Chu v Minister for Immigration

THE APPLICATION FOR REVIEW On 20 April 1998 Sultan lodged an application for review of the Minister's decision pursuant to the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). In his application he said he disagreed with the decision refusing to grant him a visa, and "specially" denied that he was or could reasonably be considered to be a danger to the security of Australia within the meaning of art 33(2). On 15 June the ASIO assessment was provided to the Administrative Appeals Tribunal with a request that a confidentiality order under s 35(2)(b) of the AAT Act be made for the whole of the document, and a confidentiality order under s 35(2)(c) be made for pars 4 and 6. On the same day Sultan's solicitor was provided with a copy of the assessment with pars 4 and 6 deleted. At the first directions hearing on 9 July the Tribunal decided that the confidentiality issues should be determined when the substantive hearing commenced on 14 September. On 17 July Sultan's solicitor wrote to the Tribunal and requested that the confidentiality issue be resolved before the hearing. On 28 July the Tribunal directed that a telephone directions hearing be held on 29 July. The Tribunal indicated that it was disposed to order that the thrust of the allegations in par 4 of the assessment be released to Sultan, though the source of the information should not be disclosed, and that par 6 not be released. However the Tribunal deferred making an order so that the solicitor appearing for the Minister could consult with ASIO as to whether it wished to be heard. The directions hearing was adjourned to 5 August. On 5 August a solicitor appeared for the applicant, who was then joined as a party. The Tribunal member repeated his views about pars 4 and 6. The applicant's solicitor informed the Tribunal that ASIO had urgently requested the views of the overseas agency which had provided the information as to the Tribunal's proposal to release part of par 4 of the assessment. The matter was adjourned to 11 August. On 10 August the applicant's solicitor requested the Tribunal to adjourn the hearing set down for the next day so he could obtain evidence, brief counsel and prepare further submissions relating to the disclosure. The request was denied. On 11 August the Tribunal made orders that the material in par 6 not be released and that an amended par 4 be released to Sultan after 18 August. On 17 August the applicant's solicitors wrote to the Tribunal seeking a deferment of the release date. On the same day ASIO was advised that the overseas agency had refused to permit the information contained in par 4 to be released. On 18 August the applicant appealed from the Tribunal's decision that there be a partial release of the material in par 4. Ryan J stayed the Tribunal's decision pending the hearing and determination of the appeal. On 21 August ASIO received a written response from the overseas agency refusing to agree to the disclosure of the material and seeking an assurance that it would not be disclosed. On 14 September Sultan cross‑appealed against the order that the contents of par 6 of the assessment not be released.

THE APPEALS The applicant contends that the Tribunal erred in law · in making the directions as to par 4 of the assessment in that it failed to give any or any adequate weight to the interests of national security and public interest · by failing to afford procedural fairness to the applicant in that it did not afford him a full hearing in respect of a matter relating to national security and the public interest · by failing to give the applicant an opportunity to present argument viva voce and lead evidence as to that matter. On the cross appeal Sultan contends that the refusal to disclose the contents of par 6 and portions of par 4 has denied him natural justice in that it prevents him from properly preparing his case and dealing with the allegations against him. The material before the Court included an affidavit from the applicant in which he said he had inspected all ASIO documents relevant to the matter, and that for the detailed reasons set out in the affidavit he believed that the disclosure of the information in question would be prejudicial to national security.

THE PROTECTION VISA LEGISLATION Section 29(1) of the Act empowers the Minister to grant a non‑citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. There are classes of visas. One of them is a protection visa: s 36(1). A criterion for a protection visa is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: sub‑s (2). Section 31(3) provides that the regulations may prescribe criteria for a visa of a specified class. Regulation 2.03 of the Regulations provides that the prescribed criteria for the grant of a visa of a particular class are, amongst other things, the primary criteria set out in a relevant Part of Schedule 2. The primary criteria for the grant of a protection visa are found in cl 866.2 of the Schedule. One is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention: cl 866.221. Another is that the applicant satisfies public interest criterion 4002: cl 866.225. Public interest criterion 4002 is that the applicant is not assessed by "the competent Australian authorities" to be directly or indirectly a risk to Australian national security. Section 45(1) enables a non‑citizen to apply for a visa of a particular class. Section 65(1) is in part as follows: After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. The relevant parts of the Act and Regulations involve a three stage process in a case such as the present. It must first be established that the applicant for a protection visa satisfies the well‑founded fear test set out in art 1 of the Convention. It must next be established that the applicant is not disqualified from Convention protection because he is a security risk (art 33(2)). If those requirements are satisfied, the applicant is a person to whom Australia has protection obligations (cl 866.221). Nonetheless, before a protection visa can be granted, the public interest criteria must be satisfied (cl 866.225). That is the third requirement.

THE PRELIMINARY POINT The substantive issues raised by the appeal and cross‑appeal concern the interface between national security considerations and Sultan's right to procedural fairness; to know the nature of the allegations made against him. Cf Chu v Minister for Immigration (1997) 78 FCR 314 at 326‑330. However, when the case was called on, the applicant raised a preliminary point. He contended that while the delegate's first ground for decision could be reviewed by the Tribunal under s 500(1)(c) - "a decision to refuse to grant a protection visa … relying on one … of the following Articles of the Refugees Convention, namely, Article … 33(2)", the Tribunal had no jurisdiction to review the second ground, namely failure to satisfy public interest criterion 4002. It was submitted that if Sultan were to be successful in his application to review the delegate's decision on the first ground, it would avail him nothing in his quest to obtain a visa since the second ground is not amenable to attack before the Tribunal. Section 65(1)(b) requires the Minister to refuse a visa if he is not satisfied that the criteria for it have been satisfied. The adverse security assessment exists, and accordingly Sultan failed to satisfy criterion 4002 and thus cl 866.225. Senior counsel for Sultan could point to no provision empowering the Tribunal to review a decision to refuse a protection visa on the ground that public interest criterion 4002 had not been satisfied. However, he advanced three answers to the preliminary point. The first is that the Tribunal is a competent authority for the purposes of criterion 4002. The submission does not go so far as to say that the applicant is not a competent authority. Rather it is that it would be wrong to confine the phrase "the competent Australian authorities" to the applicant. It was said that the courts have not taken a narrow view of the expression "competent authority". In Re Borovski & Weinbaum; Ex parte Salaman [1902] 2 KB 313 the question concerned a provision of an extradition treaty that "every article found in the possession of the individual claimed at the time of his arrest shall if the competent authority so decides be seized". The magistrate at Bow Street, who had ordered the committal of Borovski and Weinbaum on extradition warrants granted at the instance of the Belgian government, took the view that he was not the competent authority, and declined to make orders with respect to the property found on the prisoners when they were arrested. Wright J held that the magistrate was the competent authority "in the first instance". Reg v Secretary of State for the Home Department; Ex parte Santillo [1981] QB 778 concerned art 9 of a European Economic Community Council Directive which provided that a "decision … ordering the expulsion of the holder of a residence permit from the territory should not be taken by the administrative authority … until an opinion has been obtained from a competent authority of the host country". Santillo was an Italian national who had been convicted of serious offences in England and sentenced to imprisonment. The trial judge recommended that he be deported. The Home Secretary made a deportation order. The Court of Appeal held that the Home Secretary was the "administrative authority" and the trial judge was the "competent authority". In reliance on these authorities, it was submitted that the Tribunal, a body analogous to a court, could be a competent authority. It was competent in this case because of s 500(1)(c) of the Act. There is no doubt that in an appropriate context a court or tribunal can be a competent authority. But in my view the phrase "competent authorities" in criterion 4002 includes ASIO and does not include the Tribunal. ASIO is established by the Australian Security Intelligence Organisation Act 1979 ("the ASIO Act"). One of its functions is to furnish to Commonwealth agencies security assessments relevant to their functions and responsibilities: s 37(1)(c). The Immigration Department is a Commonwealth agency: see the definitions of "Commonwealth agency" in s 35 and "authority of the Commonwealth" in s 4. Security assessments of persons seeking visas to enter or remain in Australia are obviously relevant to the Department's functions and responsibilities. Section 202, which is in the Division of the Act dealing with deportation, supports the view that "competent Australian authorities" in connection with the national security risks with which criterion 4002 is concerned includes ASIO. It is concerned with non‑citizens who are a threat to the security of the Commonwealth, and speaks of an "adverse security assessment" made in respect of the non‑citizen by ASIO under the ASIO Act. Under s 65(1) the delegate is required to consider whether, inter alia, criterion 4002 has been satisfied; that is to say whether an applicant has been assessed to be a risk to Australian national security. It is plain that the question for the delegate is whether someone else has made an adverse security assessment. The legislation does not contemplate that the delegate will make his or her own security assessment. The Tribunal stands in the shoes of the delegate. If the delegate is not a competent authority, the Tribunal cannot be. Section 500 of the Act does not assist Sultan's argument. It confers power on the Tribunal to review decisions made under art 33(2) of the Convention. The Tribunal has no jurisdiction to review a decision based on a finding that criterion 4002 has not been satisfied. Counsel emphasised that the words were "the competent Australian authorities" and not "the competent Australian authority". But the emphasis was, as I understood it, intended to support the argument that while ASIO might be a competent authority, so might the Tribunal. It was not suggested that all possible competent authorities had to join in an assessment for it to be effective for the purposes of criterion 4002. Such an argument was considered and rejected by the Tribunal in matter V 96/05411, to which I was referred. The second answer suggested by counsel is that s 500 gives jurisdiction to the Tribunal, and criterion 4002 should not be construed so as to detract from that jurisdiction. As appears from what I have already said, s 500 and criterion 4002 deal with different matters. Section 500 does not apply to decisions to refuse a visa because criterion 4002 has not been satisfied. Section 65 is unmistakable. The Minister is required to refuse to grant a visa if he is not satisfied that no adverse security assessment exists. The third answer is that prior to the legislation assuming its present form no point such as that now taken had been raised in the cases. Reference was made to Haj‑Ismail v Madigan (1982) 45 ALR 379. However one cannot shut one's eyes to the fact that the Act and Regulations have changed since Haj‑Ismail. Section 65(1) and criterion 4002 must be given effect. Sultan's counsel advanced no other reason as to why the preliminary point should not be decided in the applicant's favour.

CONCLUSION The applicant's preliminary point is in my view sound. Although the Tribunal has power to entertain the application for review under s 500 in so far as the delegate decided the matter under art 33(2) of the Convention, it would be futile for it to embark upon the application while the adverse security assessment is in place. The Tribunal's order of 11 August 1998 should be set aside, and the matter remitted to it with directions that the application be dismissed under s 42B of the AAT Act as frivolous or vexatious, and that the confidential documents be returned to the Minister's solicitor. Sultan's counsel did not suggest that these were not the appropriate orders to be made if the preliminary point were sustained. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg

Associate: Dated: 1 December 1998 Counsel for the Applicant: A Cavanough QC

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: G T Pagone QC and G Gilbert

Solicitor for the First Respondent: Refugee and Immigration Legal Service Inc

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 26 October 1998