FEDERAL COURT OF AUSTRALIA

El Ossman v Minister for Immigration and Border Protection [2017] FCA 636

ORDERS

THE COURT ORDERS THAT:

1.    Order absolute in the first instance for a writ of certiorari directed to the Second Respondent setting aside the adverse security assessment in respect of the Applicant made by the Australian Security Intelligence Organisation, acting through the Second Respondent, on 28 August 2015.

2.    The Second Respondent pay the Applicant’s costs.

3.    The Applicant pay the First Respondent’s costs incurred after 18 July 2016.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The issue that lies at the heart of this matter highlights the potential tension between the interests of national security and the requirements of procedural fairness in the context of the making of security assessments under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).

2    In August 2015, the Australian Security Intelligence Organisation (ASIO), acting through the Director-General of Security, furnished the Department of Immigration and Border Protection with an adverse security assessment in respect of Mr Mustapha El Ossman. Mr El Ossman is a citizen of Lebanon. At the time of the assessment he held a bridging visa and was an applicant for a substantive visa. The assessment furnished by ASIO was that Mr El Ossman was directly or indirectly a risk to security. ASIO assessed, amongst other things, that Mr El Ossman had been involved in politically motivated violence, maintained associations with numerous terrorist and extremist individuals and harboured an extremist ideology. It recommended that Mr El Ossman’s visa application be refused and that his bridging visa be cancelled. Mr El Ossman’s bridging visa was subsequently cancelled and he was taken into immigration detention. Mr El Ossman was also given notice that his substantive visa application might be refused.

3    In this proceeding, Mr El Ossman challenged the adverse security assessment. His primary contention was that ASIO failed to afford him procedural fairness. He also alleged that ASIO failed to comply with various parts of a determination which had been made by the Director-General pursuant to the ASIO Act. That determination set out, amongst other things, the matters that were to be taken into account, and the matters that were not to be taken into account, by ASIO when undertaking a security assessment.

4    There was and is no question that ASIO was required to afford Mr El Ossman procedural fairness: it was required to adopt a procedure that was reasonable in the circumstances to give Mr El Ossman, as a person whose interests were likely to be affected by ASIO’s exercise of power, an opportunity to be heard. The procedure adopted by ASIO, at least insofar as Mr El Ossman was concerned, was to interview Mr El Ossman and question him in fairly general terms about whether he had been involved in politically motivated violence, or had associated with terrorist and extremist individuals or harboured an extremist ideology. He denied that he had.

5    The question whether the interview afforded Mr El Ossman procedural fairness arose primarily because ASIO did not disclose to Mr El Ossman certain specific information it possessed which cast doubt on Mr El Ossman’s denials. Some, but not all, of that specific information was immune from production, and therefore disclosure, to Mr El Ossman because disclosure would have been prejudicial to national security. Did ASIO’s failure to disclose parts of the specific information which was not immune from production or disclosure so constrain Mr El Ossman’s opportunity to propound his case for a favourable assessment as to amount to a practical injustice? Was Mr El Ossman given sufficient information to fairly put him in a position where he could make meaningful submissions about the assessment?

6    The Director-General’s determination provided, amongst other things, that in formulating a security assessment, ASIO must not take information into account unless that information had a reasonable nexus to the assessment subject. In Mr El Ossman’s case, ASIO took into account information concerning the activities of an individual who had an identical year of birth, passport number and mother’s name as Mr El Ossman. ASIO assessed that this other person was in fact Mr El Ossman. Did that information have a reasonable nexus to Mr El Ossman? Did the determination, in any event, bind ASIO such that a failure to follow it would invalidate a security assessment?

security assessments - Statutory scheme

7    ASIO is a department of the executive placed under the control of the Director-General of Security and staffed by persons engaged by the Director-General on the Commonwealth’s behalf for the performance of its functions and the exercise of its powers: ss 8(1) and 84(1) of the ASIO Act; The Church of Scientology Inc v Woodward (1980-82) 154 CLR 35 at 57 (Mason J). The Director-General is appointed by the Governor-General and is subject to the directions of the Minister: ss 7(1) and 8(2) of the ASIO Act.

8    ASIO’s functions include, relevantly, 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”: s 17(1)(c) of the ASIO Act. The term “security” is defined in s 4 of the ASIO Act as including, relevantly, “the protection of, and of the people of, the Commonwealth and the several States and Territories from …. politically motivated violence … whether directed from, or committed within, Australia or not”.

9    The functions of ASIO referred to in s 17(1)(c) of the ASIO Act include “the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities”: s 37(1) of the ASIO Act.

10    The statutory scheme in relation to the furnishing of security assessments is contained in Part IV of the ASIO Act.

11    Section 35 of the ASIO Act defines a number of terms or expressions used in Part IV, including “security assessment” and “adverse security assessment”, as well as other terms or expressions used in those definitions.

12    A “security assessment” is defined as meaning a:

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

13    An “adverse security assessment” is defined in the following terms:

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.

14    The expression “prescribed administrative action” includes, relevantly, “the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 (Cth) or the regulations under that Act”: s 35(1)(b) of the ASIO Act.

15    The statutory scheme in Part IV contains provisions which require, subject to certain exceptions, the disclosure of an adverse security assessment to the person in respect of whom the assessment is furnished. Section 38 provides as follows:

38 Person to be notified of assessment

(1)    Subject to this section, where, after the commencement of this Act, an adverse or qualified security assessment in respect of a person is furnished by the Organisation to a Commonwealth agency or a State or an authority of a State, the Commonwealth agency, the State or the authority of the State shall, within 14 days after the day on which the assessment is so furnished, give to that person a notice in writing, to which a copy of the assessment is attached, informing him or her of the making of the assessment and containing information, in the prescribed form, concerning his or her right to apply to the Tribunal under this Part.

(1A)    This section does not apply to a security assessment if section 38A applies to the assessment.

(2)    The Attorney-General may, by writing signed by the Attorney-General delivered to the Director-General, certify that the Attorney-General is satisfied that:

(a)    the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation; or

(b)    the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security.

(3)    Where the Attorney-General issues a certificate under subsection (2), he or she shall cause a copy of the certificate to be delivered to the Commonwealth agency to which the assessment was furnished.

(4)    Subsection (1) does not require a notice to be given in relation to a security assessment to which a certificate in accordance with paragraph (2)(a) applies.

(5)    In the case of a security assessment in relation to which a certificate certifying in accordance with paragraph (2)(b) has been given, the copy of the assessment to be attached to a notice under subsection (1) shall not contain any matter to which the certificate applies.

(6)    A notice under subsection (1) may be given to a person by delivering it to him or her personally or by sending it to the person by registered post at his or her address last known to the Commonwealth agency.

(7)    Before the end of the following periods, the Attorney-General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):

(a)    12 months after it was issued;

(b)    12 months after the Attorney-General last considered whether to revoke it.

16    The requirement in s 38 to provide a copy of the assessment must be read together with s 37(2), which provides as follows:

(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.

17    The relevant points to note about ss 37(2) and 38 are: first, that the requirement in s 37(2) to include information relied on by ASIO in the statement of grounds does not include information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and second, that the requirement in s 38(1) to give a notice in respect of the assessment (which would, by virtue of s 37(2), include the statement of grounds, which in turn would include the information relied on by ASIO) does not apply where the Attorney-General is satisfied that withholding of the notice is essential to national security, or the disclosure of the statement of grounds would prejudice security.

18    The statutory scheme in Part IV also makes provision for applications to the Administrative Appeals Tribunal for review of adverse security assessments: see in particular s 54.

19    Importantly, however, s 36(1) provides that most of the provisions in Part IV, including the notification provisions in ss 37(2) and 38, and the review provisions, including s 54, do not apply to or in relation to certain security assessments. Relevantly, s 36(1)(b) is in the following terms:

36 Part not to apply to certain assessments

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

(a)    …

(b)    a security assessment in relation to action of a kind referred to in paragraph (b) of the definition 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; …

20    It is common ground that the adverse security assessment in relation to Mr El Ossman fell within s 36(1)(b). That was because Mr El Ossman is not an Australian citizen. Two things follow from this. First, even the limited requirements in ss 37(2) and 38 to disclose the information underpinning the adverse security assessment did not apply in Mr El Ossman’s case. Second, Mr El Ossman could not apply to the Administrative Appeals Tribunal for a review of the adverse security assessment.

21    Subsections 37(1), (3) and (4), which are excluded from the s 36(1) carve-out, provide as follows:

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)    …

(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.

22    No regulations have been made in accordance with s 37(3) of the ASIO Act. The Director-General has, as required, made a determination in accordance with s 37(4). That determination, referred to as Security Assessment Determination No. 2 (the Determination), was made on 28 July 2010.

23    Paragraph 6.2.2 of the Determination lists a number of matters that may be taken into account by ASIO in formulating a security assessment. It is in the following terms:

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:

(i) Activities:

(a) physical activities of the assessment subject (including conspiring, scheming, planning, organising, counselling, abetting and advising or otherwise advocating or encouraging any act or activities) which:

1. relate to or have a connection with, one or more of the activities listed in the definition of ‘security’ in the Act; or

2. are likely to be conducted in a manner not consistent with the requirements of security.

(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.]

(iii) Attitudes relevant to ‘security’, including:

(a) the assessment subject’s acceptance of, support for and/or sympathy with an act or activities which relate to or are reasonably suspected of having a connection with, one or more of the activities listed in the definition of ‘security’ in the Act; and/or

(b) the assessment subject’s acceptance of and/or support for, maintaining protective security.

(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.

(v) Character relevant to ‘security’ including:

(a) aspects of past and/or present personal behavior, including criminal conduct, which:

1. is inconsistent with the requirements of security; or

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

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

[Note: Evidence of any rehabilitation and recent good conduct may be relevant to the assessment.]

24    Paragraph 8 of the Determination specifies certain factors that should not be considered. It provides as follows:

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.

25    The Determination also includes some paragraphs concerning the manner of making a security assessment. Paragraphs 7 and 7.1 are in the following terms:

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

(c) the requirements of procedural fairness (‘natural justice’); and

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

7.1 PROCEDURAL FAIRNESS

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

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

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

Facts and Evidence

26    The relevant facts were largely uncontentious. The evidence was primarily documentary. It primarily comprised a number of documents that were produced by the Director-General in answer to a notice to produce served by Mr El Ossman.

Public interest immunity

27    The documents produced by the Director-General were redacted, in the sense that parts of the documents were blacked-out and could not be read. Those redactions were made so as to conceal information that was protected or immune from disclosure on public interest grounds. For the most part, the Director-General’s public interest immunity claims were not challenged by Mr El Ossman. The only challenge was to two parts of the statement of grounds (in footnote 1 and paragraph 13) that were blacked-out to conceal the name of an individual “whom ASIO assesses to be identical with Mr El Ossman” and who was involved in politically motivated violence.

28    The Director-General’s public interest immunity claim in relation to the name said to have been used by Mr El Ossman was upheld. In support of the claim, the Director-General relied on three affidavits affirmed by a Deputy Director-General of Security. The first affidavit, affirmed 1 August 2016, addressed all of the redacted portions of the document. In general terms, the Deputy Director-General stated that in her opinion disclosure of the redacted information would be prejudicial to national security and contrary to the public interest. The second affidavit, affirmed 10 October 2016, dealt specifically with the redaction which concealed the name that ASIO had concluded was used by Mr El Ossman. The Deputy Director-General stated that “disclosing that name, or answering any questions concerning the name, would prejudice security” for the reasons identified in her earlier affidavit.

29    The third affidavit was said to be a confidential or “closed” affidavit. The Director-General sought to rely on it without its contents being disclosed to anyone other than the Court, including to Mr El Ossman and his representatives. The confidential affidavit contained the unredacted text of paragraph 13 and the relevant footnote. The Director-General made a public interest immunity claim in respect of the contents of the third affidavit. Mr El Ossman objected to the receipt of the affidavit on a confidential basis and challenged the public interest immunity claim in respect of it. He submitted that receipt by the Court of a confidential affidavit was contrary to s 17 and Part VAA of the Federal Court of Australia Act 1976 (Cth).

30    Mr El Ossman’s objection was overruled and the confidential affidavit was received and read on a confidential basis. A suppression order was made pursuant to s 37AG(1)(b) of the Federal Court Act. The contents of the confidential affidavit clearly established that a suppression order was necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security. Receipt of the confidential affidavit on a confidential basis was also consistent with a line of authority which established that affidavits in support of public interest immunity claims may be received on a confidential basis as a means of ensuring that the Court’s procedures do not defeat the very public interest that the public interest immunity claims seek to protect: see Parkin v O’Sullivan [2009] FCA 1096; (2009) 260 ALR 503 at [23]-[30] and the cases there cited. It is equally well-established that, in ruling on a public interest immunity claim, the Court may inspect the documents the subject of the claim without those documents being shown to the parties: see Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (WA) (2008) 234 CLR 532 at [180]; Thomas v Mowbray (2007) 233 CLR 307 at [124]; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620. In those circumstances, receipt of the affidavit on a confidential basis was not inconsistent with s 17 or Part VAA of the Federal Court Act.

31    Mr El Ossman sought to cross-examine the Deputy Director-General. That course was not permitted. There is no right to cross-examine the deponent of an affidavit in support of a claim for public interest immunity, and leave to cross-examine is granted only very rarely, or in exceptional circumstances: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681; Young v Quin (1985) 4 FCR 483 at 484-6, 489; Kamasaee v Commonwealth of Australia (No 3) [2016] VSC 438 at [22]-[26]. The difficulty in permitting cross-examination is that there is an inherent risk that any cross-examination would reveal the very matters the subject of the public interest immunity claim. While Mr El Ossman identified some proposed lines of cross-examination that may not have led to a risk of disclosure of the information the subject of the claim, the forensic purpose and utility of those lines of cross-examination was, to say the very least, somewhat doubtful.

32    The evidence of the Deputy Director-General clearly established that the public interest in preserving the secrecy and confidentiality of the information in the redacted portions of the documents produced by the Director-General, including the redactions challenged by Mr El Ossman, well outweighed any public interest in disclosing that information, or admitting those portions of the documents into evidence. On the one hand, the Director-General’s opinion concerning the need to preserve the secrecy and confidentiality of the redacted information, including the other name that ASIO considered was used by Mr El Ossman, was entitled to be afforded considerable weight: Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 241 ALR 141 at [56]-[58], [62]. It was fully explained, carefully considered, and obviously cogent. On the other hand, it was difficult to identify Mr El Ossman’s legitimate forensic purpose in obtaining access to the information concerning the name. His primary argument in challenging the adverse security assessment was that, by not disclosing certain information to him, including the information that ASIO possessed that led it to believe that Mr El Ossman was the other named individual who was involved in politically motivated violence, ASIO denied him procedural fairness. That argument was able to be, and indeed was, forcefully put by Mr El Ossman without him knowing the actual name. None of Mr El Ossman’s other arguments depended on him knowing, or tendering evidence of, the name.

Mr El Ossman’s immigration history

33    Mr El Ossman is a citizen of Lebanon. He arrived in Australia on 22 June 2013 and is married to an Australian citizen, with whom he has a daughter. In July 2014 he applied for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa. On 22 October 2014, he attended the offices of the Department of Immigration and Border Protection, no doubt in relation to his visa application. There he was interviewed by officers of ASIO. There is no evidence to suggest that Mr El Ossman was given any prior warning or notice concerning the precise nature or purpose of the interview.

The ASIO Interview

34    At the commencement of the interview, one of the interviewing ASIO officers gave Mr El Ossman the following advice concerning the purpose of the interview (as transcribed):

Q8.    Okay. Just to give you a little bit of information about who we are and what we do, I’ll explain our role but our purpose for today’s conversation is to talk to you about your visa application and then to provide advice to the Immigration Department.

A    (Direct) Okay.

Q9.    Now, the sort of things that we give advice on relate to national security, they can include espionage, which you can think about in terms of a government spying on another government, which we call politically motivated violence which can include any violent activity to try and influence a political process or democracy, we think in terms of terrorism but also violent protest activity. Acts of sabotage or attacks on Australia’s defence systems so an intentional act to try and disrupt critical infrastructure in Australia or the Defence Force activities. Act so foreign interference which may be any activity which impinges on the rights of Australian citizens and protecting Australia’s territorial and border integrity, so investigating people smuggling activity, people who are behind people smuggling, so not people who come on boats or (indistinct).

A    (Through interpreter) So just trying to explain to me what are the issues?

Q10.     Yes, yes, that’s right, all the different things we investigate and provide advice on.

Q11.    Thanks for asking.

A    (Direct) Thank you.

Q12.    And then my role is then to provide security advice to the immigration department in respect of your visa application. It’s not our job to decide whether or not you get a visa, that’s immigration’s decision.

A    (Direct) Okay.

Q13.    So the interview is an opportunity for you to resolve any security concerns that ASIO has and to tell us about yourself and your background, who you associate with and what sort of activities you’re involved in. Do you understand ASIOs role?

A    (Direct) Yes.

35    Mr El Ossman said that he understood the reasons for the interview. Mr El Ossman was then told that he had a right to have a lawyer present with him, but he said that he did not wish to avail himself of that right. He was told that his participation in the interview was voluntary. He agreed to participate on that basis. He was told that it was important for him to be honest and provide honest and full answers to all the questions.

36    After the introductory advice and questions, Mr El Ossman was asked a series of open questions about himself, why he had come to Australia, and what he thought about Australia. He was then asked about his life in Lebanon. Some of those questions touched on the political and security situation in Tripoli. For example:

Q169.    I was – in a little bit I’d like to talk to you about the Tripoli security plan and the way the army have gone in and tried to make things a lot safer, but I want to keep talking about this for a little while. So the militia groups, what’s your opinions on them? Do you have any friends who are within these militia groups or is there one that you like more than another one?

A    (Direct) Any friends?

Q170.     Mm?

A    (Direct) In militia? No.

37    He was also asked if he had met or knew certain people associated with some of the militia groups in Lebanon, such as Hussain al-Sabah. For the most part, he said that he had not met, or did not personally know, those persons.

38    Importantly, about midway through the interview, he was asked if he was known by any other names:

Q279.    So aside from Mustapha al Ossman and Mustapha Dendeshi, are you known by other names?

A    (Through interpreter) No, Dendeshi is a clan, but on the passport it’s (indistinct) so I’m known by this name.

Trans    Do you want me to ask the question again?

Intvr2    No – oh, yes, please do.

A    (Through interpreter) No.

39    It should be noted, in this context, that Mr El Ossman’s passport bears the name Mustapha El Ossman.

40    The interviewers then turned their attention to the political and security situation in Syria. In answer to various questions on that topic, Mr El Ossman asserted, in general terms, that he was opposed to Bashar al-Assad and that he supported the Free Syrian Army in the fight against Mr al-Assad. He was then asked about other groups and people who were fighting in Syria. Mr El Ossman made it clear that he did not support the group known as ISIL (the Islamic State of Iraq and the Levant) or Islamic State. He was asked about other specific groups:

Q319.    Okay, all right, so that was ISIL, what do you think about the group Jund Al-Sham, do you know them?

A    (Through interpreter) No.

Q320.    Don’t know them at all?

A    (Through interpreter) No, I don’t know. Like it would depend on what I hear from the media?

Q321.    Mm, okay, what about the group Jabhat al-Nusra?

A    (Through interpreter) The same as them.

Q322.    The same as?

A    (Through interpreter) The same as ---

Q323.    Same as Daesh?

A    (Direct) Yes, the same Daesh.

…

Q329.    What about people that support these group or send money to these groups or who want to join these groups?

A    (Through interpreter) I don’t know.

41    Up to this point in the interview, the questions were asked in very open and general terms. About two-thirds of the way through the interview, the questions became somewhat more specific. They focussed on whether Mr El Ossman had ever engaged with, or provided assistance to, any of the various groups fighting in Syria. While the questions were still framed in open terms, it would have been tolerably clear to Mr El Ossman that he was being asked to reveal and explain any contact he might have had with certain groups and persons who were engaged in politically motivated violence in Syria. The interviewers reiterated that it was important for Mr El Ossman to answer the questions honestly.

Q330.    Okay, I’m going to ask you a lot of questions – not a lot, a few questions and I need you to be – just remember that you need to be very, very honest with me when I’m asking you these questions okay? So all the groups that we’ve mentioned in terms of the Syrian conflict, have you ever provided any assistance to any of these groups?

A    (Through interpreter) Actually I don’t know how I came here, I was (indistinct).

Q331.    So no?

A    (Through interpreter) No.

Q332.    Have you done anything at all that could be seen as helping these groups or supporting these groups?

A    (Direct) No.

Q333.    Have you ever fought with or trained with any of these groups?

A    (Through interpreter) No, I haven’t been trained. I was just working just to get the money for the ticket to come here.

Q334.    Mm. Have you ever undertaken any activities on behalf of these groups or because somebody from the groups asked you to do so?

A    (Through interpreter) Like in Tripoli like the Tripoli people they listen a lot to the media, and so you listen to the media and you listen to the people talking in the street so we listen to both.

Q335. So you listen to both the media and people talking?

A    (Through interpreter) Yeah, like when you walk in the street in Tripoli, like they have nothing else then talking and so like you can hear – you can hear things from the neighbours, you can hear from people at work, so from everywhere.

Q336.    Mm, yeah, I understand that you know what’s going on because you listen and you talk to people, it’s more about whether you’ve engaged with these groups or helped any of these groups.

A    (Direct) No, never.

Q337.    Do you have any association with anyone who’s been a member of these groups or fought with these groups.

A    (Through interpreter) No, I don’t know anyone.

Q338.    Including friends or relatives?

A    (Through interpreter) I don’t know any relative, no.

Q339.    And I mean people who are currently alive or people that have since died either fighting with these groups or for other reasons.

A    (Through interpreter) I don’t know any.

42    As will be seen, the questioning concerning the groups known as Jund al-Sham and Jabhat al-Nusra was important. That is because it is quite clear from the documents subsequently produced by ASIO or the Director-General that ASIO possessed intelligence or information that showed, at least as far as ASIO was concerned, that Mr El Ossman was involved or associated with Jund al-Sham. Jund al-Sham is a Sunni extremist group with significant links to Jabhat al-Nusra and Islamic State, both proscribed terrorist groups.

43    At the conclusion of the interview, Mr El Ossman was asked if there were any answers that he wished to change. He said there was not. He was also asked if he had answered all the questions fully and honestly. He said that he had.

44    An intelligence report prepared shortly after the interview summarised Mr El Ossman’s responses during the interview and provided the following observations:

Observations

113.    El Ossman presented as a well-informed, intelligent man who was passionate about the Syrian conflict and the downfall of the Syrian regime, and highly sympathetic to the plight of the Syrian people.

114.    El Ossman answered all questions calmly. He requested or was provided with clarification where he occasionally did not understand COs initial questions.

115.    While there were significant discrepancies between the reporting on El Ossman prior to this interview and his answers during this interview, during this interview he presented as opposed to ISIL and JN, but supportive of the FSA.

116.    El Ossman presented as moderate and devout in his ideology, and focused on his family and beginning a new life in Australia.

117.    When asked about the group ‘Jund al’Sham’, El Ossman immediately said ‘no’ before the question was translated by the interpreter; so unless he understood more of the question in English, he said no to the name of the group without even knowing what he was being asked. That said, given he was asked about Jund al Sham during a series of similar direct questions (eg. about groups including ISIL, JN, FSA), he may have answered no anticipating the question was the same for the aforementioned groups.

(Emphasis added)

The adverse security assessment

45    On 25 August 2015, a number of documents were sent to the Director-General concerning Mr El Ossman’s security assessment. Those documents included an ASIO briefing note, a draft adverse security assessment and a statement of grounds. As has already been noted, the versions of those documents that were tendered and admitted in evidence were heavily redacted, reflecting the Director-General’s public interest immunity claims.

46    The briefing note stated that its purpose was to recommend that ASIO furnish an adverse security assessment to the Department of Immigration and Border Protection in relation to Mr El Ossman. The briefing note recommended that the Director-General agree, by signing the attached security assessment certificate, to furnish an adverse security assessment in relation to Mr El Ossman’s visa application on the basis of the information contained in the attached classified statement of grounds. The “key message” in the briefing note for the Director-General was:

Mr El Ossman is a Lebanese national and onshore applicant for an Australian combined partner visa (subclass 820/801) and the current holder of an Australian temporary bridging visa (subclass 050). Mr El Ossman currently holds temporary residence status in Australia.

ASIO assesses Mr El Ossman to be directly or indirectly a risk to security and that it would not be consistent with the requirements of security for Mr El Ossman to be granted an Australia combined partner visa or to continue to hold a bridging visa. Accordingly, ASIO recommends Mr El Ossman’s application for an Australian combined partner visa be refused and his bridging visa be cancelled.

ASIO assesses that Mr El Ossman:

•    has been involved in politically motivated violence or acts in support of politically motivated violence, including the terrorist and jihadist conflict activities of the Jund Al Sham (JS) group in Lebanon and Syria, and has provided financial and logistical support for individuals engaged with terrorist groups overseas;

•    maintains associations with numerous terrorist and extremist individuals involved in activities prejudicial to security;

•    harbours an extremist ideology and support for politically motivated violence or acts in support of politically motivated violence; and

•    presents an avoidable risk to Australian security that would be substantially mitigated by the cancellation of his Australia visa and the refusal of his visa application.

47    The briefing note contained the following statements concerning “contentious and/or sensitive issues”:

Other than subsections 37(1), (3) and (4), Part IV of the ASIO Act does not apply to this security assessment. Accordingly, there is no requirement to provide Mr El Ossman with a copy of the assessment or reasons for the assessment, or seek Attorney-General’s certificates to withhold information from disclosure. As such:

•    Mr El Ossman is not required to be notified of ASIO’s adverse security assessment or provided with a copy of ASIO’s unclassified statement of grounds;

•    Mr El Ossman cannot seek merits review of ASIO’s adverse security assessment in the Administrative Appeals Tribunal, and so is not required to be provided with a Notice of Rights in relation to ASIO’s assessment; and

•    Mr El Ossman will retain the ability to challenge the ‘legality’ of the assessment process in the Federal or High Court, on the basis of legal error, such as a denial of procedural fairness. ASIO would seek orders to protect the material used in support of this assessment should judicial review proceedings arise.

In the interests of procedural fairness, ASIO provided Mr El Ossman with appropriate opportunities to respond to relevant security issues in a security assessment interview conducted on 22 October 2014.

48    The briefing note stated that, if approved, ASIO would furnish the Department of Immigration and Border Protection with an adverse security assessment and classified statement of grounds in relation to Mr El Ossman.

49    The Director-General signed the adverse security assessment certificate on 28 August 2015. The certificate contained the following assessment and recommendation in relation to Mr El Ossman:

5.    Assessment

ASIO assesses Mustapha El Ossman to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act and that it would not be consistent with the requirements of security for Mustapha El Ossman to be granted an Australian combined partner visa (subclass 820/801) or to continue to hold a bridging visa (subclass 050).

6.    Recommendation

ASIO recommends Mustapha El Ossman’s application for an Australian combined partner visa (subclass 820/801) be refused and his current Australian bridging visa (subclass 050) be cancelled. ASIO recommends that a further security assessment be requested from ASIO should Mustapha El Ossman lodge a further visa application.

The statement of grounds

50    The statement of grounds contained detailed references to the information relied on by ASIO, together with ASIO’s assessment of that information. In summary, consistent with the key message conveyed to the Director-General in the briefing note, the statement of grounds recorded that ASIO had made four critical assessments, or findings, in relation to Mr El Ossman. First, ASIO assessed that Mr El Ossman had been involved in politically motivated violence, or acts in support of politically motivated violence. Second, it assessed that Mr El Ossman maintained associations with numerous terrorist and extremist individuals. Third, it assessed that Mr El Ossman harboured an extremist ideology and support for politically motivated violence. Fourth, it assessed that Mr El Ossman presented an avoidable risk to Australian security.

51    In relation to the assessment that Mr El Ossman had been involved in politically motivated violence, the statement of grounds noted that, in his interview, Mr El Ossman had said that he had never trained or fought with Jund al-Sham, Jabhat al-Nusra or Islamic State, or undertaken any activities on behalf of those groups, or provided support to those groups. ASIO found, however, that Mr El Ossman’s claims in that regard were not true. Paragraph 13 of the statement of grounds (in its redacted form) stated as follows:

13. However, available intelligence shows Mr El Ossman’s claims in this regard are not true. A series of intelligence reports [redacted] stated an individual [redacted], whom ASIO assess to be identical with Mr El Ossman, was involved in politically motivated violence and other acts in support of politically motivated violence, including the terrorist activities of the JS group in Lebanon and Syria, and jihadist conflict in concert with JS. ASIO assessed [redacted] to be identical with Mr El Ossman based on ASIO, DIBP and [redacted] information identifying an identical year of birth, passport number and mother’s name [redacted].

(Emphasis added)

52    This extract omits various footnotes to paragraph 13, most of which were, in any event, heavily redacted.

53    The non-disclosure to Mr El Ossman, in the course of the security assessment process, of the information in the redacted version of paragraph 13 of the statement of grounds was central to Mr El Ossman’s claim that he was denied procedural fairness.

54    Paragraph 14 of the statement of grounds, which was also heavily redacted, stated that reporting from a (redacted) source stated that Mr El Ossman was a member of Jund al Sham, undertook “logistical tasks” and other activities for Jund al-Sham, and was involved in jihadist conflict and other activities as part of Jund al-Sham.

55    In relation to ASIO’s assessment that Mr El Ossman maintained associations with terrorist and extremist individuals, the statement of grounds again noted that Mr El Ossman, in his interview, had said that he was not associated with anyone who was a member or fighter with Jund al-Sham, Jabhat al-Nusra or Islamic State, did not know anyone who supported those groups or wanted to join them, and did not have any associates in Australia or Lebanon who would be of any security concern. The statement of grounds stated, however (at paragraph 16), that “multiple streams of [redacted] intelligence reporting show that Mr El Ossman’s statements regarding his associations are untrue”.

56    The details of that intelligence reporting appear to be set out at length in paragraph 16, however the version of that paragraph that was in evidence is almost completely redacted. The small amount of information in paragraph 16 that was not redacted contained three elements: first, that Mr El Ossman had a close association with the late Jund al-Sham leader, Khaled Riad Mahmoud; second, that Mr El Ossman shared a close personal association with a former bodyguard (whose name is redacted) for Australian-Lebanese terrorist Houssam El Sabbagh, who was a member of the former terrorist cell led by El Sabbagh in Tripoli; and third, that Mr El Ossman had personal connections with individuals of security interest in Australia.

57    The non-disclosure, during the assessment process, of the first two elements of the information in paragraph 16 of the statement of grounds was part of Mr El Ossman’s claim that he was denied procedural fairness.

58    At paragraph 17, the statement of grounds concluded that Mr El Ossman lied to ASIO when he said that he had not met with El Sabbagh and therefore could not judge whether he was a good man or not.

59    In relation to ASIO’s assessment that Mr El Ossman harboured an extremist ideology and support for politically motivated violence, the statement of grounds referred to Mr El Ossman’s responses during the interview that suggested that he supported the Free Syrian Army, but was disparaging towards other Syrian oppositional militia groups, including Jund al-Sham, Jabhat al-Nusra and Islamic State. At paragraph 19 of the statement of grounds, however, ASIO assessed that Mr El Ossman “holds beliefs which are substantially more extremist in nature, sympathetic toward terrorist figures, and supportive of Sunni Islamist terrorism”. Paragraph 19 apparently contains detailed references to the content of reports relied on in support of that assessment, but that content is almost entirely redacted.

60    Paragraph 21 of the statement of grounds contained the following assessment of the truthfulness of what Mr El Ossman had said about his terrorist and extremist activities and associations:

21. Moreover, based on available intelligence, ASIO assesses that Mr El Ossman has persistently and intentionally lied about his terrorist and extremist activities and associations. Mr El Ossman’s statements denouncing extremism and terrorism, denying any awareness of extremist or terrorist activities, and denying any associations of security relevance have been directly contradicted by multiple lines of [redacted] reporting. In this regard, ASIO assesses Mr El Ossman has engaged in an intentional strategy directed at deflecting Australian government attention from these issues and avoiding prejudicing his Australian migration status.

Provision of the assessment to the Department

61    It would appear that the Department of Immigration and Border Protection was notified of the adverse security assessment, and provided with a copy of the certificate, on 31 August 2015.

62    On 4 September 2015, the Minister for Immigration and Border Protection cancelled Mr El Ossman’s bridging visa. On the same day, Mr El Ossman was taken into immigration detention.

63    On 17 December 2015, the Department of Immigration and Border Protection was provided with, amongst other things, a truncated statement of grounds for the adverse security assessment of Mr El Ossman, together with advice that the truncated statement of grounds could be provided to Mr El Ossman. The truncated statement of grounds was even more heavily redacted than the version of the statement that was ultimately tendered and admitted into evidence in this proceeding.

64    On 10 February 2016, the Department of Immigration and Border Protection sent Mr El Ossman a notice of intention to consider the refusal of Mr El Ossman’s substantive visa application pursuant to s 501(1) of the Migration Act. Section 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6)(g) provides that a person does not pass the character test if the person has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act.

Review grounds and submissions

65    Mr El Ossman contended that the adverse security assessment was “made in excess of jurisdiction” and should accordingly be quashed. His statement of claim specified four grounds upon which the allegation of jurisdictional error was based.

66    The first, and perhaps primary ground, was that the assessment “was made in breach of the rules of natural justice” because there “was no, or in the alternative no sufficient, information given to [Mr El Ossman] during the interview (or otherwise) to fairly put him in a position where he could make meaningful submissions on findings of fact upon which the [a]ssessment was based”: paragraph 17 of the Statement of Claim. The three findings of fact that Mr El Ossman contended that he was not able to make meaningful submissions about were: that he was identical with a person known to ASIO who had the same year of birth, the same passport number and the same mother’s name as him; that he had a close association with the late Jund al-Sham leader, Khaled Riad Mahmoud; and that he shared a close personal association with a former bodyguard for Australian-Lebanese terrorist Houssam El Sabbagh. In oral submissions, Mr El Ossman added three other findings of fact to that list: that Mr El Ossman was involved in politically motivated violence, including in terrorist activities of Jund al-Sham in Lebanon; that he was involved in jihadist conflict in concert with Jund al-Sham; and that his denials of such involvement were not believed by ASIO.

67    In simple terms, Mr El Ossman submitted that ASIO or the Director-General should have put those findings of fact, or the information upon which they were based, to Mr El Ossman and given him an opportunity to respond to them. He relied, in support of that submission, primarily on the judgments of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

68    Mr El Ossman’s remaining grounds of challenge focussed on the Determination. Mr El Ossman submitted that s 37(4) of the ASIO Act, properly construed, provided that ASIO was bound by the Determination. In Mr El Ossman’s submission, that was clear from the use of the word “determine” in s 37(4), and because the Director-General was required to consult with the Minister in relation to determining the matters that are to be taken into account in making security assessments.

69    Mr El Ossman contended that ASIO or the Director-General failed to comply with the Determination in three ways. First, he contended that Mr El Ossman’s security assessment was not as fair as possible taking into account the requirements of security as required by clause 7.1(c) of the Determination. That was because Mr El Ossman was denied procedural fairness. Second, he contended that ASIO or the Director-General failed to have regard to the requirements of procedural fairness to the greatest extent possible consistent with national security interests as required by clause 7(c) of the Determination. Third, he submitted that ASIO or the Director-General had regard to information that did not have a reasonable nexus to him, as the assessment subject, contrary to clause 8(c) of the Determination. That information was said to be the information concerning the “other person”. That amounted, in effect, to a challenge to ASIO’s finding that Mr El Ossman was that other person.

70    Mr El Ossman’s application also sought an order restraining the Minister for Immigration and Border Protection from having regard to the security assessment in making any decision under the Migration Act concerning him. The Minister objected to the competency of this aspect of Mr El Ossman’s application. The Minister contended that, while the Court may have jurisdiction to grant injunctive relief against him in respect of a prospective decision under s 501(1) of the Migration Act, it did not have jurisdiction to grant relief in the broad terms sought by Mr El Ossman.

71    As events transpired, Mr El Ossman did not pursue any relief against the Minister. That appears to have been because the Minister provided an inter partes assurance to Mr El Ossman that he would not rely on the security assessment in the exercise of his power under s 501(1) of the Migration Act while the proceedings challenging the assessment remained on foot. The Minister also indicated that if the assessment was ultimately quashed by the Court, he would not rely on the assessment in making any decision under the Migration Act.

72    The only issue for determination as between Mr El Ossman and the Minister concerned the costs of the proceedings.

Procedural Fairness

73    It was common ground that, in making the adverse security assessment, ASIO, through the Director-General, was obliged to afford Mr El Ossman procedural fairness. The critical questions were: first, what was the content of the requirements of procedural fairness, or what did procedural fairness require, in the particular statutory context and facts and circumstances of Mr El Ossman’s case; and second, were those requirements observed in Mr El Ossman’s case.

Relevant principles

74    A statute conferring a power the exercise of which is apt to adversely affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness, unless that presumption is clearly displaced by the particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [75].

75    The Director-General appeared to concede that this presumption applied to, and was not displaced by, the statutory scheme in relation to security assessments. That concession was properly made. There could be little doubt that ASIO’s power to furnish adverse security assessments was apt to affect the interest of an individual. That is implicit in the statutory definition of “adverse security assessment”, which includes any opinion or advice that is or could be “prejudicial to the interests of the person”. A security assessment furnished to the Minister for Immigration and Border Protection which assesses that the assessment subject is a risk to security, and recommends that the subject’s visa application be refused, may well, indeed as a practical matter is highly likely to, lead to the visa being refused under s 501(1) of the Migration Act. The exercise of power to issue such an adverse security assessment is therefore apt to adversely affect the assessment subject. The presumption of procedural fairness in relation to security assessments was not clearly displaced by any provision in the ASIO Act.

76    As adverted to earlier, the principal issue in this matter concerned what procedural fairness required in the case of Mr El Ossman’s security assessment.

77    There are many cases that discuss the content of the requirements of procedural fairness in different statutory and factual contexts. There is, however, a danger in simply transposing general statements concerning the requirements of procedural fairness to entirely different statutory and factual contexts. It is impossible to lay down a “universally valid test” in relation to the content of the requirement of procedural fairness: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 (Kitto J).

78    The ultimate question is “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). That statement emphasises two matters that must be considered in determining the content of the requirements of procedural fairness in any given case.

79    First, it is critical to have regard to the statutory or legal framework within which the decision is to be made: see SZBEL at [26]; Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [498] (Bell J); Habib v Director-General of Security (2009) 175 FCR 411 at [63]. Where the statutory power involves the conduct of some form of inquiry, considerations that might be relevant include: the subject-matter, nature and purpose of the inquiry; whether the statute provides for a hearing or other particular procedures or rules to be observed in the conduct of the inquiry; and whether the inquiry is investigative, inquisitorial, or adversarial.

80    Second, consideration must also be given to the particular facts and circumstances of the case. The touchstone is whether the procedures adopted in the particular case have resulted in a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].

81    In general terms, the requirements of procedural fairness are directed to ensuring that a person that may be affected by an exercise of power is given an opportunity to be heard; an opportunity to propound his or her case for a favourable exercise of the power and make meaningful submissions: SZSSJ at [82]; Jaffarie v Director-General of Security (2014) 226 FCR 505 at [113]. In most cases, that would require the person to be put on notice of: “the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of the power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”: SZSSJ at [83].

82    The information that must be disclosed to the person ordinarily includes information adverse to the person which is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 628-629; VEAL at [15]-[17]. Depending on the particular circumstances, it may not be necessary to disclose the precise details of that information; rather, it may be enough to disclose the gravamen or substance of the information so that the person is on notice of its essential features: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [70]; Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at [37].

83    The requirement to notify the person of adverse material, however, may have to be modified where there is a “problem of confidentiality”: Kioa v West at 628-629. That would include cases where the information would be protected or prohibited from disclosure by reason of national security: M47/2012 at [250] (Heydon J); Leghaei at [48], [50], [53]; Sagar v O’Sullivan (2011) 193 FCR 311 at [71]-[73].

84    The person may also have to be put on notice of “any adverse conclusion which had been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; SZBEL at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: M47/2012 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

Was Mr El Ossman afforded procedural fairness?

85    There could be little or no doubt that ASIO was in possession of information that was adverse to Mr El Ossman that it might, and ultimately did, take into account in making the adverse security assessment. That information included information that a person using a particular name was involved in politically motivated violence, together with information that led ASIO to assess that Mr El Ossman was the person using that name. The information that led ASIO to believe that Mr El Ossman was the person using that name included that Mr El Ossman had the same year of birth, passport number and mother’s name as the year of birth, passport number and mother’s name associated with that other name. ASIO’s assessment that Mr El Ossman was the person using that other name was one of the facts that led it to conclude that Mr El Ossman had been involved in political violence.

86    ASIO was also in possession of other specific information that led it to believe that Mr El Ossman was associated with the terrorist groups Jund al-Sham, Jabhat al-Nusra and Islamic State. That information included that Mr El Ossman shared a close personal association with a former bodyguard of Australian-Lebanese terrorist, Houssam El Sabbagh, who was a member of the former terrorist cell that was led by El Sabbagh in Tripoli. It also included information that Mr El Ossman had a close association with the late Jund al-Sham leader, Khaled Riad Mahmoud. ASIO also possessed other information that indicated that Mr El Ossman held extremist views, was sympathetic toward terrorist figures, and supported Sunni Islamic terrorism, though the particulars of that information were, at least for the purposes of this proceeding, unknown.

87    It is abundantly clear that ASIO did not disclose any of that adverse information to Mr El Ossman during the process of making the security assessment. Nor did it advise Mr El Ossman of any of the adverse conclusions which it had evidently reached based on that information. ASIO did not contend otherwise. There is no reason to doubt that ASIO considered that the information that it possessed in relation to those matters was credible, relevant and significant to the security assessment. Again, ASIO did not suggest otherwise. Equally, it is open to infer from the redacted intelligence report, briefing note and statement of grounds that, prior to making the assessment, ASIO had arrived at adverse conclusions based on the information available to it which could not accurately be described as mere mental processes or provisional views. Those conclusions were not disclosed to Mr El Ossman either prior to, during, or following the interview.

88    The procedure adopted by ASIO was to interview Mr El Ossman, advise him in general terms of the purpose of the interview and the nature of the inquiry, and to then ask Mr El Ossman a series of open questions concerning the identified issues. It may be inferred that the interviewing officers made a conscious decision not to disclose to Mr El Ossman during the interview the adverse information that was in their possession. Almost a year passed before ASIO, through the Director-General, decided to issue the adverse security assessment. There was no further interaction with Mr El Ossman during that period. No adverse information possessed by ASIO was disclosed to Mr El Ossman during that period. Nor was Mr El Ossman advised of, or given an opportunity to comment on, any likely findings or conclusions based on that information. Mr El Ossman was not interviewed again.

89    The critical question is whether the procedure adopted by ASIO was sufficient to ensure that the decision to make the adverse security assessment was made fairly having regard to the legal framework within which the decision was made and the particular facts and circumstances of Mr El Ossman’s case. Did the procedure that was adopted by ASIO so constrain Mr El Ossman’s opportunity to propound his case for a favourable exercise of power – a favourable security assessment – as to amount to a practical injustice? Was enough information provided to Mr El Ossman in all the circumstances to enable him to make meaningful submissions, or provide meaningful information, in relation to the issues that were likely to arise in relation to his security assessment?

90    While those questions may be easy to state, the answers to them are by no means obvious or straightforward. The situation is finely balanced.

91    The first step is to ascertain what can be gleaned about the relevant requirements of procedural fairness from the legal framework in which the adverse security assessment was made. The statutory scheme in relation to security assessments was outlined earlier. The following points relevant to an assessment of the requirements of procedural fairness may be made in relation to that scheme.

92    First, the statutory scheme does not establish any specific procedure for making security assessments. ASIO is not required to provide a hearing, or to interview a person who is being assessed. There is no express statutory requirement to provide the person with any information prior to the making of the assessment.

93    Second, there is provision in the statutory scheme for the person subject to an adverse security assessment to be notified of the adverse security assessment once it is made. That notification requirement is subject to an exception. That exception applies where the Attorney-General has certified that withholding notification is essential to the security of the nation. Where notification is required, the notification includes notification of the grounds of the adverse assessment. Subject to one exception, notification of the grounds in turn involves notification of the information relied on by ASIO in making the assessment. The exception is again related to the requirements of security: the statement of grounds need not include information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security. It is clear, therefore, that the interests of the assessed person to be notified of the information relied on by ASIO must, in certain circumstances, give way to the requirements of security.

94    It is to be noted, however, that this aspect of the statutory scheme relates to the provision of information after the assessment is made. It says nothing, at least directly, about what information may need to be disclosed during the assessment process to ensure that the process is fair.

95    Third, there is provision in the statutory scheme for the review of adverse security assessments by the Administrative Appeals Tribunal. There is no doubt that the Tribunal would be required to afford procedural fairness to a review applicant.

96    Fourth, the provisions in relation to both notification and review are excluded in the case of certain types of security assessments. Security assessments that are excluded from those provisions include, relevantly, assessments that relate to the exercise of powers or the performance of functions under the Migration Act in respect of a person who is not an Australian citizen. That might tend to indicate a legislative intention to limit the content of procedural fairness in respect of the excluded classes of security assessment. So much so was contended by the Director-General. He submitted that it would be inconsistent with the statutory scheme if procedural fairness required the disclosure of information to non-citizens, like Mr El Ossman, that Parliament has provided need not be disclosed in respect of the assessment process.

97    It is to be noted again, however, that the excluded provisions concerning notification and review concern post-assessment procedures. It could perhaps be argued that it would be strange that procedural fairness in relation to the making of the assessment required the disclosure of information which need not be disclosed after the assessment was made. Equally, however, it could be argued that the fact that the statutory scheme makes express provision for the non-disclosure of information following the assessment, but makes no express provision for the non-disclosure of information during the assessment process, tells against any legislative intention to limit the content of procedural fairness.

98    Fifth, the security assessment process is plainly investigative and inquisitorial. As a result, the rules of evidence and procedure that apply or have been developed in the context of adversarial proceedings are unlikely to be applicable or apposite in divining the requirements of procedural fairness: Abebe v Commonwealth (1999) 197 CLR 510 at [295] (Callinan J); Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 at [76] (Gaudron and Gummow JJ); MYVC v Director-General of Security (2014) 234 FCR 134 at [71]. That would include the so-called rule in Browne v Dunn (1893) 6 R 67 which, in very general terms, in certain circumstances requires a cross-examiner to confront a witness with relevant imputations that the cross-examiner later intends to submit should be made against the witness.

99    The Director-General submitted, in effect, that these features of the statutory scheme suggested that ASIO’s obligation to disclose to assessment subjects, when undertaking security assessments, the issues to be considered and the relevant information available to it, is of much more limited scope than the equivalent obligation in different statutory contexts. In the Director-General’s submission, ASIO will satisfy its procedural fairness obligations in conducting a security assessment in respect of a person who is a non-citizen if it conducts an interview with the person, informs the person that he or she is being assessed for security purposes, directs the person’s attention to “the general issues of concern to ASIO”, and gives the person an opportunity to address those general issues and advance any evidence or material relevant to them.

100    Such a generalised description of ASIO’s procedural fairness obligations is not particularly helpful. It may readily be accepted that the identified features of the statutory scheme for security assessments will inform the level of disclosure that will be required. As already indicated, it is quite clear that ASIO could not be expected to disclose information to an assessment subject where that disclosure would be contrary to the requirements of security. That may mean, in some cases, that very little in the way of specific adverse information can be disclosed, or that adverse information can only be disclosed in very general or “high level” terms. Much will depend on the particular circumstances of the case. Equally, it is quite clear that, if ASIO does choose to conduct an interview with the assessment subject, the interviewing officers are not obliged to follow the rules of evidence or procedure that may be applicable in adversarial proceedings, or even the procedures that might be applicable in a hearing conducted by a tribunal, such as the Administrative Appeals Tribunal.

101    Ultimately, however, the question remains whether ASIO has sufficiently disclosed to the person being assessed the nature and purpose of the inquiry being conducted by ASIO (i.e. the security assessment), the issues to be considered in conducting that inquiry and, subject to the requirements of security, the nature of any information that ASIO might have and might take into account in making an adverse assessment. The disclosure will be sufficient if it is such that the person is given a fair opportunity to provide information, or make meaningful submissions, as to why an adverse security assessment should not be made. It is not particularly useful to generalise beyond that. Much will depend on the particular facts and circumstances of the case. In some cases, the dictates of security may be such that ASIO could not be expected to do anything beyond identifying the issues of concern and the relevant information in very general terms. In other cases, however, a greater level of specificity or particularity may be possible, and may be required, to ensure that the process is fair and that the assessment subject is given a fair opportunity to make submissions and provide information relevant to the security assessment.

102    In Mr El Ossman’s case, it can readily be inferred that at the time ASIO interviewed Mr El Ossman, it was in possession of information that led it to suspect that Mr El Ossman was a security risk: that he had been involved in or supported politically motivated violence, that he associated with known terrorists or extremists, and that he held extremist beliefs. That information included, at least, information concerning three matters: first, that Mr El Ossman had used another name and that a person using that name had been involved in politically motivated violence; second, information that Mr El Ossman had a close association with the late leader of Jund al-Sham, Khaled Riad Mahmoud; and third, information that Mr El Ossman shared a close personal association with a former bodyguard for Australian-Lebanese terrorist, Houssam El Sabbagh. No information concerning those three matters was disclosed to Mr El Ossman, in general terms or otherwise, either before or during the interview. Indeed, ASIO did not disclose to Mr El Ossman that it was in possession of any information, even information described in the most general terms, that might lead it to make an adverse security assessment.

103    There could be no doubt that for security reasons ASIO was not able to disclose a good deal of the specific information it possessed relating to Mr El Ossman, including some information concerning the three specific matters just referred to. Specifically, ASIO was not able to, and could not be expected to, have disclosed to Mr El Ossman the other name that ASIO believed he used. The Director-General’s public interest immunity claim in relation to that information was upheld. Nor could ASIO disclose to Mr El Ossman the name of Houssam El Sabbagh’s bodyguard, or the specific information it possessed concerning Mr El Ossman’s close association with Khaled Riad Mahmoud. The Director-General’s public interest immunity claims in relation to that specific information was not challenged by Mr El Ossman.

104    However, as events transpired, the interests of security did not preclude ASIO from disclosing some information concerning those three matters, albeit in fairly general terms. The versions of the intelligence report and statement of grounds that were ultimately produced to Mr El Ossman for the purposes of this proceeding included some general information concerning each of the three matters. There is no evidence to explain why that general information was not disclosed to Mr El Ossman in the interview. Specifically, there is no direct evidence to the effect that this information was not disclosed to Mr El Ossman for reasons relating to security.

105    It would appear that, by December 2015, over a year after the interview, someone at ASIO formed the view that information, even in general terms, concerning the three matters should not be disclosed to Mr El Ossman. The truncated statement of grounds provided to the Department of Immigration and Border Protection, on the basis that it could be provided to Mr El Ossman, had all references to that information redacted. The truncated statement of grounds contained no reference to ASIO’s assessment that Mr El Ossman was the person, albeit with a different name, who was known to have been involved in politically motivated violence. There was also no reference to any information concerning Mr El Ossman’s association with Houssam El Sabbagh’s bodyguard, or his close association with Khaled Riad Mahmoud.

106    The difficulty, however, is that the Director-General did not adduce any evidence to explain the redactions in the truncated statement. There was no evidence explaining why and on what basis the information concerning the three matters was redacted, or who decided to redact it, or when that decision was made. Nor did the Director-General adduce any other evidence to explain why any information concerning the three matters was not disclosed to Mr El Ossman at any time during the interview, or at any rate prior to the making of the assessment. It follows that, while it may perhaps be inferred that someone at ASIO believed that the information should not be disclosed to Mr El Ossman in the context of the administrative action to be taken by the Minister, it cannot necessarily be inferred that at the time of the security assessment interview ASIO believed that the requirements of security were such that the information could not be disclosed.

107    A similar issue arose in Jaffarie. That case also concerned judicial review of an adverse security assessment by ASIO. Mr Jaffarie was initially supplied with an unclassified statement of reasons concerning the adverse security assessment. At the hearing of Mr Jaffarie’s application, however, Mr Jaffarie was provided with further materials which exposed the manner in which ASIO had proceeded. Mr Jaffarie argued that he was denied procedural fairness because certain information that formed part of ASIO’s analysis was not disclosed “at the outset”. The Full Court rejected the contention that Mr Jaffarie had been denied procedural fairness. Flick and Perram JJ (with whom White J relevantly agreed) reasoned (at [111]) that the mere fact that more information may have been made available to Mr Jaffarie during the course of the hearing did not necessarily say anything as to whether the initial disclosure was sufficient to afford procedural fairness. At [113], their Honours said:

It is concluded that in the context of decisions being made as to national security, an argument as to a denial of procedural fairness is not to be resolved by identifying further information which could (with the benefit of hindsight) have been disclosed to an affected person. The argument 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….

…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.

108    In short, the question was not whether more information could or should have been disclosed at the outset. The question was whether what had been disclosed during the assessment process was sufficient to afford procedural fairness.

109    The Court found that in the particular circumstances of Mr Jaffarie’s case, enough was initially disclosed to enable Mr Jaffarie to make meaningful submissions. It was acknowledged (at [113]), however, that in “different circumstances, a failure to disclose at the outset all of that information which could be legitimately disclosed may attract a different conclusion”.

110    The question remains, then, whether sufficient information was disclosed to Mr El Ossman at the outset to enable him to make meaningful submissions concerning why ASIO should not give him an adverse security assessment.

111    The Director-General contended that Mr El Ossman had been given sufficient information. He relied on a number of features of the interview.

112    First, Mr El Ossman’s interview proceeded for approximately 3 hours and 15 minutes. Mr El Ossman was advised that he could have a lawyer attend the interview with him if he wanted to, but he declined the opportunity to have a lawyer present.

113    Second, the ASIO interviewers explained the purpose of the interview to Mr El Ossman. The explanation included a statement that “the interview is an opportunity for you [Mr El Ossman] to resolve any security concerns that ASIO has and to tell us about yourself and your background, who you associate with and what sort of activities you’re involved in”. It may be noted, in this context, however, that at no stage during the interview did ASIO explain to Mr El Ossman that it did in fact have security concerns about Mr El Ossman, let alone what those concerns were, or what information ASIO possessed that gave rise to those concerns.

114    Third, the Director-General submitted that the ASIO interviewers explained, or put Mr El Ossman on notice of, the key issues of concern to ASIO. The Director-General relied, in support of that submission, on certain questions that the interviewers asked, including: whether Mr El Ossman was known by other names; whether he had been involved in any militia groups or protest activities in Lebanon; whether he had any views, and what those views were, in relation to various matters concerning fighting and anti-government groups in Syria; his opinions in relation to Islamic State, Jund al-Sham and Jabhat al-Nusra and whether he had ever provided any assistance to, fought or trained with, or undertaken any activities on behalf of any of those groups; whether he had any friends or associates in Australia or Lebanon who were members of, or fought with, or provided money to, those or any other militia groups; and whether he knew Houssam El Sabbagh and, if so, if he thought he was a “good man”.

115    It may, in this context, be accepted that Mr El Ossman could have been under no illusions as to the types of information that ASIO was interested in. It is doubtful, however, that this questioning could accurately be characterised as putting Mr El Ossman on notice of ASIO’s “concerns”. The questions concerning these matters were all framed in open and non-leading terms. The interviewers gave Mr El Ossman no indication that they did not believe, or even doubted, any of his responses, or had reason to doubt his answers, or had any information contrary to Mr El Ossman’s answers. They did not in any relevant sense put Mr El Ossman on notice that ASIO was in fact concerned that he was involved with or supported politically motivated violence in Lebanon or Syria, or that he was associated or involved in some way with Islamic State, Jund al-Sham or Jabhat al-Nusra, or that he knew or supported Houssam El Sabbagh.

116    Fourth, the Director-General relied on the fact that the ASIO interviewers emphasised on four occasions that it was important for Mr El Ossman to be honest and provide honest and full answers to their questions. Mr El Ossman was also asked on a number of occasions whether he wanted to add to or clarify any of his answers. As already noted, however, the interviewers gave Mr El Ossman no cause for suspecting that they did not believe that Mr El Ossman had given untruthful answers to any of their questions. The interviewers also asked Mr El Ossman whether there was “anything that you haven’t told us that if we found it [sic] out later it would be damaging to your security assessment”. It may be noted, however, that this question was directed to information that ASIO might find out about later, not information that it already possessed. This question perhaps reinforced the impression, that otherwise may have been conveyed by the tone and tenor of the questioning, that ASIO did not presently have any information that was damaging to Mr El Ossman’s security assessment.

117    In relation to the so-called “other person” information, the Director-General pointed out that Mr El Ossman answered “no” to the question whether he was known by any other names. The Director-General submitted that ASIO was not obliged to disclose to Mr El Ossman its “opinion or preliminary conclusion” that Mr El Ossman was that other person and that, in any event, it could not have put the issue to Mr El Ossman in any more detail without compromising the interests of national security.

118    In relation to the information concerning Mr El Ossman’s association with Houssam El Sabbagh’s bodyguard, the Director-General pointed out that Mr El Ossman had been asked various questions, albeit in general terms, concerning whether he knew or associated with any members or supporters of terrorist groups in Lebanon, or whether he knew or supported Houssam El Sabbagh. The Director-General submitted that it was unnecessary to put the specific allegation of Mr El Ossman’s association with the bodyguard to him because ASIO had put Mr El Ossman “squarely on notice” that the question of whether he had an association with Houssam El Sabbagh was a significant factual matter for ASIO.

119    In relation to the issue concerning Mr El Ossman’s association with Khaled Riad Mahmoud, the Director-General relied on the fact that Mr El Ossman was repeatedly asked whether he knew anyone who had been a member or supporter of, or had fought with, groups including Jund al-Sham. On each occasion Mr El Ossman answered “no”. The Director-General submitted that no more in fairness needed to be disclosed to Mr El Ossman in order for him to make meaningful submissions.

120    In the Director-General’s submission, the situation was relevantly analogous to the situation in Jaffarie: even though ASIO could have given Mr El Ossman more detailed information at the outset, the disclosure that was made was sufficient. The Director-General also contended that there was “nothing to be gained” from asking Mr El Ossman whether, notwithstanding the negative answers he had given to the general questions concerning his association with members or supporters of terrorist groups, he had a close association with Khaled Riad Mahmoud. Indeed, it was submitted that this line of questioning would have been “futile” or “pointless”.

121    There is some merit in some of the Director-General’s submissions. On balance, however, the Director-General’s overall contention that sufficient information was disclosed to Mr El Ossman during the interview to enable him to make meaningful submissions, or to propound a case for why an adverse security assessment should not be made, cannot be accepted. On balance, the decision to make an adverse security assessment regarding Mr El Ossman was not made fairly in all the circumstances having regard to the legal framework within which the decision was to be made. There was practical injustice.

122    The following considerations tip the balance in favour of that conclusion.

123    First, the entire process, insofar as Mr El Ossman was concerned, involved a single three hour interview on 22 October 2014. There is no suggestion, let alone evidence, that Mr El Ossman was given any information prior to the interview concerning the purpose of the interview, the nature of the inquiry being conducted by ASIO, the issues that would be considered in conducting the inquiry, or the nature and content of any information that ASIO possessed and might take into account for the purposes of that inquiry. Mr El Ossman was given no further opportunity, by way of further interview or otherwise, to address any of the issues raised with him during the interview. Almost a year after the interview, ASIO made an adverse security assessment in relation to Mr El Ossman. Mr El Ossman was not contacted by ASIO during that intervening period. No information was disclosed to Mr El Ossman during that period.

124    Second, it may be accepted that at the interview, the ASIO interviewing officers gave Mr El Ossman an explanation, albeit in fairly general terms, of the nature and purpose of the inquiry being conducted by ASIO, including the issues that were to be the focus of the inquiry. Mr El Ossman’s responses during the interview show that he was aware that the inquiry concerned issues relating to national security, that such issues included politically motivated violence and violent protest activity, and that in that context, he would be asked questions concerning his background, who he associated with, and what sort of activities he was involved in. Perhaps most importantly, Mr El Ossman was told that the interview was his opportunity to “resolve any security concerns that ASIO has and to tell us about yourself and your background, who you associate with and what sort of activities you’re involved in”.

125    The difficulty, however, is that, as adverted to earlier, when read in context, the statement concerning Mr El Ossman’s opportunity to resolve any security “concerns” that ASIO had did not clearly and adequately put Mr El Ossman on notice that ASIO in fact had any such concerns, let alone what those concerns were. Nor did the statement put Mr El Ossman on notice that ASIO possessed information concerning him that might be a reason for finding that Mr El Ossman was a risk to national security. The statement was at best somewhat ambiguous. The use of the word “any” left open the possibility that ASIO did not in fact have any actual concerns in Mr El Ossman’s case. The statement also followed a very general description of national security, which not only included a reference to politically motivated violence, but also included references to espionage, spying, sabotage and border integrity. The general reference to Mr El Ossman being given the opportunity to tell ASIO about himself, his background, and his associations and his activities, was not linked to any specific security concerns, let alone any specific security concerns that ASIO may in fact have had in relation to Mr El Ossman.

126    In all the circumstances, fairness required that Mr El Ossman be told, at the very least, that the interview was his opportunity to resolve “the” or “some” security concerns that ASIO in fact had in relation to him, and at least a general description of what those concerns were. From what was said to Mr El Ossman, it would have been quite open to him to believe or assume that this may well have been a routine interview or procedure that everyone in his position was subjected to. In all the circumstances, the “opportunity” afforded to Mr El Ossman to “resolve any security concerns that ASIO has” could more accurately be characterised as amounting to no more than “a general and unfocused invitation to make submissions”: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223 (Gummow J).

127    Third, it may also be accepted that Mr El Ossman was asked a series of open questions concerning his involvement in or support for politically motivated violence in Lebanon and Syria, his opinions of and any involvement he may have had with groups including Islamic State, Jund al-Sham and Jabhat al-Nusra, and any association he may have had with people connected with those groups, including Houssam El Sabbagh. It could therefore be said that Mr El Ossman was made aware that ASIO’s inquiry was directed primarily to whether he had been involved in or was associated with any politically motivated violence. He was given an opportunity to inform ASIO that he had not been involved in politically motivated violence, did not have any association with any groups or persons involved in politically motivated violence, and did not hold any opinions that might give rise to security concerns. To that extent, at least, he was given an opportunity to provide information concerning the issues raised by ASIO during the interview.

128    The difficulty, however, is that nothing whatsoever was said to Mr El Ossman during the interview to indicate that ASIO possessed any information that might cause it to doubt any of Mr El Ossman’s answers to the questions that were put to him. Nor was anything said to Mr El Ossman to suggest that the interviewers had any doubts or concerns about the reliability or truthfulness of any of Mr El Ossman’s answers to the questioning, or had any reason or basis for doubting his responses. He was not challenged or tested in any respect, let alone confronted with any information that may have provided the basis for any such challenge.

129    It is true that, as made clear earlier, procedural fairness does not ordinarily require the exposure of a decision-maker’s mental processes, provisional views, opinions, doubts or subjective appraisals. Nor, at least where, as here, the procedure or function is inquisitorial or investigative, is a questioner required to confront an examinee with specific allegations, or put to an examinee or interviewee assertions of apparent falsity or unreliability. Here, however, it would not be accurate to describe the position as involving ASIO’s mere mental processes, provisional views, opinions, doubts or subjective appraisals. ASIO’s rejection of Mr El Ossman’s account was not based on his demeanour during the interview, or any inconsistencies in his answers, or even any subjective appraisal of the plausibility or reliability of what he said during the interview. The clear inference that flows from the documentary evidence is that, at the time of the interview, or certainly by the time of the adverse security assessment, ASIO possessed information that ran directly counter to Mr El Ossman’s answers to many of the general questions put to him. That information included information that, as events transpired, could have been disclosed to Mr El Ossman without any apparent risk to security. ASIO concluded that Mr El Ossman’s answers given during the interview were untruthful because they were contrary to that information. ASIO disclosed none of that information to Mr El Ossman. Mr El Ossman was given no opportunity to respond to, or make submissions concerning, any of that information. Nor did ASIO disclose to Mr El Ossman in any way that it possessed any information that caused it, or might have caused it, to doubt any of his answers.

130    Fourth, and more specifically, Mr El Ossman was not put on notice that ASIO possessed information that suggested that he had used another name, and that the person using that name was known to have been involved in politically motivated violence. He was not told that the basis of ASIO’s assessment in that regard was that Mr El Ossman’s passport number, mother’s name and year of birth had been linked to that other name, or the person using it. It must be accepted that the interests of security prevented ASIO from disclosing the precise details of the name said to have been used by Mr El Ossman. The interests of security did not, however, prevent ASIO from disclosing at least some information concerning this issue so that Mr El Ossman was given an opportunity to comment on it. Mr El Ossman could, for example, have been advised that ASIO was in possession of information concerning the adverse activities of a person who had been identified as having used the same year of birth, passport number and mother’s name as Mr El Ossman. He could have been asked if he had any knowledge of, or explanation for, that information. Alternatively, he could have been asked if he was aware of any person who had the same year of birth, passport number and mother’s name as him, or who had used those identifying criteria at any time.

131    It cannot safely be concluded that the disclosure of that information, or any questioning concerning it, would have futile or pointless: cf. M47/2012 at [253] (Heydon J). It cannot be excluded that Mr El Ossman might have had an explanation, or otherwise provided meaningful information on this issue if given the opportunity to do so. That information or explanation might not have been inconsistent with Mr El Ossman’s statement that he had not used any other names. Hypothetically, for example, Mr El Ossman could have said that he was aware that someone had appropriated those identification criteria and that such identity theft is common in Lebanon because the passport system was insecure and passport numbers were unreliable. He may have said that his mother’s name is a very common name in Lebanon. ASIO may not have believed such information, but that is beside the point. The situation, and the possible line of questioning, is quite different to the possible line of questioning posited by the plaintiff, but rejected by Heydon J, in M47/2012.

132    Fifth, the same can be said about the information in ASIO’s possession concerning Mr El Ossman’s apparently close association with Houssam El Sabbagh’s bodyguard. It must be accepted that ASIO was prevented from disclosing to Mr El Ossman the name of the bodyguard and some other associated or surrounding information. There was, however, apparently nothing to prevent ASIO from disclosing to Mr El Ossman that it was in possession of information that indicated that he had a close association with a bodyguard, or former bodyguard, of Houssam El Sabbagh. At the very least, Mr El Ossman could have been asked whether he had a close association with somebody who had worked as a bodyguard for Houssam El Sabbagh. It cannot be excluded that, if that information was disclosed, or if Mr El Ossman was at least asked a specific question concerning Houssam El Sabbagh’s bodyguard, Mr El Ossman might have had an explanation for any association he may have had with the bodyguard which was not inconsistent with his claim that he was not in any way associated with Houssam El Sabbagh himself. To give another hypothetical example to demonstrate the point, Mr El Ossman may have claimed that he simply played backgammon with the bodyguard and never discussed politics with him. Thus his association may have been entirely innocent. As with the “other person” issue, ASIO may well have disbelieved that claim, but that is entirely beside the point. Fairness required that Mr El Ossman be given at least some opportunity to respond to that specific piece of information.

133    Sixth, the information concerning Mr El Ossman’s association with Khaled Riad Mahmoud is in a slightly different category. That is because the unchallenged public interest immunity claim by the Director-General indicates that the interests of national security prevented ASIO from disclosing to Mr El Ossman virtually all of the specific information it possessed concerning that association. Nevertheless, Mr El Ossman was not asked any specific question concerning Khaled Riad Mahmoud. It was certainly not revealed to him, even in the most general terms, that ASIO was in possession of information that indicated that he in fact had a close association with Khaled Riad Mahmoud.

134    Seventh, it cannot be concluded that the information possessed by ASIO concerning the “other person” issue, Mr El Ossman’s association with Houssam El Sabbagh’s bodyguard, and Mr El Ossman’s association with Khaled Riad Mahmoud, was not considered by ASIO to be credible, relevant and significant to Mr El Ossman’s security assessment. It plainly was. Nor could it be concluded that the findings based on that information were not important to the ultimate assessment. A fair reading of the redacted statement of grounds reveals that ASIO’s findings that statements and claims made by Mr El Ossman in the interview were untrue was based at least in part on that information.

135    Eighth, as noted earlier, the Director-General did not adduce any evidence in the proceeding to explain why any of the credible, relevant and significant information that was known to ASIO, but not ultimately the subject of public interest immunity claim, was not disclosed to Mr El Ossman at the outset, or at least at some point prior to the making of the adverse security assessment. Nor was any explanation given in evidence for why it was never disclosed to Mr El Ossman, even in the most general terms, that ASIO in fact had some specific security concerns in relation to Mr El Ossman, or what those concerns were, or that ASIO was in possession of information that might cause it to doubt some (if not most or all) of what Mr El Ossman said during the interview. The affidavits relied on by the Director-General in support of the public interest immunity application were not read in the proceeding proper. While it may be accepted, on the basis of what was said in Jaffarie, that the question of procedural fairness is not to be approached on the basis of a hindsight assessment of what additional information might have been produced at the outset, it remains the case that the almost complete non-disclosure of any information to Mr El Ossman remained unexplained. It should also be noted, in this context, that the Director-General gave evidence in the substantive proceeding in Jaffarie, not just in relation to the public interest immunity claim.

136    Ninth, each of the above eight features of the interview and Mr El Ossman’s case must be considered together and cumulatively. It is the cumulative effect of each of these matters that supports the finding that the procedure adopted by ASIO in Mr El Ossman’s case so constrained his opportunity to propound his case for a favourable assessment as to amount to practical injustice. The combined effect of each of these matters is that Mr El Ossman was not fairly put in a position whereby he could make meaningful submissions in relation to the facts and issues that ultimately led to the adverse security assessment.

137    Tenth, the facts and circumstances of this case are distinguishable from the facts and circumstances of the cases relied on by the Director-General. In M47/2012, for example, the interviewing officers made it clear to the plaintiff that his version of events was heavily disputed. Gummow J noted (at [143]) that it was put to the plaintiff on at least six occasions in the interview that he was changing his story, giving an incomplete account in important respects, and failing to explain discrepancies in various accounts he had given. Likewise, Bell J noted (at [501]) that it was “abundantly plain” to the plaintiff that some of his claims were “in issue”, that the interviewing officer squarely raised with the plaintiff that he had deliberately withheld information, and that claimed inconsistencies in the plaintiff’s account of certain events were drawn to his attention and he was invited to comment on them. This appeared to be important to her Honour’s conclusion (at [502]) that the plaintiff could not be said to have been “left in the dark” as to the matters that led to the adverse assessment. Unlike the plaintiff in M47/2012, Mr El Ossman was largely “left in the dark” as to any information about him that ASIO possessed, or that ASIO did not, or may not, believe any of the answers he gave during the interview on the basis of that information. For the reasons already given, the information that was not disclosed to Mr El Ossman included information that could not fairly be described as being in the nature of opinions: cf Kiefel J in M47/2012 at [413].

138    Following the hearing in this matter, Markovic J handed down a judgment in a matter which raised similar issues to this matter: BSX15 v Minister for Immigration and Border Protection [2016] FCA 1432. Neither Mr El Ossman nor the Director-General sought to make further submissions based on that judgment. In any event, it should be noted that there appear to be some potentially significant factual differences between BSX15 and this matter. In BSX15, for example, ASIO conducted three separate assessment interviews which together amount to 11 hours of questioning. It would appear that in the latter interviews, further questions were directed to the applicant in relation to “parts of [his] story” and he was given an opportunity to “address unresolved matters” and to “put forward his case in response to some of the critical issues or factors”: BSX15 at [79(7)].

139    In any event, the question whether Mr El Ossman was or was not denied procedural fairness is not answered by comparing and contrasting the facts and circumstances of other cases. Each case must be considered on its own facts and circumstances. For the reasons just given, the particular and somewhat unique facts and circumstances of Mr El Ossman’s case are such as to support the conclusion that he was denied procedural fairness in relation to his security assessment.

140    Two additional points should be made concerning the finding of denial of procedural fairness.

141    First, in M47/2012, French CJ held that the question whether there had been a denial of procedural fairness in relation to an adverse security assessment could not be answered until the decision – the “prescribed administrative action” – recommended in the assessment was made or taken. His Honour said (at [73]):

It may be accepted that the requirements of procedural fairness are attracted to the making of a security assessment under the ASIO Act. The content of those requirements is not necessarily to be answered solely by reference to the terms of the ASIO Act and the potential effect of an assessment upon the interests of the person about whom it is made. A security assessment may be used for a variety of purposes involving the exercise of different statutory powers. Such an assessment may be relied upon for more than one purpose under the Migration Act. The content of procedural fairness will depend upon the part played by the assessment in the exercise of the power in which it is considered and the nature of that power. Whether or not procedural fairness was accorded in this case depends upon the way in which the assessment is used and upon the decision ultimately made. The question remains hypothetical unless, and until, the assessment is used to support a decision adverse to the plaintiff, other than a decision involving the application of public interest criterion 4002.

142    Hayne J also found that it was unnecessary to answer the question whether there had been a failure to comply with the requirements of procedural fairness. Gummow, Heydon, Crennan, Kiefel and Bell JJ each answered the question in the negative. The point that should be emphasised is that, in the present case, the Minister for Immigration and Border Protection has not made any decision in respect of Mr El Ossman’s substantive visa application based on the adverse security assessment. He has simply put Mr El Ossman on notice that he may refuse his substantive visa application. Nevertheless, the Director-General did not contend that the question of procedural fairness was hypothetical or otherwise could not be determined for the reasons given by French CJ.

143    Second, the Director-General’s case rested entirely on the contention that there had been no denial of procedural fairness in Mr El Ossman’s case. He did not contend that, if a denial of procedural fairness was made out, the relief sought by Mr El Ossman should be denied on the basis that the denial of procedural fairness could have made no difference to the end result. That is understandable. The authorities make it abundantly clear that “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome…”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [104]. It is, in any event, difficult to see how it could safely be concluded that the denial of procedural fairness in this matter could have had no bearing on the outcome.

The Director-General’s Determination

144    Given the findings that have been made in relation to Mr El Ossman’s primary case based on procedural fairness, it is strictly unnecessary to decide what Mr El Ossman described, in oral submissions, as his “back-up” case based on the Determination. For more abundant caution, and in the event that the findings concerning procedural fairness are the subject of appeal, Mr El Ossman’s claims based on the Determination should be resolved. Fortunately they can be resolved in short terms.

145    Mr El Ossman conceded that his claims based on the Determination must fail if it was found, on a proper construction of s 37 of the ASIO Act and the Determination, that the Determination was not binding on ASIO and that, as such, any failure to comply with the Determination would not, for that reason alone, constitute jurisdictional error. That concession was properly made.

Did the Determination bind ASIO?

146    The short answer to this question is “no”.

147    The Determination was made pursuant to s 37(4) of the ASIO Act. That subsection provides that “[s]ubject 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 “matters” referred to in subsection (3) are “the matters that are to be taken into account, the manner in which those matters are taken into account, and matters that are not to be taken into account, in the making of assessments”. Importantly, however, subsection (3) provides that, where regulations prescribe those matters, “any such regulations are binding on the Organisation [ASIO] and on the Tribunal”.

148    That is an important distinction between ss 37(3) and 37(4). Section 37(3) provides that the regulations bind ASIO. Section 37(4) says nothing of the sort concerning any determination by the Director-General. Plainly s 37(4) must be read as part of the statutory scheme of which it forms part. That includes s 37(3). Applying the reasoning in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the fact that s 37(3) expressly provides that the regulations are binding on ASIO and the Tribunal, whereas s 37(4) says nothing of the sort, evinces a legislative intention that the matters determined by the Director-General under s 37(4) are not conditions on ASIO’s valid exercise of the power to issue a security assessment. Rather, the Determination is essentially policy guidance, which must be applied consistently with the provisions of the ASIO Act and any regulations made under s 37(3).

149    Nothing in the text, context or purpose of s 37(4) supports Mr El Ossman’s construction. Mr El Ossman pointed to the fact that in making a determination the Director-General was required to consult with the Minister. He also submitted that the ordinary meaning of the word “determine” is to lay down decisively or authoritatively. Neither of those textual considerations supports the proposition that any determination made by the Director-General conditions the valid exercise of power to issue a security assessment.

150    It follows that Mr El Ossman’s case insofar as it is based on a failure by ASIO to comply with clauses 7 and 8 of the Determination must fail.

151    Two additional points should, for completeness, be noted. First, the contention that there was a breach of clauses 7.1(c) and 7(c) of the Determination added nothing to Mr El Ossman’s case based on procedural fairness in any event. It is difficult to see how those clauses of the Determination could be construed as imposing some different or more onerous obligation on ASIO than the implied obligation to afford procedural fairness. If there was a failure to afford procedural fairness, it would follow that there had been a breach of clauses 7.1(c) and 7(c). Equally, however, if there was no denial of procedural fairness, there could be no breach of clauses 7.1(c) and 7(c).

152    Second, Mr El Ossman’s contention that there was a breach of clause 8 of the Determination has no merit. Mr El Ossman contended that the information concerning the “other person” with the same year of birth, passport number and mother’s name as Mr El Ossman had no “reasonable nexus” with Mr El Ossman. It was, however, at the very least open to ASIO to conclude, based on that information, that the other person was in fact Mr El Ossman. The information therefore had a reasonable nexus with Mr El Ossman.

Conclusion and Disposition

153    Mr El Ossman has succeeded in demonstrating that he was denied procedural fairness by ASIO, acting through the Director-General, in relation to the adverse security assessment. A writ of certiorari setting aside the adverse security assessment should issue.

154    There is, of course, nothing to prevent ASIO from undertaking another security assessment in relation to Mr El Ossman. That is a matter for ASIO or the Director-General. Mr El Ossman did not seek any relief in relation to the cancellation of his bridging visa or his immigration detention.

155    The Director-General, as the unsuccessful party, should pay Mr El Ossman’s costs.

156    As for the Minister’s costs, it was ultimately unnecessary to resolve the Minister’s Notice of Contention. At the hearing, Mr El Ossman conceded that the relief he sought against the Minister was too broad. He ultimately did not press for any relief against the Minister; apparently on the basis of inter partes assurances that had been given in correspondence dated 28 June and 18 July 2016. Initially, however, Mr El Ossman refused to excuse the Minister from appearing and defending the proceedings unless an undertaking was provided to the Court.

157    The question is whether Mr El Ossman acted unreasonably in continuing to pursue his case against the Minister, at least up to the day of the hearing, once the Minister had assured him in correspondence that he would not rely on the adverse security assessment in making a decision under s 501 of the Migration Act pending the outcome of the hearing: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625. Was it unreasonable not to accept the Minister’s assurance and to insist instead that the Minister provide an undertaking to the Court? While the issue is finely balanced, the better view is that Mr El Ossman did act unreasonably from 18 July 2016, when the Minister confirmed that it would not rely on the adverse security assessment in making a decision under s 501 of the Migration Act pending the hearing or, if the assessment was set aside, at all. That is perhaps demonstrated by the fact that, by the time the matter was called on for hearing, Mr El Ossman was apparently prepared to accept the assurance and did not insist on an undertaking. Certainly Mr El Ossman did not ultimately press for either an undertaking, or any relief against the Minister. Accordingly, Mr El Ossman should pay the Minister’s costs from 18 July 2016.

Associate:

Dated:     6 June 2017