Leghaei v Director-General of Security & Anor

[2007] HCATrans 655

[2007] HCATrans 655

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C5 of 2007

B e t w e e n -

MANSOUR LEGHAEI

Applicant

and

DIRECTOR‑GENERAL OF SECURITY

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 2007, AT 9.28 AM

Copyright in the High Court of Australia

HAYNE J: The Australian Security Intelligence Organisation (ASIO) made an "adverse security assessment" in respect of the applicant pursuant to s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The second respondent (the Minister) cancelled the visas that then entitled the applicant to be in Australia. The Migration Regulations (reg 2.43(1)(b)) and the Migration Act 1958 (Cth) (s 116(1)(g) and s 116(3)) obliged the Minister to cancel those visas if the holder "has been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security" (Migration Regulations, reg 2.43(1)(b)).

The applicant brought proceedings in the Federal Court of Australia seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the adverse security assessment. The relief sought included an order quashing the assessment and a declaration that it is "void and inoperative". He contended that the assessment was void and inoperative for jurisdictional error. He claimed that there had been a denial of procedural fairness, that the first respondent (the Director-General) had not considered the correct question, and that the Director‑General misconstrued the relevant definition of "security" in the ASIO Act.

After a four day hearing, the application was dismissed by Madgwick J.  Parts of the reasons for judgment were kept confidential.  By leave the applicant appealed to the Full Court of the Federal Court.  That Court (Tamberlin, Stone and Jacobson JJ) dismissed the appeal.  Again, parts of the reasons of the Full Court were kept confidential.

The applicant now seeks special leave to appeal to this Court.  We have been provided with, and have considered, all of the material upon which the parties rely, including the material that is subject to confidentiality orders.

The applicant submits that there are three special leave questions:

(a)whether the Director-General was obliged to give procedural fairness to a person the subject of a security assessment;

(b)whether the Director-General failed to give the applicant procedural fairness; and

(c)whether the Director-General asked himself the wrong question.

It was held, both at first instance and on appeal, that the Director‑General was bound to give such degree of procedural fairness as the circumstances could bear, consistent with a lack of prejudice to national security.  Neither respondent seeks now to challenge that holding.  We see no reason to doubt the conclusion of the Full Court that the balance between any obligation on the part of the Director‑General to afford procedural fairness in connection with the making of a security assessment and the protection of the public interest in national security must be struck, in the particular circumstances of this case, in favour of the public interest.  That being so, no point of general principle would fall for consideration if special leave to appeal were to be granted in relation to the questions of procedural fairness which the applicant seeks to raise.

Nor are we persuaded that it is arguable that the Director‑General asked himself the wrong question in reaching the assessment which the applicant seeks to impugn.

The applicant submitted that if special leave were to be refused, the respondents should not have an order for costs because of "the peculiar constraints under which the Applicant has been obliged to conduct the litigation and the public interest in ventilating this necessarily obscure area of public administration".  Costs should follow the event.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.  I publish that disposition.

AT 9.32 AM THE MATTER WAS CONCLUDED