Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33

Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33

There is no absolute prohibition on the executive (including ASIO) using information that may have been obtained by torture by a third party when making adverse security assessments for migration purposes. The requirement is to act with caution and weigh the reliability of such information, in line with ASIO policy, but not to exclude it outright. No procedural unfairness arose where the affected person was given adequate opportunity to respond to the material and the concerns relied on. The primary judge erred in holding that limited reliance on such information, in the manner ASIO used it, vitiated the assessments or constituted a denial of procedural fairness. The appeal is allowed,...

Jurisdiction
Australia
Judgment Date
09 March 2023
Procedural Posture
Appeal / Full Federal Court Appeal From Orders of a Federal Court Judge
Outcome
appeal allowed
Legal Topics
['procedural Fairness' 'adverse Security Assessment' 'use of Information Obtained by Torture' 'asio Act' 'security Risk' 'executive Vs Judicial Evidence Standards']
['migration' 'administrative and Constitutional Law' 'human Rights'] ['procedural Fairness' 'adverse Security Assessment' 'use of Information Obtained by Torture' 'asio Act' 'security Risk' 'executive Vs Judicial Evidence Standards']

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Procedural Posture

Appeal / Full Federal Court Appeal From Orders of a Federal Court Judge

Legal Issues

  1. 1 ['Whether the use of information by the executive likely obtained by torture by a third party is prohibited in security assessments' 'Whether it was a denial of procedural fairness to use such information' 'Whether it was a denial of procedural fairness to not ask particular questions during interview']

Ratio Decidendi

There is no absolute prohibition on the executive (including ASIO) using information that may have been obtained by torture by a third party when making adverse security assessments for migration purposes. The requirement is to act with caution and weigh the reliability of such information, in line with ASIO policy, but not to exclude it outright. No procedural unfairness arose where the affected person was given adequate opportunity to respond to the material and the concerns relied on. The primary judge erred in holding that limited reliance on such information, in the manner ASIO used it, vitiated the assessments or constituted a denial of procedural fairness. The appeal is allowed,...

Court Disposition

appeal allowed

Orders

  • ['The orders made on 22 April 2022 and orders 1, 2 and 3 made on 23 May 2022 be set aside.' 'The amended originating application dated 12 March 2021 be dismissed.' 'Leave to rely upon ground 2 of the amended notice of contention dated 29 September 2022 be refused.' 'The amended notice of contention be dismissed.'...