CXQY and Director-General of Security
[2013] AATA 895
[2013] AATA 895
Division SECURITY APPEALS DIVISION File Number(s)
2012/2920
Re
CXQY
APPLICANT
And
Director-General of Security
RESPONDENT
DECISION
Tribunal Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JL Redfern, Senior MemberDate 16 December 2013 Place Sydney Decision Summary:
The Respondent’s decision to issue an adverse security assessment in respect of the Applicant is affirmed.
........................................................................
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 – refusal of Minister to approve applicant becoming an Australian citizen – whether applicant directly or indirectly a threat to security – what constitutes politically motivated violence
Legislation
Administrative Appeals Tribunal Act 1975 ss 39A, 39B, 43AAA
Australian Security Intelligence Organisation Act 1979 ss 4, 17(1), 35(1), 37
Australian Citizenship Act 2007 s 24
Cases
Re BLBS and Director-General of Security (2012) 129 ALD 380
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Comcare v Martinez [2013] FCA 439
DPP (Cth) v Fattal [2013] VSCA 276
Minister for Immigration and Citizenship v Anochie (2012) 299 ALR 280
Secondary Materials
Security Assessment Determination No 2, 28 July 2010
REASONS FOR DECISION
Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JL Redfern, Senior Member
CXQY (the Applicant) has applied for a review of an adverse security assessment made by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO) (the Respondent) who assessed that CXQY holds an extremist interpretation of Islam and is likely to engage in activities prejudicial to security. The Director-General assessed that CXQY is therefore directly or indirectly a risk to security and advised that the Minister for Immigration and Citizenship must not approve his application for Australian citizenship.
Background
[redacted].
In 2011, CXQY applied for Australian citizenship. His file was referred to ASIO for a security assessment and interviews with him were conducted by two ASIO officers on 1 November 2011 and on 9 December 2011. CXQY voluntarily attended the interviews. He was not, however, informed that he could choose not to attend and nor was he informed that he could be accompanied by his lawyer at the interviews. At the second interview, the ASIO officers told CXQY that he was being dishonest and evasive, particularly when discussing his associations. Notes of the interviews prepared by ASIO and a copy of the transcripts of the interviews were included in the documents provided to the Tribunal.
On 21 May 2012, the Director-General made an assessment that CXQY “is a direct or indirect risk to security” within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) for the purposes of s 24(4) of the Australian Citizenship Act 2007. Section 24(4) provides relevantly that the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment is in force under the ASIO Act that the person is directly or indirectly a risk to security within the meaning of s 4 of that Act. The “open” version of the Statement of Grounds for this assessment states that “ASIO assesses [CXQY] holds an extremist interpretation of Islam and is likely to engage in activities prejudicial to security”.
On 10 July 2012, CXQY applied to the Tribunal for a review of the Director-General’s decision.
RELEVANT LAW AND ISSUES
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:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal 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).
“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
(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 the 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 the Crimes (Foreign Incursions and Recruitment) Act 1978 , 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.
The following definitions appear in s 35(1).
·“Security assessment or assessment” is relevantly defined as meaning a statement in writing furnished by ASIO to a Commonwealth agency expressing any recommendation, opinion or advice on, or referring to whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of the person.
·“Adverse security assessment” is relevantly defined as meaning a security assessment in respect of a person that contains (a) any opinion, advice or information that is or could be prejudicial to the interests of the person, and (b) a recommendation that “prescribed administrative action” be taken or not taken in respect of the person, the implementation of which would be prejudicial to the interests of the person.
·“Prescribed administrative action” is relevantly defined as including the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007 or regulations made under that Act.
Subsection 24(1) of the Australian Citizenship Act 2007 provides that if a person makes an application for Australian citizenship, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(4) provides that, subject to an exception that is not relevant here, the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment in respect of the person is in force under the ASIO Act that the person is directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act.
The principal issue for the Tribunal is whether the adverse security assessment issued by the Director-General was warranted. This requires that the Tribunal determine whether ASIO was correct in its assessment that CXQY holds an extremist interpretation of Islam and is likely to engage in activities prejudicial to security in terms of the definition of “security” in s 4 of the ASIO Act.
The “closed” version of ASIO’s Statement of Grounds which are subject to the Ministerial certificate prohibiting disclosure of the contents of the Statement of Grounds contains additional specific allegations. The certificate was issued by the Attorney-General pursuant to the power contained in s 39B(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal was and is prohibited from disclosing those allegations to either the Applicant or his lawyer. Nevertheless, in so far as it was possible, the Tribunal tested the evidence for those certificated allegations during its closed hearings.
The procedure governing the conduct of the Tribunal’s review is that stipulated in s 39A and s 39B of the AAT Act.[1] Section 43AAA(2) provides that upon the conclusion of this review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the Tribunal’s opinion as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. However, s 43AAA(3) provides that the Tribunal must not make findings in relation to an assessment that would have the effect of superseding any information taken to be part of the assessment unless, in the Tribunal’s opinion, the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security.
[1] See for example, Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380, at [43ff].
ASIO’S UNCLASSIFIED EVIDENCE
Under the pseudonym of Lachlan Sawyer, a senior ASIO officer with responsibility for managing the Branch within ASIO responsible for the security intelligence investigation and assessment of CXQY, provided an open affidavit dated 20 December 2012 and a later closed affidavit and gave evidence at the hearing both in open and closed sessions. Mr Sawyer said he has relevant postgraduate qualifications, has lived in the Middle East for extensive periods, and his training has included a study of different religions. He also has resources available to him to reference particular religious issues. Mr Sawyer’s closed affidavit and much of the evidence relied upon by the Respondent is the subject of Ministerial certificates issued pursuant to s 39A(8) of the AAT Act and, therefore, was not disclosed to the Applicant and may not be disclosed in this Statement of Reasons.
Non-disclosure to the Applicant made Mr Martin’s task of cross-examining Mr Sawyer and presenting a case for the Applicant a very difficult one. In relation to Mr Sawyer’s evidence, conscious of those difficulties, the Tribunal invited Mr Martin to identify any questions to which the Applicant sought an answer, but which would be subject to the Ministerial certificates. The Tribunal undertook to put any such questions to Mr Sawyer in closed session. It did so.
Mr Sawyer stated that ASIO assesses that CXQY holds an extreme interpretation of Islam:
ASIO considers that extremism is an acceptance of violence to achieve ideological ends, including religious objectives. Extremism is different to fundamentalism, which is considered a strict adherence to the tenets of a belief system. Of itself, fundamentalism is not of security concern. The core attribute of extremism, on the other hand, is to cross from fundamentalism to a belief in the legitimacy of violence.
Mr Sawyer said it is the condoning and encouraging of violence to achieve religious objectives which tips fundamentalism into extremism. ASIO is concerned about extremism which condones politically motivated violence.
Mr Sawyer stated that ASIO assessed that CXQY was dishonest and evasive particularly when discussing his associates at the first and second interviews. His answers to questions contain lies, deceits and misleading information. CXQY’s conduct at the interviews is a “factor” taken into account by ASIO in making its assessment. Mr Sawyer stated that CXQY has maintained associations with persons who are of security concern to ASIO, in particular, [Mr A] and [Mr B], and ASIO assesses that CXQY shares their view that violence is an acceptable means of achieving political and religious ends. ASIO assesses that if CXQY were to be granted Australian citizenship, he is likely to engage in activities prejudicial to security.
Mr Sawyer said [Mr A] is an associate of CXQY who has had his passport cancelled following an adverse security assessment by ASIO. He is reported to have had contact with al-Qa’ida in the Arabian Peninsula (AQAP), a proscribed organisation in Australia. CXQY denied knowing [Mr A] at the first interview and, at the second interview, while initially denying that he recognised [Mr A] in a photograph, admitted doing so when pressed. [Mr A] has been in prison for much of the past two years. Mr Sawyer said that notwithstanding that [Mr A] has only been out of prison for four or five months in this period, ASIO continues to have concerns about the association between CXQY and [Mr A].
[Mr B] is also the subject of an adverse security assessment and his Australian passport has been cancelled. Mr Sawyer said that ASIO assesses that [Mr B] would be likely to engage in militant activities in support of Islamist extremists if permitted to travel overseas. While CXQY acknowledged knowing [Mr B], ASIO assesses CXQY downplayed and was dishonest and evasive in describing their association. At the second interview, while initially denying that he recognised [Mr B] in a photograph, CXQY admitted doing so when pressed. Mr Sawyer said ASIO assesses [Mr B] to be a close associate of CXQY and that their association is a significant relationship which is not linked to frequency of contact. The association is of ongoing concern to ASIO.
In cross-examination, Mr Sawyer said all citizenship applications are referred to ASIO. ASIO does not compel a person to participate in a security assessment interview. Every opportunity is taken to explain the role of the interview and the atmosphere is designed to assist the person in providing relevant information. Mr Sawyer said he is not aware whether CXQY was told that the interviews were not compulsory and that he could have someone, for example a lawyer, with him at the interviews. The first interview was organised by the Department of Immigration and Citizenship (DIAC) but the second interview was organised by ASIO. On neither occasion did CXQY ask for a lawyer to be present with him.
CXQY’S EVIDENCE
CXQY provided an affidavit dated 25 January 2013 and gave oral evidence at the hearing, which, in accordance with s 39A(5) of the AAT Act, was held in private. CXQY said he was born in [redacted] where he lived with his parents, who are of [redacted] background, until they moved to [redacted] in about 1992 when he was aged seven or eight. He attended school and university in [redacted]. He completed an undergraduate degree in Management Information Systems in 2003 and then worked as a finance officer in an engineering company between 2003 and 2005.
CXQY said he has only travelled to [redacted] on two occasions, when he was about [redacted], staying for two to three months on each occasion. He still has relatives in [redacted]. Three family members have been killed [redacted]. CXQY acknowledged that such killings make him feel angry – because they were innocent people – but there is nothing he can do about it. He said he was told the Israeli Army was at fault: the Israeli Army is prone to act disproportionately and many Palestinians consider their actions oppressive. CXQY noted that the Palestinian conflict is about land and not about religion.
CXQY said he was born a Sunni Muslim and has been a practising Muslim since the age of 10. He is very proud of his good understanding of the Quran which he studied for over 10 years at school.
CXQY said he arrived in Australia on [redacted] 2005. He came to Australia to study and also to live in a free, democratic country. He did not experience this sort of freedom in [redacted]. He does not have any relatives here. On arrival, he enrolled in a 10 week English language course at [redacted] to gain the appropriate IELTS (International English Language Testing System) score to enable him to undertake tertiary study, and on completion, he enrolled in an Information Technology (IT) course at [redacted] which he completed in [redacted]. CXQY said [redacted] he does not want a desk job and prefers physical work.
CXQY’s work history in Australia appears to be largely of part-time and casual work. He said he wanted to join the [redacted] Police Academy but for this he would need to be an Australian citizen. This explains why he kept calling ASIO to find out what was happening to his citizenship application after the security interviews. When he realised ASIO was going to take its time with its assessment, he decided to move to Perth and pursue another career, such as working in the mines or [redacted]. He was successful in getting a job [redacted] and had hoped to work there for three years, but his employment was terminated without explanation after three months. He has also thought of doing a one year course to qualify as a telecommunications technician.
CXQY said he had to undergo police checks to get his job [redacted]. [redacted]. [redacted]. CXQY said no reason was given for the termination of his employment. The only information he was given was that it had been on instruction from Canberra and his immediate thought was that it was ASIO which was responsible and this made him depressed and angry. He still feels oppressed and prays every day for God to bring him justice.
CXQY said he met [Ms C] in [redacted] through a mutual friend and they started dating. They were married in [redacted]. [redacted] They separated in [redacted] and were divorced in [redacted]. CXQY said they argued about little things. [Ms C] “had an issue with head covering” and did not want any daughter of theirs to have to wear such a covering. CXQY had agreed that any child of theirs should not be forced to do something against her will. However, if she chose Islam, wearing a head covering is a compulsory part of being a practising Muslim.
CXQY said that shortly after arrival in Australia, he went to live with a friend in [redacted], [Mr D]. [Mr D] had converted to Islam about two years previously, as had another person living in the house, [Mr E], who had converted to Islam about a year previously. CXQY said while living in [redacted], he used to visit the [redacted] Mosque to pray. He was not seeking religious instruction because he knows his religion very well and is satisfied he has everything he needs. CXQY said he would sometimes teach Arabic to [Mr D] and [Mr E] so that they could learn to read the Quran in Arabic. [Mr D] would also sometimes ask him questions about the lawfulness of particular conduct. [Mr D] went to Saudi Arabia to study in Medina in 2007.
As to other friends, CXQY mentioned [Mr F], who is from Lebanon, with whom he had worked casually as a cashier in a convenience store [redacted], whom he used to meet up with every two to four weeks. CXQY said he also met up with [Mr G] about once every month or two. It was [Mr H] whom he used to see most – usually once or twice a week. CXQY said [Mr H] is from Jordan and arrived in Australia a week after CXQY. They would “catch up for dinner … [and] sometimes go the gym together”. CXQY said that he had met [Mr B], whom he knew as [redacted], when he went to buy a pizza in the pizza shop where [Mr B] worked in [redacted]. On that occasion, they talked for about 15 minutes. Subsequently, CXQY saw [Mr B] at the [redacted] Mosque and they talked for about 10 minutes about normal everyday things. It was probably on this occasion that they exchanged mobile telephone numbers.
CXQY said a few weeks later, he went to the pizza shop again and he and [Mr B] talked for about 30 minutes because the shop was not busy. [Mr B] asked him about several verses in the Quran, including about the verse on “jihad” where the Prophet tells his people to kill all disbelievers wherever you find them. CXQY had replied that the context in which the Prophet said this was one in which their city was under attack 1,400 years ago. This instruction does not have general application today – it applied on one specific occasion in the Prophet’s time. CXQY said [Mr B] also asked about the use of prayer beads or “pearls”: [Mr B’s] knowledge of Islam was poor because he had only begun practising Islam about five months earlier. (CXQY said [Mr B] had come to Australia from [redacted] at a young age.)
After this third meeting, CXQY said [Mr B] phoned to ask him to dinner at [Mr B’s] home in [redacted] on the following day. CXQY said he was there for about two hours: they had dinner, watched a “footy game” on television, and talked about normal things – nothing religious. CXQY said when the ASIO officers asked him about [Mr B], he thought he would be “in trouble” just by knowing him, even though he did not know him very well. CXQY acknowledged that he was not full and frank with the ASIO officers about his relationship with [Mr B] and there was more he could have revealed. CXQY agreed that he had invented another person called “Ali” to distract the officers from their focus on [Mr B]. CXQY denied that [Mr B] had ever said anything to him about committing military jihad overseas or even being interested in this, and nor about pursuing terrorist activity in Australia.
CXQY said that after his discussion with [Mr B] about prayer beads, he regarded [Mr B] as more of an acquaintance than a close friend. He acknowledged that [Mr B] would have contacted him by telephone or he would have phoned [Mr B] to arrange to meet. They might also have made contact by text message. For example, they arranged to meet for dinner at a restaurant at [redacted] serving [redacted] food. They were there for approximately an hour and talked about normal, everyday things and not about religion. At the end of having dinner, they would have agreed to meet up “whenever”.
CXQY said he became concerned that [Mr B] was listening to and was influenced by the “wrong people” – people like [Mr A] who have no real background in Islam and do not know much about it. CXQY said it was [Mr B] who introduced him to [Mr A] at the [redacted] Mosque [redacted]. After prayers, they sat and had a drink at the back of the Mosque and talked. There were a few other people present, mainly [redacted] students with their wives and families and also [redacted] the caretaker of the Mosque. It was the first time CXQY had met [Mr A]. [Mr B] told him that [Mr A] had only been practising Islam for about nine months.
At their meeting at the Mosque, CXQY said that “all of a sudden” [Mr A] started taking about jihad, saying that it was necessary. CXQY thought [Mr A] was referring to military jihad although he did not specifically say this. CXQY said [Mr A] acted as if he knew everything about Islam but he had little depth of knowledge, less than CXQY who was not, therefore, going to be influenced by him. CXQY was not comfortable with [Mr A’s] talking so he left by himself in order to go to work. CXQY said that before he left, [Mr A] had borrowed his mobile phone and called someone to come and pick [Mr A] up.
CXQY said that after this he started getting “hadith” (reports of the deeds or sayings of Muhammad) text messages in English on his phone from someone he did not know: sometimes daily, sometimes every three days. So he called the telephone number – he might also have sent a text message asking who was sending the messages - to find out who it was. [Mr A] answered and said he had got CXQY’s number from the person he had asked to come and pick him up from the Mosque. [Mr A] asked whether receiving the messages was a problem. CXQY said it was not. (He thought there was no harm in the hadith messages, most of which he knew anyway.) That was the extent of the conversation.
CXQY said after meeting [Mr A] on this occasion, they used to meet occasionally at the [redacted] Mosque, including on an occasion when [Sheikh I] gave a lecture [redacted] on the prophet Joseph. On another occasion, they met at a dinner at [redacted] when [Sheikh I] was also present, as was [Mr B]. CXQY said he also met [Mr A] putting up posters [redacted] trying to raise money for aid in Somalia. CXQY said apart from these occasions, he has had no other email or other contact with [Mr A] and did not want any specific contact with him because of his expressed views. He learned from the ASIO officers that [Mr A’s] passport had been cancelled and is aware that he [redacted] has been in prison.
CXQY said, at the time, he did not think [Mr A] was saying anything dangerous – he did not judge him to be an extremist after only a short conversation. As a result, he did not consider reporting him to the authorities. CXQY said that in November 2011 he had no reason to think his relationships with [Mr B] or [Mr A] would get him into trouble. However, later, when CXQY learned more from the ASIO officers who interviewed him, he thought that if [Mr A] intended to participate in militant jihad, he should have reported him. If, in the future, CXQY became aware of individuals in Australia promoting militant jihad, he would report them to ASIO. CXQY said he has had only one contact with [Mr A] since the ASIO interviews. They have not had each other’s telephone numbers.
CXQY said that at the ASIO interview he guessed that [Mr B] might be of security concern because [Mr B] knew [Mr A]. He thought that [Mr A] would be of security concern having heard [Mr A’s] statement about jihad at the [redacted] Mosque. CXQY said that there had been nothing to alert him to [Mr B] being of security concern prior to this. CXQY said it is a requirement of Islam to speak the truth no matter what. He said he spoke the truth in the ASIO interviews but he had avoided talking about [Mr B] because he thought he might be in trouble as a result of knowing him. So CXQY downplayed the relationship and did not go into any detail.
CXQY said that before he left for [redacted] in early 2012, [Mr B] had told him that he had had an adverse security assessment and his passport had been cancelled. While CXQY was in [redacted], he contacted [Mr B] two or three times “to see how he was” – it was on less than five occasions because CXQY had changed his telephone number and was very busy. Their conversations were short. CXQY said [Mr B] had been nice to him while CXQY was in [redacted] and CXQY wanted to know what was going on with him. CXQY said he did not have any contact with [Mr A] while in [redacted] – neither had the other’s phone number. CXQY said he also did not contact either of them by email.
CXQY said he stayed in [redacted] for about a year. After losing his [redacted] job [redacted], he got casual work as a security guard in [redacted]. He was depressed after what had happened to him and had difficulty sleeping. He visited the mosque at [redacted] near where he was living. He prayed to get closer to God and it helped with his depression. He did not have any religious instruction while he was there. CXQY said that in February 2013, he decided to return to [redacted]. He found [redacted] a bit boring – he had no real friends there and there was not much going on. In [redacted], there is more to do and he has some friends, including [Mr H] and [Mr G]. CXQY said he had seen [Mr B] about three times since returning from [redacted]– he did not initially have [Mr B’s] telephone number because this had changed, but he saw [Mr B] at Friday prayer at [redacted] and they had lunch together afterwards at the restaurant next door. CXQY said that after what has happened to him, he does not want to talk about politics or religion with anyone, because just knowing people got him into trouble.
CXQY said that since returning to [redacted] from [redacted], he had obtained an endorsement card as [redacted] and was starting a new job in the week following the hearing.
CXQY was asked about his religious beliefs. He said “jihad” means personal struggle with anything in one’s life: for example, to provide food and clothing for one’s family, to study to complete a degree, or to not sin or blaspheme. “Militant jihad” means war, but can only be justified in defence of one’s country from attack. If you reside in a country, you have an obligation to assist in securing the country’s safety and not to harm it in any way. It is “wajib” (obligatory) to defend one’s country but only as part of a government initiative within a proper organised army. Individuals should never take action by themselves. CXQY said the situation in Syria is different because about 95% of the population are against the Assad Government and the opposition to the Assad Government is organised and like an army who are fighting to defend themselves, as the UN and other countries recognise. (The Tribunal notes that while CXQY’s observation about the UN was incorrect, at the time when he gave that evidence there was strong international support for armed or unarmed assistance to the opposition which had been recognised as the legitimate government of Syria by some nations.) In his view, the situation in Afghanistan is different because action is being taken there by individuals.
CXQY said that for Syrians who believe in Islam, it is legitimate to perform militant jihad. Those who fight as part of the organised opposition army and are killed are martyrs whose reward will be in paradise. If you refuse to fight in such circumstances, you will be punished in the afterlife. However, CXQY said a permanent resident of Australia is not allowed to fight in another country: “You shouldn’t be a citizen of a country if you are disloyal to it.” Thus, it would not be justifiable for him to join the opposition in Syria because he is not a Syrian citizen.
CXQY said extremists take verses from the Quran in isolation and use them for their own purposes. He said violence can only be justified when defending oneself. He has never thought of participating in violence because he does not believe in it. Al-Qa’ida holds an extremist interpretation of Islam, justifying the use of violence to achieve political ends. This is wrong, causes the death of innocent people, and is prohibited by the Quran. In particular, suicide bombing is not authorised by the Quran, which also prohibits a person from killing him or herself. CXQY said he is not aware of situations where a person has been contemplating committing an act of violence whether in Australia or another country. CXQY was asked about whether the Quran justifies taking “an eye for an eye”. He said what is stated in the Quran has been overtaken by civilisation. In Australia, Australian law prevails.
CXQY said Sharia Law – Islamic Law – involves implementing the Quran in one’s life and can be applied in Islamic countries. In non-Islamic countries, Muslims should live in harmony and peace alongside those from other religions. It is even acceptable for a Muslim to join the army of a non-believing country if living there.
CXQY said he has held his views about Palestine since a young age. The war started in 1948 when the Jews took Palestinian land even though they had previously been allowed to live in peace under an Islamic government. Palestinians are in the right in their struggle, but CXQY said he is not angry with civilian Jews – just with the Israeli Army. CXQY denied that in 2008 he was thinking of taking up arms against Israel: an individual cannot take action by himself - the Quran does not authorise this; it is only governments which can take action. CXQY acknowledged that Hamas is the democratically elected government of Gaza but said that the situation in Palestine is not settled because of the division between Hamas and Fatah. He would not consider it “wajib” to take up arms with or help the military wing of Hamas because Palestine is not a united country and the military wing of Hamas is not a proper organised army.
CXQY said he believes that in this life we are “tourists” and face judgement in the afterlife which is eternal. His religion keeps him calm and gives him strength. God gives you this life and you have to do something with it. He thinks of the afterlife a lot.
CXQY was asked about his use of motor vehicles and mobile phones. He said he has used two motor vehicles since 2011, both of them registered in his name. He has had four mobile phone numbers – all in his own name. He had to have a Telstra number when he was working [redacted] and when he returned to [redacted] he switched mobile phone companies. CXQY denied ever having a SIM card in another person’s name or having ever used someone else’s phone to contact [Mr B] or [Mr A]. CXQY said he uses the internet regularly: he has three or four email addresses but only uses one of these most of the time. Currently, he is using the internet account of the person with whom he is sharing a house for which he pays his share of the cost.
CXQY said he knows of Sheikh Anwar al-Aulaqi, an American Yemeni whose lectures are available on the internet. CXQY said what he had seen of his lectures were good: he had not seen a lot of them. CXQY watched Sheikh al-Aulaqi’s lectures on YouTube to see what he was talking about – in the video Sheikh al-Aulaqi was telling stories about the prophets and about fasting, and there was no reference to militant jihad. CXQY heard on the news when Sheikh al-Aulaqi was killed by an American strike. CXQY said it was probably after the ASIO interviews that he learned Sheikh al-Aulaqi was connected with al-Qa’ida and involved in militant jihad activities.
CXQY said that the fact that he watches video material on the internet does not necessarily mean that he agrees with it. He watches “anything” – it is curiosity – he likes to know what others think. He does not read very much – he gets bored when he reads – preferring to watch video material, and he often uses YouTube. He knows his religion very well and is not going to change as a result of what others say. He said he had watched a long video about the attack on the Twin Towers in New York in 2001. Some people say that the CIA knew the attack was going to happen – he does not know what happened – it is all very confusing. He has watched videos in Arabic about inflicting violence on the West, but he does not accept that view. In his view, violence is wrong and it is wrong to kill innocent people.
CXQY said he is not aware of ever having accessed anything that could be described as militant jihadi sites and has not accessed sites advocating taking up arms against a foreign government. Nor has he attended lectures promoting the use of violence. He has also not made contact with any overseas organisations that promote militant jihadi views.
CXQY said he did not know why he had been questioned by ASIO officers. Even though he said he was comfortable with being interviewed and was being honest in answering their questions, he was nervous and scared inside. The first interview, in particular, was a shock: he was told he had to have the interview to get his citizenship. He was not told that he could bring a lawyer or that he did not have to do the interview.
SUBMISSIONS
Respondent
Mr Berger, for the Respondent, contended that CXQY lied about his dealings with [Mr B] and [Mr A]. Lies damage a person’s credibility and undermine the plausibility of what might otherwise be an innocent explanation. Mr Berger referred to CXQY’s oral evidence which he said cannot be reconciled with CXQY’s evidence that his only concern with [Mr B] was that he knew [Mr A]. Moreover, the ASIO officers who interviewed CXQY when questioning him about [Mr A] never mentioned the possibility of [Mr A] going to Afghanistan to fight, yet this was referred to by CXQY in his evidence, which suggests that [Mr A] must have referred to this in CXQY’s presence.
Mr Berger noted that at the hearing CXQY had provided significantly more evidence about his association with [Mr A] and [Mr B] than he had included in his affidavit dated 25 January 2013. It revealed that he had significantly more contact with [Mr B] than he had previously disclosed. Mr Berger said CXQY’s evidence raises doubts and concerns about the truth of his evidence. The Respondent submits that the relationship between CXQY and [Mr B] and [Mr A] is much more significant than CXQY has revealed and that what is known of those relationships reveals that CXQY shares some of their views, in particular that violence can be used to achieve political ends.
Mr Berger noted that in response to a question about whether he had sought out lectures dealing with militant jihad on the internet, CXQY said “I watch everything”, albeit that he later denied ever having accessed any militant jihadi sites. Mr Berger submitted that the fact that CXQY had viewed such videos in the absence of a credible explanation supports a finding that he is of security concern. CXQY’s explanation that he watches a lot of things because he is just curious is unconvincing and the most likely explanation is that CXQY is attracted to this material. CXQY’s evidence, when considered together with other closed evidence, indicates that the Director-General’s finding that CXQY is a risk to security is justified.
Referring to CXQY’s answers to questions in cross-examination, Mr Berger contended that CXQY had dissembled in trying to distinguish the military wing of Hamas in Palestine, which CXQY said is not a proper organised army, from the opposition forces in Syria.
Applicant
Mr Martin, for CXQY, submitted that the risk to security posed by CXQY must be a real and not a remote risk. In evidence, CXQY spoke about his religious beliefs and his view of what is and is not acceptable and, in particular, that it is not acceptable to participate in politically motivated violence. CXQY has conceded that he was deceitful in the ASIO interviews and did not make a full and frank disclosure. CXQY apprehended that if he did so and disclosed his association with [Mr B] and [Mr A] he would be found guilty by association and he was concerned that he would not be given a fair assessment as a result. Mr Martin noted that in addition to the meetings described by CXQY, incidental meetings may have taken place at the Mosque: CXQY’s memory may have been clouded by the passage of time. Mr Martin referred to evidence of CXQY having had five telephone calls with [Mr B] and one telephone call with [Mr A]. With regard to CXQY’s not reporting [Mr A’s] comments about jihad, Mr Martin repeated that CXQY was motivated by not wishing “to be tarred with the same brush” but also, possibly, misjudged the seriousness of [Mr A’s] views.
Mr Martin said CXQY had referred to the Syrian, Afghan and Palestinian conflicts and gave evidence that he did not intend to involve himself in any of those conflicts. If CXQY had wished to do so, he could have used his [redacted] passport to come and go from Australia as he pleased. CXQY volunteered information about his viewing jihadi videos as part of his interest in learning about different viewpoints. CXQY’s evidence about his interpretation of the verse about jihad in the Quran shows that he understands the historical context of this verse, being the defence of one’s country from attack, and distinguishes this from the present day in identifying what conduct is appropriate in particular situations.
Mr Martin acknowledged that given CXQY’s adherence to certain beliefs, it might be considered that he has a fundamentalist view of Islam. However, he does not hold an extremist view of Islam and has stated his view that individual politically motivated violence is not acceptable. Mr Martin contended that based on CXQY’s current disposition, he does not present a real risk to security and the assessment made by the Director-General was incorrect.
DISCUSSION
As noted above, the Tribunal has been provided with both “open” evidence and submissions and also with “closed” evidence and submissions, the latter being the subject of a Ministerial certificate issued pursuant to s 39A(8) of the AAT Act and which may not, therefore, be disclosed in this Statement of Reasons. This makes the Tribunal’s task of explaining its decision to the Applicant a difficult one. The Tribunal will address the full Statement of Grounds and the certificated material in an additional closed Statement of Reasons provided only to the Respondent.
As stated above, the principal issue for the Tribunal is whether the adverse security assessment issued by the Director-General was warranted. In relation to the open version of the Statement of Grounds dated 21 May 2012, the Tribunal must, in particular, consider whether ASIO was correct in the following assessment:
[CXQY] is assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to ‘security’. The basis of this assessment is supported by the following:
(a) [CXQY] holds an extremist interpretation of Islam and is likely to engage in activities prejudicial to security.
The assessment is stated to incorporate a range of intelligence obtained from ASIO investigations, and ASIO reporting referenced in the assessment includes the security assessment interviews carried out by ASIO on 1 November 2011 and 9 December 2011.
The closed (certificated) “Statement of Grounds” provided by ASIO contains additional specific allegations. The Tribunal was and is prohibited from disclosing those allegations to either CXQY or CXQY’s lawyer. Nevertheless, in so far as was possible, the Tribunal tested the evidence for those certificated allegations during its closed hearings and this is addressed in our closed decision.
At least likely
Mr Berger referred the Tribunal to the Director-General’s Security Assessment Determination No 2 which addresses the threshold and weightings to be applied in making a security assessment. At paragraph 7.2.5(b), this states:
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.
Mr Berger submitted that in accordance with the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), this Determination should be treated as policy. 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. While those factors were not present in Re Drake, 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 emphasises that the Determination is not binding upon the Tribunal we think that would not prevent our deciding this matter consistently with the policy of the Direction unless persuaded that to do so would be inconsistent with the ASIO Act or would produce an unjust outcome in the circumstances of a particular case.
The Tribunal thinks it proper to proceed on the basis that the expression “at least likely” in cl 7.2.5(b) of the Determination is constituted by ordinary words of English and that their context suggests they were used in their ordinary sense. There is nothing ambiguous or difficult to understand in the statement: “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”. An adverse assessment may have significant detrimental consequences for the person subject to it. The statement accordingly conveys the Director-General’s instruction to his staff that, after all the mandated steps within the Determination have been complied with, an adverse assessment must only be made if the overall assessment has been judged at least likely. We have proceeded on that understanding despite having been referred by Mr Berger to a number of cases regarding the meaning to be given to the word “likely” and to its synonyms such as “a real chance”. In that regard the Tribunal’s attention was drawn to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 in which McHugh J described a well-founded fear of persecution being a real chance despite there being only a 10 per cent probability that an applicant for refugee status would be shot, tortured or otherwise persecuted. Mr Berger also took the Tribunal to the Macquarie Dictionary meaning of “risk” which refers to the chance, degree of probability or likelihood of something occurring. However, the word “likely” as a word of ordinary usage is capable, depending on 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 specific statutory contexts to the context required by the ASIO Act. For a useful warning of the importance of having regard to context and function and the dangers of using concepts without that regard see Perram J in Minister for Immigration and Citizenship v Anochie (2012) 299 ALR 280 at [77]-[80]. That caution applies equally to the dictionary meanings of the word submitted to govern its interpretation: see Comcare v Martinez [2013] FCA 439 per Robertson J at [68].
Our decision has been reached having regard to the policy referred to in [64] understood as explained above. As expressed in cl 7.2.5(b) the Determination is entirely consistent with the approach the Tribunal would in any case adopt in its absence. We need not consider further the position had that not been the case.
Politically motivated violence
With regard to the meaning of the words “likely to” in the definition of “politically motivated violence” in s 4 of the Act, Mr Berger submitted that this should be interpreted as meaning that there is a real and not a remote possibility.
We think Mr Berger’s submission is apt to mislead and plainly wrong in so far as he sought to draw from those words something of relevance to the degree of satisfaction ASIO must have in order to form an adverse assessment. That impermissibly elides two quite different spheres of discourse. The definition of politically motivated violence is only relevant in so far as it brings the things in its scope within the meaning of “security.” The consequence of something being within the meaning of “security” is that ASIO is empowered to make an assessment. 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
(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 the 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 the Crimes (Foreign Incursions and Recruitment) Act 1978, 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.
The words Mr Berger draws attention to in s 4(a) are simply adjectival clauses which explain (and narrow) the kind of acts or threats of violence or unlawful harm that come within ASIO’s entitlement to make a security assessment.
In our opinion, contrary to the submissions advanced by Mr Berger, those adjectival clauses have nothing to do with the degree of satisfaction required for ASIO to assess that CXQY would engage in an act or threat of violence or unlawful harm.
The point may be illustrated by reference to an example given to the jury in the recent trial of Wissam Fattal and others. It was critical that the Crown prove the accused acted with the intention of advancing a political, religious or ideological cause (the cause of Islam) by violence. The trial judge gave the following example:
Busy Friday afternoon, Flinders Street Station is substantially damaged by deliberately planted bomb. It sounds remarkably like a terrorist offence, and the public would automatically think, “Terrorism, the bombing was the work of terrorists.” …in the example I have given you, if it turned out to be the situation of the bombing was actually caused by an angry ex-employee of VicRail who had been sacked, who is doing no more than seeking revenge on his ex-employer for sacking him, that would not fall within the definition of a terrorist offence would it? No ideological cause; not religious cause; not done with the thought of intimidating government. It is just payback, so that is why it is important to understand and deal with those matters…[2]
[2] See DPP (Cth) v Fattal [2013] VSCA 276 at [83].
The definition of “politically motivated violence” in the ASIO Act is not the same as the definition of a domestic terrorism offence but the example is useful to show what the definition does—it is includes within the range of matters relevant to an outcome (there a prosecution—here an assessment) certain kinds of violent conduct while excluding other kinds.
The definition of “politically motivated violence” says nothing as to the standard of proof or satisfaction required to establish whether or not a person has engaged or will engage in that conduct. In a criminal trial the standard of proof required is beyond reasonable doubt. In these proceedings, having regard to the policy expressed in the Director-General’s Security Assessment Determination No 2, the degree of satisfaction required is that the conduct must be assessed to be “at least likely”.
The Open Evidence
The Tribunal formed the view from CXQY’s evidence at the hearing that he holds strong religious beliefs and that these are part of the central core of his being. He expressed these beliefs and his understanding of Islam confidently and was quick to dismiss some of the beliefs of his associates, including those of [Mr B] and [Mr A], as shallow and borne of their ignorance of Islam. CXQY expressed confidence that he had a greater depth of knowledge and understanding of Islam as a result of his background and study of Islam over many years and that he would not be swayed by such shallow views.
CXQY has conceded that he was deceitful in the ASIO interviews and did not make a full and frank disclosure. He states that he was concerned that he might be considered “guilty by association” – “tarred with the same brush” – if he described his relationship with [Mr B] and his association with [Mr A] whom he must have been aware could be of security concern to ASIO. Mr Sawyer told the Tribunal that ASIO assessed that CXQY was dishonest and evasive when discussing his associates at the interviews and that his answers to questions contain lies, deceits and misleading information.
In our view, Mr Sawyer’s analysis in this regard is correct. It is clear that CXQY sought to mislead ASIO about his relationship with [Mr B] by inventing a further associate “Ali” whom he claimed had now moved to Brisbane. In his affidavit dated 25 January 2013, CXQY stated (at paragraph 50):
‘Ali’ does not exist and I made him up to avoid implication. I was under pressure from the ASIO officers and I feared that admitting I knew the alleged associates would get me into trouble. So I made it up to evade the persistent questioning.
In answer to a question in cross-examination, CXQY agreed (transcript p 81) that he invented a fictional person called “Ali” to downplay or minimise or distract attention from his relationship with [Mr B]. Even when confronted with this during the course of the second interview, CXQY failed to disclose the full nature of his relationship with [Mr B]. We also note that at the first interview CXQY denied knowing [Mr A] and, at the second interview, initially said he did not recognise him in a photograph. We note that significantly more evidence about CXQY’s relationship with [Mr B] and [Mr A] emerged during the course of CXQY’s evidence at the hearing.
The Tribunal’s assessment of the evidence is that the relationship between CXQY and [Mr B] was a reasonably close one. While we do not assess CXQY’s relationship with [Mr A] to be close, the evidence indicates that it is more significant than CXQY has acknowledged.
CXQY is of [redacted] background, [redacted]. Three members of his family have been killed in the conflict with Israel, one only recently. He said such killings make him angry because they were innocent people, but there is nothing he can do about it. When CXQY was asked by Mr Martin whether in 2008/2009 he had thought about taking up arms against the Israeli military, CXQY answered: “No way, no.”[3] He said: “I’m not a country myself to take action against another country. One individual, I can’t do anything by himself [sic].” CXQY said the Quran teaches that “it’s your government, your country who should take an action, not you”: the Quran does not authorise action by individuals. In cross-examination, CXQY agreed that militant jihad would be obligatory or wajib if one was living in a country that was attacked by another country.[4]
[3] Transcript p 17.
[4] Transcript p 86.
CXQY was asked about the current civil war in Syria. He said the opposition forces there are an organised army who are recognised as such by many countries and by the United Nations. He agreed that a person who died in the course of defending themselves from attack by the al-Assad regime would die as a martyr and many good things would await them in paradise.[5] CXQY sought to distinguish the situation in Syria from that in Palestine where the Hamas Government refuses to acknowledge Israel’s right to exist. While he acknowledged that the Israeli Army has occupied the West Bank and Gaza and is acting oppressively, he said it is not wajib to help the Palestinian people to defend themselves against such actions because “most people” disagree with Hamas and the military wing of Hamas is “not very well organised as in a proper army”.[6]
[5] Transcript p 89.
[6] Transcript p 92.
CXQY was asked whether he had ever thought of using violence. He replied: “No, never. Never will because I don’t believe in violence.”[7]
[7] Transcript p 19.
The Tribunal’s Assessment
We have given careful consideration to the open evidence and submissions by Mr Berger and Mr Martin. Notwithstanding the evidence of CXQY’s associations, we are not satisfied from the open evidence alone that the adverse security assessment should be affirmed. In our view, the open evidence indicates that CXQY holds nationalistic rather than extremist views. Our understanding of his evidence is that he supports the use of military jihad where the country in which a person is living is attacked; in such a situation, the person has an obligation to assist any organised army of the country in defending the country from attack.
However, we are satisfied from the closed evidence that CXQY holds more extreme beliefs than he told the Tribunal, in particular that violence may, in some circumstances, be an acceptable means of achieving political objectives. We are satisfied that although his beliefs related to circumstances outside of Australia, ASIO was correct to assess that CXQY was “at least likely” to engage in “politically motivated violence” within the meaning of that term as defined in s 4 of the ASIO Act.[8]
[8] See [9] above.
That conclusion entitled ASIO to make an adverse security assessment in respect of CXQY. For the purposes of the ASIO Act “security” includes the protection of, and the people of, the Commonwealth from “politically motivated violence”. We uphold the open assessment on that basis. However, as foreshadowed at [82] above, the Tribunal does not accept that ASIO’s open assessment was justified in so far as it implies the reason why CXQY was likely to engage in activities prejudicial to security was that CXQY holds an extremist view of Islam. Neither the premise that CXQY holds an extremist religious view nor any relevant link assuming he did was established by the evidence. The Tribunal doubts that this finding supersedes any “information” within the meaning of s 43AAA(3) of the AAT Act. However, if it is mistaken in that view the Tribunal records its opinion that that information was incorrect. Our Closed Reasons, which may not be disclosed to the Applicant, explain our findings in respect of the open assessment.
We are also satisfied that ASIO correctly assessed that CXQY was “at least likely” to engage in the conduct ASIO particularised in the undisclosed additional matters set out in the certificated Statement of Grounds. We therefore also uphold ASIO’s adverse assessment independently on the basis of each of those Grounds. Our Closed Reasons, which may not be disclosed to the Applicant, explain our reasons for so concluding.
Finally, the Tribunal wishes to record its concern that prior to attending the two interviews, CXQY appears to have been informed that if he wanted to be granted citizenship participating in the interviews ASIO conducted was compulsory. If so, there appears to have been no lawful basis for that assertion. We also note CXQY was not advised that he could be accompanied to the interviews by another person, including a lawyer. While DIAC rather than ASIO may have made the arrangements for CXQY’s initial interview he should not have been misinformed about his rights. However, it is unnecessary to consider the matter further. Even had we decided to disregard the evidence from the interviews, it could not have changed our decision because of the weight of the closed evidence presented to us by the respondent.
DECISION
The Director-General’s decision to issue an adverse security assessment in respect of CXQY is affirmed.
88.
89. I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President, Mr RP Handley, Deputy President, and Ms JL Redfern, Senior Member.
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Associate
Dated: 16 December 2013
Dates of hearing 28, 29, 30 August; 17 September 2013 Counsel for the Applicant Mr A Martin Solicitors for the Applicant Lumlan & Associates Counsel for the Respondents Mr A Berger Solicitors for the Respondents Australian Government Solicitor
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