High Court holds security risk provision invalid

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High Court holds security risk provision invalid

Posted 9/10/2012 by Ian McCluskey

There has been extensive reporting on the recent High Court decision concerning the impact of an adverse ASIO assessment on an asylum applicant.

In its decision of 5 October 2012 in the matter of Plaintiff M47-2012 v Director General of Security [2012] HCA 46, the High Court ruled public interest criterion 4002, contained in Schedule 4 to the Migration Regulations 1994, to be invalid. This criterion provided:

4002 The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.
The plaintiff is a Sri Lankan asylum seeker with an adverse ASIO assessment who has been in immigration detention with his wife and three children since 29 December 2009. The rules concerning the granting of protection visas required that criterion 4002 be met. The adverse ASIO assessment meant that it was impossible for the plaintiff to satisfy criterion 4002, and therefore it was impossible for him to be granted a visa, even though he has been assessed to be refugee.

There were seven separate judgements. A majority of Justices (French CJ; Hayne, Crennan and Kiefel JJ) held criterion 4002 invalid as it was beyond the regulation-making power conferred on the Immigration Minister (and therefore the Department of Immigration and Citizenship) by the Migration Act 1958. The minority (Gummow, Heydon and Bell JJ) would have held the provision valid.

A legislative response to this decision may be required. While many would prefer that an adverse ASIO assessment should be a relevant (and possibly conclusive) factor for decision-makers, it should be noted that section 501 of the Migration Act 1958 does continue to provide for the refusal of protection visa applications on character grounds. It seems likely that an adverse ASIO assessment, if substantiated and if correct, could give rise to character concerns which may justify a visa refusal under section 501.

The Government is consulting lawyers about whether the Migration Act needs amendment in light of the High Court decision, and has stated that national security had not been undermined as a result of this decision. The Opposition is not convinced and is seeking a briefing from the Government on the implications of this decision. The Greens will introduce a private member’s bill in the Senate on Wednesday which will put forward a review mechanism for adverse ASIO assessments.

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