Federal Court of Australia (Full Court)|1989-12-19|Before: Jacobson J, Jacobson JJ

Until further order, the Reasons for Judgment in this matter are not to be disclosed to any person other than a Judge of the Court, Mr Peter Hanks, Mr Vince Sharma and appropriately security cleared representatives of the First Respondent and officers or

employees of the Australian Security Intelligence Organisation.

Until further order, any copies of the Reason for Judgment in this matter held in the Federal Court are to be enclosed in a sealed envelope marked with the heading

Protective Security Manual: per orders made by Justice Jacobson on 23 March 2007."

Until further order, access to the Federal Court's Reasons for Judgment in this matter may be given to Mr Peter Hanks and Mr Vince Sharma in accordance with the terms

of the undertaking required by the First Respondent.

-4- The Applicant and the First Respondent to file and serve any submissions as to the

confidentiality of any part of the reasons within 10 days of the date of this order.

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 3 OF 2006

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Second Respondent

PLACE: SYDNEY (HEARD IN CANBERRA) REASONS FOR JUDGMENT

On 26 July 2004, Mr Leghaei was notified that the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") proposed to cancel his residency visa on the ground that the competent Australian authorities had assessed him to be a direct risk to Australia's national security. The power, and the duty, to cancel a visa in such circumstances arises from a complex of legislative provisions contained in the Migration Act 1958 (Cth)

("the Act") and the Migration Regulations 1994 ("the Regulations").

Mr Leghaei brought judicial review proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking to quash the assessment which he claimed was made in excess of jurisdiction. His application raised two principal grounds of review. The first ground concerned an alleged denial of procedural fairness. The second related to a claim that the decision-maker within the Australian Security Intelligence Organisation ("ASIO") had not asked Mr Leghaei a critical question for the purpose of the relevant provisions of the

Australian Security Intelligence Organization Act 1979 (Cth) ("ASIO Act").

The denial of procedural fairness was said to be that the ASIO officers who interviewed Mr Leghaei had failed to put to him any particular grounds or issues addressing

the question of why he was believed to be a risk to Australia's national security.

The primary judge handed down both confidential and non-confidential reasons for his judgment dismissing the application for review: Leghaei v Director-General of Security [2005] FCA 1576. In his non-confidential reasons, his Honour said at [88] that, for reasons given by the Director-General of Security ("the Director-General") in two confidential

affidavits, it was not possible to provide even a summary of the case against Mr Leghaei to

him without compromising the interests of national security.

The claim that ASIO had failed to address a critical question turned upon the proper

construction of the definition of 'acts of foreign interference' in s 4 of the ASIO Act.

Senior counsel for Mr Leghaei submitted before the primary judge that the answer to

the question as to why Mr Leghaei was believed to be a risk to national security was critical

-3- The primary judge rejected these contentions. Po

po es | His Honour also found that all the elements of the definition were

considered so as to justify the formation of the opinion.

The same issues arise on the appeal. The procedural fairness issue turns upon the content of the requirements of procedural fairness where considerations of national security intervene. It also turns upon the weight to be given to the opinion of the Director-General as

A further question which arises on the procedural fairness ground is whether a summary of the essential features of the case could have been put to Mr Leghaei in the form

proposed by his senior counsel without prejudicing national security.

The ground based upon failure to address a critical question turns, as we have said, upon the proper construction of the definition of 'acts of foreign interference' Pee

It also turns upon whether the necessary elements of the definition were addressed in the findings made by ASIO in its adverse security assessment. That document was before us

on a confidential basis. To the extent that we need to refer to it, we will endeavour to do so in

The combined effect of a number of paragraphs of s 116 of the Act and reg 2.43 of the Regulations is that the Minister is obliged to cancel a residency visa if the holder has been assessed by ASIO to be directly or indirectly a risk to Australia's national security within the meaning of s 4 of the ASIO Act: S 116(1)(g) and s 116(3) of the Act, reg 2.43(1)(b) and reg 2.43(2)(a)(1i) of the Regulations.

15 Section 4 of the ASIO Act does not contain a definition of the phrase 'a risk to

Australia's security." However, the definition for 'security' is as follows:

(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 (b) the carrying out of Australia's responsibilities to any other foreign

country in relation to a matter mentioned in any of the subparagraphs of paragraph (a). '

16 The phrase 'acts of foreign interference' is defined in s 4 to mean:

'...activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:

(ii) are carried on for the purpose of affecting political or governmental processes; or

(iii) are otherwise detrimental to the interests of Australia; or

17 Section 35(1) of the ASIO Act contains a number of definitions that apply to the

making of an adverse security assessment. The term 'adverse security assessment' is defined

'adverse security assessment means 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.'

Prescribed administrative action is also defined in s 4:

(b) the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act;...

Section 36(b) of the ASIO Act has the effect of excluding an aspect of the rules of procedural fairness in the furnishing of security assessments for persons who are non- citizens: see s 36(b)(i)(ii) and (iii). This is because s 36 excludes the operation of s 37(2) of the ASIO Act, which provides for an adverse security assessment to be accompanied by a

statement of the grounds and the information relied upon by ASIO.

Section 36(b) also excludes the operation of s 38 in relation to non-citizens. Section 38 provides for notice of an adverse security assessment to be given to the person affected

within 14 days after the assessment has been furnished to a Commonwealth agency.

Mr Leghaei was born in Iran in 1962 and is married with four children. Since 2003,

his eldest two children have been granted permanent residency in Australia.

Mr Leghaei came to Australia in 1994 holding a subclass 672 Short Stay Business Visa to be employed as a Halal meat supervisor, which initially he was. In 1995, Mr Leghaei was granted a subclass 428 Religious Worker Visa, which allowed him to work as a Muslim

religious leader (Sheikh) in Australia and to travel internationally.

On 1 November 1996, Mr Leghaei lodged applications for himself and for each member of his family for permanent residency visas (subclass 805). Bridging visas were granted while the applications were being considered. These visas did not permit overseas travel. On 25 August 1997, Mr Leghaei was advised that he and his family had all been

refused permanent residency visas on the ground that he had been assessed as a risk to

Between September 1997 and February 2002, Mr Leghaei pursued review proceedings and a formal assessment was carried out by ASIO, resulting in an adverse security assessment in early 2002. The substance of the report was that Mr Leghaei was assessed to be 'directly or indirectly a risk to Australian national security." Although Mr Leghaei was granted a Bridging Visa (Class B) early in 2002, which allowed him to travel overseas in February 2002 with one of his sons, that bridging visa was cancelled on 11 April

2002 as a result of the adverse security assessment.

During April and May 2002, Mr Leghaei instituted administrative review proceedings on two further occasions and was consequently granted successive Bridging Visas (Class E). However, both proceedings were defeated by the fact that the Minister had issued Conclusive Certificates (dated 14 March and 29 April 2002) pursuant to s 339(a) of the Act. These certificates stated that the Minister believed it would be contrary to the national interest to

On 10 May 2002, Mr Leghaei commenced proceedings in the Federal Court seeking to quash the Director-General's 2002 adverse security assessment. Those proceedings have now been overtaken because, by way of a letter dated 26 May 2004, Mr Leghaei was advised

that 'a fresh assessment' had been made in relation to him. This assessment is genesis of the present proceedings. The relevant part of the letter states: 'Briefly, the Deputy Director-

General of Security has decided to maintain the adverse security assessment against Mr

Mr Leghaei was advised of the Minister's intention to cancel the bridging visas on 26 July 2004. The Minister's delegate indicated that the reason for the cancellation was that the 'competent Australian authorities' had assessed Mr Leghaei to be 'a direct risk to Australian

national security.' Consequently, fresh proceedings were commenced in this Court in July

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The primary judge was of the view that the ASIO Act did not exclude the requirements of procedural fairness with 'unmistakable clarity' or by necessary implication: see [69] of the non-confidential reasons. He considered that in relation to a non-citizen such as Mr Leghaei, whose visa would be threatened by an adverse security assessment, there was a duty to afford such a degree of procedural fairness as was consistent with a lack of

prejudice to national security: see [83] of the non-confidential reasons.

His Honour was of the opinion that in this case, the duty to afford procedural fairness would be discharged by evidence of the fact that the Director-General had given genuine consideration to that question and had decided against disclosure in the interests of national

security: see [86] of the non-confidential reasons.

The primary judge considered that the effect of this may be to reduce the content of procedural fairness, in practical terms, 'to nothingness.' However, his Honour concluded that, for reasons expanded upon in his confidential reasons, Mr Leghaei was afforded procedural

fairness to the extent that national security permitted: see [88] of the non-confidential

term, the primary judge considered that sufficient content could be gleaned from the

legislative context and from the recommendations of Mr Justice Hope in his report as Royal

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Commissioner in the Royal Commission on Australia's Security and Intelligence Agencies

'Report on the Australian Security Intelligence Organization' of December 1984 ("the 1984

His Honour read the reasons supporting the adverse security assessment but, because of their sensitivity, he referred to these reasons in the most general way. He was of the view

that the decision-maker had considered all of the necessary statutory elements.

| | ' 'oO THE CONTENT OF THE PROCEDURAL FAIRNESS REQUIREMENTS

The appeal proceeded on the basis that there was no challenge to the primary judge's

finding that the rules of procedural fairness were not excluded. The argument on the appeal

Senior counsel for Mr Leghaei submitted that his Honour was in error in concluding that national security considerations reduced the content of the obligation to afford procedural

fairness to 'nothingness': see Appellant's Submissions at [30].

That expression probably derives from the judgment of Brennan J in Kioa v West (1985) 159 CLR 550 at 615, where his Honour referred to that expression by a law review commentator. His Honour went on to say that the content of the procedural fairness requirements was in some circumstances reduced to nothingness to avoid frustrating the

purpose for which the power was conferred: see also Johns v Australian Securities

It is generally accepted that the law attaches importance to the need to bring to the attention of a person affected by a decision the critical issue or factor on which the

administrative decision is likely to turn, so that the person may have an opportunity to deal with that issue: see Kioa at 587 and 628.

Ordinarily, this obligation will not be discharged by a 'general and unfocused invitation to make submissions'; instead, the specific grounds on which the decision is likely to turn should be put to the person so that he or she may direct submissions to the critical

issue or issues: see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223.

However, 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 (unreported; 19 December 1989) ("Amer No. 2") 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 elements in the case should be withheld from him.'

Similar observations are to be found in Amer v Minister for Immigration, Local

Government and Ethnic Affairs (unreported; 18 December 1989) at 3; Chu v Minister for

Immigration and Ethnic Affairs (1997) 78 FCR 314 at 328; South Australia v Slipper (2004) 136 FCR 259 at [113]; and Nicopolous v Commissioner for Corrective Services [2004] NSWSC 562 at [76], citing A-G v Ryan [1980] AC 718 at 741.

In Amer No. 2 at 9-10, Lockhart J recognised that in some cases the balancing of the conflicting principles produces the 'unsatisfactory' feature that the content of a security assessment is withheld from the person affected. However, his Honour remarked that this is an inevitable result if the balance is determined in favour of the public interest in national

If that is where the balance is found to lie, then it may well be correct, as the primary

judge appears to have concluded in the present case, that the content of the procedural

fairness obligation is reduced in particular terms to 'nothingness.'

Such a result would be consistent with the observations of Brennan J in Church of Scientology v Woodward (1982) 154 CLR 25 at 76. His Honour there observed that the secrecy of the work of an intelligence organization which is to counter threats of espionage and sabotage is essential to national security, and it will be a rare case where the public

interest in national security will yield to the public interest in the administration of justice.

In the present case, the primary judge was plainly right to strike the balance in favour of the protection of the public interest in national security. This is because of the weight his

Honour gave to the unchallenged evidence of the Director-General.

Whether this reduced the obligation to mere 'nothingness' and afforded such a degree

of procedural fairness as was consistent with the protection of national security involves little

In any event, it is unnecessary to decide that issue. ee

THE WEIGHT TO BE GIVEN TO THE DIRECTOR-GENERAL'S EVIDENCE

In Alister v R (1984) 154 CLR 404 at 435, Wilson and Dawson JJ said that questions of national security raised issues of great importance which will seldom be wholly within the competence of a court to evaluate. Their Honours went on to observe that:

'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, Brennan J also noted that the court is 'ill-equipped itself to evaluate

pieces of evidence obtained by ASIO": see Alister at 455.

Similar views were expressed by Lord Nicholls of Birkenhead in A & Ors v Secretary

of State for the Home Department [2004] UKHL 56 (16 December 2004) at [79] as follows:

'All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and

what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility.'

The observations of their Honours in Alister and of his Lordship in A & Ors were made in a different context from that before us. However, as the primary judge said at [85] of

his non-confidential reasons, similar considerations apply in the present case, even at the cost

The primary judge was mindful of the remarks of Lord Hoffman in A & Ors at [94] that widespread scepticism has recently attached to the content of security assessments: see [80] of the non-confidential reasons. However, his Honour correctly recognised that without the benefit of countervailing expert evidence he was not in a position to form an opinion

contrary to that stated by the Director-General: see [84] of the non-confidential reasons.

In coming to this view, the primary judge did not simply rubber stamp the opinion expressed by the Director-General. He satisfied himself that the Director-General had given personal genuine consideration to the question of whether disclosure would be contrary to the

national interest: see [88] of the non-confidential reasons. This accords with the approach

taken, in a different context, by the Court in Chu at 328 - 329.

The primary judge pointed to the observations of Lockhart J in Amer No. / at 3 that there is no perfect solution to this type of problem. However, in that case, Lockhart J remarked that the applicants had the consolation of knowing that a judge had inspected the documents and come to a view. Here, as noted by the primary judge at [91] of the non- confidential reasons, his Honour was not in a position to assess, nor was it his function, to

determine the merits and validity of ASIO's assessment.

We are also satisfied that the Director-General gave genuine consideration to the

question of what disclosure could be made in the national interest.

The question of whether the Director-General gave genuine consideration to the issue is a different one from the 'proper, genuine and realistic consideration' formula as a ground of judicial review: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [59] - [65]; and Aronson, M., Dyer, B. & Groves, M. Judicial Review of Administrative Action (3" edition, 2004) at 259-260.

Here, the question is what weight is to be given to an opinion of a responsible officer on a matter of national security. We are not reviewing the Director-General's opinion. Nor, of course, was the primary judge. His Honour correctly determined in accordance with established authority that, genuine consideration having been given by the Director-General

to the question of disclosure, and in the absence of countervailing evidence, the balance was

No error is demonstrated in the primary judge's analysis.

supported by construing the statutory definition in its context in accordance with the

principles stated in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187

CLR 384 at 408. Considerable reliance was placed on the recommendations of Hope J in his 1984 report.

The term 'acts of foreign interference' was added to the ASJO Act by s 3(a) of the Australian Security Intelligence Organization Amendment Bill 1986 (No 122 of 1986). The

expression replaced an earlier definition of 'actual measures of foreign intervention.'

The Explanatory Memorandum to the Bill and the Attorney-General's Second Reading Speech made it clear that the Bill was intended to give effect to certain

However, in our view, neither the express terms of the ASIO Act construed in accordance with accepted principles nor the recommendations of Hope J support the construction urged upon us by senior counsel for Mr Leghaei. Indeed, the primary judge's

approach is consistent with the recommendations of Hope J and the proper construction of the

relevant terms, construed in their context and in accordance with the principles stated in

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [71].

Section 17(1)(a) of the ASIO Act provides that one of the functions of the organization is to obtain, correlate and evaluate intelligence relevant to security. The definition of 'security' in s 4 includes the protection of the Australian people from six

different types of acts. The first is 'espionage', the sixth is 'acts of foreign interference'.

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It follows from our view of the proper construction of 'acts of foreign interference'

that no error is disclosed in the reasons of the primary

On a fair reading of the decision-maker's stated reasons, there can be no suggestion

that a critical question necessary for the formation of the opinion was overlooked.

The primary judge was of the view that in considering whether the decision-maker had addressed the critical questions, regard may be had to the express written reasons and to what may be legitimately inferred from them: see the confidential reasons at [48]. This

Accordingly, for the reasons outlined above, we propose to order that the appeal be

I certify that the preceding ninety- eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Stone and Jacobson.

Mr N Williams SC with Mr T Howe Australian Government Solicitor

Australian Security Intelligence Organization Act 1979(Cth)

Leghaei v Director-General of Security

At a glance

Court

Decision date

Before

Source

Judgment (158 paragraphs)

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Parties

Legislation Cited (3)

Cases Cited (17)

Cited By (11)