JLW24 v Minister for Immigration and Multicultural Affairs

THE SECURITY ASSESSMENT AND CANCELLATION OF THE APPLICANT'S VISITOR VISA

1. The applicant is a national of the Palestinian Authority and resided in Gaza until on or about 13 March 2024.
2. On 10 November 2023, a relative of the applicant who is an Australian citizen residing in Australia (the applicant's Australian relative) applied for a Visitor (subclass 600) visa (visitor visa) on behalf of the applicant, as well as his family. The applicant's Australian relative was also named in the form as the authorised person for the purposes of receiving all written correspondence on behalf of the applicant, and provided her Australian mobile phone number, email address, and home address.
3. In the application, the applicant stated that "[t]here is no way out from Palestine at this moment as it is bery [sic] difficult" and that he needed to be in Australia on 20 November 2023. The applicant identified the closest Australian Government Office to his current location as Cairo in Egypt. He answered "no" to questions as to whether he had ever been directly involved in activities which would represent a risk to national security in Australia or any other country, and whether he had been associated with any organisation engaged in acts of violence.
4. On 21 November 2023, a delegate granted a visitor visa to the applicant and each member of his family group. The applicant's application was not referred to ASIO for assessment prior to the issue of the visitor visa. The visitor visa provided that the applicant must not arrive after 21 November 2024 and permitted multiple entries into Australia.

1. On 1 March 2024, the applicant's visitor visa was referred to ASIO for a security assessment pursuant to ss 17(1)(c) and 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) (set out below). It is agreed that neither the Director-General nor any person acting on his behalf had any contact at all with the applicant or any person acting on the applicant's behalf during the assessment and cancellation process.
2. As occurred in this case, the SA Branch within ASIO conducts and prepares security assessments and makes recommendations, while the Director-General makes the security assessment. Security assessments enable ASIO to advise government about the risk that a particular individual might pose to Australia's national security and are a key mechanism by which ASIO carries out its core functions, in particular under ss 17(1)(c) and s 37(1) of the ASIO Act: see further below. Mr Hopkins explained that an ASA involves consideration of the subject's activities, associations, attitudes, background and character as relevant to security, only takes into account security-relevant information with a reasonable nexus to the assessment subject, and, in each case, the currency, weight and nature of the information is considered. In preparing a recommendation to the Director-General regarding visa-related security assessments, the SA Branch deploys a range of investigative powers and methodologies to acquire sensitive information from various sources.
3. The conduct of its operations in the strictest possible secrecy is essential to ASIO's capacity to perform its functions. In this regard, it was Mr Hopkins' unchallenged evidence that: It is fundamental to the effective operation of an organisation such as ASIO that its activities be conducted in the strictest possible secrecy. This secrecy can extend to neither confirming nor denying if certain activities have occurred, as to do so could compromise current or future activities or operations, expose ASIO's collection and analysis methods, and place ASIO officers or other persons including human sources at risk. Disclosing information which reveals ASIO's areas of interest, the identity of subjects of security interest, the degree of its ability to obtain intelligence in relation to those subjects, its sources (including human sources), its investigative techniques, its technical capabilities (and limitations) and work methods (modus operandi), its successes and the information derived from its successes, would cause very significant harm to ASIO's ability to perform its functions. Put another way, secrecy is essential to ASIO's ability to fulfil its mission to protect the security of Australia and Australians. Further, information relayed by ASIO internally and to domestic partners may have been provided by domestic and foreign partners, intelligence and law enforcement agencies. Such information is generally shared by partner agencies on the basis that ASIO has agreed to strict information-sharing arrangements, often requiring that the intelligence not be disclosed, including use or disclosure in any legal proceedings, at all or without the consent of the partner. It is also fundamental to ASIO's effective operation that any "intelligence gaps" in ASIO's coverage of persons of security concern (for example, gaps in ASIO's knowledge of some of their activities or associates of security concern) be protected from disclosure. These 'gaps' could otherwise be exploited to carry out activities prejudicial to Australia's security, with or without ASIO detection.

The documents provided to the Director-General for his consideration on 8 March 2024 and claim of public interest immunity over parts of those documents

1. On 8 March 2024, seven days after referral of the applicant's visitor visa to ASIO, the Director-General was provided with documents to enable him to consider whether to make the security assessment pursuant to Part IV of the ASIO Act, namely:
2. the DGDB recommending that he provide an ASA to the Department of Home Affairs and recommend cancellation of the applicant's visitor visa;
3. the proposed security assessment prepared by Mr Hopkins which assessed the applicant "to be directly or indirectly a risk to security" and identified the relevant part of the definition of "security" in s 4 of the ASIO Act as the protection of, and of the people of, Australia, "from politically motivated violence"; and
4. a CSOG.
5. The DGDB was in evidence with unchallenged redactions on the ground of public interest immunity, together with the TSOG which was prepared by Mr Hopkins following the commencement of this proceeding and annexed to the first Hopkins affidavit sworn on 17 October 2024. The TSOG is a specially created version of the CSOG which omits sensitive information (indicated by ellipses) over which the Director-General claims public interest immunity so as to enable the TSOG to be provided to an applicant in unclassified form.
6. Mr Hopkins revisited the question of public interest immunity over the DGDB and the TSOG subsequently as a consequence of which some of the material which had been redacted in the DGDB and TSOG was disclosed in the versions of these documents annexed to the second Hopkins affidavit sworn on 31 October 2024. In particular, the revised DGDB and TSOG disclosed statements which were previously redacted that the applicant "is not allowed to leave the Gaza Strip". The revised DGDB also disclosed the following information which had previously been redacted also on public interest immunity grounds, that:
7. "However, other individuals … denied exit from Gaza on security grounds have successfully exited …"; and
8. additional reasons as to why the view was reached that ASIO was unable to give the applicant the opportunity to respond to the matters underlying the assessment.
9. I accept Mr Hopkins' evidence that the reason why he initially redacted this information was because he then held the view that it would be very difficult to communicate the essence of the redacted sentences. I also accept his evidence that, after giving evidence in Imad v Director-General of Security [2024] FCAFC 138 (Imad (FCAFC)) and considering the applicant's submissions which disclosed that it was central to the applicant's case that he should have been invited to attend an interview with ASIO in Cairo, Mr Hopkins formed the belief that the material in question was more important to the applicant's case than he had initially appreciated. His evidence in this regard is borne out by the focus in his first affidavit on addressing other options for affording the applicant procedural fairness, such as interviewing the applicant in Gaza or remotely. As a result, Mr Hopkins revisited the redacted versions of the DGDB and the TSOG and reached the view that the balancing task required to assess public interest immunity yielded a different result. Specifically he considered that a balance was struck such that the importance of the material to the issues as they had emerged justified more information being unredacted, notwithstanding its sensitivity.
10. The DGDB was marked "Precedence: Priority - to prevent [the applicant] from travelling on his current valid visa". Under the heading "Key Issues", it was explained that the priority precedence "derives from the risk that as a visa holder, [the applicant] could travel to Australia at any time". The DGDB referred to the Security Assessment Determination No. 4 dated 11 April 2022 requiring certain relevant matters to be considered in making the security assessment, including the consequences to security and how the cancellation of the applicant's visa would impact him as relevant to security. The DGDB gave reasons as to why, for practical reasons, ASIO was unable to give the applicant an opportunity to respond to the matters underpinning the assessment which I later explain.

1. As mentioned, in deciding whether to furnish a proposed security assessment, the Director-General also has regard to the Determination. This was made by the current Director-General and provides guidance to decision-makers in the making of security assessments under Part IV of the ASIO Act. The Determination applies to all security assessments, as defined in s 35 of the ASIO Act, after the date on which it was made where the decision-maker considers that the assessment process is likely to result in an adverse or qualified security assessment. It is apparent from the TSOG that the Director-General applied the Determination in making findings and reaching conclusions, including (expressly): in considering the credibility, nature and authenticity of reporting; and in finding that the applicant's association with a redacted organisation, group or individual "is more likely to be an active and direct […] association", as opposed to a passive association, and is therefore relevant to the security assessment and can be considered to reflect adversely on him. However, the nature of the applicant's claims in effect dispute his compliance with paragraphs 10 and 11.3 of the Determination. Paragraph 10 provides that "WHEN evaluating information for the purposes of making a security assessment, to the greatest extent possible consistent with national security interests and the safety of any person, regard should be had to … procedural fairness". Paragraph 11.3, in turn, states: The security assessment is to be made using a process which is as fair as possible, while taking into account the requirements of security.
2. The Determination identifies three primary considerations to be taken into account in formulating a security assessment, namely: 6.1 The prescribed administrative action and type of security assessment; 6.2 The assessment subject; and 6.3 Consequences to security.
3. As to the second of these considerations, importantly paragraph 8 of the Determination requires a security assessment to "relate specifically to the assessment subject" (emphasis added) and enumerates a number of matters which may (if relevant) be taken into account in preparing a security assessment on an assessment subject including:
4. physical activities of the assessment subject including conspiring or encouraging any act or activities which relate to or have a connection with any of the activities in the definition of "security" in the Act; and
5. active associations with individuals or groups involved in activities prejudicial to security which reflect adversely on the assessment subject, but not passive associations such as an association limited to family ties.
6. As to the third primary consideration, paragraph 9 requires account to be taken of the potential consequences to security of the relevant Commonwealth agency taking, or not taking, the prescribed administrative action in relation to the assessment subject, including how taking (or not taking) the prescribed administrative action will impact on the assessment subject.
7. Furthermore, the Determination requires the decision-maker, in considering the weight to be given to information, to consider its currency and whether there is a risk that the information has been obtained using means such as torture (paragraphs 12.4 and 12.5).
8. Finally, paragraph 12.6.2 of the Determination requires a decision-maker to consider whether there is enough information to justify a finding or conclusion being drawn and that any finding or conclusion which is adverse to the assessment subject "should be assessed to be at least likely" (emphasis in original). Paragraph 5.14.2 of the Determination, in turn, provides that "[a] circumstance or situation is likely, if the decision maker is of the opinion that there is a real, and not remote possibility that the circumstances or situation has occurred, is occurring or may occur".
9. In short, it is apparent that the Determination lays down a careful and thorough process for the making of an ASA.

1. On 8 March 2024, the Director-General:
2. approved the recommendation to provide the ASA pursuant to ss 17(1)(c) and 37(1) of the ASIO Act recommending that the applicant's visitor visa be cancelled on the basis of his agreement with the recommendations in the DGDB; and
3. signed and dated the ASA.
4. In so doing, the Director-General indicated his agreement with, and adopted, the CSOG as his reasons for the decision to make the ASA.
5. The ASA identified the "Head of Security" pursuant to s 4 of the ASIO Act as "the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence." The ASA further advised that: ASIO assesses [the applicant] to be directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act) and that the requirements of security make it necessary or desirable for [the applicant's] temporary visitor visa (subclass 600) to be cancelled.
6. In line with Mr Hopkins' evidence as to the need to protect ASIO's collection and analysis methods and human sources, including ASIO officers, so as not to compromise current or future activities or operations or place human sources at risk, as is apparent below, the TSOG redacts all references to the sources of reported information, as well as some of the information about the applicant and the risk he poses to national security.
7. In addition to disclosing information that the applicant was not allowed to leave Gaza as I have already explained, the TSOG relevantly stated that: ASIO assesses [the applicant]:
8. is likely to have […]; and
9. presents an unacceptable risk to Australia's security which would be mitigated by the cancellation of his Australian temporary visitor Visa (subclass 600). Recommendations
10. ASIO assesses [that the applicant] to be directly or indirectly a threat to security (within the meaning of section 4 of the [ASIO Act]) and that the requirements of security make it necessary or desirable for [the applicant's] temporarily Visitor visa (subclass 600) to be cancelled.
11. Accordingly, ASIO recommends [the applicant's] temporary Visitor visa (subclass 600) be cancelled. … Assessment Background
12. [The applicant] is a Palestinian citizen, likely to be currently located in Gaza, Occupied Palestinian Territories, who holds a valid Australian temporary Visitor visa - Tourist Stream (subclass 600). … [The applicant] intends to travel to Australia to visit [a relative] who is an Australian citizen.
13. Home Affairs records show [the applicant] has not previously held an Australian Visa or travelled to Australia.
14. [The applicant] first came to ASIO attention in December 2023 […] … [The applicant] is likely to have […]
15. ASIO assesses [the applicant] is likely to have […] ….
16. ASIO assesses [the applicant] is likely to have direct links to […] …
17. […]. […], ASIO assesses [the applicant's] affiliation with […] is likely to be of security concern, were he to travel to Australia.
18. As per ASIO's Security Assessment Determination No. 4 (SAD No. 4), ASIO has considered the credibility, nature and authenticity of […] reporting […]. a. Nonetheless ASIO's assessments regarding [the applicant], […], are weighted heavily on the consistency of […] reporting and […] reporting. b. Additionally, ASIO's assessments regarding [the applicant's] links to […] are weighted heavily on […] reporting, which we assess to be plausible. […]
19. We have also considered section 8.4 of the SAD No. 4, specifically, taking into account a subject's associations in a security assessment. The SAD No. 4 notes associations which reflect adversely on the subject can be included where the subject is in 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. a. Based on the wording of […] Reporting which indicated [the applicant] had […], ASIO assesses [the applicant's] association with […] is more likely to be an active and direct […] association. Therefore, ASIO assesses the Association is relevant to security and can be considered to reflect adversely on [the applicant]. b. Section 8.4.2 of the SAD No. 4 notes a passive association which is limited to family ties is not sufficient to warrant treating the 'association' as adverse. However, in this instance, ASIO assesses [the applicant's] associations with […] are relevant to security and can be considered to reflect adversely on [the applicant]. … [The applicant] presents an unacceptable risk to Australia's security which would be mitigated by the cancellation of his Australian temporary Visitor visa (subclass 600)
20. While ASIO has not identified reporting to indicate [the applicant's] travel to Australia is specifically for reasons of security concern, ASIO assesses his presence in Australia presents an unacceptable risk to Australia's security. […]. […]. ASIO assesses [the applicant] likely still presents a risk of undertaking terrorist support or facilitation activities in Australia.
21. ASIO assesses [the applicant's] presence in Australia would present an unacceptable risk to Australia's security. This risk would be effectively mitigated by cancelling [the applicant's] Australian temporary Visitor visa (subclass 600). In making this assessment, ASIO has placed weight on […] and […] Reporting which indicates [the applicant] is likely to have […]. … Consequences to security and risk mitigation
22. Based on [the applicant's] […], ASIO assesses [the applicant] to be directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act), and that the requirements of security make it necessary or desirable for [the applicant's] temporary Visitor visa (subclass 600) to be cancelled.
23. If [the applicant] were to continue to hold an Australian temporary Visitor visa (subclass 600), ASIO considers he would be able to travel onshore and might promote, and/or conduct acts in support of, PMV […]. By cancelling his Visa, the risk to security which would be likely to exist if he were to come onshore will be mitigated.
24. Read in the context of the Determination, it is plain that in making findings as to what was "likely" in these passages of the ASA, the Director-General was using the term "likely" consistently with its definition in the Determination.
25. Further, under the heading "Matters taken into account", the TSOG stated that:
26. Regard has been given to the consequences 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.
27. In considering whether the requirements of security make it necessary or desirable for cancellation of [the applicant's] temporary Visitor visa (subclass 600) to be taken in respect of the applicant, ASIO has considered the consequences of cancellation of the visa for the applicant.
28. ASIO does so because, in its view, the question of whether the requirements of security make it necessary or desirable for cancellation of [the applicant's] temporary Visitor visa (subclass 600) involves an evaluative judgement, to be made in a manner that is legally reasonable. That evaluation includes whether cancellation of [the applicant's] visa 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 cancellation of the visa by the Minister of Home Affairs.
29. In this case, ASIO is conscious that cancellation of [the applicant's] temporary Visitor visa (subclass 600) is a serious matter. Specifically, in the case of [the applicant], ASIO is conscious that cancellation of his Visa will prevent him from coming onshore to visit family and/or other onshore associates. [The applicant] may also be prevented from leaving Gaza - which is involved in a current active conflict with Israel - due to not holding a valid visa to enter another country, […]. Having considered those consequences, ASIO considers that the cancellation of [the applicant's] visa would be reasonable, appropriate and proportionate to the risk to security it has assessed should the visa not be cancelled. …
30. As indicated in the last paragraph above, it is important to bear in mind that the ASA in this case was made in the context of the complex and dangerous circumstances pertaining in Gaza, which has been, and remains, an active conflict zone following the events of 7 October 2023. As the Department of Foreign Affairs and Trade advised Australians on 8 October 2023, "Gaza is extremely dangerous. The security situation is unpredictable and conflict could happen at anytime without warning" (emphasis added).
31. Mr Hopkins was aware of the security situation in Gaza at the time of the ASA and it was a factor to which he gave careful consideration in preparing the ASA for the Director-General. The complexity of the security situation existing in Gaza at the time of the ASA was explained by him as follows: Since 7 October 2023, Israeli Defence Forces have conducted major operations in and around Gaza. These operations have occurred, and continue to occur, with regularity and unpredictability, and include air-strikes (including in and around civilian areas), and land-based military operations, incursions and ground skirmishes. Foreign aid workers have been killed during military operations in the area. In addition to military operations, Gaza is subject to civil unrest, famine, and the proliferation of communicable disease. There are extreme limitations on aid operations and access to resources and medical assistance for local civilian populations. There is widespread displacement of the Gazan population, with large numbers of people constantly moving due to the fluid, insecure and highly volatile security situation. Many people have been forced to leave their homes and relocate to other parts of Gaza, often in temporary accommodation or tent camps. There are also complex and unpredictable restrictions on entering and exiting the area. The only access point to Gaza, the Rafah Crossing, has been highly restricted for an extended period. A number of terrorist organisations are active in and around Gaza, and may pose a threat to the safety of foreigners. In particular, the Australian Government lists, among others, Hamas and Palestinian Islamic Jihad as terrorist organisations that are active in the area.
32. (I discuss other factors taken into account below, to the extent that they were disclosed.)

Cancellation of the applicant's visitor visa on 8 March 2024

1. Following receipt of the ASA and on the same day, a delegate of the Minister cancelled the applicant's visitor visa under s 128 of the Migration Act 1958 (Cth) on the basis that:
2. the applicant had been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act;
3. based on that evidence, the delegate was satisfied that the prescribed ground for cancellation in reg 2.43(1)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) existed and, therefore, the visa must be cancelled.
4. the applicant was outside Australia and held a visitor visa with a multiple entry facility valid until 21 November 2024; and
5. proceeding under Subdivision F rather than Subdivision E of Division 3 of Part 2 of the Migration Act "will have the effect of immediate cancellation. The visa holder may seek to travel to Australia if given notice of an intention to cancel their visa in accordance with Subdivision E. For this reason, I consider visa cancellation without notice while the visa holder is outside Australia appropriate, having regard to the ASIO assessment."
6. The delegate also took into account the fact that, by reason of reg 2.48 of the Migration Regulations, a decision to cancel a visa under s 128 in reliance on s 116(3) of the Migration Act cannot be revoked.

Notification of the cancellation decision on 8 March 2024 and subsequent events

1. The cancellation decision was notified to the applicant's Australian relative also on 8 March 2024 and, in turn, communicated to the applicant. The notice explained that a visa must be cancelled under s 116(1)(g) of the Migration Act where prescribed circumstances exist and, under the heading "Information because of which the grounds were considered to exist", stated simply that: On 8 March 2024 [ASIO] assessed you to be directly or indirectly a risk to security within the meaning of section 4 of the [ASIO Act]. Based on the above information, I am satisfied grounds for cancellation of your visa exist at paragraph 116(1)(g) of the [Migration] Act relying on regulation 2.43(1l)(b) of the Regulations.
2. While the notice explained that it was not legally possible to revoke the cancellation of the visa, it also stated that the applicant had the opportunity to comment and explain why the visa should not have been cancelled. Submissions were in fact made by the applicant's Australian relative on the erroneous assumption that there was power to revoke the cancellation.
3. On 13 March 2024, the applicant left Gaza with his family and travelled to Egypt, so that he and his family could travel onward to Australia. The other members of the applicant's family arrived in Australia on 26 March 2024 and have since applied for protection visas. The applicant remains in Egypt, where he does not have lawful status and is not permitted to work.
4. Following requests by the applicant's legal representative to the Department of Home Affairs and ASIO throughout June and July 2024, the applicant was provided with a copy of his ASA on 24 July 2024.

Relevant provisions of the ASIO Act: adverse security assessments

1. Relevant provisions of the ASIO Act with respect to ASAs can be summarised as follows.
2. First, s 37(1) of the ASIO Act relevantly provides that ASIO's statutory function under s 17(1)(c) "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", include "the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities". The term "security" is defined in s 4 of the ASIO Act relevantly to mean: (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: … (iii) politically motivated violence; … whether directed from, or committed within, Australia or not; …
3. It will be recalled that the risk in the present case was that identified in subs (a)(iii) of this definition. "[P]olitically motivated violence" is defined in s 4 of the ASIO Act to mean acts that are offences against various provisions of specified Commonwealth laws, acts which threaten or endanger any person or class of persons specified by the Minister by notice in writing to the Director-General, and acts of the following kind: (a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or (b) acts that: (i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and (ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; …
4. A "security assessment" is defined in s 35(1) of the ASIO Act: 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.
5. In turn, the phrase "adverse security assessment" is defined (also in s 35(1) of the ASIO Act) to mean: …a security assessment in respect of a person that contains: (a) any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and (b) a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.
6. The term "prescribed administrative action" in both definitions includes the exercise of any power, or performance of any function, in relation to a person under the Migration Act or the Migration Regulations (s 35(1), ASIO Act).
7. Secondly, s 38 of the ASIO Act imposes an obligation to give written notice to the person subject to an ASA of the assessment within 14 days of the assessment having been furnished to the relevant authority and to advise that person of their right to apply to the (then) Administrative Appeals Tribunal under s 54 of the ASIO Act. However, that section has no application to a person in the applicant's position who is not an Australian citizen and does not hold a permanent visa, special category visa or special purpose visa: s 36(1)(b), ASIO Act. Nonetheless, as I shortly explain, it was common ground that ASIO was required to afford a person in the applicant's position procedural fairness in the making of an ASA.
8. Finally, security assessments are "point in time" assessments and therefore cannot be amended, particularly after administrative action has been taken in reliance on them. However, new assessments may be made from time to time pursuant to s 33 of the Acts Interpretation Act 1901 (Cth) which replace a prior assessment prospectively if, for example, new information comes to light and/or circumstances change: see Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33; [2023] 296 FCR 639 at [136] (Wigney, Bromwich and O'Callaghan JJ) (special leave to appeal to the High Court was refused on 7 March 2024: Plaintiff S111A/2018 v Director-General of Security [2024] HCASL 67). It follows that, even though the visa cancellation could not be revoked, the opportunity extended to the applicant to make submissions after the cancellation of his visitor visa was not necessarily inutile.

Relevant provisions of the Migration Act: cancellation of a visa where there exists an adverse security assessment

1. The Migration Act in turn makes provision for the cancellation of a visa following an ASA. Specifically, s 128 of the Migration Act provides: 128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non‑citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa. (Emphasis added.)
2. Section 116(1)(g) in turn provides that the Minister may cancel a visa if satisfied that a prescribed ground for cancelling a visa applies to the holder. Relevantly, reg 2.43(1)(b) of the Migration Regulations provides that it is a prescribed ground for the purposes of s 116(1)(g) that the holder of the visa has been assessed by the ASIO to be directly or indirectly a risk to security, within the meaning of s 4 of the ASIO Act. Despite the use of the word "may" in s 116(1), however, s 116(3) provides that the Minister "must" cancel a visa under subs (1) where prescribed circumstances exist thereby eliminating the possibility of any exercise of discretion.
3. Importantly, s 128 is found in Subdivision F (ss 127A-133) of Division 3 of Part 2 of the Migration Act. Section 127A of Subdivision F provides that the subdivision and ss 494A to 494D, insofar as they relate to Subdivision F, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which they deal. Absent cancellation on prescribed grounds, a visa cancellation may be revoked by the Minister after considering any response from the former visa holder to the invitation to make submissions, if the Minister is satisfied that there are grounds for revoking the cancellation: ss 129(1)(c), (d) and (e) and s 131 of the Migration Act. However, because s 128 provides that the Minister may cancel the visa without notice to the visa holder, it follows that Parliament has excluded any requirements for procedural fairness in relation to decisions of the Minister made under Subdivision F: see by analogy Imad (FCAFC) at [97] (Bromwich, Thawley and Shariff JJ). It is for this reason that, in common with the applicant's position in Imad v Director-General of Security [2024] FCA 1115 (Imad (FCA)) and Imad (FCAFC), the applicant does not challenge the cancellation decision directly on the grounds of a breach of procedural fairness, but rather challenges the validity of that decision on the ground of a breach of procedural fairness in the making of the ASA.

Does the claim of public interest immunity mean that the evidential onus shifted to the Director-General?

The issues raised by the applicant

1. The applicant's submissions as to the consequences of a claim of public interest immunity for the evidential onus in cases where no or minimal procedural fairness has been afforded to the interested person fall to be considered in the context of well-established principles as to the legal effect of a claim of public interest immunity on access to the material subject to such a claim in litigation. A convenient statement of those principles is found in the recent decision of Rofe J in Imad (FCA). Specifically, at [95]-[96], her Honour held that once a claim of public interest immunity is upheld, the following consequences flow:
2. the documents and information in question need not be produced for inspection by any party to the proceedings;
3. the documents and information in question cannot be adduced in evidence by any party and they are denied to both the Court and the parties; and
4. the substantive proceedings continue, in effect, without regard to the existence of the information over which public interest immunity has been successfully asserted. Once a claim of public interest immunity is upheld, the documents are not to be disclosed, they are immune from production in the litigation and may not be used by any party or admitted into evidence. Importantly, any confidentiality regime or closed court approach to circumvent the immunity, to any degree, is not available. The confidentiality regimes canvassed by the Courts are appropriate to avoid practical injustice where documents, or information are to be admitted as evidence. (Citing Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [24] Gummow, Hayne, Heydon and Kiefel JJ); Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [148] (Hayne, Crennan, Kiefel and Bell JJ); and HT v The Queen [2019] HCA 40; (2019) 269 CLR 403 at [29], [32] (Kiefel CJ, Bell and Keane JJ) and [71]-[72] (Gordon J).)
5. Similarly, in Sagar v O'Sullivan [2011] FCA 182; (2011) 193 FCR 311 at [54], Tracey J held, after reviewing the relevant authorities, that: As these authorities make clear the interest protected by public interest immunity, once a court has determined that such immunity attaches to documents or a class of documents, require that the contents of such documents cannot be disclosed to any person or deployed in evidence in curial proceedings. Any evidence contained in such documents cannot be relied on by a court in resolving any cases which come before it. It is also implicit that such material cannot be disclosed to any judge who is called on to determine such cases: apart from any other considerations it would be pointless to place such material before a judge, even on a confidential basis, because he or she could not have regard to it in determining the outcome of the case.
6. The same legal consequences must logically follow where the claim of public interest immunity is not challenged.
7. It follows that, once the claim of public interest immunity was made by the Director-General and not challenged by the applicant, the information which had been redacted from the DGDB and the TSOG could not be produced in response to compulsory processes of the Court or received into evidence. Nor was it open to the Director-General to rely upon that material in these proceedings. So much was ultimately not in issue in this proceeding. In this regard, I do not understand the applicant to have pressed the contention that the Director-General could discharge his alleged burden of establishing that he had considered how much confidential information might be put to the applicant before making the ASA by providing material to the Court on a confidential basis. In any event, that proposition runs counter to the authorities to which I have referred.
8. That being so, the applicant's contentions (as ultimately put) focused upon the preceding decision by the Director-General to assert public interest immunity. Specifically, the applicant contended that: (a) at least at a practical level, the Director-General had a degree of discretion or judgement as to whether, and the extent to which, to assert public interest immunity over documents ordered to be produced in these proceedings; and (b) that discretion or judgement effectively permitted the Director-General to disclose, and adduce into evidence, such information as he considered appropriate and necessary to advance his forensic interest in these proceedings. (Applicant's supplementary submissions on public interest immunity dated 6 November 2024 (ASS) at [1].)
9. In so contending, the applicant accepted that: (a) documents may be excluded from evidence on public interest immunity grounds by a court even if no claim has been made by the relevant governmental authority; and (b) in adjudicating a claim for public interest immunity, a court makes an evaluative decision which is not discretionary in the House v The King sense. (ASS at [2].)
10. The applicant submitted that two consequences flowed from the exercise of this "discretion or judgement" by the Director-General in the present case.
11. First, the Court should apply the principle in Blatch v Archer (1774) 98 ER 969; (1774) 1 Cowp 63 at 65 (Lord Mansfield), namely that: "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": see also Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at [14]-[15] (Hodgson JA (with whose reasons Beazley JA agreed)); and Payne v Parker [1976] 1 NSWLR 191 at 201 (Glass JA). The practical consequence of applying this principle in this case is that it was not open to the Court to draw inferences in favour of the Director-General based on the limited information left unredacted in the TSOG and the DGDB because the Director-General could have chosen instead to provide that information in unredacted form with the protection of confidentiality orders.
12. Secondly, the applicant accepted that the onus of establishing jurisdictional error lay on him in line with well-established authority: see e.g. VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (VAAD) at [44]-[45] (the Court (Hill, Sundberg and Stone JJ)). However, he argued that, because the effect of the claim of public interest immunity was to exclude him from access to evidence in the knowledge of Director-General, the evidential onus shifted to the Director-General in order to ensure a fair trial, given that there had been no compliance with procedural fairness before making the ASA. (The Blatch v Archer and the shifting evidential onus contentions respectively.)
13. It follows from these propositions, in the applicant's submissions, that the Court should find that:
14. the Director-General has failed to put any credible evidence before the Court on the basis of which the Court could find that the interests of national security prohibited any information at all from being provided to the applicant before the ASA was made; and
15. the Director-General has therefore failed to discharge his evidential onus of establishing of that procedural fairness was afforded to the applicant to the extent that the circumstances could bear.
16. In other words, the Director-General, in the applicant's submissions, has failed to establish in the circumstances pertaining to the making of the applicant's ASA, that the content of procedural fairness was reduced to nothingness.
17. However, even if I accepted the first of the applicant's propositions (at [62] above), I would not accept the second. This is because, as I later explain, the evidence establishes that it was reasonable in the circumstances for the Director-General not to contact the applicant before making the ASA: see Part 5.2 below. Furthermore, I would have reached this conclusion even if, as the applicant contends, the evidential burden lay on the Director-General to establish that this was a case in which it was not reasonable in all the circumstances known to the decision-maker to afford the applicant an opportunity to be heard before making the ASA. Nonetheless, while the Director-General submitted that it was therefore not strictly necessary for the Court to resolve the Blatch v Archer and shifting evidential onus contentions, I have done so because they constituted major aspects of the applicant's case and it is appropriate for them to be addressed by me as the primary judge. There is no evidential burden upon the Director-General
18. In my view, the applicant's contentions as to the evidential consequences of the claims of public interest immunity are flawed as a matter of law. In this regard, while the applicant refers to the Director-General as having "a discretion or judgement", the submission is ultimately that "the Director-General had, at least in a practical sense, a choice" and a choice which he could exercise to gain a forensic advantage in the litigation (ASS at [1(b)], [16]). Properly characterised, therefore, the submission reduces (as the Director-General submits) to the proposition that the Director-General had a discretion as to whether to claim public interest immunity (second respondent's supplementary submissions on public interest immunity dated 8 November 2024 (RSS) at [4])). That premise being flawed for the following reasons, the basis for the Blatch v Archer contention and the shifting evidential onus contention fall away.
19. First, as the applicant accepts, it is well-established that a Court in adjudicating upon a claim of public interest immunity does not exercise a discretion but makes an evaluative judgement based on balancing competing public interests. As the Full Court explained in Imad (FCAFC) at [41]: 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 [v The Queen [1984] HCA 85; 154 CLR 404] at 412 (Gibbs CJ).
20. That being so, no authority is cited by the applicant to support the distinction which he seeks to draw between the exercise undertaken, on the one hand, by a court in adjudicating upon a contested claim of public interest immunity, and, on the other hand, by the executive in assessing whether public interest immunity should be claimed in the first instance. Nor could such a distinction be drawn as a matter of principle. As the Director-General submits, to draw such a distinction would be inconsistent with the well-established principle (properly accepted by the applicant) that public interest immunity cannot be waived by the Crown or anyone else: Young v Quin [1985] FCA 18; (1985) 4 FCR 483 at 485-486 (Bowen CJ) (citing Rogers v Home Secretary [1973] AC 388 at 407 (Lord Simon of Glaisdale) with approval). As Gibbs ACJ, for example, explained in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38, "[i]t is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld."
21. This is not to deny (as the applicant submits) that a court generally attaches significant weight to an opinion of the responsible Minister or agency as to whether production and disclosure of the documents in question would be contrary to the public interest: e.g. Sankey at 44-45 (Gibbs ACJ); Murphy v State of Victoria (No 3 [2014] VSC 624 at [44] (Elliott J). However, contrary to the applicant's submissions, this does not support the proposition that the officer responsible for asserting public interest immunity on behalf of the Crown is vested with a discretion as to whether or not to do so: cf ASS at [3]-[7]. Rather, as Tracey J explained in Sagar at [84]-[86]: Whilst asserting the right of the judicial arm to review decisions made by security agencies, the courts have acknowledged the need for a cautious approach lest their actions might harm national security interests. They have also recognised, without deferring absolutely to any relevant security agency, that such agencies are usually better placed to assess the impact of disclosure of particular material than are the courts. In Alister v The Queen (1984) 154 CLR 404 at 435 Wilson and Dawson JJ said that: "The outstanding feature of the claim to immunity is the nature of the public interest which the Minister seeks to protect. Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluation. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister." In that case (at 455) Brennan J said that a court is "ill equipped itself to evaluate pieces of intelligence obtained by ASIO." In Woodward at 74 Brennan J had expanded on this observation. He asked: "… how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded." See statements to like effect in the judgment of Hayne J in Thomas v Mowbray (2007) 233 CLR 307 at 477.
22. In other words, the very considerable weight afforded to the responsible Minister's or agency's view of what the interests of national security require in given circumstances reflects "an acknowledgement of the practical difficulty faced by a court in evaluating evidence adduced in support of public interest immunity claims on the grounds of harm to national security" (Sagar at [89]).
23. Secondly, the process of balancing the interests of national security against the interests of justice in the proceeding includes consideration of whether protective orders, as opposed to a claim for public interest immunity, may adequately protect the national security interests in question while allowing greater disclosure in the interests of justice. A judgment to this effect was made in Leghaei v Director General of Security [2005] FCA 1576, where confidentiality orders were made limiting disclosure of information of a national security nature. However, while account can be taken of whether confidentiality orders can be fashioned which might adequately protect the national security interests, if the view is formed that no protective orders would suffice, then there is no forensic choice to be made or discretion to be exercised. The duty is to protect the information by the claim of public interest immunity. This is evident from the obligation on the Court to raise the issue, even where it has not been raised by a Minister or other high official when it would be injurious to the public interest to produce or use a document: Sankey at 44 (Gibbs ACJ); R v Fandakis [2002] NSWCCA 5 at [39]-[40] (Barr J (Ipp AJA and Hidden JJ agreeing)).
24. Thirdly, as the Full Court in Imad (FCAFC) explained: 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.
25. In other words, as their Honours held at [61], in undertaking the balancing exercise, the Court will have regard, among other things, to "the value and importance of the documents to the applicant's grounds of review on the contribution they could have made to establishing those grounds". It follows that these considerations are also relevant to the balancing exercise when undertaken by a member of the executive.
26. However, the relevance (as Mr Hopkins accepted in his evidence) of this consideration to the balancing exercise in assessing whether public interest immunity attaches to the material in question does not mean that the Director-General had a discretion. Nor does it mean that the Director-General was entitled to have regard to the forensic advantages which non-disclosure on the grounds of public interest immunity might afford him in particular litigation. That proposition, which appears to underlie some of the applicant's submissions is, with respect, inconsistent with the absence of any challenge by the applicant to the Director-General's claims of public interest immunity in these proceedings.
27. Fourthly, I agree with the Director-General's submission that the fact that an unsuccessful claim of public interest immunity may attract an adverse costs order does not lend support to the view that a decision by the executive on whether or not to claim public interest immunity is discretionary; nor does the decision in RP Data Ltd v Western Australian Land Information Authority [2010] FCA 922; (2010) 188 FCR 378 suggest otherwise: cf ASS at [10]-[14]. Rather, as the Director-General correctly submitted (RSS at [5]): It simply reflects the orthodox position that, as a starting proposition, a party whose legal position has been vindicated is entitled to be compensated for its legal costs. In RP Data v Western Australian Land Information Authority (2010) 188 FCR 378, Barker J awarded costs against the unsuccessful claimant for public interest immunity because it had "resisted the production of documents in the end for no sufficient reason": [55]. The "practical discretion" referred to by his Honour was a reference to the uncontroversial proposition that a public interest immunity claim did not need to be advanced merely because "there may be an argument available": [55]. More generally, on the proper analysis, a claim that has been advanced but rejected is a claim that was not well-founded to begin with; the consequence of the court's finding is that the public interest favoured disclosure. There is no intermediate category in which the executive is entitled to advance a public interest immunity claim even though the balance favours disclosure.
28. Fifthly, it follows that the consequence of a successful or unchallenged claim of public interest immunity over material is not that an inference of the kind mentioned in Blatch v Archer can be drawn against the Director-General, or that the evidential onus of disproving a breach of procedural fairness shifts to the Director-General. Rather, the onus remains upon an applicant to establish the breach of procedural fairness, even if the claim of public interest immunity operates to exclude from consideration material which may have been critical to the applicant's case. As Mason J explained in Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 61: The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials. (Quoted with approval in Gypsy Jokers at [24] (Gummow, Hayne, Heydon and Kiefel JJ).)
29. For example, in Sagar, the applicants were denied access to ASAs and the reasons for which they had been made because the documents attracted public interest immunity. As a consequence, the Court held that the applicants were unable to discharge their burden of establishing that the impugned decisions were not supported by probative evidence and their challenge to the ASAs on the no-evidence ground of judicial review failed: at [61]-[65]. No principled reason was given by the applicant for suggesting that any different result would follow where a breach of procedural fairness was alleged and no (or minimal) procedural fairness had been afforded to an applicant. To the contrary, the logical outcome of the applicant's submission is that, in order to comply with procedural fairness, ASIO ought to have given the adverse information to the applicant for comment, notwithstanding its view that disclosure of the information was contrary to Australia's national security interests as is subsequently reflected in its unchallenged claim that the material was subject to public interest immunity on national security grounds.
30. Among other things, that proposition undermines the rationale of public interest immunity and is incompatible with the cautious approach adopted by courts to claims of public interest immunity for the reasons explained above and having regard to the risk that the court's actions could harm national security as Tracey J in Sagar also observed (at [84]).
31. Thus, without challenging the claim of public interest immunity, the applicant cannot show that there was material that could have been put to him by ASIO at an interview in order to comply with the requirements of procedural fairness before the ASA was made. In this regard, from the applicant's perspective in this case, his concerns about fairness and frustration at not accessing information of potential relevance to his grounds of review can readily be understood. However, those concerns do not have the consequences in law for which he contends.
32. In short, I agree with the Director-General's submission (RSS at [6]) that: All of this exposes why it is incorrect to submit that, as a matter of law, the Director- General had a forensic "choice" as to whether to claim public interest immunity: cf [ASS] [16]. The purpose of binding a litigant to its forensic choices is to ensure the orderly conduct of litigation by controlling the extent to which a party can advance a new or inconsistent position once the proceedings are well advanced. That principle has no application where, as here, the executive (and the Court) are from the outset duty-bound to prevent the disclosure of documents where disclosure would be injurious to the public interest and where, in the absence of any challenge by the Applicant, it must be presumed that the balance has been correctly struck by the Director-General. Once it is accepted that the decision to claim public interest immunity is not discretionary, the premise of the Applicant's submissions in reliance upon the public interest immunity claims falls away. There is no shifting of an evidentiary burden on to the Director- General by reason of the public interest immunity claims.
33. Nor is there any basis on which to rely on the principle in Blatch v Archer, as the premise on which that principle operates - that it is within the power of a party to call the evidence in question - does not apply because of the uncontested claim of public interest immunity.

Has the applicant established a breach of procedural fairness by the Director-General?

Procedural fairness: relevant principles

1. With respect to the allegations of a breach of procedural fairness, the relevant principles may be summarised as follows.
2. First, in broad terms, the requirements of procedural fairness are concerned to ensure that a person who may be affected by an exercise of power, is afforded an opportunity to be heard and make meaningful submissions: Jaffarie v Director General of Security [2014] FCAFC 102; (2014) 226 FCR 505 at [111] and [113] (Flick and Perram JJ); Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 90 ALJR 901 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); El Ossman v Minister for Immigration and Border Protection [2017] FCA 636; (2017) 248 FCR 491 at [81] (Wigney J).
3. In most cases, this requires, as the High Court explained in SZSSJ at [83]: that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of the power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
4. In turn, this generally requires disclosure of information adverse to the person that is "credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628-629 (Brennan J (as his Honour then was)).
5. Secondly, there is no express statutory requirement to afford procedural fairness by extending an opportunity to be heard to an assessment subject before an ASA is made pursuant to ss 17(1)(c) and 37(1) of the ASIO Act. However, it is correctly accepted by both parties that, in making an ASA, ASIO is nonetheless required to comply with the requirements of procedural fairness vis a vis the assessment subject: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [73] (French CJ), [497] (Bell J).
6. Thirdly, the content of procedural fairness is flexible and is ultimately a question of "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). Thus regard must be had to the statutory or legal framework within which the decision is made and to the particular facts and circumstances of the case in order to determine whether the procedures adopted in a particular case resulted in practical injustice: El Ossman at [79]-[80] (Wigney J); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Imad (FCAFC) at [93] and [101] (the Court).
7. Further, as Brennan J explained in Kioa at 627: 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 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. (Emphasis added.)
8. Fourthly, it follows from these principles that the rules of procedural fairness do not require that an opportunity to be heard must be afforded in all cases. Rather, the obligation is to afford an opportunity to be heard where that is reasonable in all the circumstances known to the decision-maker: Kioa at 616 and 627 (Brennan J); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [367] (Gageler J (as his Honour then was)). Thus, as Gageler J explained in CPCF at [367]: Procedural fairness as implied in some contexts can have a flexible, chameleon-like, 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. 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.
9. Cases where the obligation to afford procedural fairness may be reduced to "nothingness" or stripped of meaningful content include those where disclosure of the adverse material would frustrate the purpose of the exercise of the power and where the urgency of the situation precludes a hearing: CPCF at [368] (Gageler J); Imad (FCAFC) at [104] (the Court).
10. Fifthly, in relation to ASAs, 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", which involves consideration of the ASIO Act as well as the purpose for which it is used under the Migration Act: Plaintiff M47/2012 at [73] (French CJ).
11. An example is the decision in Leghaei. In that case, Madgwick J (at [82]) considered that: … it is my view that an obligation positively to consider what concerns and how much detail might be disclosed to the subject visa holder to permit him/her to respond, without unduly detracting from Australia's national security interests, is minimally necessary to ensure a fair decision-making process. Further, on balance, such a requirement is not sufficiently clearly shown to have been excluded by necessary statutory implication.
12. Having read the confidential material, however, Madgwick J concluded that "the potential prejudice to the interests of national security involved in such disclosure appears to be such that the content of procedural fairness is reduced, in practical terms, to nothingness": Leghaei at [88]. That conclusion was upheld by Tamberlin, Stone and Jacobson JJ on appeal: Leghaei v Director-General of Security [2007] FCAFC 37; (2007) 214 ALR 141. In the course of their reasons, the Full Court explained that: It is well recognised that reasons of national security may make it impossible to disclose the grounds on which the executive propose to act: Salemi v Mackellar (No 2) (1997) 137 CLR 396 at 421. Thus, as Lockhart J said in Amer v Minister for Immigration, Local Government and Ethnic Affairs (unreported19 December 1989) … at 1: The case raises the old but important question for the courts of balancing two aspects of the public interest which have a potential for conflict, namely, that a party is entitled to know the case he has to meet yet the furtherance of the national interest may require that certain element sin the case should be withheld from him.
13. In upholding the primary judge's decision, the Full Court held that the primary judge was right to strike the balance in favour of the protection of the public interest in national security because of the weight he gave to the unchallenged evidence of the Director-General, having satisfied himself that the Director-General had given personal genuine consideration to the question whether disclosure would be contrary to the national interest and what disclosure he could make in the national interest: at [52], [61] and [63].
14. Another example is the decision in Jaffarie, in which the Full Court considered whether procedural fairness was denied as a result of Mr Jaffarie receiving only an unclassified version of reasons for an ASA, rather than the full reasons which were before the Minister at the time of the cancellation of Mr Jaffarie's visa. The Full Court (Flick and Perram JJ (with whose reasons White J relevantly agreed)) held (at [111]) that the relevant touchstone was "whether enough information had been disclosed to Mr Jaffarie in the 'Unclassified Reasons' to enable him to make meaningful submissions". In answering that question, their Honours accepted the need to strike a balance between "protecting that information which must remain undisclosed by reason of the claim for public interest immunity and the legitimate and important rights of ensuring procedural fairness" to the assessment subject: Jaffarie at [112] (Flick and Perram JJ). Applying those principles, the Full Court held that Mr Jaffarie had in fact been placed in a position where he could make meaningful submissions as to the issues of which he was aware, notwithstanding the fact that further information could, with the benefit of hindsight, have been given to him at the outset: at [111], [113]. The decision in Imad (FCAFC)
15. The relevant principles by which the content of procedural fairness is determined, including in the context of ASAs, were explained by the Full Court in Imad (FCAFC), which was delivered only on 30 October 2024, after the applicant's submissions had been filed in the present case. Given the importance that the decision assumed in the parties' oral submissions, it is important to consider the decision with some care.
16. In Imad (FCAFC), the Full Court held that procedural fairness did not require ASIO and the Director-General to take the steps alleged by the applicant, including inviting him to an interview at the Australian embassy in Cairo, having regard to the statutory context and the circumstances of that particular case. The applicant did not take issue with the general principles articulated by the Full Court in Imad (FCAFC) but, as I shortly explain, sought to distinguish that case from the present.
17. The decision in Imad (FCAFC) concerned an applicant who was a Palestinian citizen resident in Gaza when his temporary visitor (subclass 600) visa was cancelled by the Minister in March 2024. Mr Imad subsequently left Gaza for Egypt where he had no legal right to stay and faced imminent deportation to Gaza.
18. Mr Imad's visa was cancelled following receipt of an ASA from ASIO. Unlike the present case, the cancellation was effected under s 134B on the basis that ASIO suspected that the applicant might pose a risk to security within the meaning of s 4 of the ASIO Act by reason of maintaining active associations with individuals affiliated with Hamas or the Palestinian Islamic Jihad (PIJ): Imad (FCAFC) at [2]. Section 134B is part of the emergency cancellation regime in Subdivision FB of Division 3 of Part 2 of the Migration Act. Following cancellation under s 134B, the Minister was required by s 134C to revoke the cancellation as soon as practicable after 28 days, unless within that time there existed an assessment by ASIO containing advice that the former holder of the visa is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act, and the assessment contains a recommendation not to revoke the cancellation: Imad (FCAFC) at [4]. Within the 28-day period, ASIO gave advice to that effect and recommended that the visa cancellation not be revoked.
19. Mr Imad challenged the decision not to revoke his visa cancellation on the ground that there was no valid ASA for the purposes of s 134C of the Migration Act because the Director-General had failed to comply with the requirements of procedural fairness. He submitted that procedural fairness had required ASIO to:
    1. notify him of the 134B ASA 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 (being the heart of the complaint in the present case);
    2. arrange for an interview to be conducted by telephone, audio visual or other means remotely; and
    3. provide an opportunity for the applicant's brother, mother and wife, or a migration agent or lawyer, to respond on the applicant's behalf; and
20. The Director-General, however, contended that the practical and other difficulties associated with affording procedural fairness to the applicant (also the subject of evidence in that case from Mr Hopkins) was such that it was neither practical nor reasonable for ASIO to interview the applicant in person in Gaza or remotely. Nor in Mr Hopkins' opinion was the option of inviting the applicant to attend the Australian Embassy in Egypt practical, safe or viable given prior unsuccessful attempts by Mr Imad to enter Egypt and the risk that notifying Mr Imad of ASIO's concerns may have put him at risk of harm if that information was obtained by the Egyptian authorities. His evidence was accepted by the Full Court as a cogent and credible explanation of the very real issues confronting ASIO in seeking to strike a balance between the various competing interests of national security, the safety and welfare of ASIO officers, the applicant's safety and welfare, and the interests of ensuring the protection of sources of intelligence: at [91].
21. In this regard, it was common ground in Imad (FCAFC) that:
22. there was no express obligation imposed on ASIO under Subdivision FB of the Migration Act to furnish an ASA to the assessment subject before it is made (as is also the case under Subdivision F) and there was no right to seek merits review of an ASA in the Tribunal because the cancelled visa was not a permanent visa;
23. ASIO's power to provide security assessments under ss 17(1)(c) and 37(1) of the ASIO Act was conditioned on ASIO's compliance with an implied obligation to afford the assessment subject procedural fairness (as in the present case);
24. the applicant was not given any opportunity to be heard before ASIO made the assessment for the purposes of s 134C (in common with the present case); and
25. if the Director-General was required to take one or more of the steps asserted by the applicant, the breach 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.
26. After referring to the flexible nature of the content of procedural fairness, the Full Court held at [101] and [104] with respect to ASAs under the ASIO Act that: 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. … 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].
27. More specifically in the context of subdivision FB, the Full Court held at [106]-[107] that: 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. 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.
28. Applying these principles, the Full Court held that the evidence did not establish a breach of procedural fairness, finding at [118] that: 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. The evidence as to why no procedural fairness was given to the applicant
29. The reasons why no procedural fairness was accorded to the applicant were set out in the DGDB under the heading "Risks and Mitigations" as follows: Clause 11.3 of the [Determination] requires an ASA to be made using a process which is as fair as possible, while taking into account the requirements of security. .[redacted]. For practical reasons, ASIO is unable to give [the applicant] the opportunity to respond to the credible, relevant and significant matters underpinning the assessment:

• ASIO officers are unable, for reasons of practicality and safety, to travel to [the applicant's] location to conduct a security assessment interview with him in person as he is likely to be located in Gaza which is an active conflict zone.
• ASIO is unable to conduct a remote interview with [the applicant] as we are unable to control the environment in which such an interview would take place, [redacted]
• for the same reasons, ASIO is unable to send [the applicant] a written security assessment questionnaire (SAQ).
• [redacted] Even absent the above practical difficulties, there are also real constraints to ASIO's ability to put to [the applicant] significant matters which are derived from sensitive reporting, without prejudicing security.
• ASIO's assessment of [the applicant] is based on [redacted] the disclosure of which could reduce [redacted]
• ASIO's assessment of [the applicant] is also [redacted] the disclosure of which could compromise [redacted] In this case, ASIO is of the view that, even absent the practical difficulties, only a very limited amount of the adverse information on which the assessment is based could have been put to [the applicant] without prejudicing national security. [redacted]

1. As to the first, second and third dot points, the evidence of Mr Hopkins clearly establishes that neither an in-person interview in Gaza, nor conduct of the interview remotely by unsecure telephone line or questionnaire, were practicable or reasonable. Nor did the applicant rely upon the failure to utilise these means to afford him an opportunity to be heard as a breach of procedural fairness. Rather, as earlier explained, the applicant contended that the breach of procedural fairness lay in the failure to arrange for him to be interviewed in the Australian Embassy in Egypt (or the failure to allocate the resources necessary to interview him there) or to conduct an interview in immigration clearance on arrival in Australia. However, it was Mr Hopkins' view that these means of affording the applicant an opportunity to be heard before the ASA was made were neither reasonable nor practicable for the following reasons.
2. First, Mr Hopkins was concerned that any contact by ASIO in advance of furnishing a security assessment on the applicant may have caused the applicant "to intensify his efforts to depart Gaza", including by immediately travelling to Australia. However, that would be incompatible with his "primary focus" being to prevent the applicant from travelling to Australia, given that ASIO had assessed that the applicant's presence in Australia presented an unacceptable risk to Australia's security. As Mr Hopkins explained: At the time the ASA was prepared, ASIO had assessed the Applicant's presence in Australia would present an unacceptable risk to Australia's security, and that the Applicant likely presented a risk of undertaking terrorist support or facilitation activities in Australia. At this time, the Applicant held a valid temporary Visitor visa and could travel to Australia at any time. This assessed risk to security would be mitigated by preventing the applicant from arriving onshore. In those circumstances, ASIO assessed that it would be consistent with the requirements of security for the Applicant's temporary Visitor visa to be cancelled. Our aim in furnishing the ASA was to disrupt the Applicant's ability to travel to Australia. (Emphasis added.)
3. The references to ASIO's assessment in this evidence was admitted as evidence only of Mr Hopkins' intentions and assessment, and of his opinion as to ASIO's intention and assessment. However, that this also represented the Director-General's view is borne out by the findings disclosed in the TSOG, bearing in mind that the Director-General adopted the CSOG as his reasons for the decision to make the ASA. For example, the TSOG finds that the applicant "likely still presents a risk of undertaking terrorist support or facilitation activities in Australia", presents "an unacceptable risk to Australia's security", "is likely to have direct links to", and an "active association" with, an organisation, individual or group of security concern. It is also supported by the ASA itself which cites the head of security engaged as protecting Australia from politically motivated violence pursuant to s 4 of the ASIO Act, from which it can be inferred that the organisation, individual or group in question was engaged in or promoted violence of this nature. As such, it can readily be understood that, in circumstances where the applicant's family were already in Australia and the applicant had a visitor visa entitling him also to enter Australia that Mr Hopkins in preparing the ASA, and the Director-General in making the ASA, acted with great urgency to ensure that the applicant was prevented from entering Australia in the first place. As such, in my view this is a case of the kind to which the Full Court in Imad (FCAFC) at [101] referred, namely, where it would 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.

CONCLUSION

1. For the reasons set out above, the application must be dismissed. I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.