NFTR and Director-General of Security

[2015] AATA 755

NFTR and Director-General of Security [2015] AATA 755 (25 September 2015)

Division	Security Division
File Number(s)	2014/2358
Re	NFTR
APPLICANT
And	DIRECTOR-GENERAL OF SECURITY
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	25 September 2015
Place	Sydney

The application for an order for costs in accordance with section 69B of the AdministrativeAppeals Tribunal Act 1975 (Cth) is refused.

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Deputy President J W Constance

CATCHWORDS

SECURITY DIVISION - application for costs - discretion if satsified appropriate to grant application - application remitted pursuant to section 42D - meaning of substantially - ordinary meaning - whether applicant successful or substantially successful - application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42D, 69B

Australian Security Intelligence Organisation Act 1979 (Cth)

Freedom of Information Act 1982 (Cth)

CASES

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SECONDARY MATERIALS

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REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. The Applicant seeks an order that the Respondent pay the legal costs incurred by her in these proceedings in accordance with section 69B of the Administrative Appeals Tribunal Act 1975 (Cth).

2. In summary section 69B gives the Tribunal the discretion to order costs in an application in the Security Division of the Tribunal, if it is of the opinion that an applicant was successful, or substantially successful, and the Tribunal is satisfied that it is appropriate to make such an order.

3. In this matter the application for costs will be refused for the reasons which follow.

   BACKGROUND

4. The facts in this application are not in dispute.

5. The Applicant joined the Australian Public Service in 2005 and has been a member of that Service ever since. At all relevant times she was employed by a particular government agency.

6. On 14 March 2014 the Respondent issued an adverse security assessment in respect of the Applicant in accordance with the provisions of the Australian Security Intelligence Organisation Act 1979 (Cth). Based on this assessment the Agency revoked the Applicant’s confidential security clearance previously issued to her.

7. The Agency suspended the Applicant from work on 14 April 2014. She was advised that it was proposed that her employment be terminated as a result of the adverse assessment.

8. On 9 May 2014 the Applicant applied for a review of the Respondent’s decision to issue the adverse security assessment.

9. Of 31 July 2014 the Applicant’s Solicitor spoke to the Australian Government Solicitor, who represented the Respondent. The Applicant’s solicitor advised the Australian Government Solicitor that there had been errors made in the translations of the transcripts of the interviews of the Applicant by officers of the Respondent. The Applicant’s Solicitor provided the Australian Government Solicitor with details of corrections made on behalf of the Applicant. The errors in the transcripts included certain Chinese officials being incorrectly named.

10. On 28 August 2014 the Tribunal made the following directions:

    1). In accordance with section 42D of the Administrative Appeals Tribunal Act 1975, the decision of the respondent to issue an adverse security assessment in respect of the applicant pursuant to Part IV of the Australian Security Intelligence Organisation Act 1979 is remitted to the respondent for reconsideration.

    2).       The decision is to be reconsidered and the applicant and the Tribunal notified of the reconsideration on or before 31 October 2014.

    These directions were made at the request of the Respondent and with the consent of the Applicant.

11. The Respondent issued a new decision in substitution for the decision under review on 28 October 2014. In the new decision, the Respondent recommended that:

    1.        AGVSA refuse to grant the applicant a Negative Vetting Level 1 (NV1) security clearance;

    2.        Should the Applicant continue to be employed, [the Agency] take action to ensure the Applicant:

    2.1      does not have access to highly classified information, particularly relating to Australia’s relations with China;

    2.2      does not independently represent Australian Government interests in China, including in Hong Kong or Macau;

    2.3      is provided security travel briefings prior to any travel to China, including a debriefing, to an …. Agency Security Adviser; and

    2.4      reports or contact with Chinese officials (irrespective of where and when those contacts occur), both professionally and socially, including, but not limited to, name states and topics of discussion to an …. Agency Security Adviser.

    3.        AGVSA refer any further security clearance applications for the applicant to ASIO for security assessment.[1]

    [1] Respondent’s submissions on costs para.8.

12. This later recommendation was the same as the first recommendation, save that paragraph 2 of the first recommendation read:

    2.        The Applicant’s employer, [the Agency] take action to prevent the Applicant from accessing any places, or classified, caveated or government information, access to which is controlled or limited on security grounds.

    Clearly, the later recommendation was less restrictive of the Applicant than the first.

13. As a result of the new decision of the Respondent, the Applicant was granted a baseline security clearance and 9 February 2015 the Applicant returned to work at the Agency in a new role based on that clearance.

    THE APPLICANT’S ARGUMENT

14. It was argued on behalf of the Applicant that the Respondent made a number of relevant and material errors during the assessment process. In her written submissions on this application for costs the Applicant set out the alleged errors as follows:

    a.        A number of serious mistranslations in the transcripts of the interviews with her. Especially, during the 2006 interview, the applicant mentioned the name of the former Chinese president, Jiang Zemin. However, instead of Jiang Zemin, Jiang Jianrong’s name appears in the transcript of the interview.  [redacted].  Jiang Zemin’s name was also incorrectly interpreted in the two interviews in 2012 as “the gentleman in”, “a gentleman” and “Jung Jao Ming”. …… Other mistakes include ”[redacted]” (the applicant’s father’s name) instead of ”[redacted]” (former Chinese Foreign Minister) and ”[redacted]” ……  [references omitted].

    b.        The applicant was alleged to be in breach of the Australian Government Contract Reporting Guidelines in January 2009, despite the fact that these guidelines were not approved by the Commonwealth until October 2010.

15. It was put on behalf of the Applicant that:

    The effect of [the] assessment was profound. Had the applicant not started these proceedings, she would have been prevented from working in her chosen employment, and in much of the public sector generally, for reasons that remained entirely unknown to her. The unfairness of that process required rectification by this Tribunal. It is appropriate that she be at least partially compensated for the costs of that rectification.

    CONSIDERATION

16. I was referred to Court judgements and previous decisions of the Tribunal as to the meaning of the word “substantially’ and to its use in the Freedom of Information Act 1982 (Cth). However, the words used in a statute are to be given their ordinary meaning in the context in which they are used. The most reliable source of the ordinary meaning of a word is a dictionary. Apart from considering such a definition, there is little to be gained by substituting one word for another.

17. The Macquarie Dictionary (3^rd) Edition defines “substantial” to include “of ample or considerable amount, quantity size etc”.  The Oxford English Dictionary includes in its meanings “fully, amply, to a great extent or degree; considerably, significantly, much.”

18. It is clear that the recommendations made by the Respondent in the new decision gave the Applicant greater scope for continued employment with the Agency. However, this is not the test required by the Act in deciding whether costs should be awarded. At first I must form the opinion that the Applicant was successful, or substantially successful in the application for review. Whilst the Applicant has no doubt been successful in maintaining her employment, this does not mean that she has been successful, or substantially successful, in the application. To this extent I agree with the submission made on behalf of the Respondent that success is not to be measured “upon such matters as the reaction of the applicant’s employer to the decision”.[2]

    [2] Respondent’s Submission on Costs para.12.

19. The Respondent submitted that there was no basis on which I could be satisfied that the changes to the decision were based on the corrections to the translations put forward by the Applicant. Whilst this is true, I do not need to be satisfied as to the basis on which the new decision was made, but rather I must look at the decision itself.

20. The Applicant applied to the Tribunal to set aside the assessment in its entirety. In the new decision, the Respondent maintained the advice to the Australian Government Security Vetting Agency that it refuse to grant the Applicant a NV1 security clearance and that it refer any further security clearance applications for the Applicant to the Australian Security Intelligence Organisation. In my view these recommendations, particularly that the security clearance be refused, are a very significant part of the decision under review. That being the case, the changed recommendations as to the Applicant’s employment have not caused me to form the opinion that the Applicant was substantially successful in her application for review.

    CONCLUSION

21. The Applicant’s application for an order relating to costs will be refused.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

23.      

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Associate

Dated   25 September 2015

Date(s) of hearing	24 April 2015
Date final submissions received	10 April 2015
Solicitors for the Applicant	Uther Webster and Evans
Solicitors for the Respondent	Australian Government Solicitor