Paul Cutler's Migration Case Law Blog

Cancellation of visas on security grounds can raise many complicated issues about review rights and procedural fairness. This can be particularly difficult if the cancellation occurs offshore.

The case of Almassri v Minister [2024] FCA 1352 illustrates some of these points. Mrs Almassri is a 69 year old woman from Gaza who has 6 Australian citizen children living in Australia. In November 2023 she was granted a visitor visa. For whatever reason, she hadn’t entered Australia by April 2024.  Unfortunately by that time ASIO had conducted a security assessment of her and decided that she was a risk to security.

Judicial Review Proceedings

She started judicial review proceedings in the FCFCOA (“the Circuit Court”) and applied for an order to transfer the proceedings to the Federal Court. This was because the Circuit Court had jurisdiction in relation to the cancellation but not in respect of the ASIO assessment. The Federal Court on the other hand could review the ASIO assessment but had no jurisdiction in respect of the cancellation decision unless it was transferred to it by the Circuit Court. The matter was transferred.

Initially the proceedings sought to review the ASIO assessment and the Director General of Security was joined as a party. This part of the case was ultimately dropped.

Competing cancellation powers

The case amongst other things, highlights the differences between a cancellation under s116 as opposed to s128 Migration Act. Those two separate cancellation powers are not limited or affected by each other (s 118).

Section 116 (which can apply in or out of Australia) requires the visa holder to be given notice of the proposed cancellation and the opportunity to make submissions before the decision is made.

Section 128 (which applies outside of Australia) provides that the cancellation is made without notice to the visa holder but then provides a procedure where a revocation of the decision can be sought. The exception to that statement is that a revocation can’t occur if there are prescribed circumstances (s131(2)). Unfortunately, an adverse ASIO assessment is a prescribed circumstance because of the operation of regulations 2.48 and 2.43(2). In other words, there is no mechanism to revoke the decision.

How serious was the security issue?

The two remaining grounds of review were that the delegate didn’t take into account the nature and severity of the security risk and/or acted unreasonably. These grounds were dealt with in the following way:

61 While I accept that the nature and severity of the security risk may be regarded as an obvious matter for inquiry, I consider that it was within the legally permissible approach to the exercise of the discretion in s 128 for the delegate to choose to give such weight as he thought appropriate to the very fact that ASIO had made the adverse security assessment, without attempting to weigh the nature and severity of the risk.

62 For these reasons, I do not accept that Ms Almassri’s first ground of judicial review is established. For the avoidance of doubt, if I am wrong in my conclusion that the delegate was not legally required to have regard to the nature and severity of the particular risk posed by Ms Almassri, I would accept that the delegate did not take that matter into account.

And

75 …. the approach of the delegate has an intelligible justification and I do not think it can be characterised as illogical or legally unreasonable. Given the role and expertise of ASIO and the function served by security assessments, as well as the fact that the security assessment itself included a recommendation that the visa be cancelled, it was not irrational or unreasonable for the delegate to give the fact of the security assessment itself significant weight in favour of the cancellation of the visa.

The net result is effectively that the security assessment speaks for itself an that there is no way to revoke the decision. Administrative law decisions can be lawful but still unfair (at least in a “lay sense”).

Creative commons acknowledgment for the photograph.