TW v Director-General, Department of Justice and Attorney-General

The appellant, TW, appealed against a decision of the Tribunal which dismissed his application for a security clearance. TW sought the clearance to be eligible for certain employment opportunities. The Tribunal found that TW was not a person of good character because he had engaged in conduct that demonstrated an unacceptable level of risk of acting in a way that was inconsistent with the values of the Australian community. The primary judge of the Federal Court reviewed the Tribunal’s decision and found that there was no error of law in the Tribunal’s decision and dismissed the appeal. TW appealed to the Full Court of the Federal Court. The Full Court was required to determine whether the Tribunal’s decision was legally sound and whether the Tribunal denied TW procedural fairness by not allowing him to cross-examine the psychologist who provided evidence in the case. The Full Court found that there was an error of law in the Tribunal’s decision. The Tribunal had placed no weight on the psychologist’s report because the psychologist was not produced for cross-examination, which was a denial of procedural fairness. The Full Court found that the Tribunal’s failure to allow TW to cross-examine the psychologist was a significant procedural error that undermined the fairness of the hearing and the reliability of the evidence. The Full Court set aside the Tribunal’s decision and remitted the case back to the Tribunal for reconsideration, with the opportunity for the parties to examine the psychologist and produce further evidence. The Full Court also noted that the Tribunal should have given reasons for its decision, which was another procedural error. The Full Court ordered that the review proceeding be returned to the Tribunal, differently-constituted, for reconsideration, with the parties being allowed the opportunity to examine the psychologist and produce such further evidence as determined by the Tribunal at the rehearing.