HIGH COURT JUDGEMENT ON ASIO SECURITY ASSESSMENTS

Briefing – 11October 2012

On Friday, 5 October 2012, the High Court handed down its ruling in relation to ASIO’s adverse security assessments and the impact on the grant of a protection visa (PV). The High Court found that the public interest criterion regulation (4002) used as the basis for the refusal of a PV was invalid because it removed the decision-making power from the Minister, shifting this power to ASIO and bypassing the special scheme of review in the Migration Act of decisions to refuse or cancelprotection visas. According to the Migration Act 1958,decision-making power for protection visas must lay with the Minister and his or her delegate. In the plaintiff’s case, the decision to refuse a PV on the basis of the criterion was not lawful. The decision opens up both the possibility of minimal levels of disclosure of assessments made against a person, as well as the chance for review of the refusal to grant a PV.

The justices noted that the public interest criterion had a wider scope than the criteria set out in Articles 32 and 33 of the Refugee Convention and that it required no minimal level of proof to make a decision. The requirement of a factual basis of suspicion in order to make an assessment was not present in the current regime, and consequently, the current decisions have been made in error.

As the plaintiff in the case was issued a Special Purpose Visa before his arrival on Christmas Island in 2009 (he was part of the Oceanic Viking group who received temporary visas prior to their arrival), he was able to apply for a PV onshore through the statutory Refugee Status Determination process. As such, he had access to the Refugee Review Tribunal (RRT), and his case will return to the RRT. A majority of the other people who have received adverse security assessments arrived as “Irregular Maritime Arrivals (IMAs)” and were subject to the non-statutory Refugee Status Assessment process and the requirement that the Minister lift the bar for them to make a protection visa application.

As the Minister can no longer refuse the grant of a PV based on the public interest criterion, the Government would be required to utilise a different reason for refusal, and the Attorney-General has already pointed to the use of a visa refusal based on character grounds (Section 501 of the Migration Act 1958). While people subject to a PV refusal based on the public interest criterion 4002 did not have access to the Administrative Appeals Tribunal (AAT), the refusal of a PV based on character grounds is reviewable through the AAT. This review option would provide these refugees with an appeal mechanism that would examine whether or not a decision made about their PV application was made without jurisdictional error.Since the High Court found that the criterion was invalid, the plaintiff’s application for a PV is ongoing, his continued detention is lawful.

In the judgement, some justices also raised a number of issues relating to detention. Depending on the Government’s response to this case, these issues related to immigration detention may again require attention in the courts. In relation to the question of procedural fairness afforded by ASIO, the High Court found that ASIO had not denied procedural fairness, as the plaintiff was able to address any issues of concern in an interview with ASIO and with represented counsel prior to the second security assessment in 2012.

While the Government has not yet signalled how it will respond to this judgement, there are a number of actions that should be implemented as a priority, all of which have been recommended and some even accepted by Government. These include:

  • Extension of the right of merit reviews to refugees with adverse security assessments via legislative change to the ASIO Act 1979. The ASIO Act can be amended to allow for refugees and other non-citizens currently in indefinite detention to have access to relevant details of their case without impinging on national security. Merit reviews are currently available for Australian residents who receive similar adverse security assessments. There is no compelling reason to continue to deny non-residents the same access to procedural fairness.[1]
  • Requirement of the National Security Legislation Monitor to advise on establishing a mechanism for independent review of the adverse security assessments, Use of alternatives to detention, with DIAC and/or ASIO making assessments as to the level of risk that an individual or family poses to the community, and arrangements like community detention or bridging visas applied, with necessary monitoring systems in place associated with the level of risk.[2]
  • Use of alternatives to detention, with DIAC and/or ASIO making assessments as to the level of risk that an individual or family poses to the community, and concomitant living arrangements applied. These arrangements could include community detention or bridging visas, with necessary monitoring systems in place associated with the level of risk.[3]

[1]See Joint Standing Committee on Australia’s Immigration Detention Network, 30 March 2012

[2]See resolution by ALP National Conference, 2011

[3] See Joint Standing Committee on Australia’s Immigration Detention Network, 30 March 2012