Jaffarie v Director General of Security [2014] FCAFC 102
Citation:
Jaffarie v Director General of Security [2014] FCAFC 102
Parties:
SAYED AKBAR JAFFARIE v DIRECTOR GENERAL OF SECURITY and MIGRATION REVIEW TRIBUNAL
File number:
NSD 2374 of 2013
Judges:
FLICK, PERRAM AND WHITE JJ
Date of judgment:
18 August 2014
Catchwords:
MIGRATION – people smuggling – adverse security assessment by ASIO – security assessment misconstrues what constitutes a serious threat
ADMINISTRATIVE LAW – review of adverse security assessments – legitimate scope of judicial intervention –reasons provided to be read with considerable care
CONSTITUTIONAL LAW – naval and military defence – immigration and aliens – external affairs – security – Australia’s territorial and border integrity
EVIDENCE – public interest immunity privilege – claim upheld – assessments going to national security
Legislation:
Australian Constitution ss 1, 51(vi), 51(xix), 51(xxvii), 51(xxix), 61, 71
[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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AGLC
Jaffarie v Director-General of Security [2014] FCAFC 102
Case
[2014] FCAFC 102
Decision Date
CaseChat Overview and Summary
Jaffarie v Director-General of Security is a case that arose from a challenge to a security assessment conducted by the Australian Security Intelligence Organisation (ASIO) and the subsequent decision by the Minister for Immigration and Border Protection to refuse the applicant, Mr Jaffarie, a bridging visa. The Federal Court was tasked with reviewing the legality of the security assessment and the Minister’s decision. The core legal issues included whether the security assessment was irrational or unreasonable, whether the Minister failed to consider the necessary consequences of the decision, and the extent of judicial review over decisions affecting national security.
The court examined whether the security assessment by ASIO was flawed and whether the Minister’s decision to refuse the bridging visa was based on an erroneous interpretation of the security threat. The court rejected the arguments that the security assessment was irrational or unreasonable, noting the inherent difficulties in judicially reviewing decisions that pertain to national security. The court emphasized that while judicial review is available, it requires a cautious approach, particularly when evaluating the gravity of security risks. The court also found that the Minister did not err in relying on the security assessment and that the necessary consequences of the decision were adequately considered.
Ultimately, the Federal Court found that the security assessment was valid and that the Minister's decision was lawful. The court dismissed Mr Jaffarie’s application for judicial review, affirming the legitimacy of the security assessment and the Minister’s decision. The court concluded that the applicant’s grounds for review were without merit and ordered that the parties bring in Short Minutes of Orders to give effect to these reasons within 14 days.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The argument as to a denial of procedural fairness is rejected. Conclusions In providing advice to the Department on 17 June 2013, ASIO was discharging the function entrusted to it by s 17(1)(c) of the Australian Security Intelligence Organisation Act 1979 (Cth). The advice provided constituted a “statement in writing … expressing … advice” for the purposes of ss 35(1) and 36 of that Act. The confined meaning sought to be ascribed to para (aa) of the definition of “security” for the purposes of s 17 of the Australian Security Intelligence Organisation Act is rejected. The Director-General did not err in making the Final Appreciation which was furnished to the Department. Nor did the Minister err in relying upon that report. Nor did the Minister fail to have regard to the “necessary consequence” of the refusal of the bridging visa being Mr Jaffarie’s removal from Australia or his indefinite detention. In respect to that part of the matter remitted to this Court by the High Court’s order made on 14 November 2013, it follows that the security assessment made by ASIO is valid. It also follows that the challenge to the decision made in August 2013 refusing Mr Jaffarie a bridging visa pursuant to s 501 of the Migration Act also fails. But no order should be made as to costs. It is likely that Mr Jaffarie would have succeeded before this Court had the evidence been confined to that initially set forth in the Application Book and the Agreed Statement of Facts. It only became clear that the Application (as amended) had to fail when the Respondents thereafter tendered material further exposing ASIO’s reasons and to an extent greater than that set forth in the Unclassified Reasons. The tender of that additional material was, to some extent, the result of judicial intervention. One can hardly fault Mr Jaffarie for commencing the proceeding upon the basis of the material then available to him. It is concluded that each of the grounds upon which the Application for review as was advanced in this matter is to be rejected. The parties are to bring in Short Minutes of Order to give effect to these reasons within 14 days. I agree that the challenges of the applicant to the security assessment made by the Director General of Security dated 17 June 2013 and to the decision of the Minister for Immigration and Border Protection made on 25 September 2013 refusing his application for a Bridging E (Class WE) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) should be rejected. I also agree with the joint reasons of Flick and Perram JJ. I add the following. As the joint reasons indicate, the grounds of the applicant’s challenge to the assessment and decision developed during the progress of the matter in this Court. The applicant articulated his revised grounds in a series of documents in the form of an amendment to the application filed in the High Court on 10 October 2013. Some proposed amendments were disallowed by this Court. Ground 18, which relates to the decision of the Minister, was added by leave on the afternoon of the resumed hearing on 22 May 2014. It provides:[18]Further and in the alternative, the decision identified in paragraph 12 involved jurisdictional error in that the Second Respondent failed to have regard to the necessary consequence of the decision that the Applicant would … either be removed from Australia or indefinitely detained: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38.The decision identified in paragraph 12 was the refusal by the Minister personally to issue a bridging visa. It was wrongly said in that paragraph to have been made on 26 September 2013, but nothing turns on that mistake. Paragraph 12 was the counterpart of paragraph 10 in the application filed in the High Court on 10 October 2013.
Ratio Decidendi
Legal Principle Established
This argument is rejected.Irrationality, illogicality and unreasonableness? A further ground of review relied upon by Mr Jaffarie asserts that the security assessment made by the Director-General is “irrational, illogical or unreasonable”. A variant of this ground, perhaps, was that ground which maintained that there had been a failure “to have regard to the necessary consequence of the decision that the applicant would be either … removed from Australia or indefinitely detained…”. The facts which make out the particular ground of review of “irrationality, illogicality or unreasonableness” in administrative decision-making are the exception, rather than the rule. And more so is there reason for caution where decision-making affects national security. The extra need for caution where an applicant seeks judicial review of a decision affecting national security and where assessments have been made as to security is well recognised: e.g., Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 74. Brennan J there observed:… The gravity of the risk against which protection is needed affects the scope of the inquiries which it is prudent to make, and thus the degree of relevance between the intelligence which the Organization might legitimately assemble and the conduct which is apprehended. But, it may be said, how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded.See also: Sagar v O’Sullivan [2011] FCA 182 at [83] to [90], (2011) 193 FCR 311 at 326 to 327 per Tracey J; Parkin v O’Sullivan [2006] FCA 1413 at [17], (2006) 162 FCR 444 at 448 per Sundberg J. Notwithstanding an accepted need for caution, the present ground of review remains an available ground upon which the decision of the Director-General may be impugned. “Irrationality” or “unreasonableness”, according to Lord Scarman, “is too often treated as a rare bird which is not to be allowed any very extensive flight”: “The Development of Administrative Law: Obstacles and Opportunities” [1990] PL 490 at 492. Whatever may be the prospects of success of such an argument in the present case, it is respectfully considered that such prospects should not distract attention from the need to ensure that the conduct of the Director-General – like all exercising statutory power – is always susceptible to judicial scrutiny. And this includes the need to carefully scrutinise the reasons for the decision provided by the Director-General, or at least so much of that reasoning process as has been disclosed to Mr Jaffarie.