Imad v Director-General of Security

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FEDERAL COURT OF AUSTRALIA

Imad v Director-General of Security [2024] FCAFC 138

Appeal from: Imad v Director-General of Security [2024] FCA 1115
File number: VID 1034 of 2024
VID 501 of 2024
Judgment of: BROMWICH, THAWLEY AND SHARIFF JJ
Date of judgment: 30 October 2024
Catchwords:

PRACTICE AND PROCEDURE – public interest immunity – where primary judge upheld the Director-General of Security’s claim of public interest immunity over documents relating to adverse security assessment (ASA) against applicant – whether primary judge erred in upholding public interest immunity claim – whether primary judge erred in not reviewing documents subject to claim – Court’s power to review documents subject to public interest immunity claims – HELD: Court reviewed the documents – leave to appeal granted; appeal dismissed

MIGRATION – judicial review application of ASA made by the Director-General for the purposes of a decision by the Minister for Immigration, Citizenship and Multicultural Services not to revoke the cancellation of the applicant’s visa under s 134C(3) of the Migration Act1958 (Cth) – where the applicant’s visa had been cancelled under s 134B of the Migration Act – content of the Director-General’s duty to afford the applicant procedural fairness in conducting the s 134C ASA – where applicant had been located in Gaza, an active conflict zone at the relevant time – where the applicant was not afforded an opportunity to be heard on the ASA – whether the Director-General had a duty to notify the applicant or his family of the s 134B cancellation – whether the Director-General had a duty to conduct interview with the applicant remotely – whether the Director-General had a duty to invite the applicant for an interview in the Australian Embassy in Cairo – where evidence that the applicant could not safely be interviewed in Gaza – HELD: application dismissed – the Director-General did not breach the implied duty to afford the applicant procedural fairness

Legislation:

Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1)(c), 35, 36, 36(1)(b), 36(2), 37(1), 37(5), Pt IV

Crimes Act 1914 (Cth) Pt IAC

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153

Federal Court of Australia Act 1976 (Cth) s 32AD

Judiciary Act 1901 (Cth) s 39B

Migration Act 1958 (Cth) ss 134A, 134B, 134C, 134C(3), 134E, 134E(2)(a), 134E(2)(b), 134E(4), 476, 476(1)(a); Pt 2, Div 3, Sub-div FB

Cases cited:

Alister v The Queen [1984] HCA 85; 154 CLR 404

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766

Church of Scientology v Woodward [1982] HCA 78; 154 CLR 25

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576

Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604

Conway v Rimmer [1968] AC 910

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514

D v National Society for the Prevention of Cruelty to Children [1978] AC 171

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Details
Case
[2024] FCAFC 138
Decision Date

CaseChat Overview and Summary

The matter of Imad v Director-General of Security involved a judicial review application brought by the applicant against the decision of the Director-General of Security to cancel his visitor visa based on an adverse security assessment. The primary judge upheld the Director-General's claim of public interest immunity over certain documents relating to the adverse security assessment, and dismissed the applicant's application for judicial review. The applicant appealed against the primary judge's decision. The key legal issues in the case were whether the primary judge erred in upholding the claim of public interest immunity, and whether the primary judge erred in not reviewing the documents subject to the claim. The court considered the principles set out in Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) and Rankine v State of South Australia, which state that a court should not inspect documents subject to a claim for public interest immunity as a matter of course, but may do so where there are concrete grounds to believe that inspection would demonstrate the documents should be produced. The court also considered the Director-General's duty to afford the applicant procedural fairness in conducting the adverse security assessment, and whether the Director-General had a duty to notify the applicant of the visa cancellation, conduct a remote interview, or invite the applicant for an interview at the Australian Embassy in Cairo. The court held that the primary judge did not err in upholding the claim of public interest immunity, and did not err in not reviewing the documents subject to the claim. The court found that the Director-General did not breach the implied duty to afford the applicant procedural fairness. The application for leave to appeal was granted, but the appeal was dismissed. There was no order as to costs.

Orders

Orders of the court

1. The application for leave to appeal dated 2 October 2024 and filed on 3 October 2024 be granted.

2. The appeal be dismissed.

3. There be no order as to costs.

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

Background

Background to the litigation

The Director-General accepted that if, in the circumstances, procedural fairness required him to take one or other of the steps asserted by the applicant, then the Court would also accept that the denial of procedural fairness was material in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610. It was only the content of procedural fairness which was at issue, not materiality if a breach of procedural fairness were otherwise established.Additional facts and evidence In November 2023, the Australian Government opened the opportunity for visa applications to be made by individuals affected by the war in Gaza. The applicant’s brother, who resides in Australia, applied for visas for several members of his family. On 13 November 2023, the applicant and his wife, daughter and mother were each granted visitor visas. In order to obtain transit to Australia, each of them needed to cross the border at Rafah from Gaza to Egypt. The evidence of the applicant’s brother is that the Department of Foreign Affairs and Trade had informed him that only the applicant’s daughter had been approved to cross the border into Egypt, but not the applicant, his wife or his mother. The evidence of the applicant’s wife is that this was a decision of the Egyptian authorities, the reasons for which were not known. A few weeks later, the applicant’s wife went to the Rafah border crossing with his daughter and successfully crossed into Egypt. On 1 January 2024, the applicant’s wife and daughter arrived in Australia. Eventually, the applicant’s mother was also permitted to cross the border to Egypt and she has since arrived in Australia. They have each subsequently applied for a protection visa. On 22 January 2024, officers of ASIO interviewed the applicant’s wife. During the course of that interview, she was asked about the circumstances in which her family had sought to cross the border into Egypt, and whether the applicant had been denied entry on the basis that the Egyptian authorities considered him to be a member of Hamas. She was asked other questions relating to whether the applicant was a member of Hamas or otherwise involved in political activity. She denied that this was the case, and explained that in her opinion the applicant was a peaceful man who worked as a painter. On 21 February 2024, the applicant’s visitor visa was referred to ASIO for assessment, and the SA Branch commenced an investigation. On 1 March 2024, the Director-General furnished the 134B ASA on the Minister. As noted above, the 134B ASA recommended that the applicant’s visitor visa be cancelled on the basis that he was suspected to have maintained active associations with individuals affiliated with Hamas or PIJ and accordingly he might be a direct or indirect risk to security. To the extent that it was not redacted, the decision brief for the 134B ASA further stated that ASIO had assessed that, for practical reasons, it was unable to give the applicant an opportunity to respond to credible, relevant and significant matters underpinning its assessment including, in summary, because:(a)ASIO officers were unable, for reasons of practicality and safety, to travel to the applicant’s location to conduct a security assessment interview as he was located in Gaza which was an active conflict zone;(b)ASIO was unable to conduct a remote interview as it was unable to control the environment in which such an interview would take place; and(c)for the same reasons, ASIO was unable to send the applicant a written security assessment questionnaire.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the foregoing reasons, the application for judicial review should be dismissed. OVERALL CONCLUSION In relation to the application for leave to appeal, such leave should be granted, but the appeal should be dismissed because the primary judge’s order upholding the claim for public interest immunity should not be disturbed. The application for judicial review must be dismissed. In all the circumstances, we consider that there should be no order as to costs. If either the Director-General or the applicant seeks a different order, that may be sought in the first instance by an email to our associates within seven days, also proposing any process for determining such an application for costs.

Ratio Decidendi

Legal Principle Established

As to the relevant principles, the applicant relied upon Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 at [67]-[69] in which Wigney J stated:[67]It is not always necessary for the court to inspect the documents which are the subject of a claim for public interest immunity in order to determine the claim and the court should not do so as a matter of course: [Commonwealth v] Northern Land Council [(1993) 176 CLR 604] at 617.[68]Inspection may not be required where the claim of public interest immunity is a “class” claim based on the status of the documents as Cabinet documents and there is no apparent countervailing public interest in the proper administration of justice: Northern Land Council at 617; Spencer [v The Commonwealth (2012) 206 FCR 309] at [33]. Even in such a case, however, the court may inspect the documents to determine whether they “in truth” fall within that class: Northern Land Council at 617.[69]Otherwise, inspection will generally only be necessary or appropriate where it is apparent that the documents are or may be relevant and significant to the court proceedings in question. In those circumstances, inspection would be appropriate to “test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity”: Spencer at [33]; see also Northern Land Council at 619; [State of New South Wales v Public Transport] Ticketing Corporation [[2011] NSWCA 60] at [65]. The applicant also referred to the useful summary of principles in Rankine v State of South Australia [2022] SASCA 18 at [16]-[18] (Livesey P, Lovell and Doyle JJA). Their Honours stated (footnotes embedded):[16]As for inspection, it has been said that the Judge should not look at the documents unless persuaded that inspection would be likely to demonstrate that production will be ordered. The Court must have “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”. Where the balance lies in favour of production, the Court will generally inspect so as to satisfy itself that production is necessary:… the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v Rimmer [[1968] AC 910]. However, where the objection is to the disclosure of a document because it belongs to a class, and the Minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled. [Sankey v Whitlam (1978) 142 CLR 1 at 46 (Gibbs ACJ)][17]The Court will not exercise the power to inspect as a matter of course, at least in relation to documents within a class that is often recognised as immune from disclosure, such as documents recording cabinet deliberations. Relevant considerations will include the nature of the objection and the reasons given for it; the Court will check whether the objection is taken in proper form by an appropriate person who has inspected the documents personally.[18]Where the Court entertains doubt about where the balance of public interest lies, it should generally inspect the documents. That will be so even where the reasons for the objection are in proper form and sufficiently stated. Of course if the reasons are not clearly expressed, the Court will “have to see the documents before ordering production” [Conway v Rimmer at 953].