KFDJ and Director General of Security
[2022] AATA 3185
•22 August 2022
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’ (5th 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 the Administrative Appeals Tribunal Act 1975 (AAT Act).
Review of the Minister’s passport cancellation decision logically requires the Tribunal first to reach a view on the correctness of, or justification for, the adverse security assessment.
In view of this, the Tribunal decided it was preferable to deal with the review of the adverse security assessment under the ASIO Act, along with the associated refusal/cancellation request before dealing with the review of the Minister’s passport cancellation decision under the Passports Act.
This decision is in respect of KFDJ’s application for review of ASIO’s adverse security assessment and the making of the refusal/cancellation request. We will issue a separate decision in respect of his application for review of the Minister’s decision to cancel his passport when the matter has been the subject of a separate hearing.
We are conscious that this is something of a departure from how matters may have been approached for the last decade in the Tribunal but separating the cancellation of the passport from the security assessment has given greater clarity to the statutory task that the Tribunal is undertaking.
In order to reach a clear understanding of this task, it is necessary to carefully consider the legislative framework and the particular provisions that must be applied in a review of this kind. There are four aspects of our task which require some elaboration.
The first is the way in which we must review the security assessment and make findings about the conclusions ASIO has already reached in relation to this matter. The second is the importance of satisfying ourselves that the assessment relates to ‘security’ as defined in the ASIO Act. The third aspect is whether any information in the assessment is incorrect or incorrectly represented, or it is not reasonably relevant to the requirements of ‘security’, and whether the opinions, advice and recommendations in the assessment are justified. The fourth is in respect of procedure and fairness.
The review task
The following is a brief statement of the framework which we are using to determine the application:
(a)The Tribunal’s key task when reviewing a security assessment is to make and record our findings in relation to the security assessment. We may state our opinion on the correctness of or justification for any opinion, advice or information contained in the assessment (ss 43AAA(2) of the AAT Act).
(b)The effect of completing a review is set out in section 61 of the ASIO Act in the following terms:
Where an assessment has been reviewed by the Tribunal, every Commonwealth agency, State and authority of a State concerned with prescribed administrative action to which the assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.
(c)There is however a restriction imposed on how the Tribunal alters information that is included in a security assessment. The Tribunal must not make findings which supersede information in the original assessment unless we state about the original findings that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security (ss 43AAA(3)).
These provisions set out a task which differs significantly from the task which the Tribunal usually confronts when hearing matters in its General Division. In particular, subsection 43AAA(3) ensures that the security assessment of ASIO has enduring significance. The information in it cannot be superseded by Tribunal findings unless the Tribunal is satisfied that the statutory test is met. This is quite different to the de novo review which the Tribunal normally undertakes where the Tribunal seeks to make the correct or preferable decision based on the material before it without necessarily having regard to the earlier decision.
When reviewing an adverse security assessment, the Tribunal does not start with a clean slate and make a fresh assessment on the materials placed before it without regard to the underlying foundations for the assessment that was issued. The process is much closer to an exercise whereby the AAT reviews and, if necessary, revises ASIO’s work. The Tribunal satisfies itself that the information in the assessment is correct. The Tribunal also considers whether opinions or advice are justified. There is no question that the task the Tribunal undertakes is full merits review based on the information available to it at the time,[1] but the Tribunal cannot simply ignore the earlier assessment and set about making its own findings as if the previous assessment did not exist. It is bound to consider the effect of its findings on the conclusions expressed in the ASIO assessment, and in particular consider whether the findings supersede the earlier assessment. While not a dramatic departure from its usual merits review process, this is a distinctive role for the Tribunal.
[1] SDCV v Director-General of Security [2021] FCAFC 51 at [4] and Re BLBS and Director-General of Security (2013] 137 ALD 196 at [159]
Consequently, the obligation in s 43 of the AAT Act to make findings on material questions of fact and to make a decision to affirm, vary or set aside a security assessment is heavily modified by the terms of section 43AAA when the Tribunal is making a decision in its Security Division.
It is also significant that a security assessment is not simply a binary administrative decision. It is the means by which ASIO can lawfully convey intelligence and make requests to other agencies for them to take action.[2] Intelligence may include information about which there is uncertainty (provided it is not ‘incorrectly represented’). However, when an assessment with an adverse recommendation is being issued, the opinions expressed need to be properly justified.[3] The approach to be taken where an adverse assessment is being considered was well expressed by the Tribunal in BLBS and Director General of Security:[4]
While the degree of satisfaction required is not prescribed by the Act, the scheme of the Act is posited on ASIO being entitled to make an adverse assessment only if it possesses such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion(s) arrived at. We find that to be the minimum standard the ASIO Act requires.
We think it unhelpful to express that requirement prescriptively as a “standard of proof”. The confidence level that a reasonable mind would accept as adequate to support a conclusion that an adverse assessment ought be made by ASIO will necessarily differ depending on the nature of the realm of assessment, the nature of the rights affected and the risks and dangers relevant to the assessment.
[2] Section 39(1) of the ASIO Act and s 48A of the Passports Act.
[3] Subsection 43AAA(2) of the AAT Act.
[4] [2013] AATA 820 at [46-47].
There has been some controversy about whether, in addition to addressing the requirements of s 43AAA, the Tribunal is also required to comply with the requirements of s 43 of the AAT Act and, in particular, the obligation in section 43(2B) which requires the Tribunal to make findings on material questions of fact and to refer to the evidence or other materials on which those findings are based. This is important when considering the nature of the Tribunal’s task and the matters about which the Tribunal must be satisfied when reviewing a security assessment. Professor Pearce in the fifth edition of his book ‘Administrative Appeals Tribunal’[5] expresses the view that section 43 does not apply to the Security Division of the Tribunal. This view is consistent with the views expressed by Justice Downes, then President of the AAT, in a speech given in 2006[6].
[5] Pearce, Dennis ‘Administrative Appeals Tribunal’ (5th Edition) LexisNexis 2020.
[6] Justice Garry Downes AM, ‘The Security Appeals Division of the Administrative Appeals Tribunal (Speech, National Security Law Course, University of Sydney, 13 September 2006).
In 2021, the Federal Court in SDCV v Director General of Security (SDCV)[7] expressed a tentative view that s 43(2B) does apply in the Security Division. That approach was embraced by the Tribunal in QDJM and Director-General of Security[8]. While we do not think the question has been finally resolved, it is worth pointing out that difficulties arise when reading section 43 subject to section 43AAA and concluding that the Tribunal’s reasons must include findings of fact consistent with s 43(2B). The reference in s 43(2B) to findings on material questions of fact is a different task to the one required by s 43AAA(2) which is to make findings in relation to the security assessment. How findings in relation to a security assessment are made is expressly constrained by the requirements of section 43AAA(3).
[7] [2021] FCAFC 51 at [94].
[8] [2021] AATA 4761.
In many cases, the threshold for making findings for the purposes of paragraphs 43AAA(2) of the AAT Act in respect of a security assessment may fall short of an affirmative factual finding. Section 43AAA(3) makes clear that the Tribunal can only make findings which would have the effect of superseding information in a security assessment if it is of the opinion that the information is incorrect, incorrectly represented or not reasonably relevant to the requirements of security. Failure to form the opinion that a piece of information is incorrect (which is the s 43AAA(3) standard) is quite different to being reasonably satisfied that it is a fact (the s 43(2B) standard). Consequently, section 43AAA must be regarded as heavily modifying the obligation in section 43(2B). As the majority observed in SDCV’s case, the content of the findings of fact made, and the material identified to support them, will inevitably be affected by the terms of s 43AAA(2)[9], and the obligation in s 43(2B) to expose reasons for the decision to an applicant may as a practical matter even be substantially eliminated in a given case, by the operation of s 43AAA(5)[10]. There is real tension between the requirements of section 43(2B) and section 43AAA. To the extent this needs to be resolved, section 43AAA prevails[11].
[9] SDCV, per Bromwich and Abraham JJ at [191].
[10] Ibid, at [192].
[11] Subsection 43(1A) of the AAT Act.
The unique nature of reviews in the Tribunal’s Security Division is not surprising when the historical development of this jurisdiction is considered.
The AAT did not have the ability to review security assessments when the AAT Act was first passed. Indeed, the jurisdiction did not exist anywhere in the Commonwealth until 1979. When it was created, the jurisdiction was initially conferred on the Security Appeals Tribunal (SAT). The SAT was a specialist review body created by the ASIO Act. While there were many structural features which were common between the SAT and this Tribunal, it is clear from the legislation that the nature of the SAT’s powers of review were different to this Tribunal’s usual powers. In particular, the SAT did not have a power that was equivalent to s 43 of the AAT Act (i.e. the power to affirm, set aside or vary a reviewable decision). The SAT’s powers on review were essentially confined to undertaking the task which is now set out in s43AAA(2) of the AAT Act, albeit in slightly broader terms.
In the mid-1990s the SAT was abolished because its workload did not justify the maintenance of a separate review body in circumstances where it already operated in close co-operation with this Tribunal.[12] The SAT’s jurisdiction was however transferred intact into the AAT Act. In other words, responsibility for conducting reviews in the manner in which the SAT had conducted them was shifted to this Tribunal. Section 43, which defines the decision-making task of the Tribunal, was made expressly subject to section 43AAA when reviews were being undertaken in the Security Division of the Tribunal. This meant that the nature of review to be conducted in the Security Division had a different complexion to most reviews undertaken by the AAT.
[12] Senate Official Hansard No 168 1994 p4125.
The text of s 43AAA and its legislative history confirms Parliament intended that a different kind of review be undertaken in security matters. This is also confirmed by a review of the Royal Commission reports which recommended the establishment of the SAT.[13]
[13] Former President of the Tribunal Justice Downes spoke about this more limited role in a speech he gave in 2006 The Security Appeals Division of the Administrative Appeals Tribunal – Functions, Powers and Procedures (aat.gov.au) see in particular p 16.
The Royal Commission was conducted by Justice Hope of the New South Wales Supreme Court between 21 August 1974 and 25 October 1977. It made several important recommendations, all of which were reflected in the ASIO Act when it was enacted in 1979. Those recommendations included:
·the establishment of a specialist tribunal to review ASIO’s adverse or qualified security assessments. The tribunal would either confirm or vary the assessments, wholly or in part. In the course of its work, the tribunal was expected to review all the supporting information and, where appropriate, confirm, vary or supplement that information (para 141 report volume 2);
·a requirement that assessments issued by ASIO had to relate to security. The system of security checks is directed to protecting the security of the nation. It is only justified by the need to ensure that protection (para 46 report volume 2);
·a requirement that ASIO should not include information in security assessments unless it assesses that information is relevant to security as defined in the ASIO Act (para 51 report volume 2);
·the specialist tribunal was not bound to apply the criteria used by ASIO. The tribunal should be free to act as it thinks proper (para 145, report volume 2).
These recommendations were implemented with important consequences for the Tribunal.
The broad conferral of power in s 43AAA of the AAT Act, in combination with s 61 of the ASIO Act, allows the Tribunal to examine and replace findings rather than to make a fresh binary decision to issue or not issue a security assessment. The Tribunal can confirm that the entire document is correct or alternatively express the view that parts of it contain information that is incorrect, or that the opinions formed are not justified.
The recommendations also led to ASIO being strictly constrained in its capacity to communicate information about individuals to other agencies. We will discuss those provisions below. For now, it is enough to note there are restrictions on the form in which information is communicated to other agencies – restrictions that ensure the communication and its contents are reviewable. ASIO has a wide discretion as to what information and opinions it actually includes in an assessment, but there is a strict legal requirement that the assessment relate or refer to security.
In short in a review of this kind:
(a)the Tribunal must make and record its findings in relation to the security assessment;
(b)the Tribunal may express opinions about:
(i)the correctness of information or advice in the assessment at the time the assessment was furnished to the Minister and presently;
(ii)the justification for any recommendation, opinion, advice or information in the assessment including, where the security assessment is an adverse security assessment, the justification for recommending prescribed administrative action; and
(c)the Tribunal must not make findings which supersede information in the original assessment unless it states that the information is incorrect, incorrectly represented or not relevant to the requirements of security.
Security
As noted above, there are tight restrictions on ASIO’s capacity to pass adverse information about a person to other agencies. Agencies cannot act on information provided to them unless it is provided in a document that meets the definition of a security assessment. A security assessment, in broad terms, is a document that considers whether action should be taken against a person for reasons related to security.
To properly understand this limitation, some further elaboration is required. Subsection 43AAA(3) gives the Tribunal the discretion to find that information in an assessment could not reasonably be relevant to the requirements of security and on that basis exclude it from the assessment. This reflects provisions in the ASIO Act.
The legislative scheme for security provides for the making of security assessments under the ASIO Act and the taking of prescribed administrative action in response to those assessments under other enactments, including the Passports Act. The provision of security assessments is within the framework of ASIO’s functions set out in s 17 of the ASIO Act, relevantly:
(1) The functions of the Organisation are:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security, to communicate any such
intelligence to such persons, and in such manner, as are
appropriate to those purposes;
(c) to advise Ministers and authorities of the Commonwealth in respect
of matters relating to security, in so far as those matters are
relevant to their functions and responsibilities.
(ca) …
Each of the terms, ‘security’, ‘security assessment’ and ‘prescribed administrative action’, is given a special meaning.
The word ‘security’ is given meaning in s 4(1) of the ASIO Act –
security means:
(a) the protection of, and of the people of, the Commonwealth and the
several States and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia’s defence system; or
(vi) acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from
serious threats; and
(b) the carrying out of Australia’s responsibilities to any foreign country
in relation to a matter mentioned in any of the subparagraphs of
paragraph (a) or the matter mentioned in paragraph (aa).
The term ‘security assessment’ is defined in s 35(1) of the ASIO Act -
security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.
A security assessment may take one of two forms: an adverse security assessment or a qualified security assessment. Each of these terms is defined in s 35(1) –
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 the 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.
The essential difference between the two forms of security assessment (adverse or qualified) is a decision to include or not to include a recommendation that prescribed administrative action be taken in respect of a person. Importantly, an ‘adverse security assessment’ must include a recommendation in respect of ‘prescribed administrative action’ by another government decision-maker.[14]
[14] SDCV v Director-General of Security [2021] FCAFC 51, per Bromwich and Abraham JJ at [170].
The phrase ‘prescribed administrative action’ is defined in s 35(1) -
prescribed administrative action means:
(a) action that relates to or affects:
(i) access by a person to any information or place access to
which is controlled or limited on security grounds; or
(ii) a person’s ability to perform an activity in relation to, or
involving, a thing (other than information or a place), if that
ability is controlled or limited on security grounds;
including action affecting the occupancy of any office or position under the Commonwealth or an authority of the Commonwealth or under a State or an authority of a State, or in the service of a Commonwealth contractor, the occupant of which has or may have any such access or ability;
(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) the exercise of any power, or the performance of any function, in
relation to a person under the Australian Citizenship Act 2007,
the Australian Passports Act 2005 or the regulations under either of
those Acts; or
(d) the exercise of a power under any of the following provisions of
the Telecommunications Act 1997:
(i) section 58A;
(ii) subsection 315A(1) or 315B(2);
(iii) clause 57A of Schedule 3A;
(iv) clause 72A of Schedule 3A; or
(e) the exercise of a power under subsection 32(2) of the Security of
Critical Infrastructure Act 2018.
Note: An obligation, prohibition or restriction imposed by a control order is not prescribed administrative action (see subsection (2)).
In the present case, part (c) of the definition is relevant. The prescribed administrative action ASIO recommended is the cancellation of KFDJ’s Australian travel document, namely his Australian passport. The parameters of the prescribed administrative action and considerations that are relevant to the taking of such action under an enactment shape the issues that must be considered on review of an adverse security assessment.[15]
[15] QDJM v Director-General of Security [2021] AATA 4761 at [60]-[61].
To qualify as a security assessment, the document must (by definition) set out information and any recommendation, opinion or advice on or referring to:
(a)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
(b)the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person.
If it does not, it is not a security assessment. A security assessment is the only legal mechanism for ASIO to provide information relevant to, or recommend that, prescribed administrative action be taken by other Commonwealth agencies. Section 39(1) of the ASIO Act prohibits the taking of prescribed administrative action based on anything that is not a security assessment. Consequently, one aspect of the Tribunal’s review is to ensure that the means by which ASIO has communicated information about KFDJ to the Minister for the purposes of the Minister deciding to cancel KFDJ’s passport meets the definition of a security assessment.
Nature of review of the passport cancellation request
While ASIO is responsible for providing security assessments under the ASIO Act and it can include a recommendation that prescribed administrative action be taken in respect of a person, acting upon such a recommendation in a security assessment is a matter for the responsible Minister (or an authorised person) under the particular enactment which authorises the action.
In this case, acting on the recommendation to cancel KFDJ’s passport is a matter for the Minister. The Passports Act gives the Minister broad discretion to cancel a person’s passport. A non-exhaustive list of circumstances which might trigger the exercise of the discretion are set out in s 22(2). One of these factors is the making of a refusal/cancellation request by a competent authority.[16] Section 14(1) limits the circumstances in which a refusal/cancellation request can be made as follows:
[16] The Director-General and the Deputy Director-General are competent authorities for the purposes of s 14 of the Passports Act.
(1)If a competent authority suspects on reasonable grounds that:
a)If an Australian travel document were issued to a person, the person would be likely to engage in conduct that:
i.Might prejudice the security of Australia or a foreign country; or
ii.Might endanger the health or physical safety of other persons (whether in Australia or a foreign country);… and
b)the person should be refused an Australian travel document in order to prevent the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.
If those requirements are not satisfied no cancellation request can be made.
The decision to make a refusal/cancelation request however is not a reviewable decision under s 48 of the Passports Act. It is for the Director-General to decide to make a refusal/cancellation request based on an adverse security assessment for the purposes of the Passports Act.[17] Consequently, it is only the recommendation for the taking of such prescribed administrative action in a security assessment that is within the ambit of the Tribunal’s review.
[17] MYVC v Director General of Security [2014] FCA 1447 at [15].
As noted above, the test for modifying a security assessment is to be found in section 43AAA(3). This does not involve stepping into the shoes of the decision maker and remaking that decision. Rather, it involves considering the correctness of or justification for any opinion, advice or information in the security assessment. Only if there is error in the security assessment, if the information is incorrect or the recommendation is not justified, could the Tribunal proceed to remove the recommendation from the assessment. [18]
[18] Ibid at [57] endorsing the Tribunal’s approach set out in [36].
Procedure and fairness
The Tribunal’s procedure when exercising jurisdiction conferred by s 54 of the ASIO Act is set out in s 39A of the AAT Act. The procedure requires part of the hearing to be conducted in closed session without KFDJ. In the closed part of the hearing, and only to the extent necessary, we heard the Director-General’s case in respect of confidential classified materials. In KFDJ’s absence, we tested those materials and put questions he sought to raise to the ASIO witness.
Insofar as it is possible under the restrictive procedure which s 39A of the AAT Act sets out, KFDJ has been afforded procedural fairness and provided with a reasonable opportunity to present his case.
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.
This material tells us nothing about KFDJ in particular but we are prepared to accept it as establishing that there are people travelling to the Ukraine to take part in its conflict with Russia. This is of contextual relevance. We are also prepared to accept that it provides general information about the Antipodean Resistance organisation.
Even though the UD documents have contextual relevance, they need to be approached with caution. The accuracy of the documents is unclear and has not been tested. We are concerned that some of the UD documents may well be unjustifiably prejudicial. For this reason, we approach this material with great caution and, beyond the matters identified above the material is not directly probative of any matter we must decide in respect of KFDJ.
KFDJ challenged the reliability and interpretation of materials in a document bundle headed Documents 2nd Tranche (RUD documents) filed on 8 May 2020. This bundle includes documents with redactions, including reports of the Victorian Police, the NSW Police and the Australian Border Force, and an ASIO record of interview with KFDJ on 9 October 2020. KFDJ does not have the benefit of seeing the unredacted documents, and this may limit his ability to formulate a complete and correct assessment of their contents. However, to the extent that KFDJ was present or involved in activities that are the subject of the documents in this bundle, he was in a position to offer his account of what occurred or what was said or what he intended to convey. He was provided with a reasonable opportunity to do so and, in that context, he was cautioned that, unlike him, we have access to the unredacted documents.
In assessing the confidential materials, we have discounted information we consider to be of dubious quality or reliability, and worthy of little weight. We are satisfied for the most part the information provided by ASIO is authentic, credible, relevant, currently applicable and sufficiently reliable to properly support the information included in the security assessment and the opinions and advice given is justified. This information is not contradicted by other reliable information and we have weighed it against KFDJ’s uncorroborated evidence and assertions, much of which we consider to be unreliable.
There are serious questions about the truthfulness of KFDJ’s evidence and his credibility as a witness, generally. Notwithstanding any difficulties caused to KFDJ by the requirements of confidentiality, we consider his evidence and accounts he has previously given in respect of his activities, his intentions and his conduct to be deliberately deceptive and, in substantial parts, untrue. On the confidential materials we have examined (which are referenced in our closed reasons), it is quite clear to us that KFDJ has consciously constructed accounts he has given to Australian Border Force and ASIO officials, and his evidence in these proceedings, in an attempt to deceive and to conceal the truth.
This is a matter of serious concern. It adds weight to concerns about the threat to security KFDJ represents. It adds to concerns about his intentions which he has deliberately sought to conceal.
We have carefully assessed the weight KFDJ’s evidence should be given. Where it is contradicted by other evidence that we have assessed to be reliable, we have disregarded it entirely.
In the course of the proceedings, after conclusion of the hearing but prior to finalisation of our decision, the Tribunal became aware of potentially prejudicial articles, including a link to an audio-visual recording, that were published in the news media. The articles refer to neo-Nazis in Australia.
In order to provide the parties with a procedurally fair opportunity to address these materials, and the question whether the materials are credible, relevant and significant to the matters we must decide, the articles were provided to the parties and submissions were made. Each party was heard during a resumed hearing. Each was given an opportunity to put on further evidence in response to the articles and both declined to do so. It is not necessary to set out the contents of the media articles.
We have carefully considered the written and oral submissions of the parties. For the reasons that follow, we have decided to admit the articles into evidence but we give them no weight.
We accept KFDJ’s submission that there are unanswered questions about the provenance of the materials. The materials have clearly been edited and we have no reliable information about how they were obtained and in what circumstances.
The audio-visual material that is linked to one of the articles contains a recording of a person who might be KFDJ. KFDJ denied that it was him in the recording. Furthermore, the source of this material and the manner in which it was produced is not clear. It appears that the recording has been edited and compiled from original material that we have not seen. Even if it is KDFJ in the recording, it is difficult to properly evaluate the material without additional information as to the circumstances in which it came into existence.
We accept the submission of the Director-General that there is sufficient relevant material before the Tribunal on which to decide this application, without relying on the material published in the media. We have admitted the material into evidence, but we have decided it can be given no weight as, to our minds, the material is untested.[19]
[19]VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [17]-[18].
Issues
The issues to be decided in this review are whether, at the time the assessment was furnished to the Minister and presently:
(a)the minimum requirements for a ‘security assessment’ are satisfied;
(b)the information set out in the security assessment is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security;
(c)the recommendations, opinions and advice in the security assessment are correct or justified.
Are the minimum requirements for a ‘security assessment’ satisfied?
By definition, a ‘security assessment’ must have the following attributes:
(d)it must be a statement in writing;
(e)the statement must be furnished by ASIO to (among other entities) a Commonwealth agency (in this case the Minister for Foreign Affairs);
(f)it must express a recommendation, an opinion or give advice on, or otherwise refer to either of the following questions:
i.whether it would be consistent with the requirements of security for prescribed administrative action (in this case the cancellation of KFDJ’s passport) to be taken in respect of a person (in this case KFDJ); or
ii.whether the requirements of security make it necessary or desirable for prescribed administrative action (in this case the cancellation of KFDJ’s passport) to be taken in respect of a person (in this case KFDJ).[20]
[20] Definition of security assessment or assessment in section 35 of ASIO Act.
If ASIO’s assessment does not meet all these requirements, it is not a security assessment and, by operation of s 39 of the ASIO Act, the Minister cannot take any prescribed administrative action in relation to it.
The adverse security assessment (Assessment) provided to KFDJ is in an unclassified bundle of documents filed on behalf of the Minister for Foreign Affairs on 27 March 2020, headed 1st Tranche (DFAT documents). It is in the following terms –
1. Security Assessment Subject
[KFDJ]
2. Name of Commonwealth Agency
Department of Foreign Affairs and Trade [DFAT]
3. Purpose of security assessment
To provide security advice to the Minister for Foreign Affairs and Trade on whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken under the Australian Passports Act 2005 (Cth) in respect of [KFDJ].
4. Head of security
Pursuant to section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth), the protection of, and of the people of, the Commonwealth and the several States and Territories from the promotion of communal violence and politically motivated violence.
5. Assessment
For the reasons set out in the statement of grounds (attached), the Australian Security Intelligence Organisation (ASIO) suspects on reasonable grounds that:
a. If [KFDJ] were to continue to hold an Australian travel document, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
b. His Australian travel document should be cancelled in order to prevent him from engaging in the conduct.
ASIO assesses that the requirements of security make it necessary or desirable for the Minister for Foreign Affairs to cancel the travel document held by [KFDJ].
6. Recommendation
ASIO recommends that the Minister for Foreign Affairs cancel any travel document issued to [KFDJ].
ASIO also recommends that a further security assessment be requested from ASIO if [KFDJ] applies for an Australian travel document.[21]
[21] DFAT3-DFAT4.
Under s 37(2) of the ASIO Act all of the information in a ‘statement of grounds’ for a security assessment is taken to form part of the assessment. In order to assist understanding, we will set out in full the unclassified Statement of Grounds (Grounds) that was provided to KFDJ[22] –
[22] Letter to KFDJ, 16 January 2020, folios DFAT3 TO DFAT7.
Subject
1. [KFDJ]
Summary
2. ASIO assesses that [KFDJ]:
a. Likely adheres to an extreme right wing ideology supportive of the promotion of communal violence (PCV), and maintains a role within the Australia-based extreme right-wing (XRW) group, Antipodean Resistance (AR).
b. Likely intends to travel to the Ukrainian conflict zone to engage in acts or [sic], or acts in support of, politically motivated violence (PMV).
3. ASIO suspects on reasonable grounds that:
a. If [KFDJ] were to continue to hold an Australian travel document, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
b. His Australian travel document should be cancelled in order to prevent him from engaging in the conduct.
4. ASIO assesses that [KFDJ] would be likely to engage in acts of, or in support of, PCV and/or PMV if he were to continue to hold an Australian travel document.
Recommendation
5. Accordingly, ASIO recommends that [KFDJ’s] Australian travel document should be cancelled in order to prevent him using his travel document to engage in conduct that might prejudice the security of Australia or a foreign country.
6. ASIO also recommends the Department of Foreign Affairs and Trade (DFAT) seek a further security assessment from ASIO if [KFDJ] makes a new application for an Australian travel document.
Legal framework
7. This security assessment is made under Part IV of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).
8. The purpose of this security assessment is to advise whether the requirements of security [as defined in section 4 of the ASIO Act] make it necessary or desirable for the Minister for Foreign Affairs to cancel the Australian travel document held by [KFDJ].
9. Pursuant to section 14(1) of the Australian Passports Act 2005 (Cth), the Director-General of Security may make a travel document cancellation request to the Minister for Foreign Affairs in relation to [KFDJ] if he suspects on reasonable grounds that:
a. If [KFDJ] were to continue to hold an Australian travel document, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
b. His Australian travel document should be cancelled in order to prevent him from engaging in the conduct.
Assessment
[KFDJ] likely adheres to an extreme right wing ideology supportive of the promotion of communal violence, and maintains a role within the Australia-based extreme right-wing group, Antipodean Resistance.
10. ASIO assesses [KFDJ] adheres to an XRW national socialist and neo-Nazi ideology supportive of PCV.
a. [KFDJ] has been a member of the Australian-based group, AR. ASIO assesses AR members subscribe to a traditional national socialist and neo-Nazi ideology underpinned by a white supremacist belief that the white Aryan race is superior and must be protected. ASIO assesses AR’s ideology includes an inherent support for the use of violence in furtherance of their XRW beliefs.
[KFDJ] likely intends to travel to the Ukrainian conflict zone to engage in acts or, or acts in support of, politically motivated violence.
11. ASIO assesses [KFDJ] intends to use his Australian passport to travel to Ukraine and engage in acts of, or in support of, PMV in the Ukrainian conflict zone.
Intelligence sourcing
12. This assessment incorporated intelligence obtained from:
a. ASIO investigation of [KFDJ]
Consequences to security and risk mitigation
13. ASIO assesses, based on [KFDJ’s] adherence to an XRW ideology, membership of XRW group, and his intent to travel offshore to engage in PMV, that if [KFDJ] is permitted to travel overseas using an Australian travel document, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, and his Australian travel document should be cancelled in order to prevent him from engaging in the conduct.
Matters taken into account
14. The matters taken into account in this assessment are relevant to security. Regard has been given to the requirements of procedural fairness, relevant legislative tests, the currency, credibility, nature and authenticity of the relevant information and sources available to ASIO, including what weight should be accorded to the available information. Only information with a reasonable nexus to the assessment subject and the relevant requirements of security has been taken into account.
15. ASIO is conscious that depriving a person of a travel document is a serious matter and has considered carefully the consequence of this adverse Security Assessment for [KFDJ]. These include consequences of travel document cancellation which are common to any person such as the ability to travel abroad freely. [KFDJ] may also be subject to loss of family assistance, parental leave pay, dad and partner pay, social security payments and/or concession cards. Notwithstanding these considerations, ASIO considers that the proposed cancellation of his Australian travel document is appropriate and proportionate to the assessed risk to security should he continue to hold an Australian travel document.
The key question which the Assessment and the Grounds must refer to in order to be a security assessment is whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken under the Passports Act by the Minister for Foreign Affairs to cancel the Australian travel document held by KFDJ.
This question is expressly referred to in cl 3 of the Assessment and cl 8 of the Grounds.
The phrase the requirements of security is to be construed by reference to the defined meaning of security in s 4(1) of the ASIO Act.[23] Subject only to Australia’s responsibilities to any foreign country in part (b) of the definition (which are not invoked in this case), security is squarely focussed on the protection of Australia and Australians from certain conduct, including politically motivated violence and the promotion of communal violence. One central allegation levelled against KFDJ is that he intends to go overseas and fight in Ukraine. While that may involve acts of politically motivated violence it does not necessarily engage the interests of security given that no Australian is likely to be the subject of the politically motivated violence.
[23] SDCV v Director-General of Security [2021] FCAFC 51, per Bromwich and Abrahams JJ at [175], citing Jaffarie v Director -General of Security [2014] FCAFC 102 at [64]-[65].
It is the protection of Australia and Australians from politically motivated violence and promotion of communal violence that needs to be addressed for the assessment in KFDJ’s case to be concerned with the ‘requirements of security’. Within this frame the requirements of security have a broad ambit that includes prospective risks adverse to the interests of Australia and Australians - “The adverse affection or risk of adverse affection of any of their interests from conduct of those kinds is a matter of security”.[24]
[24] Church of Scientology v Woodward [1982] HCA 78, per Brennan J at [10].
Nonetheless, a person engaging in politically motivated violence or other violence outside Australia does not necessarily raise a ‘security’ concern for the purposes of the ASIO Act. Politically motivated violence and promotion of communal violence are defined terms. The definition of politically motivated violence includes acts of violence intended to achieve a political objective, influencing the policy of a government, whether in Australia or elsewhere. Subject only to part (b) of the definition of security, this expansive definition does nothing to diminish the overriding limitation in part (a) of that definition, which is primarily directed to the protection of Australia and Australians. Accordingly, if information that was available only suggested an Australian was going to engage in acts of politically motivated violence in another country, the actions might amount to politically motivated violence, but they would not relate to security in the defined sense unless that conduct could be linked back to the objective of protecting Australia or Australians, or it involved the carrying out of Australia’s responsibilities to a foreign country.
Consequently, it is important not to be distracted by the width of the definition of politically motivated violence when considering whether the requirements of security make it desirable to take prescribed administrative action.
On its face the open statement of grounds does not address a question relevant to the requirements of security. It states the question it needs to meet the definition of a security assessment, but substantively only deals with the risk of politically motivated violence and promotion of communal violence overseas which is not necessarily a security issue. To fully appreciate why KFDJ engages a security issue it is necessary to consider the full unredacted grounds which we are not able to disclose to KFDJ or the public.
On that material, as the counsel for the Director-General explained in open submissions, the risk to security was identified as not just that KFDJ may engage in politically motivated violence overseas, but he may:
(1)become further radicalized;
(2)develop combat or technical skills and experiences that can be deployed in Australia; and
(3)seek to recruit and radicalize others to engage in acts of politically motivated violence or communal violence.[25]
[25] Transcript, Public Hearing, 22 February 2021, page 23.
This submission was expanded upon in the closed hearing. Considering this and the confidential materials in evidence, including the unredacted grounds, we are satisfied the Assessment and the Grounds meet the minimum requirements for a security assessment and the question of whether it would be consistent with the requirements of security for KFDJ’s passport to be cancelled is substantively referred to..
Some of the language used in the Assessment and the Grounds is derived from s 14(1)(a) of the Passports Act, which makes it more difficult to determine whether the document meets the requirements of a security assessment. Before the refusal/cancellation request can be made, the Assessment and the Grounds must refer to the relevant question required to make the document a security assessment. The question whether a person is ‘likely to engage in conduct that might prejudice the security of Australia or a foreign country’ (a test drawn from section 14 of the Passports Act) exceeds the parameters of security, because Australia’s responsibilities to a foreign country under part (b) of the defined meaning of security do not arise in this case. Having considered the submissions we received, this shortcoming can be addressed by excision of the words ‘or a foreign country’ in paragraphs [5] of the Assessment and paragraphs [3], [5], [9] and [13] of the Grounds.
With these amendments, we are satisfied that the complete Assessment and the Grounds (including the confidential material) amount to a ‘security assessment’ for the purposes of Part IV of the ASIO Act.
KFDJ asserts the security assessment is invalid because he was not notified of it within the 14 day period prescribed in s 38 of the ASIO Act.
There are two difficulties with this submission. Firstly, under s 38(1) of the ASIO Act, the 14 day notice period runs from the day after the assessment was furnished to the Minister and the notice requirement is subject to the operation of s 48A of the Passports Act. Secondly, the submission is not consistent with the facts.
The Minister issued KFDJ a notice of the security assessment dated 16 January 2020. KFDJ asserts he received the notice on 19 January 2020. On the confidential materials we have examined, this was within 14 days of the Assessment being furnished to the Minister. The proposition the prescribed period was not complied with is not made out.
Is the information set out in the security assessment incorrect, incorrectly represented or not reasonably relevant to the requirements of security?
The following factual propositions are set out in the Assessment and the Grounds:
(a)KFDJ adheres to an extreme right-wing ideology that supports the promotion of communal violence;
(b)KFDJ maintains a role within the Australia-based extreme right-wing group, Antipodean Resistance;
(c)KFDJ intends to travel to the Ukrainian conflict zone to engage in acts of, or in support of, politically motivated violence;
(d)[REDACTED];
Our findings in respect of each of these propositions are set out below.
KFDJ asserts that the security assessment is factually incorrect. He says that:
(a)he is not a member of Antipodean Resistance, or any other right-wing extremist group (although he knows people who are);
(b)he has never been engaged in any activities in Australia conducted by right-wing extremist groups;
(c)he does not hold a right-wing extremist ideology;
(d)he never intended leaving Australia to go to or fight in Ukraine;
(e)He was leaving Australia to pursue a personal relationship;
(f)To the extent there is evidence of him engaging in antisocial behaviour with a national socialist tinge, it is a case of mistaken identity.
Proposition (a): KFDJ adheres to an extreme right-wing ideology that supports the ‘promotion of communal violence’
The Director-General asserts that KFDJ holds an extreme right-wing ideology that supports the promotion of communal violence, and this is evident in KFDJ’s conduct, activities and apparent beliefs. The Director-General argues that KFDJ’s conduct is a clear demonstration of the ideology he adheres to and this is given further expression in his role in Antipodean Resistance. In the Director-General’s submission, KFDJ’s extreme right-wing beliefs are clearly apparent in views he has expressed, including in relation to his reading material setting out extreme right-wing ideologies and from other matters disclosed in the open and confidential material.
KFDJ rejects this notwithstanding that there are police reports which link him to antisocial, national socialist activities. In his submission, he says the Director-General’s assertions are baseless and misguided as were the conclusions drawn by Australian Border Force personnel who spoke with him at Melbourne airport when he attempted to leave the country in January 2020. He argues the reports provided by the Victoria Police and the NSW Police are flawed as they do not relate to him, personally, and he has not been formally interviewed or charged with any offence. KFDJ denies involvement with Antipodean Resistance and he denies involvement in conduct or activities related to extreme right-wing ideologies such as stickering or postering. He denies holding to any ideology or political system but maintains his Catholic faith. He argues that the Director-General has misconstrued intellectual curiosity and reading materials that were seized from his home as evidence of ideological adherence. He submits that ASIO has made a series of unproved allegations against him and it has acted in a reprehensible manner.
We should say immediately, to our minds, on the evidence placed before us, this is not a matter in which ASIO has engaged in reprehensible conduct, leaping at shadows or dressing up innocuous conduct or activities into something more sinister. The evidence before the Tribunal, and in particular the confidential evidence, reveals a persona very different from the one KFDJ offered at the open hearing.
The evidence given by Mr Ward in open and closed parts of the hearing is that KFDJ adheres to an extreme right-wing ideology that supports the promotion of communal violence. Mr Ward’s evidence on this point is drawn from intelligence obtained in relation to KFDJ. As will appear, we are satisfied those materials contain information which objectively supports a finding KFDJ adheres to an extreme right-wing ideology which is inherently violent and which promotes communal violence in Australia.
On the materials we have examined (including the confidential materials which we refer to in our closed reasons) and applying the thresholds we have discussed above, we are satisfied the information which supports Proposition (a) is correct and is correctly represented in the security assessment.
There is cogent evidence KFDJ adheres to an extreme neo-Nazi, white supremacist, national socialist or fascist ideology that promotes communal violence and politically motivated violence. This material suggests he holds strong anti-Semitic, anti-homosexual, white supremacist, racist and authoritarian views.
The materials are sufficient to support a finding that KFDJ has engaged in activities involving –
(a)the abuse of and violence towards people in the Australian community on the basis of their sexuality and their race; and
(b)the public posting of propaganda that promotes violence against groups within the Australian community on the basis of race.
That being so, we are satisfied the proposition KFDJ adheres to an extreme right-wing ideology which promotes communal violence is correct.
The evidence on which we have made those findings is as follows. On 17 August 2019, KFDJ was identified by Victoria Police officers as one of 5 occupants of a vehicle which had been allegedly involved in a road rage incident.[26] It is reported that the 5 men were “wearing what appeared to be Australian Army issue cammo pants with matching boots and hats”.[27] A number of weapons, including hunting knives, firearms and ammunition were found in the vehicle. One of the men in the vehicle, who we will refer to as ‘M’, was identified as a person “to be field interviewed for Offensive Behaviour and Post Bills (swastikas and Antipodean Resistance stickers in Caulfield)”. Another of the occupants, who we will refer to as ‘T’, is reported to have had a previous offence, namely “Last offence for [T] was Post Bills for the ‘Antipodean Resistance Movement’”.[28]
[26] RUD29.
[27] RUD4.
[28] RUD4.
It is further reported that –
Earlier in the afternoon on 17-Aug-2019, at 1600 hrs, the five males identified above, attended KFC Colac. One of the males reportedly threw a bottle at an Asian family, followed by potato and gravy being thrown onto a second Asian couples’ car. One of the males also slapped the female KFC manager in the face.[29]
[29] RUD6.
KFDJ denies being present or involved in this incident.
That denial is not consistent with the matters set out in the records provided by Victoria Police. The materials we have examined (including confidential materials) are sufficient to satisfy us that KFDJ’s sworn evidence on this point is untruthful. We are satisfied he was accurately identified by the police as being present in the vehicle and at the KFC where the attacks occurred.
[REDACTED]
We note that some of the contents in the Victoria Police report amount to hearsay and on their own they may not be sufficient to establish the facts stated. However, the conduct they describe is entirely consistent with conduct disclosed in the confidential material and is sufficiently corroborated by the confidential material.
On 13 July 2018, NSW Police produced a report in respect of an incident allegedly involving KFDJ on 30 June 2018.[30] The incident involved a same sex couple and the report states –
“… VIC1 and VIC2 were standing in line at the Main Bar of the Oxford Hotel holding hands. The P/N [allegedly KFDJ] approached them and said words to the effect of “You lesbians disgust me” and continued with abusing words. The P/N became very confrontational … he then became aggressive and grabbed VIC1 around her neck…”[31]
[30] RUD103.
[31] RUD103.
This record of a complaint against KFDJ was not taken any further and the allegations it contains have not been tested or proved in a court. It is not insignificant that KFDJ was positively identified by Police as the protagonist.
KFDJ contests the report on grounds that the description recorded does not match his appearance.[32] We are satisfied that there are good reasons to accept that the report is in respect of KFDJ. Consistent with other NSW Police reports in respect of KFDJ (to which we will shortly return), it contains KFDJ’s CNI reference, name, date of birth and (then) address. KFDJ was living in the area at the time and the behaviour is consistent with matters disclosed in the confidential materials. We regard it as sufficiently corroborated to be appropriate to include in the security assessment.
[32] RUD102.
[REDACTED]
On the confidential materials we have examined, there are cogent reasons to find KFDJ holds strong negative views about non-white races and homosexuality and he engaged in and promoted acts of violence against people or groups in the community on grounds of race and sexuality.
[REDACTED]
On 18 May 2018, NSW Police reported the following –
“… BATHURST AQUATIC CENTRE CARPARK VEH … OWNER [KFDJ] … the VEH has driven into the car park at the Bathurst Aquatic Centre. The VEH has one person seated in the passenger seat and one in the drivers seat. At the time the VEH has parked for a short time and had both front windows open with very loud audio coming from the VEH. The audio was similar to a political speech about the “National Revolutionary State Army”… The OWNER of this vehicle has recent related intel to ‘National Socialists’. Previous event states the OWNER is the only person who drives this VEH. Intel submitted due to recent, possibly racially motivated, incidents.”[33]
[33] RUD105.
A NSW Police report on 7 June 2018 records the following information in respect of KFDJ –
“… POI 1 [KFDJ] … POI 1 is residing with POI 2, POI 2 has now become involved, due to POI 1 influence, in posting anti Jewish and anti Black propaganda around the Bathurst area, the latest being at the A/L. Poster states “Race mixers get the rope”…”[34]
[34] RUD105.
It is unclear how or why the NSW Police have formed the view that KFDJ influenced the person responsible for posting the offensive posters and influencing POI 2, but it is significant that a member of the NSW Police recorded such a view.
In a further NSW Police report on 8 June 2018, KFDJ and 2 others were linked to race-related posters –
“T/D 1400 (08/06/2018) LOC Bentinck Street, Bathurst POI 1 [KFDJ] … A poster was observed on a ‘keep left’ sign on the medium strip at the above location. The sign stated “Blacks get the rope” with a picture of a noose. A similar poster was located in town recently with the above POIs being identified…”[35]
[35] RUD104
This material is also not tested, and again on its face does not disclose the basis on which the police suspect that KFDJ was responsible. KFDJ denied any involvement in his sworn evidence.
Nevertheless, on the confidential material we have examined, which we consider to be authentic and reliable, we are satisfied that it is likely KFDJ was present during these incidents reported by Victoria Police and NSW Police and that these are acts in promotion of communal violence.
[REDACTED]
On 19 January 2020, KFDJ was prevented from leaving Melbourne Airport on an international flight to Belgrade, as his passport had been cancelled.
Australian Border Force officers produced a report in which it was stated –
“[KFDJ] is assessed to adhere to an Extreme Right Wing (XRW) ideology, which supports violent extremism.”[36]
[36] RUD46.
On 9 October 2020, KFDJ was interviewed by ASIO officers. A redacted record of this interview has been provided to KFDJ. The Tribunal has before it the redacted and unredacted records of interview.
In the course of the interview, it appears that KFDJ was asked about his views. We note the following records –
“[[KFDJ] said people can either fight the system or withdraw from the system, which was what ‘the man himself’ James Mason had written in his book ‘Siege’. [KFDJ] said he wanted to live on a farm where he was not required to be connected or participate in the system at all.”[37]
“[KFDJ] said ‘anyone who has read a history book would understand how fucked the world was, especially with the state of the current government’. [KFDJ] said modern society had the same primed conditions experienced 100 years ago, such as the decay of society and degeneracy in the streets. [KFDJ] said Adolf Hitler had described these exact conditions in Mein Kampf and that when he had read Mein Kampf he had thought ‘is this guy predicting the future?’. [KFDJ] was asked how far the world was from having a leader like Hitler. [KFDJ] said the world will not give oxygen to theories or individuals who went against its current interests. [KFDJ] said this was the reason why ‘people like him’ did not want to voice their opinion as it would just land themselves in trouble and be labelled as a Nazi or a Fascist, which [KFDJ] said were derogatory terms. [KFDJ] said if he publicly expressed his views he would be unable to gain employment and would be ostracised from society.”[38]
“[KFDJ] said accelerationism would occur on its own and no one needed to interfere or attempt to incite it using violence. [KFDJ] said there would be a point in time when the social, cultural and political situation would become so dire that people would have no choice but to do something about it.”[39]
[37] RUD151.
[38] RUD151.
[39] RUD151-RUD152.
We understand that the word ‘accelerationism’ refers to a radical political conception in which political objectives may be achieved by accelerating and destabilising perceived flaws or destructive tendencies inherent to or produced by the prevailing order. Furthermore, it is a matter of public record that ‘accelerationism’ is used by extreme right-wing groups, including white supremacist, neo-Nazi and national socialist groups, to mean preparing for and fomenting a race war, or boogaloo, by encouraging or conducting proactive violence and hastening the collapse of society by violent means. Having closely examined the evidence, we are satisfied, notwithstanding his denials, KFDJ adheres to and actively promotes such ideas.
[REDACTED]
KFDJ attacked the reliability of the ASIO record of interview, observing that the interview was not recorded and the written record contains an obvious error, namely a reference to him living in the United Kingdom when he had only lived in Australia. We accept that this record is incorrect but, in the context of the confidential materials we have considered, little turns on the error. Having heard KFDJ give evidence and his views on certain matters we are confident that the record of interview, while not perfect, captures reasonably accurately what KFDJ said.
[REDACTED]
On close examination of confidential materials to which we have referred, it is apparent that KFDJ’s professed willingness to give credence to the views of Adolf Hitler, among a range of views, is somewhat understated. We accept that KFDJ has read historical texts, ranging from Mein Kampf and The Communist Manifesto to George Orwell’s 1984, James Mason’s Siege, the writings of Oswald Mosely and a book of Islamic poetry. He told us that he “liked to understand concepts from a variety of perspectives”.[40]
[40] RUD151.
We do not accept the proposition that KFDJ is simply a person with an intellectual interest in historical political ideas and we are not persuaded that his denial of adherence to any political system or ideology is truthful. The confidential materials we have examined satisfy us that his interest is squarely focused on pursuing radical change in Australia based on conceptions of white supremacist, neo-Nazi, national socialist or fascist ideology.
[REDACTED]
In our assessment of the evidence, there are reasonable grounds to find KFDJ’s ideology is based on white supremacy and ‘human quality’ in which the problems he perceives, including the decay of society and degeneracy in the streets to which he referred when interviewed by ASIO officers on 9 October 2020, will be addressed when accelerationism causes people to do something about it.
There are also reasonable grounds to find KFDJ has engaged in actions that are inconsistent with his claimed view that there is no need to interfere in the accelerationism. Rather than not interfering, the confidential materials we have examined support an assessment KFDJ has engaged in conduct promoting communal violence for the purpose of accelerating the extreme ideological changes he desires, and the conduct in which he has engaged exemplifies the extreme right-wing ideological views he holds, albeit these views are closely veiled and deliberately obscured when he is directly questioned about them.
[REDACTED]
Accordingly, we are satisfied ASIO is justified in forming the opinion that KFDJ adheres to an extremist ideology supportive of the promotion of communal violence. This is a matter of relevance to security at the time the security assessment was furnished to the Minister and presently. We are satisfied the information on which that assessment is based is not incorrect or incorrectly represented.
Proposition (b): KFDJ maintains a role within the Australia-based extreme right-wing group, Antipodean Resistance
The Director-General asserts that KFDJ is a member of the neo-Nazi group Antipodean Resistance. In the Director-General’s submission, Antipodean Resistance is an informal group comprised of like-minded people who adhere to an extreme right wing neo-Nazi national socialist ideology in which KFDJ played an active role. KFDJ assumed a role in this group, the Director-General asserts, in which he promoted communal violence. The Director-General accepts the group may have fractured or disappeared from view but says the role KFDJ assumed in Antipodean Resistance has had enduring consequences, to the extent that his role is recognised by others who share his extreme ideological views.
KFDJ denies all this. He asserts that, even though he knew people who were involved with Antipodean Resistance, he was not a member of the group. It is his submission that the Director-General has misconstrued associations he had with people involved with Antipodean Resistance, when in fact those associations are innocent expressions of free association that do not threaten security in any way. Understood in context, he says those associations are innocuous.
KFDJ does not deny Antipodean Resistance is a group with extreme views. The ideology represented in materials published by Antipodean Resistance (which are in evidence) is described as “National Socialism” and is based on conceptions of white racial superiority,[41] “human quality”[42] and fighting – “We want the fanatics, the people who care and who will fight, both during activism and during their day to day lives to bring about the beauty that is National Socialism”.[43] He does, however, deny involvement and says the group did not promote violence.
[41] UD31.
[42] UD1.
[43] UD3.
We are satisfied KFDJ’s evidence about his lack of involvement in Antipodean Resistance is deliberately untruthful. He denied he was a member of Antipodean Resistance but was able to demonstrate knowledge of the group, including that “the group was no longer active”, “members of Antipodean Resistance were involved in activism and were not fond of the Australian government”, “Antipodean Resistance did not advocate or encourage anyone to engage in PMV”, and “he was confident he had met people and had friends who were members of these groups”.[44] KFDJ is reported to have told ASIO officers that he may have associated and been friends with people involved in Antipodean Resistance, but “he had not been told explicitly whether they had been members or not”.[45] On the confidential materials we have examined, we are satisfied this is untrue and find that he has attempted to conceal his role in Antipodean Resistance and his associations with people involved with Antipodean Resistance, such as ‘M’ and ‘T’ for example, over an extended period.
[44] RUD150.
[45] RUD150.
[REDACTED]
In addition to this material, the matters KFDJ discussed when asked about Antipodean Resistance by ASIO officers in October 2020 demonstrate a depth of knowledge and opinion that belies his representation of himself as an uninvolved but curious onlooker. There is cogent material on which to find this is untrue and that KFDJ [REDACTED] engaged in racially motivated propaganda activities with Antipodean Resistance, promoting communal violence from December 2017 at least.[46] These findings are made on confidential materials we have examined and consider to be authentic, relevant and sufficiently reliable to corroborate material in the police reports.
[46] UD25-UD28, RUD104-RUD105, UD228-UD236 and UD233-UD234.
[REDACTED]
The proposition KFDJ maintained a role within the Antipodean Resistance group is a matter of relevance to security. On the evidence we have examined, the information in the security assessment supporting this proposition is not incorrect or incorrectly represented.
That said, as the Director-General has suggested, there is a question about the current status of Antipodean Resistance. We are satisfied that Antipodean Resistance is properly characterised as an informal group involving people with an interest in promoting extreme neo-Nazi, national socialist and white supremacist ideals. It exists by association of members and in the conduct of activities. Where in the past it may have achieved a limited public profile, using internet forums and engaging in public postering activities for example, the group is inherently secretive, concealing the identities of those involved and undertaking activities covertly. The question whether it continues to operate by way of association and activity or in any form is not clear.
We are not satisfied it is incorrect to say members of Antipodean Resistance, including KFDJ, continue to associate, albeit in covert forums and networks with similar extreme right wing neo-Nazi, national socialist and white supremacist ideals and objectives (such as the National Socialist Network). There are reasonable grounds to conclude that KFDJ maintains a prominent role in such forums and networks. We are satisfied there is a real possibility KFDJ presently maintains a role in Antipodean Resistance or, if the group has fragmented, among the adherents who previously gave it form and others of like mind.
[REDACTED]
[REDACTED]
These are matters relevant to security. On balance, the evidence is not sufficient to support a finding the group no longer exists or that KFDJ no longer has any role. In our assessment, the information in the Assessment and the Grounds has currency and it is not incorrect or incorrectly represented.
Proposition (c): KFDJ intends to travel to the Ukraine conflict zone to engage in acts of, or in support of, politically motivated violence.
Proposition (d): [REDACTED][47]
[47] Proposition D is dealt with in our confidential reasons.
The Director-General asserts that KFDJ intends to travel to the conflict zone in Ukraine to engage in acts of politically motivated violence or acts supporting politically motivated violence and/or the promotion of communal violence.
KFDJ denies this, asserting that he had no intention of travelling to Ukraine. In his submission he was simply intending to travel to Serbia to visit family members, and to go camping and hunting. KFDJ suggests that he wanted to visit his girlfriend’s family in order to ask permission for him to marry her. He explained that he intended to seek employment in his trade as an industrial electrician.
KFDJ submits that the Director-General has misconstrued his intentions and incorrectly attributed a malign purpose to his travel plans. He denies any interest or involvement in activities associated with politically motivated violence.
The term ‘politically motivated violence’ is relevantly defined in s 4(1) of the ASIO Act –
politically motivated violence means:
(a) acts or threats of violence or unlawful harm that are intended or
likely to achieve a political objective, whether in Australia or
elsewhere, including acts or threats carried on for the purpose of
influencing the policy or acts of a government, whether in Australia
or elsewhere; or
(b) acts that:
(i) involve violence or are intended or are likely to involve or lead
to violence (whether by the persons who carry on those acts
or by other persons); and
(ii) are directed to overthrowing or destroying, or assisting in the
overthrow or destruction of, the government or the
constitutional system of government of the Commonwealth or
of a State or Territory; or
(ba) acts that are offences punishable under Subdivision A of
Division 72, or Part 5.3, of the Criminal Code; or
(c) 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
(d) acts that:
(i) are offences punishable under the Crimes (Internationally
Protected Persons) Act 1976; or
(ii) threaten or endanger any person or class of persons specified
by the Minister for the purposes of this subparagraph by notice
in writing given to the Director‑General.
The Director-General ventilated matters exclusively relevant to section (a) of the definition of ‘politically motivated violence’ in this case. That being so, we do not propose to address other parts of the definition in these reasons. As noted above, not every act of politically motivated violence is relevant to the requirements of security, but in this case it is an important stepping stone on the way to consideration of that question.
There are three key tenets in Propositions (c) and (d): the first is that KFDJ intends travelling to Ukraine; the second is that he intends to do so in order to engage in acts of, or in support of, politically motivated violence; and the third is dealt with in our closed reasons.
As will appear, we are satisfied that each of these conclusions is correct.
KFDJ has always denied that it was his intention to travel to the Ukraine and to enlist in organisations supportive of Ukraine in its conflict with Russia. He has provided differing explanations for his intended travel overseas on 19 January 2020. When questioned about his intended travel by Australian Border Forced officers at Melbourne airport on 19 January 2020, KFDJ is reported to have stated, among other things –
“…
He is travelling to Serbia.
…
He will be travelling for approximately two months.
He does not have a return ticket yet.
…
He will be visiting and staying with extended family such as uncles, aunties and cousins - nfd.
He is travelling now as it is his families ‘Slava’.
…
He might meet an ex-girlfriend who currently lives in Serbia.
…
He will not be visiting any other countries.
…
He will spend his time in Serbia with family and travelling around the country.
…
He also plans on spending some time backpacking and camping in forests.
…”[48]
[48] RUD51-RUD52.
On further questioning by Australian Border Force officers, KFDJ is reported to have stated –
“He may go to the UK for work on this trip.
He may undertake work in the UK as an electrician.
He has had a number of offers for work there.”[49]
[49] RUD53.
There is however evidence which contradicts this.
[REDACTED]
Notwithstanding that there may be elements of truth in KFDJ’s varying accounts of his plans, we are satisfied KFDJ planned to travel to the Ukrainian conflict zone in order to engage in military style training and violent combat, and he sought to conceal his true intentions prior to his planned departure.
There is also evidence concerning KFDJ’s longer term plans. In a statement given on 9 October 2020, KFDJ is reported to have said –
“he had no definitive plans on what he would do after travelling to Serbia, however he said he had considered moving to the United Kingdom where he could obtain work as an electrician. [KFDJ] reiterated that he saw no future for himself in Australia and wanted to live overseas.”[50]
[50] RUD148.
ASIO officers who interviewed KFDJ reported that he “‘needed’ to receive his passport within the next two years” as “there was nothing in Australia for him and that he did not want to live here” and “he could not understand why ASIO would want him to remain in Australia when he did not want to be here at all”.[51]
[51] RUD147-RUD148.
KFDJ’s purported desire to leave Australia permanently is contradicted by other materials available to us. We note that KFDJ is reported to have told Australian Border Force officers that he intended to travel for 2 months although he had not yet purchased a return ticket.[52] This raises the real possibility he harboured an intention to return to Australia. So, too, does KFDJ’s stated intention to have his European girlfriend join him in Australia.[53] This conclusion is reinforced by confidential materials we have examined.
[52] RUD51.
[53] RUD149.
[REDACTED]
Even though KFDJ has expressed and may feel disaffection for Australia, [REDACTED]. In the Director-General’s submission there is a risk KFDJ might return more radicalised, with increased knowledge and experience of violence which could be deployed in Australia, and with a greater capacity to promote or engage in communal violence in Australia, which he may then actively pursue by recruiting and radicalising others. In our assessment of the materials, the opinions ASIO have formed in this regard are justified. This engages Australia’s security interests and raises a legitimate security concern.
Our assessment on this point is based on the following material and findings.
On 19 January 2020, KFDJ was questioned by Australian Border Force officials about conflict in the border region between Russia and Ukraine. KFDJ stated –
“The Russians are imposing themselves on other countries.
They were causing some trouble in the Crimea region but he didn’t know much about it, only what he had seen on the news.
He is unaware of any conflict that involves Ukraine.”[54]
[54] RUD54.
If KFDJ was aware of ‘trouble in the Crimea region’ from watching news reports, as stated and confirmed in his evidence, the proposition that he was not aware of any conflict involving Ukraine is implausible. On confidential materials we have examined, we are satisfied it is likely KFJD had an interest in and knowledge of the Ukrainian conflict zone and some of the militias active there well before his planned departure on 19 January 2020. His statements to the contrary are, in our assessment, a deliberate attempt to mislead Australian Border Force officials.
[REDACTED]
When KFDJ was interviewed by ASIO officers on 9 October 2020, he is reported to have said he had not discussed travelling to Ukraine with anyone,[55] and -
“as far as he was aware, most foreigners who travelled to Ukraine would just join the Ukrainian army. [KFDJ] was asked if [he? (sic)?] would ever travel to Ukraine to join a military or paramilitary group. [KFDJ] said ‘who knows’. [KFDJ] said had looked into different military and paramilitary groups active in Ukraine after ASIO had cancelled his passport. [KFDJ] said as far as he was aware there were no proscribed terrorist organisations in Ukraine. [KFDJ] said almost all military and paramilitary groups in Ukraine were covertly or overtly funded by the American government. [KFDJ] said these groups had stringent application and vetting processes and would not accept terrorists or political extremists into their ranks. When asked about the specifics on the application and vetting process, [KFDJ] said he was not sure. [KFDJ] again said he had only looked into military and paramilitary groups in Ukraine after ASIO cancelled his passport.”[56]
[55] RUD148.
[56] RUD149.
We have examined materials which satisfy us KFDJ was aware of military and paramilitary groups operating in Ukraine prior to the cancellation of his passport and that his denials of knowledge prior to that are false.
[REDACTED]
There is strong support for the proposition KFDJ intended to engage in military style violent combat in the Ukrainian conflict zone possibly by enlisting with the Ukrainian Army or a militia or paramilitary group aligned with the Ukrainian government.[57]
[57] See references to the Azov Battalion and other paramilitary groups in the Ukrainian conflict zone in public media, UD64-UD198.
[REDACTED]
While the primary political objective of such combat might be described as defence of Ukraine’s borders, territory and government, we are satisfied KFDJ has an additional political objective in seeking to engage in violence in Ukraine, namely gaining military style training, skills in using weapons, combat experience and contacts in extreme right wing, neo-Nazi groups or networks.
We are also satisfied that KFDJ’s interest in violent combat and fighting has a political objective relating to an extreme national socialist, white supremacist, neo-Nazi ideology. This conclusion is supported by the material on which we have found KFDJ has an ideological interest in national socialism, accelerationism and the foment of radical social change. There is compelling evidence which supports the conclusion that KFDJ considers violence to be a legitimate means of achieving these political objectives.
[REDACTED]
This assessment is supported by information in confidential materials we have examined and in Police reports of KFDJ’s involvement in acts of violence and propaganda activities relating to national socialist and white supremacist views to which we have already referred. We are not persuaded by KFDJ’s denials. Indeed, the fact he continues to deny matters confirmed by persuasive confidential evidence further reinforces the findings we have made about his extreme ideological views and the unreliability of his sworn evidence.
We do not accept KFDJ’s assertions the information in the Assessment and the Grounds supporting these conclusions is incorrect or incorrectly represented. The information is consistent with confidential materials we have examined, which is sufficiently reliable to support a positive finding that the conclusions about KFDJ’s views, activities and intentions are correct. We have not been provided with any material to suggest KFDJ has changed the extreme views which we are satisfied he has held from 2017, at least, relating to violence and political change. We are satisfied KFDJ wants to promote a national socialist agenda in Australia and sees a role for violence in that pursuit.
[REDACTED]
It is in this context the Director-General asserts there is a real risk if KFDJ is issued with a passport he will travel to the Ukraine conflict zone and become more radicalised, acquiring experience, skills and knowledge relating to violence and extending contact with like-minded extremists, which he may use to prejudice security in Australia.
We consider the opinions formed by ASIO in this regard to be justified. On the materials we have examined, we are satisfied that KFDJ has an ideological agenda for Australia and he has taken steps to promote it in the past. In our assessment, violence has a role to play in that agenda and the promotion of it. There are sound reasons for concluding that KFDJ’s experiences in the Ukraine could provide a means for him to further and promote that agenda in Australia should he depart.
KFDJ rejects these assertions as he denies ever having any plans to travel to Ukraine and denies having any radical agenda.
On the materials we have examined, it is clear to us that KFDJ’s denials and his evidence on this point are false.
[REDACTED]
In summary, considering these matters and the materials on which they are based, we are satisfied the proposition KFDJ is likely to travel to the Ukraine and engage in activities which prejudice the security of Australia is correct and justified. The contrary proposition that the information is incorrect is not made out.
To our minds, the pattern of KFDJ’s past conduct that is discernible on the materials we have examined provides a reasonable basis on which to assess his present intentions. The available evidence suggests he has attempted to conceal his association with like-minded people and his involvement in activities relating to violence. He has not been frank about his activities and conduct or his desire to leave Australia to fight in Ukraine. If KFDJ has changed his views and realigned his plans, we would have expected some level of candour with the Tribunal. As matters unfolded, there was none. There has been an escalation of violence and armed conflict in Ukraine. In these circumstances, there is no basis on which we could conclude that KFDJ’s plans have changed since the original cancellation request was made.
It follows that we are satisfied Propositions (c) and (d) are correct and KFDJ’s contrary assertions are not made out.
Are the recommendations, opinions and advice in the security assessment correct or justified?
The recommendations, opinions and advice set out in the Assessment and the Grounds include the following prospective opinions and recommendations:
(a)If [KFDJ] were to continue to hold an Australian travel document, he would be likely to engage in conduct that might prejudice the security of Australia by promoting acts of politically motivated violence or communal violence in Australia.
(b)ASIO recommends that the Minister for Foreign Affairs cancel any travel document issued to [KFDJ].
(c)ASIO also recommends that a further security assessment be requested from ASIO if [KFDJ] applies for an Australian travel document.
We are satisfied the following propositions in the Assessment and the Grounds are raised on reasonable grounds supported by cogent evidence:
(a)KFDJ adheres to an extreme right-wing ideology that promotes communal violence in Australia.
(b)He intends, if given the opportunity, to travel to the Ukrainian conflict zone to:
i.engage in politically motivated violence and violent combat; and
ii.acquire experience, knowledge and skills relating to violence.
(c)[REDACTED]
(d)This poses a threat to the security of Australia and of Australians which will increase if KFDJ is permitted to travel and:
i.becomes more radicalised;
ii.develops skills or experiences relating to violence which can be used in Australia;
iii.seeks to recruit and radicalise others to engage in acts of politically motivated violence or communal violence in Australia or against Australians.
iv.[REDACTED]
In our assessment of the evidence, these elements of the Assessment and the Grounds are correct and justified, and KFDJ’s contrary assertions are not made out. We are satisfied the proposition KFDJ is likely to engage in conduct that might prejudice the security of Australia if he continues to hold an Australian travel document or passport is justified.
Considering KFDJ’s past activities and conduct, there is a substantial risk that if he is allowed to go to the Ukraine, he may become more attuned to and adept in the use of violence. In those circumstances, should his plans eventuate, the concern that he would promote communal violence and politically motivated violence in Australia is justified. There is a real risk KFDJ would acquire experience, skills and knowledge of combat, weapons and related matters of violence in the Ukraine which he would communicate to people of like mind in Australia [REDACTED]. There is a significant risk KFDJ may have an increased standing among people of like mind within extremist national socialist groups or networks in Australia should he travel to Ukraine and this may be increased should he return.
In these circumstances, in our assessment of the materials, the requirements of security are engaged and the recommendation for the Minister to cancel KFDJ’s Australian travel document is justified. In consideration of KFDJ’s past conduct, we consider the recommendation for a further security assessment to be requested from ASIO if KFDJ applies for an Australian travel document is also justified.
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 2022
Dates of Hearing: 22 February 2021 to 24 February 2021
11 October 2021
Representative for the Applicant: Self-represented
Counsel for the Respondent: Mr T Glover
Solicitor for the Respondent: Australian Government Solicitor
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