Director-General of Security v Plaintiff S111A/2018

• Jurisdiction: Australia Federal only
• Judgment Date: 09 March 2023
• Neutral Citation: [2023] FCAFC 33
• Date: 09 March 2023
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33

Appeal from:	Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329
File number:	VID 284 of 2022
Judgment of:	WIGNEY, BROMWICH AND O’CALLAGHAN JJ
Date of judgment:	9 March 2023
Catchwords:	MIGRATION – where the primary judge set aside two adverse security assessments (ASAs) of the respondent – where the respondent’s visa was refused as a consequence of the ASA decisions – whether the use of information by the executive that is likely to have been obtained by torture by a third party is prohibited – whether it was a denial of procedural fairness to use such information – whether it was a denial of procedural fairness to not ask particular questions of the respondent during interview – held: appeal allowed with costs
Legislation:	Acts Interpretation Act 1901 (Cth) s 33(1) Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1), 35, 35(1), 37, 37(1), 37(4) Criminal Code (Cth) Div 274 Foreign Evidence Act 1994 (Cth) s 27D Migration Act 1958 (Cth) ss 195A, 36(1B) Anti-terrorism, Crime and Security Act 2001 (UK) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Cases cited:	A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280 CCU21 v Minister for Home Affairs [2022] FCA 28; 398 ALR 535 Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134 Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] UKSC 34; [2020] 1 WLR 3549
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	160
Date of hearing:	12 October 2022
Counsel for the Appellants:	Mr P Herzfeld SC and Ms A Hammond
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondent:	Mr M O’Meara SC and Mr D Ward
Solicitor for the Respondent:	Zali Burrows Lawyers

ORDERS

		VID 284 of 2022
BETWEEN:	DIRECTOR-GENERAL OF SECURITY First Appellant ; MINISTER FOR HOME AFFAIRS Second Appellant ; COMMONWEALTH OF AUSTRALIA Third Appellant
AND:	PLAINTIFF S111A/2018 Respondent

order made by:	WIGNEY, BROMWICH AND O’CALLAGHAN JJ
DATE OF ORDER:	9 march 2023

THE COURT ORDERS THAT:

1. The orders made on 22 April 2022 and orders 1, 2 and 3 made on 23 May 2022 be set aside.

2. The amended originating application dated 12 March 2021 be dismissed.

3. Leave to rely upon ground 2 of the amended notice of contention dated 29 September 2022 be refused.

4. The amended notice of contention be dismissed.

5. The respondent pay the appellants’ costs of and incidental to:

(a) the amended originating application dated 12 March 2021; and

(b) the appeal, including the amended notice of contention and the interlocutory application in relation to the amended notice of contention,

as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from orders made by a judge of this Court setting aside two executive decisions, following her Honour upholding limited parts of the respondent’s judicial review challenge to those decisions. Her Honour’s reasons for those orders were published in Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329 (primary judgment or J). The two decisions set aside were:

(a) an adverse security assessment (ASA) of the respondent made by the Director-General of Security, who is the agency head of the Australian Security Intelligence Organisation (ASIO), on 23 April 2018 (2018 ASA); and

(b) an ASA of the respondent made by the Director-General on 27 October 2020 (2020 ASA).

2 The appellants are the Director-General, the Minister for Home Affairs and the Commonwealth of Australia, being the parties sued by the respondent (together, the Government).

3 The respondent has been in immigration detention for over 10 years, since arriving in Australia by boat in 2012. Section 36(1B) of the Migration Act 1958 (Cth) provides that not having an ASA is an indispensable criterion for the grant of a protection visa. On 13 June 2018, a delegate of the Minister refused to grant a protection visa to the respondent, consequent upon the making of the 2018 ASA and the 2020 ASA. He has been found to meet all of the criteria for the grant of a protection visa other than not having an ASA.

4 While the respondent, in a third further amended statement of claim, sought an order in the nature of mandamus to compel the Minister to consider that visa application and an order in the nature of certiorari quashing that refusal decision, the primary judge observed that there had apparently been a conscious decision not to press for that relief and her Honour proceeded upon that basis: see J [4]-[6].

5 Both the 2018 ASA and the 2020 ASA concluded that the respondent was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act.

6 The particular security issue identified in both ASAs was the protection of the people of the Commonwealth and the several states and territories from acts of politically motivated violence, being an aspect of the definition of security in s 4 of the ASIO Act. ASIO found that the security risk posed by the respondent arose from an assessment that he had been a member of the Egyptian Islamic Jihad in the decade or so prior to coming to Australia, had held an ideology supportive of politically motivated violence, and was still likely to hold that ideology and to act upon it. The respondent has always denied ever having that ideology, and therefore of intending to act upon any dictates of such an ideology.

7 The respondent succeeded on a subset of his case before the primary judge. Her Honour summarised the conclusions reached at J [8]:

(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...