Hussain v Minister for Foreign Affairs [2008] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Foreign Affairs [2008] FCAFC 128

ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal affirming decisions to cancel Australian passport and issue adverse security assessment in relation to applicant under Australian Security intelligence Organisation Act 1979 (Cth) – whether in conducting review of decisions the Tribunal erred in law in preventing applicant's legal representatives from having access to all of the evidence and submissions made by the respondents in reliance on security certificates issued by the Attorney-General under ss 36, 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth) where no issue was taken before the Tribunal as to the validity of the certificates – no error in law in Tribunal failing to disregard certificates – any challenge to validity of certificates could not give rise to a question of law amenable to resolution by the Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – abandonment of ground of appeal due to failure of applicant's legal representatives to require Tribunal to send all documents before it to the Court under s 46(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – failure of the applicant's legal representative to challenge the Attorney-General's decision to issue the certificates under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 39B of the Judiciary Act 1903 (Cth), or s 75(v) of the Commonwealth Constitution

CONSTITUTIONAL LAW – challenge to constitutional validity of ss 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth) where Tribunal presided over by Ch III judge – whether mandated procedures are incompatible with powers and functions of a Ch III judge – Tribunal's powers and functions – administrative not judicial – nature of appointment – persona designate with consent – no incompatibility in the present case – whether security certificates invalid on their face – no condition of validity beyond Attorney-General's certification of his opinion. Administrative Appeals Tribunal Act 1975 (Cth), ss 19(2)(baa), 21AA, 33, 36, 39A, 39B, 43, 44(1), 46, 54 Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Passports Act 2005 (Cth), ss 14, 22 Australian Security Intelligence Organisation Act 1979 (Cth), s 37, 54(1), 54(2), 61, Part IV Federal Court of Australia Act 1976 (Cth), s 43 Federal Court Rules 1979 (Cth), O 53 r 3 Judiciary Act 1903 (Cth), s 39B Commonwealth Constitution, s 75(v), Ch III