Was Mr El Ossman afforded procedural fairness?
85 There could be little or no doubt that ASIO was in possession of information that was adverse to Mr El Ossman that it might, and ultimately did, take into account in making the adverse security assessment. That information included information that a person using a particular name was involved in politically motivated violence, together with information that led ASIO to assess that Mr El Ossman was the person using that name. The information that led ASIO to believe that Mr El Ossman was the person using that name included that Mr El Ossman had the same year of birth, passport number and mother's name as the year of birth, passport number and mother's name associated with that other name. ASIO's assessment that Mr El Ossman was the person using that other name was one of the facts that led it to conclude that Mr El Ossman had been involved in political violence.
86 ASIO was also in possession of other specific information that led it to believe that Mr El Ossman was associated with the terrorist groups Jund al-Sham, Jabhat al-Nusra and Islamic State. That information included that Mr El Ossman shared a close personal association with a former bodyguard of Australian-Lebanese terrorist, Houssam El Sabbagh, who was a member of the former terrorist cell that was led by El Sabbagh in Tripoli. It also included information that Mr El Ossman had a close association with the late Jund al-Sham leader, Khaled Riad Mahmoud. ASIO also possessed other information that indicated that Mr El Ossman held extremist views, was sympathetic toward terrorist figures, and supported Sunni Islamic terrorism, though the particulars of that information were, at least for the purposes of this proceeding, unknown.
87 It is abundantly clear that ASIO did not disclose any of that adverse information to Mr El Ossman during the process of making the security assessment. Nor did it advise Mr El Ossman of any of the adverse conclusions which it had evidently reached based on that information. ASIO did not contend otherwise. There is no reason to doubt that ASIO considered that the information that it possessed in relation to those matters was credible, relevant and significant to the security assessment. Again, ASIO did not suggest otherwise. Equally, it is open to infer from the redacted intelligence report, briefing note and statement of grounds that, prior to making the assessment, ASIO had arrived at adverse conclusions based on the information available to it which could not accurately be described as mere mental processes or provisional views. Those conclusions were not disclosed to Mr El Ossman either prior to, during, or following the interview.
88 The procedure adopted by ASIO was to interview Mr El Ossman, advise him in general terms of the purpose of the interview and the nature of the inquiry, and to then ask Mr El Ossman a series of open questions concerning the identified issues. It may be inferred that the interviewing officers made a conscious decision not to disclose to Mr El Ossman during the interview the adverse information that was in their possession. Almost a year passed before ASIO, through the Director-General, decided to issue the adverse security assessment. There was no further interaction with Mr El Ossman during that period. No adverse information possessed by ASIO was disclosed to Mr El Ossman during that period. Nor was Mr El Ossman advised of, or given an opportunity to comment on, any likely findings or conclusions based on that information. Mr El Ossman was not interviewed again.
89 The critical question is whether the procedure adopted by ASIO was sufficient to ensure that the decision to make the adverse security assessment was made fairly having regard to the legal framework within which the decision was made and the particular facts and circumstances of Mr El Ossman's case. Did the procedure that was adopted by ASIO so constrain Mr El Ossman's opportunity to propound his case for a favourable exercise of power - a favourable security assessment - as to amount to a practical injustice? Was enough information provided to Mr El Ossman in all the circumstances to enable him to make meaningful submissions, or provide meaningful information, in relation to the issues that were likely to arise in relation to his security assessment?
90 While those questions may be easy to state, the answers to them are by no means obvious or straightforward. The situation is finely balanced.
91 The first step is to ascertain what can be gleaned about the relevant requirements of procedural fairness from the legal framework in which the adverse security assessment was made. The statutory scheme in relation to security assessments was outlined earlier. The following points relevant to an assessment of the requirements of procedural fairness may be made in relation to that scheme.
92 First, the statutory scheme does not establish any specific procedure for making security assessments. ASIO is not required to provide a hearing, or to interview a person who is being assessed. There is no express statutory requirement to provide the person with any information prior to the making of the assessment.
93 Second, there is provision in the statutory scheme for the person subject to an adverse security assessment to be notified of the adverse security assessment once it is made. That notification requirement is subject to an exception. That exception applies where the Attorney-General has certified that withholding notification is essential to the security of the nation. Where notification is required, the notification includes notification of the grounds of the adverse assessment. Subject to one exception, notification of the grounds in turn involves notification of the information relied on by ASIO in making the assessment. The exception is again related to the requirements of security: the statement of grounds need not include information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security. It is clear, therefore, that the interests of the assessed person to be notified of the information relied on by ASIO must, in certain circumstances, give way to the requirements of security.
94 It is to be noted, however, that this aspect of the statutory scheme relates to the provision of information after the assessment is made. It says nothing, at least directly, about what information may need to be disclosed during the assessment process to ensure that the process is fair.
95 Third, there is provision in the statutory scheme for the review of adverse security assessments by the Administrative Appeals Tribunal. There is no doubt that the Tribunal would be required to afford procedural fairness to a review applicant.
96 Fourth, the provisions in relation to both notification and review are excluded in the case of certain types of security assessments. Security assessments that are excluded from those provisions include, relevantly, assessments that relate to the exercise of powers or the performance of functions under the Migration Act in respect of a person who is not an Australian citizen. That might tend to indicate a legislative intention to limit the content of procedural fairness in respect of the excluded classes of security assessment. So much so was contended by the Director-General. He submitted that it would be inconsistent with the statutory scheme if procedural fairness required the disclosure of information to non-citizens, like Mr El Ossman, that Parliament has provided need not be disclosed in respect of the assessment process.
97 It is to be noted again, however, that the excluded provisions concerning notification and review concern post-assessment procedures. It could perhaps be argued that it would be strange that procedural fairness in relation to the making of the assessment required the disclosure of information which need not be disclosed after the assessment was made. Equally, however, it could be argued that the fact that the statutory scheme makes express provision for the non-disclosure of information following the assessment, but makes no express provision for the non-disclosure of information during the assessment process, tells against any legislative intention to limit the content of procedural fairness.
98 Fifth, the security assessment process is plainly investigative and inquisitorial. As a result, the rules of evidence and procedure that apply or have been developed in the context of adversarial proceedings are unlikely to be applicable or apposite in divining the requirements of procedural fairness: Abebe v Commonwealth (1999) 197 CLR 510 at [295] (Callinan J); Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 at [76] (Gaudron and Gummow JJ); MYVC v Director-General of Security (2014) 234 FCR 134 at [71]. That would include the so-called rule in Browne v Dunn (1893) 6 R 67 which, in very general terms, in certain circumstances requires a cross-examiner to confront a witness with relevant imputations that the cross-examiner later intends to submit should be made against the witness.
99 The Director-General submitted, in effect, that these features of the statutory scheme suggested that ASIO's obligation to disclose to assessment subjects, when undertaking security assessments, the issues to be considered and the relevant information available to it, is of much more limited scope than the equivalent obligation in different statutory contexts. In the Director-General's submission, ASIO will satisfy its procedural fairness obligations in conducting a security assessment in respect of a person who is a non-citizen if it conducts an interview with the person, informs the person that he or she is being assessed for security purposes, directs the person's attention to "the general issues of concern to ASIO", and gives the person an opportunity to address those general issues and advance any evidence or material relevant to them.
100 Such a generalised description of ASIO's procedural fairness obligations is not particularly helpful. It may readily be accepted that the identified features of the statutory scheme for security assessments will inform the level of disclosure that will be required. As already indicated, it is quite clear that ASIO could not be expected to disclose information to an assessment subject where that disclosure would be contrary to the requirements of security. That may mean, in some cases, that very little in the way of specific adverse information can be disclosed, or that adverse information can only be disclosed in very general or "high level" terms. Much will depend on the particular circumstances of the case. Equally, it is quite clear that, if ASIO does choose to conduct an interview with the assessment subject, the interviewing officers are not obliged to follow the rules of evidence or procedure that may be applicable in adversarial proceedings, or even the procedures that might be applicable in a hearing conducted by a tribunal, such as the Administrative Appeals Tribunal.
101 Ultimately, however, the question remains whether ASIO has sufficiently disclosed to the person being assessed the nature and purpose of the inquiry being conducted by ASIO (i.e. the security assessment), the issues to be considered in conducting that inquiry and, subject to the requirements of security, the nature of any information that ASIO might have and might take into account in making an adverse assessment. The disclosure will be sufficient if it is such that the person is given a fair opportunity to provide information, or make meaningful submissions, as to why an adverse security assessment should not be made. It is not particularly useful to generalise beyond that. Much will depend on the particular facts and circumstances of the case. In some cases, the dictates of security may be such that ASIO could not be expected to do anything beyond identifying the issues of concern and the relevant information in very general terms. In other cases, however, a greater level of specificity or particularity may be possible, and may be required, to ensure that the process is fair and that the assessment subject is given a fair opportunity to make submissions and provide information relevant to the security assessment.
102 In Mr El Ossman's case, it can readily be inferred that at the time ASIO interviewed Mr El Ossman, it was in possession of information that led it to suspect that Mr El Ossman was a security risk: that he had been involved in or supported politically motivated violence, that he associated with known terrorists or extremists, and that he held extremist beliefs. That information included, at least, information concerning three matters: first, that Mr El Ossman had used another name and that a person using that name had been involved in politically motivated violence; second, information that Mr El Ossman had a close association with the late leader of Jund al-Sham, Khaled Riad Mahmoud; and third, information that Mr El Ossman shared a close personal association with a former bodyguard for Australian-Lebanese terrorist, Houssam El Sabbagh. No information concerning those three matters was disclosed to Mr El Ossman, in general terms or otherwise, either before or during the interview. Indeed, ASIO did not disclose to Mr El Ossman that it was in possession of any information, even information described in the most general terms, that might lead it to make an adverse security assessment.
103 There could be no doubt that for security reasons ASIO was not able to disclose a good deal of the specific information it possessed relating to Mr El Ossman, including some information concerning the three specific matters just referred to. Specifically, ASIO was not able to, and could not be expected to, have disclosed to Mr El Ossman the other name that ASIO believed he used. The Director-General's public interest immunity claim in relation to that information was upheld. Nor could ASIO disclose to Mr El Ossman the name of Houssam El Sabbagh's bodyguard, or the specific information it possessed concerning Mr El Ossman's close association with Khaled Riad Mahmoud. The Director-General's public interest immunity claims in relation to that specific information was not challenged by Mr El Ossman.
104 However, as events transpired, the interests of security did not preclude ASIO from disclosing some information concerning those three matters, albeit in fairly general terms. The versions of the intelligence report and statement of grounds that were ultimately produced to Mr El Ossman for the purposes of this proceeding included some general information concerning each of the three matters. There is no evidence to explain why that general information was not disclosed to Mr El Ossman in the interview. Specifically, there is no direct evidence to the effect that this information was not disclosed to Mr El Ossman for reasons relating to security.
105 It would appear that, by December 2015, over a year after the interview, someone at ASIO formed the view that information, even in general terms, concerning the three matters should not be disclosed to Mr El Ossman. The truncated statement of grounds provided to the Department of Immigration and Border Protection, on the basis that it could be provided to Mr El Ossman, had all references to that information redacted. The truncated statement of grounds contained no reference to ASIO's assessment that Mr El Ossman was the person, albeit with a different name, who was known to have been involved in politically motivated violence. There was also no reference to any information concerning Mr El Ossman's association with Houssam El Sabbagh's bodyguard, or his close association with Khaled Riad Mahmoud.
106 The difficulty, however, is that the Director-General did not adduce any evidence to explain the redactions in the truncated statement. There was no evidence explaining why and on what basis the information concerning the three matters was redacted, or who decided to redact it, or when that decision was made. Nor did the Director-General adduce any other evidence to explain why any information concerning the three matters was not disclosed to Mr El Ossman at any time during the interview, or at any rate prior to the making of the assessment. It follows that, while it may perhaps be inferred that someone at ASIO believed that the information should not be disclosed to Mr El Ossman in the context of the administrative action to be taken by the Minister, it cannot necessarily be inferred that at the time of the security assessment interview ASIO believed that the requirements of security were such that the information could not be disclosed.
107 A similar issue arose in Jaffarie. That case also concerned judicial review of an adverse security assessment by ASIO. Mr Jaffarie was initially supplied with an unclassified statement of reasons concerning the adverse security assessment. At the hearing of Mr Jaffarie's application, however, Mr Jaffarie was provided with further materials which exposed the manner in which ASIO had proceeded. Mr Jaffarie argued that he was denied procedural fairness because certain information that formed part of ASIO's analysis was not disclosed "at the outset". The Full Court rejected the contention that Mr Jaffarie had been denied procedural fairness. Flick and Perram JJ (with whom White J relevantly agreed) reasoned (at [111]) that the mere fact that more information may have been made available to Mr Jaffarie during the course of the hearing did not necessarily say anything as to whether the initial disclosure was sufficient to afford procedural fairness. At [113], their Honours said:
It is concluded that in the context of decisions being made as to national security, an argument as to a denial of procedural fairness is not to be resolved by identifying further information which could (with the benefit of hindsight) have been disclosed to an affected person. The argument is to be resolved by the more generally expressed touchstone as to whether the person has - on balance - been given sufficient information to fairly put him in a position where he can make meaningful submissions….
…As full and as frank a disclosure of such information as is consistent with maintaining a claim for public interest immunity privilege should be made at the outset; the disclosure of as much information as possible should not depend upon judicial intervention to "encourage" the disclosure of information which could have been, and should have been, disclosed voluntarily.
108 In short, the question was not whether more information could or should have been disclosed at the outset. The question was whether what had been disclosed during the assessment process was sufficient to afford procedural fairness.
109 The Court found that in the particular circumstances of Mr Jaffarie's case, enough was initially disclosed to enable Mr Jaffarie to make meaningful submissions. It was acknowledged (at [113]), however, that in "different circumstances, a failure to disclose at the outset all of that information which could be legitimately disclosed may attract a different conclusion".
110 The question remains, then, whether sufficient information was disclosed to Mr El Ossman at the outset to enable him to make meaningful submissions concerning why ASIO should not give him an adverse security assessment.
111 The Director-General contended that Mr El Ossman had been given sufficient information. He relied on a number of features of the interview.
112 First, Mr El Ossman's interview proceeded for approximately 3 hours and 15 minutes. Mr El Ossman was advised that he could have a lawyer attend the interview with him if he wanted to, but he declined the opportunity to have a lawyer present.
113 Second, the ASIO interviewers explained the purpose of the interview to Mr El Ossman. The explanation included a statement that "the interview is an opportunity for you [Mr El Ossman] to resolve any security concerns that ASIO has and to tell us about yourself and your background, who you associate with and what sort of activities you're involved in". It may be noted, in this context, however, that at no stage during the interview did ASIO explain to Mr El Ossman that it did in fact have security concerns about Mr El Ossman, let alone what those concerns were, or what information ASIO possessed that gave rise to those concerns.
114 Third, the Director-General submitted that the ASIO interviewers explained, or put Mr El Ossman on notice of, the key issues of concern to ASIO. The Director-General relied, in support of that submission, on certain questions that the interviewers asked, including: whether Mr El Ossman was known by other names; whether he had been involved in any militia groups or protest activities in Lebanon; whether he had any views, and what those views were, in relation to various matters concerning fighting and anti-government groups in Syria; his opinions in relation to Islamic State, Jund al-Sham and Jabhat al-Nusra and whether he had ever provided any assistance to, fought or trained with, or undertaken any activities on behalf of any of those groups; whether he had any friends or associates in Australia or Lebanon who were members of, or fought with, or provided money to, those or any other militia groups; and whether he knew Houssam El Sabbagh and, if so, if he thought he was a "good man".
115 It may, in this context, be accepted that Mr El Ossman could have been under no illusions as to the types of information that ASIO was interested in. It is doubtful, however, that this questioning could accurately be characterised as putting Mr El Ossman on notice of ASIO's "concerns". The questions concerning these matters were all framed in open and non-leading terms. The interviewers gave Mr El Ossman no indication that they did not believe, or even doubted, any of his responses, or had reason to doubt his answers, or had any information contrary to Mr El Ossman's answers. They did not in any relevant sense put Mr El Ossman on notice that ASIO was in fact concerned that he was involved with or supported politically motivated violence in Lebanon or Syria, or that he was associated or involved in some way with Islamic State, Jund al-Sham or Jabhat al-Nusra, or that he knew or supported Houssam El Sabbagh.
116 Fourth, the Director-General relied on the fact that the ASIO interviewers emphasised on four occasions that it was important for Mr El Ossman to be honest and provide honest and full answers to their questions. Mr El Ossman was also asked on a number of occasions whether he wanted to add to or clarify any of his answers. As already noted, however, the interviewers gave Mr El Ossman no cause for suspecting that they did not believe that Mr El Ossman had given untruthful answers to any of their questions. The interviewers also asked Mr El Ossman whether there was "anything that you haven't told us that if we found it [sic] out later it would be damaging to your security assessment". It may be noted, however, that this question was directed to information that ASIO might find out about later, not information that it already possessed. This question perhaps reinforced the impression, that otherwise may have been conveyed by the tone and tenor of the questioning, that ASIO did not presently have any information that was damaging to Mr El Ossman's security assessment.
117 In relation to the so-called "other person" information, the Director-General pointed out that Mr El Ossman answered "no" to the question whether he was known by any other names. The Director-General submitted that ASIO was not obliged to disclose to Mr El Ossman its "opinion or preliminary conclusion" that Mr El Ossman was that other person and that, in any event, it could not have put the issue to Mr El Ossman in any more detail without compromising the interests of national security.
118 In relation to the information concerning Mr El Ossman's association with Houssam El Sabbagh's bodyguard, the Director-General pointed out that Mr El Ossman had been asked various questions, albeit in general terms, concerning whether he knew or associated with any members or supporters of terrorist groups in Lebanon, or whether he knew or supported Houssam El Sabbagh. The Director-General submitted that it was unnecessary to put the specific allegation of Mr El Ossman's association with the bodyguard to him because ASIO had put Mr El Ossman "squarely on notice" that the question of whether he had an association with Houssam El Sabbagh was a significant factual matter for ASIO.
119 In relation to the issue concerning Mr El Ossman's association with Khaled Riad Mahmoud, the Director-General relied on the fact that Mr El Ossman was repeatedly asked whether he knew anyone who had been a member or supporter of, or had fought with, groups including Jund al-Sham. On each occasion Mr El Ossman answered "no". The Director-General submitted that no more in fairness needed to be disclosed to Mr El Ossman in order for him to make meaningful submissions.
120 In the Director-General's submission, the situation was relevantly analogous to the situation in Jaffarie: even though ASIO could have given Mr El Ossman more detailed information at the outset, the disclosure that was made was sufficient. The Director-General also contended that there was "nothing to be gained" from asking Mr El Ossman whether, notwithstanding the negative answers he had given to the general questions concerning his association with members or supporters of terrorist groups, he had a close association with Khaled Riad Mahmoud. Indeed, it was submitted that this line of questioning would have been "futile" or "pointless".
121 There is some merit in some of the Director-General's submissions. 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.
122 The following considerations tip the balance in favour of that conclusion.
123 First, the entire process, insofar as Mr El Ossman was concerned, involved a single three hour interview on 22 October 2014. There is no suggestion, let alone evidence, that Mr El Ossman was given any information prior to the interview concerning the purpose of the interview, the nature of the inquiry being conducted by ASIO, the issues that would be considered in conducting the inquiry, or the nature and content of any information that ASIO possessed and might take into account for the purposes of that inquiry. Mr El Ossman was given no further opportunity, by way of further interview or otherwise, to address any of the issues raised with him during the interview. Almost a year after the interview, ASIO made an adverse security assessment in relation to Mr El Ossman. Mr El Ossman was not contacted by ASIO during that intervening period. No information was disclosed to Mr El Ossman during that period.
124 Second, it may be accepted that at the interview, the ASIO interviewing officers gave Mr El Ossman an explanation, albeit in fairly general terms, of the nature and purpose of the inquiry being conducted by ASIO, including the issues that were to be the focus of the inquiry. Mr El Ossman's responses during the interview show that he was aware that the inquiry concerned issues relating to national security, that such issues included politically motivated violence and violent protest activity, and that in that context, he would be asked questions concerning his background, who he associated with, and what sort of activities he was involved in. Perhaps most importantly, Mr El Ossman was told that the interview was his opportunity to "resolve any security concerns that ASIO has and to tell us about yourself and your background, who you associate with and what sort of activities you're involved in".
125 The difficulty, however, is that, as adverted to earlier, when read in context, the statement concerning Mr El Ossman's opportunity to resolve any security "concerns" that ASIO had did not clearly and adequately put Mr El Ossman on notice that ASIO in fact had any such concerns, let alone what those concerns were. Nor did the statement put Mr El Ossman on notice that ASIO possessed information concerning him that might be a reason for finding that Mr El Ossman was a risk to national security. The statement was at best somewhat ambiguous. The use of the word "any" left open the possibility that ASIO did not in fact have any actual concerns in Mr El Ossman's case. The statement also followed a very general description of national security, which not only included a reference to politically motivated violence, but also included references to espionage, spying, sabotage and border integrity. The general reference to Mr El Ossman being given the opportunity to tell ASIO about himself, his background, and his associations and his activities, was not linked to any specific security concerns, let alone any specific security concerns that ASIO may in fact have had in relation to Mr El Ossman.
126 In all the circumstances, fairness required that Mr El Ossman be told, at the very least, that the interview was his opportunity to resolve "the" or "some" security concerns that ASIO in fact had in relation to him, and at least a general description of what those concerns were. From what was said to Mr El Ossman, it would have been quite open to him to believe or assume that this may well have been a routine interview or procedure that everyone in his position was subjected to. In all the circumstances, the "opportunity" afforded to Mr El Ossman to "resolve any security concerns that ASIO has" could more accurately be characterised as amounting to no more than "a general and unfocused invitation to make submissions": Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223 (Gummow J).
127 Third, it may also be accepted that Mr El Ossman was asked a series of open questions concerning his involvement in or support for politically motivated violence in Lebanon and Syria, his opinions of and any involvement he may have had with groups including Islamic State, Jund al-Sham and Jabhat al-Nusra, and any association he may have had with people connected with those groups, including Houssam El Sabbagh. It could therefore be said that Mr El Ossman was made aware that ASIO's inquiry was directed primarily to whether he had been involved in or was associated with any politically motivated violence. He was given an opportunity to inform ASIO that he had not been involved in politically motivated violence, did not have any association with any groups or persons involved in politically motivated violence, and did not hold any opinions that might give rise to security concerns. To that extent, at least, he was given an opportunity to provide information concerning the issues raised by ASIO during the interview.
128 The difficulty, however, is that nothing whatsoever was said to Mr El Ossman during the interview to indicate that ASIO possessed any information that might cause it to doubt any of Mr El Ossman's answers to the questions that were put to him. Nor was anything said to Mr El Ossman to suggest that the interviewers had any doubts or concerns about the reliability or truthfulness of any of Mr El Ossman's answers to the questioning, or had any reason or basis for doubting his responses. He was not challenged or tested in any respect, let alone confronted with any information that may have provided the basis for any such challenge.
129 It is true that, as made clear earlier, procedural fairness does not ordinarily require the exposure of a decision-maker's mental processes, provisional views, opinions, doubts or subjective appraisals. Nor, at least where, as here, the procedure or function is inquisitorial or investigative, is a questioner required to confront an examinee with specific allegations, or put to an examinee or interviewee assertions of apparent falsity or unreliability. Here, however, it would not be accurate to describe the position as involving ASIO's mere mental processes, provisional views, opinions, doubts or subjective appraisals. ASIO's rejection of Mr El Ossman's account was not based on his demeanour during the interview, or any inconsistencies in his answers, or even any subjective appraisal of the plausibility or reliability of what he said during the interview. The clear inference that flows from the documentary evidence is that, at the time of the interview, or certainly by the time of the adverse security assessment, ASIO possessed information that ran directly counter to Mr El Ossman's answers to many of the general questions put to him. That information included information that, as events transpired, could have been disclosed to Mr El Ossman without any apparent risk to security. ASIO concluded that Mr El Ossman's answers given during the interview were untruthful because they were contrary to that information. ASIO disclosed none of that information to Mr El Ossman. Mr El Ossman was given no opportunity to respond to, or make submissions concerning, any of that information. Nor did ASIO disclose to Mr El Ossman in any way that it possessed any information that caused it, or might have caused it, to doubt any of his answers.
130 Fourth, and more specifically, Mr El Ossman was not put on notice that ASIO possessed information that suggested that he had used another name, and that the person using that name was known to have been involved in politically motivated violence. He was not told that the basis of ASIO's assessment in that regard was that Mr El Ossman's passport number, mother's name and year of birth had been linked to that other name, or the person using it. It must be accepted that the interests of security prevented ASIO from disclosing the precise details of the name said to have been used by Mr El Ossman. The interests of security did not, however, prevent ASIO from disclosing at least some information concerning this issue so that Mr El Ossman was given an opportunity to comment on it. Mr El Ossman could, for example, have been advised that ASIO was in possession of information concerning the adverse activities of a person who had been identified as having used the same year of birth, passport number and mother's name as Mr El Ossman. He could have been asked if he had any knowledge of, or explanation for, that information. Alternatively, he could have been asked if he was aware of any person who had the same year of birth, passport number and mother's name as him, or who had used those identifying criteria at any time.
131 It cannot safely be concluded that the disclosure of that information, or any questioning concerning it, would have futile or pointless: cf. M47/2012 at [253] (Heydon J). It cannot be excluded that Mr El Ossman might have had an explanation, or otherwise provided meaningful information on this issue if given the opportunity to do so. That information or explanation might not have been inconsistent with Mr El Ossman's statement that he had not used any other names. Hypothetically, for example, Mr El Ossman could have said that he was aware that someone had appropriated those identification criteria and that such identity theft is common in Lebanon because the passport system was insecure and passport numbers were unreliable. He may have said that his mother's name is a very common name in Lebanon. ASIO may not have believed such information, but that is beside the point. The situation, and the possible line of questioning, is quite different to the possible line of questioning posited by the plaintiff, but rejected by Heydon J, in M47/2012.
132 Fifth, the same can be said about the information in ASIO's possession concerning Mr El Ossman's apparently close association with Houssam El Sabbagh's bodyguard. It must be accepted that ASIO was prevented from disclosing to Mr El Ossman the name of the bodyguard and some other associated or surrounding information. There was, however, apparently nothing to prevent ASIO from disclosing to Mr El Ossman that it was in possession of information that indicated that he had a close association with a bodyguard, or former bodyguard, of Houssam El Sabbagh. At the very least, Mr El Ossman could have been asked whether he had a close association with somebody who had worked as a bodyguard for Houssam El Sabbagh. It cannot be excluded that, if that information was disclosed, or if Mr El Ossman was at least asked a specific question concerning Houssam El Sabbagh's bodyguard, Mr El Ossman might have had an explanation for any association he may have had with the bodyguard which was not inconsistent with his claim that he was not in any way associated with Houssam El Sabbagh himself. To give another hypothetical example to demonstrate the point, Mr El Ossman may have claimed that he simply played backgammon with the bodyguard and never discussed politics with him. Thus his association may have been entirely innocent. As with the "other person" issue, ASIO may well have disbelieved that claim, but that is entirely beside the point. Fairness required that Mr El Ossman be given at least some opportunity to respond to that specific piece of information.
133 Sixth, the information concerning Mr El Ossman's association with Khaled Riad Mahmoud is in a slightly different category. That is because the unchallenged public interest immunity claim by the Director-General indicates that the interests of national security prevented ASIO from disclosing to Mr El Ossman virtually all of the specific information it possessed concerning that association. Nevertheless, Mr El Ossman was not asked any specific question concerning Khaled Riad Mahmoud. It was certainly not revealed to him, even in the most general terms, that ASIO was in possession of information that indicated that he in fact had a close association with Khaled Riad Mahmoud.
134 Seventh, it cannot be concluded that the information possessed by ASIO concerning the "other person" issue, Mr El Ossman's association with Houssam El Sabbagh's bodyguard, and Mr El Ossman's association with Khaled Riad Mahmoud, was not considered by ASIO to be credible, relevant and significant to Mr El Ossman's security assessment. It plainly was. Nor could it be concluded that the findings based on that information were not important to the ultimate assessment. A fair reading of the redacted statement of grounds reveals that ASIO's findings that statements and claims made by Mr El Ossman in the interview were untrue was based at least in part on that information.
135 Eighth, as noted earlier, the Director-General did not adduce any evidence in the proceeding to explain why any of the credible, relevant and significant information that was known to ASIO, but not ultimately the subject of public interest immunity claim, was not disclosed to Mr El Ossman at the outset, or at least at some point prior to the making of the adverse security assessment. Nor was any explanation given in evidence for why it was never disclosed to Mr El Ossman, even in the most general terms, that ASIO in fact had some specific security concerns in relation to Mr El Ossman, or what those concerns were, or that ASIO was in possession of information that might cause it to doubt some (if not most or all) of what Mr El Ossman said during the interview. The affidavits relied on by the Director-General in support of the public interest immunity application were not read in the proceeding proper. While it may be accepted, on the basis of what was said in Jaffarie, that the question of procedural fairness is not to be approached on the basis of a hindsight assessment of what additional information might have been produced at the outset, it remains the case that the almost complete non-disclosure of any information to Mr El Ossman remained unexplained. It should also be noted, in this context, that the Director-General gave evidence in the substantive proceeding in Jaffarie, not just in relation to the public interest immunity claim.
136 Ninth, each of the above eight features of the interview and Mr El Ossman's case must be considered together and cumulatively. It is the cumulative effect of each of these matters that supports the finding that the procedure adopted by ASIO in Mr El Ossman's case so constrained his opportunity to propound his case for a favourable assessment as to amount to practical injustice. The combined effect of each of these matters is that Mr El Ossman was not fairly put in a position whereby he could make meaningful submissions in relation to the facts and issues that ultimately led to the adverse security assessment.
137 Tenth, the facts and circumstances of this case are distinguishable from the facts and circumstances of the cases relied on by the Director-General. In M47/2012, for example, the interviewing officers made it clear to the plaintiff that his version of events was heavily disputed. Gummow J noted (at [143]) that it was put to the plaintiff on at least six occasions in the interview that he was changing his story, giving an incomplete account in important respects, and failing to explain discrepancies in various accounts he had given. Likewise, Bell J noted (at [501]) that it was "abundantly plain" to the plaintiff that some of his claims were "in issue", that the interviewing officer squarely raised with the plaintiff that he had deliberately withheld information, and that claimed inconsistencies in the plaintiff's account of certain events were drawn to his attention and he was invited to comment on them. This appeared to be important to her Honour's conclusion (at [502]) that the plaintiff could not be said to have been "left in the dark" as to the matters that led to the adverse assessment. Unlike the plaintiff in M47/2012, Mr El Ossman was largely "left in the dark" as to any information about him that ASIO possessed, or that ASIO did not, or may not, believe any of the answers he gave during the interview on the basis of that information. For the reasons already given, the information that was not disclosed to Mr El Ossman included information that could not fairly be described as being in the nature of opinions: cf Kiefel J in M47/2012 at [413].
138 Following the hearing in this matter, Markovic J handed down a judgment in a matter which raised similar issues to this matter: BSX15 v Minister for Immigration and Border Protection [2016] FCA 1432. Neither Mr El Ossman nor the Director-General sought to make further submissions based on that judgment. In any event, it should be noted that there appear to be some potentially significant factual differences between BSX15 and this matter. In BSX15, for example, ASIO conducted three separate assessment interviews which together amount to 11 hours of questioning. It would appear that in the latter interviews, further questions were directed to the applicant in relation to "parts of [his] story" and he was given an opportunity to "address unresolved matters" and to "put forward his case in response to some of the critical issues or factors": BSX15 at [79(7)].
139 In any event, the question whether Mr El Ossman was or was not denied procedural fairness is not answered by comparing and contrasting the facts and circumstances of other cases. Each case must be considered on its own facts and circumstances. For the reasons just given, the particular and somewhat unique facts and circumstances of Mr El Ossman's case are such as to support the conclusion that he was denied procedural fairness in relation to his security assessment.
140 Two additional points should be made concerning the finding of denial of procedural fairness.
141 First, in M47/2012, French CJ held that the question whether there had been a denial of procedural fairness in relation to an adverse security assessment could not be answered until the decision - the "prescribed administrative action" - recommended in the assessment was made or taken. His Honour said (at [73]):
It may be accepted that the requirements of procedural fairness are attracted to the making of a security assessment under the ASIO Act. The content of those requirements is not necessarily to be answered solely by reference to the terms of the ASIO Act and the potential effect of an assessment upon the interests of the person about whom it is made. A security assessment may be used for a variety of purposes involving the exercise of different statutory powers. Such an assessment may be relied upon for more than one purpose under the Migration Act. The content of procedural fairness will depend upon the part played by the assessment in the exercise of the power in which it is considered and the nature of that power. Whether or not procedural fairness was accorded in this case depends upon the way in which the assessment is used and upon the decision ultimately made. The question remains hypothetical unless, and until, the assessment is used to support a decision adverse to the plaintiff, other than a decision involving the application of public interest criterion 4002.
142 Hayne J also found that it was unnecessary to answer the question whether there had been a failure to comply with the requirements of procedural fairness. Gummow, Heydon, Crennan, Kiefel and Bell JJ each answered the question in the negative. The point that should be emphasised is that, in the present case, the Minister for Immigration and Border Protection has not made any decision in respect of Mr El Ossman's substantive visa application based on the adverse security assessment. He has simply put Mr El Ossman on notice that he may refuse his substantive visa application. Nevertheless, the Director-General did not contend that the question of procedural fairness was hypothetical or otherwise could not be determined for the reasons given by French CJ.
143 Second, the Director-General's case rested entirely on the contention that there had been no denial of procedural fairness in Mr El Ossman's case. He did not contend that, if a denial of procedural fairness was made out, the relief sought by Mr El Ossman should be denied on the basis that the denial of procedural fairness could have made no difference to the end result. That is understandable. The authorities make it abundantly clear that "[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome…": Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [104]. It is, in any event, difficult to see how it could safely be concluded that the denial of procedural fairness in this matter could have had no bearing on the outcome.