KFDJ and Minister for Foreign Affairs - [2023] AATA 2429

KFDJ and Minister for Foreign Affairs [2023] AATA 2429 (7 July 2023)
Division:GENERAL DIVISION
File Number(s): 2020/0450
Re:KFDJ
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

DECISION
Tribunal:Deputy President McCabe
Senior Member O'Donovan
Member Webb

Date:7 July 2023
Place:Canberra

Decision affirmed.
In order to protect against inadvertent disclosure of confidential information, under s 35(4) of the Administrative Appeals Tribunal Act 1975, the written reasons for this decision are not to be published to anyone other than the Respondent until 14 July 2023.
.............................[sgd]...........................................
Deputy President McCabe
Passports – cancellation – adverse security assessment – refusal/cancellation request by a competent authority – discretion to cancel passport – relevant considerations – changed circumstances – unreliable evidence – extreme ideology – potential prejudice to security – decision affirmed
Australian Passports Act 2005, ss 14, 18, 19, 22
KFDJ and Director General of Security [2022] AATA 3185
Minister for Immigration and Citizenship v Li [2013] HCA 18
Oshlack v Richmond River Council [1998] HCA 11
O’Sullivan v Farrer [1989] HCA 61
Shrimpton v The Commonwealth [1945] HCA 4
REASONS FOR DECISION
Deputy President McCabe
Senior Member O'Donovan
Member Webb
7 July 2023

In 2019, the Australian Security Intelligence Organisation (ASIO) made an adverse security assessment in respect of the applicant (KFDJ). Based on that adverse security assessment the Director-General of Security, pursuant to section 14 of the Australian Passports Act 2005 (Passports Act), made a refusal/cancellation request to the Minister for Foreign Affairs (Minister), seeking to have KFDJ’s passport cancelled.
Pursuant to section 22 of the Passports Act, the Minister cancelled KFDJ’s passport.
KFDJ applied to the Tribunal for review of the adverse security assessment by ASIO and the decision of the Minister to cancel his passport.
Each application has been dealt with in separate proceedings.
In the proceedings concerning the adverse security assessment, the Tribunal largely upheld the content of the adverse security assessment issued by ASIO in a decision published on 22 August 2022 - KFDJ and Director General of Security[1] (ASA Decision).
[1] [2022] AATA 3185.
In summary, the Tribunal found that in almost every respect the information in the adverse security assessment was correct and the opinions expressed were justified.
In particular the Tribunal found:
(a)KFDJ is not a truthful witness – he attempted to conceal his involvement in extreme right-wing neo-Nazi, national socialist and white supremacist groups and activities, including activities relating to violence;
(b)KFDJ adheres to an extreme right-wing ideology that supports the ‘promotion of communal violence’ – the Tribunal found KFDJ had been involved in acts of violence directed towards a number of persons on account of their race and sexual orientation, and had been involved in promoting violence towards people on the basis of race;
(c)KFDJ:
(i)maintained a role in the extreme right wing group Antipodean Resistance which is properly characterised as an informal group involving people with an interest in promoting extreme neo-Nazi, national socialist and white supremacist ideals;…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] AATA 2429
Decision Date: 7 July 2023

CaseChat Overview and Summary

This matter concerned an application by KFDJ to review the Minister for Foreign Affairs' decision to cancel his Australian passport. The cancellation was based on an adverse security assessment issued by the Australian Security Intelligence Organisation (ASIO). KFDJ contended that ASIO's assessment was based on hearsay and that his circumstances had changed significantly since the assessment was made, arguing that the Tribunal should not be concerned about him holding a passport.

The Tribunal was required to determine whether the Director-General's request to cancel KFDJ's passport, made on the basis of ASIO's adverse security assessment, was properly made and met the requirements of the *Passports Act 1938* (Cth). Specifically, the Tribunal needed to consider whether the factual findings underpinning ASIO's assessment, which had been previously found to be substantially correct and justified in an earlier decision, remained relevant and supported the cancellation of the passport.

The Tribunal adopted the factual findings from a prior decision concerning the adverse security assessment, which had found KFDJ to be untruthful and to adhere to an extreme right-wing ideology promoting violence. These findings included KFDJ's involvement in racist and violent activities, association with neo-Nazi groups, and an intention to travel to the Ukraine conflict zone for combat training. The Tribunal was satisfied that the Director-General was a competent authority and that the request for cancellation was properly made. Despite KFDJ's evidence of changed personal circumstances, including full-time employment and marriage, the Tribunal found that the security implications identified in the adverse assessment remained.

The Tribunal affirmed the Minister's decision to cancel KFDJ's passport.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant further submitted in April 2023 that:(a)he departed Victoria in January 2020 and he has not returned there or associated with any acquaintances he had while residing there;(b)he currently resides in South-East Queensland and has continuing full-time employment in the industrial trade for which he is qualified;(c)he recently married his 20-year old Polish girlfriend who he had intended to visit on his trip to Europe in 2020: at that time she was residing in the United Kingdom but now resides with him in South East Queensland, having obtained a visa to travel to Australia.KFDJ’s evidence At the hearing, KFDJ gave sworn oral evidence. He explained his life and circumstances have changed since 2020. He stated as a younger man his approach had been “high speed, low drag” whereas now he has moved on to a different stage: he has “grown up and settled down”. KFDJ describes himself as moving in a different direction now and concentrating on family. He has friends who are getting married and having babies and his circle of friends is now completely different to what it was. He associates with a circle of friends from his time in the army and with his sisters and his sisters’ families. He describes it as a more sustainable life. He emphasised:(a)he does not maintain relationships with the people he knew when he was in Victoria;(b)he is now in a different stage of life where his focus is on his work and his family;(c)if he went to Europe it would be for the purpose of arranging a church wedding with his wife (who is Polish) and visiting his family in Serbia. KFDJ explained some of his past decisions could have been better. However, when asked specifically about what he had in mind, he made no mention of the racist or violent activities which the Tribunal is satisfied that he had previously engaged in. Instead, he spoke about employment moves to make money which could have worked out better. KFDJ denied being a political activist and said he did not attend rallies or “stoke fires”. KFDJ considered the conflict in Ukraine to be a “meat grinder” and he would “probably not go to Ukraine” if he travelled to Europe. He explained it is not necessary for him to go to another country to engage in conflict or to get training. He stated he does not want war “but its going to get there”. He asserted:“As far as I can tell there’s no far-right violence in this country. There’s no one of my stature who is of a fascist nature going out into the streets and fighting like the left wing are here. We don’t want what’s coming, but its coming … another world war where Australia is some else’s lap dog.” When questioned about his beliefs, KFDJ disclosed firm views which he shared with the Tribunal. KFDJ explained he did not have a problem with the Australian government but he did have a problem with government policies, although he noted government in Australia works better than in other countries, for which he is grateful. He said that, as a citizen, he must bear the brunt of government and policy. In particular, he does not agree with immigration policies and agreed with recent anti-immigration protests. He acknowledged some of his views might be considered offensive or “fascist”, but he is “happy with that label”. In his view, multiculturalism has failed and the country is polarised: either you are a Nazi or a communist. Immigrants, he asserted, reduce wages and they compete with small businesses and Australian people and their children. He was especially critical on “non-white” immigration: “Non-white people who come to this country see the glitter … they use and abuse the welfare system. They don’t integrate and have their own suburbs and religions”.

Decision

Reasons for decision

In the proceedings concerning the adverse security assessment, the Tribunal largely upheld the content of the adverse security assessment issued by ASIO in a decision published on 22 August 2022 - KFDJ and Director General of Security[1] (ASA Decision). [1] [2022] AATA 3185. In summary, the Tribunal found that in almost every respect the information in the adverse security assessment was correct and the opinions expressed were justified. In particular the Tribunal found:(a)KFDJ is not a truthful witness – he attempted to conceal his involvement in extreme right-wing neo-Nazi, national socialist and white supremacist groups and activities, including activities relating to violence;(b)KFDJ adheres to an extreme right-wing ideology that supports the ‘promotion of communal violence’ – the Tribunal found KFDJ had been involved in acts of violence directed towards a number of persons on account of their race and sexual orientation, and had been involved in promoting violence towards people on the basis of race;(c)KFDJ:(i)maintained a role in the extreme right wing group Antipodean Resistance which is properly characterised as an informal group involving people with an interest in promoting extreme neo-Nazi, national socialist and white supremacist ideals; and(ii)associated with people in covert forums and networks promoting extreme right-wing neo-Nazi, national socialist and white supremacist ideals and objectives;(d)KFDJ intended to travel to the Ukraine conflict zone to engage in acts of, or in support of, politically motivated violence;(e)such conduct had ‘security’ implications for Australia, as that term is defined in the Australian Security Intelligence Organisation Act 1979 (ASIO Act). Having resolved the content of the adverse security assessment which formed the basis of the request to cancel KFDJ’s passport, the Tribunal then proceeded, in separate proceedings, to review the Minister’s decision to cancel KFDJ’s passport. A further hearing was conducted on 15 May 2023. Prior to the hearing, the parties filed materials for the purposes of the Tribunal’s review. KFDJ filed Statements of Facts on 17 February 2023 and 10 April 2023 which were taken into evidence. The Minister filed a Statement of Facts, Issues and Contentions in respect of this application, dated 27 January 2023, and an Open Hearing Book comprising documents labelled 7(a)-(g). The Minister also relied upon confidential material covered by a public interest certificate issued by the Attorney-General under s 36D of the Administrative Appeals Tribunal Act 1975 (AAT Act). These materials were taken into evidence. At the hearing, KFDJ gave further evidence about his circumstances and his personal, political and religious views and was questioned by the Tribunal in relation to them. Legislation and issues for determination Where a competent authority suspects on reasonable grounds that a person would be likely to engage in conduct which might prejudice the security of Australia if they were issued an Australian travel document (including a passport), the competent authority may make a refusal/cancellation request in relation to the person under s 14 of the Passports Act. Section 18 confirms a refusal/cancellation request can include a request to cancel the person’s Australian passport.

Ratio Decidendi

Legal Principle Established

In essence KFDJ sought to persuade the Tribunal that ASIO’s adverse security assessment was based on supposition and hearsay, and in any event, the focus of his life and his circumstances have changed since the assessment was made. The Tribunal should not be concerned about him holding a passport.Consideration and findings The starting point for considering the matter is the refusal/cancellation request made by the Director-General under s 14 of the Passports Act. We accept the Director-General’s request was made on the basis of ASIO’s adverse security assessment, which recommended the taking of prescribed administrative action, namely the cancellation of KFDJ’s Australian passport. ASIO’s adverse security assessment was subject to review by the Tribunal, and it was found to be substantially correct and justified in the ASA Decision. It is not necessary to go behind the Director-General’s refusal/cancellation request provided we are satisfied the request was properly made and it meets the requirements of s 14(1)(a)(i) of the Passports Act. We are satisfied the Director-General is a competent authority within the meaning of that term in s 6 and s 14(3) of the Passports Act. The basis on which the request was made was the subject of detailed consideration and findings recorded in the ASA Decision. There is no cause to revisit the factual findings made in the ASA Decision, which we fully adopt, including: (a)KFDJ holds strong anti-Semitic, anti-homosexual, white supremacist, racist and authoritarian views and he adheres to an extreme neo-Nazi, white supremacist, national socialist or fascistideology that promotes communal violence and politically motivated violence;(b)in May 2018, KFDJ was involved in putting up posters and stickers in Bathurst with racist and violent slogans such as ‘blacks get the rope’;(c)in July 2018, KFDJ engaged in abusive and violent conduct towards a same sex couple in a hotel bar in Bathurst, in which KFDJ became very aggressive and confrontational and grabbed a female victim by the neck;(d)in August 2019, KFDJ was one of 5 males dressed in camouflage uniforms who were apprehended in a vehicle carrying knives, guns and ammunition following a road rage incident and an incident at a fast-food outlet in Colac in which an Asian family was violently abused and the female manager was slapped in the face;(e)in the period from 2018 to January 2020, at least, KFDJ was actively involved in the extreme right-wing group Antipodean Resistance;(f)at that time, Antipodean Resistance was an organisation with extreme right-wing views based on conceptions of white racial superiority, which published material stating it wants ‘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’; (g)in late 2019, KFDJ planned to travel to the conflict zone in Ukraine in order to engage in military style training and violent combat and he sought to conceal his true intentions by travelling via Serbia, where he has family connections; (h)this had security implications for Australia, using that term as defined in the ASIO Act, and the Director General of Security, acting on ASIO’s adverse security assessment, requested the Minister to cancel KFDJ’s Australian passport;(i)in January 2020, KFDJ attempted to depart from Australia and was prevented from doing so;(j)soon thereafter KFDJ left Victoria and moved to South East Queensland.