Imad v Director-General of Security

Subdivision FB of the Migration Act

1. The key components of the legislative regime in Subdivision FB of Division 3 in Part 2 of the Migration Act, relevant to these proceedings, are ss 134A, 134B, 134C and 134E. Section 134A provides that natural justice does not apply to decisions made by the Minister under the subdivision. It provides: Subdivision FB - Emergency cancellation on security grounds 134A Natural justice The rules of natural justice do not apply to a decision made under this Subdivision.
2. Sections 134B and 134C are the critical provisions in Subdivision FB, comprising the regime:
3. for the emergency cancellation of a visa held by a person where there is an ASA made by ASIO advising the Minister that the person might be, directly or indirectly, a risk to security and recommending that a visa held by the subject of the ASA be cancelled: s 134B; and
4. for the revocation of such a cancellation within 28 days unless there is a further ASA made by ASIO advising the Minister that the person is a risk to security and recommending that the visa cancellation not be revoked: s 134C.
5. As noted below, ASAs are "furnished" to the Minister under the ASIO Act. Section 134B and 134C provide: 134B Emergency cancellation on security grounds The Minister must cancel a visa held by a person if: (a) there is an assessment made by ASIO for the purposes of this section; and (b) the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and (c) the assessment contains a recommendation that all visas held by the person be cancelled under this section; and (d) the person is outside Australia. 134C Decision about revocation of emergency cancellation Application of section
6. This section applies to a visa that is cancelled under section 134B. First ground to revoke cancellation
7. The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5).
8. However, the Minister must not revoke the cancellation under subsection (2) if: (a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and (b) the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and (c) the assessment contains a recommendation that the cancellation not be revoked under subsection (2). Second ground to revoke cancellation
9. If: (a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and (b) the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection; then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made. Period
10. For the purposes of subsections (2), (3) and (4), the period is the period that: (a) starts at the beginning of the day (the cancellation day) the visa is cancelled; and (b) ends at the end of the 28th day after the cancellation day.
11. Subdivision 134E contains the statutory requirements for the Minister's notice of a cancellation decision. It provides: 134E Notice of cancellation
12. If: (a) the Minister decides under section 134B to cancel a visa; and (b) the Minister decides under subsection 134C(3) not to revoke the cancellation; then the Minister must give the former holder of the visa written notice of the cancellation.
13. The notice must be given: (a) if the assessment made by ASIO for the purposes of section 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section - as soon as reasonably practicable after ASIO advises the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; and (b) otherwise - as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.
14. The notice must: (a) state that the visa was cancelled under section 134B; and (b) be given to the person in the prescribed way.
15. Failure to give the notice does not affect the validity of either: (a) the decision under section 134B to cancel the visa; or (b) the decision under subsection 134C(3) not to revoke the cancellation.

The ASIO Act

1. ASIO's power to make ASAs arises from the ASIO Act. Section 17 of the ASIO Act sets out the functions of ASIO. In particular, s 17(1)(c) provides that those functions include: to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities;
2. Part IV of the ASIO Act is titled "Security assessments". By reason of the operation of s 36 of the ASIO Act, read with the definitions in s 35, and in particular, the definition of "prescribed administrative action", only certain sections within Pt IV apply to the security assessments the subject of these proceedings. Relevantly, this includes s 37(1), which provides: The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
3. Section 37(5) does not apply to the security assessments the subject of these proceedings by reason of s 36. Section 37(5) provides: No proceedings, other than an application to the Tribunal under section 54, shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act.
4. Even if that provision did apply, it would not have prevented judicial review for jurisdictional error in light of Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476: see SDCV v Director-General of Security [2022] HCA 32; 277 CLR 241 at [183] (Gordon J). Appropriately, no point was taken that the present proceedings were formally styled as an application for judicial review under s 476 of the Migration Act (in relation to which this Court obtained jurisdiction under s 476A(1)(a)) and not also under s 39B of the Judiciary Act 1901 (Cth).
5. Section 35 of the ASIO Act, which contains definitions, also applies to the ASAs the subject of these proceedings. It includes the following definition of "security assessment": security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.
6. The word "security" is defined in s 4 of the ASIO Act as follows: security means: (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia's defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not; and (aa) the protection of Australia's territorial and border integrity from serious threats; and (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).
7. Subject to various qualifications, s 38 of the ASIO Act requires an adverse or qualified security assessment "furnished" by ASIO to the Commonwealth or a State (or an agency thereof) to be provided, by notice in writing, to the person the subject of the assessment within 14 days of it being so furnished. By reason of s 36 of the ASIO Act, this provision does not apply to the security assessments the subject of these proceedings.
8. Paragraph 36(1)(b) and subsection 36(2) provide: 36 Part not to apply to certain assessments (1) This Part (other than section 35 and subsections 37(1), (3) and (4)) does not apply to or in relation to: (a) … (b) a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958) in respect of a person who is not: (i) an Australian citizen; (ii) a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or (iii) a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa; or … (2) Despite paragraph (1)(b), this Part applies to a security assessment in respect of a person if: (a) the person was the holder of a valid permanent visa; and (b) the visa was cancelled under section 134B of the Migration Act 1958; and (c) the security assessment is made for the purposes of section 134C of that Act in relation to that cancellation.
9. It is to be noted that s 36(2) disengages the exclusion of large parts of Part IV of the ASIO Act effected by s 36(1) for holders of valid permanent visas in respect of whom a visa cancellation might occur under Subdivision FB of the Migration Act. The applicant was not the holder of a valid permanent visa with the result that he cannot fall within s 36(2). This is significant because it forms part of the statutory architecture which must be considered in determining the content of what procedural fairness required on the part of ASIO in making the security assessments. In particular, different rights under Pt IV of the ASIO Act are available according to citizenship and visa status.

Principles for leave to appeal

1. The Court's discretion in granting leave to appeal is unfettered. Absent extraordinary or unusual circumstances, leave is generally refused unless the applicant establishes that: (a) the decision giving rise to the orders is attended with sufficient doubt to warrant it being considered by a Full Court; and (b) substantial injustice would result if leave were refused: Décor Corporation Proprietary Limited v Dart Industries Inc [1991] FCA 655; 33 FCR 397 at 398. As was stated in Décor at 398-9, these two issues are interrelated: [T]he sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.

Summary of the applicant's case

1. The applicant's case, as ultimately put in submissions, was that the primary judge erred in not inspecting the documents (or parts of documents) in respect of which public interest immunity was claimed, in circumstances where it was uncontroversial that at least some of the documents were central to the applicant's case and, absent production, "the applicant's 'no evidence' ground of review [would] likely fail and his ability to argue his procedural fairness ground would be hampered, with little ability to make substantive submissions": J[89].
2. Although it could have been more clearly expressed, the applicant also challenged the primary judge's ultimate conclusion that public interest immunity applied.
3. As to the relevant principles, the applicant relied upon Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 at [67]-[69] in which Wigney J stated: [67] It is not always necessary for the court to inspect the documents which are the subject of a claim for public interest immunity in order to determine the claim and the court should not do so as a matter of course: [Commonwealth v] Northern Land Council [(1993) 176 CLR 604] at 617. [68] Inspection may not be required where the claim of public interest immunity is a "class" claim based on the status of the documents as Cabinet documents and there is no apparent countervailing public interest in the proper administration of justice: Northern Land Council at 617; Spencer [v The Commonwealth (2012) 206 FCR 309] at [33]. Even in such a case, however, the court may inspect the documents to determine whether they "in truth" fall within that class: Northern Land Council at 617. [69] Otherwise, inspection will generally only be necessary or appropriate where it is apparent that the documents are or may be relevant and significant to the court proceedings in question. In those circumstances, inspection would be appropriate to "test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity": Spencer at [33]; see also Northern Land Council at 619; [State of New South Wales v Public Transport] Ticketing Corporation [[2011] NSWCA 60] at [65].
4. The applicant also referred to the useful summary of principles in Rankine v State of South Australia [2022] SASCA 18 at [16]-[18] (Livesey P, Lovell and Doyle JJA). Their Honours stated (footnotes embedded): [16] As for inspection, it has been said that the Judge should not look at the documents unless persuaded that inspection would be likely to demonstrate that production will be ordered. The Court must have "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition". Where the balance lies in favour of production, the Court will generally inspect so as to satisfy itself that production is necessary: … the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v Rimmer [[1968] AC 910]. However, where the objection is to the disclosure of a document because it belongs to a class, and the Minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled. [Sankey v Whitlam (1978) 142 CLR 1 at 46 (Gibbs ACJ)] [17] The Court will not exercise the power to inspect as a matter of course, at least in relation to documents within a class that is often recognised as immune from disclosure, such as documents recording cabinet deliberations. Relevant considerations will include the nature of the objection and the reasons given for it; the Court will check whether the objection is taken in proper form by an appropriate person who has inspected the documents personally. [18] Where the Court entertains doubt about where the balance of public interest lies, it should generally inspect the documents. That will be so even where the reasons for the objection are in proper form and sufficiently stated. Of course if the reasons are not clearly expressed, the Court will "have to see the documents before ordering production" [Conway v Rimmer at 953].
5. The Director-General did not submit that the summaries of relevant principles in NSW Ports Operations at [67]-[69] or Rankine at [16]-[18] were wrong.

Summary of the Director-General's case

1. The Director-General submitted that leave to appeal should be refused unless the Court was satisfied that the primary judge's order upholding the claims for public interest immunity was attended by sufficient doubt, because - unless that order was attended by sufficient doubt - it did not matter whether the primary judge erred in deciding not to inspect the documents in determining whether the public interest immunity claim was made out or not.
2. The Director-General submitted that:
3. whilst there was undoubtedly power to inspect the documents, that power should be exercised sparingly and the primary judge acted consistently with long-standing authority in not inspecting the documents; and
4. in any event, whether or not the documents were inspected, the correct conclusion was that public interest immunity applied.

Disposition and reasons

1. After hearing argument in relation to the application for leave to appeal, and in light of the time constraints within which the applicant's substantive case needed to be addressed, the Court concluded that it should inspect the documents. Having inspected the documents, the Court was satisfied that the claims for public interest immunity were made out. Having regard to:
2. the importance of the issues raised by the applicant;
3. the strength of the applicant's argument that the primary judge ought to have inspected the documents; and
4. the absence of express reasons on the part of the primary judge for deciding not to inspect the documents in determining the claim for immunity, leave to appeal should be granted, but the appeal should be dismissed because the order made by the primary judge must stand in light of the conclusion we have reached that the public interest immunity claim should be upheld.

Inspection of the documents

1. In support of his argument that there was no error in not inspecting the documents, the Director-General referred to the observations of Gibbs CJ in Alister v The Queen [1984] HCA 85; 154 CLR 404 at 414, where the Chief Justice stated (citations omitted): Both Burmah Oil Co. Ltd. v Bank of England and Air Canada v Secretary of State for Trade support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade, he must have "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.
2. The Director-General also referred to the observations of Wilson and Dawson JJ in Alister at 439: It was suggested in argument that if the court was in any doubt as to whether a miscarriage of justice had occurred by reason of the trial judge's refusal to compel an answer to the subpoena then the court should itself inspect any documents that may exist. That may often seem an attractive proposition in order not only that justice may be done but that it should also appear to be done, but we do not think there is any warrant in the present case for adopting that course. A bare unsupported assertion that on inspection something may be found that is helpful to the defence is not enough. Mere speculation is not enough. In Air Canada, Lord Fraser of Tullybelton, in a speech in which Lord Edmund-Davies concurred, expressed the opinion that a court "should inspect documents only where it has definite grounds for expecting to find material of real importance to the party seeking disclosure". Lord Wilberforce accepted the tests of "likelihood" and "reasonable probability" enunciated in Burmah Oil as identifying some concrete ground for belief which takes the case beyond a mere fishing expedition. The question arose in a civil case.
3. The Director-General also referred to the observations of Brennan J in Alister at 455-6: But how should the balance be struck, if there were a document upon which "the innocence of a person accused might depend", a document which showed that the defence case was right in alleging that the Crown case was a "fabrication and a frame-up"? Should the court inspect the ASIO documents to ascertain whether such a crucial document existed? If there were an ASIO file of documents answering the description in the subpoena and if it contained a document showing the Crown case to be a fabrication and a frame-up, it is impossible to suppose that every consideration - of national security and justice to the accused alike - would not demand its inspection by the accused and, if admissible, its production in evidence. Unless the trial judge inspected the ASIO documents (if there were any), it was impossible to discover whether such a crucial document existed. That circumstance shows the subpoena to have been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the defence case. When the defence undertakes a fishing expedition, should the court abstain from inspecting documents in the possession of the Crown for which public interest immunity has been claimed? In Air Canada v Secretary of State for Trade, a case in which an objection to production was taken in proper form, it was accepted that the court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce's criterion there were "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition"; some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery. Air Canada v. Secretary of State for Trade was concerned with discovery in a civil action. This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law. The procedural safeguards are neither easy to devise nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf. Sankey v Whitlam.
4. Two observations of particular relevance to the present case should be made about these passages.
5. First, the documents in the present case cannot be described as documents which were identified pursuant to some form of "fishing expedition" on the part of the applicant. To the contrary, they were documents identified by the Director-General as ones which fell within the categories of discovery ordered on 17 June 2024, which included security assessments made under the ASIO Act for the purposes of ss 134B and 134C of the Migration Act and documents relied upon in making those security assessments. The documents included the security assessments themselves and other documents which were directly relevant to the basis upon which they were made and therefore highly probative of the issues raised in the substantive proceeding. Discovery would not have been ordered, and presumably production of discovery lists would have been resisted by the Director-General, if it were otherwise.
6. Secondly, some care should be taken when drawing a distinction between criminal and civil cases, at least without recognising that such a distinction is expressed at a level of abstraction. A claim for public interest immunity requires the Court to balance the effects of disclosure and non-disclosure on competing aspects of the public interest: first, whether the national interest would be harmed by the disclosure of the documents; and, secondly, whether the administration of justice would be frustrated or impaired if the documents are not produced. The balancing exercise requires an assessment of the "nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation": Alister at 412 (Gibbs CJ). The weight to be given to the public interest in the administration of justice not being frustrated or impaired by the withholding of documents is affected by the "importance of the documents in the particular litigation" which necessarily also involves a consideration of the potential consequences to the person as a result of the litigation.
7. Where a person's liberty is at risk, for example, the public interest might be seen to be stronger in ensuring that the documents are made available. While, generally speaking, criminal cases may more readily be seen to require full disclosure of relevant material, that is not necessarily the case. Not all criminal cases involve a person's liberty or other more serious consequences. It may well be that some documents will, upon examination by the court, be found not to be capable of assisting an accused in addressing the issues in a criminal case or in advancing that case, as was the conclusion ultimately reached in Alister at 469 by Gibbs CJ, Wilson, Brennan and Dawson JJ.
8. The consequences in civil cases may also vary. In the present case, the consequences to the applicant if the public interest immunity claim is upheld are serious, and similar in gravity to those that may arise in many criminal cases. That is so both because of the dangerous circumstances facing the applicant and because one of the consequences of his visa cancellation is separation from his family for so long as his family remain in Australia and the applicant has no lawful means of entry.
9. The Director-General next referred to Young v Quin (1985) 4 FCR 483 at 484, where Bowen CJ stated: Where a claim of public interest immunity is made in respect of documents it is for the court to decide whether or not to uphold the objection. The court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, the better view appears to be that the court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced: Conway v Rimmer [1968] AC 910 at 952, 953 and 971 and see Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394.
10. The primary judge, referring to this passage, appears to have taken the view that inspection should not occur unless the Court "decides that, on balance, the documents probably ought to be produced". Her Honour stated at [58]: Where a claim of public interest immunity is made in respect of documents, it is for the Court to decide whether or not to uphold the objection. The Court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The Court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, Bowen CJ considered that the better view appeared to be that the Court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced: Young v Quin at 484 (per Bowen CJ), citing Conway v Rimmer [1968] AC 910 at 952, 953 (per Lord Reid) and 971 (per Lord Morris of Borth-Y-Gest).
11. It is not clear what the primary judge understood by Bowen CJ's observations in Young at 484, cited by her Honour at [58], because her Honour did not provide reasons as to why she did not inspect the documents.
12. In Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 at 619 the High Court (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ; Toohey J dissenting) stated: [I]n our view, it is only in a case where there are quite exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it will be necessary or appropriate to order production of the documents to the court. Where such exceptional circumstances do exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure [Conway v Rimmer [1968] AC 910 at p 953, per Lord Reid]. Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents of that class unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings.
13. The process which Lord Reid in Conway v Rimmer [1968] AC 910 at 953 considered appropriate was to commence by considering the "probable importance" - that is the likely relevance and centrality of the documents to the case - and, if that consideration revealed that the documents probably ought to be produced, then the Court should not order production unless it first inspected the documents. Only if the Court maintained the view, after inspection, that production should be ordered should it make such an order: also at 953. And of course, the Court might provide an opportunity for the relevant government agency to supplement its evidence. It was the views of Lord Reid in Conway at 953 to which the High Court referred with apparent approval in Northern Land Council at 619.
14. In Conway, the documents were of "crucial importance in [the] action": at 937. The House of Lords inspected the documents and considered whether production should be ordered having regard to: (a) the public interest in harm not being caused "to the nation or the public service" by the production of documents; and (b) the public interest in the administration of justice not being frustrated or impaired by the withholding of documents. After the appeal was allowed, Lord Reid examined the documents and could find nothing which would be in any way prejudicial to the proper administration to the police concerned or to the general public interest, and accordingly their Lordships voted that the order of the District Registrar to produce the documents to the plaintiff and his advisers on reasonable notice be restored: at 996-7.
15. In summary, Conway decided that, if - considering the likely importance of the documents to the case before it - the Court considers that the documents probably ought to be produced, it should generally examine the documents before ordering production. As Lord Morris pointed out at 971, while the power to inspect documents should in practice be exercised sparingly, it could operate as a safeguard for the executive in cases in which a court is inclined to make an order for production even though an objection is being pressed.
16. In the present case, the documents subject to the Director-General's public interest immunity claim were obviously relevant to the applicant's judicial review application. The documents were clearly of critical importance to two of the applicant's grounds of review raising questions of legal unreasonableness or irrationality, and of substantial importance to the third asserting a denial of procedural fairness. It was not in dispute that the two legal unreasonableness or irrationality grounds would necessarily fail without the documents and that the denial of procedural fairness ground would be, at the least, potentially more difficult to establish.
17. Absent a proper claim for public interest immunity or legal professional privilege, there was no other course available than to make the documents available for inspection. In these circumstances, to adopt the language in Northern Land Council at 619 (citing Conway at 953), the "appropriate course" was "for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient … to justify disclosure" or to undertake the balancing exercise required.
18. The Director-General submitted that the primary judge "effectively [gave] … as great a positive weight in the applicant's interests as can be imagined" or "put as much weight on that side of the scale as could possibly be imagined" but that her Honour still accepted, on the basis of the evidence which had been adduced, that the public interest in national security outweighed the public interest in the administration of justice not being frustrated or impaired by the withholding of documents. It is not evident that her Honour did reason in that way. In any event, the difficulty with this proposition is that - once it was clear that the applicant's success or failure in his case was likely to turn on the content of the documents - it was necessary to know the quality of the information in order to assess where the balance of the competing public interests lay: Alister at 412; Northern Land Council at 619. The quality of the information informed the weight to be given to both competing aspects of the public interest.
19. For these reasons, and in light of the time constraints mentioned earlier, the Court examined the documents.

Balancing the competing aspects of the public interest

1. Like the primary judge, the Court had regard to the affidavit evidence of Mr Noyes, a Deputy Director-General of Security at ASIO. Mr Noyes affirmed two affidavits, one which was "open" in the sense that the applicant was also provided a copy, and one which was provided only to the Court on a "read and return" basis.
2. In Church of Scientology v Woodward [1982] HCA 78; 154 CLR 25 at 74, Brennan J observed that the secrecy of the work of an intelligence organisation engaged in matters such as counter-espionage is essential to national security and will seldom yield to the public interest in the administration of civil justice. At 76, Brennan J quoted with approval the observations of Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 233: So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process ...
3. As Wilson and Dawson JJ observed in Alister at 435, "[q]uestions of national security naturally raise issues of great importance … which will seldom be wholly within the competence of a court to evaluate". As their Honours also observed, "considerable weight must attach to the view of what national security requires" as expressed in the evidence, albeit the views or claims are not conclusive. That is particularly so where (as here) the person expressing the views has examined the documents, has specialised knowledge and experience as to security risks and what national security requires in the circumstances, and has articulated a cogent basis for the views expressed: see Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43-4. Wilson and Dawson JJ in Alister continued at 436: It is conceded by counsel for ASIO that the duty lies with the court to balance the competing aspects of the public interest. No doubt that duty will often be little more than a formality unless in the face of a claim based on security a compelling case is made out for the production of the documents.
4. The primary judge's evaluation of the evidence and reasoning, none of which was challenged or open to doubt, included, summarising or extracting from J[82]-[87]:
5. Mr Noyes had extensive experience in the areas of intelligence gathering, counter-terrorism and counter-espionage. Mr Noyes provided a detailed explanation of the categories of information and documents in respect of which public interest immunity was claimed and the reason why their disclosure would be prejudicial to national security.
6. Mr Noyes personally reviewed the documents in question and gave his opinion as to the significant national security implications if those documents were to be disclosed. In making his assessment, Mr Noyes had regard to both the likelihood of the particular harm eventuating, and the gravity of the consequences if it did. Mr Noyes' assessment of risk was based on his experience and expertise developed over many years of undertaking the collection of security intelligence, conducting security assessments and working on security and counter-terrorism investigations.
7. Mr Noyes' opinion was that it would be highly prejudicial to the public interest (specifically Australia's national security) for the information in the documents to be disclosed.
8. Secrecy is fundamental to ASIO's effective operation. The exchange of confidential information in strict secrecy is essential to ASIO's operations and disclosure would both reveal significant information and give rise to potential unwillingness by partner agencies to share intelligence with ASIO in the future.
9. Security assessments of the kind impugned in this proceeding are, in Mr Noyes' words, a "key mechanism by which ASIO carries out its core functions". The Security Assessment Branch (SA Branch) "deploys a range of investigative powers and methodologies to acquire sensitive information from various sources". The SA Branch prepares "detailed reasons" for its recommendation to the Director-General on whether a particular security assessment should be furnished, which will typically refer to sensitive information. Mr Noyes' evidence was that it is imperative that the SA Branch be able to give the Director-General full and frank information without fear that doing so could lead to disclosure of sensitive information in legal proceedings.
10. Mr Noyes explained that by "mosaic analysis", apparently innocuous or meaningless pieces of information can be put together with other pieces of information to build a coherent and comprehensive picture that reveals more significant information such as secret identities, locations or capabilities.
11. In balancing the competing public interests, her Honour reasoned: [88] Against the interests of national security must be weighed the public interest in the open administration of justice and whether the administration of justice would be frustrated or impaired if the documents are withheld. [89] I acknowledge that the personal circumstances of the applicant are dire, and that if the Court upholds the public interest immunity, the consequence is that the applicant's "no evidence" ground of review will likely fail and his ability to argue his procedural fairness ground would be hampered, with little ability to make substantive submissions. [90] However, the applicant is an offshore non-citizen who has been assessed as a risk to national security. The applicant seeks access to the information and documents over which public interest immunity is claimed in order to challenge the cancellation of his short-term visitor visa on the basis of the adverse security assessment made in respect of him. In that context, the risk of disclosure of the information and documents over which public interest immunity is claimed is heightened. [91] Against this, must be weighed the imperative that SA Branch be able to give the Director-General full and frank information without fear that doing so could lead to disclosure of sensitive information in legal proceedings. Further imperatives include the strong desirability that ASIO is able to continue to work with partner agencies and to share intelligence with them in the future, that mosaicking is not enabled and that ASIO's investigative processes, methods and any gaps in ASIO's capabilities not be revealed. [92] I consider that the countervailing interest in the open administration of justice does not outweigh the clear prejudice to national security that would be occasioned by disclosure of the documents and the information in them. [93] Balancing all the relevant considerations in this case, I am satisfied that the balance weighs heavily in favour of the non-disclosure of the documents on the basis of public interest immunity.
12. As noted earlier, the claim for public interest immunity requires the balancing of two competing public interests: first, whether the national interest would be harmed by the disclosure of the documents; and secondly, whether the administration of justice would be frustrated or impaired if the documents are not produced. The balancing exercise requires an assessment of the "nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation": Alister at 412.
13. Having inspected the documents and assessed the competing public interests, including the value and importance of the documents to the applicant's grounds of review and the contribution they could have made to establishing those grounds, we are satisfied that the Director-General's claim of public interest immunity should be upheld.
14. While the primary judge may have erred in all the circumstances in deciding not to inspect the documents, her Honour's order upholding the claim of public interest immunity cannot be impugned and the appeal must therefore be dismissed.

The grounds in the application for judicial review

1. The application for judicial review contains three grounds challenging the 134C ASA, made under s 37(1) of the ASIO Act for the purpose of s 134C(3) of the Migration Act. The applicant's first ground of review contended that there had been a denial of procedural fairness in ASIO's making of the 134C ASA. By his second and third grounds, the applicant asserted irrationality and legal unreasonableness in ASIO's making of the 134C ASA, but these two grounds were abandoned after the Court upheld the Director-General's claim of public interest immunity, on the basis that those grounds could not succeed without having access to that material.

Summary of the parties' cases on procedural fairness

1. It was common ground that ASIO's power to provide security assessments under s 17(1)(c) and 37(1) of the ASIO Act were conditioned on ASIO's compliance with an implied obligation to afford the affected person procedural fairness. The Director-General's position in this respect was consistent with his position in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1. It was also common ground that the applicant was not given any opportunity to be heard before ASIO made the assessment for the purposes of s 134C.
2. The applicant submitted that, despite the acknowledged difficulties, there were means by which he could have been afforded some opportunity to be heard. The applicant contended that procedural fairness required ASIO to:
3. notify him of the 134B ASA (in context, so that he knew that his visa had been cancelled and that this cancellation was at risk of not being revoked) and invite him to the Australian Embassy in Cairo, Egypt, where, according to the applicant, he could be interviewed by ASIO in a controlled and secure environment in advance of the Director-General finalising the 134C ASA;
4. arrange for an interview to be conducted by telephone, audio visual or other means remotely; and
5. provide an opportunity for the applicant's brother, mother and wife, or a migration agent or lawyer, to respond on the applicant's behalf.
6. It should be noted that the applicant's wife was interviewed by ASIO officers about the applicant before the 134B ASA was made, although she was not informed that such an assessment was in contemplation at the time.
7. The Director-General denied that procedural fairness required ASIO to take any of the steps identified by the applicant. The Director-General noted that, at the relevant time, the applicant was located in Gaza and submitted that there was no means of safely and reliably giving the applicant an opportunity to be heard in relation to the 134C ASA.
8. The Director-General accepted that if, in the circumstances, procedural fairness required him to take one or other of the steps asserted by the applicant, then the Court would also accept that the denial of procedural fairness was material in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610. It was only the content of procedural fairness which was at issue, not materiality if a breach of procedural fairness were otherwise established.

Additional facts and evidence

1. In November 2023, the Australian Government opened the opportunity for visa applications to be made by individuals affected by the war in Gaza. The applicant's brother, who resides in Australia, applied for visas for several members of his family.
2. On 13 November 2023, the applicant and his wife, daughter and mother were each granted visitor visas. In order to obtain transit to Australia, each of them needed to cross the border at Rafah from Gaza to Egypt. The evidence of the applicant's brother is that the Department of Foreign Affairs and Trade had informed him that only the applicant's daughter had been approved to cross the border into Egypt, but not the applicant, his wife or his mother. The evidence of the applicant's wife is that this was a decision of the Egyptian authorities, the reasons for which were not known. A few weeks later, the applicant's wife went to the Rafah border crossing with his daughter and successfully crossed into Egypt.
3. On 1 January 2024, the applicant's wife and daughter arrived in Australia. Eventually, the applicant's mother was also permitted to cross the border to Egypt and she has since arrived in Australia. They have each subsequently applied for a protection visa.
4. On 22 January 2024, officers of ASIO interviewed the applicant's wife. During the course of that interview, she was asked about the circumstances in which her family had sought to cross the border into Egypt, and whether the applicant had been denied entry on the basis that the Egyptian authorities considered him to be a member of Hamas. She was asked other questions relating to whether the applicant was a member of Hamas or otherwise involved in political activity. She denied that this was the case, and explained that in her opinion the applicant was a peaceful man who worked as a painter.
5. On 21 February 2024, the applicant's visitor visa was referred to ASIO for assessment, and the SA Branch commenced an investigation.
6. On 1 March 2024, the Director-General furnished the 134B ASA on the Minister. As noted above, the 134B ASA recommended that the applicant's visitor visa be cancelled on the basis that he was suspected to have maintained active associations with individuals affiliated with Hamas or PIJ and accordingly he might be a direct or indirect risk to security.
7. To the extent that it was not redacted, the decision brief for the 134B ASA further stated that ASIO had assessed that, for practical reasons, it was unable to give the applicant an opportunity to respond to credible, relevant and significant matters underpinning its assessment including, in summary, because:
8. ASIO officers were unable, for reasons of practicality and safety, to travel to the applicant's location to conduct a security assessment interview as he was located in Gaza which was an active conflict zone;
9. ASIO was unable to conduct a remote interview as it was unable to control the environment in which such an interview would take place; and
10. for the same reasons, ASIO was unable to send the applicant a written security assessment questionnaire.
11. The 134B ASA also stated that even absent these practical difficulties, there were also real constraints as to ASIO's ability to put to the applicant significant matters which were derived from sensitive reporting. ASIO's view was that "only a very limited amount of the adverse information on which ASIO's suspicions were based could have been put to the applicant without prejudicing national security".
12. The applicant was not notified about the 134B ASA at any time before the Minister's decision not to revoke the cancellation of his visitor visa.
13. On 26 March 2024, the Director-General furnished the 134C ASA to the Minister. As noted earlier, ASIO had by this time assessed the applicant to present "an unacceptable risk to Australia's security which would be mitigated by not revoking the cancellation of his Australian temporary visitor visa". The 134C ASA decision brief again set out the reasons why ASIO was unable to provide the applicant with the opportunity to respond, which largely repeated the matters contained in the 134B ASA, but added that giving the applicant the opportunity to respond to ASIO's concerns would necessarily delay ASIO progressing the ASA, thereby increasing the likelihood that the applicant's visa cancellation would be revoked following the end of the 28-day temporary cancellation period.
14. On 27 March 2024, the Minister notified the applicant, via his brother, that his visitor visa had been cancelled.
15. The applicant left Gaza for Egypt sometime in late March or early April, after the 134C ASA had been made. It is unchallenged that, since the cancellation of his visa, the applicant has had no legal right to stay in Egypt, and that he has faced imminent deportation to Gaza, which has been an active war zone throughout that period.
16. Given that the applicant had challenged the ASAs, ASIO prepared a "Truncated Statement of Grounds" (TSOG), which is a specially-created version of the classified statement of grounds that omits sensitive information over which the Director-General claims public interest immunity. The TSOG stated as follows (footnotes removed, and with the ellipses reflecting redactions by ASIO, rather than by the Court): Recommendations
17. ASIO assesses Mr Imad is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act)), and that it would be consistent with the requirements of security not to revoke the cancellation of Mr Imad's Temporary Visitor visa (subclass FA 600).
18. Accordingly, ASIO recommends Mr Imad's visa cancellation not be revoked. … Assessment Background
19. Mr Imad is a Palestinian citizen currently residing in Gaza. Mr Imad applied for an Australian Temporary Visitor visa - Tourist Stream (subclass FA 600) on 9 November 2023. Mr Imad's visa application and supporting documents indicate his intention to travel to Australia and reside with his brother - who is an Australian citizen - due to the conflict in Gaza. Mr Imad's application was not referred to ASIO for assessment and the Department of Home Affairs (hereafter Home Affairs) granted the visa on 13 November 2023. Mr Imad has not previously held an Australian visa or travelled to Australia.
20. Mr Imad first came to ASIO attention on [...] December 2023 [...]. [...]. [...]. On 21 February 2024, Mr Imad's visa was referred to ASIO for complex assessment. …
21. We have considered section 8.4 of ASIO's Security Assessment Determination No. 4 (SAD No. 4), specifically taking into account a subject's association in a security assessment. The SAD No. 4 notes associations which reflect adversely on the subject can be included when the subject has an active association (such as an alliance, link, connection, support for and/or membership) with any person who is involved in, or is reasonably suspected of being involved in, activities prejudicial to security. …
22. Mr Imad's spouse [redacted] arrived in Australia from Gaza on 1 January 2024 […] and was interviewed by ASIO on 22 January 2024. At interview, [Mr Imad's spouse] stated that she and Mr Imad had never had any engagement with Hamas and that her and her family were peaceful and did not like war. … Mr Imad presents an unacceptable risk to Australia's security which would be mitigated by the cancellation of his Australian Temporary Visitor visa
23. While ASIO has not identified reporting to indicate that the purpose of Mr Imad's travel to Australia is to engage in activities prejudicial to security, we assess his presence in Australia presents an unacceptable risk to Australia's security. [...]. However, in the context of [...], present an unacceptable risk Mr Imad would promote or facilitate acts of [Politically Motivated Violence (PMV)] in Australia [...].
24. ASIO assesses Mr Imad's presence in Australia would present an unacceptable risk to Australia's security. This risk would be effectively mitigated by not revoking the cancellation of Mr Imad's visa. [...]. … Consequences to security and risk mitigation
25. …ASIO assesses Mr Imad is directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act), and that it would be consistent with the requirements of security not to revoke the cancellation of Mr Imad's visa.
26. If Mr Imad were to hold a visa, ASIO assesses he would likely promote or facilitate acts of PMV in Australia [...]. By not revoking the cancellation of the visa, the risk to security which would be likely to exist if he were to arrive onshore will be mitigated. Matters taken into account
27. Regard has been given to the requirements of procedural fairness, relevant legislative tests, the currency, credibility, nature and authenticity of the relevant information and sources available to ASIO, including what weight should be accorded to the available information. Only information with a reasonable nexus to the assessment subject and relevant to the requirements of security has been taken into account.
28. In considering whether it would be consistent with the requirements of security not to revoke Mr Imad's visa cancellation, ASIO has considered the consequences of ongoing visa cancellation for the applicant.
29. ASIO does so because, in its view, the question of whether it would be consistent with the requirements of security not to revoke Mr Imad's visa cancellation involves an evaluative judgement, to be made in a manner that is legally reasonable. That evaluation includes whether Mr Imad's ongoing visa cancellation is reasonable, appropriate and proportionate to the risk to security ASIO has assessed given the consequences to the applicant. ASIO is mindful that its assessments are not made in the abstract, but are necessarily concerned with not revoking the cancellation of the visa by the Minister for Home Affairs.
30. In this case, ASIO is conscious that not revoking the cancellation of Mr Imad's visa is a serious matter. Specifically, for Mr Imad, the ongoing cancellation of his visa will prevent him from reuniting with his spouse and child who are currently onshore, and will prevent him from visiting his Australia-based family members. Mr Imad may also be prevented from leaving Gaza if he does not hold a valid visa to enter another country. Mr Imad's ongoing visa cancellation therefore presents a significant risk to his personal safety if he continues to reside in an active conflict zone. Having considered those consequences, ASIO considers that not revoking the cancellation of Mr Imad's visa would be reasonable, appropriate and proportionate to the risk to security it has assessed should the visa cancellation not be taken.
31. ASIO recommends that it would be consistent with the requirements of security to not revoke Mr Imad's visa cancellation.
32. In support of the Director-General's position as to the practical and other difficulties associated with affording procedural fairness to the applicant, evidence was adduced from Mr Oscar Hopkins, a First Assistant Director-General of ASIO, who has an assumed identity issued under Pt IAC of the Crimes Act 1914 (Cth). Mr Hopkins is a senior ASIO officer whose experience includes responsibility for the conduct of security assessments by ASIO, including those by the SA Branch. He was responsible for the security assessments concerning the applicant. Mr Hopkins swore an affidavit and was cross-examined in closed court by the applicant's counsel.
33. Mr Hopkins' evidence was that the ability to control security and the risks to safety of various persons is critical to carrying out an effective security assessment, which also as far as possible protects the safety of the interviewers and the subject of the assessment. Among other things, security assessment interviews can involve asking the subject of the assessment questions about their alleged involvement in or views about politically motivated violence, and ASIO requires candid and truthful responses. Such assessments must therefore avoid risks that jeopardise the confidentiality of interviews and the answers that are given. They must also avoid risks that jeopardise the safety of the person the subject of the assessment.
34. On Mr Hopkins' evidence, it was neither practical nor reasonable for ASIO to interview the applicant in person while he was in Gaza during the 28-day period following the 134B ASA dated 1 March 2024. This was because the security situation during the 28-day period was such that Mr Hopkins was aware that a number of terrorist organisations may have posed a risk to the safety of foreigners, as did major ongoing military operations by the Israel Defence Force, civil unrest, famine, and the proliferation of communicable disease. There is no Australian Embassy or Consulate in Gaza, and access to and from Gaza since October 2023 has been severely restricted. As a result, Mr Hopkins said that ASIO officers would be put at risk of harm if they were to enter Gaza, and, in any event, there was no means possible to ensure a secure facility in Gaza for the conduct of any interview. The volatile security situation during March and April 2024 included extensive disruptions to internet access and telecommunications in Gaza, as well as widespread population displacement. This would have made locating and communicating with the applicant for the purposes of arranging an in-person interview difficult. Mr Hopkins further said that any interview conducted in person with the applicant in Gaza would also put him at risk including by making him a target, and there was no means by which to ensure his safety.
35. Mr Hopkins also formed the view that it was not practicable to facilitate a remote interview with the applicant such as by telephone, video or by way of an online questionnaire. This would have been rendered very difficult by the disruptions to internet and telecommunications networks and, in any event, ASIO was not prepared to conduct an interview using an unsecure telephone line or video link as it could not be certain who might access sensitive information communicated this way. Mr Hopkins further said that ASIO is unable to control the environment in respect of remote interviews and online questionnaires, such as the presence or influence of third persons during a remote interview. It is critical to ASIO that confidentiality is maintained at all times, and Mr Hopkins explained that ASIO cannot take steps to control its concerns about confidentiality by unsecure telephone, video and other online means. Mr Hopkins reiterated that taking such steps could create the risk of adverse safety consequences to the applicant which could not be mitigated by ASIO.
36. As a result of these matters, Mr Hopkins' evidence was that the ASIO officers would be unable to attend an in-person interview in Gaza within the 28-day period. Nor could an interview be arranged in a way that would ensure a controlled and secure environment that would also guard against the risk to the applicant's safety.
37. Mr Hopkins also gave evidence that even if the practical concerns could be addressed, it was not possible to put to the applicant anything other than general and very high-level matters without prejudicing national security.
38. Mr Hopkins also pointed to the circumstances of urgency. ASIO had assessed that the applicant's presence in Australia would present an unacceptable risk to Australia's security including because he would be likely to promote or facilitate acts of politically motivated violence in Australia. Mr Hopkins gave candid evidence that ASIO's aim in furnishing ASAs in these circumstances "was to disrupt the [a]pplicant's ability to travel to Australia". Mr Hopkins said that after furnishing the 134B ASA, and owing to the 28-day period in which the Director-General was required to furnish the 134C ASA, it was not practicable for ASIO to "wait and find out" if the applicant would cross the border into Egypt where consideration could be given to interviewing him there. It was Mr Hopkins' understanding that very few people had successfully crossed the border from Gaza into Egypt and there "was therefore no real expectation at that time of the possibility that the [a]pplicant would be able to do so in the next 28 days". In cross-examination he accepted that aspects of his understanding at the time about the rate of departures from Gaza may not have been accurate, but this ended up being of little moment.
39. The applicant's counsel cross-examined Mr Hopkins as to whether he had turned his mind to inviting the applicant to attend the Australian Embassy in Cairo so that an interview could be conducted there in a secure environment. Mr Hopkins' evidence was to the effect that he had considered the possibility of interviewing the applicant in Egypt - though perhaps not in the Australian Embassy specifically - but did not consider this option to be practical, safe or viable. That was so because, to his knowledge, the applicant had already made attempts to enter Egypt without success, and there was no evidence that he was making further attempts or that any such attempts would be successful. Further, Mr Hopkins explained that notifying the applicant of ASIO's security concerns would have put him at risk of harm if that information was obtained by the Egyptian authorities, which have banned Hamas and PIJ and have a history of dealing with individuals or groups seen as a threat in a way that would be considered a contravention of human rights.
40. The applicant's counsel also challenged Mr Hopkins' assessment as to the prospect of the applicant being able to cross the border into Egypt having regard to reports from other Australian agencies as to the number of Palestinian denizens having done so since late 2023. Although Mr Hopkins accepted that the number of persons who successfully crossed had increased, he maintained his opinion that it was unlikely that the applicant would have done so given his earlier failed attempts and the intelligence that ASIO held about the applicant.
41. Despite these and other challenges made to Mr Hopkins' evidence, we accept his evidence as a cogent and credible explanation of the very real issues confronting ASIO in seeking to strike a balance between various competing interests, not least the interests of national security, the interests of the safety and welfare of ASIO officers, the safety and welfare of the applicant himself, together with the interests of ensuring the protection of sources of intelligence and obtaining information from the applicant in a secure, safe, credible and realistic way.
42. Relying upon Mr Hopkins' evidence, the Director-General contended that he was not obliged by the rules of procedural fairness in the circumstances to interview the applicant in the manner for which the applicant contended.

The content of procedural fairness

1. The "terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice": National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; 156 CLR 296 at 326 (Brennan J). The content of procedural fairness will depend on the statutory framework within which the decision-maker exercises power and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
2. As noted above, the power to make security assessments is contained in the ASIO Act. An aspect of ASIO's function is "to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities": s 17(1)(c). The ASIO Act contemplates that security assessments will be provided to various Commonwealth and State agencies. It follows, as is recognised by the terms of s 37(1) of the ASIO Act, that security assessments will be prepared having regard to the "functions and responsibilities" of the particular Commonwealth and State agency for whom the assessment is prepared.
3. In the present case, the adverse assessments were furnished to the Minister for the purposes of the Minister exercising the functions and responsibilities he has under the Migration Act, specifically under ss 134B and 134C.
4. Where it applies, s 38 of the ASIO Act requires the Commonwealth or State agency to whom an adverse assessment has been given to provide notice in writing to the person within 14 days of being furnished with the assessment. As noted earlier, this provision does not apply to the adverse assessments the subject of the present proceedings. However, it is relevant to note that - even where s 38 does apply - there is no express requirement on the part of ASIO to furnish an adverse assessment before it is made. Section 37(5) - which also does not apply in the present case - contemplates that proceedings for review of security assessments may only be brought under s 54 of the ASIO Act in what is now the Administrative Review Tribunal.
5. In addition to the terms of the ASIO Act, the content of what procedural fairness required in the present case is also necessarily informed by the terms of Subdivision FB, which provides the regime for emergency visa cancellation based on ASAs made by ASIO. Section 134A of the Migration Act excludes any requirements for natural justice in relation to decisions of the Minister made under Subdivision FB, which includes the notification requirements specifically addressed in s 134E.
6. The applicant could not and did not contend that the Minister was required to afford him procedural fairness in the making of the decision to cancel his visitor visa under s 134B or the decision not to revoke the cancellation under s 134C, given the terms of s 134A. Rather, the applicant contended that ASIO, via the Director-General, was required to afford him procedural fairness in the making of the ASA under the ASIO Act for the purposes of s 134C.
7. The applicant conceded that the requirement to afford him procedural fairness in respect of the security assessment made for the purposes of s 134B was "reduced to nothingness". This flows from the statutory function being exercised and the requirement in s 134C(2), when read with s 134C(5), to revoke the visa cancellation as soon as practicable after 28 days.
8. The implication of procedural fairness conditioning ASIO's power to furnish security assessments under the ASIO Act is the "product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests": CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367] (Gageler J) citing Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97] (Gummow, Hayne, Crennan and Bell JJ).
9. Depending on the statutory context, procedural fairness may require a decision-maker to identify to the affected person any issue "critical to the decision which is not apparent from its nature or the terms of the statute under which it is made" and to "advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material": Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 592 (Northrop, Miles and French JJ). The context of the making of security assessments under the ASIO Act suggests that there will often be no requirement to provide advance warning that such an assessment is being contemplated. This is also suggested by the notice requirements in s 38 of the ASIO Act. It would often be inimical to ASIO's statutory functions generally under the ASIO Act if ASIO were required by the rules of procedural fairness to take steps which had the practical effect of alerting people considered to be a risk that their activities (or those of their associates) had come to the attention of ASIO thereby, for example, potentially frustrating ASIO from making ASAs or obtaining information pertinent to such assessments or its functions more generally.
10. Procedural fairness "can have a flexible content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other": CPCF at [367] citing Kioa v West [1985] HCA 81; 159 CLR 550 at 615, where Brennan J stated: An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case. Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected … In such cases, a peremptory exercise of the power is valid, though the power is conditioned on the observance of the principles of natural justice. It must therefore be accepted, as one commentator points out (G. Johnson "Natural Justice and Legitimate Expectation in Australia", Federal Law Review, vol. 15 (1985) 39, at p. 71), that "the contents of natural justice range from a full-blown trial into nothingness". Yet Tucker L.J. said in Russell v. Duke of Norfolk, that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case". If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.
11. CPCF at [367] also included the statement that to "imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances": citing Kioa v West at 627, where Brennan J stated: What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.
12. The content of the obligation to afford procedural fairness is readily adapted and varied according to the exigencies in statutory regimes concerned with national security and the making of urgent decisions relating to visas: see Leghaei v Director-General of Security [2007] FCAFC 37; 241 ALR 141 at [48]-[54] (Tamberlin, Stone and Jacobson JJ); Sagar v O'Sullivan [2011] FCA 182; 193 FCR 311 at [72] (Tracey J). Depending on the particular statutory context and circumstances, the content of procedural fairness may be reduced to "nothingness" in such situations: Leghaei at [51], [54].
13. As to the content of the implied obligation of procedural fairness in relation to the Director-General's ASAs under the ASIO Act for the purposes of s 134C(3) of the Migration Act, the following features of the statutory schemes inform the variable and flexible content of the obligation according to the circumstances of the case at hand:
14. having regard to the nature of the function being exercised by ASIO, there may be reasons in particular cases not to inform (or to delay informing) a person that consideration is being given to an ASA for the purposes of s 134C because to do otherwise might have adverse consequences and/or jeopardise the making of a properly informed assessment;
15. Subdivision FB is in terms concerned with the emergency cancellation of visas on security grounds;
16. the initial cancellation is required upon the advice of only a suspicion that the visa holder might be a direct or indirect risk to security;
17. the emergency cancellation must be revoked as soon as reasonably practicable after the 28 days from cancellation provided for in s 134C(5);
18. the 28 days is of itself a confined period of time, maintaining the sense of urgency;
19. the suspicion required for the visa cancellation may be replaced by advice that the former visa holder is a direct or indirect risk to security and in that circumstance the cancellation must not be revoked, or else the cancellation must be revoked.
20. The scheme in Subdivision FB for emergency cancellation contemplates urgent ASAs being made under the ASIO Act both as to a suspicion that a person may pose a risk to security for the original visa cancellation, and as to whether a person is a direct or indirect risk to security for the purpose of not revoking such a visa cancellation. These are the very types of circumstances where the content of the obligation of procedural fairness by a repository of power is adapted to the exigencies confronting that repository of power. The needs of security may, in particular cases, result in the procedural fairness obligation being stripped of meaningful content.
21. That this may be so in a given case is reinforced by s 134A of the Migration Act, which provides that the rules of natural justice do not apply to decisions by the Minister made under Subdivision FB, and by the specific notice requirements contained in s 134E, reproduced above.
22. When read in the context of s 134A, s 134E provides an express regime for notice of cancellation of a visa under Subdivision FB by the Minister, which may in a given case directly affect the content of the implied obligation of procedural fairness that is conceded by the Director-General to exist in relation to an ASA given for the purposes of s 134C(3). Section 134E(1) requires notice to be given to a former visa holder if the Minister has decided to cancel a visa under s 134B and the Minister decides under s 134C(3) not to revoke that cancellation. The express obligation imposed on the Minister is to give notice only after both events. If the cancellation decision is revoked, there is no express statutory obligation to give notice of cancellation, and no proper basis to imply such an obligation contrary to such an express scheme. It may be that some obligation to give notice of cancellation may be inferred from the terms of s 134D, if the cancellation is revoked, but that is not what happened in this case, and it is best not to determine that question outside of a case in which that has arisen.
23. Further, s 134E(2) provides for the timing of the Minister giving written notice of both visa cancellation and non-revocation of that cancellation, which may be affected by advice received by ASIO. Specifically, s 134E(2)(a) provides that if ASIO advises that it is essential to the security of the nation that notice is not given under s 134E, then such notice must not be given by the Minister until that state of affairs no longer exists. Otherwise, s 134E(2)(b) provides that if such advice is not given by ASIO, such written notice must be given by the Minister as soon as practicable after a decision not to revoke, and thus expressly not before that time.
24. It is plain from these provisions that no express obligation is imposed upon the Minister to give written notice as to cancellation unless and until that cancellation is not revoked, and no express obligation to notify is imposed upon ASIO at all. It is therefore clear that there is no statutory obligation to give notice upon the making of a decision compelled by s 134B, and again, no obligation contrary to this express scheme can properly be implied. As s 134E(4) also makes clear, a failure by the Minister to comply with the express obligation to notify does not affect the validity of either the s 134B decision to cancel, or the s 134C decision not to revoke that cancellation. The statutory scheme is premised upon the Minister giving notice only upon a visa being cancelled under s 134B, and only then when the visa cancellation decision has not been revoked. That was the notice that was given to the applicant, via his brother, on 27 March 2024. No reference was made to either ASA, although the existence of them would be apparent from the terms of ss 134B and 134C(3).
25. We turn now to consider the applicant's contentions having regard to the matters we have set out above.

Consideration

1. As noted at [65] above, the applicant put three arguments in relation to what procedural fairness required in the circumstances. The substance of the first argument was that ASIO was obliged to notify him of the 134B ASA, so that he was on notice that the cancellation of his visitor's visa was at risk of not being revoked. The substance of the second argument was that ASIO was obliged to invite him to attend an interview at the Australian Embassy in Cairo to enable him to be heard before the decision was made on revocation of his visitor's visa. And the substance of the third argument was that ASIO was obliged to seek information from the applicant's brother, mother and wife, or to notify the applicant so that representations could be made by a migration agent or lawyer, so that they could address ASIO's concerns. For the reasons that follow, we do not accept that ASIO or the Director-General were required to do any of these things in the present circumstances, if at all.

First argument - notifying the applicant of the 134B ASA

1. The applicant's first argument is inconsistent with the function exercised by ASIO under the ASIO Act for the purposes of the Minister performing his function and responsibilities under Subdivision FB of the Migration Act. There is no express requirement under the ASIO Act for ASIO to notify a person of an ASA furnished to the Minister for the purposes of s 134B of the Migration Act and no requirement for the Minister to do so under either the ASIO Act (s 38 being disengaged) or the Migration Act. The assessment for the purposes of s 134B is typically going to be given urgently, as it was in this case, and in circumstances where an assessment for the purposes of s 134C is being contemplated or considered. It would often be inimical to the function of ASIO being exercised (namely considering whether to furnish an adverse assessment for the purposes of s 134C), and to its functions more generally, if procedural fairness required notification to an affected person that an assessment had been made under s 134B. This is because such notification might frustrate the ability to make an adverse assessment under s 134C or to do so within the required timeframe.
2. As to Subdivision FB, s 134E makes express provision for notification of decisions by the Minister. There is no express obligation imposed upon the Minister to notify a visa holder of a cancellation decision compelled under s 134B. Further, the express obligation to provide notice in s 134E is subject to an important qualification that such notification must be provided after the Minister has made both decisions under ss 134B and 134C(3). The important qualification contained in s 134E(2)(a) is that the Minister is not to give notice if the 134C ASA contains advice that it is essential to the security of the nation that notice is not given, in which case it must not be given until ASIO advises that this state of affairs has changed.
3. The fact that s 134E provides for notification only after both decisions have been made and, where relevant, the Minister has accounted for the advice received by ASIO under a 134C ASA as to the risks to national security arising from notification, tells against the implication of an obligation being imposed upon ASIO to notify a visa holder of a 134B ASA where a 134C assessment is underway.
4. The applicant contended that Subdivision FB only operated in respect of the duties and obligations imposed upon the Minister. It was submitted that, because the applicant was only directly challenging the decision of the Director-General, these provisions did not bear upon the implied obligation imposed upon ASIO, and thus the Director-General, to afford him procedural fairness in this particular way. Whilst it may be accepted that there is no direct challenge here to the non-revocation decision made by the Minister (the challenge being collateral and consequential to the challenge to the 134C ASA), ASIO's furnishing of ASAs under the ASIO Act has to be considered by reference to the statutory context in which they were provided and required to be considered by the Minister, that scheme informing the very function ASIO exercises under the ASIO Act.
5. That context here was the provision of the 134B ASA to compel an emergency visa cancellation decision by the Minister on the basis of a suspicion that the visa holder might be a risk to security and recommending visa cancellation, with a 28-day period before which that decision would be revoked unless the 134C ASA was provided, making an assessment that the former visa holder is a direct or indirect threat to national security and recommending that the visa cancellation not be revoked. The nature of the inquiries to be made in the prescribed period as to whether the assessment as to a suspicion of a risk to security should be elevated to an assessment that a person is an actual risk to security, militate against implying an obligation that the former visa holder be notified by ASIO of the 134B ASA. That is all the more so given that the inquiries made in between the two ASAs contemplated by ss 134B and 134C may lead ASIO to advise the Minister that the former visa holder not be notified of the decisions if it considers it essential to national security that such notice be withheld: s 134E(2)(a).
6. In the present case, ASIO had made an assessment that it suspected the applicant might be a direct or indirect risk to national security on the basis of him having maintained associations with Hamas or PIJ. Having made such an assessment, ASIO was next assessing whether there was a basis that he posed an actual direct or indirect risk to security. In these circumstances, having regard to the statutory context, and the express provisions for notice, ASIO was not obliged to notify the applicant of the 134B ASA.

Second argument - remote interview or in-person interview in Cairo

1. The applicant's contention that procedural fairness in the circumstances obliged ASIO to invite him to make his way to the Australian Embassy in Cairo as soon as his visa had been cancelled under s 134B should also be rejected. Contrary to the applicant's submissions, we accept Mr Hopkins' evidence that, to the best of his knowledge at the relevant time:
2. very few people were able to leave Gaza;
3. accordingly, there was no "real expectation" that he would be able to cross into Egypt, implicitly in the urgent timeframe in contemplation, even if he was making attempts to do so; and
4. notifying the applicant that ASIO held security concerns about him and therefore that he should attend the Australian Embassy in Cairo would not have been possible without exposing him to the risk of harm.
5. We also reject the applicant's contention that ASIO was obliged in the circumstances that prevailed to afford him procedural fairness by conducting an interview by remote means (by telephone or video) or by way of an online questionnaire. We accept Mr Hopkins' evidence that these means did not provide a confidential or secure basis upon which to canvass matters of security.

Third argument - notifying third parties so they could make representations

1. In relation to the third argument, it was submitted that the following steps could have been taken:
2. interviewing the applicant's brother, mother and wife, and telling them that ASIO was considering issuing a 134C ASA on the basis of his suspected associations with Hamas or PIJ or that he posed a risk to security, so that they could make representations on the applicant's behalf (or in his wife's case, as she had already been interviewed, more forceful representations than she had otherwise been able to make);
3. notifying the applicant or his brother, so that a migration agent or lawyer could make submissions on his behalf.
4. The conclusion on the third argument largely flows from the conclusions reached above about the first and second arguments. Given that we have concluded that there was no requirement to provide notice of the 134B ASA, and no obligation to take further steps to interview the applicant either remotely or in-person in Cairo, we are unable to accept that there was a requirement to attempt to achieve some version of the same end by indirect means via other people, be it the applicant's brother, mother or wife, or via a migration agent or lawyer. Each of the steps suggested by the applicant traverses the imperatives outlined earlier, including potentially disclosing information which ASIO could not disclose in the national interest or for other reasons, or taking steps which might themselves risk security. In the circumstances, there was no obligation to seek to provide an opportunity for the applicant to be heard by indirect and second-hand means of uncertain reliability. Such an indirect approach would be unusual in any context.
5. We do not accept that ASIO had any obligation to notify or interview the applicant's brother, mother or wife, or to notify those persons so that a migration agent or lawyer could make submissions.

Conclusion

1. It follows that we reject the applicant's contention that he was denied procedural fairness. The circumstances confronting the applicant, ASIO (and the Director-General) and the Minister were unique and occurring against the backdrop of significant dislocation of Palestinians in Gaza, raising significant concerns as to security. In these circumstances, ASIO and the Director-General were not required by the rules of procedural fairness to take the steps which the applicant contends ought to have been taken.
2. For the foregoing reasons, the application for judicial review should be dismissed.

OVERALL CONCLUSION

1. In relation to the application for leave to appeal, such leave should be granted, but the appeal should be dismissed because the primary judge's order upholding the claim for public interest immunity should not be disturbed.
2. The application for judicial review must be dismissed.
3. In all the circumstances, we consider that there should be no order as to costs. If either the Director-General or the applicant seeks a different order, that may be sought in the first instance by an email to our associates within seven days, also proposing any process for determining such an application for costs. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromwich, Thawley and Shariff.