Sagar v O'Sullivan

Case [2011] FCA 182

FEDERAL COURT OF AUSTRALIA

Sagar v O’Sullivan [2011] FCA 182

Citation: Sagar v O’Sullivan [2011] FCA 182
Parties: MOHAMMED YUSSEF SAGAR and MUHAMMAD FAISAL v PAUL O'SULLIVAN SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY
File number: VID 188 of 2006
Judge: TRACEY J
Date of judgment: 4 March 2011
Catchwords: ADMINISTRATIVE LAW – adverse security assessments – material relied upon by decision-maker subject to public interest immunity – application of procedural fairness requirements – judicial review of decision on security grounds – must necessarily be balanced against national security interests
Legislation: Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 6, 7, 8, 17, 20, 21, 35, 36, 37
Migration Act 1958 (Cth) s 116
Cases cited:

A v Secretary of State for the Home Department [2005] 2 AC 68 cited
Alister v R (1984) 154 CLR 404 applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Church of Scientology Inc v Woodward (1982) 154 CLR 25 cited
Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532 applied
Haneef v Minister for Immigration and Citizenship (2007) 161 CLR 40 cited
Kioa v West (1985) 159 CLR 550 applied
Leghaei v Director-General of Security (2007) 241 ALR 141 distinguished
Leghaei v Director-General of Security [2005] FCA 1576 distinguished
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Minister for Immigration & Citizenship v SZGUR (201) 273 ALR 233 applied
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 applied
Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 94 ALR 177 cited
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 cited
Parkin v O’Sullivan (2009) 260 ALR 503 cited
R v Secretary of State for Trade and Industry; Ex parte Lonrho plc [1989] 1 WLR 525 cited
Re IBM Global Services Australia Ltd [2005] FCAFC 66 cited
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 cited
State of Victoria v Seal Rocks Victoria (Aust) Pty Ltd (2001) 3 VR 1 cited
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 cited

Friedmann W, Legal Theory (5th ed, Columbia University, 1967)
Neumann F, The Rule of Law: Political Theory and the Legal System in Modern Society (Berg Press, 1986)
Rawls J, A Theory of Justice (Belknap Press, 1971)
Date of hearing: 2 February 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 93
Counsel for the First and Second Applicants: JWK Burnside QC with LW Maher
Solicitor for the First and Second Applicants: Maurice Blackburn Lawyers
Counsel for the Respondent: C Gunst QC with S Donaghue
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 188 of 2006
BETWEEN:

MOHAMMED YUSSEF SAGAR
First Applicant

MUHAMMAD FAISAL
Second Applicant
AND:

PAUL O'SULLIVAN SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

4 MARCH 2011

WHERE MADE:

MELBOURNE

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Sagar v O'Sullivan [2011] FCA 182
Case
[2011] FCA 182
Decision Date

CaseChat Overview and Summary

In the case of Sagar v O'Sullivan, the applicants, Mr Sagar and others, sought judicial review of adverse security assessments made against them, which resulted in their detention and exclusion from Australia. The applicants challenged the assessments on several grounds, including the absence of facts justifying the adverse assessment, the consideration of irrelevant matters, the failure to consider relevant facts, the breach of natural justice, and the failure to provide an opportunity to answer or contradict the facts considered by the Director-General. The applicants argued that the public interest immunity applied to the documents containing the security assessments and reasons for those assessments prevented them from making out their grounds of review, thereby undermining the rule of law.

The court was required to determine whether the Director-General's adverse security assessments were justified, whether procedural fairness was observed in making those assessments, and whether the public interest immunity claim precluded the applicants from obtaining meaningful judicial review of the Director-General's decisions. The court held that the Director-General's decisions attracted the requirements of procedural fairness, but these requirements had been satisfied to the extent possible, consistent with national security. The court found that the Director-General's public interest immunity claim was valid, and as a result, the applicants could not obtain the documents containing the security assessments and reasons for those assessments.

The court ultimately dismissed the applicants' claims, finding that none of the grounds of review had been made out. The court acknowledged the importance of judicial review in maintaining the rule of law but held that the self-imposed restraints on reviewing security decisions were not necessarily incompatible with the rule of law. The court concluded that the applicants' frustration at not knowing the reasons for the adverse security assessments did not undermine the validity of the Director-General's decisions, and the applications were dismissed.

The final order of the court was that the applications be dismissed.

Orders

Orders of the court

1. The applications be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Despite labouring under this disability they seek to pursue their applications on five grounds. These grounds are:·No facts existed which would justify the adverse assessment (“the first ground”);·The Director-General took account of irrelevant matters which are identified as “supposed facts which were not facts” (“the second ground”);·The Director-General failed to take account of relevant matters, namely, “the true facts of and concerning each applicant” (“the third ground”);·The Director-General failed to afford the applicants natural justice (“the fourth ground”); and·The Director-General failed to provide the applicants with an opportunity to answer, explain or contradict any fact or matter he intended to take into account in preparing the adverse assessments (“the fifth ground”).THE EVIDENCE Each of the applicants gave evidence and was cross-examined.Mr Sagar Mr Sagar was born in Iraq in 1976. He and members of his family are Shi’a Muslims. His father was actively involved with an organisation associated with this sect. In 1994 his father became an assistant to a Grand Ayatollah. In the early 1990’s the army and the government “targeted” Shi’a religious organisations including the one with which his father was associated. Because of what he described as “intimidation and repression” Mr Sagar’s family left Iraq in May 1997 and fled to southern Iran. He spent four years there before leaving for Australia. He travelled via Malaysia and Indonesia. He paid people smugglers to take him by boat from Indonesia to Australia. The boat was intercepted by the Royal Australian Navy and he was taken to Christmas Island. He was then transferred to Manus Island in Papua New Guinea where he applied “for refugee status” (I assume that the application was for a protection visa). The application was denied. An appeal was rejected. In September 2002 he was moved to Nauru. In September 2004 his application for “refugee status” was reviewed. In the course of this process he undertook four interviews with officers from ASIO. Two interviews took place in November 2004. The first lasted about two hours and the second three and a half hours. The next interview occurred in January 2005. This took about an hour. In May 2005 Mr Sagar was again interviewed, this time for one to one and a half hours. Before each interview commenced the officers identified themselves as ASIO officers and explained to Mr Sagar the purpose of the interview. Mr Sagar said that the “biggest issue” which was raised repeatedly during these interviews related to his “father’s profession.” In particular, the officers wanted details of his father’s work for and relationship with the Grand Ayatollah. Reference was made to an occasion when the Grand Ayatollah and his three sons came to the Sagar family home. One of the sons was Muqtada al-Sadr who was himself later to become a leader of Shi’a Muslims in Iraq. That meeting was very brief, lasting “no longer than 30 seconds.” The ASIO officers had also asked questions about Mr Sagar’s dealings with other people in Iraq.

Decision

Reasons for decision

These grounds also fail.CONCLUSIONS None of the grounds of review has been made out. The applications must, therefore, be dismissed. The applicants were, understandably, affronted at receiving adverse security assessments and frustrated at not knowing why such assessments had been made. They objected to the failure of the Director-General to place evidence before the Court which made it difficult, if not impossible, for them to make out the grounds of review on which they relied and prevented the Court from undertaking any meaningful judicial review of his decisions. This, it was contended, restricted the ability of the Court to control the exercise of executive power and thereby undermined the rule of law. These are matters of fundamental importance to the administration of justice in this country. My reasons would not be complete were these issues to pass unnoticed. The concept of the rule of law is not susceptible of strict definition. Its constituent elements, as with the concept of democracy, vary from country to country. It is not underpinned by any absolute principles which can lay claim to universal validity: see W Friedmann, Legal Theory (5th ed.) at 422. Rather, the rule of law is made up of a series of principles or precepts which are of variable content and some of which need not be present in order for it to be said that the rule of law operates in a particular country. Among the principles which have long been accepted in Australia are the separation of judicial and executive power and the availability of judicial and administrative checks on the exercise of executive power. Elsewhere the rule of law has been said to be based on a series of norms which guarantee the existence and independence of legal institutions and certain liberties of the citizen: see, for example, F Neumann, The Rule of Law at 9. A common feature of all of these analyses is that none of the precepts, principles or norms which are relied on to advance and ensure the rule of law are said to be inviolable. Professor Rawls accepts that it may be necessary, in order to avoid social evils, for precepts to be compromised but he maintains that this should only occur to the minimum extent necessary to achieve the objective: see Rawls, A Theory of Justice, at 235-243. Professor Freidmann accepts that individual rights which are protected by the rule of law must be balanced against the individual’s responsibility towards society as a whole. It does not, therefore, necessarily follow that the self-imposed restraints which courts have adopted when undertaking the judicial review of security decisions, are somehow incompatible with the rule of law. That is not to diminish the importance of the judicial review function in maintaining the rule of law. As Brennan J said in Woodward (at 70), judicial review “is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly …” The importance that this Court and other courts in the common law world attach to their judicial review functions was essayed by Spender J in his reasons for decision in Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40 at 44-53. It is not consistent with the rule of law for any government agency, including security organisations, to be immune from judicial review. This truism has been articulated in many judicial pronouncements, including cases where disclosure of evidence was resisted on the grounds that such disclosure would prejudice national security: see, for example, Woodward at 55 (per Mason J), 70 (per Brennan J) and, implicitly, by the Full Court of this Court in Leghaei.

Ratio Decidendi

Legal Principle Established

The Director-General accepted that decisions of the kind under consideration attracted the requirements of procedural fairness. He submitted, however, that those requirements had been satisfied, to the extent that it was possible to do so, consistently with the demands of national security. CONSIDERATIONGeneral Observations The onus of establishing their cases falls on the applicants: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; Re IBM Global Services Australia Ltd [2005] FCAFC 66 at [27]. It was, no doubt, with this in mind that they sought discovery of the documents which contained the adverse security assessments and the reasons that those assessments had been made. Their attempt to inspect these documents failed because a judge of this Court was persuaded that the documents fell within a class which attracted public interest immunity. No appeal was brought from that decision. In these circumstances, the applicants were forced to rely on their personal evidence that they had not done anything which would warrant the making of an adverse security assessment about them and on the failure of the Director-General to gainsay this evidence by himself leading evidence as to the reasons why he had made the adverse security assessments. The Director-General sought to meet these contentions by submitting that he could not place such evidence before the Court without infringing the public interest immunity which had been found by the Court to apply to such information. The issues raised by the Director-General’s successful public interest immunity claim are relevant to all of the grounds which are relied on by the applicants in their amended statement of claim. They can, conveniently, be dealt with before turning to the specific grounds. The documents which Sundberg J ordered the Director-General to discover were:·The adverse security assessments relating to each applicant;·Any record of telephone communications between ASIO and the applicants ·The Director-General’s classified determinations;·Any record of the Director-General’s recommendations made for the purposes of s 116 of the Migration Act 1958 (Cth);·Any other document relied on by the Director-General in making the adverse security assessments in respect of each applicant; and·Any other document on which the Director-General intended to rely at trial.See Parkin at 504. The Director-General responded to this order by discovering four documents of present relevance. These were ASIO briefing notes to him in respect of each applicant dated 30 June 2005 and ASIO internal minutes relating to each of the applicants which bore the same date. When the applicants sought production of each of these documents the class claims on the ground of public interest immunity were made. Sundberg J determined, having examined the discovered documents, that the results of complex security assessments were recorded in a final appreciation which took the form of an ASIO minute. The two internal minutes dated 30 June 2005 contained such final appreciations in respect of the two applicants. His Honour further found that, when the investigative branch of ASIO assesses an individual to be a threat to Australia’s national security, the Director-General is so advised, usually by means of a Director-General’s briefing note (“DGBN”). DGBNs also contained information about why an adverse assessment had been made. The two DGBNs dated 30 June 2005 contained such advice: see Parkin at 512-3. His Honour said (at 511) that the “final appreciations and related briefing notes set out the reasoning process which underlies the making of security assessments, which are the key mechanism by which ASIO advises government that particular individuals pose a threat to national security.”