Plaintiff S111A/2018 v Minister for Home Affairs (No 4)

• Jurisdiction: Australia Federal only
• Judgment Date: 05 April 2022
• Neutral Citation: [2022] FCA 329
• Date: 05 April 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

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

File number(s):	NSD 584 of 2019
Judgment of:	MORTIMER J
Date of judgment:	5 April 2022
Catchwords:	MIGRATION – judicial review – where applicant subject to adverse security assessment and refused protection visa – applicant held in immigration detention for approximately 10 years – use of evidence obtained through torture – denial of procedural fairness – legal unreasonableness –– grounds upheld in part
Legislation:	Australian Human Rights Commission Act 1986 (Cth) Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 8, 8A, 17, 17(1)(c), 17A, 18(1), 19, 20, 36(1)(b), 19, 20, 36(1)(b), 37, 37(1), 37(2), 37(2)(a), 37(3), 37(4), 85 Freedom of Information Act 1982 (Cth) Foreign Evidence Act 1994 (Cth) Judiciary Act 1903 (Cth) ss 39B, 44 Migration Act 1958 (Cth) ss 5(h)(2), 36(1B), 46A(1), 46A(2), 197C Parliamentary Privileges Act 1987 (Cth) 2 16(3) ; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9(1) United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 3, 37(b)
Cases cited:	A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 AB v Chief Commissioner of Police [2020] FCA 14 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 Church of Scientology Inc v Woodward [1982] HCA 31; 152 CLR 25 Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 Djockovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 El Ossman v Minister for Immigration and Border Protection [2017] FCA 636; 248 FCR 491 Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22; 156 FCR 559 G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511 Habib v Director-General of Security [2009] FCAFC 48; 175 FCR 411 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757; 146 FCR 427 HT v The Queen [2019] HCA 40; 269 CLR 403 Huddersfield Police Authority v Watson [1947] KB 842 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505 Kioa v West [1985] HCA 81; 159 CLR 550 at 627 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279 Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Minister for Immigration, Local Government & Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189 MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285 Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134 Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271 Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499 Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207 R (Commonwealth) v Baladjam (No 24) [2008] NSWSC 1447 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 RJE v Secretary to Department of Justice [2008] VSCA 265; 21 VR 526 SDCV v Director-General of Security [2021] FCAFC 51; 389 ALR 372 Stambe v Minister for Health (No 2) [2019] FCA 479; 270 FCR 217 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 Zhang v Metcalf [2020] NSWCA 228
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	464
Date of hearing:	16-18 June 2021, 13 August 2021
Counsel for the Applicant:	Mr M Finnane QC
Solicitor for the Applicant:	Zali Burrows Lawyers
Counsel for the Respondents:	Mr P Herzfeld SC with Ms A Hammond
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 584 of 2019
BETWEEN:	PLAINTIFF S111A/2018 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent ; DIRECTOR-GENERAL OF SECURITY Third Respondent

order made by:	MORTIMER J
DATE OF ORDER:	5 APril 2022

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...