FEDERAL COURT OF AUSTRALIA MYVC v Director-General of Security [2014] FCA 1447 Citation: MYVC v Director-General of Security [2014] FCA 1447 Appeal from: MYVC v Director-General of Security [2014] AATA 511 Parties: MYVC v DIRECTOR-GENERAL OF SECURITY, MINISTER FOR FOREIGN AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 872 of 2014 Judge: RARES J Date of judgment: 12 December 2014 Catchwords: ADMINISTRATIVE LAW – cancellation of Australian passport under s 14(1) of Australian Passports Act 2005 (Cth) – review by Administrative Appeals Tribunal of decisions of Australian Security Intelligence Organisation to make adverse security assessment and passport refusal/cancellation request by reason of citizen's suspected involvement in people smuggling and of Minister to cancel passport – whether adverse security assessment and refusal/cancellation request ought to have been made – whether Tribunal bound by rules of procedural fairness – where applicant unaware of content of substantive allegations against him and of confidential evidence subject to Minister's certificate under s 39A(8) of Administrative Appeals Tribunal Act 1975 (Cth) – where Tribunal not bound by rules of evidence – whether Tribunal bound by or failed to apply judicial criteria for assessment of evidence – necessity to consider statutory scheme as a whole in relation to formation of security assessments and their review by Tribunal PRACTICE AND PROCEDURE – application for leave to amend notice of appeal where original notice of appeal did not raise questions of law pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) – necessity for notice of appeal to state questions of law Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Australian Passports Act 2005 (Cth) Australian Security Intelligence Organisation Act 1979 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Alphapharm Pty Ltd v H Lundbeck A/S (2014) 314 ALR 182 applied Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 applied Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 applied Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 applied Briginshaw v Briginshaw (1938) 60 CLR 336 referred to Browne v Dunn (1893) 6 R 67 referred to Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 applied Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178 applied Federal Commissioner of Taxation v Macoun (2014) ATC 20-476 referred to George v Rockett (1990) 170 CLR 104 applied Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 applied Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 applied Jaffarie v Director-General of Security (2014) 313 ALR 593 applied Jones v Dunkel (1959) 101 CLR 298 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 applied Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540 applied Date of hearing: 8 and 12 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 74 Counsel for the Applicant: Mr SEJ Prince with Mr PW Bodisco Solicitor for the Applicant: Rasan T Selliah & Associates Counsel for the First and Second Respondents: Mr TM Begbie with Mr P Melican Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third Respondent: The Third Respondent filed a submitting notice IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 872 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MYVC Applicant AND: DIRECTOR-GENERAL OF SECURITY First Respondent MINISTER FOR FOREIGN AFFAIRS Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent JUDGE: RARES J DATE OF ORDER: 12 DECEMBER 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Until further order, there be a suppression order and a non-publication order prohibiting the publication or other disclosure of any information tending to reveal the identity of, or otherwise concerning, the applicant in these proceedings. 2. The appeal be dismissed. 3. The applicant file and serve on or before 16 December 2014 an amended notice of appeal in the form identified during the course of oral submissions today. 4. The time in which the applicant may file a notice of appeal from these orders be extended to 28 days after the written version of the Court's reasons for judgment delivered orally are provided to the parties. 5. The applicant pay the first and second respondents' costs. THE COURT NOTES THAT: 6. The grounds for order 1 are that disclosure of his identity may endanger the security of the applicant and prejudice the administration of justice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 872 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MYVC Applicant AND: DIRECTOR-GENERAL OF SECURITY First Respondent MINISTER FOR FOREIGN AFFAIRS Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent JUDGE: RARES J DATE: 12 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 On 28 July 2014, the Administrative Appeals Tribunal affirmed two decisions that the applicant now seeks to have set aside on this appeal on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The two decisions that the Tribunal affirmed were, first, the decision made on 9 November 2013 by the Australian Security Intelligence Organisation (ASIO) under s 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act) to furnish the Department of Foreign Affairs and Trade, including its Minister, with an adverse security assessment of the applicant in which ASIO requested that the Minister for Foreign Affairs cancel his Australian passport and refuse to issue him a new one under s 14(1) of the Australian Passports Act 2005 (Cth) (the Passports Act). And, secondly, the decision by the Minister on 11 December 2013 to cancel his Australian passport under s 22(2)(d) of the Passports Act. 2 In essence, the two challenged decisions were underpinned by ASIO's conclusions in its adverse security assessment that the applicant had been engaged in people smuggling whilst travelling overseas on his Australian passport and that the cancellation of his passport would restrict his ability to engage in those activities. 3 The two decisions create substantive limitations on the ability of the applicant to enjoy ordinary and important aspects of his Australian citizenship. The substantive evidence on which the Tribunal affirmed the two decisions has not been disclosed to the applicant because it is the subject of a certificate given by the Attorney-General pursuant to s 39A(8) of the AAT Act. That certificated evidence involved intelligence that the Tribunal accepted had been gathered in respect of the applicant. The Tribunal found that the certificated evidence was sufficient to persuade it that it should act on it so as to affirm the two decisions that the applicant challenged. The Tribunal relied on that evidence to reject the applicant's general, but necessarily uninformed, denials of the bare ultimate conclusion that the respondents sought the Tribunal to find were justified as having been derived from the certificated evidence on which the adverse security assessment was based. 4 As this sketch suggests, the applicant was placed in a very difficult situation. That was because of the applicable statutory regime and the nature of the public interest immunity protecting from disclosure to him the adverse information relied on by the respondents against him. First, he was not confronted by, or able to challenge, most of the case against him and had no real opportunity to answer it, and secondly, he could not answer that case because necessarily it was largely unknown to him. The issues 5 This is the context in which the applicant sought to mount his challenge. However, the parties were at issue about whether the applicant had framed questions of law and grounds of his appeal properly in accordance with the requirements of s 44(1) of the AAT Act and the Federal Court Rules 2011 (Cth). 6 In essence, the applicant contended, as ultimately narrowed in his proposed amended notice of appeal, that the Tribunal had erred in two ways. The first question of law which he raised was whether the Tribunal had erred in its consideration of paragraph (aa) of the definition of "security" in s 4 of the ASIO Act by holding that organised people smuggling posed a serious threat to Australia's territorial and border integrity and by failing to ask itself the correct question. This raised the issue whether the Tribunal had identified any basis upon which it could be concluded that the activities of the applicant and his involvement in organised people smuggling constituted a serious threat to Australia's territorial and border integrity for the purposes of paragraph (aa) of that definition. 7 The second question of law was whether the Tribunal had erred in denying the applicant procedural fairness in one or more of three respects, namely, first, whether it had failed to apply the principles in Browne v Dunn (1893) 6 R 67 in finding that the applicant had engaged in people smuggling activities and in not accepting his evidence denying such involvement and whether that failure, in all of the circumstances, contributed to the hearing being procedurally unfair. Secondly, whether the Tribunal had erred in failing to draw inferences in respect of the unexplained failure of the respondents to call witnesses in the open part of the proceedings before the Tribunal who ordinarily would be expected to have been called. The applicant claimed that this question arose because there was no excuse given for the respondents' failure to call those witnesses in the sense discussed in Jones v Dunkel (1959) 101 CLR 298, in circumstances where the only witness who was called by the respondents was a person who was not himself involved in the investigation of the applicant's activities and whether that failure, in all the circumstances, contributed to the hearing being procedurally unfair. And, thirdly, the second question of law raised issues as to whether the Tribunal had erred by making findings of criminality against the applicant and rejecting his evidence on oath in circumstances where it had refused to apply the standard of satisfaction for making such findings explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 by Dixon J and whether that failure, in all of the circumstances, contributed to the hearing being procedurally unfair. 8 The amended grounds which the applicant sought to rely on in support of those questions essentially repeated the questions. I will return, after describing the statutory scheme, the nature of the adverse security assessment and the proceedings in the Tribunal, to consider whether the proposed amendment to the notice of appeal should be granted. Use of pseudonym 9 I was satisfied on the evidence, supported by the Tribunal's reasons, that the applicant could face serious consequences under the criminal law of the country where he is now if the authorities there became aware of the basis of the assessment and its affirmation by the Tribunal and the decision of this Court. For this reason, I made non-publication and suppression orders so that the applicant be referred to by the pseudonym "MYVC" and that there be no publication of material that might identify him in order to protect the administration of justice and his safety. The legislative scheme 10 The ASIO Act provided that ASIO's functions included advising Ministers in respect of matters relating to security insofar as those matters were relevant to their functions and responsibilities (s 17(1)(c)) and furnishing security assessments to Ministers (s 37(1)). And relevantly, unless the contrary intention appeared, s 4 defined "security" as meaning: (aa) the protection of Australia's territorial and border integrity from serious threats. 11 Next s 35(1) defined, unless the contrary intention appeared: "adverse security assessment", as meaning, relevantly, a security assessment in respect of a person that contains a recommendation that "prescribed administrative action" (such as action that related to the Passports Act) be taken in respect of the person that, if implemented, would be prejudicial to that person's interests; and "security assessment", as: a statement in writing furnished by [ASIO] to a Commonwealth agency [including a Minister] expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question. 12 An adverse security assessment had to be accompanied by a statement of grounds that contained all the information on which ASIO had relied, other than information that, in the opinion of the Director-General of Security under the ASIO Act, would "be contrary to the requirements of security" (s 37(2)). An adverse security assessment had to be given to the person affected except, relevantly, to the extent that the Attorney-General certified that disclosure to that person of a particular part of the grounds in the assessment in respect of him or her or it "would be prejudicial to the interests of security" (s 38(2)(b)). Under s 54(1), a person could apply to the tribunal for a review of an adverse security assessment. 13 The Passports Act provided that its principal object was to provide for the issue and administration of Australian passports to be used as evidence of the identity and citizenship of Australian citizens when travelling internationally (s 3). Critically, s 14(1) provided that: 14 Reasons relating to potential for harmful conduct (1) If a competent authority suspects on reasonable grounds that: (a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that: (i) might prejudice the security of Australia or a foreign country; or … and (b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct; the competent authority may make a refusal/cancellation request in relation to the person. Then, if such a request were made, s 14(2) authorised the Minister to refuse to issue the person an Australian passport. 14 The definition a "refusal/cancellation request" in s 18(1) included a request by a competent authority, such as ASIO, to the Minister to refuse to issue or to cancel an Australian passport. Additionally, s 18(3) provided that a competent authority could suspect, on reasonable grounds, that the circumstances in s 14(1) applied in relation to a person whom the competent authority knew had already been issued with an Australian passport. Finally, s 22(2)(d) provided that the Minister could cancel an issued Australian passport if a competent authority made a refusal/cancellation request in relation to the passport holder. 15 Thus, the criteria for the two decisions complained of were those that, first, ASIO had to consider in deciding to make a refusal/cancellation request based on an adverse security assessment of the applicant for the purposes of s 14(1) of the Passports Act and, secondly, the Minister had to consider in exercising her discretion under s 22(2)(d) of that Act. The question for ASIO was whether, in making the refusal/cancellation request under s 14(1), it suspected, on reasonable grounds, that first, the applicant, as a person to whom a passport had been issued, would be likely to engage in conduct that might prejudice the security of Australia, and, secondly, he should have his passport cancelled in order to prevent him from engaging in that conduct. And the question for the Minister was whether, given the making of the refusal/cancellation request, she should exercise her discretion to cancel the passport. 16 The procedure of the Tribunal is within its discretion under s 33(1) of the AAT Act, and subject, relevantly, to the AAT Act itself, proceedings must be conducted with as little formality and technicality as possible and the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Where, as here, the Tribunal is reviewing a security assessment, its review must proceed in accordance with s 39A (s 39A(1)). The Director-General is a party to such a review, as can be the Minister. The Director-General has a duty to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to an applicant (s 39A(2) and (3)). The proceedings must be in private and, subject to s 39A, the Tribunal must decide who is to be present (s 39A(5)) but, subject to s 39A(9), the applicant and his representatives may be present when evidence is being adduced by the Director-General or the relevant Minister. Next, s 39A(8) and (9) provided: Security/defence certificate (8) The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia. (9) If such a certificate is given: (a) the applicant must not be present when the evidence is adduced or the submissions are made; and (b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents. 17 The Tribunal has power on its own initiative to call witnesses, including officers of ASIO or other officers of the Commonwealth, under s 39A(4). Next, s 43AAA(3) provides that the Tribunal cannot make findings in relation to an adverse security assessment that have the effect of superseding it, unless the findings state that, in the Tribunal's opinion, the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security. The Tribunal can direct that any part of its findings in respect of a matter that has not been disclosed to an applicant on a review of an adverse security assessment not be given to that applicant (s 43AAA(5)). 18 Importantly, s 44(1) of the AAT Act provided that a party to a proceeding before the Tribunal could appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The adverse security assessment 19 The adverse security assessment was signed by the Director-General and addressed to the Department of which the Minister was a responsible minister. It disclosed that the purpose of the assessment was a refusal/cancellation request under s 14(1) of the ASIO Act in respect of the applicant, and recommended that his passport be cancelled. The statement of grounds in the assessment identified that: ASIO suspects that [the applicant] is likely to engage in conduct that might prejudice the security of Australia or a foreign country, and recommends that his passport be cancelled and/or refused to prevent him from engaging in that conduct. ASIO assesses that: • [the applicant] has been involved in people smuggling: • [the applicant] has engaged in these activities overseas whilst travelling on his Australian passport: and • cancelling [the applicant's] Australian passport will restrict his ability to engage in people smuggling activities. 20 The assessment stated that the applicant had spent the majority of his time overseas since obtaining his Australia citizenship in 2006. It assessed that he would continue to engage in people smuggling, and it explained under the heading "Prejudice to Security": People smuggling poses a serious threat to the protection of Australia's territorial and border integrity by providing an avenue for a large number of undocumented asylum seekers to gain entry to Australia, circumventing all normal border controls. ASIO assesses the development of ongoing structured programs of irregular maritime ventures from [three named countries] to Australia to be a serious threat to border integrity and that the pipelines are being used by individuals of security concern to enter Australia. Accordingly, ASIO assesses that [the applicant's] ongoing involvement in these activities is prejudicial to the security of Australia. 21 One of the countries whose name I have redacted in the above extract is a country with which the applicant has a connection that could identify him. The assessment noted that, while in Australia in 2012, the applicant was interviewed by ASIO on three occasions and denied any involvement in people smuggling. The assessment recommended cancellation of the applicant's passport on the basis that ASIO suspected, on reasonable grounds, that he would be likely to engage in conduct that would prejudice the security of Australia or a foreign country if he were to continue to hold that passport. The proceedings in the Tribunal 22 The Attorney-General issued a certificate under s 39A(8) of the AAT Act in respect of certain evidence given by the only witness called by the respondents before the Tribunal, namely an ASIO officer who was given the pseudonym "Alan Masling". Mr Masling was then responsible for the strategic and day-to-day management of ASIO's operational divisions, including the areas responsible for dealing with people smuggling investigations and the conduct of adverse security investigations. 23 The applicant gave evidence by telephone from a foreign country and Mr Masling gave evidence at the hearing, both in the presence of the applicant and his lawyers and, later, in a closed hearing conducted under s 39A(9). It is not clear, on the open material before me, whether any documents before the Tribunal were protected from disclosure by a s 39A(8) certificate or whether, if they were, the Tribunal made particular findings about that material, other than the generalised ones to which I shall refer. 24 The Tribunal invited counsel for the applicant to identify any questions to which he sought an answer from Mr Masling when it was to conduct the closed hearing from which the applicant and his representatives were excluded, but which answers might elicit material that was subject to the certificates under s 39A(8). And the Tribunal undertook to put those questions to Mr Masling during the course of that closed session. 25 The Tribunal published three sets of reasons. The first open, but redacted, to protect the applicant's identity from disclosure for similar reasons as those that I relied on to make the suppression and non-publication orders in these proceedings, and which was contained in the appeal book. The second, which the applicant was given and which is an exhibit in these proceedings, contained the redacted material from the first set of reasons, and the third were confidential under s 43AAA(5) of the AAT Act, and have not been seen by the applicant or myself, both parties having agreed that it was not necessary for me to see the confidential reasons in order to decide this appeal. 26 The Tribunal's reasons recounted the relevant statutory definitions. It asked itself three questions which formed the basis of the first question of law in respect of which the applicant now complains, namely: (1) whether organised people smuggling could prejudice Australia's security, as defined in s 4 of the ASIO Act; (2) whether the Director-General could suspect, on reasonable grounds, that the applicant would engage in such organised people smuggling; and (3) whether the Director-General could suspect, on reasonable grounds, that cancellation of the applicant's passport would prevent such activity. 27 The Tribunal noted, in a number of points in its reasons, the difficulties which confronted the applicant in dealing with the case being made against him. It recorded the open evidence that Mr Masling had given. In his open affidavit, Mr Masling had said that the adverse security assessment of the applicant included advice that he had been involved in people smuggling activities and had engaged in those activities overseas whilst travelling on his Australian passport, but would have a restricted ability to do so if that passport were cancelled. Mr Masling noted that the applicant contended that he had had legitimate business reasons for travelling but that ASIO had assessed that he was involved in people smuggling, regardless of whether he was also involved in legitimate activities overseas. Mr Masling said that the role of ASIO had been to collect intelligence and to provide advice to the Government on issues relating to security. He said that, for the previous six years, ASIO had been concerned with Australia's territorial integrity, within the definition of "security" in s 4 of the ASIO Act, that definition having been amended in 2010 to include paragraph (aa). He said that only a small percentage of ASIO's resources were dedicated to people smuggling. 28 Mr Masling explained to the Tribunal that, in most cases, a person who arrived as an irregular arrival without identification documents was not a threat to security. But, he said, there had been a number of cases where such a person had been found to be a threat to security, for example, because of politically motivated or communal violence that gave rise to a risk to the lives and property of Australians. He told the Tribunal that there had been previous cases involving Australian citizen people smugglers that had given rise to a risk to the lives and property of Australians and that, at least in one of those cases, that citizen had been prosecuted. 29 His evidence was that people smugglers were motivated by profit and had no real knowledge of, or concern with, the individuals whom they were smuggling. Mr Masling also said that a person in Australia whose only involvement in people smuggling was paying for another person to be brought to Australia was not of concern to ASIO. He told the Tribunal that ASIO had built up a picture of the applicant's activities over a period of time and, while it did not doubt the account the applicant had given of his business activities or reasons for being in the foreign country where he is today, it nonetheless formed the view in the assessment. 30 The applicant gave evidence to the Tribunal seeking to explain his activities. He clearly and unequivocally denied that he had had any involvement in people smuggling himself. 31 The Tribunal noted that it had been provided with both the open evidence to which it and I have referred and closed evidence that was the subject of a certificate under s 39A(8) of the AAT Act that it could not disclose in its open statements of reasons. It noted that that limitation made its task of explaining its decision to the applicant a difficult one and that it would further elaborate its reasoning in a closed statement of reasons that it gave to the Director-General. 32 The Tribunal noted that, although the applicant had given evidence that he had not had any involvement in people smuggling activities, including that he had not facilitated people smuggling and had not earned any money from those activities, it had been provided with certificated evidence by the Director-General that contradicted the applicant's evidence: … and from which we are comfortably satisfied that he has been involved in people smuggling activities for a number of years, facilitating the illegal arrival in Australia of a significant number of people. From these activities he has derived substantial earnings. Our assessment is that he has exploited many vulnerable people without regard to Australia's territorial integrity. (emphasis added) 33 The Tribunal recounted, immediately following those findings, that, in arriving at its findings and decision, it had had regard to the seriousness of the outcome in the matter for the applicant in considering whether it was reasonably satisfied when making the findings that it had made. It acknowledged that people smuggling appeared to be an offence and that its findings were of a serious nature. Moreover, it noted that the making of an adverse security assessment that recommended the cancellation of the subject person's passport and the consequent cancellation of his or her passport, thus restricting the person's freedom of movement, was a very serious matter. It referred to a number of authorities, including the statement by Dixon J in Briginshaw 60 CLR at 362, as to the necessity for a decision-maker to obtain a state of mind of reasonable satisfaction about a matter having regard to the nature and consequence of the fact or facts to be proved, including the gravity and seriousness of the allegation that was made. That passage has been repeated many times in a judicial context and concludes with the statement, "in such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 34 However, the Tribunal found, following a decision of Jagot J, that the principle in Briginshaw 60 CLR 336 was not binding on the Tribunal. (Her Honour's decision was subsequently affirmed by the Full Court in Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540.) As the Tribunal stated, although it had taken into account the seriousness for the applicant of the decisions under review in making its decision, it had: reached that decision relying on relevant and probative material to support our conclusion. Unfortunately for the Applicant, we are unable to reveal much of that material in these open reasons because of the Ministerial certificate. 35 The Tribunal then proceeded to address the first of the three questions it had posed earlier in its reasons that I have set out at [26] above. It referred to a debate that the parties had engaged in by reference to submissions that had been made recently to the Full Court in a case in which the Court had reserved its judgment, namely, Jaffarie v Director-General of Security (2014) 313 ALR 593. The Tribunal found that the words of paragraph (aa) of the definition of "security" in s 4 of the ASIO Act conveyed their ordinary meaning. In doing so, it took into account the Explanatory Memorandum for the Bill through which that paragraph of the definition was introduced in 2010. The Tribunal said (at [52]): Relying on Mr Masling's evidence, the Tribunal is satisfied that organised people smuggling could pose a serious threat to Australia's border integrity and therefore falls with the definition of 'security' in s 4 of the ASIO Act. As noted by Mr Masling, the vast majority of irregular immigrants do not have identification documents. A number of these immigrants have been found by ASIO, after undertaking security checks, to pose a threat to security. Furthermore, Mr Masling stated that people smugglers have no real knowledge of or concern for the individuals smuggled. In such circumstances, it is reasonable for the Tribunal to find that organised people smuggling poses a serious threat to Australia's border integrity. (emphasis added) 36 The Tribunal then proceeded to answer the second question that it had posed. It referred to the applicant's adamant denials of being involved in people smuggling but concluded (at [59]): The Tribunal has given careful consideration to the open evidence and submissions by [counsel for the Director-General and the applicant]. We are not satisfied that the open evidence alone supports a finding that the Director-General could suspect on reasonable grounds that MYVC would be likely to engage in organised people smuggling. However, the Tribunal is comfortably satisfied from the closed evidence, which in our view is compelling, that the Director-General could form this view. The closed reasons for our decision, which may not be disclosed to the Applicant or otherwise published, explain our reasons for so concluding. (emphasis added) 37 Last, the Tribunal answered the third question, finding that it had been provided with extensive additional closed evidence that indicated that the applicant had also travelled extensively to facilitate people smuggling activities, although it was not clear from that evidence whether his travel was solely related to that activity or was undertaken in combination with legitimate business activities. It found that the closed evidence indicated that the applicant's involvement in people smuggling activities would be significantly limited by his not holding an Australian passport on which to travel and was satisfied that denying him that passport would have an important preventative effect on his ability to engage in people smuggling activities. It found (at [64]) that: Our conclusion in relation to the first decision under review is that we are comfortably satisfied that there is relevant and probative evidence to support an adverse security assessment in MYVC's case on the ground that if he holds an Australian passport he would be likely to engage in conduct prejudicial to the security of Australia. The evidence also supports a recommendation of 'prescribed administrative action', namely that the Minister should cancel MYVC's passport and refuse to issue him with a new passport should he reapply, in order to prevent him from engaging in such conduct. The Director-General's decision should therefore be affirmed. 38 The Tribunal then briefly considered the issue of whether the Minister's decision to act on the refusal/cancellation request should be upheld, and decided that it should. It noted that the Minister's power was a discretionary one. The Tribunal found that it was comfortably satisfied, on the basis of the closed evidence, that there were strong grounds supporting the exercise of the Minister's power in order to prevent the applicant from engaging in conduct prejudicial to the security of Australia. In those circumstances, the Tribunal affirmed both of the decisions under review. The application to amend the notice of appeal 39 The respondents objected to the applicant being granted leave to amend his notice of appeal to raise the questions of law supported by their restatement as grounds in the manner I have described above. Before the hearing, the respondents had raised in their written submissions the difficulties that they saw with the way in which the applicant's original questions of law and grounds for review had been framed and, during the course of argument, I and counsel for the respondents reiterated those concerns. 40 After the first day of the hearing, counsel for the applicant revisited the questions of law and grounds for review and produced the proposed amendment which the respondents argued still failed to satisfy the requirement of raising questions of law under s 44(1) of the AAT Act or grounds that explained why the Tribunal had erred in respect of the questions of law in its decision. 41 The principles as to what is a question of law for the purposes of s 44(1) of the AAT Act are well established. In Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 [15]-[18], Branson and Stone JJ, with whom Marshall J agreed on this point (at 67 [61]), set out the requirements for stating a question of law and grounds of appeal as follows: 15. Further, his Honour expressed the view that (at 527): it simply begs the question of law to commence it with the words "Whether the tribunal erred in law." If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. 16. We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively. 17. A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 18 AAR 9; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; 24 AAR 282). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the tribunal having regard to the requirements imposed by O 53, r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal. 18. In our view, O 53, r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated. (emphasis added) 42 The Court has repeatedly insisted upon adherence to the obligation for an applicant to state a question of law in appeals under s 44(1) of the AAT Act. Branson and Stone JJ did, however, say that form in this respect could not prevail over substance (38 AAR at 62 [29]). In Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 301 [47], Branson J observed that grounds that were simply statements to the effect that the Tribunal made the legal errors sought to be identified by the stated questions of law did not indicate how the applicant relied on the stated questions of law to support the orders sought on the appeal: see also Federal Commissioner of Taxation v Macoun (2014) ATC ¶20-476 at 16,394 [23]-[25] per Edmonds and Nicholas JJ. 43 In this case, I am doubtful that either of the questions of law as framed raise an appropriate question of law. However, like the respondents, I would prefer to decide this case on its substance, based on the points which the applicant wishes to argue. After all, as I have explained, the decisions complained of have profound and serious consequences for him, and there is no doubt that there is a significant question of statutory construction as to whether the Tribunal correctly construed and applied the statutes which governed the decision-making process that it had to follow. 44 The statutes that I have set out as part of the statutory scheme above are, to some degree, interrelated for the purposes of conferring power, and functions and providing the framework in which the decision-making complained of had to occur. 45 The task of statutory construction is a text-based activity, but questions of policy can inform the Court's task of statutory construction, as Crennan, Bell and Gageler JJ explained in Alphapharm Pty Ltd v H Lundbeck A/S (2014) 314 ALR 182 at 193 [42]. The principles of statutory construction have been lucidly and authoritatively explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]. Their Honours emphasised that the context of the provision or provisions being construed must be examined and applied. They applied what Dixon CJ had said in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, namely that: … the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. 46 They also explained that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and they said (198 CLR at 382 [70]-[71]): Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" [Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ]. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106 [89 ER 480]] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". Ground 1 47 ASIO had the function under ss 17(1)(c) and 37(1) of the ASIO Act of advising the Minister, where relevant to her functions and responsibilities, in respect of matters relating to security, including the protection of Australia's territorial and border integrity from serious threats. The latter expression, being that in paragraph (aa) of the definition of "security" in s 4 of the ASIO Act, is not a technical term, but takes its natural and ordinary meaning, as Flick and Perram JJ held in Jaffarie 313 ALR at 611 [64]. As their Honours held, the expression should not be construed in a way that would frustrate the ability of ASIO properly to monitor and assess threats to Australia's national interests. 48 ASIO had power under s 14(1) of the Passports Act to make a refusal/cancellation request to the Minister if the conditions in that section were satisfied, namely that ASIO had to suspect on reasonable grounds that if the applicant's passport were not cancelled, he would be likely to engage in conduct that might prejudice the security of Australia and that the cancellation should be made in order to prevent his engaging in that conduct. The exercise of a power under the Passports Act was prescribed administrative action for the purposes of s 35 of the ASIO Act. An adverse security assessment was a security assessment that contained, relevantly, ASIO's opinion or advice that was or could be prejudicial to the applicant and that recommended that prescribed administrative action be taken against him. 49 Here, the assessment of 9 November 2013 was a security assessment, because it was made by ASIO in writing, given to the Minister and expressed ASIO's opinion, advice and recommendation that it would be consistent with the requirements of security, including the protection of Australia's territorial and border integrity from serious threat, to take the prescribed administrative action of cancelling the applicant's passport. The prescribed administrative action here was, therefore, the action contemplated by s 14(1) of the Passports Act. 50 The interests of security are the focus of ASIO's assessment of whether it suspects, on reasonable grounds, that a person has a propensity to engage in conduct that might prejudice the security of Australia and that the cancellation of that person's passport should occur to prevent him or her from engaging in that conduct. 51 In George v Rockett (1990) 170 CLR 104 at 115-116, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ discussed the statutory criterion of suspicion on reasonable grounds. They said: Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [[1970] AC 942, at p 948], "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [(1966) 115 CLR 266], a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said [(1966) 115 CLR, at p 303]: "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors." The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (emphasis added) 52 Importantly, their Honours approved what Kitto J had said, that a suspicion that something exists is more than mere idle wondering about its existence. Rather, it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion, but without sufficient evidence. Whatever the source of the suspicion is, it has to be sufficient to create in the mind of a reasonable person an actual apprehension or fear that the matter being considered actually exists. Where a statute requires a decision maker to determine whether there is a real chance or possibility that something might happen in the future, the decision maker must estimate the likelihood that one or more events would give rise to the occurrence of that thing. In many, if not most, cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575: … what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. 53 It is therefore, ordinarily, an integral part of the process of making a determination concerning the chance of something occurring in the future that the decision-maker will arrive at conclusions concerning past events: see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ. 54 The question for ASIO was whether it should make a refusal/cancellation request under s 14 of the Passports Act. It had that function under ss 17(1)(c) and 37 of the ASIO Act. The assessment relevant to the Minister's function and responsibility of considering a cancellation or refusal request had to address whether the criteria in s 14(1) of the Passports Act had been satisfied. That assessment is not a matter that existed in the abstract under the ASIO Act divorced from any prescribed administrative action to which the assessment was connected and for which it was made. Rather, the function of ASIO in preparing the adverse security assessment necessarily was concerned with the prescribed administrative action proposed, namely the cancellation/refusal request in respect of the applicant's passport. 55 The Tribunal asked itself whether organised people smuggling could prejudice Australia's territorial and border integrity and could pose a serious threat from which that integrity should be protected and, if so, whether standing in ASIO's place as decision-maker, it could form the suspicions under each of s 14(1)(a) and (b) of the Passports Act. That process of reasoning followed the statutory scheme that the application for review of the decision to make the adverse security assessment under s 54 of the ASIO Act invoked. 56 Even if the proposed question 1 raised a question of law under s 44 of the AAT Act, that question was not the question that the Tribunal had to, and did, address. 57 In any event, the Tribunal did not find that the adverse security assessment that ASIO had made was incorrect. Section 43AAA(3) of the AAT Act required that, if the Tribunal were required to qualify an assessment as made by ASIO, it had to make a finding of error in ASIO's assessment. But here, the Tribunal found in [59] of its reasons (set out at [36] above) that the Director-General could form the view that he did, namely, that set out above. The Tribunal said in [52] of its reasons (set out at [35] above) that a number of the immigrants who had arrived irregularly without identification documents had been found by ASIO, after undertaking security checks, to pose a threat to security. Thus, it identified the nature of the relevant threat and, having regard to the earlier evidence of Mr Masling as to what those persons could do, it made a finding of fact that that threat could be a serious one. As the Tribunal said, "in such circumstances", it was reasonable to find that organised people smuggling posed a serious threat to Australia's border integrity. The Tribunal made clear that it did not accept that every irregular arrival through people smuggling posed such a threat. 58 As Flick and Perram JJ said in Jaffarie 313 ALR at 613 [73], the Tribunal's assessment had to be grounded, as I find it was here, on an objectively reasonable suspicion, based on evidence, that the threatened harm was substantial rather than negligible. Their Honours discussed (Jaffarie 313 ALR at 614-615 [76]-[81]) a syllogism that would have invalidated the Tribunal's open reasons for its decision had they stood alone and not been supplemented by the further evidence and reasons to which Mr Jaffarie and his lawyers did not have access. That syllogism was that the Tribunal's open reasons had rested on the proposition that organised people smuggling could equal a serious threat to Australia's territorial and border integrity, that the applicant was involved in organised people smuggling and that therefore, he was a serious threat to territorial and border integrity. The applicant propounded a similar argument here. 59 I reject that argument. It ignored the fact that, here, the Tribunal explained in [59] of its reasons why it concluded that the Director-General could form the view in the adverse security assessment, about which the Tribunal found no error. That was because, although the open evidence and submissions, on their own, could not support the Director-General's formation of a suspicion on reasonable grounds that the applicant would be likely to engage in organised people smuggling, the Tribunal found that the closed evidence gave a "compelling" foundation for such a conclusion. In Jaffarie 313 ALR at 615-616 [83]-[84], Flick and Perram JJ arrived at the same result, although their Honours looked at, as I was not asked to look at, the closed material that the Tribunal had considered in that case in Mr Jaffarie's absence. 60 Here, the Tribunal's reasons, so far as they could, having regard to the constraints under which it was operating, explained that it had examined the nature of the people smuggling activities in which it found that it suspected that the applicant had engaged. It formed a conclusion about those suspected activities and the threat to Australia's territorial integrity, including the fact that the applicant's suspected activities had occurred over a number of years and involved a significant number of people. 61 On the Tribunal's findings, this was not a case in which there was only one isolated alleged incident involving the applicant. Rather, the Tribunal considered his suspected involvement in what was apparently a deliberate and sustained course of conduct. The applicant did not challenge the Tribunal's findings that the closed material supported its ultimate conclusion, despite its lack of satisfaction based merely on the open material in Mr Masling's evidence concerning what the Tribunal recounted as to the nature of persons who could enter Australia through people smuggling activities. 62 The Tribunal's explanation indicated that, based on the applicant's history of people smuggling over several years involving a significant number of people and the general nature of people smuggling on a large scale, through which a smuggled person or persons might do violence in Australia in the future, ASIO, and the Tribunal in its shoes, had reasonable grounds to suspect that, if the applicant continued to hold his passport, he would be likely to engage in that conduct in the future, that that conduct might prejudice the security of Australia, and that cancellation of his passport should occur in order to prevent that happening. 63 The Tribunal asked and answered the question that I have framed (at [54] above), not the question that the applicant framed. Although the Tribunal did not answer that question in the exact way that I have discussed, its findings nevertheless answered it in substance. It arrived at its answer because of the strength and clarity of the closed evidence and its reliance on that is not challenged: Guo 191 CLR at 576-577. 64 For these reasons, I am of opinion that ground 1 must be dismissed. Moreover, in any event, the Minister was entitled to rely on the adverse security assessment informing her decision to cancel the passport. Ground 2 65 Ground 2 involved the applicant's challenge to the process through which the Tribunal examined the evidence. It is a truism that, as Dixon CJ said in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20: The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told … 66 His Honour added, relevantly for that decision, that a testator is dead and cannot tell his story. Here, as I have explained, the applicant was in the invidious position, by reason of the operation of the legislative scheme, that he did not know what the closed evidence was that was ranged against him. He argued that, because Mr Masling had not himself witnessed the activities of people smuggling of which the applicant was accused, and Mr Masling was the only witness apart from the applicant whose evidence was considered by the Tribunal or before it, there was no substantive reason for the Tribunal to give weight to, or use, Mr Masling's evidence to preponderate over the sworn denials by the applicant of the allegations of people smuggling that were made against him. 67 Moreover, the applicant complained that he had not been confronted in cross-examination before the Tribunal with anything more than the bare conclusion that he was a people smuggler. In particular, he submitted that he had not had any chance to answer any particular allegation of involvement in any incident that may have been alleged and upon which ASIO relied in making its assessment that involved people smuggling, let alone the nature of how that people smuggling might pose a serious threat to Australia's territorial and border integrity. In that unsatisfactory state of affairs, the applicant argued, the inferences or findings that the Tribunal had made against him could not be sustained as part of a fair procedure conducted in accordance with the rules of procedural fairness. He contended that, in effect, the inference that should be drawn from evidence with which he had not been confronted was that nothing that was advanced in the closed hearing could have assisted the Director-General's, or the respondents', cases against him in accordance with Jones v Dunkel 101 CLR 298. He claimed that, as a result, he had not been able to deny any instances of his asserted people smuggling activities in accordance with the requirements of Browne v Dunn, and that, in effect, the Tribunal was relying on the inexact proofs, indefinite testimony and indirect inferences based on Mr Masling's evidence and whatever else in documentary form may have been before it in closed evidence to gainsay his sworn denial of any involvement in any people smuggling activity. Consideration – Ground 2 68 Were the proceedings before the Tribunal a proceeding in a court of law, the applicant's argument may have had more force than the statutory scheme in this case permits. First, the statutory scheme subjected the Tribunal's review to the constraints that necessarily would be imposed by any decision of a Minister, in this case the Attorney-General, under s 39A of the AAT Act to issue a certificate in respect of particular matters of evidence. In Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 272 [124] and 273 [127], Weinberg, Bennett and Edmonds JJ held that, once a certificate had been issued by the Minister under s 39A, the Tribunal had no role in determining whether information or material covered by the certificate could be disclosed to an applicant in a proceeding. They found that, after a certificate had been issued, the AAT Act stated in clear terms that the Tribunal was not to disclose any of the material that was the subject of the certificate to a person in the applicant's position. 69 Their Honours noted that, hypothetically, an applicant might have a complete answer to an allegation made against him or her, but the Tribunal would never learn of that answer, that the Tribunal was not in a position to test any evidence led against the applicant, and that that position was compounded where the applicant's representative was not present because the Attorney-General had not given consent pursuant to s 39A(9) of the AAT Act (169 FCR at 274 [135]). They acknowledged a submission, by counsel for the respondent Minister in that case, that a hearing of that nature could not be characterised as fair, but that, as they held, the Tribunal operated under a statutory regime whereby the rules of procedural fairness had been specifically abrogated by the Parliament for reasons that it must have clearly regarded as compelling (169 FCR at 279 [166]). 70 More recently, in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 at 493 [152], Hayne, Crennan, Kiefel and Bell JJ, approved Crennan J's remark in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 595 [182] that: Parliament can validly legislate to exclude or modify the rules of procedural fairness … Their Honours also observed (87 ALJR at 494 [156]) that the rules of procedural fairness do not have immutably fixed content and that, as Gleeson CJ had held in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. These principles were applied in Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178 at 231 [166] per Rares and Wigney JJ and Cowdroy AJ. As was the case in Eastman, the principles of statutory construction require that the ASIO Act, Passports Act and AAT Act relating to the formation of security assessments and their review by the Tribunal be read together as a whole, having regard to the apparent purpose that the Parliament had harmonious goals for enacting that suite of complementary and interlocking legislation: Project Blue Sky 198 CLR at 381-382. 71 Here, s 33(1)(c) of the AAT Act expressly provided that the Tribunal was not bound by the rules of evidence. In my opinion, it would be wrong and artificial to impose upon it obligations that have been developed by the common law about the rules of evidence in court proceedings when the Tribunal was neither a court nor bound by the rules of evidence. The Tribunal recognised the difficulties under which it and the applicant were operating with respect to the seriousness of the findings that were open to be, and ultimately were, made against him and the significant constraints on his ability to even know, let alone answer, the material on which the adverse security assessment was based and on which the Tribunal affirmed the refusal/cancellation request under s 14(1) of the Passports Act. 72 I am of opinion that the authorities to which I have referred, in light of the provisions of the AAT Act that constrained the procedure of the Tribunal, demonstrate that the second proposed question of law and the grounds raised to support it in the applicant's amended notice of appeal do not raise a question of law and are, in effect, an attempt to seek merits review of the contents of the statutory scheme. Accordingly, the second question of law does not arise, and the grounds raised in respect of it do not support any such question of law or error in the procedure followed by the Tribunal in making its decision. 73 In any event, looking at the substance of what is complained of, I am unable to see any basis upon which it could be said that there was a question of law about how the Tribunal proceeded. It was bound by the statutory context in which it had to operate. Nothing that it did was shown to have denied to the applicant any procedural fairness to which he was entitled, having regard to the attenuation of the Tribunal's capacity to afford such fairness as recognised in Hussain 169 FCR 241. I am not satisfied that the Tribunal acted so as to create any form of practical injustice: Lam 214 CLR at 14 [37]. I accept that, unconstrained by the statutory regime, the applicant would have had every entitlement to feel that he had not been dealt with fairly, but I am unable to see how he has not been dealt with fairly according to law within the very limited context in which the statutory regime allows any fairness to him. Conclusion 74 For these reasons, I am of opinion that the application must be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 4 February 2015