FEDERAL COURT OF AUSTRALIA

Plaintiff M46 of 2013 v Minister for Immigration and Border Protection [2014] FCA 90

FEDERAL COURT OF AUSTRALIA

Plaintiff M46 of 2013 v Minister for Immigration and Border Protection [2014] FCA 90

CORRIGENDUM

1.    Paragraph 2 of the Orders should read “The plaintiff pay the defendants’ costs of the proceeding.”

Associate:

Dated:    24 February 2014

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The plaintiff pay the first defendant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1    Plaintiff M46 is a citizen of Sri Lanka of Tamil ethnicity. It will be convenient, in these reasons, adopting this Court’s convention, to refer to him as “the applicant” and to the defendants as “respondents”. He has been found, by both the United Nations High Commissioner for Refugees and a delegate of the responsible Australian Minister, to be a refugee within the meaning of the Convention Relating to the Status of Refugees as amended by the 1967 Refugees Protocol (“the Refugees Convention”). Despite this the respondent Minister refused the applicant a protection (Class XA) visa. The Minister acted under s 501(1) of the Migration Act 1958 (“the Act”) which empowered him to refuse to grant such a visa if an applicant fails to satisfy him that he or she passes the character test prescribed by s 501(6) of the Act. Specifically the Minister found that the applicant was a person who represented a danger to the Australian community or part of it. The Minister also issued a certificate under s 502 of the Act declaring the applicant to be an excluded person.

2    The Minister formed his view on the basis of an adverse security assessment provided to him by the Australian Security Intelligence Organisation (“ASIO”).

3    In this proceeding the applicant seeks judicial review of the Minister’s decisions on a number of grounds. Each of the alleged errors is said to be exposed by written reasons which the Minister gave for his decision.

THE FACTUAL BACKGROUND

4    The applicant entered Christmas Island on 29 December 2009. At the time of his entry he held a special purpose visa. That visa expired 50 minutes after he arrived. It has not been renewed. No other visa has since been issued to him under the Act. Upon the expiry of the special purpose visa the applicant was detained under s 189(3) of the Act because he was known or reasonably suspected to be an unlawful non-citizen in an excised offshore place. He was later removed to a detention centre in Melbourne where he has continued to be held pursuant to ss 189(1) and 196(1) of the Act as a person known or reasonably suspected to be an unlawful citizen in the migration zone.

5    In 2009, and again in 2011, the applicant was interviewed by ASIO officers. These interviews led the Director-General of Security to issue adverse security assessments because he considered that the applicant was directly or indirectly a risk to Australia’s security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”).

6    Whilst he was in detention the applicant applied for a protection visa under s 36 of the Act. The application was refused by a delegate of the Minister on 18 February 2011. At that time public interest criterion 4002, prescribed in the Migration Regulations 1994 (Cth) (“the Regulations”) conditioned the granting of a protection visa on there not being an ASIO assessment that the applicant directly or indirectly posed a risk to Australia’s security. The applicant’s failure to satisfy this requirement was the basis for the delegate’s decision.

7    The applicant appealed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal was precluded, by s 36(b) of the ASIO Act, from going behind the security assessment. It affirmed the delegate’s decision.

8    The applicant challenged the decision in the High Court. By majority, the Court held that public interest criterion 4002 was invalid: see Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

9    Following the High Court’s decision the matter was remitted to the Tribunal for further consideration. The Tribunal, in turn, remitted the matter to the Minister. A long delay ensued during which no decision was made. This led the applicant to commence a further proceeding in the High Court in which he applied for a writ of mandamus to compel the Minister to make a decision on his application.

10    On 22 May 2013 the Minister issued a notice of intention to consider refusal of the applicant’s application. Submissions were made on behalf of the applicant and the Minister then made the impugned decisions.

11    At this point the applicant amended his application to seek judicial review of the Minister’s decisions. The High Court remitted the proceeding to this Court for trial of the issues raised by the amended application.

THE PUBLIC INTEREST IMMUNITY CLAIM

12    The applicant made a pre-trial application for discovery. One of the documents discovered by the Minister was the “final appreciation” prepared by ASIO which recorded the Director-General’s reasons for making the adverse security assessment relating to the applicant. This document was before the Minister when he made his decision and, as will be seen, was referred to by him in his reasons.

13    When the applicant sought inspection of the discovered document the Commonwealth resisted the application on the ground of public interest immunity. I heard argument relating to this claim on 22 November 2013. Having heard the argument I advised the parties that I had reached a firm view that the public interest immunity claim should be upheld. The parties agreed that the publication of my reasons for upholding the claim could await the outcome of the trial and could be included in the reasons for judgment on the principal application.

The Applicant’s Evidence

14    The applicant did not file a personal affidavit in support of his application.

15    The applicant’s legal representative swore an affidavit in support of the application. He referred to the Amended Special Case filed in the High Court which concluded that, in the absence of a change in circumstances, it was unlikely that the Department of Immigration and Citizenship would be able to arrange for the applicant to be settled in a third country. Unless he is resettled or granted a visa the applicant will remain in immigration detention at the Melbourne Immigration Transit Accommodation.

16    The applicant has expressed a deep sense of distress, anguish and hopelessness as a result of the indefinite and prolonged nature of his detention. The applicant has been receiving regular psychological counselling from Grace Lopez who reported symptoms of extreme hopelessness about his future and increased apathy and suicidality. The applicant has attempted to take his own life on one occasion and there is ongoing concern of self-harm or suicide.

The Respondent’s Evidence

17    The claim for public interest immunity over the document was supported by two affidavits:

a.    an open affidavit sworn by Mr David Taylor Irvine, the Director-General of Security on 25 October 2013; and

b.    a confidential affidavit sworn by Mr Irvine on 25 October 2013.

18    Mr Irvine swore an amended confidential affidavit on 21 November 2013 which made minor amendments to his confidential affidavit of 25 October 2013.

Mr Irvine

19    Mr Irvine is the Director-General of Security, holding office under the ASIO Act. In that capacity, he has control of ASIO. The purpose of his open affidavit was to support a claim for public interest immunity over the final assessment dated 9 May 2012 which relates to the applicant. The final assessment was produced by ASIO.

20    The open affidavit established that:

    It is one of the functions of ASIO, which is conferred by s 17(1)(c) of the ASIO Act, “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.”

    Mr Irvine had been provided with a copy of the final assessment and had relied on it in determining to make an adverse security assessment in relation to the applicant.

    It is Mr Irvine’s opinion that it is in the public interest that ASIO discharge its core function to protect Australia’s national security and to provide advice to the government in relation to matters relevant to the protection of Australia’s national security. In the absence of ASIO’s advice, the Australian Government’s ability to respond to threats would be severely impaired. He considers that it is fundamental to the effective operation of ASIO that specific details of its area or subjects of interest, its ability to obtain intelligence, its sources, techniques and work methods, its successes and information derived from its successes be kept secret. This goal may require that it neither confirm nor deny activities which may, or may not have occurred.

    Security assessments are a key mechanism employed by ASIO to determine whether a particular individual poses a threat to Australia’s national security. Following a finding of an adverse security assessment a final appreciation document is produced. The Director-General has regard to this document, among others, when determining whether an adverse security assessment should be issued under Part IV of the ASIO Act. Such documents routinely set out or reveal:

a.    the precise details of ASIO’s assessments;

b.    the investigative process followed in undertaking the assessment;

c.    the security issues that have been identified and require resolution;

d.    the source of information that ASIO relied on in forming the assessment;

e.    the methods used to gather intelligence or corroborate information; and

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

    Mr Irvine considers that “[i]t is imperative that a Final Appreciation be as comprehensive as possible.” Transparent reasoning and supporting intelligence information is essential to ensure that a person who becomes subject of an adverse security assessment is not subjected to its consequences unnecessarily. Conversely, it ensures that ASIO does not fail to issue an adverse security assessment when warranted, for the consequences can be equally, if not more, serious.

    It is Mr Irvine’s opinion that:

“…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 such information was included, the information might thereafter be disclosed, that would impair ASIO’s capacity to give accurate advice to government and my capacity to make appropriate decisions in relation to whether adverse security assessments should be issued in any given case.”

21    I have read Mr Irvine’s confidential affidavit dated 25 October 2013. In it he elaborates upon various aspects of the basis of the Commonwealth’s public interest immunity claim over the document and expands on the material contained in his open affidavit.

Submissions

22    There were two main pillars of the Commonwealth’s argument. The first was that the information contained in the final appreciation related to national security and that the maintenance of the public interest in protecting national security will normally be found to outweigh competing public interests. The second was that final appreciations of the kind presently under consideration had been recognised by this Court as being a protected class of documents.

23    The applicant accepted that there is a public interest in the non-disclosure of the document which falls within a recognised class. He, nonetheless, submitted that his was an exceptional case in which the demands of the administration of justice outweighed the public interest in non-disclosure. The applicant asserted that the potential consequences of indefinite detention and its associated medical consequences outweighed the public interest in non-disclosure in circumstances where he proposed that disclosure be limited to his counsel or, alternatively, to independent counsel subject to appropriate undertakings.

24    The applicant further submitted that judicial review of executive decision-making will almost always focus on the material before the decision maker. The Minister relied upon the document during the decision making process and, for this reason, it was critical to establishing that the ss 501 and 502 decisions were affected by jurisdictional error.

25    The Commonwealth countered that the public interest in the applicant gaining access to the document was weak on two grounds. First the document is of little, if any, relevance to the grounds of the applicant’s amended application for an order to show cause dated 23 July 2013, and, secondly, the applicant has already had disclosed to him considerable information regarding the basis of his adverse security assessment, and that information was available to inform the conduct of this case.

Consideration

26    The Commonwealth’s public interest immunity claim is founded on common law principles. Those principles require a determination of whether there are competing public interest considerations tending for and against upholding the claim and, if so, the Court must balance those interests: see Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616-7. In Sagar v O’Sullivan (2011) 193 FCR 311 I examined the authorities which have considered the application of these principles to public interest immunity claims, made in relation to information which impinges on national security. Part of that analysis bears repeating.

27    At 326-7 I said that:

“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 The Queen (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 [The Church of Scientology Inc v Woodward (1982) 154 CLR 25] 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.”

28    To these references may be added the following observations of Lord Reid and Sir Gerard Brennan. In Conway v Rimmer [1968] AC 910 at 940, Lord Reid said that:

“It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it.”

29    In Woodward (at 76) Brennan J said that:

“Yet discovery would not be given against the Director-General [of ASIO] save in the most exceptional case. The secrecy of the work of an intelligence organisation which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice… . In D v National Society for the Prevention of Cruelty to Children, Lord Simon of Glaisdale observed:

So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process…

Nevertheless, the veil of secrecy is not absolutely impenetrable… But the veil is not penetrated merely by a plaintiff’s deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover.”

30    What these authorities amply demonstrate is that, where public interest immunity claims are made in respect of information relating to national security and the claims are supported by proper material, the public interest in non-disclosure will normally outweigh any competing public interest.

31    In Parkin v O’Sullivan (2009) 260 ALR 503, Sundberg J held that the documents that explain ASIO’s reasons for making an adverse security assessment formed a class of documents which require protection from disclosure. His Honour said at 511-2 [33] that:

“The final appreciations and related briefing notes set out the reasoning process that 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. If documents falling within this class 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: compare Alister at 154 CLR 454-455 per Brennan J. As the respondent has deposed, the relevant class is ‘one of the classes of documents held by ASIO that require the greatest level of protection’ first, because of the inherent sensitivity of the information that is routinely contained in terms of the quality of decision-making that would be likely to follow if ASIO officers were forced to omit particular kinds of information from final appreciations and relating briefing notes due to the risk that those documents will become available to persons the subject of security assessments.”

In SBEG v Secretary, Department of Immigration and Citizenship (2012) 291 ALR 281 at 286 Besanko J followed this decision of Sundberg J and held “that final appreciations leading to adverse security assessments fall within a class of documents which, in the public interest, ought not to be disclosed.” His Honour also agreed with the reasons which Sundberg J had given for the recognition of such a class.

32    The final appreciation presently under consideration falls within the class of documents, recognised in Parkin and SBEG, which ought not to be disclosed in the public interest. Like Besanko J, I agree with the reasons of Sundberg J in Parkin for holding that final appreciations fall within such a class.

33    Whilst the Court should attach considerable weight to the opinion of the responsible officer as to the potential consequences of disclosure when determining a public interest immunity claim: see Parkin at 510-1 [30], it must also take account of the considerations which weigh in favour of disclosure.

34    Mr Irvine has examined the appreciation in question and provided cogent reasons, which I accept, which support the immunity claim. They are not, in my opinion, outweighed by the public interest grounds relied on by the applicant.

35    At the forefront of the applicant’s claim for access to the final appreciation was the impact of his lengthy detention on his health. The evidence suggests that his mental health had deteriorated over time as he confronted the prospect of indefinite detention. The principal reason for the applicant’s ongoing detention is the statutory requirement that he be kept in immigration detention until one or more prescribed events occur: see s 196 of the Act. One of these events is the granting of a visa. The Minister’s decision to refuse the applicant a protection visa can thus be seen to be a cause of the applicant’s continued incarceration. That incarceration has, in turn, had an adverse impact on the applicant’s health.

36    Unless the Minister’s decision to refuse the applicant a visa is set aside the applicant will remain in detention unless and until one of the other events comprehended by s 196 occurs. The contents of the final appreciation may or may not support the applicant’s attempt to have the Minister’s decision set aside because of jurisdictional error. At best for the applicant there is a chance that it may. Such a possibility does not carry sufficient weight to displace the public interest in non-disclosure.

37    As Sundberg J acknowledged in Parkin, the upholding of a public interest immunity claim in respect to a centrally relevant document in a case such as the present may have serious consequences for an applicant, not least that the applicant is deprived of a means of establishing jurisdictional error on the part of a decision maker.

38    Counsel for the applicant submitted that, even if the public interest required that the applicant should not have access to the final appreciation, it should be made available to his instructing solicitor and counsel subject to undertakings to maintain its confidentiality. Such a regime, even if it could be implemented consistently with authority (which it could not) would not assist the applicant. Once the public interest in non-disclosure is established a consequence is that the relevant material cannot be deployed in evidence in curial proceedings: see Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 550-1 (Gleeson CJ), 556 (Gummow, Hayne Heydon and Kiefel JJ); State of Victoria v Seal Rocks Victoria (Aust) Pty Ltd (2001) 3 VR 1 at 6. In any event, the successful public interest immunity claim precluded the provision of the material to anyone including the applicant’s legal advisers: see Sagar at 321-2.

39    It was for these reasons that I upheld the Commonwealth’s claim for public interest immunity in relation to the final appreciation.

THE MINISTER’S REASONS

40    The Minister’s reasons for refusing the applicant’s application for a protection visa were shortly stated. They are dated 25 June 2013 and read as follows:

“1.    Section 501(1) of the Act enables me to refuse to grant a visa to a person if the person does not satisfy me that the person passes the character test.

2.    The character test is defined in section 501(6) to include:

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

    …

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

    …

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

3.    Based on the adverse security assessment provided by the Australian Security Intelligence Organisation (ASIO) in respect of [the applicant], including the material which is section 503A protected information and ‘non-disclosable information’, I found that [the applicant] does not pass the character test by virtue of section 501(6)(d)(v).

4.    I was also satisfied on the basis of the information before me that [the applicant] is a risk to national security for the purposes of Article 33(2) of the Refugees Convention.

5.    In making these findings I gave careful consideration to the representations made on behalf of [the applicant] by his agent.

DISCRETION

6.    Having found that [the applicant] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant [the applicant’s] visa.

RELEVANT CONSIDERATIONS

Protection of the Australian Community

7.    Having found that [the applicant] does not pass the character test by virtue of s 501(6)(d)(v), I gave great weight to the protection of the Australian community.

International obligations

8.    On 11 December 2009, [the applicant] was found to be a refugee by the UNHCR, [the applicant] was found to engage Australia’s protection obligations by a departmental officer on 18 February 2011. I accept that [the applicant] continues to have the status of a refugee.

9.    I also accept that notwithstanding that [the applicant] may not have the benefit of the non-refoulement obligation under the Refugees Convention by virtue of Article 33(2), he may still have the benefit of non-refoulement obligations under other relevant conventions to which Australia is a party.

10.    I note, however, that a decision to refuse to grant [the applicant] a Protection visa on character grounds is not, in itself, a decision to remove [the applicant] from Australia, nor does it necessarily lead to such action.

Other Considerations

11.    I have carefully considered the representations made on behalf of [the applicant] by his agent including the attached letters of support which, among other things, noted the adverse effect that a refusal decision would have on [the applicant].

CONCLUSION

12.    I have considered all relevant matters, including (1) an assessment against the character test as defined by section 501(6) of the Act and (2) all other evidence available to me, including evidence provided by, or on behalf of [the applicant].

13.    Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant [the applicant] a Protection (Class XA) visa, under section 501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its international obligations in his particular case.

14.    I decided that, because of the seriousness of the circumstances giving rise to the making of the section 501(1) decision, it is in the national interest that [the applicant] be declared to be an excluded person under s 502 of the Act. Accordingly, as part of my section 501(1) decision, I included a certificate declaring [the applicant] to be an excluded person.”

THE LEGISLATION

41    The legislation relating to the application of the “character test” appears in Part 9 of the Act.

42    By s 501(1) the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

43    Section 501(3) provides that:

“The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    …

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.”

44    The power conferred on the Minister by s 501(3) must be exercised by him or her personally: see s 501(4).

45    Section 501(6) identifies a number of circumstances in which a person will not pass the character test. One of them is that prescribed by s 501(6)(d)(v) which is set out in paragraph 2 of the Minister’s reasons. A person who is not caught by one or more of the criteria appearing in s 501(6) is declared, by the sub-section, to pass the character test.

46    If the Minister refuses to grant a visa to a person under s 501(1), s 501G(1) requires the Minister to give the person a written notice that:

“(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

…”

47    “Non-disclosable information” is defined, in s 5 of the Act, to mean, inter alia, information or matter:

(a)    “whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)    prejudice the security, defence or international relations of Australia; or

(ii)    …

(b)    whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)    …

and includes any document containing, or any record of, such information or matter.”

48    Section 501G(4) provides that “[a] failure to comply with this section in relation to a decision does not affect the validity of the decision.”

49    Section 502 relevantly provides that:

“(1)    If:

(a)    the Minister, acting personally, intends to make a decision:

(i)    …

(iii)    to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

in relation to a person; and

(b)    the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2)    A decision under subsection (1) must be taken by the Minister personally.

(3)    …”

50    Section 503A provides that if an agency, such as ASIO, provides information to an authorised migration officer for the purposes of s 501 of the Act and does so “on condition that it be treated as confidential information”, that information may not be (subject to some narrow exceptions) divulged or communicated to third parties.

51    The applicant’s case also raises issues relating to the provisions of the Act dealing with the detention and removal from Australia of unlawful non-citizens. These provisions are contained in ss 189, 196 and 198 of the Act. Section 189 imposes an obligation on departmental officers who know or reasonably suspect that a person is an unlawful non-citizen to detain that person. Section 196 stipulates what is then to happen. It provides that:

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

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

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

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

(c)    he or she is granted a visa.

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

…

(6)    This section has effect despite any other law.

(7)    In this section:

    ‘visa decision’ means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).”

52    Removal of an unsuccessful visa applicant is dealt with in s 198(6). It provides that:

“an officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been

     finally determined;

(iii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

53    The High Court has recently confirmed that ss 189, 196 and 198 of the Act fall within the legislative power of the Commonwealth: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135.

THE REVIEW GROUNDS

54    The applicant challenges the decision, taken by the Minister under s 501 of the Act, on four grounds. They are that:

    he erred by basing his decision on the adverse security assessment provided by ASIO;

    he misconstrued s 198 of the Act;

    the decision was illogical and/or irrational; and

    he had provided inadequate reasons for his decision.

55    The applicant further contended that, if one or more of these grounds succeeded, the Minister’s decision under s 502 of the Act must also fall because a statutory pre-condition for the exercise of that power did not exist.

RELIANCE ON THE ADVERSE SECURITY ASSESSMENT

56    This ground is founded on the opening words of paragraph 3 of the Minister’s reasons in which he said that his conclusion that the applicant did not pass the character test was “[b]ased on the adverse security assessment provided by the Australian Security Intelligence Organisation …”. Attention was also directed to a submission from the Department which was considered by the Minister in which he was advised that “[i]t has been longstanding government policy that non-citizens with an [adverse security assessment] will not be settled in the community and will be removed from Australia where it is consistent with Australia’s international obligations.”

57    The gravamen of the applicant’s complaint was that the criteria, prescribed by the ASIO Act, for the making of an adverse security assessment differed from the criteria contained in s 501(6)(d)(v) which the Minister found to have been satisfied.

58    Section 35 of the ASIO Act defines an “adverse security assessment” as a security assessment 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.”

59    The word “assessment” is defined in the same section 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.”

60    The word “security” is 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

(aa)    the protection of Australia’s territorial and border integrity from serious threat; and

(b)    …”

61    The applicant drew attention to the wide scope of an adverse security assessment, made under the ASIO Act, and the narrower question posed by s 501(6)(d)(v) of the Act, namely, whether there is a “significant risk” that an applicant would represent a danger to the Australian community or a segment of it. Attention was also directed towards the different purposes served by the two pieces of legislation. It was not open to the Minister, so it was submitted, “to refuse a visa simply because a person has an adverse security assessment.”

62    The applicant contended that an examination of the Minister’s reasons disclosed that the Minister had not applied the test propounded by s 501(6)(d)(v) of the Act. Rather, he had “effectively substituted” a different and incorrect test posed by the ASIO Act. In doing so he failed to perform his statutory function under s 501 of the Act, asked himself the wrong question and/or “effectively, and impermissibly, abdicated his own decision making role in the s 501 process in favour of the Director-General of ASIO.” These errors, individually and collectively, constituted jurisdictional error.

63    The language employed by the Minister in paragraph 3 of his reasons lacks clarity. He asserts that he has based his decision on ASIO’s adverse security assessment relating to the applicant. That assessment is said to include “material which is section 503A protected information” and “non-disclosable information.” He thereby may be taken to suggest that this material and information forms part of the adverse security assessment.

64    In an open affidavit, sworn on 30 May 2012 in Plaintiff M47, the Director-General of Security deposed that:

“Based on ASIO’s investigations, I assess that the plaintiff:

a.    was a voluntary and active member of the Liberation Tigers of Tamil Eelam (LTTE) Intelligence Wing from 1996-1999, with responsibilities including identifying Sri Lankan Army collaborators, which he was aware likely led to extrajudicial killings, and maintained further involvement in intelligence activities on behalf of the LTTE from 1999-2006;

b.    deliberately withheld information regarding his activities of security concern and provided mendacious information throughout the security assessment process in order to conceal such activities; and

c.    remains supportive of the LTTE and its use of violence to achieve its political objectives, and will likely to continue to support LTTE activities of security concern in and from Australia.

I assess the plaintiff to be directly or indirectly a risk to Australia’s security, within the meaning of section 4 of the ASIO Act.”

In another open affidavit, sworn on 24 October 2013 in the present proceeding, the Director-General reaffirmed the assessment which he had earlier made and recorded in his 30 May 2012 affidavit. This was the adverse security assessment.

65    The reasons for the making of the adverse assessment were to be found in another document. That document was a briefing note prepared by ASIO officers for the Director-General’s consideration. It is known internally in ASIO as a “final appreciation”. In his open affidavit in the present proceeding the Director-General explained the contents of the final appreciation in the terms set out above at [20].

66    The final appreciation relating to the applicant has not been published because of the successful public interest immunity claim made by the Commonwealth. Nor, as I have held, may it be tendered or relied on in evidence in this proceeding: see The Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61 (Mason J); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 550-1 (Gleeson CJ), 556 (Gummow, Hayne Heydon and Kiefel JJ); Sagar v O’Sullivan (2011) 193 FCR 311 at 321.

67    The problem with the wording of paragraph 3 is compounded by the failure of the Minister to identify precisely what material he considered to be “s 503a protected information” or “non-disclosable information.” There is the further difficulty that s 503A of the Act only applies to information which has been communicated to an authorised migration officer on the condition that it be treated as confidential information. Counsel for the Minister were unable to point to any evidence which established that the final appreciation had been provided by ASIO subject to such a condition.

68    In paragraph 6 of his reasons the Minister refers to an “Issues Paper and attachments” to which he had regard in reaching his decision. It will be necessary to return to the issue of the purpose for which the Minister had resort to these documents. It is sufficient, for present purposes, to note that he had read the issues paper. That paper and the attachments to it throw some light on what the Minister intended to convey in paragraph 3 of his reasons.

69    The issues paper was forwarded to the Minister under cover of a five page minute which was received in the Minister’s office on 24 June 2013. On the following day the Minister responded to recommendations which were set out on the front page of the covering document. He signed the draft statement of reasons which had been prepared for him in which he recorded the decisions made by him under ss 501 and 502 of the Act. He signed a certificate which declared the applicant to be an excluded person for the purposes of s 502 and he expressed the opinion that the content of “Attachment B” was “information or matter whose disclosure would be contrary to the national interest because it would prejudice the security of Australia, within the meaning of the definition of ‘non-disclosable information’ in s 5(1) of the Act.” At the end of the covering document Attachment B was identified as “s 503A Protected Information – NOT FOR RELEASE”. The evidence called in support of the Commonwealth’s public interest immunity claim identified Attachment B more specifically as being the final appreciation. A consequence of the upholding of the public interest immunity claim was that the document was not in evidence at trial. The same document, which was described in the same way, was Attachment E to the Issues Paper. In paragraph 18 of the Issues Paper the Minister was advised that:

“The Department has received additional information relating to [the applicant] which is protected information under s 503A of the Act (Attachment E). Given the nature of this information, it is open to you to form the opinion that its disclosure would be contrary to the national interest because it would prejudice the security of Australia. If you do form such an opinion the information would be ‘non-disclosable information’ within the meaning of s 5(1) of the Act, in addition to being protected information under s 503A. This information will not be disclosed to [the applicant].”

70    In his open affidavit in the present proceeding the Director-General of Security identifies Attachment E as being the final appreciation prepared by ASIO in relation to the applicant.

71    The Minister’s reasons are not to be read zealously in pursuit of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. Having regard to what appears in the Issues Paper which was before the Minister and the affidavit of the Director-General, it is tolerably clear that, in using the word “including”, in paragraph 3 of his reasons, the Minister was intending to explain that he had based his decision that the applicant had not satisfied the character test on both the adverse security assessment and the reasons for it which were contained in the final appreciation. The Minister was advised in the Issues Paper that the “additional information”, contained in Attachment E, was “protected information under s 503A” and that it was open to him to form the opinion that the attachment contained “non-disclosable information” within the meaning of s 5(1) of the Act. Attachment E was the final appreciation. It was the only document which was before him at the time at which he made the decision in respect of which he was advised that it contained non-disclosable information or “material” which was covered by s 503A of the Act.

72    The question then becomes whether there is any evidence before the Court to support the applicant’s complaint, that, in reaching his decision, the Minister applied a test other than that propounded by s 501(6)(d)(v) of the Act in determining that the applicant did not satisfy the character test.

73    It was common ground that the criteria, prescribed by the ASIO Act, pursuant to which the adverse security assessment was made, were different from and broader than those which the Minister was required to apply in determining whether or not the applicant failed the character test as defined by s 501(6) of the Act. It is clear, as Kiefel J said in Plaintiff M47 at 362 [459], that the meaning of “security” under the ASIO Act “contemplates wider notions of security” than the Act. Nonetheless, it remains possible, consistently with the concept of “security” comprehended by the ASIO Act, for an adverse security assessment to be made for reasons which would also support a finding that a significant risk existed that an applicant would represent a danger to the Australian community within the meaning of s 501(6)(d)(v). The Minister correctly directed himself that the applicant would fail the character test if there was a significant risk that the applicant would represent a danger to the Australian community in one of the ways referred to in s 501(6)(d)(v). It is conceivable that some or all of the facts, which were relied on in ASIO’s final appreciation to explain why the Director-General had determined that an adverse security assessment should be made in relation to the applicant could also have, appropriately, been drawn on by the Minister for the purpose of making his decision. One of the reasons, given by the Director-General in his open affidavit, was that the applicant remained supportive of the LTTE and its use of violence and would continue to support the LTTE’s activities “of security concern in and from Australia.” The factual findings underpinning this part of the assessment may well have persuaded the Minister that there was a significant risk that the applicant would endanger the Australian community by becoming involved in disruptive or violent activities. So much is, of course speculative, because the material in the final appreciation is not known to the Court. This also means, however, that there is no foundation for the inference which the applicant would have the Court draw.

74    It is, unfortunately for the applicant, not possible for him to establish, on the evidence, that the Minister, by basing his decision on the final appreciation, must be taken to have applied the wrong test. The contents of the appreciation are unknown. In circumstances where the Act specifically precludes reference to them in reasons for decision, it is not possible to infer that the Minister must have applied a wrong test.

75    It is, with respect, plainly correct, as Kiefel J held in Plaintiff M47 at 362 [458] that “it is nowhere contemplated by the Migration Act that officers of ASIO are to have a determinative role regarding applications for visa.” The Minister did not, in terms, reason that, because the Director-General had issued an adverse security assessment of the applicant that the applicant must be found to have failed the character test. What the Minister did was to have regard to the contents of the Director-General’s assessment and then form a judgment as to whether the applicant was a person to whom s 501(6)(d)(v) applied. He did not refer to what he had been advised, in the issues paper, was the long standing Government policy relating to non-citizens in the position of the applicant. There is no basis for finding that the Minister determined that the applicant had failed the character test simply because the Director-General had issued an adverse security assessment under the ASIO Act.

76    This ground must fail.

MISCONSTRUCTION OF SECTION 198

77    This ground arises from the Minister’s statement, in paragraph 10 of his reasons, that “a decision to refuse to grant [the applicant] a protection visa on character grounds is not, in itself, a decision to remove [him] from Australia, nor does it necessarily lead to such action.”

78    This statement revealed, it was submitted, that the Minister had proceeded on an erroneous assumption that his refusal to grant a protection visa to the applicant would not, necessarily, lead to the applicant’s removal from Australia. The true position was that the decision must inevitably lead to the applicant’s removal. The exercise of the Minister’s discretion had miscarried because he had proceeded on a fundamentally incorrect assumption.

79    The inevitability of the decision leading to removal was confirmed, so it was said, by the mandatory requirement of removal, imposed on departmental officers, by s 198(6) of the Act. If the preconditions, prescribed by paragraphs (a), (b), (c) and (d) are satisfied removal must be effected “as soon as reasonable practicable”.

80    Reliance was placed on the observations of French CJ in Plaintiff M47 at 255 [28] where his Honour said that s 198:

“… provides for the removal from Australia of unlawful non-citizens ‘as soon as reasonably practicable’ when one or other of a number of events set out in s 198 have occurred. One of those events is that the non-citizen is a detainee who has made a valid application for a substantive visa which has been refused, the application has been finally determined and the non-citizen has not made another valid application for a substantive visa that can be granted while the applicant is in the migration zone.”

81    It was common ground that the applicant could not be removed to Sri Lanka because of Australia’s non-refoulement obligations under certain international treaties to which it is a party. The applicant contended that his removal from Australia to somewhere other than Sri Lanka was, however, required by s 198 once the Minister had decided to refuse to grant a visa to him.

82    The Minister’s decision to refuse to grant a protection visa to the applicant did not “in itself”, as the Minister said, “necessarily lead” to the applicant’s removal from Australia. The obligation, imposed by s 198 of the Act, does not arise until removal is “reasonably practicable”. Removal to another country cannot occur unless and until another country is willing to accept the applicant. No other country has, thus far, expressed a willingness to do so.

83    Whilst the applicant remains in Australia it is also possible that the Minister could exercise one or more of the discretions, conferred on him by the Act, thereby displacing the removal obligation imposed by s 198. In MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 Murphy J was called on to consider a similar allegation of ministerial error. In that case the Minister had refused an applicant a protection visa because he did not pass the character test. In his reasons the Minister said “that a decision to refuse … a protection visa on character grounds is not, in itself, a decision to remove [the applicant] from Australia.” His Honour held (at 80) that:

“68    The Minister was correct in stating in the Reasons that the decision to refuse the applicant a protection visa on character grounds was not ‘in itself’ a decision to remove him from Australia. This is so because (at any time prior to removal) it was open to the Minister to exercise his power under s 195A of the Act to grant the applicant a visa of a particular class, if satisfied that it was in the public interest to do so. It therefore cannot be said that a necessary consequence of the decision to refuse the protection visa was that the applicant would be removed to any country, let alone refouled to a country where he faced persecution. The facts of the present case illustrate this as the Minister granted a Bridging Visa to the applicant, which had the effect that he was released from detention and the statutory obligation to remove him from Australia was lifted.

69.    Even if the decision to refuse the applicant a protection visa did amount to a decision to remove him from Australia (which it did not), such a decision would not necessarily offend the non-refoulement obligation. The obligation requires that the applicant not be removed to any country where he has a well-founded fear of persecution for a Convention ground. He may, of course, be removed to a ‘safe’ country - that is, a country where he has no well-founded fear of such persecution. The Minister was correct in stating in the Reasons that his decision to refuse a protection visa is not ‘of itself’ incompatible with Australia's non-refoulement obligation.”

84    The statement made by the Minister in paragraph 10 was, therefore, correct. It is not indicative of error. Even had it been, it is far from clear that an error about the proper construction and application of s 198 could, in the circumstances, constitute jurisdictional error which would warrant the quashing of the Minister’s decision under s 501: cf AB v Minister for Immigration and Citizenship [2007] FCA 910 at [27].

ILLOGICALITY AND/OR IRRATIONALITY

85    The applicant claimed that, having regard to the material which was before the Minister, his decision that the applicant did not satisfy the character test and the exercise of the Minister’s discretion to refuse the applicant a visa were illogical and irrational.

86    The starting point for the applicant’s argument was the false premise that the only matter before the Minister which supported the conclusion that the applicant represented a danger to the Australian community for the purposes of s 501(6)(d)(v) was to be found in the adverse security assessment. That assessment (set out above at [64]) had been based, in part, on inconsistencies in statements made by the applicant to ASIO and the Department which founded conclusions that he was mendacious and would continue, in Australia, to support the activities of the LTTE. The applicant contended that, even if there had been such inconsistencies, it did not follow, logically, that the applicant was mendacious or posed a threat to the Australian community.

87    The first difficulty which confronts the applicant is that the Minister had before him, not only the adverse security assessment, but also the final appreciation. It was the final appreciation which provided the Director-General with the factual foundation for his adverse security assessment. As I have already said, that document is not in evidence and it is not open to infer that it did not provide the Minister with information which could lead him, reasoning in a logical and rational way, to the conclusion that the applicant had failed the character test.

88    The applicant sought to rely on what was said to be the majority view of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 628, that a jurisdictional error will occur where a tribunal makes “a critical finding by inference not supported on logical grounds.” This proposition was advanced in the minority judgment of Gummow ACJ and Kiefel J. The majority (Heydon, Crennan and Bell JJ) did not find error on the part of the Tribunal and closely circumscribed the “illogicality” and “irrationality” grounds of review. Crennan and Bell JJ said (at 647-8) that “ ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came … is one at which no rational or logical decision maker could arrive on the same evidence.” Their Honours continued (at 649-50) that:

“Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.” (Emphasis added).

89    In SZMDS the material on which the Tribunal acted was before the court. The majority concluded that, on that material, it was open to the Tribunal to form the view to which it came. Its conclusion was neither irrational nor illogical.

90    For present purposes what is important is that any finding of illogicality or irrationality giving rise to jurisdictional error must depend upon an assessment of the material which was before the decision maker. That analysis is not possible in the present case because the final assessment, on which the Minister acted, was not in evidence.

91    This ground was not strongly pressed at trial. It cannot be accepted.

ADEQUACY OF REASONS

92    Although the applicant contended that the reasons, provided by the Minister for his decision, lacked the necessary detail, he did not seek to suggest that this gave rise to jurisdictional error. Such a contention could not have been sustained consistently with the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212. The Court there held that s 501G(4) evinces a clear legislative intention that any deficiency in reasons cannot be relied on to challenge the validity of the decision to which they relate.

93    Any judgment about the adequacy of the Minister’s reasons must fall to be considered in the context of the Act. Although s 501G(1)(e) requires the Minister to provide an applicant with written notice which sets out the reasons for the Minister’s decision to refuse a visa under s 501(1), that obligation is qualified by the words in parenthesis: “(other than non-disclosable information)”. “Non-disclosable information” is defined, in s 5 of the Act, to mean, inter alia, information or material “whose disclose would, in the Minister’s opinion, be contrary to the national interest because it would prejudice the security…of Australia.” The Minister formed and expressed such an opinion in relation to ASIO’s final appreciation. As a result he was precluded from referring to any information contained in the assessment when providing reasons for his decisions. His decisions may not, therefore, be adjudged to be deficient to the extent that they fail to refer to material in the final appreciation. If, as his reasons suggest, the Minister made his decision exclusively on the basis of what was contained in the appreciation, he could do no more than he in fact did.

94    The applicant, in the alternative, sought an order in the nature of mandamus to require the Minister to provide reasons which satisfied the requirements of s 501G of the Act and s 25D of the Acts Interpretation Act 1901 (Cth). The Minister who made the decision is no longer a Minister of the Crown. I was informed that he remains a Member of Parliament but that he is now a Member of the Opposition in the House of Representatives. Even if it be assumed that he remains susceptible to an order of the kind sought (cf WAKJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1336 at [27]) and assuming that the reasons do not meet the statutory requirements, there remain a series of discretionary considerations which would have tended against the making of such an order. If, as I have held, any deficiency is caused by the limitation imposed on the Minister by s 501G(1)(e), it would be futile to make the order sought because the Minister could not comply with it consistently with his statutory obligations. Furthermore, the order has been sought at trial rather than at the interlocutory stage of the proceeding. Because none of the grounds of jurisdictional error, relied on by the applicant, have succeeded, the appropriate order is that the applicant’s application be dismissed. If an order for the production of further and better reasons were to be made as well and that order was subsequently complied with, the best that the applicant could hope for would be that the additional reasons provided some basis for alleging error in some future proceeding. The facilitation of such a situation would be contrary to proper case management principles which require that all issues be dealt with at trial and that multiple trials arising from the same events be avoided: see s 22 of the Federal Court of Australia Act 1976 (Cth) and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 489 (Gibbs J); and cf Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at 591-2.

95    In oral submissions the applicant developed a number of related arguments. His principal submission was that, given the paucity of reasons, it should be inferred that the Minister had failed to have regard to considerations which he was bound to take into account. The Minister was required to, but did not, explain why he had rejected the submissions advanced by the applicant. He could have done this, had he wished, without disclosing information contained in the final appreciation, for example, by referring to the terms of the adverse security assessment set out above at [64].

96    The suggestion that the Minister should have responded, in his reasons, to submissions made on behalf of the applicant, by referring to publicly available material may, immediately, be dismissed. Section 501G(1) of the Act and s 25D of the Acts Interpretation Act required the Minister to expose his reasons for decision subject to the qualification prescribed by s 501G(1)(e): cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 338 (Gaudron J); 346 (McHugh, Gummow and Hayne JJ). If, as his reasons suggest was the case, the Minister relied exclusively on facts appearing in ASIO’s final appreciation in coming to the view that the applicant had failed the character test, he was not required to refer to other reasons which might or might not have supported his decision but on which he did not rely in making it.

97    One of the purposes served by requirements that statutory decision makers give reasons for their decisions is the exposure of legal error. In an appropriate case the failure of a decision maker to refer in his or her reasons to a matter which he or she was bound to take into account might support an inference that the decision maker fell into error by overlooking that consideration. The difficulty which confronts the applicant in the present case is that he bears the onus of establishing that the Minister erred in the manner alleged. Without knowing the reasons that led to the Minister forming his adverse judgment, the applicant cannot point to direct evidence of error. Nor can error be inferred from the failure of the Minister to refer to “non-disclosable information” that some jurisdictional error has occurred.

98    This ground must fail.

THE SECTION 502 CERTIFICATE

99    The applicant’s challenge to the validity of the certificate which was given by the Minister under s 502 of the Act, depended on the success of one or more of his grounds which sought to impugn the Minister’s decision under s 501 of the Act. No additional grounds were relied on in relation to s 502.

100    The applicant’s attack on the Minister’s decision to issue the certificate must, therefore, also fail.

DISPOSITION

101    The application must be dismissed with costs.

Associate:

Dated:    21 February 2014