NKFV and Director-General of Security (Intelligence and security)
[2025] ARTA 266
•26 March 2025
NKFV and Director-General of Security (Intelligence and security) [2025] ARTA 266 (26 March 2025)
Applicant:NKFV
Respondent: Director-General of Security
Tribunal Number: 2024/1588
Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:26 March 2025
Decision:Pursuant to s 140(3) of the Administrative Review Tribunal Act 2024, the Tribunal dismisses the Applicant’s application for the adverse security assessment decision to be reviewed again.
..................[SGD]......................................................
Deputy President Britten-Jones
Catchwords
Intelligence and Security – application under s 140(2) of the Administrative Review Tribunal Act 2024 for a decision relating to an adverse security assessment to be reviewed again – application brought under s 54(2) of the Australian Security Intelligence Organisation Act 1979 prior to abolition of the Administrative Appeals Tribunal – consideration of whether to apply the law as it was as at the date of the application or the date of the Tribunal’s decision – the application proceeds under s 140 of the Administrative Review Tribunal Act 2024 – whether further evidence of material significance has become available – whether the further evidence was not available at the time of the initial review - Tribunal dismisses the Applicant’s application for the decision to be reviewed again
Legislation
Australian Security Intelligence Organisation Act 1979
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
Cases
Esber v Commonwealth (1992) 106 ALR 577
NKFV and Director-General of Security [2024] AATA 269
SDCV v Director-General of Security [2021] FCAFC 51
SDCV v Director-General of Security [2022] HCA 32Secondary Materials
Explanatory Memorandum, Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Cth)Transcript of Proceedings, NKFV v Director-General of Security (Administrative Review Tribunal, 2024/1588, Deputy President Britten-Jones, 27 February 2025)
Statement of Reasons
NKFV (the Applicant) applied unsuccessfully to review an adverse security assessment in NKFV and Director-General of Security [2024] AATA 269 which was a decision delivered by the Administrative Appeals Tribunal (the AAT) on 9 February 2024 (the Initial Review).
The adverse security assessment had been made on 1 February 2023. Following the determination of the Initial Review, the Applicant applied for a further review by application dated 15 May 2024 pursuant to the now repealed and substituted s 54(2) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).
Section 54(2) of the ASIO Act was in effect as at the date of this application and provided:
At any time after the completion of a review by the Tribunal of a security assessment (other than a review of a security assessment made for the purposes of subsection 202(1) of the Migration Act 1958), an application may be made for review of the findings of the Tribunal on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.
The Respondent contends that s 140 of the Administrative Review Tribunal Act 2024 (the ART Act) applies to this further application for review and requires that it be dismissed. Section 140 provides:
Applications for decisions to be reviewed again
When this section applies
(1) This section applies in relation to an intelligence and security decision, other than an exempt security record decision.
Application for decision to be reviewed again
(2) If the Tribunal has reviewed the decision, the person who applied for the review may apply to the Tribunal for the decision to be reviewed again.
(3) The Tribunal must dismiss the application unless the Tribunal is satisfied that:
(a) further evidence of material significance has become available; and
(b) the further evidence was not available at the time of the initial review.
This application raises the following issues:
(a)Should the Tribunal apply the law as it was as at the date of the application (namely, 15 May 2024) or the date on which the Tribunal makes its decision?
(b)Is the Tribunal satisfied that the further evidence sought to be adduced was not available at the time of the initial review?
WHAT IS THE APPLICABLE LAW?
The application for a second review was lodged with the AAT under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (the ART). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the ART Transition Act), from 14 October 2024, the ART has jurisdiction to conduct the review under the ART Act.
The ART Transition Act is described as an Act to deal with consequential and transitional matters arising from the enactment of the ART Act, and for related purposes.
Part 1 of Schedule 16 in the ART Transition Act provides definitions as follows:
1 Definitions
In this Schedule:
AAT means the Administrative Appeals Tribunal.
ART means the Administrative Review Tribunal.
new Act means the Administrative Review Tribunal Act 2024.
new law means the law of the Commonwealth as in force from time to time after the transition time.
old Act means the Administrative Appeals Tribunal Act 1975 as in force immediately before the transition time.
old law means the law of the Commonwealth as in force from time to time before the transition time.
reporting period has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
rules means the rules made under item 51.
transition time means the time the new Act commences.
Part 5 of Schedule 16 in the ART Transition Act deals with proceedings in process as at the date (14 October 2024) when the AAT was replaced by the Tribunal. Clause 24 in Schedule 16 of the ART Transition Act provides:
24 AAT proceedings
(1) This item applies if a proceeding in the AAT is not finalised (however described) before the transition time.
(2) The proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.
(3) For the purposes of subitem (2), the ART must have regard to the impact of the following on the parties to the proceeding:
(a) the repeal of the old Act;
(b) the enactment of the new Act;
(c) the effect (including the operation) of this Act.
(4) The ART must, as far as possible, continue the proceeding under the new law.
(5) To avoid doubt, subitem (4) has effect subject to subitem (2).
Effect of things done before the transition time
(6) Anything done in, or in relation to, the proceeding before the transition time continues to have effect for the purposes of, or in relation to, the proceeding (as the case requires) after the transition time.
(7) Anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time.
(8) Anything done in, or in relation to, the proceeding before the transition time by the AAT is taken, after that time, to have been done by the ART.
As part of the transition from the AAT to the ART, consequential amendments were made to the ASIO Act, including with respect to s 54(2), as it was then in force (set out above), which was amended by clause 35 of Schedule 4 in the ART Transition Act so that s 54 of the ASIO Act no longer deals with a further application for review, but rather simply provides:
54 Applications to Tribunal
(1) An application may be made to the Tribunal for a review of an adverse or qualified security assessment.
(2) The application may be made by the person in respect of whom the assessment was made and who has been given notice of the assessment under section 38.
The operative provision dealing with an application for a second review after completion of an initial review is found in s 140 of the ART Act which is set out above. Section 140(1) states that the section applies in relation to an intelligence and security decision, other than an exempt security record decision. The definition of an intelligence and security decision in s 4 of the ART Act includes a security assessment. The decision under review was an adverse security assessment and therefore the Respondent contends that s 140 of the ART Act is the applicable law and not s 54(2) of the ASIO Act.
The Applicant contends that the old law (s 54(2) of the ASIO Act as it then was) should apply because that is “what is fair”.[1] The obligation in clause 24(4) of Schedule 16 in the ART Transition Act “to continue the proceeding under the new law” only operates “as far as possible” and should be read in the context of the obligation contained in clause 24(2) which requires the ART to continue and finalise the proceeding “in a manner that the ART considers is efficient and fair.” The Applicant says that she brought her application for a second review in May 2024 under s 54(2) of the ASIO Act as it then was and it would be unfair for the Applicant if s 140(3) of the ART Act applied. The effect of the contention is that the Applicant prefers s 54(2) of the ASIO Act as it was because it uses the discretionary language that “an application may be made” as opposed to the language of s 140 of the ART Act which uses the obligatory language of “must dismiss”. The Applicant contends that she is already at a considerable disadvantage because of the procedures that apply to a review of a security assessment which she says prevents her from knowing the case against her and therefore fairness requires that the ART retains a discretion.
[1] Transcript of Proceedings, NKFV v Director-General of Security (Administrative Review Tribunal, 2024/1588, Deputy President Britten-Jones, 27 February 2025) 2 [38] (‘Transcript’).
I must determine what is the applicable law - either s 140 of the ART Act or s 54(2) of the ASIO Act (as it was). The answer to this question depends on the construction and operation of clause 24 of Schedule 16 in the ART Transition Act. Clause 24(4) says that “[t]he ART must, as far as possible, continue the proceeding under the new law.” The new law means the law of the Commonwealth as in force from time to time after the transition time, namely in this case, s 140 of the ART Act and the ASIO Act as amended. The only qualification in clause 24 to the obligation to continue under the new law is the phrase “as far as possible”.
As set out in the Explanatory Memorandum for the ART Transition Act, the starting point is that the ART must, as far as possible, continue the proceeding under the new law. Proceeding under the new law ensures that the ART is not required to apply different versions of the law depending on whether a proceeding was transferred from the AAT to the ART, or commenced in the ART after the transition time.[2] The clear intent is for the new law to be applied consistently to those proceedings which are either transferred to or commenced in the ART.
[2] Explanatory Memorandum, Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Cth) 218 item 24.
The obligation in clause 24(2) to continue and finalise the proceeding in a manner that is efficient and fair provides the ART with some flexibility in its approach to continuing and finalising transferred proceedings.[3] However, it does not detract from the obligation to continue, as far as possible, under the new law. The obligation to be efficient and fair applies to the procedure for the transferred proceedings.
[3] Ibid.
In this case, it is possible to continue the proceedings by application of s 140 of the ART Act. The ART Transition Act assists because, for example, clause 24(7) has the effect that the proceedings commenced by the Applicant under s 54(2) of the ASIO Act (as it then was) are taken to be valid under, or to have been done in accordance with, s 140 of the ART Act. There is no reason why the proceedings would not continue under the new law found in s 140 of the ART Act. General notions of fairness are not the predominant consideration when determining the question as to whether the proceedings should continue under the new law. Of course, once it is determined that the new law applies, fairness applies to the procedure to then be adopted because, under clause 24(2), the proceedings must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.
The obligation for fairness in the proceedings that continue under the new law would be considered in the context of the legislative scheme applicable to proceedings in the Intelligence and Security jurisdictional area found in Part 6 of the ART Act. The rights of an applicant to participate in a review of an adverse security assessment are severely curtailed by these provisions. For example, the information disclosed to an applicant will be limited if the Tribunal makes an order under s 157 or a responsible Minister provides a security certificate under s 158 or a public interest certificate under s 161.
It follows that what is “efficient and fair” under clause 24(2) in one case may be different in another case. This is a case which was initially brought in the security division of the AAT, and which proceeded in the Intelligence and Security jurisdictional area of the ART and therefore what is fair must be considered in that context. The AAT Act was said by Rares J in SDCV v Director-General of Security [2021] FCAFC 51 at [4]:
…to provide an applicant with a full merits review of the ASA in the Tribunal, but under a legal structure that seeks to ensure the maintenance of necessary confidentiality and secrecy about matters of Crown privilege or public interest immunity and other subjects of a Ministerial certificate under s 39B(2) of the AAT Act.
In the appeal to the High Court[4] challenging the validity of s 46(2) of the AAT Act, Kiefel CJ, Keane and Gleeson JJ referred to:
the undisputed validity, irrespective of any challenge to the ASA decision or its outcome, of the statutory denial of disclosure to the appellant of security-sensitive information including, on review and appeal, the certificated matter. The rights of a visa holder were always qualified by the statutory process of the executive government to deny the visa holder disclosure of security-sensitive grounds for the making of an ASA.
[4] SDCV v Director-General of Security [2022] HCA 32 at [12].
The obligation to continue in a manner that the ART considers is efficient and fair would be interpreted in the context of the procedure applicable to the Intelligence and Security jurisdictional area. Further, the legislative change from s 54(2) of the ASIO Act (as it was) to s 140 of the ART Act does not give rise to any unfairness but rather, it simply reflects a change of policy as intended by parliament. Clause 24(3) requires me, for the purposes of clause 24(2), to have regard to the impact on the parties of the repeal of the AAT Act and the enactment of the ART Act, but I consider there to be no adverse impact from these legislative changes.
A further factor that supports the application of the new law is that the AAT and the ART usually applies the law that is in place at the time the decision is made rather than the time of the application being brought: Esber v Commonwealth (1992) 106 ALR 577 at 590.
I conclude that the applicable law is the ART Act and the ASIO Act as amended. The application of the applicant for a further review should be determined in accordance with s 140(3) of the ART Act.
APPLICATION FOR DECISION TO BE REVIEWED AGAIN
Having decided that the law applicable to this application is s 140(3) of the ART Act, I must dismiss the application unless satisfied that:
(a) further evidence of material significance has become available; and
(b) the further evidence was not available at the time of the initial review.
If the Tribunal is not satisfied with respect to both the above limbs, the application must be dismissed. There is no discretion that would apply even if the Tribunal were of the view that the further evidence is relevant to issues in the application.
The previous application to the Tribunal was heard on 14, 15 and 16 August and 7 September 2023. The decision under review was affirmed by written decision on 9 February 2024. The reasons included a statement as follows:
[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.
The Applicant has provided an affidavit dated 15 May 2024 which sets out the ‘new evidence’ on which the Applicant seeks to rely. The Applicant deposes to a very significant amount of evidence over 25 pages plus a further 96 pages of annexures. I accept that the evidence sought to be adduced is of material significance.
In support of this application, the Applicant lodged a Statement of Grounds which included:
[7] The applicant accepts that the evidence that is now provided was within her knowledge at the time of the previously constituted review.
[8] The Applicant also accepts that the Respondent was critical of the Applicant’s decision not to provide evidence prior to the commencement of the previous hearing. Those criticisms are not justified given the context of this application is set out below.
[9] Ultimately, at no stage prior to a decision being reached by the previously constituted Tribunal was the Applicant in a position where she could be confident that she knew the case against her, or confident that she was in possession of all the material and information that would be available to her. The Applicant was therefore never in a reasonable position to assess what evidence was materially significant.
…
[16] It was not until receipt of the Respondent’s closing submissions in reply that it became clear that the Respondent did not establish a motive, instead contending that motive is not necessary to establish that the applicant poses an enduring risk to security. By the time this position became clear, the applicant was unable to provide any material or submissions to the contrary.
The Applicant maintains that the “issue of fairness is fundamental” to the application.[5] The Applicant has provided reasons for not giving evidence at the Initial Review. In her affidavit she deposes as to ‘Why I did not provide evidence previously’ and she explains the situation that she faced. At paragraph 6 of her affidavit the Applicant says:
[6] I understand that as part of my initial application for review of the ASA, I indicated that I intended to provide further clarifying information and documentation as part of the review. I also understand that I indicated that I proposed to give evidence as a witness, and call my husband to give evidence.
[5] Transcript (n 1) 7 [21].
The Applicant then deposed in her affidavit the reasons for choosing not to give evidence in particular that:
I was under the impression that ASIO would need to actually show me some evidence or at least tell me what the evidence was before they could ruin my life. This never came. It was only in the closing submissions in reply that the Director-General of Security finally admitted that they had not established any particular motive but somehow did not consider that necessary. By this time, it was too late for me to address this.
The Respondent contends that all of the evidence now sought to be provided by the Applicant was previously available, but the Applicant (who was at all relevant times represented by experience senior and junior counsel) chose not to lead it. The respondent says that, having received a final decision contrary to her interests, the Applicant now seeks to change her mind in the hope of obtaining a better outcome.
The Respondent contends that it is not necessary for the Tribunal to make findings as to the submissions made by the Applicant explaining and defending her decision not to give the new evidence previously.
In response, the Applicant says:
This contention does not grapple with the fact that, prior to the previous constituted review, the Applicant was not aware of the factual issues sought to be relied upon by the Respondent given that the open material available to the Applicant was insufficient to support the ASA. A distinction must be drawn between information and evidence, with the former only becoming the latter once it assumes the quality of being relevant to establishing an alleged issue under investigation. Whilst the Applicant possessed the “information” prior to the previously constituted review, it cannot be said that she knowingly possessed and withheld “evidence” in circumstances where she could not be aware of the relevance of any particular information within her knowledge to any factual issue in dispute.
I reject the Applicant’s contention based upon a distinction between information and evidence. A consideration of the evidence available is an objective analysis and does not depend upon the Applicant’s subjective awareness of the relevance of information within her knowledge. It cannot be said that the evidence available to an Applicant is limited to the evidence that is relevant to issues disclosed to the Applicant by the Respondent’s case. There was no suggestion that the Applicant was prevented from putting on the evidence now sought to be adduced. In that regard, I would note that the Tribunal is not bound by the rules of evidence and, no doubt, would have been assisted at the Initial Review if evidence had been given by the Applicant. Further, the Applicant was well aware that the legislative scheme resulted in significant material relevant to the adverse security assessment not being disclosed to the Applicant. There was a reference in the reasons for the decision on the Initial Review to several certificates signed by the Minister for Home Affairs. The situation for the Applicant can be contrasted to a criminal trial where there is an obligation on the prosecution to disclose all relevant evidence to the accused.
In any event, it cannot be said that the Applicant was flying completely blind. The Applicant was aware from the open Statement of Grounds that an adverse security assessment had been made and that 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 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 Russian Intelligence Services.
Despite knowledge of this case against her, the Applicant chose at the hearing of the Initial Review to not put on evidence to counter these findings.
The Applicant expressly admitted at [7] of her Statement of Grounds dated 15 May 2024 that ‘the evidence [my emphasis] that is now provided was within her knowledge’. Being ‘within her knowledge’ means that it was available to her at the time of the Initial Review. The reasons for her choosing not to give evidence at the earlier hearing are not relevant to the elements of s 140(3). It is clear from the terms of s 140(3) that there is no residual discretion to allow a further review in circumstances where the limbs in subsections (a) and (b) are not satisfied.
I conclude that the further evidence sought to be adduced by the Applicant was in fact available at the time of the initial review and, therefore, the Applicant has failed to satisfy the second limb of s 140(3) of the ART Act. The application must be dismissed on that basis alone.
The Applicant has also failed to satisfy the first limb of s 140(3) because the evidence that she deposes to in her affidavit was available at the time of the Initial Review and hence, it has not ‘become available’ since that hearing. The Applicant deposes in her affidavit that she will ask the Tribunal to issues summons to numerous witnesses but it appears from the evidence that those summons could have been issued for the Initial Review hearing. The evidence now sought to be adduced is very significant and includes topics as follows:
(a)How and why I ended up in Ireland
(b)How I came to be employed in the space industry
(c)My growing role in the space industry and involvement with the International Astronautical Federation
(d)How I became involved with SpaceSpecialists and pathway to Australia
(e)Our alternative pathway – Canadian immigration in 2019
(f)My family background and why it is relevant
(g)Alex’s family history
(h)My family history.
All of the above evidence was available at the Initial Review. It cannot be said that it only became available later. Indeed, some of the evidence sought now to be adduced is relevant to issues expressly raised at the Initial review which is apparent from references to it in the reasons for the earlier decision of the Tribunal. I provide two examples below.
First, included in the Applicant’s affidavit is evidence seeking to counter the allegation that she may act as a “talent spotter”, but this issue is dealt with by the Tribunal’s reasons at [55]. This evidence was not only available to the Applicant, but it was raised as an issue at the Initial Review when she chose to give no evidence about it.
Second, the Applicant also seeks to give evidence about her decision to migrate to Australia, but this issue was also raised at the Initial Review and is dealt with in the Tribunal’s reasons at [35] and [36]. Again, this evidence was not only available to the Applicant, but it was raised as an issue at the initial review when she chose to give no evidence about it.
The evidence in the Applicant’s affidavit was available to the Applicant at the time of the initial review, but she chose not to rely on it.
I note that I was referred to authorities that considered when a new trial may be ordered on the basis of fresh evidence. Both parties accepted, and I agree, that these authorities are not particularly helpful given the very clear terms of s 140(3).
Under s 140(3) of the ART Act, the Tribunal must dismiss the application unless satisfied with respect to both limbs in ss 140(3)(a) and (b). I am not satisfied with respect to either of the limbs and it follows that the Tribunal dismisses the Applicant’s application for the decision to be reviewed again.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
.................[SGD].......................................................
Associate
Dated: 26 March 2025
Date(s) of hearing: 27 February 2025 Applicant’s Representative: Mitch Simmons (Estrin Saul Migration Specialists)
Respondent’s Counsel: Jennifer Single SC Respondent’s Representative: Australian Government Solicitor
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