AIX20 v Director-General of Security

Procedural background 6 The applicant originally commenced another proceeding in this Court (VID 41/2020). That proceeding was originally brought against the Minister for Home Affairs. Subsequently, the applicant joined the Director-General as an additional respondent. Following amendments to the pleading, the applicant challenged: (a) two adverse security assessments made in relation to him by the Director-General; and (b) a decision of the Minister for Home Affairs, based on the first adverse security assessment, to cancel the applicant's temporary protection visa. Since the cancellation of his visa, the applicant had been held in immigration detention. The proceeding was listed for hearing on 30 August 2022 (on an estimate of two days). However, in early August 2022, the respondents to that proceeding advised that the Director-General had provided a non-prejudicial security assessment in respect of the applicant to the Minister for Home Affairs, and the Minister for Home Affairs had decided to revoke the cancellation of the temporary protection visa. As the temporary protection visa could not be reinstated (as this was after the date when that visa would have ended in any event), the applicant was granted a bridging visa. The applicant was released from immigration detention. In light of these developments, the hearing of the proceeding was vacated. However, the proceeding was not dismissed as the applicant wanted to consider his position in relation to his claims. 7 Subsequently, the applicant commenced a proceeding in the Supreme Court of Victoria against the Director-General alleging misfeasance in public office and negligence. On 16 November 2022, that proceeding was transferred to this Court and is the present proceeding (VID 711/2022). For a short time, the two proceedings in this Court were jointly case managed. On 10 February 2023, the applicant filed a statement of claim in the present proceeding that essentially consolidated the claims he wished to pursue against the Director-General in a single pleading. On 13 February 2023, the original proceeding in this Court was stayed, and this proceeding became the only active proceeding. 8 In about July and August 2023, the parties participated in a process that sought to narrow the issues in the proceeding. On 7 September 2023, the Court made orders in this proceeding by consent that the applicant have leave to file and serve an amended originating application and amended statement of claim, with the amendments limited to discontinuing the applicant's claim against the respondent for misfeasance in public office. Those documents (both dated 15 September 2023) were filed. The Director-General then filed an amended defence (dated 21 September 2023). The applicant filed an amended reply (dated 27 September 2023). 9 At a case management hearing on 7 September 2023, I made an order that, subject to further order, the proceeding be listed for hearing on 15 July 2024, on an estimate of five days. 10 On 3 October 2023, the Director-General filed the present interlocutory application. The Director-General explained at the case management hearing on 6 October 2023 that it was not until the applicant discontinued his misfeasance in public office claim that the application for separate questions became feasible. 11 Discovery in the proceeding has not yet taken place. An issue that has been canvassed at several case management hearings is that the Director-General is likely to claim public interest immunity over some or many of the relevant documents. The applicant proposes to establish the following structure to seek to persuade the Court not to uphold any such public interest immunity claims. The proposed structure is (in outline): (a) separate counsel would be briefed by the applicant (in addition to his present counsel); (b) the separate counsel would be available to receive confidential documents and would undertake not to disclose these documents to the applicant, his current lawyers or in Court (unless the Court hearing were subject to appropriate confidentiality orders); (c) the separate counsel would represent the applicant (eg, tender documents, cross-examine, make submissions) in relation to the documents; and (d) the applicant would consent to this structure (i.e. to the separate counsel not disclosing the documents to him). The applicant has indicated that, should there be public interest immunity claims over relevant documents, he will put forward this structure and seek to persuade the Court to permit access to the documents on a confidential basis in accordance with this structure. The Director-General has reserved his position in relation to the applicant's proposal regarding separate counsel.

Background facts 12 The following is an outline of the background facts based on the allegations in the amended statement of claim. 13 In October 2012, the applicant arrived in Australia as an "unauthorised maritime arrival". 14 On 16 August 2017, the applicant was granted a temporary protection visa. 15 On 21 October 2019, the Director-General furnished an adverse security assessment in respect of the applicant, purportedly pursuant to ss 17 and 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) on the ground that ASIO assessed the applicant to be directly or indirectly a risk to security (the First ASA). 16 On the same day, the Director-General wrote to the Secretary of the Department of Home Affairs, attaching the First ASA. The letter recommended that the applicant's temporary protection visa be cancelled by the Minister for Home Affairs. 17 On 5 December 2019, the Minister for Home Affairs cancelled the applicant's temporary protection visa, purportedly pursuant to s 501(3) of the Migration Act 1958 (Cth). As a consequence, the applicant was detained in immigration detention. 18 On 15 July 2020, the Director-General furnished a further adverse security assessment in respect of the applicant, purportedly pursuant to ss 17 and 37(1) of the ASIO Act, on the ground that ASIO assessed the applicant to be directly or indirectly a risk to security (the Second ASA). 19 On 15 March 2021, the Independent Reviewer of Adverse Security Assessments (the Independent Reviewer) completed his review of the Second ASA (the Review). The Review concluded (among other things) that: (a) the applicant is not directly or indirectly a risk to security (at pp 24, 25); (b) the Second ASA "is not a proportionate response to the material ASIO has relied on in furnishing the ASA" (at p 24); and (c) the Second ASA is "not an appropriate outcome" (at p 24). 20 On 19 March 2021, the Director-General decided to not act on the Independent Reviewer's recommendation (the 19 March 2021 Decision). 21 On 5 August 2022, the Director-General furnished on the Department of Home Affairs a "non-prejudicial security assessment" in respect of the applicant. There is no indication in the materials currently before the Court that there had been any change in the facts between the time when the Director-General gave the First ASA or the Second ASA (or made the 19 March 2021 Decision) and the time when he made the non-prejudicial security assessment. 22 On 17 August 2022, the Minister for Home Affairs decided to revoke the cancellation of the applicant's temporary protection visa pursuant to s 501C(4) of the Migration Act. The applicant was granted a bridging visa and released from immigration detention. Thus, the applicant spent over two-and-a-half years in immigration detention between the cancellation of his temporary protection visa and the revocation of the cancellation.

Outline of the applicant's claims 23 The applicant sets out alleged background facts in paragraphs 3-61 of his amended statement of claim. 24 In paragraphs 62-70 of the amended statement of claim, the applicant sets out what can be described as his judicial review claim. He contends that the First ASA, the Second ASA and the 19 March 2021 Decision were invalid on various grounds including denial of procedural fairness and legal unreasonableness. These allegations rely on the factual matters pleaded in the earlier part of the pleading (at paragraphs 3-61). 25 In paragraphs 76-83 of the amended statement of claim, the applicant sets out his negligence claim. He contends that the Director-General was negligent in furnishing the First ASA and the Second ASA and in making the 19 March 2021 Decision. The pleading includes allegations regarding duty of care, breach, causation and loss and damage. The duty of care pleading is as follows: 76. In: (a) furnishing the First ASA, (b) further or alternatively, furnishing the Second ASA, (c) further or alternatively, making the 19 March 2021 Decision, the Director-General was exercising powers and functions conferred on him by ss 17(1)(c) and 37 of the ASIO Act which were apt to create or exacerbate a risk of harm to the Applicant. 77. By reason of the matters in paragraph 76, the Director-General owed the Applicant a duty to take reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act to avoid causing harm to the Applicant by reason of their careless exercise. 78. Further or alternatively, in circumstances where the furnishing of the First ASA led to the Applicant being in a position where he was likely to suffer harm, the Director-General owed the Applicant a duty: (a) when furnishing the Second ASA, (b) when making the 19 March 2021 Decision, (c) at all other times, to take reasonable care in the continuation or additional exercise, or an absence of further exercise, of his powers and functions under the ASIO Act in respect of the Applicant. 79. Further or alternatively, by reason of the matters in 76 to 78, taken together with the matters alleged in paragraphs 15 to 60 above: (a) it was at all relevant times reasonably foreseeable that failure by the Director-General to exercise reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act would cause harm to the Applicant; (b) that risk of harm was not remote or insignificant; (c) the Director-General exercised at all relevant times complete control over whether or not, and if so, the manner in which, he discharged the powers and functions under ss 17(1)(c) and 37 of the ASIO Act in respect of the Applicant; (d) the Applicant was highly vulnerable, including because he had no capacity to protect himself from the risk of harm that might be occasioned by reason of the Director-General's careless exercise of the powers and functions under ss 17(1)(c) and 37 of the ASIO Act; (e) at: (i) all relevant times, (ii) further or alternatively, at the time of furnishing the Second ASA, (iii) further or alternatively, at the time of making the 19 March 2021 Decision, the Director-General knew, or ought to have known, of the matters informing the Independent Reviewer's conclusion that the Applicant is not directly or indirectly a risk to Australia's security within the meaning of s 4 of the ASIO Act, referred to at paragraph 46 above. 80. By reason of the matters in paragraph 79 above, the Director-General owed a duty to the Applicant to exercise reasonable care in discharge of his powers and functions under ss 17(1)(c) and 37 of the ASIO Act. (Emphasis added.) 26 It can be seen from paragraphs 78 and 79 of the amended statement of claim that the applicant's pleading of a duty of care relies not only on the statutory provisions, but also on the factual circumstances pleaded earlier in the amended statement of claim. 27 The applicant seeks the following substantive relief: (a) damages, including aggravated damages; (b) declarations that the First ASA, the Second ASA and the 19 March 2021 Decision are invalid.

Applicable principles 28 I set out a summary of the applicable principles relating to summary dismissal in ASZ21 v Commissioner of Taxation [2021] FCA 1304 at [27]-[31]. I incorporate the substance of those paragraphs in the following paragraphs. 29 Section 31A of the Federal Court of Australia Act provides in part: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. 30 Rule 26.01 of the Rules provides in part: 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or … (4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order. 31 Section 31A was discussed by the High Court in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer). In that case, Hayne, Crennan, Kiefel and Bell JJ stated at [53]: … s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW). (Footnotes omitted.) 32 Their Honours continued at [56] and [58]-[60]: 56 Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases. … 58 How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt. 59 In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. 60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. (Footnotes omitted.) 33 See also Spencer at [24] per French CJ and Gummow J and Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

Consideration 34 The Director-General's application for summary dismissal has two distinct parts to it. First, he contends that the applicant's negligence claim has no reasonable prospect of success because there is no reasonable prospect of the applicant establishing the alleged duty of care. Secondly, he contends that the applicant's judicial review claim has no reasonable prospect of success because the Court would decline to order declaratory relief due to lack of utility. I will deal with each in turn. 35 In relation to the applicant's negligence claim, the Director-General submitted that the fact that a duty of care is novel does not of itself immunise it from summary dismissal, citing Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83 at [32]-[34], [36], [38] and [46]. 36 The Director-General submitted that the existence or otherwise of the alleged duty of care depended entirely on the statutory scheme (here, the ASIO Act), citing Electricity Networks Corporation v Herridge Parties [2022] HCA 37; 96 ALJR 1106 at [20] and [27]. The High Court stated at [27] that a duty cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework. The Director-General submits that, in this case, the alleged duty of care would be inconsistent or incompatible with the statutory powers or duties imposed on the Director-General by the ASIO Act, and incoherent with the statutory framework of the ASIO Act. The Director-General submitted that, applying the principles stated by the High Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [60] and [62], the applicant has no reasonable prospect of establishing that a duty of care arose in the present case. The Director-General referred to ss 17, 25, 35 and 37 of the ASIO Act. The Director-General submitted that the Director-General is obliged to treat the interests of the public as paramount and this was irreconcilable with the interests of the individual; it would be inconsistent with the proper and effective discharge of the Director-General's responsibilities if he were subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of the security risk. 37 The Director-General submitted that his role was analogous to the role of police in investigating persons who are suspected of committing a crime. He submitted that it has never been suggested that the police owe a duty of care to suspects, even though some cases have imposed a duty of care on police in other contexts. The Director-General submitted that Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736 (a case cited by the applicant in his submissions), did not cast doubt on, indeed it affirmed, that the police do not owe a duty of care to suspects. In relation to Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC 41; [2007] 3 SCR 129, a decision of the Supreme Court of Canada cited by the applicant that held that police do owe a duty of care to suspects, the Director-General submitted that there was no reasonable prospect of that decision being followed in Australia. 38 In my view, the allegation that the applicant was owed a duty of care by the Director-General is sufficiently arguable for the matter to go to trial. Neither party cited any authority on whether a duty of care is capable of arising under the ASIO Act in like circumstances. While I accept the respondent's submission that novelty of a duty of care does not of itself immunise a claim from summary dismissal, it is nevertheless difficult in such a case to reach a conclusion that the applicant has no reasonable prospect of successfully establishing the existence of a duty of care. It was common ground between the parties that the question of duty of care is to be determined prospectively. In the present case, determination of whether a duty of care was owed depends not only on a consideration of the relevant statutory provisions (and the statutory scheme) under which the Director-General furnished the adverse security assessments to the Department of Home Affairs, but also on the factual circumstances as they existed at the time the duty of care is alleged to have arisen. The factual circumstances include that the applicant had been granted, and held, a temporary protection visa, and that the likely effect of the Director-General furnishing an adverse security assessment to the Department of Home Affairs would be that the applicant would have his visa cancelled and be detained in immigration detention. Many of the Director-General's submissions focussed on Sullivan v Moody. However, it is notable that, in the key passage relied on by the Director-General (at [60]), the High Court stated that if a suggested duty of care would give rise to inconsistent obligations, that would "ordinarily" be a reason for denying that the duty exists. However, the High Court did not rule out the possibility that a duty of care may exist. Further, it is notable that in the course of submissions, the parties cited cases from the highest courts of the United Kingdom and Canada. This underlines the point that it is difficult to determine the question of duty of care in this case on a summary basis. 39 In light of these matters, I am not satisfied that the applicant has no reasonable prospect of establishing the alleged duty of care. 40 In relation to the applicant's judicial review claim, the Director-General submitted that there is no reasonable prospect of declaratory relief being granted because the relief lacks utility. The Director-General submitted that, in circumstances where the cancellation of the applicant's temporary protection visa has been revoked, the cancellation has no ongoing effect. Further, the Director-General submitted that the First ASA and the Second ASA have been superseded by the non-prejudicial security assessment and therefore have no ongoing effect. 41 The Director-General noted a possible construction issue, which is as follows. Section 501(6)(g) of the Migration Act states that, for the purposes of s 501, a person does not pass the character test if: the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); (Emphasis added.) 42 The possible construction issue is whether a person who (a) has been the subject of an adverse security assessment and (b) has subsequently been the subject of a non-prejudicial security assessment, falls within the above paragraph. The Director-General contends that they do not, and this was reflected in correspondence sent by the Australian Government Solicitor (acting for the Minister for Home Affairs and the Director-General in proceeding VID 41/2020) to the applicant's solicitors on 18 August 2022 (as set out in the Notes to the orders made on 19 August 2022 in proceeding VID 41/2020). 43 I am not satisfied that the applicant has no reasonable prospect of obtaining the declaratory relief that he seeks, if he is successful in establishing that the First ASA, the Second ASA and/or the 19 March 2021 Decision are affected by jurisdictional error. I consider it at least arguable that, if the applicant establishes jurisdictional error, there would be utility in making a declaration of invalidity. For example, it may be that in some circumstances, for example, a job application or a visa application to travel to a foreign country, the applicant is required to disclose that he has been the subject of an adverse security assessment, and he would wish to be in a position also to disclose that a Court has declared the adverse security assessment to be invalid. Further, notwithstanding the concession made by the Minister for Home Affairs and the Director-General as to the proper construction of s 501(6)(g), it may be that there is still utility in having a declaration of invalidity in relation to the security assessments to put the matter beyond doubt. I am therefore not satisfied that there is no reasonable prospect of a declaration being made in the event that the applicant were successful in establishing jurisdictional error in relation to the First ASA, the Second ASA and/or the 19 March 2021 Decision. 44 It follows that the application for summary dismissal is to be dismissed.

Application for separate questions 45 In the Director-General's interlocutory application, he seeks an order that the following questions be heard separately: 1.1. Did the Respondent owe the Applicant a duty of care in: 1.1.1. furnishing the first adverse security assessment (ASA) dated 21 October 2019? 1.1.2. furnishing the second ASA dated 15 July 2020? 1.1.3. making the alleged decision on 19 March 2021 to not act on the recommendation of the Independent Reviewer of Adverse Security Assessments? 1.2. If any of the above questions is answered in the negative, should the Applicant's claims for declarations that the first ASA, the second ASA and the alleged decision of 19 March 2021 are invalid be dismissed? 46 As noted above, during the hearing of the interlocutory application, the Director-General made clear that his application for an order that certain questions be heard separately is put on the basis that the separate questions would operate in substance in the same way as a demurrer. In other words, what is proposed is that the Director-General would accept as correct (for the purposes of the separate questions) all of the facts alleged in the applicant's pleading. The purpose of the separate questions would be to determine whether the applicant's claims fail on that assumed basis. If and to the extent that the questions set out in the interlocutory application need to be reworded to make this clear, the Director-General seeks to have them reworded. 47 In support of the application, the Director-General relied on case management factors. He submitted that a hearing of the separate questions would take only one day, whereas the trial is estimated to take five days; if the Director-General were successful in relation to the separate questions, the five-day trial would not be necessary. Further, he submitted that if the separate questions were answered favourably to the Director-General, this would obviate the need for potentially lengthy and costly hearings in relation to public interest immunity. 48 The applicant opposed the application for separate questions. He submitted that it would be prejudicial for the separate questions to be heard separately in circumstances where discovery has not yet taken place; once discovery takes place, further documents may be made available to the applicant or, at least, to the separate counsel engaged by the applicant under the structure described above. He submitted that this is not, therefore, a case where "no other evidence could add to or qualify" the facts in the pleading: cf Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [50]. 49 Insofar as the application for separate questions relates to the applicant's negligence claim, while there is some merit in the proposal (for the reasons given by the Director-General in submissions), on balance, I consider that the preferable approach, from a case management perspective, is to proceed with a trial of the claim. Given the procedural background to this matter, and the legal issues it raises, were the negligence claim to be determined by way of a demurrer-like separate question, it is likely that there would be an appeal from the decision on the separate question. There could even be an application for special leave to appeal, and an appeal, to the High Court of Australia. If the outcome on appeal were that the Director-General did owe a duty of care to the applicant, there would then need to be a trial of the claim. In circumstances where the trial of the whole proceeding is estimated to take only five days, I consider that it would be preferable to proceed with the trial. The matter can then go on appeal with the trial having been completed. In expressing this view, I have taken into account that there are likely to be disputes over public interest immunity that will require a hearing (or hearings) if the matter is to proceed to a trial. 50 Further, I consider that it would be preferable for the issue of duty of care to be determined in a full factual context (that is, with evidence) rather than just on the basis of the pleaded facts. To my mind, this provides a more satisfactory basis for the Court to determine whether a duty of care was owed. 51 Insofar as the application for separate questions relates to the applicant's judicial review claim, as I understand the Director-General's proposal it is that the Court would assume that the applicant is successful in establishing jurisdictional error; the issue to be determined by way of a separate question would be whether the claim should be dismissed for want of sufficient utility. The Director-General's contention is that the Court would not grant declaratory relief because it lacks utility (even if the applicant is successful in establishing that the First ASA, the Second ASA and/or the 19 March 2021 Decision were affected by jurisdictional error). In my view, the question whether declaratory relief should be ordered is better determined at trial, once the Court has determined whether or not the applicant has made out his claim of jurisdictional error, rather than on an assumed basis. This will provide a fuller context in which to determine whether declaratory relief is appropriate and has utility. 52 It follows that the application for separate questions is to be dismissed.

Conclusion 53 For the reasons set out above, the Director-General's interlocutory application is to be dismissed. It was common ground at the hearing that, in that event, costs should follow the event. I will therefore make an order that the Director-General pay the applicant's costs of the interlocutory application. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.