DPFX and Director-General of Security
[2023] AATA 2522
•27 July 2023
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 Barton27 July 2023
THE APPLICATION
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.
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.
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
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 3(3) of the AAT Act defines “decision” in terms of “including” specified things set out in subsections (a)-(g). Assessment is not included in any of those subsections. Notwithstanding that the definition of decision in the AAT Act does not refer to “assessment”, it is beyond doubt that it is intended that the Tribunal have jurisdiction to review ASIO security assessments made under the ASIO Act given that ss 39A and 43AAA of the AAT Act, as well as the ASIO Act, deal specifically with review of security assessments by the Tribunal.
Section 54(1) of the ASIO Act provides that:
(1) An application may be made to the Tribunal for a review of an adverse or qualified security assessment.
Section 17(1) of the ASIO Act sets out the functions of ASIO which include:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;
(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) of the ASIO Act states:
(1) 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 4 of the ASIO Act defines security as meaning, amongst other things:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
...
(iii) politically motivated violence.
(iv) promotion of communal violence;
…
Section 4 of the ASIO Act defines politically motivated violence as meaning, amongst other things:
(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
And promotion of communal violence as meaning:
activities that are directed to promoting violence between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.
Section 35(1) of the ASIO Act includes the following definitions:
"security assessment or assessment" means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State 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.
"adverse security assessment" means a security assessment in respect of a person that contains:
(a) any opinion or advice, or any qualification of any opinion or advice, or any 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 be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.
Section 37 of the ASIO Act relevantly provides that:
(2) An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:
(a) shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and
(b) shall, for the purposes of this Part, be deemed to be part of the assessment.
(3) The regulations may prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments, or of assessments of a particular class, and any such regulations are binding on the Organisation and on the Tribunal.
(4) Subject to any regulations made in accordance with subsection (3), the Director-General shall, in consultation with the Minister, determine matters of a kind referred to in subsection (3), but nothing in this subsection affects the powers of the Tribunal.
Section 38(2) of the ASIO Act provides:
(2) The Minister may, by writing signed by the Minister delivered to the Director-General, certify that the Minister is satisfied that:
(a) the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation; or
(b) the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security.
Sections 39A and 39B of the AAT Act set out the procedures to be followed in a review of a security assessment. Section 39A relevantly provides:
(8) The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.
(9) If such a certificate is given:
(a) the applicant must not be present when the evidence is adduced or the submissions are made; and
(b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.
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.
Mr Dowell also provided an affidavit which included classified material (the closed affidavit) and, in accordance with s 39A(9) of the AAT Act, gave oral evidence relating to that classified material in the absence of the Applicant and his counsel (see [25] above).
The Applicant provided the following affidavits which were included in the bundle of documents filed by the Applicant and admitted into evidence as exhibit A2:
(a)Applicant’s affidavit sworn 16 December 2021;
(b)Applicant’s affidavit sworn 20 January 2023;
(c)Affidavit of David Donis sworn 16 December 2021;
(d)Affidavit of Mrs DPFX (Applicant’s mother) sworn 16 December 2021
(e)Affidavit of Michael Bert Lochore sworn 11 March 2022; and
(f)Affidavit of Mojtaba Bahrani sworn 18 August 2022;
Exhibit A1 was a search warrant dated 27 October 2020 issued for the search of premises under the Crimes Act.
At the commencement of the hearing, Mr Glover advised that the Respondent did not require the attendance of the Applicant’s witnesses for cross-examination, other than the Applicant and Mr Donis.
The bundle of unclassified documents filed by the Respondent, including the open affidavit of Mr Dowell sworn 24 November 2021, was admitted into evidence as exhibit R1. Classified documents, including the closed affidavit of Mr Dowell, were separately provided to the Tribunal and are subject to the certificates issued under ss 39A and 39B of the AAT Act and s 38(2)(b) of the ASIO Act (see [24] above)
Written closing submissions were filed by the Respondent on 17 March 2023 (including submissions on the closed material and closed hearing) and on 29 March 2023 (open submissions) and by the Applicant on 12 April 2023. The Respondent filed a brief response to the Applicant’s closing submissions on 27 April 2023.
THE PARTIES’ CASES
The Applicant
Evidence
The Applicant’s affidavit sworn on 16 December 2021 was to the following effect:
(a)The Applicant is a Christian, is involved in his local church and attends a bible study course each week. He graduated from [omitted] College in 2015. He became a member of the Liberal Party in 2015. He was, at the time of the affidavit, studying law/commerce at [omitted] University.
(b)He is financially supported by his parents while studying and receives a Youth Allowance from Centrelink. He has friends from many backgrounds and does not hold any extremist or racist views. He works as a security officer for [omitted] Security at [omitted].
(c)The Applicant met Mr Donis at a Liberal Party policy forum in 2015 or 2016 and has been friends with him since. Mr Donis has invited the Applicant to several social functions being barbecues, chess nights, movie nights, steak nights, Mr Donis’ birthday party and a Christmas party.
(d)He enlisted in the Army reserves in January 2019, commenced training at WAUR training unit Leeuwin Barracks in January 2019 followed by training at Kapooka in New South Wales from 27 June to 3 August 2019. While training at Kapooka the Applicant sustained an injury to his right wrist and, in September 2019, was deemed fit for light duties only.
(e)On 19 September 2019 he was interviewed by ASIO officers in relation to an NV1 security clearance (First SAI). The interview covered areas including politics, the Applicant’s relationship with Mr Donis, a policy director of the Liberal Party named Mr Sufi and the Applicant’s views on government, extremist organisations and other issues raised by ASIO. He said that he was candid, frank and answered all questions to the best of his ability.
(f)In October 2019, the Applicant received advice that he had been granted NV1 security clearance. He invited Mr Donis and friends to a colours parade at Leeuwin Barracks on 8 October 2019. He invited his own family and friends to a colours parade on 12 October 2019.
(g)He was sent to Queensland for his employment training from 1 February to 27 March 2020. During the training the injury to his wrist was a problem for which he needed physiotherapy. On return to Perth, he completed his induction training and was inducted into his unit at [omitted] Barracks. In or around July 2020 he was placed on restricted duties due to his wrist injury.
(h)On 15 September 2020 the Applicant had a second interview with ASIO regarding his NV1 security clearance (Second SAI). Prior to the Second SAI, he had stayed up late to complete a university assignment and was “sleep deprived in some parts of the interview”. Although he may have seemed incoherent, he was “desperately trying to recall events …to answer their questions”.[13]
[13] See para 33 of the Applicant’s SFIC.
(i)The Second SAI was similar to the First SAI and covered his relationship with Mr Donis, Mr Sufi and SWAN.
(j)The ASIO officers spent “quite a bit of time” asking the Applicant about SWAN members, member recruitment and membership registration fees. He was asked whether he was a member of SWAN. He advised ASIO that he was not.
(k)He was asked about an organisation called The Base which had been connected to SWAN by the “Poverty Law Centre”[14] in an article shown to him by ASIO. He advised ASIO that had not heard of The Base.
[14] The correct name is Southern Poverty Law Center.
(l)He was candid and frank and answered all questions to the best of his knowledge and ability.
(m)In December 2020 he had surgery on his left wrist to repair ligament damage and has been unable to carry anything heavy, including a weapon, since. His medical status has been progressively downgraded. Since surgery he has been on restricted duties when on parade.
(n)On 20 July 2021 he received advice from AGSVA that he did not need to undergo any further assessment in respect of his NV1 security clearance, which was still active. On 21 July 2021, he received advice from AGSVA withdrawing his NV1 security clearance.
SWAN
(o)He has never been, and has never asked to be, a member of SWAN. He has only attended SWAN social functions by invitation of Mr Donis. He has never had any organisational role with SWAN and knows nothing about how the group is run or how they manage their finances. The only money he has paid to SWAN is for food at SWAN functions.
(p)He “may have overheard people expressing extreme views” at SWAN functions, but these are not his views, he does not support these views and he has “chosen not to associate with these people” (para 47). He has never seen or heard SWAN members committing any violent, extremist or racist acts. As far as he is aware SWAN is not on the government’s list of extremist groups.
(q)He has also come across people at Liberal Party functions with extreme views.
(r)In both his SAIs he was honest about his friendship with Mr Donis and his attendance at SWAN social functions. He has never had access to classified or secret documents in the Army. He has never been investigated by the Army for trying to access information. It is difficult to access weapons without authorisation.
(s)No-one has ever asked him for, nor has he ever thought to give anyone, weapons, ammunition or training. He has conducted himself with integrity and has not breached confidentiality.
(t)He has never disclosed the identity of any ASIO officer who has interviewed him.
The Applicant’s affidavit sworn on 20 January 2023 was to the following effect:
(a)Since revocation of his security clearance, he has, with the approval of the relevant officers, continued to access [omitted] Barracks to undertake fitness training.
(b)During this time there have been no incidents of misconduct, inappropriate behaviour or attempts to access information or weapons by him.
The Affidavit of Mr Donis sworn on 16 December 2021 was to the following effect:
(a)He is a friend of the Applicant having met him at a YMCA Youth Parliament, which he attended as an observer, about five or six years previously. At that time, Mr Donis was not a member of any organisation and SWAN had not then been established.
(b)He and the Applicant became friends and participated in various social activities as well as attending Liberal Party functions and seminars together. He met the Applicant’s parents and he and the Applicant became good friends.
(c)The Applicant is smart, caring, passionate, of good character and is not easily influenced by others.
(d)SWAN came into existence in 2018 or early 2019 with Mr Donis as a founding member and president. SWAN’s constitution sets out the objectives of the organisation. Paragraph 3.1 of the SWAN constitution provides for members to adhere to state and federal law.
(e)
He has never asked the Applicant to become a member of SWAN. He has asked the Applicant to attend and help with social functions as a friend, not a member.
The Applicant has never been involved in any decision-making processes of SWAN and has never attended SWAN council meeting. The Applicant is not a member of SWAN.
(f)Mr Donis is a friend of Mr Sufi having met him through the Liberal Party. He would be asked to Liberal Party functions because of his friendship with Mr Sufi. The Applicant was also asked to a number of such functions. Mr Donis, Mr Sufi and the Applicant frequently socialised at these functions.
(g)The Applicant and Mr Sufi were aware that Mr Donis was “interested in various groups and individuals within he patriotic/nationalist scene across Australia such as One Nation” (para 30).
(h)At some point, Mr Sufi started spreading rumours that he (Mr Donis) was involved with right-wing extremists and even extremists akin to ISIS. Mr Donis asked Mr Sufi to various personal social functions, but Mr Sufi did not attend. During his annual birthday dinner at Crown Casino in 2019, he and the Applicant decided to play a prank on Mr Sufi by telephoning him and telling him that they were driving in a limousine to various locations. In one of the calls, they told Mr Sufi that “there was a rolled-up carpet that they were going to bury in the forest”.
(i)About a week after that Mr Donis was contacted by the Australian Federal Police (AFP) and asked to attend a meeting to “discuss certain matters”. He attended the meeting with the AFP from which he understood that Mr Sufi had reported “the prank” to the AFP. He has heard nothing further from the police in relation to that incident.
The Applicant’s mother’s affidavit, sworn 16 December 2021, was, relevantly, to the following effect:
(a)She was born in Sri Lanka, migrated to Australia with her family in 1968 and is now a naturalised Australian citizen.
(b)She has been married to the Applicant’s father for 31 years and they live with her mother and the Applicant. The Applicant has a close relationship with his parents, is respectful, honest and reliable. He has never expressed any racist sentiments towards anyone in the family.
(c)She has met Mr Donis who she thought was candid in his expressions, polite and honest. She has also met other friends of the Applicant from different cultural backgrounds and the Applicant has always treated them with respect. The Applicant is involved in the Liberal Party and his local church group.
(d)To her knowledge, the Applicant has never displayed extremist or racist views nor has he committed or expressed a desire to commit any violent act against anyone. He has never shown any support or sympathy for any radical organisation promoting violence. He has expressed opposition to illegal or violent methods of political struggle.
The affidavit of Michael Lochore, sworn on 11 March 2022, was to the effect that Mr Lochore, was the support chaplain to the [omitted] Regiment. Over several months in 2020 and 2021, he and the Applicant had regular discussions during parade nights and he spent time with the Applicant travelling to [omitted] for a freedom of entry parade in November 2020. His view is that the Applicant is a man of sincere faith with a genuine desire to serve and he has not seen any behaviour to indicate that the Applicant has misused his position as a member of the military.
The affidavit of Mojtaba Bahrani, sworn on 18 August 2022, stated that:
(a)Mr Bahrani was born in Afghanistan and came to Australia in 2004 as a refugee. He joined the Australian Defence Force in 2018 and has known the Applicant since the Applicant enlisted.
(b)He has observed the Applicant around the unit as a kind and confident young man with good interpersonal skills. He is keen and eager to learn. He does not see the Applicant as a threat to security.
The Applicant also included in the bundle of documents A1 various articles relating to ASIO as follows:
(a)Article dated November 2019 by Karen Middleton titled “ASIO officers broke the law on warrant”.
(b)Article dated October 2019 by Andrew Tillett titled “Spy agency hid warrant bungle from minister for nine months”.
(c)Article dated February 2018 by Melissa Clarke titled “ASIO takes custody of secret cabinet documents, obtained by ABC”.
(d)Article dated August 2016 by Meredith Burgmann tilted “ASIO and dirty secrets”.
(e)Article dated October 2014 by Julian Bajkowski titled “ASIO accidently bugged itself says expanding spy watchdog”.
(f)Article dated October 2013 by Jessica Marszalek titled “ASIO caught phone tapping ordinary Australians”.
(g)Article dated October 2012 by Tom Orsag titled “Spies, secrets and national security: The truth about ASIO”.
(h)Undated article (author not identified) titled “ASIO: now targeting kids and lying to Parliament”.
(i)Article dated December 2011 titled “Immigration mulls detention of suicidal teen”.
(j)Article dated January 2012 by Kirsty Needham titled “ASIO misled committee over teen”.
(k)Article dated January 2012 by Kirsty Needham titled “ASIO cites security to block teen”.
(l)Article dated January 2012 by Kirsty Needham titled “ASIO screening of children criticised”.
(m)Article dated January 2012 titled “Pakistani deportee’s life in danger, says father”.
(n)Article dated January 2012 titled “Jail an option for deported Pakistani student Salman Ghumman: Islamabad”.
(o)Article dated January 2012 titled “The fast-food date with ASIO that ended a dream”.
(p)Article dated January 2010 by Yuko Narushima titled “ASIO checks unreliable: former immigration officer”.
(q)Article dated March 2010 by Liinda Silmalis titled “ASIO spooks spied on little girls”.
(r)Article dated September 2013 (author not identified) titled “ASIO got it wrong again – minister must release all ASIO negative refugees: Coalition must continue Stone review”.
(s)Article dated November 2007 by Tom Allard titled “ASIO interrogators were grossly incompetent: judge”.
(t)Article dated November 2004 (author not identified) titled “Refugee blunder costs ASIO”.
(u)Article dated November 1993 by Dale Mills titled “Jack Roche: Terrorist or scapegoat for ASIO failures”.
Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC)
The Applicant’s SFIC dated 16 December 2021 largely repeated the statements made by the Applicant in his affidavit of 16 December 2021 as set out in [35] above. Paragraph 24 of the Applicant’s SFIC quoted the transcript of the Second SAI, the Applicant’s denial of being a member of SWAN and his assertion that he only attended social events put on by SWAN at which he sometimes paid for the food provided. According to the Applicant, ASIO has no reasonable basis to assert that he is a member of SWAN.
The Applicant contends[15] that ASIO’s view that SWAN adheres to extreme right-wing ideologies is based on reporting by the Southern Poverty Law Center (SPLC) which, according to the Applicant, paid $4,000,000 in settlement of a defamation action brought by a former Islamic extremist who had renounced extremist views and devoted his life to opposing violence. The SPLC is known to have wrongly targeted organisations with little or no research. The SPLC has been criticized by its own employees as being racist.[16] It is, therefore, not clear on what criteria ASIO declares SWAN to be an extreme right-wing, national-socialist, white supremacist ideology group. The SWAN constitution does not support that conclusion, in particular article 3.1 (see [37(d)] above).[17]
[15] Applicant’s SFIC para 27.
[16] Applicant’s SFIC paras 28-30.
[17] Applicant’s SFIC paras 31-3.
The Applicant’s SFIC asserts that ASIO has provided no evidence that the Applicant adheres to extreme ideologies or that he supports any members of SWAN who have such views. Further, the Applicant says that ASIO has not provided any evidence that SWAN is involved in or supports politically motivated or communal violence.
According to the Applicant, the relevant security question to be addressed by the Tribunal is whether there are any security-relevant doubts about the Applicant’s character, that he is unduly vulnerable to influence or coercion or that he is involved in or supports politically motivated violence or communal violence, citing MCLT and Director-General of Security.[18]
[18] [2018] AATA 1359.
In relation to any claim that the Applicant had been less than fully frank with ASIO in the Second SAI, any omission was the result of the Applicant having stayed up late the night before his interview (see [35(h)] above).
There is no evidence that the Applicant is a member of SWAN, has ever paid money to SWAN other than for food at its social functions, or that he supports extreme ideology. Further, ASIO has not presented any evidence that SWAN or its members have committed or have any plans to commit or support extreme, activist or terrorist groups.[19]
The Respondent
[19] Applicant’s SFIC paras 46-50.
Evidence
Mr Dowell’s open affidavit sworn on 24 September 2021 (see [28] above) was to the following effect:
(a)The affidavit is based upon his experience as an ASIO officer and in particular, upon the knowledge gained from being in charge of various areas within ASIO, including branches and divisions responsible for operational, analytical and support activities.
(b)Through his experience in investigations of individuals assessed to have breached the requirements of their security clearance, he has knowledge of the Australian Government’s policies concerning security clearances and damage which may be caused to Australia’s security if unsuitable persons are granted or hold security clearances (noting the seven heads of national security risks for which ASIO has a statutory mandate to protect Australia and Australians are defined in s 4 of the ASIO Act under ‘security’).
(c)The heads of security (as defined by the ASIO Act) relevant to this case are ‘politically motivated violence’ (PMV) and 'promotion of communal violence’ (PCV) which encompass any violence which may be caused by political or religious ideologies.
(d)The Government has developed a security framework that governs all aspects of security and the protection of national security classified information, including personnel security policies which include what should be considered before an individual is granted a security clearance allowing access to classified material or areas. This security framework emphasises the primacy of the national interest, including national security, over individual rights or entitlements.
(e)The Government’s security policies are embodied in the Protective Security Policy Framework (PSPF). The PSPF is a series of documents setting out principles, policies, practices and criteria to be applied in implementing the various aspects of security. The policies are published and have been available on the Attorney-General’s Department’s website since 2010. The PSPF must be applied by all relevant agencies, including ASIO, as the basis for their internal protective security regimes.
(f)The PSPF contains, in part, the security clearance suitability policies as recommended by Justice Hope in his Royal Commissions.[20]
[20] Exhibited to the affidavit at UD73.
(g)The PSPF identifies the purpose of personnel security policies as being to provide a level of assurance as to six character traits - honesty, trustworthiness, maturity, resilience, tolerance and loyalty - of individuals who access government resources. The PSPF requires agencies, including ASIO, to resolve any doubts about these suitability character traits in favour of the national interest when making clearance decisions.[21]
[21] Citing PSPF Chapter 12.
(h)ASIO’s security assessment function involves providing any recommendation, opinion and/or advice about whether it would be consistent with the requirements of security for an assessment subject to have or retain access to material, activities or places that are controlled on security grounds. The phrase ‘requirements of security’ captures anything that is required for the protection of Australia and Australians from the activities that constitute the heads of security.
(i)Typically, ASIO will issue an ASA to the vetting agency where it has assessed it would be inconsistent with the requirements of security for the subject to hold that clearance, because it assesses there are at least doubts or concerns about:
(i)the subject’s integrity/character traits - honesty, trustworthiness, maturity, tolerance, resilience and loyalty - for example, not honestly or accurately completing vetting questionnaires, or providing incomplete/inaccurate information during an ASIO SAIs;
(ii)any vulnerability or exposure to influence or coercion - for example, from ideologically motivated groups supporting violence;
(iii)their involvement in, or support/advocacy for , acts of espionage, foreign interference, people smuggling, sabotage, PMV or PCV, or attacks on Australia’s defence system.
(citing in each case the relevant part of the PSPF)
(j)The vetting action and degree of scrutiny applied to those proposed for or holding security clearances is extensive and exacting. The thresholds for concern are low and any reasonable doubts regarding a person's security suitability must be resolved by the vetting agency in favour of the Commonwealth.[22]
[22] Citing PSPF Chapter 12, para C.3.5 46(c):UD178 and PSPF Chapter 12, Annex A, para 5: UD182.
(k)The vetting agency is also required to consider any relevant mitigating factors to this risk factor.
(l)To guide the vetting agencies, the PSPF sets out relevant 'risk factor areas', which include examples of conduct and 'conditions' or circumstances which could, in and by themselves, give rise to a security-relevant doubt or concern which disqualifies the subject from holding a security clearance.
(m)Conditions that could raise a security concern, and may be disqualifying to that subject holding a security clearance, include:
(i)Association or sympathy with persons who are involved in, or supportive of, commission or advocacy of acts including sabotage, urging violence, PMV, or PCV;
(ii)Association or sympathy with persons or organisations that advocate, threaten, or use force or violence, or any other illegal or unconstitutional means in an effort to influence any Australian government, prevent them from performing official duties;
(iii)Ongoing voluntary association with persons or groups of an extremist nature, for example, those espousing beliefs incompatible with a liberal democracy.
(n)Deliberate omission, concealment or falsification of relevant facts from a personnel security questionnaire, personal history statement or similar form used to determine security clearance suitability, or providing misleading information to assessing officers or other officers involved in the clearance process could raise a security concern and may be disqualifying.[23]
[23] PSPF Chapter 12 Annex A: Personnel security adjudicative guidelines, paras 24-5.
(o)The term ‘NRVE’[24] is used to denote a range of individuals and organisations that have in common varying degrees of extreme racist, nationalist and authoritarian beliefs, a desire and action to impose those beliefs on society and an acceptance of, or propensity to, furthering those beliefs through acts that would constitute PCV or PMV.
[24] The term is an acronym for ‘nationalist and racist violent extremism’; affidavit of Mr Dowell at p 2.
(p)The threat from NRVE groups in Australia has increased over the last three years. The groups are more cohesive than previously seen and are likely to remain an enduring threat in the coming years. NRVE ideology contains a degree of inherent support for violence - with the prominent ‘inevitable race war’ narrative suggesting multi-culturalism will fail and there will eventually be an outbreak of violence across racial and ethnic lines. In recent years NRVE ideology in Australia has broadened to include an anti-Islam and anti-Asian focus but it has retained an intense hatred of homosexuals and Jews.
(q)According to open-source reporting, military experience is valued by NRVE individuals and groups planning an act of violence, because it can equip someone with the training and experience to be significantly more dangerous. Anyone who voluntarily and over an extended period of time associates with people who support or hold such extreme right-wing views would very likely not have the requisite and very high degree of security suitability - with particular reference to their ‘maturity’ or ‘trustworthiness’ character traits - to hold a security clearance. Where such associations are identified by ASIO, then ASIO is required to act by providing such security assessment advice to the appropriate vetting and sponsoring agencies. This is particularly so where the person minimises and downplays their associations during the vetting process including at an ASIO interview, which also raises serious security concerns about their ‘honesty’ character trait.
SWAN
(r)
SWAN is a nationalist and racist extremist group based in Western Australia.
It formed in the breakup of the nationalist and racist extremist group The Lads Society. The group promotes an ideology of white nationalism, including the beliefs that white people are the target of persecution and they should organise themselves politically to resist this persecution.
(s)Some members of SWAN have also sought to join NRVE groups, specifically The Base, an international neo-Nazi, white supremacist group some of whose members were arrested in the United States in 2020 for plotting violent attacks against their perceived political enemies. Open-source reporting shows The Base sought to use SWAN as a recruitment pool for new members.[25]
[25] Citing Sydney Morning Herald article from March 2021.
(t)Mr Donis is the leader of SWAN.
(u)ASIO assesses that the Applicant associates with nationalist individuals and groups (some of whom are supportive of violence to achieve a political objective) in particular, with members of SWAN. ASIO further assesses that Mr Donis, the leader of SWAN, exerts influence over the Applicant, and that the Applicant has been dishonest and withheld information during the security assessment process.
(v)Mr Dowell identifies statements made by the Applicant in the transcript of the First SAI and Second SAI which support the contention that the Applicant has associates who are linked to NRVE groups and that he was aware of these links.
(w)Based on the open material alone, Mr Dowell contends that there are, at the least, serious security doubts and concerns about the Applicant’s maturity and trustworthiness, in that:
(i)He associates with nationalist individuals and groups (some of whom are supportive of violence to achieve a political objective), including SWAN.
(ii)He is aware that the people with whom he is associating hold nationalist and white supremacist views.
(iii)He continues to associate with these individuals even though, on reflection, he acknowledges that it is poor judgement to do so.
(iv)He rationalises and downplays this association by saying that it is 'only social’.
(v)He is open to influence by these individuals, as demonstrated by the harassing text message he sent to a Liberal Party official at the direction of Mr Donis.
(x)In relation to mitigating considerations, Mr Dowell noted that the Applicant:
(i)Was cooperative in the SAIs;
(ii)Stated that he was only a social associate of SWAN and attended their functions only on a social basis;
(iii)Said that he had did not intend getting involved in SWAN’s activities;
(iv)Said that he would distance himself from SWAN;
(v)Said that the Christchurch mosque attacks undertaken by Brenton Tarrant were abhorrent and that, if there were to be a nationalist movement, its aims should be achieved through peaceful means;
(vi)Said that he would not do any more favours for Mr Donis;
(vii)Said that no-one from SWAN had sought military information from him;
(viii)Has affirmed his allegiance to the Australian Government;
(ix)Has acknowledged that associating with extremists was bad judgment on his part.
(y)None of the above mitigating factors alleviates ASIO’s concern as he has associated for a number of years with those associated with SWAN, has shown that he is open to being influenced by those with extreme views and has not been entirely truthful about his association with SWAN in his SAIs.
(z)In summary, ASIO assesses that:
(i)The Applicant is a member of SWAN, and actively associates with leaders and members of SWAN, who adhere to a national socialist, white supremacist ideology;
(ii)SWAN leader, Mr Donis, exerts influence over the Applicant; and
(iii)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.
(aa)There are serious security-relevant doubts and concerns about the Applicant’s ‘maturity’, ‘trustworthiness’ and ‘honesty’ character traits, and it would therefore be inconsistent with the requirements of security for him to hold any security clearance within the Australian Defence Force (ADF).
The Respondent’s SFIC
The Respondent’s SFIC set out a lot of the material that was covered in Mr Dowell’s open affidavit (see [48] above). Insofar as it added to the matters covered by Mr Dowell, it was to the following effect:
(a)The ASA in the present case was made in the context of the Applicant’s suitability to continue to hold an NV1 clearance, regarding his employment with the ADF.
(b)Based on Justice Hope’s Royal Commission reports, the Government developed security policies, including policies regarding the ‘suitability’ of persons to access classified resources through security clearances. These are embodied in the PSPF.
(c)The Chapters of the PSPF relevant for present purposes are: 12 ‘Eligibility and Suitability of Personnel’; 13 ‘Ongoing assessment of personnel’; and 8, ‘Sensitive and security classified information’
(d)Relevant to the present case, the question is whether there are any security relevant doubts about the Applicant’s character, that he is unduly vulnerable to influence or coercion, or that he is involved in or supports, in this case, PMV or the PCV.[26]
(e)In MCLT the Tribunal stated that all Australian Government agencies must follow the PSPF, and that any doubts about the suitability of a clearance subject to access security classified resources should be resolved in favour of the Commonwealth (by denying the clearance/access sought).[27]
(f)There is no guidance in the ASIO Act concerning relevant security assessment thresholds, but the Tribunal has explained that there should be a basis upon which such a recommendation, opinion or advice is given. Guidance on what constitute reasonable grounds may be derived from the principles enunciated in cases such as George v Rockett[28] (See also McKinnon v Secretary, Department of Treasury[29], BLBS, Director-General of Security[30] and Jaffarie v Director General of Security and Another.[31]
(g)In order to affirm the ASA, the Tribunal need only accept the existence of reasonable grounds that there are security relevant doubts or concerns about the Applicant’s character traits. ASIO says that such reasonable grounds arise from the evidence identified in the open-source material referred to by Mr Dowell set out in [48(s)-(y)] above and the closed material.
[26] Citing Chapter 12 of the PSPF and MCLT at [8]-[9] and [15].
[27] Citing the PSPF and MCLT at [8] and [9].
[28] (1990) 170 CLR 104.
[29] (2006) 228 CLR 423.
[30] [2013] AATA 820.
[31] (2014) 313 ALR 593 at [64]-[65].
The Respondent’s evidence at the hearing
As noted at [26] above, at the hearing the Tribunal first heard the open evidence adduced and the open submissions made by the Respondent. Mr Dowell’s oral evidence-in-chief was to the effect of his affidavit (see [48] above) and the Respondent’s SFIC (see [49] above).
Mr Dowell was cross-examined on the open-source material relied on by ASIO in their assessment, including whether ASIO had checked the veracity of claims made by the SPLC as to SWAN being a neo-Nazi organisation.[32] Mr Dowell answered that organisations such as SPLC tended to base their assessments on officially available assessments by government intelligence agencies, such as ASIO and, further, that the closed material supported SPLC’s assessment. Mr Dowell agreed that SPLC is seen by some as “an ultra-left organisation that makes a living out [of] blaming everybody that doesn’t agree with their opinion as a white supremacist” but noted that that is why the SPLC is “not seen as a single source of information”.[33]
[32] Transcript 7 February at 44.
[33] Transcript 7 February at 44-5.
Mr Strbac took Mr Dowell to several of the articles listed in [41] above. Mr Dowell was then asked whether ASIO had at any time been wrong in its assessments. Mr Dowell’s answer was that that on occasions ASIO had been wrong but noted that some of the articles were referring to cases from the 1960s, should not be taken as being definitive or unbiased and, in some cases, related to government agencies or departments other than ASIO. Mr Dowell’s evidence was that, in his view, his assessments were “fair just assessments on the information that’s provided to” him.[34]
[34] Transcript 7 February at 48.
Mr Dowell was also cross-examined on the incident in which the Applicant and Mr Donis played a “prank” on Mr Sufi (see [37(h) and (i)] above). Mr Dowell agreed that this incident played a part in ASIO’s assessment of the Applicant being susceptible to the influence of Mr Donis, although that assessment is also based on information included in the closed material. He also agreed that he has never interviewed the Applicant and that he relied on the transcripts of the First SAI and the Second SAI conducted by other ASIO officers.
Mr Dowell was also cross-examined on the search warrant (A1). It was pointed out to Mr Dowell that, while the search warrant named Mr Donis and others as people to whom the warrant related, it did not name the Applicant. Asked whether that indicated that the Applicant was not a person of interest to the AFP, Mr Dowell responded that he could not speak on behalf of the AFP.[35]
The Applicant’s evidence at the hearing
[35] Transcript 7 February at 54.
The Applicant
Examination-in-chief
The Applicant advised that since he swore his affidavits, he had graduated from university with a law and economics degree. He was working as a security guard and in a call centre. He is a devout Christian; he attends church every Sunday, reads the bible and other Christian texts, reads mystical books and engages in meditation.
He joined the Liberal Party in year 12 at school. He agreed with Tony Abbott, the Prime Minister at that time, and would describe himself as a liberal conservative. Asked to describe liberal conservatism, the Applicant answered “[e]mphasising that there are important parts of our society, institutions that should be maintained and not be – not be changed at a whim of the times”. Asked to distinguish between a nationalist and a patriot, the Applicant said that there was not much of a distinction and that his personal interpretation was “essentially putting the country first and being loyal to the society and the community that you grew up in”.[36]
[36] Transcript 7 February at 62.
Asked to describe his friends, the Applicant’s evidence was that he had a “broad church” including people of diverse ethnic and religious backgrounds and views. He joined the Army reserve in January 2019 and while his training at Kapooka was “one of the harshest times of [his] life”, it was “one of [his] proudest achievements surviving”.
His evidence was that while Mr Donis and Mr Sufi, who met each other through the Liberal Party, initially got on, they had a falling out. He was asked in examination-in-chief about the “prank” in which he and Mr Donis told Mr Sufi that they were going to bury a rolled-up rug. His evidence was that “Donis proposed it and I agreed with it”.[37] The AFP questioned the Applicant, however, accepted that it was just a prank and warned him not to do anything like that again.
[37] Transcript 7 February at 66.
Asked whether he had been honest in his interviews with ASIO, the Applicant’s evidence was that he had been, but that when asked about his relationship with Mr Donis in the ASIO interviews, he “might’ve said something about my interactions with Donis and I might’ve left out, like, minutia”.[38] He did not knowingly withhold any information from ASIO.
[38] Transcript 7 February at 68.
In relation to the Second SAI, the Applicant’s evidence was that he had been up late the night before with his family and completing a university assignment. According to the Applicant, the questions in the Second SAI concentrated more on SWAN, about SWAN’s use of money, membership and “functional information about the organisation”.
He answered those questions in the interview by saying that he had not been involved with the organisation in any capacity which would expose him to that sort of information. He was a friend of Mr Donis at the time that Mr Donis was establishing SWAN. He regularly attended SWAN social functions. The only money he paid was for food and to cover venue hire. He never attended a SWAN members-only meeting.[39][39] Transcript 7 February at 71.
In attending these social functions at the invitation of Mr Donis, the Applicant became aware that some members had political views, even neo-Nazi views, with which he did not agree. However, he is an adult and could interact with people who held political views with which he disagreed. At one of the functions the Applicant had seen something about a figure called Volkskrieger[40] and had seen Dean Smith once or twice at SWAN events.[41]
[40] Volkskrieger is referred to in SPLC article from August 2020 as being a person appointed by The Base to recruit members in Australia (UD53-5). That article also identified that Dean Smith, a former Pauline Hansen One Nation Party (PHON) candidate, was “vetted” by American members of The Base for admission into that organisation: UD55. That article reported Smith as having said that he lost faith with the party-political structure in Australia and wanted more “direct action” which resulted in him being “pushed on to” SWAN. Of PHON, Smith is reported as having observed that “[t]hey’re all race mixers and it turns my gut upside down” UD56).
[41] Transcript 7 February at 72.
Asked by his counsel how he responded to the more extreme views expressed by some members of SWAN, his evidence was that:[42]
I might not personally agree with it, but I respect their right to hold that view, as long as they’re not going out and harming others, or inciting violence, or anything like that, and - yes.
[42] Transcript 7 February at 72.
His evidence was that he had never been asked to engage in any PMV nor had he ever encouraged anyone to engage in PMV, that he was “dead against” violent protest and that he would not support “forceful changes of the Australian Constitution”. He also did not think that Mr Donis exerted any more influence over him than any other of his friends.[43] Mr Donis had never asked him to disclose any information about his Army service or training, except in a very general way. His relationship with Mr Donis is not as close now as it used to be, partly because of the issues that his association with Mr Donis has caused with his security clearance. Even before that he was distancing himself from Mr Donis.
Cross-examination
[43] Transcript 7 February at 73.
In cross-examination, the Applicant was asked about the answers that he gave at the SAIs in September 2019 and September 2020. He was taken to the transcript of the First SAI[44] which recorded the Applicant giving an undertaking not to divulge the matters discussed in the interview. His evidence was that he had not discussed the interview with anyone.[45]
The Applicant was also taken to the part of the transcript of the First SAI in which he was asked whether he was a member of, or knew people who were members of, far-right groups with national socialist, white supremacist or ethno-nationalist ideology. His answer to the question recorded in the transcript of the SAI was:[46]
No, I mean I do know some people who are, and I mean they do hold quiz nights every now and then.
[44] UD229.
[45] Transcript at 78.
[46] UD254.
He confirmed at the hearing that he was, most likely, talking about people he knew as members of SWAN. He also confirmed the correctness of answers that he had given as recorded in the transcript of that interview to the effect that he had gone to quiz nights and social events but had not been involved in any organisation of activities of SWAN. He was also asked about other far-right organisations mentioned in the First SAI including the Proud Boys and the Lads Society. His response in the First SAI[47] was that Mr Donis had told him about the activities of the Lads Society as Mr Donis was “part of it at some point”.[48] He also agreed that he had described Mr Donis as “very persuasive”[49] in relation to the prank that he and Mr Donis had played on Mr Sufi which resulted in Mr Sufi making a report to the AFP. His evidence at the hearing was that:[50]
Donis is very rational when he - when he comes across with his - I mean, yes, he can get a motive at times, but generally, he is - he can be also very rational, and that’s how he’s been with me when trying to get me to do things. I am not his puppet.
[47] UD259.
[48] Transcript at 80.
[49] UD262.
[50] Transcript 7 February at 82.
Counsel took the Applicant to that part of the transcript of the First SAI[51] which recorded the Applicant giving an undertaking to keep matters discussed confidential. His evidence was that he had adhered to that undertaking and not disclosed the discussions that he had had with ASIO. He did, however, concede that he had discussed the fact of being interviewed with Mr Donis, something that was raised in the Second SAI. His evidence at the hearing was that:[52]
I had asked him if he knew about AGSVA and what, you know, what an interview with them could mean, and you know - and I guess he asked me about it afterwards, how it went and all that. So I guess in that regard, yes, I did mention the interview, but I guess I didn’t say ASIO or go into specifics or anything like that.
[51] UD270.
[52] Transcript 7 February at 87.
Asked by counsel why he had spoken to Mr Donis about his security interview, the Applicant’s evidence was:[53]
Well, I didn’t really know what - what it could be about. You know, I - I mean, I thought it was about the AFP thing. I guess I, kind of - kind of panicked. I didn’t - and I thought the whole thing was resolved. I wanted - I wanted to know if there was maybe any developments that happened. I - something along - along those lines.
[53] Transcript 7 February at 87.
The Applicant was then cross-examined in relation to the Second SAI. In that second interview, he was asked whether, since the First SAI in September 2019, Mr Donis had asked him to do him any favours. His answer at the Second SAI had been:
Yes, pretty much it’s more just the Sufi stuff to be honest.
Asked at the hearing by Mr Glover whether that answer referred to Mr Donis asking the Applicant about the subject matter of the First SAI, the Applicant answered: “Pretty much, yes”. The following exchange then occurred:[54]
COUNSEL: So he hasn’t asked you other favours, to do other favours for him?
APPLICANT: Not really, no. At least nothing to that level. I mean, it might just be, for example, going to one of these social functions, you know, “Can you help bring the food in?”, you know, that really minor stuff. Mundane stuff, yes.
COUNSEL: Thinking about it, between the time between the first security assessment interview and the second security assessment interview, can you remember if he asked you to do any favours for him?
APPLICANT: No, not that I can remember, no.
COUNSEL: Nothing to do with the Army?
APPLICANT: No.
[54] Transcript 7 February at 97. From the closed evidence we know this claim by the Applicant to be false.
The Applicant was asked about his discussions with Mr Donis at around the time that Mr Donis was establishing SWAN:[55]
COUNSEL: You knew that ASIO had some interest in [the Lads Society], and possibly Mr Donis. So when Mr Donis told you he was the leader of a group called SWAN, you wanted to make sure it was all above board?
APPLICANT: Yes. Yes, I mean, it was more to do with, from the reputation that [the Lads Society] had with the whole Brenton Tarrant thing that I just wanted to make sure that, you know, if I went to these events that there wouldn’t be anything - anything similar to that. So it was more to - to do with what I’d read, you know.
…
COUNSEL: So you didn’t understand there were individuals who were involved in SWAN who had expressed support for and a willingness to use violence?
APPLICANT: I mean, I was open to the possibility of that. I mean, I didn’t know any myself, so I was more responding to the - the, yes, the - that there is a - that if there is an indication that anyone wants to commit violence that it would be a concern to ASIO.
COUNSEL: And if you were aware of anyone who had that sort of ideology, who was in your circle of friends, would you have told ASIO about that?
APPLICANT: Yes
[55] Transcript 8 February at 105.
The Applicant was then asked about his reference in the Second SAI to hearing members of SWAN talking about putting up banners.[56] He had said in the Second SAI that he had “heard them talking about banners” but had not paid much attention. He did comment in the Second SAI that he thought SWAN putting up these banners had been ironic because they wanted “good optics” and at the same time were doing “stupid stuff” that was “inflammatory, it was unnecessary and just offensive”. He said that he had only known about the banners from what he had seen reported in the news and had inferred that SWAN was involved from what he saw. His evidence at the hearing was that, while he could not specifically remember what the banners were about, he thinks that they may have related to the government response to COVID as that was topical at that time. He reiterated that he had no direct knowledge and that he had “connected the dots” to conclude that SWAN had been responsible for the banners.[57]
[56] UB298.
[57] Transcript 8 February at 107. From the closed evidence we know this claim by the Applicant to be false.
The matter of SWAN’s desire to keep certain of its activities and workings secret had also been raised in the Second SAI. The Deputy President asked the Applicant why he thought that there was a need for secrecy given the stated objects of SWAN as being an organisation that the Applicant understood to be nothing more than a social group. The Applicant’s answer was that he did think it odd and, over time, started going to less SWAN events. In answer to the question of why there was a need for secrecy, the Applicant’s evidence was:[58]
I’m not sure, he [Mr Donis] wouldn’t really tell me that - I mean if anything, the secrecy was more passive. I mean, it might have been just because I didn’t ask, like specifically. I can’t really remember why I inferred it; I just guess it was because I just didn’t know much about what they were doing.
[58] Transcript 8 February at 109.
In the Second SAI, the Applicant had been asked whether SWAN’s secrecy was because SWAN was looking at recruiting people with “stronger ideology” to which the Applicant had responded:[59]
I think it’s possible, like, I mean, they don’t really tell me anything, but from what I’ve inferred that’s more than likely why.
[59] Transcript 8 February at 110.
The Applicant was then asked:[60]
DEPUTY PRESIDENT: So that’s how you understood the question, so was it your understanding then, the inference to be drawn from that question, and your answer, is you’re aware that - or there was a possibility that SWAN was recruiting with a stronger ideology. And you’re saying that’s extremist including violent ideology?
APPLICANT: I guess, the way I interpreted that question was what do I think the recruitment - well, do I think it’s a recruitment strategy, and that’s a possibility, but it could also be all these other things. In terms of stronger ideology, I mean, that’s quite an ambiguous thing. I guess in looking back at it now that’s why it might be I’m referring to one that’s a violent ideology, or just simply - - -
…
DEPUTY PRESIDENT: And you thought they meant stronger ideology towards violence?
APPLICANT: Yes, I guess that was the context of the questioning at that point, I think.
[60] Transcript 8 February at 110.
Counsel then took the Applicant to the part of the transcript of the Second SAI which dealt with whether Mr Donis had ever asked the Applicant to provide any information or equipment related to the Applicant’s work in the Army. The Applicant had responded in that interview “No, not at all”.[61] At the hearing the Applicant confirmed the accuracy of his answers given in the Second SAI that Mr Donis had never asked about his Army training “beyond maybe like social kind of stuff”.[62]
[61] UD306.
[62] Transcript 8 February at 111. From the closed evidence we know that answer to be false.
In the Second SAI the Applicant had been asked what future events SWAN had planned, to which he had responded that he was not sure. The Applicant had earlier in his cross-examination said that he now thought that after that interview in September 2020 he had attended the SWAN Christmas party that year, which was a sausage sizzle in a park. He then said that, while he had not mentioned it in the Second SAI, or in his evidence at the hearing the day before, he had also attended a camp or camps. His evidence was:[63]
[63] Transcript 8 February at 115.
COUNSEL: … And then this morning you’ve said you think you attended the Christmas party which was the sausage sizzle in a park near Joondalup. Can you recall any other events that you might have been invited to or attended?
APPLICANT: Let me think. I mean, there wasn’t - I didn’t mention this in the interview, I didn’t think of it at the time. There was a camp and we’d go on it, like, every year ever since I’d met him. I think there was one that year.
COUNSEL: What year?
APPLICANT: The - yes, 2020 I think it was. It’d be going up to - I can’t remember where. Somewhere down south. We’d just go hiking and, like, do a small bonfire and do some navigation. Like, it’d be some pretty mundane stuff and then we’d come back for the weekend. And, yes, so that might have been on that year as well, I think, just off memory. I can’t remember what happened.
…
COUNSEL: Did you attend more than one of these camps?
APPLICANT: So I think I attended, maybe - for one year, I didn’t - I didn’t go. Yes. Yes, so I think maybe two or three I attended since the time I’ve known him. But yes, there wasn’t - they weren’t particularly, like, particularly memorable. Yes.
COUNSEL: Okay, now we’re at a point in time, in this second security assessment interview, where you’ve now been interviewed for several hours by ASIO officers, and you do not mention the word camp once in those hundreds of pages of transcript?
APPLICANT: Yes, and that - that’s - that’s my fault. I just - just didn’t think of it at the time. Like, it was pretty forgettable. I mean, I –
…
COUNSEL: You didn’t mention that yesterday in evidence?
APPLICANT: Well, I - yesterday, like, when I went home, I went and just looked up - went through, like, my notes and things. I mean, we didn’t submit it, I don’t think, but I just went through and made - wanted to go through, like, the - what happened that year and - just in case I was asked about it.
COUNSEL: You’ve put on two affidavits that you have made on oath in this application for review. You’ve not mentioned the camps in those affidavits, have you?
APPLICANT: No, I don’t - I don’t think so, no.
…
DEPUTY PRESIDENT: Well, just before we go off that, you also mentioned that you did navigation. Can you explain what you meant by that?
APPLICANT: So one of the people there, they used to - I think someone used to do Cadets, so they knew about navigation. So they just did, like, a - played a game to see who can find some of the navigation points. I was pretty bad at it, but yes. Similar to kind of like what we were doing in, like - like our training where we’d get given bearings and we’d go in, like, different directions and try to get to that place.
David Donis
In his examination-in-chief, Mr Donis gave evidence that the objectives of SWAN, as stated in its constitution, are:[64]
The aims and objectives of the organisation is, one, to bring together like-minded Australian men for the purpose of improving themselves and developing a social responsibility through offering members ranks and social activities.
[64] Transcript 8 February at 129.
Mr Donis described the people who were attracted to SWAN as:[65]
People that subscribe to the general sphere of, like, nationalism, which has many different, I guess, definitions and positions,…
[65] Transcript 8 February at 129.
His evidence was that SWAN would exclude people with accelerationist views or people who espoused violence. He described the objective of SWAN to be:[66]
…to find, I guess, a group of people that inherently feel a bit disenfranchised with the current system, and bring them to, like, a sense of purpose, instead of, you know, wallowing in self-pity, or taking it upon themselves.
[66] Transcript 8 February at 130.
According to Mr Donis, SWAN had expelled two of its members who had been identified in an on-line Sydney Morning Herald article as being associated with The Base (see [48(s)] above). Mr Donis’ evidence was that the Applicant was not a member of SWAN and had not been involved in any decision-making process of SWAN.
In cross-examination, Mr Donis outlined the history of the creation of SWAN starting with a rally in 2014 or 2015 which was part of a national series of rallies called “Reclaim Australia” organised by, what Mr Donis described as, “a broad church of nationalists, or you know, patriot groups, and all sorts of things”.[67] After one of those rallies, Mr Donis spoke to the main speaker, Blair Cottrell, who told Mr Donis that he was “creating some sort of group over east, a United Patriots Front”. After that meeting Mr Donis kept in touch with Mr Cottrell and the United Patriots Front “morphed” (as described by Mr Donis) into the Lads Society. Mr Donis was invited, with “one other member from WA”, to and did attend the Melbourne clubhouse of the Lads Society. Mr Donis was asked by Blair Cottrell to form the Western Australian chapter of the Lads Society, which he did. After a couple of years, the Western Australian and the Eastern States chapters were heading in different directions, so it was decided to “rebrand” the Western Australian chapter as SWAN which resulted in the creation of SWAN in 2018 or 2019.
[67] Transcript 8 February at 143.
Mr Donis’ evidence at the hearing was that he had invited the Applicant to attend various SWAN events such as quiz nights, dinners and camps. He described the camps as being on a private property over several days with people arriving, setting up camp, helping each other, cutting down trees, making a bonfire as they were always in winter, and doing some navigational exercises.[68] He could remember the Applicant attending two camps.
[68] Transcript 8 February at 150.
Asked why he thought the Applicant’s security clearance had been revoked, Mr Donis’ evidence was that he thought it may have been connected to the prank that they had played on Mr Sufi and the subsequent police involvement, and also possibly because of the issues that Mr Donis and SWAN have had with police, ASIO and the State Security Investigation Group over the years that SWAN has existed. He thought that the Applicant’s security clearance issue may have been an effort “to wedge people or anyone that even has a remote association with me”.[69] Mr Donis then said:
But he did mention actually that they asked about me specifically, and I assume the relationship between me and DPFX along the lines of the questions you’re asking today.
[69] Transcript 8 February at 152.
He was then asked what else the Applicant had told him about the security interviews that he had, to which Mr Donis responded:[70]
I believe there was two occasions. Yes, the initial one I recall, and then I believe he said that there was a follow-up or something like, “They want to interview me again.” And so I said, “Well, you know, there’s no issue the first time, then just do it again.” Yes, that was sort of, I think, the same story.
[70] Transcript 8 February at 153.
In re-examination Mr Donis was asked a number of questions about conversations that he had had with the Applicant relating to the SAIs:
COUNSEL: Right. Second interview. You said that he - did you say that he mentioned that it was about you, or he said - didn’t mention even that?
MR DONIS: No, I believe that I - I can’t remember if I asked, but I said, “Did they ask about me?”, or “Was I mentioned?”, or something. And I think that was - I can’t remember DPFX’s answer specifically, but I feel like it was like an indicative yes, or something to that effect, but there was no further - - -
…But I wasn’t surprised by that, because every agency and every interview I’ve ever heard of, they ask about me, and it was the same sort of question. Like, “What’s your association with David Donis? What does he do for a living? Where does he live?” Those sorts of questions
At the conclusion of the re-examination the following exchange occurred:
DEPUTY PRESIDENT: I just want to clarify one thing. I think you gave an answer to a question asked by Mr Glover, and your answer to a question was that DPFX had told you, after his first interview, that’s in September 2019, that some of the questions related to you. Is that the case?
MR DONIS: I’m not sure about the date on what - 2019 or when it was, I have no idea, but I do recall DPFX saying that he was asked to do an interview, and I believe - either I – I can’t recall if I asked if I was mentioned, because as I said, previous experience indicated that that was always a question, or the theme of the questioning.
So I may have asked, “Was I mentioned?”, and I believe I got some indication that I was, but I can’t recall the exact answer or what DPFX said.
…
DEPUTY PRESIDENT: So did it surprise you then when DPFX was interviewed for a second time?
MR DONIS: Yes, that was pretty surprising, because other people that were in the ADF that had had similar questions, they had one line of questioning, I think, about me, and I don’t think they revisited that, as far as I’m aware. I don’t know for certain but - - -
DEPUTY PRESIDENT: And did DPFX tell you before that second interview that he had been called on to give a second interview?---
MR DONIS: I can’t recall if he told me after the fact or before. I can’t say.
DEPUTY PRESIDENT: Presumably afterwards, can you recall whether, in relation to that second interview, DPFX told you that questions, again, had come up about you?
MR DONIS: After the second one?
DEPUTY PRESIDENT: Yes?
MR DONIS: So I don’t know if it was - if I’m thinking of the questions one and the questions that I - or that if I asked if I was mentioned, if it was after the first one or - I’m pretty sure I would have asked that after the first one. And then, the second one, I’m not sure if I would have asked that or not. Because I assumed that it would have happened again.
In re-examination Mr Donis was also asked to expand on his evidence about the camps and the activities undertaken at the camps. His evidence was:
COUNSEL: Who gave the idea about these navigational exercises?
MR DONIS: Myself and some of the others on the leadership team. I was a Cadet back in my teenaged days, and a lot of the exercises we would do out in the bush, and camps. It would be NAVEXes, or navigational exercises, and it’s just simple finding your direction, your bearings, and traversing a distance with or without a map using the natural topography or whatever. Sort of survivalist skill stuff which we learned in Cadets, and we sort of wanted to impart that skill on some of the people that would have no idea about any of that. And given that DPFX was, you know, a member of the ADF, I know he had the basic understanding of that, as well as many of the members that were also members of Cadets, and I think ADF members, some of them, at the time. So I thought, well, it would be a good idea on a camp to do a few NAVEX exercises. So the ones with experience would help the others, sort of, understand that.
CLOSING SUBMISSIONS
Oral closing submissions were made by the Applicant at the conclusion of the hearing of the open material on the second day of the hearing. Obviously, those submissions were limited to the open material only.
As noted at [34] above, written closing submissions were provided by the Respondent on 29 March 2023 and by the Applicant on 12 April 2023, with a brief response by the Respondent on 27 April 2023 to one issue raised in the Applicant’s closing submissions.
Those written closing submissions were to the following effect:
The Respondent
(a)A security clearance is not specific to particular information or a particular role: subject to certain qualifications, it permits access to any information which the clearance-holder needs to access for his or her work up to a certain level of classification.[71]
[71] Citing Chapter 9 of the PSPF.
(b)The determination of whether a person is suitable to hold a security clearance is governed by the Personnel security adjudicative guidelines (PSAG) annexed to Chapter 12 of the PSPF. The PSAG state that a person is suitable to hold a clearance if ‘it is established, to the appropriate degree of satisfaction, that the clearance subject possesses and demonstrates an appropriate level of integrity’, defined as a combination of six character traits necessary ‘for the government to have confidence in their ability to protected Australian Government resources’.[72]
[72] Annex A Chapter 12 of the PSPF; UD182.
(c)The assessment of suitability requires reference to ‘a number of risk factor areas’ which may create ‘doubts’ about whether the clearance subject possesses those traits or raise matters of ‘security concern’.[73] Those doubts or concerns may mean that the assessment cannot ‘establish confidence’ that the clearance subject has ‘a sound and stable character’ and is ‘not unduly vulnerable to influence or coercion’. In the final analysis, ‘[a]ny doubt concerning the clearance subject’s suitability must be resolved in favour of the national interest’.[74]
(d)A clearance subject’s deficiency in one or more of the six character traits required by the PSPF, will usually be relevant to the requirements of security as defined in the ASIO Act. That is because, at a minimum, such a deficiency may give rise to a risk that the clearance-holder will be influenced, exploited or coerced in a manner relevant to security.[75]
(e)MCLT demonstrates that a clearance subject’s deficiency in one or more of the character traits required by the PSPF may give rise to a risk of security-relevant exploitation sufficient to justify a conclusion that the refusal (or revocation) of their clearance would be consistent with the requirements of security, even if no specific threat of conduct mentioned in sub-paragraphs (a)(i)-(vi) of the definition of ‘security’ in the ASIO Act is presently identifiable.
(f)A security assessment furnished for the purposes of a security clearance decision may be prophylactic. This is because:
(i)the definition of ‘security’ is concerned with the protection of Australia and Australians from conduct of the kind described in sub-paragraphs (i)-(vi) of the definition of security in the ASIO Act. The protective aspect of the definition is ‘in the widest terms’[76] and has ‘a broad ambit that includes prospective risks adverse to the interests of Australia and Australians’[77]; and
(ii)the matters to be considered by the Tribunal in giving its recommendation about the requirements of security are ‘very much shaped’ by the ‘parameters’ of the security clearance assessment to be made by AGSVA. The assessment described by the PSAG is forward-looking and precautionary, in that it is concerned with the identification of risks to the national interest, rather than the making of predictions about future events to any particular degree of likelihood.
(g)Two heads of security are of particular relevance to this case. They are PMV and PCV. The Tribunal should give them the full breadth that the text permits.[78]
(h)The definition of PMV has several limbs. It relevantly includes ‘acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective’, as well as acts that ‘involve violence or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons)’ and which ‘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’. PCV is defined to mean ‘activities that are directed to promoting violence between different groups of persons in the Australian community’. The definition is not limited to direct incitement of violence: it is apt to capture acts directed to furthering the growth or development of violence between groups in the Australian community.
[73] Examples set out in Annex A to Chapter 12 of the PSPF; UD183-189.
[74] UD182.
[75] This, according to the Respondent, is consistent with the view expressed by Justice Hope in the Report on the Australian Security Intelligence Organisation of the Second Hope Royal Commission on Australia’s Security and Intelligence Agencies at [9.21]-[9.25]. See also UD81.
[76] Church of Scientology v Woodward (1982) 154 CLR 25; [1982] HCA 78 at [10] (Brennan J).
[77] KFDJ and Director-General of Security [2022] AATA 3185 at [74].
[78] Citing Jaffarie at [65].
The above comprised the Respondent’s open closing submissions. The thrust of the Respondent’s closed submissions, relying on open and closed material and reflecting the Respondent’s SFIC, was that the open and the closed material (identified by the Respondent in the closed submissions) establish the elements of the ASA identified in [10] above and that, as a result of establishing those matters, it would be a security risk if the Applicant were to hold an NV1 security clearance.
The Applicant
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
While neither the ASIO Act nor the AAT Act directs the Tribunal to determine whether ‘reasonable grounds’ exist, it is appropriate and logical (to the point of being self-evident) that, in reviewing an ASA, the Tribunal is to look at whether reasonable grounds exist to support the conclusions and recommendations of the ASA. That is, in effect, the approach taken by both parties in the present matter.
What are to be considered as reasonable grounds in any particular case is to be assessed by reference to the “prescribed administrative action that is relevant in th[e] matter and whether it would be consistent with the requirements of security for an NV1 security clearance to be issued” (MCLT at [109]: see [102] above).
In relation to the need to establish reasonable grounds for the action taken in reviewing the function undertaken by ASIO under s 37(1) of the ASIO Act to provide security assessments pursuant to s 17(1)(c), the Respondent referred to George v Rockett in which the High Court at [112] addressed what constitutes ‘reasonable grounds’ as follows:
When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. This was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson.
and at [115]):
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
(Footnotes omitted)
While the legislation relevant to the present case does not specifically direct an enquiry into whether ‘reasonable grounds’ for a state of mind exist, as was the case in George v Rockett, for the reasons set out above, that is the appropriate enquiry.
The existence or otherwise of reasonable grounds must be assessed in terms of the administrative function in question, in the present case, advising relevant authorities on matters relating to security. The basis upon which ASIO is to discharge its function in advising in respect of matters relating to security was described by the Tribunal in BLBS in the following terms:
ASIO exists to anticipate and help prevent future dangers. Inevitably the prediction of future events must involve speculation—understood in a neutral, not pejorative sense. Certainty will rarely, if ever, be attainable. All that is required is that any prediction of future events contained in an adverse assessment must be well informed; the reasoning supporting the prediction must be rational and inferences must be based on sound foundations. Reasoned speculative foresight is not prohibited.
In WWKJ and Minister for Foreign Affairs,[87] having cited passages from BLBS and CMHV, at [58] the Tribunal described ASIO’s function in providing security assessments as follows:
This Tribunal agrees with the above passages. What those passages do is to highlight the different, if not unique, functions with which ASIO is charged in analysing information and providing advice on security. By their nature, the security assessments made under s 17(1)(c) of the ASIO Act are forward looking, they are making assessments of likely or possible future conduct, albeit based on past or present conduct and other indicators. In that sense the exercise undertaken by ASIO in making a security assessment under s 17(1)(c) of the ASIO Act to be furnished to Commonwealth agencies under s 37(1) of the ASIO Act is materially different to the exercise faced by courts … That examination being undertaken by a court in the course of determining whether a fact or facts have been proven is, as noted above, a different task to that facing ASIO and the Tribunal in cases such as this, being an assessment of the likelihood of a future occurrence.
[87] [2018] AATA 3894.
At [62] the Tribunal in WWKJ also observed that:
The purpose of a security assessment is to provide advice on matters of security to relevant Commonwealth agencies (ss 17(1)(c) and 37(1) of the ASIO Act). Security, as defined in s 4 of the ASIO Act, is “the protection of, and of the people of, the Commonwealth” from the threats identified in subsections (i) to (vi) of the definition, which includes politically motivated violence. Accordingly, the findings of fact which may give rise to an ASA and the process of assessing those facts to draw conclusions as to possible conduct have consequences well beyond the individual in relation to whom the security assessment is made. More importantly, however, a failure to make findings which could be the basis of an ASA could have consequences for the wider Australian community and national security. Therefore, if one is looking at the consequences of making a finding of a security risk, the level of satisfaction that a decision-maker must have to do so must necessarily take into account the consequences of not making such a finding which are potentially wider and potentially more serious than making such a finding. The Tribunal considers this view to be consistent with the view expressed by the Tribunal in BLBS at [47] of the decision quoted in [54] above.
The Tribunal also notes the protective aspect of the definition of security in s 4 of the ASIO Act is ‘in the widest terms’[88] and has ‘a broad ambit that includes prospective risks adverse to the interests of Australia and Australians’.[89]
[88] Church of Scientology v Woodward (1982) 154 CLR 25; [1982] HCA 78 at [10] (Brennan J).
[89] KFDJ and Director-General of Security [2022] AATA 3185 at [74].
It is also relevant to consider the specific purpose for which the security assessment in the present case was undertaken, and the consequences of the ASA. The security assessment was made to determine whether the Applicant should continue to have NV1 security clearance which would allow him to access certain levels of sensitive or security classified information. Information is given a security classification depending on the nature and sensitivity of the information. The security classification of information determines how it is to be stored, handled and protected, and by whom the information can legally be accessed. Relevant to the present matter, information is classified into five broad categories - official, official sensitive, protected, secret and top secret. Chapter 8 of the PSPF[90] sets out the bases on which information is classified and how that information is to be stored and handled. Chapter 9 of the PSPF[91] sets out the policy determining who can access security classified information of the different levels. Relevantly, NV1 level of security clearance is required to access information classified as secret (PSPF Chapter 9, C.3 para 13).[92]
[90] UD108-151.
[91] UD152-9.
[92] UD154.
Accordingly, the purpose and the consequence of the ASA (if the ASA is followed) in the present case is that the Applicant does not have access to information classified as secret. Such access, however, is not a right, but rather is a privilege given by the Government to people whom the Government considers appropriate and qualified to handle such information. The effect on an individual of an ASA recommending that their NV1 security clearance be revoked is of a fundamentally different nature to an ASA which results, or could result, for instance, in cancellation or refusal of a passport. In the latter case, the ASA has the effect of removing from a citizen a right that every citizen has, the right to a passport. In the present case access to secret classified government information is not a right. The Tribunal does, however, acknowledge that the ASA and the inability of the Applicant to access classified information will negatively impact the Applicant’s ability to progress in his Army career and any career that would require NV1 security clearance.
Are there reasonable grounds to support the ASA?
The terms of the ASA and the SOG (which, pursuant to s 37(2) of the ASIO Act forms part of the ASA) are summarised in [2] and [10] above.
The determination to be made by the Tribunal is whether, based on the evidence, both closed and open, there are reasonable grounds for the findings and recommendations of the ASA.
The Applicant associates with leaders and members of SWAN
The Applicant’s own evidence was to the effect that he has, or at least had, over an extended period, associated regularly with Mr Donis and other members of SWAN.
His evidence at the hearing, as well as his answers in the SAIs, was that he regularly attended events organised by Mr Donis or SWAN, that the same people regularly attended these events and that some of those people had extreme, even neo-Nazi views (see [60]-[65] above).
In addition to the seemingly regular quiz nights, film nights, dinner nights, sausage sizzles and barbecues, the Applicant also, belatedly, conceded that he attended a number of weekend camps with Mr Donis and SWAN members (see [76] above).
It is clear from the open material, including the Applicant’s affidavit, his evidence at the hearing and the transcripts of the SAIs, that the Applicant has close ties with Mr Donis and SWAN. The closed material establishes that the Applicant’s association with Mr Donis and SWAN is far deeper and more extensive than indicated by the Applicant.
Is SWAN a nationalist and racist extremist group?
While the Applicant and Mr Donis deny that SWAN is a nationalist and racist extremist group, we are satisfied that the evidence, in particular the closed evidence, establishes that that to be the case. We are also satisfied that Mr Donis and other members of SWAN (who cannot be identified by reason of the certificates issued under s 38(2)(b) of the ASIO Act and ss 39A and 39B of the AAT Act), adhere to, and promote, racist and neo-Nazi ideologies and are supportive of PMV and PCV.
We find, and it was not disputed by Mr Donis, that members of SWAN sought to join The Base, an international NRVE group members of which were arrested in the United States in 2020 for plotting violent attacks against their perceived political enemies.
The Applicant’s evidence was that he had seen refence to Volkskrieger and had seen Dean Smith once or twice at SWAN events (see [61] above). While not specifically referring to SWAN, the Applicant at the First SAI said that one of his friends had joined the Proud Boys, which he agreed was an extremist, right-wing group, and said that he knew members of far-right groups who held quiz nights which he had attended. We take this to be a reference to the SWAN quiz nights.
In the Second SAI the Applicant said that he was aware that some of the other people who attended the SWAN events followed a national socialist and white supremacist ideology: 'I know that there are people from - that kind of have those kind of views, that kind of come to these events'.[93] The Applicant’s evidence at the hearing was that he knew of Mr Donis’ involvement with the Lads Society and that people involved with that organisation were members of SWAN (see [70] above) and that they had expressed support for and a willingness to use violence. His evidence at the hearing was that he was aware that SWAN was looking to recruit people with stronger violent ideologies (see [74] above). His evidence at the hearing also was that he thought that SWAN’s secrecy in relation to its activities was “odd” (see [72-73] above). Notwithstanding knowing these things, the Applicant chose to continue to be involved in SWAN activities.
[93] Transcript of Second SAI: UD292.
Further, the Applicant was aware of the intelligence services interest in the activities of SWAN, and those with whom he associated, when he advised, in the Second SAI, that SWAN members ‘might mention, oh, they got, like investigated or something'[94] and that he had 'heard some of the people there talk about' banners that the group had erected, and he 'figured that that would cause a lot of attention from government security'.[95]
[94] Transcript of interview UD295.
[95] Transcript of interview UD298.
The Applicant claimed to have now distanced himself from SWAN. The fact is, however, that knowing the views being expressed by members of SWAN and the secrecy surrounding its activities, he still chose to continue to associate with SWAN and Mr Donis. He also continued that association after the First SAI which would have alerted him to the security agency’s interest in the activities of SWAN. Based on the closed material we are also satisfied that the Applicant significantly understated his continued involvement with SWAN and Mr Dons in the Second SAI and in his evidence at the hearing. The closed material evidences that the Applicant’s relationship and interactions with Mr Donis and his involvement in SWAN were far more than just attending SWAN social functions at Mr Donis’ invitation. The Applicant’s association with Mr Donis and SWAN rightly raises concern under para 22 of Annex A to the PSPF (see [99] above).
Influence of Mr Donis
We are satisfied that Mr Donis exerts influence over the Applicant. An example of that influence is the incident involving Mr Sufi (see [58] and [37(h)] above). Even if that might be considered to be a silly or trivial incident, or a prank that went wrong, it demonstrates a susceptibility on the part of the Applicant to influence.
More tellingly, however, the closed material demonstrates that the relationship between Mr Donis and the Applicant was more extensive and of a materially different nature to that represented by the Applicant and Mr Donis and that the Applicant’s involvement in the activities of SWAN were far greater than claimed by the Applicant. The Applicant’s own evidence at the hearing was that he is still a friend of Mr Donis and still meets with him, albeit less frequently now.[96]
Deliberate omission, concealment or falsification of relevant facts or providing misleading information in security interviews
[96] Transcript at 75.
As noted above, based on the closed material we are satisfied that the Applicant materially downplayed his connections to SWAN and its activities and the extent and nature of his relationship with Mr Donis and SWAN.
The Applicant deliberately omitted reference to his attending at least two “camps” attended by SWAN members. We do not accept his claim that he had forgotten about these camps and only remembered having attended them on the second day of his cross-examination (see [76] above). We are also satisfied that the Applicant’s involvement in the camps, including assisting in the organisation of the camps and the nature of the activities undertaken on the camps, was not as represented by the Applicant. The deliberate failure to disclose his attending the SWAN camps and his misrepresentation of the activities engaged in at the camps is a matter that rightly raises a security concern under paras 24 and 25 of Annex A to the PSPF (see [99] above)
Of equal, if not greater, concern to the Tribunal was the Applicant’s disclosure of information in relation to the SAIs to Mr Donis. Not only did the Applicant make such disclosure in breach of the specific undertakings given at both SAIs, but he then lied about making such disclosure, firstly in the Second SAI in September 2020 and again at the hearing of this matter. While the closed material clearly establishes the extent of the disclosures made by the Applicant to Mr Donis, even the open material, in particular the evidence of Mr Donis, establishes the breach of the undertaking not to disclose and the extent of the Applicant’s dishonesty in relation to such disclosure.
In cross-examination the Applicant was taken to the transcript of the First SAI wherein it recorded the ASIO agent, identified as Interviewer B, saying:
Equally it is important for you to give an undertaking that you will not divulge the matters we discuss here today with anyone. Do you give an undertaking not to discuss matters divulged today.
The Applicant confirmed, as recorded in the transcript of the interview,[97] that he responded “yes”. At the conclusion of the First SAI, the Applicant was again asked “Do you agree to maintain confidentiality of the discussions we’re (sic) had here today”.[98] The Applicant again said yes.
[97] UD225.
[98] UD270; Transcript 7 February at 87.
Asked in cross-examination whether he had made any disclosure contrary to the undertakings, the Applicant’s evidence was:[99]
Not that I can recall. I can't actually remember to be honest.
[99] Transcript 7 February at 78.
That is, in itself, a disconcerting answer. Even if the Applicant is to be believed that he could not remember, the Applicant’s answer indicates that he was clearly open to the possibility that he had breached the undertaking. It is not the answer of someone who inherently feels bound by an undertaking of such clear significance. He should not have to “remember” whether he has breached the undertaking, he should have been able to respond to the effect that he would not breach such an undertaking. That is obviously not the case with the Applicant.
On re-examination the Applicant was taken by his counsel[100] to the conclusion of the Second SAI where the ASIO agent asked the Applicant “Do you agree to maintain confidentiality of the discussions that we’ve had today”, to which the Applicant answered “Yes”.[101] Mr Strbac asked the Applicant whether he had disclosed the content of that September 2020 interview to Mr Donis. The Applicant responded that he had not.
More specifically, asked whether he had “Any discussions that were part of the interview” (which we take to mean whether the Applicant had disclosed to Mr Donis any content of the discussions) the Applicant’s answer was “No, not at all”.[102] Mr Strbac then asked the Applicant “…did you tell him (Donis) any of the discussions that were part of that interview?” to which the Applicant responded “No, I didn’t”.[103]
[100] Transcript 8 February at 121.
[101] UD313.
[102] Transcript 8 February at 121.
[103] Transcript 8 February at 121.
The Applicant’s evidence is directly contradicted by the evidence of Mr Donis. In cross-examination Mr Donis’ evidence was:[104]
COUNSEL: …after DPFX was spoken to not by the police, but by another agency, did he tell you about that interview?
MR DONIS: He told me that there was a - somebody within the military, I’m not sure who it was or what agency or whatever. Something regarding security clearance and that he needed to have an interview. And I said, “Okay. You know, let me know how it goes, I guess.” And I believe he did that; the first initial interview. And he said that there was no further action or something to that effect after that, and that was sort of the end of it. I didn’t ask any detail, and I don’t believe DPFX offered any detail like specifics or anything like that. But he did mention actually that they asked about me specifically, and I assume the relationship between me and DPFX along the lines of the questions you’re asking today. As to DPFX’s answers, I can’t speak to that.
…
COUNSEL: And did he tell you he had one interview or more than one interview?
MR DONIS: I believe there was two occasions. Yes, the initial one I recall, and then I believe he said that there was a follow-up or something like, “They want to interview me again.” And so I said, “Well, you know, there’s no issue the first time, then just do it again.” Yes, that was sort of, I think, the same story. I didn’t really hear anything or - - -
COUNSEL: But why was he telling you, though?
MR DONIS: Because I think I was mentioned specifically or I was asked about, like, the relationship between me and him. But I don’t think - as far as I recall, I don’t think that there was any specific questions that I asked or specific details that DPFX offered.
[104] Transcript 8 February at 152.
In re-examination Mr Donis’ evidence was:[105]
[105] Transcript 8 February at 152.
MR STRBAC: With respect to the first interview, DPFX told you before the interview happened, right, that there was going to be an interview, security interview?
MR DONIS: That there was a request for him to –… To attend one, I think. Something along those lines.
MR STRBAC: So after that, there was a communication about that interview in which…
MR DONIS: I think I asked something like, “How did that go?”, and yes, he said that there was no action or something, no issue.
…
MR STRBAC: …Second interview. You said that he - did you say that he mentioned that it was about you, or he said - didn’t mention even that?
MR DONIS: No, I believe that I - I can’t remember if I asked, but I said, “Did they ask about me?”, or “Was I mentioned?”, or something. And I think that was - I can’t remember DPFX’s answer specifically, but I feel like it was like an indicative yes, or something to that effect, but there was no further –
… But I wasn’t surprised by that, because every agency and every interview I’ve ever heard of, they ask about me, and it was the same sort of question. Like, “What’s your association with David Donis? What does he do for a living? Where does he live?” Those sorts of questions.
The Deputy President then asked Mr Donis some further questions about the extent of the Applicant’s discussions with Mr Donis about the security interviews. The exchange quoted at [86] above then occurred.[106]
[106] Transcript 8 February at 156.
In closing the Deputy President asked Mr Strbac about the inconsistency between the evidence of Mr Donis and the Applicant about him discussing the interviews with Mr Donis. The following exchange occurred:[107]
DEPUTY PRESIDENT: Thank you, Mr Strbac. You’ve addressed, at some length, the one aspect of the Director-General’s case, or the assessment, and I think that’s the association with what might be considered to be an extremist organisation holding political violence or civil disorder views.
…
…The second element, however, of the assessment and what the director general relies on is the potential failure of the [A]pplicant to have kept confidential information relating to his two interviews, and in particular those sections of the PSPF which deal with deliberate omission, concealment, or falsification of relevant facts from a person or security questionnaire, history statement, or a similar form used to determine security clearance. And that appears at paragraph 27 of the PSPF.
And similar, the failure of the applicant potentially - if we were to find this to be the case, failure of the [A]pplicant to adhere to the direction - an undertaking he gave not to disclose that information. Because I think you heard the evidence of Mr Donis. It would be very much open to the tribunal to find that in fact the [A]pplicant did tell Mr Donis about at least one of the meetings, if not both of the meetings, and certainly that the subject matter of the meeting to a degree was Mr Donis.
If we were to find those facts, what do you say the [T]ribunal should treat them as indicating for the purposes of the PSPF and the security assessment?
[107] Transcript 8 February at 163.
Mr Strbac provided an answer which appeared not to address the question. The following exchange then took place:[108]
[108] Transcript 8 February at 164.
DEPUTY PRESIDENT: I think you might have misunderstood. The issue is not DPFX reporting to ASIO on Mr Donis, it’s DPFX revealing to Mr Donis that ASIO’s questions related to Mr Donis. If we were to find that, is there anything in the PSPF or anything else like a mitigating circumstance which would cause that to be treated any differently than a straightforward breach of a security requirement?
MR STRBAC: A mitigating circumstance I think would be, Deputy President, his basically naivety or being not mature enough to understand that these things are not talked, not - nothing gets said to anyone he (indistinct) before. Unfortunately, my client has - why I’m saying that it should be taken into account, he did go through some training and he said that there was some module.
…
DEPUTY PRESIDENT: What about the fact - is there any dispute that the - at the first meeting in September 2019, first interview, it was made very clear to DPFX that he was not to reveal anything that was discussed at that meeting, and he also gave an undertaking that he wouldn’t disclose anything?
MR STRBAC: Yes, Deputy President, that is correct. Absolutely we don’t oppose that whatsoever. My client has said in his statement - in his affidavit that he did not say anything to Donis in regards to content of that meeting. So Donis is saying that he may have said something or that he said something that it was about him. But he’s putting it in the context that there were many others that were in that position and they were always asking about him. So it is really who would you find more credible, Mr Donis or…
DEPUTY PRESIDENT: Mr Donis was your witness.
MR STRBAC: He was. But it is also a thing that this is fail [sic] people’s memories. It happened some time ago, and it wouldn’t be unusual that Mr Donis mixes it not deliberately. He knows that something like this would - I guess he would have known that something like this would damage - - -
DEPUTY PRESIDENT: So getting back to the point really, is it the applicant’s case 100 per cent that he simply did not say anything to Mr Donis either after - before or after the first meeting, or after the second meeting? So rather than if he did say something that was in circumstances such as those - which if you turn to UD188 which is the PSPF which actually gives guidelines as to circumstances that may mitigate where there has been an inappropriate or an unlawful disclosure of information - I take it you would say that none of those circumstances apply in the present case simply because there is a one-dimensional submission made in respect of that, and that submission is that he never sent [should read said] anything to [Mr] Donis?
MR STRBAC: That’s correct
We do not accept the Applicant’s argument. It is clear from the evidence of Mr Donis, a witness produced by the Applicant, that the Applicant disclosed to Mr Donis, at the very least, that a major subject of the First and possibly the Second SAI, was Mr Donis himself. Mr Donis’ evidence in that regard was clear. The only source from which Mr Donis could have gained the knowledge that he was a major subject of the discussions at the SAIs is the Applicant. We do not accept the somewhat fanciful theory put forward by Mr Strbac that Mr Donis was mistaken in his recollection that the Applicant had told him that questions had been asked about him in the security interviews and that Mr Donis was thinking of someone else having told him that his name had come up in a different interview. That is simply not credible. The straight-forward and simple explanation is that the Applicant told Mr Donis that he had been asked questions about him in at least one of his security interviews.
Not only was the disclosure of that information contrary to the specific undertaking given by the Applicant, but it would also have been obviously inappropriate to anyone mature enough to understand the sensitivity of questions asked and information discussed in a security interview. In that regard we note Mr Strbac’s reference to one possible reason for the Applicant’s failure to comply with the undertaking being the Applicant’s naivety and immaturity (see [142] above). That, of course, is at odds with the statement by Mr Strbac that the Applicant’s case is, 100 percent, that the Applicant did not say anything to Mr Donis.Obviously, it is also of concern to the Tribunal that the Applicant has lied in these proceedings about his disclosure of matters discussed in the SAIs. The Applicant’s behaviour in disclosing the subject matter of the security interviews to Mr Donis, and lying in these proceedings about that, clearly come within paras 24 and 25 of Annex A to Chapter 12 of PSPF (see [99] above).
Also of concern to the Tribunal is the submission made, albeit “on the run”, by Mr Strbac, that one possible mitigating factor in considering the Applicant’s breach of the undertaking, was his naivety and immaturity (see [142] above). In that regard we note that para 2 of Annex A to Chapter 12 of the PSPF identifies honesty (subpara (a)), trustworthiness (subpara (b)) and maturity (subpara (c)) as relevant character traits when considering suitability for a security clearance (see [99] above).
The classified evidence and materials
The truthfulness of the Applicant’s evidence must be assessed in light of all of the evidence before the Tribunal. That of course includes the closed evidence. While the Tribunal is limited in what can be disclosed as to its reasoning in respect of the closed material and evidence, the Tribunal is satisfied that, on the basis of what is disclosed in the closed material, in conjunction with the open material, critical elements of the Applicant’s evidence cannot be believed. The Tribunal is satisfied that the Applicant has materially downplayed, if not directly misrepresented, the depth and nature of his association with SWAN and Mr Donis. In the present case the Applicant must be taken to have appreciated the materiality of his various associations with SWAN and Mr Donis in assessing his suitability to continue to hold an NV1 security clearance. The Tribunal concludes that it was for that reason that the Applicant deliberately lied about the nature and extent of his relationship with SWAN and Mr Donis and lied about disclosing information to Mr Donis relating to the SAIs.
While not treating the PSPF or Determination No 3 as mandatory considerations, but rather as guides to matters that are relevant to determining whether a person should hold a security clearance, the Tribunal finds that:
(a)The Applicant has not demonstrated the character traits of honesty and frankness referred to in para 2 (a) and trustworthiness, responsibility and maturity referred to in para 2(b) of Annex A to Chapter 12 of the PSPF;
(b)The Applicant has demonstrated a pattern of questionable conduct (para 9(a)), dishonesty (para 9(b)), immaturity (para 9(d)) and vulnerability to influence (para 9(g)) of Annex A to Chapter 12 of the PSPF;
(c)The Applicant has failed to voluntarily report information (para 15 (a)), has not responded to questions truthfully and completely (para 15 (c) of Annex A to Chapter 12 of the PSPF);
(d)The Applicant has associated with individuals and an organisation that, as a minimum, sympathise with NRVE ideologies and support or sympathise with the use of PMV and PCV (para 8.4 of Determination No. 3 and para 22 of Annex A to Chapter 12 of the PSPF)
(e)There are reasonable grounds for concern as to the Applicant’s suitability to hold NV1 security clearance given:
(i)the Applicant’s questionable judgement and dishonesty which raise questions about his reliability and trustworthiness (para 24 of Annex A to Chapter 12 of the PSPF);
(ii)the Applicant’s failure to provide full, frank and truthful answers during a security clearance process (the security interviews) (para 25 of Annex A to Chapter 12 of the PSPF); and
(iii)the Applicant’s deliberate omission, concealment and falsification of relevant facts in the course of the security assessment interviews (para 27 of Annex part A to Chapter 12 of the PSPF)
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.
I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..............[Sgd].........................................................
Associate
Dated: 27 July 2023
Date of hearing: 7 - 9 February 2023 Solicitors for the Applicant: Mr M Strbac, Delta Legal Counsel for the Respondent: Mr T Glover
Solicitors for the Respondent: Mr T Giugni, Australian Government Solicitor
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