FEDERAL COURT OF AUSTRALIA

Sagar v O’Sullivan [2011] FCA 182

THE COURT ORDERS THAT:

1.     The applications be dismissed.

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

REASONS FOR JUDGMENT

1    Mr Sagar and Mr Faisal are refugees from Iraq. They seek judicial review of decisions of the Director-General of Security to make what are assumed to be adverse security assessments concerning them and to provide those assessments to the Department of Immigration. They are aggrieved by these decisions because they led to further decisions, made by the Department of Immigration, to refuse them visas to enter Australia. They seek to have the Director-General’s decisions quashed and a declaration issued that the decisions were not made in accordance with law.

2    The applications have a number of unusual features. It has become common under modern administrative law for applicants for judicial review to have had access to the reasons for the decision about which they are aggrieved before commencing proceedings. If the decision-maker’s reasons disclose what the aggrieved party contends are reviewable errors, the reasons may be relied on as evidence that reviewable error has been made: see Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 94 ALR 177.

3    In the present cases the Director-General of Security did not provide the applicants with copies of the security assessments or his reasons for making them and communicating them to the Department of Immigration.

4    The applicants sought to obtain access to the assessments and the reasons for them being made after the proceeding had been commenced. They sought orders for discovery of relevant documents. Sundberg J granted the orders but subsequently refused to make orders for production of the discovered documents: see Parkin v O’Sullivan (2009) 260 ALR 503. His Honour called for the documents and read them. He had regard, in making his decision, to a confidential affidavit sworn by the Director-General which explained his reasons for contending that production would prejudice national security and would be contrary to the public interest. His Honour accepted this evidence.

5    The result is that the applicants are unaware of the reasons for the making of the decisions which they wish to challenge. The relevant documents were not in evidence and were not otherwise available to the Court.

6    Despite labouring under this disability they seek to pursue their applications on five grounds. These grounds are:

    No facts existed which would justify the adverse assessment (“the first ground”);

    The Director-General took account of irrelevant matters which are identified as “supposed facts which were not facts” (“the second ground”);

    The Director-General failed to take account of relevant matters, namely, “the true facts of and concerning each applicant” (“the third ground”);

    The Director-General failed to afford the applicants natural justice (“the fourth ground”); and

    The Director-General failed to provide the applicants with an opportunity to answer, explain or contradict any fact or matter he intended to take into account in preparing the adverse assessments (“the fifth ground”).

THE EVIDENCE

7    Each of the applicants gave evidence and was cross-examined.

Mr Sagar

8    Mr Sagar was born in Iraq in 1976. He and members of his family are Shi’a Muslims. His father was actively involved with an organisation associated with this sect. In 1994 his father became an assistant to a Grand Ayatollah.

9    In the early 1990’s the army and the government “targeted” Shi’a religious organisations including the one with which his father was associated. Because of what he described as “intimidation and repression” Mr Sagar’s family left Iraq in May 1997 and fled to southern Iran. He spent four years there before leaving for Australia. He travelled via Malaysia and Indonesia. He paid people smugglers to take him by boat from Indonesia to Australia. The boat was intercepted by the Royal Australian Navy and he was taken to Christmas Island. He was then transferred to Manus Island in Papua New Guinea where he applied “for refugee status” (I assume that the application was for a protection visa). The application was denied. An appeal was rejected.

10    In September 2002 he was moved to Nauru. In September 2004 his application for “refugee status” was reviewed. In the course of this process he undertook four interviews with officers from ASIO. Two interviews took place in November 2004. The first lasted about two hours and the second three and a half hours. The next interview occurred in January 2005. This took about an hour. In May 2005 Mr Sagar was again interviewed, this time for one to one and a half hours.

11    Before each interview commenced the officers identified themselves as ASIO officers and explained to Mr Sagar the purpose of the interview.

12    Mr Sagar said that the “biggest issue” which was raised repeatedly during these interviews related to his “father’s profession.” In particular, the officers wanted details of his father’s work for and relationship with the Grand Ayatollah. Reference was made to an occasion when the Grand Ayatollah and his three sons came to the Sagar family home. One of the sons was Muqtada al-Sadr who was himself later to become a leader of Shi’a Muslims in Iraq. That meeting was very brief, lasting “no longer than 30 seconds.” The ASIO officers had also asked questions about Mr Sagar’s dealings with other people in Iraq.

13    Because of certain unexplained events which preceded the January 2005 interview, Mr Sagar refused to answer questions at that interview.

14    Following these interviews Mr Sagar received a letter from the Department of Immigration which advised that he could not be granted a visa to enter Australia because an adverse security assessment had been made concerning him.

15    He remained on Nauru until early in 2007 when he was granted permanent residency in Sweden. After his arrival in Sweden he was interviewed by that country’s security authorities and granted a security clearance.

Mr Faisal

16    Mr Faisal was born in Iraq on 27 November 1979. His family moved to Syria in 2003.

17    Mr Faisal studied law in Iraq in the late 1990s. The university which he attended and which was State owned encouraged him to become a member of the ruling Al Ba’ath Party. He declined to join. Subsequently, the government accused him of being involved with the Wahab Islamic group. He said that he was not and never had been involved with this group. He said the government persecuted him: the police watched him and monitored his movements. He fled to Jordan and then to Thailand and Indonesia. While in Indonesia he paid a people smuggler to take him by boat to Australia. He set out in mid-2001. The boat was intercepted by the Royal Australian Navy and he was taken to Nauru. He there made application for asylum. The application was refused and he was told that more information was required.

18    In 2002 he resubmitted his application. That application was also rejected.

19    He said that, in 2003, a representative of the Australian government told him that his case would be reconsidered. An application by him “for protection” was accepted by the Department of Immigration. He was interviewed by Departmental officers who sought further information from him. Later officers of ASIO also requested to speak to him. He agreed to being interviewed. He said that the interview lasted eight hours. He was asked about his background and family history.

20    About eight months after the interview an officer from the Department of Immigration told Mr Faisal that he had not been co-operating with ASIO and that this was the reason for the delay in transferring him to Australia.

21    In 2004 ASIO requested that another interview should take place. Mr Faisal said that he did not want to participate in such an interview. Despite this, the interview took place anyway. This interview lasted about six and a half hours. He was asked questions about his personal history and “about events in Israel, September 11 and Osama Bin Laden.”

22    A month after this interview an officer of the Department of Immigration advised Mr Faisal that he was again failing to co-operate with ASIO.

23    In late 2004 ASIO requested a further interview but Mr Faisal refused to talk to the officers. Several later requests were also rejected by him.

24    Sometime in 2005 or 2006 Mr Faisal was brought to Australia and admitted to the psychiatric ward at Brisbane Hospital. After a few days he was transferred to another hospital where he stayed for six months. Whilst there he initially refused requests for further interviews with ASIO officers but, ultimately, agreed. Two officers (who were not the officers who had interviewed him on Nauru) conducted the interview. It lasted six hours. Again he was questioned about his personal history. He said that the questions were “the same questions that I had been asked on all the previous occasions.” About a month later he received a notification from ASIO that he had been accepted in Australia as a refugee. He has lived here since.

Both Applicants

25    The witness statements of both Mr Sagar and Mr Faisal, which were adopted by them at trial, concluded with these two paragraphs:

“I have never in my life been involved in:

(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.

I have never in my life done anything which could be understood as any of those things.”

THE LEGISLATION

26    The Director-General of Security is appointed pursuant to s 7 of the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”). The Australian Security Intelligence Organisation (“ASIO”) is continued in existence pursuant to s 6 of the ASIO Act and is, by s 8(1), placed under the control of the Director-General.

27    One of the functions of ASIO is to advise Ministers and authorities of the Commonwealth (which include departments such as the Department of Immigration – see s 4) “in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities”: see s 17(1)(c). This function extends to the provision of “security assessments” to departments: see s 37(1). A “security assessment” is defined, in s 35 of the ASIO Act to mean:

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

28    Section 35 also defines an “adverse security assessment” to mean:

“… 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.”

29    One of the meanings accorded to the phrase “prescribed administrative action” by s 35 is “the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act …”

30    Section 37(2) of the ASIO Act provides that any adverse 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 [ASIO] 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.”

This sub-section does not, however, apply to persons such as the applicants who were not, at relevant times, Australian citizens: see s 36.

31    At relevant times the term “security” was defined in s 4 of the ASIO Act to mean:

“(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

(b)    …”

32    Many of the terms used in the definition of “security” are, in turn, defined elsewhere in s 4 of the ASIO Act:

“acts of foreign interference means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:

(a)    are clandestine or deceptive and:

(i)    are carried on for intelligence purposes;

(ii)    are carried on for the purpose of affecting political or governmental processes; or

(iii)    are otherwise detrimental to the interests of Australia; or

(b)    involve a threat to any person.

attacks on Australia’s defence system means activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.

politically motivated violence means:

(a)    acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or

(b)    acts that:

(i)    involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and

(ii)    are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or

(ba)    acts that are terrorism offences; or

(c)    acts that are offences punishable under the Crimes (Foreign Incursions and Recruitment) Act 1978, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or

(d)    acts that:

(i)    are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or

(ii)    threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General.

promotion of communal violence means activities that are directed to promoting violence between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.”

33    These and other powers conferred on ASIO have the potential to prejudice the interests of individuals and groups within the community. The Act contains various safeguards including a requirement that the Director-General “take all reasonable steps” to ensure that the work of ASIO is confined within its statutory charter (s 20), a requirement that the Director-General keep the Leader of the Opposition informed of matters relating to security (s 21) and a requirement of consultation with the Minister about matters to be taken into account when ASIO makes an adverse security assessment (s 37(4)).

THE APPLICANTS’ CONTENTIONS

34    The applicants’ first ground contends, in substance, that there was no factual foundation for the Director-General’s decisions that adverse security assessments should be made relating to them. They relied on their assertions, which were not challenged when they were cross-examined, that they had not “been involved in” activities which fell within the definition of “security” in the ASIO Act and that they had never done anything “which could be understood to be any of these things”.

35    The applicants submitted that the “unexplained failure” of the Director-General to call evidence to contradict these denials entitled the Court to infer that no evidence was available to support the adverse assessments.

36    The applicants contended that, in the absence of facts supporting the adverse assessments, it should be inferred that the Director-General must have had regard to “ideas, words or actions” which he attributed to the applicants that were not relevant to his decisions and that he had failed to have regard to the exculpatory assertions made by the applicants. It was for these reasons that the second and third grounds were pressed.

37    The fourth and fifth grounds can, conveniently, be considered together. The fifth ground is, in effect, a particular of the fourth ground. The applicants contended that, in making his decisions, the Director-General was bound to accord procedural fairness to the applicants. Such protection had been denied to the applicants because they had not been advised of the case that was made against them and given the opportunity of responding. In particular, their attention was not directed to critical issues on which the Director-General’s decisions were likely to turn prior to those decisions being made. They submitted that the Director-General was obliged to disclose to them the facts and the “requirements of national security” which made it necessary for him to issue the adverse assessments.

38    Specifically they submitted that:

    If the ASIO officers who interviewed them considered that they had not provided honest answers to questions, they were entitled to be told the reasons why their responses were not accepted;

    If the adverse assessments were based on public conduct attributed to the applicants, they were entitled to be told what that conduct was;

    They were entitled to be informed about any apprehended conduct that they might engage in that was relied on in making the adverse assessments;

    They were entitled to be told, if it was the fact, that the UNHCR representative on Nauru had supplied adverse information in connection with the preparation of the adverse assessments; and

    They were entitled to know whether the risk they were thought to pose to the Australian community was direct or indirect and be given some idea of the nature of that risk.

THE RESPONDENT’S CONTENTIONS

39    The Director-General submitted that the applicants’ first three grounds should be rejected for a number of reasons. He submitted that they must fail in the absence of any evidence as to the basis upon which the adverse security assessments were made. He further submitted that these grounds constituted an invitation to the Court to engage in a form of merits review “to which its processes are ill suited, and to address questions of a kind not properly raised in judicial proceedings.”

40    The Director-General accepted that decisions of the kind under consideration attracted the requirements of procedural fairness. He submitted, however, that those requirements had been satisfied, to the extent that it was possible to do so, consistently with the demands of national security.

CONSIDERATION

General Observations

41    The onus of establishing their cases falls on the applicants: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; Re IBM Global Services Australia Ltd [2005] FCAFC 66 at [27]. It was, no doubt, with this in mind that they sought discovery of the documents which contained the adverse security assessments and the reasons that those assessments had been made. Their attempt to inspect these documents failed because a judge of this Court was persuaded that the documents fell within a class which attracted public interest immunity. No appeal was brought from that decision.

42    In these circumstances, the applicants were forced to rely on their personal evidence that they had not done anything which would warrant the making of an adverse security assessment about them and on the failure of the Director-General to gainsay this evidence by himself leading evidence as to the reasons why he had made the adverse security assessments. The Director-General sought to meet these contentions by submitting that he could not place such evidence before the Court without infringing the public interest immunity which had been found by the Court to apply to such information.

43    The issues raised by the Director-General’s successful public interest immunity claim are relevant to all of the grounds which are relied on by the applicants in their amended statement of claim. They can, conveniently, be dealt with before turning to the specific grounds.

44    The documents which Sundberg J ordered the Director-General to discover were:

    The adverse security assessments relating to each applicant;

    Any record of telephone communications between ASIO and the applicants

    The Director-General’s classified determinations;

    Any record of the Director-General’s recommendations made for the purposes of s 116 of the Migration Act 1958 (Cth);

    Any other document relied on by the Director-General in making the adverse security assessments in respect of each applicant; and

    Any other document on which the Director-General intended to rely at trial.

See Parkin at 504.

45    The Director-General responded to this order by discovering four documents of present relevance. These were ASIO briefing notes to him in respect of each applicant dated 30 June 2005 and ASIO internal minutes relating to each of the applicants which bore the same date. When the applicants sought production of each of these documents the class claims on the ground of public interest immunity were made.

46    Sundberg J determined, having examined the discovered documents, that the results of complex security assessments were recorded in a final appreciation which took the form of an ASIO minute. The two internal minutes dated 30 June 2005 contained such final appreciations in respect of the two applicants. His Honour further found that, when the investigative branch of ASIO assesses an individual to be a threat to Australia’s national security, the Director-General is so advised, usually by means of a Director-General’s briefing note (“DGBN”). DGBNs also contained information about why an adverse assessment had been made. The two DGBNs dated 30 June 2005 contained such advice: see Parkin at 512-3. His Honour said (at 511) that the “final appreciations and related briefing notes set out the reasoning process which underlies the making of security assessments, which are the key mechanism by which ASIO advises government that particular individuals pose a threat to national security.”

47    Sundberg J was satisfied, on the evidence placed before him by the Director-General that, “[i]f documents falling within [these classes] were required to be produced, ASIO would be giving information about its knowledge, assessments and methodology to the very people to whom it is most important that national security information is not disclosed”: ibid. Part of that evidence was to the following effect:

“Accordingly, it is vital that I be given complete and accurate information upon which to base my decision whether an adverse security assessment should be issued. If any information were to be withheld from the Final Appreciation as a result of a concern that, if it was included, that information might thereafter be disclosed, that would impair asio’s capacity to give accurate advice to the government and my capacity to make appropriate decisions in relation to whether adverse security assessments should be issued.”

See Parkin at 507.

48    The Director-General also deposed that Final Appreciation documents and related DGBNs “invariably contain specific detail as to the reasons why persons are assessed as a risk to Australia’s national security (if they are so assessed), and specific detail of the intelligence sources and methods used by ASIO in obtaining relevant information and conducting its assessment functions.” (Emphasis added): see Parkin at 507-8.

49    Senior counsel for the applicants submitted that Sundberg J’s upholding of a class claim for public interest immunity in respect of the four documents, and his decision to deny the applicants access to them, were not “the same as saying” that there were not any facts about the reasons for the decisions under review which could be provided to the applicants without prejudice to the public interest. He further submitted, as I understood it, that it might also have been possible for material in the documents to have been shown to the Court on a confidential basis so that the Court could know the basis on which the Director-General acted and take his reasons into account when determining whether or not any of the grounds of review had been made out.

50    The applicants do not know whether, in making his decisions, the Director-General had regard only to material which appeared in the minutes and DGBNs with which he was provided, much less what the material was. I am, however, prepared to infer that the only material which led the Director-General to make the relevant decisions was to be found in the minutes and DGBNs. The Director-General did not conduct the interviews or gather other information relating to the applicants. It is highly unlikely that he had any independent knowledge of the activities of either man. He could, therefore, only act on the information placed before him. Furthermore, he deposed, in the interlocutory proceeding before Sundberg J, that such documents invariably contain specific detail as to the reasons why persons are assessed as a risk to Australia’s national security. That, when taken together with his expressed concern that he be given complete and accurate information upon which to base his decisions reinforces my impression that the minutes and DGBNs are the only source of information on which the Director-General acts (and, in these cases, acted) when making security assessments. In this context I would note in passing that the Director-General could have sworn an affidavit that confirmed that he had regard exclusively to material appearing in the minutes and DGBMs without trespassing on the public interest immunity which attached to those documents.

51    If it be the case (as I consider it is) that all of the facts on which the Director-General relied in making his decisions are to be found in the four documents, the next issue which arises is whether any of that material could be disclosed in open Court or on a confidential basis to the Court consistently with Sundberg J’s ruling that the documents in which it appears are subject to public interest immunity.

52    The consequences of a successful claim for public interest immunity have been referred to in a number of cases in recent years. In Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532 at 556 Gummow, Hayne, Heydon and Kiefel JJ quoted with approval the dictum of Mason J in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61, that:

“Intelligence is relevant to security if it can reasonably be considered to have a real connection with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim of Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument – that there is no real connection between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.” (Emphasis added).

53    In Gypsy Jokers Gleeson CJ (at 550-551) said “that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings.” (Emphasis added). In Parkin, Sundberg J understood his Honour to mean that a “court would not be able to have regard to some, or perhaps any, of the information on which a public official’s belief was based” (at 511). In State of Victoria v Seal Rocks Victoria (Aust) Pty Ltd (2001) 3 VR 1 at 6 Ormiston JA (with whom Phillips and Buchanan JJA agreed) said that documents which are subject to public interest immunity are “immune from public disclosure generally or even disclosure for the limited purposes of litigation or arbitration.”

54    As these authorities make clear the interests protected by public interest immunity, once a Court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings. Any evidence contained in such documents cannot be relied on by a court in resolving any cases which come before it. It is also implicit that such material cannot be disclosed to any judge who is called on to determine such cases: apart from any other considerations it would be pointless to place such material before a judge, even on a confidential basis, because he or she could not have regard to it in determining the outcome of the case.

55    In supporting their argument that the Director-General should have placed relevant evidence before the Court, the applicants relied on the decision of Madgwick J in Leghaei v Director-General of Security [2005] FCA 1576 and, on appeal, (2007) 241 ALR 141. In that case the reasons for the adverse security assessment had been provided to the trial judge and considered by him. So too was evidence from the Director-General which persuaded the trial judge that both the assessment, and the Director-General’s reasons for submitting that it ought not to be exposed, should be treated as and remain confidential. Counsel for the applicant and his instructing solicitor were given access to this material upon giving undertakings to the Court as to the maintenance of confidentiality and undergoing security clearances: see [2005] FCA 1576 at [84]-[88], [100]-[101].

56    The Full Court dismissed an appeal from the trial judge’s decision. In doing so it made no criticism of the approach taken by him.

57    The procedural course followed in Leghaei differed from that which was followed by the parties and the Court in the present proceeding. No order for discovery was sought or made. Rather than making a class claim for public interest immunity, the Director-General determined to place evidence, including the reasons for the adverse assessment, before the Court and then to put on material which satisfied the Court that the assessment should remain confidential. As a result it was necessary for the judgments at first instance and on appeal to be edited so as to remove any reference to confidential material.

58    In the present proceeding the Director-General chose to resist production on public interest immunity grounds. He succeeded in that claim. Once he had done so it was no longer open to him to place the material which was found to attract public interest immunity before the applicants, their legal advisors or the Court.

The First Ground

59    The first ground relied on by the applicants was that no facts existed which could justify the adverse security assessments made in relation to them. They contended that their denials of having been involved in anything which would compromise Australia’s security should be accepted in the absence of any challenge to those assertions and any contradictory evidence from the Director-General. They went so far as to submit that the Director-General’s silence should cause the Court to infer that no evidence to support the adverse findings existed.

60    It is well established that a statutory decision-maker may make a jurisdictional error by failing to base a decision on probative evidence: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047 (per Lord Wilberforce); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (per Mason CJ) and 367 (per Deane J). Furthermore, as Lord Denning once famously observed, if a decision-maker could, but does not, give reasons, it is open to the Court to infer that he had “no good reason”: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1007; see also R v Secretary of State for Trade and Industry; Ex parte Lonrho plc [1989] 1 WLR 525 at 540 (per Lord Keith).

61    It is for an applicant to establish, either by direct evidence or by necessary inference, that the impugned decision was not supported by probative evidence.

62    The “no evidence” ground of judicial review will only be made out if the error emerges from a comparison of the reasoning process and the true factual position or, if the decision-maker is able to provide reasons but declines to do so, a negative inference is drawn.

63    In Bond, Deane J said (at 367) that:

“Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrally, irrationally or unreasonably … When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which the decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision”. (Emphasis added).

64    In the present case the Director-General’s reasons for making the adverse assessments are not known. For reasons which I have given, it was not open to him to expose his reasons to scrutiny. In these circumstances neither the general denials proffered by the applicants nor the Director-General’s failure to disclose his reasons permit the inference to be drawn that no facts existed which supported the judgment to which the Director-General came in each case.

65    This ground must fail.

The Second and Third Grounds

66    These grounds are related to the first. They allege that, because of the Director-General’s failure to publish his reasons for his decisions, it should be inferred that he had taken into account irrelevant considerations and failed to have regard to relevant ones.

67    These grounds cannot succeed. The applicants bear the onus of establishing that the Director-General erred in the manner alleged. In the absence of published reasons this required them to establish a basis for drawing the necessary inferences. The Director-General was under no obligation to demonstrate, by way of evidence or inference, that he had not had regard to irrelevant considerations and had confined himself to relevant ones when making his assessments: see Minister for Immigration & Citizenship v SZGUR (2011) 273 ALR 233 at 241 (per Gummow J with whom Heydon and Crennan JJ agreed).

68    Moreover, it is clearly established that the relevant considerations ground cannot be made out unless an applicant identifies a consideration which the decision-maker was bound to take into account but does not and the irrelevant considerations ground will only be made good if the subject matter, scope and purpose of the legislation implies some limitation on the factors to which the decision-maker may have regard. Even then neither ground will be made out unless it be the case that the consideration which was or was not taken into account was material for the purposes of the particular decision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (per Mason J).

69    Without knowing what reasons led the Director-General to form his adverse judgments, the applicants cannot point to direct evidence of error. Nor, for reasons which have already been given, can error be inferred by reason of the failure of the Director-General to provide his reasons to the applicants or to the Court.

The Fourth and Fifth Grounds

70    The applicants submitted that the Director-General denied them procedural fairness because the ASIO officers who conducted the interviews failed to direct their attention to the specific grounds on which the decisions were likely to turn.

71    As has already been noted, there was no evidence before the Court to support either the general or specific allegations which are set out above at [37] and [38]. Even if it be accepted (as it must) that the applicants were and are unaware of the reasons which led to the adverse assessments, they were and are aware of the matters which were raised with them in the course of the long interviews in which they participated. Whilst their evidence does refer to some general issues about which they were questioned, their evidence fails to descend to any particularity and does not provide a comprehensive account of the matters discussed during interview. They do not, for example, deny that they were asked about their public conduct or their associations with persons who may have been of interest to ASIO. Mr Sagar conceded in cross-examination that he had been asked about his association with a number of people in Iraq but only named one of them.

72    Normally a decision-maker must provide this measure of procedural protection to persons who may be prejudicially affected by the decision in question: see, for example, Kioa v West (1985) 159 CLR 550 at 587 (per Mason J) and 629 (per Brennan J); Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223. It may, however, not be possible, consistently with the demands of national security, for these requirements to be satisfied in cases such as the present. As the Full Court observed in Leghaei (at 146), “it is well recognised that reasons of national security may make it impossible to disclose the grounds on which the executive propose to act.” Their Honours continued (at 146-7) that:

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

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

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

The applicant in Leghaei had been interviewed at length by ASIO officers. He acknowledged that he had been questioned on a variety of matters but said that no specific allegations had been put to him. Nor had he been provided with an outline of the case against him before the adverse security assessment had been made. A request by him to be provided with “specific issues” to which he might respond before the assessment was made had not been acceded to by the Director-General. These failures, he contended, had led to a denial of procedural fairness. The Full Court held that, notwithstanding these failures, he had been “afforded such a degree of procedural fairness as was consistent with the protection of national security” even if this involved acceptance of the proposition that, where national security interests are involved, the demands of procedural fairness are diluted to “nothingness”.

73    In the present cases it cannot be concluded, on the evidence, that either of the applicants was denied the protection of any procedural safeguards before the adverse assessments were made. Even if this had occurred, however, the Full Court’s decision supports the Director-General’s contention that, in some rare cases, such as the present, no jurisdictional error is made if sensitive security information is withheld from an applicant and the applicant is not, as a result, alerted to prejudicial material on which the decision has been based.

74    These grounds also fail.

CONCLUSIONS

75    None of the grounds of review has been made out. The applications must, therefore, be dismissed.

76    The applicants were, understandably, affronted at receiving adverse security assessments and frustrated at not knowing why such assessments had been made. They objected to the failure of the Director-General to place evidence before the Court which made it difficult, if not impossible, for them to make out the grounds of review on which they relied and prevented the Court from undertaking any meaningful judicial review of his decisions. This, it was contended, restricted the ability of the Court to control the exercise of executive power and thereby undermined the rule of law.

77    These are matters of fundamental importance to the administration of justice in this country. My reasons would not be complete were these issues to pass unnoticed.

78    The concept of the rule of law is not susceptible of strict definition. Its constituent elements, as with the concept of democracy, vary from country to country. It is not underpinned by any absolute principles which can lay claim to universal validity: see W Friedmann, Legal Theory (5th ed.) at 422.

79    Rather, the rule of law is made up of a series of principles or precepts which are of variable content and some of which need not be present in order for it to be said that the rule of law operates in a particular country. Among the principles which have long been accepted in Australia are the separation of judicial and executive power and the availability of judicial and administrative checks on the exercise of executive power.

80    Elsewhere the rule of law has been said to be based on a series of norms which guarantee the existence and independence of legal institutions and certain liberties of the citizen: see, for example, F Neumann, The Rule of Law at 9.

81    A common feature of all of these analyses is that none of the precepts, principles or norms which are relied on to advance and ensure the rule of law are said to be inviolable. Professor Rawls accepts that it may be necessary, in order to avoid social evils, for precepts to be compromised but he maintains that this should only occur to the minimum extent necessary to achieve the objective: see Rawls, A Theory of Justice, at 235-243. Professor Freidmann accepts that individual rights which are protected by the rule of law must be balanced against the individual’s responsibility towards society as a whole.

82    It does not, therefore, necessarily follow that the self-imposed restraints which courts have adopted when undertaking the judicial review of security decisions, are somehow incompatible with the rule of law.

83    That is not to diminish the importance of the judicial review function in maintaining the rule of law. As Brennan J said in Woodward (at 70), judicial review “is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly …” The importance that this Court and other courts in the common law world attach to their judicial review functions was essayed by Spender J in his reasons for decision in Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40 at 44-53. It is not consistent with the rule of law for any government agency, including security organisations, to be immune from judicial review. This truism has been articulated in many judicial pronouncements, including cases where disclosure of evidence was resisted on the grounds that such disclosure would prejudice national security: see, for example, Woodward at 55 (per Mason J), 70 (per Brennan J) and, implicitly, by the Full Court of this Court in Leghaei.

84    Whilst asserting the right of the judicial arm to review decisions made by security agencies, the courts have acknowledged the need for a cautious approach lest their actions might harm national security interests. They have also recognised, without deferring absolutely to any relevant security agency, that such agencies are usually better placed to assess the impact of disclosure of particular material than are the courts.

85    In Alister v R (1984) 154 CLR 404 at 435 Wilson and Dawson JJ said that:

“The outstanding feature of the claim to immunity is the nature of the public interest which the Minister seeks to protect. Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluation. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister.”

In that case (at 455) Brennan J said that a court is “ill equipped itself to evaluate pieces of intelligence obtained by ASIO.”

86    In Woodward (at 74) Brennan J had expanded on this observation. He asked:

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

See statements to like effect in the judgment of Hayne J in Thomas v Mowbray (2007) 233 CLR 307 at 477.

87    In Leghaei, the Full Court quoted with approval the observations of Lord Nicholls in A v Secretary of State for the Home Department [2005] 2 AC 68 at 128 where his Lordship said that:

“All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All Courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed. … Courts are not equipped to make such decisions, nor are they charged with that responsibility.”

88    The cautious approach which is reflected in these decisions has a number of implications for the exercise of the power of judicial review of decisions which, it is claimed, have been based on intelligence and other sensitive information.

89    The first is that the courts will give “very considerable weight” to the agency’s view of what national security requires in any particular instance: see Alister at 435 (per Wilson and Dawson JJ). This dictum was applied by the Full Court in Leghaei when dealing with an adverse security assessment, made under the ASIO Act: see at 147. That is not to say that the Court must, in all cases, accept the security organisation’s assessment. Such deference is, however, an acknowledgement of the practical difficulty faced by a court in evaluating evidence adduced in support of public interest immunity claims on the grounds of harm to national security.

90    Faced with this difficulty Australian courts have stressed that those whose evidence is relied on to make good a claim that disclosure of information would be contrary to the national interest bear a heavy burden and have insisted that decision-makers must give “personal genuine consideration” to the competing interests which are involved when such a claim is made: see Leghaei at 148.

91    Courts have always been sensitive to the necessity of avoiding decision-making on the merits when undertaking judicial review: see Peko-Wallsend at 40-41 (per Mason J). This sensitivity has been particularly acute when dealing with challenges to decisions made on security grounds. In Woodward (at 54) Gibbs CJ said that “the…argument that ASIO may not characterise a person as a security risk unless he is in fact a risk finds no support in the provisions of the Act … and if accepted would, in effect, give a right of appeal from conclusions formed by officers of ASIO.” Mason J added (at 63) that:

“And the further allegations … that the appellants are not and have not been at any material time a security risk does not answer the problem. I have already pointed out that, although a person is not in fact a security risk, ASIO may well have reasonable grounds, based on information it receives, for believing or suspecting that he is.”

92    A final implication has already been adverted to, namely, that security considerations may effectively reduce to a bare minimum the obligations of procedural fairness which fall on decision-makers.

93    Sundberg J was alert to all of these matters when he considered and ruled on the Director-General’s claim for public interest immunity. He examined the assessments and the reasons for them and the evidence put forward by the Director-General in support of the claim. Once that claim was upheld, the unavoidable consequence was that the Director-General’s reasons could not be disclosed to the applicants, their legal advisors or the Court. As his Honour said (at 511):

“In seeking to establish an exceptional case the applicants point out that they may be unable to make out their cases if the claim to immunity is upheld. The authorities establish that this consequence of the outcome of the process of balancing public interest immunity against the public interest, upon which the applicants rely, of having conventional access to evidentiary material, is not exceptional.”

In this passage his Honour anticipated what has now come to pass.

Associate:

Dated:    4 March 2011