Federal Court. If the Minister relies on an Adverse Security Assessment (ASA) rather than independently assessing the risk posed by a person, does this amount to dictation? Can the Minister consider non-refoulement obligations as part of the residual discretion under s 501(2)-(3)? Is a decision under s 501(3) or 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid? In assessing whether s 501C(4)(b) is met, is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?
The Federal Court (FCA) said as follows:
1 By a third further amended originating application dated 26 November 2021, the applicant seeks various relief in relation to the cancellation of his visa, the Minister’s refusal to revoke that cancellation and the validity of a Qualified Security Assessment (QSA) provided by the Australian Security Intelligence Organisation (ASIO), and which was relied upon by the Minister in refusing to revoke the cancellation decision ...
7 The QSA included some adverse comments in relation to the applicant’s character, namely:
(a) “during [the applicant’s] [Security Assessment Interview (SAI)] on 3 December 2019 he made a number of admissions regarding his involvement in the Reunion Island venture that contradicted information provided at the first SAI on 6 June 2019 …” (at [12]);
(b) “[the applicant’s] comments at the second SAI that he was not motivated by making money from people smuggling are likely untrue” (at [14]);
(c) “[b]ased on the classified information available at the time of the first security assessment and [the applicant’s] misleading comments at SAI …” (at [16]); and
(d) “[w]hile the change in his account indicates [the applicant] withheld information and downplayed his involvement in his first SAI in June 2019 …” (at [18]).
Some of the questions to the FCA were as follows:
Question 1: Is s 501C(4) of the Migration Act 1958 (Cth) coupled with a duty to consider any representations properly made under s 501CA(4)(a)?
Question 2: If s 501C(4)(b) is met (i.e. the Minister is satisfied that the non-citizen passes the character test), is there a duty to revoke the original decision to refuse or cancel the visa?
Question 3: According to the FCA, the Minister "was unaware of the particulars of the applicant’s involvement in people smuggling, but he was informed that the relevant “head of security” identified in the [Adverse Security Assessment - ASA] for the purposes of the definition of “security” in s 4 of the ASIO Actwas the protection of Australia’s territorial and border integrity from serious threats". Is it the case that "the ASA could only have been validly issued if ASIO assessed the applicant to be a “serious threat” to Australia’s territorial and border integrity, and therefore the Minister was entitled to be satisfied the risk posed by the applicant to security was of a serious nature"?
Question 4: Can it be said that, "where the Minister relies upon an ASA rather than embarking upon an independent assessment of the risk posed by a person, this amounts to acting under dictation"?
Question 5: Is it open to the Minister to consider the issue of Australia’s non-refoulement obligations as part of the residual discretion under s 501(3)?
Question 6: Is it open to the Minister to consider the issue of Australia’s non-refoulement obligations as part of the residual discretion under s 501(2)?
Question 7: Does the issue of non-refoulement need to be considered as part of the national interest assessment under s 501(3)?
Question 8: Can it be said that the various statements in the QSA which the Applicant "contended were in excess of ASIO’s statutory functions because the statements did not, and could not, relate to the question whether security requirements made it “necessary or desirable” for his visa to be cancelled"?
Question 9: Is a cancellation decision under s 501(3) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid?
Question 10: Is a non-revocation decision under s 501C(4) rendered invalid by relying on s 501(6)(g) in circumstances where the ASA is invalid?
Question 11: If the answer to Question 10 is 'yes', does that mean that "reliance upon an invalid ASA or QSA by the Minister could not be relevant to the reasonableness or otherwise of a decision to refuse to revoke under s 501C(4)"?
Question 12: Can it be said that the matters in 501(6)(c)(i) and (ii) do not of themselves establish that a person does not pass the character test, bur are rather indicia of a want of good character?
Question 13: A letter to the Applicant said that "the Minister may have regard to this in relation to your past general conduct" under s 501(6)(c)(ii). However, when later on making the non-revocation decision, the Minister had regard to that past general conduct as "criminal conduct” under s 501(6)(c)(i) as an indicator of "contempt and disregard for the law" and bad character. Did that mischaracterisation led to a denial of procedural fairness?
Question 14: In determining under s 501C(4)(b) whether a "person satisfies the Minister that the person passes the character test (as defined by section 501)", is the Minister limited to considering the same sub-sections of s 501(6) which founded cancellation under s 501(3)?
The FCA answered those questions as follows: