DPFX and Director-General of Security

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DPFX and Director-General of Security [2023] AATA 2522 (27 July 2023)

Division:SECURITY DIVISION

File Number(s):      2021/5695

Re:DPFX

APPLICANT

AndDirector-General of Security

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle 

Member Brig. A G Warner AM LVO (Retd)

Member S Barton

Date:27 July 2023       

Place:Perth

The adverse security assessment issued by ASIO on 14 May 2021 is affirmed.

.................[Sgd].......................................................

Deputy President S Boyle

CATCHWORDS

SECURITY – ss 17(c) and 37(1) of the ASIO Act – ASIO adverse security assessment – assessment that the Applicant is directly or indirectly a risk to security - recommendation for revocation of security clearance –– Applicant’s suitability to protect security classified information – Protective Security Policy Framework – personnel security adjudicative guidelines – Security Assessment Determination No. 3 – whether there are reasonable grounds to support adverse security assessment – deliberate omission of information and concealment of relevant facts – breach of confidentiality undertaking - reviewable decision affirmed

LEGISLATION

CRIMES ACT 1914 (CTH) PT. 1AC

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) SS 3, 25, 39A, 39B

Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17, 35, 37, 38, 54

Freedom of Information Act 1982 (Cth) ss 36(3), 58(5)

CASES

BLBS, Director-General of Security [2013] AATA 820

Church of Scientology v Woodward (1982) 154 CLR 25

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

George v Rockett (1990) 170 CLR 104

Jaffarie v Director General of Security and Another (2014) 313 ALR 593

KFDJ and Director-General of Security [2022] AATA 3185

MCLT  Director-General of Security [2018] AATA 1359

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

WWKJ and Minister for Foreign Affairs [2018] AATA 3894

SECONDARY MATERIALS

Department of Defence, Protective Security Policy Framework ch 8, 12, 13

Security Assessment Determination No. 3 dated 29 May 2020 cl 5, 6, 7, 8

REASONS FOR DECISION

Deputy President S Boyle
Member Brig. A G Warner AM LVO (Retd)
Member S Barton

27 July 2023

THE APPLICATION

  1. The Applicant seeks the review of an adverse security assessment (ASA) issued by the Australian Security Intelligence Organisation (ASIO) on 14 May 2021.[1]

    [1] R1.

  2. The ASA relevantly:

    (a)Assessed the Applicant to be directly or indirectly a risk to security (within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act)) and that it would not be consistent with the requirements of security for the Applicant to continue to hold a Negative Vetting (NV1) level security clearance; and

    (b)Recommended that the Australian Government Security Vetting Agency (AGSVA) revoke the Applicant’s NV1 security clearance and that AGSVA seek a further security assessment from ASIO if the Applicant applies for another security clearance at any level.

  3. Pursuant to s 54 of the ASIO Act, an application may be made to…

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Details
Case
[2023] AATA 2522
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by an individual, referred to as the Applicant, to review an adverse security assessment (ASA) issued by the Director-General of Security (the Respondent). The Applicant, a member of the Australian Army Reserves, sought to challenge the ASA which recommended the revocation of his NV1 security clearance. The assessment was based on concerns regarding his associations with individuals holding neo-Nazi and white supremacist ideologies, his alleged dishonesty and concealment of information during the security assessment process, and a breach of a confidentiality undertaking.

The primary legal issues before the Tribunal were whether there were reasonable grounds to support the adverse security assessment, specifically concerning the Applicant's suitability to protect security-classified information. This involved determining if the Applicant's associations, conduct, and omissions demonstrated a risk to security, and whether these factors were consistent with the Protective Security Policy Framework and its personnel security adjudicative guidelines. The Tribunal also had to consider the impact of certificates issued under the *Administrative Appeals Tribunal Act 1975* (Cth) and the *ASIO Act 1979* (Cth), which resulted in certain information being withheld from the Applicant and his legal representatives.

The Tribunal reasoned that the Applicant had not demonstrated the requisite level of honesty, openness, and maturity necessary to protect security-classified information. While acknowledging the Applicant's submissions regarding his changed circumstances and his own evidence, the Tribunal found that the evidence, including the closed material, supported the conclusion that the Applicant had deliberately omitted information and concealed relevant facts during the security assessment process. This conduct, coupled with his associations, led the Tribunal to conclude that he posed a risk to security.

Consequently, the Tribunal affirmed the adverse security assessment issued by ASIO on 14 May 2021, meaning the Applicant's NV1 security clearance was not reinstated.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Pursuant to s 54 of the ASIO Act, an application may be made to the Tribunal for the review of an adverse or qualified security assessment. By application lodged in the Tribunal on 16 August 2021 the Applicant sought review of the ASA.BACKGROUND The Applicant is 25 years old. He is of Sri Lankan and English/Irish heritage. He was born in Australia. In January 2019, the Applicant enlisted as an infantry soldier (rifleman) in the Australian Army Reserves (Appendix A to Applicant’s Statement of Facts, Issues and Contentions dated 16 December 2021 (Applicant’s SFIC)). He serves in the [omitted] Battalion, presently based at [omitted] , Western Australia.[2] [2] Applicant’s affidavit 21 December 2021; Respondent’s Unclassified Statement of Facts, Issues and Contentions dated 25 November 2021 (Respondent’s SFIC). On 3 October 2019, ASIO issued a non-prejudicial security assessment in respect of the Applicant’s application for an NV1 clearance. ASIO conducted a security assessment interview (SAI) in relation to that assessment on 19 September 2019 (First SAI).[3][3] R1, UD225. In July 2020, ASIO commenced a review for cause investigation in relation to the Applicant’s NV1 security clearance. As part of this investigation, ASIO conducted a second SAI on 15 September 2020 (Second SAI).[4][4] R1, UD274. On 14 May 2021, the Respondent signed the ASA and furnished it to AGSVA. On 16 August 2021 the Applicant made the present application. The basis on which the ASA was made was set out in the Statement of Grounds (SOG)[5] issued with the ASA. The disclosable parts of the SOG were to the following effect:[6](a)The Applicant associates with leaders and members of the Society of Western Australian Nationalists Incorporated (SWAN) who adhere to a neo-Nazi, white supremacist ideology.(b)SWAN leader, David James Donis exerts influence over the Applicant.(c)The Applicant has been dishonest and has withheld information during the security assessment process thereby not adhering to his obligation as a security clearance holder.(d)Despite providing written and verbal assurances that he would maintain confidentiality, ASIO reporting revealed that the Applicant told associates about his security assessment interviews.(e)The Applicant’s disregard for confidentiality and withholding of information demonstrate his unwillingness to adhere to the responsibilities expected of an Australian Government security clearance holder.(f)The Applicant is a risk because maintaining an NV1 security clearance would provide the Applicant with ongoing training opportunities and continued access to Defence information, networks and resources classified up to and including secret.(g)Based on the Applicant’s deliberate omission of information and concealment of relevant facts throughout the security assessment process, ASIO assesses it would be a risk to security if he were to continue to hold an NV1 security clearance because he has not demonstrated loyalty, trustworthiness or an ability to protect Australian Government information and resources.[5] Pursuant to s 37(2) of the ASIO Act the SOG form part of the ASA: see [19] below.[6] R1.LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

Section 39B of the AAT Act relevantly provides:(2) If the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:(a) because it would prejudice security or the defence or international relations of Australia;…the following provisions of this section have effect.(3) A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure:(a) that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding;PROCEDURES IN THE TRIBUNAL AND THE EVIDENCE The application was heard on 7, 8 and 9 February 2023. The Applicant was represented by Mr M Strbac and the Respondent was represented by Mr T Glover. Certificates were issued by the relevant Ministers under ss 39A and 39B of the AAT Act[7] and under s 38(2)(b) of the ASIO Act.[8] The effect of these certificates is that certain parts of the ASA (including parts of the SOG) and other documents listed in the notices and the information contained in those documents, are withheld from the Applicant (closed material) and cannot be disclosed.[7] Certificates issued on 23 August 2022 and 24 January 2023.[8] Certificate issued on 12 July 2021. Further, the effect of the certificates issued under s 39A(8) of the AAT Act, was that the Applicant and his counsel could not be present when the closed material was presented nor when the submissions relating to that material were made.[9] [9] Sections 39A(9)(a) and (b) of the AAT Act. In accordance with s 39A(12) of the AAT Act, at the hearing the Tribunal first heard the evidence adduced and the submissions made by the Respondent. The Applicant and his counsel were present during the presentation of material not subject to the certificates referred to in [24] (open material). The Applicant gave evidence and called one witness at the hearing, David James Donis (who had provided an affidavit).[10] [10] Included in Applicant’s bundle A2. The Respondent called one witness, Brian Dowell who described himself as a senior officer of ASIO who had recently retired from full-time employment as a Senior Executive Service officer and had been engaged since by ASIO as an employee performing various functions. Mr Dowell provided an affidavit addressing unclassified material and evidence (the open affidavit)[11] in which he said that, prior to his retirement from full-time employment in 2019, he was an ASIO employee for over 32 years and had held a number of senior executive positions including in operational, analytical and support areas. Brian Dowell is an assumed identity pursuant to Part 1AC of the Crimes Act 1914 (Cth).[12] He was cross-examined by the Applicant’s counsel.[11] Included in R1.[12] Dowell affidavit para 3.

Decision

Reasons for decision

For the reasons we have given, we have formed the view that there are reasonable grounds to conclude that the Applicant is not a person who has the level of honesty, openness and maturity to demonstrate suitability to protect security classified information to which access would be given to a person holding an NV1 security clearance.DECISION For these reasons, we affirm the ASA issued by ASIO on 14 May 2021.

Ratio Decidendi

Legal Principle Established

The Applicant’s closing submissions were to the following effect:(a)ASIO’s adverse assessment questioning the Applicant’s integrity, loyalty, and suitability to hold a security clearance was based on assumptions, speculation, and tenuous links made with unverified information.(b)The evidence presented by ASIO through Mr Dowell was not first-hand and contained opinions, views, and conclusions drawn by him which were not based on fact. Mr Dowell has never met the Applicant.(c)At the September 2020 interview, it was admitted by one of the ASIO officers that the purpose of the interview was to obtain information on Mr Donis and SWAN. Accordingly, ASIO did not have any “new information” to warrant a review. This was an abuse of the vetting process.(d)Tribunal Member Boyle [sic] found Mr Donis to be a “credible witness.[79][79] Note: the Tribunal totally rejects that assertion; the only reference by the Deputy President about the credibility (or otherwise) of Mr Donis was in the exchange quoted at paras [141-2] below.(e)ASIO were free to contact Mr Donis and/or the members of SWAN and ask relevant questions to allay their suspicions instead of using the vetting process. If in doing so, they discovered information that would affect the Applicant, they had a duty of care to advise the Applicant of their findings, giving him the opportunity to choose whether to continue his associations in the first instance.(f)At no point was the Applicant warned not to associate with Mr Donis, SWAN or any other group believed to be a threat to security.(g)This case does not involve an assessment relating to the issue or cancellation of a passport so to use standards from those types of cases and migration cases is not appropriate.(h)The Applicant is an Australian-born citizen who has rights and protections under Australian law and a soldier in the Australian Army who has signed a contract/oath to serve and protect Australia from foreign and domestic threats. However, in taking this oath, he does not waive his rights to be treated fairly as an Australian citizen.(i)ASIO must consider the consequences of their conclusions which may be damaging, disrupting and irreversible to the individual’s mental health, social standing, employment prospects, causing financial hardship and homelessness.(j)The Applicant’s circumstances have changed since the time of the assessment. The Applicant has graduated from university, he no longer associates with Mr Donis and is more involved in his local church.(k)ASIO should have notified AGSVA and had the Applicant complete a new vetting package as the review for cause was instigated on 14 July 2020. By giving the Applicant the opportunity to complete a new vetting package it would have also made him consider whether he needed to have legal representation at the interview. By not giving him this opportunity, ASIO failed to follow proper protocol. The Applicant was not advised properly of his rights by AGSVA and ASIO, calling into question ASIO’s motives which appear to be to “entrap/ambush/blindside”.(l)Since the information that the Applicant gave was limited, it was easier to accuse him of withholding information and being dishonest giving ASIO justification to revoke his clearance even though the Applicant co-operated with them fully, which is evident from the transcripts.(m)At the commencement of the Second SAI, the Applicant was told that the purpose of the interview was to gain information on Mr Donis, SWAN and its members. The Applicant stated clearly that he was not a member of SWAN, he did not agree with extremist or violent ideology and not associated with anyone who had those tendencies.(n)The Applicant clearly told the interviewers in the Second SAI that he was cutting ties with SWAN and Mr Donis.(o)ASIO has made errors of judgment in previous cases. Mr Dowell refused to answer questions, not because he was unable to, but because he did not want to. In any court, Mr Dowell would have been held in contempt. The Applicant on the other hand was open with his answers.(p)The Respondents lawyer, Mr Glover, aided Mr Dowell in his testimony by helping him answer questions asked by him, in any court coaching and leading a witness during a hearing. Mr Glover should have been taken to task over his conduct.[80] [80] Note: the Tribunal rejects this assertion. Mr Glover throughout conducted the examination and re-examination of Mr Dowell appropriately.(q)Mr Donis testified in support of the Applicant dispelling many allegations made by ASIO in their SOG. He confirmed that the Applicant had never been a member of SWAN, nor was he interested in joining the group. He confirmed the Applicant’s involvement was of a social nature and that he was only present because he invited him. Mr Donis also confirmed that he had not coerced or influenced the Applicant in any way. He also advised that he had never asked the Applicant to provide any information or equipment pertaining to the army or to provide any training nor has any other member of SWAN.(r)Mr Donis spoke about his ideology and stated that he was not a neo-Nazi, white supremacist, violent or instigated violence of any kind. He stated that his organisation was not racist, and all races were welcome to join his group.(s)ASIO has alleged that the Applicant had chosen to be loyal to his friend Mr Donis over the Australian Government, however, this is not the case.(t)ASIO have not demonstrated any indisputable or verifiable facts to support the allegation that anything that the Applicant has said is untrue. To make this assessment ASIO would need to know the Applicant personally, professionally, and socially.(u)ASIO alleged that the Applicant breached confidentiality after giving verbal and written assurances. The confidentiality undertaking covered details of specific “matters discussed” at the interviews, which is different from just stating that the meeting was with AGSVA. The Applicant admitted to telling his parents and possibly Mr Donis that he had a meeting with AGSVA but did not divulge the specific contents of those meetings. Mr Donis stated that he was unsure if the Applicant told him anything.(v)The Applicant was not given or shown procedural fairness by ASIO or AGVSA by not being notified of the adverse assessment against him within the required 14-day period.(w)If the Applicant’s associations did not fit with the PSPF guidelines, he should have been made aware of this prior to being awarded the clearance in 2019 and the clearance continued in 2020. The Applicant held the NV1 clearance for a period of two years and six months with ASIO fully aware of his circumstances, but not acting until May 2021.(x)PSPF Chapter 12 Annex A Part 5, 6 & 17 (a-g) outlines suitability to hold a security clearance demonstrating the six traits of integrity which are honesty, trustworthiness, maturity, tolerance, resilience and loyalty. The Applicant would have demonstrated all these qualities to have obtained his NV1 clearance in September 2019. There was no indication of the Applicant being a security risk or a threat to national security, neither was it determined following the interview in September 2020 when the clearance was continued.(y)ASIO have used the Applicant’s level of maturity as one of their reasons for withdrawing his clearance and have made statements and assumptions accordingly. The assessment of maturity is usually done by psychological assessment which the applicant passed at his pre-employment assessment. When Mr Dowell was asked about it, he said “it is not a requirement.” The Respondent or their witness are not suitably qualified to assess the Applicant’s level of maturity which should be done by someone with a psychology qualification or medical degree.(z)ASIO has failed to demonstrate that the Applicant has been dishonest, withheld information or been coerced by Mr Donis. Mr Donis’ evidence was that he had not coerced the Applicant. (aa)In relation to PSPF Chapter 12 Annex A, the Applicant has never spoken out or been involved in political demonstrations against the Australian Government or its policies and has not incited anyone else to do so. He made this clear during the hearing and at both interviews. The Applicant has never expressed any political or personal views that were incompatible with Australia’s Constitution.(bb)The mitigating circumstances identified in PSPF Chapter 12 Annex A para 23 are applicable.(cc)The only time that the Applicant demonstrated questionable judgement was over the incident with Mr Sufi after he was badgered and harassed by him to become an informant to further his career, which was an incident that occurred prior to the applicant joining the Army.(dd)The Applicant has never violated any rules or regulations relating to sensitive or security classified information. ASIO’s concerns about the Applicant passing on sensitive information is baseless. Since his medical downgrade the Applicant was responsible only for preparing barbecue meals for his unit on parade nights and attendance at Campbell Health Centre for medical review.(ee)The Applicant was not named as a person of interest in the search warrants issued in respect of certain members of SWAN.(ff)The conclusions reached by Mr Dowell that the Applicant:(i)Has associated for a number of years with nationalist and racist extremists, despite knowing that they held extreme views;(ii)Has shown that he is open to being influenced by those nationalist and racist extremists; and(iii)Has continued association with nationalist and racist extremists shows a lack of the judgement required of a clearance holder, which he himself has acknowledged;are incorrect and not based on evidence.CONSIDERATION