High Court considers an adverse security assessment by ASIO

Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (5 October 2012)

Summary

In this case the full bench of the High Court of Australia considered the lawfulness of the indefinite detention of the plaintiff, a refugee who has been held in detention in Australia without a visa for three years. He had been assessed as a refugee but his application for a visa had been denied on the basis of an adverse security assessment conducted by the Australian Security and Intelligence Organisation. By a majority of four to one, the High Court held that the decision to refuse the protection visa on the grounds of the adverse security assessment was invalid, and that the plaintiff is to be held in detention until the decision has been made lawfully. The majority declined to reconsider Al-Kateb v Godwin (2004) 219 CLR 562. However, Justices Gummow and Bell held that Al-Kateb should be overturned, noting that the principle of legality requires that a legislative intention to abrogate or curtail a fundamental right, freedom or immunity "must be clearly manifested by unmistakable and unambiguous language." A majority of the Court also held that the plaintiff was not denied procedural fairness in connection with the making of the security assessment.

Facts

The plaintiff, a Sri Lankan national, arrived in Australia in December 2009. In June 2010, the plaintiff applied for a protection visa. A delegate of the Minister for Immigration and Citizenship found that the plaintiff had a well-founded fear of persecution in Sri Lanka on the basis of his race or political opinion and was therefore a refugee. However, an adverse security assessment of the plaintiff had been made by ASIO. The Migration Regulations 1994 (Cth) prescribe as a criterion for the grant of a protection visa that the applicant not have been assessed as a risk to security under the Australian Security Intelligence Organisation Act 1979 (Cth). This criterion is called public interest criterion 4002 (PIC 4002). Accordingly, the delegate refused the plaintiff's application for a protection visa.

In May 2011, the Refugee Review Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the plaintiff. ASIO made a new adverse security assessment of the plaintiff in May 2012, which superseded the previous adverse assessment.

The plaintiff was considered an unlawful non-citizen following the refusal of his application for a protection visa and has been held in detention pursuant to sections 189 and 196 of the Migration Act until such time as he can be removed from Australia. The Department of Immigration and Citizenship has spent almost three years seeking, without success, a third country willing to receive the plaintiff, where he does not have a well-founded fear of persecution.

Decision

In a lengthy decision that is likely to have repercussions for current and future asylum seekers, the High Court considered:

  • the validity of the condition that prevents the grant of a protection visa to a person in respect of whom an adverse security assessment had been made;
  • the legality of indefinite detention; and
  • whether ASIO's security assessment of the plaintiff had been procedurally fair.

Validity of “public interest condition 4002”

The majority, Chief Justice French and Justices Hayne, Crennan and Kiefel, held that the decision to refuse the plaintiff's application for a protection visa had not been made according to law and that the decision must be re-determined lawfully. Their Honours made this finding on the basis that that the Migration Regulations could not validly prescribe PIC 4002 as a condition for the grant of a protection visa because doing so was inconsistent with the Migration Act. They considered that the provision of the Migration Act under which PIC 4002 is prescribed is subject to section 504(1), which requires that the Regulations not be "inconsistent with the Act."

The majority considered that PIC 4002 was inconsistent with the Migration Act because it:

  • circumvents certain merits review procedures in respect of adverse decisions; and
  • effectively prevents the Minister from exercising a decision-making power relating to national security concerns by requiring the Minister to refuse an application for a protection visa in the event of an adverse security assessment.

The Migration Act provides special rights of review in respect of decisions to refuse to grant or cancel a protection visa "relying on one or more of the following Articles of the Refugees Convention, namely Article 1F, 32 or 33(2)." Relevantly, article 32 provides that a refugee lawfully in the territory shall not be expelled save on grounds of "national security or pubic order". Article 33(2) further provides that a refugee shall not have the benefit of non-refoulement where there exist "reasonable grounds for regarding [a refugee] as a danger to the security of the country in which he is."

Their Honours held that the Minister is therefore empowered to make a decision to refuse or cancel a protection visa "relying on" articles 32 or 33(2) but were divided on whether the power is express or implied. If the power is express, it is provided for in section 501(1), which provides that the Minister may refuse or cancel a visa if a person does not satisfy the Minister that he or she passes the character test because there is a significant risk that the person would represent a danger to the Australian community or to a segment of that community. If the power is implied, it arises from the ability to review a decision to refuse to grant or cancel a protection visa "relying on" articles 32 or 33(2).

In light of these provisions, the majority held that PIC 4002 is invalid because it extends the scope of security concerns to security matters in the conduct of Australia's responsibilities to foreign countries, which are beyond those security concerns which may be considered in relation to a decision made "relying on" articles 32 or 33(2). Their Honours further held that PIC 4002 circumvents the special merits review procedures in place in relation to a decision made "relying on" articles 32 or 33(2).

On the grounds that PIC 4002 was invalid, the majority held that no decision had been made and that the plaintiff could remain in immigration detention until the decision as to whether he should be granted a protection visa has been made lawfully.

Indefinite detention

Justices Heydon, Gummow and Bell also considered the High Court's earlier decision in Al-Kateb, in which the High Court held that the Migration Act authorises and requires the detention of an unlawful non-citizen notwithstanding that removal from Australia is not reasonably practicable in the foreseeable future. Relevantly, the Act provides that an "unlawful non-citizen" is required to be taken into immigration detention and must be removed from Australia as soon as reasonably practicable and, further, that "until" the removal, deportation or grant of a visa he or she must be kept in immigration detention.

Justice Heydon found the continued detention to be lawful, consistent with the majority in Al-Kateb. However, Justices Gummow and Bell held that the majority in Al-Kateb had erred in their construction of the statute, and preferred the view of Gleeson CJ in that decision. Their Honours considered the principle of legality, which requires that the legislature's intention to abrogate or curtail a fundamental right, freedom or immunity "must be clearly manifested by unmistakable and unambiguous language." Justices Gummow and Bell found that such language was not present. Their Honours found that the removal of the plaintiff from Australia is not reasonably practicable in the foreseeable future. They therefore held that, where there is no practical possibility of meeting the requirement of removal, the preferred interpretation of section 196(1) is that which "better accommodates the basic right of personal liberty" consistent with the principle of legality. Further, while removal from Australia remains impractical, the obligations imposed by section 196(1) are suspended but not displaced.

Procedural fairness

Justices Gummow, Heydon, Kiefel, Crennan and Bell held that the plaintiff had not been denied procedural fairness because the interview with ASIO on the basis of which the adverse security assessment was made, had been conducted fairly. Chief Justice French and Justice Hayne did not consider the issue of procedural fairness.

Commentary

While this decision concerns Commonwealth legislation and the actions of Commonwealth decision-makers, it does consider rights articulated in section 21 of the Charter. Section 21 provides that every person has the right to liberty and security and that a person must not be subjected to arbitrary arrest or detention. This right is qualified by section 7, which provides that a human right may be subject under law to reasonable limits taking into consideration any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

The approach of Justices Gummow and Bell to the question of indefinite immigration detention provides guidance as to what a Court may consider a reasonable limitation to the right to liberty.  The decision in Al-Kateb remains the authority on what restrictions may be placed on a person's right to liberty pursuant to the Migration Act. However, the approach of Justices Gummow and Bell provides guidance to individuals, legislators and decision-makers regarding the approach the Court may take where statute does not provide expressly for the abrogation of human rights, in particular the right to liberty.

The decision is available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2012/46.html

Hollie Johnston is a law graduate at Allens.

MichelleBennettRefugee & Asylum Seeker Rights