FEDERAL COURT OF AUSTRALIA

BSX15 v Minister for Immigration and Border Protection [2016] FCA 1432

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 4 December 2015 is dismissed.

2.    The applicant pay the first and second respondents’ costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

introduction

1    The applicant is a citizen of Iraq who arrived in Australia on Christmas Island without a visa on 31 October 2012. He was subsequently granted a bridging visa and lived in the Australian community. On 22 October 2013, because of the expiry of his bridging visa, the applicant was taken into immigration detention by officers of the Department of Immigration and Border Protection (the Department).

2    On 26 September 2014, the second respondent, the Director-General of Security (the Director-General), signed and dated an adverse security assessment in relation to the applicant (the Adverse Security Assessment) and authorised the provision of a copy of it to the Department.

3    This proceeding concerns the Adverse Security Assessment. The applicant applies under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) to quash the Adverse Security Assessment and to restrain the first respondent, the Minister for Immigration and Border Protection (the Minister), from having regard to it in making any decision concerning the applicant under the Migration Act 1958 (Cth) (Migration Act).

background

4    The applicant grew up in Adhamiyah, a suburb of Baghdad in Iraq. He completed primary school and the first year of high school.

5    The applicant claimed that he identified as a Kurdish Shia despite not being able to speak the Kurdish language. The area where he grew up, Adhamiyah, was a predominantly Sunni area and, following the outbreak of sectarian conflict in Baghdad in 2006, the applicant claims he was threatened causing him to leave Adhamiyah.

6    The applicant moved to Al-Shaab, another suburb of Baghdad which was majority Shia, with his soon to be wife whom he subsequently married. When in Al-Shaab his national identity card, which was from Adhamiyah, caused people to think that he was Sunni and on one occasion led to his detention. As a result the applicant moved to Damascus, Syria where he stayed until 2012.

7    Between 2006 and 2009, while in Syria, the applicant departed every 3 months, returning to Iraq in order to renew his Syrian visa. In July 2009 the applicant was registered by the UNHCR in Syria.

8    In May 2012 the applicant left Syria and went to Malaysia. From there he went to Indonesia and then, travelling by boat, arrived at Christmas Island.

9    After his arrival at Christmas Island, and from the time he was issued with a bridging visa until he was taken into immigration detention, the applicant lived in the Australian community.

10    On 22 October 2013, the applicant attended the offices of the Department in Melbourne to participate in an interview with officers of the Australian Security Intelligence Organisation (ASIO). The applicant arrived at 9.45 am for the interview, which was scheduled to commence at 10.00 am, but the interview did not commence until 12.10 pm.

11    The interview ended earlier than originally planned. At the conclusion of the interview the applicant was taken into immigration detention because his bridging visa had expired.

12    On 24 October 2013, ASIO provided a qualified security assessment in relation to the applicant to the Department. ASIO then conducted two further interviews with the applicant on 28 October 2013 and 24 January 2014 respectively.

13    On or about 26 September 2014, ASIO provided the Director-General with a Director-General’s briefing note (the Briefing Note), a classified statement of grounds and the Adverse Security Assessment which was unsigned and undated. On 26 September 2014, the Director-General approved the recommendation in the Briefing Note, signed and dated the Adverse Security Assessment and approved the provision of a copy of it to the Department.

14    On 30 September 2014, the Director-General furnished the Adverse Security Assessment to the Department. The Adverse Security Assessment informed the Department of its assessment that the applicant was “directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act 1958”.

the applicant’s application

15    In his amended originating application the applicant seeks judicial review of the Adverse Security Assessment on the following grounds:

(1)    it was made contrary to the requirements of procedural fairness;

(2)    its making was legally unreasonable;

(3)    it was made without taking into account the requirements of Security Assessment Determination Number 2 (Determination No 2).

16    The basis for the applicant’s claims for relief are set out in his amended statement of claim.

legislative framework

17    The operation of ASIO is governed by the ASIO Act.

18    Sections 7 and 8 of the ASIO Act relevantly provide:

7.    Director‑General

(1)     There shall be a Director‑General of Security, who shall be appointed by the Governor‑General and shall hold office, subject to this Act, on such terms and conditions as the Governor‑General determines.

…

8.    Control of Organisation

(1)     The Organisation shall be under the control of the Director‑General.

19    Section 17(1)(c) of the ASIO Act provides that the functions of ASIO include “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”.

20    Security is defined in s 4 as follows:

security means:

(a)     the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i)    espionage;

(ii)    sabotage;

(iii)    politically motivated violence;

(iv)    promotion of communal violence;

(v)    attacks on Australia’s defence system; or

(vi)    acts of foreign interference;

whether directed from, or committed within, Australia or not; and

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

(b)     the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

21    Part IV of the ASIO Act concerns security assessments. Section 35(1) defines a number of terms for the purpose of Pt IV including “adverse security assessment”, “security assessment or assessment” and “prescribed administrative action”. It relevantly provides:

adverse security assessment means a security assessment in respect of a person that contains:

(a)     any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b)     a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

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

prescribed administrative action means:

…

(b)    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; or

22    Section 36(1)(b) of the ASIO Act provides that:

(1)     This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to:

…

(b)     a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958) in respect of a person who is not:

(i)    an Australian citizen;

(ii)    a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or

(iii)     a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa; or

…

23    Section 65 of the Migration Act provides for the power to approve or refuse to grant a visa. It is thus a prescribed administrative action for the purpose of s 36(1)(b) of the ASIO Act.

24    Section 37 of the ASIO Act relevantly provides:

37.    Security assessments

(1)     The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

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

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

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

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

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

…

the relevant documents

25    There are three key documents which are relevant to the issues raised by the applicant as against the Director-General. They are the Briefing Note, a truncated statement of grounds (TSOG) and the Adverse Security Assessment.

26    Discovery was given by the Director-General of all documents relating to his decision to issue the Adverse Security Assessment. In doing so the Director-General made a claim for public interest immunity over a number of documents or parts of documents. The TSOG was produced by the Director-General as a result of a claim for public interest immunity over parts of the classified statement of grounds and discloses those parts of the classified statement of grounds which are not subject to such a claim. That is explained in an affidavit of Ms Kerri Hartland, at the time the Acting Director-General, who swore an affidavit for the purposes of the Director-General’s claim for public interest immunity. In it, she gave the following evidence about the TSOG:

(1)    the TSOG was prepared for the purpose of this proceeding and contains all of the information from the classified statement of grounds which, in the opinion of Ms Hartland, could be disclosed without prejudicing security;

(2)    in cases where ASIO officers assess that an individual is a threat to Australia’s national security, the Director-General is usually advised of this through a classified document known within ASIO as the classified statement of grounds which accompanies a briefing note to the Director-General. Ms Hartland says that, having regard to these documents and the underlying intelligence reporting typically referred to and listed in the footnotes of the classified statement of grounds, the Director-General then makes a decision as to whether an adverse security assessment should be furnished pursuant to Pt IV of the ASIO Act; and

(3)    having regard to the classified statement of grounds relating to the Adverse Security Assessment Ms Hartland determined that some of its contents may be disclosed to the applicant without prejudice to the national security. ASIO prepared a new document, the TSOG, which contains the unclassified portions of the classified statement of grounds.

27    The applicant initially challenged the Director-General’s claim for public interest immunity but subsequently abandoned his challenge save in relation to the redacted parts of one document, Determination No 2, which was subsequently produced in its entirety by the Director-General to the applicant: see BSX15 v Minister for Immigration and Border Protection [2016] FCA 230.

28    The Briefing Note, the TSOG and the Adverse Security Assessment were in evidence before me. As with the TSOG, the Briefing Note is partially redacted where the Director-General has made claims for public interest immunity.

29    The Briefing Note records, among other things:

(1)    under “Key Message” that ASIO assesses that the applicant is “identical with” Najm Abdullah (Mr Abdullah) and that the applicant has “intentionally tried to minimise and obfuscate the truth about his background, activities, associations and ideology to avoid prejudice in his security assessment” and continues:

Accordingly, ASIO assesses [the applicant] to be directly or indirectly a risk to security (within the meaning of s 4 of the ASIO Act), and that it would not be consistent with the requirements of security for [the applicant] to be granted an Australian visa. ASIO recommends that any application by [the applicant] for an Australian visa should be refused;

(2)    under “Contentious and/or Sensitive Issues” sets out a record of the security assessment interviews attended by the applicant with ASIO;

(3)    under “Background/Context” states that:

In making this assessment ASIO has taken into account relevant matters referred to in the Director-General’s Security Assessment Determination No. 2 dated 28 July 2010.

30    The applicant takes issue with a number of matters set out in the TSOG. They are addressed below. It is however relevant to note that the TSOG:

(1)    at [8] sets out the matters on which the assessment is based including the security assessment interviews conducted with the applicant and information referred to in the footnotes to the TSOG. The description of much of the information on which the assessment is based is not disclosed as it is subject to the Director-General’s claim for public interest immunity;

(2)    under the heading “Consequences to Security” records the following at [40]:

40.    On the basis of [the applicant’s] assessed involvement in politically motivated violence, recent and historical association with individuals of security concern, and efforts to obfuscate his terrorist connections, ASIO assesses [the applicant] presents an unacceptable risk of engaging in activities which are prejudicial to Australia’s security should he be granted a visa to remain in Australia.

(3)    under the heading “Matters taken into account” records the following at [41]:

41.    The matters taken into account in this assessment are relevant to security. Regard has been given to the requirements of procedural fairness and any relevant legislative tests, the currency, credibility, nature and authenticity of the information and sources available to ASIO, including what weight should be accorded to the available information. Only information with a reasonable nexus to the assessment subject has been taken into account.

31    The Adverse Security Assessment, after setting out the name of the Commonwealth agency, the purpose of the security assessment and the details of the applicant, provides:

4.    Assessment

The Australian Security Intelligence Organisation (ASIO) assesses that [the applicant] is directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act 1958.

5.    Recommendation

ASIO recommends that any application by [the applicant] for an Australian visa should be refused.

the effect of the director-general’s claim for public interEst immunity

32    Because it impacts on a consideration of the claims made by the applicant, it is necessary to address the Director-General’s claim for public interest immunity.

33    The practical effect of the Director-General’s claims for public interest immunity is that only part of the information to which the Director-General had regard in issuing the Adverse Security Assessment is available to the applicant and the Court. The applicant submitted that I would draw no inference from the fact that, because of the public interest immunity claims, some of the text in the TSOG and other documents before the Court is not produced. He accepted that the claims for public interest immunity were properly made but submitted that their effect is that a claim not to produce before trial was properly made but that does not mean that redacted material and other documents cannot be put into evidence at the trial by the Director-General.

34    That submission should be rejected. The authorities establish that where a claim for public interest immunity privilege is properly made there will be evidence that is not available to an applicant to assist in establishing his or her case. That may make it very difficult for an applicant to discharge his or her onus of proof but that is the effect of such a claim properly made. The effect of the claim is not, as the applicant submitted, limited to a properly made claim not to produce documents before trial. In my opinion, the Director-General’s claim, which the applicant conceded, with the exception of one document, was properly made, precludes that material from disclosure by the Director-General in the proceeding.

35    In Jaffarie v Director-General of Security (2014) 226 FCR 505 (Jaffarie) a Full Court of this Court considered two issues: a claim for public interest immunity made by the Director-General, which was upheld, and whether the Director-General should be made available for cross examination. In considering the latter issue Flick and Perram JJ said at [30]:

Counsel for Mr Jaffarie accepted that he could not cross-examine the Director-General, even on issues going to the merits of the grounds of review in the substantive proceeding, if to do so would disclose those matters the subject of the claim for privilege. Even if such evidence could be of assistance in the resolution of the legal merit of the arguments found within the grounds of review, the claim for privilege – it was accepted – would have the consequence that such evidence could not be given: cf. Hennessy v Wright (1888) 21 QBD 509. A “successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument”: Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61 per Mason J. Similarly, in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532 at [5] Gleeson CJ noted that the “consequence of success of such a claim is 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”.

36    The view I have expressed was also reached by Tracey J in Plaintiff M46 of 2013 v Minister for Immigration and Border Protection [2014] FCA 90 at [66]. His Honour concluded that the final appreciation relied on by the Director-General in that matter, which I understand to be the equivalent of the document now referred to as a classified statement of grounds, was subject to a claim for public interest immunity. In providing reasons for that conclusion at [31] Tracey J referred to Parkin v O’Sullivan (2009) 260 ALR 503 (Parkin) in which Sundberg J held that documents that explain ASIO’s reasons for making an adverse security assessment were in a class of documents which require protection from disclosure because if they were required to be produced ASIO would be disclosing information about its knowledge, assessments and methodology to the very people to which it is most important national security not be disclosed. Tracey J noted that Besanko J had followed Parkin in SBEG v Secretary, Department of Immigration and Citizenship (2012) 291 ALR 281 (SBEG) at 286 holding, in turn, that “final appreciations leading to adverse security assessments fall within a class of documents which, in the public interest, ought not to be disclosed”. At [32] Tracey J held that the final appreciation which he was considering fell within the class of documents recognised in Parkin and SBEG which ought not be disclosed in the public interest and in doing so agreed with the reasons of Sundberg J in Parkin.

37    At [37] and [38] Tracey J set out the consequence of upholding the claim for public interest immunity observing that:

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.

the procedural fairness ground

The applicant’s submissions

38    In his amended statement of claim the applicant alleges at [22] that the Adverse Security Assessment was made in breach of the rules of natural justice. This is said to be because of adverse findings made in the TSOG that:

(1)    there was no, or alternatively no sufficient, information given to the applicant to fairly put him in a position where he could make submissions on the finding upon which the Adverse Security Assessment was based, being that the applicant was identical to Mr Abdullah; that he had minimised and obfuscated the truth about his background, his activities, and his ideology; and that he had been involved in politically motivated violence;

(2)    he was given no, or alternatively no sufficient, information to fairly put him in a position where he could make submissions about a particular telephone number; a man named “Wissam” who had a son named “Khattab”; and any other recent association taken into account by the Director-General;

(3)    he was given no opportunity to make a submission about whether he had failed to volunteer any information about a man known as “Ismail” or whether it was plausible that he did not know Ismail’s last name when he had grown up in the same neighbourhood as Ismail and went to school with Ismail’s brother and when the Adverse Security Assessment was based on findings that the applicant had historical association with individuals of security concern and that he had minimised and obfuscated those associations and those findings were based on findings that the applicant had failed to volunteer information about Ismail and that it was implausible that he did not know Ismail’s last name;

(4)    to the extent any finding was based on reasoning that, when asked whether he knew anyone known as “Nabil” he said the only Nabil he knew was a taxi driver in Baghdad, he had no opportunity to make a submission on that issue; and

(5)    to the extent any finding was based on reasoning that the applicant denied ever having a car in Iraq, he had no opportunity to make a submission on that issue.

39    The applicant submitted that the making and communication of the Adverse Security Assessment was apt to adversely affect his interests. Accordingly, he submitted that the power to make and communicate an adverse security assessment was, as a matter of statutory interpretation, conditioned by the obligation to accord procedural fairness and the question to be determined is the content of that obligation in the circumstances of this case.

40    The applicant relies on the judgment in Jaffarie but in doing so he points out two matters. First, he contends that there is an important factual distinction between his case and Jaffarie namely that in Jaffarie ASIO had prepared a set of classified and unclassified reasons and the Minister, who was the decision maker, had disclosed the unclassified reasons to Mr Jaffarie prior to making his decision. Here, the applicant submitted that the TSOG was not disclosed to him prior to the Adverse Security Assessment being made and communicated and the only relevant disclosure made was what was said to him at the three security assessment interviews. Secondly, he notes that the central issue which was in dispute on the question of procedural fairness in Jaffarie, whether information which was ultimately not the subject of a claim for public interest immunity should have been disclosed to Mr Jaffarie earlier, does not arise in this case.

41    Subject to those matters, the applicant relies on Jaffarie at [113] where Flick and Perram JJ observed that in the context of decisions being made about national security, an argument going to denial of procedural fairness is to be resolved by “the more generally expressed touchstone as to whether the person has – on balance – been given sufficient information to fairly put him in a position where he can make meaningful submissions” and their Honours’ further observations that:

In the present case, and notwithstanding the fact that further information was disclosed to Mr Jaffarie during the hearing, the “Unclassified Reasons” put him in a position whereby he could make meaningful submissions as to the issues of which he was aware, including:

•    his involvement with people smuggling;

•    the finding that he had “concealed and protected his involvement in people smuggling activities by providing false and misleading information”; and

•    his “association with individuals involved in people smuggling”.

As the course of the hearing revealed, Mr Jaffarie could have been told at the outset (for example) of his alleged involvement with Mr Abbas. It is regrettable that the information which was ultimately disclosed to Mr Jaffarie was not disclosed at the outset. As full and as frank a disclosure of such information as is consistent with maintaining a claim for public interest immunity privilege should be made at the outset; the disclosure of as much information as possible should not depend upon judicial intervention to “encourage” the disclosure of information which could have been, and should have been, disclosed voluntarily. In different circumstances, a failure to disclose at the outset all of that information which could be legitimately disclosed may attract a different conclusion. But, on balance, it is concluded that enough was disclosed to enable Mr Jaffarie the opportunity to make meaningful submissions.

(applicant’s emphasis)

42    The applicant submitted that there was no basis to make the findings in the TSOG about which he complains because there was no or insufficient information on which to base the findings or because he was not given an opportunity to make a submission about the findings.

43    The applicant submitted that ASIO should have disclosed that it was minded to assess that he was identical to Mr Abdullah and that it is abundantly clear from the Briefing Note and the TSOG at [38] that that conclusion, and whatever ASIO knew about Mr Abdullah, were central to the assessment of the risks posed to security by the applicant. The applicant further submitted that it was never put to him that he was known as or uses the name Mr Abdullah and that he had no opportunity to make any submissions on the question or to provide evidence that he was not Mr Abdullah.

44    The applicant submitted that the TSOG discloses two grounds for the Adverse Security Assessment:

(1)    that ASIO assessed that he has made deliberate efforts to hide, minimise and obfuscate his terrorist connections in the course of his security assessment and had been deliberately untruthful with regard to important information about his background, activities, associations and ideology which may be prejudicial to his security assessment; and

(2)    on the basis of the applicant’s assessed involvement in politically motivated violence, recent and historical association with individuals of security concern and efforts to obfuscate his terrorist connections, ASIO assessed the applicant presents an unacceptable risk of engaging in activities which are prejudicial to Australia’s security should he be granted a visa to remain in Australia.

45    The applicant submitted that he was given no reasonable opportunity to make any submissions on the conclusions that he had terrorist connections and had hidden, minimised and obfuscated them; that he had been or was currently involved in politically motivated violence or that he had been deliberately untruthful with regard to important matters.

46    In relation to the balance of the matters pleaded at [22] of the amended statement of claim the applicant made the following submissions some of which are also relevant to the applicant’s second ground that the Adverse Security Assessment was legally unreasonable.

47    The applicant submitted that TSOG [27] refers to the applicant knowing someone named Wissam who had a son named Khattab and might sometimes be known as Abu Khattab. TSOG [27] provides:

27.    [The applicant] told ASIO he knew someone named Wissam whom he had met in Damascus and knew to be originally from Adhamiyah in Iraq. [The applicant] said Wissam had been in contact with him about the prospect of travelling to Australia. He said Wissam had a son named Khattab and might sometimes be known as Abu Khattab. […].

(footnotes omitted)

48    The applicant submitted that there was only one exchange, which occurred at the third security assessment interview, concerning Wissam and in that exchange he was clear that the name Abu Khattab is used by “lots of people” and that, because Wissam’s son’s name was Khattab, he “might call himself Abu Khattab”. The applicant submitted that there was no evidence to support the finding that “Wissam had a son named Khattab and might sometimes be known as Abu Khattab”. The applicant contended that he was not given any information to fairly put him in a position to make meaningful submissions concerning whether he said that the person he knew as Wissam was also sometimes known as Abu Khattab.

49    The applicant referred to the TSOG at [30] to [32] which address the applicant’s association with Ismail. Those paragraphs provide:

30.    [The applicant] told ASIO about an individual named Ismail who was an AQI figure in Syria and Iraq. [The applicant] identified Ismail as a member of AQI and said he would see Ismail at various locations in Damascus after he moved to Syria in 2006. He said he had grown up in the same neighbourhood as Ismail and had been in the same year as Ismail’s brother Rumaith at school but they were not friends. [The applicant] said Ismail was involved in communal violence against Shia from Adhamiyah and he had been told Ismail was responsible for the attack on his house that forced him to relocate to Syria. [The applicant] said he had provided information on Ismail to a childhood friend named Nashat al-Ameri who was cooperating with US forces in Iraq. [The applicant] said he once met with unidentified US officials about Ismail in 2009. [The applicant] said al-Ameri arranged this meeting. [The applicant] denied he had ever been an associate of Ismail.

31.    ASIO assesses [the applicant’s] claims about Ismail are untrue. [….]

32.    [The applicant] did not mention knowledge of Ismail until his second security assessment interview with ASIO. [The applicant] prefaced his comments about Ismail by saying he was concerned about something from his past which he thought might impact on his security assessment. However, he did not volunteer information beyond that specifically requested. This suggests [the applicant] deliberately withheld information about Ismail and casts doubt on his credibility of the information he provided about Ismail. [The applicant] also implausibly claimed to not know Ismail’s last name despite growing up with Ismail in the same neighbourhood and attending school with his brother.

(footnotes omitted)

50    The applicant submitted that the first sentence of [32] indicates that he did not mention his knowledge of Ismail until his second security assessment interview. However, the applicant contended that, given the circumstances in which the first security assessment interview took place and the manner in which it was brought to an end, there was no opportunity to do so. In relation to the second sentence of [32], that he prefaced his comments about Ismail by saying he was “concerned about something from his past which he thought might impact on his security assessment”, the applicant submitted that first, he never said that there was anything which caused him to be concerned about an impact on his security assessment and secondly, while he did identify something from his past which worried him, that matter was not concerned with Ismail. Rather, it was a matter which he disclosed at his second interview concerning a sexual encounter he had with a married woman in Syria which was videotaped and which caused him and his family problems.

51    The applicant submitted that the findings that:

    he did not volunteer information beyond that specifically requested is contrary to the objective evidence which discloses that he volunteered information about Ismail; and

    he “implausibly” claimed to not know Ismail’s last name, despite growing up with him in the same neighbourhood and attending school with his brother, could not withstand common sense given it occurred some 24 years before the interview and 16 years before the events in question.

52    The applicant also referred to TSOG [16] which provides:

16.    During interview, [the applicant] told ASIO he grew up in his local neighbourhood with other individuals he knows have since become involved in extremist activities or conflict in Iraq but denied personally having any association with AQI or involvement in such violence. When asked about his contacts, and particularly if he knew anyone known as Nabil, [the applicant] told ASIO that the only Nabil he knew was a taxi driver from Baghdad.

(footnotes omitted)

53    The applicant submitted in relation to the statement at TSOG [16] that, when the applicant was asked about his contacts and particularly if he knew anyone known as Nabil, he told ASIO that the only Nabil he knew was a taxi driver from Baghdad. The applicant noted that the only exchange concerning Nabil occurred at the third security assessment interview and he submitted that, on a fair reading of the relevant questioning, he said that he only had one friend by the name of Nabil. The applicant further submitted that during the questioning the interviewer travelled between the concepts of “friend” and “associate” and failed to identify tense and timeline in the questions being asked but that once there was clarification of the tense, to identify the time before the applicant was in Syria, and that the question went beyond friends he responded “there are lots of Nabils in the neighbourhood”. The applicant submitted that he was not given any information to fairly put him in a position where he could make meaningful submissions concerning his association, if any, with any person named Nabil prior to leaving Iraq in 2006 or the contention that the statement attributed to him had been falsely made by him.

The Director-General’s submissions

54    The Director-General submitted that, while procedural fairness rules are not excluded by the ASIO Act, attention must be given to the terms of the Act to determine their content. In particular the Director-General relied on the terms of ss 36(1)(b), 37(2) and 38 in support of a submission that the content of procedural fairness is limited in relation to adverse security assessments concerning the exercise of powers under the ASIO Act relating to non-citizens who do not hold permanent visas.

55    The Director-General noted that, while security assessments are issued for a wide range of different purposes, s 65 of the Migration Act requires that the grant of a protection visa must be refused if an adverse security assessment has been made. As a result, by operation of s 189 of the Migration Act, that person must be detained until removed from Australia. In light of that, the Director-General submitted that, as a practical matter, an adverse security assessment in relation to an applicant for a protection visa will often have the consequence that the subject of the assessment is thereafter detained pending removal and that is a factor that would tend to increase the content of the duty of procedural fairness in carrying out a security assessment.

56    The Director-General then submitted that there are three matters that would tend to reduce the content of the obligation to afford procedural fairness in relation to adverse security assessments. They are:

(1)    first, ASIO’s functions under s 17 of the ASIO Act which revolve around the definition of “security” as defined in s 4, the terms of which reveal that much of ASIO’s work is necessarily secret. The Director-General submitted that this has been recognised in the authorities and thus the starting point in determining ASIO’s obligation to disclose information should be that intelligence information is ordinarily kept secret. The Director-General submitted that it would be surprising if procedural fairness required that, as a condition of the valid exercise of power to issue an adverse security assessment, ASIO would disclose the very information that would be protected from compulsory disclosure by a claim of public interest immunity in the court. Thus, the Director-General submitted that the content of ASIO’s obligation in relation to procedural fairness must accommodate the fact that information that is relevant to an adverse security assessment frequently will not be able to be disclosed on national security grounds and that the greater the level of particularity at which ASIO is required to disclose issues relevant to a security assessment the greater the danger that information about ASIO’s knowledge, or lack thereof, would be revealed and the more likely it is that the information would be required to be withheld on national security grounds. For that reason, and relying on the observations of Flick and Perram JJ in Jaffarie at [113], the Director-General submitted that the nature of ASIO’s function suggests that any requirement, as a matter of procedural fairness, to identify the “issues” the subject of an adverse security assessment should require the disclosure of those issues at a high level of generality;

(2)    secondly, the Director-General submitted that the issues involved in such an assessment are fluid, they evolve as information is obtained and evaluated and, except at a high level of generality, cannot meaningfully be separated from the mental processes involved in evaluating and forming provisional views on the information that is obtained during the assessment process;

(3)    thirdly, the Director-General submitted that intelligence material, by its very nature, will often require “evaluative judgments to be made about the weight to be given to diffuse, fragmentary and even conflicting pieces of intelligence”. The Director-General contended that those judgments involve a “synthesis that may make it impossible to isolate for comment a set of discreet ‘issues’ upon which the decision to issue the assessment turns”. He contended that is another factor that suggests that, to the extent issues can be isolated, it can only be done at a high level of generality.

57    The Director-General submitted that, if not for the practical implications of an adverse security assessment for the liberty of a non-citizen within Australia, these factors, taken together with the scheme of the ASIO Act, would suggest that procedural fairness requires little, if any, disclosure by ASIO of the basis for an adverse security assessment. However, the Director-General submitted that he accepts that procedural fairness will have greater content where an adverse security assessment may have the practical result that the subject of the security assessment is detained. For that reason the Director-General submitted that, in those cases, ASIO ordinarily conducts a security assessment interview.

58    The Director-General submitted that it follows that ASIO will exceed the minimum requirements for procedural fairness if it conducts an interview with the subject of the assessments during which it:

(1)    informs a person that he or she is being assessed for security purposes in connection with his or her application for a visa; and

(2)    to the extent that to do so is consistent with the interests of national security:

(a)    directs the attention of the person to the general issue of concern to ASIO; and

(b)    gives the person an opportunity to address any adverse information, personal to the subject, that is credible, relevant and significant.

59    The Director-General submitted that to do anything further would give insufficient weight to Parliament’s clear intention that non-citizens without permanent or special purpose visas not be provided with the “grounds” of an assessment or the information on which it is based; would create an undue risk of the disclosure of information that would adversely affect ASIO’s functions in protecting national security; would risk rendering security assessments invalid by reference to a procedural standard the content of which ASIO officers could not reasonably determine; and would require ASIO officers to disclose their thought processes. The Director-General relies on Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 (Plaintiff M47) in support of this submission.

60    Finally, the Director-General submitted that there was no denial of procedural fairness in this case. He submitted that as procedural fairness does not require disclosure of information that would harm the national security, and as the applicant did not challenge the public interest immunity claim over the classified statement of grounds, the Court must infer that the TSOG discloses, to the extent possible, consistent with the requirements of security, the basis on which the Adverse Security Assessment was made. The Director-General contended that it was plain from the redactions that the Adverse Security Assessment was based in part on information not disclosed in the TSOG and that there can be no complaint that failure to disclose the content of the redacted sections of the classified statement of grounds, or the documents on which those sections were based, amounts to a denial of procedural fairness because such a complaint would be inconsistent with the applicant’s concession that the claims for public interest immunity were properly made.

Consideration

61    It was not in dispute that ASIO was required to afford procedural fairness to the applicant in undertaking the Adverse Security Assessment. The issue is the content of that obligation.

The relevant authorities

62    The content of the obligation to provide procedural fairness in the context of an adverse security assessment has been previously considered by the High Court and this Court.

63    The leading authority is Plaintiff M47/2012 which concerned a Sri Lankan national who entered Australia on a special purpose visa which then expired. Thereafter he did not hold a visa and was an unlawful non-citizen. Subsequently a delegate of the Minister found that the plaintiff was a refugee within the meaning of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967). Despite this, the delegate did not grant the plaintiff a protection visa because he did not meet the requirements of Public Interest Criterion 4002 (PIC 4002), which required that an applicant for a protection visa not be assessed by ASIO as “directly or indirectly a risk to security, within the meaning of s 4 of the [ASIO Act]”, as ASIO had made such an assessment. On an application for review, the Tribunal affirmed the delegate’s decision.

64    At the time of their respective consideration, neither the delegate nor the Tribunal had the security assessment before it. At the Tribunal hearing the plaintiff had claimed that he had not been interviewed by ASIO prior to the issue of the assessment and had therefore been denied procedural fairness. An interview with the applicant was then conducted by officers of ASIO in November 2011 in the presence of his lawyer. On 9 May 2012 a further security assessment issued to the same effect as the earlier assessment. The parties treated the earlier assessment as superseded.

65    One of the questions reserved for the Full Court of the High Court in the special case was whether in furnishing the security assessment in that case the Director-General failed to comply with the requirements of procedural fairness. The plaintiff contended that he was denied procedural fairness because the ASIO officers who conducted the interview did not put to him specific allegations concerning his involvement with, and support for, the LTTE and the likelihood that he would continue to support that organisation. While the security assessment was not in evidence there was an affidavit from the Director-General that an opinion was formed by ASIO that the plaintiff remained supportive of the LTTE and would likely continue to support LTTE activities of security concern from Australia.

66    Seven separate judgments were delivered but each justice of the Court who determined the question of procedural fairness (Gummow, Heydon, Crennan, Kiefel and Bell JJ; French CJ and Hayne J not deciding) reached the same conclusion, holding that there was no denial of procedural fairness as alleged by the plaintiff.

67    The leading judgment on the issue is that of Kiefel J, with whom Crennan J agreed at [380]. Kiefel J found that there was no denial of procedural fairness to the plaintiff. Her Honour addressed the issue at [413]-[415]:

413.    In these proceedings, the plaintiff contends that he was denied procedural fairness because the officers of ASIO who conducted the interview did not put to him specific allegations concerning his involvement with and support for the LTTE and the likelihood that he would continue to support that organisation. However, these matters were largely in the nature of opinions formed by the officers and as such were not required to be put before the plaintiff for comment.

414.    The defendants accept that the ASIO officers were required to afford the plaintiff procedural fairness and that that obligation extended to directing the plaintiff's attention to the issue of concern to ASIO – in this case, his role in the LTTE – and to giving him an opportunity to address that issue and to advance any evidence or material relevant to it. The defendants contend that obligation was fulfilled.

415.    The defendants point out that: the plaintiff was legally represented at the interview; the interview was lengthy; the plaintiff's attention was directed to the issue of concern to ASIO, namely his association with and support for the LTTE; and he was given ample opportunity to respond to that issue. A reading of the transcript of the interview confirms the correctness of these submissions. There was no denial of procedural fairness.

(citations omitted)

68    In coming to the view that the matters complained of by the plaintiff were largely in the nature of opinions formed by the officers of ASIO and thus were not required to be put before him for comment, her Honour refers (in a footnote) to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [21]-[22] where the High Court cited from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592 to the effect that a decision maker is not obliged to expose his or her mental processes or provisional views for comment before making the decision in question.

69    Gummow J considered the question of procedural fairness at [139] to [144] and held at [144] that there was no denial of procedural fairness. In coming to that conclusion Gummow J referred to the fact that the security assessment process included an interview which went for about five hours, at which the plaintiff’s lawyer and a translator were present, that there were opportunities for breaks during the interview and that the plaintiff was free to consult privately with his legal advisor. His Honour also observed that the transcript of the interview disclosed that the plaintiff was given the opportunity to provide information in relation to the matters which fell within part of the Director-General’s assessment and that it was put to him on at least six occasions that he was changing his story, giving an incomplete account on important issues and failing to explain discrepancies and that he was told at one point that his honesty was not “looking great”.

70    Heydon J considered the issue of procedural fairness at [244] to [253]. His Honour observed that the plaintiff had attended a lengthy interview, accompanied by his lawyer, that he was given the opportunity to take breaks as required and to explain obscurities and inconsistencies in his evidence. His Honour also noted that there was only one matter that the plaintiff alleged that the ASIO officers had not raised with him and that was the assessment that the plaintiff remained supportive of the LTTE and its use of violence to achieve its political objectives and that he would likely continue to support LTTE activities of security concern even from Australia. His Honour held at [253] that it was highly unlikely that the plaintiff’s position would be different if the interviewers had put that allegation to him by saying "[w]e may reach that conclusion. What do you say to that?" His Honour said:

… There was no obligation on the interviewers to ask the plaintiff: "We know you deny ever having supported the LTTE. But in case we disbelieve you on that and believe that you did support the LTTE in the past, do you remain supportive?" The Commonwealth correctly submitted that questioning of that kind would have been "futile", "utterly pointless" and "farcical". It follows that the interviewers did not in substance deny the plaintiff procedural fairness in the manner alleged.

71    Bell J considered the question of procedural fairness at [491] to [505]. After reciting the relevant facts, summarising the relevant provisions of the ASIO Act and setting out the defendants’ submissions in relation to the effect of those provisions on the obligation to provide procedural fairness, her Honour held at [498]:

The statutory framework within which an administrative decision is made is of course critical to the assessment of the content of procedural fairness. So, too, is consideration of the particular circumstances of the case. That consideration in this case reveals that the plaintiff's challenge is without substance. This conclusion makes the special case an inappropriate proceeding in which to consider the extent of any curtailment of the obligation of procedural fairness in the conduct of DIAC security assessments by reason of ASIO's statute and the nature of its intelligence work.

(citations omitted)

72    Her Honour did not need to determine the effect of the statutory framework on the content of the obligation to provide procedural fairness because she determined that a consideration of the facts of the case led to a conclusion that the plaintiff’s allegation that he was denied procedural fairness was without substance.

73    In Leghaei v Director-General of Security (2007) 241 ALR 141 (Leghaei) a Full Court of this Court (Tamberlin, Stone, Jacobson JJ) considered the content of the obligation to afford procedural fairness in the context of a security assessment. In that case, the appellant had argued that the primary judge was in error in concluding that national security considerations reduced the content of that obligation to “nothingness”. At [46] their Honours recognised that it was generally accepted that the law attaches importance to the need to bring to the attention of a person affected by a decision the critical issue or factor on which the decision is likely to turn so that the person can have an opportunity to deal with the issue, citing Kioa v West (1985) 159 CLR 550 at 587, 628. Their Honours further observed that ordinarily that obligation would not be discharged by a “general and unfocused invitation to make submissions” but rather that the “specific grounds on which the decision is likely to turn should be put to the person so that he or she can direct submissions to that issue”. But their Honours continued at [48] as follows:

However, it is well recognised that reasons of national security may make it impossible to disclose the grounds on which the executive propose to act: Salemi v Mackellar (No. 2) (1997) 137 CLR 396 at 421. Thus, as Lockhart J said in Amer v Minister for Immigration, Local Government and Ethnic Affairs (FCA, Lockhart J, 19 December 1989, unreported) (Amer No. 2) at 1:

The case raises the old but important question for the courts of balancing two aspects of the public interest which have a potential for conflict, namely, that a party is entitled to know the case he has to meet yet the furtherance of the national interest may require that certain elements in the case should be withheld from him.

And at [50]:

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

74    Their Honours concluded at [53] that in the case before them the primary judge was right to “strike the balance in favour of the protection of the public interest in national security” because of the weight he gave to the unchallenged evidence of the Director-General.

75    In Sagar v O’Sullivan (2011) 193 FCR 311 (Sagar) two applicants about whom adverse security assessments had been made by the Director-General sought to have the Director-General’s decision quashed and sought a declaration that the decision was not made in accordance with law on grounds that included an allegation that the Director-General denied them procedural fairness. There was no evidence before the Court to support the allegations made by the applicants. After noting the lack of evidence Tracey J observed at [71] that:

… 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.

76    At [72] his Honour said:

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.”

…

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”.

77    And at [73] Tracey J concluded:

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.

Was the applicant denied procedural fairness?

78    In my opinion, in light of the authorities and for the reasons that follow, the applicant was not denied procedural fairness in the making of the Adverse Security Assessment.

79    First, the applicant attended three security assessment interviews:

(1)    the first took place on 22 October 2013 commencing at about 12.10 pm and concluding at 1.57 pm, the second took place on 28 October 2013 commencing at 10.07 am and concluding at 2.54 pm and the third took place on 24 January 2014 commencing at 10.26 am and concluding at 2.45 pm;

(2)    that is, the applicant attended approximately 11 hours of interview with ASIO officers;

(3)    the applicant’s lawyer was present at the third interview;

(4)    the applicant was given the opportunity, at his election, to take breaks during the course of the each of the interviews. For example at the first interview one of the interviewers said:

If you want to take a break at any time, be sure to tell us.

(5)    the applicant was also given an opportunity, at his election, to confer with his lawyer who was present at the third interview. At that interview, one of the interviewers said:

The next thing is to just make sure that you understand that this interview is voluntary, which means that you can choose not to participate. So that’s your decision and if you need to confer with your legal representative, that’s okay.

(6)    there were breaks taken at each interview including at the third interview so that the applicant could confer with his lawyer;

(7)    at each of the interviews, the applicant was informed about their purpose namely to assist ASIO to provide advice to the Department about a security assessment of the applicant and whether or not he was a risk to Australian national security. For example, at the first interview one of the interviewers said:

The purpose of this interview is to assist ASIO in providing a security assessment to immigration on whether or not you are a risk to Australian national security.

At the second interview one of the interviewers said:

What we’re here to do today is provide – we need to talk to you about some parts of your story. My department, ASIO, we provide advice to immigration on all visa applicants; so all people coming to Australia.

And after explaining ASIO’s role the interviewer said:

The purpose of this interview is to assist ASIO in providing a security assessment to immigration. The advice is on whether or not you are a risk to Australian national security. It is not ASIO’s role to assess whether you meet the criteria for a visa. The decision rests with immigration. The reason for our interview is to address unresolved matters and provide an opportunity for you to put forward your case in response to some of the critical issues or factors. During the course of the interview we will ask questions about your background, activities and associations. Your participation in this interview will assist ASIO in providing security advice to immigration. As I said at our last interview it’s important to note that today is voluntary and if you want to finish, we can. Talking, asking questions and answering questions can get tiring. So if you want a break, let us know.

Similar information as to purpose of the interview was provided at the third interview;

(8)    the applicant was informed of the need to provide “honest and fulsome answers” to the questions and that a failure to do so could prejudice ASIO’s advice to the Department if they could not “resolve all security concerns”;

(9)    the applicant was invited to clarify or expand upon matters raised during the interview. For example towards the end of the second interview one of the interviewers asked the following questions:

Are there any other issues or is there anything that was said during the interview that you wish to clarify or expand upon?

And:

Is there anything in your statement or visa application that you wish to classify or expand upon?

And:

Have you withheld any information form ASIO on the grounds that it could be bad to your security assessment?

And:

Is there anything you have said that you now wish to change?;

(10)    the interviews were detailed, canvassing many issues and in some cases exploring the same issue on a number of occasions.

80    The applicant was clearly aware of the purpose of the interviews, was not forced to participate but did so voluntarily and was given the opportunity to take breaks and to confer with his lawyer when present as required, which the applicant did. So far as the form and procedure adopted at the interviews was concerned there can be no complaint made that there was a failure to afford procedural fairness.

81    Further, the interviews were detailed. I have had the benefit of reviewing the transcript of the three security assessment interviews. The interviewers canvassed many issues, often returning to the same issue on more than one occasion. The applicant was given the opportunity to answer questions as fulsomely as he wished and he was given the opportunity to provide further information on any topic or issue canvassed at the interviews or on any other matter he thought was relevant. Because of the requirements of national security ASIO was only required to put the applicant on notice of the issues of concern at a general level. In my view it did so.

82    Both parties rely on Jaffarie at [113]. It is clear that the Director-General, via the three security assessment interviews, put the applicant in a position where he could make “meaningful” submissions on the issues of which he was aware. However, to the extent any conclusion is underpinned by information which is the subject of a claim for public interest immunity, procedural fairness would not require disclosure of that information.

83    Notwithstanding this conclusion, I turn then to consider the particular issues raised by the applicant. In that regard it is relevant to recall that in M47/2012 Kiefel J, with whom Crennan J agreed, held that the obligation to afford procedural fairness required the Director-General to direct, in that case the plaintiff’s attention, to the issue of concern. The same is required here but that obligation does not require the Director-General to descend into granular detail about the issues or to set out his specific concerns. As the Full Court held in Leghaei to require that level of disclosure would be contrary to the interests of national security.

84    It is not the case, as submitted by the applicant, that procedural fairness required him to be given an opportunity to comment on the conclusions based on answers given by him at the security assessment interviews. Those conclusions were largely matters of opinion not required to be put to the applicant for comment: see Plaintiff M47 at [413] per Kiefel J. Further, I accept the submission of the Director-General that if procedural fairness required an opportunity to be heard as to the conclusions to be drawn on evidence at a hearing, this would lead to an infinite series of hearings about hearings or endless receipt and consideration of submissions.

85    The applicant submitted that, based on the judgment of Heydon J, Plaintiff M47 can be distinguished from his circumstances. He submitted the situation identified by Heydon J does not arise in his case because on the issues of politically motivated violence or identity with Mr Abdullah the type of matters put to the plaintiff in Plaintiff M47 were not put to him. That is he submits that questions of sufficient specificity were not put to him about the issues that would then make a question of the nature posed by Heydon J at [253] of M47/2012 futile. The applicant further submitted that the Court would not infer, merely by the absence from the TSOG of information on those questions, that there was nothing that could have been put to the applicant for response and submissions on those issues. I disagree. In my view, this is clearly a case where there is no evidence that would have been provided had the ASIO officers asked the questions the applicant asserts they should have asked.

86    Insofar as the applicant alleges that he was not given an opportunity to make submissions on the conclusion that he had terrorist connections which he had hidden or obfuscated or that he had been or was currently involved in politically motivated violence:

(1)    the applicant was asked in the interviews about Al Qaeda, groups affiliated with Al Qaeda and the Free Syrian Army. For example:

(a)    at the second interview the following exchange took place, in connection with his knowledge of Ismail and Al Qaeda:

Q180.    Did he go by any other names?

A.    We only knew him as Ismail.

Q181.    Did Nashad say that he was Al Qaeda?

A.    Yeah, it’s well-known in Asamiya that Ismail was Al Qaeda because he hurt a lot of people. He drove a lot of people out of – because of the threats.

…

Q183.    Was there anyone else that you knew or that you were aware of in Asamiya that was either associated with or a member of Al Qaeda?

A.    Yeah, there were a lot of them, a lot of them. A lot of them were in Syria and went back to Iraq but they resided in Al-Ramadi(?) province.

(b)    at the third interview, the following exchanges took place:

Q168.    It’s really important, because we have information to say that you were involved in this group and we know some of the other things that the group was doing.

A.    Do you think I’m one of them?

Q169.    Well, that’s what we’ve got to find out.

A.    Ask me as many questions.

Q170.    But from what you’re saying, you’re not disclosing any real contact with that group.

A.    For sure I don’t have any relation with this group.

Q171.    I just want to stress again it’s okay if you have, because you might know lots of people. That doesn’t mean you were in the group doing bad things. But it’s really important that if you did know those people, you need to tell us.

A.    Who in particular you asking about that I had relationship with?

Q172.    Ishmael.

A.    My relationship with him is I met him from where we used to live, from the area.

And:

Q181.    Was it just Nashat that said that Ishmael was Al Qaeda in Iraq?

A.    Yes, and only because Nashat, he was working with the American and he was from the Islamic Revival group and he was – Nashat himself was targeted by them and they killed Nashat’s brother too.

Q182.    Did you ever hear anybody talk about Ishmael’s group doing more serious activities like with explosives or anything like that?

A.    In Iraq?

(c)    towards the conclusion of the third interview, the applicant’s lawyer asked the interviewers if they wanted to put any adverse information they had to the applicant. One of the interviewers indicated that they had done that and the exchanged continued:

Q373.    We’ve told you the basis of the information that we have that is adverse against you.

A.    What - - -

Q374.    Just to clarify is that you were associated with a group affiliated with Al Qaeda in Iraq.

A.    Probably this people have submitted this false report against me.

(2)    the applicant was also asked a number of questions about violence and politically motivated violence. For example, the following exchange took place at the second interview:

Q133    But you know what we’re interested in. So we’re interested in – we look after a lot of things. We’re interested in politically-motivated violence. Politically-motivated violence is the use of violence to achieve a political goal. An example would be Al Qaeda.

A    When the light turn amber, I stop.

…

Q135    What does that mean?

A    I’m very far away of these things, the things you are talking about. He means before it’s red, I stop. I don’t know why you don’t tell me it’s red.

Q136.    Al Qaeda was just one example. It’s a group that is willing to use violence to achieve its goal. We also look after or we’re interested in the promotion of communal violence, which is issues or violence between two groups of people, whether it be religious, ethical, ethnicity, a range of things.

A    I’m very far away of these things, even with the sectarianism, I’m very far away. When they ask me, I refuse. I find it very strange. I don’t care about whether someone is Shiite or Sunni. When I arrived in Australia I thanked God because I have new life now here. For one year I didn’t feel it was one year, it was like one week. I was really enjoying it and living safely, living in peace. But here detention that is dragging like one year.

87    It is clear that the applicant was asked about his association with Al Qaeda and any terrorist connections and about politically motivated violence. He was on notice of the issues by reason of the questioning that took place. He was, as has already been observed, invited to make any comments he wished about the issues raised and to correct or clarify any of his answers and so could address any of the matters raised at the interviews. To the extent the applicant complains that he was denied the ability to make submissions on the conclusions reached about those matters and the conclusion that the applicant had been untruthful about important matters, procedural fairness does not require a decision maker to inform the affected person of his or her thought processes, preliminary conclusions or of his or her assessment of any materials supplied by the affected person: Alphaone at 591. The Director-General was not required to do so in this case.

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

89    In relation to the applicant’s assertion that he was given no or insufficient information to fairly put him in a position where he could make submissions about a man called “Wissam” and any other recent association taken into account by the Director-General, the applicant was:

(1)    questioned about his association with Wissam at the third security assessment interview. He was asked whether he knew anyone called Abu Khattab. He answered that lots of people “use Abu Khattab” and said “I think a friend of mine, his son, he’s called Khattab. But his name is Rizan, not Abu Khattab”. In answer to a question “So he might call himself Abu Khattab” the applicant said “Could be”. The questioning then continued with the interviewers asking more questions about Wissam which the applicant answered. At the end of the line of questioning, he was asked “Anything else? Anything else at all?”; and

(2)    throughout the security assessment interviews the applicant was asked about a number of people and associates.

90    The issues of Wissam and the applicant’s other associates had been raised in the interviews and the applicant was clearly on notice of them.

91    The applicant also asserts that he was given no opportunity to make a submission about whether he had failed to volunteer any information about a man called Ismail or whether it was plausible that he did not know Ismail’s last name, despite them growing up in the same neighbourhood. However, the applicant was questioned about Ismail at the second and third security assessment interviews. Part of the questioning that took place is set out at [86] above. As to the specific complaint, that he was not given an opportunity to make a submission about the fact that he did not know Ismail’s last name, at the second interview the following exchange took place:

Q177    Ismail’s full name, do you know that?

A    I don’t know the full name, but Ismail is very popular there.

Q178    Were you ever able to find out about his fake passports?

A    No, I don’t have any contacts with – direct contact with Ismail or anything. I couldn’t

Q179    Stay away.

A    Stay away, yeah. I saw him passing by somewhere.

Q180    Did he go by any other names?

A    We only knew his as Ismail.

92    The applicant was expressly asked whether he knew Ismail’s last name. He did not. There was no requirement for the applicant to be asked any further questions on that issue, given the answers. The observation in the TSOG that it was not plausible that he did not know his last name was a conclusion or view based on his answers. There was no requirement that ASIO invite submissions on that conclusion.

93    In relation to the allegation that the applicant was not given any information to fairly put him in a position where he could make meaningful submissions concerning his association, if any, with any person named Nabil prior to leaving Iraq in 2006 or the contention that the statement attributed to him at TSOG [16] had been falsely made by him, the applicant was questioned about whether he knew Nabil at the third security assessment interview. The issue of Nabil and whether he knew Nabil had been raised. There was no obligation to provide the applicant with any further information to enable him, as contended, to make “meaningful submissions” or any submissions about his association with any person called Nabil prior to his leaving in Iraq in 2006 or that the statement attributed to him had been falsely made by him. As to the latter matter, that was a conclusion drawn based on the interviewers’ assessment of the applicant’s answers at interview and possibly other material not disclosed in the TSOG because of the valid claim for public interest immunity. There was no obligation on the Director-General to disclose his thought processes or the redacted material. Disclosure of the redacted material would, given the claim for public interest immunity, not be required and indeed be inconsistent with the requirements of national security.

94    The final issue raised by the applicant is that, to the extent that any finding was based upon reasoning that he denied ever having a car in Iraq, he was not given an opportunity to make any submission on that question. The applicant was asked if he had a car in Baghdad and answered “No”. The statement at TSOG [17] that the applicant denied ever having a car in Iraq is followed by a reference to redacted material and the footnote also includes a redaction. It is not possible to say on what basis this conclusion was drawn given the redaction based on a valid claim for public interest immunity. There was no obligation to disclose that information and I cannot draw an inference that the information should have been put to the applicant. In any event the issue of ownership of a car was raised with the applicant. There was no additional requirement to put to him for submission any reasoning going to a finding based on his evidence in relation to that issue.

The effect of the statutory scheme

95    The provisions relating to security assessments are found in Pt IV of the ASIO Act which are set out at [21] to [24] above. The Director-General submitted that the content of procedural fairness is limited in relation to adverse security assessment under the ASIO Act concerning non-citizens who do not hold permanent visas because of the terms of that Act. Because the findings I have made based on the applicant’s circumstances it is not necessary that I determine that issue to determine whether the Adverse Security Assessment was made contrary to the requirements of procedural fairness. However I make the following observations in relation to the submissions that were made on that issue.

96    Section 36 of the ASIO Act provides that, other than s 37(1), (3) and (4), the provisions of Pt IV do not apply to a security assessment in relation to action of a kind referred to in para (b) of the definition of “prescribed administrative action” in s 35, namely the exercise of any power or the performance of any function under the Migration Act, in respect of a person who is:

    not an Australian citizen;

    not the holder of a valid permanent visa; or

    not the holder of a special category visa or a person taken by s 33(2) of the Migration Act to have been granted a special purpose visa.

A prescribed administrative action, as defined in s 35, includes the granting and refusing of visas under s 65 of the Migration Act.

97    The applicant is not an Australian citizen nor does he hold any of the visas referred to in s 36(1)(b) of the ASIO Act. Thus, save for s 37(1), (3) and (4), the provisions of Pt IV of the ASIO Act do not apply to the Adverse Security Assessment because it was in relation to action of the kind referred to in para (b) of the definition of prescribed administrative action, namely a decision to grant or refuse a visa under s 65 of the Migration Act. Contrary to the submission made by the applicant, in my opinion, the effect of s 36 is not only to exclude the rights of such a person to apply to the Administrative Appeals Tribunal for review but extends to exclude the applicability of the whole of Pt IV, other than the specified subsections, to such persons. The terms of the subsection are clear and unambiguous and are not limited in the way contended for by the applicant.

98    The effect of s 36(1)(b) in excluding the application of Pt IV of the ASIO Act, other than the specified subsections, to security assessments that relate to people in the nominated classes, including the applicant, is to exclude:

(1)    the obligation to provide a statement of the grounds for assessment containing all of the 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 shall for the purposes of Pt IV be deemed to be part of the assessment: s 37(2); and

(2)    the obligation on the part of the agency receiving the adverse security assessment to give notice to the subject of it that an adverse or qualified security assessment has been issued and to provide a copy of the assessment and the statement under s 37(2) and to inform the person the subject of the assessment of their right to apply to the Tribunal in relation to the making of the assessment. However such notice or the statement under s 37(2) is not to be provided if unless the Attorney-General has certified that such notice should be withheld because to do so is essential to security or because disclosure of the statement under s 37(2) would be prejudicial to the interests of security: s 38.

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

unreasonableness

100    The applicant submitted that the power to make and communicate an adverse security assessment was intended by the legislature to be exercised reasonably and that the standard of reasonableness governing the exercise of the discretion is to be determined by reference to the statute under which it is conferred. He further submitted that legal reasonableness is fact dependent and requires a court to undertake a careful evaluation of the evidence, including any inferences which may be drawn. The applicant contended that the Adverse Security Assessment was unreasonable because it was based upon reasoning that:

(1)    when asked about his contacts, and particularly if he knew anyone known as Nabil, he told ASIO that the only Nabil he knew was a taxi driver from Baghdad when the applicant had in fact told ASIO that at the time of the interview his only friend by the name of Nabil was a taxi driver whom he knew from Syria and that in earlier times he had known a lot of people called Nabil;

(2)    the applicant had said that a friend of his, Wissam, had a son called Khattab, and might sometimes be known as Abu Khattab when the applicant had told ASIO that there were a lot of people who used the name Abu Khattab and that his friend Wissam had a son called Khattab but he had not said that Wissam might sometimes be known as Abu Khattab;

(3)    the applicant’s claims about a man called Ismail were untrue because the applicant did not mention knowledge of Ismail until the second interview; did not volunteer information about Ismail beyond that specifically requested and it was to be inferred from those matters that the applicant deliberately withheld information about Ismail and the credibility of the information that he had provided about Ismail was thus in doubt when:

(a)    the applicant was given no opportunity to volunteer information other than information responsive to the questions asked and those questions did not seek information where it would be relevant to respond by providing information about Ismail; and

(b)    at the second interview the applicant volunteered all of the information about Ismail which he provided to ASIO at that interview; and

(4)    the applicant had claimed to adhere to Shia Islam and that claim was false, when he had made no such claim.

Consideration

101    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 the plurality of the High Court (Hayne, Kiefel and Bell JJ) said at [63] that the legislature is taken to intend that a discretionary power contained in a statute will be exercised reasonably and at [67] that the legal standard of reasonableness must be the standard indicated by the true construction of the statute conferring the discretion. At [71] their Honours, after referring to the judgment of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, observed that this, namely the observations of Lord Diplock, reflects the requirement of the law that a “decision-maker understand his or her statutory powers or obligations” and continued:

It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.

(citation omitted)

102    Their Honours held at [72]:

Whether a decision–maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will be in each case that the decision-maker has been unreasonable in a legal sense.

103    But it is not every identifiable error in the reasoning of a decision maker that is legally unreasonable. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 a Full Court of this Court (Allsop CJ, Robertson and Mortimer JJ) at [44] explained the reasoning in Li as follows:

In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”.

104    In Minister for Immigration and Border Proteciton v Stretton (2016) 237 FCR 1, Allsop CJ said the following about legal unreasonableness at [6], [8] and [11]-[12]:

6    Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome focused” conclusion without any specific jurisdictional error being identified: Singh at [44].

…

8    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

…

11    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

12    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

105    As is clear from Li and, as the applicant contends, the statutory scheme under which the decision is made, here the ASIO Act, is relevant to a determination of the standard of reasonableness to be applied in making the relevant decision namely the making of the Adverse Security Assessment.

106    The terms of the ASIO Act, when read together with s 36(1B) of the Migration Act, empower the Director-General to issue an adverse security assessment when it is open to him to express a recommendation, opinion or advice on the question of whether:

    it would be consistent with the requirements of security for a visa to be refused on the basis that a person is a direct or indirect risk to security; or

    the requirements of security made it necessary or desirable for a visa to be refused on the basis that a person is a direct or indirect risk to security.

107    Thus, as the Director-General submitted, Parliament has empowered the Director-General to issue adverse security assessments in response to risks to security without requiring any threshold level of satisfaction or evidence beyond his conclusion that such an assessment is “consistent with the requirements of security”: see the definition of “security assessment or assessment” in s 35 of the ASIO Act. It is that decision – namely that it would be consistent with the requirements of security to refuse a visa because a person is a direct or indirect risk to security – that must be shown to lack an evident and intelligible justification or to be arbitrary, capricious or without common sense.

108    In Jaffarie, Flick and Perram JJ at [72] said that caution should be exercised in any judicial exposition of what may constitute a “serious threat” to security and that such phrases must be interpreted “flexibly” but that what was required was that any “assessment on the part of ASIO that the facts constitute a ‘serious threat’ must be an assessment ‘grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible’”.

109    Both the applicant and the Director-General agreed that legal unreasonableness is fact dependent and that determining whether “an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence”: Singh at [42]. Ordinarily, where available, the Court would examine the statement of reasons in assessing reasonableness: see Singh at [45]-[47]. However, here the Court does not have before it the classified statement of grounds but the TSOG which is subject to considerable redaction for claims for public interest immunity which are not contested by the applicant. Thus it is not possible for the Court to undertake the careful consideration of the reasons that it might ordinarily undertake in the face of an argument that the decision was legally unreasonable. The effect of the unchallenged claim for public interest immunity is, for the reasons set out at [32] to [37] above, to make the applicant’s case for legal unreasonableness very difficult if not impossible to establish.

110    That this is so can be seen from the judgment of Tracey J in M46 at [87] and [90] where his Honour said:

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.

…

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.

111    In circumstances where the Court only has before it the TSOG, rather than the classified statement of grounds which was before the Director-General, the Court as a practical matter only has partial knowledge of the basis of the Director-General’s decision to issue the Adverse Security Assessment. In those circumstances it is, as Tracey J held in M46, not open for me to infer that the classified statement of grounds did not provide the Director-General with information that could lead him, in a logical and rational way, to the conclusion that he should issue the Adverse Security Assessment. In the same way, I could not infer that the decision to issue the Adverse Security Assessment lacked an evident and intelligible justification or that it was arbitrary, capricious or without common sense.

112    It follows that the applicant’s specific complaints that certain findings in the TSOG are unreasonable cannot be made out on the state of the evidence. Even if it could be established that one or more of those findings could be impugned, it would not follow that the decision to issue the Adverse Security Assessment was unreasonable. While that conclusion means that I am not required to consider each of the findings alleged to be unreasonable I do so for completeness.

113    As to the first finding, concerning whether the applicant knew anyone called Nabil, the TSOG at [16] records that the applicant told ASIO that the only Nabil he knew was a taxi driver from Baghdad. The questioning relating to Nabil occurred at the third security assessment interview at questions 259 to 268 and 289 to 293. The applicant contends that he had not told ASIO that which was attributed to him at [16] of the TSOG. But, based on the questions and answers, in my opinion, the statement set out in TSOG [16] was open. It was an observation based on what the applicant had said in his interview. The applicant said Nabil was a taxi driver in Iraq and that he did go back to Iraq from Syria. In response to a question about whether he had any other friends he knew called Nabil in Iraq the applicant said “this is the only Nabil I know and this is his number”.

114    As to the second finding, concerning Wissam and that he might sometimes be known as Abu Khattab, TSOG [27] records that the applicant said that Wissam had a son named Khattab and might sometimes be known as Abu Khattab. The questioning relating to Wissam occurred at the third security assessment interview at questions 294 to 309. Based on those questions and answers the statement included at TSOG [27] was open. It reflected what the applicant had said in the interview. In particular, the applicant:

    said lots of people use Abu Khattab;

    in response to a question “any of your friends?” said that he thought a friend of his had a son called Khattab but his name was Wissam not Abu Khattab; and

    in response to a question “so he might call himself Abu Khattab?” answered “could be”.

115    As to the third finding, concerning Ismail, the TSOG at [30] to [32] sets out matters relating to Ismail. Insofar as the TSOG records that the applicant did not mention Ismail until his second interview the applicant notes that the first interview was brought to a close prematurely. But the first interview lasted two hours and the applicant was asked whether there were any issues he wished to raise or of which he wanted to make the interviewers aware. The applicant did not, in response, raise Ismail. Accordingly, there is an intelligible foundation for the finding that the applicant “deliberately withheld information about Ismail”. Insofar as the TSOG records at [32] that the applicant “implausibly claimed to not know Ismail’s last name”, during questioning the applicant clearly said that he did not know Ismail’s full name. As to ASIO’s characterisation of the applicant’s evidence as implausible, that was a matter for ASIO. The Court is not permitted to engage in a review of the decision so as to remake it according to what it considers to be reasonable. There is nothing illogical or unintelligible in the characterisation of that evidence as implausible.

116    Finally, in relation to the information concerning Ismail, part of TSOG [31] is redacted on the basis of a public interest immunity claim. The extent of the redaction is not known but it follows a statement that “ASIO assesses that [the applicant’s] claims about Ismail are untrue”. On that basis it is not possible for the Court to infer that the conclusions drawn about Ismail are unreasonable as the Court does not know the full extent of the evidentiary basis upon which those conclusions were drawn.

117    As to the fourth finding, concerning whether the applicant is a Shia Muslim, the TSOG records at [37] that:

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

(footnotes omitted)

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

the security assessment determination

119    In his amended statement of claim the applicant alleges that in making the Adverse Security Assessment the Director-General took into account matters that he was not obliged to take into account or, alternatively, failed to take into account matters which he was obliged to take into account by reason of Determination No 2.

120    While an issue initially arose as to whether Determination No 2 is law the parties agreed to proceed on the basis that the Director-General accepted that ASIO, in making security assessments, is required to take into account the matters identified in Determination No 2 and is not required to take into account the matters that are specified as irrelevant in Determination No 2.

121    In the preamble to Determination No 2 clause 2 states that Determination No 2 provides guidance to the decision maker in the making of security assessments under Pt IV of the ASIO Act. Clause 9 of the preamble provides that Determination No 2 is to be applied when a security assessment is being undertaken pursuant to Pt IV of the ASIO Act and the decision maker “considers that the assessment process is likely to result in an adverse or qualified security assessment, as defined in s 35 of the” ASIO Act.

122    Under the heading “Operative Part” Determination No 2 relevantly provides as follows:

4.    IN the making of security assessments to which this Determination applies:

(a)    the matters to be taken into account are those referred to in clause 6;

(b)    the manner in which those matters are to be taken into account shall be in accordance with clause 7; and

(c)    the matters which are not to be taken into account are those referred to in clause 8.

…

6.    IN formulating a security assessment, three primary considerations are to be taken into account:

6.1.    The prescribed administrative action and type of security assessment;

6.2.    The assessment subject; and

6.3.    Consequences to security.

…

6.2    THE ASSESSMENT SUBJECT

6.2.1    The security assessment must relate specifically to the assessment subject.

6.2.2    In preparing a security assessment on the assessment subject in relation to the prescribed administrative action, matters that may be taken into account (if relevant) include:

…

(ii)    Associations:

(a)    an active association of the assessment subject (such as an alliance, link, connection, support for and/or membership) with any person (any individual, group, association, society, organisation, organised body and/or government) who is involved in, or is reasonably suspected of being involved in, activities prejudicial to security; and

(b)    that association reflects adversely on the assessment subject.

[Note: A passive association which is limited to family ties, a professional affiliation or by mere casual acquaintance is not sufficient to warrant treating the 'association' as adverse.]

…

(iv)    Background relevant to 'security' including:

(a)    the assessment subject's personal history (circumstances, upbringing, residence, travel in foreign countries) and/or continuing emotional, personal, financial, political and/or legal ties with a person or entity whose activities are reasonably suspected of being prejudicial to security; and

1.    collectively, the findings give rise to, or potentially gives rise to, an assessment that the assessment subject is engaging in, or is likely to engage in, activities prejudicial to security; and/or

2.    collectively, the findings give rise to, or potentially give rise to, an assessment that the assessment subject is, or is likely to be, vulnerable to exploitation in a manner not consistent with the requirements of security.

…

8.    NO information concerning an assessment subject shall be taken into account in the formulation of a qualified or adverse security assessment, unless that information:

(a)    is capable of satisfying the tests referred to in clauses 6 and 7;

(b)    is relevant to the requirements of security; and

(c)    has a reasonable nexus with, and is relevant to, the assessment subject.

123    First, the applicant alleges that in making the Adverse Security Assessment the Director-General took into account information that did not have a reasonable nexus with him when, by reason of cl 8(c) of Determination No 2, the Director-General was not obliged to take that information into account. I address the particular information the applicant alleges was taken into account contrary to Determination No 2 because it did not have a reasonable nexus with him below.

124    The first piece of information that the applicant alleges the Director-General took into account contrary to cl 8(c) of Determination No 2 is found in TSOG [16] where the applicant submitted that the Director-General took into account the following finding when formulating the Adverse Security Assessment:

When asked about his contacts, and particularly if he knew anyone known as Nabil, [the applicant] told ASIO the only Nabil he knew was a taxi driver from Baghdad.

125    The applicant submitted that he had not said what was attributed to him and that there was therefore no reasonable nexus of that matter with him. Accordingly, the applicant submitted that the Director-General contravened cl 8(c) of Determination No 2 by taking the matter set out at TSOG [16] into account.

126    The second piece of information that the applicant alleges the Director-General took into account contrary to cl 8(c) of Determination No 2 was the reference at TSOG [27] that the applicant said that Wissam might sometimes be known as Abu Khattab. The applicant submitted that he did not say that Wissam might sometimes be known as Abu Khattab and that as a result that part of TSOG [27] did not have a reasonable nexus to the applicant and the Director-General contravened cl 8(c) of Determination No 2 by taking it into account.

127    The third piece of information that the applicant alleges the Director-General took into account contrary to cl 8(c) of Determination No 2 was that the applicant claimed to adhere to Shia Islam. The applicant submitted that he had not claimed to adhere to Shia Islam and there was no reasonable nexus between that fact and the applicant and consequently the Director-General was obliged not to take that matter into account and it was a jurisdictional error to do so.

128    In my opinion, the complaints about these three findings cannot be sustained for the same reasons as set out at [113] to [114] and [117] to [118] above. The information considered and the findings about these matters had a reasonable nexus with the applicant.

129    The applicant also alleges that in making the Adverse Security Assessment, contrary to the requirements of cll 6.2.2(ii) and (iv) and 8(a) of Determination No 2, the Director-General took into account irrelevant material and failed to take into account material which he was obliged to take into account. The applicant alleges that the Director-General did so because:

(1)    he took into account the applicant’s recent and historical associations with individuals of security concern but failed to consider whether those associations were currently active and whether any such associate was reasonably suspected of being involved in activities prejudicial to security within the meaning of that term in s 4 of the ASIO Act;

(2)    he took into account the applicant’s personal history but failed to consider whether that history gave rise to an assessment that the applicant is engaging in, or there was a real and not remote possibility that the applicant would engage in, activities prejudicial to security within the meaning of the ASIO Act.

130    Clause 6.2.2(ii) of Determination No 2 sets out the matters that may be taken into account in preparing a security assessment in relation to associations. The applicant submitted that an association can be taken into account if, at the time of assessment, there is an active association with an individual, group, association, society or organisation which is involved in, or reasonably suspected of being involved in, activities prejudicial to security. He further submitted that in the findings in the TSOG about associations the relevant decision maker did not address the threshold question in cl 6.2.2 of whether any of the individuals were presently involved in or reasonably suspected of being involved in activities prejudicial to security.

131    The TSOG at p. 5 includes a heading “Current (including Australia-based) contacts of [the applicant]”. The heading suggests regard was had to current or, to use the words of Determination No 2, “an active association” as required by cl 6.2.2(ii). There are two paragraphs under that heading the second of which is entirely redacted because of a claim for public interest immunity. Two consequences arise as a result. First, in light of the redaction, it is difficult to see how any inference can be drawn that the applicant does not have any active associations with any person who is involved in activities prejudicial to security. Secondly, it cannot be said, nor can any inference be drawn, that the threshold test in cl 6.2.2 (ii) was not considered or complied with. Further, the Briefing Note which accompanied the TSOG expressly states that “[i]n making this assessment ASIO has taken into account relevant matters referred to in” Determination No 2. In other words Determination No 2 was considered and, I infer, that in doing so, that included the thresholds set out therein.

132    The applicant also refers to cl 6.2.2(iv) of Determination No 2 which sets out the circumstances in which reference can be made to the assessment of a subject’s personal history being where, collectively, the findings give rise to, or potentially give rise to, an assessment that the assessment subject is, or is likely to, engage in activities prejudicial to security or is, or is likely to be vulnerable to, exploitation in a manner not consistent with security.

133    The applicant submitted that the conclusion at TSOG [40] was not a conclusion as to the effect of the information on the applicant’s personal history but a conclusion based on the totality of the information considered. He further submitted that the silence of the Briefing Note and the TSOG on the thresholds to be addressed in determining whether the information was relevant under cl 6.2.2(iv), or was required to be disregarded under cl 8(a), should lead to the inference that the decision maker did not consider the application of these thresholds and that inference was more readily available in circumstances where the Director-General led no evidence on the question.

134    TSOG [40] is set out at [30] above. In my opinion, given the multiple redactions in the TSOG, contrary to the submission made by the applicant, it is not possible to infer that the thresholds in cl 6.2.2(iv) were not considered. Further, as submitted by the Director-General, the applicant’s past could also be considered pursuant to cl 6.2.2(v) of Determination No 2. That clause specifies “character relevant to ‘security’ including” aspects of past or present personal behaviour which is:

    inconsistent with the requirements of security; or

    gives rise to a reasonable suspicion that the assessment subject is vulnerable to exploitation relevant to security; or

    raises doubts about the credibility of the assessment subject and which reduces the weight to be given to any information given by the assessment subject.

135    The applicant was asked about his personal history in the security assessment interviews. At the second security assessment interview he was told that some of the matters that the interviewers proposed to ask him were matters about which they already had a lot of information and was warned that it was important he tell the truth. The exploration of the applicant’s personal history in this way was a matter which was relevant to the conclusion at TSOG [40] that the applicant sought to “obfuscate his terrorist connections” and which was an aspect of the final conclusion that the applicant presented an unacceptable risk to Australia’s security.

136    TSOG [40] was a summary paragraph. It is not reasonable to require that the Director-General should set out the basis for his summary by reference to the thresholds in Determination No 2. The Briefings Note expressly referred to consideration of Determination No 2. There is no reason to infer that it was not considered. The contrary inference is open and should be drawn. In those circumstances, as submitted by the Director-General, it is not necessary for the Court to consider whether a failure by the Director-General to have regard to Determination No 2 would involve a jurisdictional error.

conclusion on the applicant’s claims against the director-general

137    In light of the matters set out above the claims against the Director-General fail and the application against him should be dismissed.

the claim against the minister

138    The applicant submitted that if he fails against the Director-General in his claims then he fails against the Minister. For that reason the Minister made no submissions in relation to the substantive issues. Given the conclusions I have reached in relation to the claims against the Director-General it follows that the claim for relief against the Minister must also fail and the application against him should be dismissed.

139    In the event the applicant’s claims were made out against the Director-General, the Minister submitted that the Court does not have jurisdiction as against him and that the amended application, insofar as it seeks relief against him, is incompetent and should be dismissed because of the operation of s 476A of the Migration Act. For completeness I address that submission.

Legislative scheme – the Migration Act

140    The legislative scheme that confers jurisdiction on this Court in relation to decisions under the Migration Act is found in Pt 8 of the Migration Act titled “Judicial review”.

141    Section 474 of the Migration Act relevantly provides:

474     Decisions under Act are final

(1)     A privative clause decision:

(a)     is final and conclusive; and

(b)     must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)     is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)     In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)     A reference in this section to a decision includes a reference to the following:

…

(h)     conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

142    This Court’s jurisdiction under the Migration Act is set out in s 476A which relevantly provides as follows:

476A     Limited jurisdiction of the Federal Court

(1)     Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)     the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)     the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)     the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d)     the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

143    The term “migration decision” is defined in s 5(1) as follows:

migration decision means:

(a)     a privative clause decision; or

(b)     a purported privative clause decision; or

(c)     a non‑privative clause decision; or

(d)     an AAT Act migration decision.

The claim against the Minister

144    In order to consider the Minister’s submission it is necessary to set out those parts of the amended originating application and the amended statement of claim that relate to the Minister. In the amended originating application, as against the Minister, the applicant applies for an order “restraining the [Minister] from having regard to the Assessment in making any decision under the Migration Act 1958 affecting the Applicant”.

145    That relief is sought on the grounds stated in the amended statement of claim. The allegations against the Minister contained in the amended statement of claim are set out at [15]-[19] as follows:

15.    On 30 September 2014 ASIO forwarded a copy of the Assessment to an officer of the First Respondent's department.

16.    On or before 24 August 2015 the First Respondent exercised his power under s.46A(2) of the Migration Act 1958 to allow the Applicant to lodge a valid application for a temporary protection visa.

17.    On or before 15 October 2015 the Applicant applied for a protection visa.

18.    The First Respondent or his delegate has detained the Applicant in immigration detention because of the Assessment.

19.    The First Respondent has adopted a policy that when the Second Respondent has made an adverse security assessment of an applicant for a visa that applicant will remain held in immigration detention pending third country resettlement or safe return to Iraq.

146    The decision identified in the amended statement of claim that is required to be made by the Minister is a decision concerning the applicant’s application for a temporary protection visa. That is a decision that has not yet been made and is to be made at some time in the future.

Consideration

147    The applicant submitted that the Court has jurisdiction because the order sought against the Minister in the amended application is a prayer for relief in the nature of relief under s 75(v) of the Constitution and prima facie jurisdiction is conferred by s 39B of the Judiciary Act. Further, the applicant submitted that the relief is related to any future decision that the Minister might make and is not limited to a decision to refuse the grant of a protection visa but would extend to other decisions made in the future for example, a decision to remove the applicant or a decision to issue a bridging visa or a decision to issue a spouse visa.

148    The applicant contended that once it is understood that the relief extends to any future decision then the Minister’s challenge to the Court’s jurisdiction cannot succeed because of the decision of a Full Court of this Court (Keane CJ, Rares and Perram JJ) in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 (SZQDZ). The applicant submitted that, because of that decision I would conclude that the phrase “in relation to a migration decision” in s 476A refers only to decisions that have been made and not future decisions and thus s 476A would not operate to oust the jurisdiction otherwise conferred on the Court by s 39B of the Judiciary Act to restrain the making of a migration decision in the future.

149    In SZQDZ the Full Court considered two questions: first, whether the 35 day time limit within which proceedings in the Federal Magistrates Court (as it then was) must have been commenced in relation to a migration decision applied to an application to restrain the making of a decision yet to be made by the Minister under s 46A of the Migration Act; and secondly, whether this Court had jurisdiction to hear an appeal from a decision of the Federal Magistrates Court by which it determined that the 35 day time limit did so apply and dismissed the proceedings as a result.

150    The questions identified by the Full Court required a consideration of s 477 of the Migration Act which at the time provided that:

(1)    An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

Section 477(2) gave the Federal Magistrates Court a discretion to extend the 35 day period if an application was made specifying why it was necessary in the interests of the administration of justice to make such an order and the Federal Magistrates Court was so satisfied. Section 477(3) defined the term “date of the migration decision” and in subs (d) relevantly included the date of the written notice of the decision or, if no such notice exists, the date the Court considers appropriate.

151    In considering the first question, namely whether s 477(1) applied to the applicants’ proceedings in the Federal Magistrates Court, the Full Court identified two principal questions for consideration, the first of which is relevant to the issue raised by the applicant. That question was whether each applicant’s claim for a quia timet injunction restraining the Minister or his officers from relying on each reviewer’s recommendation, being the recommendation that attracted the 35 day time limit in s 477(1), was a claim “in relation to a migration decision”. The Minister submitted to the Full Court that the injunctions sought by the applicants in that case were claims for relief in relation to decisions proposed to be made and further submitted that the reviewer’s assessment and recommendation fell within the extended meaning of a privative clause decisions in s 474(3) of the Migration Act and that it also fell within the definition of “migration decision” in s 5(1) of the Migration Act.

152    In considering those submissions the Full Court said at [27]:

Despite the breadth of s 477(3)(d) the migration decisions to which s 477(1) and (3) are directed are those which have already occurred. This is necessarily implicit in the concept of the 35 day period in s 477(1) and the assumption in s 477(3) that there exists, at the time to which s 477(1) and (3) are speaking, something which can be meaningfully described as a decision. Consequently, the ordinary language of s 477(1) leads to the conclusion that the time limit imposed by that provision does not apply to an application in which quia timet injunctive relief is sought against administrative action lying, as yet, in the future.

153    That is the Full Court held that s 477(1) did not have any application to future decisions but only to decision which had been made.

154    Before me the Minister submitted that SZQDZ may be authority for the proposition that s 477A of the Act, which sets out the time limits for the filing of an application for relief pursuant to s 476A(1)(b) or (c) in this Court, could have no relevant application in this case. That is, if the Minister had objected to competency of the application on the basis of s 477A as being out of time, the effect of SZQDZ may have been that s 477A could not apply. The Minister further submitted that SZQDZ was not authority for a broader proposition that a “migration decision” cannot be a future decision. I accept those submissions. Further, contrary to the applicant’s submission, the Full Court in SZQDZ did not hold that the Federal Magistrates Court did not have jurisdiction in relation to the decision to be made by the Minister. It held that the Federal Magistrates Court did have jurisdiction in relation to the decision but it could not dismiss the application under s 477 because the relief sought related to a migration decision yet to be made.

155    The decision to be made by the Minister in relation to the applicant’s protection visa which is, as the Minister submitted, the only decision identified in the amended statement of claim is in my opinion a migration decision as that term is defined in s 5(1) of the Migration Act because it is either a privative clause decision or a purported privative clause decision. Pursuant to s 474(3)(h) conduct preparatory to the making of a decision is a decision for the purposes of the definition of privative clause. Having regard to the Adverse Security Assessment in making a decision is conduct preparatory to the making of a decision.

156    This Court’s jurisdiction in relation to a migration decision is mandated by s 476A, which provides that the Court only has original jurisdiction in relation to a migration decision if one of the circumstances set out in s 476A(1) applies, none of which do so apply.

157    It follows then that, in my opinion, this Court has no jurisdiction in relation to the Minister and, had the applicant been successful in his claims against the Director-General, the application against him would otherwise have been dismissed on that basis.

disposition

158    In light of conclusions I have reached the amended originating application should be dismissed. Given that result and in the absence of any circumstances indicating a contrary position, in my opinion, costs should follow the event and the applicant should pay the respondents’ costs. I will make orders accordingly.

Associate:

Dated:    1 December 2016