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information, under s 35(4) of the Administrative Appeals Tribunal Act 1975, the written reasons for this decision are not to be published to anyone other than the Respondent until 14 July 2023.

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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

1. 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.

2. Pursuant to section 22 of the Passports Act, the Minister cancelled KFDJ’s passport.

3. KFDJ applied to the Tribunal for review of the adverse security assessment by ASIO and the decision of the Minister to cancel his passport.

4. Each application has been dealt with in separate proceedings.

5. 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.

6. 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.

7. 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). 

8. 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.

9. A further hearing was conducted on 15 May 2023.

10. Prior to the hearing, the parties filed materials for the purposes of the Tribunal’s review.

11. KFDJ filed Statements of Facts on 17 February 2023 and 10 April 2023 which were taken into evidence.

12. 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.

13. 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

14. 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.

15. Where a competent authority makes a refusal/cancellation request for cancellation of a person’s Australian passport in satisfaction of s 22(2)(d), under s 14(2) and s 22(1) the Minister has discretionary power to act upon the request. The discretion must be exercised reasonably in the particular circumstances of any case.[2] The Minister’s power is broadly framed by the scope and purposes of s 22 and the objects of the Passports Act.[3] Section 19 constrains the Minister from acting on a refusal/cancellation request which can no longer be regarded as current in accordance with the Department’s usual administrative practices.

    [2] Minister for Immigration and Citizenship v Li [2013] HCA 18, per French CJ at [23]-[29]; per Hayne, Kiefel and Bell JJ at [63]-[67]; per Gageler J at [88]-[91].

    [3] Oshlack v Richmond River Council [1998] HCA 11, per Gaudron and Gummow JJ at [31]; O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, per Mason CJ, Brennan, Dawson and Gaudron JJ at 216 [12]; Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613 at 620.

    Submissions

16. The Minister contends there is no occasion to revisit the Tribunal’s findings about the security assessment in the review of the passport cancellation decision. The Minister argues the matters in the security assessment, and the Tribunal’s findings in the ASA Decision, weigh heavily in favour of exercising the discretion to cancel KFDJ’s passport. The Minister asserts no countervailing discretionary considerations compel a different outcome.

17. For his part, as he has done in the past, KFDJ noted the difficulty he faces challenging the findings of the Tribunal in relation to the adverse security assessment. Some of the conclusions in the ASA Decision are based on evidence KFDJ has not had access to.

18. He contends the Tribunal should exercise its discretion and set aside the decision to cancel his passport, notwithstanding the ASA Decision, the security assessment and the refusal/cancellation request.

19. In particular he contends:

    (a)following the Russian invasion of Ukraine in February 2022 the Australian government supports all aspects of the Ukrainian war machine and provides materiel to assist Ukraine;

    (b)the AZOV battalion (which had connections with holders of extreme right-wing views) is now part of the Ukrainian war machine;

    (c)the AZOV battalion has been engaged in heavy fighting that has been occurring in the eastern European conflict zone bordering with Russia, with confirmed reports of Australian bushmasters being utilised and succumbing to anti-armour weapons on the front lines.

20. 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

21. 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.

22. 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.

23. KFDJ denied being a political activist and said he did not attend rallies or “stoke fires”.

24. 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.”

25. When questioned about his beliefs, KFDJ disclosed firm views which he shared with the Tribunal.

26. 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”.

27. KFDJ informed us he now holds views aligned with those of a “traditional man”, who wants to take care of his family. He described having a Catholic up-bringing based on teachings adopting “a lukewarm understanding of the word of God”. He told us he wanted to expand his knowledge of the word of God and attended a Baptist Church and described his belief in the importance of following the laws of God and not the laws of man. He explained he considers God’s law to be natural law, above the laws of man and above the secular laws of Australia. KFDJ told us the Bible is a theological and a historical text, in which the Old Testament was written by “Jews for Jews before they killed Jesus”, whereas the New Testament was written by Jesus’ disciples for the new world.

28. KFDJ gave evidence about his understanding of Biblical texts. In his understanding, the exhortation to ‘love thy neighbour’ refers to friends and family and it does not mean loving everyone: “That’s not how it works, it never will. If people don’t accept it, that’s their problem”. He explained the laws of God do not allow “racial blood poisoning” or “race mixing”, and allowing such things would lead to “the deracination of a nation” as occurred when Rome fell, where “blood became dirty” and “they allowed sexually deviant people to be carrying on in the way that some would say carrying on in these days and what they are carrying on with now is a lot of homosexuals trying to breed children and drag-queens”. KFDJ informed us “We should not be allowing what God himself would not allow … we should not allow homosexuals to have free reign in society” and “when they are kept under check they are not such a problem”.

29. KFDJ denied any interest in violence or in fighting overseas. He said he was not a security threat. In his view, he explained, things will get worse before they get better and he stated “anyone who is a warmonger is not aware of how bad its going to get”.

30. 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

31. 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.

32. 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.

33. 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.

34. We are satisfied the refusal/cancellation request was properly made. From this it follows, by operation of s 14(2) the Minister is authorised to act on the request unless, under s 19(b), the request can no longer be regarded as current in accordance with the Department’s usual administrative practices.

35. The available materials do not establish the Director-General’s refusal/cancellation request is no longer current in accordance with the Department’s usual administrative practices. No issue of currency was raised or taken by either party and no evidence was adduced in respect of the Department’s usual administrative practices. That being so, we are not persuaded the threshold in s 19(b) is met and we proceed on the understanding the Director-General’s request remains current.

36. From this it follows, the Minister’s discretion to cancel KFDJ’s Australian passport under s 22(1) and (2)(d) is enlivened.

37. We accept KFDJ’s circumstances have changed since 2020. He lives in South-East Queensland and works there as an industrial electrician. He has married a Polish woman he met on-line. They married in a civil ceremony in Australia.

38. KFDJ presented himself as a person who has matured and settled down. He claims he has moved on from his previous life and is not interested in using violence to promote his views. Nor is he a security risk, even though he holds non-mainstream views which he appreciates would be offensive to many people.

39. If that characterisation was accepted, it would not be easy to identify any basis for upholding the cancellation of his passport.  Australia remains a very diverse country and it would not ordinarily be possible or appropriate to curtail a person’s freedom of movement simply on the basis of the content of their views and beliefs.

40. For reasons that follow, however, the Tribunal is not willing to accept KFDJ’s self-characterisation.

41. His present circumstances must be viewed in the context of the adverse security assessment which underpins the Director-General’s refusal/cancellation request.

42. KFDJ has a history of violence and promoting communal violence. Details of this history are set out in the ASA Decision (see [33] above).

43. Despite being given opportunities to do so when giving sworn evidence, KFDJ has not acknowledged his violent past and has attempted to conceal his involvement in violent activities and activities promoting communal violence.

44. We continue to hold concerns about the truthfulness and reliability of KFDJ’s uncorroborated evidence. We find his evidence in relation to his attitude to the use of violence and any plans he may have to go to the Ukraine to be self-serving and unconvincing. We are satisfied that it should be given little weight.

1. On several occasions KFDJ had an opportunity to demonstrate to the Tribunal that he had “moved on” from his past life and changed his attitude to use of violence in pursuit of his extreme ideals.

2. KFDJ was asked a question about insights he had gained since 2020 into the way he was as a younger man. In response to this question, he did not mention any insights concerning his previous extreme views about National Socialism and the use of violence to promote it. Instead, he talked about moving around to gain knowledge, including in the Australian Army, and to seek financial gain. He considered his decision to do this was positive, although he then acknowledged some decisions he made could have been better assessed, such as his decision in 2019 to move to Melbourne for work which did not eventuate – “the Melbourne experience was a lot less gainful than I hoped it to be”. He explained he “chased the money” and “ended up hanging around people in Melbourne that weren’t part of [his] original friend circle or people [he] normally associated with” and “life just got interesting”. He was no more forthcoming than that. Having regard to the material before the Tribunal (including confidential materials and the unredacted ASA Decision), KFDJ’s comment ‘life just got interesting’ suggests he has not gained any true insight about his previous anti-social activities, nor is he willing to admit the facts about his past conduct and activities involving violence and the promotion of communal violence in pursuit of the extreme white supremacist, national socialist ideologies to which he adhered.

3. KFDJ was asked to nominate the most organised activity he engaged in with a right-wing organisation. He stated “I’m not a member of a right-wing organisation, nor have I ever been” and indicated that having barbecues, hanging out with friends and going on camping and hunting trips was as serious as it got. The Tribunal knows from other information available to it that this is incorrect and KFDJ had more significant involvement than he is prepared to admit.

4. KFDJ was asked a question about his intended travel plans in 2020. In response, he made only vague references to the possibility of travelling to Ukraine – it was “definitely a maybe”. He did not acknowledge or admit any plan to travel to the conflict zone in Ukraine to engage in training and combat. The Tribunal has information before it, including the [REDACTED] which exposes KFDJ’s real travel plans in 2020. His failure to disclose his real intentions suggests KFDJ is not being entirely truthful in his evidence and he has not “moved on” from his past life to the extent he suggests.

5. This notwithstanding, it is possible KFDJ has changed his view about the violent promotion of his political ideas. There were signs at the hearing that KFDJ had changed his attitude since getting married. It is possible that he accepts that it is wrong to promote political or religious ideas by violent means.

6. Nevertheless, his failure to acknowledge the full extent of his activities in the past or admit the fact he had intended to travel to the Ukraine for the purpose of engaging in politically motivated violence is troubling. In light of his failure to concede openly the activities he engaged in in the past, it remains a distinct possibility KFDJ will use opportunities to travel to enhance his military skills and enhance connections with extremists.

7. His evidence suggests his underlying extreme ideals have not changed. He acknowledged he is happy being labelled as a fascist. In consideration of his failure to acknowledge or admit his past violent conduct, this, too, is troubling. Whether or not KFDJ’s extreme ideals are couched in political or religious terms, his failure to squarely and truthfully admit his past conduct raises the real possibility he may still seek to pursue his extreme ideals through the promotion of communal violence.

8. We have carefully examined the materials and evidence before us, and we have considered circumstances which have changed since 2020, including changes in KFDJ’s circumstances, changes in the conflict in Ukraine and the policy response of the Australian government. We have also closely considered the submissions made by each party.

9. The adverse security assessment as amended by the ASA Decision weighs heavily in favour of the exercise of the discretion to cancel KFDJ’s Australia passport. Nevertheless, in the changed circumstances KFDJ described, it is possible he is no longer a security risk, as he asserts.

10. We accept KFDJ has “grown up” and “settled down” in South-East Queensland to the extent that he has stable relationships and stable work. We accept, too, that KFDJ wants to travel to Eastern Europe for family reasons, to visit his family in Serbia and meet his wife’s family in Poland. He needs an Australian passport to do that. These considerations weigh against exercising the discretion to cancel his Australian passport.

11. In submissions, KFDJ complained about media coverage which may have been adverse to him and prejudicial these proceedings. As we explained in our reasons in the ASA decision, we gave that material no weight, most obviously because we were unable to judge its provenance. We have not been made aware of any additional material in these proceedings and we do not give the material disclosed to us previously any weight in these proceedings for the reasons we have already given.

12. The provision of materiel support to the Ukraine government by the Australian government does not bear upon the risk KFDJ poses to security. It is a contextual consideration which we have found does not weigh one way or the other when considering the exercise of the discretion in the circumstances of this case.

13. KFDJ’s assertions that he is not violent and that he does not seek to promote violence are not consistent with his past conduct and activities. As yet, KFDJ has not made full or frank disclosures about his past conduct and activities. This failure goes to the reliability of his evidence, and it raises serious questions about KFDJ’s assertion he has moved on in this respect from his previous life. Without a greater acknowledgement of the errors of his past conduct, and frank admissions about his previous behaviour, we cannot conclude that KFDJ is being truthful in regard to his current views about the promotion of communal violence. There remains a real possibility that KFDJ may engage in conduct to prejudice security should his passport be reinstated and that concern is not dispelled by the evidence KFDJ gave. This conclusion weighs heavily in favour of the exercise of the discretion.

14. In the circumstances, we are satisfied it is appropriate to affirm the Minister’s decision to cancel KFDJ’s passport.

15. Our decision does not preclude KFDJ from reapplying for grant of an Australian passport at any time.

    Decision

16. Decision affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President McCabe, Senior Member O’Donovan and Member Webb.

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Associate

Dated: 7 July 2023

Date of hearing:

15 May 2023

Applicant:

Self-represented

Counsel for Respondent:

Solicitor for the Respondent:

Mr T. Glover

Australian Government Solicitor