SZQZD v Minister For Immigration and Anor (No.2)

This matter concerned an application for judicial review brought by SZQZD against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). The applicant sought to challenge the lawfulness of ASIO's decision to issue a security assessment under section 36(2) of the *Australian Security Intelligence Organisation Act 1979* (Cth) (the ASIO Act) which found SZQZD to be a person to whom the assessment provisions applied. This assessment was a prerequisite for the Minister to refuse SZQZD's visa application on security grounds.

The central legal issue before the Court was whether the ASIO Act, in requiring ASIO to conduct a security assessment and then requiring the Minister to refuse a visa based on that assessment, imposed a non-compendious duty on the Minister to afford the applicant procedural fairness. Specifically, the Court had to determine if the Minister was obliged to provide SZQZD with an opportunity to respond to the adverse information that formed the basis of ASIO's security assessment before making a decision to refuse the visa.

Judge Riley reasoned that the statutory framework established by the ASIO Act did not contemplate or require the Minister to afford procedural fairness in relation to the ASIO security assessment itself. The Court held that ASIO's function under section 36(2) was to provide advice to the Minister, and the Minister's subsequent decision to refuse a visa was a statutory obligation triggered by that advice, not a decision requiring the Minister to engage in a merits review of the underlying information. The Court distinguished this scenario from cases where a decision-maker has a discretion to refuse a visa, finding that here the Minister's power was constrained by the mandatory nature of ASIO's assessment.

The application for judicial review was dismissed.