Kweifio-Okai and Inspector-General of Intelligence and Security

[2016] AATA 248

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL            )

)                   2016/1484
GENERAL DIVISION  )                   

Re:George Kweifio-Okai

Applicant

And:Inspector-General of Intelligence and Security

Respondent

CORRIGENDUM TO DECISION [2016] AATA 248

The Tribunal amends its decision of 14 April 2016 as follows:

1.in [6], eighth line by deleting “21 December 2015” and inserting “9 December 2015”.

…………[sgd]……………..
S A FORGIE
Deputy President

Kweifio-Okai and Inspector-General of Intelligence and Security [2016] AATA 248 (14 April 2016)

Division:  GENERAL DIVISION

File Number:  2016/1484

Re:  GEORGE KWEIFIO-OKAI

APPLICANT

And:INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  14 April 2016

Place  Melbourne

The Tribunal decides that:

1.the Tribunal does not have jurisdiction to review decisions made by the respondent in carrying out her functions under the Inspector-General of Intelligence and Security Act 1986;

2.the Tribunal does not have jurisdiction to direct the respondent in the performance of her functions under the Inspector-General of Intelligence and Security Act 1986;

3.in the absence of any adverse or qualified assessment regarding the applicant, the Tribunal does not have jurisdiction to review any decision of the Director-General under the Australian Security Intelligence Organisation 1979; and

4.the application for review is dismissed.

……[sgd]………………….

Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – jurisdiction – applicant seeking review of decision of Inspector-General of Intelligence and Security declining to investigate alleged activities of intelligence agencies in relation to applicant’s employment – no jurisdiction to review decisions made by the Inspector-General of Intelligence and Security.

PRACTICE AND PROCEDURE – jurisdiction – applicant seeking order to require Inspector-General of Intelligence and Security to investigate allegations that intelligence agencies influencing those determining his employment opportunities – no jurisdiction to direct Inspector-General of Intelligence and Security.

PRACTICE AND PROCEDURE – jurisdiction – no evidence that ASIO has made adverse or qualified security assessments regarding applicant - no jurisdiction.

LEGISLATION

Administrative Appeals Tribunal Act 1975: ss 25, 25(1)

Australian Security Intelligence Organisation 1979: ss 38, 54(1)

Inspector-General of Intelligence and Security Act 1986: ss 8, 8(1), 8(1)(a), 8(2)(a), 8(3)(a), 9AA, 23(1), and 23(2)

REASONS FOR DECISION

1. The role that the Commonwealth Parliament has assigned to the Tribunal requires it to review administrative decisions made under laws it has made.  Those laws prescribe the administrative decisions that it may review and the powers that it may exercise in reviewing them.  Dr George Kweifio-Okai has asked the Tribunal to direct the Inspector-General of Intelligence and Security (Inspector-General) to investigate whether people, whom he did not (or perhaps could not) identify, have advised various academic institutions that they should not employ him on their academic staff.  If there are such people, Dr Kweifio-Okai wants the Tribunal either to direct the Inspector-General and report on the matters or, failing that, to undertake her own investigations into any security interference in his attempts to obtain employment. 

1. In the case of decisions of the Inspector-General, the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) does not confer any power on the Tribunal to review her decisions.  If Dr Kweifio-Okai had intended to seek review of decisions made by the Director-General of Security (Director-General) under the Australian Security Intelligence Organisation 1979 (ASIO Act), the Tribunal’s power is limited to adverse or qualified security assessments issued by ASIO.  As I have no evidence that there has been such an assessment, I have decided that the Tribunal does not have jurisdiction to accede to Dr Kweifio-Okai’s request.  Therefore, at the hearing, I dismissed his application to the Tribunal on that basis.  I gave oral reasons at the time but Dr Kweifio-Okai asked for written reasons, which I set out below. 

BACKGROUND

1. By email dated 15 March 2016 and addressed to the Tribunal, Dr Kweifio-Okai noted that he had made a series of complaints to the Office of the Inspector-General (OIGS) regarding the role of intelligence agencies, and particularly the Australian Security and Intelligence Organisation (ASIO), in ensuring that he was unable to obtain employment.  He referred to the non-renewal of a contract with a previous employer and to subsequent interference in his efforts to obtain employment both in Australia and overseas.  He attached a copy of correspondence that he had engaged in with an officer from the OIGS.  In that correspondence, he said that he had already provided the OIGS with details of interference in his applications to two Universities.  Dr Kweifio-Okai then referred to a third incident in which he said that he had been offered a position with an institution owned by a third University (the Institution) at an interview held on 21 December 2015 and advised of a starting date but, after consultation with senior officers of the Institution, the offer had been withdrawn.  The withdrawal was “… disguised as seeking further applications. …”. 

1. In order to understand events, I will refer to the various emails that Dr Kweifio-Okai attached to a letter he wrote on 8 February 2016 to the Chief Executive Officer (CEO) of the Institution.  I have not named the Institution nor the members of staff for they did not, and were not required to, give evidence regarding these matters and so have not put their points of view on matters surrounding Dr Kweifio-Okai’s interview and subsequent events. 

1. I will begin with the email Dr Kweifio-Okai received from the Head of Department on 9 December 2015.  It began by noting that he had previously expressed interest in teaching at that institution.  She then advised him of the 0.8 position and asked whether it would be of any interest to him.  An interview followed.  Following that interview, she wrote an email to Dr Kweifio-Okai dated 23 December 2015 thanking him for attending the interview and advising of the decision to advertise the position in early January the following year.  She advised him that, at that time, all applications, including his, would be reviewed. Dr Kweifio-Okai followed up regarding the progress of the selection exercise in an email to her dated 29 January 2016.  The Head of Department replied on the same day to the effect that the position had not quite been confirmed and that the outcome should be known early in the following week.  He was subsequently advised that his application had been unsuccessful.

1. Dr Kweifio-Okai had written to the Chief Executive Officer (CEO) of that University asking for detailed feedback on why his application had been unsuccessful.  His letter is dated 8 February 2016 and he set out the events surrounding his interview.  It would seem from the letter that he did not, on 8 February, consider that he had been offered a position at the University.  In so far as it is relevant, the background set out in his letter reads:

   “1.       On 21 August 2015 I spoke to the head of department regarding an interest in teaching … in the department and forwarded my CV on request.

   2.        On 21 December 2015 the head of department advised me of a 0.8 vacant position to find out whether I was still interested … I replied in the affirmative and sent an updated CV as well as a complete referee list …

   3.        On 21 December 2015 I attended an interview … .  At the conclusion of a satisfying interview, the head of the department gave guarded assurance that the position would be offered to me, adding that she would have to seek approval from her superior who normally accepted her decisions.

   4.        On 23 December 2015, the Head advised me that it has been decided to advertise the position in early January, that all applications including mine would be considered and that I would be advised on the outcome. …

   5.        On 8 February 2016, … HR Projects manager advised me that my application has been unsuccessful. …”

1. The CEO referred the letter to the Head of the relevant Department who replied on 9 February 2016 that neither member of the interviewing committee had:

   “… felt your motivation for applying for the position was clear.  It was evident that you had extensive experience in similar teaching roles and had taught across campuses.  We decided at that point to advertise the position to invite further applications as I informed you on December 23^rd.

   After interviewing further applicants we decided on another applicant who we felt met the criteria and was a good fit for the cohort of students.

   I have noted that you would like to be considered for future positions and I will keep your resume on hand for this purpose.”

DOES THE TRIBUNAL HAVE JURISDICTION UNDER THE IGIS ACT?

1. The Tribunal’s authority to review decisions is found by reading s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) with at least one other enactment. Section 25(1) provides that:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

1. The office of Inspector-General is established under the IGIS Act.  The functions of the Inspector-General are set out in s 8 of that legislation.  Among them are those set out at s 8(1).  In so far as it relates to a complaint, it provides:

   “Subject to this section, the functions of the Inspector-General in relation to ASIO are:

   (a)…  in response to a complaint made to the Inspector-General, to inquire into any matter that relates to:

   (i)the compliance by ASIO with the laws of the Commonwealth and of the States and Territories; or

   (ii)the compliance by ASIO with directions or guidelines given to ASIO by the responsible Minister; or

   (iii)the propriety of particular activities of ASIO; or

   (iv)the effectiveness and appropriateness of the procedures of ASIO relating to the legality or propriety of the activities of ASIO; or

   (v)an act or practice of ASIO that is or may be inconsistent with or contrary to any human right, that constitutes or may constitute discrimination, or that is or may be unlawful under the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984, being an act or practice referred to the Inspector-General by the Australian Human Rights Commission; …”

Sections 8(2)(a) and (3)(a) set out the functions of the Inspector-General in relation to other security bodies.  They, as well as s 8(1)(a), are qualified by other provisions of ss 8 and 9AA.

1. Whether Dr Kweifio-Okai’s complaint comes within the terms of s 8(1)(a) or s 8 generally is not a matter on which I would presume to express any opinion at all.  The Inspector-General, who no doubt would have a view on whether it does or not, was not in a position to express that view as she was not given notice of the hearing.  She was not given notice because I must first determine whether the Tribunal has power to review any of the Inspector-General’s decisions relating to a complaint before looking to substantive issues of this sort. 

1. Division 2 of Part II regulates complaints.  It deals with matters such as the form in which a complaint may be made, the Inspector-General’s responsibilities in dealing with a complaint and other procedural matters.  Where the Inspector-General is required to inquire into a complaint, regard must be had to Division 3 of Part II.  It deals with procedural matters relating to inquiries.  When an inquiry has been completed, regard must be had to Division 4, which is concerned with a report following an inquiry.  Where the Inspector-General has conducted an inquiry under the IGIS Act following a complaint in respect of action taken by an intelligence agency, he or she is required to give the complainant a written response relating to the inquiry.[1]  Before doing so, however, the Inspector-General must have reached agreement with the head of the relevant agency that giving such a response to the complainant in the terms proposed will not prejudice security, the defence of Australia or Australia’s relations with other countries.[2]

   [1] IGIS Act; s 23(1)

   [2] IGIS Act; s 23(2)

1. No provision is made in the IGIS Act for review of any decision that the Inspector-General might make when the OIGIS receives a complaint.  In particular, no provision is made in the IGIS Act for review of any decision made by the Inspector-General declining to hold an inquiry regarding a complaint made to it.  In the absence of any such provision, the Tribunal does not have jurisdiction to review any decision made by the Inspector-General or power to direct the Inspector-General in any manner at all about matters arising from complaints made under the IGIS Act.

DOES THE TRIBUNAL HAVE JURISDICTION UNDER THE ASIO ACT?

1. While I understand that Dr Kweifio-Okai has made his complaint to the Inspector-General and not to the Director-General of Security (Director-General), I will mention the Tribunal’s powers under the ASIO Act.  A person may apply to the Tribunal for review of an adverse or qualified security assessment made by the Australian Security Intelligence Organisation (ASIO).[3]  That is the only right given by the ASIO Act to make an application to the Tribunal for review of any decision or assessment.  There is no suggestion on the material that I have been given that ASIO has made any such assessment at all in relation to Dr Kweifio-Okai.  If it had been, that assessment would have been furnished by ASIO to a Commonwealth agency or a State or an authority of a State and that agency or authority would have given notice to Dr Kweifio-Okai in accordance with s 38 of the ASIO Act.  That notice would have included notice of his right to apply to the Tribunal under s 38 of the ASIO Act.  He has not made me aware that he has received any such notice.  That leads me to find that he has not received an adverse or qualified assessment from ASIO and so has no right to make an application to the Tribunal under the ASIO Act in respect of matters he is concerned about.

   [3] ASIO Act; s 54(1)

DECISION

1. Therefore, even if Dr Kweifio-Okai has made a mistake, and I do not suggest that he has, as to whether he seeks review of actions of the Inspector-General or those of the Director-General in relation to ASIO, the Tribunal does not have jurisdiction to review either. 

   I dismiss Dr Kweifio-Okai’s application for review on the basis that:

   (1)the Tribunal does not have jurisdiction to review decisions made by the Inspector-General in carrying out his functions under the IGIS Act; and

   (2)the Tribunal does not have jurisdiction to review any decision of the Director-General under the ASIO Act as I am satisfied that ASIO has not made an adverse or qualified security assessment regarding Dr Kweifio-Okai.

I certify that the fourteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………......................[sgd]..............................

Associate

Date of Hearing   14 April 2016

Date of Oral Decision  14 April 2016

Date of Written Reasons  19 April 2016

For the Applicant  self represented

Solicitor for the Respondent              no appearance required