CCU21 v Minister for Home Affairs

Introduction 1 By a third further amended originating application dated 26 November 2021, the applicant seeks various relief in relation to the cancellation of his visa, the Minister's refusal to revoke that cancellation and the validity of a Qualified Security Assessment (QSA) provided by the Australian Security Intelligence Organisation (ASIO), and which was relied upon by the Minister in refusing to revoke the cancellation decision. There are multiple grounds of review, however, in essence the following general issues arise: (a) Is the visa cancellation decision invalid? (b) Did ASIO exceed its statutory functions under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) in issuing a QSA in relation to the applicant? (c) Is the Minister's decision not to revoke the visa cancellation decision invalid because of procedural unfairness or legal unreasonableness or irrationality? (d) Is the non-revocation decision invalid because the Minister relied on a character ground different from the one relied upon in making the visa cancellation decision?

Summary of background facts 2 On 30 September 2019, the applicant's Class XE Subclass 790 Safe Haven Enterprise Visa (the visa) was cancelled under s 501(3) of the Migration Act 1958 (Cth) (Cancellation Decision). The applicant was notified of the Cancellation Decision on 4 October 2019 and was provided on that day with a copy of the Minister's statement of reasons for that decision. Also on 4 October 2019 the applicant was taken into immigration detention. He was informed that the Minister reasonably suspected that he did not pass the character test as defined in s 501(6) of the Migration Act. The sole ground of the character test was said to be s 501(6)(g). That provision states that 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. 3 This reasonable suspicion was based on an Adverse Security Assessment (ASA) by ASIO, which assessed the applicant to be directly or indirectly a risk to security. ASIO provided the Minister with the ASA dated 17 September 2019, which then led to the Cancellation Decision. 4 On 11 October 2019, by his solicitor, the applicant provided representations in response to the Notice of Visa Cancellation, in which he submitted that he did not fail the character test because the ASA was invalid. 5 On 18 October 2019, the Minister's Department advised the applicant that the Minister would delay consideration of the applicant's representations pending the resolution of the applicant's dispute with ASIO concerning the ASA. 6 ASIO decided that it would conduct a further assessment of the applicant. On 8 July 2020, it finalised a QSA in which it assessed that the applicant was not directly or indirectly a risk to security. ASIO provided a copy of the QSA to both the applicant and the Minister. 7 The QSA included some adverse comments in relation to the applicant's character, namely: (a) "during [the applicant's] [Security Assessment Interview (SAI)] on 3 December 2019 he made a number of admissions regarding his involvement in the Reunion Island venture that contradicted information provided at the first SAI on 6 June 2019 …" (at [12]); (b) "[the applicant's] comments at the second SAI that he was not motivated by making money from people smuggling are likely untrue" (at [14]); (c) "[b]ased on the classified information available at the time of the first security assessment and [the applicant's] misleading comments at SAI …" (at [16]); and (d) "[w]hile the change in his account indicates [the applicant] withheld information and downplayed his involvement in his first SAI in June 2019 …" (at [18]). 8 As will shortly emerge, the applicant contends that these statements did not and could not relate to the question of whether the requirements of security (as defined in s 4 of the ASIO Act) made it "necessary or desirable" for his visa to be cancelled and that none related to security, with the consequence that the applicant claims that ASIO had exceeded its statutory functions. 9 The following day, on 9 July 2020, relying on the QSA, the applicant requested in writing that the mandatory cancellation of his visa be revoked and that he be released from immigration detention. 10 No response to that request was received by the applicant until 20 October 2020. In a letter dated that day, the Minister's Department accepted that the QSA superseded the earlier ASA. Despite that acknowledgment, the Department stated that s 501C(4) of the Migration Act required a person to satisfy the Minister "that [the person] satisfied the character test as defined by section 501(6) in its entirety" (emphasis added). 11 In both that letter and in a subsequent letter dated 28 January 2021, the Minister's Department invited the applicant to comment on information that was said to be relevant to whether he failed the character test on the basis of s 501(6)(c). 12 On 9 September 2021 (the day before the applicant's claim for mandamus to compel the Minister to make a decision was listed for hearing), the applicant was told that the Minister had decided under s 501C(4) of the Migration Act not to revoke the Cancellation Decision (Non-revocation Decision). He was provided with a copy of a statement of reasons in relation to this decision. Relevantly, the Minister said that she had had regard to the applicant's past and present conduct and whether his continuing conduct is according to "moral principle and therefore whether [the applicant] is of good character" (at [11]). 13 The Minister referred to the QSA and added the following comments in her statement of reasons for the Non-revocation Decision (noting that the reference to Mr Blanks is to the applicant's solicitor): 13. ASIO assessed that [the applicant] was 'a people smuggling facilitator for a venture that arrived in Reunion Island on 13 April 2019 with 120 Sri Lankan nationals on board'BS and that he was 'instrumental to the success' of this venture, involved in the recruitment of individuals and the facilitation of payment to the organisers. [The applicant] does not dispute this information. 14. In relation to [the applicant's] involvement in the people smuggling venture, Mr Blanks submits that any past involvement in a single people smuggling venture is not of itself, an indicator of present bad character. 15. I consider that s501(6)(c) of the Act requires consideration of a person's past and present criminal conduct to determine whether a person is of good character. I consider [the applicant's] involvement in people smuggling is relevant to [the applicant's] character based on his past conduct. I consider that any involvement in people smuggling is relevant to the consideration of whether a person is of good character for the purpose of s501(6)(c) of the Act. 16. I have considered the submissions made by Mr Blanks in relation to [the applicant's] involvement in the Reunion Island Venture, including: a. ASIO assesses that [the applicant] has changed his attitude to people smuggling and has no intention of engaging in people smuggling operations in the future. b. ASIO acknowledges that [the applicant's] changed attitude may have resulted from his recognition of the negative ramifications of the Reunion Island venture or his acknowledgement of risks involved in people smuggling. c. ASIO recorded in its assessment that [the applicant] had taken steps to mitigate risks to the safety of those on board, which is contrary to the economic interests of the organisers of the Reunion Island venture. Mr Blanks states that this is indicative of [the applicant's] principal motivation of concern for the welfare of his family and community members. d. ASIO's assessment regarding [the applicant's] willingness to assist authorities indicates his change in attitude toward people smuggling. 17. I note that ASIO has reported that [the applicant] provided information during his second interview regarding a people smuggling venture that was being organised at the time, and that he had also made this claim to an Australian Border Force officer prior to the interview. ASIO assessed that [the applicant's] willingness to provide additional detail of his involvement in the Reunion Island venture reflects his move away from engaging in people smuggling and his change in attitude towards people smuggling, hence the diminished risk to security, but questioned whether this was due to the actions of the Australian government and the resulting ramifications of his involvement in the venture. 18. While I acknowledge that [the applicant] has stated that he does not intend to engage in people smuggling operations in future, I do not accept this is because of a change of attitude towards people smuggling, I consider it more likely that this is because of the ramifications of his previous involvement and not because he is morally opposed to people smuggling. I do not accept [the applicant] was not motivated by money and that his principle motivation was for the welfare of his family and community members. I consider that if this were the case [the applicant] would have chosen not to have any involvement in the people smuggling venture, in particular noting the significant risks for individuals being smuggled. Therefore, while I have considered the submissions provided that [the applicant] has good intentions, I have placed greater weight on [the applicant's] past involvement in people smuggling when considering his character. 19. I consider [the applicant's] past involvement in people smuggling and motivations is indicative of a lack of enduring moral conduct. 14 The Minister said that she had also taken into account ASIO's assessment that the applicant had made misleading comments during his ASIO interview. She said that this constituted "further evidence that [the applicant] lacks enduring moral quality such that he is not of good character" (at [23]). 15 The Minister took into account various incidents while the applicant was in immigration detention, which she described as "minor assaults and physical altercations" (at [24]). 16 The Minister also took into account her findings in relation to the applicant's behaviour during the period 6 August 2014 and April 2019, during which time he was not in immigration detention. Although the Minister accepted that the applicant was not the subject of any criminal convictions during that period, she considered nevertheless that he was involved in that period in organising a people smuggling venture. She found that this was further evidence that the applicant "lacks enduring moral quality and is not of good character" (at [29]). 17 It is well to set out the Minister's conclusions in the Non-revocation Decision: 35. I have considered [the applicant's] general conduct, in particular his involvement in people smuggling, dishonesty when interviewed by ASIO, and his period in the community where although he did not receive any criminal convictions he was involved in planning people smuggling ventures. I find that this conduct is not according to moral principle. 36. While I accept [the applicant] has suffered ongoing mental health issues while in detention and that these may have contributed to physical altercations he has been involved in, I find that his conduct in detention cannot be completely disregarded when considering his other behaviour. I find that overall [the applicant's] continuing conduct is not according to moral principle and [the applicant] is not of good character. 37. Accordingly I am satisfied [the applicant's] continuing conduct is not according to moral principle and [the applicant] is not of good character and that a ground for cancellation under s501, with reference to s501(6)(c), exists in this case. In other words, [the applicant] has not satisfied me that he passes the character test. 38. I have considered all appropriate documents. While I acknowledge Mr Blanks' representations, I am not satisfied that [the applicant] passes the character test at s501(6)(c) as I find that, having regard to his past and present general conduct that [the applicant] is not of good character. 18 As is the normal practice, the Minister had been provided with a detailed brief and submissions in respect of both the Cancellation Decision and the Non-revocation Decision.