    Discovery was given by the Director-General of all documents relating to his decision to issue the Security Assessment, and a successful claim for public interest immunity was made in respect of a number of the documents, including the Classified Statement of Grounds dated 26 September 2014. The evidence indicates that this document, together with a briefing note, forms the basis upon which the Director-General makes a decision as to whether an adverse security assessment should be furnished pursuant to Part IV of the ASIO Act.

7    Naturally enough, the Classified Statement of Grounds was not produced before the primary judge, but a truncated statement of grounds (Truncated Statement of Grounds) was prepared and provided for the purpose of these proceedings. The hearing below proceeded on the basis that it contains all of the information from the classified statement of grounds which could be disclosed without prejudicing national security.

1.2    The Grounds of Appeal and Summary of Conclusions

8    The appellant relies upon 8 grounds in his Amended Notice of Appeal. Ground 1 challenges the primary judge’s conclusion that the Court has no jurisdiction to make an order restraining the Minister from having regard to the Security Assessment in making any decision under the Migration Act. However, the Minister has not made any decision in relation to the appellant’s application for a protection visa. In the course of submissions, the Minister accepted that if the appellant’s challenge to the Security Assessment succeeds, and it is found to be a nullity, then the delegate of the Minister could not act on it. In light of that concession, it is not necessary to decide this ground.

9    Grounds 2, 3 and 4 broadly concern contentions that the primary judge erred in failing to find that the issue of the Security Assessment was legally unreasonable. For the reasons set out in section 2 below, we find that these grounds are not made out.

10    Grounds 5, 6 and 7 challenge the primary judge’s findings that in making the Security Assessment the appellant was not denied procedural fairness. For the reasons set out in section 3 below, we find that these grounds are made out, with the result that the Security Assessment must be quashed and the appeal allowed.

11    As presented in argument, ground 8 serves as an adjunct to grounds 2, 3 and 4. In it, the appellant contends that the primary judge fell into error in considering whether the Director-General’s reasoning was legally unreasonable by mischaracterising the task of the Director-General under the ASIO Act. For the reasons set out in Section 2 we dismiss this ground.

2.    UNREASONABLENESS

2.1    The Grounds and argument

12    Grounds 2, 3, 4 and 8 of the appeal are as follows:

2.    Unreasonableness and Public Interest Immunity: The learned primary judge erred in finding at TJ [109] to [112] that it was not open to infer that the decision to issue the Adverse Security Assessment was unreasonable because there were some redactions made from the statement of reasons.

3.    Improper drawing of positive inference from fact of redaction: The learned primary judge erred at TJ [118] by drawing the inference that a finding was reached based on material other than the answers given in a security interview based on a redaction made because of Public Interest Immunity.

4.    The learned trial judge should have found that, by taking into account information that the Appellant had claimed to adhere to Shia Islam, the second respondent took into account information which did not have a reasonable nexus to the Appellant. The learned trial judge erred at TJ [127]-[128] in finding to the contrary.

8.    Improperly specified decision: The learned primary judge erred at TJ [106] to [107] by reasoning that the ASIO Act authorised the issue of an Adverse Security Assessment based upon the bare conclusion of the Director General and without any threshold level of satisfaction or evidence. Her Honour should have found that the ASIO Act authorised the making and furnishing [of] the Adverse Security Assessment in this case only if the Director General formed an opinion based on evidence and in accordance with law that the requirements of security made it necessary or desirable that the applicant’s application for a visa be refused.

13    The factual basis for these grounds reduces to the proposition that the primary judge erred, on the evidence before her, in not deciding that the decision to furnish the adverse Security Assessment was legally unreasonable within the principles articulated in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. The appellant submits that the Truncated Statement of Grounds contain a finding that the appellant maintained to ASIO that he is a Shia Muslim. However, the transcripts of his interviews with ASIO demonstrate that his statements were to the effect that by origin he was Shiite, but that he was not religious by way of belief or practice. ASIO incorrectly assessed the appellant as making a “claim to adhere to Shia Islam”. The appellant contends that the primary judge erred in failing to find that ASIO illogically, and contrary to the only evidence available, found that the appellant’s claim to adhere to Shia Islam was false and that, despite the redactions in the Truncated Statement of Grounds, the primary judge ought to have reached the conclusion that the finding was illogical and unreasonable.

14    The Truncated Statement of Grounds relevantly provides as follows (footnotes omitted, brackets “[…]” indicate material that has been redacted by reason of public interest immunity):

35.    [The appellant] has maintained to ASIO that he is a Shia Muslim and of Kurdish descent. This is consistent with DIBP information regarding his family history and background and open source information which identifies his ancestral home town of Mandali as a predominantly Kurdish-Shia town near Iraq’s border with Iran. It is also consistent with claims he made about his family being persecuted by Saddam Hussein’s regime because of their Shia heritage.

36.    In this context, ASIO notes [the appellant] used a Sunni Imam for his November 2013 wedding. [The appellant] told ASIO his use of this Imam was not relevant to whether he was a Sunni or Shia; he chose the Imam on the recommendation of a friend, had not known whether the Imam was Sunni or Shia, did not care, and noted the ceremony had not been explicitly Sunni or Shia in character.

37.    [….][…] ASIO assesses [the appellant’s] claim to adhere to Shia Islam is false and likely part of his attempts to obfuscate inquiries into his connections to Sunni Islamic extremism which would be prejudicial to his security assessment.

Consequences to Security

38.    ASIO assesses [the appellant] is identical with Muthana Najim Abdullah, […][…]

39.    […][…] ASIO assesses [the appellant] has made deliberate efforts to hide, minimise and obfuscate his terrorist connections in the course of his security assessment and has been deliberately untruthful with regard to important information about his background, activities, associations and ideology which may be prejudicial to his security assessment.

15    During the course of the ASIO interviews, the appellant was clear in his answers that he was not a religious person. In response to questions asked, he said that he did not go to the mosque, that he drank alcohol, that he did not participate in Shiite festivals, that he did not fast during Ramadan and that he was generally not religious. The appellant contends that these answers demonstrate that it was unreasonable for the Director-General to conclude that he falsely claimed to adhere to Shia Islam or sought to hide his connections with Shia Islam.

16    The appellant further contends that the present case may be distinguished from the reasoning expressed by Tracey J in Plaintiff M46 of 2013 v Minister for Immigration and Border Protection & Ors [2014] FCA 90; 139 ALD 227 (M46) at [87], [90] because, in that case, the Court did not have available for scrutiny the entirety of the reasons underlying the adverse Security Assessment. In the present case, the bulk of the material relevant to this ground was available for scrutiny.

17    In oral argument, the appellant presented ground 8 as “feeding into” the unreasonableness case. He submits that the primary judge erred by stating at [106] that the terms of the ASIO Act, read with s 36(1B) of the Migration Act, empower the Director-General to issue an adverse security assessment when it is “open to him” to express a recommendation, opinion or advice on the questions of either: (a) whether it would be consistent with the requirements of security for a visa to be refused on the basis that a person is a direct or indirect risk to security; or (b) whether the requirements of security made it necessary or desirable for a visa to be refused on the basis that a person is a direct or indirect risk to security. He submits that the correct test is whether the Director-General is “satisfied” of these matters. The appellant submits that this error contributed to the failure on the part of the primary judge to find that the decision of the Director-General to issue the security assessment was legally unreasonable.

2.2    The primary judge’s reasoning

18    The primary judge observed that both the appellant and the Director-General agreed that legal unreasonableness is fact dependent and that determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) (Singh) at [42]. Ordinarily, where available, the Court will examine the statement of reasons given by a decision maker in assessing reasonableness; Singh at [45]-[47]. The primary judge observed that in the present case the Court did not have before it the classified statement of grounds but only the Truncated Statement of Grounds, which was subject to considerable redaction by reason of public interest immunity. Accordingly, the primary judge observed at [109], it was not possible for the Court to undertake the careful consideration of the reasons that it might ordinarily do. The effect of public interest immunity in aspects of the Truncated Statement of Grounds was, the primary judge observed, to make the appellant’s case for legal unreasonableness “very difficult if not impossible to establish”.

19    The primary judge found (after considering three other aspects of alleged unreasonableness which are not pressed on appeal) that it could not be said on the basis of the available information that the reasoning in the Security Assessment reflected legal unreasonableness.

20    Her Honour said at [118]:

There was questioning at each of the three security interviews of the applicant about his faith. The applicant’s answers included a claim to be a Shia Muslim; that when he moved to Al Shaab, because his identity card said he was resident of Asamiya, a Sunni area, he encountered difficulties; that he has not visited a Mosque in Australia; and that he does not know how to pray. But the finding about the applicant’s claim to adhere to Shia Muslim follows a redaction at TSOG [37]. It is thus open to infer that the finding was reached based on material other than the answers given during the security interviews and not exclusively or, indeed, at all on the information provided at those interviews. In any event the applicant did claim to be a Shiite Muslim during the interviews while maintaining he did not practice his religion. Thus, as submitted by the Director-General, to the extent the issue was whether the applicant identified as a Shia Muslim in order to obfuscate inquiries into his connections to Sunni Islamic extremism, it cannot be said that this statement or the Adverse Security Assessment was unreasonable.

2.3    Consideration of Grounds 2, 3, 4 and 8

21    These grounds of appeal do not turn on a question of principle, but rather on the factual question of whether or not the primary judge fell into error in reaching the conclusion that it was open to infer that the finding expressed in the Security Assessment at [37], [39] was reached based on material other than the answers given during the security interviews and not exclusively or, on the information provided at those interviews.

22    In this context, there is no doubt that once the public interest in non-disclosure is established, a consequence is that the relevant material cannot be deployed in evidence in curial proceedings. There is also no doubt that a successful claim to public interest immunity may have the consequence that the material excluded would be denied both to the Court and an applicant seeking to subject a decision maker’s reasons to scrutiny; see Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [5] (per Gleeson CJ) and [22]-[24] (per Gummow, Hayne, Heydon and Kiefel JJ); Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 61 (Mason J); Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505 (Jaffarie) at [30] (Flick and Perram JJ, White J agreeing).

23    We do not consider that the point of distinction that the appellant seeks to make from the facts in M46 is made out. In the present case, the primary judge did not have before her what appears to have been a material part of the reasoning germane to the conclusions expressed at [37], [39] of the Security Assessment. Examination of the Truncated Statement of Grounds reveals that the redaction at the commencement of [37] removes a potentially significant aspect of the reasoning of ASIO from scrutiny. In our view, it is entirely possible to infer that the basis for the conclusion expressed in the unredacted sentence which appears in [37] arose from materials available to the decision maker, but not present in the materials to which the Court may now have regard. Indeed, the square bracketed redacted portion of [37] of the Truncated Statement of Reasons indicates that there is an undefined amount of classified information, footnoted by reference to further classified information unavailable to scrutiny. In these circumstances, it cannot be inferred that the conclusion expressed in [37] was based only on the information supplied by the appellant during the course of his interviews with ASIO. The same observation is apposite to the conclusion expressed in [39].

24    Accordingly, Grounds 2 and 3 must be dismissed. Ground 4, although differently expressed, concerns a challenge to the same factual conclusion. It too must be dismissed.

25    We do not accept that the error contended for in ground 8 was made. For the reasons that we have identified in relation to grounds 2, 3 and 4, we consider that the primary judge was correct in articulating the basis upon which legal unreasonableness is to be assessed, and correctly applied that test. Accordingly, ground 4 is also dismissed.

3.    PROCEDURAL FAIRNESS

3.1    The Grounds

26    Grounds 5 to 7 of the appeal are as follows:

5.    Procedural fairness: the learned primary judge erred at TJ [81] and [83]-[84] by concluding that the requirements of national security meant that ASIO was not required to put any issue of concern to the applicant other than at a general level. The learned primary judge should have found that ASIO was required to put to the applicant credible, significant and adverse material known to it in sufficient detail to enable meaningful submissions to be made on it except where to do so would be prejudicial to national security.

6.    The learned primary judge erred at TJ [99] by reasoning that the absence of a requirement for a person in the position of the applicant to be given information about the grounds for making an assessment or the information relied on in making the assessment informed the applicable content of procedural fairness. The learned primary judge should have reasoned that that absence, which concerns disclosures after an Adverse Security Assessment in the context of a merits review regime, did not diminish the requirements of procedural fairness in making an Assessment.

7.    The learned primary judge erred at TJ [87] - [88] in finding that the requirements of procedural fairness were sufficiently met by the disclosures to the applicant referred to in each of those paragraphs.

27    The relevant evidentiary background to these grounds can be summarised briefly as follows.

28    The Security Assessment includes the following (to maintain the confidentiality of the name of the appellant it has been necessary to include a summary of the contents of this paragraph):

3.    Name and Date and Place of Birth of the Person Subject to the Assessment

[The appellant’s name is given followed, in brackets, by the words “also known as …” and a list of 9 names, many of which are similar to the first name, but some of which are materially different. One name was two letters different to the Muthanna Najm Abdullah identified in the Truncated Statement of Reasons and for present purposes the difference may be a typographical error. However, the remaining 8 are clearly different names. The names range in length from two words to five words. The section concludes with the date and place of birth of the appellant.]

29    The Truncated Statement of Grounds includes the following (footnotes omitted):

Assessment Overview

2.    ASIO recommends against the grant of an Australian visa to [the appellant]. ASIO assesses [the appellant] is directly or indirectly a risk to security and that it would not be consistent with the requirements of security for [the appellant] to be granted an Australian visa.

3.    ASIO assesses [the appellant]:

a.    is identical with Muthanna Najm Abdullah, […];

b.    [….];

c.    [….]; and

d    has intentionally tried to minimise and obfuscate the truth about his background, activities, associations and ideology to avoid prejudicing his security assessment.

30    After this overview, the Truncated Statement of Grounds addresses the legal framework and sources of information for the assessment. It then addresses the assessment in terms, including a number of paragraphs the content of which has been removed as a result of the claim for public interest immunity. In [20] and [38] the document again refers to the appellant’s identity:

20.     On the basis of the intelligence above, as well as further investigation outlined below, ASIO assesses [the appellant] is identical with Muthanna Najm Abdullah, [….]

…

38.     ASIO assesses [the appellant] is identical with Muthanna Najm Abdullah, […][….]

31    During the course of the first of the 3 interviews that ASIO conducted, the following introductory exchange took place (emphasis added):

Q 12.    Another really important aspect of today is just the need for honesty. Honesty is an important aspect of the security assessment process. You should provide honest and fulsome answers to the questions. You should feel free to change information that you may have provided in the past. Failure to be honest could prejudice our advice to immigration if we cannot resolve all security concerns. Do you give me an undertaking that you’ll answer the questions fully, openly and honestly?

A    Yep.

Q 13.    Now, like I said before, we can take breaks at any time. We’ll initiate a break if we need one as well. Do you have any issues understanding the interpreter?

A    No. (Through interpreter) Yeah, he understand me.

Q 14.    Do you have any questions before we commence the interview?

A    (Direct) No.

Q 15    Like I said before, part of today is just to confirm the information that all we have from immigration is accurate. Are you able to confirm your full name?

A    (Through interpreter) [full name given].

Q 16    What would you prefer I call you today?

A    [first name of name given above]

Q 17.    Are you known by any other names?

A    [full name given above repeated].

Q 18.    Okay. And your date of birth?

A    [date].

Q 19.     And where were you born?

…

32    There was no substantive dispute as to the requirement on the part of ASIO to afford the appellant procedural fairness. In his written outline of submissions the Director-General acknowledged that it was common ground before the primary judge that ASIO was required to afford procedural fairness to the appellant in undertaking the security assessment. The issue between the parties was the content of that obligation.

33    The parties accepted that the passage of the joint judgment of Flick and Perram JJ in Jaffarie at [113] (with which White J agreed) was applicable (emphasis added):

… 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.

34    During the course of argument, Senior Counsel for the Director-General, Mr Connor QC, accepted that the question of whether the appellant had been afforded procedural fairness in the context of the issue as to his identity hinged upon the adequacy of the emphasised passage in the quote from the first interview set out in [31] above. In other words, the question can be resolved by an inquiry as to whether or not, in the context in which it appeared, the single question; “are you known by any other names?” was adequate.

35    The Director-General submits that procedural fairness does not require a conclusion on the issue of the appellant’s identity to be put to him for comment, citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone) at 590-591. Rather, it required that the appellant be given the opportunity to ascertain that this was an issue, citing the approval of Alphaone by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32]. The Director-General submits that the appellant was asked about the matter directly, and had an opportunity to provide information in respect of it.

36    Further, the Director-General contends that, even though the Full Court in Alphaone observed that procedural fairness requires a party to be informed of the nature and content of adverse material, that obligation must, and did in the present case, yield to the requirements of national security. The redactions in the Truncated Statement of Grounds on the subject of the appellant’s identity demonstrate that the source intelligence underpinning that conclusion was the subject of its unchallenged claim for public interest immunity. Accordingly, the primary judge’s conclusion, that in asking the appellant whether he was known by any other names the issue of identity was sufficiently raised, was consistent with the obligations of procedural fairness in the context of information relating to national security.

3.2    The primary judge’s reasoning

37    The primary judge considered the question of whether the appellant was denied procedural fairness in a detailed review of the submissions put to her in relation to a number of bases upon which it was said that the appellant was denied procedural fairness at [78] – [94]. Only the issue of the appellant’s identity, summarised above, was the subject of the present appeal.

38    After reviewing the entirety of the transcript of the approximately 11 hours of interviews, the primary judge observed that so far as the form and procedure adopted at the interviews was concerned, there could be no general complaint made that there was a failure to afford procedural fairness. Her Honour observed that the appellant was given the opportunity to answer questions as fulsomely as he wished and to provide further information on any topic or issue canvassed or on any other matter he thought was relevant. She found that because of the requirements of national security ASIO was only required to put the appellant on notice of the issues of concern “at a general level”, and at [81] she found that it did so. Her Honour considered that the Director-General, via the three interviews, put the appellant in a position where he could make meaningful submissions on the issues of which he was aware. However, to the extent any conclusion was underpinned by information which is the subject of a claim for public interest immunity, procedural fairness would not require disclosure of that information.

39    The primary judge then turned to consider the particular issues raised by the appellant, observing, by reference to Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 (Plaintiff M47), that the obligation to afford procedural fairness required the Director-General to direct attention to the issue of concern, but that did not require the Director-General to descend into granular detail about the issues or to set out his specific concerns. Her Honour found that the present case was not one where procedural fairness required the appellant to be given an opportunity to comment on the conclusions based on answers given by him at the security assessment interviews. Those conclusions were largely matters of opinion not required to be put to the appellant for comment, citing Plaintiff M47 at [413] per Kiefel J (as her Honour then was).

40    The primary judge later addressed the question of whether the appellant was afforded procedural fairness in so far as it concerned the finding that he was identical to the person known as Muthanna Najm Abdullah. She said:

88.     In relation to the assertion by the applicant that he was given no information to put him in a position to make submissions about the finding that he was identical to Mr Abdullah, at the first interview the applicant was asked whether he was known by any other names. In response the applicant repeated his name. The issue of whether he was known by any other names was thus raised.

41    After reaching this conclusion, the primary judge considered the submission of the Director-General that the content of procedural fairness was limited in relation to adverse security assessments under the ASIO Act concerning non-citizens who do not hold permanent visas, because of the terms of that Act. After considering the terms of ss 36 and 37 of the ASIO Act, her Honour said at [99]:

99.     I accept the Director-General’s submissions that the terms of s 36(1)(b) reflect a deliberate decision by Parliament that a person in the position of the applicant should not be given information about the grounds for making an assessment or the information relied on in making the assessment even when the provision of that information would not be prejudicial to security. That is, there is no precondition to be met in the case of people in the position of the applicant. That decision by Parliament informs the content of procedural fairness when ASIO exercises its power to provide a security assessment to such persons: see Leghaei at [19]-[20]. It follows, in my opinion, that the content of procedural fairness is more limited in relation to adverse security assessments affecting non-citizens.

3.3    Consideration of Grounds 5, 6 and 7

42    The question of the identity of the appellant, and in particular whether he was the same person as Muthanna Najm Abdullah, was of some significance in the Truncated Statement of Grounds. It was one of four reasons given for the conclusion that the appellant is directly or indirectly a risk to security and that it would not be consistent with the requirements of security for him to be granted an Australian visa.

43    In our view, the terms in which the question was put to the appellant that were not sufficient to afford him procedural fairness in the sense required by the authorities. In this regard, we respectfully disagree with the conclusion reached by the primary judge.

44    In the context of decisions being made as to national security, an argument as to 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 fairly to put him or her in a position where he or she can make meaningful submissions; Jaffarie at [113].

45    As we have observed, the appellant was identified in the Security Assessment by the name on his visa application and also by at least 8, and possibly 9 other names, none of which attracted any concern on the part of ASIO.

46    The various migration documents submitted by the appellant himself indicate that at various times, and in various places, he is or has been known by at least 8 names. Some are very similar to the names which appear in his visa application and others are quite different. None of these 8 additional names attracted the attention of ASIO, or were the subject of criticism or questioning. It may be assumed that this was because, for various reasons, it was unexceptional that the appellant go by, or be known by names in addition to those which appeared on his application for his visa. In short, the question of the name by which the appellant is or has been known is plainly not straightforward.

47    Accordingly, the relevant issue of concern to the decision maker was not whether the appellant was known by names other than that used on his application for a visa; there were many such alternative names. Nor was the issue simply whether he was known by others by reference to the name “Muthanna Najm Abdullah”. The issue of concern to ASIO was whether he was Muthanna Najm Abdullah.

48    In our opinion, the primary judge was correct to conclude that in circumstances where public interest immunity applies for the purposes of the protection of the national interest, it is sufficient for a relevant issue to be raised with an applicant at a level of generality. However, in each case the level of generality will depend on the balance between the obligation to afford procedural fairness and the interests of national security. As the Full Court said in Jafferie at [113]:

… 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. …

49    Three questions may be posed at this juncture. First, what is the essential issue which gives rise to an obligation to afford procedural fairness? Secondly, what disclosure may be made to the appellant concerning this issue which is consistent with preserving the security of information the subject of public interest immunity? Thirdly, has sufficient disclosure of the issue been made, bearing in mind the intersection of the answers to the first and second questions?

50    In relation to the first, for the reasons that we have indicated, it is apparent that the issue of concern was not merely whether the appellant was known by names other than the name on his application for a visa, or indeed whether he was “known” by third parties by any other name at all. It was whether he was in fact Muthanna Najm Abdullah.

51    In relation to the second, plainly ASIO could not have regarded the disclosure of the name Muthanna Najm Abdullah to the appellant as a disclosure of information prejudicial to the national security. ASIO was of the view that the appellant was the person bearing that name. A fortiori, the disclosure of that name to him could not, on ASIO’s view, have amounted to a prejudicial disclosure. Furthermore, the fact that the name was disclosed in the Truncated Statement of Grounds supports the proposition that the mere mention of that name was not prejudicial to national security.

52    We now turn to the third question; having regard to the first and second answers, was sufficient disclosure to the appellant of information provided, so as to put him in a position where he could make meaningful submissions?

53    In our view that question must be answered in the negative. Procedural fairness attaches importance to the need to bring to the attention of a person affected by a decision the critical issues or factors on which the administrative decision is likely to turn, so that the person may have an opportunity to deal with that issue; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587. Although reasons of national security may make it impossible to disclose the grounds on which the executive propose to act (Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 241 ALR 141 (Leghaei) at [48] per Tamberlin, Stone and Jacobson JJ), in the present case that is not the position.

54    The exchange upon which the Director-General relies, set out in [31] above, was asked amongst a series of prefatory questions, at the commencement of the first interview, about his application for a visa. The appellant could quite reasonably have considered the question, couched in the present tense, to be directed to the information received from the Department and to be a reference to the visa application form that the appellant had completed. It was that application which he might reasonably have understood to be the subject of scrutiny.

55    More significantly, however, there is an assumption built into the exchange on the part of ASIO which is that the appellant knew that he was in fact Muthanna Najm Abdullah, and that accordingly he was on notice that there was a relevant issue concerning that name. However, if he were not Muthanna Najm Abdullah, then he had no knowledge of any issue arising concerning that name, and could not possibly have been in a position to answer it, or even be aware of the issue. As a matter of procedural fairness, he did not have an opportunity to answer the question, and could not by reference to the general question, be considered to have sufficiently been put on notice of the issue of concern.

56    Furthermore, the answer to the second question posed above reveals that there existed no national security reason why the specific question, “are you Muthanna Najm Abdullah?” could not be put to the appellant.

57    The Director-General submits that certain passages in Plaintiff M47 yield a conclusion that as the appellant has not provided evidence (and did not provide evidence below) to indicate that he is not Muthanna Najm Abdullah, it should be assumed that there has been no procedural unfairness.

58    In Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [58] – [60] Gageler and Gordon JJ said (footnoted passages have been included in the text in parentheses):

58.     Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court (Eg WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 524-525 [57]-[58]; NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at 46 [4]), Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.

59.     There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair (Eg Aala (2000) 204 CLR 82 at 88 [3], 122 [103], 150 [200]; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 979-980 [62]-[68], 1009 [252]-[256], 1018 [309]; 190 ALR 601 at 617-619, 659-660, 672; [2002] HCA 30; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 15 [43]-[44]; [2004] HCA 62). To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

60.     Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given (WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 525 [58]).

59    In our view, the present case is an example of where the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, and accordingly, is within the final paragraph of the above quotation.

60    The Director-General relied upon the reasoning in Plaintiff M47 at [251] and [502], and submitted that the present position is analogous to that case. However, the present case is different. It cannot safely be concluded that the disclosure of the issue to the appellant, or any questioning of him about it, would have been fruitless, as Heydon J and Bell J postulated in Plaintiff M47 at [251] – [253], and [502] respectively. Indeed, given the large number of names by which the appellant has been known, and the fine permutations between similarly spelled names used by him (many of which did not attract interest on the part of ASIO) the appellant could hypothetically have offered an explanation as to why it might have been thought, incorrectly, that he was the same person as Muthanna Najm Abdullah. Of course it would be open to the officers of ASIO not to accept such explanation, but the appellant ought to have had an opportunity to provide one. In this regard, we respectfully agree with the approach of Wigney J in El Ossman v Minister for Immigration and Border Protection [2017] FCA 636 at [131].

61    At one point during oral argument Senior Counsel for the Director-General appeared to suggest that in the present case the content of the obligation on the part of ASIO to provide natural justice or procedural fairness had been reduced to “nothingness”. That submission arose by reference to the reasoning of the Full Court in Leghaei at 146-147 which was as follows:

50.     In Amer (No 2) (at 9–10), Lockhart J recognised that in some cases the balancing of the conflicting principles produces the “unsatisfactory” feature that the content of a security assessment is withheld from the person affected. However, his Honour remarked that this is an inevitable result if the balance is determined in favour of the public interest in national security.

51.     If that is where the balance is found to lie, then it may well be correct, as the primary judge appears to have concluded in the present case, that the content of the procedural fairness obligation is reduced in particular terms to “nothingness”.

52.     Such a result would be consistent with the observations of Brennan J in Church of Scientology v Woodward (1982) 154 CLR 25 at 76; 43 ALR 587 at 615–16. His Honour there observed that the secrecy of the work of an intelligence organisation which is to counter threats of espionage and sabotage is essential to national security, and it will be a rare case where the public interest in national security will yield to the public interest in the administration of justice.

62    However, that submission was clarified a little later, when Senior Counsel accepted that this was “probably overstating the case” and that the position advanced on behalf of the Director-General in the present appeal is that, adopting the principles in Plaintiff M47, where a security assessment is conducted, the general matters of concern should be raised, and that this had been sufficiently done in the present case.

63    Accordingly, the dispute on appeal does not lie at a general level of principle as to whether the scheme of the ASIO Act (in particular, by reference to the exclusions set out in s 36(1)(b)) displaces all obligations of procedural fairness, but rather whether on the facts of this particular case procedural fairness was afforded in relation to the issue of whether or not the appellant was the same person as Muthanna Najm Abdullah. For the reasons given, in our view it was not. As a consequence, the appeal in respect of these grounds must be allowed.

4.    DISPOSITION

64    In light of the reasons set out above we are minded to make the following orders:

1.    the appeal be allowed;

2.    the security assessment concerning the appellant made on 26 September 2014 be quashed; and

3.    the second respondent pay the appellant’s costs of the appeal and of the proceedings below.

65    We have noted above the concession made by the Minister to the effect that if the challenge to the Security Assessment succeeds, it is a nullity, and that if the Minister or his delegate were to have regard to it, it would lead to a decision in excess of jurisdiction. That concession makes it plain that as a consequence of these orders the Minister cannot, and will not give effect to the Security Assessment. In those circumstances, it is not necessary for us to resolve the issue raised in ground 1 of the appeal.

66    The Court has not heard submissions going to the form of orders or the question of costs. In relation to the latter, our preliminary view is that the appropriate order is that there be no order as to costs of the appeal or below in relation to the participation of the Minister, but that the Director-General should pay the appellant’s costs of the appeal and of the proceeding before the primary judge. However, the parties should file short written submissions on the form of orders and costs.

Associate:

Dated:    11 July 2017