PPHF and Ors and Director-General of Security

[2010] AATA 1020

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1020

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4136, 2010/4137 &

SECURITY APPEALS DIVISION  )          2010/4138

Re             PPHF, VGZS and BYRH

Applicants

AndDIRECTOR-GENERAL OF SECURITY

Respondent

DECISION

TribunalJustice Downes, President

Mr MD Allen, Senior Member

Ms G Ettinger, Senior Member

Date17 December 2010

PlaceSydney

DecisionThe Tribunal has no jurisdiction to review the decisions.

.............[sgd]...............................

Justice Downes
  President

CATCHWORDS

ADMINISTRATIVE APPEALS TRIBUNAL – jurisdiction – national security – adverse security assessment – limited visa – no review entitlement

RELEVANT ACT/S:

Australian Security Intelligence Organisation Act 1979 (Cth)ss 36, 37, 38 and 54

Migration Act 1958 (Cth) s 33

REASONS FOR DECISION

17 December 2010

Justice Downes, President

Mr MD Allen, Senior Member

Ms G Ettinger, Senior Member

Introduction

1.      The applicants are three Sri Lankan nationals who were rescued at sea in late 2009 and taken aboard the “Oceanic Viking” to Indonesia.  From Indonesia they were subsequently brought to Christmas Island in Australia.  Prior to their transfer to Australia, the Minister for Immigration and Citizenship made declarations that they were each “taken to have been granted special purpose visas”.  The special purpose visas commenced on 23 and 24 December 2009 and were described as ceasing at the time the subject entered Australia.  In each case that was only a matter of days later.  Prior to the making of the declarations, each of the applicants were the subject of an adverse security assessment made by the Australian Security Intelligence Organisation and furnished to the Department of Immigration and Citizenship.  In one case the assessment was made and furnished to the Department only the day prior to the Minister declaring that the applicants had special purpose visas.  The other assessments were made a number of days earlier.

2.      Shortly after the making of the assessments, on 25 December 2009, the applicants were told orally of the making of the adverse security assessments relating to them and were told that they did not meet “the security requirements for the grant of a visa to settle in Australia permanently”.  They were also told that they would be granted a short term visa to enable them to travel to Australia. 

The Issue

3.      The matter we must determine is whether the applicants are entitled to seek review, in the Administrative Appeals Tribunal, of the making of the adverse security assessments. 

The Legislation

4. The entitlement to a review of an adverse security assessment in the Administrative Appeals Tribunal is conferred by s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth). That section is in Part IV of the Act. Section 36 of the Act (also in Part IV) is in the following form:

36       Part not to apply to certain assessments

This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to:

…

(b)a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958) in respect of a person who is not:

(i)an Australian citizen;

(ii)a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or

(iii)a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa. 

5.      With respect to each of the applicants the fact is that at the time of the making of the adverse security assessment they did not hold a special purpose visa.  They do not hold a special purpose visa now.  However, there was a period of time, numbering perhaps five or six days, during which they were transferred from Indonesia to Christmas Island in Australia, when they did hold a special purpose visa. 

The Result

6. The question in this case is whether Part IV of the ASIO Act, including s 54, applies to the applicants so that they can seek review in the Tribunal. In our opinion, Part IV does not relevantly apply to the applicants and the Tribunal has no jurisdiction to review the making of the assessment.

Preliminary Analysis

7. To understand the issues, it is necessary to look with care at the provisions of s 36. The section is not easily understood, a problem which is not improved by the use of a double negative as part of the test imposed by the section. We think it is helpful to set out the essential parts of the section as they apply to the present applicants to see what the issues are:

This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to… a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35… in respect of a person who is not… a person… taken… to have been granted a special purpose visa.

(The added underlining emphasises the critical issues).

8. It can be seen that what the section does is to determine circumstances in which the whole of Part IV, which otherwise applies to all security assessments, does not apply. We need first to concentrate on the requirement for “a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in s 35.” “Prescribed administrative action” is defined as “the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act” (s 35).  It is said that the applicants have not relevantly made formal applications for a visa to enable them to reside in Australia.  The reason for this appears to be that they were informed that, in the face of the adverse security assessment, such an application would be futile.  They were told this in person in December 2009 and it was confirmed in letters dated 6 April 2010 to each of the applicants informing them that, as a result of the security assessment, they were ineligible for the grant of a permanent visa to remain in Australia. 

The Security Assessments

9. The first matter relied upon by the applicants in support of the proposition that s 36 does not preclude them from bringing this application is that the relevant excluding paragraph relates only to a “security assessment in relation to” what we will call a migration decision (as a summary of the definition set out above) and there is no relevant migration decision in the present case.

10.     To determine this matter it is necessary to look at the terms of the security assessments.  Each of the security assessments is in the following form:

1.ASIO assesses the following individual from the Oceanic Viking caseload to be directly or indirectly a risk to security, within the meaning of Section 4 of the Australian Security Intelligence Act 1979:

[Here the applicants are named]

2.ASIO therefore recommends that any application for a visa by this individual be refused.

3.Public Interest Criterion 4002, Part 1, Schedule 4, Migration Regulation refers.

The public interest criterion referred to is a criterion of the Migration Regulations which requires successful visa applicants not to be the subject of an adverse security assessment. 

“A security assessment in relation to migration action”

11. The applicants say that because they made no application for a visa the test in s 36 is not satisfied. They say that the test is confined to a security assessment issued in relation to some identified action such as the refusal of a visa. In the present case they argue that there has not been any such refusal, merely a statement that an application would certainly be unsuccessful. We are prepared to proceed on the basis that an examination of the records of the Immigration Department would show that no formal application is recorded as having been made. That does not seem to us, however, to be an end to the matter. Although a security assessment will often be made after an application for a visa has been made and before a visa has been granted, there will inevitably be cases in which a security assessment is made in advance. The present is such a case. It is clear from the assessment itself that ASIO was making a recommendation relating to an anticipated application for a visa, although that application might not actually have been made. It seems to me that such a situation is within s 36. We can imagine circumstances in which a security assessment has no association with a visa, in which event the test in the section would not be satisfied. However, it does seem to us that the making of a recommendation that a visa be refused, in the text of and on the basis of, a security assessment, sufficiently constitutes the security assessment as a security assessment in relation to migration action. It accordingly seems to us that the present case does, at least to some extent, attract the provisions of s 36(b) of the Act.

“A person taken to have been granted a special purpose visa”

12. Understanding the issues that arise in the present case can be assisted by looking at the situation at different points of time. The relevant points of time are the time at which the security assessment was made and communicated, the time during which the special purpose visa was in place and the time after which the special purpose visa expired. During the first and third of those periods there can be no suggestion that the relevant security assessment did not fall within the exclusion provisions of s 36. However, the issue is not so clear during the period of currency of the special purpose visa. It is important to note that what s 36 does is to address the question of whether Part IV of the Act applies or not. It does not directly address the question of whether an application for review by this Tribunal is available. There are, of course, many provisions in Part IV, in addition to s 54 (which confers the right of review). In a very real sense there was a time when Part IV did apply to the applicants. If, for example, a security assessment had been made while the special purpose visa was in force, Part IV would undoubtedly have applied.

13. Next it is important to note that what the section does is to operate on a “security assessment”. “Security assessment” is defined in s 35 of the Act (which is in Part IV), not by reference to the act or moment of assessment, but as a “statement in writing furnished by [ASIO] to a Commonwealth agency…”. It follows that the section is not directly referring to a moment of time at which an assessment is made, but to a document which, by definition, will have currency and be relevant and perhaps be acted upon, for a period of time after its making. In these circumstances a question arises as to whether the effect of the legislation is that, during the currency of the special purpose visa, Part IV of the ASIO Act did apply to the security assessments in question. If that was the position, then questions arise as to whether s 54 did apply to the present security assessment, at least during that period. If there was a point of time during which Part IV of the Act applied to the security assessment, why does it not follow that there was then a right of review which continues now?

14. To answer these questions it is necessary to look with a little more care at the provisions of Part IV. Part IV contains a number of provisions relating to the issuing of security assessments. Section 35 contains a number of definitions. Section 37, three subsections of which continue to apply, relates to the making of security assessments in a general fashion. Section 37(2) is not one of the subsections of the Act which continue to operate when the Part does not apply. What is significant about that sub-section is that it requires qualified or adverse security assessments to “be accompanied by a statement of the grounds for the assessment”. That requires a statement of grounds, which is not required for an assessment to which the Part does not apply, to be attached to the assessment at the time of its making. Section 38 requires notice of the assessment to be given to the subject. That requirement speaks with respect to the date of the making of the assessment by providing that written notice of the assessment shall be given to the person assessed “within 14 days after the day on which the assessment is… furnished [to the relevant Commonwealth Agency].” The notice must inform the recipient of the right of appeal to the Tribunal under s 54. Section 38 also contains provisions permitting the Attorney-General to give a certificate having the effect of rendering the making or content of the assessment secret, including a certificate providing for the withholding of notice of the making of the assessment. Division 4 of the Part relates to applications for review before the Tribunal and includes provisions relating to those proceedings, including dealing with matters such as secrecy.

15. The Tribunal needs to determine the correct interpretation of s 36. There are elements in the section that might be thought to point both towards and away from the application of the section where a special purpose visa comes into existence after the making of the assessment. The matters which point in favour of such a conclusion are the fact that the section is concerned with whether the whole of Part IV applies or does not apply, and not with the narrow question of whether an application for review lies. The section does not focus on the moment of making the assessment. There are provisions in the Part which will apply to activities after the making of the assessment. In particular, the right of appeal to this Tribunal exists for a period of 28 days and the time during which the notice of the assessment must be given extends for 14 days. In the present case there was a special purpose visa in place for each of the applicants before these times had expired. On the other hand, there are matters in the Part which suggest that the critical moment is the time at which the adverse assessment is made and that provisions which extend past or after that date are really ancillary to that provision. For example, problems would arise if an adverse assessment is properly made without being accompanied by a statement of grounds, because no special purpose visa existed at that time, although at a later point of time a special purpose visa was taken to have existed. How does this affect the assessment originally made? Could it require the subsequent production of grounds for the assessment? Similar considerations apply with respect to the notification of the assessment. Although a special purpose visa may come into existence before the time for notice has expired, how can notice be given which complies with the Part? What if the visa came into existence on the last day of the notice? Was it the legislative intent that although no grounds should be prepared and no notice given at the time of the making of the assessment, an obligation to do so subsequently arises if a visa later comes into existence?

16.     One of the matters urged upon us by the applicants was that we should be careful to avoid construing the legislation in a way which abrogates important common law rights.  We do not doubt the significance of the principle relied upon, but it is necessary to note that although the right of merits review in this Tribunal is a very significant right created by statute which extends common law rights, it is not a common law right itself.  A similar way of putting the proposition put by the applicants might be to say that we should be careful to avoid construing the provisions of legislation conferring rights on persons in a way which excludes a particular class from enjoying those rights, unless the section is clear. 

Conclusion

17.     The present case is not to be determined by reference to authority.  Indeed, counsel did not refer to authority during their oral arguments.  It is what is sometimes called a point of impression.  There are arguments on both sides. 

18. We have come to the conclusion that s 36 will not admit of a construction which has the consequence that although, at the time a security assessment is made, the obligations imposed by the Act relating to detailed aspects of the preparation and notification of a security assessment do not apply, they do arise the moment, subsequently, that the disqualifying circumstance disappears. The practical consequences (the most important of which we have set out) of attributing to the section such a meaning lead us to conclude that the section cannot be so construed. That could not have been the legislative intent.

19. We accordingly conclude that although there was a period of time during which each of the applicants did hold a special purpose visa within s 36 of the ASIO Act, that fact did not operate to cause s 36 not to apply and to give rise to a right to seek review of the security assessments in this Tribunal. The Act must be read so that the question of determining whether Part IV applies is finally resolved at the time of the making of the assessment. If Part IV is at that time excluded, then subsequent events will not affect that situation.

20. Even if the consequence of the granting of the special purpose visas was to cause Part IV to operate on the assessments, the effect of the Act would nevertheless be that it would only operate for a short period of time. In the light of the matters already highlighted, such an operation would be limited and could not give rise to an obligation to subsequently prepare grounds under s 37(2) which were not required at the time the assessment was made. In these circumstances, the limited operation of Part IV would not give rise to a right of review. Moreover, on any view the Part, even if it applied during the period of currency of the visa, it does not apply any longer. For the applicants to be successful it would be necessary to find that some rights which sprang up during the period when Part IV did apply survived to enable the making of the application to the Tribunal. We do not think that, even if some rights did arise at the time of the granting of the visa, those rights would be sufficient to support a finding that s 54 of the Act applied at the time of the making of the applications to the Tribunal.

21.     For all these reasons we conclude that the Tribunal does not have jurisdiction to hear the three applications for review of the adverse security assessments. 

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed:   ..............[sgd]..........................................................
  Alison Connor, Associate

Date/s of Hearing:  15 December 2010
Date of Decision:  17 December2010
Solicitor for the Applicants:                SBA Lawyers        
Counsel for the Applicants:               Mr P Bolton SC with Mr S Prince
Solicitor for the Respondent:             Australian Government Solicitor
Counsel for the Respondent:           Mr P Hanks QC