Amer, M.E.H. v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 827

JUDGMENT No. ....?!.&!,Y..~~~-

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG323 of 1989
)
GENERAL DIVISION	)

BETWEEN: MOHAMMED EL HERMA AMER &

ORS

Applicants

AND:  MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS & ANOR.

CORAM:	Lockhart J.
DATE :	19 December  1989 RECEIVED

-9 JAN 1990

REASONS FOR JUDGMENT FEDERAL COURT OF

AUSTRALIA

LOCKHART J.:  PRINCIPAL REGISTRY

I propose to give judgment now as I have reached a clear view, assisted by counsel, with respect to the result of this case. The case raises the old but important question for the courts of balancing two aspects of the public interest which have a potential for conflict, namely, that a party is entitled to know the case he has to meet yet the furtherance of the national interest may require that certain elements in the case should be withheld from him.

Affairs, who has been assumed by all parties for present	the Department of Immigration, Local Government and Ethnic
purposes to have been the second respondent, to refuse the application for visas by the applicants pursuant to the Act. The first applicant is the husband of the second applicant and the father of the third applicant.
The respondents who are the Minister of State for Immigration, Local Government and Ethnic Affairs and the Secretary of the Department say that the visas were refused because security assessments by the Australian Security and Intelligence Organization, ASIO, of the first applicant indicated that he may be in effect a threat to the national security of Australia.
The case has a short but spirited curial history and arises so far as directly relevant from the decision of the second respondent on 31 August 1989 to refuse the applications for visas by the applicants pursuant to the Act. The decision made with respect to the first applicant's
his wife and son so that if the first applicant does not
application for a visa is determinative of the case and it is
common ground that no separate case arises with respect to succeed in the case then his wife and son also fail.
The applicants challenge the decision of the second respondent, both under the Administrative Decisions f Judicial Review) Act 1977 ("the Judicial Review Act") and S. 39B of the Judiciarv Act 1903. I shall summarise the material facts.
The first applicant, a Libyan student, arrlved in Australia in 1985 and completed three years of study of dentistry in this country. He needs an extra year to achieve his Masters Degree in dentistry from the University of Sydney. On 31 December 1988 the applicant, his wife and new-born son, the third applicant who was born on 18 November 1988, departed from this country for a short visit to Libya to spend their vacation there and to provide their families an opportunity of seeing their new son. They had no notice of any change in their entry status being considered at the time of their departure.
year to cancel their re-entry visas and not permit their Whist overseas a decision was made on 7 January this re-entry to Australia on the basis of an adverse security
assessment provided by AS10 which asserted that the first applicant's presence in Australia was inimical to national security. The first applicant applied for an order of review of that decision in this Court but the proceedings were discontinued by agreement when it was explained that he could lodge a fresh application for a visa and that this would be considered on its merits.
The visa applications were refused on 9 June last. A current assessment provided by AS10 on 5 June 1989 remained adverse and it recommended against the issue of the visa. On 27 July last the first applicant was told through his solicitors that it was the view of AS10 that: "Should Mr Amer return to Australia it is considered, he will continue to interfere in the affairs of the local Muslim community on behalf, as an undeclared agent, of the Libyan government and that such interference would not be consistent with requirements of security."
The first applicant responded by stating that his involvement with the Muslim community in Australia had been limited to attendance at the Lakemba mosque on occasional Fridays for the purposes of worship. He said that he had not been involved in any cultural or political activities associated with the mosque or with the community in general. His total involvement with the Muslim community has been on a
with the Libyan government. That in essence summarises his social basis only and he has no formal or informal connection response.
The first applicant says that he knows of no activities of his which could be inimical to Australian security and that his career would be ruined by not being allowed to return and complete his degree here. He is anxious to complete the qualification and to return to Libya where it appears a prestigious position has been offered to him provided apparently that he successfully completes his masters degree.
The first applicant has also put forward to the Department that his family would like to return to this country so that doctors who are familiar with a medical problem of his young son may treat him here, his son not having coped well with the Libyan climate. In addition, the first applicant has assets including personal possessions in Australia.
The minute prepared by M r Faubel, the Director of the Entry Control Section of the Department at the relevant time, namely, 30 August 1989, is a minute directed to his senior officer, the Deputy Secretary of the Department, and included in that minute are statements in paragraph 37 and elsewhere that there would be inconvenience which could conceivably be distressing and annoying to the applicants to be suddenly
stopped from returning to where their goods and effects are.
The same minute notes that the Libyan People's Bureau was closed in accordance with the wishes of the Australian Government in May 1987 and that there are no on-going representatives of the Libyan Government officially in Australia. The minute notes that the AS10 assessment makes the point that, having regard to the activities of the first applicant, it is concluded that he would continue to interfere in the affairs of the local Muslim community as an undisclosed agent of the Libyan Government.
The minute notes in paragraph 39 that there is a lack of particularity in the information given to the first applicant but that, while he and others in a similar position may suffer some disadvantage, their interests must, so it is said, take second place to the national interest.
The minute draws the attention of the decision-maker to the competing claims of the public interest which I have mentioned earlier in some detail. They are summarised in paragraphs 29 to 44 of the minute. Paragraph 43 states that it is a difficult case and that the particular detriment to Australia from the first applicant's activities and actions, inconsistent with his status as the holder of a student visa, must be weighed against serious personal ramifications for the first applicant and his family.
The recommendation in paragraph 45 of the minute states that it is recommended that the decision-maker accept the AS10 report and that he exercise his discretion to refuse the applicants' application for visas. On 31 August 1989, as I said earlier, the decision was made by the decision-maker to refuse those applications.
The minute makes reference to many matters only some of which I have summarized, and the minute elaborates facts expressed by me in summary form but they need not be stated further. The evidence before the Court was given by affidavit and two witness were cross-examined, namely, Mr I.D. Vickovich, the solicitor for the applicants, and Mr A.E. Faubel who prepared the minute to which I have already referred.
The applicants are not in Australia. The first applicant swore affidavits which were read. I take into account the fact that he was not here to be cross-examined so that his evidence could not be tested. On the other hand, the solicitor for the respondents did not give notice to him to attend for cross-examination; indeed, it was expressly stated no such notice would be given. This is hardly surprising in the circumstances as his continued absence from Australia is the nub of the case. In the end little turns on the first
applicant's evidence but I have taken it into account.
Prior to the commencement of this proceeding a separate set of proceedings were instituted by the applicants seeking orders for review of an earlier decision to cancel their visas and refuse entry permits to them should they return to Australia. Those proceedings were discontinued, as I mentioned earlier.
On 21 June 1989 the applicants commenced these proceedings, G323 of 1989, seeking review of the decision of the relevant officer of the Department made on 9 June 1989 to refuse fresh visas to them. Other events then occurred which I need not state but which led to the amendment of the application, and it is the amended application filed on 13 September 1989 that is presently before the Court. That amended application seeks a review of the decision of the Secretary to the Department, the second respondent, on 31 August 1989 refusing applications for visas by the applicants pursuant to the Act. As mentioned earlier, the application is based on both the Judicial Review Act and S. 39B of Judiciarv Act.
During the course of the hearing yesterday the Court directed the applicants to file a written statement of the grounds on which they relied to challenge the relevant decision. That document was filed yesterday. It states five
considerations into account was subsequently abandoned. The grounds, but ground 3 alleging failure to take relevant
remaining four grounds shall be mentioned by me later.
Although each of the four grounds echo different provisions of S. 5 of the Judicial Review Act, they all turn, in my opinion, on the basic attack made by the applicants on the decision, namely, that they were denied access to the AS10 security assessments or were not otherwise given sufficient knowledge of their contents to enable them to answer any adverse statements contained in them.
Yesterday I inspected the AS10 security assessments and directed that they be sealed and secured by the registry and declined to allow the applicants, their counsel or solicitor access to them. I gave then brief reasons for my decision which I need not repeat, except to say that I weighed carefully the two competing public interests, namely, that the ends of justice should not be defeated by the withholding from parties of relevant evidence and that the national security should be preserved. See Hai-Ismail v Minister for Immiaration and Ethnic Affairs (No 21 (1982) 64 FLR 112 and Alister v The Oueen (1984) 154 CLR 404. See generally Kioa v West (1985) 159 CLR 550.
I took the course of inspecting the documents myself, notwithstanding that another judge of this Court had
the request of the applicants in this case calling for their inspected them earlier on the return of subpoenas issued at
production. I did this because the issues as particularised by counsel for the applicants were different from the questions before Sheppard J. when dealing with the subpoenas, although obviously with a degree of overlap. I reached in substance the same conclusion as did Sheppard J.
It is true that the Court has seen the AS10 assessments and that counsel for the applicants has not, and this does have unsatisfactory features which I readily recognize; but the balance of the conflicting public interests mentioned earlier sometimes inevitably produces this result. The applicants have, however, the safeguard of the judicial eye having been cast over the security assessments of AS10 to ensure that the claim for secrecy with respect to them is not fatuous or otherwise without foundation.
I have not, however, relied on anything I read in them to make for myself any adverse findings of fact or to form any adverse impressions of the first applicant. Once the conclusion is reached that the applicants are not and have not been entitled to see the security assessments or to be informed of their contents, the case asserted by them, in my view, collapses.
of the rules of natural justice occurred in the making of the I turn to the various grounds. Ground 1 is that a breach decision by reason of the failure of the respondents to
supply adequate particulars of the allegations against the first applicant contained in the security assessments so as to afford him an opportunity to answer them. Whether the rules of natural justice apply at all in this case is a matter that is open to real question but I am content for present purposes to assume that they do. See in this regard Kioa v a.
What I have said thus far in relation to the security assessment is in itself sufficient to dispose of ground 1 but there is an additional reason for this conclusion. I mentioned earlier that on 27 July last the first applicant was told through his solicitors of ASIO's view which I cited earlier. In my opinion in all the circumstances this was a sufficient statement to the first applicant of the contents of the AS10 assessments to enable him to respond, as indeed he did. Whether it was encumbent upon the Commonwealth to inform the first applicant of that summary of certain parts of the AS10 reports on 27 July is indeed a matter open to some question, but I need say nothing further about it. The decision-maker considered all these matters and no error in the decision-making process has been demonstrated.
Ground 2 asserts that the decision was made without regard to the merits of the case as it is said to have conformed with an inflexible rule of policy that political
activity of any kind by persons of Arab descent, or alternatively of Libyan nationality, who were not permanent
residents of Australia was unacceptable, and persons responsible for such activity should be deported or otherwise excluded from Australia. There is no evidence to support this ground. Indeed, the evidence points plainly to the contrary.
Ground 4 asserts that the decision was unreasonable insofar as it was influenced by a perception of the first applicant's alleged political views (a perception alleged to have arisen by reason of the supposed name of his son and the material seized from him on 31 December 1988) being his support for the political regime of Colonel Gaddafi. It was unreasonable to find that his espousal of those views in a peaceful and lawful fashion could ever constitute a security risk. This ground has not been established. The unfavourable AS10 security assessments of the first applicant were undoubtedly the cornerstone of the decisions refusing to issue fresh visas to the applicants on 31 August last, but no evidence of unreasonableness as alleged exists and no such case has been made out.
Ground 5 asserts that there was no evidence before the decision maker that the first applicant had, in fact, interfered with the affairs of the Australian Arab community as an undisclosed agent of the government of Libya. This ground, of course, raises squarely the conflict between the two public interest considerations mentioned earlier.
Counsel for the applicants has not had the benefit of seeing the security assessments and, as I say, I have examined them. In my opinion, this ground must necessarily fail. The case, therefore, fails.
Finally, I should say that counsel for the respondents argued that as the applicants were beyond Australia's shores and did not at any relevant time hold visas with respect to travel to Australia, and had no right to enter Australia, or any legitimate expectation with respect thereto, there was no room for the application of the principles of natural justice. Reliance was placed on various authorities and primarily v West. I need not decide this question. These matters were also relied upon by counsel for the respondents to found a submission that the applicants have no standing to bring these proceedings. Nor did I consider that submission in the light of my findings earlier. Accordingly, the application is dismissed.

The question arises in the context of the Miaration Act

1958 ("the Act") and the decision of the relevant officer of

I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate LL* L(oi-i>

Dated: 19 December 1989

Counsel for Applicants:	Mr. T.F. Robertson
Solicitors for Applicants:	Vickovich and Associates
Counsel for Respondentss:	.  C.J. Stevens
Solicitors for Respondents:	Australian  Government
Solicitor
Date of Hearing:	18, 19 December 1989
Date of Judgment:	19 ~ecembe; 1989