Plaintiff S111A/2018 v Minister for Home Affairs (No 4)
[2022] FCA 329
•5 April 2022
FEDERAL COURT OF AUSTRALIA
Plaintiff S111A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329
File number(s): NSD 584 of 2019 Judgment of: MORTIMER J Date of judgment: 5 April 2022 Catchwords: MIGRATION – judicial review – where applicant subject to adverse security assessment and refused protection visa – applicant held in immigration detention for approximately 10 years – use of evidence obtained through torture – denial of procedural fairness – legal unreasonableness –– grounds upheld in part Legislation: Australian Human Rights Commission Act 1986 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 8, 8A, 17, 17(1)(c), 17A, 18(1), 19, 20, 36(1)(b), 19, 20, 36(1)(b), 37, 37(1), 37(2), 37(2)(a), 37(3), 37(4), 85
Freedom of Information Act 1982 (Cth)
Foreign Evidence Act 1994 (Cth)
Judiciary Act1903 (Cth) ss 39B, 44
Migration Act 1958 (Cth) ss 5(h)(2), 36(1B), 46A(1), 46A(2), 197C
Parliamentary Privileges Act 1987 (Cth) 2 16(3)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9(1)
United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 3, 37(b)
Cases cited: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221
AB v Chief Commissioner of Police [2020] FCA 14
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595
Church of Scientology Inc v Woodward [1982] HCA 31; 152 CLR 25
Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
Djockovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
El Ossman v Minister for Immigration and Border Protection [2017] FCA 636; 248 FCR 491
Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22; 156 FCR 559
G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511
Habib v Director-General of Security [2009] FCAFC 48; 175 FCR 411
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757; 146 FCR 427
HT v The Queen [2019] HCA 40; 269 CLR 403
Huddersfield Police Authority v Watson [1947] KB 842
Hughes v The Queen [2017] HCA 20; 263 CLR 338
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438
Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505
Kioa v West [1985] HCA 81; 159 CLR 550 at 627
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279
Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Minister for Immigration, Local Government & Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189
MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285
Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966
MYVC v Director-General of Security [2014] FCA 1447; 234 FCR 134
Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271
Plaintiff S111A/2018 v Minister for Home Affairs(No 2) [2020] FCA 499
Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207
R (Commonwealth) v Baladjam (No 24) [2008] NSWSC 1447
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
RJE v Secretary to Department of Justice [2008] VSCA 265; 21 VR 526
SDCV v Director-General of Security [2021] FCAFC 51; 389 ALR 372
Stambe v Minister for Health (No 2) [2019] FCA 479; 270 FCR 217
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212
Zhang v Metcalf [2020] NSWCA 228
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 464 Date of hearing: 16-18 June 2021, 13 August 2021 Counsel for the Applicant: Mr M Finnane QC Solicitor for the Applicant: Zali Burrows Lawyers Counsel for the Respondents: Mr P Herzfeld SC with Ms A Hammond Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 584 of 2019 BETWEEN: PLAINTIFF S111A/2018
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
DIRECTOR-GENERAL OF SECURITY
Third Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
5 APRIL 2022
THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION
The applicant has been held in immigration detention in Australia for approximately 10 years. Initially in this proceeding he sought relief relating to the lawfulness of his detention, but that cause of action was not pressed in light of the High Court’s decision in in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562. The High Court handed down that decision after the completion of the trial in this proceeding, but prior to the filing of closing written submissions.
The cause of action that remains is a judicial review of two decisions made by the Australian Security Intelligence Organisation (ASIO) in 2018 and in 2020, each of which concluded that the applicant was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth), and that it would not be consistent with the requirements of security for him to be granted a visa under the Migration Act 1958 (Cth). The applicant contends the first of these decisions caused the refusal to grant him a protection visa on 13 June 2018, and the second decision continues to preclude the grant of any visa to him.
As refined in closing written submissions filed on his behalf, the applicant seeks the following substantive relief:
(a)an order quashing the Adverse Security Assessments of 2018 and 2020 (2018 ASA and 2020 ASA) issued by ASIO against the applicant; and
(b)a declaration that ASIO failed to comply with s 37 of the ASIO Act.
It is unclear whether any relief about the refusal to grant the applicant a protection visa is pressed. The third further amended statement of claim (3FASOC), stated that the applicant sought:
An order in the nature of mandamus compelling the First Respondent to consider the application for a visa made by the Applicant on 12 June 2015 and an order in the nature of certiorari quashing the purposed visa refusal decision dated 13 June 2018.
However, this relief was not listed at the end of the closing submissions filed on behalf of the applicant; it was not mentioned or advanced in the substance of the applicant’s submissions; and it was not developed in oral closing submissions on behalf of the applicant.
However, at the end of the closing written submissions, senior counsel for the applicant stated that an extension of time in which to seek such relief was pressed.
The respondents contended in final submissions that it was clear the applicant did not press the orders in the nature of mandamus and certiorari quoted at [4] above, but rather only an extension of time. That would appear correct, and perhaps the explanation is that the applicant considered an extension of time was necessary to regularise the proceeding as a whole, even if that particular relief was no longer pressed. Like other aspects of this proceeding, it remains something of a mystery. However, there does appear to have been a conscious decision not to press relief by way of certiorari and mandamus in relation to the protection visa refusal, and the Court proceeds on that basis.
Thus, at least as initially framed, some of the allegations in the proceeding sought to impugn a migration decision under the Migration Act (such as the refusal of a protection visa), while others sought to impugn an exercise of power which has its source outside the Migration Act and in other federal legislation – namely, the conduct of a security assessment and a decision on that security assessment. The Court’s jurisdiction to hear the judicial review arises under s 44 of the Judiciary Act1903 (Cth) because of the remitter from the High Court.
For the reasons set out below, I have found:
(a)the decision to issue the 2018 ASA involved a denial of procedural fairness to the applicant by reason of the use by ASIO, in a material and significant way, of evidence that had been wholly discredited, including because of the likelihood it was obtained through torture and/or ‘prepared’ by Egyptian authorities;
(b)the decision to issue the 2020 ASA involved a denial of procedural fairness to the applicant by reason of the failure to engage with the applicant about, and determine, the facts, material and information about the applicant’s circumstances, both at the time of the assessment and into the foreseeable future if he were released into the community, which were capable of affecting the assessment of whether the applicant, in 2020 and from that point forward, was a risk to security; and
(c)the first error was of a kind that also rendered the decisions to issue the 2018 ASA legally unreasonable. The second error might also have been capable of leading to this result but that contention was not clearly advanced on behalf of the applicant.
My present view is that those findings are sufficient to justify substantive relief in favour of the applicant is respect of the 2018 and 2020 ASAs. However, the parties will be given an opportunity be heard on appropriate relief.
THE COURSE OF THIS PROCEEDING
The proceeding has taken a long time to come to trial, for a variety of reasons. Much of the background is traced in three interlocutory decisions, two of Robertson J and one of my own: see Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271; Plaintiff S111A/2018 vMinister for Home Affairs (No 2) [2020] FCA 499; and Plaintiff S111A/2018 v Minister for Home Affairs (No 3) [2021] FCA 207. I adopt the descriptions of the background from those three sets of reasons and do not repeat them here.
By orders made on 5 February 2021, the proceeding was fixed for trial on 16 June 2021. Detailed trial preparation orders were made, not all of which the applicant’s legal representatives complied with. I accept senior counsel and his instructor have worked on this proceeding basically unassisted and it has been burdensome, and that this explains some of the non-compliance. However, there has also been something of a lack of focus and precision on the core aspects of the applicant’s challenges, which has not assisted the respondents in responding to the allegations, and has not assisted the Court in resolving them.
The respondents assumed the burden of preparing a set of digital court books, for which the Court is grateful.
Initially, the applicant’s digital tender bundle comprised more than 10,000 pages. Senior counsel for the applicant stated in opening that it was not proposed to rely on all those documents. Quite why they were then included in the tender bundle remains a mystery.
The parties resolved most of their objections to evidence by agreement, and orders were made accordingly. The respondents pressed objections to a number of documents, and considerable parts of the applicant’s written outline of submissions filed before trial, on the basis that the documents and submissions contravened s 16(3) of the Parliamentary Privileges Act 1987 (Cth). The applicant pressed reliance on these documents and on those portions of his submissions. The Court upheld the respondents’ objections and those documents were excluded, and the applicant was ordered to file another version of the written outline that complied with the Court’s ruling.
The parties reviewed their digital tender bundles and identified to the Court the documents upon which they sought to rely. Insofar as the respondents were concerned, this process was straightforward. Insofar as the applicant’s legal representatives were concerned, it was not. On the second day of trial senior counsel for the applicant drew the Court’s attention to some tables that had been sent to chambers and to the respondents. These tables purported to represent the documents that the applicant proposed to tender, by reference to certain topics covered (it was said) in the second further amended statement of claim (2FASOC) or the 3FASOC. However, after being given some time to re-consider the tables, in part in light of the rulings made by the Court about the 3FASOC, senior counsel for the applicant advised the Court in the afternoon of the second day that only a very limited number of documents would be relied upon. They were outlined, and the respondents were given an opportunity to consider the new proposed tender bundle, which was significantly smaller.
An amended, and reduced, version of the court book was prepared and marked as a series of exhibits. It remained formatted into four volumes, since a fourth volume, as a supplementary court book, was filed by the respondents. Each volume was marked separately as an exhibit.
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; and
an 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.)
Volume B of the court book comprises those materials from the respondents’ tender bundle that were ultimately included as evidence. This was a very large volume of over 3000 pages of material, including over 100 emails relating to the applicant internal to or between the respondents, around 100 “case reviews”, being pro forma documents noting the circumstances of individuals in detention, and relevant materials provided by ASIO such as the interview transcripts, ASAs and truncated statement of grounds for the ASA made in 2018 (2018 TSOG) and 2020 TSOG. Much of this evidence is now not relevant because the AJL20 argument is not pressed.
Volume C of the court book comprises those materials from the applicant’s tender bundle that were ultimately included as evidence. It again was a volume of over 1000 pages of at times eclectic material, ranging from documents such as email correspondence that had been disclosed to the applicant through the Freedom of Information (FOI) process, to a significant volume of open source information such as newspaper articles relating to the applicant or issues relevant to his case.
The supplementary court book included materials relied on at trial that had not been included in the first three volumes, and an updated version of the 2020 TSOG. Senior counsel for the respondents explained at the trial that there is no difference to the “underlying document”, the only difference between the two versions being that some words had been redacted from certain footnotes in the earlier version, which appeared un-redacted in the later version.
The respondents took responsibility for the preparation of these materials. In relation to that task, they noted in their closing submissions:
As requested by the Court, the respondents’ solicitors have prepared and filed a final version of the Electronic Court Book and Supplementary Electronic Court Book for this proceeding. Those court books contain the pleadings, the affidavits which have been read, and the documents which have been tendered.
Detailed submissions concerning particular evidence are made at the appropriate points below. For present purposes it is sufficient to note two matters.
First, a substantial part of the applicant’s first affidavit (ECB Vol A Tab 5) outlines various matters regarding his personal history and events involving others. Most of that material is irrelevant to the allegations in the 3FASOC, because: (a) the key events in the chronology are uncontentious; and (b) this proceeding is now focused on the activities of ASIO, principally in making the 2018 and 2020 ASAs. To the extent that those issues intersect with the facts of the applicant’s history, the question for the Court is whether the Director-General erred in law on the material then available. The truth or otherwise of facts in the applicant’s first affidavit have no bearing on that question.
Second, though the respondent read at trial an affidavit of Rhyl Clare Shannon Maddock affirmed on 29 April 2021 (ECB Vol A Tab 10), that evidence was relevant only to the now abandoned claim that the applicant was unlawfully detained between 2012 and 2015.
(Original emphasis.)
Some observations about the way the applicant’s case was framed, and developed
The applicant’s case on judicial review has travelled through many iterations. There have been at least three iterations of his case since senior counsel was retained. The last iteration was notified to the respondents after 7.00 pm the day before the trial commenced, and notified to the Court when the trial commenced. After hearing argument, the Court granted leave to the applicant to rely on a 3FASOC, but only as to some of the numerous amendments sought. A ruling was given on the leave application. After some indecision, senior counsel also clarified that the applicant maintained a challenge to both the 2018 and the 2020 ASIO assessments.
These reasons concentrate on the points developed as part of the applicant’s case, in written and oral submissions. As the respondents pointed out in their closing submissions, there are some pleadings that have not been the subject of any submissions.
In his opening however, senior counsel for the applicant did open on all of the allegations in the 3FASOC, albeit in the sparest of fashions. It was thus tolerably clear that the applicant pressed all of the pleaded allegations, despite not pressing all the relief originally sought. I accept, however, that the respondents and the Court remained somewhat in the dark about how some of the arguments were framed in any level of detail.
In other cases, pleadings have simply been repeated as a submission, but not developed by reference to any evidence or legal argument.
For example – [120] of the 3FASOC pleaded that the applicant was denied procedural fairness because ASIO failed to accurately summarise in the 2020 TSOG the applicant’s evidence as given in the 2020 interview. No submissions were made to develop this claim. Similarly, there was some discussion of [111] of the 3FASOC, which senior counsel for the applicant repeated as a submission in his closing submissions, but confirmed that he did not intend to develop the point any further. Paragraph [111] contained an allegation that the applicant had been invited to provide additional material for ASIO’s consideration and such material was provided and not considered.
It is not the Court’s role to try and piece together an argument on behalf of the applicant, in fact or in law. Senior counsel for the applicant was expressly invited to develop points, and the difficulties for his client’s case in terms of undeveloped allegations were made clear:
HER HONOUR: We may be at cross-purposes, Mr Finnane, but the point the respondents are making at 5(c), which I rather think you’ve confirmed by what you’ve said, is that there are no submissions made on behalf of the applicant. And what you’ve taken me to are pleadings and the particulars of the pleadings, but not submissions - - -
MR FINNANE: ..... yes, but in my submissions, your Honour, earlier submissions of 17 June - - -
HER HONOUR: Yes.
MR FINNANE: - - - in paragraph 4 we said:
The applicant relies on all matters particularised in the amended statement of claim, including the further particulars provided in the letter to the respondents of 22 February 2021.
HER HONOUR: Well, if that’s all that’s said, Mr Finnane, that your client relies on it, and it’s not developed any more than that, - - -
MR FINNANE: No, it’s not developed any - - -
HER HONOUR: - - - then, the difficulty for you - - -
MR FINNANE: - - - more than that.
HER HONOUR: All right. Well, the - - -
MR FINNANE: What it says, your Honour, is that those documents were received but they did not appear in the truncate[d] grounds. That’s the effect of those earlier submissions and the paragraphs that I’ve referred to, and the emails. Those particular matters were provided but were not referred to. That’s what that related to. We did not put a separate submission in the latest set of submissions that we put in, that is certainly true.
HER HONOUR: All right. Thank you.
While the respondents attempted to assist the Court by developing at least short submissions on every allegation, and the Court is grateful for that assistance, there has been a failure on the part of the legal representatives of the applicant to even attempt to discharge the burden of proof that falls on the applicant in respect of some of the pleaded allegations. It would have been more appropriate for such allegations to have been withdrawn, or expressly indicated not to be pressed.
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.
In his affidavit the applicant provides a detailed account of his work in Albania as a store manager for IIRO, an account which denies any involvement in any political or terrorist related activities while he worked in this position. This is contrary to the conclusions ultimately reached by ASIO. I make no findings one way or the other about the truth of that account.
The applicant met his wife in Albania in 1994. She is an Albanian national. In the same year the applicant commenced working for another charity, the Revival of Islamic Heritage Society. He describes RIHS in the following way:
This is an independent charity. It is a Kuwaiti organisation which I believe was established in the 1980s. There were branch offices in London, Asian Countries, Eastern Europe and from 1991 after communism, there was one opened in Albania. Besides me there were 5 or 6 people in the Albanian office responsible for orphan support, mosques, construction, family support, education and general management. I remained in this employment for almost a year and about three months.
In his affidavit, the applicant provides a detailed account of his work in Albania for RIHS. This account denies any involvement in any political or terrorist related activities while he worked in that position. This is contrary to the conclusions ultimately reached by ASIO. I make no findings one way or the other about the truth of that account.
The applicant and his wife had their first child in May 1995, in Albania. They lived in Albania until April 1997. The applicant started and developed his own business in Albania importing plastic tables and chairs and other plastic items from Syria and Turkey to Albania.
The applicant describes several individuals in his affidavit. Later, during his ASIO interviews, he was asked about these individuals. These people were said by ASIO to be associated with EIJ. It is unnecessary to set out the applicant’s evidence about whether or not he knew these individuals; suffice to say that his account in his affidavit contains admissions and denials in terms of whether he knew these individuals, and denials of knowledge of any association they had with EIJ. I make no findings one way or the other on this evidence.
The applicant describes leaving Albania in 1997 due to growing unrest in that country. He also describes his suspicions of Egyptian authorities at this time, and what he understood had happened to others who had trusted Egyptian authorities. Therefore, the applicant and his family travelled to the United Kingdom instead. He explains how, and why, he entered the UK on a false passport. He deposes that his Egyptian passport and his wife’s Albanian passport are held, still, by the British authorities after a failed attempt by him to have a friend bring them to the UK. The applicant and his family sought asylum in the UK on the day they arrived, 14 April 1997. The applicant commenced studies in the UK in English and computing.
The applicant then describes in his affidavit that he was approached by officers of MI5, the British security intelligence organisation. He deposes this occurred in early November 1997, and that in substance he was invited to become an informer. I make no findings about whether these events occurred.
The applicant was arrested at his home by British authorities on 23 September 1998, a day after the birth of his third daughter. He was detained and questioned for five days about his associations with a particular individual. The applicant gave the following evidence, which I accept:
My lawyer advised me that if I had done anything wrong that I should seek to admit and explain but if not that I should make no comment. I took this advice and answered ‘no comment’ to questions. I was released without charge on the 5th day.
(Original emphasis.)
The applicant was then detained in UK immigration detention for 10 months. For the first four of these months he was held in a prison. His asylum claim had not been determined, but in 1998 the applicant had, along with more than a hundred other people, been charged with serious criminal offences in Egypt, relating to joining a banned group and participating in unlawful activities on behalf of that group, which were to be the foundation of what the parties and the evidence generally referred to as the “Returnees from Albania trial”. I shall adopt that description.
The charges against the applicant related to allegations the applicant had been an active member of “operational cells” of EIJ in Albania. EIJ was a banned organisation in Egypt.
The evidence, including evidence from the Egyptian government that is before the Court, is inconsistent about the dates of the Egyptian Military Court’s decision and the passing of its sentence on the applicant. One date given is 18 April 1999 as the date of sentence in absentia, with that decision being “ratified” on 20 November 1999. Another document, purporting to be a certificate from an Egyptian Military prosecutor’s office, gives the date of sentence as 18 May 1999, and the date of “certification” of the sentence as 20 January 1999. In his affidavit, the applicant nominates 19 April 1999 as the date of the Egyptian Court’s decision. Other evidence before the Court (such as protection visa decision records and the translated Egyptian court documents provided by the applicant to ASIO (ECB3377 and ECB3470)) give the date as 18 April 1999.
These charges led to the following response from the UK authorities, as described by the applicant in his affidavit at [96] and [97]:
On 1 February 1999, I was informed by a letter from the Immigration and Nationality Directorate of the Home Office that the Secretary of State acknowledging that “I might ordinarily have granted asylum” but because I was “satisfied that there were serious reasons for considering that I had been guilty of acts contrary to the purposes and principles of the United Nations” (Referring to the Returnees from Albanian Trial in 1999), I was “excluded from the protection provided by the 1951 United Nations Convention Relating to the Status of Refugees.” The letter also stated that the Secretary of State will “consider whether my removal from the UK would represent a breach of Article 3 of the European Convention on Human Rights (ECHR) and whether it would be appropriate to seek a safe third country which would be prepared to admit you.”
It was decided that my removal and the other Egyptian citizens to a third country was not practical. I was aware that on 9 March 1999, the Secretary of State for the Home Department of the UK authorized officials to obtain “assurances” from the Egyptian government that I and the other Egyptian citizens would not be subjected to torture, cruel, inhuman or degrading treatment if extradited to Egypt. At the relevant time, there was no extradition arrangement between the UK and Egypt. On 23 March 1999, the British Ambassador to Egypt was advised that the Minister of the Interior for Egypt had not provided “adequate” assurances to extradite I and the other Egyptian citizens to Egypt. Despite this initial reaction, further “requests for assurances” were sought by the UK from the Egyptian authorities. I was very terrified, what if I was deported and what if I go through what I have already been before.
(Original emphasis.)
As to the Returnees from Albania trial itself, the applicant deposes (at [102]):
I was not aware that I was part of the trial until the rulings were made. I was aware of the trial because my father was a defendant in the trial. I first heard about the Ruling when I was informed by my mother. My lawyer, (who represented my father initially) in Egypt was not allowed to obtain any documents from the court, nor even the court ruling. I was not provided with any documents or information during the trial.
The applicant was released from UK immigration detention in July 1999. He explains his release in the following terms:
On 9 July 1999, after approximately ten months in detention, I and the other Egyptian detainees were released from immigration detention in the UK. The High Court of Justice in London threatened to grant a writ of habeas corpus unless the Secretary of State, Jack Straw obtained “assurances” from the Egyptian government. When those “assurances” were not forthcoming, the Secretary of State stated that he “was no longer minded to continue to remove them.” Following this, I was issued with a temporary UK visa, after the UK government declined to grant me a permanent visa.
(Original emphasis.)
He deposes (at [94]–[95]):
Following my release on 9 July 1999 from detention, my lawyer lodged a civil action for unlawful arrest and detention against the British Home Office. He also lodged another claim in relation inappropriate use of power but I’m not sure of the exact details. My motivation was to clear the air and clear a pathway to a successful visa application in order for my family and I to attain permanency in the U.K. I wanted a stable and settled family life for my family.
…
My unlawful detention civil action was successful as was the second proceeding when they were finally determined 3 to 4 years after I left the U.K in or about 2004 or 2005. The judgement found that the detention had been unlawful and there was also an order for 9000 pounds’ compensation. The compensation was not able to be released to me as I had already left the U.K.
As to his migration status in the UK, and that of his family, the applicant deposes (at [99]):
On 16 October 1999, my application for Permanent Residency in the U.K. was refused with no reasons outlined. Instead, my family and I were given an exceptional leave to reside in the UK which was to be renewed regularly.
I see no reason not to accept the evidence I have set out at [48]-[52].
After his release in July 1999, the applicant and his family moved to another part of the UK and he continued his English and computing studies. He deposes to being again approached by MI5 officers in September 2001, and deposes to his migration status in the UK being threatened if he failed to co-operate. I make no findings about whether or not the applicant was approached and threatened as he describes.
The Interpol Red Notice (IRN), which was to play a key role in the decision making of the Australian authorities about the applicant and the security risk it was determined he presented, was issued in late 2001. The applicant deposes (at [109]):
On 1 October 2001 Egyptian Authorities registered a Red Notice at Interpol against me. I was not aware of this at the time. I first became aware of the Interpol Red Notice when the Australian Federal Police informed me on 14 November 2012.
I accept that evidence, including the applicant’s evidence about when he first became aware of the existence of the IRN. Later in his affidavit, the applicant describes the effect of receiving this information (at [135]-[139]):
On 22 June 2012, my wife, my eldest daughter and I had an entry interview.
We felt that everything was going ok and were waiting when we will be released like other people.
I was interviewed by the Australian Federal Police and the Immigration Department on four occasions between 14 November 2012 and 22 January 2013. During the first interview I became aware, for the first time, of there being an Interpol Red Flag. However, I was still not privy to the nature of the charges in the Interpol Red Notice.
I felt I was lost. I could not believe what I heard. It was shock for me and my family. But I believed that this was wrong and AFP may get me confused with another person. So, I started contacting my Egyptian lawyer to find out what was going on.
I did not give up. I could get all documents that I have now which prove my innocence. Which I have been providing to ASIO, AFP and DIBP since 2012.
I also accept that account by the applicant of how he found out about the IRN, and what his personal reaction was.
Returning to the chronology prior to the applicant’s arrival in Australia, it was also in late 2001 that the applicant decided to move himself and his family to Iran “where I thought we might be able to make a life as part of the Arab community and be safe from persecution”. The applicant and his family moved to Iran in December 2001. In its 2018 TSOG and 2020 TSOG, ASIO attributes the applicant’s decision to the 11 September 2001 attacks in the United States, finding the applicant’s decision:
to have been influenced primarily by his fear of being re-arrested by the UK authorities following the September 11 2001 attacks in the US. These attacks resulted in renewed concern about, and investigation of, Islamic extremist groups in the West.
If that was the applicant’s reasoning, it would not have been irrational. Nor does it reveal anything necessarily culpable or nefarious about the applicant’s conduct or decision. The Court can take judicial notice of the fact that the post-11 September 2001 environment in many Western countries for Muslim people was extremely difficult, and many Muslims were exposed to arrest, detention and questioning.
The applicant deposes to serious health problems experienced by his wife and himself, and the responsibilities which fell on their then 7 year old daughter because of their inability to care for the family. I accept that evidence. He deposes that in July 2002 he was arrested by Iranian authorities, moved from one place of custody to another, and not provided with a lawyer. There is no reason not to accept this evidence. His wife and children were also forcibly moved by the Iranian authorities. The applicant deposes, and I accept, that in January 2004 the Iranian authorities moved him and his family to a refugee camp in Ebrahem Abad village, 35 km from Arak City in Iran, with eleven other families, who were mostly Iraqi and Palestinian, and one Kurdish family. All were Muslim Sunnis. They were detained in this camp for more than five and a half years. This narrative was substantively accepted by the delegate who decided the applicant’s protection visa application.
The applicant deposes, and I accept, that during his detention in this camp, his health deteriorated and he had a number of surgeries. At trial, the respondents were not prepared to concede the applicant had, or continues to have, the specific kinds of serious health conditions he describes. Whether or not the specific conditions he nominates are accurate diagnoses (and it was difficult to tell if this was the respondents’ real objection), for the reasons I have given above, I consider there is no basis to doubt the applicant as a reliable historian and witness on these matters. I accept his evidence that he has, over his lifetime, and to the time of trial in this proceeding, experienced a number of serious health conditions, and has had a number of medical interventions in his adult lifetime.
The applicant also deposes, and I accept, that eventually the Iranian authorities sought to deport all the families in this camp, and his family was the last to be deported, after being detained in Tehran in a house for almost another year. I make no findings about the Iranian authorities’ reasons for taking this action. The youngest, and sixth, child of the applicant and his wife was born during this time in Tehran. At [127]-[134], the applicant completes his account of how he and his family came to travel by boat to Australia, which I broadly accept:
Finally, there was agreement that we depart to the UK via Malaysia. On 2 May 2010, we departed Iran for Malaysia; and then on 7 May 2010 we travelled from Malaysia to Indonesia. On 3 June 2010, we left Indonesia to the UK via Singapore-on-Singapore Airlines. However, we were arrested in Singapore Airport and were deported back to Jakarta, Indonesia on 4 June 2010. The fake Finnish Passport which Iranian authorities had provided to us was the reason for the arrest at Singapore airport.
…
On 07 May 2010, Indonesian Immigration arrested us and detained us in an Indonesian Immigration detention centre for almost four months. On 17 June 2010, we were registered with UNHCR Jakarta. My family and I were released on 12 October 2010 into the community under the care of International [Organization for Migration] (IOM).
…
On 30 August 2010, my wife and I were interviewed by a UNHCR officer. We waited for the UNHCR’s decision for twenty-one months. There was a recommendation of refugee status by the UNHCR Indonesia but never any formal decision by UNHCR head office.
One officer from IRIN website called me and offered his help to bring attention to my case. He was introduced to me via IOM and identified himself as a UNHCR officer[.] After one month I found my story in the IRIN website. I was horrified to discover that I had been deceived. My words had been distorted and I was misrepresented. My words had been embellished to include false details including indicating that I had been to India as well as several other misrepresentations. He wasn’t an UNHCR officer but rather a dodgy journalist.
After losing hope that a decision would be made and following the horrible experience of the IRIN story we decided to come to Australia by boat in search of safety.
…
We arrived in Australia on 11 May 2012 and remained in a Christmas Island Immigration detention centre for 15 days. We were very happy that we successfully arrived. The first thing I thought was how can register my children in school.
We were happy that we will start new life after these all years travelling around the world and it was my hope for my family to become Australian citizens and live a happy and safe family life.
On 26 May 2012, my family and I were moved from Christmas Island to Inverbrackie Detention Centre in South Australia.
(Emphasis added.)
The date of 7 May 2010, in bold in the second paragraph, must be erroneous. It seems the correct date might be 7 June 2010, which would fit with the rest of the chronology. I do not consider this error to affect the general reliability of the applicant’s narrative.
The arrival of the applicant and his family on Christmas Island would, as the evidence demonstrates, be the commencement of yet a further extraordinarily long period of deprivation of liberty for them.
Events in Australia
The long path to being able to apply for protection
Due to the operation of s 46A(1) of the Migration Act and the government policy it reflected, the applicant and his family, as people who came to Australia by boat, were not able to make applications for protection visas unless the responsible Minister exercised a personal power permitting them to do so.
Initially, it appears consideration was given to the whole family being placed in community detention while a decision was made about whether or not to “lift the bar” and allow them to make protection visa applications. The third footnote to the 2018 TSOG states:
In July 2012, the Department of Immigration and Citizenship, now known as the Department of Home Affairs (HA), requested security advice from ASIO in relation to placing [the applicant] in community detention. ASIO initially advised of no security related concerns but withdrew this advice in August 2012 following correspondence with the Australian Federal Police (AFP) which confirmed [the applicant] was the subject of an Interpol Red Notice issued by Egyptian authorities for terrorism-related offences.
By this time the IRN was already 11 years old, having been issued shortly after the September 11 attacks in the United States in 2001.
As a result, the applicant remained in immigration detention. It appears not to be in dispute that while his wife and children may have been eligible for release, and there was no suggestion any security concerns would prevent this, the firm position of the whole family was that they wanted to remain together, and if that meant staying in immigration detention because the applicant could not be released, that is what they sought to have occur. I do not say ‘wished to have occur’, because at a human level it was an invidious choice for a family to have to make.
A submission about whether the s 46A(2) power should be exercised in relation to the applicant and his family was put before the responsible Minister more than three times. First, in September 2012 with no decisions being made at all by the then responsible Minister by February 2013 despite numerous inquiries from the departmental officer, Ms Maddock. A second ministerial submission was made in February 2013, when a new Minister was appointed, but was the subject of considerable drafting and re-drafting. Thus, no decision was made.
The IRN was amended on 13 June 2013 to remove all charges and retain two convictions arising from the 1999 trial (the applicant having been tried in absentia):
(a)being a member of an illegally formed extremist organisation, which aims at calling for the obstruction of the Constitution and laws, preventing public authorities from carrying out their activities, jeopardising national unity and social peace; and
(b)forging travel documents for the organisation’s members to facilitate their movement in carrying out terrorist operations.
Meanwhile, in July 2013, a new Minister was appointed with responsibility for the exercise of the personal power in s 46A(2). Shortly thereafter, in September 2013, there was a change in government, and another new Minister was appointed. Another s 46A(2) submission was put before this Minister on 13 November 2013. Ms Maddock’s evidence describes the outcome of this next process (at [59]-[63]):
On 18 September 2013 the Hon Scott Morrison MP was appointed as the Minister for Immigration and Border Protection.
He was provided with a copy of the Second Ministerial Submission on 13 November 2013 (RTB 559). This would have been after the usual period of briefing for a new Minister, explained at [36] above, and briefings associated with a newly elected Government.
Sometime prior to 11 April 2014, the Minister’s Office asked whether it would be possible to seek assurances from a third party country which the Applicant could be removed to. I undertook research on that question, and on 11 April 2014, I emailed Ian Deane and Nicole Marshall with my conclusions and country information (RTB 714-715). Later that day, I asked Nicole Marshall whether she considered it was appropriate for Mr Deane to provide legal advice on that question (RTB 713-714).
On 22 April 2014, the Second Ministerial Submission was returned from the Minister’s Office to the Department with a notation that read (RTB 560):
Please update and return once the outcome of discussions with Egypt and Albania are known, including any discussions between IOM and the family.
On 28 April 2014, I was copied into an email from Lynne Gillam, the Assistant Secretary of the Onshore Protection Branch to Alison Larkins (RTB 712-713). Ms Gillam advised that the Department’s advice remained that it was preferable to apply s 46A of the Act so that the Applicant’s claims could be assessed under the statutory process. She considered that the protection and character assessments under the Act should take place as soon as possible. She also indicated that it was premature to seek assurances from the Egyptian or Albanian governments.
Ms Maddock’s evidence reveals an unsatisfactory and indecisive process at the ministerial level, despite the best efforts of departmental officers such as Ms Maddock.
A month or two later, officers within the Department tried again. Ms Maddock describes why this process did not come to fruition (at [64]-[67]):
Following the return of the Second Ministerial Submission, there were no further significant discussions between the Department and Egypt or Albania. This is because these discussions could only usefully take place after the Applicant had applied for a protection visa. Accordingly, on 12 June 2014, the Department provided a third Ministerial submission to Minister Morrison (Third Ministerial Submission) (RTB 755). The submission stated at paragraph 4 (RTB 757):
The option of seeking diplomatic assurances from either Egypt or Albania… only becomes available following an assessment of the family’s protection claims, and only if the family do not engage Australia’s obligations under the Refugees Convention.
This Third Ministerial Submission stated that it involved consultation with DFAT, the Attorney General’s Department, ASIO, the AFP, and the Global Manager Refugee and Humanitarian Visas, Special Counsel and Legal Division and the Immigration Intelligence Branch within the Department (RTB 759). I consider this accurately reflects the consultation the Department engaged with. This consultation was largely to confirm whether those agencies and areas within the Department continued to support the approach being taken in the Third Ministerial submission. The Third Ministerial Submission was settled by the Acting Deputy Secretary of the Policy and Programme Management Group and signed by the First Assistant Secretary of the Refugee Humanitarian and International Policy Division (RTB 760).
On 17 July 2014, ASIO advised the Department that the Applicant was (RTB 778):
… directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 and that it would not be consistent with the requirement of security for him to be granted a visa under the Migration Act 1958.
On 17 July 2014, the Third Ministerial Submission was withdrawn by the Department to be updated to take into account the advice from ASIO (RTB 787).
(Original emphasis.)
Despite the July 2014 adverse ASIO assessment (2014 ASA), another Ministerial briefing to (then) Minister Morrison was made in late August 2014. A later briefing note records that, in one of many ironies attending the way the various aspects of the applicant’s migration status in Australia have been approached, the absence of a protection visa application (and any favourable finding) had prevented the applicant seeking independent review of this 2014 ASIO assessment:
On 17 July 2014, ASIO issued an ASA in relation to [the applicant]. [The applicant] subsequently requested review of this decision by the Independent Reviewer, the Honourable Margaret Stone. He has been advised, however, that only those who have been assessed as engaging Australia’s protection obligations are eligible for review, and consequently he wrote to the IGIS about his ASA. The Department notes that ASIO reviews its own assessments on an ongoing basis.
(Emphasis added.)
Of course, a protection visa assessment was what the applicant had been seeking, and hoping for, since he arrived in Australia in 2012. On a separate note, the last sentence of this extract refers to a practice to which I return in greater detail later in these reasons.
In December 2014, Minister Morrison declined to agree to lift the bar under s 46A(2) of the Migration Act.
A further submission was made on 31 March 2015, by way of a briefing to yet a different Minister. This time, on 18 May 2015, the new Minister decided to allow the applicant to apply for a temporary protection visa. Again this appeared to be despite the 2014 ASA, which, unless withdrawn or altered, would be fatal to the protection visa application.
It had taken the applicant and his family more than three years in immigration detention to be able to even apply for protection in Australia.
The protection visa applications
The applicant made a protection visa application on 12 June 2015.
Once again, the applicant remained detained for a long period of time without receiving a decision on this application. The application was refused on 13 June 2018, three years later. The following findings of the delegate should be reproduced:
I accept the applicant’s father and brother-in-law were defendants in the Returnees from Albania trial and confessions made by them were obtained under duress as these claims are generally consistent with independent reports about that trial. ([142])
…
I accept the judicial process in the Returnees from Albania trial was seriously compromised given the range of commentary from reputable human rights observers about the conduct of that trial. ([143])
…
Evidently the judicial process in the Returnees from Albania trial was seriously flawed. ([145])
…
Given the significant problems associated with the conduct of the Returnees from Albania trial, I have formed the view that, by itself, the offences the applicant was convicted of in that court case cannot be relied upon as sufficient evidence that he joined a group established against the rule of law (i.e. he was a member of Egyptian Islamic Jihad) who participated in a criminal agreement. Nevertheless, there are a range of other considerations relevant to finding if the applicant is or was a member of Egyptian Islamic Jihad, and, if so, whether or not he knowingly contributed to the commission of a crime against peace, a war crime, a crime against humanity, a serious non-political crime and/or is guilty of acting contrary to the purposes and principles of the United Nations. ([146])
…
Having read the wealth of information provided to the Department in support of the Protection visa application lodged by the applicant, and having spoken to him over four days, I have formed the view that the applicant is an intelligent, well-educated, multilingual and worldly individual who has not been completely open and honest about his personal history and the nature and extent of associations he has or has had with other people and organisations. The fact that prosecutorial and judicial processes that were followed in the Returnees from Albania trial did not satisfy international standards of probity, effectiveness and impartiality does not mean, ipso facto, that the applicant is not a member of Egyptian Islamic Jihad. In my view: the political situation in Egypt and the personal experiences of the applicant during the formative years of his life; the timing and location of his international travel; the people he was associated with Albania, the United Kingdom and Iran; the organisations he worked for abroad; and the focus of intelligence officials on the applicant in the United Kingdom and Iran leads me to the conclusion that he is a member of Egyptian Islamic Jihad. Analysis about whether or not the applicant forged travel documents for members of that organisation, and/or, committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime or is guilty of acting contrary to the purposes and principles of the United Nations is set out in Part 3 of this assessment record. ([155])
…
It is evident that the prosecutorial and judicial processes in the Returnees from Albania trial were seriously compromised. All 107 defendants in that trial were charged with joining a group that was established against the rule of law and participating in a criminal agreement; a number of defendants could not have been guilty of the crimes they were convicted of; the applicant and numerous other defendants were tried in absentia; the applicant did not have the opportunity to mount an adequate defence against the offences he was charged with; a number of people convicted in the Returnees from Albania trial had confessions extracted with the use of torture; there was a paucity of physical evidence in the case; and there is considerable doubt about the reliability of the evidence used to support the convictions of those who have sought redress in Egyptian appellate courts. Furthermore, it is documented that the Egyptian judiciary sometimes arrives at outcomes reflecting political motivations and are not supported by publically available evidence, and the Egyptian executive has a long history of differentially targeting Islamists in that country in an attempt to marginalise them politically. Having taken these matters into account, I consider the conduct of Egyptian authorities in relation to the charging and prosecution of many of the accused in the Returnees from Albania trial was neither a reasonable nor proportional response to protecting the interests of the Egyptian State, the citizens of Egypt, and visitors to that country. It is evident that the applicant is associated with individuals who were tortured and executed after being arrested and charged by Egyptian authorities in the lead up to the Returnees from Albania trial. Such treatment offends the standards of civil societies which seek to meet the calls of common humanity and involves such a significant departure from the standards of the civilised world as to constitute persecution. Therefore, I consider the discriminatory enforcement of a law of general application for political reasons is the essential and significant reason why the applicant has been targeted by Egyptian authorities. ([167])
(Footnotes omitted.)
At [175], the delegate concluded he was:
satisfied that there is a real chance that if the applicant returned to the receiving country, he would be persecuted for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act, specifically political opinion.
At [185]-[191], the delegate concluded that there were no serious reasons for considering the applicant has committed acts set out in in paragraphs 5H(2)(a), (b) or (c) of the Migration Act. Therefore, the delegate concluded (at [192]) he was:
satisfied the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because he is a refugee. Accordingly, the applicant satisfies paragraph 36(2)(a) of the Act.
However, based on the 2018 ASA, the delegate concluded (at [208]):
I have considered comments made by the applicant and his migration agent about the Interpol Red Notice, the IGIS report by Dr Vivienne Thom, the review of ASAs and judicial review of the Returnees from Albania trial, findings made by the United Nations Working Group on Arbitrary Detention, and the body of law regulating government decision making. However, the evidence before me indicates that ASIO assessed the applicant to be directly or indirectly a risk to security within the meaning of the ASIO Act 1979 on 23 April 2018[.] This assessment remains in force. Therefore I find the applicant does not satisfy the criterion in subsection 36(1B) of the Migration Act 1958.
The delegate correctly recognised he had no discretion about this matter, despite his own findings favourable to the applicant, reproduced at [81] and [82] above.
The ASIO assessments
The evidence shows that, not long after the applicant’s arrival in Australia, officers within both the Department of Immigration and Citizenship, and ASIO, became aware of the IRN, through the Australian Federal Police. Ms Maddock deposes at [16]-[17]:
On 24 July 2012, Gregory Caris wrote to the Marieka Mysko noting that (RTB 70):
HGL051 - Client has been proposed for the past two s46A Min Subs but removed due to Amber MAL issues being addressed by ASIO. Information provided by BOC indicates that client has also been referred to Interpol. Client is also of IAS Interest (COi note added 18/07/2012).
Family group includes HGL057, HGL052, HGL054, HGL055, HGL056, HGL060 and HGL076.
I understand that ‘HGL051’ is a reference to the Boat ID of the Applicant, ‘BOC’ stands for ‘Border Operations Centre’, ‘IAS’ was the ‘Intelligence Analysis Section’ of the Department of Immigration and Citizenship and a ‘COI note’ was a ‘Client of Interest’ note. I understand that the reference to an ‘Amber MAL’ is to the ‘Movement Alert List’ which is a database used to identify travellers who may present immigration or national security risks to Australia. A person may be designated as ‘amber’ on the MAL if they are a potential risk, which has not yet been assessed.
Ms Maddock deposes (at [38]) that:
On 18 October 2012, the AFP wrote to the Department to advise it of the AFP's ongoing interest in the Applicant (RTB 432). That letter stated (RTB 432):
It is the AFP’s strong suspicion that [the applicant] is the subject of a current Interpol Red Notice, issued on 9 October 2001. The Interpol Red Notice reflects [the applicant] has been convicted, in absentia, for premeditated murder, destruction of property, possession of firearms, ammunition and explosives, as well as membership of a terrorist group between 1989 and 1998.
As the Independent Reviewer of Adverse Security Assessments Robert Cornall AO would later find, the IRN was based initially on charges and later conviction in absentia arising as part of the Returnees from Albania trial. In 2012, it appears from Ms Maddock’s evidence that it was mostly AFP, rather than ASIO, officers meeting with the applicant. AFP officers met with him at least four times.
Ms Maddock deposes (at [39]):
On 5 April 2013, Janet Mackin, who was the Regional Manager for Status Resolution South indicated in an email that the AFP had concluded its investigations and that extradition would not proceed (RTB 320). Ms Mackin also advised that the Applicant’s family were beginning to withdraw, but that the children were still going to school. I was forwarded a copy of Ms Mackin’s email on 8 April 2013, and I responded indicating that the s 46A should be progressed again (RTB 318). Up until that point, I believe that a 46A Submission had not been finalised due to the change in Minister, but that a draft submission was well advanced (and there was a version on which we sought legal review prepared on 18 April 2013 …).
By this time, the Australian Human Rights Commission was also investigating the failure to progress the claims for protection by the applicant and his family.
Initially, it appears ASIO did not assess the applicant as representing a risk to Australia’s security. This can be inferred from Ms Maddock’s evidence at [26], which was admitted as a statement of her belief. I find Ms Maddock has been closely involved in the applicant’s case for several years. I find her belief about this fact to be a sufficient basis to infer that, initially, ASIO did not assess the applicant as representing a risk to security. This fact is also clear from the extract at [66] above.
ASIO Interviews
The applicant was first interviewed by ASIO officers on 10 July 2013. Each of the interviews I describe in this section was conducted through an interpreter. That fact is relevant to some of the grounds of judicial review.
The first ASIO interview occurred after the four times the applicant had been interviewed by the AFP. For some unexplained reason, the first ASIO interview was conducted during Ramadan, when the applicant was fasting. The interview appears to have lasted more than eight hours, with two breaks. However, the applicant could neither eat nor drink during that entire time. The transcript of this interview is in evidence. After explaining ASIO’s role in providing security advice to the Australian Government on matters relating to national security, including to the Department of Immigration and Citizenship, the interviewer describes the purposes of this particular interview:
So the purpose of this interview is to assist ASIO in providing advice – security advice to DIAC, so as to whether or not you would be a risk to Australia’s national security. Okay. So it’s not our role to assess whether you meet the criteria for a visa.
This statement was repeated, with minor variations, several times in the first part of the interview. It is not necessary to describe the contents of the interview, but the applicant’s final statement should be noted, when he was asked if he had any concerns:
Look, to be honest, I had too many interviews and too many nice things have been said during the interviews, but nothing have been acted upon, so I hope this interview will be fruitful. I’m honest with you. I had four interviews with the Federal Police. I told them everything and nothing happened. After those four interviews, the media is talking about me as a terrorist or a murderer.
The ASIO officers responded that the visa process was not their responsibility but “so the interview today will resolve a security assessment for you, but that’s all that ASIO is doing here today” (with my emphasis added).
However, that statement proved inaccurate.
The applicant was interviewed again on 5 November 2013. The interviewing officers gave themselves different first names, but there is no evidence whether these names are aliases, and whether they were the same officers from the July 2013 interview. One officer states “my name is Jacki, just in case you have forgotten”. However, no officer by the name of “Jacki” interviewed the applicant in July 2013. It would appear, I infer, that the officers used aliases, and used different aliases each time, even if it was in fact the same ASIO officer.
The applicant was told:
We – I know we’ve spoken to you before and you’ve given us a lot of information in that last interview. So we’ll be going over some things that we’ve already discussed. And I would just like to remind you that it’s important that you’re honest with us during the process.
This interview commenced at 9.35 am and ended at 5.05 pm. The interviewing officers emphasised the need for the applicant to be honest and not withhold anything. At the end of the interview the officers sought to have the applicant confirm again that he had answered everything honestly and not withheld anything. It was clear that the applicant was frustrated with the repetitious questioning. There was the following exchange at the end of the interview:
[The applicant]: You live here in Australia but the situation in Egypt and other Arab countries is totally different. Not all Muslim people are terrorists. Even if I have some friends that are – are under suspicion, I was put in a position, in a situation where I went through these things. I can’t do anything else to prove to you that this is the truth … I know that you have to be very careful about people coming into this country, and that’s your right. But don’t think things from – from the outside.
Q406: Well, I mean, that’s - - -
[The applicant]: Everything has its own defects.
Q407: No, look, I agree completely. But, you know, that’s one of the reasons why we’re talking to you.
The applicant was interviewed again on 22 January 2014, by two ASIO officers with different names, which I infer are likely to have been aliases. This interview commenced at 9.50 am. There is no concluding time recorded, but one of the ASIO officers described it as a “very long day”. The transcript records 716 questions, compared to 421 for the second interview. The second interview had 102 pages of transcript. The third interview had 136 pages. I infer the third interview went longer than the second interview. In this third interview, the applicant was told at the start of the interview:
Gabriella: So we needed to come back today to talk to you to get a bit more detail from you.
…
Gabriella: So we are - as I said, we’re here to gather some more information to – that we will use to provide advice to Immigration. And I just wanted to clarify for you that, in your case, you have not actually made a visa application yet.
[The applicant]: No.
Gabriella: So Immigration has not yet asked us for this advice, but ASIO began an investigation, which it can do under its Act, to provide advice to Immigration.
…
Gabriella: We are getting closer to being able to finish our advice for Immigration. I can’t give you an exact date yet when it will be finished, but I just wanted to make sure that you understand that, because there’s no visa application yet, there might be many more Immigration processes before there is a decision about whether to give you a visa.
The officers asked the applicant if he was in good health, or taking any medication, or needed a break to take medication at any time. The applicant’s response should be set out, after having told them what his health problems were, which was the same description given in his affidavit in this trial:
[The applicant]: Okay. To be honest, I’m so cooperative with the interview side of thing, but I feel like what’s called – you said a word - like I’m fed up with the process. I will try to hold my nerves and try to be cooperative as – and hope that – to – for this thing to be done. I know it’s not your problem, it’s Immigration problem, but the Immigration always – I mean, put it as the reason or the cause from your part, not from their … Okay, okay. Now, I’ve been in the detention centre for 21 months, including 10 months I was separated from my family.
Gabriella: Yes, we know. And we understand that would be very frustrating for you, and we’re also trying to finalise this as quickly as possible for a decision for you.
Interpreter: I thank you for that.
Gabriella: Okay. And, you know, Immigration and ASIO is all the one government, and unfortunately there are processes that have to be followed and everybody is working very hard to try and finalise a decision for you and in all cases.
Interpreter: Yeah. I’m grateful to that.
Gabriella: Okay. We will try and make this as stress free as possible.
Interpreter: Yeah. And for any information that I – if I’m aware of it, I won’t hesitate to give it to you.
It was after this interview that the 2014 ASA was issued.
To recall the chronology, without repeating it, in 2015 and despite this assessment meaning a protection visa must inevitably be refused, the s 46A(1) bar was lifted. However, and again despite the fact there would be an inevitable refusal of the visa because of the 2014 ASA, there was no decision on the applicant’s protection visa application for three years. It was during this time, on 11 July 2017, that the applicant was interviewed by ASIO again. This interview commenced at 9.58 am. The interviewers gave yet another two different aliases. It is not possible to ascertain from the evidence whether one or both of them had interviewed the applicant before. The applicant had a legal representative with him, as it appears from the transcripts in evidence he had done at two of the past three interviews. The legal representative was told at the start of the interview that she could not use her computer, and:
Likewise, you are free to take notes but any notes that you do take will need to be passed to us to be shredded at the end of the interview.
Understandably, the legal representative, Ms Ryburn, said:
MS RYBURN: The only reason I’ve got it is in case, yeah, there was any reference to some document.
ELIZABETH: Okay.
MS RYBURN: There’s so many documents in this case ‐‐
She was told she could use her laptop during breaks to look at documents.
The ASIO officer identified as Elizabeth described the purpose of the interview to the applicant and his lawyer:
ASIO is reviewing your adverse security assessment dated 22 July 2014 as part of ASIO’s standard security assessment review procedures. We have some further questions for you today regarding your background, activities, associations and attitudes relevant to security and we’ll cover those with you today.
This interview will assist ASIO in providing a security assessment to the Department of Immigration and Border Protection on whether or not you are considered a risk to Australia’s national security. It’s not ASIO’s role to assess whether you meet the criteria for a visa. That decision remains that of the Department of Immigration and Border Protection.
After some introductory matters, the applicant was asked whether he had any questions, and this exchange ensued:
[The applicant]: I have a simple question before we start this interview in regards to the decision of ASIO in relation to the 17th or the 22nd of July 2014 ‐‐
ELIZABETH: Mmm‐hmm.
[The applicant]: ‐‐ and the adverse security assessment. Until now I have not been given any explanation into the decision of ASIO.
ELIZABETH: Okay. Well, in terms of that previous assessment, there is restrictions in terms of what can be communicated because of national security requirements. However, we have a number of questions for you today, we’ll discuss a number of topics and we will put information to you that I am quite certain will give you an idea or a sense of what our concerns are in relation to your application.
I infer that by the word “application” the ASIO officer was referring to the applicant’s protection visa application.
The applicant was then questioned, at great length, using essentially the same kind of questioning as he had been questioned with on the previous three occasions, going right back to such basic information as his name, date of birth, his first language, whether he was married, how many children he had, and how he described his religious affiliation. The applicant showed, in my opinion, considerable patience and respect to the questioners, given his extraordinarily difficult circumstances. A lot of time was then spent questioning the applicant about his mobile phone(s), to which he had access in detention, and who he called and why, how he used the phones and the like. The ASIO officers had his phone records and asked questions based on these records. He was then asked about who were his “closest friends and associates in detention at the moment”. This questioning went on for some time. The applicant was then asked about people whose names and details the ASIO officers had assembled, and who visited him in detention or who may have asked to see him. This questioning went on for some time. The applicant gave straightforward answers, describing a wide range of people including former detainees, members of the Arab, Jewish and other ethnic communities who came to visit and share a meal, an international lawyer who was assisting him with a complaint to the United Nations, doctors, and lawyers. The questioning then returned, at length again, to the mobile phones he had used, or had acquired for his family to use. It then moved to what news and other websites he read. The applicant explained:
So, well, part of my browsing was me trying to obtain some information, so this browsing might have led me to websites that have information about al‐Qa’ida or some Islamic groups, and this was part of my search about information about my case when I was in England. And this was a part of my work with my lawyer in ‐ trying to provide a statement or write a statement about my case. And so I was forced to look at websites that might have information about incidents related to terrorism and things that are related to my case, because I didn’t have much information about that period. And I had knowledge that the ‐ there was surveillance in my computer and that they know that ‐ which websites I’m going to. And my goal or my only goal was to obtain information about what happened in my case in England. And in my case in Egypt a lot of names were mentioned. And a lot of names would be mentioned in the case that I don’t know, so I wanted to know who are these people.
He was questioned at length about whether he made comments online, including on social media. He was asked about his email addresses and how he used them, as well as how and if he used platforms such as Facebook. It should be noted that it is clear from the evidence that persons held in immigration detention do have access to internet-based sites, with some limitations and in accordance with some restrictions. The applicant was then asked about communications with his Egypt-based family, again based on call records that the ASIO officers had. Lengthy questioning focused on some searches the applicant did about particular individuals who ASIO suggested were associated with EIJ but were now political figures in Egypt. At this point in the interview the applicant’s lawyer interjected, objecting to some of the assumptions in the questions, or in the line of questioning. The transcript also attests to the applicant’s frustrations with the questioning process. When pressed, for example, about his knowledge of his Egyptian lawyer:
[The applicant]: I’m ‐ I’m happy that I’ve been given this opportunity, but the problem is that the circumstances that I’ve been through, no matter how much I explain them, no-one would be able to imagine them, other than myself and my family.
When you asked about the background of my lawyer and things that have happened 25 years ago, when I stayed for 10 years without knowing anything about my family and my parents, my father or mother, how would I know the background of my lawyer?
All these things that have happened with him have happened after I left Egypt. When I was in England – when I was in England, I did not call him at all and I didn’t know anything about him. When I was detained in Iran, I was – isolated myself and my family from all the external world. My father and my mother, I didn’t know whether they were dead or alive. In Indonesia, I didn’t call him. Here I didn’t call him until 2013, and I explained the circumstances under which I had to call him. This is everything, but what he is or what he did or what he didn’t do, I don’t know anything about that.
In my opinion, the matters put to the Court on behalf of the respondents demonstrate why it is critical that the s 37(1) assessment be substantially forward-looking, rather than backward-looking. To take a situation removed from the present: there are many individuals in the Australian community who are convicted of grievous crimes of a kind which imperil the safety of other members of the Australian community, on the basis they are found to have lied about their conduct, but who are released back into that community because there is an assessment that, perhaps for a wide range of forward-looking reasons, no preventative detention regime can be applied to them to keep them separated from the community after their sentence has been served. Whether or not they were found (in this example, after an adversarial process and by a judge or jury) to have lied about their past conduct is not the central question on whether they should be released, and what risks they pose in the future.
More critically, there is simply an insufficient probative basis in the evidence to support the hypothesis put forward by senior counsel on behalf of the respondents in the above transcript extract. There is no evidence that ASIO relied on classified information about the applicant’s current ideology or activities. That inference is readily drawn from the absence of redactions in those parts of the 2020 TSOG relating to these issues, and the presence of redactions in all the historical activities sections.
Returning to the 2020 interview, there were also some questions about whether the applicant had financially supported al-Qaeda or EIJ, or shared al-Qaeda or EIJ material, which appeared to be framed as including in recent years, but again this was not really clear at all. In my opinion it would not have been clear to the applicant what time frame was being referred to, coming as it did after a series of questions about people being capable of changing their views.
The applicant was then asked:
Have you ever held anti-American views or opinions?
Again, this is a question which many members of the Australian community might answer affirmatively. The applicant answered:
No, but I differentiate between the United States as a country and the government, the American government.
He went on to explain, quite rationally, that he did oppose former President Trump’s decision to stop Muslims from entering America. Questions like this sit, in my opinion, at the very edge – and possibly over it – of questions likely to elicit any material probative for the purposes of s 37(1) assessments. The terms of s 17A of the ASIO Act must be recalled, and they constrain the performance of the function under ss 17 and 37(1) of the ASIO Act, and should be seen to constrain the performance of functions such as the conduct of interviews in pursuance of those functions:
This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security, and the functions of the Organisation shall be construed accordingly.
It goes without saying that sitting within the rights recognised by this provision are the rights to hold beliefs of the same kind, even if never acted upon. So too, the terms of s 20 of the ASIO Act should be recalled.
It was then put to the applicant that in ASIO’s opinion, in Albania, the UK and Iran, he associated with people ASIO considered of “security concern”. The applicant denied this, as he consistently had. However, he was then asked:
What would be the difference in Australia?
Again, the premise of the question is one the applicant has never accepted and has consistently denied. The only way the applicant could give an answer that could tend against a conclusion of risk would be to recant everything he had said to ASIO over the last (at the time of interview) eight years. He explained again his denials. Having done that, he said the following:
[The applicant]: (Foreign language spoken)
INTERPRETER: As my – here in Australia – as in, [here] in Australia - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - I believe – I think - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - if I go to the community in Australia - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: ASIO?
[The applicant]: (Foreign language spoken)
INTERPRETER: Yes – ASIO would not let go of me. It will - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: Anything – any mistake that I would do - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - you will know about it - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - and then I will be accountable for.
[The applicant]: (Foreign language spoken)
INTERPRETER: Australia is a country that has law.
[The applicant]: (Foreign language spoken)
INTERPRETER: It has a very strong security system.
[The applicant]: (Foreign language spoken)
INTERPRETER: So, if I did nothing in the past, how can I do it in the present?
[The applicant]: (Foreign language spoken)
INTERVIEWER A: Okay.
INTERPRETER: Okay.
The ASIO officers then repeated, in different words, their conclusion about the applicant to him again. If this interview were a court proceeding, the exercise would be described as ‘puttage’. It was formulaic. But this was not an adversarial proceeding; it was an inquiry and investigation by ASIO so that it could form a view about the risk, if any, posed by the applicant in late 2020 to the Australian community if he were released on a visa. This ‘puttage’ went on for several pages of transcript until the applicant said:
I’ve noticed that you’re just repeating the questions.
A few pages later, after more repetition, the ASIO interviewer states:
The reason I keep repeating myself is because we want to make it really clear what our concerns are that we have of you.
There is then the following exchange:
INTERVIEWER A: Okay. So, in ASIO’s experience, an extremist ideology does not change often or easily.
INTERPRETER: (Foreign language spoken)
[The applicant]: (Foreign language spoken)
INTERVIEWER A: It can happen, but ASIO would need to see proof.
INTERPRETER: (Foreign language spoken)
[The applicant]: (Foreign language spoken)
INTERPRETER: (Foreign language spoken) Proof.
INTERVIEWER A: Evidence.
To interpolate here, not only is this an example of the level of prejudgment by the interviewing officers, but it is difficult to conceive what the questioner could rationally have had in mind in terms of “proof”, for a person in the applicant’s circumstances. He has not been able to reside in the Australian community even under a surveillance regime so as to ‘prove’ himself. His statements are set at naught by the officers. Statements supporting him are set at naught. Aside from the catch-22 to which I referred earlier (confessing to conduct he denies engaging in), there is no rational content to the “proof” the applicant was told he needed to produce.
The interview continued:
[The applicant]: (Foreign language spoken)
INTERPRETER: You say that it could happen, but I – okay. (Foreign language spoken)
[The applicant]: (Foreign language spoken)
INTERPRETER: Okay.
INTERVIEWER A: Unless we see some form of evidence that your beliefs have changed - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - the risk of harm to Australians would be unacceptable.
INTERPRETER: (Foreign language spoken)
[The applicant]: Mm.
INTERVIEWER A: ASIO believes, based on classified information - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - that you have engaged in terrorist activities - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - in Egypt, Albania and England over a 10-year period.
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: But, because you have continued to deny everything and you have not admitted to anything - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - ASIO believes that you have lied about all of your EIJ and al-Qaeda activities - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - your background ideology, which we consider supports terrorism.
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: And, because of this, we are concerned that you continue to hold an extremist ideology.
INTERPRETER: (Foreign language spoken)
[The applicant]: Mm.
INTERVIEWER A: How can ASIO believe that you wish to live peacefully in Australia - - -
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: - - - when you continue to withhold information from us?
INTERPRETER: (Foreign language spoken)
INTERVIEWER A: Would you like to comment?
INTERPRETER: (Foreign language spoken)
[The applicant]: (Foreign language spoken)
INTERPRETER: Yes.
[The applicant]: (Foreign language spoken)
INTERPRETER: I’m repeating the same words.
[The applicant]: (Foreign language spoken)
INTERPRETER: I deny these claims.
[The applicant]: (Foreign language spoken)
INTERPRETER: And I’m asking ASIO to provide me with evidence, what are the activities that I’ve got involved in for the previous years - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - and present me with evidence of what you’re claiming.
[The applicant]: (Foreign language spoken)
INTERPRETER: What I see and I feel - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - that ASIO is trying to pressure me mentally while I’m in the detention centre - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - either to admit something, to confess something, I did not do - - -
[The applicant]: (Foreign language spoken)
INTERPRETER: - - - or I will be under this torture and this mental stress, pressure, for a long period of time.
[The applicant]: (Foreign language spoken)
INTERPRETER: Egypt used the same methodology but in a different way.
[The applicant]: (Foreign language spoken)
INTERPRETER: In Egypt, they will put the person under torture until he confesses and signs a confession which is previously – prepared in advance.
[The applicant]: (Foreign language spoken)
INTERPRETER: Unfortunately, this is the same thing happening here in Australia, but in another way.
[The applicant]: (Foreign language spoken)
INTERPRETER: I’m not a member in the Jihad.
[The applicant]: (Foreign language spoken)
INTERPRETER: I wasn’t part of the EIJ.
[The applicant]: (Foreign language spoken)
INTERPRETER: I have nothing to do with al-Qaeda.
[The applicant]: (Foreign language spoken)
INTERPRETER: I have no activities that – I have no activities that has relation with this is this – al-Qaeda.
[The applicant]: (Foreign language spoken)
INTERPRETER: If you have any proof, give it to me, present it as an evidence in front of me.
[The applicant]: (Foreign language spoken)
INTERPRETER: Under this pressure, I’m not going to confess something that I did not do.
The exchange extracted above at [412] then occurred.
Contrary to the respondents’ submissions, I do not consider that the exchanges in the interview transcript can be described as “detailed and express consideration to the applicant’s current ideology, his family and community ties, and what he would do if released into the Australian community”. Rather there were general inquiries of questionable provenance, there was ‘puttage’, seemingly endlessly, but not with any indication from the questioners that they were actually interested in the answers, rather that they were going through the motions they had been advised to go through, but their views remained immutable. There was no “detail” at all. There were no questions about matters such as:
(a)if the applicant were released, where he might live, whether he would go a mosque and if so which one, and how if at all this might affect any risk he might pose to security;
(b)who he would associate with;
(c)whether he would be become involved with any political parties or movements;
(d)what relationships with people overseas would be maintained, and how, and for what purpose;
(e)whether he would work and if so in what field;
(f)what activities he would undertake and with whom;
(g)what he would expect his children to be doing and what role he would play in his children’s lives;
(h)how, if at all, might involvement with his wife and family affect any inclination to engage in activities that might pose a risk to security; and/or
(i)whether there were any administrative or statutory arrangements that could be used in relation to the applicant to provide additional initial supervision of his activities, so as to mitigate any potential risks.
Nor were any such matters addressed in the 2020 TSOG, or in the briefing note to Mr Burgess. For these reasons, and for the further reasons set out below, in respect of a related ground, I accept the applicant’s contentions on this matter.
Failure to consider evidence of any rehabilitation and the applicant’s recent good conduct (3FASOC [119])
Clause 8.7 of SAD3 provides:
Character relevant to ‘security’ including:
aspects of past and/or present personal behaviour, including criminal conduct, which:
is inconsistent with the requirements of security; or
gives rise to a reasonable suspicion that the assessment subject is vulnerable to exploitation relevant to security; or
raises doubts about credibility of the assessment subject and which reduces the weight to be given to any information given by the assessment subject.
(Note that evidence of any rehabilitation and recent good conduct may be relevant to the assessment).
This ground is directly linked to the one discussed above, but also less directly to the allegations about bias and closed minds, which I have discussed at [387]-[388] above.
My conclusions on the allegations in 3FASOC [118] and [119]
Irrespective of the conclusions on the binding effect of SAD3, for the reasons outlined above and below, in my opinion the applicant is correct to contend that in its 2020 ASA, as revealed by the 2020 TSOG, ASIO did not actively and genuinely engage in any consideration of how the applicant had behaved since he had been in Australia. That is despite a tremendous amount of close questioning, based on surveillance and records available to ASIO, about who he had been in contact with during his time in immigration detention, and what material and sites he had accessed on the internet. Clearly none of the answers to those questions, nor the material ASIO had access to as a result of its surveillance, demonstrated any kind of risk, because all of these topics are conspicuously absent from the 2020 TSOG and the briefing note to Mr Burgess. None of this could have been in the classified material as the questions and answers have been provided openly to the applicant and the Court in the 2020 interview transcript, including names of individuals.
Further, as I have explained in relation to 3FASOC [118], there was an absence of questioning of the applicant about most of the matters which could rationally and reasonably affect or influence any assessment of how he might behave in the future if released into the Australian community. As I have emphasised, the function under s 37(1), relevantly to the applicant, was to provide an assessment for the purpose of the applicant’s visa application. That visa application, fundamentally, concerned permission for the applicant to reside in the Australian community. The security assessment, therefore, needed to be prospective, to address the circumstances in which he might be living in the community and how he might behave in those circumstances, rather than to focus almost exclusively on what ASIO considered the applicant did some 20-30 years ago.
The grounds in [118] and [119] of the 3FASOC should be upheld.
How the grounds in [118] and [119] affect the validity of the 2020 ASA
The applicant contended and I accept that these errors can be characterised as denials of procedural fairness. The applicant was denied not only a reasonable opportunity but any opportunity to advance how he proposed to live in the community, who he would associate with, how his family would conduct itself, what the attitudes of his family were to life in Australia and to their place as members of the Australian community, whether he might be influenced by those attitudes, how he would be involved in the life of his wife and children, whether he would seek employment – all facts and matters that were rationally capable of affecting whether, in reality and not just in theory, his presence in the Australian community would pose any risk to security. All these facts and matters were central to the assessment of risk, in 2020, on release from immigration detention. Yet the applicant was not questioned about them at all. An entire line of engagement and inquiry in the interview process – his best opportunity to persuade – was denied to him.
The ASIO interview was the proper place for the applicant to be given this opportunity. Its denial to him is a denial that then flows through to how the material is presented to Mr Burgess in the briefing note and recommendations. There is a conspicuous absence in the briefing note of any references at all to the matters I have described above, in terms of how the assessment of whether, in the future and if released with his family into the Australian community, the applicant would pose a risk to Australian security. Instead, there was reliance on conduct that had occurred overseas some 20-30 years ago. There is no basis to find any classified material existed and was considered by ASIO about the applicant’s future behaviour. That is because the applicant was closely but openly questioned about his associates, his friends, and the internet material he uses since he has been in immigration detention. None of this questioning, nor anything that could be said to be connected to it, made its way into the 2020 TSOG or into the briefing note to Mr Burgess.
Therefore, I find this denial of procedural fairness carried through to, and affected, the validity of the consideration given by Mr Burgess. He did not consider these issues either, as nothing was presented to him and there is no evidence of any consideration by him outside the documents adduced into evidence. He also made a decision on the same day the briefing note was given to him, and declined to ask for any matters to be discussed.
It is also possible to characterise the error as a failure by Mr Burgess, acting on the recommendation of officers within his organisation, to perform the task that s 37(1) requires. A number of propositions emerge from the Full Court’s decision in MZYTS, which are relevant to the upholding of these challenges. Like the assessment of whether a person has a well-founded fear of persecution if returned to their country of nationality, an assessment of whether a person is a risk to security if permitted to reside in the Australian community is an exercise about predicting what is likely to occur in the future. In MZYTS at [34], the Full Court said:
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
And at [73]-[77]:
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the [Refugees] Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
We agree, with respect, with the approach taken by Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [36]-[42]. That approach is consistent with what we have identified as the Tribunal’s statutory task under the Migration Act in relation to s 36(2)(a) and Art 1 of the Refugees Convention. The Minister submitted that the distinction drawn by Rares J at [37] between two statements by Mason J in Peko-Wallsend (at 39-42 and 45 respectively) was wrong. We reject that submission. Recalling first that Mason J was considering these matters in the context of the Administrative Decisions (Judicial Review) Act and not s 39B of the Judiciary Act 1903 (Cth) or s 75(v) of the Constitution, we consider his Honour was articulating two separate, but related, principles. In introducing that part of his reasons dealing with this, his Honour said (at 42):
In the present case, the respondents submit that the Minister, in failing to consider the submissions which they had made to his predecessors, neglected to take into account a consideration which he was bound to take into account in making his decision. It is convenient to divide this central issue into two separate, but related, questions. The first is whether the Minister is bound to take into account the comments on detriment which the Commissioner is required by s 50(3)(b) of the Act to include in his report to the Minister. The second is whether he is also bound, as opposed to merely entitled, to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment.
Having found (at 44) by implication from the statute that the Commissioner’s comments on detriment were a relevant consideration, Mason J then described it as “but a short and logical step” to find that consideration of that factor must be based on the most recent and accurate information to hand. After applying that approach to the facts before him, Mason J continued (at 45):
In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
In that passage it is clear Mason J makes a separate statement of principle about the use by administrative decision-makers of the most current material available. Of course we have found that the subject matter, scope and purpose of s 36(2)(a) of the Migration Act requires such an approach in any event, so it is unnecessary to rely on any more general implication. Nevertheless, we agree with Rares J that Mason J’s judgment does articulate two distinct principles.
At [46], the Full Court explained that the description of “failure to consider” may not capture the error:
Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
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.
For these reasons, the errors in ASIO’s approach affected, and infected, the decision of Mr Burgess.
The legal unreasonableness grounds
There are at least several aspects of the conduct of ASIO officers prior to the finalisation of the two assessments that are expressly challenged as legally unreasonable, in the alternative (as I understand it) to constituting denials of procedural fairness:
(a)withholding documents from the applicant, in the sense of providing documents with redactions that were not present on the same documents obtained under FOI; and
(b)considering and/or relying on evidence obtained under torture, contrary to ASIO’s own policies.
In addition, it was not entirely clear whether the applicant submitted that the failure to consider the applicant’s current circumstances, and future risk if released into the Australian community, was undertaken in a way that was legally unreasonable. My findings to this point would have led me to conclude the conduct could have been characterised in this way, but I say no more than that since no argument was pleaded or developed on behalf of the applicant based on this characterisation.
As I understand it, the applicant contends that if the conduct or failures set out at [452] are characterised as legally unreasonable, they are capable of invalidating each of the assessments.
I did not understand the respondents to dispute the proposition that if the Court were to conclude that if either of the 2018 or 2020 ASAs (or both of them) were conducted in a way that was legally unreasonable, or involved material findings or conclusions that were legally unreasonable or irrational, then either or both of the assessments would be invalid. That is, the respondents did not submit that the principles of legal unreasonableness did not or could not apply to the 2018 and 2020 ASAs.
The principles of legal unreasonableness are well established, and in general terms were summarised in the High Court’s decision in Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26]:
A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power”.
(Footnotes omitted.)
As is clear from this extract, the standard to be met by a party alleging legal unreasonableness is an onerous one. A more fulsome discussion was recently provided by the Full Court of this Court in Djockovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [30]-[35]:
As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.
That taxonomy should not, however, be taken to mask the interrelationship of result and specific error. Nevertheless here, as shall be seen, the complaints made were directed to identifiable errors: a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction, illogical or irrational reasoning central to the reaching of the relevant state of satisfaction, and such matters also affecting the exercise of discretion. It was not the applicant’s case that aside from the identified errors the outcome was so overwhelmingly wrong that it must be characterised as unlawful.
The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at 3–6 [2]–[13]. See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at 170–172 [54]–[65].
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
I respectfully agree with this characterisation. This explanation occurred in the context of jurisdictional error, where there is a privative clause. The concept of jurisdictional error is relevant where the Court’s jurisdiction arises under s 39B of the Judiciary Act 1903 (Cth) and constitutional writs, or orders reflecting constitutional writs, are sought: see Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 at [169], Gummow J. On the question of invalidity and jurisdictional error, see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51], [53], [63], [67], [153], and the authorities cited by me in Stambe v Minister for Health (No 2) [2019] FCA 479; 270 FCR 217 at [67].
For the reasons I have explained, I consider that it is correct to characterise the reliance in the 2018 ASA and Mr Lewis’ decision on evidence from the Returnees from Albania trial as involving legally unreasonable conclusions, findings or approaches, which result in the 2018 ASA and the decision of Mr Lewis being properly characterised as legally unreasonable.
As I have explained, the applicant did not advance a clear submission of legal unreasonableness in relation to the failure to actively and genuinely engage with the current circumstances of the applicant and what he was or was not likely to do if released into the Australian community, with his wife and six children. If he had done so, I may have been inclined to accept this aspect of Mr Burgess’ decision making was also legally unreasonable.
Other miscellaneous allegations
It is not in dispute that the applicant was one of thousands of asylum seekers affected by what is commonly described as a “data breach” by the Department of Immigration and Border Protection, whereby identifying details of applicants for protection visas were publicly available: see generally Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180. The applicant alleges, it would appear in relation to both the 2018 and 2020 ASAs, that ASIO did not take into account the consequences for the applicant of being removed to Egypt in circumstances where his identifying information had been published. The applicant did not develop how this would have exacerbated or increased the risks he faced in Egypt, given that any removal process would have involved identifying him to the Egyptian authorities.
I accept the respondents’ submissions that there is no substance to this allegation and it should be rejected.
CONCLUSIONS
The judicial review application must be allowed, on some of the grounds alleged. My present view is that my conclusions should lead to declaratory relief about the invalidity of 2018 ASA and the 2020 ASA, and to each of them being set aside. However, I will give the parties an opportunity to consider these reasons and discuss the appropriate relief, then put to the Court a set of proposed orders, by consent if possible. Otherwise, the matter will be relisted for a short oral hearing about relief.
As to costs, again I will hear the parties on the question of costs, once they have had an opportunity to consider the Court’s findings and reasons.
I certify that the preceding four hundred and sixty-four (464) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 5 April 2022
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