MYVC and and Minister for Foreign Affairs
[2014] AATA 511
•28 July 2014
[2014] AATA 511
Division Security Appeals Division
File Number(s)
2014/0032
Re
MYVC
APPLICANT
And
Director-General of Security
RESPONDENT
File Number(s)
2014/0033
Re
MYVC
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Senior Member G Ettinger
Senior Member JF TooheyDate 28 July 2014 Place Sydney 1.The decisions under review are affirmed.
2.Pursuant to s 35AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that these reasons are to be published in full only to the parties and otherwise be published only in redacted form after deleting all information which might serve to identify the applicant and that the publication of the name of the applicant be prohibited.
3.Pursuant to s 39B(11) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the evidence and all information given to the Tribunal in its closed hearing is not to be communicated to any person and, pursuant to s 43AAA(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that its findings relating to any matters not disclosed in these reasons are not to be given to the applicant.
............[sgd]............................................................
Deputy President RP Handley
NOTE
·Pursuant to s 35AA of the Administrative Appeals Tribunal Act 1975, the Tribunal has directed that the publication of the name of the applicant be prohibited. Publication of matter identifying the applicant may be an offence.
·Section 63(5) of the Administrative Appeals Tribunal Act 1975 provides the following:
Contempt of the Tribunal
A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
CATCHWORDS
NATIONAL SECURITY – adverse security assessment – cancellation of Australian passport – likely to engage in conduct which might prejudice security – correctness, justification for any opinion or information contained in assessment –whether evidence, information, material relied on sufficiently probative to justify assessment – decisions affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Passports Act 2005 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth)
CASES
BLBS and Director-General of Security and Minister for Foreign Affairs [2013] AATA 820
Briginshaw v Briginshaw (1938) 60 CLR 336
Jaffarie v Director-General of Security and Ors [2013] HCA Trans 289
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362SECONDARY MATERIALS
Anti-People Smuggling and Other Measures Bill 2010 (Cth) Explanatory Memorandum
Parliamentary Debates, House of Representatives, 24 February 2010, Second Reading SpeechREASONS FOR DECISION
Deputy President RP Handley
Senior Member G Ettinger
Senior Member JF Toohey
MYVC (the Applicant) has applied for the review of two decisions:
(i)an adverse security assessment made by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO) (the Respondent) who assessed that if MYVC holds an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or another foreign country; and
(ii)a decision made by the Minister for Foreign Affairs (the Minister) to cancel MYVC’s Australian passport and refuse to issue him with a new passport should he reapply.
BACKGROUND
MYVC, who [redacted] was born in [redacted]. He arrived in Australia in [redacted] 2002. He was granted permanent residency in [redacted] 2004 and became an Australian citizen in [redacted] 2006. MYVC is married to an Australian citizen and has [redacted] children [redacted] are also Australian citizens. Since being granted Australian citizenship, MYVC has spent a significant time outside Australia, mostly in [redacted], where he is residing currently.
On [redacted] 2012, MYVC was interviewed by ASIO officers with regard to involvement in people smuggling. He provided information about his international travel history, family situation, business activities, personal relationships and financial status and denied having any personal involvement in people smuggling activities.
On [redacted] 2013, the Director-General of ASIO made an adverse security assessment in respect of MYVC and, on [redacted] 2013, requested that the Minister cancel his passport and refuse to issue him with a new passport should he reapply. This request was made on the ground that if MYVC held an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, and his passport should be cancelled or a renewal of his passport refused in order to prevent him from engaging in such conduct. On [redacted] 2013, the Minister made a decision to cancel MYVC’s passport. MYVC was advised of this by letter [redacted]. In this letter, the Minister’s delegate made a formal demand under s 24 of the Australian Passports Act 2005 (the Passports Act) that MYVC surrender his Australian passport on the ground that it had been cancelled.
On [redacted] 2014, MYVC applied to the Tribunal for a review of the decisions.
RELEVANT LAW AND ISSUES
MYVC seeks the review of firstly, an adverse security assessment by ASIO, and secondly, the decision of the Minister to cancel his passport pursuant to that assessment.
Pursuant to s 17(1) of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), the functions of ASIO include:
(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.
Section 37(1) states:
The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
Section 37(2) requires that an adverse or qualified security assessment be accompanied by a statement of grounds for the assessment.
Section 4 defines ‘security’ as meaning:
(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).
‘Security assessment or assessment’ is defined in s 35(1) as meaning a statement in writing furnished by ASIO to a Commonwealth agency expressing any recommendation, opinion or advice on, or referring to whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of the person. ‘Adverse security assessment’ is defined in s 35(1) as meaning a security assessment in respect of a person that contains (a) any opinion, advice or 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 taken in respect of the person, the implementation of which would be prejudicial to the interests of the person. ‘Prescribed administrative action’ is defined as including the exercise of any power, or the performance of any function, in relation to a person under the Passports Act.
As stated above, the Director-General made an adverse security assessment in respect of MYVC on the ground that if he holds an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or another foreign country. Pursuant to section 14 of the Passports Act, the Director-General requested that the Minister cancel MYVC’s passport and refuse to issue him with a new passport should he reapply, in order to prevent him from engaging in such conduct.
Section 14 of the Passports Act provides, relevantly, that:
(1) If a competent authority suspects on reasonable grounds that:
(a) if an Australian passport 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
…; and
(b) the person should be refused an Australian passport 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.
A competent authority is defined in s 14(3) to include an agency specified in a Ministerial determination as a competent authority. ASIO has been specified to be such an agency pursuant to paragraph 3.4(3) of the Australian Passport Determination 2005.
Section 18 of the Passports Act defines “refusal/cancellation requests”. It states:
Refusal/cancellation requests
(1) For the purposes of this Act, a refusal/cancellation request is a request made to the Minister under subsection 12(1), 13(1), 14(1) or 16(1) by a competent authority, being a request that the Minister do either or both of the following:
(a) refuse to issue an Australian passport to a person;
(b) cancel an Australian passport or travel-related document that has been issued to a person.
(2) A competent authority may make a refusal/cancellation request in relation to a person:
(a) whether or not the person has applied for an Australian passport; and
(b) whether or not an Australian travel document has been issued to the person; and
(c) whether or not the person is an Australian citizen.
(3) To avoid doubt, a competent authority may suspect on reasonable grounds that circumstances in subsection 14(1) apply in relation to a person, even if the competent authority knows that the person has already been issued with an Australian passport.
Once a refusal or cancellation request has been made by ASIO or another competent authority, s 22 of the Passports Act provides the Minister with power to cancel a passport. It states relevantly:
When an Australian travel document may be cancelled
(1) The Minister may cancel an Australian travel document.
(2) Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:
…
(d) a competent authority makes a refusal/cancellation request in relation to the person; or
…
MYVC exercised his right to apply to the Tribunal for a review of the decision of ASIO, pursuant to s 54 of the ASIO Act, and of the Minister, pursuant to ss 48(b) and 50(1) of the Passports Act.
The principal issue for the Tribunal is whether ASIO was correct in its assessment that if MYVC holds an Australian passport, he would be likely to engage in conduct ‘that might prejudice the security of Australia or another foreign country’ with reference to definition of ‘security’ in s 4 of the ASIO Act. The un-certificated Statement of Grounds ASIO supplied to the Applicant contains the following assessment:
ASIO assesses that:
[MYVC] has been involved in people smuggling;
[MYVC] has engaged in those activities overseas while travelling on his Australian passport; and
Cancelling [MYVC’s] Australian passport will restrict his ability to engage in people smuggling activities.
The following is stated to be the ‘Prejudice to Security’:
People smuggling poses a serious threat to the protection of Australia’s territorial and border integrity by providing an avenue for a large number of undocumented asylum seekers to gain entry to Australia, circumventing all normal border controls. ASIO assesses the development of ongoing structured programs of irregular maritime ventures from India, Sri Lanka and Indonesia to Australia to be a serious threat to border integrity and that the pipelines have been used by individuals of security concern to enter Australia. Accordingly, ASIO assesses that [MYVC’s] ongoing involvement in these activities is prejudicial to the security of Australia.
The classified documents contain additional specific allegations. The Tribunal was and is prohibited from disclosing those allegations to either MYVC or his lawyer. Nevertheless, in so far as it was possible, the Tribunal tested the evidence for those certificated allegations during its closed hearings.
There are three questions which the Tribunal must address:
(1) Whether organised people smuggling could prejudice Australia’s security, as defined in s 4 of the ASIO Act?
(2) Whether the Director-General could suspect on reasonable grounds that MYVC would engage in such organised people smuggling?
(3) Whether the Director-General could suspect on reasonable grounds that cancellation of MYVC’s passport would prevent such activity?
The procedure governing the conduct of the Tribunal’s review is that stipulated in s 39A and s 39B of the Administrative Appeals Tribunal Act 1975 (the AAT Act). (See, for example, Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380, at [43ff].) Section 43AAA(2) provides that upon the conclusion of this review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the Tribunal’s opinion as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. However, s 43AAA(3) provides that the Tribunal must not make findings in relation to an assessment that would have the effect of superseding any information taken to be part of the assessment unless, in the Tribunal’s opinion, the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security.
ASIO’S UNCLASSIFIED EVIDENCE
The Respondents provided affidavits from a senior ASIO officer using the pseudonym ‘Alan Masling’: an open affidavit [redacted] and a closed affidavit [redacted]. Mr Masling also gave evidence at the hearing both in open and closed sessions. Mr Masling is [redacted]
Mr Masling’s closed affidavit and much of the evidence relied upon by the Respondent is the subject of Ministerial certificates issued pursuant to s 39A(8) of the AAT Act and, therefore, was not disclosed to the Applicant and may not be disclosed in this Statement of Reasons. Non-disclosure to the Applicant made Mr Bodisco’s task of cross-examining Mr Masling and presenting a case for the Applicant a very difficult one. In relation to Mr Masling’s evidence, conscious of those difficulties, the Tribunal invited Mr Bodisco to identify any questions to which the Applicant sought an answer, but which would be subject to the Ministerial certificates. The Tribunal undertook to put any questions to Mr Masling in closed session.
In his open affidavit, Mr Masling said the adverse security assessment for MYVC included advice that MYVC:
15.1 has been involved in people smuggling;
15.2 has engaged in these activities overseas while travelling on his Australian passport; and
15.3 would have restricted ability to engage in people smuggling activities if his Australian passport were cancelled.
Mr Masling said that when MYVC was interviewed by ASIO officers on [redacted] 2012 he was given opportunities to admit involvement in people smuggling activities. Mr Masling noted that MYVC denied any involvement in people smuggling and claimed he was involved in legitimate business activities:
23. During the interviews, the applicant provided information that he was involved in overseas business activities [redacted]
24. ASIO assessed that the applicant was involved in people smuggling regardless of whether he was also involved in such legitimate activities overseas.
In open evidence at the hearing, Mr Masling said the role of ASIO is to collect intelligence and provide advice to Government on issues relating to security. ASIO has been concerned with territorial integrity [redacted], with the definition of ‘security’ in s 4 of the ASIO Act being amended in 2010 to include serious threats to Australia’s territorial and border integrity. [redacted]
Mr Masling said [redacted] In the case of people smuggling, [redacted] threats to Australia and its people come from overseas and thus the visa system is an important protection.
Mr Masling said that approximately 95% of irregular arrivals come without identification documents. [redacted] there have been a number of cases where a person has been found to be a threat to security – for example, because of politically motivated violence or communal violence which gives rise to a risk to the lives and property of Australians. There have also been previous cases involving Australian citizen people smugglers and at least one has been prosecuted. People smugglers are motivated by profit and have no real knowledge of or concern with the individuals they are smuggling. [redacted]
Mr Masling said ASIO had built up a picture of MYVC’s activities over a period of time. He acknowledged that MYVC had participated in the three interviews with ASIO officers voluntarily. The interviewers found him to be co-operative and likeable but not forthcoming when asked to address ASIO’s concerns. However, ASIO has no reason not to believe MYVC’s account of his business activities [redacted] and accepts that he may have travelled for purposes other than people smuggling. [redacted] ASIO is not aware of any pending criminal charges against MYVC brought by the Australian or [redacted] Governments or any other government.
MYVC’S EVIDENCE
MYVC provided an affidavit dated [redacted] 2014 and gave evidence at the hearing by telephone from [redacted] with the assistance of a [redacted] interpreter who was present in the hearing room in Sydney. In his affidavit, MYVC stated:
6. After obtaining my Australia citizenship and passports, I have been mostly living in [redacted] for the following reason:
7. [redacted]
8. [redacted]
9. [redacted] I have a deep affection for my [redacted] children and generally plan my trips to Australia to coincide with their respective Birthdays; On one occasion the family travels to [redacted] to celebrate the Birthday [redacted].
10. [redacted]
11. I totally and vehemently deny having any involvement with people smuggler or being privy to any of their activities including smuggling [redacted] to Australia by boat or air. My stay in [redacted] my trips to [redacted] had no connection whatever to people smuggling activities. [redacted] The said trips were related to legitimate and profitable Business matters such as export of Fabrics to [redacted] from [redacted]. The said Business ventures necessitated my travel to these countries.
12. I earned good money by these Business trips to enjoy life the way I lived [redacted] Purely by chance I did happen to meet on people smuggler at one of the bars in [redacted]. On another occasion at the bar I came to know of some information regarding two or three people smugglers in [redacted]. However, I emphatically and vehemently deny any connection whatsoever with people smuggler or people smuggling activities.
13. Any connection to my travel to the above mentioned countries and people smuggling activities in those countries is purely coincidental.
14. I verily state that the above facts are true and correct.
15. I have truthfully answered all questions put to me during the [redacted] interviews the ASIO had with me on [redacted] 2012. I am prepared and willing to co-operate with ASIO and other relevant Australia authorities in the investigation regarding people smugglers involved in smuggling from [redacted] to Australia by giving them whatever information that I may come to know of in the future.
MYVC requested that the affidavit and its contents be treated as strictly confidential and not be divulged to [redacted]. [The Tribunal has, however, preferred to redact those parts of the affidavit that might identify MYVC.]
MYVC confirmed that the contents of his affidavit are true and correct but noted that it omitted to mention the incident in [redacted] of which he told the ASIO officers in the course of his interviews in [redacted] 2012. (It should be noted that there was no interpreter present during those interviews on [redacted] 2012.) The ASIO Report records that MYVC told the interviewers that he had been drinking with friends when one of them asked for a photocopy of his passport to use as evidence for a flight he was booking for MYVC to fly to [redacted]. MYVC said the friend used the photocopy to purchase tickets for others to travel to Europe in MYVC’s name. MYVC said he did not know his friend was going to use the photocopy of his passport in this way. The [redacted] police and a lawyer became involved and the matter took more than a year to resolve. MYVC said he received assistance from a ‘very nice’ lady from the Australian Embassy. Since then, he has been scared of travelling to [redacted] and has been less trusting of his friends.
MYVC told the Tribunal that he has not left [redacted] since arriving back on [redacted] November 2012. He is staying in [redacted] because of [redacted] His current [redacted] visa expires in about nine months but he can extend his visa for a further period of 12 months. MYVC said he last saw his children when they came to [redacted] on [redacted] 2013 and returned to Australia after two months.
In cross-examination, MYVC said he has had no involvement in people smuggling activities and has not worked with anybody who has facilitated such activities, nor earned any money from such activities. He does not know whether the people smuggling has been organised by only one person or more than one person. He is aware from reading the newspapers that large numbers of people have arrived in Australia as a result of people smuggling and that the Australian Government is very concerned about this.
MYVC denied having travelled to different countries to assist in people smuggling. His travel has been for the purposes of his business or to visit his family. He acknowledged having travelled using his Australian passport but not for the purpose of facilitating people smuggling.
MYVC said he is “100%” willing to co-operate with ASIO or the Australian authorities. [redacted]
The Tribunal notes that in answer to questions from the ASIO officers during the course of his being interviewed in [redacted] 2012, MYVC said [redacted]
DISCUSSION
As noted above, the Tribunal has been provided with both ‘open’ evidence and submissions and also with ‘closed’ evidence and submissions, the latter being the subject of a Ministerial certificate issued pursuant to s 39A(8) of the AAT Act and which may not, therefore, be disclosed in this Statement of Reasons. This makes the Tribunal’s task of explaining its decision to the Applicant a difficult one. The Tribunal will address the specific allegations contained in the certificated material in an additional closed Statement of Reasons provided to the Respondent.
The ‘open’ Statement of Grounds provided by ASIO in support of its decision to make an adverse security assessment and supplied to the Applicant is set out above. It states ASIO’s assessment that MYVC has been involved in people smuggling activities while travelling on his Australian passport, that his involvement in such activities is prejudicial to the security of Australia, and that cancelling his passport will restrict his ability to engage in these activities.
MYVC gave evidence that he has not had any involvement in people smuggling activities, has not facilitated people smuggling, and has not earned money from such activities. This is in line with the answers he gave when interviewed by ASIO officers in [redacted] 2012. The Tribunal has been provided with certificated evidence by the Director-General that contradicts MYVC’s evidence and from which we are comfortably satisfied that he has been involved in people smuggling activities for a number of years, facilitating the illegal arrival in Australia of a significant number of people. From these activities he has derived substantial earnings. Our assessment is that he has exploited many vulnerable people without regard to Australia’s territorial integrity.
In making our findings and decision, we have had regard to the seriousness of the outcome in this matter for MYVC in considering whether we are reasonably satisfied in making relevant findings. The making of an adverse security assessment recommending the cancellation of a person’s passport, and the consequent cancellation of that passport, thereby restricting the person’s freedom of movement, is a very serious matter. [redacted]
In BLBS and Director-General of Security and Minister for Foreign Affairs [2013] AATA 820 (BLBS), the Tribunal discussed the standard of satisfaction that must be applied by ASIO in making an adverse security assessment, noting that such an assessment may initiate the loss of important rights. The Tribunal stated at [46]:
… 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. (footnotes omitted)
Mr Bodisco referred the Tribunal to the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336, at 361, where Dixon J said:
… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The Tribunal noted that the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 is not binding on the Tribunal and pointed the parties to the Federal Court decision in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 (Sullivan), at [37] where Jagot J stated:
37. The principle which Briginshaw embodies, that there is a rational relationship between the seriousness of the fact to be found and the strength of the material sufficient to prove that fact, is a tool available to the Tribunal to assist it in reaching the correct or preferable decision in the context of administrative decision-making. The usefulness of this tool will depend on the nature and the facts of the case. In some cases, use of this tool will be unnecessary. …
38. The problem with the submissions for Mr Sullivan is that they seek to elevate what is a mere tool for administrative decision-making into a principle which must not only be applied but also must be identified on the face of the Tribunal’s reasons as having been applied. I do not accept either proposition. There are many paths of properly available reasoning which might be used by an administrative decision-maker (Wu Shan Liang at 282). Provided the material findings of fact and the ultimate decision are reasonably open and based on some logically probative material the process of reasoning cannot properly be impugned on the basis that the decision-maker did not apply, or say in some way that it applied, Briginshaw.
In our view, there is no inconsistency between the Tribunal’s decision in BLBS and what Jagot J said in Sullivan. In the present case, the Tribunal has taken into account the seriousness of the decisions under review for MYVC in making its decision and has reached that decision relying on relevant and probative material to support our conclusion. Unfortunately for the Applicant, we are unable to reveal much of that material in these open reasons because of the Ministerial certificate.
Could organised people smuggling prejudice Australia’s security?
The first question for the Tribunal to determine is whether organised people smuggling could prejudice Australia’s security. In 2010, the ASIO Act was amended by the Anti-People Smuggling and Other Measures Bill which, among other things, amended the definition of ‘security’ in s 4 by inserting paragraph “(aa) the protection of Australia’s territorial and border integrity from serious threats”. The Respondents contend that this paragraph extends the definition of security to include people smuggling activities because such activities pose a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented asylum seekers to gain entry to Australia, circumventing all normal border controls. The Applicant disputes this interpretation of paragraph (aa) and contends that, as a result, the Adverse Security Assessment for MYVC is ultra vires and void. Mr Begbie, for the Respondents, acknowledged that if the definition of security does not accommodate people smuggling activities, this would totally undermine the Respondents’ case.
Mr Bodisco noted that the Full Federal Court has recently reserved its decision in the matter of Jaffarie v Director of Security & Ors NSD 2374/2013 (Jaffarie) on, amongst other issues, whether the phrase “the protection of Australia’s territorial and border integrity from serious threats” accommodates people smuggling. These Full Federal Court proceedings are as a result of a remittal from the High Court of certain issues in proceedings commenced in the High Court’s original jurisdiction: Jaffarie v Director-General of Security and Ors [2013] HCA Trans 289.
On the morning of the first day of the hearing, without prior notice, Mr Bodisco sought an adjournment of the present proceedings pending publication of the Full Federal Court’s decision. Having heard from Mr Begbie on this application, the Tribunal refused the application. Significant resources had been committed to bringing the matter to hearing and it was not practical for the matter to be adjourned at so late a stage, noting that the objectives of the Tribunal in s 2A of the AAT Act are to provide a mechanism for review that is not only “fair and just”, but also “economical, informal and quick”. Such a last minute application is also inconsistent with the Tribunal’s ‘Listing and Adjournment Practice Direction’. The Tribunal noted that if the Full Court found that the interpretation of paragraph (aa) did not encompass people smuggling activities, then it would be open to the Applicant to appeal to the Federal Court against a contrary decision in the present proceedings. The likely result of such an application would be that the Tribunal’s decision would be set aside by consent of the parties, incurring minimal additional costs.
In closing submissions, both parties referred the Tribunal to the submissions of the parties in Jaffarie on the interpretation of paragraph (aa). In short, the Applicant’s submissions in that matter contend that the meaning of the words ‘territorial integrity’ in International Law deals with issues of defence and external affairs which do not encompass people smuggling. Moreover, the Applicant contends that the word ‘border’ is capable of referring to not simply the outer extremity of sovereign territory, but also other lines that fall short of sovereign territory, whereas ‘integrity’ refers to the indivisibility of Australia’s territory and borders and their immunity from, for example, armed attack or occupation.
The Respondent’s submissions in Jaffarie point to the ordinary meaning of the words ‘territorial and border integrity’ and contend that this meaning encompasses threats to the security of Australia’s borders. Moreover, if reference is made to the purpose of this amendment (pursuant to s 15AA of the Acts Interpretation Act 1901 (AIA Act)), it is clear that the amendment was expressly made because the definition of security did not previously include threats to Australia’s border security. Reference to relevant extrinsic material (pursuant to s 15AB of the AIA Act), such as the Second Reading Speech for the Anti-People Smuggling and Other Measures Bill, indicates that paragraph (aa) was part of a package of legislative amendments, the purpose of which was to “strengthen the Commonwealth’s anti-people smuggling legislative framework” (Parliamentary Debates, House of Representatives, 24 February 2010, Second Reading Speech at 1645). The Explanatory Memorandum for the Bill stated at page 20:
The addition of proposed paragraph (aa) would enable ASIO to carry out its section 17 functions relating to security to address serious threats to Australia’s territorial and border integrity, such as those posed by people smuggling activities. For example, ASIO would be able to use its intelligence collection and assessment capabilities, including its warranted collection powers, in relation to people smuggling.
The Tribunal found the Respondent’s submissions as to the ordinary meaning of the words in paragraph (aa) and the purpose of the amendment to be persuasive and we determined to proceed on the basis that the protection of Australia’s territorial and border integrity encompasses the activity of people smuggling. We do not accept the narrower interpretation for which the Applicant contends, noting, in particular, the purpose the amendment was intended to address as reflected in the extrinsic materials referred to above.
Relying on Mr Masling’s evidence, the Tribunal is satisfied that organised people smuggling could pose a serious threat to Australia’s border integrity and therefore falls with the definition of ‘security’ in s 4 of the ASIO Act. As noted by Mr Masling, [redacted]. A number of these immigrants have been found by ASIO, after undertaking security checks, to pose a threat to security. Furthermore, Mr Masling stated that people smugglers have no real knowledge of or concern for the individuals smuggled. In such circumstances, it is reasonable for the Tribunal to find that organised people smuggling poses a serious threat to Australia’s border integrity.
Could the Director-General suspect on reasonable grounds that MYVC would be likely to engage in such organised people smuggling?
The threshold question posed by s 14(1) of the Passports Act is whether a competent authority (of which ASIO is one) suspects on reasonable grounds that a person would be likely to engage in conduct which might prejudice the security of Australia.
We note that MYVC adamantly denied being involved in people smuggling. He acknowledged that since obtaining Australian citizenship and an Australian passport, he has lived mostly in [redacted]. MYVC has, however, returned to Australia regularly to see his children at the time of their birthdays, staying for about four weeks on each occasion. We accept that he has a deep affection for his children who live in [redacted] with their mother, MYVC’s wife. MYVC has not returned to Australia since his last visit in [redacted] 2012. He said that he last saw his children when they visited [redacted], arriving on [redacted] 2013 and staying for about two months.
MYVC stated that he travelled between [redacted] and countries such as [redacted] for legitimate business reasons, for example trading in [redacted]. He stated:
12. … Purely by chance I did happen to meet on [sic] people smuggler at one of the bars in [redacted]. On another occasion at the bar I came to know of some information regarding two or three people smugglers in [redacted]. However, I emphatically and vehemently deny any connection whatsoever with people smuggler or people smuggling activities.
13. Any connection to my travel to the above mentioned countries and people smuggling activities in those countries are purely coincidental.
The Tribunal notes MYVC was co-operative in agreeing to being interviewed by ASIO officers in [redacted] on [redacted] 2012. The ASIO Report of the interviews also states: “At several points during the interviews, [MYVC] agreed to assist [redaction] by finding out information about people smuggling in his upcoming overseas travel.” He also provided the interviewers with [redacted]. In his affidavit dated [redacted] 2014, MYVC said he was:
… prepared and willing to cooperate with ASIO and other relevant Australian authorities in the investigation regarding people smugglers involved in smuggling people from [redacted] to Australia by giving them whatever information that I may come to know of in the future.
The ASIO Report of the interviews makes no mention of any language difficulties experienced during the course of the interviews. The Tribunal notes that in view of MYVC’s [redacted] background, the Report should have included reference to this; in particular, whether MYVC was asked whether he experienced any English language difficulties and, if so, whether the ASIO officers asked whether he required the assistance of an interpreter. There is also no mention of whether MYVC was asked whether he would like a lawyer or other support person to be present with him during the interviews. These are matters which should be addressed in such a report. The Tribunal, as a matter of course, asks all applicants whether they need the assistance of an interpreter and, in this instance, MYVC indicated that he needed a [redacted] interpreter, who was duly provided for the hearing. All communication involving MYVC at the hearing was conducted with the assistance of this interpreter.
The Tribunal asked MYVC why he did not return to [redacted] for the hearing. He said he could not leave [redacted] there, and he is concerned that if he were to return to Australia he would be unable to return to [redacted].
The Tribunal has given careful consideration to the open evidence and submissions by Mr Begbie and Mr Bodisco. We are not satisfied that the open evidence alone supports a finding that the Director-General could suspect on reasonable grounds that MYVC would be likely to engage in organised people smuggling. However, the Tribunal is comfortably satisfied from the closed evidence, which in our view is compelling, that the Director-General could form this view. The closed reasons for our decision, which may not be disclosed to the Applicant or otherwise published, explain our reasons for so concluding.
Could the Director-General suspect on reasonable grounds that cancellation of MYVC’s passport would prevent such activity?
The second limb of s 14(1) of the Passport Act in this case poses the question whether the person (MYVC) should be refused an Australian passport in order to prevent the person from engaging in such conduct.
MYVC was issued with an ‘ordinary’ (32 visa pages) Australian passport on [redacted]. He travelled extensively on this passport until [redacted] when, all visa pages having been stamped, he applied for a replacement ‘frequent traveller’ (64 visa pages) passport which was issued on [redacted]. A copy of the pages from MYVC’s ordinary passport is included in the open Tribunal Documents. This copy evidences that in the period to [redacted], MYVC travelled extensively, his principal destinations being [redacted]. The Applicant has provided details of MYVC’s travel since [redacted] using his replacement ‘frequent traveller’ passport issued on [redacted]. This further evidence indicates that in the period to [redacted], MYVC made seven visits to [redacted], of which three were for business, one for shopping, one for a family reunion and, in two instances, MYVC was in transit, in the first case to [redacted] and in the second case en route from [redacted] to [redacted]. MYVC’s visit to [redacted] was stated to be for business [redacted].
The Tribunal has been provided with extensive additional closed evidence which indicates that MYVC also travelled extensively to facilitate people smuggling activities. It is not clear from the evidence whether MYVC’s travel on these occasions was solely for the purposes of people smuggling activities or whether it was undertaken in combination with legitimate business activities. The latter is entirely possible and some of the travel may have been solely for legitimate business purposes. However, in neither case does this undermine the case put to the Tribunal by the Respondents.
The closed evidence provided to the Tribunal indicates that MYVC’s involvement in people smuggling activities would be significantly limited by his not holding an Australian passport on which to travel. The Tribunal is satisfied that denying MYVC a passport will have an important preventative effect on his ability to engage in people smuggling activities.
Our conclusion in relation to the first decision under review is that we are comfortably satisfied that there is relevant and probative evidence to support an adverse security assessment in MYVC’s case on the ground that if he holds an Australian passport he would be likely to engage in conduct prejudicial to the security of Australia. The evidence also supports a recommendation of ‘prescribed administrative action’, namely that the Minister should cancel MYVC’s passport and refuse to issue him with a new passport should he reapply, in order to prevent him from engaging in such conduct. The Director-General’s decision should therefore be affirmed.
Was the cancellation of MYVC’s passport justified?
The second decision for the Tribunal to review is the decision made by the Minister to cancel MYVC’s passport and refuse to issue him with a new passport should he reapply. Section 18(1) of the Passports Act provides that where a request to cancel a passport is made by a competent authority, the Minister may cancel an Australian passport that has been issued to the person.
The Minister’s power is a discretionary one. In MYVC’s case, the Tribunal is comfortably satisfied, on the basis of the closed evidence, that there are strong grounds supporting exercise of the Minister’s power in order to prevent MYVC from engaging in conduct prejudicial to the security of Australia. The decision under review is therefore affirmed.
DECISIONS
The Tribunal affirms the decisions under review.
I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley, Senior Member G Ettinger, and Senior Member JF Toohey ......[sgd]..................................................................
Associate
Dated: 28 July 2014
Date(s) of hearing 1-3 July 2014 Date final submissions received 3 July 2014 Counsel for the Applicant P Bodisco Solicitors for the Applicant Rasan Selliah & Associates Counsel for the Respondent T Begbie Solicitors for the Respondent Australian Government Solicitor
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