NKFV and Director-General of Security

[2024] AATA 269

NKFV and Director-General of Security [2024] AATA 269 (9 February 2024)

Division:                  SECURITY DIVISION

File Number(s):      2023/1279

Re:  NKFV

APPLICANT

And  Director-General of Security

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President Senior Member A. Poljak

Member S. Evans

Date:  9 February 2024

Place:  Sydney

The correct and preferable decision is that the reviewable decision is affirmed.

.............................[sgd]............................................

The Hon. John Pascoe AC CVO, Deputy President

© Commonwealth of Australia 2024

CATCHWORDS

NATIONAL SECURITY – review of adverse security assessment – whether direct or indirect risk to security – recommendation that visa be cancelled – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 39A, 39B, 43 Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 38 Migration Act 1958 (Cth) s 501

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President Senior Member A. Poljak

Member S. Evans

9 February 2024 BACKGROUND

1.I note the Respondent’s statement of facts, issues and contentions contains a helpful factual summary of this matter, much of which is replicated below.

2.The Applicant arrived in Australia in September 2020 on a Distinguished Talent (subclass 124) visa and has resided in Australia since that time. Prior to her arrival the Applicant lived in Ireland.

3.On 1 February 2023, the Respondent made an adverse security assessment (ASA) recommending that the Minister for Home Affairs (the Minister) cancel the Distinguished Talent visa (subclass 124) held by the Applicant.

4.In the ASA, ASIO assesses the Applicant to be directly or indirectly a risk to security pursuant to section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth)

(ASIO Act) and that the requirements of security make it necessary or desirable for the Applicant’s visa to be cancelled.

5.The open Statement of Grounds from ASIO assessed that the Applicant:

(a)Engaged in espionage and foreign interference activities in Ireland for the benefit of the Government of the Russian Federation;

(b)Migrated to Australia with the intent of gaining access to information of interest to Russian Intelligence Services (RIS) by establishing herself in the Australian space industry for the purpose of re-engaging in espionage and foreign interference activities on behalf of the Russian Federation; and

(c)Poses an enduring risk to Australia’s national security through her affiliation with RIS.

6.On 23 February 2023, the Minister decided to cancel the Applicant’s visa.

JURISDICTION

7.Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and section 54 of the ASIO Act confer jurisdiction on the Tribunal.

8.Section 39A of the AAT Act prescribes the procedure to be followed in relation to review of a security assessment. In particular:

(a)The Director-General has a duty to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the Applicant;

(b)The proceedings are to be in private;

(c)Subject to certain exceptions, the Applicant and a person representing the Applicant may be present when the Tribunal is hearing submissions made or evidence adduced on behalf of the Director-General;

(d)The ASIO Minister may certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General are of such a nature

that the disclosure of the evidence or submissions would be contrary to the public interest because disclosure would prejudice security or the defence of Australia;

(e)If such a certificate is given, neither the Applicant nor (unless the ASIO Minister consents) a person representing the Applicant may be present when the evidence is adduced or the submissions are made;

(f)If the ASIO Minister consents to a person representing the Applicant being present, that person much not disclose any such evidence or submissions to the Applicant or to any other person;

(g)If the Director-General requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General is not revealed;

(h)The Tribunal must first hear evidence and submissions made, by or on behalf of the Director-General and a Commonwealth agency. It then hears the Applicant’s evidence and submissions.

9.The AAT Act also relevantly provides that:

(a)The ASIO Minister may certify that the disclosure of information with respect to a matter, or the disclosure of the contents of a document, would be contrary to the public interest (s 39B(2)); and

(b)If the ASIO Minister so certifies, a person who is required by the AAT Act to disclose information or produce documents to the Tribunal for the purpose of a proceeding is not excused from doing so, but the Tribunal must do all things necessary to ensure that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding and that the document is returned to the person by whom it was produced.

10.It is also the duty of the Tribunal, even though there may be no relevant certificate from the ASIO Minister, to ensure, so far as it is able to do so, that information is not communicated or made available to a person contrary to the requirements of security.

ISSUE

11.In the current case, the question for the Tribunal in deciding whether it should affirm, vary or set aside the ASA pursuant to section 43(1) of the AAT Act is whether or not it accepts that the Applicant is directly, or indirectly, a risk to security.

EVIDENCE

12.The following evidence was before the Tribunal:

(a)Unclassified affidavit of Ms Monica Carlisle, affirmed 8 June 2023;

(b)Confidential affidavit of Ms Monica Carlisle, affirmed 7 June 2023;

(c)Section 39A(3) material filed with the Tribunal;

NON-DISCLOSURE CERTIFICATES

13.The Tribunal received several certificates signed by the Minister for Home Affairs.

14.The first was a certificate dated 8 February 2023 under section 38(2)(b) of the ASIO Act. The balance dated 10 July 2023, 13 September 2023 and 15 November 2023 were issued under sections 39A and 39B of the AAT Act.

15.Such certificates are important to the way the Tribunal conducts its proceedings. The certificates require that information produced to the Tribunal be kept confidential and also that the Applicant’s representative not have access to such information.

16.The Applicant’s counsel sought to challenge his exclusion from the closed session, and drew the Tribunal’s attention to the fact that he had a high-level security clearance. The Respondent opposed the argument made by counsel for the Applicant.

17.At the hearing the Tribunal considered the matter and advised the parties that it found the certificates to be valid and therefore binding on the Tribunal.

DISCUSSION

18.In her open affidavit, Ms Carlisle outlined the circumstances in which the ASA was made.

19.In particular, Ms Carlisle outlined the long history of the Russian intelligence services in targeting Australia. It was noted that the 1956 Royal Commission on Espionage (the Petrov Report) concluded that the RIS had been operating in Australia since 1943.

20.In 1918, Australia had expelled two Russian diplomats, assessed to be undisclosed intelligence operatives. Ms Carlisle referred to the influence and misinformation operations of the RIS in Australia and in other Western Countries, and stated ‘Russia is a highly sophisticated cyber-power responsible for aggressive and widespread cyber targeting of global networks to advance its political, economic and military objectives’, and gave a number of examples of these activities internationally.

21.ASIO assessed the Applicant as having engaged in espionage and foreign interference activities in Ireland for the benefit of the Government of the Russian Federation. This was based on a range of confidential material but included:

(a)the Applicant’s association with Russian officials, [Redacted];

(b)attempted to minimise to ASIO the level of interest in her work in Ireland; and

(c)was in a conscious/witting intelligence relationship.

22.     [Redacted].

23.The Applicant admitted that she had contact in Ireland with a number of Russian officials, although it was accepted that at least some of that contact was in the course of her employment with the National Space Centre (NSC). These included [Redacted] who was posted at the Russian embassy in Dublin, and who the Applicant said she had probably met in 2011 and 2012, and later [Redacted] who replaced [Redacted] at the Russian Embassy in Dublin. The Applicant gave various dates as to when she had met [Redacted].

24.     [Redacted]. The Applicant also had a relationship with [Redacted], who was the person the

Applicant dealt with at ROSCOSMOS, and who was its manager for international collaboration. [Redacted].

25.The Applicant’s work in Ireland related to developing intergovernmental co-operation between Ireland and Russia and clearly provided opportunities for her to interact both with Russian officials and with ROSCOSMOS. It is known that entities such as ROSCOSMOS are used to provide cover for RIS agents.

26.The Applicant admitted to ASIO, somewhat belatedly, that she had travelled to Russia 6 or 8 times while she was employed at the NSC, and she also travelled regularly to international conferences. Both would provide opportunities for contact with RIS officials.

27.Ms Carlisle noted in her affidavit that the Applicant continued to maintain regular contact with Russian officials, particularly [Redacted], after she had left the NSC and kept in contact with him after she migrated to Australia.

28.There was a significant amount of material in Ms Carlisle’s affidavit, and evidence provided to the Tribunal where the Applicant had provided contradictory information to ASIO in relation to her work in Ireland, and attempted to minimise both the extent to which she had access to sensitive information and her contact with Russian officials.

29.The Applicant gave conflicting evidence as to her contact with Russian officials, including [Redacted]. At one stage the Applicant claimed that [Redacted] was a close family friend but later, as recently as 25 June 2023, publicly denied that [Redacted] was a friend of hers and said that they only had a working relationship. The Applicant also told ASIO that she was only maintaining a relationship with [Redacted] because this was a requirement of her work. Further, the Applicant gave conflicting information as to her ongoing contact with those involved in the Russian space industry once she had left the NSC and migrated to Australia, but she continued to exchange messages with [Redacted] once she was living in Australia.

30.The Applicant denied contact with Government officials from other countries, although the Applicant’s husband gave evidence of the Applicant being approached by an American in

Ireland, a Chinese official in Beijing and someone in London. The Applicant’s husband however, thought those suggested that these men were Government officials.

31.In Ms Carlisle’s opinion was that the Applicant had access to information of interest to Russia and that her comments that Russian officials showed no interest was implausible.

32.The Tribunal accepts the Respondent’s argument that it simply does not ring true that the Applicant would be being approached by officials from third countries in relation to her work and not by Russian officials.

33.There were a number of other areas in which the Applicant had provided conflicting information to ASIO.

34.The Tribunal accepts ASIO’s assessment that the Applicant was likely motivated by her affiliation with the RIS and the interest of that organisation in the space program. The assessment is supported by confidential information provided to the Tribunal in closed session.

35.It was noted that the Applicant migrated to Australia under a Distinguished Talent visa and that in doing so the Applicant had highlighted her experience in the areas of Space and Science since 2011. ASIO assessed that the Applicant migrated to Australia with the intent of establishing herself in the Australian space industry so that she was able to engage in espionage on behalf of the Russian Federation.

36.There was also evidence before the Tribunal as to the conflicting reasons given by both the Applicant and her husband as to why the Applicant had chosen to migrate to Australia. The Tribunal accepts that there was sufficient evidence to indicate that the Applicant had directly sought to maintain a close relationship with [Redacted]. The Applicant sent [Redacted] a number of communications once she arrived in Australia, and in his first reply on 18 June 2021, [Redacted] said he was ‘interested in everything’ and encouraged continued contact.

37.In considering whether the Applicant posed any on-going risk, Ms Carlisle specifically stated that:

I have considered whether the Applicant’s utility to RIS has been diminished by the fact she has not been associated, by name, with them publicly as a result of her various media interviews. Specifically, I have considered whether this publicity will

so reduce her future value to RIS – potentially because she will be ‘under suspicion’ and unlikely to be trusted with privileged or sensitive information in future – that she would no longer pose a direct or indirect risk to security. However, in my assessment, this does not mitigate her future risk.

a.    I accept that the Applicant may be less able to obtain a position that enables her to access classified information. However, the range of workplaces that handle privileged or sensitive information is much broader than those dealing with national security classified information – for example, over time the applicant may be in a position to access private sector confidential information to fulfil RIS intelligence collection requirements.

b.    I assess that RIS would not be critically deterred from approaching her (or her them) were she to gain access to information of use in future. However, I assess that this publicity would be a factor RIS would consider in deciding how and when to re-engage the Applicant. For example, I would expect RIS to adopt stringent operational security practices.

c.     I assess there are ways the Applicant could assist RIS even without accessing sensitive information herself. For example, acting as a ‘talent spotter’ to identify associates of hers who do have such access and giving their details to RIS.

38.In her affidavit, Ms Carlisle also outlined other instances where the Applicant also provided conflicting evidence to ASIO in relation to her contact with Russian officials, and her attempt to obfuscate the depth of her relationship with Russian officials.

39.     [Redacted].

40.Ms Carlisle outlined the ongoing contact between the Applicant and [Redacted] once she arrived in Australia, including meetings and WhatsApp communications.

41.Ms Carlisle’s affidavit also set out the various countervailing circumstances that were relevant, including her explanation for her ongoing contact with Russian officials, and the fact that she had not received, or been offered any benefits in exchange for providing information that may have been of benefit to the RIS.

42.Of particular concern, Ms Carlisle considered that the Applicant attempted to minimise to ASIO the truth of her relationships in order to avoid security concerns.

43.Ms Carlisle concluded on the basis of both the open and confidential material available to her that:

As to the enduring risk posed by the Applicant to Australia’s national security, I assess that the Applicant:

a.    Maintained the contact details of a Russian official [Redacted] and had ongoing contact with him since arriving in Australia;

b.    Attempted to obfuscate that the contact had occurred, and then downplayed its purpose once shown evidence from her phone of the contact;

c.     Did so because she knew that such contact would raise security concerns; and

d.    Sought to position herself in Australia to be able to obtain information would be of interest to RIS.

I agree with ASIO’s continued assessment that if the Applicant were to remain in Australia that she would likely seek to engage in espionage or acts of foreign interference on behalf of the Russian Government. I believe the cancellation of the Applicant’s visa was appropriate and proportionate to the assessed risk to security should she continue to hold a Distinguished Talent visa (subclass 124).

44.In open session the Applicant sought to question Ms Carlisle’s experience and expertise. The Tribunal is satisfied that Ms Carlisle had the relevant expertise and experience and that she should properly be considered as an expert witness. The Tribunal fully accepts that Ms Carlisle understood her role as an expert witness in assisting the Tribunal and that she performed that role appropriately. In the Tribunal’s opinion, nothing turns on the fact that Ms Carlisle had not been provided with the AAT Guidelines in relation to expert witnesses. The Tribunal also accepts that Ms Carlisle had properly reviewed all relevant documents at the time she affirmed her affidavit.

45.Ms Carlisle gave considerably more detailed information in relation to the matters canvased both in her confidential affidavit and in the course of her evidence to the Tribunal in closed session. The Tribunal was satisfied that Ms Carlisle was properly qualified to make her assessment and that she had done so with due skill and diligence.

46.At the Applicant’s insistence two witnesses were called in relation to the internal review. However, there was nothing to indicate any inconsistency and both reviewers had come to the same conclusion, namely, that the ASA was properly determined.

47.The Applicant argued that contrary to Ms Carlisle’s findings, the Tribunal should find that the assessment of the Applicant as a risk to security, either directly or indirectly, was not established. In particular, the Applicant argued that there was no evidence that she had had any communication with a person connected with the RIS [Redacted], and that any contact did not support any ‘enduring affiliation’ with the RIS.

48.Accordingly, as the Applicant had not gained access to any information in Australia that would be of benefit to the RIS there was no likelihood of the Applicant being involved in ‘espionage’ or ‘acts of foreign interference’.

49.It was further argued that the public disclosure of the Applicant’s ASA in Australian media further reduced the likelihood that the Applicant would ever be in a position to obtain or communicate sensitive information in the future, should she remain in Australia.

50.In relation to those arguments, it should firstly be noted that the Tribunal’s assessment of future risk must be undertaken on the basis that the ASA is set aside or withdrawn – in other words, that there is no adverse security assessment in relation to the Applicant.

51.The test in this case relates to the Minister’s power to cancel the visa under section 501 of the Migration Act 1958 (Cth). The test is whether, if the Applicant were allowed to remain in Australia, she would pose any ongoing risk to security. In this regard, Ms Carlisle accepted that if the Applicant were to work in an area of employment other than the Space industry it would reduce the risk the Applicant posed, but in her view it would be a slight reduction.

52.In looking at this question, the Tribunal must be guided by the evidence as to the Applicant’s past activities, including her ongoing relationship with [Redacted] and that the Applicant had engaged in espionage and foreign interference in Ireland for the benefit of the Russian Federation, and moved to Australia with the intention of carrying out similar activities in this country.

53.Having considered the totality of evidence, including that in closed session, we are of the opinion that the Applicant [Redacted] and that she poses, not just a current risk, but for the reasons as set out, poses an ongoing risk to security should she remain in Australia.

54.It is also of some significance that the Applicant has demonstrated a capacity to form relationships with people in Australia who may be of benefit in providing access to networks or individuals that may be of interest to the RIS. We elaborate on this aspect in detail in closed reasons. The Tribunal also notes the evidence of Mr George Edwin that there are cases of people who are an asset to a foreign intelligence service even though they are

working perhaps in non-sensitive areas, and that there are many ways in which a person could be an asset to a foreign intelligence service.

55.Put simply, the Applicant could act as a ‘talent spotter’ to target others who could be approached by the RIS. The Tribunal notes the evidence that the Applicant became friendly with a man she met through her son, who she believed works ‘on submarines in Adelaide’, and her capacity to entrench herself within organisations, for example, the clay target club which her husband joined, and where she would meet a range of people who may be of interest to the RIS.

56.The Tribunal notes that the statutory language in section 4 of the ASIO Act does not specify any level of seriousness that must be reached and it is likely that any espionage or foreign interference in Australia or Australian organisations would prejudice the protection of, and the people of, the Commonwealth.

57.Although it is not necessary for the Tribunal to make findings as to the level of risk, it must be, on the facts in this case considered as substantial.

58.Ms Carlisle herself explained:

The harm caused by hostile intelligence activity can undermine Australia’s national security and sovereignty, damage our international reputation and relationships, degrade our diplomatic and trade relations, inflict substantial economic damage, degrade or compromise national vital assets and critical infrastructure, and threaten the safety of Australian nationals and residents in our diaspora communities.

59.The Applicant did not submit any affidavit evidence to the Tribunal, and did not give any oral evidence. At the hearing the Applicant’s counsel provided some explanation as to why the Applicant did not want to give evidence but in particular, referred to the fact that the Applicant having had a number of interviews with ASIO had ‘no idea’ of what was in the confidential information.

60.Whilst the Tribunal draws no adverse inference from the fact that the Applicant did not choose to give evidence, the result was that there was no real competing narrative to that provided by Ms Carlisle in her affidavit.

61.After considering the totality of the evidence presented in both open and closed session, the Tribunal is satisfied that the Applicant is properly regarded as directly or indirectly a risk

to security within the meaning of section 501(6)(g) under the Migration Act 1958 (Cth) and that the reviewable decision of 1 February 2023 is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President, Senior Member A. Poljak & Member

S. Evans

..........................[sgd]............................................

Associate

Dated: 9 February 2024

Dates of hearing:  14, 15 & 16 August 2023; 7 September 2023

Date final submissions received:     1 December 2023

Counsel for the Applicant:                Craig Lenehan SC, Mr Thomas Wood

Solicitor for the Applicant:                Mr M Simmons

Counsel for the Respondent:           Jennifer Single SC

Solicitors for the Respondent:          Australian Government Solicitor