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

KFDJ and Director General of Security [2022] AATA 3185 (22 August 2022)
Division:SECURITY DIVISION
File Number(s): 2020/0437
Re:KFDJ
APPLICANT

AndDirector General of Security
RESPONDENT

Decision
Tribunal:Deputy President Bernard McCabe
Senior Member Damien O’Donovan
Member Simon Webb

Date:22 August 2022
Place:Canberra

The Assessment and the Grounds are upheld with the following variations to the contents of:
(a)the Assessment:
i.in clause 5(a), delete the words ‘or a foreign country’;
(b)the Grounds:
i.in clauses 3(a), 5, 9(a) and 13, delete the words ‘or a foreign country’.
............................[SGD].....................................
Deputy President Bernard McCabe
Catchwords
NATIONAL SECURITY – adverse security assessment – requirements of security – prescribed administrative action – recommendation for cancellation of Australian passport – approach to fact-finding – correctness of information – justification for opinions or recommendations – protection of Australia and Australians from politically motivated violence and communal violence – decision varied
Legislation
Administrative Appeals Tribunal Act 1975, ss 35AA, 43AAA, 43, 43(2B)
Australian Security and Intelligence Organisation Act 1979, ss 4, 17, 35(1), 37(2), 39, 61
Australian Passports Act 2005, ss 14, 22(2)
Cases
BLBS and Director General of Security [2013] AATA 820
Church of Scientology v Woodward [1982] HCA 78
Jaffarie v Director -General of Security [2014] FCAFC 102
MYVC v Director General of Security [2014] FCA 1447
QDJM and Director-General of Security [2021] AATA 4761
SDCV v Director General of Security [2021] FCAFC 51
VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88
Secondary Materials
Justice Garry Downes AM, ‘The Security Appeals Division of the Administrative Appeals Tribunal’ (Speech, National Security Law Course, University of Sydney, 13 September 2006)
Pearce, Dennis ‘Administrative Appeals Tribunal’ (5^th Edition) LexisNexis 2020
REASONS FOR DECISION
Deputy President Bernard McCabe
Senior Member Damien O’Donovan
Member Simon Webb
22 August 2022
The Australian Security Intelligence Organisation (ASIO) made an adverse security assessment in respect of the applicant (KFDJ) and recommended to the Minister for Foreign Affairs (Minister) that KFDJ’s passport be cancelled. ASIO concluded that KFDJ is a right-wing extremist who might threaten security in Australia if he is permitted to travel overseas. The Minister subsequently cancelled the KFDJ’s passport. KFDJ only learned of the cancellation decision when he arrived at Sydney airport in January 2020 as he was about to embark on an overseas journey.
KFDJ applied to the Tribunal for review of ASIO’s adverse security assessment and review of the Minister’s decision to cancel his passport. His essential claim is that his views are not extreme and his travel intentions were entirely benign.
It is important to observe that, while the adverse security assessment and the passport cancellation decision are linked, they are separate decisions undertaken by different decision-makers applying criteria found in different enactments: the Australian Security and Intelligence Organisation Act 1979 (ASIO Act) and the Australian Passports Act 2005 (Passports Act). When conducting the reviews, the functions and powers of the Tribunal are governed by the relevant provisions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 3185
Decision Date: 22 August 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Australian passport, based on an adverse security assessment made by the Director-General of Security. The applicant, KFDJ, represented himself and challenged the reliability and relevance of evidence presented by the Director-General, which included classified ASIO materials and evidence from a witness using an assumed name, 'John Ward'. The Tribunal was required to prepare both open and closed reasons for its decision, balancing the need for transparency with the protection of sensitive national security information.

The primary legal issues before the Tribunal were to determine the correctness and justification of the information and opinions contained within the adverse security assessment, and whether the statutory requirements and limitations under the *Passports Act* and the *ASIO Act* had been met. This involved evaluating the reliability of evidence presented by both parties, including classified ASIO documents, the testimony of Mr Ward, and KFDJ's own evidence, while also considering challenges based on hearsay and relevance. The Tribunal also had to determine if the recommendation for cancellation of KFDJ's passport was justified and reasonably relevant to the requirements of security.

The Tribunal reasoned that while some of Mr Ward's evidence had the character of hearsay or opinion, aspects drawn from his direct knowledge of ASIO's role and procedures were relevant and assisted in understanding the documentary evidence. The Tribunal accepted that certain unclassified materials, including media articles and threat assessments, were relevant to understanding the broader context of security concerns, such as right-wing extremism and foreign fighters. On balance, the Tribunal was satisfied that the opinions expressed in the security assessment were correct and justified, and that the statutory requirements had been met.

The Tribunal varied the adverse security assessment by deleting the words "or a foreign country" from specific clauses within the Assessment and the Grounds. Subject to these variations, the Tribunal found the information, opinions, advice, and recommendations in the assessment to be correct, reasonable, justified, and relevant to the requirements of security. The decision on KFDJ's application for review of the passport cancellation would be made after further submissions and consideration of any additional relevant evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We are required to prepare ‘open’ reasons that can be provided to KFDJ (which are subject to the non-publication direction we made under s 35AA(2(c) of the AAT Act) and ‘closed’ reasons that are provided only to the Director-General. To obtain a complete picture of our reasoning process, it will be necessary to read the open and closed reasons together. Our open reasons include as much of our reasoning and the materials on which it is based as can properly be disclosed. General observations about evidence and credit KFDJ represented himself and he chose to give oral evidence. In this context, he was cautioned about the risk of self-incrimination and his privilege in that regard. The Director General has placed materials from ASIO’s holdings before the Tribunal. Some, but not all, of these materials have been provided to KFDJ, including documents with redactions. KFDJ has not been given access to materials which are classified as confidential and covered by the Ministerial certificates given to the Tribunal. The Director-General authorised a witness to give evidence at the hearing. The witness used an assumed name, ‘John Ward’. Mr Ward provided written and oral evidence, including in the closed portion of the hearing, and he was cross-examined by KFDJ. As is common in cases of this kind, the reliability of evidence is in question – both in respect of evidence from ASIO’s holdings, evidence given by Mr Ward and KFDJ’s evidence. Even though we will address issues relating to the reliability of evidence with particularity when fact finding, there are some matters of a more general nature that it is appropriate to note at this point. KFDJ challenged much of Mr Ward’s evidence on hearsay grounds. There is some merit in this. Mr Ward explained that he was not directly involved in the investigative matters traversed in his written evidence. While he gave some evidence from direct knowledge and experience, KFDJ is correct in asserting that much of Mr Ward’s evidence has the character of hearsay or opinion in respect of documentary materials obtained from or created by others. It is the Tribunal’s role to evaluate evidence placed before it and, to the extent that Mr Ward’s evidence has an evaluative character in respect of matters in which he was not directly involved or about which he has no direct knowledge, we accept it should be discounted and his opinion evidence should be treated cautiously. This is not to criticise Mr Ward. Aspects of his evidence, drawn from his direct knowledge and experience of ASIO’s role, methods and procedures, are of direct relevance to our assessment of the available materials and assist our understanding. He also provided evidence on the provenance of the documentary evidence, which is important in confirming its veracity. KFDJ challenged the relevance of some materials from ASIO’s holdings, particularly a bundle of unclassified documents under the header Documents 1st Tranche (UD documents) filed on 18 May 2020. The documents in this bundle are not particular to KFDJ. They include media articles, information from websites, including Wikipedia, and the Director-General’s Annual Threat Assessment (a speech given on 24 February 2020). This material refers to right wing extremism, the conflict in Ukraine and concerns about the rise of far-right nationalism in Australia, with particular reference to the group Antipodean Resistance. We note that it includes articles, such as Antipodean Resistance: The Rise and Goals of Australia’s New Nazis by a researcher for the Executive Council of Australian Jewry; and an ABC News article entitled From Neo-Nazi to militant: The foreign fighters in Ukraine who Australia’s laws won’t stop.

Decision

Reasons for decision

On balance, we are satisfied that the opinions expressed in the Assessment and the Grounds are correct and justified, and the statutory requirements and limitations in the Passports Act and the ASIO Act have been met. We are satisfied that there is proper justification for the recommendations in the security assessment in respect of cancellation of KFDJ’s Australian travel document and requesting a further security assessment should he apply for an Australian travel document in the future. DECISION Subject only to the variations set out below, the information ASIO has included in the Assessment and the Grounds is correct and the opinions, advice and recommendations set out therein are reasonable and justified and are reasonably relevant to the requirements of security. For the reasons stated at paragraph ‎80, the Assessment and the Grounds are varied as follows: (a)the Assessment:i.in clause 5(a), delete the words ‘or a foreign country’;(b)the Grounds:i.In clauses 3(a), 5, 9(a) and 13, delete the words ‘or a foreign country’. Having satisfied ourselves as to the form which the adverse security assessment should take and that the refusal/cancellation request which is included in the security assessment is justified, KFDJ’s application for review of the decision to cancel his passport under s 22 of the Passports Act remains to be decided. This matter will be decided once the parties have been heard and any further relevant evidence has been considered. I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard McCabe, Senior Member Damien O’Donovan and Member Simon Webb. ………………SGD………………………Associate Dated: 22 August 2022Dates of Hearing: 22 February 2021 to 24 February 202111 October 2021Representative for the Applicant: Self-represented Counsel for the Respondent: Mr T GloverSolicitor for the Respondent: Australian Government Solicitor

Ratio Decidendi

Legal Principle Established

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