SDCV v Director-General of Security [2021] FCAFC 51

Federal Court of Australia

SDCV v Director-General of Security [2021] FCAFC 51 Appeal from: SDCV and Director-General of Security [2019] AATA 6112 (2 December 2019); SDCV and Director-General of Security, closed reasons of the AATA, 2 December 2019

File number: NSD 2144 of 2019

Judgment of: RARES, BROMWICH AND ABRAHAM JJ

Date of judgment: 9 April 2021

Date of further orders: 28 April 2021

Catchwords: CONSTITUTIONAL LAW – judicial power of the Commonwealth – challenge to the constitutional validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – whether s 46(2) of the AAT Act requires the Court to act in a manner that is procedurally unfair – where the applicant appeals on a question of law – where s 46(2) of the AAT Act is to be read in the context of the legislative regime as a whole – whether a practical injustice results – held: s 46(2) of the AAT Act is valid ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm an adverse security assessment (ASA) – where ASA determined that the applicant supported politically motivated violence and the Islamic State of Iraq and the Levant – where ASA determined that the applicant employed communications security tradecraft practices while engaging with individuals of security concern – where both open and closed evidence, submissions and reasons furnished which the applicant was prohibited from knowing or considering – held: the Tribunal did not apply an incorrect construction of phrase "directly or indirectly a risk to security" within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) – obligation to give reasons under s 43(2) of the AAT Act still applied where a direction under s 43AAA(5) of the AAT Act was in force but could not be read to require closed reasons to be produced – the Tribunal did not err by way of failure to make findings in concluding that the open evidence alone could not lead to a conclusion on whether the ASA was justified and in not making any positive findings on that evidence – there was no denial of procedural fairness by way of a failure to give the applicant sufficient information to make meaningful submissions as the applicant was able to answer the proposition put to him – there was no denial of procedural fairness having regard to the legislative context – it was open to the Tribunal to reach the decision based on the open and closed evidence – application dismissed