FLSZ and Director-General of Security
[2018] AATA 5900
•4 May 2018
FLSZ and Director-General of Security [2018] AATA 5900 (4 May 2018)
Division:Security Division
File Number: 2017/1386
Re:FLSZ
APPLICANT
AndDirector-General of Security
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Senior Member Egon Fice
Senior Member A Nikolic AM CSCDate:4 May 2018
Place:Melbourne
The Tribunal affirms the decision of the Director-General of Security dated 9 February 2017 to issue an adverse assessment against the applicant under s 37 of the Australian Security Intelligence Organisation Act 1979.
...........[sgd]............................................................
Deputy President S A Forgie
Catchwords
NATIONAL SECURITY – adverse security assessment – cancellation of visa – relevance of particular prescribed administrative action - decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25(1)(a), 33(1)(a), 33(1)(c), 35, 35(1AA), 35AA, 37, 37(2), 39A, 39A(2), 39A(3), 39A(5), 39A(6), 39A(7), 39A(8), 39A(12) to 39A(17), 39B, 39B(2), 39A, 43, 43(1), 43(1A), 43AAA, 43AAA(2), 43AAA(3), 43AAA(4), 43AAA(5) and 43AAA(6)
Australian Passports Act 2005 ss 14(1) and 22(2)(d)
Australian Security Intelligence Organisation Act 1979 ss 4, 17(1)(c), 35, 35(1), 35(1)(b), 37, 37(1), 37(2), 37(2)(a), 37(2)(b), 37(3), 37(4), 38(1), 38(1A), 38(2), 38A, 39A(11), 39B(11), 54, 54(1), 61, 64 and 65(3)
Crimes Act 1914 Part 1AC
Criminal Code Act 1995 ss 3, 4, 15.4, 100.1, 100.1(1), 100.1(2), 100.1(3), 102.1, 102.1(2), 102.1(3), 102.1(4), 102.3, 102.4, 102.5, 102.6, 102.7, 102.8, 102.9, 103.1 and 103.2
Foreign Passports (Law Enforcement and Security) Act 2005
Immigration Act R.S.C. 1985 s 53(1)(b)
Migration Act 1958 ss 36(2)(aa), 36(2C), 36(2C)(a), 36(2C)(b), 36(2C)(b)(i), 116, 116(g), 116(1), 116(1)(g), 116(2) and 116(3)
Telecommunications Act 1997
United Nations Act 1945 s 5
Criminal Code (Terrorist Organisation—Islamic State) Regulation 2017 regs 5(1) and 5(1)(x)
Migration Regulations 1994 regs 2.43(1)(b), 2.43(2), 2.43(2)(a), 2.43(2)(a)(iii) and 2.43(3); Schedule 2 cl 866.225(a)
Security Assessment Determination No. 2 cl 6.2.1, 6.2.2, 6.3, 7, 7.1, and 7.2
Cases
George v Rockett [1990] HCA 26, (1990) 170 CLR 104; 93 ALR 483
Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315; 322 ALR 254; 66 AAR 403; 147 ALD 265; 99 ATR 588 at [62(8)]; 342; 275; 432; 286; 617
Hussain and Minister for Foreign Affairs and Anor [2008] FCAFC 128; (2008) 169 FCR 241; 248 ALR 456; 48 AAR 304; 103 ALD 66
Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505; 313 ALR 593; 143 ALD 596;
MYVC v Director-General of Security [2014] FCA 1447; (2014) 234 FCR 134; 323 ALR 400; 65 AAR 369; 148 ALD 489
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 245;
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
RJCG v Director-General of Security [2013] FCA 269
Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3
Secondary Materials
1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees Article 33(2)
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Deputy President S A Forgie
Senior Member Egon Fice
Senior Member A Nikolic AM CSC
FLSZ was born overseas and has lived in and is a citizen of a country, or countries, other than Australia. Since 25 November 2009, FLSZ has held an Australian visa. That visa enabled FLSZ to remain and work in Australia indefinitely and to come and go at will. On 9 February 2017, the Director-General of Security (Director‑General) of the Australian Security Intelligence Organisation (ASIO), approved an adverse security assessment (ASA) under the Australian Security Intelligence Organisation Act 1979 (ASIO Act). The Director‑General issued the ASA on the basis that FLSZ was directly or indirectly a risk to security and the requirements of security made it necessary or desirable for the cancellation of FLSZ’s visa. On 16 February 2017, the Director-General gave the ASA to the Department of Immigration and Border Protection (DIBP), which is now part of the Department of Home Affairs, together with a recommendation that FLSZ’s visa be cancelled.
On 17 February 2017, the relevant Minister of a country of which FLSZ is a citizen cancelled that citizenship and gave written notice of the cancellation to FLSZ. A delegate of the Minister for Immigration and Border Protection’s (Minister) then gave FLSZ a Notice of Intention to Consider Cancellation of the Australian visa under s 116 of the Migration Act 1958 (Migration Act). The delegate gave that notice on 22 February 2017. After interviewing FLSZ, the delegate decided to cancel the visa on the same day that the notice had been given and the interview conducted: 22 February 2017. He did so under s 116(g) of the Migration Act relying on r 2.43(1)(b) of the Migration Regulations 1994 (Migration Regulations). FLSZ confirmed receipt and applied for review of the ASA and of the Minister’s decision.
THE DECISIONS
Under s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers under that enactment. The ASIO Act and the Migration Act both provide for applications to be made to the Tribunal for review of certain decisions. In this case, two decisions have been made. One has been made by ASIO and is reviewable. That is the decision that we are reviewing in this proceeding. At [59] below, we set out the precise decision that we are reviewing and that we have decided to affirm. Our reasons are given in two documents. This is one of those documents. It is available to FLSZ and to the public generally. Access to the other document is restricted so that neither FLSZ nor the public has access. We have taken this path in order to comply with our obligations under ss 39A and 39B of the AAT Act.
We are not reviewing the decision made by the Minister to cancel the visa. It was a decision that the Minister was required to make under s 116(1) of the Migration Act if FLSZ was assessed by ASIO to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act. It is a Part 5 reviewable decision because it is a decision to cancel a visa held by a non-citizen. As such, it must be reviewed by the Migration and Refugee Division of the Tribunal.[1]
[1] Migration Act; s 336N(2)
Adverse security assessment
ASIO’s functions include its advising Ministers and agencies of the Commonwealth in respect of matters relating to security in so far as those matters are relevant to their functions and responsibilities.[2] Its obligations in preparing an ASA are set out in s 37 of the ASIO Act. Section 54(1) of the ASIO Act provides that an application may be made to the Tribunal for a review of an ASA.
[2] ASIO Act; s 17(1)(c) and see also s 37(1)
Cancellation of FLSZ’s visa
In the national interest, the Migration Act regulates the entry into, and presence in, Australia of those who are not Australian citizens. It does this by providing for visas permitting non‑citizens to enter or remain in Australia and by providing for the criteria that a person must meet in order to be granted a visa and the circumstances in which a visa may be cancelled. Visas are the source of a non-citizen’s rights to enter or remain in Australia.[3]
[3] Migration Act; ss 4(1) and (2) and see also ss 13-15
The decision to cancel FLSZ’s visa made on 22 February 2017 by a delegate of the Minister under s 116(1)(g) of the Migration Act. That section provides that, subject to ss 116(2) and (3), the Minister may cancel a visa if satisfied that a prescribed ground applies to the holder of that visa. “Prescribed” means prescribed by the Migration Regulations.[4] Regulation 2.43(1)(b) provides that the following is a prescribed ground for the purposes of s 116(1)(g):
“that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.”
[4] Migration Act; s 5(1)
The power is qualified by ss 116(2) and (3). Section 116(2) provides that the Minister is not to cancel a visa under, among others, s 116(1) if there exist prescribed circumstances in which a visa is not to be cancelled. No such circumstances have been prescribed. Section 116(3) provides that, if the Minister may cancel a visa under, among others, s 116(1), the Minister must do so if there exist prescribed circumstances in which that visa must be cancelled. Prescribed circumstances are set out in r 2.43(2) of the Migration Regulations:
“For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)in the case of a visa other than a relevant visa – each of the circumstances comprising the grounds set out in:
(i)sub-paragraphs (1)(a)(i)(A) and (B); and
(ii)paragraph (1)(aa); and
(iii)paragraph (1)(b); and
(aa)in the case of a relevant visa – the circumstance comprising the grounds set out in subparagraph (1)(a)(ii).”
The term “relevant visa” is defined in r 2.43(3) to mean a visa of any of the subclasses it lists. A visa of the sort held by FLSZ is not among them. Therefore, only r 2.43(2)(a) applied and, of the three scenarios, only that in r 2.43(2)(a)(iii) applied once ASIO had made an ASA that assessed FLSZ to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act.
BACKGROUND
FLSZ gave both written and oral evidence. The findings we have made in this section of our reasons are based on that evidence. FLSZ was born overseas and was a child in 2002. That was the year in which FLSZ’s mother, FLSZ and FLSZ’s sibling moved to a second country where they were permitted to live as a family. In the early days after their arrival, the family rented a bedroom from another family and later moved with that family to another house where they rented a bedroom as before. That arrangement continued for a year or so before the family rented a house of their own. The children attended school in the second country - first one and then another – as well as attending the mosque each day to memorise the Quran and to develop their knowledge of the Arabic language.
FLSZ’s mother met an Egyptian woman who became very close to her and a great supporter of the family. She was a Quran Teacher at a local mosque and enrolled the children at that mosque in order to develop their knowledge of the Arabic language and to memorise the Koran.
FLSZ’s grandmother was granted a visa so that she could join the family. FLSZ’s mother was particularly pleased to see her mother as she had felt lonely and very much in need of her mother to assist her in caring for the children. By this time, the family had moved to an area where a greater number of Muslim families lived. FLSZ’s mother then began to meet other Muslim women, who helped her and her family and, as a consequence, she began to feel happier and less isolated in the community. She regarded education as paramount for her children and she ensured that they attended school as well as, until they were in the later years of their secondary education, remaining connected with their Arabic heritage through language and religious education. She arranged for them to have additional tutorials to assist them with their schoolwork. At the same time, the female members of the family attended Islamic Studies classes each Saturday evening.
In November 2006, the family visited FLSZ’s uncle and cousins in Melbourne for the first time. In the following year, FLSZ’s aunt and her three children travelled from overseas to visit the family for a month and then returned home. Despite their contact with family, FLSZ’s mother and grandmother were again feeling increasingly isolated as the family had, by this time, moved to an area where fewer Muslim families lived. They missed their family overseas. In June 2009, the family travelled overseas for a holiday and remained there for six weeks.
On their return, the family again travelled to Melbourne to visit family and FLSZ’s mother and grandmother found comfort in reuniting with their family. The decision was made to move the family to Melbourne but the family faced difficulties. Outside the family, they had no connections with Muslim communities in Melbourne and no entitlement to social security benefits at the time. The educational system was different and the children had to repeat a year of their schooling. FLSZ worked part time after school in order to bolster the family’s income. This meant that, initially at least, FLSZ did not achieve the same level of academic excellence as had been the case before the family’s move to Melbourne. A change in schools and assistance given to the family by a woman the family met greatly improved the family’s circumstances. That woman had first approached FLSZ’s mother and grandmother at the mosque when she had seen them crying.
Ultimately, FLSZ achieved ATAR results that were described as “excellent” and began tertiary studies in 2012. University life brought with it an expanded social network which included some old school friends and new people FLSZ met on campus. Those new friends included many Muslim friends whom FLSZ met through the University’s Islamic Society. Meeting those Muslim friends allowed FLSZ “… to finally feel as though I fit in somewhere.”[5] FLSZ left one part time employment for another. Although it was hard to balance both study and part-time work and the burden of paying tertiary fees imposed a great deal of stress on the family, FLSZ saw that burden as a personal responsibility to carry.
[5] Exhibit C at [57]
In 2013, FLSZ was promoted at work and that led to a small improvement in the family’s finances. In 2013, FLSZ’s mother underwent treatment for depression and was later diagnosed as suffering from breast cancer. The burden of caring for her fell on FLSZ who also continued to work and study. FLSZ found that faith was an aid during these times. During this period, FLSZ also joined the Red Flag team. The Red Flag team was present whenever FLSZ came across protests taking place in Melbourne for refugees, displaced Palestinians and Syrians as well as other human rights causes. Red Flag is a socialist activist group, which FLSZ described as unrelated to Muslims. FLSZ participated as a volunteer with Red Flag during 2013 to 2014 and attended their meetings, assisted in organising running sheets for the protests, looked for speakers to assist in the protest efforts and generally adding a voice to the group’s causes.
FLSZ completed two years of a degree course and then, in 2014, enrolled in another after struggling to maintain interest in the first. Both FLSZ’s mother and grandmother required care. FLSZ’s mother was undergoing chemotherapy treatment and had to be taken to and from various appointments. FLSZ’s grandmother was chronically ill. Another family member assisted financially as FLSZ left part-time employment to undertake duties as a carer.
In 2015, FLSZ transferred from the second to a third tertiary course and also worked as a receptionist and administrative assistant. Study and work continued until FLSZ was detained on 22 February 2017. We return to FLSZ’s other interests below.
THE LEGISLATIVE BACKGROUND
In the reasons for decision we gave in Re CMHV and Director-General of Security and Minister for Foreign Affairs[6] (CMHV), we set out our understanding of the relevant provisions of the AAT Act, the ASIO Act and of the Australian Passports Act 2005 (Passports Act) and the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act). The latter enactment is not relevant in this case but our understanding of the ASIO Act and its interaction with the AAT Act remains the same and the parties did not make any submissions to the contrary. Therefore, we adopt [45] to [84] of our reasons in CMHV as part of our reasons in this case but, omitting the passages in which we distinguish other cases and mindful of the particular requirements of this case,[7] will set out the essence of them in the following paragraphs to provide the legislative context in which we have reviewed the decision.
[6] [2017] AATA 1547
[7] We do not, for example, adopt paragraphs [85] to [124] of CMHV because they relate to the particular requirements of the Passports Act and of the Foreign Passports Act.
ASIO’s function to furnish security assessments to Commonwealth agencies
Among the functions assigned to ASIO is that of advising Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities. That function is specified in s 17(1)(c) of the ASIO Act and security assessments are made by ASIO in carrying it out.[8] Regulations made under the ASIO Act may prescribe matters to be taken into account and matters that are not taken into account in the making of assessments, or of assessments of a particular class. If made, they are binding on ASIO and on the Tribunal.[9]
[8] ASIO Act; s 37(1)
[9] ASIO Act; s 37(3)
In the context of a Commonwealth agency, the expressions “security assessment” or “assessment” are defined to mean:
“… a statement in writing furnished by the Organisation to a Commonwealth agency … expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.”[10]
[10] ASIO Act; s 35(1)
The expression “prescribed administrative action”, to which reference is made in this definition is itself defined in s 35(1). In so far as it is relevant in this case, it provides:
“prescribed administrative action means:
(a)…
(b)the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act; or
(c)…
(d)…”
The Minister may cancel a visa under s 116(1)(g) if satisfied that a prescribed ground for cancelling a visa applies to its holder. That is the exercise of a power of the sort falling within s 35(1)(b) of the ASIO Act. Therefore, the decision is a prescribed administrative action as defined in s 35(1).
Making a security assessment
A.Legislative power
In this context, the word “security” is defined in s 4 of the ASIO Act to mean:
“(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i)espionage;
(ii)sabotage;
(iii)politically motivated violence;
(iv)politically motivated violence;
(v)attacks on Australia’s defence system; or
(vi)acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa)the protection of Australia’s territorial and border integrity from serious threats; and
(a)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).”
Words such as “espionage” and “sabotage” are not further defined in the ASIO Act but some are. We will set out those definitions.
A.1 “politically motivated violence”
Beginning with the expression “politically motivated violence” (PMV), s 4 of the ASIO Act defines it to mean:
“(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or
(b)acts that:
(i)involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and
(ii)are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or constitutional system of government of the Commonwealth or of a State or Territory; or
(ba)acts that are terrorism offences; or
(b)acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(c)acts that:
(i)are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or
(ii)threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General.”
A “terrorism offence”, to which paragraph (ba) of the definition of “politically motivated violence” refers is defined in s 4 to mean:
“(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(b)an offence against Part 5.3 of the Criminal Code.
Note:A person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorism act (as defined in that Part) occurs.”
The Criminal Code is the Schedule to the Criminal Code Act 1995.[11] Division 72 is concerned with explosives and lethal devices and is not relevant in this case. Part 5.3 of the Criminal Code is concerned with terrorism. Subdivision B of Division 102 makes provision for a number of offences in relation to, in general terms, terrorist organisations. Each of the offences applies whether or not the conduct constituting an alleged offence occurs in Australia and whether or not a result of the constituting an alleged offence occurs in Australia.[12] By including acts that are terrorism offences in the definition of PMV, Parliament is determining that “security” includes protection from such acts and does not require an assessment of the gravity of the offences. When regard is had to the range of terrorism offences, it becomes apparent that a person may commit such an offence merely by taking action that facilitates or enables others to commit acts of PMV. In that regard, we note the following offences:
[11] Criminal Code Act 1995; s 3
[12] Criminal Code; ss 102.9 and 15.4
(1)Section 102.3: Membership of a terrorist organisation
“(1) A person commits an offence if:
(a)the person intentionally is a member of an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 10 years.
(2)Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.
Note:A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).”
(2)Section 102.4: Recruiting for a terrorist organisation
“(1) A person commits an offence if:
(a)the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the first-mentioned person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2)A person commits an offence if:
(a)the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.”
(3)Section 102.5: Training involving a terrorist organisation
“(1) A person commits an offence if:
(a)the person does any of the following:
(i)intentionally provides training to an organisation;
(ii)intentionally receives training from an organisation;
(iii)intentionally participates in training with an organisation; and
(b) the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty:Imprisonment for 25 years.”
(4)Section 102.6: Getting funds to, from or for a terrorist organisation
“(1) A person commits an offence if:
(a)the person intentionally:
(i)receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or
(ii)collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2)A person commits an offence if:
(a)the person intentionally:
(i)receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or
(ii)collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b)the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
(3)Subsection (1) and (2) do not apply to a person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:
(a)legal representation for a person in proceedings relating to this Division; or
(b)assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.
Note:A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).”
(5)Section 102.7: Providing support to a terrorist organisation
“(1) A person commits an offence if:
(a)the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a)the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b)the organisation is a terrorist organisation; and
(c)the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
(6)Section 102.8: Associating with terrorist organisations
“(1) A person commits an offence if:
(a)on 2 or more occasions:
(i)the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and
(ii)the person knows that the organisation is a terrorist organisation; and
(iii)the association provides support to the organisation; and
(iv)the person intends that the support assist the organisation to expand or to continue to exist; and
(v)the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
(b)the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(2)A person commits an offence if:
(a)the person has previously been convicted of an offence against subsection (1); and
(b)the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and
(c)the person knows that the organisation is a terrorist organisation; and
(d)the association provides support to the organisation; and
(e)the person intends that the support assist the organisation expand or continued to exist; and
(f)the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
(g)the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(3)Strict liability applies to paragraphs (1)(b) and (2)(g).
(4)This section does not apply if:
(a)the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or
(b)the association is in a place being used for public religious worship and takes place in the course of practising a religion; or
(c)the association is only for the purpose of providing aid of a humanitarian nature; or
(d)the association is only for the purpose of providing legal advice or legal representation in connection with:
(i)criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future); or
(ii)proceedings relating to whether the organisation is a terrorist organisation; or
(iii)a decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, or proceedings relating to such a decision or proposed decision; or
(iv)a listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoked such a listing, or proceedings relating to such a listing or application or proposed application or listing; or
(v)proceedings conducted by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’; or
(vi)proceedings for a review of a decision relating to a passport or other travel document or a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).
Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).
(5)This section does not apply unless the person is reckless as to the circumstances mentioned in paragraph (1)(b) and (2)(g) (as the case requires).
Note:A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).
(6)This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).
(7)A person who is convicted of an offence under subsection (1) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place:
(a)at the same time as that conduct; or
(b)within 7 days before or after any of those occasions.”
(7)Section 103.1: Financing terrorism
“(1) A person commits an offence if:
(a)the person provides or collects funds; and
(b)the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
Note:Intention is the fault element for the conduct described in paragraph (1)(a). See subsection 5.6(1).
(2)A person commits an offence under subsection (1) even if:
(a)a terrorist act does not occur; or
(b)the funds will not be used to facilitate or engage in a specific terrorist act; or
(c)the funds will be used to facilitate or engage in more than one terrorist act.”
(8) Section 103:2 Financing a terrorist
“(1) A person commits an offence if:
(a)the person intentionally:
(i)makes funds available to another person (whether directly or indirectly); or
(ii)collects funds for, or on behalf of another person (whether directly or indirectly); and
(b)the first-mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
(2)A person commits an offence under subsection (1) even if:
(a)a terrorist act does not occur; or
(b)the funds will not be used to facilitate or engage in a specific terrorist act; or
(c)the funds will be used to facilitate or engage in more than one terrorist act.”
The word “organisation” is defined in s 100.1(1) at the beginning of Part 5.3 of the Criminal Code to mean:
“… a body corporate or an unincorporated body, whether or not the body:
(a)is based outside Australia; or
(b)consists of persons who are not Australian citizens; or
(c)is part of a larger organisation.”
The term “terrorist organisation” is defined in s 102.1. Its meanings include an organisation[13] that is specified by the regulations for the purposes of (b) of its definition. Those regulations are made bearing in mind and following the procedures set out in ss 102.1(2), (3) and (4). Before they may be made, the Minister must be satisfied, on reasonable grounds, that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or that the organisation advocates the doing of a terrorist act.[14] Regulations have been made for the purpose of the definition specifying various terrorist organisations. For the purposes of this case, we note that the organisation known as Islamic State and also known by a number of other names including Islamic State of Iraq and Levant (ISIL) is a terrorist organisation for the purposes of the definition of that expression in s 102.1 of the Criminal Code.[15] As it is a specified organisation, it is among those described as “listed organisations”.[16]
[13] An “organisation” is defined very broadly in s 100.1 to mean “… a body corporate or an unincorporated body, whether or not the body: (a) is based outside Australia; or (b) consists of persons who are not Australian citizens; or (c) is part of a larger organisation.”
[14] Criminal Code; s 102.1(2). A “terrorist act” is defined in s 100.1(1). In broad terms, it is not intended to apply to action that is advocacy, protest, dissent or industrial action that is not intended to cause serious physical harm, death or create a serious risk to public health or safety: s 100.1(3). Action that, again in very general terms causes serious physical harm or death or serious damage to property, that endangers life or is a serious risk to public health or safety or seriously to interfere with or disrupt or destroy an electronic system including an information or financial system or a system used to deliver an essential public utility or transport or an essential government action is action that may come within the definition of a “terrorist act”: Criminal Code: s 100.1(2). If it does so, the action is a “terrorist act” if “(a) …; and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public.”
[15] Criminal Code (Terrorist Organisation—Islamic State) Regulation 2017; r 5(1) and see particularly 5(1)(x).
[16] Criminal Code; s 100.1(1)
A.2“promotion of communal violence”
The expression “promotion of communal violence” is defined to mean:
“… 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.”
A.3“attacks on Australia’s defence systems”
Section 4 of the ASIO Act provides that:
“attacks on Australia’s defence systems means activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.”
A.4 “acts of foreign interference”
The expression “acts of foreign interference” means:
“… activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:
(a)are clandestine or deceptive and:
(i) are carried out for intelligence purposes;
(ii)are carried out for the purpose of affecting political or governmental processes; or
(iii)are otherwise detrimental to the interests of Australia; or
(b)involve a threat to any person.”
A “foreign power” is defined in s 4(1) to mean:
“(a) a foreign government;
(b)an entity that is directed or controlled by a foreign government or governments; or
(c)a foreign political organisation.”
B. Security Assessment Determination No. 2
B.1 The Determination
As required by s 37(4) of the ASIO Act, the Director-General issued Security Assessment Determination No. 2 (Determination No. 2) on 28 July 2010. Section 37(4) provides:
“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.”
No regulations have been made under s 37(3).[17]
[17] Section 37(3) provides: “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.”
Determination No. 2 applies to security assessments made under Part IV of the ASIO Act from that date. In particular, it is to be applied when the decision-maker considers that the assessment process is likely to result in an adverse or a qualified security assessment under that legislation.[18] Where a decision-maker believes that the assessment process is likely to result in a non-adverse security assessment, he or she is not obliged to apply Determination No. 2.[19] Nothing that is stated in Determination No. 2 affects the Tribunal’s powers.[20]
[18] Determination No. 2 at [9]
[19] Determination No. 2 at [3]
[20] ASIO Act; s 37(4)
Clause 7 of the Operative Part of Determination No. 2 observes that, during the process of making a security assessment, there are at least five clear stages at which the assessor must make a decision. It identifies them:
“7.2.1 Referring to any relevant legislative test
a.In deciding the threshold for an adverse assessment, the decision maker should take into account any relevant legislative test which will be used by the agency receiving the security assessment.
7.2.2 Whether to take information into account
a.In deciding what information should be taken into account in the security assessment, the decision maker should consider the credibility, nature and authenticity of the relevant facts, information and sources.
b.The decision maker should consider what weight should be accorded to the available information, including whether the information can be corroborated.
7.2.3 Currency of information
a.The weight to be given to information may be affected by its currency.
b.The decision maker should consider whether the age of the information means it should be given less weight. Where it is considered that the information should still carry weight, the decision maker should explain why.
7.2.4 Torture
a.The weight to be given to information may be affected by the risk that it has been obtained using means which may amount to duress, torture or other cruel, inhuman or degrading treatment or punishment.
b.In deciding what weight should be given to such information, the decision maker should apply the policy ASIO Prohibition on the Use or Involvement with Torture or other cruel, inhuman or degrading treatment or punishment.
7.2.5 Making a finding or conclusion
a.A decision maker should consider whether there is enough information to justify a finding or conclusion being drawn.
b.Any finding or conclusion in an assessment (whether immediate or final) which is adverse to the assessment subject should be judged to be at least likely.”
The opening paragraph of cl 7.2 recognises the need to link the assessment process back to the prescribed administrative action. That prescribed administrative action will be the subject of its own legislative regime. It is the consequences of taking, or not taking that action or, if permitted, of partially or conditionally taking that action to which the assessment is addressed and the consequences to security addressed. In the context of this case, it is the consequences of cancelling, or not cancelling the visa held by FLSZ. This is inherent in cl 6.3 of Determination No. 2:
“6.3.1 Account is to be taken of the potential consequences to security of the relevant Commonwealth agency taking, or not taking, prescribed administrative action in relation to the assessment subject.
6.3.2 Factors relevant to the consequences to security include:
(ii)the nature and type of the prescribed administrative action; and
(iii)how taking (or not taking) the prescribed administrative action will impact on the assessment subject as relevant to security.”
Clause 7.1 emphasises the need to make security assessments in good faith and without bias using a process that is as fair as possible while taking into account the requirements of security. Clause 6.2.1 draws attention to the fact that each security assessment must relate specifically to the security subject. Determination No. 2 then draws attention to a number of matters that may be relevant in preparing a security assessment on a security subject in relation to prescribed administrative action. The list does not purport to be exhaustive, and nor can it be, for the range of relevant matters may vary as they will be shaped by the particular administrative action in relation to which the security assessment is being undertaken and in the circumstances in which it is being undertaken. Clause 6.2.2 is helpful, though, and we will set it out:
“In preparing a security assessment on the assessment subject in relation to the prescribed administrative action, matters that may be taken into account (if relevant) include:
(i)Activities:
(a)physical activities of the assessment subject (including conspiring, scheming, planning, organising, counselling, abetting and advising or otherwise advocating or encouraging any act or activities) which:
1.relate to or have a connection with, one or more of the activities listed in the definition of ‘security’ in the Act; or
2.are likely to be conducted in a manner not consistent with the requirements of security.
(ii)Associations:
(a)an active association of the assessment subject (such as an alliance, link, connection, support for and/or membership) with any person (any individual, group, association, society, organisation, organised body and/or government) who is involved in, or is reasonably suspected of being involved in, activities prejudicial to security; and
(b)that association reflects adversely on the assessment subject.
Note: A passive association which is limited to family ties, a professional affiliation or by mere casual acquaintance is not sufficient to warrant treating the ‘association’ as adverse.]
(iii)Attitudes relevant to ‘security’, including:
(a)the assessment subject’s acceptance of, support for and/or sympathy with an act or activities which relate to or are reasonably suspected of having a connection with, one or more of the activities listed in the definition of ‘security’ in the Act; and/or
(b)the assessment subject’s acceptance of and/or support for, maintaining protective security.
(iv)Background relevant to ‘security’ including:
(a)the assessment subject’s personal history (circumstances, upbringing, residence, travel in foreign countries) and/or continuing emotional, personal, financial, political and/or legal ties with a person or entity whose activities are reasonably suspected of being prejudicial to security; and
1.collectively, the findings give rise to, or potentially gives rise to, an assessment that the assessment subject is engaging in, or is likely to engage in, activities prejudicial to security; and/or
2.collectively, the findings give rise to, or potentially give rise to, an assessment that the assessment subject is, or is likely to be, vulnerable to exploitation in a manner not consistent with the requirements of security.
(v)Character relevant to ‘security’ including:
(a)aspects of past and/or present personal behaviour [sic], including criminal conduct, which:
1.is inconsistent with the requirements of security; or
2.gives rise to a reasonable suspicion that the assessment subject is vulnerable to exploitation relevant to security; or
3.raises doubts about credibility of the assessment subject and which reduces the weight to be given to any information given by the assessment subject.
[Note: Evidence of any rehabilitation and recent good conduct may be relevant to the assessment.]”
Clause 8 emphasises the approach that must be followed in making an assessment when it sets out the factors that may not be considered:
“NO information concerning an assessment subject shall be taken into account in the formulation of a qualified or adverse security assessment, unless that information:
(a)is capable of satisfying the tests referred to in clauses 6 and 7;
(b)is relevant to the requirements of security; and
(c)has a reasonable nexus with, and is relevant to, the assessment subject.”
B.2 The role of Determination No. 2
At [60] to [71] of our reasons in CMHV, we expressed our concerns about the way in which an earlier Tribunal had characterised the role of Determination No. 2. We continue to hold those concerns but, for the sake of brevity, we will simply state our understanding of the role of policy in the context of making an assessment under the ASIO Act.
Policy has an important role to play in the making of discretionary decisions. As the Tribunal’s first President, Brennan J, said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[21] (Drake (No 2)). In that case, Brennan J said that the decision-maker:
“… is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute.”[22]
[21] (1979) 2 ALD 634
[22] (1979) 2 ALD 634 at 640
His Honour explained in Drake (No 2) that the reason for adopting a policy in relation to decision-making:
“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”[23]
[23] (1979) 2 ALD 634 at 640
An assessment is not a discretionary decision of the sort considered in Drake No 2. It is instead a statement containing opinion, recommendation or advice addressed to the question whether it would be consistent with the requirements of security, or necessary or desirable, for prescribed administrative action to be taken under a specified enactment in respect of a person. Characterisation of the expression of an opinion, making a recommendation or giving advice directed to whether certain action would be consistent or desirable with the needs of security does not sit comfortably with the notion that there may be a range of correct opinions, recommendations or advice on the subject and, from that range, one is to be preferred to the others. Options may be weighed in reaching the final assessment but that is different from a decision that more than one option is the correct decision.
Determination No. 2 does not present itself as a policy document directed to guiding the assessment that is made but as a document directed to guiding the process to be followed in making an assessment. That process is necessarily a process involving analysis of material and information, whether it is called evidence, evidentiary material or the like, for relevance to the issue or issues that must be decided in making the decision and for the probity of that material or information. Its capacity to prove or disprove or support or not support a particular fact, and so its probity, will depend on factors such as its source, whether the source is a primary or secondary source, the interests of those sources and the passage of time since the events to which it related. It will also depend on other evidentiary material that is available and whose relevance and probity has also been assessed in this way. How do those separate pieces of evidentiary material sit together? Do they sit together to form a pattern? The pattern may be neatly ordered but it may not. What is relevant is not so much the nature of the pattern as ordered or chaotic or somewhere in between but that the evidentiary material has a place in it. If it has a place in it so that it is either supported by, or makes sense when compared with or corroborates, other relevant evidentiary material or known events, that will be a factor in assessing the weight to be accorded to that evidence.
Determination No. 2 is written with this process and the need to act with procedural fairness in mind. It is consistent with terms of the ASIO Act and with those enactments under which prescribed administrative action is taken. Our review of the assessment will follow a process consistent with the procedures set out in Determination No. 2 for both ASIO and the Tribunal must follow the requirements of the law.
C. Adverse or qualified security assessment
The expressions “adverse security assessment” and “qualified security assessment” are both defined in s 35(1) of the ASIO Act:
“In this part, unless the contrary intention appears:
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.
…
Qualified security assessment means a security assessment in respect of a person that:
(a)contains 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)does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;
whether or not matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person.”
Section 37(2) provides for a situation in which ASIO makes an adverse or qualified security assessment. It provides that it:
“… 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.”
Unless the Attorney-General has certified that he is satisfied of certain matters under s 38(2)[24] or unless s 38A applies,[25] s 38(1) requires the, in this case, Commonwealth agency to whom ASIO has furnished an adverse or qualified security assessment in respect of a person to give that person written notice of it and attach a copy of the assessment. The notice must inform the person of his or her right to apply to the Tribunal under Part IV of the ASIO Act. The Commonwealth agency must do so within 14 days after the day on which the assessment is furnished to it. The Minister has given FLSZ the notice of the adverse security assessment as required by s 38(1).
[24] The Attorney-General may give the Director-General a written certification that he is satisfied that withholding of a 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 that disclosure of the statement of grounds, or a particular part of the statement, contained in the security assessment in respect of the person would be prejudicial to the interests of security. The Attorney-General has not made a certification under s 38(2).
[25] ASIO Act; s 38(1A). Section 38A applies to assessments given to the Attorney-General in connection with certain provisions of the Telecommunications Act 1997.
Reviewing an adverse security assessment
We have already referred to the Tribunal’s power under s 54(1) of the ASIO Act to review an adverse or qualified security assessment in the circumstances of this case. Once the Tribunal has reviewed a security assessment, s 61 provides that every Commonwealth agency concerned with prescribed administrative action to which that assessment is relevant is required, to the extent that the Tribunal’s findings do not confirm the assessment, to treat those findings as superseding the assessment. Any person or authority having power to hear appeals from, or to review, a decision with respect to any administrative action, to which the assessment is relevant, is required to treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.
Once the Tribunal has made findings upon a review of a security assessment, ASIO is not permitted to make a further assessment in respect of the person concerned that is not in accordance with those findings except on the basis of matters occurring after the review or if the evidence was not available at the time of the review.[26]
[26] ASIO Act; s 64
A. Procedures in the Tribunal
The AAT Act makes particular provision for review of a security assessment. In general terms, the Tribunal’s procedure is within its own discretion.[27] It is not bound by the rules of evidence but may inform itself on any matter as it thinks fit.[28] Review of a security assessment is conducted in the Tribunal’s Security Division in a proceeding to which the Director‑General and the applicant are the parties. Although not a party, the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions.[29]
[27] AAT Act; s 33(1)(a)
[28] AAT Act; s 33(1)(c)
[29] AAT Act; s 39A(2) The Tribunal cannot exercise its power under s 30(1A) to make a Commonwealth agency a party because that section does not apply to a proceeding in the Security Division: AAT Act; s 30(1AA).
The Director-General is not obliged to comply with s 37 of the AAT Act but is obliged to present all relevant information to the Tribunal is set out in s 39A(3). The proceeding is to be in private and, subject to there being a certificate issued under s 39A(8) in relation to submissions or evidence, the Tribunal is required to determine those people who may be present at any time.[30] The applicant and the Director-General and their representatives and a person representing the Commonwealth agency to whom the assessment was given, may be present when each is making submissions to the Tribunal or adducing evidence.[31] If a certificate has been issued, the applicant must not be present when the evidence is adduced or submissions made and, unless the Minister consents, nor may a person representing the applicant.[32] That representative must not disclose the submissions or evidence to the applicant or to any other person.[33] Sections 39A(12) to (17) are concerned with the order in which submissions are made and evidence adduced in a hearing.
[30] AAT Act; s 39A(5)
[31] AAT Act; ss 39A(6) and (7)
[32] AAT Act; s 39A(9)
[33] AAT Act; s 39A(10)
Section 35AA, rather than s 35,[34] permits the Tribunal to make an order prohibiting or restricting the publication of evidence given in proceedings in the Security Division. Section 39B also makes particular provision for the protection of information and documents from disclosure if they are the subject of a public interest certificate issued by the Attorney‑General. Quite apart from more specific provisions found in the AAT Act and the ASIO Act, s 39B(11) provides that:
“It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.”
Section 39A(11) also obliges the Tribunal to do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.
[34] AAT Act; s 35(1AA)
Once the Attorney-General has issued a certificate, the Tribunal has no power to vary the consequences that flow from s 39B. This point was made by the Full Court of the Federal Court in Hussain and Minister for Foreign Affairs and Anor[35] when it said:
“ Neither s 39A, nor s 39B of the AAT Act, indicates a legislative intent to give the Tribunal any discretion in relation to whether to accept the Minister’s certificate. Once such a certificate has issued, the provisions state in clear terms that the Tribunal is not to disclose any of the material that is the subject of the certificate.
…
… [Section] 39A(8) states that the Minister ‘may, by signed writing, certify … 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’. The issue of such a certificate is clearly a matter for the Minister, and for him alone. Once the Minister has issued a certificate, s 39A(9) states in mandatory terms that the applicant must not be present in the relevant part of the hearing and that the applicant’s representative may only be present with the Minister’s consent. It would be difficult to find implicit in these words any discretion to be exercised by the Tribunal. Instead, it is clear that the applicant’s presence, and that of his representative, in the relevant part of the hearing is entirely dependent on the Minister’s determination.
Similarly, the wording of s 39B does not lend itself to a construction that gives the Tribunal any discretion in relation to the material that is the subject of the Minister’s certificate. The only exception is a certificate issued pursuant to s 39B(2)(c), which is not relevant to this proceeding.”[36]
B. Tribunal’s review of adverse or qualified assessment
[35] [2008] FCAFC 128; (2008) 169 FCR 241; 248 ALR 456; 48 AAR 304; 103 ALD 66; Weinberg, Bennett and Edmonds JJ
[36] [2008] FCAFC 128; (2008) 169 FCR 241; 248 ALR 456; 48 AAR 304; 103 ALD 66 at [127]-[130]; 273; 484; 335; 94. Hussain and Minister for Foreign Affairs and Anor was one of the cases overruled by a Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315; 322 ALR 254; 66 AAR 403; 147 ALD 265; 99 ATR 588 at [62(8)]; 342; 275; 432; 286; 617; Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ
B.1 Requirements of the AAT Act
Section 43(1) of the AAT Act provides that, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions conferred on the relevant enactment on the person who made the decision and shall make a written decision in the terms it then specifies. It must give reasons for its decision and s 43 provides for certain consequential issues. In matters heard in the Security Division, the provisions of s 43 are subject to those of s 43AAA and, in matters that are not relevant in this case, to s 65(3) of the ASIO Act.[37]
[37] AAT Act; s 43(1A)
Section 43AAA applies to a review conducted by the Security Division. Section 43AAA(2) provides that:
“Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.”[38]
[38] Section 43AAA(3) links back to s 61 of the ASIO Act and its requirement that the Tribunal’s findings must, to the extent they do not confirm ASIO’s findings, be treated as superseding ASIO’s findings. It provides that:
“The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.”
Among the “information that is, under subsection 37(2) of that Act, taken to be part of the assessment” is the statement of grounds for the assessment, which is deemed to be part of the assessment by virtue of s 37(2)(b) of the ASIO Act. That statement:
“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”: ASIO Act; s 37(2)(a).
Subject to the qualification found in s 43AAA(5), s 43AAA(4) requires the Tribunal to give a copy of its findings to the applicant, the Director-General, the Commonwealth agency to which the assessment was given and to the ASIO Minister being the Minister administering the ASIO Act. The qualification to this is set out in s 43AAA(5):
“The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency to which the assessment was given.”
That qualification must be read in light of the Tribunal’s duty under s 39B of the AAT Act not to communicate information contrary to a public interest certificate issued by the Attorney‑General or, more generally, that is not contrary to the requirements of security.
Once the Tribunal has given its findings, or part of them, to an applicant then, subject to any directions it makes s 43AAA(6) permits that applicant to publish those findings in any manner he or she thinks fit. The Tribunal may also publish those reasons for, as Foster J said in RJCG v Director-General of Security,[39] there is no foundation for the Tribunal’s earlier practice of not making its Reasons for Decision in such matters available to the public.[40]
[39] [2013] FCA 269
[40] [2013] FCA 269 at [58]-[59]
B.2 The question that must be addressed
Section 54 of the ASIO Act provides that an application may be made to the Tribunal for review of an ASA or of a qualified security assessment. In this case, the review is of an ASA. Having regard to the definition of a “security assessment” in s 35(1) of the ASIO Act and separating the elements of the question, that means that our task is:
(1)to review an adverse statement furnished to the Minister;
(2)“… expressing any recommendation, opinion or advice on … the question 6 …”:
(a)“… whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of…” FLSZ;
(i)in circumstances in which that “prescribed administrative action” is the exercise of power in relation to FLSZ under the Migration Act or Migration Regulations being the making of a decision to cancel FLSZ’s visa; or
(b)“… whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of …” FLSZ; and
(3)including “… any qualification or comment expressed in connection with any such recommendation, opinion or advice being a qualification or comment that relates or could relate to the question.”
C.Is there a place for the concepts of “reasonable grounds for issuing an ASA” and “reasonable suspicion”?
C.1 The Director-General’s submissions
We have posed the question in the subheading in light of the submissions made on behalf of the Director-General. They begin with a reference to the judgment of French CJ in Plaintiff M47/2012 v Director-General of Security[41] (M47/2012) when, it was submitted, he cited with approval the Supreme Court of Canada’s reasoning in Suresh v Canada (Minister of Citizenship and Immigration)[42] (Suresh):
“The threat must be ‘serious’, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.”[43]
[41] [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 245; French CJ, Hayne, Crennan and Kiefel JJ; Gummow, Heydon and Bell JJ dissenting
[42] [2002] 1 SCR 3; McLachlin CJ, L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ
[43] [2002] 1 SCR 3 at [90] cited in M47/2012 [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 245 at [68]; 47; 266
The submissions then continue:
“31. The Full Court of the Federal Court in Jaffarie v Director-General of Security & Ors (2014) 226 FCR 505; [2014] FCAFC 102 (Jaffarie) at [72] referred to Suresh in finding that the security definitions in the ASIO Act (in that case ‘serious threat’) must be interpreted flexibly, but that ultimately a security assessment must be ‘grounded upon objectively reasonable suspicion based on evidence.’
32.The High Court in George v Rockett (1990) 170 CLR 104 (George v Rockett) considered the expression ‘reasonable grounds’:
[8] 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 Atkins’ famous, and now orthodox, dissent in Liversidge v Anderson …
33.In MYVC v Director-General of Security (2014) 234 FCR 134; [2014] FCA 1447 (MYVC) at [51] to [53] Rares J considered the meaning of the words ‘suspects on reasonable grounds’ in the context of a security assessment. His Honour cited and applied the principles enunciated in the High Court’s decision in George v Rockett (1990) 170 CLR 104:
a.Suspicion, in its ordinary meaning, is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’ – [51]
b.The facts which can reasonably ground a suspicion may be insufficient to reasonably ground a belief, however, some factual basis for the suspicion must be shown – [51]
c.Suspicion that something exists is more than mere idle wondering about its existence – [52]
d.Suspicion is a positive feeling of actual misapprehension or mistrust amounting to a slight opinion, but without sufficient evidence. Whatever the source of the suspicion is, it has to be sufficient to create in the mind of a reasonable person an actual apprehension or feat that the matter being considered actually exists – [52]
e.Ordinarily an integral part of the process of forming a reasonable suspicion about future events involves an examination of past events – [53].”
C.2 Consideration
In the context of this case, the Minister’s submissions have caused us some concern for it is difficult to see how we are taken from the definitions of a “security assessment” and of an “adverse security assessment” to a consideration of whether an ASA is “grounded upon objectively reasonable suspicion based on evidence”. No mention is made in those definitions to our having a “suspicion”, reasonable or otherwise. What is mentioned is our expressing a recommendation, opinion or advice on a particular question. That question is whether it would be consistent with the requirements of security, or necessary or desirable, for prescribed administrative action to be taken. In some cases, the prescribed administrative action will lead to a consideration of whether a person suspects on reasonable grounds that certain outcomes would follow if certain administrative action were taken. A consideration of that sort must be undertaken when the Minister for Foreign Affairs (MFA) cancels, or refuses to issue, an Australian travel document. This is a consideration of the sort that we undertook in CMHV.
In this case, the prescribed administrative action is the cancellation of a person’s visa if that person has been assessed by ASIO to be, directly or indirectly, a risk to security. That is the question on which we must express our recommendation, opinion or advice. The definition of “security assessment or assessment” in s 35(1) of the ASIO Act formulates the question in two ways. One would have us ask whether it would be consistent with the requirements of security for FLSZ’s visa to be cancelled because FLSZ is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act. The other is whether it is necessary or desirable to cancel FLSZ’s visa because FLSZ is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act. Both formulations are raised by the definition of “security assessment or assessment” in s 35(1) of the ASIO Act. While we must consider what amounts to a “risk to security”, and that may raise issues such as what is meant by “serious threats” under paragraph (aa) of the definition of “security”, there is no mention of suspicion or objectively reasonable suspicion based on assessment in the formulation of the question we must ask ourselves. That is not to say that our recommendation, opinion or advice must not have a proper foundation but we have set out the need to have an evidentiary foundation above.[44]
[44] See [43]-[45] below
Do the authorities require us to formulate the question raised by s 116(1)(g) of the Migration Act, r 2.43(1)(b) of the Migration Regulations and s 4 of the ASIO Act in terms of objectively reasonable suspicion? We will look first at the Canadian case of Suresh, to which French CJ referred in M47/2012. Mr Suresh was a refugee from Sri Lanka who had applied for landed immigrant status. In 1995, the Canadian government detained him and commenced deportation proceedings on the basis that it was the opinion of the Canadian Security Intelligence Service (CSIS) that Mr Suresh was a member and fundraiser of the Liberation Tigers of Tamil Eelam (Tamil Tigers). The Canadian Minister of Citizenship and Immigration issued an opinion declaring him to be a danger to the security of Canada and concluding that he should be deported. She did so after advising Mr Suresh that she was considering whether she should do so but without giving an opportunity to make submissions on an immigration officer’s memorandum addressing the issues and without giving him an opportunity to respond to the matters addressed in that memorandum.
The Supreme Court of Canada (SCC) set out the issues that it had to consider:
“… the standard to be applied in reviewing a ministerial decision to deport; whether the Charter [Canadian Charter of Rights and Freedoms] precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether ‘terrorism’ and ‘danger to the security of Canada’ are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.”[45]
[45] [2002] 1 SCR 3 at [2]
Resolution of these issues required a consideration of the Charter and of s 53(1)(b) of the Immigration Act R.S.C. 1985 (Canada). Section 53(1)(b) provided:
“Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
…
(b)the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada;”.
Section 7 of the Charter guaranteed “[e]veryone … the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Its guarantee extended to refugees and it was conceded that deportation to torture might deprive a refugee of liberty, security and, perhaps, life. Was that deprivation in accordance with the principles of fundamental justice?
The SCC identified the Articles in various Conventions ratified by Canada and prohibiting torture. Articles 1, 2, 3 and 16 of the Convention against Torture (CAT) and Articles 4 and 7 of the International Covenant on Civil and Political Rights (ICCPR) reflect the prevailing international norm. The CAT protects everyone, without exception, from threats to life and freedom from State-sponsored torture. In contrast, Article 33(2) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Refugee Convention) provides more qualified protection for it provides that the benefit of the non-refoulement obligation cannot:
“… be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Although there may be some doubt on the question, it concluded that the better view is that international law rejects deportation to torture even where national security interests are at stake. “This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter”, the SCC said.[46] Barring extraordinary circumstances, deportation to torture will generally violate s 7 of the Charter. In summary:
“… It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.”[47]
[46] [2002] 1 SCR 3 at [2] at [75]
[47] [2002] 1 SCR 3 at [77]
In these circumstances, s 53(1)(b) of the Immigration Act does not violate s 7 of the Charter. That said, there was a question whether the terms “danger to the security of Canada” and “terrorism” were unconstitutionally vague and, if not, the meaning of the expression “danger to the security of Canada”. Only with the expression “danger to the security of Canada” was relevant in M47/2012. It was found to be an expression that was not unconstitutionally vague. It gave people who might come within the ambit of s 53(1)(b) fair notice of the consequences of their conduct while adequately limiting law enforcement discretion.[48]
[48] [2002] 1 SCR 3 at [92]
As to the meaning of the expression “danger to the security of Canada”, the SCC accepted that:
“… the determination of what constitutes a ‘danger to the security of Canada’ is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security …”[49]
It later summarised its view:
“ While the phrase ‘danger to the security of Canada’ must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while ‘danger to the security of Canada’ must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.
90 These considerations lead us to conclude that a person constitutes a ‘danger to the security of Canada’ if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be ‘serious’, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.”
[49] [2002] 1 SCR 3 at [85]
In its conclusion, the SCC focused on the words of s 53(1)(b) of the Immigration Act - “danger to the security of Canada” – and did so in the context of balancing the power given to the Minister under that section with the obligations imposed by s 7. Its judgment cannot be read as attempting to give a universal meaning to the determination of when there is a threat to national security and when it will be regarded as serious regardless of the statutory framework in which similar expressions are used.
We respectfully suggest that the High Court has not attempted to do so in the case of M47/2012 but has applied similar principles in deciding a case raising similar tensions between concerns of non-refoulement and those of national security. The issue that it had to decide centred on cl 866.225(a) of Schedule 2 to the Migration Regulations. That clause prescribed that an applicant for a protection visa had to satisfy public interests criterion 4002 i.e. that:
“The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation 1979.”
In his judgment, French CJ noted that:
“… The word ‘security’ as defined in the ASIO Act does not in terms set a threshold level of risk necessary to support an adverse assessment for the purposes of public interest criterion 4002.”[50]
[50] [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 245 at [68]; 47; 266
There is always someone who needs help, FLSZ said, and this work was undertaken on a voluntary basis from the heart. Even though not a member of NZF and just a volunteer, a message would be passed on to FLSZ if anyone needed help. FLSZ would provide assistance with paper work and in providing emotional support.
Open evidence on behalf of ASIO
Mr John Ward[85] gave evidence regarding the risks posed by those who are based in Australia and who travel to Syria and Iraq and the region. Until the end of 2012, many foreigners travelled to Syria to fight with one of the many Syrian opposition groups. Small numbers of Australians have been doing so since the late 1990s. Since 2013, the majority have travelled to Syria as well as to Iraq and the region more broadly in order to support extremist causes and extremist groups.
[85] The name of “John Ward” is an assumed identity given by the Director-General under Part 1AC of the Crimes Act 1914 to a person who was employed by ASIO since the late 1970s. He held senior positions across ASIO’s counter-terrorism functions and was a member of its Senior Executive Service for the last 17 years of his service. He rose to become a First Assistant Secretary of the Division in ASIO responsible for counter-terrorism investigations, analysis, priority setting and intelligence requirements. He is now engaged as an employee performing a number of functions including appearing as a witness.
A. Islamic State of Iraq and Levant
Mr Ward said that, predominant among these groups is ISIL. It has attracted the majority of Australians. It is a group founded by Abu Bakar al-Baghdadi in 2013 and has become one of the most active of the terrorist organisations. It conducts daily attacks on security forces and civilians across Iraq and Syria. It does so in various ways including bombing public gatherings during holidays and religious festivals, conducting public executions and violent punishments in areas in which it operates, compelling people to live according to its interpretation of Sunni Islam and Sharia, or Islamic law and ethnically cleansing minority groups in Syria.
In September 2014, ISIL called for attacks against a wide range of countries but focused particularly on those countries, including Australia, which had been involved against it in military action. It also called on action to be taken against disbelievers whether they be civilians or military personnel. A year later, the leader of Al-Qa’ida, Aymanai-Zawahiri, called on his supporters to work with ISIL. The two groups had previously had fundamental differences but they united to confront their common enemies and to carry out martyrdom operations in the West. Aymanai-Zawahiri also called on Muslims living in the West to carry out attacks in their own countries.
In his oral evidence, Mr Ward refuted a suggestion that ISIL’s loss of ground in recent times in Iraq meant that it was of less significance than in the past. ISIL has become much more than a military force in countries such as Iraq and Syria. It has extended its reach beyond those lands by means of attacks, successful and otherwise, in Australia and elsewhere and by remaining a source of inspiration for those who would carry out those attacks in its name.
B.Australians’ involvement with ISIL and similar organisations
Mr Ward said in his statement that some of the early Australian travellers to countries such as Syria, Iraq and Turkey have returned to Australia but have become involved in terrorist planning onshore. The number of people now travelling to those countries has, since 2012, far outstripped those who have travelled in relation to any comparable conflict. The level of indoctrination and violence, in which they have become engaged, Mr Ward said, has also far outstripped anything previously seen.
He reflected on the reasons for that escalation. One reason lies in the ties that the travellers have with the Middle East and with Australians who are already embedded with Islamist extremist organisations and who are motivating them to join them. A second reason lies in ISIL’s declaration of the establishment of the Caliphate and the continued calls that ISIL’s leaders have made to all Sunni Muslims to travel to, and defend, it. Consistent with extremist Islamic views, the existence of the Caliphate requires adherents to pledge allegiance to it and to attempt to live within the territory that it controls. Its existence becomes a motivational force for those who fight to defend it. Non-fighters, including women and children, have also been encouraged to travel to the Caliphate. That encouragement is given, Mr Ward said, in an effort to legitimise the Caliphate and the territory it controls as well as to support its operation. He estimated that dozens of women and children have travelled there from Australia.
A third reason lies in the highly professional English language Islamic extremist propaganda material that has been disseminated from the Middle East. That material is found on a range of social media platforms. In earlier years, material of this sort was less available, less accessible and less sophisticated in promoting its message. It is presented to show the glory, excitement and allure in migrating to Syria, Iraq and the region. The camaraderie and unity of purpose of those already there is promoted. Targeted radicalisation by Islamic groups is a fourth reason for seeing an increase in the number of relatively younger Australians travelling to the region.
Those who wish to join the conflict are able to obtain guidance online and may do so in a way that disguises their true intention. The vast majority of those who wish to travel to Syria or Iraq do so by way of Turkey.
ASIO, Mr Ward said, remains highly concerned about extremists who join or support Islamist groups in Syria, Iraq and the region. Its concerns centre both on the immediate direct and indirect terrorism-related threat that they pose to life and property in the region but also on the longer term threat they pose both in Australia and elsewhere in the world. With those who travel to those countries and that region, ASIO has indications that, even if they only remain for a relatively short period, they will receive weapons training. It has also assessed that they will receive religious indoctrination which is designed to reinforce their commitment to an ideology that advocates violence whether in the region or elsewhere including the West.
There are also concerns that, even if Australians and those who may enter Australia, are not involved in actual fighting, they have been complicit and directly involved in acts of extreme violence in Syria and Iraq in support of Islamic extreme ideology. Others have become involved in recruiting for terrorist groups, training others or providing funding and equipment, affording safe haven or medical assistance, assisting with official and non‑official propaganda, facilitating the travel of other Australians to the conflict zone, providing religious leadership and generally providing support for Islamic extremists. Mr Ward pointed to an article prepared by the Institute for Strategic Dialogue in which the authors estimated that, of the 4,000 or so Western foreign fighters and migrants to ISIS, over 550 were women. That was in 2014.[86]
[86] ‘Til Martyrdom Do Us Part’ by Erin Marie Saltman and Melanie Smith, 2015 at 4: Appendix 1 to Open Affidavit of John Ward
In that same article, the authors wrote:
“ ISIS has increased its female-focused efforts, writing manifestos directly for women, directing sections of its online magazine publications Dabiq to the ‘sisters of the Islamic State’ and allowing women to have a voice within their recruitment strategy – albeit via social media. …
Increasing within ISIS propaganda is this message: women are valued, not as sexual objects, but as mothers to the next generation and guardians of the ISIS ideology. …”[87]
[87] ‘Til Martyrdom Do Us Part’ at 18
The same article, ‘Til Martyrdom Do Us Part’, sets out a number of examples of a number of women, including Australian women, who have joined the Caliphate. Among them are Zaynab Sharrouf, the daughter of Khaled Sharrouf and Tara Nettleton, and Zehra Duman. Zaynab Sharrouf grew up in Sydney but was taken with her siblings to live in ISIS territory when she was 13 years of age. By the time she was 14 years of age, she was married to Mohammed Elomar who had also travelled from Sydney. By that time, she appeared to show no signs of discontent with her life and became heavily involved with ISIS’s violent and extreme ideology.
Zehra Duman is another Australian and a close friend of Zaynab Sharrouf and the female members of the Sharrouf family. She left Melbourne and arrived in Syria in December 2014 when she was 21 years of age. On 11 December 2014, she married Mahmoud Abdullatif, who was 23 years of age and had also arrived from Melbourne. He was killed after five weeks of marriage and she has since focused on the subjects of marriage and widowhood in ISIS territory. She states in her social media platforms that she misses nothing about Australia and encourages others to make hijra to the Caliphate. If they do not, she warns, they are only adding fuel to the fire which will mean attacks on your soil. Her narrative of her social media platforms is often interspersed with references to the obligatory nature of residence within the ISIS for those who are practising Muslims and to its capabilities as an organisation. In this way, she is encouraging migration and also drawing a connection between herself and lone wolf attacks on home soil.[88]
[88] ‘Til Martyrdom Do Us Part’ at 33-34
Mr Ward said that ASIO assesses that a number of Australians have been killed as a result of their involvement with extremist groups and, in particular, with ISIL.
ASIO assesses that Western passports are an asset for terrorist groups. They permit greater ease of travel for the holders than some travel documents issued by countries from other regions. Western passports also have value in that they can be sold to fund other PMV activities.
C. Implications for Australia
Since September 2014, there have been five Islamist extremist-inspired terrorist attacks on Australian soil. They have resulted in the deaths of eight people, four of whom have been the perpetrators, and significant injuries to others. A further twelve plots have been disrupted. They have been at various levels of readiness to be instigated. In ASIO’s assessment, Mr Ward said, it is likely that these plots have been fostered by a combination of ISIL’s online propaganda calling for attacks in Australia, the resonance of this message with an increasingly younger and a less predictable cohort of individuals. There is a trend towards targeting violence towards easily achievable and unsophisticated targets.
ASIO assesses that the conflict in Syria and Iraq continues to resonate with Islamist extremists. Continued terrorist attacks in Western Europe and in the United States of America demonstrates ISIL’s ability to inspire terrorist attacks. They have taken place in London in June and March 2017, Manchester in May 2017, Paris in April and February 2017, Berlin in December 2016, Nice in July 2016, Istanbul in June 2016, Brussels in June 2017 and March 2016, Florida in June 2016 and California in December 2015. ASIO assesses that experience gained in Syria and Iraq provided those who were involved in these attacks gave them an enhanced capability to do so.
In so far as Australia is concerned, ASIO assesses that extremists returning from conflict zones present a comparatively higher risk of engaging in, or attempting to engage in, acts of PMV after they return. Those who have travelled to the Middle East conflict zone, and particularly those who have been aligned with ISIL, exhibit a reinforced commitment to an extremist ideology. They are likely to have become inured to the use of extreme violence. Having associated with, and likely trained and fought alongside, a range of violent jihadists from around the world. They have built networks that are likely to endure. In ASIO’s assessment, such people present a significant risk to Australia’s security as their training, experience and contacts provide them with a greater capacity to conduct violent acts.
D. Obligations under Resolution 2170 adopted by the Security Council
On 15 August 2014, the Security Council adopted Resolution 2170. The Security Council of the United Nations reaffirmed, among other things:
“… that terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed.”
Acting under Chapter VII of the Charter of the United Nations, the Security Council went on to urge Member States to take various action. For example, it:
“8. Calls upon all Member States to take national measures to suppress the flow of foreign terrorist fighters to, and bring to justice, in accordance with applicable international law, foreign terrorist fighters of, ISIL, ANF and all other individuals, groups, in accordance with applicable international law, by, inter alia, effective border controls, and, in this context, to exchange information expeditiously, improve cooperation among competent authorities to prevent the movement of terrorists and terrorist groups to and from their territories, the supply of weapons for terrorists and financing that would support terrorists;
9.Encourages all Member States to engage with those within their territories at risk of recruitment and violent radicalisation to discourage travel to Syria and Iraq for the purposes of supporting or fighting for ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida.”[89]
[89] Australia is a Member State as one of original Members of the states having participated in the United Nations Conference on International Organization at San Francisco, signed the Charter and ratified it: Charter of the United Nations; Chapter II, Article 3. Australia ratified the Charter in the Charter of the United Nations Act 1945; s 5.
CONSIDERATION
Having regard to the evidentiary material in this matter, we are of the opinion that FLSZ is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act in so far as the likelihood of engaging politically motivated violence is concerned. That expression draws in a wide range of behaviour but we have in mind that behaviour that is described as “acts that are terrorism offences”. What amount to “terrorism offences” is an expression whose net is also cast very widely. At [27] above, we have set out the offences which fall within Subdivision A of Division 72 of the Criminal Code and those which fall under Part 5.3 of that Code.
FLSZ has given explanations for the Facebook posts but, having regard to the evidence of Mr Ward and to the text of the posts, we are of the opinion that FLSZ’s explanations do not make sense. In saying that, we have particular regard to the post dated 13 December 2016. It is a post rebuking Muslims who enjoy their lives with the “Mushrikīn” rather than uniting with fellow Muslims claiming to be Muwahhidīn and calling upon Allah to grant the Muwahhidīn victory in Irāq. Shām, Yemen, Khurasān, Shīshān, Masr, Al-Maghrib, al‑Sōmāl, CAR, all of Africa, the Balkans, Philippines, Burmā, return al-Andalus and to return all the lands of Islām back to them. FLSZ acknowledges having read the first paragraph when posting the material even if not acknowledging having read the rest of it carefully. The meaning of that first paragraph is clear and its message is such that it is unlikely that FLSZ would have posted the rest of the material without paying attention to what it said. FLSZ acknowledged at the hearing that the post was a big mistake and came across as very extreme. We agree but we do not agree that the material was posted without thought. For reasons we give in our closed reasons, we are of the opinion that the views that are presented in that post are, we find, consistent with views held by FLSZ.
The planned family trip to Saudi Arabia to attend Umrah may have been just that. We accept that it may have been just that for the family but have not formed the same opinion in relation to FLSZ. In light of the evidentiary material given in both the closed and open sessions, there is a question over FLSZ’s intentions regarding the trip. The explanation about the Western Union receipt did not persuade us that it represented a payment made by FLSZ on behalf of a Melbourne-based person to another person in Turkey for medical expenses. It did not persuade us because there is no reason given for FLSZ’s using personal funds for the transfer and then recovering them from the Melbourne-based person. The usual thing to do would be to assist the Melbourne-based person to transfer that person’s own money to Turkey or take the money from the person and transfer it. Transferring FLSZ’s own money and then seeking to recover it did not make sense to us without further explanation. Without that further explanation, the use to which that money might be put in Turkey remains an open question.
Some time was spent on the issue of FLSZ’s mobile phone. FLSZ has given more than one explanation for the mobile phone. The explanation given by FLSZ to us was that one of the family members had packed it. FLSZ had not wanted to have a mobile phone on the trip because it would be a hassle to the family if authorities randomly selected FLSZ for further scrutiny. Given that FLSZ’s evidence was that there was nothing on the mobile phone that should be hidden and given that the other members of the family each had a mobile phone, that evidence does not make sense. It does not follow when considered against FLSZ’s not knowing that it had been packed and yet saying that the purpose of each family member’s having a mobile phone was to ensure that the family members could communicate so that nobody became lost during Umrah.
FLSZ’s contacts with certain persons also raise concerns as to the risk posed to security if permitted to retain a visa. Contact with Mr M and with … [Mr O] had both been voluntary but FLSZ expressed concerns at the hearing for what they had said online but did not take steps to report those concerns to the authorities. The same is true of FLSZ’s contact with … [Ms C]. FLSZ had thought that … [Ms C] did not behave as a Muslim woman should and thought that no one should be near her. Despite that, FLSZ reported none of those concerns to the Australian authorities.
We have given a full account of our reasons in the closed reasons. In those reasons, we have identified the evidentiary material put forward by ASIO and considered it both for relevance and probity. We have had regard to the opinions and assessments expressed by Mr Ward and have read any material on which he has formed those opinions and assessments. After having regard to the whole of the evidence, we have come to the view that the ASA should be affirmed. FLSZ is, whether directly or indirectly, a risk to security. The risk lies in FLSZ’s committing a terrorism offence and it must be borne in mind that the range of offences is very wide. It would be consistent with the requirements of security that FLSZ’s visa be cancelled in the circumstances of this case. Cancellation would mean that FLSZ would become an illegal non-citizen and be removed from Australia. In some instances, it could not be said that mere removal would be consistent with the requirements of security but removal in this instance will take FLSZ out of the company, at least in a geographic sense, of others who hold similar extreme views. We have concluded that cancellation of FLSZ’s visa is necessary or desirable given that risk or, to put it the other way, it would be consistent with the requirements of security to cancel FLSZ’s visa.
| I certify that the preceding One hundred and forty one (141) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie, Senior Member Egon Fice and Senior Member A Nikolic AM CSC |
............[sgd]............................................................
Personal Assistant
Dated: 4 May 2018
| Heard: | 4, 5 and 6 December 2017 |
| Counsel for the Applicant: Solicitor for the Applicant: Counsel for the Respondent | Mr Guy Gilbert SC Mr Nazim El-Bardouh Ms Rhonda Henderson |
| Solicitor for the Respondent: | Ms Irene Sekler Australian Government Solicitor |
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