FEDERAL COURT OF AUSTRALIA
Imad v Director-General of Security [2024] FCA 1115
File number: VID 501 of 2024 Judgment of: ROFE J Date of judgment: 24 September 2024 Catchwords: PRACTICE AND PROCEDURE – migration –cancellation of visitor visa at the recommendation of the Director General of Security – adverse security assessment – discovery of documents relating to matters of national security – where production of discovered documents is resisted – claims of public interest immunity – appropriateness of the judicial examination approach – appropriateness of a closed court approach – balance of competing public interests – national security interests outweighed private rights of an offshore non-citizen – immunity upheld.
PRACTICE AND PROCEDURE – discovery – where production of discovered documents is resisted – privilege – claim of legal professional privilege – documents prepared by in-house legal services team – dominant purpose of the communication considered – privilege upheld.
Legislation: Australian Security Intelligence Organisation Act 1979 (Cth)
Evidence Act 1995 (Cth)
Migration Act 1956 (Cth)
National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth)
Cases cited: Al Rawiv Security Service [2012] 1 AC 531
Alister v The Queen (1984) 154 CLR 404
Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83
Chief Commissioner of Police v Crupi (2023) 72 VR 280
Chu Sing Wun v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314
Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595
Commissioner of Police, NSW v Guo (2016) 332 ALR 236
Commonwealth v Northern Land Council (1993) 176 CLR 604
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532
HT v The Queen (2019) 269 CLR 403
Leghaei v Director-General of Security [2005] FCA 1576
Mao v Commonwealth of Australia [2012] NSWSC 370
Sagar v O'Sullivan (2011) 193 FCR 311
Sankey v Whitlam (1978) 142 CLR 1
SDCV v Director-General of Security (2022) 277 CLR 241
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 158 Date of last submissions: 23 August 2024 Date of hearing: 27 August 2024 Counsel for the Applicant: S Sharify with J Lessing Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: B Lim Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: D Brown (solicitor advocate) Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
VID 501 of 2024 BETWEEN: HOSNI IMAD
Applicant
AND: DIRECTOR-GENERAL OF SECURITY
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- Case
- [2024] FCA 1115
- Decision Date
CaseChat Overview and Summary
The court examined the Director-General's claims of public interest immunity, which were grounded on the potential harm to national security if the documents were disclosed. The Director-General provided detailed evidence from a senior officer within the Australian Security Intelligence Organisation, who asserted that the disclosure of the documents would be highly prejudicial to national security. The court considered the gravity of the consequences if national security was compromised and found that the Director-General's claims were not baseless but were made with careful consideration of the potential risks. The court also reviewed the Director-General's claims of legal professional privilege over documents prepared by the in-house legal services team. The court assessed the dominant purpose of the communications and concluded that the purpose was indeed to receive legal advice, upholding the claims of privilege.
In conclusion, the court upheld the Director-General's claims of public interest immunity and legal professional privilege, determining that these claims were necessary to protect national security interests. The court found that the potential harm to national security if the documents were disclosed outweighed the applicant's private rights to access the documents. As a result, the Director-General was excused from producing the disputed documents to the applicant. The court also reserved the matter for costs and ordered a case management hearing to timetable the matter for trial.
The orders of the court included upholding the Director-General's claims of public interest immunity and legal professional privilege, reserving costs, and scheduling a case management hearing to manage the progression of the trial.
Orders
Orders of the court
1. The first respondent’s claims for public interest immunity and legal professional privilege over the disputed documents are upheld.
2. The proceeding be listed for case management hearing at the Court’s earliest convenience to timetable this matter for trial.
3. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Director-General submits that the applicant will still have an opportunity to litigate his procedural fairness ground, and the public interest immunity claims do not impede his ability to advance that ground. Indeed, at least some details about ASIO’s consideration of the inability to afford the applicant a hearing in advance of furnishing the impugned Assessment have already been disclosed to the applicant in the documents produced, and in the TSOG. 4.4 Consideration As set out at [59] above, the Court must engage in a balancing exercise to weigh the conflicting two aspects of the public interest: whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates: Alister v The Queen at 412 (per Gibbs CJ). In approaching the weighing exercise, I am mindful that a decision to either uphold or reject a claim for public interest immunity can, and often will, have the potential to produce very grave consequences: Chief Commissioner of Police v Crupi (2023) 72 VR 280 at [105] (per Emerton P, Niall and Taylor JJA). Such is the case here. The applicant notes that there is great potential for abuse if baseless public interest immunity claims are made in relation to information which cannot rationally be said to have a real possibility of prejudicing national security. I consider that the claims as to public interest immunity in this case are not baseless or lightly made. I accept the evidence given by Mr Noyes in his open and confidential affidavits. Mr Noyes plainly has extensive experience in the areas of intelligence gathering, counter-terrorism and counter-espionage. It is evident that care has been taken in the preparation of his affidavits. The Open Noyes Affidavit is 19 pages in length and — to the extent that he is able without revealing security intelligence — he provides a detailed explanation of the categories of information and documents in respect of which public interest immunity is claimed and the reason why their disclosure would be prejudicial to Australian national security. Mr Noyes, a very senior ASIO officer, has given considered evidence on oath as to the national security implications if the public interest immunity is not upheld. In making his assessment as to the risk of harm to Australia’s security if the documents were disclosed, Mr Noyes’ evidence was that in making his assessment he had regard to both the likelihood of the particular harm eventuating, and the gravity of the consequences if it did. Mr Noyes’ assessment of risk is based on his years of experience and expertise developed over many years of undertaking the collection of security intelligence, conducting security assessments and working on security and counter-terrorism investigations. Mr Noyes personally reviewed the documents in question and gave his opinion as to the significant national security implications if those documents were to be disclosed. It is Mr Noyes’ opinion that it would be highly prejudicial to the public interest (specifically Australia’s national security) for the information in the documents to be disclosed. Given his current position, his experience and expertise, I attach significant weight to that opinion, and the opinions that Mr Noyes expresses in his affidavit about the impact of disclosure of the documents sought.