CMHV and Director-General of Security and Minister for Foreign Affairs - [2017] AATA 1547

CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 (22 September 2017)

Division:Security Division
File Number: 2016/0698
Re:CMHV
APPLICANT

AndDirector-General of Security
RESPONDENT

File Number: 2016/0700
Re:CMHV
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

File Number: 2016/4108
Re:CMHV
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Senior Member Egon Fice
Senior Member A Nikolić AM CSC
Date:22 September 2017
Place:Melbourne

The Tribunal affirms:

the decision of the Director-General of Security dated 15 December 2015 to issue an adverse assessment against CMHV under s 37 of the Australian Security Intelligence Organisation Act 1979;
the decision of the Minister for Foreign Affairs dated 20 December 2015 to cancel CMHV’s passport under s 22(2)(d) of the Australian Passports Act 2005; and
the decision of the Minister for Foreign Affairs dated 20 December 2015 to order the surrender of CMHV’s Turkish travel documents under s 16(1) of the Foreign Passports (Law Enforcement and Security) Act 2005.

..............[sgd]..........................................................

Deputy President S A Forgie

Catchwords

NATIONAL SECURITY — adverse security assessment — request for Minister to cancel passport and to order surrender of foreign travel documents — decisions affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 ss 25(1), 30(1A), 30(1AA), 33(1)(a), 33(1)(c), 35, 35AA, 35(1AA), 37, 39, 39A(2), 39A(3), 39A(5), 39A(6), 39A(7), 39A(8), 39A(9), 39A(10), 39A(11), 39A(12) to 39A(17), 39B, 39B(2)(a), 39B(8), 39B(11), 43, 43(1), 43(1A), 43AAA, 43AAA(2), 43AAA(4), 43AAA(5), 43AAA(6)
Australian Passports Act 2005 ss 3, 6(1), 7, 8, 14, 14(1), 14(1)(a), 14(1)(a)(i), 14(2), 14(3), 14(3)(a), 18(1), 18(2), 18(3), 22(1), 22(2), 22(2)(d), 48(c), 49, 49(1), 49(4), 50, 50(1), 50(2), 50(3)

Australian Security Intelligence Organisation Act 1979 ss 4, 17(1)(c), 35(1), 37, 37(1), 37(2), 37(2)(a), 37(2)(b), 37(3), 37(4), 38(1), 38(1A), 38(2), 38(2)(b), 38A, 54(1), 61, 64, 65(3)

Crimes Act 1914
Criminal Code Act 1995 s 3
Criminal Code ss 15, 100.1(1), 100.1(2), 100.1(3), 102.1, 102.1(2), 102.1(3), 102.1(4), 102.3, 102.4, 102.5, 102.6, 102.7, 102.8, 102.9, 103.1, 103.2
Foreign Passports (Law Enforcement and Security) Act 2005 ss 5, 13, 14, 15, 15(1), 15(1)(a)(i), 15(2), 15(2)(f), 16, 16(1), 16(2), 16(3), 16(4), 23, 23(1), 23(4), 23A,
Legislation Act 2003 ss 8(1), 8(2), 8(3), 8(4)
Migration Act 1958 ss 36(2), 189(1)
Patents Act 1990
Telecommunications Act 1997

Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 r 4(1)
Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 r 5(1), 5(2)
Foreign Passports (Law Enforcement and Security) Determination 2015 r 9(2)
Patents Regulations 1991
Tasmanian Criminal Code s 157 (1)

Security Assessment Determination No. 2 ss 37(3), 37(4)

Cases

Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Boughey v R [1986] HCA 29; (1986) 161 CLR 10; 65 ALR 609
Bradshaw v McEwans Pty Ltd (1951) Unreported
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663
George v Rockett [1990] HCA 26, (1990) 170 CLR 104
Goldie v Commonwealth of Australia (2002) 188 ALR 708
Hanlon v Law Society [1981] AC 124
Hussain and Minister for Foreign Affairs and Anor [2008] FCAFC 128
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206
Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266
Re BLBS and Director-General of Security [2013] AATA 820
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634
Re Refugee Tribunal; Ex Parte AALA [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219
Regina v Hannes [2006] NSWCCA 503
RJCG v Director-General of Security [2013] FCA 269
Tidsall v Webber [2011] FCAFC 76; (2011) 193 FCR 260; 122 ALD 49
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union [1979] HCA 85; (1979) 27 ALR 367; 42 FLR 331
Trade Practices Commission v. Ansett Transport Industries (Operations) Pty. Ltd. and Others (1978) 32 FLR 305

Secondary Materials

1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees

Australian Passports Bill 2004

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Explanatory Memorandum to the Australian Passports Bill 2004
Hansard, House of Representatives, 24 June 2004
International Covenant on Civil and Political Rights

Shorter Oxford English Dictionary, 5^th edition, 2002, Oxford University Press

REASONS FOR DECISION

Deputy President S A Forgie
Senior Member Egon Fice
Senior Member A Nikolić

CMHV is a dual Australian and Turkish citizen. On 23 May 2013, he applied for an Australian passport and, on 11 June 2013, was granted that passport.[1] He left Australia on 24 July 2013 and entered Turkey with his Australian passport on 25 July 2013. CMHV did not return to Australia until 7 November 2015 after leaving Turkey on 5 November 2015. He also holds Turkish travel documents. On 15 December 2015, the Australian Security Intelligence Organisation (ASIO), through its Director-General of Security (Director‑General), issued an adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (ASIO Act). Under s 14(1) of the Australian Passports Act 2005 (Passports Act), ASIO gave its adverse security assessment to the Department of Foreign Affairs and Trade and made a cancellation request in respect of CMHV.[2] It recommended that the Minister for Foreign Affairs (Minister) cancel an Australian travel document issued to CMHV.[3] It also recommended that a further security assessment be requested if CMHV were to apply for an Australian travel document. ASIO issued the adverse security assessment and made the cancellation request on the basis that it suspected, on reasonable grounds, that:
(1)if CMHV were to continue to hold an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country; and
(2)CMHV Australian passport should be refused in order to prevent him from engaging in the conduct prevent CMHV from engaging in that conduct.
[1] Unclassified and partially redacted documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents DFAT Unclassified); DFAT 11-19
[2] Documents lodged under s 37 of the AAT Act (T documents DFAT); T1 at 5-8; Unclassified (partially redacted) documents lodged under s 39A(3) of the AAT Act (RU documents) at 9-14
[3] RU documents at 19-21
ASIO assessed that, if CMHV were to continue to hold an Australian travel document, being an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or of a foreign country. It did so on the basis that CMHV was:
(1)engaged in politically motivated violence (PMV);
(2)adhered to an extreme Islamic ideology;
(3)associated with (like-minded) individuals also involved in activities prejudicial to security; and
(4)likely to attempt to return to Turkey, and onwards travel to Syria, to engage in PMV or activities in support of PMV.

Relying on the same information and similar grounds, ASIO also made a request under s 15(1)(a)(i) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) that the Minister order CMHV to surrender his Turkish travel documents.[4]
[4] RU documents at 15-18 and 22-30

Having regard to the requests made to her, the Minister decided on 20 December 2015 to cancel CMHV’s passport under s 22(2)(d) of the Passports Act and, under s 16(1) of the Foreign Passports Act, to order the surrender of his Turkish travel documents.[5] The Minister’s Department advised CMHV of her decision to cancel his Australian passport in a letter dated 30 December 2015.[6] CMHV has lodged an application in this Tribunal to review each of those decisions and also the adverse security assessment.
[5] T documents DFAT Unclassified; DFAT 21-22. CMHV is obliged to surrender his foreign travel documents only if an enforcement officer has demanded that he do so: see [120] below. No such demand has yet been made. CMHV’s legal representatives hold his Turkish travel documents pending the outcome of these proceedings.
[6] T documents DFAT Unclassified; DFAT 3-8

We have considered the evidentiary material submitted on behalf of all parties and have decided that we should affirm the adverse security assessment made by ASIO as well as the Minister’s decisions made under the Passports Act and the Foreign Passports Act respectively. Our reasons are set out in general terms in this set of reasons, which is available not only to the parties but to the public generally. They are set out in more detail in a separate set of reasons, which also refers to classified and other information, the existence of which CMHV and his legal adviser were aware but to which they had not had access either before or at the hearing. Together with other information, that classified information, is the subject of a public interest non-disclosure certificate issued by the Attorney-General under s 38(2)(b) of the ASIO Act and s 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Under s 39A(8) of the AAT Act, the Attorney-General has also certified that any evidence proposed to be adduced and any submissions made by or on behalf of the Director-General would be contrary to the public interest because it would prejudice security or the defence of Australia. We have made an order under s 35AA(2) of the AAT Act restricting access to that more detailed set of reasons to the Director-General and the officers of ASIO and to the Minister and the officers of her Department together with their legal advisers.

LEGISLATIVE FRAMEWORK

Under s 25(1)(a) of the AAT Act, an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers under that enactment. Each of the ASIO Act, the Passports Act and the Foreign Passports Act provides for applications to be made to the Tribunal for review of certain decisions. Care must be taken to identify the decision or decisions in relation to which applications may be made for it is the decision of which review is sought which will circumscribe the boundaries of the Tribunal’s power to review it.

The three decisions and the relevant provisions providing that an application may be made for their review are:
(1) adverse security assessment made on 15 December 2015
(a)Section 54(1) of the ASIO Act provides that:
“An application may be made to the Tribunal for a review of an adverse … security assessment.”
(2) decision to cancel CMHV’s passport made on 20 December 2015
(a)Section 48(c) of the Passports Act provides that, for the purposes of Division 3 of Part 5, “a decision to cancel an Australian travel document” is a “reviewable decision”. An Australian passport, being a passport issued under the Passports Act, is, among other documents, an “Australian travel document”.[7]
[7] Passports Act; s 6(1)
(b)Two levels of review are provided for:
(i)Section 49(1) provides that a person may apply in writing to the Minister for review of a reviewable decision made by a delegate of the Minister.
·The only exception arises if a delegate of the Minister has already made a decision under s 49(4). In that case, only the second level of review is relevant.
(ii)Once the decision has been reviewed under s 49, or if the Minister has made the decision personally at an earlier stage, an application may be made to the Tribunal for review of that reviewable decision.
(c)Section 50(2) provides that the Minister may, in certain circumstances including those in which she has received a request under, among others, s 14(1) of the Passports Act to cancel an Australian travel document, certify that the decision involved matters of international relations or criminal intelligence.
(i)The Minister has not done so in this case meaning that the Tribunal’s powers on review under s 43 of the AAT Act are not restricted by reference to s 50(3) of the Passports Act.
(3)decision to order surrender of foreign travel documents made on 20 December 2015 and advised to CMHV on 20 June 2016
(a)Section 23(1) of the Foreign Passports Act provides that an application may be made to the Tribunal for review of a decision by the Minister under s 16 to order the surrender of a person’s foreign travel documents.
(b)If, as in this case, the Minister has made her decision in response to a request made under s 15 of the Foreign Passports Act, she may certify that the decision involved matters of international relations or criminal intelligence.
(i)The Minister has not done so in this case meaning that the Tribunal’s powers on review under s 43 of the AAT Act are not restricted by reference to s 23(4) of the Foreign Passports Act.
In the Attachment to these reasons, we have set out the legislative provisions relating to the making of a security assessment and the law that governs the matters that we must take into account in reviewing the decision to make that assessment and that the Minister has made in relation to CMHV’s Australian and foreign travel documents. For ease of reading, we summarise the main matters that must be kept in mind. They are:
(1)We must review the adverse security assessment before reviewing the Minister’s decisions.
(2)Each security assessment is made in the context of a particular prescribed administrative action or actions. That follows from the fact that it is a written statement expressing any recommendation, opinion or advice on whether it would be consistent with the requirements of security making it necessary or desirable for prescribed administrative action to be taken in respect of a person.
(a)In this case, the prescribed administrative actions are:
(i)a competent authority’s making a refusal/cancellation request under s 14(1) of the Passports Act that the Minister cancel CMHV’s passport under s 22(1) of that legislation; and
(ii)a competent authority’s making a request under s 15(1) of the Foreign Passports Act that the Minister make an order under s 16 that CMHV surrender of his foreign travel documents.
(3)Each of the prescribed administrative actions requires the competent authority to suspect on reasonable grounds that the person in this case, would be likely to engage in certain conduct. In this case, the conduct is that which might prejudice the security of Australia or of a foreign country.
(a)To “suspect on reasonable grounds” is to have a fabric of facts and inferences drawn from those facts that gives reason to suspect.
(b)Speculation does not have a part to play in that process.
(4)Determination No. 2 has been made by the Director-General as required by s 37(4) of the ASIO Act on 28 July 2010.
(a)Determination No. 2 is written with this process and the need to act with procedural fairness in mind. It is consistent with terms of the ASIO Act and with those enactments under which prescribed administrative action is taken.
(b)It is a guideline in the context of a review of a security assessment by the Tribunal. Therefore, it is a document to which the Tribunal will have careful regard but will not “apply” it as such.
BACKGROUND
Events preceding making of adverse security assessment
There was no dispute between the parties that, on CMHV’s return to Australia on 7 November 2015, ASIO officers interviewed him at the airport for approximately 35 minutes. He indicated that he was willing to attend further interviews with ASIO. ASIO attempted to arrange an interview with CMHV between 10 November 2015 and 15 December 2015 but they could not agree on suitable arrangements. When no agreement had been reached and, after considering his first interview, ASIO formed the view that he would not be more forthcoming at a further interview. It could not, in any event, disclose to him or to his legal representatives underlying intelligence, which was the subject of a public interest non-disclosure certificate under s 38(2)(b) of the ASIO Act and on which it had, at least in part, relied.

CMHV’s background

On the basis of his oral evidence at the hearing, we find that CMHV’s parents moved from Turkey to Australia at some time before 1988. CMHV was born in Melbourne in 1988 and he has one sister. He was educated in Melbourne and completed his VCE. He attended University in Melbourne where he studied International Business before undertaking a two year course leading to his obtaining a Diploma of Building and Construction at the Holmesglen Institute of TAFE.

CMHV stated that, initially, he was employed as a Construction Manager with a construction company and then as a Site Manager at a second construction company.

When he left Australia in July 2013, CMHV was 25 years of age and he left his parents and sister in Melbourne. In Istanbul, he stayed with his maternal grandparents. He had not seen them or his uncles, cousins and relatives generally since 1997. CMHV’s parents and sister moved to Istanbul during his visit with the intention of living there permanently. His paternal grandparents live in Australia.

CMHV’s EVIDENCE

Both in his affidavit sworn on 31 July 2016 and in giving his evidence, CMHV made seven main points, which were elaborated upon. They were:
(1)he has never engaged in PMV;
(2)he has not adhered to an extreme Islamic ideology;
(3)he has not associated with individuals who, to his knowledge, are involved in activities prejudicial to security and would not knowingly do so;
(4)he travelled to Turkey solely for the purpose of spending time with his family, helping them if he could and visiting a couple of places in that country as a tourist;
(5)there is no likelihood that he would attempt to return to Turkey in order to travel to Syria in order to engage in PMV or in activities in support of PMV;
(6)he is not a security risk, not an Australian extremist travelling to conflict zones and there is no likelihood that he would ever engage in conduct that might prejudice the security of Australia or of a foreign country; and
(7)he loves Australia and the Australian way of life and all the things that if offers such as sport, food, friends and opportunities.
CMHV’s religious ideology
CMHV confirmed that he is of the Islamic faith. He said that he is a religious person but that he does not adhere to an extreme Islamic ideology. For the past five years, he has prayed daily but he still misses morning prayers. He began to pray daily while in Turkey but said that he his faith had not become stronger. Before he left Australia for Turkey, he prayed at his local mosque at Hallam and also at Dandenong and Dandenong South.
“Jihad” means “protecting one’s self” from physical attack, CMHV told Mr Connor of counsel representing the Director-General and the Minister. He added that it may also be described as “self-defence” in that “It’ll be protecting yourself from anything.” That could include “fighting your desires also.”[8] CMHV said that he did not believe in violent jihad as he does not believe in acting with violence. Matters should be resolved diplomatically. He did not think there would any circumstances in which he, as a Muslim, would use violence or harm others in the name of his faith. When asked if he considered jihad to be an obligation of every member of the Islamic faith, CMHV replied “No”.[9]
[8] Transcript at 76
[9] Transcript at 76

When asked whether he supported the establishment of an Islamic caliphate in Syria or Iraq, CMHV replied that he did not. If a caliphate were to be achieved by non-violent means, CMHV thought that he might “possibly” support it.[10] If President al-Assad were no longer in office and if his regime were to be replaced by an Islamic caliphate having features of law and order, CMHV said that he would “… support what the people [who lived there] want.”[11] The people could have their say by means of an election if that were possible, he explained. If they could not hold an election, he did not know how the people of Syria could express their will. “It’s just a mess”,[12] he said.
[10] Transcript at 76
[11] Transcript at 77
[12] Transcript at 89
When asked whether he was familiar with JN, CMHV replied that he had heard of it on the news but neither he nor his friends is, or has been, a member of it. He has never supported JN in any way and has never spoken with his friends or family in a way that suggested that he did so. CMHV’s attention was drawn to the following passage from a document available online and prepared by the Australian Government on the basis of publicly available information about JN:
“Jabhat al-Nusra’s stated objectives are to remove the regime of President Bashar al-Assad and once this is achieved, create a salafist-oriented Sunni Islamist state in Syria. Jabhat al-Nusra also intends to establish an Islamic caliphate across the Levant. Jabhat al-Nusra believes the fight against the Syrian regime is supported by religious texts, and its fighters hope to fulfill ‘God’s wish’ for an ‘Islamic caliphate’.”[13]
In response to Mr Connor’s suggestion that he would support the establishment of a salafist-oriented Sunni Islamist state in Syria, CMHV said that he did not and that he was opposed to it.
[13] Exhibit 1 at UD4
ISIL, JN and Australians who have become foreign fighters
CMHV said that he had become aware that the Islamic State of Iraq Levant (ISIL) is a listed terrorist organisation “a couple of years ago”.[14] He thought he might have become aware of that some time in 2015 when he was watching the Turkish news. He knew that it was a terrorist organisation because it fights against governments. CMHV said that he does not support ISIL and have never done so. When asked whether he has any friends that are or have been members of ISIL, CMHV replied: “No, not that I know of.”[15] He has never supported ISIL and has never told his family or friends that he does so.
[14] Transcript at 78
[15] Transcript at 79
Mr Connor asked CMHV a series of questions about men who are described as “Australia’s Domestic Jihadists” in a paper prepared by the Australian Strategic Policy Institute (ASPI) entitled “Strategy Gen Y jihadists Preventing radicalisation in Australia” and dated June 2015 (Strategy Gen Y). The ASPI does not purport to express or reflect the views of the Australian Government but it publishes its opinions and recommendations to promote public debate and understanding of strategic and defence issues.[16] Each of the men about whom CMHV was asked appears in a list of profiles of Australia’s Gen Y foreign fighters in ASPI’s report. Those persons and CMHV’s responses to them were:
[16] Exhibit 1 at UD52
(1)Mahmoud Abdullatif
(Also known as Abu Jihad, the Playboy Jihadist)
Resided in Melbourne.
In September 2014 travelled with Suhan Rahman to Syria where he met Mohammed Elomar and Khaled Sharrouf. Known associations with ISIL.
Died 19 January 2015 at approximately 23 years of age.
CMHV said that he had never met or had a conversation with him whether on the telephone, the internet or any other form of communication.
(2)Jake Bilardi
(Also known as Jihadi Jake, Abu Abdullah al-Australii)
Resided in Melbourne and attended the Hume Islamic Youth Centre and the Meadow Heights Mosque.
Travelled to Iraq in August 2014 to fight with ISIL.
Died 11 March 2015 at the age of 18 years.
CMHV said that he did not know Mr Bilardi and has never spoken with him. When Mr Connor told him that Jake Bilardi had attended the Hume Islamic Youth Centre and the Meadow Heights Mosque, CMHV replied that he had never attended the Hume Islamic Youth Centre. He had prayed at the Meadow Heights Mosque but that was “way before”[17] he went to Turkey. He had prayed alone and then left the mosque.
[17] Transcript at 80
(3)Adam Dahman
(Also known as Abu Bakr al Australii)
Resided in Melbourne and attended the Hume Islamic Youth Centre.
Travelled from Melbourne to Sydney or Perth and then to Syria and Iraq. Known associations with ISIL.
Died 17 July 2014 aged approximately 18 years.
CMHV said that he did not know Mr Dahman and has never spoken with him.
(4)Neil Prakash
(Also known as Abu Khaled al-Cambodi)
Resided in Melbourne and attended the al-Furqan Islamic Information Centre.
Travelled to Syria in September 2013. Known associations with ISIL.
CMHV said that, before he left for Turkey, he had seen Mr Prakash at the Hallam Mosque at Friday prayers a few times and had shaken hands with him and said “Salaam”. He had also attended the al-Furqan Islamic Information Centre for Friday prayers if he had been working in the area. CMHV said that he had not conversed with Mr Prakash while overseas.
(5)Suhan Rahman
(Also known as Abu Jihad)
Resided in Melbourne.
In September 2014 travelled with Mahmoud Abdullatif to Syria where he met Mohammed Elomar and Khaled Sharrouf. Known associations with ISIL.
Died 18 March 2015 aged approximately 23 years.
CMHV said that he did not know Mr Rahman and has never spoken with him.
CMHV said that he had no wish to cause harm to anyone and denied that he would help others who might wish to do so. He did not know any person who had been killed in Syria or in Iraq.
CMHV’s visit to Turkey
At the interview at the airport, CMHV told ASIO officers that he had remained in Turkey for the whole of the two years and three or four months that he was overseas. His family came from a village near the Black Sea but he did not visit that village as it was too cold in winter and he preferred Istanbul in the summer. Most of his time in Istanbul had been spent renovating his parents’ apartment. The only paid work that he had done during his time in Turkey was in a jewellery factory. His maternal uncle owned the factory and CMHV said that he did odd jobs there as he did not know how to make jewellery.
While he was in Turkey, CMHV said, he was visited by two people. They did not visit him at the same time. CMHV did not know the surname of one of them but he knew him from the mosques at Hallam and Dandenong in Australia. That person had come to the house for breakfast a couple of days before he, CMHV, returned to Australia. The other person was a person with whom he had worked when he was plastering in Australia and he visited him twice while CMHV was in Istanbul (second person). On the first occasion, that second person had stayed for a week at CMHV’s grandparents’ home. Despite staying there, CMHV said that the second person had not gone to Istanbul to visit him and he caught up with him once or twice during the visit. Later, CMHV said that he took the second person around Istanbul for a day. On the second occasion, which occurred towards the end of 2014, the second person had stayed for one night on his way back to Australia. Neither of the two people supported JN or ISIL, CMHV said, and neither supported the establishment of a caliphate in Syria. CMHV could not remember if he discussed the situation in Syria with them.[18]
[18] Transcript at 83
During the interview at the airport, CMHV spoke of his travelling to southern Turkey with another person (third person) and that person’s friend whose surname he did not know. As he explained in cross-examination, the three of them travelled by plane to the third person’s home village. CMHV did not know how far the village was located from the Syrian border. He said that neither the third person nor the third person’s friend supported JN or ISIL. Neither of them supported a caliphate in Syria or Iraq.[19]
[19] Transcript at 82-83
CMHV said that he spent a lot of time travelling around Istanbul. It is a big city with a population of some 15 million people. His purpose was to find a Turkish girl to marry. Finding someone to marry took time and could not be achieved overnight. He travelled around Istanbul by public transport looking at museums and mosques and also spent time with his extended family, including his maternal grandparents, whom he had not seen since 1997. Every day was spent in a different way. When he was not travelling around the city, he would go to the gym or take his elderly grandmother to the hospital. He would see his uncle and spend time with his cousins, play soccer and to the mosque. In CMHV’s words, he “… was just holidaying for a few years.”[20] As he was living with his grandparents, he did not have to pay rent or expenses. He thought that his experience of Ramadan while in Turkey was a highlight of his visit. The Blue Mosque, Sultan Ahmed Mosque and Faith Mosque were memorable. While CMHV was in Turkey, his parents and sister returned from Australia to live. He was renovating an apartment for them to live in. CMHV’s paternal grandparents continue to live in Australia.[21]
[20] Transcript at 87
[21] Transcript at 85
CMHV’s plans for the future
CMHV said that he had become engaged to a girl a week before the hearing. She was born in “Either India or Afghanistan. I think India”.[22] As to the heritage of his fiancée’s parents, CMHV replied: “Background is Afghan. I’m pretty sure they would have been born in Afghanistan”.[23] CMHV’s fiancée came to Australia when she was one year of age. CMHV said that she does not work and stays at home. They planned to marry in Australia, where many of her family are located, and then travel to Turkey. The wedding would take place “hopefully this year, maybe”.[24] His family would not be concerned about his being married in Australia rather than in Turkey because he was planning on bringing his father and sister to Australia for the wedding. At the time of the hearing, CMHV’s mother was already in Australia so he would not have to arrange for her to travel for the wedding. They would be able to see all of the family then as well as enjoying a holiday. He would not want to live in Turkey all the time but would like to spend a couple of months holidaying there each year.
[22] Transcript at 88
[23] Transcript at 89
[24] Transcript 85
Up to the time of the hearing, CMHV had worked for a period of only two weeks since he had returned to Australia in 2015. He explained that he had been in a depressive state for about six or seven months and had been prescribed medication for it. His depression affected his being able to look for work and he had been consulting a psychologist. CMHV said that he had been in receipt of Centrelink benefits but, at the time of the hearing, he was not. He rented where he lived and he had borrowed money to live on. That meant that he had a debt and he hoped to pay that debt and marry at the end of 2017. CMHV had planned to start work in the week following the hearing as a labourer in the building industry. His plans were not definite but he had a few options to work as a labourer in construction. He could work with friends but he was not able to provide the names of any persons who might be able to give him a job.
ASIO’s OPEN EVIDENCE
Foreign, including Australian, involvement in conflicts in Syria and Iraq
In his open affidavit, “Keith Drummond”[25] gave the following evidence:
[25] This is an assumed identity given by the Director-General under Part IAC of the Crimes Act 1914. When he retired in July 2015, Mr Drummond was a Deputy Director-General of ASIO responsible for ASIO’s counter terrorism programme. He had been a member of ASIO’s Senior Executive Service for the previous 13 years and, in that role, had held senior management positions responsible in counter terrorism analysis, investigations and operations. He is now employed by that organisation.
(1)Since the 1990s, Australians have travelled from Australia to fight with one of the Syrian opposition groups.
(a)A small number of those travelling to Syria, Iraq and the region joined Islamist extremist groups with several returning to Australia and becoming involved in terrorist planning onshore.
(b)Before 2012, those Australians were generally older members of the community.
(2)ISIL and JN are among the Islamist extremist groups most active in the area encompassed by western Syria and eastern Iraq and the region generally.
(a)ISIL and JN are proscribed terrorist organisations under Australian law.[26]
[26] See [53] below
(3)Since 2012, the number of Australians travelling overseas to fight for, or support, Islamic extremist organisations in Turkey, Syria and Iraq has increased significantly and beyond any level previously known.
(a)Those Islamic extremist organisations are promoting highly violent, anti-Western ideology.
(b)Since late 2012, the level of indoctrination and violence in which Australians have become engaged has been significantly greater than in the past.
(b)Since 2013, ISIL has attracted the majority of Australians who travel to the region.
(4)Since 2012, the majority of Australians travelling to the conflict in Syria and Iraq have been males aged between 18 and 35 years but, since mid 2013, there has been an increase of younger Australians, including teenagers, travelling to the region.
(5)The reasons for Australians’ travelling to the region are various but include:
(a)Existing ties between Australians already with Islamic extremist groups and those travelling to the Middle East.
(b)ISIL’s declaration of the Caliphate and its leaders’ call to Sunni Muslims to travel to, and defend, that Caliphate. The Caliphate has an important place in the history and beliefs of Islamist extremists who need to pledge allegiance to the Caliph and who seek to emigrate to, and live within, the territory it controls.
(c)Increasingly sophisticated material is being prepared by Islamic extremist groups. It is graphic, pervasive and highly professional in its presentation. Contrary to earlier experience when it was less accessible, that material is now readily accessible as it is disseminated across a range of social media.
(i)The material promotes the camaraderie to be had with those already fighting in Syria and Iraq and the region. It emphasises the glory, excitement and allure that is said to accompany fighting with other jihadists, including one’s own countrymen, united in a common purpose.
(d)Radicalisation directed at younger Australians, including teenagers, and an emphasis on the allure of the conflict in Syria and Iraq has seen greater numbers of them travel to the region since mid 2013.
(e)It is still relatively easy to travel to the region with online assistance being available to assist travellers pass through Turkey and then on to Syria and Iraq to join Islamic extremist groups.

Mr Drummond said that, in ASIO’s assessment, regardless of the time they spend with Islamic extremist groups, Australians are given weapons training and are expected to join in some level of fighting. They are also given religious instruction designed to reinforce their commitment to an ideology promoting violence, including that directed against the west.

In support of his statement, Mr Drummond pointed to:
(1)The direct involvement of Australians in acts of extreme violence in Syria and Iraq including three Australian suicide bombers.
(2)Australians have been complicit in, or supportive of, extreme violence in Syria or Iraq even though they have not been directly involved.
(3)A smaller number of Australians hold religious leadership positions, produce official and non-official propaganda, are engaged in health care and provide logistical support.
(a)Logistical support includes funding, travel assistance including the acquisition of travel documentation and provision of operational security.
(4)More than 50 Australians who have been involved with Islamic extremist groups have been killed. The greatest number of those killed have been aligned with ISIL.
In his oral evidence that was given in the presence of CMHV and his solicitor, Mr Eidelson, Mr Drummond explained how ASIO is concerned about Australians’ travelling overseas either to join or associate with terrorist groups. He explained that the ability of those groups to achieve their goals is dependent upon a range of factors. Those factors include the resonance of their message local communities, the quality of government and governance in the region including the quality of the police and military available to the government and the resources available to the terrorist organisations. Resources include people with the requisite skills and knowledge as well as the attributes they can bring to bear in terms of the achievement of the organisation’s objectives. Technology is also important as are weapons and reliable ongoing sources of supply. Persons with administrative and management skills are required to organise these resources and to find ways of securing them. Others are required to manage financial matters and communications. The nature and quantity of the resources available to a terrorist organisation can influence its capacity to act and the extent of its “reach” whether nationally or internationally.
Mr Drummond referred to three Australian suicide bombers who have ended their lives in Syria or Iraq since the start of the conflict. Two killed other people as well as themselves and one killed only himself. Two other Australians have been pictured with prisoners and with getting a young child to hold up a severed head.
There are those, Mr Drummond said, who have seen extremist activities or their results when they have been overseas and who have turned away from an extremist ideology. Of those who do not, they are likely to pose a more significant threat on their return. That follows from their having acquired skillsets and connections, which they gained overseas and did not possess before they left Australia. Their ideology will have been reinforced by an extremist ideology. Mr Drummond referred to 30 or so people having returned to Australia in the late 1990s to the early 2000s following experiences of this type. They became involved in extremist activity onshore including terrorist planning. Some are in gaol as a consequence of their activities.
SUBMISSIONS
In this section of our reasons, we will summarise only the essence of the submissions made on behalf of each party. Mr Eidelson set out CMHV’s background as a young man born and educated in Melbourne. He referred to CMHV’s having worked in the construction industry and to his extended family. In 2013, he wanted to spend time with those members of his family who lived in Turkey and to spend time with his parents and sister who moved to Turkey while he was there. While he was in Turkey, CMHV looked for a fiancée but without success. He was to find one on his return to Melbourne at the end of 2015.
Mr Eidelson submitted that CMHV denies the allegations against him and has not participated in PMV. Furthermore, he does not adhere to an extremist form of Islamic ideology and does not associate with individuals involved in activities prejudicial to security. While in Turkey, there is no credible evidence that he ever travelled outside Turkey.
CMHV loves Australia, Mr Eidelson submitted, and identifies with its culture. He identifies with its history, religious traditions, demography, food, music and lifestyle. CMHV is an Australian and he seeks to be allowed to hold an Australian passport.
CONSIDERATION
Nature of merits review

At [26] of his affidavit, Mr Drummond referred to Briefing Notes prepared for the Director-General. A statement had been made in those Briefing Notes to the effect that CMHV had not been interviewed because he would be alerted to ASIO’s security concerns. This statement, Mr Drummond said, was not correct. In cross-examination, Mr Eidelson questioned him about this statement. Mr Drummond agreed that he had not made any statement in his affidavit to the effect that the Director-General had been advised of the error. At the heart of Mr Eidelson’s cross-examination was the proposition that the inaccuracy in the Briefing Notes meant that the Director-General reached a decision regarding the adverse security assessment either on the basis of, or at least influenced by, inaccurate information.
In reviewing the Director-General’s decision, we must conduct a de novo review of that decision on the basis of all of the relevant evidentiary material and according ensuring procedural fairness to each party in so far as the common law obligation to do so is not limited or excluded by the particular provisions of the AAT Act relating to the Security Division.[27] The procedure followed by the Director-General and the matters to which his attention was drawn or to which he had regard are of no relevance to us. As Smithers J said in Drake v Minister for Immigration and Ethnic Affairs:[28]
“… The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. …”[29]
To repeat what Bowen CJ and Deane J said:
“ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. …”[30]
[27] We note that the provisions of s 39 of the AAT Act requiring that the Tribunal shall ensure that every party is given a reasonable opportunity to present its case does not apply to the Security Division. That does not mean that the Tribunal is not required to accord procedural fairness for there is a common law obligation to do so unless that obligation is limited or extinguished by the statute: Re Refugee Tribunal; Ex Parte AALA [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219 at [41]; 101; 231 per Gaudron and Gummow JJ with whom Gleeson CJ agreed. The limits of that obligation are to be found in the legislative regimen established by Parliament for the review of decisions in the Tribunal’s Security Division.
[28] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409; Bowen CJ, Smithers and Deane JJ
[29] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 599; 77; 429-430
[30] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J
Reviewing the decisions
Cases of this sort are always difficult for we are not permitted to put to CMHV the information that is given in evidence in the closed part of the hearing. That means we must be particularly careful in assessing the weight and probity of the evidentiary material that is put to us in the closed session. We must keep in mind what it is that CMHV has said and keep our minds open to the explanations that he might give were he to have the opportunity to respond to that evidentiary material and to remind ourselves that events take on a different hue when viewed from different perspectives. Whether we are reviewing a decision in the Tribunal’s Security Division or any of its other Divisions, the assessment of evidence may be described as being about patterns. It may be that one piece of evidentiary material when viewed alone may suggest a finding of fact that may support one party or another. A single piece of evidence is, however, only a snapshot of the whole. Only by looking at each snapshot, as it were, can the whole pattern be seen. Only by looking at the whole pattern can findings be made or, in a case such as this, can there be a basis for suspecting, on reasonable grounds, that a person would be likely to behave in a certain way i.e. engage in conduct that might prejudice the security of Australia or of another country.
We have set out CMHV’s background earlier in our reasons. He presented as a young man who had grown up in Australia. He had prayed at his local mosque regularly and also at other mosques in his broader neighbourhood as a follower of Islam. His evidence is that he did neither supported violent jihad or violence generally and nor did he support the establishment of an Islamic caliphate by force in Syria.
At the same time, CMHV appeared at the hearing to be a persons who was somewhat lost and looking for his way in life. He said that he had been treated for a depressive state for the previous six or seven months but did not tender any medical evidence to support his statement or to show its effect on him. CMHV had found a fiancée a week or so before the hearing but he was yet to find work of any substance or longevity. His plans to marry and to repay the debts he had accrued since his return to Australia in November 2015 appeared unrealistic given that, at the time of the hearing, he was yet to work for more than a couple of weeks since his return to Australia from Turkey almost eighteen months before the hearing. He could not provide the names of any friends whom he said would give him work.
Putting aside his fiancée, CMHV’s description of his life in Australia was consistent with the description of his life in Turkey. It was a description of working only for very short periods in non-skilled work while he spent many of his days travelling around Istanbul and, as he said, “just holidaying” and spending time with his family. He travelled once with friends to a village in southern Turkey. Unlike Australia, he did not have to meet rent and living expenses as he stayed with his grandparents.
For reasons we give in our closed reasons, we find that the evidentiary material put forward by ASIO is both relevant and probative. We have had regard to the opinions and assessments expressed by Mr Drummond and have read any material on which he has formed those opinions and assessments. After examining the evidentiary material in the way we described in [38] above together with the open evidence, we have also come to the view that, gives us reason to suspect on reasonable grounds that CMHV would be likely to engage in conduct of the sort described in ASIO’s assessment and of a class that might prejudice the security of Australia or of another country. Therefore, we have affirmed the adverse security assessment issued by the Director-General on 15 December 2015 under s 37 of the ASIO Act.
Our decision is relevant in our review of the Minister’s decision under s 14 of the Passports Act. For reasons we have set out in our closed reasons for decision, we are also of the view that there are reasonable grounds for suspecting that CMHV would be likely to engage in conduct that might prejudice the security of Australia or of a foreign country in the future. Do we suspect on reasonable grounds that CMHV should be refused a passport in order to prevent him from engaging in that conduct? Again, for the reasons we give in our closed reasons, we have reached that state of mind and affirm the Minister’s decision dated 20 December 2015 to cancel CMHV’s passport under s 22(2)(d) of the Passports Act.
The third decision under review relates to the Minister’s decision dated 20 December 2015 to order CMHV to surrender his Turkish passport. Our reasons for affirming her decision are also set out in our closed reasons. In making that decision, we realise the CMHV will be unable to leave Australia in order to visit his family. Family relationships are clearly important to CMHV and we appreciate that separation from them will be very difficult for him. The law under which we are required to review the Director-General’s and the Minister’s decisions is directed to Australia’s security and does not give us leeway to consider the effect of the decisions on an individual’s personal life.

SECURITY ASSESSMENTS
Legislative framework
A.ASIO’s function to furnish security assessments to Commonwealth agencies

Among the functions assigned to ASIO is that of advising 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. That function is specified in s 17(1)(c) of the ASIO Act and security assessments are made by ASIO in carrying it out.[31] Regulations made under the ASIO Act may prescribe matters to be taken into account and matters that are not taken into account in the making of assessments, or of assessments of a particular class. If made, they are binding on ASIO and on the Tribunal.[32]
[31] ASIO Act’ s 37(1)
[32] ASIO Act; s 37(3)
In the context of a Commonwealth agency, the expressions “security assessment” or “assessment” are defined to mean:
“… a statement in writing furnished by the Organisation to a Commonwealth agency … expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.”[33]
[33] ASIO Act; s 35(1)
The expression “prescribed administrative action”, to which reference is made in this definition is itself defined in s 35(1). In so far as it is relevant in this case, it provides:
“prescribed administrative action means:
(a)…
(b)…
(c)the exercise of any power, or the performance of any function, in relation to a person under the … the Australian Passports Act 2005 or the regulations made either of those Acts; or
(d)…”
A competent authority’s decision to make a refusal/cancellation request in relation to a person under s 14(1) of the Passports Act, for example, is an exercise of power in relation to a person under the Passports Act. Therefore, it is a “prescribed administrative action” for the purposes of s 35(1) of the ASIO Act.
B.Making a security assessment
B.1Legislative power
In this context, the word “security” is defined in s 4 of the ASIO Act to mean:
“(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i)espionage;
(ii)sabotage;
(iii)politically motivated violence;
(iv)politically motivated violence;
(v)attacks on Australia’s defence system; or
(vi)acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa)the protection of Australia’s territorial and border integrity from serious threats; and
(b)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).”
The expression “politically motivated violence” is defined in s 4 of the ASIO Act 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
(b)acts that:
(i)involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and
(ii)are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or constitutional system of government of the Commonwealth or of a State or Territory; or
(ba)acts that are terrorism offences; or
(c)acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(d)acts that:
(i)are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or
(ii)threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General.”
A “terrorism offence”, to which paragraph (ba) of the definition of “politically motivated violence” refers is defined in s 4 to mean:
“(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(b)an offence against Part 5.3 of the Criminal Code.
Note:A person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorism act (as defined in that Part) occurs.”

The Criminal Code is the Schedule to the Criminal Code Act 1995.[34] Division 72 is concerned with explosives and lethal devices and is not relevant in this case. Part 5.3 of the Criminal Code is concerned with terrorism. Subdivision B of Division 102 makes provision for a number of offences in relation to, in general terms, terrorist organisations. Each of the offences applies whether or not the conduct constituting an alleged offence occurs in Australia and whether or not a result of the constituting an alleged offence occurs in Australia.[35] By including acts that are terrorism offences in the definition of PMV, Parliament is determining that “security” includes protection from such acts and does not require an assessment of the gravity of the offences. When regard is had to the range of terrorism offences, it becomes apparent that a person may commit such an offence merely by taking action that facilitates or enables others to commit acts of PMV. Of relevance in this case are the following offences:
[34] Criminal Code Act 1995; s 3
[35] Criminal Code; ss 102.9 and 15.4
(1)Section 102.3: Membership of a terrorist organisation
“(1)     A person commits an offence if:
(a)the person intentionally is a member of an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 10 years.
(2)Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.
Note:A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).”
(2)Section 102.4: Recruiting for a terrorist organisation
“(1)     A person commits an offence if:
(a)the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the first-mentioned person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2)A person commits an offence if:
(a)the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.”
(3)Section 102.5: Training involving a terrorist organisation
“(1)      A person commits an offence if:
(a)the person does any of the following:
(i)intentionally provides training to an organisation;
(ii)intentionally receives training from an organisation;
(iii)intentionally participates in training with an organisation; and
(b)      the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty:Imprisonment for 25 years.”
(4)Section 102.6: Getting funds to, from or for a terrorist organisation
“(1)     A person commits an offence if:
(a)the person intentionally:
(i)receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or
(ii)collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2)A person commits an offence if:
(a)the person intentionally:
(i)receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or
(ii)collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b)the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
(3)Subsection (1) and (2) do not apply to a person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:
(a)legal representation for a person in proceedings relating to this Division; or
(b)assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.
Note:A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).”
(5)Section 102.7: Providing support to a terrorist organisation
“(1)     A person commits an offence if:
(a)the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2)       A person commits an offence if:
(a)the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b)the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
(6)Section 102.8: Associating with terrorist organisations
“(1)     A person commits an offence if:
(a)on 2 or more occasions:
(i)the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and
(ii)the person knows that the organisation is a terrorist organisation; and
(iii)the association provides support to the organisation; and
(iv)the person intends that the support assist the organisation to expand or to continue to exist; and
(v)the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
(b)the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(2)A person commits an offence if:
(a)the person has previously been convicted of an offence against subsection (1); and
(b)the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and
(c)the person knows that the organisation is a terrorist organisation; and
(d)the association provides support to the organisation; and
(e)the person intends that the support assist the organisation expand or continued to exist; and
(f)the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
(g)the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(3)Strict liability applies to paragraphs (1)(b) and (2)(g).
(4)This section does not apply if:
(a)the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or
(b)the association is in a place being used for public religious worship and takes place in the course of practising a religion; or
(c)the association is only for the purpose of providing aid of a humanitarian nature; or
(d)the association is only for the purpose of providing legal advice or legal representation in connection with:
(i)criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future); or
(ii)proceedings relating to whether the organisation is a terrorist organisation; or
(iii)a decision made or proposed to be made under Division 3 of Part III of the Australian Security and Intelligence Organisation 1979, or proceedings relating to such a decision or proposed decision; or
(iv)a listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoked such a listing, or proceedings relating to such a listing or application or proposed application or listing; or
(v)proceedings conducted by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’; or
(vi)proceedings for a review of a decision relating to a passport or other travel document or a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).
Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).
(5)This section does not apply unless the person is reckless as to the circumstances mentioned in paragraph (1)(b) and (2)(g) (as the case requires).
Note:A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).
(6)This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).
(7)A person who is convicted of an offence under subsection (1) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place:
(a)at the same time as that conduct; or
(b)within 7 days before or after any of those occasions.”
(7)Section 103.1: Financing terrorism
“(1)      A person commits an offence if:
(a)the person provides or collects funds; and
(b)the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
Note:Intention is the fault element for the conduct described in paragraph (1)(a). See subsection 5.6(1).
(2)A person commits an offence under subsection (1) even if:
(a)a terrorist act does not occur; or
(b)the funds will not be used to facilitate or engage in a specific terrorist act; or
(c)the funds will be used to facilitate or engage in more than one terrorist act.”
(8)       Section 103:2 Financing a terrorist
“(1)     A person commits an offence if:
(a)the person intentionally:
(i)makes funds available to another person (whether directly or indirectly); or
(ii)collects funds for, or on behalf of another person (whether directly or indirectly); and
(b)the first-mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
(2)A person commits an offence under subsection (1) even if:
(a)a terrorist act does not occur; or
(b)the funds will not be used to facilitate or engage in a specific terrorist act; or
(c)the funds will be used to facilitate or engage in more than one terrorist act.”

Section 23 of the Foreign Passports Act provides that an application may be made to the Tribunal for review of a decision made by the Minister under s 16 to order the surrender of a person’s foreign travel documents. If the Minister’s decision is in response to a request made under s 15, she may certify that the decision involved matters of international relations or criminal intelligence. She has not done so and, therefore, s 23(4) does not operate to restrict the decision that the Tribunal may make under s 43 of the AAT Act.[127]
[127] Section 23(4) provides that, the Minister has given a certificate under

I certify that the preceding 124 (one hundred and twenty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Forgie, Senior Member Fice and Senior Member Nikolić AM CSC

................[sgd]....................................................

Personal Assistant

Dated: 22 September 2017

Dates of hearing:

10 and 11 April 2017

Solicitor for the Applicant:

Mr Aaron Eidelson

Counsel for the Respondent:

Solicitor for the Respondent:

Mr Paul Connor QC

Mr Evan Evagorou,
Australian Government Solicitor

(f) Jabhet al-Nusra; (g) Support Front for the People of Syria from the Mujahideen of Syria in the Places of Jihad; (h) The Victory Front: r 5(2)