ASIO Security Assessment quashed: Federal Court says that ASIO procedures led to practical injustice

Back in 2005, in Leghaei v Director-General of Security [2005] FCA 1576, the Federal Court said that in the national security area the content of procedural fairness can be reduced to nothingness. Then in 2015 the Full Federal Court said that ASIO did not breach its obligation to provide procedural fairness despite not providing Mr Jaffarie with all the non-sensitive information that it could have provided: Jaffarie v Director-General of Security [2014] FCAFC 102.

Given this background, and the limited number of decisions on the subject of security assessments, it is noteworthy that Justice Wigney recently set aside an adverse security assessment on the basis not of a single clear breach, but of the cumulative effect of 8 aspects of ASIO’s procedure. His Honour found that as a result of ASIO’s procedures Mr El Ossman lost the practical opportunity to propound his case for a favourable assessment, and that this amounted to practical injustice. See El Ossman v Minister for Immigration and Border Protection [2017] FCA 636. The JADE report is here.

UPDATE:

On 11 July 2017, the Full Federal Court again quashed an adverse security assessment given by the Director-General of Security (ASIO) to the Minister for Immigration recommending that a visa not be granted.  This decision was BSX15 v Minister for Immigration and Border Protection [2017] FCAFC 104.  As with El Ossman, the Full Court quashed the assessment on the basis that ASIO did not, in the manner it conducted its interviews with BSX15, afford him procedural fairness.  Specifically, its questioning did not bring to the attention of BSX15 the specific issue of concern in a manner that would have allowed him to make meaningful submissions in response: [42]-[60].  The JADE report is https://jade.io/article/540592

It is also salient to note that the Full Court in BSX15 (at [48]) said that the primary judge was correct to conclude that in circumstances where public interest immunity applies for the purposes of the protection of the national interest, it is sufficient for a relevant issue to be raised with an applicant at a level of generality.  However, their Honours said that in each case the level of generality will depend on the balance between the obligation to afford procedural fairness and the interests of national security.