Paul Cutler's Migration Case Law Blog

Visa cancellations on national security grounds are rare and they often raise complex issues at the intersection of procedural fairness and secret information. SDCV v Director General of Security [2022] HCA 32 was not an exception.

In 2018 (after his citizenship application was approved but before the ceremony), ASIO found that SDCV was a security risk as he had links to terrorism and had used a covert phone for some of his communications. His visa was cancelled and he unsuccessfully sought review in the AAT. The AAT conducted a partly closed hearing (without SDCV) and some “certificated” information was not disclosed to him. Open reasons affirming the decision were published along with separate “closed” reasons which were not disclosed to SDCV.

SDCV didn’t seek judicial review of the AAT decision but instead appealed the matter to the Full Federal Court under s44 AAT Act. This raised the issue which took the case to the High Court namely, whether 46(2) AAT Act was invalid. Section 46(2) says the Court will “do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”.

The High Court judgment is complicated and in the context of the short and informal nature of this blog, all I can do is give you a brief “executive summary”. There will undoubtedly be much ink spilled over this case if you are looking for something more detailed.

Whether or not 46(2)was invalid or not depended on whether there was a requirement of a minimum level of procedural fairness. This has been something which has been the subject of academic debate for a long time and it was my view (until now, at least) that procedural fairness can’t be totally excluded. However:

1. The plurality (joint judgment of Justices Kiefel, Keane and Gleeson) said there was no minimum requirement and there was no practical injustice to SDCV. Amongst other things the balance of open justice/national security is a matter for the legislature and the impartiality of the Court was not affected;
2. Justice Steward agreed that there was no universal baseline requirement but said it would only be in rare circumstances where a fair opportunity to respond would not be given. His Honour noted that there were a number of steps open to the Court (which were not taken) to ensure fairness including appointing special advocates or by disclosing confidential information to the lawyers only; and
3. There were three dissenting judgments (Justices Gaegler, Gordon and Edelman) who each published separate reasons and found that 46(2) had compulsorily excluded fairness and was invalid.

I certainly don’t think of myself as a constitutional law expert but this decision appears to me to be out of step with how I understood there was a minimum standard of procedural fairness which could not be excluded. However, for now at least, procedural fairness can be excluded. It will be interesting to see how this develops in future cases.

Creative commons acknowledgment for the photograph.