FEDERAL COURT OF AUSTRALIA

NBMW v Minister for Immigration and Citizenship [2013] FCA 651

THE COURT ORDERS THAT:

1.    The applicant have leave to file an amended application in the form of Annexure “ACD 17” to Ex 1, excluding ground 1.

2.    The applicant’s interlocutory application dated 31 January 2013 be otherwise dismissed.

3.    The applicant pay the costs of the Director-General of Security in opposing the interlocutory application, as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an interlocutory application seeking orders that:

(1)    The Director-General of Security (“Director-General”) be joined as a respondent to these proceedings pursuant to s 39B of the Judiciary Act 1903 (Cth) and Rule 9.02 of the Federal Court Rules 2011 (“Rules”).

(2)    The applicant be granted leave to file an amended application in the form annexed (Annexure marked “ACD 17”) to the affidavit of Andrea Christie David sworn on 31 January 2013 (Ex 1).

2    It is common ground that if the applicant is granted leave to file and rely on an amended application in the form of Annexure “ACD 17” to Ex 1, the joinder should necessarily follow.

The Originating Application

3    The originating application, filed on 8 February 2012, is made under s 476A of the Migration Act 1958 (Cth) (“the Act”) and seeks, inter alia, prerogative relief against the respondent (“Minister”) to:

(1)    Quash the decision of the Minister made on 29 November 2011 to cancel the applicant’s visa pursuant to s 501(3) of the Act (“decision”); and

(2)    prohibit the Minister from further proceeding on the decision.

4    In making his decision, the Minister relied upon an “adverse security assessment” issued by the Australian Security Intelligence Organisation (“ASIO”) in forming the belief that the applicant was a person of bad character, thereby failing the character test in s 501(6) of the Act.

5    Certain ancillary relief was also sought pending, and upon, finalisation of the applicant’s proceedings before the Administrative Appeals Tribunal (“Tribunal”) then on foot. The Tribunal proceedings have since been finalised so, to a certain extent, the ancillary relief sought has been overtaken by events.

Background

6    The applicant arrived at Christmas Island on 20 July 2010. On 6 November 2010 the applicant lodged an application for a protection (Class XA) visa.

7    On 6 April 2011, the applicant was granted a protection (Sub-class 866) visa.

8    On 24 November 2011, the Director-General issued the adverse security assessment in respect of the applicant.

9    On 30 November 2011, the applicant was notified that his protection visa had been cancelled and was detained at Villawood Immigration Detention Centre.

Tribunal Proceedings

10    On 22 December 2011, the applicant, pursuant to s 54(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (“ASIO Act”), lodged an application for review of the adverse security assessment with the Tribunal.

11    The Director-General served on the applicant unclassified affidavit evidence and an unclassified statement of facts, issues and contentions.

12    The applicant put on affidavit evidence and provided the Tribunal with two thick binders of material in support of his case.

13    The Tribunal proceedings were heard by the Tribunal over eight days (namely, 2, 3, 4, 10, 11, 12, 19 and 20 April 2012), during which:

(1)    The applicant was represented by a solicitor and Senior Counsel;

(2)    a senior ASIO officer gave evidence before the Tribunal for several hours, and was cross-examined;

(3)    the senior ASIO officer gave further evidence in closed court;

(4)    the applicant gave oral evidence and was cross-examined by Senior Counsel for the Director-General;

(5)    six witnesses gave evidence on behalf of the applicant, and each were cross-examined by Senior Counsel for the Director-General; and

(6)    the applicant and the Director-General each made oral submissions and put on further written submissions regarding the correct or preferable decision for the Tribunal to make.

14    On 12 September 2012, the Tribunal affirmed the adverse security assessment (PTRR v Director-General of Security [2012] AATA 612). In doing so, the Tribunal found that there was no breach of procedural fairness as a result of ASIO’s decision to progress the applicant’s adverse security assessment without having interviewed the applicant or given further particulars of the allegations made against him: Reasons (“R”)[32]–[56] inclusive.

Appeal and Discontinuance

15    On 10 October 2012, the applicant filed a notice of appeal from the Tribunal’s decision.

16    On 16 November 2012 the appeal was listed for hearing before a Full Bench of this Court on 11 February 2013.

17    On 12 December 2012, the applicant filed a notice of discontinuance of his appeal.

The Proposed Amended Application

18    The applicant’s application for leave to amend his originating application is brought in reliance on Rule 8.21(1)(b) of the Rules, namely, to avoid the multiplicity of proceedings. While grounds 2 and following of the proposed amended application do not precisely “mirror” those in the originating application, the differences are slight and are intended to clarify; they do not raise any new substantive issue, and they are not opposed by the Minister.

19    It is ground 1 of the proposed amended application, upon which the joinder application is also predicated, which is opposed by the Director-General. It provides:

In making the security assessment, the [Director-General] failed to afford the Applicant procedural fairness.

a.    The Applicant was not given any opportunity to address the information upon which the Director-General relied in making the assessment.

20    Undoubtedly the Court has a broad discretion to grant leave to amend, the overriding concern being to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and so avoid a multiplicity of proceedings: Caruso Australia Pty Ltd and Portec Australia Pty Ltd v Portec Australian Pty Ltd and Caruso Australia Pty Ltd [1986] FCA 23. The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for by an award of costs or an adjournment: S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035.

21    Here the amendment is sought to provide a foundation for the joinder of the Director-General as second respondent. Without the amendment, the joinder application could not succeed. Insofar as the reason for the amendment is said to be “to avoid the multiplicity of proceedings”, the applicant’s counsel submitted “that there will be nothing preventing the applicant from making the same plain and separate proceedings tomorrow if he was … so minded”. That may be so, but if the separate proceeding was so obviously futile that it would be summarily dismissed or struck out, the applicant could not expect the amendment sought by the current application to attract the benefit of the Court’s discretion. It was for that reason that counsel for the applicant eschewed the Director-General’s contention that, in the circumstances of this case, any such separate proceeding would be obviously futile.

22    As noted in [19] above, the first ground of the proposed amended application is that the adverse security assessment made by the Director-General was vitiated by a failure to afford the applicant procedural fairness. According to the applicant, the basis of this ground is that, in making an adverse security assessment that was relied on by the Minister to cancel the applicant’s visa, the Director-General was required to afford procedural fairness to the applicant. In particular, he was required to give the applicant the opportunity of dealing with the allegations put against him. According to the applicant, that obligation was critical to the legality of the assessment in light of the fact that the Minister had (and used) the power to cancel the applicant’s visa in reliance on the assessment without notice to the applicant: s 501A(4) of the Act. Reference was made to the observations of French CJ in Plaintiff M47/2012 v Director-General of Social Security (2012) 86 ALJR 1372 at [73].

23    More particularly, the applicant alleges that he was denied procedural fairness in that he was never interviewed by the Director-General or given particulars of the allegations made against him.

24    But as noted in [14] above, these very matters were agitated before the Tribunal on review of the adverse security assessment; and the Tribunal found that there was no breach of “the limited requirement to provide procedural fairness as a consequence of the failure to provide particulars in this matter giving due weight to the statutory constraints imposed” (R[52]), nor of “the limited requirement to afford procedural fairness in not continuing with the decision to interview the Applicant because of its possible adverse impact on national security and giving due weight to the statutory constraints imposed” (R[56]).

25    Moreover, no complaint is made that the Tribunal failed to provide or afford the applicant procedural fairness in its review of the adverse security assessment; indeed, as noted in [17] above, the applicant discontinued his appeal to a Full Bench of this Court from the Tribunal’s decision.

26    In these circumstances, the Director-General contends that the Court should not allow the proposed amendment. According to the Director-General, the challenge the applicant seeks to raise will not be successful, the alleged deficiency having been cured by the review process in the Tribunal. Even if that were not the case, the applicant’s conduct, in electing to treat the adverse security assessment as valid when he applied to the Tribunal, is inconsistent with the nature of the relief he now seeks, and the Court would not exercise its discretion to permit him to raise it.

27    In support of his contention, the Director-General referred to Twist v Randwick Municipal Council (1976) 136 CLR 106, in particular to the reasons of Mason J (as his Honour then was). After referring to the fact that the existence of a right of appeal, particularly a limited one, does not of itself demonstrate or constitute an indication that a duty of procedural fairness or natural justice may be departed from by an inferior tribunal or authority (at 113, 114 and 116), his Honour said (at 116):

But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.

Although views had been expressed to the contrary, his Honour considered the approach he adopted to be the preferable one for two reasons (at 116):

[F]irst, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing – in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.

28    The Director-General observed that this Court has subsequently applied his Honour’s reasons in cases including Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219; Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495 at [92], [96]; and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at [32]. In Yilmaz, Gyles J said (at [92]):

The decision in Alvaro makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting, McDougall v Warringah Shire Council (1993) 30 NSWLR 258.

At [96] his Honour said:

This conclusion is also consistent with general administrative law principles in considering a related, but not identical, question in [Twist]…

and went on to quote what Mason J said in that case at 116, substantial parts of which are extracted in [27] above.

29    In summary then on this point, the Director-General’s position was that even if there was a defect in the decision to issue the adverse security assessment in the nature of a denial of procedural fairness (which the Director-General denied), the exercise by the Tribunal of its jurisdiction to review the Director-General’s decision was able to, and did, “cure” any such defect. To now seek to impugn that decision is not to the point, as it has been “entirely supplanted” by the Tribunal’s decision.

30    In response, the applicant contended “that there is at least a reasonable argument that ‘review’ by the Tribunal does not ‘cure’ any jurisdictional defect in the security assessment”. Reliance was placed on the limits of the scope of review in s 43AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act’) and the restrictions which might apply to the conduct of the hearing in the Security Appeals Division if a certificate was issued pursuant to s 39A(8) of the AAT Act; it not being in dispute that such a certificate was issued in the review undertaken by the Tribunal in the present case: R[36].

31    However, while s 43AAA(3) of the AAT Act limits the circumstances in which the Tribunal may make findings in relation to an assessment that would have the effect of superseding any information that was taken to be part of the assessment, the precondition on its power to make findings does not constrain the scope of the inquiries it may make in assessing whether that condition is satisfied. Subject to s 43AAA, s 43(1) of the AAT Act permits the Tribunal to exercise all powers and discretions that are conferred by the ASIO Act on the Director-General, and it may ultimately set aside an adverse security assessment. Under s 61 of the ASIO Act, every Commonwealth agency concerned with any prescribed administrative action to which the adverse security assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the adverse security assessment is relevant (which would include this Court) shall treat the findings of the Tribunal to the extent that they do not confirm the adverse security assessment as superseding the adverse security assessment.

32    Moreover, to the extent that there are restrictions on the disclosure of evidence and information in a review by the Tribunal of an adverse security assessment (see ss 39A and 39B of the AAT Act), the imposition of such restrictions is entirely consistent with the subject matter, it being well recognised that reasons of national security may make it impossible to disclose the grounds on which the executive has acted or proposes to act: Leghaei v Director-General of Security (2007) 241 ALR 141 at [48]–[50]. Their imposition does not preclude the Tribunal’s decision curing any deficiency in the process leading to the Director-General issuing an adverse security assessment, particularly bearing in mind that it relates to the same type of information. Further, that legislative context, together with consideration of the subject matter of the adverse security assessment, in turn determine the content of any requirements of procedural fairness: Kioa v West (1985) 159 CLR 550 at 585 per Mason J, 612 per Brennan J and Leghaei at [48]–[54].

33    The applicant did not dispute the Director-General’s rendition of the procedures adopted in the Tribunal in the present case as including the following:

(1)    The Director-General was required to present to the Tribunal all information relevant to the adverse security assessment, whether favourable or unfavourable to the applicant (s 39A(3) of the AAT Act).

(2)    The Director-General was required to serve on the applicant all such information, and the applicant was entitled to be present when the Tribunal was hearing submissions or evidence adduced by the Director-General that were not protected by a public interest certificate (s 39A(6) of the AAT Act).

(3)    The Director-General served on the applicant unclassified affidavit evidence and an unclassified statement of facts, issues and contentions.

(4)    The applicant put on affidavit evidence and provided the Tribunal with two thick binders of material in support of his case.

(5)    The hearing of the application for review of the adverse security assessment occurred over eight days, as detailed in [13] above.

34    There is no doubt that the Tribunal had jurisdiction to determine the review and, in my view, consistent with the authorities referred to above, in exercising that jurisdiction it cured any denial of procedural fairness that the applicant may have suffered in relation to the process before the Director-General. I do not accept the applicant’s contention that the review in the Tribunal was so limited, by reference to the matters referred to in [30] above, that it was not a full review for this purpose. In any event, even if that was not the case, it is quite clear from what Mason J said in Twist, that his Honour’s reservations about drawing conclusions, from the existence of limited rights of appeal, as to a legislative intention to displace a requirement of fairness and natural justice, have no relevance where the right of appeal is exercised and the appellate or reviewing authority acts fairly and does not depart from natural justice.

35    Moreover, as noted in [24] above, the Tribunal expressly dealt with the complaint of denial of procedural fairness and found it to be without substance. The applicant sought to deal with this by saying that it was not an issue before the Tribunal and the Tribunal did not have power to make the finding. Whether that be right or wrong, it is clear from the Tribunal’s reasons that it was a matter agitated before the Tribunal on behalf of the applicant and the Tribunal was compelled to deal with it.

36    There are also discretionary considerations which the Director-General pressed. The first was the matter of delay which because of my view on other matters, I can put to one side. The second was articulated as follows: in applying to the Tribunal for review of the adverse security assessment, the applicant elected to treat the original decision as valid. Having now proceeded with the full review and subsequently discontinued any appeal in respect thereof, he should not be allowed to reprobate the unfavourable result as he chooses: Seymour v Migration Agents Registration Authority (2006) 95 ALD 301 at [132]. His election and subsequent actions are not consistent with the nature of the relief that he now seeks: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [80].

37    In the present case, a grant of leave to amend would raise a new cause of action in respect of a new (in the sense of a different) decision against a new party which, for the reasons outlined above, will ultimately be unsuccessful and in circumstances where the applicant has already availed himself of the suitable alternative remedy of merits review of the Director-General’s decision on the basis that it was valid. The weight of authority is that in those circumstances, the Court should not exercise its discretion to grant the amendment. I was referred to what was said by Mason J in Twist at 117:

Having regard to the subject matter of the section, the nature of the order which the council is empowered to make, the degree of urgency which may attend the execution of the order and more particularly the comprehensive nature of the appeal to a District Court judge, I am of opinion that s. 317B (5) should be read as providing the exclusive remedy available to an owner who wishes to challenge the validity or correctness of an order made under s. 317B (1).

It would conform with this conclusion to say that the council is under no duty to give the owner an opportunity to present his case before proceeding to the making of an order. Perhaps this conclusion could be supported on the footing that sub-s. (1) makes no reference to the opinion or satisfaction of the council, thereby suggesting that the council is under no duty to make a determination of a kind which would impose upon it an obligation to hear the owner. Although it is unnecessary to express a concluded view upon the question I should prefer to say that the function entrusted to the council imposed upon it a duty to act fairly, that in the circumstances this might well involve the council in giving the owner the opportunity to present his case before proceeding to the making of an order. However, as the only redress is by way of appeal, that is an end of the matter.

I was also referred to what was said by Gyles J in Kamha v Australian Prudential Regulation Authority [2007] FCA 1422 at [9], [12] and [13].

38    For the foregoing reasons, the substance of the interlocutory application must be dismissed. I will grant leave to the applicant to file an amended application in the terms of Annexure “ACD 17” to Ex 1, excluding ground 1.

Associate:

Dated:    5 July 2013