BLBS and Director-General of Security and Anor - [2013] AATA 820

[2013] AATA 820

Division SECURITY APPEALS DIVISION

File Number(s)

2011/1521

Re

BLBS

APPLICANT

And

Director-General of Security

RESPONDENT

Division SECURITY APPEALS DIVISION

File Number(s)

2011/1519

Re

BLBS

APPLICANT

And

Minister for Foreign Affairs

RESPONDENT

DECISION

Tribunal
President D Kerr
Deputy President J W Constance
Senior Member G D Friedman

Date 19 November 2013

Place Melbourne

The decisions under review are affirmed.
Pursuant to s 35AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that these reasons are to be published in full only to the parties and otherwise be published only in redacted form after deleting all information which might serve to identify the applicant and that the publication of the name of the applicant be prohibited.
Pursuant to s 39B(11) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the evidence and all information given to the Tribunal in its closed hearing is not to be communicated to any person and, pursuant to s 43AAA(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that its findings relating to any matters not disclosed in these reasons are not to be given to the applicant.
........................................................................
NOTE
Pursuant to s 35AA of the Administrative Appeals Tribunal Act 1975, the Tribunal has directed that the publication of the name of the applicant be prohibited. Publication of matter identifying the applicant may be an offence.
Section 63(5) of the Administrative Appeals Tribunal Act 1975 provides the following:
Contempt of the Tribunal
A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
Catchwords
NATIONAL SECURITY—adverse security assessment—request for Minister to cancel passport and to order surrender of foreign travel documents—whether request must disclose relevant suspicion—whether Tribunal required to or should defer to the assessments and opinions of ASIO and its officers—history of independent review—standard of satisfaction required—ASIO Act—Director-General’s Security Assessment Determination No 2 as policy guidance—interpretation of Determination.
NATIONAL SECURITY—cancellation of passport and surrender of foreign travel documents—standard of satisfaction required for lawful request—“suspects on reasonable grounds”—well‑settled technical legal meaning—“would be likely to engage in conduct”—language not ambiguous or obscure—“conduct that might prejudice the security of Australia or a foreign country” —no relevance to standard of satisfaction required—conduct must be of that nature.
NATIONAL SECURITY—reviews of adverse security assessment and decisions to cancel passport and require surrender of foreign travel documents—point of time at which Tribunal is to review—when a cancellation request made by ASIO expires and is no longer valid.
NATIONAL SECURITY—“speculation” not prohibited—role of ASIO as national security organisation—adverse assessment and decisions requiring cancellation of passport and surrender of foreign travel documents.
PRACTICE AND PROCEDURE—lies—as relevant to proof of a denied contention—must relate to material issue and must be explicable only on the basis that the truth would implicate the person telling the lie.
PRACTICE AND PROCEDURE—requirements for reasoning to a circumstantial conclusion.
Legislation
Administrative Appeals Tribunal Act 1975 ss 35AA, 39A(9)(b), 39B(11), 43AAA
Australian Citizenship Act 2007 s 17(4)
Australian Passports Act 2005 s 14
Australian Security Intelligence Organisation Act 1956
Australian Security Intelligence Organisation Act1979 ss 4, 17(1), 35(1), 37
Foreign Passports (Law Enforcement and Security) Act 2005 s 15
Cases
A v Hayden (1984) 156 CLR 532
A & Ors v Secretary of State for the Home Department [2005] 2 AC 68
A v United Kingdom (2009) 49 EHRR 29
Al Rawi v Security Service [2012] 1 AC 531
Alister v The Queen (1984) 154 CLR 404
BLBS and Director-General of Security (2012) 129 ALD 380
Comcare v Martinez [2013] FCA 439
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634
Edwards v The Queen (1993) 178 CLR 193
George v Rockett (1990) 170 CLR 104
Habib v Minister for Foreign Affairs (2010) 192 FCR 148
Leahy v Barnes [2013] QSC 226
Leghaei v Director-General of Security [2007] FCAFC 37
R v Lodhi (2006) 199 FLR 270
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Minister for Immigration and Citizenship v Anochie (2012) 299 ALR 280
Pacific Century Production Pty Ltd v Watson [2001] FCA 1139
RJCG v Director-General of Security [2013] FCA 269
Schnable v Lui [2002] NSWSC 1184
Secretary of State for the Home Department v AF [2009] UKHL 28
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Summers v Repatriation Commission [2012] FCAFC 104
TCXG and Director-General of Security [2013] AATA 377
Zoneff v The Queen (2000) 200 CLR 234
Secondary Materials
Australian Passport Determination 2005 paragraph 3.4(3)
Report of the Royal Commission on Intelligence and Security (1979)
Second reading speech, Security Intelligence Organization Bill 1979, Hansard House of Representatives 22 May 1979 pp 2174-5
Security Assessment Determination No 2¸ 28 July 2010
REASONS FOR DECISION
INTRODUCTION
On [redacted] 2010 the applicant, BLBS was at the Melbourne International Airport expecting to travel on a flight to [redacted]. His travel bookings showed him then travelling to Sanaa, Yemen, in mid-October 2010 with a return leg to Australia scheduled for mid-March 2011. BLBS was a [redacted] year old Australian-born citizen. He believed he held a valid Australian passport.
However, BLBS’s plan to travel to Yemen had come to the attention of the Australian Security Intelligence Organisation (ASIO). Yemen provides numerous opportunities for militant jihadist training, fighting and facilitation of travel to other conflict areas. ASIO assessed that if BLBS was allowed to travel “he would likely become involved in activities that are, or are likely to be, prejudicial to the security of Australia or a foreign country”.
The Director-General of Security wrote to the Minister for Foreign Affairs to inform the Minister about ASIO’s security assessment. The Director-General asked the Minister to cancel BLBS’s passport and to order the surrender of his [redacted] foreign travel documents. The Minister accepted those recommendations and made decisions accordingly. This was unknown to the applicant.
The upshot was that when BLBS presented at the airport, instead of being allowed to board his flight he was taken aside; his luggage was searched and some items seized. He was subjected to a lengthy interview and ordered to surrender his passport and his [redacted] identity documents. He handed those documents to the Australian Federal Police (AFP).
This matter comes before the Administrative Appeals Tribunal because BLBS sought review of ASIO’s adverse assessment and of the decisions made by the Minister for Foreign Affairs. The Tribunal’s jurisdiction to review ASIO’s security assessment and the Minister for Foreign Affairs’ decisions is uncontroversial. ASIO’s security assessment of BLBS is reviewable under s 54 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) as an “adverse security assessment” because it formed the basis for ASIO’s request under the Australian Passports Act 2005 (Passports Act) for the cancellation of BLBS’s passport. It is also reviewable under s 54 as a “qualified security assessment” because it was advice prejudicial to the interests of BLBS given to the Minister administering the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act). Each of the decisions made by the Minister for Foreign Affairs are reviewable pursuant to s 50(1) of the Passports Act and s 23(1) of the Foreign Passports Act respectively.
The Tribunal is obliged to provide reasons for its decisions. How that should be done in matters coming before the Security Appeals Division was discussed and explained in TCXG and Director-General of Security [2013] AATA 377. It is not necessary to repeat that discussion. The “Open Findings” of the Tribunal must not disclose any matters which have been the subject of a certificate issued by the Attorney-General and heard in the absence of the applicant. However, the Tribunal’s “Closed Findings” must evaluate and take into account that evidence.
THE LAW TO BE APPLIED
Pursuant to s 17(1) of the ASIO Act, the functions of ASIO include:
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.
Section 37(1) states:
The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
Section 37(2) requires that an adverse or qualified security assessment be accompanied by a statement of grounds for the assessment.
Section 4 defines “security” as meaning:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from…
(iii) politically motivated violence;
…
whether directed from, or committed within, Australia or not;
“Politically motivated violence” is defined in s 4 to mean:
(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or…
Section 14 of the Passports Act provides, relevantly, that:
(1) If a competent authority suspects on reasonable grounds that:
(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
...; and
(b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.
(2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.

(3) In this section:

"competent authority"
:

...

(b) in relation to a circumstance mentioned in subsection (1) that relates to a foreign country, means:

...
(iii) an agency (within the meaning of the Financial Management and Accountability Act 1997) that is specified in a Minister's determination as a competent authority in relation to the circumstance.
ASIO has been specified to be such an agency pursuant to paragraph 3.4(3) of the Australian Passport Determination 2005.
Section 15 of the Foreign Passports Act is expressed in similar terms to s 14 of the Passports Act save that its operation is in respect of a demand for surrender of a person’s foreign travel documents rather than the refusal or cancellation of an Australian passport.
PRELIMINARY ISSUE # 1
DID ASIO’S REQUESTS TO THE MINISTER FOR FOREIGN AFFAIRS COMPLY WITH THE LAW?
On 8 September 2010 the Director-General wrote to the Secretary of the Department of Foreign Affairs and Trade to advise him that ASIO had made a security assessment of BLBS and that:
ASIO wishes to make a refusal/cancellation request for the purposes of section 14 of the Australian Passports Act 2005 (Cth) in relation to [BLBS].
Based on our current information, ASIO suspects on reasonable grounds that if [BLBS] holds an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
In the same letter the Director-General advised:
ASIO wishes to request under subsection 15(1) of the Foreign Passports (Law Enforcement and Security) Act 2005 that [BLBS] be ordered to surrender his [redacted] passport.
Under subsection 15(1) of the Foreign Passports (Law Enforcement and Security) Act 2005, ASIO if it suspects on reasonable grounds that [BLBS] would be likely to engage in conduct that might prejudice the security of Australia or a foreign country and he should be required to surrender his foreign travel documents in order to prevent him from engaging in that conduct, may request the Minister to order the surrender of [BLBS’s] [redacted] foreign travel document(s).
No point was taken at the hearing regarding whether those requests complied with what was required of a valid request under the provisions of s 14(1) of the Passports Act and s 15(1) of the Foreign Passports Act respectively.
However, as Summers v Repatriation Commission [2012] FCAFC 104 makes clear, where the materials before the Tribunal reveal a relevant issue, the Tribunal is not excused from considering it.
In the course of preparing these reasons the Tribunal became aware of such a relevant issue, namely:
(1) In respect of his request under the Passports Act the Director-General had omitted to say anything applicable to the requirements of s 14(1)(b).
(2) In respect of his request under the Foreign Passports Act the Director-General had not in terms asserted that ASIO held the suspicion that s15(1)(b) refers to.
To comply with the requirements of procedural fairness the Tribunal invited the parties to provide written submissions directed to the questions set out below:
(a) Was the holding of a relevant suspicion by ASIO a jurisdictional fact required for the exercise of any power by the Minister for Foreign Affairs?
(b) Did ASIO have to inform the Minister for Foreign Affairs that it held the relevant suspicion? If so, does the material and evidence before the Tribunal show that the Minister for Foreign Affairs was informed that ASIO held the relevant suspicion? If not, is it sufficient that the relevant suspicion was, as a matter of fact, held by ASIO, albeit not communicated in terms to the Minister for Foreign Affairs?
The Tribunal received submissions from both parties. The respondents submitted that the letter from the Director-General of Security of 8 September 2010, read with the Security Assessment and Statement of Grounds it enclosed, clearly met the definition of a “refusal/cancellation request” and that there was no basis for imposing any additional requirement in relation to what the Minister was told in making such a request, how the Minister was notified of such a request or any other matter.
Mr Johns and Ms Morgan for the applicant submitted that the holding of the relevant suspicion was an integral part of the trigger for the Minister’s exercise of power pursuant to s 22 of the Passports Act but conceded that it would be sufficient if the relevant suspicion was in fact held by ASIO, albeit not communicated to the Minister.
Consistent with that concession the Tribunal concludes that the critical jurisdictional fact conditioning any exercise of the Minister’s power to make a cancellation/refusal decision under the Passports Act is that the relevant suspicion be held by ASIO whether or not it has been communicated in terms to the Minister.
However, we do not wish to be taken as accepting that a failure to provide details of the nature of the suspicion is otherwise immaterial. The power to cancel or to refuse to issue a passport is discretionary—see the discussion below under PRELIMINARY ISSUE #3. It is the Minister’s decision, not ASIO’s to take that step—it is not self-executing. The Minister for Foreign Affairs is required to satisfy him or herself of the circumstances in which his or her decision is to be made. If ASIO has not sufficiently communicated to the Minister the nature of its suspicions that statutory duty cannot be performed. However, we are satisfied, in the present case, given the content of the letter from the Director-General of Security of 8 September 2010, read with the Security Assessment and Statement of Grounds it enclosed, that the nature of ASIO’s suspicions was adequately conveyed albeit not strictly in terms of the language of the legislation.
The balance of the parties’ submissions were directed to whether in fact ASIO had in fact a basis for its suspicions. We deal with that point substantively in these reasons and need not discuss it further as a preliminary issue.
PRELIMINARY ISSUE #2
IS THE TRIBUNAL REQUIRED TO DEFER TO THE ASSESSMENTS AND OPINIONS OF ASIO AND ITS OFFICERS?
Counsel for the respondents drew the Tribunal’s attention to the fact that Australian courts, when considering public interest immunity, have repeatedly emphasised the significance which must be given to the views of senior government officials on matters of national security.
Mr Berger’s written submissions referred the Tribunal to a number of judicial holdings to that effect. He cited Alister v The Queen (1984) 154 CLR 404 per Wilson and Dawson JJ at 435; per Brennan J at 455 who acknowledged that a court is “ill equipped itself to evaluate pieces of evidence obtained by ASIO”; A v Hayden (1984) 156 CLR 532 per Wilson and Dawson JJ at 574; R v Lodhi (2006) 199 FLR 270 per Whealy J at [32] and Leghaei v Director-General of Security [2007] FCAFC 37 in which Tamberlin, Stone and Jacobson JJ at [58] approved of the speech of Lord Nicholls in A & Ors v Secretary of State for the Home Department [2005] 2 AC 68 where his Lordship held at [79]:
All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility.
Mr Berger submitted that those principles applied equally to matters to be determined in the Tribunal.
However, that submission misapprehends the respective constitutional and legal position of courts and this Tribunal. The function of this Tribunal when exercising the very merits review function Parliament has assigned to it is not analogous to judicial review. When the AAT exercises a jurisdiction in the Security Appeals Division, it is exercising executive not judicial power.
Independent review of ASIO’s decisions was first introduced as a part of a package of reforms passed by the Parliament in 1979 following the report of the Royal Commission on Intelligence and Security constituted by Justice Hope. It is no disrespect to ASIO under its current leadership to recognise that Justice Hope identified significant community disquiet and concern regarding the accountability of ASIO. The findings of the Hope Report led the then government to repeal the former Australian Security Intelligence Organisation Act 1956 and to replace it with a new Act.
One of the key reforms introduced in 1979 was the establishment of an independent tribunal to give persons subject to adverse security assessments a right to have them reviewed. Speaking on the second reading of the Security Intelligence Organization Bill 1979 the then Minister assisting the Prime Minister, Mr Viner, stated:[1]
A further major consideration is the creation in Part IV of the Bill of a totally new statutory framework for the preparation and communication of ASIO security assessments in respect of individuals and the giving to most persons affected by prejudicial security assessments of a right of appeal to a tribunal presided over by a judge. The effect of this Part is that, where a security assessment has been made in respect of an employee of the Commonwealth or a Commonwealth contractor or, broadly speaking, in respect of a person for the purposes of the Migration Act 1958, the Australian Citizenship Act 1948 or the Passports Act 1938, that contains an opinion or information prejudicial to his interests, that person must ordinarily be given notice of the assessment. Further, the person will be given a right by this Bill to appeal to a tribunal to be presided over by a judge where the assessment will be reviewed. Commonwealth departments and other agencies will be required by the Bill to treat the findings of the tribunal as superseding the assessment. In determining the procedures to be followed by the tribunal, regard has had to be had to the special needs of security, particularly preservation of secrecy as to identity of informants. Thus, confrontation between the parties to the appeal is not possible but special provision is made to ensure that an appellant is not thereby prejudiced.
[1] Hansard House of Representatives 22 May 1979 pp 2174-5.

The basic structure of the 1979 reforms has endured until the present although the function of review Mr Viner referred to has been transferred to the Security Appeals Division of the AAT.[2]
[2] Division III of the Australian Security and Intelligence Organisation Act 1979 originally conferred those powers on the then Security Appeals Tribunal. When the Security Appeals Tribunal was abolished the role it had fulfilled was transferred to the Security Appeals Division of the AAT.
In Habib v Minister for Foreign Affairs (2010) 192 FCR 148 at [45]-[46] Flick J observed:
Given the entitlement of an Australian citizen conferred by s 7 of the Australian Passports Act to be issued with an Australian passport on application being made, a decision refusing to issue such a passport pursuant to s 14(2) at the request of a competent authority is a most serious encroachment upon that entitlement.
And a legislative regime which authorises the making of a decision refusing to issue a passport upon the basis of information which may not be disclosed in its entirety to an applicant is truly worrying. An adverse decision may be made upon the basis of information which may well be susceptible to explanation if exposed to scrutiny: cf Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [135].
Parliament explicitly conferred jurisdiction upon this Tribunal to review adverse assessments to ensure that citizens would have confidence in their lawfulness and justification. If, cumulative upon the inherent disadvantages referred to by Flick J, the Tribunal agreed to defer to the opinions, findings and assessments of the staff of the Organisation whose decisions it is charged with reviewing, the Tribunal’s function would be devalued and its credibility could not be maintained.
There are relatively few, and fewer successful, applications made to the Security Appeals Division—which, when ASIO is acting lawfully and making sound assessments, is exactly as it should be. But if those who are subject to adverse assessments, and the community more generally, thought that the Tribunal would not submit every challenged assessment to independent and rigorous examination, the low rate of successful applications could come to be seen in a very different light.
Mr Berger did not rely on the terms of the ASIO Act or the AAT Act in support of his submission by way of analogy to judicial proceedings. The analogy fails not merely because its misapprehends their different constitutional positions—it is inapt in so far as it relies on the proposition that the Tribunal is not equipped to undertake its statutory function.
Unlike a court, in the Security Appeals Division, this Tribunal has access to all the relevant classified materials. The proceedings in the present matter extended over five days. That permitted the classified material and evidence to be closely examined with its security significance explained by witnesses and counsel for ASIO. The Tribunal can rigorously test classified materials in this Division while keeping those materials secret. If the Tribunal’s conclusions differ from those submitted for by the respondents, the Tribunal must provide reasons. If they involve a finding that information in an assessment upon which a conclusion is based should be superseded, the Tribunal must state its findings in the terms of s 43AAA(3). No special rules are needed to engender respect for the Director-General and officers of ASIO. The Tribunal has often found occasion to acknowledge the professionalism, fairness and thoroughness of the witnesses for ASIO.
To accept the respondents’ submission would be inconsistent with the legal duty the Parliament has imposed on the Tribunal. For the reasons stated above we reject it.
PRELIMINARY ISSUE # 3
IF THE TRIBUNAL IS NOT PERSUADED TO SET ASIDE ASIO’S ADVERSE ASSESSMENT CAN IT NOTWITHSTANDING LAWFULLY SET ASIDE A CONSEQUENTIAL DECISION MADE BY THE MINISTER FOR FOREIGN AFFAIRS UNDER THE PASSPORTS ACT OR THE FORIGN PASSPORTS ACT?
In TCXG and Director-General of Security [2013] AATA 284, which was similarly a passport cancellation matter, counsel for the respondents submitted that if the Tribunal was not persuaded to set aside ASIO’s adverse security assessment there could be no legal or factual foundation to set aside any consequential decision made under the Passports Act. TCXG’s lawyer conceded that point. At [28] the Tribunal accepted the applicant’s concession.
In the present matter BLBS was represented by Mr Johns and Ms Morgan of counsel. Mr Johns made no such concession and in his response Mr Berger accepted that the power of the Minister for Foreign Affairs to cancel a passport or require the surrender of a foreign travel document requires compliance with the specific statutory language of s 14 of the Passports Act and s 15 of the Foreign Passports Act. Mr Berger submitted that the power was discretionary and acknowledged that there could be instances, such as where a person wanted to visit a dying relative, where the correct and preferable decision might be to reject an otherwise valid cancellation request made by ASIO. Reasons of foreign policy may also be material to the Minister’s decision. We have concluded, with the benefit of argument, that the statement at [28] of TCXG incorrectly expresses the law.
In the present case BLBS seeks review both of ASIO’s adverse assessment and of the Minister’s two decisions. That assessment and those decisions are legally distinct matters.
Given that the evidence was not all one way, the Tribunal had to proceed on the basis that its findings hypothetically would differ for each legally distinct matter depending on the proper understanding of the law governing the degree of satisfaction required. The degree of satisfaction each warranted was the subject of extensive written and oral submissions. To do justice to counsel we have set out our reasoning and conclusions in some detail below.
THE LAW GOVERNING ASIO’S ADVERSE SECURITY ASSESSMENT
Because BLBS is an Australian citizen ASIO was required, pursuant to s 37(2) of the ASIO Act to accompany the adverse assessment it made with a statement containing all information it had relied upon in making the assessment other than information that would, in the opinion of the Director-General, be contrary to the requirements of security. That information was then deemed to form part of its assessment. ASIO was required to give its assessment to BLBS.
The unclassified adverse security assessment which was given to BLBS revealed very little. It informed him that ASIO was aware of his intention to travel to Yemen and that ASIO had assessed that “should [BLBS] be allowed to travel he would likely become involved in activities that are, or are likely to be, prejudicial to the security of Australia and/or a foreign country or countries”. Much of the information ASIO relied on in coming to that assessment was available only in the un-redacted version available to the Tribunal. Counsel for BLBS took no issue regarding the adequacy of the redacted assessment that was provided to BLBS.[3]
[3] See below at [85].
Standard of satisfaction: the ASIO Act
Nothing in the ASIO Act expressly sets out the standard of proof that ASIO is required to apply when making an adverse security assessment but, of course, the Organisation’s powers cannot be exercised capriciously.
The twin requirements of s 37 that an adverse security assessment must set out the grounds for the assessment and must contain all the information ASIO has relied on (which is deemed to be part of the assessment), when read together with the requirement in s 38 that any person who is subject to an adverse security assessment be given a notice in writing together with a copy of that adverse assessment so that they can exercise a right of merits review to this Tribunal, necessarily implies that ASIO’s decisions must be made on rational grounds.
Having regard to the terms of ss 37 and 38 we are of the opinion that it is implicit that the degree of satisfaction required for the making of an assessment must account for the circumstance that such an assessment may have initiated the loss of important rights.
For example, an adverse assessment, unless set aside by the Tribunal, can be the trigger for administrative action which denies a citizen the right to hold employment in a Commonwealth department or agency, or, in a case such as the present, the capacity to travel overseas. In triggering such consequences, the ASIO Act, albeit for highly relevant and fully justified reasons, makes an exception to the principle that liberty is not a gift of the government but a right of the governed.
We think it necessarily implicit that the ASIO Act permits this only if ASIO has a plausible basis, on objectively defensible grounds, that the decision is justified. While the degree of satisfaction required is not prescribed by the Act, the scheme of the Act is posited on ASIO being entitled to make an adverse assessment only if it possesses such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion(s) arrived at. We find that to be the minimum standard the ASIO Act requires.
We think it unhelpful to express that requirement prescriptively as a “standard of proof”. The confidence level that a reasonable mind would accept as adequate to support a conclusion that an adverse assessment ought be made by ASIO will necessarily differ depending on the nature of the realm of assessment,[4] the nature of the rights affected[5] and the risks and dangers relevant to the assessment.[6]
[4] Ranging from decisions to relocate persons in immigration detention to exports of defence and strategic goods.
[5] Ranging from rights usually taken for granted as aspects of citizenship to those which are commercial in nature or those which apply to non-citizens.
[6] Dangers can range from espionage to threats of domestic or international terrorism. Risks range from high to low.
ASIO policy—the Director-General’s Determination
Section 37(3) of the ASIO Act authorises regulations prescribing what matters are to be taken into account and how those matters are to be taken into account, and what matters are not to be taken into account, in making such assessments. To date no regulations have been made.
In the absence of such regulations s 37(4) of the ASIO Act permits matters of that kind to be determined by the Director-General in consultation with the Minister “but nothing in this subsection affects the power of the Tribunal”.
On 28 July 2010 the Director-General made Security Assessment Determination No 2 (the Determination). The Determination is stated to apply to a long and non-exhaustive list of areas of decision making (including passport refusals) if the assessment process is likely to result in an adverse security assessment.
Clause 7.2.1 of the Determination states that in deciding the threshold for an adverse assessment, the decision maker should take into account any relevant legislative test which will be used by the agency receiving the security assessment.
Clause 7.2.5(b) then provides:
Any finding or conclusion in an assessment (whether intermediate or final) which is adverse to the assessment subject should be judged to be at least likely.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634 is authority for the proposition that while the Tribunal as a matter of law remains free to apply a Ministerial policy or not in reaching the correct or preferable decision in each case on the material before it, such policy statements can furnish assistance in arriving at the preferable decision.
We think we should apply the policy disclosed in the Determination similarly to the way Ministerial policy was discussed in Re Drake notwithstanding that the Determination was made by the Director-General rather than a Minister, is not subject to Parliamentary scrutiny and much of its content cannot be known to the public because it remains classified for security reasons. These factors differ from those in Re Drake, but because Parliament has conferred the power to make such determinations on the Director-General in consultation with the Minister we think there is sufficient similarity not to reject its applicability. While s 37(4) of the ASIO Act is explicit that the Determination is not binding upon the Tribunal we think that does not prevent our deciding this matter consistently with the policy of the Direction unless persuaded that the policy expressed in the Determination is inconsistent with the ASIO Act or would produce an unjust outcome in the circumstances of a particular case. Subject to the observation below we discern no reason to regard the policy expressed in the Determination as in any way inconsistent with the ASIO Act.
Is the meaning of “likely” in cl 7.2.5(b) of the Director-General’s Determination No 2 governed by cl 5(m)(ii)?
In written submissions Mr Berger argued that cl 5(m)(ii) of the Determination governs the interpretation that the Tribunal should give to cl 7.2.5(b) of the Determination. Clause 5(m)(ii) provides that, for the purposes of cll 6 and 7 of the Determination the expression likely to be is to be interpreted as below:
The ‘likely to be’ test is met if the decision maker is of the opinion that there is a real, and not remote, possibility that the risk could occur. It is not necessary that the risk is ‘more likely than not’ to occur.
On the basis of the parts of the Determination that were available to BLBS in redacted form it is far from self-evident that that submission should be accepted. The phrase likely to be does not appear in cl 7.2.5(b). It is impossible in any ordinary grammatical way to directly substitute the “interpretation” which cl 5(m)(ii) requires be conveyed by the phrase likely to be, into the language of cl 7.2.5(b).
The submission is even more difficult to sustain when regard is had to the Determination in its un-redacted form. The Tribunal cannot reveal the substance of the redacted parts of the Determination but notes that in both cl 6.2.2(i)(a)(2) and cl 6.2.2(iv)(a)(2) the actual words and form of the defined term likely to be are found. Where those words appear they are underlined, as they are in cl 5(m)(ii). Some phrases closely similar to the defined term (such as is likely to) also appear in the Determination identified by underlining as, for example, in cl 6.2.2(iv)(a)(1). Their appearance with underlining appears to reflect the intention that they too should be read as defined terms.
By contrast, the word “likely” appears without underlining.
It is true that the word “likely” in cl 7.2.5(b) is in italics and that the word “likely” is the only approximation to a “test term” that appears in cl 7. However, there are other words in the Determination that also appear in italics that are not defined terms.
The Determination may not have been drafted with the precision of an act or regulation but it is a significant legal instrument made by the Director-General. It is binding on officers of ASIO carrying out their statutory functions. The ASIO Act required the Director-General to consult with the Minister before it was promulgated. It is reasonable to assume that the Determination was the subject of extensive and careful scrutiny before it was published and we take notice of the fact, from our own knowledge, that ASIO has extensive legal resources. It is difficult to attribute the different appearance of the word “likely” to carelessness.
Instead, the fact that “likely” is not underlined suggests that italics were used in cl 7.2.5(b) simply for emphasis.[7] So understood the words “at least likely” highlight that at the fifth and final stage, before making any adverse or qualified assessment, notwithstanding that to that point an assessment had met all the tests and thresholds which the operative parts of the Determination require, an ASIO officer must yet apply a final check. The finding or conclusion must be judged at least likely.
[7] The words “real, and not remote” and “not necessary” are similarly italicised for emphasis in cl 5(m)(ii).
Because Mr Berger’s opponent could not identify or contest the point because the critical language of the Determination was redacted,[8] we express our views without the benefit of argument but, subject to that caveat, the Tribunal concludes that the word likely in cl 7.2.5(b) was used in its ordinary sense and does not require further embellishment in order to apply the policy of the Determination.[9]
[8] It was not possible, when this issue emerged during our decision making, to do what procedural fairness would ordinarily have required by way of seeking further submissions from the parties. The applicant could not be provided with the critical redacted parts of the document.
[9] Mr Berger referred the Tribunal to a number of cases regarding the meaning to be given to the word “likely” including Pacific Century Production Pty Ltd v Watson [2001] FCA 1139. However, the word ‘likely’ as a word of ordinary usage is capable, depending on its context, of conveying various shades of meaning. In understanding its meaning as conveyed in the Direction we think it unhelpful to transplant meanings derived from other statutory contexts: see Minister for Immigration and Citizenship v Anochie (2012) 299 ALR 280 at [77]-[80] per Perram J. Similar caution needs to be applied to the dictionary meanings of words: see Comcare v Martinez [2013] FCA 439 at [68] per Robertson J.
Is this a dispute about a distinction without a difference?
The expression “at least likely” in cl 7.2.5(b), used in its ordinary sense but read in context as part of the Determination, does not in our opinion, convey the meaning of “more likely than not”. A possibility supported by such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion that the event foreshadowed is plausibly and plainly foreseeable, would be understood, in that context, to come within what the Tribunal understands to be the ordinary meaning of the expression “at least likely”.
Accordingly if the words in cl 5(m)(ii) of the Determination “a real, and not remote, possibility,” that Mr Berger submits define what likely means, are understood to refer to a possibility which is not remote and that must be supported by such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion that the event ASIO foreshadows is plausibly and plainly foreseeable, the issue of interpretation raised by Mr Berger disappears as an issue of substance and becomes a debate about a textual distinction without a substantive difference.
On the assumption that we are in error in rejecting Mr Berger’s submissions regarding the construction of the Determination, we are of the opinion that the expression a “real possibility” referred to in cl 5(m) should be understood as referred to in [63]-[64] above. So construed, cl 5(m)(ii) would not change the meaning, or lessen the importance, of the final check required by cl 7.2.5(b) at the fifth and final stage.
We also note that the Determination requires that any adverse assessment must be judged “at least likely” (our emphasis). We need not consider whether, had we come to a different construction of the Determination, having regard to the conclusion the Tribunal has expressed at [46], there may have been be an issue of inconsistency as between the policy and the ASIO Act.
Is speculation prohibited?
We reject Mr Johns’ submissions that ASIO is prohibited from engaging in “speculation”. We accept that “mere speculation” can never form the basis of an adverse assessment but, as an intelligence agency, ASIO’s fundamental task is not to search out past misconduct. ASIO exists to anticipate and help prevent future dangers. Inevitably the prediction of future events must involve speculation—understood in a neutral, not pejorative sense. Certainty will rarely, if ever, be attainable. All that is required is that any prediction of future events contained in an adverse assessment must be well informed; the reasoning supporting the prediction must be rational and inferences must be based on sound foundations. Reasoned speculative foresight is not prohibited.
THE LAW GOVERNING THE MINISTER FOR FOREIGN AFFAIRS’ POWER UNDER THE PASSPORTS ACT AND THE FOREIGN PASSPORTS ACT

Section 14(1) of the Passports Act relevantly commences:
If [ASIO] suspects on reasonable grounds that:
(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
...; and
(b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;
When both such suspicions are held ASIO can request the Minister for Foreign Affairs to cancel, or refuse to issue a citizen with, an Australian passport. A valid request enlivens the Minister’s power to do so.
Section 15 of the Foreign Passports Act is expressed similarly with respect to the surrender of foreign travel documents. To avoid repetition for the balance of these reasons, unless the context requires attention to different considerations, we will refer only to the Passports Act but our reasoning applies equally to the Foreign Passports Act.
The submissions of the parties regarding the standard of satisfaction required by s 14(1) of the Passports Act.
Mr Berger submitted that the terms of s 14(1) of the Passports Act require consideration of three key phrases: “suspects on reasonable grounds”, “would be likely”, and “might prejudice…security.” His “Outline of Closing Submissions” provided a detailed analysis of each of those terms. That analysis dissected each term to discern its meaning in the light of the explanatory memorandum, the dictionary definitions of the words used and decided cases that had discussed them in other statutory contexts. Mr Berger submitted that, so understood, each required a low or very low threshold of satisfaction. Aggregating their individual meanings into a single “overall threshold” Mr Berger submitted that the test provided for in s 14(1) would be met “if there was some basis for an actual apprehension that, if the applicant’s Australian passport was not cancelled and his foreign travel document was not surrendered, there was more than an insubstantial or negligible risk (in the order of 10% or less) that he might engage in politically motivated violence either in Australia or overseas”.
Mr Johns and Ms Morgan for BLBS disputed that analysis and conclusion and submitted that the breadth and application of the word “likely” in s 14(1) was crucial. The legislation required balancing the risks to security alongside the right of a citizen to hold a passport and exercise the freedom to travel. Accordingly “likely” must mean something more than a “real and not remote possibility”. A “substantial likelihood” was a preferable approximation to the phrase “would be likely to” than the expression a “real and not remote possibility”. A passport could not be refused unless ASIO could demonstrate that there were reasonable grounds to believe that there was a substantial likelihood that the suspected conduct would be undertaken by BLBS. Section 14(1)(b) required the Director-General to balance the encroachment on BLBS’s entitlement to a passport at that level of likelihood of risk.
The Tribunal’s view: the principles of statutory interpretation that apply
The Tribunal has gained little or no assistance from these contesting submissions. Each pressed the Tribunal, with only modest regard to context, to put a gloss on the words of the statute. That is impermissible. The evolution of judicial authority regarding statutory interpretation since McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 emphasises that the first task of a court or tribunal faced with applying a statute is to give effect to the actual language used by the Parliament read in its context as part of an Act as a whole, rather than giving effect to an adaption of that language whether derived from dictionaries or other cases. Consistent with that approach Hayne and Heydon JJ observed in Shi v Migration Agents Registration Authority:
decided cases or other secondary materials must not be permitted to distract attention from the language of the applicable statute or statutes.[10]
[10] (2008) 235 CLR 286 at [92].
Courts and tribunals are entitled to gain assistance from legislative history, second reading speeches, explanatory memoranda, dictionaries and analogies from other cases where there is ambiguity—but if the Parliament’s meaning can be understood by giving effect to the words Parliament has enacted and there is no ambiguity suggested by their context in the statute read as whole that is the end of the matter.
The language used by the Parliament in s 14(1) of the Passports Act is not ambiguous or obscure. That some of the ordinary English words enacted by the Parliament are capable of conveying different shades of meaning does not mean the statutory language employed is ambiguous. Their meaning can be, and therefore is required to be, discerned from their statutory context as part of the Passports Act read as a whole. That can be done without recourse to extrinsic materials.[11]
[11] Both parties referred the Tribunal to the reasoning of Deputy President Forgie in BLBS and Director-General of Security (2012) 129 ALD 380; [2012] AATA 464 at [120]-[142]. Without adopting all of what the learned Deputy President stated in that interlocutory decision we are in full agreement with the learned Deputy President’s conclusion at [140] that there is no ambiguity or obscurity in the meaning of these words in their context. We also agree the Deputy President correctly concluded at [141]-[142] that even if reference to the Explanatory Memorandum was permissible under s15AB(1)(a) of the Acts Interpretation Act 1901 it cannot assist in the proper construction of these provisions. What it states fails to mesh with the words actually used in the Passports Act because it omits any reference to the word ‘would.’ We reject substituting the words of the Act with a gloss from the Explanatory Memorandum. While the language enacted by the Parliament includes words which have been described as ‘slippery’ (Schnable v Lui [2002] NSWSC 1184 per Hamilton J at [15-[16]) a like observation can be made of the words in the Explanatory Memorandum. A submission that these words in the Passports Act should be read in the terms of an Explanatory Memorandum which itself needs interpretation is unhelpful. It is not the Explanatory Memorandum that needs to be understood: what needs to be understood is the language that Parliament enacted.
We except from these observations the Parliament’s use of the phrase “suspects on reasonable grounds.” That is because, in Australian jurisprudence, those words, where used to express a required degree of satisfaction, have a well-settled technical legal meaning and there is no reason to think Parliament would have intended otherwise. They convey the meaning given to them by the High Court of Australia in George v Rockett (1990) 170 CLR 104 where the court held that:
When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. This was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson…[12]
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[13]
[12] At 112 (citations omitted).
[13] At 116.
What then was ASIO required to have reasonable grounds to suspect? Applied to the circumstances of BLBS, ASIO had to have reasonable grounds to suspect two things: first that if an Australian passport were issued to him, BLBS would be likely to engage in conduct that might prejudice the security of Australia or a foreign country; and second, that BLBS should be refused an Australian passport in order to prevent him from engaging in that conduct. We examine each of those requirements in turn.
Section 14(1)(a): “would be likely to engage in conduct”
The words “would be likely to engage in” in the Passports Act form part of a threshold; which if met permits ASIO to trigger an administrative process. If triggered that process can result in the loss of an important right that Australians ordinarily take for granted. Refusal or cancellation of a passport denies a citizen the liberty to move to and from Australia. We think that in that specific and particular statutory context, the requirement that someone would be likely to engage in certain conduct requires a robust degree of confidence that the foreseen conduct will occur.
We see no reason not to give effect to those words with that understanding. That is their sense as words of ordinary English. Parliament chose words that on their face imply a significant degree of confidence. It did not choose “could”, or “may be likely” or “may” or “might”.
However, twinned with and inseparable from the individual rights recognised and protected by that requirement is the interest of Australia’s national security and our protection of our community. Section 14 of the Passports Act balances the competing interests, in the Tribunal’s view, not by requiring a strained or attenuated meaning to be given to the words “would be likely to engage in” but by authorising ASIO, as a competent authority, to ask the Minister for Foreign Affairs to refuse to issue or to cancel a passport whenever it holds a suspicion on reasonable grounds that a person would be likely to engage in such relevantly disqualifying conduct.
ASIO is not required to prove, or be satisfied on the balance of probabilities, that the person would be likely to engage in that conduct: it need only suspect on reasonable grounds that the person would be likely to do so. The relatively modest degree of actual apprehension required for ASIO have such a suspicion is explained in George v Rockett; see [75] above.
Given what we conceive to be the correct approach to statutory interpretation we will resist the temptation to express the notion conveyed by the expression “would be likely to engage in” in alternative terms.
Do the words “might prejudice the security of Australia or a foreign country” refer to the degree of satisfaction required?
The Tribunal rejects the respondents’ submission that the words “might prejudice the security of Australia or a foreign country” add anything material to the degree of satisfaction required. In full s14(1)(a) reads:
(1) If a competent authority suspects on reasonable grounds that:
(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
(ii) might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii) might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv) might constitute an indictable offence against this Act; or
(v) might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister's determination; and ….(b)….
the competent authority may make a refusal/cancellation request in relation to the person.
To satisfy s 14(1)(a) a competent authority must suspect on reasonable grounds that if a passport were issued to BLBS he would be likely to engage in some form of conduct. The kind of conduct that will satisfy the statutory test is that specified in (i)-(v).
Those adjectival clauses do not qualify the degree of satisfaction required for ASIO to assess that BLBS would be likely to engage in some particular conduct—they merely describe the categories of potential conduct permissibly relevant to a request that ASIO can make to the Minister for Foreign Affairs under the Passports Act. A request can be made only if the suspected conduct falls within one of the categories defined in s 14(1)(a)(i)-(v).
Unless that conduct is identified with some concreteness, whether or not the conduct falls within a category such as “that might prejudice the security of Australia or a foreign country” etc. cannot be determined. The specific “conduct” that ASIO suspected BLBS would be likely to engage in was not identified to BLBS because it was redacted for reasons of national security. Mr Johns took no point as to the adequacy of the grounds ASIO supplied. In those circumstances it is unnecessary to decide whether s 37(2)(a) (which authorises the Director-General to exclude from an adverse assessment any “information” which in his opinion “would…be contrary to the requirements of security”) also applies to “the grounds” and whether there is some minimum requirement for their content.[14]
[14] See Secretary of State for the Home Department v AF [2009] UKHL 28 per Lord Hope at [81]; see also A v United Kingdom (2009) 49 EHRR 29.
Section 14(1)(b)
Section 14(1)(b) adds one further requirement before ASIO can make a valid request under the Passports Act. Section 14(1)(b) is expressed in plain words of ordinary English. ASIO has to suspect on reasonable grounds that BLBS should be refused an Australian passport “in order to prevent him” from engaging in that conduct. If BLBS’s suspected conduct, whatever its seriousness, cannot be prevented by the refusal or cancellation of his passport there can be no lawful basis for ASIO to request the Minister for Foreign Affairs to take that action. Without a lawful basis the Minister’s decision would have to be set aside. However, s 14(1)(b) does not oblige ASIO to prove that refusing/cancelling his passport would prevent BLBS from engaging in that conduct—ASIO needs only to demonstrate that it has the basis, as explained in George v Rockett, to suspect on reasonable grounds that it would.
THE EVIDENCE
Background
The unclassified evidence included an affidavit sworn by “Charles Sargent”, an ASIO senior officer who was cross-examined on its content, and oral evidence (given by telephone) from “XXX” one of the ASIO officers who had interviewed BLBS. The unclassified materials before the Tribunal included the reports prepared by ASIO of five ASIO interviews undertaken by BLBS; some dating from before an earlier trip to [redacted] and some subsequent to the cancellation of his passport.
BLBS gave evidence by affidavit and was cross-examined. The following background appears to be undisputed in so far as the unclassified evidence before the Tribunal is concerned.
BLBS grew up in Australia. [redacted]. BLBS travelled to [redacted] in 2009 before his passport was cancelled. At that time he was experiencing relationship difficulties with his wife. She remained in Australia and had become worried about him and his whereabouts during his time [redacted] when he undertook some Islamic studies and did not contact her.
[redacted]. It is common ground that they have overcome their previous troubles and that their present relationship is now a happy one.
BLBS adheres to the Sunni branch of Islam. He is devout and regularly attends mosque. He has always been keen to improve his understanding of the Koran. His desire to acquire familiarity with the Koran’s teachings in its original Arabic is particularly important to him. Currently he is attending private tutoring [redacted] in Arabic and English.
Between 2 October 2008 and 12 May 2010 inclusive, BLBS was interviewed by officers of ASIO on five separate occasions. There are no transcripts of these interviews as they were not recorded. He was also interviewed by the AFP. That interview was recorded. We have taken into account the reports ASIO made of the five interviews it conducted and the transcript of the interview the AFP undertook. Our reasons refer to their contents only to the extent directly material to our decision.
The ASIO/AFP interviews and BLBS’s evidence to the Tribunal
The second ASIO interview - 3 September 2009
During his second interview, conducted on 3 September 2009, BLBS was asked what he thought of people who wanted to conduct an act of terrorism in Australia. The report of the interview records the following:
[BLBS] said the events in Afghanistan were not justification for this kind of behaviour in Australia … [BLBS] said that Australia was good to “us”, and provided a home and work, did not deserve to be attacked. [BLBS] said that if people were upset about troops in Afghanistan and they wanted to travel there and do something about it, then that would be their choice. [BLBS] … sought clarification on what the difference between Australia and Afghanistan was, and [BLBS] said that Afghanistan is a Muslim country and if people want to travel there to defend it, that is very different to doing something in Australia, which would not be ok, as Australia is not a Muslim country.
There is no dispute that this is an accurate record of what BLBS said during that interview. One of the ASIO officers who conducted that interview, XXX, gave evidence. XXX agreed in cross-examination that the Applicant was “very clear and forthright” in his view that Australia did not deserve to be attacked and that he expressed “vehement disagreement with the proposition that violent jihad was religiously permissible in Australia.”[15]
The Applicant’s travel in [redacted] 2009-2010
[15] Transcript 23/07/13 p 91.
From [redacted] 2009 until [redacted] 2010 BLBS travelled in [redacted], attending several schools and mosques. He attended some lectures at [redacted]. This experience increased his desire to continue to study his religion and the Arabic language.[16]
[16] The Applicant told ASIO officers of his studies in [redacted] when he was interviewed on 7 January 2010.
The fourth ASIO interview - 11 March 2010
The Applicant was interviewed for a fourth time on 11 March 2010. During that interview BLBS advised the ASIO officers that he intended to travel to [redacted] at the end of 2010 to undertake further Islamic studies. He said that he had no plans to travel overseas “in the near future”.
The Applicant also stated that he believed “it is someone’s choice to travel overseas to defend Islam in any country where Islam was under attack.”When advised by the ASIO officers that it is an offence under Australian law to travel overseas and fight against a foreign government, BLBS said he was unaware of this.
The Applicant told the ASIO officers that he disagreed with the presence of Australian troops in Iraq and Afghanistan. When asked if this view was shared by his associates, including a Mr [A], BLBS said that many people agreed with this belief. The record ASIO made of the interview includes the following:
[The officers] reinforced the right to freedom of expression in Australia and outlined the difference between lawful, peaceful protest and politically motivated violence (PMV). [The officers] then asked [BLBS] directly whether he was aware of any individuals in Australia who would support PMV. He initially replied he had heard Mr [A] “talk about this kind of thing before” but, when questioned further by [the officers], he claimed to have forgotten the circumstances of the conversation. [The officers] told [BLBS] they thought this would be an important conversation to recall, they were surprised he couldn’t remember it clearly. [BLBS] attempted to qualify his comments by claiming he had heard [Mr A] express opposition to the presence of Australian troops in Afghanistan.
The fifth ASIO interview – 12 May 2010
The Applicant told the interviewing officers that he still intended to travel overseas to study. However he told them that he no longer intended travelling to [redacted] and was considering other options. He nominated Turkey and Indonesia as possible destinations.

BLBS was questioned further about statements he had made during the previous interview. The record of this conversation, made by the ASIO officers, is as follows:
[The officers] told [BLBS] they wanted to find out more about his statement at the previous interview that he had heard Mr [A] say something about conducting an attack in Australia. [BLBS] initially said that “we all say things about Iraqi and Afghanistan”. [The officers] clarified that they were referring to Mr [A] talking about wanting to do something here in Australia. [BLBS] said he had never said this and told [the officers] to go back and listen to the recording of that interview to check this. [The officers] told [BLBS] they had not made an audio recording of any previous interviews with [BLBS], nor were they recording this one electronically. [BLBS] told [the officers] he did not believe them. [The officers] said it was their understanding that [BLBS] made these comments at the previous interview and [the officers] written report of the interview reflected this. [The officers] said if they had misunderstood [BLBS’s] words that this was his opportunity to correct them. [BLBS] said he had nothing to say about this topic.
XXX was one of the ASIO officers who conducted this interview. In cross-examination XXX was asked as to XXX’s recollection of what BLBS had said at the previous interview. XXX’s evidence was that the conversation in the previous interview included a conversation about whether BLBS was aware of anyone who would conduct acts of violence in Australia. XXX said that that had been a specific subject of discussion. XXX was unable to say whether or not the Applicant was confused as to the issue being discussed but XXX said that his answers suggested that he understood what the officers were talking about at the time. XXX’s impression was that he understood what the questions were about.[17]
[17] Transcript 23/7/13 p 86.
At no time did BLBS tell the ASIO officers that he intended to engage in militant jihad overseas.[18]
[18] This was the evidence of XXX; transcript 23/07/13 p 93.
The Applicant’s planned visit to Yemen in September-October 2010
In July 2010 the Applicant booked return tickets for travel overseas. His ticket provided for him to leave Australia on [redacted] September 2010 and to return home on [redacted] March 2011.[19] His schedule included a visit to Yemen.
[19] Affidavit of the Applicant sworn 2 August 2013, exhibit K para 16.
The Applicant said that the reason he chose Yemen to visit was that he had been told by others at the mosque that very cheap board was available at some Yemeni institutions for those who decided to stay and engage in intensive study.[20]
Interview by Australian Federal Police – [redacted] September 2010[21]
[20] Exhibit K, para 17.
[21] Exhibit J.
The Applicant was interviewed by officers of the Australian Federal Police at the Melbourne International Airport. During the interview the Applicant stated that:
·he planned to travel to Yemen with a stop-over in [redacted];
·the period of his planned absence from Australia was uncertain owing to problems with his visa to enter Yemen;
·his purpose in visiting Yemen was to check out universities there and to consider engaging in Islamic studies;
·in his religion Yemen is considered a blessed land;
·he did not know anyone in Yemen;
·he did not know anyone who had studied in Yemen.
The Applicant was asked:
Can I ask what your feelings are towards Australians who are currently engaged in fighting in Australian Army, fighting in Afghanistan and Iraq, what your opinions are on that?
He replied:
I don’t wanna answer that or give any answer.[22]
[22] At p 33.
When asked whether he had any telephone numbers of persons he intended to contact when overseas, BLBS said that he had memorised some. He was asked how many numbers he had memorised and he responded that he did not want to answer “any of those questions.”[23]
[23] At p 39.
The Applicant’s luggage included translations of his [Year 12 qualification] in Arabic. BLBS explained that if he was allowed to study at a Yemeni university he had expected he would be asked for a copy of his academic record.[24]
[24] At 50.
The Applicant’s present intentions if permitted to travel overseas
The Applicant told the Tribunal that at present he has no plans to travel overseas to study Islam because he has now discovered good teachers in Australia. Three years after his passport was revoked BLBS says he now has a settled life [redacted]. His focus has changed. If he is permitted to travel overseas, assuming he could afford to travel in the future, he told the Tribunal he would like to undertake the Hajj or the Umrah with his family and visit relatives.[25]
[25] Exhibit K, paras 46-49.
The evidence relied on by ASIO
Mr Sargent gave evidence on behalf of ASIO. On the basis of evidence given by Mr Sargent we are satisfied that Yemen provides numerous opportunities for militant jihadist training, fighting and facilitation of travel to other conflict zones. He frankly acknowledged that much of the information upon which ASIO’s adverse security assessment of BLBS was based included classified materials and could not be revealed to the Applicant. He testified that it was ASIO’s continued assessment that if BLBS held an Australian passport or a [foreign] travel document, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. Mr Sargent was cross-examined but did not retreat from that conclusion.
THE ISSUES GIVING RISE TO ASIO’S SECURITY CONCERNS
The aspects of the unclassified evidence that Mr Sargent pointed to in support of ASIO’s concerns can be summarised as follows:
·BLBS had maintained associations with persons of security concern and was likely to share their view that violence was acceptable to achieve a political and religious end;
·BLBS had planned to travel to Yemen, a country that provides numerous opportunities for militant jihadist training, fighting and facilitation of travel to other conflict zones, without plans and preparation for the course of religious studies that he had stated he intended to undertake; and,
·in interviews with ASIO, BLBS had responded to questions about his beliefs by stating was a person’s choice to travel overseas to fight in the defence of Islam if Islam was under attack.
The tribunal also was invited by Mr Sargent to draw adverse conclusions regarding BLBS’s intentions from a number of alleged inconsistencies and evasions in BLBS’s responses to questioning by ASIO and the AFP.
Counsel for the respondents submitted that the Tribunal should be satisfied, on the open materials, of the validity of ASIO’s assessment and the soundness of the Minister’s decisions.
THE TRIBUNAL’S ANALYSIS OF THE ISSUES
First Issue: BLBS’s associations and his imputed views
In his unclassified evidence Mr Sargent identified [Mr B] and [Mr A] as the people of security concern with whom BLBS had maintained associations whose views ASIO assessed could be inferred he shared.
Discussion
The Tribunal accepts that both Mr [B] and Mr [A] are persons of grave security concern. [redacted].
Before they were convicted BLBS had maintained an association with both of them. Mr [B], Mr [A] and BLBS had attended the same mosque. That association was not disputed. Mr Sargent gave evidence that BLBS had “admitted” in his second ASIO interview (3 September 2009) knowing Mr [B] and visiting Mr [B] in prison. In the same interview BLBS had acknowledged that Mr [A] had arranged that visit. BLBS had also acknowledged attending a dinner with Mr [A].
However, those circumstances need to be put in context. BLBS’s association with Mr [B] and Mr [A] as members of the same mosque is, of itself, of no consequence. BLBS gave evidence, and the respondents did not dispute, that Mr [A]’s wife and his wife were close friends. That friendship explains a degree of social contact. The prison visit BLBS “admitted” occurred before Mr [B] was convicted when he was maintaining his “not guilty” plea. There is no reason, on the open materials, to view that single visit as other than BLBS offering moral support to a co-religionist who was still asserting his innocence. Mr Sargent did not suggest that BLBS had anything to do with the planned [terrorist offence]. There is nothing to suggest that BLBS continued to associate with either Mr [B] or Mr [A] after they had been convicted of terrorism offences. As the Tribunal noted in TCXG and Director-General of Security [2013] AATA 284 at [72] an (even unwise) choice to associate with a person who holds or people who hold extremist views is not sufficient in itself to justify an adverse security assessment.
The unclassified materials provide no basis for an inference that because of those associations BLBS shared Mr [B]’s or Mr [A]’s views about politically motivated violence.
To the contrary the Tribunal is affirmatively persuaded that BLBS’s views are not, and never were, identical to Mr [B]’s and Mr [A]’s. The evidence is all one way that, unlike them, BLBS held, and continues to hold, the firm opinion that there can be no justification for acts of Islamic motivated terrorism in Australia. In the Tribunal BLBS gave evidence that such conduct is prohibited by his religious beliefs. He was not cross-examined on that assertion. It was neither contested by Mr Sargent nor suggested by counsel for the respondents that his assertion should be doubted. We accept that what BLBS told the Tribunal was a true expression of his long held beliefs and not a recent invention. As noted previously, XXX the ASIO officer who interviewed BLBS in 2009, agreed that he was “very clear and forthright in that view”. We reject the proposition that because BLBS had had associations with those two persons of undoubtedly grave security concern he had identical views to theirs with respect to the acceptability of violence to achieve a political and religious end.[26] It is only because no “information” about BLBS’s imputed views appears in ASIO’s formal assessment that the Tribunal has not recorded a finding in accordance with s 43AAA(3) of the ASIO Act.
[26] The Tribunal makes the same finding taking into account the classified materials.
Second Issue: Travel to Yemen
Yemen provides numerous opportunities for militant jihadist training, fighting and facilitation of travel to other conflict zones. Mr Sargent pointed to the fact that when BLBS’s passport and [foreign] travel documents were seized at the airport on [redacted] September 2010 he told the Australian Federal Police that although he wanted to travel to Yemen to study Islam he did not know anyone in Yemen and did not know at which institution he might study. From that we were invited to infer that BLBS’s stated intention may have been invented to disguise his true purpose.
Discussion
BLBS’s evidence was that he had been told by some of the “boys at the mosque” that there was cheap board available at some Yemeni institutions for those who wanted to undertake intensive Islamic studies. In his interview and in evidence to the Tribunal he explained that he had arranged for his [Year 12] results to be translated into Arabic so he would be able to go on and study in Yemen. The materials seized from BLBS at the airport included his translated [Year 12] results.
BLBS’s evidence in the Tribunal was broadly consistent with what he had said to the AFP after his passport had been confiscated. BLBS did not dispute that he had planned to leave Australia without knowing anyone in Yemen and without knowing at which institution he might study. He accepted that his plans had been “pretty unclear”.
Mr Sargent, in his evidence, did not dispute that BLBS had an established interest in furthering his Islamic studies. Since 2003 BLBS has attended classes about Islam every week. The Tribunal accepts that BLBS had and continues to have a keen interest in improving his Islamic knowledge. When he was in [redacted] in 2009 he studied at [redacted]. Since being denied a passport he has continued his studies of the Koran in Australia. BLBS is not wealthy. It is not inherently implausible that the prospect of undertaking inexpensive intensive Islamic studies in Yemen would have been attractive to him—[redacted]. On his account Yemen would have offered him the chance to study the Koran in its original Arabic—which, at the time, he thought unavailable in Australia.
We are, however, sceptical of BLBS’s naivete about the political environment in Yemen. We think it improbable that any [redacted] man coming from his background would be ignorant of the fact that Yemen had the reputation ASIO ascribed to it. However, whether or not he was aware of that reputation, there is nothing in the unclassified evidence to set against his contemporaneous assertion, corroborated by his possession of his translated [Year 12] results, that, after he visited his family in [redacted], he planned to go to Yemen to study. His not knowing anyone in Yemen and not knowing at which institution he might study is not inconsistent with that intention. It was not disputed that institutions where BLBS could undertake inexpensive studies existed in Yemen. BLBS would be hardly the first [redacted] Australian to set off overseas, ignoring potential dangers, with high hopes but few plans. We do not accept that that circumstance should give rise to any actual apprehension on the Tribunal’s part that he had a different and more sinister plan.
Third Issue: Violence as a choice
Mr Sargent referred the Tribunal to the fact that in his second interview (3 September 2009) BLBS had expressed views that:
·the events in Afghanistan were no justification for acts of terrorism in Australia;
·Australia was good to Muslims—providing both a home and work—and accordingly did not deserve to be attacked;
·he believed if people were upset about troops in Afghanistan and wanted to travel to Afghanistan to do something about it, then that would be their choice; and,
·he believed that this was justified on the basis that Afghanistan is a Muslim country and people were entitled to travel there to defend it; however, the situation was very different to doing something in Australia which is a Western country and would therefore not be okay.
Mr Sargent further noted that at his fourth interview (11 March 2010) BLBS had stated:
·violent jihad is not permitted in Australia:
·it is a person’s choice to travel overseas to fight in the defence of Islam if Islam is under attack;
·he was unaware that it was an offence under Australian law to travel overseas to fight against a foreign government; and,
·he disagreed with the presence of Australian troops in both Iraq and Afghanistan.
The Tribunal was invited to regard those statements as supporting ASIO’s assessment that if BLBS was permitted to travel he would be likely to act consistently with those views and choose to travel overseas to fight.
Discussion
ASIO never asked BLBS directly about what he would do, or the choices he would or might make, if he was to travel to a country where a conflict of the kind authorised by his understanding of Islam was occurring. He was not asked whether he planned to travel to participate in such a conflict. He was never asked whether he had any intention to participate in militant jihad overseas.
BLBS was only asked to explain his understanding of what the tenets of Islam authorised in respect of acts of violence and participation in jihad.
The tribunal is aware of the limits of assessments based on a witness’s demeanour. However, having observed BLBS give evidence, we think it fair to conclude that it is unlikely that it was cleverness or shrewdness that led BLBS to answer ASIO’s questions as simply exploring his religious understanding. We doubt BLBS was cunningly avoiding (implied) questions that it was in his interests not to respond to. Mr Sargent did not suggest that BLBS answered the questions dishonestly. To the contrary, he relied on their truthfulness.
In his evidence in the Tribunal, BLBS explained that at the time of those interviews he had not known the correct religious position on the topic of fighting overseas. As he had no real understanding of the topic he had said that it was a person’s individual choice. Over the past three years he had undertaken further study and as result his understanding of his religion was better.[27]
[27] Exhibit K, paras 41-42.
BLBS gave the following evidence:
As a result of this study I believe that people in Muslim countries overseas are entitled to defend themselves when under attack. However, it is not a good thing for Australians to travel overseas to fight to defend Muslim people and countries.
I would never travel overseas for the purpose of engaging in militant jihad. Nor would I ever encourage or assist any other person to do so. In fact I would advise any person against going overseas to fight.[28]
[28] Exhibit K paras 43-44.
We make no criticism of the way ASIO conducted its interviews. ASIO is an intelligence agency and not a law enforcement agency conducting interviews on the basis that their content will be evidence in a criminal trial. ASIO is entitled to probe its suspicions obliquely. There are perfectly understandable reasons relating to protection of sources and methods why ASIO may not want to put specific allegations to someone it is interviewing. Any ultimate adverse assessment ASIO makes is likely to be based on a wide range of inputs, of which open and disclosed interviews will be but part.
That said, relying only on the unclassified materials before the Tribunal, BLBS, on oath, disavowed any intention of travelling overseas for the purpose of engaging in militant jihad. His answers to the actual questions put to him by ASIO were not inconsistent with that disavowal. In our opinion those facts disclose nothing to excite suspicion let alone any actual apprehension that BLBS would be likely to choose to travel overseas to engage in politically motivated violence.
Fourth Issue: Dissembling and avoidance
Mr Sargent also drew the Tribunal’s attention to a number of instances where BLBS had lied or refused to answer a question posed to him by ASIO or the AFP. Counsel for the respondents submitted it was open to the Tribunal to conclude BLBS was lying or avoiding answering questions because to tell the truth would have required him to reveal that his motivations were consistent with ASIO’s assessment.
The instance put to the Tribunal as being of greatest significance was that referred to at [100]-[101] above. BLBS denied telling ASIO that he had heard talk of a jihadist attack in Australia. That was said to be a lie. His refusals to answer the questions put to him by the AFP referred to at [106]-[107] above were submitted to be matters the Tribunal might likewise take into account.
Discussion
The inconsistency between BLBS’s vehement rejection of what XXX told him he had said in his earlier interview and XXX’s confidence that it had been said was explored in both open and closed session. We have no doubt that XXX prepared for the fifth interview of BLBS with the firm understanding that BLBS had made the statement XXX attributed to him. We accept XXX gave honest evidence, based on XXX’s best recollection, to the Tribunal. However, the discussion that appears at pp 86-87 and pp 98-100 of the open transcript, taken together with what was explored in the closed sessions, has led us to doubt that it would be justified to draw any adverse conclusion against BLBS in respect of their contested recall of that earlier conversation.
As to the other suggested inconsistencies and instances of avoidance we do not think they and their circumstances rise to the level that they can be relied upon as relevant to proof of what ASIO asserts. In Edwards v The Queen (1993) 178 CLR 193 at 209 Deane, Dawson and Gaudron JJ held that for a lie to be capable of being relied upon to prove guilt that lie “must relate to a material issue” and the telling of the deliberate lie “must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie”.

A merits review tribunal is not bound by the rules of evidence, nor is it determining guilt, but the propositions affirmed in Edwards and Zoneff v The Queen (2000) 200 CLR 234 are not—or perhaps more accurately, given the analysis adopted in Leahy v Barnes [2013] QSC 226, are not only—rules of evidence. Rather they are sound principles of logic that courts have recognised should apply to all deliberative fact finding. There is no reason not to regard those principles as having general application. So understood they govern the circumstances in which Australian jurisprudence will permit lies to be regarded as relevant to proof of a denied circumstance. That they do is consistent with the decision in Leahy v Barnes in which Henry J set aside a coroner’s decision on administrative law principles for failing to distinguish between lies merely going to credit (the usual circumstance) and those that can be relied on as proof of a denied contention. We therefore apply those principles to the fact finding functions of this Tribunal.
In our view it is not possible to conclude that BLBS’s refusal to answer the questions put to him by the AFP noted at [106]-[107] can be explained only on the basis that telling the truth would have implicated BLBS with motivations consistent with ASIO’s assessment. BLBS had been separated from the other passengers waiting to leave for overseas; his passport and other travel documents were confiscated and he was interviewed not by ASIO but by the AFP. It is far from implausible that he might have believed himself to be suspected of a crime. Many of the AFP’s questions focussed on his associations. BLBS would have been aware that a number of people he had associated with in the past had been suspected of terrorism offences. He may have thought himself to be under the same suspicion. While in retrospect, it seems clear that neither the AFP nor ASIO did regard him as a suspect in relation to domestic terrorism that is not a matter a person in his shoes would necessarily have been confident about. Some degree of fear and paranoia on his part would be understandable. A decision to refuse to answer certain questions on that assumption was not only his right but also is explicable on a completely different basis from that advanced by ASIO in the Tribunal. It does not require the inference that Mr Berger asked the Tribunal to draw.
In the first of his five interviews with ASIO, BLBS co-operated fully. We do not think it unusual that as he was asked to undertake further interviews in the course of which it became clear that ASIO wanted him to answer more questions while remaining sceptical of his truthfulness, BLBS might have come to see ASIO as his antagonist rather than as a neutral party. That would be an entirely natural reaction and we do not think it appropriate to draw any adverse inferences from his increasing reluctance to undertake those interviews.
THE TRIBUNAL’S FINDINGS ON THE OPEN MATERIALS
Submissions on behalf of ASIO and the Minister
In his written submissions, Mr Berger accepted that there “may be reasonable doubt about ASIO’s ultimate assessment” but submitted that the Tribunal would be justified in finding a lawful basis for the Director-General making the cancellation request if there “was some basis for an actual apprehension” that if BLBS’s passport was not cancelled there was “more than a [sic] insubstantial or negligible risk (in the order of 10% or less) that he might engage in politically motivated violence either in Australia or overseas”.
The Tribunal’s conclusions
We have explained why we do not accept that Mr Berger’s analysis accurately reflects the legal test for the threshold of satisfaction that the Tribunal should apply to such a request—but even assuming its validity we do not think what was put against BLBS in the unclassified materials meets even that low threshold. None of the individual factors relied upon by ASIO examined in context provide a basis for the Tribunal to form the least “actual apprehension” that BLBS would engage in such conduct. Nor, taken together, can they do so.
A finding by the Tribunal, particularly in this Division, need not be based on direct evidence. There will many instances where various pieces of intelligence information assessed by a process of inductive reasoning, taken together can validly justify a conclusion despite no single element being compelling.
However, valid reasoning to a circumstantial conclusion depends on confidence in the existence of the underlying bits of the puzzle, or parts of the mosaic or strands of rope from which connecting inferences can be drawn. In the present case, restricting its consideration to the open materials, the Tribunal has concluded (a) BLBS did not share common views with those with whom he was asserted to associate; (b) his failure to have comprehensive plans about who he would meet and at which institution he would study in Yemen was not inconsistent with his claimed intention of looking to go there to undertake intensive Islamic studies; (c) BLBS’s statements about his understanding of his religion in earlier interviews are not inconsistent with his positive assertion in the Tribunal that he would not choose to participate in militant jihad activities if he was permitted to travel overseas; and (d) that any inconsistencies in his accounts or reluctance to answer questions can be explained for other reasons.
None of those findings, as individual bits of a puzzle or as parts of a mosaic or strands of a rope, can be added one to the other or woven together in a way to collectively justify the assessment ASIO made. Were that the end point we would set ASIO’s adverse assessment aside.
THE CLASSIFIED EVIDENCE AND MATERIALS
That conclusion does not, unfortunately for the applicant, discharge the Tribunal’s function. We also have to take into account the classified materials and evidence. Much is covered by certificates issued by the Attorney-General that prevent its disclosure to BLBS. They also prevent disclosure of that material in these reasons. Our Closed Reasons can be provided only to the Director-General of Security.
To the extent it is possible to provide reasons consistent with our duty not to disclose the materials subject to security classification we do so. However, the Tribunal can only go so far in explaining its decision. Inevitably, to a greater or lesser extent, where classified security materials exist and are relied upon, these reasons cannot illuminate the reader further. We recognise that from BLBS’s point of view this may not seem fair. The focus of these proceedings, however, is on security, both within the Commonwealth of Australia and its States and Territories, and in relation to Australia’s responsibilities to foreign countries. The Attorney-General issued those certificates under the AAT Act for reasons of public interest and national security. This Tribunal has no power to review those decisions.
The Tribunal undertook that any questions BLBS’s counsel wanted to put to Mr Sargent in closed session that could not be asked and answered in the open proceedings would be asked by the Tribunal in the closed proceedings. That was done. However, we echo what was said in TCXG and Director-General of Security [2013] AATA 284 at [76]-[77]. The Tribunal observed that the Attorney-General might give attention to the provisions of s 39A(9)(b) of the AAT Act so as to permit an applicant in the Security Appeals Division to brief a security cleared lawyer who could represent an applicant in the closed proceedings. Those observations are reinforced by what was said by Lord Kerr in Al Rawi v Security Service [2012] 1 AC 531 where his Lordship noted that there was a fallacy:
in the unspoken assumption that, because the [tribunal] sees everything [it] is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge…Evidence which has been insulated from challenge may positively mislead.[29]
[29] At [93].
THE TRIBUNAL’S FINDINGS HAVING REGARD TO THE CERTIFICATED MATERIALS
For the reasons referred to previously the Tribunal is limited in what can be disclosed as to its reasoning in respect of the classified materials and evidence.
We record our finding that Mr Sargent was a credible, thorough and fair witness. In the closed sessions Mr Sargent not only advanced, persuasively, ASIO’s case but also properly and frankly drew the attention of the Tribunal to certain materials and considerations that he accepted should be balanced against the assessment ASIO had made.
BLBS’s evidence was that his thinking had evolved as a result of his more recent study and that while he still believed people in Muslim countries overseas were entitled to defend themselves when under attack it was not a good thing for Australians to travel overseas to fight to defend Muslim people and countries. He denied having ever planned to do so.
On the basis of the classified materials and evidence before it, the Tribunal cannot accept that denial.
The position as at the time of the original decision
The Tribunal finds that when it made its assessment ASIO had reason to suspect on reasonable grounds both that BLBS would be likely to engage in certain conduct and that BLBS’s passport should be cancelled in order to prevent him from engaging in that conduct. The nature of the conduct ASIO suspected BLBS would be likely to engage in was made known to the Tribunal. We are satisfied it was conduct within a class which might prejudice the security of Australia or another country. That justified ASIO making an adverse assessment and the Director-General’s request to the Minister for Foreign Affairs.
The Minister’s decision to cancel BLBS’s passport and require the surrender of his foreign travel documents was therefore lawful. We have not been directed to any countervailing discretionary considerations that might compel a different outcome. Each of the Minister’s decisions was correct and preferable.
These findings take into account the later received materials and evidence in so far as it illuminates the circumstances that applied at that time.
Does the position remain the same?
We have referred previously to the fact that Mr Sargent gave evidence about certain balancing considerations. Those relate to circumstances that became known to ASIO after the original assessment and decisions were made. BLBS also gave evidence.
We therefore have given anxious consideration as to whether, in consequence of the decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 the Tribunal on review is required to be satisfied that, as at the present, the same conclusions would be reached.
We think that must be the case in respect of ASIO’s adverse assessment—given that the Tribunal reviews a decision by ASIO which, if found to be incorrect, can be superseded by the findings of the Tribunal.[30] Section 64 of the ASIO Act[31] reinforces a conclusion that the Tribunal on review is expected by the Parliament to review any adverse or qualified assessment on the evidence as at the time of making its findings.
[30] ASIO Act s 61.
[31] Which provides: “Where the Tribunal has made findings upon a review of an assessment, the Organisation shall not make a further assessment in respect of the person concerned that is not in accordance with those findings except on the basis of matters occurring after the review or of which evidence was not available at the time of the review”.
The position appears to be different in the case of the Minister’s cancellation decision. The formal power to cancel a passport following a valid request from ASIO is conferred by s 22(2)(d) of the Passports Act. It would be a further step if a passport could be lawfully cancelled yet because of later events the Tribunal could set that cancellation aside. The power to require some form of reinstatement of the passport is arguably beyond that possessed by the Tribunal.
If these tentative conclusions are correct, they could result in an ASIO assessment being set aside (because of intervening circumstances) but the decision to cancel a passport based on that assessment being affirmed. That initially appears perverse but on reflection there may be no inconsistency. The proper remedy for an applicant who wants his or her passport decision to be assessed on contemporary information may be to make an application for a new passport and to appeal a refusal. There is ample authority following Shi that a decision to refuse an application must be reviewed on the basis of evidence available as at the time of the Tribunal’s decision.
However, we need not express any final view. That is because we find, having regard to the statutory tests applicable to the degree of satisfaction required for each decision, that even if both Acts require these matters to be considered as at the present, the various assessments, requests and decisions should be affirmed.
Our findings, in relation to the circumstances applying at the present, are significantly more finely balanced than those we have expressed at [154] and [155]. In BLBS’s favour we take into account not only what BLBS told the Tribunal about his more educated understanding of Islam but also that in the intervening 3 years he has [redacted]. We do not discount the possibility that BLBS has altered his thinking with the benefit of the additional study of Islam he has undertaken. It may be true. As Mr Sargent acknowledged some materials point in that direction. These factors taken together suggested a different conclusion might have been reached as to the justification for the assessments and decisions as at the present. However, some other classified evidence casts doubt on BLBS’s claim of a change of heart and our finding at [153] makes it impossible for the Tribunal to accept BLBS at his own word.
Taking all those matters into account and applying the standard of satisfaction we have concluded is appropriate we find (a) ASIO continues to have a proper basis for an adverse assessment; (b) ASIO has reasonable grounds to suspect that BLBS would be likely to engage in conduct which might prejudice the security of a foreign country; (c) ASIO has reasonable grounds to suspect his passport should be cancelled to prevent him from doing so; and (d) the Minister for Foreign Affairs’ decisions to cancel BLBS’s passport and require him to surrender his foreign travel documents remain correct and preferable.
CONFIDENTIALITY
BLBS, supported by the respondents, seeks a direction that these Open Reasons be published only after redacting all information that might identify him. Applying a like analysis to that request as the Tribunal did in TCXG and Director-General of Security [2013] AATA 377 at [9]-[15] the Tribunal directs that these reasons be provided in full only to the parties and otherwise they be published only in accordance with that requirement.
To assist the Tribunal the respondents adduced some evidence in our closed hearings that arguably may not be covered by certificates issued by the Attorney-General. That evidence warrants equivalent protection. Accordingly the Tribunal will direct, in accordance with s 39B(11) of the AAT Act, that all evidence and information received by the Tribunal in its closed hearing not be communicated to any person and, pursuant to s 43AAA(3) of the AAT Act, that our findings other than as disclosed in these reasons be not given to the applicant.
WHEN DOES A CANCELLATION REQUEST EXPIRE?
We should make some final observations about the currency of a refusal request made by ASIO. Parliament did not intend that a request would have perpetual effect. Section 19 of the Passports Act provides:
The Minister must not act on a refusal/cancellation request if that request:
(a) has been withdrawn by the competent authority who made it; or
(b) can no longer be regarded as current in accordance with the Department's usual administrative practices.
Because of the relatively long time that had passed between the events in September 2010 and the Tribunal’s hearing the Tribunal asked Mr Berger to inform it about the Department’s usual administrative practices. The Tribunal was advised that notwithstanding the terms of s 19 the Department of Foreign Affairs had no settled or usual administrative practice.
The Passports Act assumes the existence of a period of time after which a request can no longer be regarded as current.
Those subject to a refusal/cancellation decision, including BLBS, are entitled to know what that period of time is.
Because the issue was not argued we think it inappropriate to reach a view as to whether the Tribunal has the power to set aside a decision if it is based on a request that no longer reasonably can be regarded as current.
ASSISTANCE OF COUNSEL
We express our appreciation to Mr Berger and Mr Connor, and to Mr Johns and Ms Morgan, for the respondents and the applicant respectively. Until recently the Tribunal did not publish its reasons for matters heard in the Security Appeals Division. It was only after Foster J’s decision in RJCG v Director-General of Security [2013] FCA 269 that the Tribunal accepted it was obliged to do so. As a result there has been little published guidance available to counsel with respect to this area of law and procedure. We thank counsel for their advocacy on behalf of their respective clients and for assisting the Tribunal to address the issues that arose in this matter. Their assistance was in the best traditions of the bar.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President, Mr J W Constance, Deputy President, and Mr G D Friedman, Senior Member.
........................................................................
Associate
Dated: 19 November 2013

Date(s) of hearing 22, 23, 24, 25 July; 19 August 2013

Date final submissions received 18 October 2013

Counsel for the Applicant Mr S Johns and Ms G Morgan

Solicitors for the Applicant Robert Stary Lawyers

Counsel for the Respondents Mr A Berger and Mr P Connor

Solicitors for the Respondents Australian Government Solicitor

Division	SECURITY APPEALS DIVISION
File Number(s)	2011/1521
Re	BLBS
APPLICANT
And	Director-General of Security
RESPONDENT

Tribunal	President D Kerr Deputy President J W Constance Senior Member G D Friedman
Date	19 November 2013
Place	Melbourne

Date(s) of hearing	22, 23, 24, 25 July; 19 August 2013
Date final submissions received	18 October 2013
Counsel for the Applicant	Mr S Johns and Ms G Morgan
Solicitors for the Applicant	Robert Stary Lawyers
Counsel for the Respondents	Mr A Berger and Mr P Connor
Solicitors for the Respondents	Australian Government Solicitor