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Imagereal Capture ARTICLES IS ASIO A GOOD JUDGE OF CHARACTER? SUSAN HARRIS RIMMER SIO can force the cancellation of a person’s visa This article is not arguing that ASIO should not if they are found to be a security threat under undertake national security assessments of applicants the terms of the Australian Security Intelligence who wish to enter Australia. Rather, it focuses on how Organisation Act 1979 (Cth) (the ASIO Act). This article these assessments are made and what accountability considers the impact of character in assessments of mechanisms are in place. This is especially relevant non-citizens made by ASIO under the Migration Act. now as the new citizenship laws and new employment The following questions are considered: requirements in critical industries incorporate ASIO REFERENCES • How are ASIO assessments relevant to character assessments. ASIO reports that the volume of 1. S 501 provides that a person’s visa may decisions under the Migration Act? For example, clearance work has been increasing steadily and the be cancelled if the minister considers under what provisions might ASIO trigger or compel agency is facing an additional caseload from the recent they have failed to pass the character test a visa refusal/cancellation? changes to the citizenship laws and checks for Aviation (subsection 501 (2)). The requirements Security Identity Cards (ASICs) and Maritime Security of the test are set out in ss 501 (6). If the • How often are visas refused or cancelled based on person has been sentenced to a term of ASIO assessments? Identity Cards (MSICs).5 imprisonment of 12 months or more, this constitutes a ‘substantial criminal record’, • What are the grounds on which ASIO may issue an This subject is ripe for critical assessment because which can trigger ministerial refusal (ss adverse assessment, and do these grounds represent of the temptation seen around the globe for the 501 (7)). Factors for the more general a character test? executive to use immigration law as a tool to combat category of ‘future risk to Australian citizens’, which can be taken into account • What appeal or review rights are available to those suspected terrorism instead of the ordinary criminal when exercising this discretion, are past who receive an adverse assessment and any decision justice framework, especially administrative detention and likely future conduct of the individual and deportation.6 This was clearly seen in the Dr concerned, whether strictly criminal or based thereon? merely reflecting on that person’s ‘good The case studies of the adverse ASIO assessments of Haneef case in Australia and this ‘blurring’ is the subject character’; and past or likely future two Iraqis in Nauru and of US activist Scott Parkin are of a new UN report by the Special Rapporteur on response of the Australian community, or the promotion and protection of human rights and some sector of the community, to that considered. Barrister Julian Burnside QC and solicitor person’s presence in Australia. Anne Gooley combined the situation of these three fundamental freedoms while countering terrorism, .7 2. Australian Security Intelligence litigants to launch a public interest test case in the Martin Scheinin Organisation, Report to Parliament Federal Court. The article goes on to describe the 2006- 2007, 30. ongoing court battle between these three people and ASIO assessments under the Migration Act 3. Australian Security Intelligence ASIO which seeks to determine whether a person has — character testing? Organisation, Report to Parliament 2007- 2008, 24. the right to see adverse ASIO files relating to them. The Migration Act provisions require ASIO to determine 4. Report of the Clarke Inquiry into the case The case highlights the procedural difficulties of the whether a person seeking to enter Australia is a risk to of Dr Haneef <haneefcaseinquiry.gov.au/ current process. The case will set a legal precedent if national security. For example, an ASIO clearance can be www/inquiry/rwpattach.nsf/VAP/ the applicants succeed in-gaining access to their files, (3A6790B96C927794AF1031D9395C5C refused on national security grounds because a person 20)~Volume+1 +FINAL.pdf/$file/Volume although this will not necessarily lead to increased is judged capable of committing an act of ‘politically + 1 +FINAL.pdf> at 20 March 2009.. transparency in the decision-making process. motivated violence’ in the future. There are also overtly 5. ASIO, above n 3. It should be emphasised that in contrast to character political grounds; for example, the Foreign Minister 6. Eminent Jurists Panel, Assessing Damage, refusals under the operation of section 501 of the might consider that a person will prejudice Australia’s Urging Action, 92. http://ejp.icj.org/IMG/ EJP-Report.pdf at 20 March 2009. Migration Act 1958 (Cth) , 1 adverse ASIO assessments foreign relations, or has some tenuous relationship 7. Martin Scheinin, Report by the UN Special are rare occurrences. In 2006—07, ASIO completed with weapons of mass destruction (a post-Iraq War Rapporteur on the promotion and protection 53 387 security assessments in relation to individuals amendment). In these circumstances, the Foreign of human rights and fundamental freedoms seeking entry to Australia and issued only seven Minister does have the power to cancel visas (rather while countering terrorism, A/HRC/10/3 .2 than veto decisions) under section I 16 of the Migration (2009). adverse findings In 2007-2008, the number increased to 89 290 assessments and no adverse findings.3 Act as prescribed by regulation 2.43 and the Immigration The internal process ASIO follows in making an Minister has no power to overturn this decision. assessment is not public, but it is assumed that ASIO would argue strongly that their security it follows the principles set out in the Australian assessments are not character tests. Although in the Government Protective Security Manual. It should also different context of unauthorised arrivals, a rare insight be noted that ASIO received a clean bill of health for into the role of ASIO in migration-related assessments competence and professionalism in the Report of the was gained through a parliamentary process in August Clarke Inquiry into the case of Dr Haneef released in 2002. In the course of this inquiry, then Director- December 2008.4 General of ASIO, Mr Dennis Richardson, explained that 02....AltLJ Vo I 34:2 2009 ARTICLES There is a difference in the way ASIO applies assessments to people outside Australian territory trying to get in and to those who are already here. boat people were not seen by the agency as a terrorist (except for a contempt power). The IGIS generally threat after a review of 6 000 boat arrivals: conducts inspections of agency activities and can ASIO’s role in the processing of illegal arrivals is to provide also investigate complaints. While this level of formal security assessments. We do not do character checks, nor scrutiny offers reassurance, it is notable that the only do we make assessments on character grounds. That is the accountability mechanism in this situation can offer no responsibility of the Department of Immigration. ASIO’s substantial justification or criticism of ASIO’s actions security assessments are designed to ascertain whether beyond ascertaining that they are procedurally sound. someone poses a direct or indirect threat to Australia’s The current IGIS also examines the propriety of security, being defined in the ASIO Act as: decisions, such as procedural fairness, proportionality 8. Evidence to the Joint Standing (i) espionage: Committee on Foreign Affairs, Defence and integrity of assessments." In many ways, the IGIS and Trade Human Rights Subcommittee, (ii) sabotage: fulfils the same type of function as judicial review. An Parliament of Australia, Canberra, 22 (iii) politically motivated violence; example of the complaint lodged by Mr Rhuhel Ahmed August 2002 (Dennis Richardson). (iv) promotion of communal violence; is given below. 9. Australian Broadcasting Tribunal v Bond (v) attacks on Australia’s defence system; or (1990) I70CLR32I. (vi) acts of foreign interference.8 10. Leghaei v Director-General of Security The character of Mr Rhuhel Ahmed [2005] FCA 1576. The argument is, however, that when an ASIO official I I. Inspector-General of Intelligence and is making a determination as to whether a person is The IGIS made an inquiry into ASIO’s assessment of Security ,‘Inquiry into ASIO’s assessment of likely to engage in a future act or threat of politically- Mr Rhuhel Ahmed on 12 March 2007. Mr Ahmed, Mr Rhuhel Ahmed 12 March 2007’. motivated violence in particular, questions of character a UK national, planned to visit Australia to promote 12. Ibid. the release of a new film, The Road to Guantanamo. 13. Inspector-General of Intelligence and are raised. Reflecting the High Court discussion of Security ,/G/S Annual Report 2005-06. ‘fit and proper person’ in the Bond case, ASIO is The film recounts the story of Mr Ahmed and two fellow UK nationals who were captured in Canberra. presumably undertaking its assessment based on a 14. Note Articles 9( I) and 10(1) of the combination of a person’s history of criminal conduct Afghanistan in 2001 and subsequently detained International Covenant on Civil and and general conduct, including patterns of behaviour in the US complex located at Guantanamo Bay, Political Rights (ICCPR), Article 3 of the and isolated incidents, and thus making a prediction Cuba, until their eventual release in March 2004. Convention against Torture (CAT). about how a person is likely to behave in the future.9 Mr Ahmed’s visa was refused on the basis of an adverse The scope and rigour of the inquiry will depend security assessment by ASIO* The IGIS found that the on what information is available to ASIO through assessment was properly made, but did not elaborate intelligence sources and will be influenced by the on the information or rationale behind the decision, general security risks Australia is facing at the time.
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