Federal Court of Australia

Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33

ORDERS

THE COURT ORDERS THAT:

1.    The orders made on 22 April 2022 and orders 1, 2 and 3 made on 23 May 2022 be set aside.

2.    The amended originating application dated 12 March 2021 be dismissed.

3.    Leave to rely upon ground 2 of the amended notice of contention dated 29 September 2022 be refused.

4.    The amended notice of contention be dismissed.

5.    The respondent pay the appellants’ costs of and incidental to:

(a)    the amended originating application dated 12 March 2021; and

(b)    the appeal, including the amended notice of contention and the interlocutory application in relation to the amended notice of contention,

as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal from orders made by a judge of this Court setting aside two executive decisions, following her Honour upholding limited parts of the respondent’s judicial review challenge to those decisions. Her Honour’s reasons for those orders were published in Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329 (primary judgment or J). The two decisions set aside were:

(a)    an adverse security assessment (ASA) of the respondent made by the Director-General of Security, who is the agency head of the Australian Security Intelligence Organisation (ASIO), on 23 April 2018 (2018 ASA); and

(b)    an ASA of the respondent made by the Director-General on 27 October 2020 (2020 ASA).

2    The appellants are the Director-General, the Minister for Home Affairs and the Commonwealth of Australia, being the parties sued by the respondent (together, the Government).

3    The respondent has been in immigration detention for over 10 years, since arriving in Australia by boat in 2012. Section 36(1B) of the Migration Act 1958 (Cth) provides that not having an ASA is an indispensable criterion for the grant of a protection visa. On 13 June 2018, a delegate of the Minister refused to grant a protection visa to the respondent, consequent upon the making of the 2018 ASA. He has been found to meet all of the criteria for the grant of a protection visa other than not having an ASA.

4    While the respondent, in a third further amended statement of claim, sought an order in the nature of mandamus to compel the Minister to consider that visa application and an order in the nature of certiorari quashing that refusal decision, the primary judge observed that there had apparently been a conscious decision not to press for that relief and her Honour proceeded upon that basis: see J [4]-[6].

5    Both the 2018 ASA and the 2020 ASA concluded that the respondent 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.

6    The particular security issue identified in both ASAs was the protection of the people of the Commonwealth and the several states and territories from acts of politically motivated violence, being an aspect of the definition of security in s 4 of the ASIO Act. ASIO found that the security risk posed by the respondent arose from an assessment that he had been a member of the Egyptian Islamic Jihad in the decade or so prior to coming to Australia, had held an ideology supportive of politically motivated violence, and was still likely to hold that ideology and to act upon it. The respondent has always denied ever having that ideology, and therefore of intending to act upon any dictates of such an ideology.

7    The respondent succeeded on a subset of his case before the primary judge. Her Honour summarised the conclusions reached at J [8]:

(a)    the decision to issue the 2018 ASA involved a denial of procedural fairness to the applicant by reason of the use by ASIO, in a material and significant way, of evidence that had been wholly discredited, including because of the likelihood it was obtained through torture and/or ‘prepared’ by Egyptian authorities;

(b)    the decision to issue the 2020 ASA involved a denial of procedural fairness to the applicant by reason of the failure to engage with the applicant about, and determine, the facts, material and information about the applicant’s circumstances, both at the time of the assessment and into the foreseeable future if he were released into the community, which were capable of affecting the assessment of whether the applicant, in 2020 and from that point forward, was a risk to security; and

(c)    the first error was of a kind that also rendered the decisions to issue the 2018 ASA legally unreasonable. The second error might also have been capable of leading to this result but that contention was not clearly advanced on behalf of the applicant.

8    The overturning of the 2018 ASA depended upon a finding by the primary judge that the decision constituting the security assessment was vitiated by taking into account material found by her Honour to have been discredited because it was likely that it had been obtained by torture and/or prepared by Egyptian authorities. However, her Honour rejected a ground of review that the 2020 ASA had been vitiated in that way. That conclusion is sought to be challenged by the respondent’s amended notice of contention.

9    The term torture is used in these reasons to encompass not just torture itself, but also other cruel, inhuman, or degrading treatment or punishment, which encompasses what the primary judge was referring to at J [8(a)] reproduced above when she referred to evidence ‘pre-prepared’ by Egyptian authorities: see J [342]. This concept of torture itself and lesser conduct of that general nature is derived from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (Torture Convention).

10    The primary judge instead overturned the 2020 ASA because of a finding that the respondent had been denied procedural fairness in relation to the future risk that he posed to national security having regard to his current and likely future circumstances. It follows that the final basis for the continued refusal of the grant of a protection visa to the respondent by reason of not being able to meet one of the indispensable visa criteria of not having an adverse security assessment, being the 2020 ASA, was found by the primary judge not to have relied upon information derived from torture in any sense.

11    By an amended notice of appeal, the Government relies upon the following grounds of appeal:

[1]    The primary judge erred in concluding that the adverse security assessment of the respondent made by the first appellant on 23 April 2018 was invalid on the basis that it:

(a)    involved a denial of procedural fairness to the respondent; and

(b)    was legally unreasonable.

[2]    The primary judge erred in finding that the officers of the Australian Security Intelligence Organisation who interviewed the respondent on 15 September 2020 prejudged the outcome.

[3]    The primary judge erred in concluding that the adverse security assessment of the respondent made by the first appellant on 27 October 2020 was invalid on the basis that it:

(a)    involved a denial of procedural fairness to the respondent; and

(b)    involved a failure by the first appellant to perform the task required by s 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth).

12    The respondent advances the following contention grounds in an amended notice of contention seeking to uphold the primary judge’s orders on alternative bases:

[1]    Order 2 of the orders made by the primary judge on 22 April 2022 should be affirmed on the alternative or additional ground that the 2020 adverse security assessment was, in substance, based at least in part upon material from the Returnees from Albania trial, rendering it invalid.

[2]    Order 2 of the orders made by the primary judge on 22 April should be affirmed on the alternative or additional ground that the 2020 adverse security assessment was not a “security assessment” within the meaning of s 35 of the Australian Security Intelligence Organisation Act 1979 (Cth) because it did not express a recommendation, opinion or advice on, or otherwise refer to, whether it would be consistent with the requirements or security, or whether the requirements of security made it necessary or desirable, for prescribed administrative action to be taken in respect of a person (see J[242]), and hence that the decision-maker acted outside the power conferred by s 37 of that Act.

13    The Government does not object to the respondent relying upon the first contention ground, but submits that it should fail. The Government objects to the second contention ground being permitted to be relied upon as it was not raised before the primary judge, could readily have been met by evidence if it had been, and was only proposed a short time before the appeal hearing, so that it was well out of time under the rules of the Court.

14    For the reasons that follow:

(a)    Appeal grounds 1 and 3 succeed.

(b)    Appeal ground 2 cannot be entertained because it constitutes an impermissible appeal against reasons, not orders or another operative judicial act. However, some consideration is given to the primary judge’s reasoning in that regard in the course of considering appeal ground 3, because her Honour’s findings about the 15 September 2020 interview of the respondent by ASIO were at the centre of the conclusions she reached about the 2020 ASA.

(c)    The first contention ground fails, because it has not been demonstrated that the primary judge erred in finding that the 2020 ASA was not based on material that had been obtained as a result of torture or other cruel, inhuman or degrading treatment or punishment, and in any event, any such reliance that might have occurred was so peripheral that it could not possibility have made a difference to the outcome of the assessment;

(d)    Leave to rely upon the second contention ground is refused because it concerns an issue with respect of which the Government could have adduced evidence to meet, and because in any event it has no serious prospects of success.

(e)    The appeal is allowed with costs, the orders made by the primary judge setting aside the 2018 ASA, the 2020 ASA are set aside, and in lieu thereof the respondent’s amended originating application dated 12 March 2021 is dismissed with costs.

THE LEGAL AND POLICY FRAMEWORK

Overview

15    It is necessary to describe in some detail the legal and policy framework in which the making of each impugned adverse security assessment took place. That framework comes from:

(a)    key provisions of the ASIO Act;

(b)    determinations for the purposes of security assessments made by the Director-General under s 37(4) of the ASIO Act;

(c)    policy documents generated by ASIO to guide the exercise of security assessments under the ASIO Act and pursuant to the determinations in force from time to time; and

(d)    a decision of the House of Lords of the United Kingdom, now the Supreme Court of the United Kingdom, in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 (A v Home Secretary), as to the common law exclusion from evidence in a curial proceeding of third party torture evidence (as noted above, encompassing both torture itself and also other cruel, inhuman, or degrading treatment or punishment, also referred to as CIDTP).

16    Two separate but related sets of distinctions emerge from this legal and policy material:

(a)    a distinction between a government security organisation or entity, in taking steps to protect the public:

(i)    engaging in torture (as noted above, using that term to include other cruel, inhuman, or degrading treatment or punishment);

(ii)    sanctioning, acquiescing in, or encouraging torture; and

(iii)    referring to and placing any reliance upon information that has been obtained in some way by the use of torture by someone else, including a foreign government and its agencies, as opposed to information that only may have been obtained by such means; and

(b)    a distinction between the use of such information in any of the above three categories for the purposes of curial proceedings, and the use of such material by the executive in the course of and for the purposes of the protection of the public, noting that both ASIO and the Director-General eschew the use of any information in the first or second categories.

17    As considered in more detail below, the reasons of both the majority and dissenting law lords in A v Home Secretary are authority for the proposition that information in any of the three categories is not permitted to be used in curial proceedings. However, there was a division of views between the majority and the dissenting reasons as to the approach that should be taken by a specialist court in determining whether information potentially in the third category has been obtained by torture in its wider sense so as to engage curial exclusion, or falls short of that being established such that cautious use is permitted. A sharp distinction is drawn by all of the law lords between curial and executive use of material that may have been obtained by torture, including in the wider sense, with greater latitude allowed for executive use for the purpose of protection of the public. Care must be taken not to blur that important distinction.

18    As noted above, the primary judge found that the threshold precluding any use of information that was likely to have been obtained by torture in its wider sense had been exceeded for the 2018 ASA but not for the 2020 ASA. The Government challenges the first conclusion in relation to the 2018 ASA, and the respondent challenges the second conclusion in relation to the 2020 ASA.

Legislation

19    Apart from s 36(1B) of the Migration Act providing that not having an ASA is an indispensable criterion for the grant of a protection visa, all of the key legislative provisions relevant to this appeal are in the ASIO Act. The key provisions of that Act are as follows.

20    Section (4) defines “security” as:

(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).

21    Section 17(1) sets out the functions of ASIO as being:

(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.

22    Section 35(1) defines a number of terms, including in particular the meanings of “adverse security assessment” and of “security assessment” or “assessment”:

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.

...

security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State 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.

23    Section 37 provides:

(1)    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.

(2)    An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:

(a)    shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and

(b)    shall, for the purposes of this Part, be deemed to be part of the assessment.

(3)    The regulations may prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments, or of assessments of a particular class, and any such regulations are binding on the Organisation and on the Tribunal.

(4)    Subject to any regulations made in accordance with subsection (3), the Director-General shall, in consultation with the Minister, determine matters of a kind referred to in subsection (3), but nothing in this subsection affects the powers of the Tribunal.

(5)    No proceedings, other than an application to the Tribunal under section 54, shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act.

24    Thus, the ASIO Act makes provision for determinations as guidance for ASIO staff, which refer to and are complemented by policy documents.

Legislative determinations and ASIO policies and procedures

25    Two relevant determinations were made under s 37(4) of the ASIO Act by the Director-General who was the holder of that office at the time they were made, being:

(a)    Security Assessment Determination No. 2, made on 28 July 2010 (SAD No. 2), which was in force at the time of the 2018 ASA; and

(b)    Security Assessment Determination No. 3, made on 29 May 2020 (SAD No. 3), which was in force at the time of the 2020 ASA.

Each determination expressly replaced the preceding determination, and only applied if the decision-maker considered that the assessment process was likely to result in an adverse or qualified security assessment as defined in s 35 of the ASIO Act.

26    There was no challenge to the validity of SAD No. 2 or SAD No. 3, nor any suggestion of invalidity. They overtly guide how the security assessment process is to be carried out and security assessments ultimately made, including as to the application of the ASIO policy prohibiting the use or involvement in torture, but not the use of information that may have been obtained by such means by a third party. The case before the primary judge and on appeal is confined to impugned third party information.

27    SAD No. 2, which is substantially and relevantly in the same terms in SAD No. 3, provides the following guidance as to how a security assessment should be made.

THE MANNER OF MAKING THE ASSESSMENT

7. WHEN evaluating information for the purposes of making a security assessment, to the greatest extent possible consistent with national security interests and the safety of any person, regard should be had to the following:

(a)    the requirements of procedural fairness ('natural justice'); and

(b)    the thresholds to apply and the weight to be given to information.

7.1 PROCEDURAL FAIRNESS

(a)    Security assessments are to be made in good faith without bias.

(b)    The reasons supporting the security assessment are to be recorded.

(c)    The security assessment is to be made using a process which is as fair as possible while taking into account the requirements of security.

7.2 THRESHOLDS AND WEIGHTING IN MAKING THE ASSESSMENT

A decision maker makes a decision at (at least) five (5) stages in an assessment. Different tests or thresholds of satisfaction may apply at these stages.

7.2.1 Referring to any relevant legislative test

a.    In deciding the threshold for an adverse assessment, the decision maker should take into account any relevant legislative test which will be used by the agency receiving the security assessment.

7 2.2 Whether to take Information into account

a.    In deciding what information should be taken into account in the security assessment, the decision maker should consider the credibility, nature and authenticity of the relevant facts, information and sources.

b.    The decision maker should consider what weight should be accorded to the available information, including whether the information can be corroborated.

7.2.3 Currency of information

a.    The weight to be given to information may be affected by its currency.

b.    The decision maker should consider whether the age of the information means it should be given less weight. Where it is considered that the information should still carry weight, the decision maker should explain why.

7.2.4 Torture

a.    The weight to be given to information may be affected by the risk that it has been obtained using means which may amount to duress, torture or other cruel, inhuman or degrading treatment or punishment.

b.    In deciding what weight should be given to such information, the decision maker should apply the policy ASIO Prohibition on the Use of or Involvement with Torture or other cruel, inhuman or degrading treatment or punishment.

7.2.5 Making a finding or conclusion

a.    A decision maker should consider whether there is enough information to justify a finding or conclusion being drawn.

b.    Any finding or conclusion in an assessment (whether intermediate or final) which is adverse to the assessment subject should be judged to be at least likely.

28    Paragraph 7.2.4(b) of SAD No. 2 refers to the ASIO policy “Prohibition on the Use of or Involvement with Torture or other Cruel, Inhuman or Degrading Treatment or Punishment” (Torture Policy). A copy of an unclassified extract of the Torture Policy was in evidence before the primary judge, with the evidence also being that the copy before her Honour was in substantially the same form as it was at the time of the making of the 2018 ASA. The Torture Policy relevantly contains the following, which was referred to by the primary judge, or provides context to what was referred to:

(a)    The “policy intent” was stated to be (with the part referred to by the primary judge emphasised):

The Australian Security Intelligence Organisation’s (ASIO’s) security investigations must be conducted lawfully, without threat or coercion.

This policy outlines ASIO’s requirement to conduct all its activities without employing, sanctioning, acquiescing to or encouraging the use of torture or other cruel, inhuman or degrading treatment or punishment (CIDTP).

This policy and the related Intelligence Procedure must be considered and, where appropriate, implemented in any of ASIO’s activities, including (but not limited to) interviews, human source operations, special intelligence operations and collaboration activities.

The related Intelligence Procedure provides guidance on steps to be taken when an ASIO staff member becomes aware that information ASIO has received has been, or is assessed as likely to have been, derived from the use of torture or other CIDTP.

(b)    The legislative basis for the policy was stated to be:

On 7 September 1989 the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) entered into force in Australia.

•    As a party to the Convention, Australia is obliged to prohibit torture and other cruel, inhuman or degrading treatment or punishment.

•    The prohibition of torture and cruel, inhuman and degrading treatment or punishment is also referenced in Article 7 of the International Covenant on Civil and Political Rights.

•    Division 274 of the Criminal Code … criminalises acts of torture committed inside or outside Australia by a public official or a person acting in an official capacity or a person acting at the instigation or with the consent or acquiescence of a public official or a person acting in an official capacity.

No exceptional circumstances – such as war, internal political instability, or any other public emergency – or an order from a superior officer or public authority may be invoked as a justification for torture and other CIDTP.

(c)    The legislative basis for the policy is followed by the following “ASIO principles”:

There are three essential principles relevant to ASIO's position on the prohibition of, use of or involvement with torture and other CIDTP:

•    ASIO does not employ torture or other CIDTP;

•    ASIO does not act in a way that sanctions, acquiesces to, or encourages torture or other cruel, inhuman or degrading treatment or punishment by others; and

•    If appropriate, ASIO passes to the relevant Australian Government agencies knowledge of torture or other CIDTP of which it becomes aware.

29    The Torture Policy contains an unqualified prohibition on ASIO itself using torture in its widest sense, or in sanctioning, acquiescing to or encouraging such use. A quite separate approach is taken by ASIO in relation to information obtained that has been derived from torture in its widest sense, which may be described as third party information derived from torture. This case is concerned only with the latter.

30    Reflective of the distinction on the one hand between using torture in its widest sense, or in sanctioning, acquiescing to or encouraging such use, and on the other hand the use of information derived in that way by a third party, was an unclassified extract of a procedure entitled “Treatment of Information Derived from the use of Torture or other Cruel, Inhuman or Degrading Treatment or Punishment” (Torture Procedure), also described by her Honour as a policy. The parts of the Torture Procedure specifically referred to by her Honour at J [346]-[348], or providing necessary context in the case of (b) below, were as follows:

(a)    its purpose was stated to be:

The Australian Security Intelligence Organisation's (ASIO’s) activities must be conducted lawfully, without threat or coercion and within the framework described in the Intelligence Policy on the Prohibition on the Use of or Involvement with Torture or other Cruel, Inhuman or Degrading Treatment or Punishment (CIDTP). This procedure provides guidance on steps to be taken when an ASIO staff member becomes aware that information ASIO has received has been, or is assessed as likely to have been, derived from the use of torture or other CIDTP.

(b)    it provided that when an ASIO staff member becomes aware that information received has been, or is assessed as likely to have been, obtained by the use of torture or other CIDTP, that member must:

Take into account in any assessment of the reliability and credibility of the information that the information has been, or is likely to have been, obtained by the use of torture or other CIDTP, and take suitable caution in the further use or dissemination of the information.

(c)    it provided that when ASIO becomes aware that information or intelligence it has received has been, or is assessed as being likely to have been obtained in that way, “assessments made in respect of the reliability and credibility of the information must be informed by that fact”.

31    Thus, the Torture Procedure does not in terms prohibit the use of information from a third party that has been derived from torture, but dictates caution, especially as to the weight to be given to such information. As such, the approach taken by ASIO may be seen to be more conservative than that adopted in A v Home Secretary, at least by Lord Bingham at [47] reproduced below at [38].

A v Home Secretary

32    The effect of the decision in A v Home Secretary was succinctly stated in a more recent decision of the United Kingdom Supreme Court in Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] UKSC 34; [2020] 1 WLR 3549 (Lord Hamblen and Lord Leggatt JJSC, with whom Lord Hodge DPSC, Lord Briggs and Lord Burrows JJSC agreed):

[105]    There are now very few categories of relevant evidence which are inadmissible in civil proceedings, but one such category is evidence obtained by torture. Article 15 of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) imposes an international obligation on state parties to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. In A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 a seven-member Appellate Committee of the House of Lords unanimously held that it is also a rule of the common law that evidence obtained by torture is inadmissible in judicial proceedings. A minority (of three members of the committee) would have held that it was sufficient to render evidence inadmissible that there was a real risk that it was obtained by torture. However, it was decided by the majority that the test for this purpose is proof on a balance of probabilities.

[106]    It is accordingly settled law, and common ground in this case, that if it is proved on a balance of probabilities that a confession (or other statement) on which a party wishes to rely in legal proceedings was made as a result of torture, evidence of the statement is not admissible and must be excluded from consideration altogether when deciding the facts in issue.

33    Closer consideration of A v Home Secretary is assisted by some background information able to be gleaned from the authorised report. Following the terrorist attacks in the United States of America on 11 September 2001, the United Kingdom passed the Anti-terrorism, Crime and Security Act 2001 (UK) (2001 Act) which provided for the detention of suspected international terrorists if the Secretary of State believed their presence was a risk to national security, and suspected that they could not be deported because of fears for their safety or other practical considerations. Such detention followed certification to that effect by the Secretary of State.

34    In A v Home Secretary, 10 individuals who had been certified in late 2001 or early 2002 appealed against their detention by applications made to the Special Immigration Appeals Commission, a superior court of record previously established to reconcile the competing demands of procedural fairness and national security in the case of foreign nationals whom it proposed to deport upon the ground of danger to the public. The Commission, by rules made in 2003, took on the role of providing judicial supervision of the exercise of additional powers under the 2001 Act, including certification for detention. The Commission was entitled to receive evidence that would not be admissible in an ordinary court of law.

35    One of the applicants to the Commission alleged that the Secretary of State had relied upon evidence of a third party obtained through his torture in a foreign state, there being no suggestion that British authorities had been involved in, or had condoned (in the sense of sanctioning, acquiescing to or encouraging) the alleged torture. The Commission held that if there was such material which had been obtained without complicity of British authorities, it could examine it and determine the proper weight to be attached to it, finding there was no prohibition on its admission within the meaning of article 15 of the Torture Convention. The Commission found that there was no such tainted material, a conclusion apparently arrived at by the application of a conventional burden of proof on the applicant asserting that torture had taken place.

36    The Court of Appeal by majority upheld the Commission’s decision and dismissed the appeals. The Judicial Committee of the House of Lords unanimously allowed appeals from that decision and remitted each case to the Commission for reconsideration, with dissent only on the test to be applied by the Commission on remittal in determining whether the impugned evidence had been obtained by torture. All seven law lords held unanimously, unless indicated to the contrary, that:

(a)    evidence of a suspect or witness which had been obtained by torture may not be admitted in a court, irrespective of where, by whom or on whose authority it had been inflicted;

(b)    the Secretary of State did not act unlawfully in relying upon such tainted material when certifying, arresting or detaining a person under the 2001 Act who was suspected of international terrorism;

(c)    the Commission was established to exercise judicial supervision of the exercise of those powers by the Secretary of State and was required to assess whether, at the time of the hearing before it, there were reasonable grounds for the suspicion, but in so doing, even though not bound by the rules of evidence, there would need to be express statutory authorisation to override the exclusionary rule barring evidence procured by torture, and there was no such authorisation so that such evidence could not be admitted;

(d)    the conventional approach to proving that material was obtained by torture was not appropriate because the applicants only had limited access to materials advanced against them, such that a detainee could not be expected to do more than raise a plausible reason that material might have been so obtained and it was then for the Commission to initiate relevant inquiries;

(e)    by majority (Lords Hope, Rodger, Carswell and Brown), held that the Commission should adopt the test of admissibility laid down in article 15 of the Convention against Torture and consider whether it was established by such inquiry as was practicable to carry out, and on the balance of probabilities, that the information relied upon by the Secretary was obtained by torture, and if so, should decline to admit the material, but if in doubt should admit it, bearing that doubt in mind in evaluating it;

(f)    in dissent on the test for admissibility to be applied by the Commission, Lord Bingham (with Lord Nicholls agreeing at [80] and Lord Hoffman also agreeing at [99]) said that the test proposed by the majority could never be satisfied in the real world, and described the authorities relied upon by the majority as being of questionable value at best, explaining why his Lordship was of that view: [59]-[62].

37    The above summary indicates that the prohibition of using evidence obtained by torture from any source in a court held by all of the law lords in A v Home Secretary cannot properly be used to support proscribing its use by the executive arm of the Commonwealth in relation to the relevant category in issue in this case, being torture in the wider sense by a third party, without Australian involvement, because that was not what even the dissentients held was the position. Use by the executive, in the form of ASIO and the Director-General, of material that is likely to have been obtained by torture by a third party is the relevant issue in this case as ASIO and the Director-General, and thus the Government, eschews directly using torture or sanctioning, acquiescing to or encouraging its use. The views of the dissenting law lords on this issue present the position that is most favourable to the present respondent, but even those views maintain a sharp distinction between the prohibition of the use in evidence in a court of material obtained even by the use of torture by a third party, and the use of such material by the executive either to decide to take particular actions or to make particular decisions, including for such things as arrest and detention, and therefore necessarily for security assessments.

38    Lord Bingham said:

[47]    I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of art 3 for which the United Kingdom would be answerable, but no breach of art 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

[48]    This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence: Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617, 623 e to j; R (on the application of Wiley) v Chief Constable of West Midlands Police, [1995] 1 AC 274, [1994] 3 All ER 420, 295F-297C. It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.

39    Lord Nichols said:

[67]    Torture attracts universal condemnation, as amply demonstrated by my noble and learned friend Lord Bingham of Cornhill. No civilised society condones its use. Unhappily, condemnatory words are not always matched by conduct. Information derived from sources where torture is still practised gives rise to the present problem. The context is cross-border terrorism. Countering international terrorism calls for a flow of information between the security services of many countries. Fragments of information, acquired from various sources, can be pieced together to form a valuable picture, enabling governments of threatened countries to take preventative steps. What should the security services and the police and other executive agencies of this country do if they know or suspect information received by them from overseas is the product of torture? Should they discard this information as ‘tainted’, and decline to use it lest its use by them be regarded as condoning the horrific means by which the information was obtained?

[68]    The intuitive response to these questions is that if use of such information might save lives it would be absurd to reject it. If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.

[69]    In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this.

[70]    The next step is to consider whether the position is the same regarding the use of this information in legal proceedings and, if not, why not. In my view the position is not the same. The executive and the judiciary have different functions and different responsibilities. It is one thing for tainted information to be used by the executive when making operational decisions or by the police when exercising their investigatory powers, including powers of arrest. These steps do not impinge upon the liberty of individuals or, when they do, they are of an essentially short-term interim character. Often there is an urgent need for action. It is an altogether different matter for the judicial arm of the state to admit such information as evidence when adjudicating definitively upon the guilt or innocence of a person charged with a criminal offence. In the latter case repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture.

40    Lord Hoffman said:

[92]    The Secretary of State’s second argument is that while there may be a general rule which excludes all evidence obtained by torture in an ordinary criminal trial, proceedings before SIAC are different. The function of SIAC under section 25 of the 2001 Act is not to convict anyone of an offence but to decide whether there are reasonable grounds for belief or suspicion that a person’s presence in the United Kingdom is a risk to national security or that he is a terrorist: subsection (2)(a). There is no restriction upon the information which the Secretary of State may consider in forming such a belief or suspicion. In the exercise of his functions, he may rely upon statements from any source and in some cases it may be foolish of him not to do so. If the Security Services receive apparently credible information from a foreign government that bombs are being made at an address in south London, it would be irresponsible of the Secretary of State not to instigate a search of the premises because he has a strong suspicion that the statement has been obtained by torture. So, it is said, the exclusionary rule would produce a “mismatch” between the evidence upon which the Secretary of State could rely and the evidence upon which SIAC could rely in the exercise of its supervisory jurisdiction over the Secretary of State under the Act. Furthermore, rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034) specifically provides that the Commission “may receive evidence that would not be admissible in a court of law”. The purpose of that rule, it is argued, is to allow SIAC to consider any evidence which could have been considered by the Secretary of State.

[93]    In my opinion the “mismatch” to which counsel for the Secretary of State refers is almost inevitable in any case of judicial supervision of executive action. It is not the function of the courts to place limits upon the information available to the Secretary of State, particularly when he is concerned with national security. Provided that he acts lawfully, he may read whatever he likes. In his dealings with foreign governments, the type of information that he is willing to receive and the questions that he asks or refrains from asking are his own affair. As I have said, there may be cases in which he is required to act urgently and cannot afford to be too nice in judging the methods by which the information has been obtained, although I suspect that such cases are less common in practice than in seminars on moral philosophy.

[94]    But the 2001 Act makes the exercise by the Secretary of State of his extraordinary powers subject to judicial supervision. The function of SIAC under section 25 is not to decide whether the Secretary of State at some particular time, perhaps at a moment of emergency, acted reasonably in forming some suspicion or belief. It is to form its own opinion, after calm judicial process, as to whether it considers that there are reasonable grounds for such suspicion or belief. It is exercising a judicial, not an executive function. Indeed, the fact that the exercise of the draconian powers conferred by the Act was subject to review by the judiciary was obviously an important reason why Parliament was willing to confer such powers on the Secretary of State.

[95]    In my opinion Parliament, in setting up a court to review the question of whether reasonable grounds exist for suspicion or belief, was expecting the court to behave like a court. In the absence of clear express provision to the contrary, that would include the application of the standards of justice which have traditionally characterised the proceedings of English courts. It excludes the use of evidence obtained by torture, whatever might be its source.

41    The views of the majority law lords were to similar effect, but went somewhat further.

42    Lord Hope said:

[113]    Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use: Holdsworth, A History of English Law, vol v, p 194. As Jackson J in his dissenting opinion in Korematsu v United States, 323 US 214 (1944), 246 declared, once judicial approval is given to such conduct, it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. A single instance, if approved to meet the threat of international terrorism, would establish a principle with the power to grow and expand so that everything that falls within it would be regarded as acceptable. Without hesitation I would hold that, subject to the single exception referred to in article 15, the admission of any statements obtained by this means against third parties is absolutely precluded in any proceedings as evidence. I would apply this rule irrespective of where, or by whom, the torture was administered.

43    Lord Rodger said:

[132]    Mr Starmer QC, who appeared for Amnesty and a number of other interveners, indicated that, in their view, it would be wrong for the Home Secretary to rely on such statements since it would be tantamount to condoning the torture by which the statements were obtained. That stance has the great virtue of coherence; but the coherence is bought at too dear a price. It would mean that the Home Secretary might have to fail in one of the first duties of government, to protect people in this country from potential attack.

44    Lord Carswell said:

[149]    In so holding I am very conscious of the vital importance in the present state of global terrorism of being able to muster all material information in order to prevent the perpetration of violent acts endangering the lives of our citizens. I agree with the frequently expressed view that this imperative is of extremely high importance. I should emphasise that my conclusion relates only to the process of proof before judicial tribunals such as SIAC and is not intended to affect the very necessary ability of the Secretary of State to use a wide spectrum of material in order to take action to prevent danger to life and property. In the sphere of judicial decision-making there is another imperative of extremely high importance, the duty of states not to give any countenance to the use of torture. Recognising this is in no way to be “soft on torture”, a gibe too commonly levelled against those who seek to balance the opposing imperatives.

45    Lord Browne said:

[161]    Several of your Lordships have remarked on the tensions in play and have noted the balances struck by the law, different balances according to whether one is focusing on the executive or the judicial arm of the state. Essentially it comes to this. Two types of information are involved: first, the actual statement extracted from the detainee under torture (“the coerced statement”); second, the further information to which the coerced statement, if followed up, may lead (“the fruit of the poisoned tree” as it is sometimes called). Generally speaking it is accepted that the executive may make use of all information it acquires: both coerced statements and whatever fruits they are found to bear. Not merely, indeed, is the executive entitled to make use of this information; to my mind it is bound to do so. It has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. So far as the courts are concerned, however, the position is different. Generally speaking the court will shut its face against the admission in evidence of any coerced statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (“a pragmatic compromise” as my noble and learned friend Lord Bingham of Cornhill describes it at para 16 of his opinion) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value.

46    Thus, A v Home Secretary cannot be seen to lend the support of the common law for a prohibition on any use by ASIO or the Director-General, in conducting and making a security assessment under the ASIO Act, of information that is likely to have been obtained by a third party by the use of torture. If there is such a prohibition on the executive using such information, especially in protecting the public from a risk harm on a security basis, it must be found elsewhere. The stance taken by ASIO and by the Director-General has been, if anything, to self-impose greater limitations on the use of information that may have been obtained by a third party using torture than are imposed by the common law as articulated in A v Home Secretary.

THE CASE BEFORE THE PRIMARY JUDGE

47    The respondent is from Egypt, where he was born in 1971. He had lived in Egypt, Albania, the United Kingdom, Iran and Indonesia before arriving in Australia by boat in May 2012. In July 2012, ASIO advised the predecessor department to the Department of Home Affairs that it had no security concerns about the respondent. However, in August 2012 ASIO withdrew that advice after being alerted to the respondent being the subject of a Red Notice (also referred to as an IRN) issued by the International Criminal Police Organisation, commonly known as Interpol.

48    An Interpol Red Notice is a request to law enforcement agencies worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. The Red Notice arose because the respondent had been tried in absentia in Egypt, along with over 100 other persons, and convicted of terrorism-related offences, referred to as the “Returnees from Albania Trial”. He was also sentenced in absentia.

49    On 17 July 2014, the Director-General issued an ASA of the respondent. At that time, there was in place a statutory bar on the respondent applying for a protection visa, so that the ASA had no bearing on the grant of any such visa.

50    On 18 May 2015, the Minister lifted the bar on the respondent applying for a protection visa. On 12 June 2015, he applied for a temporary protection visa.

51    In February 2018, ASIO received information from the Australian Federal Police (AFP) that on 9 February 2018, the Commission for the Control of Interpol’s Files (CCF) had cancelled the Red Notice relating to the respondent, a fact that was acknowledged in the 2018 Truncated Statement of Grounds for the 2018 ASA (2018 TSOG) considered below. This followed the CCF, on 2 February 2018, publishing a report that was before the primary judge, encompassing a decision made on 31 January 2018 in response to two requests made by the respondent in relation to the Red Notice issued against him (CCF Report).

52    The first request to the CCF by the respondent is not presently relevant. The second request to the CCF by the respondent raised in particular the asserted fact that the evidence upon which he had been sentenced in absentia was obtained by torture and was therefore inadmissible. After reviewing the material that was before it comprising, in summary:

(a)    allegations made by the respondent;

(b)    accounts given by witnesses (including the respondent’s father); and

(c)    criticisms of the Returnees from Albania trial made by a range of human rights organisations,

and seeking information from the National Central Bureau of Interpol (NCB) in Egypt, that was apparently responsible for the Red Notice having being issued, the CCF decided that the data concerning the respondent was not compliant with Interpol’s rules applicable to the processing of personal data and should therefore be deleted.

53    In reaching the effective conclusion that the Red Notice should be withdrawn, which is what happened a week after the CCF Report was published, the CCF found that the NCB in Egypt did not properly resolve concerns raised by it to the effect that the judgment which was the basis upon which the Red Notice was issued relied on evidence obtained under torture. It consequently cast doubt on the accuracy of the data held about the respondent, which he challenged.

54    The CCF also questioned the possible effective participation of the respondent in the charged acts, or whether the Red Notice could in fact serve the purpose for which it was issued, being the respondent’s extradition to Egypt, earlier having noted that Egypt was aware of the respondent’s presence in Australia, yet had not sought his extradition.

55    The CCF found that the respondent had demonstrated the existence of reasonable grounds that there was a real risk that evidence on which he was sentenced was obtained by torture. Therefore, the Red Notice which was challenged was based on a conviction dependent on such evidence which would consequently be contrary to fundamental rights and could not serve as a basis for that notice. That is, the CCF did not in terms determine that torture had in fact taken place, but only that there were reasonable grounds to find that there was a real risk that it may have taken place. In light of this finding and of the other findings made, the CCF concluded that data provided by the NCB of Egypt did not satisfy the requirements of Interpol’s rules, in particular Article 2 of its Constitution.

56    Passages from the CCF Report were reproduced by the primary judge at J [326], which also detailed the allegations that the respondent had made. The important point to note is that the reasons for withdrawing the Red Notice were inextricably tied up with the nexus to potential proceedings in a court.

57    On 23 April 2018, the Director-General approved a briefing note of the same date, which was in redacted form before the primary judge (2018 Briefing Note), and issued the 2018 ASA, containing a recommendation that the visa application be refused. The Director-General sent a letter to the Secretary of the Department of Home Affairs enclosing the 2018 ASA, and repeating the substance of it. Also before the primary judge was a copy of the 2018 TSOG, redacted to remove information of security concern.

58    The 2018 TSOG at [20] referred to the cancellation of the Red Notice and, after outlining the documents provided by the respondent about the trial, recorded the respondent’s position that the charges were baseless and that he was innocent. It also detailed aspects of documents he provided about the obtaining of evidence by torture and, at [29], attributed some weight to allegations made against the respondent by certain of his co-accused at the Returnees from Albania trial, describing them as “merely contributing to a broader intelligence case underlying this security assessment”. The 2018 TSOG at [48] also stated that (omitting footnotes):

ASIO has taken into consideration that some of the co-accused from the Returnees from Albania trial have – according to documents provided by [the respondent] – withdrawn their confessions because they claim they were provided under torture. ASIO has therefore treated this information with caution and has considered the information within the broader intelligence picture of [the respondent’s] activities in Albania.

59    The 2018 TSOG is some 35 pages long, with 143 paragraphs and extensive footnotes and is heavily redacted in parts. Paragraphs 18 to 30 address the Interpol Red Notice and the Returnees from Albania trial, including the withdrawal of that notice, and the weight given to the intelligence information from that source, which frames the use of that information in relatively isolated parts of what follows.

60    Under the heading “current assessment”, the 2018 TSOG addresses the respondent’s membership of Egyptian Islamic Jihad (referred to as EIJ) since about 1991 (unredacted), his membership of an operational EIJ cell in Albania between 1992 and 1997 (brief but substantially redacted), his employment at organisations which provided financial and material support to EIJ and al-Qaeda and the timeframe of that employment (partially redacted), his association with the Albania-based EIJ and al-Qaeda members (partially redacted), his EIJ-related travel (extensively redacted), his membership of an operational cell in the UK between 1997 and 2001 (extensively redacted), his association with the UK-based EIJ and al-Qaeda members (extensively redacted), his involvement in the facilitation of false documentation on behalf of EIJ (partially redacted), his relocation to Iran and detention due to his membership of EIJ and associations with EIJ and al-Qaeda members (partially redacted), him holding an ideology supportive of EIJ (partially redacted), and his current contacts and associates (partially redacted). The 2018 TSOG then has concluding segments on the consequences to security and risk mitigation, and the matters taken into account including the seriousness of making an adverse assessment.

61    On what is available to be read in the 2018 TSOG, the Returnees from Albania trial material contributed to the assessment that was made, but could not fairly be described as a primary source. There is nothing to contradict the description within the 2018 TSOG itself of the use that was put to that information, namely to contribute to the broader intelligence case underlying the security assessment, treating confessional information with caution. It has not been suggested that this description was false or misleading, but even if it had been, no basis for such a conclusion has been demonstrated.

62    On 13 June 2018, the Minister refused the grant of the visa to the respondent. In August 2018, the respondent commenced a proceeding in the High Court of Australia, challenging the validity of the 2018 ASA. That proceeding was remitted to this Court by consent in February 2019.

63    On 6 November 2019, the Independent Reviewer of Adverse Security Assessments, Mr Robert Cornall AO, issued a report on the 2018 ASA, a redacted copy of which was before the primary judge (Cornall Report). Mr Cornell evidently had access to unredacted versions of the materials concerning the 2018 ASA that were before the primary judge, and this Court, only in redacted form.

64    The Cornall Report cited and quoted from additional sources going to allegations about the use of torture in aid of the Returnees from Albania trial, including a report from Amnesty International and a declaration by the respondent’s father about being tortured. The report expressed the opinion that the 2018 ASA was an appropriate outcome, but recommended that when ASIO undertakes an internal review of that ASA it should:

(a)    disregard the Returnees from Albania trial, including the evidence, judgment and sentence and instead rely on the broader intelligence case to inform its assessment;

(b)    disregard the two Red Notices concerning the respondent as they were based on his conviction in the flawed trial and had been deleted from Interpol’s files; and

(c)    give further and broader consideration of its assessment of the respondent’s current ideology.

65    On 15 September 2020, ASIO officers interviewed the respondent, informing him that his ASA was being reviewed. The primary judge criticised the way that the interview was conducted, and in part based her Honour’s reasons for overturning the 2020 ASA on the approach that was taken.

66    On 26 October 2020, ASIO officers provided the Director-General with a brief recommending that he approve the furnishing of a fresh ASA, describing this as a priority and as being directed to take place by this Court (in original jurisdiction). The appellant describes the reference to a direction by the Court as fictitious, and relies upon that asserted error as part of the reasons to impugn the 2020 ASA, as set out at [138(3)-(7)] below. This is addressed at [141]-[143] below. At this point in the narrative of what took place before the primary judge, it suffices to note that her Honour had been advised that a fresh ASA was being considered, and directed the registry to manage its impact upon the extant proceeding concerning the 2018 ASA, which included provision for advising when the fresh ASA would be completed.

67    On 27 October 2020, the Director-General approved a decision brief dated 23 October 2020, which was in redacted form before the primary judge (2020 Briefing Note), and signed the 2020 ASA, which also contained a recommendation that the visa application be refused. The Director-General sent a letter to the Secretary of the Department of Home Affairs enclosing the 2020 ASA, and repeating the substance of it. Also before the primary judge was a copy of a 15-page truncated statement of grounds (2020 TSOG), which was a statement of the grounds for making the 2020 ASA, redacted to remove information of security concern.

68    The 2020 TSOG is substantially shorter than the 2018 TSOG, being some 15 pages long (cf 35 pages), with 63 paragraphs (cf 143 paragraphs), but with most of the redactions now in the footnotes rather than in the body of the text. After summarising the respondent’s background and noting that the delegate of the Minister for Home Affairs did not have access to the classified information or reporting that formed the basis for the 2020 ASA, it addressed the following topics:

(a)    A summary of the origins and history of Egyptian Islamic Jihad (EIJ), including its roots in the Muslim Brotherhood, which by the 1970s had developed into a militant organisation that had embraced the concept of violent jihad, its terrorist attacks in Africa, the Middle East and Pakistan in the 1980s and 1990s (including the assassination of Egyptian President Anwar Sadat) and its merger with al-Qaeda in 2001, noting that while EIJ had been listed as a terrorist organisation by the Australian government in 2003, this listing was not maintained in 2009 due to insufficient intelligence to demonstrate a capacity to be involved in terrorist attacks, but al-Qaeda remained listed, being the body into which the international arm of EIJ folded.

(b)    The respondent’s membership of EIJ from about 1991 until 2010:

(i)    starting with when he most likely became a member, his membership of an organisational cell of EIJ in Albania between 1992 and 1997, and his association with EIJ members in Albania;

(ii)    finding the likelihood was that he travelled to Yemen as an EIJ member in 1992 and 1995, which at that time became the most important station for harbouring, arming and training elements of EIJ, being travel that the respondent withheld from ASIO and the Department of Home Affairs to conceal security relevant activities, but which he denied took place;

(iii)    assessing him as being a member of an EIJ operational cell in the UK, and his association with EIJ members in the UK;

(iv)    his involvement in the facilitation of fraudulent travel documents for EIJ; and

(v)    his flight to Iran as part of a movement of EIJ and al-Qaeda members after 11 September 2001;

(c)    The assessment that the respondent:

(d)    Based on the foregoing, the consequences to security and risk mitigation, and other considerations, identifying the matters that had been taken into account, specifically referring to some weight being given to material from the Returnees from Albania trial, and stating that the assessment had not taken into account any of that material for the 2020 ASA.

69    The 2020 ASA specifically disavowed any reliance on any material from the Returnees from Albania trial. The primary judge was satisfied that the 2020 ASA was not made by relying upon such material, a point challenged by the respondent’s first ground in the amended notice of contention. The basis for finding that the 2020 ASA was invalid was a finding of inadequacy as to the approach taken to ascertaining the currency of the information relied upon to make it, especially as to the respondent’s current ideology and related findings that proper consideration was not given to, and there was a failure to consider, evidence of rehabilitation and his recent good conduct. Part of that conclusion was in turn based on the conduct of the 15 September 2020 interview.

70    Many of the grounds of review advanced before the primary judge failed. There is no cross-appeal challenging her Honour’s reasoning or conclusions about those grounds and accordingly there is no need to address any of them except to the extent that they have a bearing on the grounds of review that succeeded before her Honour and are now the subject of this appeal, or are the subject of the respondent’s amended notice of contention.

71    The respondent succeeded in persuading the primary judge that there had been vitiating error in making the 2018 ASA and the 2020 ASA, such that the sole basis for refusing the grant of the protection visa that he sought neither existed at the time of that refusal, nor subsequently.

THE NOTICE OF APPEAL

Appeal Ground 1 – the validity of the 2018 ASA

72    In relation to the 2018 ASA, it was not in doubt before the primary judge, nor on appeal, that the materials furnished to the Director-General for the purposes of considering making the 2018 ASA, and in the reasons given for making it, referred to, and to that extent relied upon:

(a)    the Red Notice, which by then had been withdrawn by Interpol following the CCF Report; and

(b)    evidence or information from the Returnees from Albania trial.

However, there was and still is a dispute as to the nature and extent of that reliance, including as to the significance of that material to the ultimate conclusion reached in making the 2018 ASA. Her Honour described the Red Notice and Returnees from Albania trial information as having been used in a way that was material and significant: J [8(a)], reproduced above at [7].

73    The primary judge characterised the Government’s submission as being that the reliance on the Red Notice was confined to circumstances in which there was corroboration from other sources, including from the respondent himself. The Government’s case on appeal is that this was, in substance, a straw man characterisation, because that was not the submission made, and her Honour then made an adverse finding that there was reliance upon such material without there being such corroboration.

74    The primary judge concluded that ASIO relied upon evidence obtained from the Returnees from Albania trial “at a time when it was, or should have been, absolutely clear that it should not rely on evidence obtained from those sources in any way”: J [326]. Her Honour’s main foundation for the conclusion that there should have been no use at all of Returnees from Albania trial evidence was the decision recorded in the CCF Report to withdraw the Red Notice two months before the 2018 ASA, with passages from that decision being reproduced at some length at J [326], key aspects of which are summarised above at [52]-[55]. Her Honour:

(a)    characterised the 2018 TSOG as glossing over, downplaying, omitting and ignoring key parts of the CCF Report;

(b)    contrasted that with this aspect of the delegate’s reasons for refusing the grant of the visa being critical of that material; and

(c)    found that the Director-General was not fully and properly informed in the 2018 Briefing Note about the extent of the criticisms by the CCF, and other organisations, of the methods used to obtain evidence for the Returnees from Albania trial.

The Government takes issue with her Honour’s characterisation of the CCF Report, and this aspect of the 2018 Briefing Note and the 2018 TSOG.

75    The primary judge found (at J [340]) that ASIO officers “consciously and actively relied on information from sources any officers acting rationally and reasonably would have discarded as not only wholly unreliable but as against public policy for an Australian government agency such as ASIO to use”, citing [7.2.4] of SAD No. 2 as the source of that policy. Her Honour characterised that policy as being consistent with s 27D of the Foreign Evidence Act 1994 (Cth) and quoted the observations of Lord Bingham in A v Home Secretary at [52]:

The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.

76    Lord Bingham was referring to the admissibility of evidence in court proceedings (as is the subject of s 27D of the Foreign Evidence Act, in relation to foreign evidence in terrorism-related proceedings, excluding evidence shown to have been obtained directly as a result of torture or duress), rather than executive use of information from a third party likely to have been obtained by torture.

77    The primary judge found that SAD No. 2 and other ASIO policy documents had not been complied with: J [345]-[354]. The Government disputes the existence of any public policy basis for the blanket exclusion of any consideration by ASIO of material that may have been obtained by torture or other cruel, inhuman or degrading treatment or punishment for security and related purposes. The Government submits that such a limitation is contrary to the express findings of not just the majority in A v Secretary of State, but also of the reasons of Lord Bingham, Lord Nicholls and Lord Hoffman, dissenting as to the threshold for exclusion of such evidence in a curial proceeding, but in agreement as to such material being able to be used by the executive in discharging the obligation to protect security interests and thereby the public.

78    The Government’s position is that a clear distinction must be drawn between the use of information that may or even does have that character by the executive in aid of protection of the security interests of the public, and the use of such material in a court of law. The Government also disputes that any of ASIO’s policies on this topic had not been complied with, taking issue with the way in which her Honour read and applied those policies.

79    The primary judge found that the use of material that could not be treated as credible, reliable and probative constituted a denial of procedural fairness, citing Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [38] and [56]: J [341]. Her Honour found that there was a practical injustice because the evidence relied upon in the 2018 ASA from the Returnees from Albania trial had been so thoroughly discredited that it should never have been relied upon by ASIO, nor sought to be justified by the Director-General, a stance that her Honour found was confirmed by the Cornall Report: J [342]. As noted above, Mr Cornall found that the two Red Notices and material from the Returnees from Albania trial should not have been used. Instead, he found that more should have been done to consider the respondent’s current circumstances and ideology in light of the passage of time since the events and information upon which ASIO had relied and his lengthy period in detention in Iran and in Australia, being at that time some 15 of the previous 17 years, but otherwise upheld the 2018 ASA, a recommendation that was successfully relied upon in relation to the 2020 ASA.

80    The Government maintains that there was nothing vitiating in using the impugned material in the limited and cautious way that it was, both as furnished to the Director-General for the purposes of making the 2018 ASA and in the reasons for making it. The Government further disputes that WZARH is authority for the proposition that use of such material in any event can constitute a denial of procedural fairness, pointing to the absence of any authority relied upon by the primary judge, or cited by the respondent, to that effect.

81    Additionally, the primary judge found that no ASIO officer acting rationally and reasonably could have relied upon the impugned material, especially after what had been said in the CCF Report and by other agencies and courts referred to by her Honour. Thus, the foundation for her Honour’s conclusion of legal unreasonableness was the same, or substantially the same, as for the conclusion reached about denial of procedural fairness. Her Honour said that the link between the two was supported by the observation by Gaudron J in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [115] in relation to Wednesbury unreasonableness (an antecedent and parallel concept to the wider concept of legal unreasonableness), as often also being a decision involving a denial of procedural fairness. It is evident that the conclusion as to legal unreasonableness in the making of the 2018 ASA is therefore inextricably tied to the finding of a denial of procedural fairness by her Honour, and necessarily to the conclusion reached by this Court on appeal on that finding of denial. In the absence of a finding of procedural unfairness, the 2018 ASA could not, on her Honour’s reasoning, have been set aside.

The competing arguments on appeal

82    The Government asserts that there are seven discreet errors involved in the primary judge’s conclusion that the making of the 2018 ASA denied the respondent procedural fairness and was legally unreasonable. If the reference to discreet errors was intended to suggest that any one such error being established was sufficient to make good this ground of appeal, that may be doubted, not least because the relevant successfully appellable error must be more than something erroneous or infelicitous being detected even in some important aspect of her Honour’s reasons. An error established in the reasons must be such as to vitiate the order that has been made. However, the better course in any event is to determine whether each such asserted error in the reasoning or conclusions has been established, and if so, then to determine whether the cumulative effect of any such errors is such as to produce vitiating error in the order setting aside the 2018 ASA.

83    In the greater part, the respondent does not directly respond to the Government’s submissions, preferring instead to address the issues raised at a relatively high level of abstraction, largely divorced from the primary judge’s reasons. In summary, the respondent seeks to apply the reasoning in A v Home Secretary in relation to the prohibition on the use in court proceedings of evidence obtained by torture to executive decision-making, without sufficiently engaging with the express distinction drawn by the House of Lords between the two.

84    The respondent submits that the Government is wrong to suggest that the common law condemnation of torture results only in a refusal to admit its fruits as evidence in a court of law, which itself overstates the Government’s argument given the self-imposed restrictions in the Torture Policy and the Torture Procedure. The argument the respondent advances for blurring the distinction clearly and expressly drawn in A v Home Secretary, a decision that was endorsed in Shagang Shipping in 2020, is that the statutory context for the making of security assessments under s 37 of the ASIO Act is such that the use in any way of evidence obtained by torture is absolutely proscribed, relying upon the effect of a contrary conclusion to merits review by the Administrative Appeals Tribunal, which is itself an executive, not judicial, body.

85    No compelling argument is advanced by the respondent as to why this Court should depart from the approach taken in A v Home Secretary of finding that the common law allows the executive to make use of information obtained by a third party using torture, noting that ASIO requires such use to be cautious and to go to the question of weight. The respondent asserts that the making of a security assessment is ordinarily a more deliberative process than responding to a bomb threat, overlooking the wider ambit of executive decision-making also considered in A v Home Secretary. The respondent’s argument also overlooks the fact that a security assessment may be just as urgent as any other executive decision, and an arrest decision or an investigative decision may be taken over a considerable period of time.

86    The period of time over which an executive decision may be able to be made is not a sound basis for deciding what may or may not be taken into account in making such a decision. Further, as was pointed out by Lord Rodger in A v Home Secretary at [135], an executive decision made using information obtained by a third party using torture will not necessarily be short-term, because the certificate of the Secretary of State was not required to be reviewed for six months, which was not short-lived or preliminary.

87    Turning to the detail of the Government’s arguments, they first contend that the primary judge erred in finding that the reliance on evidence from the Returnees from Albania trial was “material and significant” (J [8(a)]), and was used and relied upon in a “primary and material way” adversely to the respondent (J [337]). The basis for that contention is that, when regard is had to the express acknowledgements in the 2018 TSOG of the cancellation of the Red Notice at [20] and of the criticisms of the Returnees from Albania trial at [29], some weight was placed on that information, noting that it is stated that the information sometimes accorded with other available information, and of the express statement at [48] that the information derived from that trial was being treated with caution. However, it is submitted, this did not meet the description given to it by her Honour of being material and significant, let alone being used in a primary and material way.

88    The respondent submits that this Court should not countenance a distinction between reliance that is material and significant and reliance that falls short of that, because the common law’s condemnation of torture does not turn upon such fine gradations. This argument overlooks the fact that the primary judge relied upon that very characterisation as part of the reason for overturning the 2018 ASA. The respondent further submits that in any event the extent of the references to Returnees from Albania trial material in the 2018 TSOG meant that the primary judge was correct to characterise the use as material and significant.

89    An evaluative assessment of this kind by a primary judge is not always easy to counter, let alone characterise as erroneous. However, in this case it is difficult to see how the Director-General’s reliance on the Returnees from Albania trial material fairly meets the description of being both material and significant, let alone that it was used in a primary and material way, given how it was said in the 2018 TSOG to be, in effect, secondary by giving it some weight, but merely contributing to the broader intelligence case underlying the security assessment. That said, a possible degree of overstatement alone would not be enough to make good this ground of appeal. However, it does feed into the Government’s second asserted error.

90    Secondly, the Government contends that the primary judge erroneously, at J [345]-[354], concluded that any reliance on evidence from the Returnees from Albania trial was contrary to ASIO’s policies. That does seem to be what her Honour found, albeit in support of the conclusion already reached. The Government relies upon the terms of [7.2.2] and [7.2.4] of SAD No. 2 reproduced above at [27], being part of a legislatively authorised determination for the purposes of the ASA aspect of the ASIO Act, and upon the terms of the Policy and of the Procedure, submitting, in substance that the SAD No. 2 and the related Policy and Procedure required caution, but not prohibition, in the use that was put to information that may have been derived from torture or CIDTP by others. The Government relies upon the following features of SAD No. 2 and related submissions:

(a)    Paragraph 7.2.2 of SAD No. 2 provided that a security assessor should consider (a) the “credibility, nature and authenticity of the relevant facts, information and sources”; and (b) the weight to be accorded to the available information, “including whether the information can be corroborated”;

(b)    Paragraph 7.2.4 of SAD No. 2 provided that the weight to be given to information that “may be affected by the risk that it has been obtained by means which may amount to duress, torture or other cruel, inhuman or degrading treatment or punishment” and that in deciding the weight to be given to such information, should apply the Torture Policy;

(c)    Contrary to the finding of the primary judge, no policy required ASIO to refuse to take into account evidence from the Returnees from Albania trial, but rather that the relevant parts of the Torture Policy are:

(i)    from the Principles:

ASIO does not act in a way that sanctions, acquiesces to, or encourages torture or other cruel, inhuman or degrading treatment or punishment by others.

(ii)    from the intent of the Policy:

This policy and the related Intelligence Procedure must be considered and, where appropriate, implemented in any of ASIO’s activities, including (but not limited to) interviews, human source operations, special intelligence operations and collaboration activities.

The related Intelligence Procedure provides guidance on steps to be taken when an ASIO staff member becomes aware that information ASIO has received has been, or is assessed as likely to have been, derived from the use of torture or other CIDTP.

(d)    The Torture Procedure requires:

(i)    a staff member to:

Take into account in any assessment of the reliability and credibility of the information that the information has been, or is likely to have been, obtained by the use of torture or other CIDTP, and take suitable caution in the further use or dissemination of the information.

and

(ii)    ASIO, when it becomes aware that information or intelligence it has received has been, or is assessed as being likely to have been obtained in that way, “assessments made in respect of the reliability and credibility of the information must be informed by that fact”.

91    The substance of the Government’s submission is that the 2018 TSOG reflects compliance with, rather than departure from, the above. Implicit in this submission is that the primary judge’s findings that amount to attributing a difference in approach to that stated in those reasons is a form of merits review.

92    The Government’s argument in relation to the primary judge having erred in finding a breach of policy by any reliance on evidence obtained from the Returnees from Albania trial must be accepted. An important but fine distinction is to be drawn between:

(a)    ASIO itself engaging in torture or CIDTP, which is proscribed in Australia by Div 274 of the Criminal Code (Cth);

(b)    ASIO doing anything to encourage such conduct by others, which is proscribed by ASIO’s policy as detailed above; and

(c)    restraint and caution by ASIO in using information that may (but does not have to be shown was) obtained by such conduct by others, which is otherwise not prohibited, relevantly for the purpose of conducting a security assessment and especially for making an ASA, with the Torture Policy in substance treating the risk of torture in this limited circumstance as going to reliability and thereby weight, rather than being a wholly impermissible source of information.

93    With the greatest of respect to the primary judge, her Honour appears to have conflated the criminal prohibition on ASIO itself engaging in conduct of that nature, or on ASIO in some way endorsing such conduct by others which is proscribed at least as a matter of policy, and the use of information obtained by others engaging in such conduct, and it then coming into the hands of ASIO, falling short of any such complicity, which is not prohibited by law or policy, but is required to be treated with restraint and caution. In doing so, her Honour erred. Doubtless even the deployment of information that may have been obtained in that way is troubling, and best avoided as Mr Cornall recommended should happen for any future security assessment of the respondent, and as was accepted for the process that gave rise to the 2020 ASA, but it is not absolutely forbidden when a question of national security is at stake and possible serious risks to this country and its people need to be assessed.

94    Thirdly, the Government contends that the primary judge at J [323] and [326] erroneously proceeded upon a misapprehension that a submission made at trial was that evidence potentially obtained by others by torture could only be used when it was corroborated, and that no such submission was made. Rather, consistently with the case outlined as addressed above in relation to the second asserted error, the Government’s case advanced before her Honour was in written closing submissions at [85], with emphasis added in the Government’s written submissions to this Court:

To the extent the validity of the 2018 ASA arises, the 2018 TSOG made clear at [20] (ECB 2450 (Vol B pdf p 1839)) that while some weight had been given to the evidence from the Returnees from Albania trial, in some cases that evidence corresponded with other evidence available to ASIO and in other cases to information provided by the applicant himself, and that it “merely contributes to the broader intelligence case underlying this security assessment”.

95    Paragraph 20 of the 2018 TSOG states (omitting footnotes):

In February 2018, ASIO received information from the AFP that on 9 February 2018, the Commission for the Control of Interpol Files (CCF) had cancelled the IRN relating to [the respondent]. Information provided by the AFP indicates the review of the IRN relating to [the respondent] was undertaken after submissions were made to the CCF by [the respondent] regarding the purpose for which the IRN was being used, as well as the veracity of the charges that underpinned the IRN. Correspondence from the CCF, provided to ASIO by Home Affairs, indicated that after an examination of the relevant data the CCF found there were concerns relating to the data’s compliance with Interpol’s applicable rules and as a result, the information related to [the respondent] had been deleted from Interpol systems.

96    Two points may be made about this argument. First, it is by no means clear that the primary judge did proceed upon any misapprehension that the Government was submitting that evidence potentially obtained by torture could only be used when it was corroborated. Neither J [323] nor J [326], either individually, or in combination, say that. Secondly, even if her Honour had reached such a conclusion, it is far from clear that the substance of what was submitted by the Government could not fairly be read in that way. The totality of the Government’s written submission at [85] reproduced above is open to being read in that way by referring to evidence that either corresponded with other evidence, or with information provided by the respondent, which amounts to saying that there was some form of corroboration. It follows that this third asserted error is not made out.

97    Fourth, the Government submits that the primary judge erred in her Honour’s treatment of the CCF Report by treating aspects of the substantial extracts reproduced at J [326] as findings, when significant portions were in fact submissions by the respondent. It is submitted that this then formed the basis for the conclusion that it was “absolutely clear” that ASIO should not rely on evidence obtained from the Returnees from Albania trial, and that the 2018 TSOG represented a “sanitised summary” (J [330]), glossing over and omitting matters (J [331]), and a “fundamentally inaccurate” downplaying and diminishing of the findings from that report (J [338]), referring to J [328]-[331] and [337]-[338]).

98    Some aspects of this argument are better made than others. As to the treatment of the quoted passages from the CCF Report reproduced at J [326] as findings, while it is true that parts of those passages were indeed submissions made by the respondent as is clear from the text that was quoted, each such submission was accompanied by references to material apparently relied upon by him in making those submissions. Further, parts of what was reproduced were the views of international human rights organisations. Moreover, the Government’s argument that the actual findings by the CCF in its report were much more limited fail to acknowledge that her Honour reproduced those parts as well.

99    The Government’s criticism of the primary judge’s conclusions drawn from the CCF Report, and of its treatment in the 2018 TSOG are better made. First, the CCF Report reflects a cautious approach to the use of information which may be too unreliable by reason of torture for something as serious as a Red Notice, which could result in someone being arrested and detained by a police force and then subject to extradition processes and court proceedings. The report was reflective of standards of data integrity and reliability that the Interpol Constitution requires to be met before the potential use of law enforcement powers is triggered, which in turn is likely to result in curial processes. That is quite a different framework to intelligence and risk assessment, in particular directed to questions of, and concern with, national security. It is another way of looking at the distinction between use of evidence in court, and use of material for executive decision-making.

100    Thus, when the primary judge at J [327] suggested that the reasons for the CCF deciding to cancel the Red Notice, which is not attributed to caution given the nature of the law enforcement powers that it could trigger, but rather to more generalised criticism of the trial process, meant that “no officer of any Australian government agency acting reasonably could have failed to understand that evidence from these sources should not be used”, her Honour conflated two quite different uses, objectives and purposes. The views that her Honour expressed may well be apposite for an Australian government agency charged with law enforcement responsibilities ordinarily directed to potentially initiating curial processes, such as the Australian Federal Police, which is not what this case concerns. But that does not readily equate to the protective intelligence activities and responsibilities of ASIO and like agencies in the intelligence community. There is a material difference between using such information in aid of law enforcement potentially ending in a curial process being brought against a person by the State, and it being used, albeit cautiously, as part of intelligence and thereby risk assessment processes, including culminating in an adverse security assessment. As the discussion about this topic below makes clear, this distinction is well-recognised.

101    Secondly, the primary judge’s criticisms of the 2018 TSOG’s use of the Returnees from Albania trial information are similarly misplaced. Once the misplaced premise that there was any complete policy prohibition on the executive using information that bears the risk of having been obtained by torture or CIDTP is put to one side, and it is appreciated that the requirement to treat such material with caution was in fact observed, then the use to which information from the Returnees from Albania trial was put can be better and more appropriately understood. The 2018 TSOG is a redacted version of the reasons for the making of the 2018 ASA, and in places quite heavily redacted both in the text and in the footnotes. Read fairly, the Returnees from Albania trial information forms a relatively small part of what was taken into account, and was far from dominant, determinative or even especially significant, at least in the unredacted parts able to be seen by the primary judge and by this Court. The description in the 2018 TSOG of it being used in a supportive way is accurate. To describe it as material and significant entails a measure of overstatement, but to describe it as both primary and material is unsustainable.

102    The primary judge gave little overt consideration to the bulk of the 2018 TSOG, placing most of the determinative weight on its treatment of the CCF Report. In particular, the primary judge at J [330]-[331] said that the last sentence in [20] of the 2018 TSOG (reproduced above at [95]) – “Correspondence from the CCF, provided to ASIO by Home Affairs, indicated that after an examination of the relevant data the CCF found there were concerns relating to the data’s compliance with Interpol’s applicable rules and as a result, the information related to [the respondent] had been deleted from Interpol systems” – was “somewhat sanitised”, and further characterised it as glossing over and omitting the parts that her Honour had quoted at J [326]. Yet that impugned sentence is an entirely accurate summary of the ultimate conclusion that the CCF Report reached. The CCF reproduced and acknowledged the criticisms that had been made of the Returnees from Albania trial, as quoted in part by her Honour at J [326], and found that the Egyptian branch of Interpol, who had caused the Red Notice to issue, had not satisfactorily answered those concerns sufficiently for the CCF to be satisfied that the data giving rise to the issuing of the Red Notice met the necessary standard of reliability.

103    The CCF did not find, one way or the other, that the criticisms of the Returnees from Albania trial, including as to obtaining evidence by torture, had in fact been established. The apparently simple reason for that which is evident from a careful consideration of the entirety of the CCF Report is that, in effect, the requirement placed on the Egyptian branch of Interpol was to show that these allegations were not true so that the information upon which the Red Notice was based met law enforcement reliability standards, not for the respondent to show that they were true. Such a stance is inherently appropriate for that purpose, placing a precautionary barrier in the way of relying upon material for which there is a real risk that it has been obtained by the use of torture, resulting in the issue of a Red Notice. The 2018 TSOG was recording the conclusion ultimately reached by the CCF accurately, and did not repeat the allegations leading to that conclusion which were not in fact found to be true, because they did not need to be.

104    It follows that the Government has made good the assertion of error on the part of the primary judge in overstating the effect of the CCF Report, and then using that characterisation to impugn any use of material from the Returnees from Albania trial and thereby conclude that this information could not be used at all. There was no such error, let alone vitiating error, in having regard to the Returnees from Albania trial material in the limited way it was deployed.

105    The Government’s fifth argument flows from the fourth, infecting the conclusions reached by the primary judge at J [337] and J [341]-[342] about use of the material obtained as part of the Returnees from Albania trial. Her Honour said:

[337]    It suffices at this point to make clear that, in my opinion, the applicant has proven a denial of procedural fairness by ASIO in the making of the 2018 ASA, because of the way that ASIO used and relied upon, in a primary and material way and adversely to the applicant, evidence obtained as part of the Returnees from Albania trial that had been thoroughly and completely discredited by a range of international organisations and foreign courts, most importantly Interpol’s CCF, being one of the very international organisations whose IRN both ASIO and the AFP (and other agencies such as Home Affairs) had acted upon in their former treatment of, and decision-making about, the applicant.

…

[341]    Unlike Jaffarie and SCDV, this is not a denial of procedural fairness by way of a failure to disclose sufficient information that could and ought to have been disclosed. This is a denial of procedural fairness by reliance on material that could not be treated as credible, reliable and probative. It was a process that was unfair to the applicant: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [38], Kiefel, Bell and Keane JJ. It was not “a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances”: WZARH at [56], Gageler and Gordon JJ, quoting Kioa v West [1985] HCA 81; 159 CLR 550 at 627, Brennan J.

[342]    There is no difficulty in describing what happened as a practical injustice to the applicant. The evidence relied on in the 2018 ASA from the Returnees from Albania trial had been so thoroughly discredited, and known to be so, that it should never have been relied on by ASIO. It should never have been sought to be justified to Mr Lewis who, given his position, could not have been expected to go and check what he was being told in the briefing note. The subsequent view taken by Mr Cornall confirms this, as does ASIO’s own change of position in 2020. Because of this reliance, the applicant was denied a fair consideration of his own evidence and answers, especially about the matters touched on at [103]-[106] of the 2018 TSOG, which were central to ASIO’s concerns and remained so throughout the three assessments. Instead, his evidence and answers were measured against evidence which had been found to be tainted by the likelihood of its extraction by torture, and/or because it was “pre-prepared” by Egyptian authorities.

106    The Government submits that in addition to the factual basis for those conclusions being absent (being the fourth argument considered above) there is no authority cited by either the primary judge or the respondent for the proposition that relying upon material that is not credible or reliable is procedurally unfair, with WZARH not being such an authority because that decision at [38] refers to denial of an opportunity to be heard. The Government submits that, given the cautious approach taken with the evidence from the Returnees from Albania trial, there was no procedural unfairness in the process adopted. ASIO had weighed that evidence against the respondent’s evidence, and the use of this evidence did not deny him a meaningful opportunity to participate in his security assessment, especially given that he had been interviewed and invited to comment on four occasions. Moreover, it is submitted, her Honour had earlier accepted at J [213] that the respondent “well understands ASIO’s reasoning at least in relation to its findings about his past activities and associations, even if he does not agree with them, and even if he does not know all the factual sources from which that reasoning is said to derive”.

107    The Government’s argument on the finding of a denial of procedural fairness must be accepted. There was no such denial.

108    The Government’s sixth argument, again flowing from the preceding arguments, and in particular the fourth argument, is that the primary judge erred at J [327] and J [340] where her Honour said:

[327]    Just as, quite properly, Australian authorities including the AFP and ASIO took the existence of an IRN as a serious matter against the applicant’s interests, it would have been irrational, and legally unreasonable, for the same Australian authorities not to give careful and serious consideration and respect to the decision of the same organisation to cancel the IRN, including careful and serious consideration of why it had decided to do so. The passages extracted above record the widespread condemnation of the Returnees from Albania trial, and the methods used to extract evidence. After Interpol’s CCF report at the very least, no officer of an Australian government agency acting reasonably could have failed to understand that evidence from these sources should not be used.

…

[340]    In taking this course in the 2018 assessment, ASIO officers consciously and actively relied on information from sources any officers acting rationally and reasonably would have discarded as not only wholly unreliable, but as against public policy for an Australian government agency such as ASIO to use. That such policy existed is evident in cl 7.2.4 of SAD2, as extracted above. That position is consistent with Commonwealth legislation. Section 27D of the Foreign Evidence Act 1994 (Cth) prohibits the admission of “foreign material” or “foreign government material” in a “terrorism-related proceeding” if the court is satisfied that the material, or information contained in the material, “was obtained directly as a result of torture or duress” (as defined in that provision). It is also consistent with judicial approaches to this kind of evidence or material. In A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 at [52], Lord Bingham of Cornhill said:

The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.

109    The Government submits that it was not open for her Honour to conclude that once it was sufficiently clear that evidence was tainted by torture, it was legally unreasonable for ASIO to use that information in any way, and again that this was contrary to public policy as reflected in SAD No. 2. This argument must also be accepted in light of the conclusions already reached to the effect that there was no legal reason, nor public policy imperative, nor ASIO policy dictating that regard could not be had to the material from the Returnees from Albania trial, especially in the limited and cautious way in which it was deployed. The error was compounded by reliance upon prohibitions that only apply to adducing evidence in court proceedings that has been shown to be obtained by the use of torture, which is the limitation that both s 27D of the Foreign Evidence Act, and Lord Bingham in A v Home Secretary at [52] refer to and are confined to.

110    The seventh and final argument advanced by the Government is that the primary judge erred at J [342] in concluding that the Cornall Report confirms that the evidence from the Returnees from Albania trial should never have been relied upon. Strictly speaking, this point goes nowhere. However, as the Government correctly points out, Mr Cornall in fact found, as one of three reservations about the 2018 ASA, that the Returnees from Albania trial was a travesty of justice and that any reliance upon the so-called evidence and judgment in that case, and the respondent’s conviction in absentia, detracted from the quality of the security assessment, further noting that there was in any event very limited information in the Egyptian judgment about the respondent, or in the statements against him said to have been obtained by torture. As the Government correctly points out, Mr Cornall did not find that the reliance upon that material met the description of being irrational, unreasonable, unfair, or contrary to any ASIO policy or procedure. The substance of the criticism made by Mr Cornall is that the evidence from that source was not really worth using.

Conclusion

111    As the Government has established error in a number of the key aspects of the findings by the primary judge that were indispensable to the finding of legal unreasonableness and a denial of procedural fairness, that conclusion cannot stand. Ground 1 must therefore succeed. The 2018 ASA must be restored.

Appeal Ground 3 – the validity of the 2020 ASA

112    It is convenient to address ground 3 before turning to ground 2, because the issue in the latter concerning the 15 September 2020 interview of the respondent by ASIO emerges in the consideration of the former as to the finding of inadequacy of the conduct of that interview.

113    The two bases for success by the respondent in challenging the 2020 ASA turned on the primary judge finding in his favour on related questions of whether, as alleged by him, proper consideration was not given to the currency of the information relied upon to make the 2020 ASA, and whether there was a failure to consider evidence of any rehabilitation and his recent good conduct in making that assessment. The following is a summary of the primary judge’s reasons at J [409]-[439].

114    As to the currency of the information relied upon, the primary judge referred to [12.4] of SAD No. 3, which states that the weight to be given to information may be affected by its currency, and therefore indicates that a decision-maker should consider whether the age of information means that less weight should be given to it, and an explanation provided when it is considered that it should still carry weight. Her Honour found that this was connected with submissions made by the respondent concerning rehabilitation and recent good conduct, concluding that in the 15 September 2020 interview with him, ASIO had failed to ask any questions on three topics, namely to determine his current ideology despite his solicitor prompting ASIO on this topic (with her Honour reproducing that part of the transcript), his family and community ties, and what he would do if released into community detention.

115    The primary judge rejected a submission by the Government that ASIO had given detailed and express consideration to those three topics, describing references to the interview transcript provided to support that as being statements from the respondent, not answers to questions. Her Honour found that the respondent had been anxious to impress upon the interviewers that he posed no current risk to the Australian community, having been through the interview process four times previously. Her Honour described, reproduced in parts, and criticised the approach taken of only general questions being put to the respondent, including about his ideology. Her Honour described him as being put in an impossible and invidious position by being asked if he still held extremist views that he denied ever having held. Her Honour described that as a “Catch 22” situation, a reference to the book of that name by Joseph Heller and the impossible conundrum it describes.

116    The primary judge reproduced the transcript of a debate that she had with counsel for the Government on this topic. That transcript included submissions by the Government to the effect that there was nothing wrong with the interviewers putting their position forward and not accepting the respondent’s denials. The Government had also suggested that the options available to the respondent were not confined to changing his stance and admitting to holding the asserted associations and ideology in the past, because ASIO may also come across new information. Her Honour characterised this as a submission that, it could be inferred, reliance was placed on classified information about the respondent’s current ideology and activities, and rejected that submission.

117    The primary judge found that an assessment authorised by s 37(1) of the ASIO Act must be “substantially forward-looking rather than backward-looking”. The evident concern held by her Honour was ASIO’s reliance on past events as revealed by the information it had, without actively and directly seeking by overt questions, what the present position was according to the respondent. With that framework, her Honour reverted to a consideration of the interview transcript, criticising the way in which particular questions were put, describing them variously as being at the very edge, or even over the edge, of questions likely to elicit probative material for the purpose of the s 37(1) assessment, further Catch 22 questions premised on the respondent having an extremist ideology that he had always denied, the questioners having a level of prejudgment, inquiries made of questionable provenance, propositions being put without an indication of interest in the answers, and a sense that the interviewers were just going through the motions by putting proposition to him with their views remaining immutable.

118    As part of this analysis, the primary judge noted that s 17A of the ASIO Act provides that it is not concerned with limiting the right of persons to engage in lawful advocacy, protest or dissent, the exercise of which shall not, by itself, be regarded as prejudicial to security, with the functions of ASIO to be construed accordingly. Her Honour found that there was no detail in the questions asked, listing the following as constituting questions that were not asked, and not addressed in either the 2020 Briefing Note or 2020 TSOG (at J [434]):

(a)    if the applicant were released, where he might live, whether he would go a mosque and if so which one, and how if at all this might affect any risk he might pose to security;

(b)    who he would associate with;

(c)    whether he would be become involved with any political parties or movements;

(d)    what relationships with people overseas would be maintained, and how, and for what purpose;

(e)    whether he would work and if so in what field;

(f)    what activities he would undertake and with whom;

(g)    what he would expect his children to be doing and what role he would play in his children’s lives;

(h)    how, if at all, might involvement with his wife and family affect any inclination to engage in activities that might pose a risk to security; and/or

(i)    whether there were any administrative or statutory arrangements that could be used in relation to the applicant to provide additional initial supervision of his activities, so as to mitigate any potential risks.

119    As to the alleged failure to consider evidence of any rehabilitation and the respondent’s recent good conduct, the primary judge cited [8.7] of SAD No. 3, which provides guidance as to character as relevant to security, referring to aspects of past or present personal behaviour, including criminal conduct, which is inconsistent with the requirements of security. This may give rise to a reasonable suspicion of vulnerability to exploitation relevant to security or raise doubts about credibility which reduces the weight given to information provided. Her Honour found that ASIO did not actively and genuinely engage in any consideration of how the respondent had behaved since he had been in Australia. Her Honour found that was the stance taken despite close questioning of the respondent based on surveillance and records available as to who he had been in contact with and the internet sites he had visited, with it being clear that none of these sources had demonstrated any kind of risk because there was no reference to it in the 2020 Briefing Note or 2020 TSOG. Her Honour found that this could not have been in the classified material because the questions and answers in the interview had been provided openly to the respondent and to the Court.

120    Based upon the foregoing, the primary judge reached the following conclusions:

[441]    The applicant contended and I accept that these errors can be characterised as denials of procedural fairness. The applicant was denied not only a reasonable opportunity but any opportunity to advance how he proposed to live in the community, who he would associate with, how his family would conduct itself, what the attitudes of his family were to life in Australia and to their place as members of the Australian community, whether he might be influenced by those attitudes, how he would be involved in the life of his wife and children, whether he would seek employment – all facts and matters that were rationally capable of affecting whether, in reality and not just in theory, his presence in the Australian community would pose any risk to security. All these facts and matters were central to the assessment of risk, in 2020, on release from immigration detention. Yet the applicant was not questioned about them at all. An entire line of engagement and inquiry in the interview process – his best opportunity to persuade – was denied to him.

[442]    The ASIO interview was the proper place for the applicant to be given this opportunity. Its denial to him is a denial that then flows through to how the material is presented to Mr Burgess in the briefing note and recommendations. There is a conspicuous absence in the briefing note of any references at all to the matters I have described above, in terms of how the assessment of whether, in the future and if released with his family into the Australian community, the applicant would pose a risk to Australian security. Instead, there was reliance on conduct that had occurred overseas some 20-30 years ago. There is no basis to find any classified material existed and was considered by ASIO about the applicant’s future behaviour. That is because the applicant was closely but openly questioned about his associates, his friends, and the internet material he uses since he has been in immigration detention. None of this questioning, nor anything that could be said to be connected to it, made its way into the 2020 TSOG or into the briefing note to Mr Burgess.

[443]    Therefore, I find this denial of procedural fairness carried through to, and affected, the validity of the consideration given by Mr Burgess. He did not consider these issues either, as nothing was presented to him and there is no evidence of any consideration by him outside the documents adduced into evidence. He also made a decision on the same day the briefing note was given to him, and declined to ask for any matters to be discussed.

121    It is not readily apparent what prevented the respondent from providing any information he wished to on any of those topics. Accordingly the gravamen of the findings made by the primary judge about the 2020 interview must be seen to be that the opportunity that should have been provided was not to volunteer such information, which was plainly given by an open invitation in the presence of the respondent’s solicitor, but to be given the opportunity to provide such information in response to specific questions.

122    The primary judge also indicated that it was possible to characterise the conduct found to constitute a denial of procedural fairness as constituting a failure to perform the statutory task required by s 37(1) of the ASIO Act, citing and quoting from Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [34], [46] and [73]-[77] on the topic of a well-founded fear of persecution as an apparent analogue to a risk to security in terms of reasoning. However, no formal finding was made by her Honour to that effect and the 2020 ASA was not set aside upon that basis, such that it does not require further consideration. Her Honour also made adverse findings about [57] of the 2020 TSOG concerning the risk the respondent was assessed to present and its mitigation by refusing him a visa, criticising the assessment as being cast in the present tense by reference only to past conduct. While her Honour found that this reasoning infected the 2020 ASA decision, again it was not set aside upon that basis, and again upon that basis does not require further consideration.

123    The primary judge also indicated that had legal unreasonableness been advanced on the basis of a failure to actively and genuinely engage with the current circumstances of the respondent and what he was or was not likely to do if released in the community with his wife and six children, being the substance of the basis for vitiating the 2020 ASA, her Honour may have been inclined to accept that the making of that ASA would also have been legally unreasonable. Once again, the 2020 ASA was not set aside upon that basis, and again does not require further consideration.

The competing arguments on appeal

124    The Government’s essential argument is that the primary judge engaged in impermissible merits review by finding that the 15 September 2020 interview failed to explore the respondent’s current ideology and future risk in the manner which her Honour considered to be optimal, as highlighted by the primary judge setting out at J [434], reproduced above, a list of matters which her Honour thought the respondent should have been asked, but was not. The Government’s argument is advanced by reference to four propositions.

125    First, the Government submits that even if her Honour was correct in finding (at J [419]) that an assessment pursuant to s 37(1) of the ASIO Act must be “substantially forward looking”, information about the respondent’s past was relevant because an assessment of current beliefs and the future necessarily must take into account past beliefs and conduct, quoting Rares J in MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134:

[52]    … In many, if not most, cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:

… what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.

[53]    It is therefore, ordinarily, an integral part of the process of making a determination concerning the chance of something occurring in the future that the decision-maker will arrive at conclusions concerning past events: see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282–283 per Brennan CJ, Toohey, McHugh and Gummow JJ.

126    In support of this argument, the Government notes that Griffiths J in CCU21 v Minister for Home Affairs [2022] FCA 28; 398 ALR 535 at [60] endorsed and quoted the passage from [53] of MYVC v Director-General of Security reproduced above.

127    The very use of the phrase “forward looking” is something of a distraction because it seeks to substitute that label for the words in s 37(1) of the ASIO Act. Those words simply provide that the functions of ASIO include furnishing security assessments to Commonwealth agencies that are relevant to their functions and responsibilities. Such an assessment is defined in s 35(1) to mean a written statement expressing any recommendation, opinion or advice, including any qualification or comment, on the requirements of security in relation to prescribed administrative action, including whether the requirements of security make it necessary or desirable for such action to be taken in respect of a person. The term “security” is defined in s 4, and is cast in wide terms directed to the protection of the Australian population, and its borders and responsibilities from a range of potential threats, relevantly including politically motivated violence. Thus, an assessment may be made about a current or recent event, with no necessary distinction between concepts of forward looking or backward looking.

128    The respondent does not appear to dispute that conducting a security assessment at least can entail having regard to the past, but even if that was not so, this is in any event unassailably correct and must be accepted. But it remains for consideration and determination whether the primary judge’s characterisation of the interview as failing to meet the requirements of a security assessment under s 37(1) is correct. And most importantly, it can hardly be gainsaid that the assessment of a person’s likelihood of engaging in, for example, politically motivated violence or other terrorist activity, is almost always going to involve a consideration of what that person has said and done in the past, and a view being formed as to whether any stance revealed by history has changed.

129    Secondly, the Government submits that the 2020 TSOG included assessments at [2(d)] and [54] that the respondent would be “likely to engage in activities of security concern in the community”, and expressly stated at [61] that regard had been given to “the currency, credibility, nature and authenticity of the relevant information and sources available to ASIO”. Particular attention was drawn to the following paragraphs, with [55] identifying the source of intelligence being redacted classified information, open source information and information from the 15 September 2020 interview (to be considered in the context of the overall summary of the 2020 TSOG at [68] above):

Likely maintains an ideology supportive of PMV [Politically Motivated Violence] and EIJ [Egyptian Islamic Jihad] and AQ [Al Qaeda]

[47]    ASIO assesses it is likely [the respondent] held an ideology supportive of EIJ and PMV. ASIO assesses [the respondent]'s active involvement with operational EIJ cells in Albania and the UK at times where EIJ members were planning and conducting acts of PMV, demonstrated his ongoing support for EIJ's terrorist actions and ideology. ASIO assesses [the respondent] demonstrated a pattern of deliberate and continued association with EIJ members and individuals who held ideologies supportive of EIJ, AQ and PMV. ASIO further assesses [the respondent] associated with EIJ members in Albania, the UK and Iran due to a shared ideology with its members.

[48]    ASIO assesses [the respondent] has withheld information about his ideology and continues to ideologically support EIJ and PMV. This assessment was put to [the respondent] at the fifth SAI [security assessment interview] on 15 September 2020. The respondent denied the assessment and said he had never supported EIJ or AQ or undertaken activities in support of extremist groups. At the fourth and fifth SAIs with ASIO, the respondent described himself as a 'moderate Muslim' who did not agree with the use of violence to further a belief. The respondent also said he did not support any extremist groups, including EIJ and AQ.

[49]    While ASIO notes the respondent's comments, they contradict the classified information which formed the basis of ASIO's assessments. ASIO acknowledges an individual's ideology can change across their lifetime, however the respondent has consistently denied involvement with EIJ, association with EIJ members or support for an extremist ideology. On the basis of a lack of credible information to demonstrate his assessed extremist ideology has moderated over time, ASIO assesses it is likely the respondent remains ideologically supportive of EIJ and AQ.

…

[54]    ASIO assesses the respondent would be likely to engage in activities of security concern in the community. The respondent has remained in immigration detention since his arrival in Australia in 2012, which makes it difficult to assess how he would behave in community. However, ASIO assesses the respondent's activities and behaviour while in Australia in immigration detention are not an accurate representation of his future behaviour if he were in community. ASIO assesses the respondent's detention in an immigration detention facility had a mitigating effect on the respondent's security relevant activities. The respondent did not consciously or willingly cease his involvement in activities of security concern, or terminate his associations with individuals of security concern when he moved from one country to another. Based on his pattern of associating with EIJ members across multiple countries, ASIO assesses it is likely the respondent will re-engage in activities of security concern if he is in the community.

…

[56]    Based on the respondent's assessed previous involvement in operational EIJ cells in Albania and the UK, association with EIJ and AQ members, and ideology supportive of PMV, EIJ and AQ, ASIO assesses the respondent to be directly or indirectly a risk to security, and that the requirements of security make it necessary or desirable for the respondent's TPV [temporary protection visa] (subclass 785) visa to be refused.

[57]    ASIO assesses individuals ideologically supportive of PMV represent a heightened risk of engaging in-or energizing others to engage in-PMV in Australia. This includes individuals such as the respondent, whose likely ideological support for extremist groups represents an acceptance of the global extremist narrative, which could encourage Australian individuals to engage in, or provide support to, extremist activities including PMV. Australian individuals who adhere to an extremist ideology may also seek out the respondent should they become aware of his historical association with EIJ and AQ members. In making this assessment, ASIO has considered the potential harm the respondent poses in the current security environment, given his assessed extremist Isla mist ideology. ASIO assesses the respondent's presence in Australia would contribute to the cumulative risk of Isla mist extremist radicalisation and activity in Australia which supports and promotes PMV, which can be mitigated by excluding such individuals from Australia where possible. Refusal of a visa may continue to have a disruptive effect on the respondent's activities of security concern. The respondent presents an avoidable risk to Australia's security which would be mitigated by refusal of his application for a TPV (subclass 785).

130    The above passages make it clear that the ultimate assessment reflected in the 2020 TSOG was not confined to the 15 September 2020 interview and included classified information that, if unable to be left unredacted in those reasons, most likely could not have been directly put to the respondent. Read as a whole, the 2020 TSOG was not confined to the past and explained in some detail as to why the assessment had been made not just as to the respondent’s past ideology supportive of EIJ and al-Qaeda and support for politically motivated violence, but also for finding that this most likely remained his current stance.

131    Thirdly, the Government relies upon the following that was conveyed to the respondent during the 15 September 2020 interview, with some expansion for context, which took place over about eight hours, via an interpreter and in the presence of his solicitor, namely that:

(a)    he was told that the interview would relate to his background, activities, associations and ideology relating to security and in particular ASIO’s ongoing concerns that he had supported politically motivated violence, so that the Director-General could decide whether or not he remained a risk to Australia’s security, and that politically motivated violence was not just in engaging in terrorist violence himself, with further details then provided, including that after the interview the Director-General would make a decision, expected to take place by the end of October (that is, in about six weeks);

(b)    he was told that the interview was his opportunity to clarify or confirm previous answers and provide any further information to put forward his case;

(c)    after just under 200 pages of questions, he was told that the interview would move on to the last section and talk about his ideology, whether his religious practice or devotion had changed through his life and was given an opportunity to say what he wished, including what would occur if he lived in the community in Australia, to which he responded in general terms;

(d)    further indications were conveyed about ASIO’s concerns with him being a member of EIJ and that he was involved with EIJ cells in Albania and the UK, was supportive of EIJ and al-Qaeda, supportive of the use of politically motivated violence and related concerns, including concerns that he had lied to ASIO in all of his interviews about his support for terrorism, EIJ and al-Qaeda and retained that stance, upon which he was repeatedly invited to comment and all of which he denied;

(e)    he was told that unless ASIO saw some evidence that his beliefs had changed, the risk of harm to Australians would be unacceptable and that ASIO believed, based on classified information, that he had engaged in terrorist activities in Egypt, Albania and England over a 10-year period, but because he had continued to deny everything and had not admitted to anything, ASIO believed that he had lied about his EIJ and al-Qaeda activities;

(f)    he was invited to comment on how ASIO could believe that he wished to live peacefully in Australia when he continued to withhold information, to which his response was that he needed to be provided with the evidence that ASIO had before he could respond and that seeking a response was imposing pressure upon him to admit or confess to something he did not do, likening this to torture, and repeating his denials of association or activities of the kind that had been put to him; and

(g)    he was asked if there was anything else he would like to discuss, and expressly told that ASIO was not taking into consideration the Returnees from Albania trial or Interpol Red Notice.

132    The Government further submits that contrary to the primary judge’s findings at J [414]-[416] about the statements that were made to the respondent during the 15 September 2020 interview, and the general questions about his ideology, there was no evidence that a positive answer to the questions regarding him holding extremist ideology would have led to adverse inferences about him without further consideration, or that an affirmative answer to the question asked about whether he had ever held anti-American views or opinions would, on its own, have led to adverse inferences about him, rather than being a topic for further discussion. The thrust of this submission is that it was not unreasonable of ASIO to seek to ascertain what the respondent’s position was to what ASIO thought had happened in the past in order to ascertain whether there had been a material change in his position, with interviewer comments being made to the effect that people can change.

133    The Government also takes issue with J [441]–[443], reproduced at [120] above, where the primary judge found ASIO’s approach to the respondent’s current ideology denied him procedural fairness because he was “denied not only a reasonable opportunity but any opportunity to advance” matters including how he proposed to live in the community, who he would associate with, and how his family would conduct itself. The Government submission was that contrary to that finding, during the 15 September 2020 interview the respondent was given the opportunity to volunteer any further information he wished, as outlined above, and said in response to whether there were any other questions he wanted to ask that there was nothing in his mind at that time. He said if he had anything, he would communicate it through his lawyer, making it clear that he knew he could furnish more information if he wanted to. The Government submits that it was not apparent why procedural fairness required particular questions to be asked by ASIO, as opposed to the respondent being given an opportunity to provide information he wished to be considered, and was in any event was asked a range of questions about each of these matters of concern.

134    The Government’s fourth submission is that the primary judge (at J [417]) appeared to have placed significant weight on what her Honour described as the “impossible and invidious position” of being asked whether he disavowed past ideologies which ASIO had assessed him to hold, but which he had consistently denied ever holding, but this did not occasion any denial of procedural fairness because it was the necessary consequence of ASIO’s assessment of the respondent’s past activities, the confidential nature of some of the information underlying that assessment, and ASIO’s degree of confidence in the conclusions it had consequently drawn about his honesty during interviews with ASIO. To this may be added that it might be seen to be a requirement of procedural fairness that he was put on notice of the current view that had been formed and given an opportunity to respond, subject to, as an obligation, that this was not already apparent to him: see Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 per Northrop, Miles and French JJ at 591-592.

135    The respondent submits that the primary judge’s conclusion that the 2020 ASA was not substantially forward looking was correct, in the context of defending the adverse view that had been formed by her Honour about the 2020 ASA and the 15 September 2020 interview, but does not engage with any of the Government’s submissions outlined above. Instead, the respondent first submits, in substance advancing arguments for ground 2 of the amended notice of contention, that it was necessary to analyse the 2020 ASA and the procedure adopted for arriving at it in light of the prescribed administrative action to which it was directed, namely the criterion for a protection visa of not having an adverse security assessment. The respondent submits that as that action was impossible to perform because the visa had already been refused two years earlier, one reason that the primary judge was right in the conclusions her Honour reached is that the 2020 ASA purported to recommend action that was not and could not have been in contemplation. As a result, ASIO cannot have considered any potential future effect of the refusal of the visa sought because that had already taken place. The respondent therefore submits that the 2020 ASA could not have been other than backward looking and was a failure to perform the task required by s 37(1) of the ASIO Act.

136    In written reply submissions, the Government addresses the respondent’s primary argument, reasoning that the primary judge did not in terms rely upon it in setting aside the 2020 ASA because it was never pleaded or argued before her Honour. At this point, as a matter of convenience, the merits of ground 2 of the amended notice of contention are addressed, leaving for later in these reasons the question of whether leave should be granted to rely upon it in circumstances in which it was not raised below. In short, the Government submits in substance that fixating upon the purpose expressed in the 2020 ASA of refusing to grant the respondent a protection visa, fails to understand the nature of ASIO’s internal review procedure for adverse security assessments. The Government relies upon s 33(1) of the Acts Interpretation Act 1901 (Cth), which provides for the re-exercise of a power from time to time, in this case to undertake security assessments, and further that the independent reviewer process (in this case, culminating in the Cornall Report on the preceding 2018 ASA) ensures fairness to those subject to security assessments and who are otherwise owed protection obligations under international law. When such a review takes place, the prescribed administrative action remains the same, and can be reconsidered at a later date, giving rise to a new exercise of that action. Because a security assessment is a point in time exercise, it cannot be amended, especially after that action has been taken. The new assessment replaces the old assessment, but only prospectively. Those submissions should be accepted, such that, even if leave was to be granted to rely upon ground 2 of the amended notice of contention, it would be dismissed.

137    The balance of the respondent’s arguments about the 2020 ASA also do not engage with the Government’s case on appeal. Instead they identify 12 other reasons why he submits that the 2020 ASA was invalid by reason of being, it is asserted, not more than a preconceived repetition of opinions formed for the purposes of the 2018 ASA, and characterised as a “patch-up job” designed to amend the 2018 ASA by disclaiming reliance upon the Returnees from Albania trial material, and simply transposing the balance without any new and substantive mental process of assessment, suggesting that the substantive basis for those original views, including that trial material, could not be retrospectively forgotten or ignored. Upon that basis the respondent submits that this Court should infer that the findings in the 2020 ASA were in substance nothing more than those of the 2018 ASA, and conclude that the bases for those findings had not changed and could not be retrospectively amended.

138    The 12 reasons for invalidity of the 2020 ASA advanced by the respondent are:

(1)    the 2020 ASA relies upon no new material;

(2)    the stated purpose of the 2020 ASA, namely to recommend refusal of the respondent’s visa application, was nonsensical because there was no application capable of refusal;

(3)    the supposed impetus for the issue of the 2020 ASA — a direction from the court — did not exist;

(4)    ASIO’s expression of that fictitious impetus displayed prejudgment by falsely imputing to the court a direction that the new assessment be “adverse”;

(5)    the undertaking of the 2020 ASA happened to coincide with the pendency of a judicial proceeding in which the validity of the 2018 ASA was put in issue on the ground that it relied on torture evidence;

(6)    the brief to the Director-General stated that the updated ASA would form part of the challenge before the primary judge, even before the decision had been made to issue the ASA and hence before the respondent had had any opportunity to react to it;

(7)    despite ASIO having had over eight years to assess the respondent while he remained in immigration detention, the 2020 brief to the Director-General was given priority and a deadline of only three days from the date on which it was cleared by ASIO;

(8)    the 2018 ASA had recommended that a further security assessment be requested from ASIO should the respondent lodge a further visa application, which had not occurred;

(9)    as the primary judge concluded at J [384] ASIO officers conducting the September 2020 interview had prejudged the issue, merely going through the motions in an interview consisting in a large measure of “puttage” (that is, putting propositions to the respondent);

(10)    of all the information upon which ASIO did not rely for the 2020 ASA, it went out of its way to identify only one category, being the Returnees from Albania trial material.

(11)    despite the 2020 ASA occurring later in time, and ASIO having more time to gather evidence, the 2020 TSOG is 20 pages shorter than the 2018 TSOG with less analysis and reasoning;

(12)    the 2020 TSOG confirmed that the same classified and open source information had been relied upon in the 2014 and 2018 ASAs and their statements of grounds.

139    The Government’s response to points (1) and (12) above is that prejudgment cannot be inferred from the fact that the same classified and open source information was relied upon (apart from the Returnees from Albania trial material) for both the 2018 ASA and the 2020 ASA, with there being no objection to ASIO’s reliance on any other information. It may be observed that this most notably includes the 15 September 2020 interview with the respondent, despite issue being taken with the way it was conducted. The Government submits it would be perverse for ASIO not to rely on information previously collected together with information obtained from the interview. Those submissions should be accepted. No sound reason is given for a new security assessment not to continue to rely upon such information as it considers to be relevant, noting also that it is impossible to know what updating, elaboration or additional reasoning may have been contained within the classified information redacted from the 2020 TSOG.

140    The Government’s response to points (2) and (8) above is that this is the substance of ground 2 of the amended notice of contention, being advanced for the first time on appeal. In addition to the reasoning set out above and accepted, the Government submits that had it been advanced at trial, further evidence could have addressed why the 2020 ASA was expressed to be for this purpose. As the argument advanced has been accepted without resort to any additional evidence, it may be that this is a moot point, but there is little doubt that the Government was deprived of an opportunity to put a more complete case, and this Court was deprived of the consideration that could have been given to it by the primary judge. In any event, it is not apparent why any infelicity of expression, or even error, in the 2020 ASA on its face as to its purpose in relation to a prescribed administration action leads to a proper basis for a finding of invalidity.

141    The Government’s response to points (3) to (7) above is that this fixes upon a comment in the 2020 Briefing Note that ASIO is required to furnish the updated ASA by 29 October 2020, as “directed by the Federal Court”, characterising this as fictitious. The Government submits that had this been raised at trial, it could have been addressed by evidence as to why this comment was made. By reference to two chains of emails (which included the respondent’s solicitor) and a transcript of a case management hearing before the primary judge on 11 August 2020 annexed to the Government’s reply submissions, and the content of those submissions on this topic, it is clear that this was at worst no more than a minor inaccuracy or infelicity of expression, falling well short of anything that could possibly give the 2020 ASA the character ascribed to it by the respondent, let alone form any basis for impugning it.

142    At the 11 August 2020 case management hearing, there was discussion about a review currently being conducted of the respondent’s 2018 ASA in accordance with ASIO’s internal review policy. Consent orders containing a schedule of reporting to the Court on the progress of that review were subsequently requested by a judicial registrar (in fact the Court’s most senior judicial registrar dealing with migration matters) to whom the matter had been referred for case management by the primary judge, and agreed to by the respondent’s representatives. Although no consent orders ended up being made, the Government’s lawyers provided updates consistent with the reporting schedule that had been agreed upon, which provided for a final update to be given by 29 October 2020 ahead of a further case management hearing that was scheduled to take place before the primary judge in the week commencing 16 November 2020. One of the orders that the respondent’s solicitor consented to, although never in fact made, in an email sent on 2 September 2020 was that:

By 29 October 2020, the Third Respondent [the Director-General] is to inform the Registrar and the Applicant whether the assessment has been considered by the decision maker and an estimated time for the assessment to be finalised and provided to the Applicant.

143    This is what the comment in the 2020 Briefing Note was referring to, and reporting upon. The progress with the further security assessment had been sought by the Court via a senior judicial registrar. While “directed by the Federal Court” entails a minor degree of overstatement given that the order was never made, and what was effectively directed was a reporting schedule on the making of the 2020 ASA, rather than a direction to make the 2020 ASA, the practical effect was the same, namely a deadline to report and thereby an effective deadline to make the assessment. It follows that all of these points are without substance.

144    The Government’s response to point (9) above is that this is addressed in relation to ground 2. It is also addressed in the ultimate conclusion reached below in relation to ground 2. In short, the primary judge’s characterisation of the 15 September 2020 interview is not ultimately accepted.

145    The Government’s response to point (10) above is that prejudgment cannot be inferred from the material from the Returnees from Albania Trial not being considered in line with the recommendation made in the Cornall Report, while not expressly identifying other material that had not been considered. That submission is plainly correct and should be accepted. ASIO adopted this course because Mr Cornall, as the Independent Reviewer of Adverse Security Assessments, had recommended that, when the 2018 ASA was reviewed, ASIO exclude from consideration the evidence from the Returnees from Albania trial.

146    The Government’s response to point (11) above is that prejudgment cannot be inferred from the fact that the 2020 TSOG is more concise than the 2018 TSOG, noting also that it cannot be known if the classified reasoning in the redacted footnotes is any more concise than in the 2018 ASA, and that conciseness of expression and analysis does not demonstrate prejudgment. That submission is also plainly correct and should be accepted.

147    Both the Government’s submissions in chief, and those in reply, should be accepted. The latter disposes of the only substantive argument advanced by the respondent, and the former amply demonstrates that the primary judge erred in her Honour’s conclusion that there was any denial of procedural fairness by reason of a failure to consider the respondent’s current circumstances or give him an opportunity to furnish information about them. It is not to the point that different questions could have been asked that might have elicited more favourable information from the respondent. There was no obligation by way of procedural fairness or otherwise to ask any particular questions, provided that the respondent was made aware of the relevant concerns, which clearly took place, and was given a reasonable opportunity to address them, which was clearly afforded to him. It was erroneous to conclude that there was a denial of procedural fairness in not asking particular questions, or questions on particular topics, except if he was in some way denied a chance to respond to something adverse that could not have been anticipated of the kind identified in Alphaone at 591-592, instead of leaving it to the respondent to proffer such information as he wished in light of ASIO’s express concerns, for which he was given ample notice and opportunity.

Conclusion

148    Ground 3 has been made out. The primary judge did not identify or rely upon any proper or sufficient basis for finding a denial of procedural fairness as a basis for overturning the 2020 ASA, such that it must be restored.

Appeal Ground 2 – the conduct of the 15 September 2020 interview by ASIO

149    The outcome that is sought to be achieved by the Government in support of this ground of appeal is to correct what is characterised as being the primary judge’s erroneous conclusions as to the conduct of the 15 September 2020 interview insofar as her Honour made damaging findings, at J [384]-[385], that the ASIO interviewers had a predetermined view when they commenced it, and demonstrated a determination to adhere to and see implemented the consequences that ASIO saw as flowing from its view of the respondent’s activities some 20 to 30 years ago. This is, to some extent, a manifestation of the view her Honour formed that the interview, and the 2020 ASA, had not been forward looking and instead had been only backward looking, to which the above observations about that taxonomy apply.

150    The upholding of ground 3 means that the primary judge’s assessment of both the interview and the 2020 ASA being only backward looking and not having regard to current views and circumstances, to the extent that was able to be ascertained, has been rejected by this Court insofar as that constitutes any finding that there was a departure from the requirements of s 37(1) of the ASIO Act and the associated defined concepts of security and security assessment. That conclusion necessarily entails a finding that there was nothing wrong in principle, in the course of ASIO conducting a security assessment, forming a view about what the future is likely to hold, or more precisely, is at risk of holding, by reference to an assessment of what has happened in the past, including past conduct and what it revealed about past and current attitudes and ideologies, and the chances of the same continuing or manifesting in the future.

151    Generally speaking, it is difficult to see how a prediction as to any future event can be made without forming a view as to what has occurred in the past, or is happening now, and whether there has been any material change such that it will not happen in the future, or is unlikely or less likely to do so. However, an overall conclusion of that kind is not an occasion for an appeal court to purport to overturn the granular detail of reasons. Appeals are from orders, not reasons, although consideration of reasons is often the means by which error in orders made is identified: Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280 at 285-286 per Toohey, Morling and Wilcox JJ; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 at [12] and the cases there cited. This ground of appeal cannot succeed because it seeks to correct only reasons. That said, the reasons for upholding ground 3 mean that the criticisms of the interviewers made by the primary judge have not been accepted by this Court.

THE AMENDED NOTICE OF CONTENTION

Notice of contention ground 1 – the primary judge’s rejection of the 2020 ASA being based on material from the Egyptian trial

152    The primary judge had found at J [318] that there was no basis for declining to treat what was said by ASIO in the 2020 TSOG as reflective of what had in fact occurred, namely that ASIO had accepted the recommendation in the Cornall Report not to place any reliance on material from the Returnees from Albania trial. The respondent contends that her Honour erred in reaching that conclusion.