By Dan Star QC -
Key decisions
- El Ossman v Minister for Immigration and Border Protection [2017] FCA 636
- Kimberley Diamonds Ltd v Arnautovic [2017] FCAFC 91
- Australian Building and Construction Commissioner v Powell [2017] FCAFC 89
ADMINISTRATIVE LAW
National security and procedural fairness
In El Ossman v Minister for Immigration and Border Protection [2017] FCA 636 (6 June 2017) the Federal Court set aside the applicant’s adverse security assessment made by the Australian Security Intelligence Organisation (‘ASIO’) on the basis that the applicant was denied procedural fairness in the making of that assessment. As Wigney J stated (at [1]): ‘The issue that lies at the heart of this matter highlights the potential tension between the interests of national security and the requirements of procedural fairness in the context of the making of security assessments under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act)’.
The applicant is a citizen of Lebanon who was in Australia and married to an Australian citizen. He applied for a particular visa to reside in Australia. In October 2014 he was interviewed by officers of ASIO. In August 2015 ASIO provided the Department of Immigration and Border Protection with an ‘adverse security assessment’ (a term defined in the ASIO Act) for the applicant. In September 2015 the Minister for Immigration and Border Protection cancelled the applicant’s bridging visa and he was taken into immigration detention. It was common ground that ASIO was required to afford the applicant procedural fairness in the making of the security assessment. The issue in dispute was whether in the particular facts and circumstances and having regard to the particular statutory context the requirements of procedural fairness were satisfied.
More specifically, Wigney J summarised at [5]: ‘The question whether the interview afforded Mr El Ossman procedural fairness arose primarily because ASIO did not disclose to Mr El Ossman certain specific information it possessed which cast doubt on Mr El Ossman’s denials [at the ASIO interview]. Some, but not all, of that specific information was immune from production, and therefore disclosure, to Mr El Ossman because disclosure would have been prejudicial to national security. Did ASIO’s failure to disclose parts of the specific information which was not immune from production or disclosure so constrain Mr El Ossman’s opportunity to propound his case for a favourable assessment as to amount to a practical injustice? Was Mr El Ossman given sufficient information to fairly put him in a position where he could make meaningful submissions about the assessment?’.
The Court set out the relevant principles on the content of procedural fairness (at [74]-[84]). Those legal principles were not in issue; what was disputed was the application of those principles to the facts of the case and the statutory context. The Court examined the legal framework of the ASIO Act in order to ascertain the requirements of procedural fairness in that context (at [91]-[98]). There was no doubt that ASIO was in possession of information that was adverse to the applicant that it might and ultimately did take into account in making the adverse security assessment (at [85]-[87]). ASIO did not disclose any of the adverse information to the applicant during the process of making the security assessment (at [87] and [102]). The interests of security did not preclude ASIO from disclosing some of the information, albeit in fairly general terms (at [104], see also [129]-[130] where this issue formed part of the Court’s ultimate reasoning).
The Court held at [121]: ‘On balance, however, the Director-General’s overall contention that sufficient information was disclosed to Mr El Ossman during the interview to enable him to make meaningful submissions, or to propound a case for why an adverse security assessment should not be made, cannot be accepted. On balance, the decision to make an adverse security assessment regarding Mr El Ossman was not made fairly in all the circumstances having regard to the legal framework within which the decision was to be made. There was practical injustice’. The reasons for the Court’s conclusion are set out at [123]-[143]
A separate ground of challenge on the basis that the Director-General of Security’s determination under s 37 of the ASIO Act was binding was rejected (at [144]-[152]).
