FEDERAL COURT OF AUSTRALIA

Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 12 March 2021 be allowed in part.

2.    The parties confer for the purpose of filing on or before 4.00 pm on 19 April 2022 agreed short minutes setting out the orders, any declaratory relief, and any orders as to costs which should be granted in respect of the 2018 and 2020 security assessments made pursuant to s 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth), so as to reflect the Court’s findings.

3.    If the parties cannot agree to short minutes, then each party is to file on or before 4.00 pm on 19 April 2022 the orders for which that party contends, and submissions in support of those proposed orders, limited to 3 pages.

4.    If any party seeks an oral hearing on appropriate relief, that position should be stated in the written submissions.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    The applicant has been held in immigration detention in Australia for approximately 10 years. Initially in this proceeding he sought relief relating to the lawfulness of his detention, but that cause of action was not pressed in light of the High Court’s decision in in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562. The High Court handed down that decision after the completion of the trial in this proceeding, but prior to the filing of closing written submissions.

2    The cause of action that remains is a judicial review of two decisions made by the Australian Security Intelligence Organisation (ASIO) in 2018 and in 2020, each of which concluded that the applicant was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth), and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act 1958 (Cth). The applicant contends the first of these decisions caused the refusal to grant him a protection visa on 13 June 2018, and the second decision continues to preclude the grant of any visa to him.

3    As refined in closing written submissions filed on his behalf, the applicant seeks the following substantive relief:

(a)    an order quashing the Adverse Security Assessments of 2018 and 2020 (2018 ASA and 2020 ASA) issued by ASIO against the applicant; and

(b)    a declaration that ASIO failed to comply with s 37 of the ASIO Act.

4    It is unclear whether any relief about the refusal to grant the applicant a protection visa is pressed. The third further amended statement of claim (3FASOC), stated that the applicant sought:

An order in the nature of mandamus compelling the First Respondent to consider the application for a visa made by the Applicant on 12 June 2015 and an order in the nature of certiorari quashing the purposed visa refusal decision dated 13 June 2018.

However, this relief was not listed at the end of the closing submissions filed on behalf of the applicant; it was not mentioned or advanced in the substance of the applicant’s submissions; and it was not developed in oral closing submissions on behalf of the applicant.

5    However, at the end of the closing written submissions, senior counsel for the applicant stated that an extension of time in which to seek such relief was pressed.

6    The respondents contended in final submissions that it was clear the applicant did not press the orders in the nature of mandamus and certiorari quoted at [4] above, but rather only an extension of time. That would appear correct, and perhaps the explanation is that the applicant considered an extension of time was necessary to regularise the proceeding as a whole, even if that particular relief was no longer pressed. Like other aspects of this proceeding, it remains something of a mystery. However, there does appear to have been a conscious decision not to press relief by way of certiorari and mandamus in relation to the protection visa refusal, and the Court proceeds on that basis.

7    Thus, at least as initially framed, some of the allegations in the proceeding sought to impugn a migration decision under the Migration Act (such as the refusal of a protection visa), while others sought to impugn an exercise of power which has its source outside the Migration Act and in other federal legislation – namely, the conduct of a security assessment and a decision on that security assessment. The Court’s jurisdiction to hear the judicial review arises under s 44 of the Judiciary Act 1903 (Cth) because of the remitter from the High Court.

8     For the reasons set out below, I have found:

(a)    the decision to issue the 2018 ASA involved a denial of procedural fairness to the applicant by reason of the use by ASIO, in a material and significant way, of evidence that had been wholly discredited, including because of the likelihood it was obtained through torture and/or ‘prepared’ by Egyptian authorities;

(b)    the decision to issue the 2020 ASA involved a denial of procedural fairness to the applicant by reason of the failure to engage with the applicant about, and determine, the facts, material and information about the applicant’s circumstances, both at the time of the assessment and into the foreseeable future if he were released into the community, which were capable of affecting the assessment of whether the applicant, in 2020 and from that point forward, was a risk to security; and

(c)    the first error was of a kind that also rendered the decisions to issue the 2018 ASA legally unreasonable. The second error might also have been capable of leading to this result but that contention was not clearly advanced on behalf of the applicant.

9    My present view is that those findings are sufficient to justify substantive relief in favour of the applicant is respect of the 2018 and 2020 ASAs. However, the parties will be given an opportunity be heard on appropriate relief.

THE COURSE OF THIS PROCEEDING

10    The proceeding has taken a long time to come to trial, for a variety of reasons. Much of the background is traced in three interlocutory decisions, two of Robertson J and one of my own: see Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271; Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499; and Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207. I adopt the descriptions of the background from those three sets of reasons and do not repeat them here.

11    By orders made on 5 February 2021, the proceeding was fixed for trial on 16 June 2021. Detailed trial preparation orders were made, not all of which the applicant’s legal representatives complied with. I accept senior counsel and his instructor have worked on this proceeding basically unassisted and it has been burdensome, and that this explains some of the non-compliance. However, there has also been something of a lack of focus and precision on the core aspects of the applicant’s challenges, which has not assisted the respondents in responding to the allegations, and has not assisted the Court in resolving them.

12    The respondents assumed the burden of preparing a set of digital court books, for which the Court is grateful.

13    Initially, the applicant’s digital tender bundle comprised more than 10,000 pages. Senior counsel for the applicant stated in opening that it was not proposed to rely on all those documents. Quite why they were then included in the tender bundle remains a mystery.

14    The parties resolved most of their objections to evidence by agreement, and orders were made accordingly. The respondents pressed objections to a number of documents, and considerable parts of the applicant’s written outline of submissions filed before trial, on the basis that the documents and submissions contravened s 16(3) of the Parliamentary Privileges Act 1987 (Cth). The applicant pressed reliance on these documents and on those portions of his submissions. The Court upheld the respondents’ objections and those documents were excluded, and the applicant was ordered to file another version of the written outline that complied with the Court’s ruling.

15    The parties reviewed their digital tender bundles and identified to the Court the documents upon which they sought to rely. Insofar as the respondents were concerned, this process was straightforward. Insofar as the applicant’s legal representatives were concerned, it was not. On the second day of trial senior counsel for the applicant drew the Court’s attention to some tables that had been sent to chambers and to the respondents. These tables purported to represent the documents that the applicant proposed to tender, by reference to certain topics covered (it was said) in the second further amended statement of claim (2FASOC) or the 3FASOC. However, after being given some time to re-consider the tables, in part in light of the rulings made by the Court about the 3FASOC, senior counsel for the applicant advised the Court in the afternoon of the second day that only a very limited number of documents would be relied upon. They were outlined, and the respondents were given an opportunity to consider the new proposed tender bundle, which was significantly smaller.

16    An amended, and reduced, version of the court book was prepared and marked as a series of exhibits. It remained formatted into four volumes, since a fourth volume, as a supplementary court book, was filed by the respondents. Each volume was marked separately as an exhibit.

17    As I note further below, a considerable number of the respondents’ documents contain redactions: see, for example, my observations at [152] and [159].

Evidence relied upon

18    The evidence in the proceeding is contained in whole in the finalised version of the digital court book, as referred to above. Volume A of the court book contains the parties’ pleadings and affidavits relied upon. The applicant relied on the following affidavit material:

(a)    an affidavit of Ms Zali Burrows, affirmed 17 May 2021. Ms Burrows is the applicant’s solicitor in this proceeding. Ms Burrows deposed to the existence of a concurrent proceeding brought in the Federal Circuit Court by the applicant, in which the applicant had retained different representation, and in which proceeding the respondents filed the 2020 ASA and truncated statement of grounds for the ASA made in 2020 (2020 TSOG). Ms Burrows’ affidavit annexed a series of pieces of correspondence: between Ms Burrows and the lawyers for the respondents, and between the applicant’s representatives in the Federal Circuit Court proceeding and the lawyers for the respondents. The correspondence relates to concerns about the applicant’s privacy caused by the filing of the 2020 ASA and 2020 TSOG in the Federal Circuit Court;

(b)    an affidavit of the applicant, affirmed 7 April 2021. The applicant’s April affidavit provided a lengthy history of the applicant’s life, beginning with his birth in Egypt in 1971 and including his continuing detention and attempts to secure entry into the Australian community. He deposed to a brief description of his experience of discomfort during the 2020 ASIO interview, and to errors he believes were made in interpreting the interview as apparent from the transcript; and

(c)    a second affidavit of the applicant, affirmed 17 May 2021. The applicant’s May affidavit provides more detail as to errors the applicant believes were made in interpreting the 2020 ASIO interview. He provided a series of specific examples of interpretations on the transcript, and from a second set of translations of the interview, by a different interpreter, provided by the respondents and assessed as more accurately reflecting what he had intended to communicate.

19    The respondents relied on the following affidavit material, summarised in their opening submissions as follows:

    an affidavit of Amaal Samson, an Arabic interpreter, sworn on 27 April 2021 (Samson affidavit – CB Tab 6). Ms Samson was played portions of the applicant’s 15 September 2020 security assessment interview, and was asked to orally interpret from Arabic to English passages in respect of which the applicant challenges the correctness of the interpretation provided at the time of the interview;

    a solicitor’s affidavit of Jonathon Charles Hutton affirmed on 29 April 2021 (1st Hutton affidavit – CB Tab 7). Mr Hutton provides evidence concerning eight of the applicant’s nine requests under the Freedom of Information Act 1982 (Cth) (FOI Act), and the discovery of documents in this proceeding, relevant to the applicant’s complaint about differences in the redactions to those documents;

    a second affidavit of Jonathon Charles Hutton affirmed on 29 April 2021 (2nd Hutton affidavit – CB Tab 8). Mr Hutton provides evidence concerning the applicant’s ninth FOI request;

    an affidavit of Michael Nemarich affirmed on 29 April 2021, the Manager, National Operations, of the National Accreditation Authority for Translators and Interpreters (NAATI) (Nemarich affidavit – CB Tab 9). Mr Nemarich gives evidence concerning NAATI certification of Arabic interpreters, specifically that NAATI treats Egyptian Arabic dialect as a mutually intelligible dialect of Modern Standard Arabic;

    an affidavit of Rhyl Clare Shannon Maddock affirmed on 29 April 2021 (Maddock affidavit – CB Tab 10). Ms Maddock is a public servant who has worked in the Departments which have administered the Migration Act since 2002. Ms Maddock gives evidence concerning the submissions made to various Ministers with respect to s 46A in relation to the applicant between June 2012 and May 2015; and

    an affidavit of Ms Shatha Mansi sworn on 5 May 2021 (Mansi affidavit – CB Tab 11). Ms Mansi was the Arabic language interpreter present at the applicant’s 15 September 2020 security assessment interview.

(Original emphasis.)

20    Volume B of the court book comprises those materials from the respondents’ tender bundle that were ultimately included as evidence. This was a very large volume of over 3000 pages of material, including over 100 emails relating to the applicant internal to or between the respondents, around 100 “case reviews”, being pro forma documents noting the circumstances of individuals in detention, and relevant materials provided by ASIO such as the interview transcripts, ASAs and truncated statement of grounds for the ASA made in 2018 (2018 TSOG) and 2020 TSOG. Much of this evidence is now not relevant because the AJL20 argument is not pressed.

21    Volume C of the court book comprises those materials from the applicant’s tender bundle that were ultimately included as evidence. It again was a volume of over 1000 pages of at times eclectic material, ranging from documents such as email correspondence that had been disclosed to the applicant through the Freedom of Information (FOI) process, to a significant volume of open source information such as newspaper articles relating to the applicant or issues relevant to his case.

22    The supplementary court book included materials relied on at trial that had not been included in the first three volumes, and an updated version of the 2020 TSOG. Senior counsel for the respondents explained at the trial that there is no difference to the “underlying document”, the only difference between the two versions being that some words had been redacted from certain footnotes in the earlier version, which appeared un-redacted in the later version.

23    The respondents took responsibility for the preparation of these materials. In relation to that task, they noted in their closing submissions:

As requested by the Court, the respondents’ solicitors have prepared and filed a final version of the Electronic Court Book and Supplementary Electronic Court Book for this proceeding. Those court books contain the pleadings, the affidavits which have been read, and the documents which have been tendered.

Detailed submissions concerning particular evidence are made at the appropriate points below. For present purposes it is sufficient to note two matters.

First, a substantial part of the applicant’s first affidavit (ECB Vol A Tab 5) outlines various matters regarding his personal history and events involving others. Most of that material is irrelevant to the allegations in the 3FASOC, because: (a) the key events in the chronology are uncontentious; and (b) this proceeding is now focused on the activities of ASIO, principally in making the 2018 and 2020 ASAs. To the extent that those issues intersect with the facts of the applicant’s history, the question for the Court is whether the Director-General erred in law on the material then available. The truth or otherwise of facts in the applicant’s first affidavit have no bearing on that question.

Second, though the respondent read at trial an affidavit of Rhyl Clare Shannon Maddock affirmed on 29 April 2021 (ECB Vol A Tab 10), that evidence was relevant only to the now abandoned claim that the applicant was unlawfully detained between 2012 and 2015.

(Original emphasis.)

Some observations about the way the applicant’s case was framed, and developed

24    The applicant’s case on judicial review has travelled through many iterations. There have been at least three iterations of his case since senior counsel was retained. The last iteration was notified to the respondents after 7.00 pm the day before the trial commenced, and notified to the Court when the trial commenced. After hearing argument, the Court granted leave to the applicant to rely on a 3FASOC, but only as to some of the numerous amendments sought. A ruling was given on the leave application. After some indecision, senior counsel also clarified that the applicant maintained a challenge to both the 2018 and the 2020 ASIO assessments.

25    These reasons concentrate on the points developed as part of the applicant’s case, in written and oral submissions. As the respondents pointed out in their closing submissions, there are some pleadings that have not been the subject of any submissions.

26    In his opening however, senior counsel for the applicant did open on all of the allegations in the 3FASOC, albeit in the sparest of fashions. It was thus tolerably clear that the applicant pressed all of the pleaded allegations, despite not pressing all the relief originally sought. I accept, however, that the respondents and the Court remained somewhat in the dark about how some of the arguments were framed in any level of detail.

27    In other cases, pleadings have simply been repeated as a submission, but not developed by reference to any evidence or legal argument.

28    For example – [120] of the 3FASOC pleaded that the applicant was denied procedural fairness because ASIO failed to accurately summarise in the 2020 TSOG the applicant’s evidence as given in the 2020 interview. No submissions were made to develop this claim. Similarly, there was some discussion of [111] of the 3FASOC, which senior counsel for the applicant repeated as a submission in his closing submissions, but confirmed that he did not intend to develop the point any further. Paragraph [111] contained an allegation that the applicant had been invited to provide additional material for ASIO’s consideration and such material was provided and not considered.

29    It is not the Court’s role to try and piece together an argument on behalf of the applicant, in fact or in law. Senior counsel for the applicant was expressly invited to develop points, and the difficulties for his client’s case in terms of undeveloped allegations were made clear:

HER HONOUR: We may be at cross-purposes, Mr Finnane, but the point the respondents are making at 5(c), which I rather think you’ve confirmed by what you’ve said, is that there are no submissions made on behalf of the applicant. And what you’ve taken me to are pleadings and the particulars of the pleadings, but not submissions - - -

MR FINNANE: ..... yes, but in my submissions, your Honour, earlier submissions of 17 June - - -

HER HONOUR: Yes.

MR FINNANE: - - - in paragraph 4 we said:

The applicant relies on all matters particularised in the amended statement of claim, including the further particulars provided in the letter to the respondents of 22 February 2021.

HER HONOUR: Well, if that’s all that’s said, Mr Finnane, that your client relies on it, and it’s not developed any more than that, - - -

MR FINNANE: No, it’s not developed any - - -

HER HONOUR: - - - then, the difficulty for you - - -

MR FINNANE: - - - more than that.

HER HONOUR: All right. Well, the - - -

MR FINNANE: What it says, your Honour, is that those documents were received but they did not appear in the truncate[d] grounds. That’s the effect of those earlier submissions and the paragraphs that I’ve referred to, and the emails. Those particular matters were provided but were not referred to. That’s what that related to. We did not put a separate submission in the latest set of submissions that we put in, that is certainly true.

HER HONOUR: All right. Thank you.

30    While the respondents attempted to assist the Court by developing at least short submissions on every allegation, and the Court is grateful for that assistance, there has been a failure on the part of the legal representatives of the applicant to even attempt to discharge the burden of proof that falls on the applicant in respect of some of the pleaded allegations. It would have been more appropriate for such allegations to have been withdrawn, or expressly indicated not to be pressed.

31    Since that has not occurred, some of the allegations can be dealt with on the basis of the failure of the applicant to discharge his burden of proof. Unless there is an obvious or clear correlation between one of these undeveloped pleaded allegations and a developed pleaded allegation, or the undeveloped pleaded allegation can be understood and resolved without further material, I have generally concluded the applicant has failed to discharge his burden of proof in relation to that allegation.

UNCONTESTED BACKGROUND

32    Aside from some core controversies between the parties about the facts relevant to the ASIO decisions, there was no real dispute about much of the background to how the applicant had arrived in Australia, what had happened to him since, and the chronology of events in his life that had preceded his arrival. Save where I expressly state that no finding is made, I make the following findings on these matters.

33    The applicant’s affidavit about his life, and that of his family, is lengthy. At a human level and considering little more than the core narrative contained within that affidavit, it is a story of considerable personal and family hardship. Much of the narrative is not, as the respondents submitted, legally relevant to allegations made in this proceeding. But it does provide factual context, which I consider it is important to understand and explain. The applicant gave oral evidence on specific issues and was cross-examined, and I found him to be a witness who was speaking from his own recollection, and a person who has been significantly affected by his experiences of tragically long executive detention in Australia and separation from his family, as well as by his life experiences before that. I found he approached the giving of his evidence in a serious and careful manner, and I did not assess him as an unreliable or untruthful person in relation to the evidence he gave.

34    The applicant has always denied involvement in Egyptian Islamic Jihad (EIJ), and in any other political movement in Egypt or elsewhere. His sworn evidence in this proceeding denied such involvement. He has maintained that position in assessments by Australian authorities and, previously, with overseas authorities. He was not cross-examined on that position, but I accept that is because, correctly, the respondents submit the truth of the applicant’s position about involvement or non-involvement in EIJ and related organisations is not a matter for this Court in this proceeding.

35    The applicant is an Egyptian citizen. He was 51 years old at the time of trial. He graduated with a Bachelor of Commerce from the University of Ain Shams in Cairo, Egypt in 1991.

36    The applicant’s narrative includes being arrested in Egypt three times, the first when he was five years old. He first travelled from Egypt to Saudi Arabia in October 1991, his aim being to secure employment outside Egypt. He moved between Saudi Arabia and Egypt, because of his health and his insecure living circumstances in Saudi Arabia. His accounts of the second and third arrests in Egypt, said to have been in August 1991 and April 1992, described very serious mistreatment, including torture. I make no findings about whether that mistreatment occurred as the applicant described it, but I also make no findings that it did not occur. In 1992 he secured a job with the International Islamic Relief Organisation, and it was this job that led to him being placed in Albania as a store manager. The applicant described the IIRO in the following way in his affidavit:

IIRO is a charity based in Saudi Arabia founded by the Muslim World League in 1978. It is a full member of The Conference of NGOs, where it serves on the board. The IIRO is included in a list of some of the UNHCR’s major NGO partners and has been involved in many joint programmes with UN Agencies and intergovernmental (such as the World Health Organization) and non-governmental organisations. It has enjoyed consultative status on the United Nations Economic and Social Council since 1995. It was the first Islamic NGO to gain observer status with the International Organisation for Migration (IOM). It used also to be a member of the International Humanitarian City-based in Dubai, UAE.

37    In his affidavit the applicant provides a detailed account of his work in Albania as a store manager for IIRO, an account which denies any involvement in any political or terrorist related activities while he worked in this position. This is contrary to the conclusions ultimately reached by ASIO. I make no findings one way or the other about the truth of that account.

38    The applicant met his wife in Albania in 1994. She is an Albanian national. In the same year the applicant commenced working for another charity, the Revival of Islamic Heritage Society. He describes RIHS in the following way:

This is an independent charity. It is a Kuwaiti organisation which I believe was established in the 1980s. There were branch offices in London, Asian Countries, Eastern Europe and from 1991 after communism, there was one opened in Albania. Besides me there were 5 or 6 people in the Albanian office responsible for orphan support, mosques, construction, family support, education and general management. I remained in this employment for almost a year and about three months.

39    In his affidavit, the applicant provides a detailed account of his work in Albania for RIHS. This account denies any involvement in any political or terrorist related activities while he worked in that position. This is contrary to the conclusions ultimately reached by ASIO. I make no findings one way or the other about the truth of that account.

40    The applicant and his wife had their first child in May 1995, in Albania. They lived in Albania until April 1997. The applicant started and developed his own business in Albania importing plastic tables and chairs and other plastic items from Syria and Turkey to Albania.

41    The applicant describes several individuals in his affidavit. Later, during his ASIO interviews, he was asked about these individuals. These people were said by ASIO to be associated with EIJ. It is unnecessary to set out the applicant’s evidence about whether or not he knew these individuals; suffice to say that his account in his affidavit contains admissions and denials in terms of whether he knew these individuals, and denials of knowledge of any association they had with EIJ. I make no findings one way or the other on this evidence.

42    The applicant describes leaving Albania in 1997 due to growing unrest in that country. He also describes his suspicions of Egyptian authorities at this time, and what he understood had happened to others who had trusted Egyptian authorities. Therefore, the applicant and his family travelled to the United Kingdom instead. He explains how, and why, he entered the UK on a false passport. He deposes that his Egyptian passport and his wife’s Albanian passport are held, still, by the British authorities after a failed attempt by him to have a friend bring them to the UK. The applicant and his family sought asylum in the UK on the day they arrived, 14 April 1997. The applicant commenced studies in the UK in English and computing.

43    The applicant then describes in his affidavit that he was approached by officers of MI5, the British security intelligence organisation. He deposes this occurred in early November 1997, and that in substance he was invited to become an informer. I make no findings about whether these events occurred.

44    The applicant was arrested at his home by British authorities on 23 September 1998, a day after the birth of his third daughter. He was detained and questioned for five days about his associations with a particular individual. The applicant gave the following evidence, which I accept:

My lawyer advised me that if I had done anything wrong that I should seek to admit and explain but if not that I should make no comment. I took this advice and answered ‘no comment’ to questions. I was released without charge on the 5th day.

(Original emphasis.)

45    The applicant was then detained in UK immigration detention for 10 months. For the first four of these months he was held in a prison. His asylum claim had not been determined, but in 1998 the applicant had, along with more than a hundred other people, been charged with serious criminal offences in Egypt, relating to joining a banned group and participating in unlawful activities on behalf of that group, which were to be the foundation of what the parties and the evidence generally referred to as the “Returnees from Albania trial”. I shall adopt that description.

46    The charges against the applicant related to allegations the applicant had been an active member of “operational cells” of EIJ in Albania. EIJ was a banned organisation in Egypt.

47    The evidence, including evidence from the Egyptian government that is before the Court, is inconsistent about the dates of the Egyptian Military Court’s decision and the passing of its sentence on the applicant. One date given is 18 April 1999 as the date of sentence in absentia, with that decision being “ratified” on 20 November 1999. Another document, purporting to be a certificate from an Egyptian Military prosecutor’s office, gives the date of sentence as 18 May 1999, and the date of “certification” of the sentence as 20 January 1999. In his affidavit, the applicant nominates 19 April 1999 as the date of the Egyptian Court’s decision. Other evidence before the Court (such as protection visa decision records and the translated Egyptian court documents provided by the applicant to ASIO (ECB3377 and ECB3470)) give the date as 18 April 1999.

48    These charges led to the following response from the UK authorities, as described by the applicant in his affidavit at [96] and [97]:

On 1 February 1999, I was informed by a letter from the Immigration and Nationality Directorate of the Home Office that the Secretary of State acknowledging that “I might ordinarily have granted asylum” but because I was “satisfied that there were serious reasons for considering that I had been guilty of acts contrary to the purposes and principles of the United Nations” (Referring to the Returnees from Albanian Trial in 1999), I was “excluded from the protection provided by the 1951 United Nations Convention Relating to the Status of Refugees.” The letter also stated that the Secretary of State will “consider whether my removal from the UK would represent a breach of Article 3 of the European Convention on Human Rights (ECHR) and whether it would be appropriate to seek a safe third country which would be prepared to admit you.”

It was decided that my removal and the other Egyptian citizens to a third country was not practical. I was aware that on 9 March 1999, the Secretary of State for the Home Department of the UK authorized officials to obtain “assurances” from the Egyptian government that I and the other Egyptian citizens would not be subjected to torture, cruel, inhuman or degrading treatment if extradited to Egypt. At the relevant time, there was no extradition arrangement between the UK and Egypt. On 23 March 1999, the British Ambassador to Egypt was advised that the Minister of the Interior for Egypt had not provided “adequate” assurances to extradite I and the other Egyptian citizens to Egypt. Despite this initial reaction, further “requests for assurances” were sought by the UK from the Egyptian authorities. I was very terrified, what if I was deported and what if I go through what I have already been before.

(Original emphasis.)

49    As to the Returnees from Albania trial itself, the applicant deposes (at [102]):

I was not aware that I was part of the trial until the rulings were made. I was aware of the trial because my father was a defendant in the trial. I first heard about the Ruling when I was informed by my mother. My lawyer, (who represented my father initially) in Egypt was not allowed to obtain any documents from the court, nor even the court ruling. I was not provided with any documents or information during the trial.

50    The applicant was released from UK immigration detention in July 1999. He explains his release in the following terms:

On 9 July 1999, after approximately ten months in detention, I and the other Egyptian detainees were released from immigration detention in the UK. The High Court of Justice in London threatened to grant a writ of habeas corpus unless the Secretary of State, Jack Straw obtained “assurances” from the Egyptian government. When those “assurances” were not forthcoming, the Secretary of State stated that he “was no longer minded to continue to remove them.” Following this, I was issued with a temporary UK visa, after the UK government declined to grant me a permanent visa.

(Original emphasis.)

51    He deposes (at [94]–[95]):

Following my release on 9 July 1999 from detention, my lawyer lodged a civil action for unlawful arrest and detention against the British Home Office. He also lodged another claim in relation inappropriate use of power but I’m not sure of the exact details. My motivation was to clear the air and clear a pathway to a successful visa application in order for my family and I to attain permanency in the U.K. I wanted a stable and settled family life for my family.

…

My unlawful detention civil action was successful as was the second proceeding when they were finally determined 3 to 4 years after I left the U.K in or about 2004 or 2005. The judgement found that the detention had been unlawful and there was also an order for 9000 pounds’ compensation. The compensation was not able to be released to me as I had already left the U.K.

52    As to his migration status in the UK, and that of his family, the applicant deposes (at [99]):

On 16 October 1999, my application for Permanent Residency in the U.K. was refused with no reasons outlined. Instead, my family and I were given an exceptional leave to reside in the UK which was to be renewed regularly.

53    I see no reason not to accept the evidence I have set out at [48]-[52].

54    After his release in July 1999, the applicant and his family moved to another part of the UK and he continued his English and computing studies. He deposes to being again approached by MI5 officers in September 2001, and deposes to his migration status in the UK being threatened if he failed to co-operate. I make no findings about whether or not the applicant was approached and threatened as he describes.

55    The Interpol Red Notice (IRN), which was to play a key role in the decision making of the Australian authorities about the applicant and the security risk it was determined he presented, was issued in late 2001. The applicant deposes (at [109]):

On 1 October 2001 Egyptian Authorities registered a Red Notice at Interpol against me. I was not aware of this at the time. I first became aware of the Interpol Red Notice when the Australian Federal Police informed me on 14 November 2012.

56    I accept that evidence, including the applicant’s evidence about when he first became aware of the existence of the IRN. Later in his affidavit, the applicant describes the effect of receiving this information (at [135]-[139]):

On 22 June 2012, my wife, my eldest daughter and I had an entry interview.

We felt that everything was going ok and were waiting when we will be released like other people.

I was interviewed by the Australian Federal Police and the Immigration Department on four occasions between 14 November 2012 and 22 January 2013. During the first interview I became aware, for the first time, of there being an Interpol Red Flag. However, I was still not privy to the nature of the charges in the Interpol Red Notice.

I felt I was lost. I could not believe what I heard. It was shock for me and my family. But I believed that this was wrong and AFP may get me confused with another person. So, I started contacting my Egyptian lawyer to find out what was going on.

I did not give up. I could get all documents that I have now which prove my innocence. Which I have been providing to ASIO, AFP and DIBP since 2012.

57    I also accept that account by the applicant of how he found out about the IRN, and what his personal reaction was.

58    Returning to the chronology prior to the applicant’s arrival in Australia, it was also in late 2001 that the applicant decided to move himself and his family to Iran “where I thought we might be able to make a life as part of the Arab community and be safe from persecution”. The applicant and his family moved to Iran in December 2001. In its 2018 TSOG and 2020 TSOG, ASIO attributes the applicant’s decision to the 11 September 2001 attacks in the United States, finding the applicant’s decision:

to have been influenced primarily by his fear of being re-arrested by the UK authorities following the September 11 2001 attacks in the US. These attacks resulted in renewed concern about, and investigation of, Islamic extremist groups in the West.

59    If that was the applicant’s reasoning, it would not have been irrational. Nor does it reveal anything necessarily culpable or nefarious about the applicant’s conduct or decision. The Court can take judicial notice of the fact that the post-11 September 2001 environment in many Western countries for Muslim people was extremely difficult, and many Muslims were exposed to arrest, detention and questioning.

60    The applicant deposes to serious health problems experienced by his wife and himself, and the responsibilities which fell on their then 7 year old daughter because of their inability to care for the family. I accept that evidence. He deposes that in July 2002 he was arrested by Iranian authorities, moved from one place of custody to another, and not provided with a lawyer. There is no reason not to accept this evidence. His wife and children were also forcibly moved by the Iranian authorities. The applicant deposes, and I accept, that in January 2004 the Iranian authorities moved him and his family to a refugee camp in Ebrahem Abad village, 35 km from Arak City in Iran, with eleven other families, who were mostly Iraqi and Palestinian, and one Kurdish family. All were Muslim Sunnis. They were detained in this camp for more than five and a half years. This narrative was substantively accepted by the delegate who decided the applicant’s protection visa application.

61    The applicant deposes, and I accept, that during his detention in this camp, his health deteriorated and he had a number of surgeries. At trial, the respondents were not prepared to concede the applicant had, or continues to have, the specific kinds of serious health conditions he describes. Whether or not the specific conditions he nominates are accurate diagnoses (and it was difficult to tell if this was the respondents’ real objection), for the reasons I have given above, I consider there is no basis to doubt the applicant as a reliable historian and witness on these matters. I accept his evidence that he has, over his lifetime, and to the time of trial in this proceeding, experienced a number of serious health conditions, and has had a number of medical interventions in his adult lifetime.

62    The applicant also deposes, and I accept, that eventually the Iranian authorities sought to deport all the families in this camp, and his family was the last to be deported, after being detained in Tehran in a house for almost another year. I make no findings about the Iranian authorities’ reasons for taking this action. The youngest, and sixth, child of the applicant and his wife was born during this time in Tehran. At [127]-[134], the applicant completes his account of how he and his family came to travel by boat to Australia, which I broadly accept:

Finally, there was agreement that we depart to the UK via Malaysia. On 2 May 2010, we departed Iran for Malaysia; and then on 7 May 2010 we travelled from Malaysia to Indonesia. On 3 June 2010, we left Indonesia to the UK via Singapore-on-Singapore Airlines. However, we were arrested in Singapore Airport and were deported back to Jakarta, Indonesia on 4 June 2010. The fake Finnish Passport which Iranian authorities had provided to us was the reason for the arrest at Singapore airport.

…

On 07 May 2010, Indonesian Immigration arrested us and detained us in an Indonesian Immigration detention centre for almost four months. On 17 June 2010, we were registered with UNHCR Jakarta. My family and I were released on 12 October 2010 into the community under the care of International [Organization for Migration] (IOM).

…

On 30 August 2010, my wife and I were interviewed by a UNHCR officer. We waited for the UNHCR’s decision for twenty-one months. There was a recommendation of refugee status by the UNHCR Indonesia but never any formal decision by UNHCR head office.

One officer from IRIN website called me and offered his help to bring attention to my case. He was introduced to me via IOM and identified himself as a UNHCR officer[.] After one month I found my story in the IRIN website. I was horrified to discover that I had been deceived. My words had been distorted and I was misrepresented. My words had been embellished to include false details including indicating that I had been to India as well as several other misrepresentations. He wasn’t an UNHCR officer but rather a dodgy journalist.

After losing hope that a decision would be made and following the horrible experience of the IRIN story we decided to come to Australia by boat in search of safety.

…

We arrived in Australia on 11 May 2012 and remained in a Christmas Island Immigration detention centre for 15 days. We were very happy that we successfully arrived. The first thing I thought was how can register my children in school.

We were happy that we will start new life after these all years travelling around the world and it was my hope for my family to become Australian citizens and live a happy and safe family life.

On 26 May 2012, my family and I were moved from Christmas Island to Inverbrackie Detention Centre in South Australia.

(Emphasis added.)

63    The date of 7 May 2010, in bold in the second paragraph, must be erroneous. It seems the correct date might be 7 June 2010, which would fit with the rest of the chronology. I do not consider this error to affect the general reliability of the applicant’s narrative.

64    The arrival of the applicant and his family on Christmas Island would, as the evidence demonstrates, be the commencement of yet a further extraordinarily long period of deprivation of liberty for them.

Events in Australia

The long path to being able to apply for protection

65    Due to the operation of s 46A(1) of the Migration Act and the government policy it reflected, the applicant and his family, as people who came to Australia by boat, were not able to make applications for protection visas unless the responsible Minister exercised a personal power permitting them to do so.

66    Initially, it appears consideration was given to the whole family being placed in community detention while a decision was made about whether or not to “lift the bar” and allow them to make protection visa applications. The third footnote to the 2018 TSOG states:

In July 2012, the Department of Immigration and Citizenship, now known as the Department of Home Affairs (HA), requested security advice from ASIO in relation to placing [the applicant] in community detention. ASIO initially advised of no security related concerns but withdrew this advice in August 2012 following correspondence with the Australian Federal Police (AFP) which confirmed [the applicant] was the subject of an Interpol Red Notice issued by Egyptian authorities for terrorism-related offences.

67    By this time the IRN was already 11 years old, having been issued shortly after the September 11 attacks in the United States in 2001.

68    As a result, the applicant remained in immigration detention. It appears not to be in dispute that while his wife and children may have been eligible for release, and there was no suggestion any security concerns would prevent this, the firm position of the whole family was that they wanted to remain together, and if that meant staying in immigration detention because the applicant could not be released, that is what they sought to have occur. I do not say ‘wished to have occur’, because at a human level it was an invidious choice for a family to have to make.

69    A submission about whether the s 46A(2) power should be exercised in relation to the applicant and his family was put before the responsible Minister more than three times. First, in September 2012 with no decisions being made at all by the then responsible Minister by February 2013 despite numerous inquiries from the departmental officer, Ms Maddock. A second ministerial submission was made in February 2013, when a new Minister was appointed, but was the subject of considerable drafting and re-drafting. Thus, no decision was made.

70    The IRN was amended on 13 June 2013 to remove all charges and retain two convictions arising from the 1999 trial (the applicant having been tried in absentia):

(a)    being a member of an illegally formed extremist organisation, which aims at calling for the obstruction of the Constitution and laws, preventing public authorities from carrying out their activities, jeopardising national unity and social peace; and

(b)    forging travel documents for the organisation’s members to facilitate their movement in carrying out terrorist operations.

71    Meanwhile, in July 2013, a new Minister was appointed with responsibility for the exercise of the personal power in s 46A(2). Shortly thereafter, in September 2013, there was a change in government, and another new Minister was appointed. Another s 46A(2) submission was put before this Minister on 13 November 2013. Ms Maddock’s evidence describes the outcome of this next process (at [59]-[63]):

On 18 September 2013 the Hon Scott Morrison MP was appointed as the Minister for Immigration and Border Protection.

He was provided with a copy of the Second Ministerial Submission on 13 November 2013 (RTB 559). This would have been after the usual period of briefing for a new Minister, explained at [36] above, and briefings associated with a newly elected Government.

Sometime prior to 11 April 2014, the Minister’s Office asked whether it would be possible to seek assurances from a third party country which the Applicant could be removed to. I undertook research on that question, and on 11 April 2014, I emailed Ian Deane and Nicole Marshall with my conclusions and country information (RTB 714-715). Later that day, I asked Nicole Marshall whether she considered it was appropriate for Mr Deane to provide legal advice on that question (RTB 713-714).

On 22 April 2014, the Second Ministerial Submission was returned from the Minister’s Office to the Department with a notation that read (RTB 560):

Please update and return once the outcome of discussions with Egypt and Albania are known, including any discussions between IOM and the family.

On 28 April 2014, I was copied into an email from Lynne Gillam, the Assistant Secretary of the Onshore Protection Branch to Alison Larkins (RTB 712-713). Ms Gillam advised that the Department’s advice remained that it was preferable to apply s 46A of the Act so that the Applicant’s claims could be assessed under the statutory process. She considered that the protection and character assessments under the Act should take place as soon as possible. She also indicated that it was premature to seek assurances from the Egyptian or Albanian governments.

72    Ms Maddock’s evidence reveals an unsatisfactory and indecisive process at the ministerial level, despite the best efforts of departmental officers such as Ms Maddock.

73    A month or two later, officers within the Department tried again. Ms Maddock describes why this process did not come to fruition (at [64]-[67]):

Following the return of the Second Ministerial Submission, there were no further significant discussions between the Department and Egypt or Albania. This is because these discussions could only usefully take place after the Applicant had applied for a protection visa. Accordingly, on 12 June 2014, the Department provided a third Ministerial submission to Minister Morrison (Third Ministerial Submission) (RTB 755). The submission stated at paragraph 4 (RTB 757):

The option of seeking diplomatic assurances from either Egypt or Albania… only becomes available following an assessment of the family’s protection claims, and only if the family do not engage Australia’s obligations under the Refugees Convention.

This Third Ministerial Submission stated that it involved consultation with DFAT, the Attorney General’s Department, ASIO, the AFP, and the Global Manager Refugee and Humanitarian Visas, Special Counsel and Legal Division and the Immigration Intelligence Branch within the Department (RTB 759). I consider this accurately reflects the consultation the Department engaged with. This consultation was largely to confirm whether those agencies and areas within the Department continued to support the approach being taken in the Third Ministerial submission. The Third Ministerial Submission was settled by the Acting Deputy Secretary of the Policy and Programme Management Group and signed by the First Assistant Secretary of the Refugee Humanitarian and International Policy Division (RTB 760).

On 17 July 2014, ASIO advised the Department that the Applicant was (RTB 778):

… directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 and that it would not be consistent with the requirement of security for him to be granted a visa under the Migration Act 1958.

On 17 July 2014, the Third Ministerial Submission was withdrawn by the Department to be updated to take into account the advice from ASIO (RTB 787).

(Original emphasis.)

74    Despite the July 2014 adverse ASIO assessment (2014 ASA), another Ministerial briefing to (then) Minister Morrison was made in late August 2014. A later briefing note records that, in one of many ironies attending the way the various aspects of the applicant’s migration status in Australia have been approached, the absence of a protection visa application (and any favourable finding) had prevented the applicant seeking independent review of this 2014 ASIO assessment:

On 17 July 2014, ASIO issued an ASA in relation to [the applicant]. [The applicant] subsequently requested review of this decision by the Independent Reviewer, the Honourable Margaret Stone. He has been advised, however, that only those who have been assessed as engaging Australia’s protection obligations are eligible for review, and consequently he wrote to the IGIS about his ASA. The Department notes that ASIO reviews its own assessments on an ongoing basis.

(Emphasis added.)

75    Of course, a protection visa assessment was what the applicant had been seeking, and hoping for, since he arrived in Australia in 2012. On a separate note, the last sentence of this extract refers to a practice to which I return in greater detail later in these reasons.

76    In December 2014, Minister Morrison declined to agree to lift the bar under s 46A(2) of the Migration Act.

77    A further submission was made on 31 March 2015, by way of a briefing to yet a different Minister. This time, on 18 May 2015, the new Minister decided to allow the applicant to apply for a temporary protection visa. Again this appeared to be despite the 2014 ASA, which, unless withdrawn or altered, would be fatal to the protection visa application.

78    It had taken the applicant and his family more than three years in immigration detention to be able to even apply for protection in Australia.

The protection visa applications

79    The applicant made a protection visa application on 12 June 2015.

80    Once again, the applicant remained detained for a long period of time without receiving a decision on this application. The application was refused on 13 June 2018, three years later. The following findings of the delegate should be reproduced:

I accept the applicant’s father and brother-in-law were defendants in the Returnees from Albania trial and confessions made by them were obtained under duress as these claims are generally consistent with independent reports about that trial. ([142])

…

I accept the judicial process in the Returnees from Albania trial was seriously compromised given the range of commentary from reputable human rights observers about the conduct of that trial. ([143])

…

Evidently the judicial process in the Returnees from Albania trial was seriously flawed. ([145])

…

Given the significant problems associated with the conduct of the Returnees from Albania trial, I have formed the view that, by itself, the offences the applicant was convicted of in that court case cannot be relied upon as sufficient evidence that he joined a group established against the rule of law (i.e. he was a member of Egyptian Islamic Jihad) who participated in a criminal agreement. Nevertheless, there are a range of other considerations relevant to finding if the applicant is or was a member of Egyptian Islamic Jihad, and, if so, whether or not he knowingly contributed to the commission of a crime against peace, a war crime, a crime against humanity, a serious non-political crime and/or is guilty of acting contrary to the purposes and principles of the United Nations. ([146])

…

Having read the wealth of information provided to the Department in support of the Protection visa application lodged by the applicant, and having spoken to him over four days, I have formed the view that the applicant is an intelligent, well-educated, multilingual and worldly individual who has not been completely open and honest about his personal history and the nature and extent of associations he has or has had with other people and organisations. The fact that prosecutorial and judicial processes that were followed in the Returnees from Albania trial did not satisfy international standards of probity, effectiveness and impartiality does not mean, ipso facto, that the applicant is not a member of Egyptian Islamic Jihad. In my view: the political situation in Egypt and the personal experiences of the applicant during the formative years of his life; the timing and location of his international travel; the people he was associated with Albania, the United Kingdom and Iran; the organisations he worked for abroad; and the focus of intelligence officials on the applicant in the United Kingdom and Iran leads me to the conclusion that he is a member of Egyptian Islamic Jihad. Analysis about whether or not the applicant forged travel documents for members of that organisation, and/or, committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime or is guilty of acting contrary to the purposes and principles of the United Nations is set out in Part 3 of this assessment record. ([155])

…

It is evident that the prosecutorial and judicial processes in the Returnees from Albania trial were seriously compromised. All 107 defendants in that trial were charged with joining a group that was established against the rule of law and participating in a criminal agreement; a number of defendants could not have been guilty of the crimes they were convicted of; the applicant and numerous other defendants were tried in absentia; the applicant did not have the opportunity to mount an adequate defence against the offences he was charged with; a number of people convicted in the Returnees from Albania trial had confessions extracted with the use of torture; there was a paucity of physical evidence in the case; and there is considerable doubt about the reliability of the evidence used to support the convictions of those who have sought redress in Egyptian appellate courts. Furthermore, it is documented that the Egyptian judiciary sometimes arrives at outcomes reflecting political motivations and are not supported by publically available evidence, and the Egyptian executive has a long history of differentially targeting Islamists in that country in an attempt to marginalise them politically. Having taken these matters into account, I consider the conduct of Egyptian authorities in relation to the charging and prosecution of many of the accused in the Returnees from Albania trial was neither a reasonable nor proportional response to protecting the interests of the Egyptian State, the citizens of Egypt, and visitors to that country. It is evident that the applicant is associated with individuals who were tortured and executed after being arrested and charged by Egyptian authorities in the lead up to the Returnees from Albania trial. Such treatment offends the standards of civil societies which seek to meet the calls of common humanity and involves such a significant departure from the standards of the civilised world as to constitute persecution. Therefore, I consider the discriminatory enforcement of a law of general application for political reasons is the essential and significant reason why the applicant has been targeted by Egyptian authorities. ([167])

(Footnotes omitted.)

81    At [175], the delegate concluded he was:

satisfied that there is a real chance that if the applicant returned to the receiving country, he would be persecuted for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act, specifically political opinion.

82    At [185]-[191], the delegate concluded that there were no serious reasons for considering the applicant has committed acts set out in in paragraphs 5H(2)(a), (b) or (c) of the Migration Act. Therefore, the delegate concluded (at [192]) he was:

satisfied the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because he is a refugee. Accordingly, the applicant satisfies paragraph 36(2)(a) of the Act.

83    However, based on the 2018 ASA, the delegate concluded (at [208]):

I have considered comments made by the applicant and his migration agent about the Interpol Red Notice, the IGIS report by Dr Vivienne Thom, the review of ASAs and judicial review of the Returnees from Albania trial, findings made by the United Nations Working Group on Arbitrary Detention, and the body of law regulating government decision making. However, the evidence before me indicates that ASIO assessed the applicant to be directly or indirectly a risk to security within the meaning of the ASIO Act 1979 on 23 April 2018[.] This assessment remains in force. Therefore I find the applicant does not satisfy the criterion in subsection 36(1B) of the Migration Act 1958.

84    The delegate correctly recognised he had no discretion about this matter, despite his own findings favourable to the applicant, reproduced at [81] and [82] above.

The ASIO assessments

85    The evidence shows that, not long after the applicant’s arrival in Australia, officers within both the Department of Immigration and Citizenship, and ASIO, became aware of the IRN, through the Australian Federal Police. Ms Maddock deposes at [16]-[17]:

On 24 July 2012, Gregory Caris wrote to the Marieka Mysko noting that (RTB 70):

HGL051 - Client has been proposed for the past two s46A Min Subs but removed due to Amber MAL issues being addressed by ASIO. Information provided by BOC indicates that client has also been referred to Interpol. Client is also of IAS Interest (COi note added 18/07/2012).

Family group includes HGL057, HGL052, HGL054, HGL055, HGL056, HGL060 and HGL076.

I understand that ‘HGL051’ is a reference to the Boat ID of the Applicant, ‘BOC’ stands for ‘Border Operations Centre’, ‘IAS’ was the ‘Intelligence Analysis Section’ of the Department of Immigration and Citizenship and a ‘COI note’ was a ‘Client of Interest’ note. I understand that the reference to an ‘Amber MAL’ is to the ‘Movement Alert List’ which is a database used to identify travellers who may present immigration or national security risks to Australia. A person may be designated as ‘amber’ on the MAL if they are a potential risk, which has not yet been assessed.

86    Ms Maddock deposes (at [38]) that:

On 18 October 2012, the AFP wrote to the Department to advise it of the AFP's ongoing interest in the Applicant (RTB 432). That letter stated (RTB 432):

It is the AFP’s strong suspicion that [the applicant] is the subject of a current Interpol Red Notice, issued on 9 October 2001. The Interpol Red Notice reflects [the applicant] has been convicted, in absentia, for premeditated murder, destruction of property, possession of firearms, ammunition and explosives, as well as membership of a terrorist group between 1989 and 1998.

87    As the Independent Reviewer of Adverse Security Assessments Robert Cornall AO would later find, the IRN was based initially on charges and later conviction in absentia arising as part of the Returnees from Albania trial. In 2012, it appears from Ms Maddock’s evidence that it was mostly AFP, rather than ASIO, officers meeting with the applicant. AFP officers met with him at least four times.

88    Ms Maddock deposes (at [39]):

On 5 April 2013, Janet Mackin, who was the Regional Manager for Status Resolution South indicated in an email that the AFP had concluded its investigations and that extradition would not proceed (RTB 320). Ms Mackin also advised that the Applicant’s family were beginning to withdraw, but that the children were still going to school. I was forwarded a copy of Ms Mackin’s email on 8 April 2013, and I responded indicating that the s 46A should be progressed again (RTB 318). Up until that point, I believe that a 46A Submission had not been finalised due to the change in Minister, but that a draft submission was well advanced (and there was a version on which we sought legal review prepared on 18 April 2013 …).

89    By this time, the Australian Human Rights Commission was also investigating the failure to progress the claims for protection by the applicant and his family.

90    Initially, it appears ASIO did not assess the applicant as representing a risk to Australia’s security. This can be inferred from Ms Maddock’s evidence at [26], which was admitted as a statement of her belief. I find Ms Maddock has been closely involved in the applicant’s case for several years. I find her belief about this fact to be a sufficient basis to infer that, initially, ASIO did not assess the applicant as representing a risk to security. This fact is also clear from the extract at [66] above.

ASIO Interviews    

91    The applicant was first interviewed by ASIO officers on 10 July 2013. Each of the interviews I describe in this section was conducted through an interpreter. That fact is relevant to some of the grounds of judicial review.

92    The first ASIO interview occurred after the four times the applicant had been interviewed by the AFP. For some unexplained reason, the first ASIO interview was conducted during Ramadan, when the applicant was fasting. The interview appears to have lasted more than eight hours, with two breaks. However, the applicant could neither eat nor drink during that entire time. The transcript of this interview is in evidence. After explaining ASIO’s role in providing security advice to the Australian Government on matters relating to national security, including to the Department of Immigration and Citizenship, the interviewer describes the purposes of this particular interview:

So the purpose of this interview is to assist ASIO in providing advice – security advice to DIAC, so as to whether or not you would be a risk to Australia’s national security. Okay. So it’s not our role to assess whether you meet the criteria for a visa.

93    This statement was repeated, with minor variations, several times in the first part of the interview. It is not necessary to describe the contents of the interview, but the applicant’s final statement should be noted, when he was asked if he had any concerns:

Look, to be honest, I had too many interviews and too many nice things have been said during the interviews, but nothing have been acted upon, so I hope this interview will be fruitful. I’m honest with you. I had four interviews with the Federal Police. I told them everything and nothing happened. After those four interviews, the media is talking about me as a terrorist or a murderer.

94    The ASIO officers responded that the visa process was not their responsibility but “so the interview today will resolve a security assessment for you, but that’s all that ASIO is doing here today” (with my emphasis added).

95    However, that statement proved inaccurate.

96    The applicant was interviewed again on 5 November 2013. The interviewing officers gave themselves different first names, but there is no evidence whether these names are aliases, and whether they were the same officers from the July 2013 interview. One officer states “my name is Jacki, just in case you have forgotten”. However, no officer by the name of “Jacki” interviewed the applicant in July 2013. It would appear, I infer, that the officers used aliases, and used different aliases each time, even if it was in fact the same ASIO officer.

97    The applicant was told:

We – I know we’ve spoken to you before and you’ve given us a lot of information in that last interview. So we’ll be going over some things that we’ve already discussed. And I would just like to remind you that it’s important that you’re honest with us during the process.

98    This interview commenced at 9.35 am and ended at 5.05 pm. The interviewing officers emphasised the need for the applicant to be honest and not withhold anything. At the end of the interview the officers sought to have the applicant confirm again that he had answered everything honestly and not withheld anything. It was clear that the applicant was frustrated with the repetitious questioning. There was the following exchange at the end of the interview:

[The applicant]: You live here in Australia but the situation in Egypt and other Arab countries is totally different. Not all Muslim people are terrorists. Even if I have some friends that are – are under suspicion, I was put in a position, in a situation where I went through these things. I can’t do anything else to prove to you that this is the truth … I know that you have to be very careful about people coming into this country, and that’s your right. But don’t think things from – from the outside.

Q406: Well, I mean, that’s - - -

[The applicant]: Everything has its own defects.

Q407: No, look, I agree completely. But, you know, that’s one of the reasons why we’re talking to you.

99    The applicant was interviewed again on 22 January 2014, by two ASIO officers with different names, which I infer are likely to have been aliases. This interview commenced at 9.50 am. There is no concluding time recorded, but one of the ASIO officers described it as a “very long day”. The transcript records 716 questions, compared to 421 for the second interview. The second interview had 102 pages of transcript. The third interview had 136 pages. I infer the third interview went longer than the second interview. In this third interview, the applicant was told at the start of the interview:

Gabriella: So we needed to come back today to talk to you to get a bit more detail from you.

…

Gabriella: So we are - as I said, we’re here to gather some more information to – that we will use to provide advice to Immigration. And I just wanted to clarify for you that, in your case, you have not actually made a visa application yet.

[The applicant]: No.

Gabriella: So Immigration has not yet asked us for this advice, but ASIO began an investigation, which it can do under its Act, to provide advice to Immigration.

…

Gabriella: We are getting closer to being able to finish our advice for Immigration. I can’t give you an exact date yet when it will be finished, but I just wanted to make sure that you understand that, because there’s no visa application yet, there might be many more Immigration processes before there is a decision about whether to give you a visa.

100    The officers asked the applicant if he was in good health, or taking any medication, or needed a break to take medication at any time. The applicant’s response should be set out, after having told them what his health problems were, which was the same description given in his affidavit in this trial:

[The applicant]: Okay. To be honest, I’m so cooperative with the interview side of thing, but I feel like what’s called – you said a word - like I’m fed up with the process. I will try to hold my nerves and try to be cooperative as – and hope that – to – for this thing to be done. I know it’s not your problem, it’s Immigration problem, but the Immigration always – I mean, put it as the reason or the cause from your part, not from their … Okay, okay. Now, I’ve been in the detention centre for 21 months, including 10 months I was separated from my family.

Gabriella: Yes, we know. And we understand that would be very frustrating for you, and we’re also trying to finalise this as quickly as possible for a decision for you.

Interpreter: I thank you for that.

Gabriella: Okay. And, you know, Immigration and ASIO is all the one government, and unfortunately there are processes that have to be followed and everybody is working very hard to try and finalise a decision for you and in all cases.

Interpreter: Yeah. I’m grateful to that.

Gabriella: Okay. We will try and make this as stress free as possible.

Interpreter: Yeah. And for any information that I – if I’m aware of it, I won’t hesitate to give it to you.

101    It was after this interview that the 2014 ASA was issued.

102    To recall the chronology, without repeating it, in 2015 and despite this assessment meaning a protection visa must inevitably be refused, the s 46A(1) bar was lifted. However, and again despite the fact there would be an inevitable refusal of the visa because of the 2014 ASA, there was no decision on the applicant’s protection visa application for three years. It was during this time, on 11 July 2017, that the applicant was interviewed by ASIO again. This interview commenced at 9.58 am. The interviewers gave yet another two different aliases. It is not possible to ascertain from the evidence whether one or both of them had interviewed the applicant before. The applicant had a legal representative with him, as it appears from the transcripts in evidence he had done at two of the past three interviews. The legal representative was told at the start of the interview that she could not use her computer, and:

Likewise, you are free to take notes but any notes that you do take will need to be passed to us to be shredded at the end of the interview.

103    Understandably, the legal representative, Ms Ryburn, said:

MS RYBURN: The only reason I’ve got it is in case, yeah, there was any reference to some document.

ELIZABETH: Okay.

MS RYBURN: There’s so many documents in this case ‐‐

104    She was told she could use her laptop during breaks to look at documents.

105    The ASIO officer identified as Elizabeth described the purpose of the interview to the applicant and his lawyer:

ASIO is reviewing your adverse security assessment dated 22 July 2014 as part of ASIO’s standard security assessment review procedures. We have some further questions for you today regarding your background, activities, associations and attitudes relevant to security and we’ll cover those with you today.

This interview will assist ASIO in providing a security assessment to the Department of Immigration and Border Protection on whether or not you are considered a risk to Australia’s national security. It’s not ASIO’s role to assess whether you meet the criteria for a visa. That decision remains that of the Department of Immigration and Border Protection.

106    After some introductory matters, the applicant was asked whether he had any questions, and this exchange ensued:

[The applicant]: I have a simple question before we start this interview in regards to the decision of ASIO in relation to the 17th or the 22nd of July 2014 ‐‐

ELIZABETH: Mmm‐hmm.

[The applicant]: ‐‐ and the adverse security assessment. Until now I have not been given any explanation into the decision of ASIO.

ELIZABETH: Okay. Well, in terms of that previous assessment, there is restrictions in terms of what can be communicated because of national security requirements. However, we have a number of questions for you today, we’ll discuss a number of topics and we will put information to you that I am quite certain will give you an idea or a sense of what our concerns are in relation to your application.

107    I infer that by the word “application” the ASIO officer was referring to the applicant’s protection visa application.

108    The applicant was then questioned, at great length, using essentially the same kind of questioning as he had been questioned with on the previous three occasions, going right back to such basic information as his name, date of birth, his first language, whether he was married, how many children he had, and how he described his religious affiliation. The applicant showed, in my opinion, considerable patience and respect to the questioners, given his extraordinarily difficult circumstances. A lot of time was then spent questioning the applicant about his mobile phone(s), to which he had access in detention, and who he called and why, how he used the phones and the like. The ASIO officers had his phone records and asked questions based on these records. He was then asked about who were his “closest friends and associates in detention at the moment”. This questioning went on for some time. The applicant was then asked about people whose names and details the ASIO officers had assembled, and who visited him in detention or who may have asked to see him. This questioning went on for some time. The applicant gave straightforward answers, describing a wide range of people including former detainees, members of the Arab, Jewish and other ethnic communities who came to visit and share a meal, an international lawyer who was assisting him with a complaint to the United Nations, doctors, and lawyers. The questioning then returned, at length again, to the mobile phones he had used, or had acquired for his family to use. It then moved to what news and other websites he read. The applicant explained:

So, well, part of my browsing was me trying to obtain some information, so this browsing might have led me to websites that have information about al‐Qa’ida or some Islamic groups, and this was part of my search about information about my case when I was in England. And this was a part of my work with my lawyer in ‐ trying to provide a statement or write a statement about my case. And so I was forced to look at websites that might have information about incidents related to terrorism and things that are related to my case, because I didn’t have much information about that period. And I had knowledge that the ‐ there was surveillance in my computer and that they know that ‐ which websites I’m going to. And my goal or my only goal was to obtain information about what happened in my case in England. And in my case in Egypt a lot of names were mentioned. And a lot of names would be mentioned in the case that I don’t know, so I wanted to know who are these people.

109    He was questioned at length about whether he made comments online, including on social media. He was asked about his email addresses and how he used them, as well as how and if he used platforms such as Facebook. It should be noted that it is clear from the evidence that persons held in immigration detention do have access to internet-based sites, with some limitations and in accordance with some restrictions. The applicant was then asked about communications with his Egypt-based family, again based on call records that the ASIO officers had. Lengthy questioning focused on some searches the applicant did about particular individuals who ASIO suggested were associated with EIJ but were now political figures in Egypt. At this point in the interview the applicant’s lawyer interjected, objecting to some of the assumptions in the questions, or in the line of questioning. The transcript also attests to the applicant’s frustrations with the questioning process. When pressed, for example, about his knowledge of his Egyptian lawyer:

[The applicant]: I’m ‐ I’m happy that I’ve been given this opportunity, but the problem is that the circumstances that I’ve been through, no matter how much I explain them, no-one would be able to imagine them, other than myself and my family.

When you asked about the background of my lawyer and things that have happened 25 years ago, when I stayed for 10 years without knowing anything about my family and my parents, my father or mother, how would I know the background of my lawyer?

All these things that have happened with him have happened after I left Egypt. When I was in England – when I was in England, I did not call him at all and I didn’t know anything about him. When I was detained in Iran, I was – isolated myself and my family from all the external world. My father and my mother, I didn’t know whether they were dead or alive. In Indonesia, I didn’t call him. Here I didn’t call him until 2013, and I explained the circumstances under which I had to call him. This is everything, but what he is or what he did or what he didn’t do, I don’t know anything about that.

110    The interview ceased at 5.00 pm, but resumed the next day, at 9.50 am. This time, the applicant’s lawyer was told not to interject. There was this exchange on that issue:

MS RYBURN: I just want to say, I won’t interject to stop the flow of questions at all, because all questions are questions, you know. But I would like the opportunity to say something from time to time if I think it’s helpful, and it does require interjecting because this is just an ongoing question and answer that goes all day. So in order to speak it is on some level an interjection. But, yes, I don’t want to interrupt your questions or anything like that.

ELIZABETH: No, thank you. From your perspective, we’ve got a lot to get through today, and we’d like to put as much as we can to [the applicant] today, so it’s just, I guess, a request to just kind of minimise the interruptions. But I take your point, thank you.

MS RYBURN: Well, I mean, I was here all day yesterday and I only spoke a little bit.

ELIZABETH: Yep, I totally understand.

111    The applicant was then questioned about various aliases and variations of his name that he has used in different places and times of his life. The interviewers then took the applicant to “unclassified open source information” to which ASIO has access about the applicant’s background. He was questioned in relation to suspicions of his involvement with EIJ and arrests in Egypt, and at length about the period in which he lived in Albania and his employment and associations there. The interviewers asked the applicant about several individuals, some of whom the applicant told them he knew. It is apparent from the transcript that some of these individuals were allegedly members of EIJ, and the applicant was questioned about whether he had been involved with them and with EIJ. The applicant gave lengthy answers and emphasised what he believed to be the political context of his arrests in Egypt and the Returnees from Albania trial, for example:

And I recognise it [EIJ] as a terrorist group that has done some crimes. But also the Egyptian government used it as a scapegoat in addition to that to arrest people. And it was enough in the time of Mubarak that they say that this person is a member of a jihad group.

112    This questioning was the same kind of questioning as had occurred prior to the 2014 ASA.

113    The applicant was questioned about his time in Albania and work with the International Islamic Heritage Organisation and RIHS, and imputed EIJ associations within those organisations, at length. There was a long exchange about some allegedly inconsistent information provided by the applicant about the length of time he had worked at those organisations, to which the applicant accepted he may have accidentally misremembered the relevant dates.

114    The applicant was then questioned about his decision to leave Albania and travel to the UK, as well as about his work in the UK.

115    There was a lengthy series of questions about the applicant’s involvement in the provision of fraudulent documents in the UK, which he generally denied. The applicant admitted to the use of false passports by himself and his family, which he explained as a necessity, and drew a distinction between procuring and using false documents, and being involved in their creation and distribution, his role being the latter. In the fourth ASIO interview, in 2017, the applicant explained his involvement in the provision (by mail) of a false Irish visa to his brother-in-law in Albania. The applicant explained that it had been his understanding that his brother-in-law would use the visa to travel to the UK to seek asylum.

116    The applicant was also questioned about his earlier claim to have been approached by UK security service officials who questioned the applicant and offered him work as an informant. The interviewers put to the applicant that he had moved to Iran and then been arrested and detained because of his links with EIJ and al-Qaeda.

117    A portion of the interview, after the interviewer began a line of questioning with regards to the applicant’s Egyptian passport and travel history, is redacted in the transcript provided to the Court.

118    The interview concluded with questioning about what the interviewers termed the applicant’s “ideology”, but in substance was about the applicant’s engagement with his Islamic faith. The applicant responded in detail, to the effect that he is a Sunni Muslim, and believes the actions of groups like Islamic State to be against the teachings of Islam.

119    There is no end time recorded for the second day of the interview, but it is clear from the length of the transcript that the interview continued until the end of the day.

120    It was after this interview that the 2018 assessment was issued.

121    In September 2020, the applicant was interviewed again by ASIO. The interview occurred after he had commenced this proceeding, including against the third respondent. I make findings about this interview, and how the 2020 ASA came about, later in these reasons. The 2020 interview occurred on 15 September 2020. Ms Burrows, the applicant’s current solicitor, was present. As in other interviews, at the start the applicant was asked about his state of health. This time he said:

Okay. Okay. I’ve been very sick for the past six months. I had [medical details redacted in these reasons]. All of a sudden I feel very low and very down. So, because of the importance of this interview, I accepted to do it, but when I feel tired I’ll tell you to stop.

122    This interview is the subject of specific grounds of review and I return to it in more detail below. However, I will briefly summarise the topics covered. The transcript of this interview is more punctuated by references to the interpretation that occurred, and is more difficult to follow. However, the ASIO officer goes through the same kind of introduction as previously, but with a different emphasis. They say:

INTERVIEWER A: … Today’s interview will relate to your background, activities, associations and ideology.

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: Ideology.

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: Relating to security - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: In particular, our ongoing concerns that you have supported politically motivated violence.

…

INTERVIEWER A: … So that the Director-General of ASIO - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - can decide whether or not you remain a risk to Australia’s security.

INTERPRETER: (Foreign language spoken)

…

INTERVIEWER A: … Please note that politically motivated violence is not just engaging in terrorist violence yourself.

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: It also includes supporting terrorists - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - with money, firearms or other logistical support - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - becoming a member of a terrorist organisation or otherwise supporting them in Australia or overseas.

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: Following this interview, as outlined by the court, the Director-General will then make a decision.

…

INTERVIEWER A: - - - and will then issue a new security assessment.

123    The applicant then asked about the relationship between this ASIO interview and his court proceeding. The response given was:

INTERVIEWER A: So we’re currently in the court and ASIO have asked to do a new review of the security assessment … And this interview is part of that review.

(Emphasis added.)

124    The inconsistency between this statement and what is on the briefing note to the Director-General for the purposes of the 2020 ASA should be noted: compare [232], below.

125    The applicant asked for some clarification about the timing then mentioned by the ASIO officer of the end of October (2020):

INTERPRETER: You said at the end of October you – there will be another review, another security review?

INTERVIEWER A: Another security assessment.

[The applicant]: An outcome?

INTERVIEWER A: Yes.

126    The interviewer stated that many of the questions asked of the applicant would be “questions you have already answered for us or for Home Affairs”, and that:

INTERVIEWER A: The reason for these questions is to clarify some important matters we do not understand - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - or that we do not believe from the information we currently have available.

127    It is apparent from the transcript of the interview that the applicant made sure, by way of requesting that the interpreter clarify with the interviewer, that the reason for the questioning by ASIO included further questions on “some important matters … that we [ASIO] do not believe”.

128    The interviewer then warned the applicant that he should be truthful and honest:

INTERVIEWER A: For example, should ASIO find that, because of classified information - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - that you have lied about your past - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - then ASIO [may] find that you are lying about other things too - - -

…

INTERVIEWER A: - - - such as what you would do if you were granted a visa to live in Australia.

129    The interviewer then stated:

INTERVIEWER A: Okay. So, as explained to your lawyers and the court - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - ASIO is reviewing your adverse security assessment.

INTERPRETER: (Foreign language spoken)

…

INTERVIEWER A: We have told the court that we are doing this.

…

INTERVIEWER A: … And we will then issue a new security assessment.

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: This interview is part of that process.

130    Again, the inconsistency between this statement and what is on the briefing note to the Director-General for the purposes of the 2020 ASA should be noted.

131    The applicant was reminded his participation in the interview was “voluntary”, although the ASIO officer then said:

INTERVIEWER A: If you choose not to participate, ASIO may be required to issue a new security assessment without you having the opportunity to respond.

132    A little later the ASIO officer informed the applicant that ASIO was adopting the recommendations made by Mr Cornall and:

INTERVIEWER A: So today we will not be asking you any questions about the Egyptian trial or red notice material.

133    There follows a discussion about whether the SERCO officers in the vicinity of the interview, which was being conducted in the visitors’ area of Villawood Immigration Detention Centre, could hear what was being said. This forms part of the grounds of review and I return to this aspect of the transcript later in these reasons.

134    The interviewer requested that the applicant list all names by which he had been known, and list all email addresses and phone numbers that he had used. The applicant provided this information. The applicant also provided, when requested by the interviewer, a summary of his interactions with a number of individuals, including other individuals in immigration detention in Australia.

135    Subsequent to that discussion, the interviewer went back to questions about the applicant’s time in Egypt, Albania, the UK, Iran and then Australia, in chronological sequence.

136    Regularly throughout this chronological process, the interviewer would state that ASIO had information indicating that the applicant had connections to, or involvement in, EIJ, and that the applicant had not been honest in previous interviews about those connections or involvement. At each instance of this occurring, the transcript records a recurring dialogue between the interviewer and applicant: the interviewer would make an accusation; the applicant would deny that accusation; the applicant would state that the only plausible reason for ASIO to make that accusation was ASIO’s reliance on the Returnees from Albania trial; the interviewer would state that ASIO was relying on other classified information to make the accusation; the applicant would reject the correctness of that information and would request that he be provided with details of that information so that he could respond to it and properly defend himself; and the interviewer would state that the information was classified and could not be provided to the applicant.

137    The interviewer put to the applicant that he had been an “operational member” (as opposed to merely a passive supporter) of an operational EIJ cell in Albania in the 1990s. At its core, the accusation put to the applicant appeared to be that:

INTERVIEWER A: We believe, as the sole accountant for [RIHS], in such a small organisation, that you would have been aware and must have been aware that it was funding EIJ and al-Qaeda.

138    The applicant denied the accusations, and again reiterated that if ASIO was relying on any information other than information from the Returnees from Albania trial, then the interviewer should provide this to him so he could properly understand it and defend himself. The interviewer declined to do so, stating that the information was classified. The applicant stated that:

[The applicant]: (Foreign language spoken)

INTERPRETER: So the last assessment, ASIO – they depended on the case of returnees from Albania.

[The applicant]: (Foreign language spoken)

INTERPRETER: Now you’re repeating the same words, avoiding mentioning returnees from Albania.

139    The interviewer next turned to the applicant’s time in the UK. The applicant described that he had moved to the UK because of fear for the safety of his family given unrest in Albania. He also described in detail his interactions with a number of individuals in the UK, that he was approached by MI5 officers on numerous occasions, and that he was detained for 10 months shortly after the birth of his daughter.

140    The interviewer focused on the applicant’s association with a man who had been accused of working with al-Qaeda, and on the applicant’s alleged involvement in supplying EIJ members with false travel documents. The applicant denied any involvement with EIJ, or knowledge of that man’s involvement with EIJ, and denied being involved in the production of false travel documents. As he had done in previous interviews, the applicant again argued that if he had been capable of falsifying travel documents, he would not have risked bringing his family to Australia by boat. At each instance where the interviewer made an allegation of illegal activity against the applicant, the applicant again repeated that he could not properly defend himself if he was not provided with more factual information about the allegations put to him by ASIO.

141    Next, the interviewer brought the focus of the interview to Iran. The interviewer put to the applicant that it was suspicious that he had chosen to go “from a fairly stable life in the UK, where you had temporary residence … to a country where you had, as you said, limited information, no income, no employment, no contacts and no legal status”. The applicant responded, by reference to his 10 months in prison in the UK and his “harassment” by MI5, that “[m]y life in the UK was not stable and it wasn’t quiet”.

142    The interviewer put to the applicant that ASIO had information suggesting that the applicant’s move to Iran coincided with numerous high-level al-Qaeda members fleeing to that country. The applicant denied any knowledge of this. The interviewer asked the applicant about his interactions with a number of individuals in Iran. The applicant went into significant detail about his relationships with those individuals. He rejected that his detention alongside those individuals, allegedly involved with EIJ, suggested that he also had any involvement with EIJ. The applicant said:

INTERPRETER: It doesn’t mean though, that the Iranian intelligence put me in a place where other detainees were there, that I’m part of them.

INTERVIEWER A: Okay.

[The applicant]: (Foreign language spoken)

INTERPRETER: Here in the detention - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - they detained the Sri Lankans who were rejected by ASIO.

[The applicant]: (Foreign language spoken)

INTERPRETER: And I was with them (indistinct)

[The applicant]: (Foreign language spoken)

INTERPRETER: It doesn’t mean that I’m from the Tamil Tigers.

[The applicant]: (Foreign language spoken)

INTERPRETER: I did not choose to be there. They put me. Out of my control.

143    The interviewer also put to the applicant that ASIO had information suggesting that his release after nine years of detention correlated with the release by Iranian authorities of other individuals with links to EIJ and al-Qaeda. Again, the applicant denied any knowledge of this, requesting access to the information ASIO relied on in order to defend himself properly. And again, the interviewer reiterated that the information was classified and could not be disclosed.

144    The interviewer then turned to questions regarding the applicant’s ideology. The applicant stated that he was, and had always been, a moderate Sunni Muslim who does not support the use of violence as a means to solve problems. He stated that during his detention he had made friends with other detained individuals from a variety of different religious backgrounds, and stated that he would do the same were he to be released into the Australian community.

145    Again, the interviewer made a number of accusations against the applicant concerning his activities in Albania and the UK. The applicant against denied these accusations, and outlined his frustration at not being able to know what information ASIO was relying on in order to properly defend himself:

INTERVIEWER A: Okay. After all we’ve spoken about today - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - do you understand that we have concerns regarding your background - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - specifically, that you were a member of EIJ and that you were involved in EIJ cells in Albania and the UK - - -

INTERPRETER: (Foreign language spoken)

…

INTERVIEWER A: And that we have concerns that, as a member of EIJ - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - you held an ideology supportive of EIJ and al-Qaeda - - -

INTERPRETER: (Foreign language spoken)

INTERVIEWER A: - - - and supportive of the use of politically motivated violence.

…

INTERVIEWER A: … Would you like to respond?

INTERPRETER: (Foreign language spoken)

[The applicant]: (Foreign language spoken)

INTERPRETER: I will repeat what I’ve said.

[The applicant]: (Foreign language spoken)

INTERPRETER: I deny or refuse all of these claims.

[The applicant]: (Foreign language spoken)

INTERPRETER: On the other hand I’m asking ASIO to present me with any evidence to prove what – the claims - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - and give me information about what I’ve got involved in or the support that I give.

INTERVIEWER A: Okay.

INTERPRETER: Mm-hmm.

[The applicant]: (Foreign language spoken)

INTERPRETER: Okay.

[The applicant]: (Foreign language spoken)

INTERPRETER: Or I will consider myself to be deprived from the choice that – the freedom of commenting on - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: And, at the end, I deny everything totally.

146    The interviewer then put to the applicant that he had lied in his interviews since 2013, and that “[t]herefore, we [ASIO] are concerned that you remain ideologically supportive of politically motivated violence and al-Qaeda”.

147    The applicant responded that he felt he was being pressured into admitting something that was not true:

INTERPRETER: What I see and I feel - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - that ASIO is trying to pressure me mentally while I’m in the detention centre - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - either to admit something, to confess something, I did not do - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - or I will be under this torture and this mental stress, pressure, for a long period of time.

[The applicant]: (Foreign language spoken)

INTERPRETER: Egypt used the same methodology but in a different way.

148    When asked at the end of the interview if he had any concerns, the applicant again reiterated his concern with ASIO “not providing me with any evidence to support your claims”.

149    The ASIO officers did not respond substantively to this observation by the applicant.

The 2018 assessment decision

150    The 2018 assessment decision names the “Commonwealth Agency” to which the assessment is directed as the Department of Home Affairs. It:

(a)    describes the purpose of the security assessment as being “[t]o provide security advice to the Minister for Home Affairs on whether it would be consistent with the requirements of security for prescribed administrative action to be taken under the Migration Act 1958 (Cth) in respect of [the applicant]”;

(b)    provides an assessment in the following terms:

ASIO assesses [the applicant] 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 [the applicant] to be granted an Australian temporary protection visa (subclass 785).

(c)    and somewhat curiously, given the terms of s 36(1B) (which are mandatory), the assessment decision then states, under the heading “Recommendation”:

ASIO recommends [the applicant’s] Australian temporary protection visa (subclass 785) application be refused.

ASIO recommends that a further security assessment be requested from ASIO should [the applicant] lodge a further visa application.

The “Truncated Statement of Grounds” for the 2018 assessment

151    In some cases, ASIO is required by s 37(2) of the ASIO Act to provide, with its security assessment, a statement of grounds for the assessment. Although s 37(2) did not apply to the ASAs of the applicant, by reason of s 36(1)(b) of the ASIO Act (see [201] below]), a statement of grounds was produced for each of the 2018 and 2020 assessments, which appears to seek to comply with the terms of s 37(2). They were each described as “truncated” because, as contemplated by s 37(2)(a), the Director-General was said to have formed an opinion about what information relied upon by ASIO in making the assessment should not be disclosed because it would be “contrary to the requirements of security”.

152    The 2018 TSOG makes seven principal findings about the applicant. It then sets out the basis and reasons for those findings, although substantial parts of the document are redacted by the use of “[…]”. There is no evidence about the purpose of, or justification for, these redactions.

153    Of the seven findings, the first three are findings about historic activities connected to EIJ. These findings concern events up to 2001. The fourth finding ascribes a reason for the applicant fleeing to Iran, and his detention in Iran, that is connected to EIJ and other organisations. The fifth, sixth and seventh findings are the ones that tied the findings about the applicant’s past conduct to the key issue of what risk, if any, he posed to security in Australia if released from immigration detention. Those findings were:

    as a member of EIJ, held an ideology supportive of politically motivated violence (PMV) and likely still holds an ideology supportive of EIJ/al-Qa’ida, noting a lack of credible information to demonstrate his assessed extremist ideology has moderated over time;

    has withheld, and continues to withhold, information from ASIO to likely conceal activities and associations of security concern for the assessed purpose of influencing a positive security assessment; and

    will likely engage in activities of security concern if he were to be granted a visa and enter the community.

154    Those three findings reflect similar, but not identical, findings from the 2014 ASA. In terms of the information on which the assessment is based, the document divides this into “new information, being information derived since, or not available at the time of, the previous assessment (July 2014)” and “intelligence obtained from the previous assessment”. The ASIO interviews are listed here, as are topics such as “information from HA, including information on [the applicant’s] visitors, health, conduct and behaviour while in detention”. The abbreviation “HA” is, I infer, the Home Affairs.

155    In the “previous” information category, the first item listed is:

the IRN issued on 9 October 2001 and the addendum to the IRN (amending the charges) issued on 13 June 2014;

156    There follows a description of EIJ, and ASIO’s views about its relationship to al-Qaeda. There is then a section headed “The Interpol Red Notice and the ‘Returnees from Albania Trial’”. In this section, ASIO outlines the information available about the trial and the IRN, including what had been provided on behalf of the applicant. At [29]-[30], under the heading “Weighting of intelligence information”, the 2018 TSOG states:

ASIO acknowledges criticisms of the judicial processes in the Returnees from Albania case including declarations made by several of [the applicant’s] co-accused that their statements were made under the effects of torture. ASIO assesses it is possible that some of the co-accused in the Returnees from Albania trial may have provided information under duress, torture, or other cruel, inhuman or degrading treatment or punishment, and has therefore treated the information with caution. This does not, however, mean the information in itself is untrue. ASIO notes the co-accused witnesses were all consistent in their description of [the applicant’s] role in EIJ. This may be countered by [the applicant’s] argument that the co-accused witnesses were provided with pre-prepared statements which he said they signed as a result of physical and psychological pressure. ASIO notes however that in some cases, the information provided by the co-accused corresponds with other information available to ASIO and in other cases, to information provided to ASIO by [the applicant] himself. As a result of this, ASIO has attributed some weight to the allegations made by the co-accused in the Returnees from Albania trial, however this information merely contributes to a broader intelligence case underlying this security assessment.

Similarly, ASIO acknowledges the cancellation of the IRN relating to [the applicant]. [….], ASIO assesses the cancellation of the IRN does not displace ASIO’s security concerns regarding [the applicant’s] associations and activities. As outlined in paragraph 29 above, his security assessment is based on a broad pool of intelligence, obtained from a range of sources available to ASIO.

157    There then follows an explanation, under the heading “Current assessment”, of why ASIO reached the seven principal conclusions it did. In relation to the three historic activities findings, a substantial part of this explanation relies on evidence from the Returnees from Albania trial, although after rehearsing all this information in considerable detail, the TSOG (at [48]) purports to say that ASIO has treated the information “with caution”. That assertion is difficult to accept on the face of the 2018 TSOG, as its contents read. The 2018 TSOG returns to reliance on these sources of information at various points in the explanations given for the conclusions expressed.

158    This section of the 2018 TSOG contains reasoning that purports to explain why the applicant’s accounts of his time in Saudi Arabia were not accepted, although the reasoning is little more than consequentialist:

ASIO has no way to confirm the length of time [the applicant] was employed by IIHO and [RIHS]. ASIO has taken into account that [the applicant] may have been unable to accurately recall the dates of his employment in Albania and consider that this may have resulted in some of the variance between his accounts. Notwithstanding this, the discrepancies of the various accounts provided by [the applicant], combined with the lack of detail surrounding his description of his self-employment does, on balance, suggest it is likely he is trying to obscure involvement in activities of security concern undertaken in Albania.

ASIO assesses it likely [the applicant] did not undertake a period of self-employment while in Albania, but rather remained at [RIHS], or undertook employment at another Islamic charitable organisation until his departure from Albania in April 1997. ASIO assesses [the applicant] likely sought to mislead ASIO about his work related activities in Albania in an attempt to conceal his involvement in EIJ-related activities that were being undertaken at those organisations at that time. This assessment of [the applicant’s] involvement with IIHO and [RIHS] was put to him at ASIO’s fourth interview, to which [the applicant] replied the assessment was ‘completely wrong’. Notwithstanding [the applicant’s] denial of involvement in EIJ-related activities in Albania, ASIO assesses [the applicant] was involved in an EIJ operational cell in Albania that had infiltrated the [RIHS] and [the applicant] has sought to conceal the extent of his involvement in this cell from ASIO.

(Footnotes omitted.)

159    The TSOG document at points has a high proportion of redactions: for example, at [63]-[76], [111], [114] and [116] (including footnotes omitted). It is difficult to ascertain how large the redacted sections are. They could be a sentence or two, or more. However, they all concern the applicant’s time in Saudi Arabia and Iran.

160    From [120], the TSOG turns to the applicant’s “ideology”, found by ASIO to be supportive of politically motivated violence. It is important to recall that what this word is describing is what a person believes. In this section, the early parts also refer back to the applicant’s time in Saudi Arabia and Iran, and his contacts during that period, such as his Egyptian lawyer. The redacted sections relate to these findings.

161    It is apparent the applicant’s statements of belief are fundamentally not accepted by ASIO. At [123]:

While ASIO notes [the applicant’s] comments regarding his religious ideology, his comments are at odds with ASIO’s assessment of his background as an EIJ member. While ASIO acknowledges an individual’s ideology can change during the course of their life, [the applicant] has consistently denied any involvement with EIJ, association with EIJ members or support for an extremist ideology. While [the applicant] maintains he is a moderate Muslim that does not support the use of violence, his attempts to mislead ASIO by withholding and concealing information in respect to his past involvement with EIJ mean ASIO cannot, with any confidence, take his comments regarding his current religious ideology to be truthful. On the basis of a lack of credible information to demonstrate his assessed extremist ideology has moderated over time, ASIO assesses [the applicant] is likely to still hold an ideology supportive of EIJ/al-Qa’ida.

162    There follow some findings about withholding of information, which appear to me to repeat a single instance of information discovered by ASIO and put to the applicant (about him assisting another person to obtain a false Irish passport), which the applicant had not volunteered. Recalling the length and breadth of the interviews of the applicant, one might describe ASIO’s expectations of how much information the applicant would be able to actively recall, apprehend to be relevant and be able to volunteer, in the circumstances in which the interviews were conducted, to be unreasonable and unrealistic. The remainder of the reasoning in this section of the 2018 TSOG stems from a primary position of disbelief of the applicant.

163    Notably absent from this “withholding information” section ([131]-[135]) is any reasoning or justifications about the applicant withholding information about his relationships and communications since he had been detained Australia over (at the time of the 2018 ASA) the last 6 years. That is so despite the applicant having been exhaustively questioned about these matters in the 2017 interview.

164    From [136] there follows an explanation for ASIO’s conclusion that the applicant “will likely engage in activities of security concern if he were to be granted a visa and enter the community”. As I explain in more detail below, this is the most critical section of the reasoning supporting the decision made by ASIO. The assessment of “risk” is about what a person may or may not do in the future. It is a forward-looking predictive exercise, which, albeit in different contexts, courts have recognised as problematic, especially where it involves tendency reasoning. In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at [72]-[74], I extracted some passages from the Victorian Court of Appeal decision in RJE v Secretary to Department of Justice [2008] VSCA 265; 21 VR 526 (Maxwell P and Weinberg JJA at [16]-[17]), and the dissenting reasons of Gageler J (at [70]-[72]) and Nettle J (at [154]) in Hughes v The Queen [2017] HCA 20; 263 CLR 338. See also AB v Chief Commissioner of Police [2020] FCA 14 at [48]. Splendido concerned an assessment of the risk of re-offending in a person whose visa had been cancelled. In my opinion, the task being performed by ASIO under s 37(1) has some similar characteristics, and is exposed to the same kind of potential problems.

165    The reasoning about why the applicant may pose a risk to security in the future, if released, in this section of the 2018 TSOG is minimal. All that is said is the following:

[The applicant’s] background in Egypt, Albania, the UK and Iran show a pattern of behaviour where his relocation from one location to another, led to his immediate re-engagement with EIJ/al-Qa’ida linked, likeminded individuals. Furthermore, [the applicant] did not consciously or willingly cease his involvement in activities of security concern, or terminate his associations with individuals of security concern when he had the opportunity. ASIO assesses this pattern of behaviour is demonstrative of [the applicant’s] involvement in, and association with an EIJ/al-Qa’ida linked international network. ASIO assesses [the applicant’s] insistence that his activities and associates were disparate and unrelated to be implausible in the face of the reporting indicating the inter-connectedness of his associates and [the applicant’s] proximity to them.

On the basis of [the applicant’s] past pattern of behaviour, combined with his efforts to conceal his involvement in activities of security concern and his association with extremists and the lack of credible information to indicate his extremist ideology has moderated, ASIO assesses it is likely he will engage in activities of security concern should he be granted a TPV (subclass 785) visa.

166    There are no redacted parts in this section.

167    There is then a “wrap-up” paragraph of reasoning, which in fairness also appears to reflect ASIO’s justification for its decision:

[….] on the basis of the seriousness of [the applicant’s] past conduct, his ongoing attempts to mislead ASIO in relation to previous conduct of security concern, the lack of any credible information to demonstrate that his extremist ideology has moderated and the enduring threat to Australia posed by al-Qa’ida and similar organisations, ASIO assesses [the applicant] to be a direct or indirect risk to security and that it would not be consistent with the requirements of security for [the applicant] to be granted a TPV (subclass 785).

168    The concluding paragraphs in [142] and [143] should also be extracted:

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

ASIO is conscious that depriving a person of an Australian visa is a serious matter and has considered carefully the consequences of this adverse security assessment for [the applicant]. These include consequences of visa refusal which are common to any person such as the inability to lawfully reside in Australia. Specific to [the applicant], ASIO is conscious that the furnishing of an adverse security assessment will have the consequence of [the applicant] remaining in immigration detention (and separated from his family) for the foreseeable future if he does not wish to, or cannot, return to his country of origin. ASIO is also conscious that this adverse security assessment will also impact on the outcome of the visa applications of [the applicant’s] family (wife and six children) with [the applicant] being the primary applicant. Notwithstanding these considerations, ASIO considers that the refusal of his visa application is appropriate and proportionate to the assessed risk to security should he be granted the visa.

169    The last paragraph is the one that is repeated in substance in the 2018 briefing note to the Director-General: see [225], below.

The 2020 assessment decision

170    The 2020 assessment decision has broadly the same structure and content as the 2018 assessment decision, so it is not necessary to set it out in detail.

The Truncated Statement of Grounds for the 2020 assessment

171    There were four principal findings in the 2020 TSOG. The first concerned the applicant’s historic activities with EIJ, although one important difference was that the date of those activities was purportedly found to extend to 2010. The second finding, about the applicant’s “ideology”, was partly historic but also a finding about ASIO’s view of the applicant’s “likely” ideology in 2020. The third was a finding of withholding information, and being “likely to conceal activities and associations of security concern”. The fourth was a finding the applicant:

would be likely to engage in activities of security concern in the community.

172    The 2020 TSOG then followed substantively the same format and content as the 2018 TSOG, in terms of the background, the descriptions of EIJ and ASIO’s views about its relationship to al-Qaeda. At [15], there is some speculation about why the applicant may have been arrested in Egypt as a young man, which seems to be no more than conjecture, and despite a passing reference to the fact that Egypt may at this time have detained individuals “without cause”, in substance not appearing to take that possibility into account at all.

173    From [16], in terms of ASIO’s justifications for its findings about the applicant’s historic activities, and the people with whom ASIO considers he associated, the 2020 TSOG follows much the same line of reasoning as the 2018 TSOG. As with the 2018 document, the document makes explicit ASIO’s disbelief of the applicant’s explanations about his historic activities and associations, for example:

ASIO assesses [the applicant’s] comments that he was unaware of the EIJ connections of his colleagues are likely to be untrue given the small size of the office in which he worked and his role as an accountant at IIRO and RIHS.

174    It is fair to say there is an increased reliance in the 2020 TSOG on the contents of the ASIO interviews. There are no references apparent on the face of the 2020 TSOG to documents or information sourced from the Returnees to Albania trial. Of course, it is not possible for the applicant or the Court to know what is referred to in the redacted parts. The 2020 document is also, overall, much more conclusory in nature. Since it was produced during the currency of these proceedings, and likely with the benefit of legal advice, that may not be surprising.

175    From [47]-[49], under a heading “Likely maintains an ideology supportive of PMV and EIJ and AQ”, a conclusion to this effect is expressed in reliance on ASIO’s assessment that the applicant “demonstrated a pattern of deliberate and continued association with EIJ members and individuals who held ideologies supportive of EIJ, AQ and PMV”. This can only refer to the period in the applicant’s life up until he left the UK, there having been no findings at all about any such activities or associations when the applicant was in Malaysia or Indonesia. For clarity, it is set out elsewhere in the TSOG that “PMV” refers to “politically motivated violence”.

176    ASIO notes the applicant’s denials of ever having any such “ideology”, and having told ASIO he was “a ‘moderate Muslim’ who did not agree with the use of violence to further a belief. [The applicant] also said he did not support any extremist groups, including EIJ and AQ”. The document nevertheless goes on to make a finding in substantially the same terms as the extract from the TSOG at [161] above.

177    At [50]-[51], the 2020 TSOG states that ASIO considers the applicant “provided dishonest responses and withheld information at all SAIs [security assessment interviews] to positively influence ASIO’s assessment of his suitability to hold an Australian visa”. Unlike the 2018 TSOG, the document does not attempt to explain or justify this conclusion.

178    At [52]-[53], the 2020 TSOG returns to the applicant’s historic activities, concluding he “demonstrated a pattern of associating with senior EIJ members during periods where EIJ members were planning attacks against Western interests”. Again, the document does not attempt to explain or justify this or other conclusions in this section.

179    Under the heading “Likely to engage in activities of security concern”, at [54] the 2020 TSOG expresses the following conclusion:

ASIO assesses [the applicant] would be likely to engage in activities of security concern in the community. [The applicant] has remained in immigration detention since his arrival in Australia in 2012, which makes it difficult to assess how he would behave in community. However, ASIO assesses [the applicant’s] activities and behavior while in Australia in immigration detention are not an accurate representation of his future behavior if he were in community. ASIO assesses [the applicant’s] detention in an immigration detention facility had a mitigating effect on [the applicant’s] security relevant activities. [The applicant] did not consciously or willingly cease his involvement in activities of security concern, or terminate his associations with individuals of security concern when he moved from one country to another. Based on his pattern of associating with EIJ members across multiple countries, ASIO assesses it is likely [the applicant] will re-engage in activities of security concern if he is in the community

180    This conclusion is not accompanied by any justification or explanation, and that is despite very considerable parts of the 2017 and 2020 ASIO interviews canvassing who the applicant may have seen and may have communicated with during his time in immigration detention, the websites or platforms he used and the digital information he accessed or published.

181    There is a further conclusion at [57]:

ASIO assesses individuals ideologically supportive of PMV represent a heightened risk of engaging in—or energizing others to engage in—PMV in Australia. This includes individuals such as [the applicant], whose likely ideological support for extremist groups represents an acceptance of the global extremist narrative, which could encourage Australian individuals to engage in, or provide support to, extremist activities including PMV. Australian individuals who adhere to an extremist ideology may also seek out [the applicant] should they become aware of his historical association with EIJ and AQ members. In making this assessment, ASIO has considered the potential harm [the applicant] poses in the current security environment, given his assessed extremist Islamist ideology. ASIO assesses [the applicant’s] presence in Australia would contribute to the cumulative risk of Islamist extremist radicalisation and activity in Australia which supports and promotes PMV, which can be mitigated by excluding such individuals from Australia where possible. Refusal of a visa may continue to have a disruptive effect on [the applicant’s] activities of security concern. [The applicant] presents an avoidable risk to Australia’s security which would be mitigated by refusal of his application for a TPV (subclass 785).

(Emphasis added.)

182    The statement in bold, expressed in the present tense, appears to suggest the applicant was engaging in activities of “security concern” in 2020. Yet none are identified and none were put to the applicant in the 2020 ASIO interview. Any finding about present activities would appear baseless on the evidence before the Court, and unjustified by any statement in the 2018 or 2020 TSOG aside from this bald assertion. At [58]-[60], the 2020 TSOG makes the following statements about the IRN and information sourced from, or about, the Returnees from Albania trial:

In forming the 2014 and 2018 ASAs, ASIO applied some weight to evidence against [the applicant] from an Egyptian military court trial (known as the ‘Returnees from Albania Trial’), where he was convicted and sentenced in absentia in April 1999 to fifteen years hard labour. Interpol issued a Red Notice (IRN) against [the applicant] as a result of this conviction, which was withdrawn in February 2018 due to evidence of torture being used by the Egyptian authorities to obtain evidence against [the applicant] and others. Despite the torture allegations, ASIO applied some weight to the Returnees from Albania trial evidence as part of the overall intelligence case, where it had been corroborated by other classified and open source information, including information provided by [the applicant].

However, in reviewing this case and issuing this ASA, ASIO has not taken into account any of the Returnees from Albania trial evidence, judgement, or sentence against [the applicant]. The same classified and open source information referred to above was also relied upon in the 2014 and 2018 ASAs and their statements of grounds.

The only relevance of the IRN in any of the ASAs, is that it led ASIO to withdraw its community detention approval for [the applicant] in August 2012, but it has not been relied upon in forming this ASA. Placing no weight on the Returnees from Albania trial evidence or IRN in this assessment is consistent with the recommendations of Mr Robert Cornall AO, in his report from 6 November 2019.

(Footnotes omitted.)

183    Whether these statements can be taken at face value forms part of the applicant’s grounds of review.

184    At [63], the 2020 TSOG states:

Specific to [the applicant], ASIO is conscious that it may also have the consequence of preventing him from being released from immigration detention. On 13 June 2018 [the applicant] was found to be owed protection by the Department of Home Affairs. However, as a result of ASIO’s ASA, [the applicant] will continue to be held in indefinite detention separated from [his] family, who remain in community in Australia. Notwithstanding these considerations, ASIO considers that the refusal of his visa application is appropriate and proportionate to the assessed risk to security should he be granted a TPV (subclass 785).

185    It should be noted that whether refusal of a visa application is “appropriate and proportionate” is not a matter for ASIO. Nor is that part of the statutory task in determining whether to grant or refuse a protection visa. This statement is repeated in the briefing note to the Director-General.

Inquiries and reports as to the situation of the applicant and his family

186    The treatment and circumstances of the applicant and his family since they arrived in Australia seeking asylum have been the subject of a number of reports and inquiries. The number and breadth of these reports and inquiries is testament to the administrative and bureaucratic contortions and complexities about how the family’s claims for asylum should be assessed and processed, and how the family as a group of adult and minor human beings should be treated, including the unacceptable delays in decision-making those contortions have generated.

187    In December 2013 the AHRC issued a notice under the Australian Human Rights Commission Act 1986 (Cth) in relation to a complaint made by the applicant to the AHRC. The Department of Immigration and Border Protection was named as the respondent. The AHRC found that where the applicant’s circumstances had been found to engage Australia’s protection obligations, the administrative detention of the applicant was not proportionate and the delays in processing his case not justified. At this point, the applicant’s detention was for a much shorter period than it was at trial. The commensurate delays in progressing the visa applications of the applicant’s family were found to be in breach of art 9(1) of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), and, in relation to his children, arts 3 and 37(b) of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

188    In January 2014 the Inspector-General of Intelligence and Security published a public report in relation to the applicant. The report was produced at the request of the then Prime Minister in response to media reports about the applicant’s circumstances and alleged clearance for community detention. The Inspector-General found that while the relevant agencies had followed standard procedure in relation to the applicant’s arrival and initial detention, there had been poor communication both between ASIO, the AFP and the Department, and between different areas within ASIO and the Department. The inquiry also found that some understandings between ASIO and the Department were “not supported by any documentary evidence” and that in relation to the applicant the Department had “made decisions on detention arrangements without a full appreciation of all relevant information”, but that changes had been made within ASIO and the Department prior to publication of the report that “go some way” to addressing the issues found in the report.

The report by Robert Cornall

189    The report dated 9 November 2019 of Robert Cornall, the Independent Reviewer of ASIO security assessments, is relevant to the grounds of review. Parts of the report have been redacted and there was no challenge on behalf of the applicant to those redactions. I consider its contents where necessary later in these reasons, but give a short summary here.

190    As the report indicates (at p 5), there were three principal criteria to be met before a review of the 2018 ASA could be conducted. Since the review process is administrative, the restrictions on access to that process come about through policy guidelines rather than any legislative scheme. In other words, the executive has decided who should have access to an independent review of ASIO assessments, and who should not. Relevantly, the criteria determined by the policy were that an individual:

(a)    remained in immigration detention;

(b)    had been found by Home Affairs to be owed protection obligations under international law; and

(c)    was ineligible for a permanent protection visa because they are the subject of an adverse ASA.

191    Since the refusal of his protection visa application, the applicant met these criteria. After setting out some background, Mr Cornall’s report went through the 2014 ASA and then the 2018 ASA, including by reference to the interviews conducted by ASIO officers with the applicant. The report then considered the classified statement of grounds produced by ASIO in relation to the 2018 ASA (rather than the redacted version provided to the applicant and to the Court). Mr Cornall’s report also addressed the applicant’s contentions about the assessment and the reasons given for it in the 2018 TSOG.

192    In dealing with the applicant’s responses and contentions, Mr Cornall made the following statements (at p 33), which appear tinged with scepticism about the applicant’s position:

However, [the applicant] denies he joined EIJ when he was at university and asserts that at the time he did not know about the terrorist associations of the people he worked or socialised with. If this assertion is true, then his life has been dogged by very unfortunate coincidences over the 16 or 17 year period before he left Iran for Indonesia and then Australia because:

•    he worked with the Albanian charities at a time when they are believed to have been infiltrated by EIJ and al-Qa’ida and were undertaking terrorist and criminal activities (even though they were not proscribed terrorist organisations at that time)

•    he associated with people in London who had established membership of, or association with, al-Qa’ida (such as Abdel Majid who was later convicted in the US of terrorism offences in relation to the embassy bombings in Tanzania and Kenya and sentenced to 25 years imprisonment) and had involvement in dealings with false passports, and

•    after the New York terrorist attacks, he moved to Iran at the same time as many al-Qa’ida members sought safe haven there and was detained along with them until 2010.

193    The report then set out three aspects of ASIO’s grounds for the 2018 ASA about which Mr Cornall had reservations:

(a)    ASIO’s use of material from the Returnees from Albania trial, which Mr Cornall described as a “travesty of justice”;

(b)    ASIO’s reliance on the IRNs, which Mr Cornall considered inappropriate given the connection to the Returnees from Albania trial, and the decision on 31 January 2018 to withdraw the IRNs; and

(c)    the need for ASIO to “give more detailed consideration to its assessment of [the applicant’s] current ideology”, because of the applicant’s consistent assertions that he does not support violence and does not hold an extremist ideology, this factor being “an important part” of the assessment whether a person remains a direct or indirect threat to security and will likely engage in activities of security concern should they be granted a visa.

194    On the first matter, Mr Cornall recommended:

ASIO disregard the Returnees from Albania trial (including evidence, judgment and sentence) and relies on the broader intelligence case to inform its assessment.

195    On the second matter, Mr Cornall recommended:

no reliance should be placed on the two Red Notices… The review recommends that ASIO disregard the two Interpol Red Notices as they are based solely on a conviction in the flawed Returnees from Albania trial and have been deleted from Interpol’s files.

196    On the third matter, Mr Cornall recommended:

ASIO give further and broader consideration to its assessment of [the applicant’s] current ideology.

197    Despite these “reservations”, Mr Cornall concluded:

Taking into account the factors that are to be considered in this Independent Review (as set out in section 1.3 of the Attachment to this report), I have determined that the material supports ASIO’s factual findings and its assessment subject to the three reservations set out in Section 9.

It follows that, in my opinion, the adverse security assessment in respect of [the applicant] is an appropriate outcome.

198    Mr Cornall’s reasoning on the third matter, although this is a somewhat lengthy extract, should be set out:

The Statement of Grounds explains this assessment as follows:

On the basis of a lack of credible information to demonstrate his assessed extremist ideology has moderated over time, ASIO assess [the applicant] is likely to still hold an ideology supportive of EIJ/al-Qa’ida.

The first observation about that statement is that the EIJ is no longer a proscribed terrorist organisation in Australia and ASIO has not assessed that [the applicant] is or has been a member of al-Qa’ida (although it has identified many points of association through people he knows or has known). The second observation is that [the applicant] has denied (rightly or wrongly) ever having an extremist ideology so he faces some difficulty in demonstrating a moderation of it. [REDACTED]:

THIS SECTION OF THE REPORT HAS BEEN REDACTED IN ITS ENTIRETY

Given the importance of any demonstrated moderation of his ideology over the 27 years since 1992 or at least since 2001, the review suggests ASIO should look at other factors that could inform this assessment.

The second reason is that [the applicant] has a record of good behaviour throughout his years in immigration detention since 2012. He has largely been cooperative with ASIO and on occasions voluntarily provided information in his four security assessment interviews. More importantly, he has done nothing to give rise to security concerns as noted in the Statement of Grounds.

In March 2017, [the applicant] provided ASIO (at ASIO’s request and via HIA) with details of three personal mobile telephone services he had used while in detention in Australia. [REDACTED]

THIS SECTION OF THE REPORT HAS BEEN REDACTED IN ITS ENTIRETY

The third reason is based on the significant changes in [the applicant’s] circumstances. He has effectively spent 15 of the last 17 years in detention. He is now 48 years old, married and the father of six children (four daughters at university and two boys at school). His family is living in the separate family area at Villawood Immigration Detention Centre because they want to be close to him. These life-stage and family factors may have moderated any extremist views [the applicant] might have held years ago as a very young man and in the political and other circumstances that existed in Egypt at that time. [The applicant] expressed his current views in these terms as recorded in the Fourth Security Assessment Interview Report:

[The applicant] said he understood his case was sensitive for the Australian government but said he wanted to be ‘like a grain of rice that has disappeared into the rice’. [The applicant] further said ‘no one would know anything about me’ with the exception of ASIO, ‘who will know everything’.

[The applicant] also said:

… he would do everything in his power to ‘hide my previous identity or character’ and ‘when I say I’ll turn a new page, I’ll turn a new page … (meaning) he would be more careful in who he contacted and associated with, so as to avoid associating with people under suspicion.

For these reasons, the review recommends that ASIO give further and broader consideration to its assessment of [the applicant’s] current ideology

(Footnotes omitted; redaction markings in original.)

199    In my opinion, the 2020 ASA, as reflected in the 2020 TSOG, did not adopt this recommendation. This recommendation focused, appropriately with respect, on the core aspects of ASIO’s statutory task. While ASIO was not legally bound to adopt Mr Cornall’s recommendation, had it done so, it may have avoided the legal error I identify later in these reasons.

RESOLUTION

200    It is common ground that the ASAs have been, and remain, an impediment to the grant of a visa to the applicant. Section 36(1B) of the Migration Act provides:

A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

201    It appeared to be common ground that the applicant was unable to apply for merits review of the ASAs, pursuant to s 54 of the ASIO Act, by reason of the terms of s 36(1)(b) of the ASIO Act.

202    While it has not been easy to discern all the details of the contentions made on behalf of the applicant, the two basic categories of challenge are tolerably clear.

203    The first is that ASIO failed to comply with s 37 of the ASIO Act in its communications with Home Affairs and Home Affairs’ predecessors, straying outside its statutory functions: see 3FASOC [102]. Included in this appears to be a contention that ASIO also failed to comply with security assessment determinations (SADs) made under the ASIO Act. The applicant seeks declaratory relief, but precisely how these allegations, and this relief, are said to effect (if at all) the validity of either or both of the 2018 and 2020 ASAs was not clear.

204    The second and more varied category is that the 2018 and 2020 ASAs are invalid. The applicant alleges that this invalidity arises by denial of procedural fairness, under both the hearing rule and the bias rule. Alternatively (in relation to some arguments repeated under this contention), the applicant contends that both of the ASAs were invalid by reason of legal unreasonableness.

205    Given the variety of allegations made, the differences in levels of development of various submissions, together with the respondents’ comprehensive responses, the most accessible way to frame these reasons is to work through the allegations, outside the category in [203], one by one. In doing so, I summarise the key factual issues, the arguments and then set out my findings. I have found the categorisation in the respondents’ closing written submissions helpful in dividing up the different challenges – in oral closing submissions, senior counsel for the applicant accepted the respondents’ categorisation of the issues was accurate. I then deal separately with the contravention in [203].

Particular considerations concerning judicial review of ASIO assessments

206    Adverse security assessments, while amenable to judicial review, are notoriously difficult to review. That is because of the high content of opinion involved in the assessment, the fact that opinion is formed by officers from a specialised agency on the basis of concepts that involve qualitative assessments of fact and degree, and finally the employment of broad concepts such as “risk”. Further, some material on which the assessment is based may be unavailable to an applicant because of public interest immunity claims. This case is no different. In this proceeding, the applicant did not challenge any of the considerable redactions in the evidence adduced by the respondents, nor did he challenge the redactions in the 2018 and 2020 TSOGs.

207    The respondents filed affidavit evidence from one of ASIO’s Deputy Director-Generals of Security, Heather Cook, addressing the redactions made in the documents discovered to the applicant, and in the documents relied upon by both parties in the proceeding, such as the TSOGs. The respondents submitted that those redactions were supported by a claim of public interest immunity. Ms Cook’s affidavit deposed to her opinion about what could and could not be disclosed to the applicant (and to the Court) and why her evidence was limited to the 2018 ASA and did not cover the 2020 ASA. At trial, the respondents did not read Ms Cook’s affidavit, on the basis there were no challenges to the respondents’ claims to public interest immunity. Nor did the respondents file any further affidavit seeking to explain the redactions associated with the 2020 ASA, again on the basis, the respondents submitted, that the applicant did not challenge the claims of public interest immunity. Therefore, there was no evidence before the Court about the basis for the redactions in the material relating to (relevantly) the 2018 and 2020 ASAs, in particular the redactions in the TSOGs.

208    The somewhat distinct approaches in proceedings such as this were discussed by the Full Court in SDCV v Director-General of Security [2021] FCAFC 51; 389 ALR 372. Although that case concerned an appeal from an Administrative Appeals Tribunal merits review of an adverse security assessment, in its judgment the Full Court canvassed the distinct considerations at work under both the applicable legislative scheme and the common law to decision-making of this kind, including the policy choices made by the legislative scheme.

209    In SDCV, the Full Court (Bromwich and Abraham JJ, with whom Rares J agreed) considered what is meant by the phrase “directly or indirectly a risk to security” (at [176]-[177]):

The word “risk” is a plain enough word in ordinary parlance, especially as it is broadened by reference to “directly or indirectly”. In context, it necessarily contemplates risks that are not direct and therefore which do not readily accommodate the more limited concepts of “but for” causation reasoning implicit in the applicant’s argument. Part of the definition of “security” from the ASIO Act that is relied upon for an ASA is “the protection of, and of the people of, the Commonwealth and the several States and Territories from … politically motivated violence”. As the Director-General submits, the ultimate factual question for the Tribunal was whether the applicant was, directly or indirectly, a risk to the protection of Australia and its people from PMV, in the context of his character test for the purposes of holding a visa enabling him to remain in Australia. His capacity to be a risk does not have to be confined to what he himself might immediately or directly “cause” by his own actions.

The notion of impeding protection of Australia and its people is an important part of the risk assessment able to be carried out. Undoubtedly that encompasses any risk that the person concerned will themselves pose a direct causal risk, but it also encompasses someone who may in some way indirectly, materially increase the difficulty of protecting Australia and its people. This includes elevating an existing risk in some way, or in some way materially assisting, enabling or even encouraging or supporting someone who poses a direct risk. This may be so even if the action goes no further than support being known and where actions by others are capable of being influenced in some way. For example, an omission to condemn or dissuade may, in a given context, be just as influential as overtly supportive conduct, even if that is not the present case. That process of assessment is not one for this Court to carry out.

210    The Full Court also referred to Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505. Some passages from that earlier Full Court decision should be set out, especially because they assist in explaining the content of procedural fairness in these circumstances. The Full Court in Jaffarie (Flick and Perram JJ, with whom White J agreed) described the content of procedural fairness in this kind of situation in the following way (at [110]):

The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, “whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context”: Habib v Director-General of Security (2009) 175 FCR 411 at [77] per Black CJ, Ryan and Lander JJ.

The touchstone of present relevance is whether enough information had been disclosed to Mr Jaffarie in the “Unclassified Reasons” to enable him to make meaningful submissions. The mere fact that more information may have been made available to him during the course of the present hearing does not necessarily say anything as to whether the initial disclosure in the “Unclassified Reasons” was sufficient to afford procedural fairness.

In resolving that question a balance necessarily must be struck between protecting that information which must remain undisclosed by reason of the claim for public interest immunity and the legitimate and important rights of ensuring procedural fairness to Mr Jaffarie: cf Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314. Carr and Sundberg JJ there addressed the extent to which there should be disclosure of information which had also been held to be subject to a claim for public interest immunity privilege and concluded:

The question which the appellant wants answered by way of judicial review is whether the delegate fairly disclosed to him all that could properly be disclosed of the material which is both personal and adverse to him, consistent with the protection of the public interest in maintaining confidentiality about the source of the information. Given that the appellant is being denied access to information which would otherwise have to be put to him as a matter of procedural fairness, we do not think that he should have to shoulder the burden of establishing a prima facie case that the delegate has not disclosed fairly all that could be disclosed or that that “is on the cards”. In our view, the appellant would be placed in a nearly-impossible position by such a requirement. That position results from the public interest in protecting the source of information by the imposition of secrecy. It seems to us that a balance can be struck between preserving that public interest and ensuring that there has been procedural fairness, by the Court examining the confidential material and assessing whether the summary is a fair one. We do not see this as any reflection upon the integrity of the decision-maker.

The matter is one where there may well be room for differing opinions. Judicial review of the confidential material might be seen simply as the price payable, (on particular occasions such as this), for adjusting procedural fairness requirements downwards in the course of protecting another public interest: (1997) 78 FCR at 328.

Applied: Leghaei v Director-General of Security [2005] FCA 1576 at [88] per Madgwick J. An appeal was dismissed: Leghaei v Director-General of Security (2007) 241 ALR 141.

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

•    his involvement with people smuggling;

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

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

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

211    This was the approach taken by Wigney J in El Ossman v Minister for Immigration and Border Protection [2017] FCA 636; 248 FCR 491, which I discuss in more detail below.

212    That the approach to construing the term “security” in s 4 of the ASIO Act should not be a narrow one is also emphasised by Flick and Perram JJ in Jaffarie at [64]-[65].

213    This is not a case like Jaffarie where the conduct of this proceeding has meant the applicant has become “better informed” about the reasons why the 2018 and 2020 ASAs were made (or the 2014 ASA, for that matter); cf Jaffarie at [106]. The applicant, I find, well understands ASIO’s reasoning at least in relation to its findings about his past activities and associations, even if he does not agree with them, and even if he does not know all the factual sources from which that reasoning is said to derive. The conduct of this proceeding has not revealed any more, or thrown any different light on, why after 10 years in immigration detention, extensive close questioning of the applicant, and surveillance of his communications and contacts while in immigration detention, ASIO persists in its view that, if released into the Australian community, he would directly or indirectly be a risk to Australian security.

214    Nevertheless, the decisions of SDCV, Jaffarie and El Ossman describe how procedural fairness obligations operate in this particular context.

Precisely what is being impugned by the applicant and what is the subject of the relief sought

215    Another issue not developed by the applicant with any precision was what decision or conduct was being impugned, and whose decision or conduct it was. Since the applicant did not explore this is in any detail, nor did the respondents. However, quite properly, the respondents adduced the relevant source material about the Director-General’s decision-making process in 2018 and 2020. Having the source material in evidence means it is possible to explain, and make findings about, the relevant process under the ASIO Act and how the applicant’s challenges fit (or do not fit) into that process.

216    Beginning with s 37 itself, the function conferred by s 37(1) is conferred on “the Organisation”. The same expression is used in s 17. That term is defined in s 4 as meaning the Australian Security Intelligence Organisation. Plainly, the legislative scheme intends the Organisation to act through its officers and employees; therefore, while a “function” may be conferred on the “Organisation”, it will be performed by individual officers and employees. In some cases, the ASIO Act restricts performance of conferred functions to the Director-General or other authorised officers: see s 18(1), for example. The existence of such provisions confirms that, where no such restriction as to performance of a function is specified, the ASIO Act otherwise intends that where “the Organisation” is referred to, this should be taken to mean those officers and employees (and perhaps consultants or contactors – see s 85) as are directed or authorised to perform the particular function of the Organisation. It is apparent from the evidence in this case, and consistent with the nature of the function conferred by the legislation, that ASIO’s functions may be performed collectively by a group of officers or employees, although the requirement for a conclusion to be expressed by way of an “assessment” under s 37(1) suggests that, ultimately, a single officer must turn their mind to the question of what the security assessment should be, for the purposes of communicating it (in the present circumstances) to an officer or officers responsible under the Migration Act for the assessment of an individual’s visa application.

The makers of the 2018 and 2020 ASAs

217    The 2018 ASA is signed by Duncan Lewis, the then Director-General of ASIO. The 2020 ASA is signed by Mike Burgess, the then Director-General of ASIO. Consistently with ss 17 and 37(1) of the ASIO Act, the ASAs, and the TSOGs, are both expressed in terms of “ASIO assesses”. That form of expression is also likely to reflect, as I have observed, the collective nature of the tasks performed which have contributed to the assessment.

218    However, the evidence is clear that, at least in respect of the applicant, Mr Lewis and Mr Burgess were the officers who, respectively, made a decision to adopt the security assessment presented to them, and the statement of grounds supporting it, and then to communicate that decision and assessment to the Secretary for Home Affairs. In relation to the 2018 ASA, that assessment was relevant for the purposes of a decision about the applicant’s protection visa application. In relation to the 2020 ASA, the purpose of the assessment could not be described in that way. In oral argument, senior counsel for the respondents described both the 2018 ASA and the 2020 ASA as “reviews”, and indeed that term is used in the briefing material to the Director-General. Broadly, the 2020 ASA was said to be a review that arose by reason of an internal policy of ASIO, which was not in evidence. The description “review” may or may not be correct, but it does not matter for present purposes.

219    It is the case that in 2014, when the first ASA was conducted, the applicant was still precluded from applying for a visa, so there was no visa application to which the criterion in s 36(1B) of the Migration Act could apply. Whether or not the 2014 ASA could remain relevant to a subsequent visa application is not a matter that needs to be determined in this proceeding, since the validity of the 2014 ASA is not in issue and the protection visa refusal relied on the 2018 ASA.

The 2018 ASA

220    By a briefing note dated 23 April 2018, Mr Lewis was informed of the purpose of the briefing note:

To recommend ASIO furnish an adverse security assessment to the Department of Home Affairs (HA) in respect of [the applicant], who has applied for an Australian temporary protection visa (TPV) (subclass 785). The security assessment recommends that [the applicant’s] visa application be refused.

221    In answer to the question “Decision required?”, the briefing note stated “Yes”. The briefing note then proposed:

1.     that you note this security assessment has been cleared by

(a)     DDG Operations and Assess Group on date:

20 / April / 2018

2.     that you agree, by signing and dating the attached adverse security assessment certificate, to furnish the security assessment on the basis of the information contained in the attached statement of grounds;

3.     if you agree to 2, that you sign the attached letter to the Secretary of HA notifying him of ASIO's adverse security assessment.

(Original emphasis.)

222    Beneath this proposal the word “Approved” is circled, the words “Not Approved” are crossed through and Mr Lewis’ signature appears, with the date 23 April 2018 handwritten beneath the signature.

223    The briefing note then sets out, over some six pages, information for Mr Lewis’ consideration about the assessment process, including the 2017 ASIO interview. The briefing note sets out the basis for the adverse assessment. These parts of the briefing note closely follow the 2018 TSOG given to the applicant. In relation to the 2017 ASIO interview, Mr Lewis was informed:

We consider this interview (as well as earlier interviews conducted) provided sufficient opportunity for [the applicant] to make meaningful responses to the matters that underpin this assessment. [The applicant] was directly informed that ASIO has concerns regarding his background as a member of EIJ, his associations with members of EIJ and al-Qa’ida and his involvement in EIJ cells in Albania and the UK. ASIO’s specific concerns were put to [the applicant] at interview and he was told they were supported by a range of credible, reliable reporting (both classified and unclassified).

Certain information was not put to [the applicant] due to requirements of national security. Where possible, ASIO presented [the applicant] with unclassified, open source reporting that supported classified reporting. This allowed [the applicant] to gain an understanding of ASIO’s concerns and to respond accordingly. At the end of the interview, [the applicant] acknowledged ASIO efforts in this regard.

224    Mr Lewis was not informed by this summary about what, if anything, was put to the applicant concerning how he might pose a risk to security in Australia, in the future, if released from immigration detention on a visa.

225    Under the heading “External stakeholder positions”, the following statements appear:

HA has advised that the Minister has not formally made a decision in respect of [the applicant’s] protection status. Recent advice from HA has indicated [the applicant] will be found to be owed Australian protection, but HA is awaiting ASIO’s security assessment before referring the decision to the Minister to allow all information relevant to [the applicant’s] visa application to be presented to the [Minister] concurrently. Subject to your approval of the ASA, it’s anticipated the Minister will afford [the applicant] protection status, but refuse the TPV (subclass 785) on the basis of ASIO’s ASA.

226    The applicant’s protection visa application was not refused until 13 June 2018. It is clear from this statement in the briefing note that the refusal of the visa was already anticipated, as was the recognition that the applicant’s circumstances engaged Australia’s protection obligations. Clearly there was ongoing and close communication between the Department of Home Affairs and ASIO. Mr Lewis made his decision on the ASA being aware, I infer from the briefing note, of these circumstances.

227    Under a heading “Contentious and/or sensitive issues”, the following statement appears, amongst others:

Specific to [the applicant], ASIO is conscious that the furnishing of an ASA will have the consequence of [the applicant] remaining in immigration detention (and separated from his family) for the foreseeable future if he does not wish to, or cannot, return to his country of origin. ASIO is also conscious that this ASA will also impact on the outcome of the visa applications of [the applicant’s] family (wife and six overseas born children) with [the applicant] being the primary applicant. Notwithstanding these considerations, ASIO considers that the refusal of [the applicant’s] TPV (subclass 785) application is appropriate and proportionate to the assessed risk to security should he be granted the visa.

228    That statement is almost identical in its terms to the one made at [143] of the 2018 TSOG. As I have observed elsewhere, although there are no grounds of review directed at this issue, these statements are concerning. It is no part of ASIO’s function to decide if refusal of a visa is “appropriate and proportionate” to the risk posed by a person. Provided (I infer) that an assessment has been conducted lawfully and in accordance with the specified criteria, Parliament has determined that if an adverse assessment is provided, the Minister or their delegate must refuse a protection visa. The concern with statements such as these is that the performance of the security assessment task might have been infected by considerations of proportionality in determining whether an adverse assessment should be furnished. Nevertheless, there is no ground of review directed at this matter, so no findings need be made.

229    The briefing note also contains information for Mr Lewis about some of the matters that are raised in this judicial review in respect of the 2018 ASA: the use of material likely obtained under duress, torture or other cruel, inhuman or degrading treatment or punishment; the cancellation of the IRN; and other matters described as “Public attention” about the applicant’s case.

230    After the briefing note, there follows a letter to the Secretary to the Department of Home Affairs, then Mr Michael Pezzullo, signed by Mr Lewis and dated 23 April 2018. In its substantive parts, that letter states (with redactions of the applicant’s name):

Attached is a security assessment for the [Minister] for Home Affairs recommending that [the applicant’s] visa application be refused.

On 17 July 2014, ASJO furnished a security assessment in respect of [the applicant]. The attached security assessment (Attachment A) is being furnished following an internal review of the 17 July 2014 adverse security assessment. This internal review was undertaken as part of ASIO’s standard review processes for adverse security assessments.

ASIO understands [the applicant] has been in immigration detention since his arrival in Australia as an illegal maritime arrival in 2012[.]

Other than subsections 37(1), (3) and (4), Part IV of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) does not apply to this security assessment and consequently there is no requirement for the Department to notify [the applicant] of the making of the security assessment including provision of an unclassified statement of grounds relating to the assessment to [the applicant].

However, I note that section 57 of the Migration Act 1958 (Cth) usually requires the Minister or their delegate to put the fact that an adverse security assessment has been made to the applicant for comment before refusing the visa. At this time ASIO does not have any issue with [the applicant] being informed that an ASIO adverse security assessment has been made.

[The applicant’s] case has attracted regular media interest since his arrival in Australia in 2012. It is therefore expected that the furnishing of the adverse security assessment may also draw media interest that may be directed to your Department in the first instance.

If the Minister or your Department has any queries in relation to the security assessment process, please contact [redacted].

(Original emphasis.)

231    On the basis of this evidence, I find that Mr Lewis, in his capacity as the then Director-General of ASIO, made the 2018 ASA, and made it for the reasons set out in the 2018 TSOG. He made the ASA being aware there had been a two-day interview conducted by ASIO officers in 2017 and that the contents of that interview were material to the assessment he was being asked to accept. Selected aspects of that interview were summarised for him. There is no evidence that Mr Lewis sought out, or was provided with, any further or other information. I find that all Mr Lewis relied upon in making his decision was what is contained in this briefing note and its attachments (the 2018 ASA itself, the 2018 TSOG and the letter to Mr Pezzullo dated 23 April 2018). I find the briefing note itself relied on the contents of the 2017 ASIO interview, as well as other source material, both “open” and “classified”.

The 2020 ASA

232    In 2020, the Director-General of ASIO was Mike Burgess. It was to him that the 2020 briefing note was addressed. This briefing note was headed:

Precedence: Priority. ASIO is required to furnish this updated ASA by 29 October 2020 as directed by the Federal Court.

233    As far as the Court’s records and transcripts show, this Court did not ‘direct’ a new ASA be conducted. To the contrary, at a case management hearing, senior counsel for the respondents submitted the 2020 ASA was part of a “standard” process. The extracts from the 2020 ASIO interview that I have set out earlier in these reasons confirm that this was a process of ASIO’s own motion. Overall, this briefing note was in a more summary and shorter form, just as the 2020 TSOG is briefer, and more conclusory, than the 2018 TSOG. Under the heading “Recommendations”, there were two entries:

That you approve

a.     of ASIO furnishing the security assessment on the basis of the information contained in the attached statement of grounds, by signing and dating the attached adverse security assessment certificate

That you approve

b.     of ASIO notifying the Secretary of Home Affairs of ASIO’s adverse security assessment by signing the attached letter addressed to him.

234    In respect of each recommendation, Mr Burgess (I infer) crossed out the options “Please discuss”, “Not approved” and “Noted” and left “Approved”. There then appears a signature, which I infer is that of Mr Burgess, and a handwritten date in, I infer, Mr Burgess’ handwriting.

235    The briefing note then sets out, in a different format but with much the same kind of content, the matters that were set out in the 2018 briefing note, perhaps with some editorialising such as the following statement:

The second [2018] review identified that the same security concerns had enduring relevance due to the threat to Australia posed by AQ and similar organisations, and highlighted efforts by [the applicant] to mislead ASIO in relation to his previous activities and associates.

236    It is not necessarily accurate to describe the 2018 review (whether that means the briefing note to Mr Lewis, or the ASA itself) as “highlighting” efforts by the applicant to mislead ASIO. There was a statement of opinion that the applicant had misled ASIO, no more.

237    Under the heading “Risks and Mitigation”, after referring to the Independent Reviewer’s report, and after some redacted passages following a reference to this proceeding, the briefing note states:

The new ASA does not have regard to the information derived from the Egyptian trial, and clearly explains in an unclassified manner the importance of the classified material relied on in making the assessment. The Red Notices and the ‘Returnees from Albania’ trial evidence were not the basis of the previous ASA, and therefore had little impact on the outcome of the review.

238    It then refers to the September 2020 ASIO interview:

ASIO has provided [the applicant] with an opportunity to respond to the credible, relevant and significant matters that underpin this security assessment at a security assessment interview held on 15 September 2020 in accordance with procedural fairness requirements.

239    There is then a passage referring to “cancellation” of the applicant’s visa, which is obviously erroneous.

240    Under a heading “Sensitivities” there are some passages that in substance, although briefer, equate to the passage I have extracted at [227] above, including the proportionality reference about which I have some concerns.

241    Mr Burgess then also signs a letter to Mr Pezzullo, who remained the Secretary of the Department of Home Affairs. That letter is also briefer than the previous letters. Incorrectly, in terms of the circumstances applicable to the applicant in 2020, the first paragraph of the letter states:

Attached is a security assessment for the Minister for Home Affairs recommending that [the applicant’s] visa application be refused. Information relied upon by ASIO in making this security assessment (Attachment A) is contained in a classified statement of grounds (CSOG).

242    Of course, by this point, the applicant’s visa had been refused. That Mr Burgess put this forward as the purpose of the 2020 assessment is inexplicable.

243    With those additional observations, I make the same findings in substance about the 2020 ASA as I made about the 2018 ASA. I find that Mr Burgess in his capacity as the then Director-General of ASIO made the 2020 ASA, and made it for the reasons set out in the 2020 TSOG. He made the ASA being aware there had been an interview conducted ASIO officers in September 2020 and that the contents of that interview were material to the assessment he was being asked to accept. There is no evidence that Mr Burgess sought out, or was provided with, any further or other information. I find that all Mr Burgess relied upon in making his decision was what is contained in this briefing note and its attachments (the 2020 ASA itself, the 2020 TSOG and the letter to Mr Pezzullo). I find the briefing note itself relied on the contents of the 2020 ASIO interview, as well as other source material, both “open” and “classified”.

Conclusion

244    Therefore, for any of the applicant’s challenges in this judicial review application to succeed, and to result in the grant of relief, they must be capable of impugning, or affecting the validity of, the decision made by Mr Lewis in 2018 and the decision made by Mr Burgess in 2020.

The allegations based on s 37 of the ASIO Act

245    Section 37 of the ASIO Act provides:

37    Security assessments

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

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

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

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

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

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

(5)    No proceedings, other than an application to the Tribunal under section 54, shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act.

246    In closing submissions, the applicant focused more on s 17 of the ASIO Act, which provides:

17     Functions of Organisation

(1)    The functions of the Organisation are:

(a)    to obtain, correlate and evaluate intelligence relevant to security;

(b)    for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;

(c)    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[;]

(ca)    to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b);

(d)    to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director‑General, determines on matters relating to protective security; and

(e)    to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979; and

(f)    to co‑operate with and assist bodies referred to in section 19A in accordance with that section.

(2)    It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth.

247    The adverse security assessments challenged by the applicant were made pursuant to ASIO’s function in s 17(1)(c), read with s 37(1).

248    The applicant contends that, read together, these provisions confer specific functions on ASIO, and that ASIO went beyond these functions in relation to its assessment of the applicant. He contends ASIO officers engaged in conduct such as:

(a)    amending questions for the delegate to ask during the applicant’s protection visa interview;

(b)    assisting the Department to draft correspondence to the AHRC;

(c)    providing various advice to the Department; and

(d)    “dictating” correspondence for the Department to send to the applicant.

249    The text of the actual assessment section in the ASA in each of 2018 and 2020 is contended to substantiate these allegations. That is because the 2018 ASA states as a recommendation (with almost identical wording in the 2020 ASA) that:

it would not be consistent with the requirements of security for [the applicant] to be granted an Australian temporary protection visa (subclass 785).

250    The applicant contends the recommendation was not part of ASIO’s function.

251    The applicant’s written closing submissions also relied on a lengthy series of emails said to substantiate these contentions. The applicant contended that the email exchanges were examples of ASIO acting beyond s 37(1) of the ASIO Act by advising Minister and authorities “in an exercise in public relations”.

252    The applicant developed no real submissions as to how this conduct could lead to the invalidity of either of the two assessment decisions by Mr Lewis and Mr Burgess. However, the applicant appeared to submit that since the statute authorised only certain functions, conduct found to fall outside these would be without statutory authority and therefore the performance of the function as a whole would be unlawful.

253    Alternatively, it also appeared to be the applicant’s contention that the attitude displayed by ASIO in this correspondence, and its conduct revealed by this evidence, meant that there was a reasonable apprehension that its officers were not bringing an open mind to their task in conducting each of the security assessments. In relation to this alternative contention, in oral submissions senior counsel for the applicant said:

MR FINNANE: Well, the Director-General’s directions to people in number 2 and number 3, which we will come to, in conducting interviews indicates that they must act impartially, fairly and accord procedural fairness to anybody who is being interviewed. But if the people who are conducting the interviews are part of a chain with departmental representatives it’s easy – or, in my submission, it can be seen that they might not be acting impartially. It could be seen that in involving themselves in correspondence with Ministers and departmental officials they are acting in a partial way; they’re acting in a way that helps the department.

But their function is to be impartial in assessing the applicant. And how could they be impartial if they’re there to help the department.

…

Well, if ASIO is intermingling its duty to conduct assessments with giving general advice to the department about particular people who are, in fact, the subject of adverse assessments, how is it that they’re complying with this duty to act without bias? I mean, they might be – they might think they’re doing the right thing. The department might be very pleased that they’re helping. But they should be approaching the task of interviewing relying on their security information and not relying on, in any way, departmental convenience or departmental needs.

254    There was a separate allegation, in various parts of the 3FASOC, that ASIO officers had not complied with SADs made pursuant to s 37(4) of the ASIO Act. The extract of senior counsel’s submission above also makes this point. The applicant sought a declaration that ASIO failed to comply with s 37 of the ASIO Act. As the respondents submit, this non-compliance appeared to be contended to affect the validity of the 2018 and 2020 ASAs themselves, but also to constitute some kind of freestanding unlawful conduct, sufficient to justify declaratory relief.

Alleged non-compliance with s 37 of the ASIO Act

255    The respondents submit that ASIO’s relevant functions, as set out in s 17 of the ASIO Act, contrary to the applicant’s submissions are on their face broad, and that Courts have “repeatedly rejected attempts by applicants to construe … s 17 narrowly”: citing Church of Scientology Inc v Woodward [1982] HCA 31; 152 CLR 25 at 77 (Brennan J); R (Commonwealth) v Baladjam (No 24) [2008] NSWSC 1447 at [27]-[28] (Whealy J); Jaffarie at [116] (Flick and Perram JJ); MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134 at [47] (Rares J).

256    Similarly, the respondents submit that the use of the word “include” in framing the relevant sub-sections of s 37 makes clear that s 37 does not provide a limit to the nature or performance of ASIO’s functions set out in s 17. The respondents also refer to the terms of s 17, which expressly provide that ASIO’s functions include advising Ministers and authorities of the Commonwealth on matters relating to security.

257    As to the emails to which the applicant referred in support of his allegation that ASIO had overstepped the bounds of its statutory function, the respondents submit that none of those emails are communications with ASIO. The respondents submit that these emails fell into five categories, each of which was an appropriate exercise of ASIO’s functions, or was irrelevant to the ASAs. Senior counsel for the applicant did not suggest this categorisation was mistaken or inaccurate and I accept it.

258    The respondents deal with these five categories of emails at [24]-[46] of their written closing submissions. Largely adopting the respondents’ descriptions, the five categories are:

(a)    emails from October to December 2015 between personnel of the Department of Immigration, concerning a draft set of questions for the applicant’s forthcoming protection visa interview;

(b)    emails from January to April 2016 concerning the preparation of a response by the Australian government to a report by the Working Group on Arbitrary Detention (which is a part of the Office of the UN High Commissioner for Human Rights);

(c)    emails from March to May 2017 between Department personnel concerning an opportunity that ASIO afforded to the applicant to make submissions in the context of ASIO’s review of his ASA;

(d)    what the respondents describe as an “extensive set” of emails from March to October 2018 arising from an inquiry that the AHRC had made concerning the applicant by letter dated 3 March 2018; and

(e)    two emails from December 2018, which discuss the government’s response to a recommendation by the Commonwealth Ombudsman in relation to the applicant.

My conclusion

259    The respondents’ submissions do not deny, at any stage, that officers from ASIO were involved in the communications identified by the applicant, save for the first category of communications identified by the respondents, which the respondents submit appear to contain only email addresses from within Home Affairs and do not prove any direct communications with ASIO. That may be so but it seems to me from the nature of these emails, that it is likely some officer or officers within ASIO were consulted by some officer or officers within Home Affairs. By this stage, the 2014 ASA had been completed, and all officers involved in the applicant’s case between the various agencies and departments were, I find, likely to have been aware of the 2014 ASA and the potential implications of it for any protection visa the applicant was permitted to lodge. It would be contrary to good administrative practice if ASIO were not consulted at some stage before the protection visa interview. The detailed consideration by the delegate in the protection visa refusal reasons of the applicant’s historic activities in Egypt, Saudi Arabia, the UK and Iran make it clear that there was likely to have been some exchange of information and some communications between Home Affairs and ASIO. The extracts from the 2018 briefing note to Mr Lewis also confirm substantive direct communication between Home Affairs and ASIO about not only the progress of the applicant’s protection visa application, but its likely outcome.

260    Therefore, I find that in relation to all of the emails relied upon by the applicant, what the evidence demonstrates is repeated and regular interactions, consultations and communications between ASIO officers and a variety of officers in other federal departments and agencies, including the AFP, the Department of Home Affairs, the Attorney-General’s Department and the Department of Immigration (under its various nomenclatures from time to time).

261    I accept the respondents’ submissions that the nature and extent of such communications do not establish that ASIO, or officers within ASIO, exceeded their statutory functions, and thus acted without statutory authority. The first point to be made in this context is that such engagement is expressly contemplated by s 19 of the ASIO Act, which provides:

19     Co‑operation with other authorities in connection with performance of Organisation’s functions

(1)    So far as necessary for, or conducive to, the performance of the Organisation’s functions, the Organisation may, subject to any arrangements made or directions given by the Minister, co‑operate with:

(a)    authorities of the Commonwealth; and

(b)    Departments, Police Forces and authorities of the States; and

(c)    authorities of other countries approved by the Minister as being capable of assisting the Organisation in the performance of its functions; and

(d)    any other person or body whether within or outside Australia.

(2)    A person referred to in subsection 18(1) may, where the Organisation is co‑operating with an authority of another country in accordance with paragraph (1)(c), communicate to an officer of that authority information that has come into the possession of the Organisation in the course of performing its functions under section 17, being information that is relevant to the security of that other country and that could not, apart from this subsection, be communicated to that officer.

Note:    There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979, on communicating telecommunications information.

262    As the respondents submit, the authorities establish that it is inappropriate to take a narrow view of the functions in s 17 of the ASIO Act: see the citations at [255] above. While one particular function of ASIO is in central focus in this proceeding – namely, the function performed under s 37(1) – that focus does not deny the plain fact the applicant’s circumstances over the last nine years have necessarily engaged the statutory and executive functions of several federal agencies and departments. Further, the evidence demonstrates there have been a considerable number of inquiries and investigations external to the federal executive, including internal ones as such the investigation by the UN Working Group on arbitrary detention, which found the applicant’s detention was arbitrary (a finding with which the Commonwealth did not agree). It is unsurprising, and part of the ordinary administration of the federal bureaucracy and the functioning of federal agencies, that there should be substantial interaction and communication between them in such circumstances.

263    While there are the occasional communications, being those senior counsel for the applicant sought to highlight, where an officer makes a remark along the lines of whether a particular matter, or a letter as drafted, might be “embarrassing” to a senior administrator, those kinds of remarks in long running communications between departments and agencies are to be expected. Both briefing notes to Mr Lewis and Mr Burgess readily acknowledge the applicant’s case as attracting media attention, and the applicant himself as having been involved in public commentary about his circumstances. There is nothing sinister or impermissible about the communications in the context in which they appear in the evidence in this proceeding. Further, many of the emails, and some of the attachments to emails, demonstrate a concern on behalf of individual officers that the position of their particular agency or department be accurately represented in a particular communication. That is an appropriate and reasonable function for federal officers to perform, and insofar as it is alleged that the performance of any such function is outside the terms of s 17 of the ASIO Act, read with s 37 and read in the context of the ASIO Act as a whole, that allegation must be rejected.

264    The applicant’s grounds about ASIO officers acting outside their authority must be rejected.

Non-compliance with the Security Assessment Determinations

265    Once again, the applicant’s legal submissions on the status and effect of SADs were undeveloped beyond an assertion that non-compliance with such an instrument rendered the ASAs invalid. Once again, the burden fell on counsel for the respondents to assist the Court in understanding the issues surrounding the correct characterisation of these instruments. As I discuss further below, the position of the respondents is that such determinations are non-binding, and therefore non-compliance with them cannot and does not invalidate a security assessment made under s 37(1) of the Act. The respondents rely on the decision of Wigney J in El Ossman to support their contention.

266    I have set out the terms of s 37(4) above. It is clear that the legislative scheme provides for the making of a determination under sub-s (4) as defined in the legislative scheme as an alternative to the making of regulations pursuant to s 37(3). Such regulations are expressed in sub-s (3) as being “binding on the Organisation and on the Tribunal”. The “Organisation” is defined in s 4 to mean ASIO, but it is clear that the scheme intends the regulations to be binding on individual officers, as the organisation can only act through its officers.

267    Section 20 of the ASIO Act should also be noted. It provides:

20.     Special responsibility of Director‑General in relation to functions of Organisation

The Director‑General shall take all reasonable steps to ensure that:

(a)    the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions; and

(b)    the Organisation is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

268    Other relevant provisions in the ASIO Act include s 8, which provides:

8    Control of Organisation

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

(2)    Subject to subsections (4) and (5), in the performance of the Director‑General’s functions under this Act, the Director‑General is subject to the directions of the Minister.

(3)    If the Director‑General requests that a direction of the Minister be put in writing, the Minister shall comply with the request.

(4)    The Minister is not empowered to override the opinion of the Director‑General concerning the nature of the advice that should be given by the Organisation.

(5)    The Minister is not empowered to override the opinion of the Director‑General:

(a)    on the question whether the collection of intelligence by the Organisation concerning a particular individual would, or would not, be justified by reason of its relevance to security; or

(b)    on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security;

except by a direction contained in an instrument in writing that sets out the Minister’s reasons for overriding the opinion of the Director‑General.

(6)    The Minister shall, as soon as practicable after giving a direction in writing to the Director‑General, cause a copy of the direction to be given to the Inspector‑General of Intelligence and Security and, if the direction relates to a question referred to in subsection (5), to the Prime Minister.

(7)    Where intelligence is collected or communicated pursuant to a direction referred to in subsection (5), the Director‑General shall cause a record in writing to be kept of the intelligence so collected or communicated.

269    There is also a power conferred on the responsible Minister to issue guidelines to ASIO. Section 8A provides:

8A    Guidelines

(1)    The Minister may, from time to time, by written notice given to the Director‑General, give to the Director‑General guidelines to be observed:

(a)    in the performance by the Organisation of its functions or the exercise of its powers; or

(b)    in the exercise by the Director‑General of his or her powers under sections 84, 85, 86 and 87.

(1A)    Before making guidelines under subsection (1), the Minister must consult with the Attorney‑General.

(2)    The Minister shall, as soon as practicable after the commencement of this section, by notice in writing given to the Director‑General, give to the Director‑General guidelines to be observed in relation to the performance of that part of the Organisation’s functions that relates to politically motivated violence, and may, from time to time, vary or replace guidelines so given.

(2A)    Before varying or replacing guidelines given under subsection (2), the Minister must consult with the Attorney‑General.

(3)    Subject to subsection (4), the Minister shall cause a copy of any guidelines given under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the guidelines were given.

(4)    Where the laying of a copy of guidelines before the Parliament in accordance with subsection (3) would result in the disclosure of information that would, in the opinion of the Minister, be contrary to the public interest by reason that it would prejudice security, the defence of the Commonwealth, the conduct of the Commonwealth’s international affairs or the privacy of individuals, the Minister may cause a copy of the guidelines to be laid before each House of the Parliament with such deletions as the Minister thinks necessary to avoid that result or decline to cause a copy to be laid before each House of the Parliament.

(5)    The Minister shall, in accordance with arrangements made between the Minister and the Leader of the Opposition in the House of Representatives, make available to the Leader of the Opposition a copy of any guidelines given under subsection (1) or (2), but it is the duty of the Leader of the Opposition to treat as secret any part of those guidelines that has not been laid before a House of the Parliament.

(6)    The Minister shall, as soon as practicable after guidelines under subsection (1) or (2) are given to the Director‑General, give a copy of the guidelines to the Inspector‑General of Intelligence and Security and, unless the Minister considers it inappropriate to do so, to the Committee on Intelligence and Security.

270    Despite the Minister’s guidelines power, it was common ground that the two SADs, being security assessment determination no 2 (SAD2) and security assessment determination no 3 (SAD3), were made pursuant to s 37(4) of the ASIO Act. I will take SAD3 as the example when discussing the features of the determination. Where necessary in reasoning elsewhere I refer to the differences between the two determinations. However, the differences do not affect my conclusion on this issue about the binding effect, or otherwise, of the two determinations. The parties did not suggest any differences between them affected the overall characterisation.

271    In its Preamble, at [2], SAD3 states:

This Security Assessment Determination No.3 (Determination No.3) provides guidance to the decision maker in the making of security assessments under Part IV of the Australian Security Intelligence Organisation Act 1979 (the Act).

272    Clause [9.1] provides:

Determination No.3 is to be applied when a security assessment is being undertaken pursuant to Part IV of the Act and the decision maker considers that the assessment process is likely to result in an adverse or a qualified security assessment, as defined in section 35 of the Act.

(Original emphasis.)

273    By the word “likely”, this clause contemplates that ASIO officers should form some preliminary views about the outcome of the security assessment. It then uses language that could be read as suggesting officers are required to apply the guidance of SAD3, if their preliminary view is that the outcome of a security assessment may be adverse or qualified.

274    There then appears a heading “Operative part”, which again might suggest this part is intended to have some kind of compulsive effect. However, it could also be understood to mean that what follows is operative guidance to ASIO officers. The statement in [9.1] is repeated in the “Operative part” at cl 3:

THIS Determination is to be applied when a security assessment is being undertaken pursuant to Part IV of the Act and the decision maker considers that the assessment process is likely to result in an adverse or a qualified security assessment. To avoid doubt, this means that where the decision maker believes that the assessment process is likely to result in a non-prejudicial security assessment, the decision maker is not bound to apply this Determination.

(Original emphasis.)

275    Neither party made any submissions about this clause. Attempting to reconcile what I have said about the inherent conditions attaching to the performance of the task, one way to understand this clause, and the direction contained in it, is that the determination is intended to have some compulsive or binding effect. That is, where ASIO officers consider they are likely to reach a conclusion adverse to a person, they are required, and the determination intends they be required, to perform their task in the way the determination prescribes. It is otherwise difficult to explain the use of the word “bound” in this clause.

276    Language suggesting prescription is also used in cl 4 of the “Operative part”:

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

1.1     the matters to be taken into account are those referred to in clause 6;

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

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

(Original emphasis.)

277    This language, using the imperative (“are to be”; “must”; and “is to determine”), is repeated in each of these sections. Occasionally permissive language is used: for example, in cll 7, 8 and 10 – “relevant considerations which may include”, “matters that may be taken into account”, “regard should be had”. There are aspects of the language of the determination which are expressed as instructions, for example the note under cl 8.4:

(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).

278    The language of instruction is also used in cl 13:

INFORMATION concerning an assessment subject shall not be taken into account in the formulation of a qualified or adverse security assessment, unless that information:

13.1     is capable of satisfying the tests referred to in clauses 6 and 7;

13.2     is relevant to the requirements of security; and

13.3     has a reasonable nexus with, and is relevant to, the assessment subject.

(Original emphasis.)

279    Thus, uninstructed by authority, there are numerous textual indications in the language of the determination, read with the imperative language in ss 37(3) and 37(4) of the ASIO Act, which could justify a conclusion that s 37(4) determinations are intended by Parliament to have a binding effect on ASIO officers. Alternatively, that the determination purports to be binding, when there is no statutory authority for it to be so, might affect the validity of the determination as exceeding the statutory authority under which it was made.

280    However, El Ossman was said by the respondents to be directly on point, and against any proposition that the Act intends determinations to have binding effect. In El Ossman, non-compliance with an ASIO determination was contended to be a “back up” argument to the applicant’s principal argument concerning a denial of procedural fairness.

281    The respondents submitted the Court should follow El Ossman unless persuaded the reasoning was plainly wrong. As to “plainly wrong” in this context, see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [13] (Allsop CJ, citing French J at [75]-[76] in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757; 146 FCR 427) and [21] (citing Lord Goddard at 848 in Huddersfield Police Authority v Watson [1947] KB 842).

282    The key features of the Court’s reasoning in El Ossman are:

(a)    there was a contrast in text between s 37(3) and s 37(4), the former held to indicate in its text that the regulations are intended to be binding on ASIO officers (at [147]-[148]);

(b)    this factor led the Court to describe the determination as “essentially policy guidance” (at [148]);

(c)    the rejection of an argument that the ordinary meaning of “determine” is to lay down decisively or authoritatively, and a rejection of the contention that the requirement to consult with the responsible Minister suggested the determination was intended to be binding (at [149]); and

(d)    therefore, the Court rejected the contention that “any determination made by the Director-General conditions the valid exercise of power to issue a security assessment” (at [149]-[150]).

283    It would appear that, unlike the current proceeding, the Court in El Ossman was not referred to any authorities about the role of formal policy instructions, and failures to follow them, or failures to properly understand them, whether those policies are made in an exercise of executive power or pursuant to statute.

284    Key amongst these authorities are the Full Court decision in Minister for Immigration, Local Government & Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189, Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22; 156 FCR 559, and Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279. There is also my own decision in G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511, and the authorities to which I refer in that decision at [140]-[205], as well as the description of applicable principles at [200]-[205]. There is no challenge in the present proceeding to the lawfulness of the determinations, even if they are properly understood to be statements of policy; cf G at [206]-[216].

285    In argument in this proceeding, senior counsel for the applicant did not refer to any of these authorities. He did not attempt to undertake the task of persuading the Court that the decision in El Ossman is plainly wrong and should not be followed. There was nothing in any of the written submissions filed on behalf of the applicant about this issue. In closing oral submissions, after prompting from the Court, all that was submitted was that El Ossman was distinguishable and did not compel any particular result. Reference was made to the passage at [101] in El Ossman, which deals with the appropriate approach to assessing whether here has been a denial of procedural fairness. Of course, this is a separate and distinct aspect of El Ossman from the issue about the s 37(4) determinations.

286    The question of the effect of non-compliance with a determination made under s 37(4), or for that matter, the effect of a misunderstanding of a determination by the Director-General (or, given the way ASAs are prepared, attributable to the Director-General) are large questions. The question whether the Court should decline to follow the approach in El Ossman is also a significant question. Where no positive submissions about why El Ossman should not be followed were made, it is not appropriate for the Court to embark on such a substantial consideration unless it is strictly necessary in order to resolve the challenges to the 2018 and 2020 ASAs. The risk is that the Court might in substance be drawn into developing and constructing arguments to meet those put on behalf of the respondents, and this is not the Court’s function in an adversarial proceeding. The burden of persuasion about the correctness of El Ossman lay with the applicant. There was no attempt to discharge it. The appropriate course is for the Court to find there is no basis, in the way the argument was presented in this proceeding, to conclude that the reasoning is El Ossman is so obviously untenable or incorrect that another single judge should decline to follow it. That is not to say that a full consideration of all the applicable authorities, with properly developed arguments on both sides, might not result in a conclusion different to that in El Ossman. However, it is not appropriate to embark on that task in the present situation. The proper course is to find that the applicant has not persuaded the Court that El Ossman is wrongly decided.

287    There are further reasons I consider this course is appropriate. First, resolution of the challenges to the ASAs does not in my opinion depend on any finding that SAD2 and SAD3 were binding on the Director-General, or on those officers whose recommendations he adopted. Rather, the departures from the policy guidance provided in imperative terms in the determinations support the conclusions I have reached later in these reasons about a denial of procedural fairness to the applicant. One function of the determinations, on their face, is to ensure that in cases where an adverse outcome is likely, particular processes are followed carefully, certain materials are dealt with in particular ways and the fairest process possible in the circumstances is given to a person affected. That policy guidance supports the proposition that a process departing from those norms is not a fair process for the purposes of an assessment under s 37(1).

288    Second, a failure or failures to comply with a policy may indicate a different kind of error. In MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285 at [22] the Full Court said:

In Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Jabbour) Robertson J explained that where a decision-maker is not bound to apply a policy, but purports to apply it as a proper basis for disposing of a case and misapplies it, this may be an example of [“]an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”: Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162.

289    Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 was recently endorsed as correct by a five member bench of this Court: see Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213. In my opinion, misapplication can readily be understood to include non-compliance. Non-compliance is an outcome that may result from a number of sources, not simply a decision to disregard a policy. Non-compliance may well result from overlooking or misunderstanding a policy.

290    These two reasons have led me to consider below the relevance of SAD2 and SAD3 to the other contentions put on behalf of the applicant.

291    However, the applicant’s contention that non-compliance with SAD2 and SAD3 of itself leads to legal error is rejected, on the basis that El Ossman is against this contention and has not been established to be plainly wrong.

The procedural fairness challenges

292    It was the 2018 ASA that triggered the operation of s 36(1B) of the Migration Act. However, any challenge to the 2018 ASA, even if successful, would face a likely successful utility argument on behalf of the respondents, given the existence of the 2020 ASA. Senior counsel for the applicant essentially accepted this to be the case, hence the challenge to both ASAs. Therefore, I consider the procedural fairness challenges made to both ASAs in this section of my reasons.

Unreasonable withholding of documents from the applicant and his legal representatives (3FASOC [103]-[106])

293    The applicant contends that ASIO unreasonably withheld documents from the applicant. The documents subject to this allegation fall into two categories: documents that the applicant has subsequently obtained through a request under the Freedom of Information Act 1982 (Cth), and other documents “held by ASIO and relied on … for their decision”, which the applicant obtained on discovery.

294    In his closing submissions, senior counsel for the applicant emphasised, by reference to extracts from the interview transcript, that the applicant had repeatedly sought access to these documents during the interview process. Each of these extracts is taken from the applicant’s fifth ASIO interview, which occurred on 15 September 2020. In his closing written submissions, the applicant contended:

ASIO did not reveal to the Applicant at any time the “broad pool of intelligence, obtained from a range of resources available to ASIO” and thus deprived him of the opportunity of presenting a case to them that he was not a security concern. Given it was disclosed shortly prior to the commencement of this hearing that ASIO (in error) withheld documents publicly available on the internet, there can be no confidence in ASIO that documents withheld from the Applicant are not classified.

295    The applicant submits that withholding these documents amounted to a denial of procedural fairness. He relies on HT v The Queen [2019] HCA 40; 269 CLR 403, a decision also relied on by the applicant in SDCV. The applicant submits that the High Court found in that case that where material relevant to the question of the applicant’s sentence was withheld from the applicant on the basis of a public interest immunity, and that material could have been challenged or used to make submissions, the applicant had been denied procedural fairness.

296    There appears to be a further aspect to this withholding allegation. In correspondence concerning particulars of some of the allegations made, this question from the respondents’ solicitors and answer provided by the applicant’s solicitor indicated the allegations were wider (with my emphasis):

[Respondents’ question:] Please confirm that the ‘information’ which is the subject of para 106 is limited to the contents of the documents particularised at para 106 and, if the “information” is not so limited, please identify any other additional information which the applicant alleges should have been disclosed to the applicant as a matter of procedural fairness in undertaking the assessment for the 2020 ASA.

[Applicant’s answer:] The documents are not limited to the contents of documents particularised at para 106. Further information that should have been disclosed to the Applicant includes all documents ASIO relied upon in forming their views that the Applicant is being untruthful and all documents to support ASIO’s allegations against the Applicant for an opportunity to respond.

297    The respondents contended that there is no substance to the allegation that ASIO unreasonably withheld FOI documents and other unspecified documents from the applicant. They contended HT, as a criminal case, was distinguishable and did not assist the applicant’s contentions in this proceeding.

298    In relation to the documents the applicant had obtained from FOI or discovery processes, the respondents submit the applicant has failed to identify, in his submissions or anywhere else:

the particular documents on which his complaint is based; the comments that he would have made, but was denied the opportunity to make; or how any of those comments could be material to the ASAs.

299    As to the FOI documents, the applicant was said to have made eight (or rather, as identified in the respondents’ closing submissions, nine) FOI requests, and with the exception of the final FOI request, each of these had been resolved before the interviews relating to the 2018 and 2020 ASAs, and before the making of the ASAs themselves. The final FOI request did not relate to documents relevant to the ASAs, but to matters concerning the conditions of the detention of the applicant and his family. The respondents submit that, therefore, the applicant did have an opportunity to comment on the documents produced pursuant to the FOI requests.

300    As to discovered documents in this proceeding, the respondents submitted that the applicant received the discovery documents more than 10 months prior to the 2020 security assessment interview, and therefore was provided sufficient opportunity to comment on these documents as part of the 2020 interview process.

301    The respondents reject the contention that procedural fairness requires that the applicant should have been provided with further material, being unspecified material relied on by ASIO in the making of the ASAs. The respondents submit that ASIO is not obliged to disclose all documents on which it relies in making a security assessment, where disclosure of those documents would be prejudicial to the interests of security, as is the case here. The respondents note that the applicant has never objected to the public interest immunity claims made in this proceeding.

302    In reply to the applicant’s setting out of his repeated requests to be shown the information during interviews with ASIO, the respondents submit that:

The repetition of these requests also does not change the fact that the applicant is not permitted to see such material and affording him procedural fairness does not require that he be granted access to it.

My conclusion

303    At a factual level, it can readily be accepted that, in particular during the 2020 ASIO interview, the applicant repeatedly asked to be shown “proof”, or “evidence”, to confirm or corroborate the positions the ASIO officers were putting to him. Two examples of the exchanges suffice to convey the kinds of requests made by the applicant, and the responses he received from the ASIO officers. The applicant’s name, and the names of the individuals referred to in the questions and answers, have been redacted.

304    The first is:

INTERVIEWER A: Okay. We put to you that we have classified reporting about [RIHS] from the time when you worked there that says that [RIHS] Albania provided financial and material support to al-Qaeda and EIJ. And that is separate to the court documents and also open source.

INTERPRETER: (Foreign language spoken)

[The applicant]: (Foreign language spoken)

INTERPRETER: Give me an evidence, with details - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: Okay. Give me a proof, okay, who are the – give me the proof that the [RIHS] was supporting al-Qaeda or the Jihad. Who are the members? How are they supporting? How are they financing it? Give me an evidence.

INTERVIEWER A: As I said at the start of the interview, we don’t – we can’t put the classified information in front of you.

INTERPRETER: (Foreign language spoken) Okay.

[The applicant]: (Foreign language spoken)

INTERPRETER: Present to me classified information?

INTERVIEWER A: We can’t do that because we have to protect it.

INTERPRETER: (Foreign language spoken)

[The applicant]: (Foreign language spoken)

INTERPRETER: Give me the names of the people involved, or from the al-Qaeda or the Islamic group, okay, that I was involved with.

305    The second is:

INTERVIEWER A: Okay. Have you ever been to Iraq or Yemen?

INTERPRETER: (Foreign language spoken)

[The applicant]: (Foreign language spoken)

INTERPRETER: No, I haven’t gone to Iraq nor to Yemen.

[The applicant]: (Foreign language spoken)

INTERPRETER: Yes.

[The applicant]: (Foreign language spoken)

INTERPRETER: In the fourth interview, they showed me my passport, my Egyptian passport, and it has a stamp of Yemen.

[The applicant]: (Foreign language spoken)

INTERPRETER: I have no idea about this stamp.

[The applicant]: (Foreign language spoken)

INTERPRETER: And I don’t know how it was stamped on my passport.

[The applicant]: (Foreign language spoken)

INTERPRETER: I asked ASIO to give me a whole copy of my passport because I have part of it.

[The applicant]: (Foreign language spoken)

INTERPRETER: And they refused to give me a copy of it.

INTERVIEWER A: Okay.

[The applicant]: (Foreign language spoken)

INTERPRETER: If I went to Yemen, Iraq or any other place - - -

[The applicant]: (Foreign language spoken)

INTERPRETER: - - - I wouldn’t hesitate or withhold to say any of this information.

[The applicant]: (Foreign language spoken)

INTERPRETER: I mentioned Iran, and Iran is more serious and more dangerous than Iraq or Yemen.

[The applicant]: (Foreign language spoken)

INTERVIEWER A: Okay, thank you.

306    To illustrate the difficulty in the applicant’s approach, it is worthwhile assessing how this kind of exchange could, or could not, support a claim of denial of procedural fairness because of no access to certain documents. In the 2020 TSOG at [28]-[30] ASIO did find the applicant had been to Yemen, and this was part of the factual matrix on which ASIO based a number of adverse findings against the applicant. However, in argument in this proceeding, what was not developed on behalf of the applicant was how the refusal to show the applicant the whole of his Egyptian passport denied him a fair opportunity to deal with what ASIO was putting to him about him having been to Yemen and deliberately concealing that fact.

307    Indeed, in this transcript passage the applicant states that at the fourth interview, ASIO showed him what appears to have been a page of his Egyptian passport with a stamp for Yemen. If it was proven that ASIO had refused to give the applicant a copy of his entire Egyptian passport (which it was not), if it had been proven (which it was not) that there was no proper basis for that refusal because the applicant’s own passport could hardly be seen as “classified information”, and if the relevance of the applicant being able to see the whole passport to his being able fairly to deal with this Yemen allegation was developed (which it was not), it is conceivable given the clear finding about this matter in the 2020 TSOG that a procedural fairness contention might have been arguable. However, the necessary underpinnings for it are absent. This is a direct consequence of the much more generalised approach taken to these arguments on behalf of the applicant, with no appropriate distinctions being made about the kind of documents said to have been withheld.

308    The applicant has not proven that ASIO impermissibly or improperly withheld documents or information from him during the 2020 interview process (or otherwise) so that he did not have enough information to give meaningful answers during the interview, or make meaningful submissions to ASIO. Of course, the classified nature of a proportion of the information relied on by ASIO put the applicant at a significant practical and substantive disadvantage. But no attempt has been made in this proceeding to impugn or challenge ASIO’s characterisation of any particular information or documents as classified and therefore unable to be disclosed. Nor has an attempt been made to connect the failure to provide a particular document, or particular information in a document, to ASIO’s reasoning and decision-making process in the 2020 ASA. The example about Yemen illustrates this. As I have explained above, that is not to say such a challenge could not have been made. But it has not been.

309    The further and wider allegation outlined at [296] above was not developed at all in submissions, and no particular findings by ASIO, or propositions put by ASIO on the basis of such undisclosed documents, were identified. Even if it had been, taking into account the absence of any challenge to the claims for public interest immunity and the authorities to which I have referred, if this forms part of the contentions under this allegation, it must be rejected.

310    I accept the respondents’ submission that the decision in HT is distinguishable. HT concerned the non-disclosure to the parties during the sentencing process of a document which had been provided to the sentencing judge and which concerned the level of assistance given to the authorities by a police informer. The document also contained evidence relating to the appellant’s assistance given to authorities, and the evaluation by police of the assistance given. The failure to provide the document to the offender who was being sentenced, or his lawyers, was said to be justified by an application of the concept of public interest immunity. The High Court rejected that justification, and considered there were methods that could have been adopted to disclose at least the substance of the document: see [29], [45]-[46].

311    However, one matter that was emphasised in HT, and which was picked up by the Full Court in SDCV and by Wigney J in El Ossman, is the approach to the content of procedural fairness in any particular situation being informed by the concept of “practical injustice”, a term that has its origins in the reasons of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. In Lam, at [37]-[38] Gleeson CJ said:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.

(Footnotes omitted.)

312    In HT, the plurality said at [18]:

Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.

313    No submissions were made on behalf of the applicant developing how this concept was to be applied to the withholding allegations. The “practical injustice” to the applicant was not identified before the broad allegation that the applicant was unable to see all of the material on which ASIO relied. In the context of the functions under ss 17 and 37(1), and in accordance with the authorities to which I have referred, a more specific argument was required.

314    All of the examples given on behalf of the applicant under these withholding allegations were either not sufficiently proven or developed (eg the Egyptian passport allegation) or were completely answered by the nature of the classified information relied upon by ASIO without challenge by the applicant. This ground must be rejected.

Continued reliance on the IRN and the court records from the Returnees from Albania trial (3FASOC [108]-[110])

315    Despite what is said in the 2020 TSOG, the applicant pressed a submission that Mr Cornall’s recommendations were not in fact adhered to by ASIO in the 2020 TSOG. The applicant submitted:

there is a large amount of secret material being used in the 2020 TSOG (see footnote table) and the secret documents are considered information derived from torture, given the open source materials do not disclose they are the documents containing the information and intelligence derived from the Albania trial, intelligence from the Egyptian Government, communications between DFAT and the Egyptian Government, communications between AFP and Egyptian Government, communications between Home Affairs and the Egyptian Government and so on.

316    The applicant also relied on [58] of the 2020 TSOG (with my emphasis added in relation to the part I apprehend the applicant emphasises):

In forming the 2014 and 2018 ASAs, ASIO applied some weight to evidence against [the applicant] from an Egyptian military court trial (known as the ‘Returnees from Albania Trial’), where he was convicted and sentenced in absentia in April 1999 to fifteen years hard labour. Interpol issued a Red Notice (IRN) against [the applicant] as a result of this conviction, which was withdrawn in February 2018 due to evidence of torture being used by the Egyptian authorities to obtain evidence against [the applicant] and others. Despite the torture allegations, ASIO applied some weight to the Returnees from Albania trial evidence as part of the overall intelligence case, where it had been corroborated by other classified and open source information, including information provided by [the applicant].

(Footnotes omitted.)

My conclusion

317    As to the 2020 TSOG, the applicant is correct to submit that neither he nor the Court knows what is in the redacted information relied on by ASIO, and whether any of it is sourced directly or indirectly from the Returnees from Albania trial, or relies on the IRN. However, the 2020 TSOG expressly states that “ASIO has not taken into account any of the Returnees from Albania trial evidence, judgement, or sentence against [the applicant]” (at [59]), that the IRN “has not been relied upon in forming this ASA” (at [60]), and affirms that it has acted in accordance with Mr Cornall’s recommendation (at [60]). The briefing note to Mr Burgess contains similar statements, which I infer Mr Burgess relied upon.

318    No evidence was adduced on behalf of the respondents from any ASIO officer on this issue. While I accept it would have been difficult for the applicant in a forensic sense to impugn these statements in the 2020 TSOG, the reality is that no attempt at all was made to do so. No leave was sought to issue subpoenas to any ASIO officers (including Mr Burgess, who made the 2020 assessment, nor those officers responsible for the preparation of the 2020 TSOG or the briefing note to Mr Burgess), no documents were tendered that were said to contradict or be inconsistent with these statements in the 2020 TSOG, and after the 2020 ASIO interview, there is no evidence that potential reliance on these sources was raised with ASIO officers in a way that could establish that such reliance had occurred. There is no basis for the Court to decline to treat what is said by ASIO in the 2020 TSOG as reflective of what in fact occurred; namely, that ASIO had accepted Mr Cornall’s recommendation and acted accordingly. It would be a very serious matter indeed if the statements in the 2020 TSOG and the briefing note were false or misleading, and the fact the 2020 ASA was conducted during the currency of this proceeding would heighten the seriousness of any false or misleading statements.

319    The statement at [58] of the 2020 TSOG, and the part highlighted in bold at [315] above, is a historic reference to the 2014 and 2018 ASAs. It is not a reference to the 2020 TSOG and 2020 ASA. So much is apparent from the fact that [59] commences with:

However, in reviewing this case and issuing this ASA, ASIO has not taken into account any of the Returnees from Albania evidence …

(Original emphasis.)

320    The applicant’s allegations about reliance on these sources in the 2020 ASA and/or TSOG must be rejected.

Relying on evidence obtained under torture (3FASOC [107]-[110])

321    These allegations overlap with the previous allegations, and at times in submissions they seemed to merge somewhat. However, these allegations are directed at both the 2018 and the 2020 ASAs.

The 2020 ASA: my conclusion

322    For the reasons I have just given, the allegation about the 2020 ASA and 2020 TSOG must be rejected insofar as it concerns the IRN and evidence or information from the Returnees from Albania trial. Insofar as the applicant presses any allegation that the 2020 ASA otherwise relies on evidence or information that may have been obtained through torture, the applicant has not discharged his burden of proving, even at an arguable level, that the 2020 ASA relies on any information that may have been obtained in that way. The bald assertion that some of the redacted and classified information might be of this character is no more than an assertion and must be rejected. Therefore, it is not necessary to undertake a detailed examination of SAD3 and the updated policies tendered in evidence. It will be necessary to do this in relation to SAD2 and the then-existing policies, for reasons I explain below.

The 2018 ASA

323    The position in relation to the 2018 ASA requires different consideration, given that, as the respondents accept, ASIO expressly relied on both the IRN and evidence or information from the Returnees from Albania trial. The respondents point to the way ASIO expresses its reliance in the 2018 TSOG at [20] (which is extracted in part at [329]-[330], below) and [29] (which is extracted at [156], above). In substance as I understand the submissions, the respondents contend ASIO relied on evidence from these (potentially tainted) sources only where there was some corroboration from other (non-tainted) information, including from the applicant himself and including classified information.

The 2018 ASA: my conclusion

324    Senior counsel for the applicant did not go through the details of the information in any detailed way designed to prove that ASIO did in fact use evidence from the Returnees from Albania trial in circumstances where it was not corroborated or confirmed by non-tainted information. Nevertheless, on the face of [103]-[106] of the 2018 TSOG, in my opinion it is clear that ASIO did rely to a considerable extent on evidence from the Returnees from Albania trial, and did so beyond circumstances where the evidence was corroborated by the applicant. Whether it may have been corroborated by redacted/classified information is not a matter the Court can make a finding about, but nor is it a matter the respondents can simply assert as if it were the fact, at least not without having provided affidavit evidence to that effect from the decision-maker. The way these paragraphs read, the natural and clear inference is that the evidence of the individuals identified, as given at the Returnees from Albania trial, was what ASIO relied upon. As reported at [105] of the 2018 TSOG, that evidence was said by those individuals to have been provided under duress, and was said by one of the individuals to have been pre-prepared by the Egyptian authorities.

325    In these paragraphs, the factual issue relates to the obtaining of a false passport and Irish entry visa for a third person, a series of events attributed by ASIO to the applicant and which forms a material part of the ASIO’s adverse findings against the applicant in the 2018 and 2020 TSOGs. At [103] of the 2018 TSOG, it is clear that ASIO relies on the evidence from the Returnees from Albania trial in its fact-finding that this third person was a member of EIJ. That, of course, was a key aspect of the importance of this series of events to the adverse assessment about the applicant. This conduct was also one of the two pieces of conduct maintained as allegations against the applicant after the amendment of the IRN in 2013.

326    Contrary to the submissions of the respondents, I consider it is clear that ASIO relied on evidence obtained from the Returnees from Albania trial. It did so at a time where it was, or should have been, absolutely clear that it should not rely on evidence obtained from those sources, in any way. The most obvious, and serious, statements to this effect came from the Commission for the Control of Interpol’s Files (CCF), in its decision of 19 February 2018 – at least two months before the 2018 ASA in April 2018. The reasons for the CCF’s decision are in evidence. Although it is a lengthy extract, these are the CCF’s findings about the conduct of the 1999 Egyptian trial and the use of information derived from it:

Second, the Applicant stresses that the Military Criminal Court of Egypt relied upon torture-tainted evidence regarding conduct of his in Albania which the court relied upon to conclude that he was a member of the Egyptian Islamic Jihad (EIJ), failing to investigate allegations of torture, which placed those who were represented at a disadvantage in the preparation of their case. In his case, such evidence is represented by the testimony of an SSI [State Security Investigations] prosecutor, as well as by the witness statements given by five other returnees from Albania and by the Applicant’s father, who consistently and credibly reported to have been tortured by the SSI before trial. Despite difficulty of proving allegations of torture given the secrecy of the practice, several jurisdictions have established that some of these witnesses, who were also sentenced by the judgment of 1999 and whose statements have served to convict the Applicant for his membership in the EIJ, have been tortured.

…

The Commission further considered the Applicant’s allegations that the evidence used to convict him was obtained from witnesses (see points 63.2 and 63 .3 above) who consistently reported to have been tortured by the SSI before trial. In this respect, the Commission paid particular attention to the elements presented below.

According to the information available to the Commission, one of these witnesses was sentenced to death and executed in February 2000. There is no information available to the Commission concerning any testimony of his relating to statements made under torture. However, in 2009, the English Court of Appeal noted that “the procedures of the Egyptian Supreme Military Court are unfair and that evidence before it is probably obtained by torture”. It also held firmly that “the Egyptian convictions [by the Supreme Military Court, including one of 1999 for membership of an illegal jihad movement, i.e. in the trial] constitute tainted evidence to which [the tribunal] was required by law to attribute no weight whatsoever”.

Similarly, in 2010, the Canadian Federal Court concluded “there are reasonable grounds to conclude that the accused was tortured or suffered CIDT [cruel, inhuman or degrading treatment] when he provided inculpatory statements to the Egyptian authorities […] and to believe that […] conviction in the [this trial] is the product of torture and therefore inadmissible”. The accused in this case is one of the four returnees from Albania whose witness statement has been used to convict the Applicant.

On 25 December 2013, the Council on Rights, Freedoms and Legal Profession certified that two other witnesses, whose statement served to convict the Applicant, submitted contestations challenging their convictions and stating that “all their confessions (...) were the result of severe torture and physical and moral compulsion (...) The statements include what is attributed to them as fabricated statements on [the applicant].” Previously, in 2005, “the London-based Islamic Observation Center, an organization that tracks the treatment of suspected Islamist militants, reported that one of these witnesses was held for several weeks in a room filled with water up to his knees, and he was also subjected to electroshock during Interrogation. His interrogators tied his legs together and suspended him from the ceiling several times, and also dragged him from room to room with his face to the floor. The security forces also threatened to rape him during interrogation. [He] received a twenty-five year sentence.”

On 17 June 2013, another accused, whose statement also served to convict the Applicant, testified that “all statements attributed to [him] in the public prosecution In the Case 8/98 Military, especially the statements that mention [the applicant] were written from the Security book and dictated by the Deputy Public Prosecutor. [He] objected to the statements and denied them. [He] was subjected to torture and electrocution in order to sign [the] paper”.

On 19 September 2013, the Applicant’s father drafted a declaration to be submitted to the case, stating that “all of what has been said as [his] words regarding [his] son [the applicant] and recorded in the documents of [the trial] are in correct and were said due compulsion and torture by the interrogating authority”.

…

Finally, the Commission stressed that diverse national and international sources have globally criticized the mass trial of 1999. For example:

•    The Human Rights Watch (HRW) report “Black Hole: the Fate of Islamists Rendered to Egypt” provided background on the rendition in July 1998 of a number of individual[s] mainly from Albania to the Egyptian SSI, including the five witnesses mentioned in the indictment against the Applicant[.]

•    The Egyptian Organization for Human Rights (EOHR), who defended some of these returnees, confirmed that their lawyers had no access to their clients until they were tried and that, upon their arrival at court, they were informed that their clients had been tortured.

•    Amnesty International detailed how defendants involved in the case of returnees from Albania informed the Egyptian prosecution authorities that they were tortured, including by electric shocks to their genitals, while held in pre-trial detention; however, there were no investigations.

•    The UNHCR noted “with alarm that military courts and State security courts have jurisdiction to try civilians accused of terrorism although there are no guarantees of those courts’ independence and their decisions are not subject to appeal before a higher court” (article 14 of the Covenant).

The Commission recalled that it is indeed a norm of international law that statement[s] obtained in obvious violation of human rights shall not be invoked as evidence in any proceedings. This is provided for by Article 15 of the UNCAT and established by the ECtHR that “no legal system based upon the rule of law can countenance the admission of evidence -however reliable- which has been obtained by such a barbaric practice as torture”. The ECtHR has specifically found that the use of evidence obtained by torture makes the proceedings automatically unfair as a whole and a flagrant denial of justice. Moreover, under INTERPOL’s rules, in particular Article 2 of its Constitution and Articles 11(1) and 34(1) of the RPD [Rules on the Processing of Data], the Organisation shall ensure that data processing in the INTERPOL Information System respect the basic fundamental rights of the persons who are the subject of the cooperation.

From all these elements, the Commission established that the information provided by the NCB [National Central Bureau] of Egypt did not properly resolve the concerns raised regarding the fact that the judgment on the basis of which the Red Notice was issued relies on evidence obtained under torture, and consequently the accuracy of the data challenged as well as the possible effective participation of the Applicant to the acts concerned. In addition, there is little prospect, in view of the above, that the Red Notice could in fact serve the purpose for which it was issued, i.e. the extradition of the Applicant to Egypt.

The Commission rather finds that the Applicant has demonstrated the existence of reasonable grounds to hold the real risk that evidence on which he was sentenced, was obtained by torture, and therefore to believe that the Red Notice challenged is based on conviction dependent on such evidence which would consequently be contrary to fundamental rights and could not serve as a basis for the Red Notice.

In light of this finding and of the findings above under points A(d) and B(c), the Commission concludes that data provided by the NCB of Egypt do not satisfy the requirements of INTERPOL’s rules, in particular of Article 2 of INTERPOL’s Constitution.

FOR THESE REASONS, THE COMMISSION

Decides that the data concerning the Applicant are not compliant with INTERPOL’s rules applicable to the processing of personal data, and that they shall be deleted from INTERPOL’s files.

(Original emphasis.)

327    Just as, quite properly, Australian authorities including the AFP and ASIO took the existence of an IRN as a serious matter against the applicant’s interests, it would have been irrational, and legally unreasonable, for the same Australian authorities not to give careful and serious consideration and respect to the decision of the same organisation to cancel the IRN, including careful and serious consideration of why it had decided to do so. The passages extracted above record the widespread condemnation of the Returnees from Albania trial, and the methods used to extract evidence. After Interpol’s CCF report at the very least, no officer of an Australian government agency acting reasonably could have failed to understand that evidence from these sources should not be used.