Federal Court. Can it be said that "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", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?
The Federal Court (FCA) described some of the relevant facts as follows:
12 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.
13 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.
28 On 8 March 2024, the Director-General:
(1) 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 [(Director-General Decision Brief)]; and
(2) signed and dated the ASA.
40 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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Are security assessments “point in time” assessments, which therefore cannot be amended, particularly after administrative action has been taken in reliance on them?
Question 2: If the answer to Question 1 is 'yes', may new assessments nevertheless "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"?
Question 3: If the answer to Questions 2 and 3 is 'yes', does it follow 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"?
Question 4: Does it necessarily follow from the fact that s 128 of the Migration Act 1958 (Cth) provided that the Minister may cancel the visa without notice to the visa holder, that "Parliament has excluded any requirements for procedural fairness in relation to decisions of the Minister made under Subdivision F"?
Question 5: Can it be said that "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", and that it is "implicit that such material cannot be disclosed to any judge who is called on to determine such cases"?
Question 6: Whatever the answer to Question 5 is, must the same legal consequences logically follow where the claim of public interest immunity is not challenged?
Question 7: If the answer to Question 5 is 'yes', does the answer change if the person who seeks to rely on the materials protected by the immunity is the same person who claimed the immunity?
Question 8: In adjudicating upon a claim of public interest immunity, does a Court make an evaluative judgement based on balancing competing public interests, instead of exercising a discretion?
Question 9: Can public interest immunity cannot be waived by the Crown or anyone else?
Question 10: If the answer to Question 9 is 'no', does a court nevertheless generally attach "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"?
Question 11: Can it be said that "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"?
Question 12: Can it be said that, 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"?
Question 13: Did the Director-General of ASIO have a discretion to claim public interest immunity?
Question 14: Can it be said 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"?
Question 15: In making an Adverse Security Assessment, is ASIO required to comply with the requirements of procedural fairness vis a vis the assessment subject?
Question 16: Do the rules of procedural fairness require an opportunity to be heard where that is reasonable in all the circumstances known to the decision-maker, instead of requiring that an opportunity to be heard be afforded in all cases?
Question 17: Are there cases where the obligation to afford procedural fairness may be reduced to “nothingness” or stripped of meaningful content, for instance 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"?
Question 18: In relation to Adverse Security Assessments, will the content of procedural fairness “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?
The FCA answered those questions as follows: