Is Asio a Good Judge of Character?

S 501 provides that a person's visa may be cancelled if the minister considers they have failed to pass the character test (subsection 501(2)). The requirements of the test are set out in ss 501(6). If the person has been sentenced to a term of imprisonment of 12 months or more, this constitutes a ‘substantial criminal record’, which can trigger ministerial refusal (ss 501(7)). Factors for the more general category of ‘future risk to Australian citizens’, which can be taken into account when exercising this discretion, are past and likely future conduct of the individual concerned, whether strictly criminal or merely reflecting on that person's ‘good character’; and past or likely future response of the Australian community, or some sector of the community, to that person's presence in Australia.

Australian Security Intelligence Organisation, Report to Parliament 2006–2007, 30.

Australian Security Intelligence Organisation, Report to Parliament 2007–2008, 24.

Report of the Clarke Inquiry into the case of Dr Haneef <haneefcaseinquiry.gov.au/www/inquiry/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)∼Volume+1+FINAL.pdf/$file/Volume+1+FINAL.pdf> at 20 March 2009.

ASIO , above n 3.

Eminent Jurists Panel, Assessing Damage, Urging Action, 92. http://ejp.icj.org/IMG/EJP-Report.pdf at 20 March 2009.

Scheinin Martin , Report by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/10/3 (2009).

Evidence to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Subcommittee, Parliament of Australia, Canberra, 22 August 2002 (Dennis Richardson).

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

Leghaei v Director-General of Security [2005] FCA 1576.

Inspector-General of Intelligence and Security, ‘Inquiry into ASIO's assessment of Mr Rhuhel Ahmed 12 March 2007’.

Ibid.

Inspector-General of Intelligence and Security, IGIS Annual Report 2005–06. Canberra.

Note Articles 9(1) and 10(1) of the International Covenant on Civil and Political Rights (ICCPR), Article 3 of the Convention against Torture (CAT).

Article 1F(2)(b), 1951 United Nations Convention Relating to the Status of Refugees, 189 UNTS 150, entered into force April 22 1954.

See further Marr David Wilkinson Marian , Dark Victory (2003).

Gordon Michael , ‘Last man standing’, The Age (Melbourne), 30 September 2006, 6.

Ibid

UN News Centre, ‘UN refugee agency welcomes Australian visa for long-term Iraqi refugee’, 2 February 2007.

Gordon , above n 17

UN News Centre, above n 19.

Topsfield Jewel , ‘Peace activist's deportation probed’, The Age (Melbourne), 21 September 2005.

Ibid

Jackson Andra , ‘Lawyer appeals to stop US activist's deportation’, The Age (Melbourne), 13 September 2005, 3.

Ibid

Australian Security Intelligence Organisation Act 1979, sections 37(2) and 38(2)(b).

Street Laurence Brady Martin Moroney Ken , The Street review: A review of interoperability between the AFP and its national security partners, Australian Federal Police, 2008.

Flood Philip , Report of the Inquiry into Australian Intelligence Agencies, (2004).

See further the decision of the Full Federal Court in Hussain v Minister for Foreign Affairs [2008] FCAFC 128. This involved a Full Federal Court considering a number of aspects of an AAT hearing involving ASIO security assessments in which the AAT hearing proceeded, in part, in the absence of the student whose passport had been summarily cancelled on security grounds.

The Church of Scientology v Woodward (1983), 57 ALJR 42.

Bush Caroline , ‘National security and natural justice’, (2008) Australian Institute of Administrative Law Forum No 57, 78–96, 80.

Freedom of Information Act 1982 (Cth), section 7(2A), schedule 2, part 1.

Communication with Anne Gooley, 16 May 2008.

Parkin v O'Sullivan [2006] FCA 1413.

O'Sullivan v Parkin [2006] FCA 1654.

Parkin v O'Sullivan [2007] FCA 1647.

Parkin v O'Sullivan [2007] FCA 1647.

O'Sullivan v Parkin [2008] FCAFC 134 at [35]

Communication with Anne Gooley, 19 March 2009.

Gooley Anne , ‘How ASIO is eroding the rule of law: National security is being used as an excuse to abandon the presumption of innocence. Insight’, The Age (Melbourne), 25 August 2007, 9.

Inspector-General of Intelligence and Security, ‘Unclassified Report, IGIS inquiry into ASIO's treatment of Mr Scott Parkin, 29 November 2005’.