Jaffarie v Director General of Security

[2015] HCATrans 13

[2015] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2014

B e t w e e n -

SAYED AKBAR JAFFARIE

Applicant

and

DIRECTOR GENERAL OF SECURITY

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

MIGRATION REVIEW TRIBUNAL

Third Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 10.09 AM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   If the Court pleases, your Honours, I appear with my learned friend, MR S.A. BOGAN, for the applicant.  (instructed by SBA Lawyers).

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MS A.M. MITCHELMORE for the first and second respondents.  (instructed by the Australian Government Solicitor).

FRENCH CJ:   I note there is a submitting appearance for the third respondent.  Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.  As your Honours will have seen, this matter involves a question of construction of the definition of “security” in the ASIO Act and, in particular, subsection (aa) of that definition which is set out in the Full Court reasons at page 25 of the book.  Could I just take your Honours to that first?  The starting point is that “security” is defined to mean in subsection (a):

the protection of, and of the people of, the Commonwealth and the several States and Territories from –

and then there is a range of events.

BELL J:   We are looking at (aa), are we not?

MR PRINCE:   Yes, and I start with (a) to point out the contradistinction because when one gets to (aa) the definition is for “protection of Australia’s territorial and border integrity from serious threats”.  The Full Court approached our construction, or our proposed construction of that section, as though it was a proposition that there were some exclusions from it.  Our construction rather was that the approach to that definition needs to be taken in its full context and that is it is directed towards threats to the nation.  It appears in security legislation which is designed and directed towards the preservation of the State and the established order of affairs of the State.  There are some matters in (a) which may look to overlap a little with what is now criminal law but (aa) does not do so.

Obviously, there is an issue of tension in overlapping the role of security forces generally in a democratic society with the role of law enforcement police.  That issue is really exposed by the Director‑General’s construction of the meaning of (aa) which incidentally the Full Court found to be incorrect, that is, that definition in (aa) encompasses and embraces people‑smuggling activities or engagement in people‑smuggling activities, hence giving ASIO authority and jurisdiction over what is essentially a police or criminal law enforcement matter. 

In my submission, there is a tension within the Full Court’s decision.  If I could take your Honours to that decision of the joint judgment - I should say Justice White agreed with the joint judgment, save to one point and that point does not bear on this issue.  Can I take your Honours to paragraph 79 at page 47 of the book.  In that paragraph, there is a recitation of some of the examples pursued and exchanges with counsel as to the definition, as to whether or not smuggling nuns into Australia or smuggling some fruit pickers into Australia to assist in harvesting could constitute a serious threat.  That proposition was rejected. 

The proposition that all people smuggling would represent a threat to Australia’s territorial and border integrity was rejected, but importantly it was accepted at paragraph 81 by the Full Court that that is the approach and that is the definition which was applied, as one would find it, in the summary of reasons which were produced by ASIO to explain the adverse security assessment.  Your Honours will see that at 81. 

Can I take your Honours to those unclassified reasons at page 114.  What your Honours will see in the middle of the page, the first paragraph after the dot points, is the proposition as follows:

People smuggling poses a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented individuals to gain entry to Australia, potentially including individuals of security concern.

That becomes really the central article of faith in the process by which the security assessment was undertaken.  Nothing changes from that characterisation of the meaning of “security” in (aa) as one goes through the Truncated Final Appreciation or, as I will come to it, there is even evidence that the Full final Appreciation, which was not before the court and which was secret, also proceeded on the same basis and that evidence came from Mr Irvine, in cross‑examination, to which I will turn in a moment.

If I could take your Honours to what was called the “Truncated Final Appreciation” at page 96.  This matter was remitted by your Honour Justice Bell to the Federal Court, as your Honour might recall, and during the course of that proceeding it was supposed to proceed on a statement of agreed facts which had been ascertained, but as matters progressed and inquiries were made by the court, evidence was then put forward by the respondent, including what appears at 96 which is the Truncated Final Appreciation.

It is the document upon which the security assessment was made, with some aspects of it taken out, but if your Honours go to paragraph 5 on page 96 you will see exactly the same construction of the definition of “security” in (aa) as I have just taken your Honours to in the summary document at page 114.

Now, in the Full Court’s decision at 81, their Honours were content to accept that the approach which is exposed by the summary document at 114 involved a view of people smuggling as constituting a serious threat to territorial border integrity, which is inconsistent with what paragraph (aa) says.  Their Honours then go on to say at 83 that that success that the applicants would have had evaporates when regard is had to the Truncated Final Appreciation. 

However, in my submission, the Truncated Final Appreciation does nothing to change the position from the construction that was taken or exposed in the unclassified reasons.  That is unsurprising because these documents are simply describing the assessment which was undertaken.  They are describing the same event.  That was confirmed in cross‑examination by ‑ ‑ ‑

FRENCH CJ:   What is the premise underlying this, that people smuggling cannot constitute a serious threat to territorial and border integrity?

MR PRINCE:   No, your Honour.  We have never put that.

FRENCH CJ:   Yes, well what is the underlying premise?

MR PRINCE:   The premise is that that approach that your Honour saw in paragraph 5 and the other paragraph supplies the connection between engagement in people smuggling and serious threats to Australia’s territorial and border integrity, that is, it ends up creating a fork in the road of the inquiry so that the decision‑maker is no longer looking at whether or not the conduct or likely conduct represents a serious threat to Australia’s territorial and border integrity because that concept has been equated with involvement in people smuggling or even involvement in serious people smuggling.  The focus of the inquiry then becomes and only becomes whether or not the applicant has been engaged in people‑smuggling activities or likely to engage in people‑smuggling activities.

BELL J:   Just so I understand where you are in terms of the submissions, the first error that you assert in the reasons below is the construction of the definition in section 4 – subparagraph (aa).  Now, the submissions that you have been developing do not seem to be directed to that point.  As I understand it, the contention that you advanced before the Full Court and that you advance in the submissions is that that definition is to be given a meaning that imports considerations of how the expression “territorial and border integrity” is found in international law.  That was rejected by the Full Court.  Now, you put the same arguments, in essence, in your submissions here.

MR PRINCE:   Yes.

BELL J:   You assert that the Full Court, having rejected your confined definition, did not in fact go on to say more than that the words are to be given their ordinary meaning.

MR PRINCE:   Yes.

BELL J:   In your reply, when you deal with the fact that you were picked up for using “boundary” instead of “border”, accidentally, you make the commonsense point, border is border.  Is there something more you want to put on your first submission going to the asserted error in the construction of the provision as distinct from the way it was applied?

MR PRINCE:   Only that the two matters are interconnected in this way.  Clearly the Full Court accepted that there must be something more than involvement in people‑smuggling activities.  That bridge was crossed by the Full Court.  Once they did that, necessarily there is an evaluative approach that needs to be then taken.  We say that automatically gets us our error because by crossing that bridge ‑ ‑ ‑

BELL J:   I am sorry, Mr Prince, but ‑ ‑ ‑

MR PRINCE:   I am coming to an ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ the error is not in the Full Court’s construction of the provision but in its analysis of your complaint respecting the Director‑General’s determination.

MR PRINCE:   Well, as I said, your Honour, there is tension in the Full Court’s decision because even though they get it right, in my submission, in 81 in that sense, they come back at 83 to effectively revert to the same test and if your Honours look at 83 and the dot points and the features that their Honours relied upon to suggest that this was, or could be, a threat to security, it is all about the extent of the involvement in people‑smuggling activities.

BELL J:   The expression which the Full Court concluded was to be given its ordinary meaning was “territorial and border integrity from serious threat”.

MR PRINCE:   Yes.

BELL J:   Now, in 83, one sees the Full Court extracting from the Truncated Final Appreciation document material as to:

“an extensive Indonesia‑based people smuggling syndicate” –

and the assertion that the applicant was a prominent member of that syndicate.

MR PRINCE:   Yes, but there is a disconnect and one sees it at the top of page 48 of the book because the court then goes to talk about the:

assessment as to why Mr Jaffarie was a “serious threat” –

What is missing is to what?  To Australia’s territorial and border integrity or to engagement in people‑smuggling activities, and by dropping the descriptor, it explains why their Honours have gone back to focus on his level of involvement in people‑smuggling activities.  There could indeed be an extensive network of Indonesia‑based people smuggling of nuns into Australia.  It does not answer the question that was posed or deal with the issue that was posed in 79 and then picked up in 81. 

FRENCH CJ:   Well, nuns, saints or sinners, the systematic operation for the movement of undocumented people into Australia can properly, can it not, constitute a breach of Australia’s territorial or border integrity?

MR PRINCE:   Not in my submission, unless there is something more to it.

FRENCH CJ:   Is that because there is an international law overlay?

MR PRINCE:   No, no.  Unless there is something more to it because one needs to always keep in mind it is threats to Australia’s territorial and border integrity.  The fact that an administrative law about having papers in order might be breached on occasion does not alter the integrity of the border or the system.  In fact, the very fact that those people are automatically taken into immigration detention almost as soon as they arrive, and not released into the community, is quite a good indication that this does not actually pose a threat to Australia’s territorial and border integrity.

It poses a law enforcement issue and it poses an issue perhaps of resources, but Australia is just as much the State after people might have broken those laws or in fact after they might have arrived without committing any offence, than it would be beforehand.  So that ‑ ‑ ‑

BELL J:   This is to embrace the submissions that failed with respect to the construction, is it not, because it is a notion that Australia’s territorial and border integrity is to be understood in a context of attacks to the oneness of the nation, or whatever the formulation was that was rejected.

MR PRINCE:   Well, that formulation as it is stated to have been rejected, does not, in my submission, really completely encapsulate the position that was being put to the Full Court.  The suggestion was that something more is needed than the people smuggling of people into Australia, because one needs to be directed to the question of whether in the particular instance of the people‑smuggling activity, there was occasioned by that activity a serious threat to Australia’s territorial and border integrity, for example, if people were to be smuggled into Australia who would then set about organising succession movements in particular States or who would become a fifth column who would threaten the integrity of the State.

Clearly, that would involve a threat to Australia’s territorial or border integrity.  Possibly, if people had been smuggled in, who had engaged in terrorist activities, or people were being smuggled in from terrorist hotspots to Australia, that could constitute a serious threat to Australia’s territorial and border integrity because it would be creating an insurgency in the country.  But - and this is why the Full Court ultimately was driven to accept that one needs to look at the subject matter of the smuggling operation, that is, are people being brought in who have a rightful entitlement to asylum and just want to have a peaceful life or are people being brought in who are going to be agents provocateurs or is a threat to Australia’s territorial and border integrity being engaged in by the operation in which the person is said to have been engaged.

In my submission, that analysis never occurred in this case because by conflating and equating the mere act of involvement in people‑smuggling activities with serious threats to territorial and border integrity, the Director‑General put the glasses down and did not go any further and look at the subject nature of what was happening and the dot points at 83 do not deal with that.

I see the light.  Can I just give your Honours some references to the transcript cross‑examination that makes this point good.  That is that approach in the earlier appreciation which the Full Court accepted was wrong was accepted by Mr Irvine as having passed across both the truncated final reasons and the final reasons and your Honours will see that at AB 179, point 25 to 30 and your Honours will see it also at AB 180, point 25 and then 36 to 45 and Mr Irvine also accepted that this construction of (aa), which one finds in paragraph 5 of the Truncated Final Appreciation and the summary document, which the Full Court accepted was wrong, was the basis upon which he made his decision.  That is AB 181, point 1 to 3; AB 195, point 20 to 40 and also one can see it in paragraph 2 of the judgment at AB 20, and that was the operative part of the decision. 

So my client is left in a position where he faces indefinite detention.  Justice White’s analysis of Australia not owing non‑refoulement obligations unless a protection visa application is made, in my submission is wrong.  Those are two distinct concepts.  If he cannot be returned to Afghanistan because he is a Hazara Shia - Shias are the very people that ISIS are going after - then he can languish in indefinite detention and all he has ever had is a first instance hearing, in effect, before a Full Court of the Federal Court in which there is a fundamental tension between one finding that their Honours made and the finding upon which their Honours ultimately rejected this case.  There is also an original jurisdiction application in the court which remains ‑ ‑ ‑

BELL J:   Mr Prince, my recollection, correct me if I am wrong, was that the decisions that were not susceptible of remitter stood or fell on the determination of the issue that is the subject of the Full Federal Court.

MR PRINCE:   That was right at the time, your Honour.  After matters evolved with the provision of further evidence by the respondent over time, a further issue arose in that it became obvious that my client had not been

told or had not been given aspects of the final appreciation which were suitable for the Director‑General to put forward in advance of his own case openly in the proceedings but which ‑ ‑ ‑

BELL J:   Is this the procedural fairness issue?

MR PRINCE:   Yes, yes.  So, it arose before the Full Court of the Federal Court because of procedure of the evidence.  It would also logically have to arise in the other decisions which were reserved in the original jurisdiction case because ‑ ‑ ‑

BELL J:   If your challenge to the Full Federal Court’s determination adversely to your procedural fairness issue respecting the matter, the subject of remitter, were to stand ‑ ‑ ‑

MR PRINCE:   Well, it would not bind this Court.

BELL J:   Understood.

MR PRINCE:   Thank you, your Honours.

FRENCH CJ:   Thank you.  We will not need to trouble you, Mr Williams.

The applicant seeks special leave to appeal against a decision of the Full Court of the Federal Court dismissing a part of a matter remitted to the Federal Court by this Court on 14 November 2013.  In our opinion, no ground warranting the grant of special leave is made out.  The decision of the Full Court in relation to an alleged want of procedural fairness on the part of the first respondent was an evaluative determination reasonably open to it.  The court also adequately identified the relevant construction of the term “Australia’s territorial and border integrity from serious threats” in paragraph (aa) of the definition of “security” in the Australian Security Intelligence Organisation Act 1979. The court accepted the approach taken by the first respondent and rejected the narrower meaning for which the applicant contended. We are not satisfied that the application of the criterion in paragraph (aa) of the definition to the Director‑General’s assessment is attended by sufficient doubt to warrant the grant of special leave. The Court will dismiss the application for special leave with costs.

AT 10.34 AM THE MATTER WAS CONCLUDED