FEDERAL COURT OF AUSTRALIA
Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329
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- AGLC
- Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329
- Case
- [2022] FCA 329
- Decision Date
CaseChat Overview and Summary
The case of Plaintiff S111A/2018 v Minister for Home Affairs (No 4) involved an Egyptian national, who had been held in immigration detention for nearly a decade, challenging the refusal of his application for a protection visa. The dispute centred around the adverse security assessment conducted by the Australian Security Intelligence Organisation (ASIO), which was based on evidence obtained through torture and the denial of procedural fairness. The Federal Court was tasked with determining whether the Minister's decision to refuse the visa was legally unreasonable.
The central legal issues included whether the adverse security assessment was flawed due to the use of evidence obtained through torture, and whether there was a denial of procedural fairness. The Court also needed to determine if the assessment process was legally unreasonable, particularly in light of the applicant's long-term detention and the potential for radicalisation during that period.
The Court found that the use of evidence obtained through torture was a significant issue and that the applicant had not been afforded procedural fairness in the assessment process. The Court concluded that the statutory task of assessing the applicant's risk to security had not been properly performed, as it failed to consider the applicant's current circumstances and potential future behaviour in Australia. The Court was particularly critical of the assessment's reliance on past activities rather than focusing on the applicant's potential risk if released into the community.
The Court allowed the amended originating application in part, finding that the decision to refuse the visa was legally unreasonable. The Court ordered the parties to confer and file agreed short minutes or, failing agreement, submit written proposals for the Court's consideration. The Court also outlined the process for any party seeking an oral hearing on appropriate relief.
The central legal issues included whether the adverse security assessment was flawed due to the use of evidence obtained through torture, and whether there was a denial of procedural fairness. The Court also needed to determine if the assessment process was legally unreasonable, particularly in light of the applicant's long-term detention and the potential for radicalisation during that period.
The Court found that the use of evidence obtained through torture was a significant issue and that the applicant had not been afforded procedural fairness in the assessment process. The Court concluded that the statutory task of assessing the applicant's risk to security had not been properly performed, as it failed to consider the applicant's current circumstances and potential future behaviour in Australia. The Court was particularly critical of the assessment's reliance on past activities rather than focusing on the applicant's potential risk if released into the community.
The Court allowed the amended originating application in part, finding that the decision to refuse the visa was legally unreasonable. The Court ordered the parties to confer and file agreed short minutes or, failing agreement, submit written proposals for the Court's consideration. The Court also outlined the process for any party seeking an oral hearing on appropriate relief.
Orders
Orders of the court
1. The amended originating application dated 12 March 2021 be allowed in part.
2. The parties confer for the purpose of filing on or before 4.00 pm on 19 April 2022 agreed short minutes setting out the orders, any declaratory relief, and any orders as to costs which should be granted in respect of the 2018 and 2020 security assessments made pursuant to s 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth), so as to reflect the Court’s findings.
3. If the parties cannot agree to short minutes, then each party is to file on or before 4.00 pm on 19 April 2022 the orders for which that party contends, and submissions in support of those proposed orders, limited to 3 pages.
4. If any party seeks an oral hearing on appropriate relief, that position should be stated in the written submissions.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Since that has not occurred, some of the allegations can be dealt with on the basis of the failure of the applicant to discharge his burden of proof. Unless there is an obvious or clear correlation between one of these undeveloped pleaded allegations and a developed pleaded allegation, or the undeveloped pleaded allegation can be understood and resolved without further material, I have generally concluded the applicant has failed to discharge his burden of proof in relation to that allegation.UNCONTESTED BACKGROUND Aside from some core controversies between the parties about the facts relevant to the ASIO decisions, there was no real dispute about much of the background to how the applicant had arrived in Australia, what had happened to him since, and the chronology of events in his life that had preceded his arrival. Save where I expressly state that no finding is made, I make the following findings on these matters. The applicant’s affidavit about his life, and that of his family, is lengthy. At a human level and considering little more than the core narrative contained within that affidavit, it is a story of considerable personal and family hardship. Much of the narrative is not, as the respondents submitted, legally relevant to allegations made in this proceeding. But it does provide factual context, which I consider it is important to understand and explain. The applicant gave oral evidence on specific issues and was cross-examined, and I found him to be a witness who was speaking from his own recollection, and a person who has been significantly affected by his experiences of tragically long executive detention in Australia and separation from his family, as well as by his life experiences before that. I found he approached the giving of his evidence in a serious and careful manner, and I did not assess him as an unreliable or untruthful person in relation to the evidence he gave. The applicant has always denied involvement in Egyptian Islamic Jihad (EIJ), and in any other political movement in Egypt or elsewhere. His sworn evidence in this proceeding denied such involvement. He has maintained that position in assessments by Australian authorities and, previously, with overseas authorities. He was not cross-examined on that position, but I accept that is because, correctly, the respondents submit the truth of the applicant’s position about involvement or non-involvement in EIJ and related organisations is not a matter for this Court in this proceeding. The applicant is an Egyptian citizen. He was 51 years old at the time of trial. He graduated with a Bachelor of Commerce from the University of Ain Shams in Cairo, Egypt in 1991. The applicant’s narrative includes being arrested in Egypt three times, the first when he was five years old. He first travelled from Egypt to Saudi Arabia in October 1991, his aim being to secure employment outside Egypt. He moved between Saudi Arabia and Egypt, because of his health and his insecure living circumstances in Saudi Arabia. His accounts of the second and third arrests in Egypt, said to have been in August 1991 and April 1992, described very serious mistreatment, including torture. I make no findings about whether that mistreatment occurred as the applicant described it, but I also make no findings that it did not occur. In 1992 he secured a job with the International Islamic Relief Organisation, and it was this job that led to him being placed in Albania as a store manager. The applicant described the IIRO in the following way in his affidavit:IIRO is a charity based in Saudi Arabia founded by the Muslim World League in 1978. It is a full member of The Conference of NGOs, where it serves on the board. The IIRO is included in a list of some of the UNHCR’s major NGO partners and has been involved in many joint programmes with UN Agencies and intergovernmental (such as the World Health Organization) and non-governmental organisations. It has enjoyed consultative status on the United Nations Economic and Social Council since 1995. It was the first Islamic NGO to gain observer status with the International Organisation for Migration (IOM). It used also to be a member of the International Humanitarian City-based in Dubai, UAE.
Evidence
Evidence Before The Court
As I note further below, a considerable number of the respondents’ documents contain redactions: see, for example, my observations at [152] and [159]. Evidence relied upon The evidence in the proceeding is contained in whole in the finalised version of the digital court book, as referred to above. Volume A of the court book contains the parties’ pleadings and affidavits relied upon. The applicant relied on the following affidavit material:(a)an affidavit of Ms Zali Burrows, affirmed 17 May 2021. Ms Burrows is the applicant’s solicitor in this proceeding. Ms Burrows deposed to the existence of a concurrent proceeding brought in the Federal Circuit Court by the applicant, in which the applicant had retained different representation, and in which proceeding the respondents filed the 2020 ASA and truncated statement of grounds for the ASA made in 2020 (2020 TSOG). Ms Burrows’ affidavit annexed a series of pieces of correspondence: between Ms Burrows and the lawyers for the respondents, and between the applicant’s representatives in the Federal Circuit Court proceeding and the lawyers for the respondents. The correspondence relates to concerns about the applicant’s privacy caused by the filing of the 2020 ASA and 2020 TSOG in the Federal Circuit Court;(b)an affidavit of the applicant, affirmed 7 April 2021. The applicant’s April affidavit provided a lengthy history of the applicant’s life, beginning with his birth in Egypt in 1971 and including his continuing detention and attempts to secure entry into the Australian community. He deposed to a brief description of his experience of discomfort during the 2020 ASIO interview, and to errors he believes were made in interpreting the interview as apparent from the transcript; and(c)a second affidavit of the applicant, affirmed 17 May 2021. The applicant’s May affidavit provides more detail as to errors the applicant believes were made in interpreting the 2020 ASIO interview. He provided a series of specific examples of interpretations on the transcript, and from a second set of translations of the interview, by a different interpreter, provided by the respondents and assessed as more accurately reflecting what he had intended to communicate. The respondents relied on the following affidavit material, summarised in their opening submissions as follows:an affidavit of Amaal Samson, an Arabic interpreter, sworn on 27 April 2021 (Samson affidavit – CB Tab 6). Ms Samson was played portions of the applicant’s 15 September 2020 security assessment interview, and was asked to orally interpret from Arabic to English passages in respect of which the applicant challenges the correctness of the interpretation provided at the time of the interview;a solicitor’s affidavit of Jonathon Charles Hutton affirmed on 29 April 2021 (1st Hutton affidavit – CB Tab 7). Mr Hutton provides evidence concerning eight of the applicant’s nine requests under the Freedom of Information Act 1982 (Cth) (FOI Act), and the discovery of documents in this proceeding, relevant to the applicant’s complaint about differences in the redactions to those documents;a second affidavit of Jonathon Charles Hutton affirmed on 29 April 2021 (2nd Hutton affidavit – CB Tab 8). Mr Hutton provides evidence concerning the applicant’s ninth FOI request;an affidavit of Michael Nemarich affirmed on 29 April 2021, the Manager, National Operations, of the National Accreditation Authority for Translators and Interpreters (NAATI) (Nemarich affidavit – CB Tab 9). Mr Nemarich gives evidence concerning NAATI certification of Arabic interpreters, specifically that NAATI treats Egyptian Arabic dialect as a mutually intelligible dialect of Modern Standard Arabic;an affidavit of Rhyl Clare Shannon Maddock affirmed on 29 April 2021 (Maddock affidavit – CB Tab 10). Ms Maddock is a public servant who has worked in the Departments which have administered the Migration Act since 2002. Ms Maddock gives evidence concerning the submissions made to various Ministers with respect to s 46A in relation to the applicant between June 2012 and May 2015; andan affidavit of Ms Shatha Mansi sworn on 5 May 2021 (Mansi affidavit – CB Tab 11). Ms Mansi was the Arabic language interpreter present at the applicant’s 15 September 2020 security assessment interview.(Original emphasis.)
Decision
Reasons for decision
Whereas in MZYTS the statutory task involved the formation of a state of satisfaction, here the statutory task involved an “assessment” of whether the applicant posed a risk, directly or indirectly, to security. A failure to consider how, in the future and if released with his family into the Australian community, the applicant would pose a risk to security in Australia can also be characterised as a failure to perform the statutory task required by s 37(1) of the ASIO Act.Findings on the decision of the Director-General My conclusion in favour of the applicant about these two grounds is supported by some of the statements in the TSOG, which are of concern. As I have found, by accepting the recommendations and the documents provided to him, Mr Burgess is properly to be seen as adopting the 2020 TSOG as an explanation for the assessment he has made. In addition, I infer that at the time of the 2020 ASA, Mr Burgess was aware the 2020 TSOG would be presented to the Court as the justification for the 2020 ASA. At [57] of the 2020 TSOG, ASIO makes the following statement:In making this assessment, ASIO has considered the potential harm [the applicant] poses in the current security environment, given his assessed extremist Islamist ideology. ASIO assesses [the applicant’s] presence in Australia would contribute to the cumulative risk of Islamist extremist radicalisation and activity in Australia which supports and promotes PMV, which can be mitigated by excluding such individuals from Australia where possible. Refusal of a visa may continue to have a disruptive effect on [the applicant’s] activities of security concern. [The applicant] presents an avoidable risk to Australia’s security which would be mitigated by refusal of his application for a TPV (subclass 785). I make the following findings about this passage:(a)first, there are no findings by ASIO (and therefore by Mr Burgess) of “activities of security concern” attributed to the applicant since he has been in Australia, despite exhaustive (open) questioning about who he communicates with, who visits him and what external material he accesses. For this to be expressed in the present tense after the applicant has been detained for more than 9 years demonstrates a determination to continue to view any risk posed by the applicant through the prism of activities that occurred overseas more than 19 years ago, rather than through the prism of how the applicant might behave in the future, in a different country, in very different circumstances and after his experiences of the last 9 years;(b)second, by this passage ASIO (and therefore Mr Burgess) is purporting to apply some kind of more global policy about “excluding” individuals to mitigate some kind of perceived overall risk from “Islamist extremist radicalisation and activity in Australia”. That is not the function of the s 37(1) assessment: it is entirely specific to an individual, at a specific point in time, by reference to release into the community and the factual circumstances of that release;(c)third, the concept of an “avoidable risk” is not the statutory concept. Making an assessment of the risk posed by the applicant through this prism is one of the features of the 2020 TSOG (and, therefore, the decision of Mr Burgess), which persuades me ASIO and Mr Burgess have approached this assessment having decided to “avoid” any risk, however theoretical or remote, by producing an assessment that must result in the refusal of a visa to the applicant, because of the terms of s 36(1B), of which they were, I find, aware. This finding is strengthened in my opinion by the references in the briefing note and in the TSOG to proportionality; and(d)fourth, the 2020 TSOG conclusions, and the briefing note, entirely omit any consideration of the matters I have set out at [434] in these reasons, all of which are matters of present and future relevance to any assessment.
Ratio Decidendi
Legal Principle Established
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