Jaffarie v Director General of Security & Ors
[2015] HCATrans 46
[2015] HCATrans 046
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S191 of 2013
B e t w e e n -
SAYED AKBAR JAFFARIE
Plaintiff
and
DIRECTOR GENERAL OF SECURITY
First Defendant
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Defendant
MIGRATION REVIEW TRIBUNAL
Third Defendant
BELL J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO SYDNEY
ON WEDNESDAY, 4 MARCH 2015, AT 10.52 AM
Copyright in the High Court of Australia
MR S.E.J. PRINCE: If the Court pleases, your Honour, I appear with my learned friend, DR S.A. BOGAN, for the plaintiff in that matter. (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 defendants. (instructed by Australian Government Solicitor)
MR PRINCE: There are two competing sets of orders, your Honour.
HER HONOUR: Yes. Would you just bear with me one moment, Mr Prince? I have two files in front of me ‑ ‑ ‑
MR PRINCE: Yes, your Honour.
HER HONOUR: ‑ ‑ ‑ and I am just trying to turn up the papers in relation to this argument. Yes, thank you.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Yes.
MR PRINCE: There are two competing sets of orders which are sought. The first and second defendants seek to strike out the proceedings, presumably in a summary way, at this directions hearing.
HER HONOUR: Yes. Mr Prince, I think properly what I have before me is the summons filed by the first and second defendants.
MR PRINCE: Yes. The Registry indicated to my instructing solicitor, your Honour, that we did not need a summons for directions because the matter would be coming back on for directions.
HER HONOUR: Yes, yes. Are the parties content for you to address first?
MR PRINCE: I certainly am.
MR WILLIAMS: For our part, yes, your Honour.
HER HONOUR: Yes, very well, Mr Prince.
MR PRINCE: Thank you, your Honour. The orders that are sought by the plaintiff are set out at page 3 of the submissions of the plaintiff. Does your Honour have that?
HER HONOUR: Yes, I do. Mr Prince, the issue that you seek to agitate in relation to the three decisions that were not the subject of the remitter is the issue that was determined by the Federal Court, is it not?
MR PRINCE: No, your Honour, it is not, but different considerations apply. Your Honour may recall from the written submissions that were filed on behalf of the plaintiff that there was a drip‑feed of information from the respondents, notwithstanding that there was an agreed statement of facts when the matter was remitted by this Court ‑ ‑ ‑
HER HONOUR: Yes.
MR PRINCE: ‑ ‑ ‑ and notwithstanding that there was an agreed statement of facts, the Minister then filed a considerable number of affidavits ‑ ‑ ‑
HER HONOUR: Yes.
MR PRINCE: ‑ ‑ ‑which, by varying degrees at varying times as the arguments developed in the case, revealed more and more information which had not been revealed before.
HER HONOUR: Yes.
MR PRINCE: There is some criticism in the Full Court’s decision about the arguments evolving but, of course, the arguments evolved because of the way in which the evidence fell out and also because there were matters which the Full Court itself raised as to problems with the approach taken by the respondents. Those matters throw up for consideration two issues; first of all, in terms of the decisions which were not remitted – perhaps I can deal with this best by going to the proposed amended application for an order to show cause which is at the end of the plaintiff’s submissions.
HER HONOUR: Yes, I have that.
MR PRINCE: The decisions which were not remitted – if your Honour goes over to page 4, the decisions at paragraphs 6, 7 and 8. Paragraph 8; that decision was effectively a review of the decision in paragraph 6 ‑ ‑ ‑
HER HONOUR: But, I think, Mr Prince ‑ ‑ ‑
MR PRINCE: It will take a little bit of time to explain, your Honour.
HER HONOUR: All right.
MR PRINCE: The timing is important because the decision in paragraph 6 is a decision that was taken – that is the operative decision that put my client into incarceration, and that decision was made at a point in time before the Minister had been provided with a copy of the final appreciation. The decision which was the subject of the proceedings in the Full Court is the decision that your Honour will see at paragraph 9, which occurred on 30 August which occurred at a point in time after the Minister had been given a copy of the final appreciation.
The final appreciation is the set of reasons in support or the explanation for the adverse security assessment. That document is a secret document, but large portions of it – in fact, the majority of it – was disclosed by the Director‑General in open court in support of his case in the course of the proceedings in the Full Court of the Federal Court.
What has become apparent is that the Minister has made a decision in paragraph 6 in the absence of the final appreciation, that is, with nothing more than a line from ASIO identifying a conclusion that there had been an adverse security assessment. My client was not told that there was no supporting material, there was only the certificate, that the Department had not even made any inquiries to find out, or been provided with, the foundation or the basis of that assessment and had not given any consideration to it.
Much less was my client given any opportunity to address any of the matters which were in the final appreciation, or that part of it which could be disclosed, as we now know from the Director‑General voluntarily disclosing such matters to the court. So, that issue of the initial decision to cancel my client’s visa, which led to his incarceration, was a decision which has never been the subject of any judicial scrutiny.
It is a matter upon which the Full Court did not express any conclusion or opinion. The only decision which the Full Court addressed in terms of procedural fairness, was the decision in paragraph 9 and that was merely a decision to refuse to give a bridging visa to get my client out of incarceration but the operative decision to put him in, in the first place, has never been the subject of any judicial scrutiny and ‑ ‑ ‑
HER HONOUR: Mr Prince, if I could just interrupt you for a moment. Your procedural fairness point is that the applicant was not given notice of the aspects of the material upon which the Director‑General made the assessment sufficient to enable him to respond meaningfully at the point of the assessment. Is that not the gravamen of it?
MR PRINCE: No, your Honour, that was the matter which was before the Full Court and that is not part of the remitted matter and it is not part of our case here, because the adverse security assessment which was the subject of the remitted proceedings in the Full Court, we accept, can no longer be the subject of challenge in this Court, because it has been determined and special leave has been refused but, and indeed, in the Chapter III point, which has never really been considered in any great depth by anyone, the Chapter III point was dealt with by the Full Court on the basis that the security assessment itself was not a finding of guilt or did not involve the imprisonment of my client.
But, of course, that is a different decision to the decision which appears at paragraph 6 which is the cancellation of the visa which clearly does result in my client becoming incarcerated immediately upon the cancellation of the visa.
HER HONOUR: But can I understand the procedural fairness point that you say is not the point that was determined adversely to you in the Full Federal Court. Earlier in this litigation, it was common ground that the decisions stood or fell on the determination of the issues that were the subject of the remitter.
MR PRINCE: That was at a time before we had the affidavits of the respondent.
HER HONOUR: And, those affidavits disclosed some further material. It was your complaint before the Federal Court that that material could have been disclosed and had not been disclosed and that you had not, therefore, had a full opportunity to respond to the assessment made by the Director‑General. Now, as I understand it, that forms no part of this case any longer.
MR PRINCE: No, that argument was put in relation to the decision which is at paragraph 9 – that is the bridging visa.
HER HONOUR: I understand that, Mr Prince. The matter I am taking up with you is that it was the position that the decision stood or fell on the issues that were the subject of the remitter. You say materially things changed when you came to learn that there was some material that could have been made available to your client but was not and what is the significance of that material to a procedural fairness argument, other than the procedural fairness argument that was run and failed in the Federal Court?
MR PRINCE: Well, two things. First of all, what else was revealed but which was not the subject of the Full Court proceedings was that that information was not given to the Minister before the Minister cancelled the visa.
HER HONOUR: How does that give rise to a procedural fairness point?
MR PRINCE: Because my client did not know that the decision being made by the Minister was being made in the absence of any consideration of any reasons from ASIO as to the security assessment. Had my client known that, he could have said, please wait until you have got the information from ASIO, until you have worked out what you can and cannot show me in a considered and proper way which did not ultimately happen, and then allow me to make representations as to what should happen next.
My friends say that the only result that was possible in the scheme of section 116G was that because there was an adverse security assessment, tick the box, cancel the visa, and that there is no choice about it. But, that section does not direct the Minister or does not require the Minister to cancel the visa at any particular point in time. It does not give the Minister a direction or compulsion to cancel the visa immediately. It allows flexibility to the Minister in terms of when that statutory function is going to be given effect.
So that it would have always been open to the Minister, and it would have been open to my client to make submissions about this had he known, that the Minister should not act precipitously and put my client in incarceration before even seeing the reasons from ASIO or allowing my client an opportunity to consider those reasons which could be disclosed. This was just a summary cancellation of a visa and my client was not given an opportunity to be heard on it. There is nothing in the Act that requires that to happen.
In circumstances where, had my client known, first of all that he could ask or that he should be able to get the Minister to wait until the final appreciation had been provided and then ask the Minister to be able to disclose as much as could be disclosed, and assuming that what could have been disclosed was disclosed, he could have made submissions on it.
That last point is the point that the Full Court dealt with because they said, well, even if you had the final appreciation – I must say it is not entirely clear what the Full Court said on this point, but if your Honour goes to paragraph 113, there is a general admonition in paragraph 113 about how national security is so different, although that must not be at all relevant in circumstances where we are only dealing with material that the Director‑General has deemed could be put into the public domain anyway. Then there is a, in the last sentence of that paragraph, there is a summary the submissions that were made. In the second sentence after the dot points, there is a finding that:
It is regrettable that the information which was ultimately disclosed to Mr Jaffarie was not disclosed at the outset.
Regrettable, I suspect, is probably a little bit – not the way my client would put it:
As full and as frank a disclosure of such information as is consistent with maintaining a claim for public interest immunity privilege should be made at the outset; the disclosure of as much information as possible should not depend upon judicial intervention to “encourage” the disclosure of information which could have been, and should have been, disclosed voluntarily. In different circumstances, a failure to disclose at the outset all of the information which could be legitimately disclosed may attract a different conclusion. But, on balance, it is concluded that enough was disclosed to enable Mr Jaffarie the opportunity to make meaningful submissions.
There is a fundamental tension between that finding and what appears at paragraph 83 of the judgment, just bearing in mind that the unclassified reasons had been disclosed prior to the decision in paragraph 9. So, the decision that the Full Court was dealing with was made after the summary document had been provided to my client but without the appreciation being provided to him. What is said in paragraph 82 is that:
Had the explanation provided by ASIO for its security assessment remained that set forth in the “Unclassified Reasons” –
which is what was given to my client before the final decision in paragraph 9 –
the argument initially advanced on behalf of Mr Jaffarie may have had considerable merit.
But all such prospects of success . . . evaporated when reference is made to the Truncated Final Appreciation.
There is a fundamental tension between saying on the one hand, well, you had enough to be able to make submissions on the basis of the unclassified reasons at the time the Minister made the final decision and on the other hand saying, well, if we only had the unclassified reasons we would have thought that you would have considerable force in your argument.
HER HONOUR: But, Mr Prince, the Full Court at paragraph 82 was not addressing a procedural fairness argument, was it?
MR PRINCE: It was not, but what I am saying to your Honour is there is a fundamental tension, a logical tension – there is a fundamental logical tension between the findings on procedural fairness which are weak as it stands and they do not explain what the balance was at paragraph 113 with respect to their Honours.
HER HONOUR: Mr Prince, the findings on procedural fairness may or may not be characterised as weak. If I may suggest it, the characterisation does not assist your argument. The Full Court rejected the procedural fairness ground, and this Court declined special leave. The matter I am now raising with you is, as I understood it, you were seeking to develop an argument in relation to a procedural fairness aspect of the three decisions that were not the subject of remitter that is distinct from the matter that has been determined finally as between the parties.
MR PRINCE: Yes, your Honour. I am sorry, I may have become diverted because the final point that I had made to your Honour, about the challenge to the procedural fairness which we would seek to make in this Court in relation to the decisions which have not been the subject of judicial consideration, is that this Court is not bound by what the Full Court did in terms of procedural fairness ‑ ‑ ‑
HER HONOUR: Mr Prince, I am not sure that I understand that submission. To the extent that there is an issue between the parties respecting a claim of wont of procedural fairness because the applicant was not supplied with material that it is now accepted by the respondents could have been made available to him – to the extent that is an issue between the parties, it is an issue that has been finally determined.
MR PRINCE: It is not, your Honour, for this reason. The only thing that has been finally determined is that issue in relation to the final decision made under section 501 – it is the decision in paragraph 9 of the summons.
HER HONOUR: Yes.
MR PRINCE: That is the only thing that has been finally determined.
HER HONOUR: If that be right – I am just seeking to understand the concession that was made before me previously, namely that matters would stand or fall on the determination in the Federal Court. If different considerations of procedural fairness attend each of the decisions, why was the concession made?
MR PRINCE: Any concession that was made was made before this procedural fairness issue arose.
HER HONOUR: Yes, all right.
MR PRINCE: This procedural fairness issue arose after the matter had been remitted, and after we got the drip‑feed of evidence from the respondents.
HER HONOUR: Mr Prince, if we can keep the language a little more neutral, it just might facilitate things ‑ ‑ ‑
MR PRINCE: I try, your Honour. This has been a long‑running case and there has been a lot of frustration from my client ‑ ‑ ‑
HER HONOUR: Mr Prince, I do not think I need to hear about that. Coming back to the argument that you now seek to make, can you just explain the procedural fairness point in relation to the first of the decisions, the decision that resulted in your client being taken into detention? It is not that your client was not apprised of sufficient information concerning the basis of the adverse security assessment to make submissions in response to it, because that is the issue determined against you in the Federal Court. It is a procedural fairness issue arising out of the circumstance that your client was not aware that the Minister acted to revoke his visa on the basis of an adverse security assessment without waiting for material from ASIO that provided the basis for that assessment ‑ ‑ ‑
MR PRINCE: That is right.
HER HONOUR: ‑ ‑ ‑ and had your client known he might then have made submissions to the Minister inviting the Minister to exercise his discretion and not make a determination until he had obtained that material.
MR PRINCE: That is right.
HER HONOUR: All right, I understand that.
MR PRINCE: Even if the ASIO decision could not ultimately have been challenged on a judicial review basis, that would not have precluded my client from making submissions to the Minister that the Minister ought to go back to ASIO and either clarify things or raise matters that my client was able to raise with the Minister prior to acting on that ASIO security assessment. So, it is a different ‑ ‑ ‑
HER HONOUR: Presumably, there was no preclusion on your client making submissions to the Minister that the Minister might make some further inquiry and not act on the adverse security assessment.
MR PRINCE: Well, except my client did not know what was being acted on. That results in a Kafka‑esque proposition that my client ought to have been able to put submissions about something of which he was unaware. He did not know what was happening behind this veil that the Minister had put up. I am sorry; I may have done it again. He did not know what the Minister was doing because he did not know what the Minister had, or did not have in this case, before the Minister, in making that decision.
HER HONOUR: All right.
MR PRINCE: So, it is a distinct and different point to what was dealt with by the Full Court. In terms of the Chapter III point, the Chapter III point is different to what was determined by the Full Court. In paragraph 96 of the Full Federal Court decision, does your Honour have that?
HER HONOUR: Yes, I do have the decision.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Paragraph 96?
MR PRINCE: Paragraph 96.
HER HONOUR: Yes.
MR PRINCE: That is a discrete and different point to whether or not the cancellation of the visa – well, really the incarceration of my client, involved the exercise of judicial power.
HER HONOUR: But that issue again was determined in the Full Federal Court, was it not?
MR PRINCE: No, your Honour, in my submission, what was determined in the Full Federal Court was whether the adverse ASIO security assessment involved that and one of the issues in the case was ASIO said, well, it is not us who is putting you in incarceration – or in detention, as they call it – that is done by the Department of Immigration. So there is no Chapter III point here with us. Then we go to end up with the Department of Immigration and they say, well, we did not have a choice because ASIO made that decision. But at some point somebody has to deal with the fact that a decision has been made which has put my client into incarceration and that decision was made by the Minister in cancelling the visa and the initial decision was done without reference to what is in the final appreciation.
HER HONOUR: Mr Prince, is your ‑ ‑ ‑
MR PRINCE: Sorry.
HER HONOUR: Just so I understand it.
MR PRINCE: Yes.
HER HONOUR: Your judicial power point is that the determination to revoke the visa involved an exercise of the judicial power of the Commonwealth because, in consequence, your client was placed in detention, is that the point?
MR PRINCE: Sorry, because my client was put in detention and because it was done to punish my client because of his involvement in people‑smuggling as found by ASIO, which is a criminal offence.
HER HONOUR: But there is no suggestion, Mr Prince, of the judgment or punishment of criminal guilt in a limb sense, surely.
MR PRINCE: There is, because in the ASIO final appreciation which was at least acted upon, it seems, in the decision in paragraph 8 which is the affirmation of the decision in paragraph 6. The final appreciation is replete with findings that my client was involved in people‑smuggling. In fact, the Director‑General in cross‑examination accepted, your Honour, that the only basis upon which the adverse security assessment was made was because of a view taken that he had engaged in people‑smuggling activities.
HER HONOUR: Yes.
MR PRINCE: That is the formation of a view that my client had engaged in what is criminal activity. It is a view which has been formed by members of the Executive – not by members of the judiciary. It is that view which is the foundation and the basis for the Minister’s decision to cancel the visa which, in truth, is a decision to incarcerate my client.
HER HONOUR: Mr Prince ‑ ‑ ‑
MR PRINCE: Because my client was lawfully in the country and had a visa and was not liable to detention and it was only the cancellation of that visa which led to his incarceration. The only reason that was done was because of the findings that my client had been engaged in people‑smuggling activities.
HER HONOUR: Mr Prince, it is not uncommon for administrative officials as a step in arriving at a determination to form a conclusion that a person has breached the criminal law, amongst other things.
MR PRINCE: That may be right but the step is not usually taken along the way to an incarceration of the person for that reason, but here it is.
HER HONOUR: It is the last words “for that reason” that carry considerable freight, Mr Prince.
MR PRINCE: Well, they do, your Honour.
HER HONOUR: In any event, I think I ‑ ‑ ‑
MR PRINCE: I am sorry. Can I say, your Honour, this is really a matter for a hearing? My client has not had a hearing on this point and the respondents seek to cut that opportunity off again in these proceedings by not allowing the matter to go forward. There is ample basis to say that it was “for that reason” because if it had not have been for the findings, or the conclusions or whatever way you want to describe them, that my client had been engaged in people‑smuggling activities, his visa would never have been cancelled. That is the only foundation upon which that decision was made.
In my submission, that is something that is, effectively, the Commonwealth doing through the back door what it is not doing through the front door and they have not charged my client. No‑one has ever charged my client with anything. They have accused him, or reached conclusions that he has engaged in criminal activities. He has never had a chance to defend himself before a judge or a jury.
HER HONOUR: Mr Prince, I think I get the flavour of the submission.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Thank you. Yes, Mr Williams.
MR WILLIAMS: Your Honour, before I start, I should correct one matter in the amended application that the plaintiff has filed. Mr Prince has referred on two or three occasions to paragraph 8 in that – this is in the amended application ‑ ‑ ‑
HER HONOUR: I am sorry, where are you, Mr Williams?
MR WILLIAMS: In the summons, the amended application for an order to show cause.
HER HONOUR: Yes, paragraph 8?
MR WILLIAMS: Yes, on page 4. Mr Prince has referred on two occasions, I think, to paragraph 8 and said that the third defendant affirmed the decision referred to in paragraph 6. In fact, that is in error. That decision was an affirmation of the paragraph 7 decision. It is only a small point on one view, but it is important to correct.
HER HONOUR: Thank you.
MR WILLIAMS: Your Honour, in relation to procedural fairness, procedural fairness in respect of these decisions was irrelevant, although indeed the applicant was afforded procedural fairness, was invited to put submissions and, as the Full Court held, had sufficient material available to be able to put submissions. If your Honour has the folder – I am sorry, not the folder; there is a small clip of legislation that I think Mr Prince may have made available. It has some regulations ‑ ‑ ‑
HER HONOUR: I do not believe I have that folder. These are the Migration Regulations?
MR WILLIAMS: Yes, it is, your Honour. It is in regulation 2.43, if your Honour has that to hand.
HER HONOUR: Just bear with me a moment; it will take me a moment to turn it up, but I think I can.
MR WILLIAMS: I mis-described it as a folder, your Honour. It is simply a small clip of documents; it is about 10 pages or so from the Migration Regulations.
HER HONOUR: No, I do not appear to have it. Just bear with me a moment.
MR WILLIAMS: Yes, your Honour.
HER HONOUR: I will correct that; I do have it. Yes, Mr Williams.
MR WILLIAMS: Page 199 at the bottom of the page, your Honour, part of regulation 2.43; regulation 2.43(1)(b). These are going to the chapeau of subregulation (1):
For the purposes of paragraph 116(1)(g) of the Act –
dealing with circumstances where the Minister may cancel a visa –
the holder of the visa has been assessed by [ASIO] to be directly or indirectly a risk to security –
That is the discretion to cancel, but if your Honour goes over to page 208 of the print, your Honour will see subregulation (2). In subregulation (2):
For subsection 116(3) of the Act –
which is the one dealing with mandatory cancellation –
the Minister must cancel a visa . . .
(a) in the case of a visa other than a relevant visa –
and that is what we are dealing with here; subregulation (2)(a)(iii) –
(iii) paragraph (1)(b) –
In other words, the (1)(b) criterion –
the holder of the visa has been assessed by [ASIO] to be directly or indirectly a risk to security –
If the person has been so held, “the Minister must cancel the visa”.
HER HONOUR: Mr Williams, I am sorry to interrupt you but just so I am tracking this through, I am now on page 208, subregulation (2)(a)(iii). So it is paragraph (1)(b), is it?
MR WILLIAMS: Yes.
HER HONOUR: So we are dealing with a case of a visa other than a relevant visa and that then brings us to – is that right, back to paragraph (1)(b) to which you – yes, I understand.
MR WILLIAMS: Paragraph (1)(b) if the person has been assessed to be a risk to security as the applicant has been here and is challenged to that assessment has failed, then the Minister was obliged to cancel.
HER HONOUR: Yes, all right.
MR WILLIAMS: So procedural fairness was, therefore, irrelevant because the Minister did not have a discretion. Mr Prince says well the Minister could have waited, if the Minister had then there would still have been an assessment by ASIO, as indeed there was, one which has been found to be valid, and that assessment was and remains that the applicant falls within paragraph (1)(b). So there was no question of procedural fairness being denied because instead on the GIO reasoning of the most orthodox kind there was no matter on which the applicant could put submissions that was live. So, as far as proposed grounds 13 and 14 are concerned, they both fall on that basis. In effect, the same point was run in the Federal Court, but ground 17 was an attack on the bridging visa refusal which was ‑ ‑ ‑
HER HONOUR: I am sorry, Mr Williams, I am sorry, I will just interrupt you. When you speak of ground 14 and 15, what are you directing attention to?
MR WILLIAMS: The proposed grounds in the summons, I am sorry, your Honour. This is ‑ ‑ ‑
HER HONOUR: I am looking – I do not have the ‑ ‑ ‑
MR WILLIAMS: I am sorry, 13 and 14 I meant to say, your Honour.
HER HONOUR: Grounds 13 and 14, I see, yes.
MR WILLIAMS: I am sorry, your Honour, it is the last two. The same point holds good in respect of each of those grounds that flows from regulation 2.43. Indeed, no more need be said about procedural fairness. Can I turn then to proposed grounds 11 and 12? The decisions in question flowed, as I have demonstrated, from the making of the security assessment which has been conclusively determined to be valid. Because the applicant has been assessed to be a risk to community, mandatory cancellation, the first of the decisions he now seeks to challenge and mandatory refusal follow and that result follows also in the Tribunal.
The Full Court did indeed consider an attack on the security assessment based upon Chapter III grounds. Your Honour has been taken to some of that, but if I can take your Honour to the Full Court’s reasons at paragraph 85, 85 is the commencement of the consideration of this issue where the argument is set out, the submission is set out:
the “conferral of powers upon an administrative agency to determine that a non‑citizen lawfully present in Australia has committed an offence with the automatic consequence that he is to be detained involuntarily and removed from Australia without judicial order or oversight is novel . . .” and “does not fall within an established “exceptional case” . . .”.
Then in 86, the Full Court observes correctly, with respect, that the argument “is misconceived”. The reasons for it being misconceived are then set out, but if I could take your Honour through to paragraphs 94 and 95 where the conclusions are set out. Having analysed it:
none of these provisions –
referring, of course, to the provisions collectively including Migration Act provisions –
and most immediately the making of the adverse security assessment, involved any exercise of the judicial power –
and in 95 –
The making of that assessment by ASIO was not the determination of any “guilt” on the part of ASIO. And such consequences as thereafter flowed –
and that is what the applicant now seeks to attack –
including his detention for the purposes of his removal from Australia – was not the imposition of any “punishment”.
There was then a reference to well‑settled authority, going over to the top of the following page:
Nor does a power to detain “aliens” –
it is detention rather than incarceration –
for the purpose of expulsion or deportation infringe Chapter III –
Now, the applicant now seeks collaterally to attack those conclusions, but the grounds upon which he seeks to do so, with respect, are fundamentally misconceived for the reasons given by the Full Court, but also for the additional reasons now to be found in this Court’s judgment in Australian Communications and Media Authority v Today FM. For those reasons, leave to amend should be refused. Unless there are matters with which I can assist your Honour, those are our submissions.
HER HONOUR: Thank you, Mr Williams. Well, Mr Prince, you may not have had an opportunity to see the decision that Mr Williams just referred to.
MR PRINCE: I have seen the Full Court Federal Court decision but I assume the news is not good for that decision.
HER HONOUR: Yes, putting it shortly, that is so.
MR PRINCE: Your Honour, this is not the cancellation of a licence and what is happening here is fundamentally different and the decision of the Full Court which tangentially deals at paragraph 94 with other decisions, although cannot obviously have dealt with the decisions which are before this Court and had not been remitted, is not binding on this Court and my client has not had an opportunity to argue the Chapter III point in this Court and has not had ‑ ‑ ‑
HER HONOUR: Your client had an opportunity to argue the Chapter III point in the Federal Court. I appreciate that it was with respect to the decision the subject of the 501 determination and not the decision first made. Nonetheless, the point in essence is the same point, Mr Prince, and it was decided against you and decided against you before a decision of this Court to which Mr Williams has just referred gave ample support to the reasoning of the Full Court.
MR PRINCE: I understand what your Honour says, but the question of an adverse ASIO – sorry, I will go back a step. The issue that a Minister for Immigration, taking a person who would otherwise be a lawful non‑citizen and making him a unlawful non‑citizen and in putting him into incarceration and where that is done because another Executive agency has said that he is engaged in criminal activity is, in my submission, a point which is – my client is entitled to have heard by this Court. Whether or not he may fail or not and my friend might convince the Court that Today FM means that this sort of thing can happen to people, but that is something that my client should have his day in court to deal with.
HER HONOUR: You speak, Mr Prince, of “this sort of thing can happen to people”. Mr Williams has taken me to the statutory scheme, noting that in relation to the determination made with respect to your client’s provisional partner visa that the Minister did not have a discretion, and that upon the making of the adverse security assessment the Minister was required to revoke the visa. Now, do you cavil with that analysis of the statutory scheme?
MR PRINCE: Yes, because what is missing is time in this respect, time, because there is not a compulsion on the Minister to make that decision immediately. There is the capacity for the Minister to give time to allow some sort of analysis or questioning of what is inherently a very serious decision being made by the Minister. The decision, we were told at great lengths, is not a decision being made by ASIO, it is a decision being made by the Minister. Even if the regulation compels a particular result, what it does not do is to stop the Minister from going through a rigorous process of testing whether or not that adverse security assessment should stand or whether there should be some representations made back to ASIO or the like. In circumstances where my client, because he is not a permanent resident or a citizen, is unable to seek merits review in the Administrative Appeals Tribunal. So the only gateway that my client has to engage in a process of sentient interaction with another human being who is going to take away his visa is by being able to make representations to the Minister prior to the Minister making a decision in circumstances where the Act does not compel the Minister to make a decision at any particular time and, in my submission, that is an important ‑ ‑ ‑
HER HONOUR: Now, Mr Prince, if we can just go back to the statutory scheme and look at that last submission. As I understand it, you accept the analysis of the scheme advanced by Mr Williams, that is, when one turns to regulation 2.43(1)(b) and then goes over to sub (2) – this is on my printout at page 208 – one sees there that for subsection 116(3) of the Act which is the provision with which we are concerned, is it not?
MR PRINCE: Yes, your Honour, it is, yes.
HER HONOUR: The circumstances in which the Minister must cancel a visa are set out and, relevantly, they include paragraph (1)(b), namely:
that the holder of the visa has been assessed by [ASIO] to be directly or indirectly a risk to security –
Now, if that correctly tracks through the regulations and the nature of the visa with which we are concerned, then the Minister was required to cancel the visa.
MR PRINCE: There are two answers to that, your Honour.
HER HONOUR: Yes.
MR PRINCE: First of all, there is nothing in the statute that says, when. It is always open for there to be reconsideration of the adverse security assessment. It is always possible for ASIO to revoke it or remove it as the Margaret Stone process has revealed. It is something that could have been considered and looked at and, depending on the timing of the decision, if that happened prior to the cancellation of the visa, then my client would have remained at liberty and there would have been no compulsion.
So it is incorrect to say that there is only one possible result in all of this. There is another possible result. There is a possible result that my client’s submissions to the Minister could be considered properly. The points that my client would want to make to the Minister and the interaction with him could be conveyed by the Minister back to ASIO and somebody within ASIO could reconsider whether or not the security assessment should stand in light of my client’s side of the story.
HER HONOUR: Mr Prince, the orders that you seek are orders granting you leave to proceed on the amended application for an order to show cause, is that so.
MR PRINCE: That is right, that is right.
HER HONOUR: In essence, if I might distil the amendments that you propose, they are amendments to raise the procedural fairness question that you have earlier identified and to address the judicial power argument in relation to the decision taken by the Minister with respect to the cancellation of the provisional partner visa. Is that right?
MR PRINCE: That is right, your Honour and ‑ ‑ ‑
HER HONOUR: Now ‑ ‑ ‑
MR PRINCE: Sorry.
HER HONOUR: I would not grant that leave unless I was satisfied there was an arguable case, is that so? Is that the test?
MR PRINCE: Well, there are two things that would be happening. First of all, before I move on to that, I will answer your Honour’s question. I am not trying to be difficult, but the second point that I was going to raise in relation to your Honour’s question about 116 and the regulation, is that the Chapter III argument about invalidity would, in my submission, encompass an argument that the regulation, to the extent that it involves an automatic cancellation of a visa in circumstances upon the basis that the Executive has found the applicant to have engaged in people smuggling, is contrary to Chapter III and so would be invalid, because what your Honour put to me about the requirement for an amendment is right but it has to be arguable, and it has to be arguable in this Court. Arguable in the context that this Court is not bound by what the Full Court of the Federal Court said and must reach its own view about the constitutionality of these matters that have been raised and also the issue of the procedural fairness and validity of decisions which have never been the subject of determination or decision.
HER HONOUR: Mr Prince, to the extent your judicial power argument was agitated as between you and the Minister before the Full Federal Court, that issue has been determined, finally.
MR PRINCE: In relation to the 501case.
HER HONOUR: Yes.
MR PRINCE: That is significant because the 501 decision did not involve the incarceration of my client. He had already been put in detention so the 501 case was about whether or not the Minister ought to give him a visa to get him out of detention. It is the ‑ ‑ ‑
HER HONOUR: The Full Federal Court determined adversely to you that the making of the assessment by ASIO did not involve determination of guilt on the part of ASIO and such consequences as flowed, including your client’s detention for the purposes of removal of Australia, were not the imposition of punishment. Now, to the extent that that was a live issue between the parties, that has been determined and special leave has been refused.
MR PRINCE: That is right.
HER HONOUR: It just seems to me at times, Mr Prince, there is a tendency for your submissions to overlook that aspect of the way these proceedings have fallen out.
MR PRINCE: I apologise, your Honour, if that is the case.
HER HONOUR: All right, can we just develop, so I can understand, the arguable basis of a claim of denial of procedural fairness in circumstances in which it is not in issue that upon the making of the adverse security assessment, the Minister was under a duty to cancel.
MR PRINCE: We would take issue with the “upon”, because in my submission, there is nothing in the statute that imposes any obligation to cancel the visa within a particular period of time.
HER HONOUR: What obligation of procedural fairness – how do you identify the content of that obligation in relation to the decision to cancel the visa that was the subject of regulation 2.43(2)(a)(iii)? What is the content?
MR PRINCE: The obligation was to inform my client to the maximum extent possible what material had been provided to the Minister by ASIO, and to give my client an opportunity to make submissions and be heard on what course of action the Minister should take in relation to that material provided to him by ASIO.
HER HONOUR: All right.
MR PRINCE: That is not a futile opportunity, as my friend would have it, because there is not just one possible alternative. There are a number of possible alternatives. First of all, the Minister could hold over the
cancellation of the visa to allow reconsideration by ASIO, as a matter of merit, as to whether or not ‑ ‑ ‑
HER HONOUR: Before we get into the things that the Minister might lawfully have been able to do, what gives rise to the obligation of procedural fairness that you identify?
MR PRINCE: Because a seriously adverse decision is made against my client with serious and obvious consequences to him, in circumstances where that decision is made on the basis of information provided to the Minister by ASIO about him personally.
HER HONOUR: All right. Now, what is the arguable basis for your Chapter III point?
MR PRINCE: The arguable basis for the Chapter III point is that this decision to cancel the visa was made on the basis, and only on the basis, that my client was found by a member of the Executive to have engaged in people‑smuggling activities. That has the character of an assessment of facts against an existing legal standard – in this case, an existing criminal legal standard. Whether or not it was the adjudgment of guilt in a formal sense, or whether or not it was the expression of an opinion about whether he had engaged in criminal activity, is a focus on form over substance.
The reality is that it was the Executive’s view that my client had been engaged in domestic criminal activity which led to its decision to cancel the visa and incarcerate my client. There is, in doing so, a lacuna that opens up in the constitutional fabric, because the Executive will be able to effectively impose imprisonment on people on the basis of a view that they have engaged in criminal activity without a trial, without charging them. Indeed, the evidence was that they have not charged him.
So what the Executive has done to my client is what no judge could do; that is, to deprive him of his liberty for an indefinite period, and to do so without any scrutiny. It is a matter of great significance, in my submission, to the constitutional fabric, because if they can do that in this case, then there will become an option opened up to the Executive as to whether or not it proposes to go through the difficulty and trouble of making its case before the courts, or whether it is just going to satisfy itself that something has happened in breach of the criminal law and cut to the chase.
HER HONOUR: Thank you, Mr Prince.
These proceedings were commenced by way of an application for order to show cause filed on 10 October 2013. The plaintiff claimed declaratory and other relief in relation to:
first, the security assessment in respect of the plaintiff made on 17 June 2013 by the first defendant;
second, the determination made on 19 June 2013 by the second defendant, the Minister for Immigration and Border Protection (“the Minister”), to cancel the plaintiff’s Subclass 309 Partner (Provisional) visa pursuant to section 116(1)(g) of the Migration Act 1958 (Cth) by reason of an adverse security assessment;
third, the decision made on 25 June 2013, of the Minister refusing the plaintiff’s application for a Partner (Migrant) (Class BC) Subclass 100 (Spouse) visa by reason of the cancellation of the provisional partner visa;
fourth, the decision of the third defendant, the Migration Review Tribunal, made on 26 August 2013 affirming the decision of 19 June 2013 to cancel the provisional partner visa; and
fifth, the decision of the Minister on 25 September 2013 refusing the plaintiff’s application for a Bridging E (Class WE) visa pursuant to section 501(1) of the Migration Act.
On 14 November 2013, I made orders remitting the challenge to the security assessment made by the Minister in respect of the plaintiff dated 17 June 2013 and the challenge to the Minister’s decision made personally on 25 September 2013 to the Federal Court of Australia pursuant to section 44(1) of the Judiciary Act 1903 (Cth). The remainder of the proceeding was stood over pending the outcome of the proceedings in the Federal Court.
At the time those orders were made, it was the common understanding that the validity of the decisions that were not the subject of the remitter would stand or fall on the basis of the validity of those that were the subject of the challenge remitted to the Federal Court of Australia. On 18 August 2014, the Full Court of the Federal Court of Australia rejected the challenges, dismissing that part of the matter that had been remitted by this Court and making no order as to costs.[1]
[1] Jaffarie v Director General of Security (2014) 313 ALR 593.
Thereafter, the first and second defendants by summons applied for orders that the part of the matter not remitted to the Federal Court by order on 14 November 2013 be dismissed and that the plaintiff pay the first and second defendants’ costs. The third defendant, to whom reference has been made earlier in these reasons, has filed a submitting appearance. The plaintiff does not submit to the making of the orders sought. The plaintiff seeks leave to file an amended application for an order to show cause claiming declaratory and other relief with respect to the decisions that were not the subject of the remitter.
The plaintiff seeks to argue that there are two issues relating to those decisions that do not stand or fall with the determination of the Full Federal Court respecting the refusal of the bridging visa and the challenge to the security assessment. The reason for the apparent change of stance arises from events that occurred in the proceedings when they were before the Full Court of the Federal Court. Material described by the Full Court as the “truncated final appreciation” became available to the plaintiff in the course of the proceedings which had not been available at the time of the determination to refuse the bridging visa.
The Full Court rejected the plaintiff’s argument that he had been denied procedural fairness because the Minister had available to him as part of his decision‑making process classified reasons whereas the plaintiff had only available unclassified reasons and had not been supplied with the “truncated final appreciation”, which would have revealed the finding of an Indonesian court that Australia had failed to establish a reasonable case that an individual, with whom I interpolate the plaintiff is said to have been associated, was engaged in crimes against Australia whilst in Indonesia.
The Full Court determined that there had been no denial of procedural fairness upon a view that the touchstone is whether sufficient information had been disclosed to the plaintiff in the unclassified reasons to enable him to make meaningful submissions. On balance, the Full Court concluded that enough had been disclosed to give the plaintiff that opportunity.
The plaintiff seeks to contend in relation to the decisions to:
(i)cancel his provisional partner visa;
(ii)the Migration Review Tribunal’s affirmation of that decision; and
(iii)the decision to refuse his application for a Subclass 100 (Spouse) visa that he was unaware that the Minister had made the determination to cancel the visa upon the basis of the adverse security assessment but before his receipt of material including the truncated final appreciation.
Had the plaintiff known that the Minister was proposing to proceed on the strength of the assessment but without the underlying material, the plaintiff might have made submissions directed to persuading the Minister to make further inquiries of ASIO before proceeding to cancel the visa, attended as that decision was by the consequence that the plaintiff would be taken into immigration detention.
The second basis upon which leave is sought is to raise an issue that the three decisions are ultra vires in that the consequence of making the decisions is extra‑judicial deprivation of liberty without charge or trial because the Executive considers the plaintiff has or would commit a criminal offence contrary to the reservation of that function to the judiciary by Chapter III of the Constitution.
A constitutional argument of that nature respecting the Minister’s decision not to issue a bridging visa was before the Full Federal Court. It was contended before that Court that the making of the assessment by ASIO involved the exercise of the judicial power of the Commonwealth. That argument was rejected. Relevantly, the Full Court observed that:[2]
[2] Jaffarie v Director General of Security (2014) 313 ALR 593 at [95].
“The making of that assessment by ASIO was not the determination of any ‘guilt’ on the part of ASIO. And such consequences as thereafter flowed – including his detention for the purposes of his removal from Australia – were not the imposition of any ‘punishment’.”
The Full Court concluded that the making of the adverse security assessment and the furnishing of the advice contained within it to the Department of Immigration and Border Protection did not involve any exercise of the judicial power of the Commonwealth.[3]
[3] Jaffarie v Director General of Security (2014) 313 ALR 593 at [96]
The plaintiff seeks to raise a different constitutional challenge to the three decisions that were not the subject of the remitter. In short, he seeks to contend that the Minister’s decision to cancel the partner visa, as distinct from ASIO’s assessment, involved the usurpation of the judicial power of the Commonwealth.
The first and second defendants submit that I should refuse to grant the leave that is sought because no arguable case is demonstrated either of denial of procedural fairness or of constitutional infirmity. As to the first, the defendants submit that the decision to cancel the provisional partner visa, made pursuant to 116(1)(g) of the Migration Act, did not involve the exercise of a discretion. Under reg 2.43(2)(a)(iii) of the Migration Regulations 1994, for the purposes of section 116(3), the circumstances in which the Minister must cancel a visa are those set out relevantly in paragraph (1)(b) of the regulation, namely that the holder of the visa has been:
“assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.”
I accept the first and second defendants’ submissions that in the circumstances the contention respecting the asserted denial of procedural fairness is not arguable. I have come to the same conclusion in relation to the proposed constitutional challenge. The decision to cancel the visa flowed from the adverse security assessment. As earlier noted, the contention that the making of that assessment involved the exercise of the judicial power of the Commonwealth has been determined finally by the Full Court adversely to the plaintiff.
The endeavour to re‑craft that argument in circumstances in which in consequence of the making of the adverse security assessment the Minister was required to cancel the visa does not give rise to an arguable basis for successful challenge invoking the Chapter III jurisprudence of the Court. The decision in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 is rightly relied on by the defendants in further support of that conclusion. For these reasons, I decline to grant the leave that is sought to file the amended application for an order to show cause.
In the circumstances it is appropriate to make the orders sought by the first and second defendants by their summons and I so order that the part of the matter not remitted to the Federal Court of Australia by order of the Court on 14 November 2013 be dismissed.
Mr Prince, can you resist the order for costs?
MR PRINCE: Yes, your Honour. The Full Court of the Federal Court declined to make an order of costs in favour of the Minister in circumstances where the initial proceedings which were commenced were commenced on the basis of a summary document which did not reveal the Director‑General’s reasons and in respect of which the Federal Court found that there was considerable merit in the challenge to those reasons. That order in relation to the Full Court of the Federal Court proceedings should also apply in these proceedings.
HER HONOUR: Why?
MR PRINCE: I accept that the costs of today and the amendment, I cannot say anything about that.
HER HONOUR: I see. Well, Mr Williams, what do you say to that? That in relation to your costs of today, the plaintiff accepts that you have succeeded and you shall get them but, in other respects, the orders of the Full Federal Court have force, in the sense that in the way things fell out before the Full Federal Court it was considered appropriate to make no order.
MR WILLIAMS: We accept, of course, that it was open to the Full Court to make that order in respect of costs ‑ ‑ ‑
HER HONOUR: In that Court.
MR WILLIAMS: ‑ ‑ ‑ of the proceedings in that Court. That does not – I am sorry, your Honour.
HER HONOUR: I am sorry. What then, in terms of the proceedings in this Court, should be the subject of an order apart from the costs of today?
MR WILLIAMS: Well, the costs of the application. The plaintiff has been unsuccessful entirely in this Court, so I do not wish to spend much time on it, your Honour, but the costs of the first remittal application and the costs of today are matters in respect of which the defendant should have their costs. I am sorry, today is not in issue, so in terms of the first remittal application, the issues that arose in the Federal Court about the sufficiency of the agreed facts and the provision of further information are dealt with by that Court’s order that there be no order as to costs in that court. Otherwise, the position in this Court is the plaintiff has brought a proceeding and has failed.
HER HONOUR: Mr Williams, unless there is something more you want to put to me, it seems to me that the cost of the proceeding to the point of the remitter should not be the subject of an order but that you should get your costs of today.
MR WILLIAMS: The order made on the last occasion by your Honour was that the costs of the summons filed on 30 October be costs in the cause. That I think would in any event – yes.
HER HONOUR: Was it? All right.
MR WILLIAMS: That would be sufficient, your Honour, in that circumstance. The only matter that is before your Honour is common ground.
HER HONOUR: All right, very well. The plaintiff is to pay the first and second defendants’ costs of today.
MR WILLIAMS: May it please the Court.
HER HONOUR: Very well. The Court will adjourn.
AT 12.29 PM THE MATTER WAS CONCLUDED
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