Lawyers for a man whose visa was cancelled because of an adverse Asio assessment have argued courts cannot be required to keep evidence completely secret.
The high court began hearing the man’s case on Tuesday. It challenges the federal government’s ability to keep national security information secret in merits reviews and appeals.
The Lebanese man was due to take up Australian citizenship before his visa was cancelled in August 2018 due to Asio’s assessment that he supported politically motivated violence and had used a covert phone and encrypted messaging to communicate with relatives in Syria affiliated with Islamic State.
Some of the man’s associates had been convicted of serious offences but he was found not to be involved. He denied supporting politically motivated violence or Islamic State.
The man, known as SDCV, appealed to the Administrative Appeals Tribunal and the full federal court but was only allowed an unclassified “statement of grounds” for his visa cancellation because the home affairs minister issued non-publication certificates preventing the disclosure of other evidence on national security grounds.
The man was not able to see or challenge secret evidence by the director general of Asio on which the decision was based. That evidence was heard in a closed session before the tribunal concluded the visa cancellation was justified.
In April 2021, the full federal court found the man was not denied procedural fairness or that a denial of fairness was “authorised by the restrictive legislative regime” – which stated that courts must do “all things necessary” to keep the information secret.
On Tuesday, SDCV’s counsel, Craig Lenehan, argued the constitution contains a limit that parliament cannot infringe on the “essential characteristics” of a court by requiring it to exercise functions in a way that is inconsistent with judicial power and procedural fairness.
The chief justice, Susan Kiefel, noted that where interests compete the content of procedural fairness may differ to avoid “practical injustice”.
Justice Michelle Gordon suggested the law could be at fault because it did not allow the court to “mould its own procedures” to prevent practical injustice.
Lenehan agreed, arguing the law’s “unyielding nature” meant there were no safeguards for appellants seeking to understand the evidence against them. He submitted that the law should be interpreted to require a minimum or baseline of fair process so that at least “the gist” of the evidence in question was disclosed.
“The federal court shall do all things necessary to ensure [the material] is not disclosed – except to the extent that would preclude a fair opportunity to respond to the evidence on which they rely,” he said.
Alternative safeguards canvassed included the court refusing to admit the secret evidence or appointment of special counsel with access to the full evidence to represent an appellant’s interests.
Lenehan noted the latter would still prevent the appellant directly briefing counsel about the allegedly adverse material.
The solicitor general, Stephen Donaghue, argued that the high court had already accepted that state courts could use confidential information to assess the legality of bikie clubs – and must do the same here.
Donaghue argued that if the administrative decision to cancel a visa can be made on the basis of secret information, then merits review and a later appeal should be able to be decided on the same basis.
“A fair judicial procedure is not the only public interest in play,” he said, citing the competing national security interest.
Donaghue argued that merits review was an avenue the parliament was “not obliged to provide” and, if it hadn’t, the end result would be that most appeals on the basis the decision-maker had made an error of law “would fail”.
This earned a rebuke from Gordon, who noted the “end result is not the question”, rather, the fairness of the process was.
Earlier, Justice James Edelman similarly noted the question was not whether the applicant had a “forensic advantage” but rather “whether the court is impaired” in carrying out its functions.
The hearing continues on Wednesday with scheduled interventions from the attorneys general of Queensland, New South Wales, Western Australia and South Australia.
