Mr Habib's Passport

One of the reasons why you may be refused an application for an Australian passport (even if you are a citizen) is because a competent authority suspects on reasonable grounds that you would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.

The Full Federal Court has recently refused to overturn the decision not to grant a passport to Mamdouh Habib. Mr Habib was one of two Australians who spent a considerable time in detention at Guantanamo Bay. ASIO (the Australian security service) conducted a security assessment and provided a list of reasons why Mr Habib remained a security risk. Mr Habib (and his wife) didn't help their own case by not being truthful in their first hearing in the AAT, with the court finding that:

"These untruths make us wary of Mr and Mrs Habib’s uncorroborated evidence. We consider that where their evidence conflicts with that of the respondents and there is no other evidence to support their version of events, we must prefer the evidence of the respondents."

Having found that he was lying there were two issues for the Court: firstly whether there was an obligation to disclose to Mr Habib that this finding was being used against him; and secondly having found the obligation existed, whether it was satisfied in the circumstances. The answer to both was "yes" and Mr Habib is without a passport. I can't help wondering why he didn't just argue that his past conduct was not indicative of his future conduct rather than being in denial.

Habib v Director-General of Security [2009] FCAFC 48 (24 April 2009)

Procedural Fairness

Section 359A of the Migration Act is a statutory procedural fairness provision. It requires disclosure of any information that the Tribunal (ie the MRT) "would be the reason, or a part of the reason, for affirming the decision that is under review".

There has recently been a case before the High Court in which an application for a spouse visa was refused after DIAC received information from an informant that the relationship was not genuine and was only for "migration purposes". The identity of the informant and the precise content of the information were not disclosed to the visa applicant. Ultimately, the High Court said that information of that nature need not be disclosed. The Court relied on a previous decision in VEAL where it found:

"It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."

I understand the need for confidence, but there is some room for debate on how much disclosure is required before the "substance" is known. This seems to me to be subjective and not necessarily fair at all.

You can read the whole case here: http://www.austlii.edu.au/au/cases/cth/HCA/2009/10.html