Date of Judgment: 27 August 2025 - [2025] HCASJ 26

HIGH COURT OF AUSTRALIA
GLEESON J
AIX20 PLAINTIFF
AND
DIRECTOR GENERAL OF SECURITY & ORS DEFENDANTS
[2025] HCASJ 26
Date of Judgment: 27 August 2025
M43 of 2025
ORDERS
1.The application for a constitutional or other writ filed on 28 May 2025 be dismissed.
2. The plaintiff is to pay the first and second defendants' costs of and incidental to the application.

Representation
E M Nekvapil SC and E A Brumby with J R G Blaker for the plaintiff (instructed by Victoria Legal Aid)
P D Herzfeld SC with C M R Ernst for the first and second defendants (instructed by Australian Government Solicitor)
Submitting appearance for the third defendant
GLEESON J.
Introduction

The plaintiff was detained in immigration detention for 973 days, from 19 December 2019 until 18 August 2022, after his temporary protection visa was cancelled as a consequence of an adverse security assessment purportedly made under the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act") on the basis that the plaintiff was directly or indirectly a risk to security. The plaintiff is now pursuing proceedings against the first and second defendants, in the Federal Court of Australia ("the main proceedings"), seeking relief including damages for negligence in the exercise of statutory powers and for false imprisonment. In those proceedings, orders were made for standard discovery of documents by the parties. The first defendant, the Director-General of Security, resisted production of certain discoverable documents ("the confidential documents"), on the ground they were protected by public interest immunity ("PII").
By application for a constitutional or other writ filed 28 May 2025, the plaintiff now invokes this Court's original jurisdiction conferred by s 75(v) of the Constitution. The plaintiff seeks a writ of certiorari directed to the third defendant, the Federal Court of Australia, to quash the decision of a Full Court (Murphy, Bromwich and Shariff JJ),[1] which refused the plaintiff leave to appeal from orders of a single judge of the Federal Court (Dowling J),[2] upholding the first defendant's PII claims and dismissing the plaintiff's application for production of the confidential documents under a "restricted counsel procedure".[3] The plaintiff also seeks a writ of mandamus directed to the Federal Court requiring a differently constituted Full Court to hear and determine his application for leave to appeal from the primary judge's orders.
[1]AIX20 v Director-General of Security [2025] FCAFC 38.
[2]AIX20 v Director-General of Security (No 2) [2024] FCA 1130.
[3]A procedure described by the Full Court at [1] as "bear[ing] some resemblance to that proposed by the defendants in Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531".
The plaintiff invokes this Court's original jurisdiction because, by the combined operation of ss 25(2)(a) and 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"), an appeal must not be brought to the High Court from a judgment of the Federal Court in the exercise of its appellate jurisdiction refusing leave to appeal.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] HCASJ 26
Decision Date: 27 August 2025

CaseChat Overview and Summary

The Federal Court of Australia was presented with an application by the plaintiff, an Iraqi national who had been detained for 973 days in Australia under a temporary protection visa cancellation, seeking a declaration that the first and second adverse security assessments (ASAs) made by the first defendant were invalid, along with damages for breach of duty and false imprisonment. The first and second defendants, content with the matter being determined on paper, argued against the plaintiff's claims. The Court was required to decide whether the confidential documents, which the Director-General of Security withheld from production, could be disclosed under the restricted counsel procedure. The plaintiff argued that the restricted counsel procedure would not result in any countervailing public interest against the disclosure of the confidential information. The Court considered the legal principles applicable to public interest immunity (PII) claims, the nature of the confidential information, and the necessity of disclosure for the fair determination of the case. The Court concluded that oral argument would not assist in considering the issues and decided the application on the papers. The Court found that the restricted counsel procedure did not adequately protect the confidential information from potential disclosure to unauthorised persons, thus maintaining the countervailing public interest against disclosure. Consequently, the Court dismissed the application.

The reasoning of the Court was grounded in the need to balance the plaintiff's right to a fair trial with the public interest in protecting sensitive national security information. The Court acknowledged the importance of the plaintiff's claims but held that the restricted counsel procedure was insufficient to safeguard the confidential information. The Court noted that the documents in question contained sensitive information which, if disclosed, could potentially harm national security. The Court held that the countervailing public interest in maintaining the confidentiality of the information outweighed the plaintiff's right to have it disclosed. As a result, the Court dismissed the application and concluded that it was appropriate to publish the reasons for the decision, except in open court. The Court's decision underscores the delicate balance the judiciary must strike between the rights of individuals and the broader interests of national security.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff informed the Court that he wished to be "heard orally only if and to the extent that the Court considers that oral argument might assist the Court in considering the issues and deciding the application". The first and second defendants were content for the matter to be determined on the papers. Having considered the material filed by the parties, I do not consider that oral argument would assist the Court. For the following reasons, the application must be dismissed. I have also concluded that it is appropriate to publish these reasons other than in open court.[4]Background [4]High Court Rules 2004 (Cth), r 25.09.2. The plaintiff is from Iraq and arrived in Australia in October 2012. After a period spent in immigration detention, the plaintiff was granted a bridging visa on 13 December 2012. From then he lived in the Australian community on bridging visas and, from 16 August 2017, on a temporary protection visa. On 21 October 2019, the first defendant purported to make an adverse security assessment concerning the plaintiff ("the first ASA") on the basis that the plaintiff was directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act. The first defendant recommended that the Minister for Home Affairs cancel the plaintiff's temporary protection visa, which duly occurred on 5 December 2019 pursuant to s 501(3) of the Migration Act 1958 (Cth). The cancellation of that visa led to the plaintiff's detention, purportedly under s 189(1) and s 196(1) of the Migration Act, in immigration detention for 973 days. On 15 July 2020 the first defendant furnished a second adverse security assessment in respect of the plaintiff ("the second ASA"), in materially similar terms to the first ASA. On 15 March 2021, the Independent Reviewer of Adverse Security Assessments concluded that the plaintiff was not directly or indirectly a risk to security; and the second ASA was "not a proportionate response to the material relied upon by the Australian Security Intelligence Organisation" ("ASIO") and was "not an appropriate outcome" ("the Independent Review").[5] The first defendant initially decided not to take any action in response to the Independent Review.[6] However, on 5 August 2022, he made a "non-prejudicial security assessment", which led to the Minister for Home Affairs revoking the visa cancellation decision and granting the plaintiff a bridging visa, and releasing him from detention on 18 August 2022. Since that time, the plaintiff has been living in the Australian community.[7] [5]AIX20 v Director-General of Security [2023] FCA 1344 at [3(g)]. [6]AIX20 v Director-General of Security [2023] FCA 1344 at [3(h)]. [7]AIX20 v Director-General of Security [2023] FCA 1344 at [3(j)]-[3(l)]; AIX20 v Director-General of Security [2025] FCAFC 38 at [3(c)]-[3(e)]. The plaintiff commenced the main proceedings on 15 August 2022, seeking: (1) declarations that the first and second ASAs and the decision not to take action in response to the Independent Review were invalid; (2) damages, including aggravated damages, for breach of a duty to take reasonable care in the exercise of the first defendant's powers and functions under the ASIO Act as well as for false imprisonment; and (3) an apology from the first defendant. The first and second defendants unsuccessfully sought summary dismissal of the main proceedings,[8] and their consequent application for leave to appeal was dismissed.[9] As Mortimer CJ put it in dismissing the latter application:[10]"What is at stake [in the main proceedings] is scrutiny of exercises of public power that resulted in the [plaintiff] being deprived of his liberty for two and a half years, in circumstances where ultimately the asserted justification for that deprivation of liberty was not maintained."The primary judge's decision to uphold the PII claims [8]AIX20 v Director-General of Security [2023] FCA 1344. [9]Director-General of Security v AIX20 [2024] FCA 88. [10]Director-General of Security v AIX20 [2024] FCA 88 at [36].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON J

The plaintiff commenced the main proceedings on 15 August 2022, seeking: (1) declarations that the first and second ASAs and the decision not to take action in response to the Independent Review were invalid; (2) damages, including aggravated damages, for breach of a duty to take reasonable care in the exercise of the first defendant's powers and functions under the ASIO Act as well as for false imprisonment; and (3) an apology from the first defendant. The first and second defendants unsuccessfully sought summary dismissal of the main proceedings,[8] and their consequent application for leave to appeal was dismissed.[9] As Mortimer CJ put it in dismissing the latter application:[10]"What is at stake [in the main proceedings] is scrutiny of exercises of public power that resulted in the [plaintiff] being deprived of his liberty for two and a half years, in circumstances where ultimately the asserted justification for that deprivation of liberty was not maintained."The primary judge's decision to uphold the PII claims [8]AIX20 v Director-General of Security [2023] FCA 1344. [9]Director-General of Security v AIX20 [2024] FCA 88. [10]Director-General of Security v AIX20 [2024] FCA 88 at [36]. The first defendant provided discovery to the plaintiff by serving a list of documents and an affidavit, accompanied by a bundle of documents. The Director-General withheld from production the confidential documents, comprising 1,614 pages. The claims for PII were supported by two affidavits of the Deputy Director-General of Security, Michael Keith Noyes. One of those affidavits was an "open" affidavit filed in the main proceedings, the other was a "confidential affidavit" which was provided only to the Court on a "read and return basis".[11] [11]AIX20 v Director-General of Security (No 2) [2024] FCA 1130 at [8]. In consent orders made on 6 June 2024, the primary judge noted the plaintiff's intention to contest the PII claims in their entirety on the basis that the restricted counsel procedure, as defined in the notation to the consent orders, "would have the result that there is no countervailing public interest against the disclosure and use of the [c]onfidential [i]nformation" in the main proceedings. In the affidavit in support of the plaintiff's application to this Court, the restricted counsel procedure is summarised as follows:"[I]n addition to the plaintiff’s existing legal team, security-cleared counsel, Dr James Renwick SC and Ms Sarah Zeleznikow, would be briefed by the plaintiff on an undertaking to represent the interests of the plaintiff in those parts of his case requiring the use of material over which the Director-General has claimed [PII]. The undertaking would prohibit Dr Renwick SC and Ms Zeleznikow from disclosing that material to any person other than in closed court and subject to suppression or confidentiality orders made pursuant to [the FCA Act] or other relevant legislation." At a hearing before the primary judge on 2 August 2024, the claims were contested on the foreshadowed basis. There was no dispute between the parties about the principles to be applied in determining the claims.[12] [12]AIX20 v Director-General of Security (No 2) [2024] FCA 1130 at [15].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON J

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