QDJM and Director-General of Security
[2021] AATA 4761
•15 December 2021
QDJM and Director-General of Security [2021] AATA 4761 (15 December 2021)
Division:SECURITY DIVISION
File Number(s): 2020/6218
Re:QDJM
APPLICANT
AndDirector-General of Security
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Senior Member Cameron
Senior Member FurnellDate:15 December 2021
Place:Melbourne
The Tribunal affirms the decision of the Director-General of Security of the Australian Security Intelligence Organisation dated 31 August 2020 to issue an adverse security assessment against QDJM under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth).
.............[sgd]...........................................................
Deputy President Britten-Jones
Catchwords
NATIONAL SECURITY - adverse security assessment - recommendation for cancellation of visa – acts of foreign interference – meaning of clandestine – applicant is a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) - decision affirmed
Legislation
Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17, 35, 37, 38, 54 and 61
Migration Act 1958 (Cth) s 501(3)Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 25, 39A, 39B, 43 and 43AAA
Cases
MYVC v Director-General of Security [2014] FCA 1447
Re BLBS and Director-General of Security (2013) 137 ALD 196
SDCV v Director-General of Security [2021] FCAFC 51
Director-General of Social Services v Hales (1983) 47 ALR 281
FLSZ v Director-General of Security [2018] AATA 5900
CMHV v Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Leghaei v Director-General of Security [2007] FCAFC 37
Jaffarie v Director General of Security [2014] FCAFC 102Secondary Materials
Explanatory Memorandum for the Law and Justice Legislation Amendment Bill (No. 3) 1994
Administrative Appeals Tribunal, Dennis Pearce, 5th edition, LexisNexisHope Royal Commission Report 1984
REASONS FOR DECISION
Deputy President Britten-Jones
Senior Member Cameron
Senior Member Furnell15 December 2021
This is an application to review an adverse security assessment (ASA) made in relation to the applicant by the Australian Security Intelligence Organisation (ASIO) under ss 17(1) and 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act).
The Tribunal has power to hear and determine an application for a review of an ASA pursuant to s 54 of the ASIO Act.
The Adverse Security Assessment
On 31 August 2020 ASIO made the ASA, which it furnished to the Department of Home Affairs on 21 September 2020.
ASIO assessed the applicant to be a risk to security and said that the requirements of security make it necessary or desirable for his visa to be cancelled. The stated security concern related to acts of foreign interference. In particular, the statement of grounds (which forms part of the ASA) found that the applicant had undertaken acts of foreign interference on behalf of a particular, non-Australian, government (the “foreign government”); and that the applicant is amenable to conducting acts of foreign interference on behalf of, or in collaboration with, the foreign government in the future.
The particular assessments in the ASA are set out below:[1]
[1] Modified to maintain the applicant’s anonymity
ASIO assesses [the applicant] has undertaken acts of foreign interference, specifically on behalf of the [foreign] Government
[12] At an ASIO security assessment interview (SAI) on 29 June 2020, the applicant said he had been associated with …[Person A]’ since 2014 and was in contact with him via the … Internet based messaging platform … as recently as 22 June 2020. The applicant said he was referred to …[Person A] by a [foreign] police officer to whom the applicant had been providing information about …[foreign] fugitive …[Person B]. The applicant alleges …[Person B] defrauded him of [foreign currency] (about …[ many millions in AUD]). The applicant said …[Person A] was in charge of the [foreign] government’s investigation into …[Person B].
[13] …[Person B] published a covert recording of a conversation between himself and senior [foreign] …. security … officer …[Person C at Person B’s foreign home] …. In this recording …[Person B] makes reference to being investigated by a specialist investigative team … . At the SAI on 29 June 2020, the applicant said …[Person A] was a member of this group.
[14] At the SAI on 29 June 2020, the applicant said he assumed …[Person A] was an officer of the … , [the foreign country]’s main civil intelligence service. The applicant said …[Person A] changed his [messaging platform] account often, which the applicant believed was for security reasons. The applicant also said he had repeatedly asked where [Person A] worked but …[Person A] would not respond.
[15] ASIO assesses …[Person A] is likely to be detailed to the joint team responsible for investigating …[Person B] … , which oversees all of [the foreign country]’s law enforcement agencies, including the … . In light of his apparent use of tradecraft (his cycling through [messaging platform] accounts) to communicate with the applicant, ASIO assesses …[Person A] is likely to be an intelligence officer with the [foreign country’s main civil intelligence service] as opposed to an official from another [foreign] government agency.
[16] At the SAI on 29 June 2020, the applicant said while the majority of his communications with …[Person A] related to …[Person B, Person A] had asked the applicant to complete unrelated one-off tasks on a few occasions. The applicant provided an example related to a payment he attempted to make to a Melbourne-based …[student whose father resided in the foreign country]. The applicant said the …[father] advocated for democracy and human rights in … and had been detained by the [foreign] government. The applicant said …[Person A] asked him to provide AU$20,000 to the …[the] Melbourne-based …[student], who was experiencing serious health problems. The applicant said the money would be used to pay the son’s medical bills. The applicant said …[Person A] wanted to use the …[student] to tell …[his father] to stop criticising the [foreign government]. The applicant said the …[student] initially agreed to meet him but later refused and also would not accept the payment.
[17] The applicant’s cooperation with …[Person A] in this matter constitutes an act of foreign interference within the meaning of section 4 of the ASIO Act. The applicant took steps to complete a task assigned to him by someone he assumed to be a foreign intelligence officer. ASIO assesses this activity was undertaken for intelligence purposes. The use of the applicant, who is not outwardly associated with the [foreign country’s main civil intelligence service] or the [foreign] government, as an agent in this matter, is clandestine and deceptive.
[18] At the SAI on 29 June 2020, the applicant provided a second example related to research he had conducted on …[Person C] on behalf of …[Person A]. The applicant said in late 2017 …[Person A] asked him to investigate whether …[Person C] owned three specific properties in Australia. The applicant said …{person A} made this request to him via telephone call following a public accusation by …[person B] about …[Person C] owning these properties. The applicant said he agreed, and engaged a tax agent to conduct this investigation on the applicant’s behalf. The applicant said he told …[Person A] that he had not found any information which confirmed …[Person C] owned any properties in Australia. The applicant said …[Person A]told him this information will be used to determine whether …[Person C] would be able to be promoted to …[a senior position in the foreign government].
[19] This constitutes another act of foreign interference within the meaning of section 4 of the ASIO Act. The use of the applicant as an agent is clandestine and deceptive because the applicant is not outwardly associated with the [foreign country’s main civil intelligence agency] or the [foreign] government. Additionally, this activity occurred outside of official arrangements for information sharing between the Australian and [foreign] governments. The information was collected for intelligence purposes, evidenced by the applicant’s explanation that the information would be used to vet …[Person C] for a promotion.
ASIO assesses the applicant is amenable to conducting acts of foreign interference on behalf of, or in collaboration with, the [foreign] government in the future
[20] At the SAI on 29 June 2020, the applicant said his priority when dealing with …[Person A]was the return of the [foreign currency] allegedly stolen from the applicant by …[Person B]. When asked, the applicant said he agreed the [foreign] government had leverage over him due to his financial dispute with …[Person B]. When asked whether the applicant could be leveraged to conduct acts of foreign interference, the applicant said he and …[Person A] believed that the Australia-[foreign country] relationship should be treasured. ASIO assesses that despite this sentiment, …[Person A] is bound to act in the [foreign] government’s interests regardless of whether these activities constitute acts of foreign interference. The applicant has also demonstrated his willingness to participate in acts of foreign interference in exchange for goodwill towards the return of his assets. ASIO assesses the leverage held over the applicant by the [foreign] government, specifically its control over a significant portion of his wealth and his ongoing business interests in [the foreign country], remains in place and is unlikely to dissipate in the future.
In the ASA, it was recommended that the applicant’s visa be cancelled. Consequent upon that recommendation the relevant Minister cancelled the applicant’s visa in exercise of a power conferred by s501(3) of the Migration Act1958.
Summary of Decision
Having completed the review of the ASA, our decision is to affirm the ASA for the reasons set out below. We find that the applicant is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act; so that cancellation of his visa is consistent with the requirements of security and is made necessary or desirable by those requirements.
We have prepared two sets of reasons for that decision (and finding). This set of reasons outlines evidence adduced and submissions made in the open session of the hearing, in the presence of the applicant and his counsel, and certain findings based on that evidence and in response to those submissions. Evidence adduced and submissions made in the closed session of the hearing, in the absence of the applicant and his counsel, are the subject of a closed set of reasons. Since the proceedings were heard in private, and the applicant has a pseudonym, we have made only generalised findings of fact and appropriate modifications to direct quotes, where precise findings and quotations may have enabled the applicant to be identified.
The Evidence
The respondent lodged ‘T-documents’ pursuant to s 39A(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act), which required him to present to the Tribunal all relevant information whether favourable or unfavourable to the applicant. Included in the T‑documents were:
(a)numerous reports relating to security issues in Australia;
(b)media articles about the applicant and the circumstances he found himself in;
(c)transcripts of interviews with the applicant conducted by ASIO on 7 May 2019 and 29 June 2020; and
(d)a letter from ASIO to the Department of Home Affairs dated 21 September 2020 with attached ASA.
The Tribunal received an open and a closed affidavit and oral evidence from a senior officer of ASIO, who was given the assumed identity of George Edwin. Counsel for the applicant was invited by the Tribunal to submit questions he wished to have put to Mr Edwin in closed session and those questions were duly put to him.[2]
[2] See MYVC v Director-General of Security [2014] FCA 1447 per Rares J who described such a process at [22]‑[24].
Mr Edwin deposed that the purpose of his open affidavit was to assist the Tribunal and the applicant to understand the unclassified information provided in the T-documents. He gave some background about the intelligence threat to Australia from foreign powers and outlined particularly the security threats from ‘espionage’ and ‘foreign interference’. He referred to reports of the two Royal Commissions into Australia’s security and intelligence agencies conducted by Justice Hope. He said that since those reports were prepared over 30 years ago, foreign powers have continued to target and operate in Australia. Turning his attention to the applicant, he outlined the information derived from the media reports and the applicant’s interviews with ASIO. Finally, he explained ASIO’s security concerns with respect to the conduct of the applicant and set out some mitigating or countervailing factors.
The applicant provided a written statement dated 4 March 2021[3] in which he expressed his love for Australia which is why “I have sent all my children and family here.” He said he had been open and forthcoming in his interviews with ASIO and has hidden nothing. He denied harming the security interests of Australia and said that the information being relied upon by the respondent is based on what he told ASIO and “what anyone could easily find out from public media (online) sources.”
[3] Exhibit 6
The applicant said in his written statement:[4]
[4] Modified to preserve applicant’s anonymity
About Person A
[11] I have always said I do not know of his identity. He is a member of a task force/team that deals with the matters relating to …[Person B].
[12] …[Person B] is the person that stole from the company… and forced me to flee from [foreign country]. With this background, …[Person A] was the only official I had contact with and I do not know his actual identity and this is what I have explained to the ASIO officers repeatedly. I do not know which Department he works for and which department he works in is not of concern to me because he has never asked me to do anything that would impact on the security of Australia. I have explained this repeatedly in my interviews with ASIO.
[13] My correspondence with …[Person A] is all in relation to the recovery of assets, and nothing else.
[14] The company… is a public company with 90% of its assets belong to the shareholders. I am the legal person/Chairman of the Board of the company, which under [foreign] law is similar (but not entire equivalent) to the Director of a company. I was just trying to help the shareholders and the employees. As explained in my interviews with the ASIO officers, most of the wealth that I sought to recover does not even belong to me.
[15] The only reason I had not yet applied for Australian citizenship is because in [foreign country], only a [foreign] citizen could remain as the legal person and a chairman of the board for a company. Since I was minded helping the shareholders and employers who lost out, I retained my [foreign] citizenship.
[16] However, for some reason, the ASIO believes that the [foreign] government can use wealth to leverage or threaten me to serve them. This is inconsistent with facts.
About the title searches of a [foreign] official
[17] …[Person B]in one of his …[publicly available] videos mentioned that one [foreign] official owns three properties in Australia. …[Person A]asked me to conduct the relevant title searches of the 3 properties to clarify the facts.
[18] The title searches that I had done on a [foreign] official are based on publicly available information, and can be done through ordinary searches, and is certainly not an act of espionage.
About providing funds to a [foreign] national in Melbourne
[19] …[The Melbourne-based] student … was ill in hospital at the time needing emergency medical fees. It was an act of humanitarian need and an act of goodwill in which I offered my own money to help the kid.
[20] I understand the kid’s father works as a humanitarian … in [foreign country] and when …[Person A] mentioned to me he wanted to assist the kid, I thought he may also wish to influence the kids father. However, …[Person A] never said anything to me to this effect in detail, and I did not inquire in depth because all I wanted was to assist the kid out of goodwill.
In addition to his written statement, the applicant gave oral evidence and was cross‑examined.
The Tribunal notes that the applicant lodged a statement of facts, issues and contentions dated 5 March 2021. The respondent lodged an unclassified statement of facts, issues and contentions dated 8 February 2021.
The Facts as Found by the Tribunal
There is no significant dispute between the parties as to the facts which, as the applicant has said, are based mainly on media reports and on what the applicant told ASIO in his interviews. The real dispute is whether those facts support the assessments made in the ASA.
The Tribunal accepts the uncontroversial facts from the media reports referred to by Mr Edwin in his open affidavit and finds:
(a)The applicant was an exiled businessman who had made his fortune as a property developer in his country of origin (the foreign country).
(b)When the applicant left for Australia, he was the major shareholder in a corporate group, which included many finance, property, agriculture, mining and tourism businesses worth many millions in AUD.
(c)When he left for Australia the applicant faced embezzlement charges (which he disputed and said were ‘trumped up’) in the foreign country after falling out with a wealthy businessman, Person B. Person B was said to have had strong connections with the foreign country’s main civil intelligence agency.
(d)The applicant feared Person B could make the embezzlement charges stick against him because Person B backed by Person D, the most senior intelligence official to be caught up in the prosecution of allegedly corrupt officials.
(e)The applicant was left with no choice but to stay in Australia. The applicant had been granted permanent residency some time before he arrived in Australia, and had since invested significant amounts in property and tourism businesses in Australia.
The Tribunal makes further factual findings based upon the ASIO interviews and the applicant’s oral and written evidence at the open hearing as follows.
The applicant is a citizen of the foreign country.
While the applicant’s ex-wife, daughter and grandson are in Australia,[5] his aging mother,[6] younger brother and younger sister, along with her husband,[7] reside in the foreign country.
[5] Statement of applicant of 3 March 2021
[6] Unclassified documents (UD) 118
[7] UD120-122
According to the applicant, the foreign government had established a special team charged with investigating Person B. A number of years ago the applicant made contact with members of that team, offering his support in their pursuit of Person B in return for help in restoring the assets he believed Person B had stolen from him.[8] He was then told that he only had a chance of the stolen assets being restored if Person B was repatriated to the foreign country.
[8] UD132-134-security assessment interview in May 2019
In his dealings with that team investigating Person B, the applicant was introduced to a man described as his primary contact with the team; a man who, in these reasons, we refer to as Person A.
Person A is a member of a task force/team in charge of the foreign Government’s investigation of Person B.
The applicant met Person A in 2014 and has been in continuing, albeit occasional, contact with him since. Indeed, the applicant spoke to Person A in the week before the applicant’s most recent security assessment interview with ASIO in June 2020,[9] and (according to his oral evidence) did so again after that interview.
[9] UD257
Person A only provided one point of contact to the applicant, being an internet-based messaging service. Person A changed his identity on that service very often,[10] something which the applicant assumed he did for security reasons.[11]
[10] Ibid and UD257-In oral evidence the applicant stated that Person A changed his identity on the internet service once or twice but not often. We reject that aspect of his evidence. In May 2019 the applicant volunteered that Person A kept changing that identity [UD141] and in June 2020 twice stated that Person A changed that identity “very often” [UD257; 268]
[11] UD268
The applicant did not know Person A’s actual identity or which department he worked for. He assumed Person A was a security agent from the foreign country’s civil intelligence agency[12] and thought that the name Person A used may have been a pseudonym.[13] The applicant repeatedly asked Person A where he worked but was given no reply.
[12] UD249-250-In response to a question as to Person A’s role posed of the applicant by officers of ASIO the applicant responded by saying his job was ““similar like yours”.
[13] UD140-141; UD249
In his dealings with the applicant Person A had, apparently, claimed to be mainly responsible for the foreign government’s case involving Person B.[14] According to the applicant, however, that was not Person A’s only work.[15]
[14] UD143, 144
[15] UD256-In oral evidence the applicant said Person A’s primary task related to Person B but that he was also involved in many other tasks
The applicant’s conclusion that Person A’s work went beyond investigations of Person B is borne out by requests he made of the applicant. In addition to assisting with those investigations,[16] the applicant was asked by Person A to look for fugitives from the foreign government in Australia, [17] but he did not do so.[18]
[16] UD216-217. For instance, the applicant went to the United States to participate in a video presentation relating to Person B-UD242
[17] UD211 noting that Person A was the applicant’s only contact with the foreign government’s security services
[18] UD217
The ASA relied upon two specific tasks given to the applicant.
The first task related to property said to be held in Australia by Person C, a senior intelligence officer of the foreign country. In 2017, Person A asked the applicant to investigate whether Person C owned three specific properties in Australia. This was in the context of a public accusation by Person B, about Person C owning these properties. Person A told the applicant that this information would be used to determine whether Person C would be able to be promoted to a senior role within the foreign government. The applicant agreed to carry out the property searches and engaged a tax agent to do them. Having obtained the property search results, the applicant advised Person A that there was no information indicating ownership of the properties by Person C.
The second task related to a Melbourne based international student (Mr S) who was ill and needed financial assistance to cover his medical expenses. The father of Mr S criticised the foreign government and had been arrested or detained in the foreign country. In early 2019, Person A asked the applicant to pay some money to Mr S, so that in exchange he would encourage his father to stop criticising the government. Person A wanted to use Mr S to tell his father to stop making negative comments about the foreign government. The applicant wanted to send $20,000 to Mr S. At first, Mr S agreed to meet him, but he later refused to accept the money.
The applicant was last in contact with Person A in October 2020 when the applicant called him to discuss his company in the foreign country.
Person A is not the only person who approached the applicant purportedly on behalf of the foreign government, but he said he refused to deal with anyone else. He thought it likely that they were seeking to “scam” him[19] or he did not know whether “they are scams or not”.[20] At the hearing of this proceeding the applicant noted that many people had tried to get money from him.
[19] UD290
[20] UD262
The applicant used to have very significant assets in the foreign country. Those assets have recently declined in value, but they are still considerable.
The Legislative Regime of Adverse Security Assessments
One of the functions of ASIO is to provide advice in respect of security and security assessments to ministers and authorities of the Commonwealth under ss 17(1)(c) and 37(1) of the ASIO Act.
Part IV of the ASIO Act deals with security assessments. Section 35(1) provides definitions for Part IV and defines a ‘security assessment’ or ‘assessment’ to mean:
a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.
An “adverse security assessment” is defined as meaning a security assessment in respect of a person that contains:
(a)any opinion or advice, or any qualification of any opinion or advice, or any 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 be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.
The term “prescribed administrative action” means, among other things, the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act.
Under s 37(2) of the ASIO Act an adverse security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:
(a)shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and
(b)shall, for the purposes of this Part, be deemed to be part of the assessment.
A person who is the subject of an adverse security assessment must be given a copy of it, subject to a certificate being issued under s 38(2)(b) by the Minister that he is satisfied that the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security.
The Tribunal has the benefit of a recent decision of the Full Court of the Federal Court in SDCV v Director-General of Security [2021] FCAFC 51 (the SDCV decision) which involved a review of an ASA. The following passage from the reasons for judgment of Bromwich and Abraham JJ (with whom Rares J agreed) is apposite to this case:
[44] Section 501(3) of the Migration Act provides, inter alia, that the minister responsible for the administration of that Act may cancel a visa if that minister reasonably suspects that the visa holder does not pass the character test and is satisfied that the cancellation is in the national interest. Section 501(6)(g) provides that a person does not pass the character test if that person has been assessed by ASIO to be “directly or indirectly a risk to security” within the meaning of s 4 of the ASIO Act. The phrase “directly or indirectly a risk to security” does not appear in the ASIO Act and is not otherwise defined. However, it is readily apparent that not passing the character test for that reason is likely also to satisfy that minister that visa cancellation is in the national interest. If a visa is cancelled under s 501(3), that cancellation decision cannot be revoked so long as the ASA exists, because that minister cannot be satisfied, as required for revocation of a cancellation decision under s 501(3), that the applicant passes the character test: see s 501C(4)(b) of the Migration Act.
Section 4 of the ASIO Act provides definitions relevant to this case:
"acts of foreign interference" means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:
(a) are clandestine or deceptive and:
(i) are carried on for intelligence purposes;
(ii) are carried on for the purpose of affecting political or governmental processes; or
(iii) are otherwise detrimental to the interests of Australia; or
(b) involve a threat to any person.
"security" means:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivatedviolence;
(iv) promotion of communalviolence;
(v) attacks on Australia's defence system; or
(vi) acts of foreigninterference;
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).
An application may be made to the Tribunal for a review of an adverse security assessment under s 54(1) of the ASIO Act.
Section 61 of the ASIO Act clarifies the effect of any findings made by the Tribunal on review:
Where an assessment has been reviewed by the Tribunal, every Commonwealth agency, State and authority of a State concerned with prescribed administrative action to which the assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.
Next, we say something about procedure and the nature of the Tribunal’s tasks in this proceeding.
Procedure in Security Division review of security assessment
In this proceeding the Tribunal’s tasks are undertaken in the context of a process largely prescribed by ss 39A and 39B of the AAT Act. The procedure seeks to afford to those seeking review of adverse security assessments a level of procedural fairness consistent with protection of the public’s interest in the preservation of confidentiality in relation to matters pertaining to the nation’s security.[21]
[21] 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.” As was said by Brennan J in Church of Scientology v Woodward (1982) 43 ALR 587 at 615-616 (cited in Leghaei v Director-General of Security [2007] FCAFC 37 at [52]) it will be a rare case where the public interest in national security will yield to the public interest in the administration of justice.
The hearing of an adverse security assessment review by the Tribunal is conducted in private and the applicant for review is generally entitled to be present when submissions are made or evidence adduced.[22] This does not apply if the Minister administering the ASIO Act certifies that disclosure of certain proposed submissions or evidence would be contrary to the public interest because it would prejudice security or the defence of Australia.[23]
[22] AAT Act, s 39A(5) and (6)
[23] AAT Act s 39A(8)
Certificates were issued by the Minister in this case under ss 39A(8) and 39B(2)(a) of the AAT Act, on the ground that the disclosure of the certificated matter would prejudice the security of Australia. Consequently, the applicant was not entitled to access all of the information that was before the Tribunal and was excluded from parts of the hearing before the Tribunal. The Tribunal was required to “do all things necessary” to prevent disclosure of the matter to any person other than a member of the Tribunal as constituted for the purposes of the proceeding.[24]
[24] s 39B(3) of the AAT Act
It is in this context that the Tribunal has prepared two sets of reasons, one which is open and the other which is closed. It is in the latter set of reasons that reference is made to the information the subject of Ministerial certificates,[25] and it is that set of reasons which is the subject of a Tribunal direction under s43AAA(5) of the AAT Act that they not be given to the applicant.
[25] The closed set of reasons contains information which the Tribunal is prohibited from disclosing to the applicant or to persons generally, whether because of a certificate under s 38(2)(b) of the ASIO Act or because of similar certificates given under the AAT Act. It is, however, not necessarily limited to that information: SDCV v Director‑General of Security [2021] FCAFC 51 at [194]
Tribunal Tasks
In this proceeding the Tribunal reviews an ASA pursuant to the power conferred by s 54 of the ASIO Act. The assessment of the applicant and the recommendation based upon that assessment in the ASA to cancel the applicant’s visa for security reasons would come within the broad definition of a decision[26] which may be reviewed by the Tribunal under s 25 of the AAT Act.
[26] Section 3(3) of the AAT Act and Director-General of Social Services v (1983) 47 ALR 281 at 305–306
Section 43 of the AAT Act requires the Tribunal to make a decision[27] and to give reasons for its decision.[28] Those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.[29] Section 43 has effect subject to s 43AAA of the AAT Act.[30] Section 43AAA provides relevantly:
Findings
(2) Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.
(3) The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
[27] Section 43(1) of the AAT Act
[28] Section 43 (2) of the AAT Act
[29] Section 43(2B) of the AAT Act
[30] Section 43(1A) of the AAT Act
In 1994 the Security Appeals Tribunal was abolished and replaced by a Security Appeals Division of the AAT. The Explanatory Memorandum for the relevant amendment bill[31] provided
[35] Section 43 contains various provisions relating to the Tribunal's powers and procedures on review. New section 43AAA modifies these powers and procedures in jurisdiction exercised by the Security Appeals Division so as to meet the special requirements of that jurisdiction.
…
[37] … New section 43AAA reflects sections 60 and 61 of the current ASIO Act and sets out the powers and duties of the Tribunal in making findings in a security assessment review.
[31] Explanatory Memorandum for the Law and Justice Legislation Amendment Bill (No. 3) 1994
In the SDCV decision, Bromwich and Abraham JJ said that s 43AAA of the AAT Act confines the role of the Tribunal in conducting a review of the security assessment and explained further:
[157] … It must record its findings and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. There are constraints on the circumstances in which the Tribunal is entitled to make findings that supersede ASIO’s findings. And there is a bar before the Tribunal can substitute its view for that reached by ASIO. It can only do so if in the Tribunal’s opinion the information is incorrect, incorrectly represented or could not reasonably be relevant for the requirements of security.
Further, when considering the question as to whether the obligation as to the content of reasons contained in s 43(2B) of the AAT Act continues to apply to review proceedings in the Security Division, Bromwich and Abraham JJ said at [191] of the SDCV decision:
While not free from doubt, we consider the better view is that the obligation in s 43(2B) endures despite the terms of s 43AAA(2), but the content of the findings of fact made, and the material identified to support them, will inevitably be affected by the terms of s 43AAA(2). That is because any findings on material questions of fact and any reference to the evidence or other material upon which such findings are based are themselves governed by the ultimate findings required to be made by s 43AAA(2).
The effect of s 43AAA(3) of the AAT Act is to modify the Tribunal’s obligation to give reasons (which include its findings). If the Tribunal makes findings that, under s 61 of the ASIO Act, have the effect of superseding any information in the ASA then the Tribunal must expressly state its opinion that the information is incorrect, is incorrectly presented or could not be reasonably relevant to the requirements of security. Section 61 of the ASIO Act provides for the effect of findings made by the Tribunal. It is apparent that the modifications provided by ss 43AAA(2) and (3) are directed primarily towards the findings that the Tribunal may make on reviewing an ASA. This may have an indirect effect on the decision whether to affirm, vary or set aside under s 43(1), but the obligation contained therein endures. For this reason, we cannot agree with the learned author, Denis Pearce, when he says that s 43 does not apply in relation to security appeals.[32] The Tribunal is still obliged to make a decision in accordance with s 43(1); but its reasons for doing so must comply with s 43AAA(3) of the AAT Act.
[32] Administrative Appeals Tribunal, Dennis Pearce, 5th edition, LexisNexis at 17.5
Hence, in this proceeding, the Tribunal must decide whether to affirm, vary or set aside the ASA. In so doing, we are engaged in a “full merits review” process,[33] one that requires that we determine for ourselves whether the applicant is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act.[34]
[33] SDCV v Director-General of Security [2021] FCAFC 51 at [4] per Rares J
[34] Hence, for example, we are not restricted to information before the respondent at the time the ASA was made. Rather, “…the tribunal on review is expected by the parliament to review any adverse or qualified assessment on the evidence as at the time of making its findings.”-see Re BLBS and Director-General of Security (2013) 137 ALD 196 at [159]
As expressed in the SDCV decision at [176]:
…the ultimate factual question for the Tribunal was whether the applicant was, directly or indirectly, a risk to the protection of Australia and its people from [acts of foreign interference], [35] in the context of his character test for the purposes of holding a visa enabling him to remain in Australia.
[35] We have substituted the reference to the head of security of concern in the SDCV decision, politically motivated violence, for that of concern in this proceeding, acts of foreign interference. See too FLSZ v Director‑General of Security [2018] AATA 5900 at [136]. In that Tribunal decision (at [86]) it was said that the questions for the Tribunal were “…whether it would be our recommendation, opinion or advice that …[the applicant] is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act so that it is necessary or desirable that the Minister cancel the visa.”
The issues
Inherent in the security assessment concept are two questions. The first is whether it would be consistent with the requirements of security for prescribed administrative action to be taken. The second is whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken.
As an adverse security assessment, the ASA is a security assessment which contains, amongst other things, a recommendation that prescribed administrative action be taken in respect to the applicant which would be prejudicial to the applicant’s interests. The “prescribed administrative action” so recommended in the ASA was cancellation of the applicant’s visa.
The recommendation was informed by the advice and opinions expressed in the ASA. In this regard, the ASA is:
…not a matter that existed in the abstract under the ASIO Act divorced from any prescribed administrative action to which the assessment was connected and for which it was made. Rather, the function of ASIO in preparing the adverse security assessment necessarily was concerned with the prescribed administrative action proposed... .[36]
[36] MYVC v Director-General of Security [2014] FCA 1447 at [54]
Hence, the “requirements of security” as referred to in the definition of “security assessment” are shaped by issues of relevance to the taking of the prescribed administrative action recommended in the ASA.[37] More directly, “…the matters that must be considered in the review of an ASA are very much shaped by the parameters of the prescribed administrative action.”[38]
[37] CMHV v Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [94]
[38] FLSZ v Director-General of Security [2018] AATA 5900 at [85]
As mentioned earlier, in response to the prescribed administrative action recommended in the ASA, the relevant Minister cancelled the applicant’s visa in exercise of a power under s 501(3) of the Migration Act 1958. That power may only be exercised if two pre-conditions are satisfied. One is that the Minister reasonably suspects that the person concerned does not pass a character test. A person will be considered to have not passed that test if, amongst other things, the person has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. Hence, in the ASA, ASIO expressed its opinion that the applicant is such a risk.
As shaped by the prescribed administrative action constituted by that visa cancellation recommendation, the answer to the questions of whether it would be consistent with the requirements of security for prescribed administrative action to be taken or whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken, turns on whether the applicant is, directly or indirectly, a risk to security within the meaning of s 4 of the ASIO Act.
In formulating the ultimate factual question in issue, in terms of whether the applicant is, directly or indirectly, a risk to “the protection of, and of the people of, the Commonwealth and the several States and Territories from… acts of foreign interference…”[39] we have simply narrowed the head of security of concern in this proceeding to that identified in the ASA. In this regard, when we refer to a “head of security,” we are referring to a category of activity which may constitute “security” for the purposes of s 4 of the ASIO Act. One such category of activity involves acts of foreign interference, which is defined above.
[39] SDCV v Director-General of Security [2021] FCAFC 51 at [176]
By formulating the ultimate question in issue by reference to the head of security identified in the ASA we do not mean to accept that the capacity of the Tribunal, in reviewing the ASA, is limited to that head of security. In this proceeding, however, we do not need to go beyond it in arriving at our decision with respect to the ASA. [40]
Applicant’s past conduct indicative of him being a risk to security from acts of foreign interference?
[40] SDCV v Director-General of Security [2021] FCAFC 51 at [178] –“Neither the ASA nor the Tribunal’s review of it should be confined to the aspects of the definitions in s 4 of the ASIO Act identified by the applicant as to “security” as summarised at [171(1)] above, nor as to “politically motivated violence” as summarised at [171(2)] above.”
As mentioned earlier, the ASA included an assessment to the effect that the applicant had undertaken acts of foreign interference on behalf of the foreign government. The applicant disagrees with that assessment and challenges the application to his activities of each element of the “acts of foreign interference” concept.[41]
[41] Applicant’s statement of facts, issues and contentions of 5 March 2021 (A SFIC) [3]
First, the applicant contends that none of his activities of concern relates to Australia.
We do not accept this contention, at least with respect to the applicant’s activities concerning Person C and Mr S.
With respect to Person C, the applicant received the relevant instruction or request from Person A in Australia and arranged in Australia for another person or persons in Australia to conduct the relevant searches. Those searches were conducted in Australia and were title searches of properties in Australia.
With respect to Mr S, the applicant received the relevant instruction or request from Person A in Australia. The applicant approached Mr S when in Australia. Mr S was at the time of the approach studying and residing in Australia, and an object of the activities was to influence a member of the foreign country’s diaspora in Australia (Mr S) to influence his father’s activities in the foreign country.
Second, the applicant contends that his conduct was not “carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power”.
We do not accept this contention. When the applicant undertook activities in relation to Mr S and Person C at the instigation of Person A, he was acting on behalf of or in active collaboration with the foreign government, being a “foreign power”. This is because, at the relevant time, Person A was an officer of the security services of the foreign government, and was acting in his role as such when he directed or requested that the applicant undertake those activities.
In this regard, both parties believe Person A to have been acting as an officer of the foreign country’s main civil intelligence agency.
The applicant contends that his assumption concerning the nature of Person A’s employment has no probative value. This contention suggests that the applicant has little familiarity with the ways of the foreign government, something we doubt given his significant business interests in the foreign country. It also takes no account of the steps taken by the applicant to check on Person A, the results of which led to the applicant being satisfied that Person A was an officer of the foreign government; an officer assumed by the applicant to be an intelligence officer.
The assumption of the applicant is consistent with an inference which we draw from the facts, namely, Person A’s failure to respond to requests that he identify the department or section of the foreign government for which he worked; the limited (and frequently changing) point of contact he maintained with the applicant; and his endeavours to involve the applicant in a number of matters of apparent concern to the foreign government but which bore little relationship to the role he was said to have had when initially introduced to the applicant (a role focussing on the foreign government’s case involving Person B). Further, in drawing that inference, we give significant weight to ASIO’s assessment, reflected in the ASA, that Person A is likely to be “an intelligence officer with the [foreign country’s main civil intelligence agency]”, in light of his “apparent use of tradecraft” (a reference to his having frequently changed his identity on the internet-based messaging service he used to maintain contact with the applicant).[42]
[42] In terms of giving significant weight to the views expressed by the security services we refer to Leghaei v Director-General of Security [2007] FCAFC 37 at [56]-[59]
Third, in relation to both Mr S and Person C, the applicant contends that he did not keep the relevant activities secret or undertake them “in any secretive way”.[43] According to the applicant, “nothing ‘clandestine’ is alleged; the applicant’s conduct was not kept secret or done secretively”, and deceptive activity is not alleged. We do not agree.
[43] A SFIC [7]
In the ASA both clandestine and deceptive activity is alleged. The applicant’s activities in relation to Mr S and Person C are characterised in the ASA as both clandestine and deceptive because they were undertaken by a person, the applicant, “not outwardly associated with the [foreign country’s main civil intelligence agency] or the…[foreign government].”
We accept the respondent’s characterisation of the applicant’s activities in relation to Mr S and Person C.
At the hearing of this proceeding it was put on behalf of the applicant that “secretive” was a synonym for “clandestine”. We agree that clandestine activities may be secretive, but that will not always be the case. That this is so is reinforced when regard is had to the history of the relevant provisions. The concept of “acts of foreign interference” was introduced into the ASIO Act with the intention of giving effect to recommendations made by Hope J in his 1984 report.[44] That report contrasts clandestine or deceptive activities with activities that are “open”.[45] Where the activities are undertaken in a way so as to conceal or hide the role of a foreign power, they are clandestine, whether or not those activities are a secret.
[44] Leghaei v Director-General of Security [2007] FCAFC 37 at [80]
[45] UD32,33 [3.38]
In relation to both Mr S and Person C, the applicant’s activities were instigated by the foreign government (through Person A), but implemented in a manner which avoided any obvious connection with the foreign government. By obscuring the role of the foreign government those activities could not be attributed to the foreign government, at least directly. In this way they were consistent with a use of human intelligence assets described by Mr Edwin to occur when an intelligence service used such an asset, ostensibly acting as a private citizen, to achieve a degree of deniability and anonymity.[46]
[46] Affidavit of 5 February 2021 [17]
On behalf of the applicant, it was suggested that his activities in relation to Person C were not relevantly distinguishable from a situation involving a foreign government instructing solicitors to conduct title searches. Unlike solicitors, however, the applicant’s usual activities did not entail arranging for title searches to be conducted on behalf of third parties. The foreign government’s use of the applicant helped it to maintain a capacity to hide or deny its involvement. We see this as deceptive. We also see it as being clandestine in the sense of being concealed and surreptitious.
Contrary to submissions made on behalf of the applicant, the fact that he subsequently disclosed his activities in relation to Mr S and Person C in his security assessment interviews does not preclude those activities from being characterised as clandestine or deceptive.[47] The applicant’s subjective beliefs as to whether the relevant activities were secret does not mean that they were not secretive (or, more particularly, clandestine or deceptive). Neither the text nor the context of the ASIO Act suggests that the subjective views of a person engaging in relevant activities as to the character of those activities is determinative. As mentioned earlier, the concept of “acts of foreign interference” was introduced into the ASIO Act with the intention of giving effect to recommendations made by Hope J in his 1984 report. It is clear from that report that the concept was intended to be capable of encompassing activities by witting and unwitting actors.[48] The state of mind of the person undertaking the relevant activities was said to be a secondary consideration.[49] While Hope J suggested that unwitting involvement by a person ought not result in the person being regarded as a security risk,[50] this suggestion was made in a context where what was described as unwitting involvement was involvement of a person unknowing that he or she was being operated by or used by an intelligence officer; not a context applicable to the applicant.
[47] The point about the applicant voluntarily disclosing information was initially made in the submission made on the applicant’s behalf on 12 October 2020. In his statement of 3 March 2021 the applicant asserts that in his interviews with ASIO he has been “incredibly open and forthcoming”.
[48] UD30,31 [3.30-3.31]
[49] UD27 [3.20]
[50] UD27 [3.21]
The applicant appeared to be contending that the question of whether activities were clandestine or deceptive was one to be resolved by focussing on the nature of the relevant activities, without regard to contextual matters such as the circumstances which led to them being undertaken. Hence, activities involved in openly conducting title searches and openly approaching Mr S would not be clandestine.
We reject this contention. Such a narrow approach to the characterisation of activities would result in what Hope J considered to be the “real point at issue, and ASIO’s primary focus” being ignored where (as here) a foreign power undertakes activities indirectly by, for example, the use of agents of influence.[51]
[51] UD26 [3.18]
Fourth, the applicant contends that his conduct does “not engage” any of paragraphs (a)(i), (ii) or (iii) of the “acts of foreign interference” definition. That is, it is contended that none of the relevant activities were carried on for intelligence purposes, or for the purpose of affecting political or governmental processes, or were otherwise detrimental to the interests of Australia.
The ASA said that the activities relating to Mr S were undertaken for intelligence purposes and the information the applicant obtained in relation to Person C was collected for intelligence purposes. At the hearing of this proceeding the respondent alternatively contended that the applicant’s activities were otherwise detrimental to Australia.
According to the applicant, activities undertaken for intelligence purposes encompass obtaining information for a purpose (in this case) of the foreign government, and purposes ancillary to information gathering.[52] Mr Edwin took issue with this in his oral evidence, stating that the concept of “intelligence purposes” was one that went beyond obtaining information.
[52] A SFIC [23-24]
In relation to Person C, the ASA states that the applicant’s activities were undertaken for intelligence purposes because the applicant was told by Person A that the property searches would be used to determine whether Person C, who was a high level officer of the foreign country’s civilian intelligence service, would be promoted. Under cross-examination at the hearing, it was put to the applicant that the property searches were requested so as to assist with respect to a promotion. The applicant responded that he was told that Person C had three properties and that his ownership would undermine his work. Whether the purpose of conducting the searches related to a specific promotion or related more generally to his work, we agree with the conclusion in the ASA that the property searches were undertaken for intelligence purposes.
The applicant’s activities in relation to Person C were undertaken in connection with an investigation conducted in response to allegations made against Person C by Person B. We find that the purpose of the investigation of the properties concerned the suitability or otherwise of Person C to remain or act as a high level officer of the foreign country’s intelligence service or to occupy a particular position within that service. A purpose of relevance to the staffing of an intelligence service is, as we see it, an intelligence purpose.
This approach to the construction of the concept of “intelligence purposes” is, as we see it, consistent with the need to avoid a “too confined construction of the definition of ‘security’”[53] which could “frustrate the ability of ASIO to properly monitor and assess threats to Australia’s interests.”[54]
[53] Jaffarie v Director General of Security [2014] FCAFC 102 at [64]-[65], cited with approval in the SDCV decision at [175]
[54] SDCV at [175]
Moreover, support for our conclusion that the relevant activities were undertaken for intelligence purposes is found in the fact that they were undertaken at the instigation of Person A, an officer in the foreign country’s intelligence service. Absent any suggestion that Person A was off on frolic of his own, in liaising with the applicant Person A was acting in a role to gather intelligence.
As for Mr S, the applicant accepts that the “suggestion” that the applicant approach Mr S came from Person A “who may have suggested that a message be relayed to …[Mr S’s] father about the father’s attitude to the …[foreign government].” The applicant contends, however, that there was no attempt to influence Mr S’s father as Mr S declined to meet with the applicant. We disagree. There was clearly an attempt to influence Mr S’s father. Mr S’s refusal to meet with the applicant simply rendered the attempt unsuccessful. The attempt reflected an endeavour to constrain or stifle dissent in the foreign country in relation to the foreign government. The attempt is consistent with a purpose of the intelligence services of the foreign country. A purpose of an intelligence service is, as we see it, an intelligence purpose.
Even if, in relation to certain activities, the concept of intelligence purposes is not one affected by the purposes of the intelligence service which undertook or instigated the activities, the applicant’s activities in relation to Mr S may properly be considered to have been undertaken for the purpose of affecting political or governmental processes. While the applicant contends that those activities “did not in any way seek to affect “political or governmental processes,”[55] we disagree. As mentioned above, in attempting to influence Mr S’s father, the purpose of those activities was to constrain or stifle dissent in the foreign country in relation to the foreign government. Such a purpose reflects an endeavour to affect political processes. Moreover, it reflects an endeavour to mitigate pressure for change, whether in or by the foreign government. Such an endeavour is, in our view, one that seeks to affect governmental processes.
[55] A SFIC [31]
The applicant stated that, while he thought that Person A might have wanted to influence Mr S’s father, the applicant himself only wanted to assist Mr S “out of goodwill.”[56] We do not accept that distinction. It is difficult to see how Mr S would have encouraged his father to stop criticising the foreign government unless the message that he should do so was an element of the offer of $20,000. Even if the applicant’s motivation was solely to assist a student who was ill, by offering money to Mr S, the applicant materially assisted in the plan to influence Mr S’s father and stifle dissent in the foreign country.
[56] Statement of 4 March 2021 [20]
We conclude that the applicant has undertaken acts of foreign interference on behalf of the foreign government. As a result, the applicant has been a direct or indirect risk to security.
Applicant circumstances a direct or indirect serious or substantial risk to security from acts of foreign interference?
As outlined above, the applicant has engaged in acts of foreign interference.
The circumstances in which those acts were undertaken, and the circumstances of the applicant, are such that there is a serious or substantial risk[57] of the applicant again engaging in such acts. Therefore, we accept ASIO’s assessment that the applicant is amenable to conducting acts of foreign interference on behalf of, or in collaboration with, the foreign government.
[57] Jaffarie v Director General of Security [2014] FCAFC 102 at [73]
The applicant states, in essence, that, rather than being detrimental to the interests of Australia, his activities have been beneficial for Australia and that the interests of the foreign country and those of Australia are mutually complementary. [58] It may well be that at least some of the applicant’s activities have been beneficial from an Australian perspective. It might also be that the applicant sees himself as having served the interests of Australia when acting at the behest of the foreign government. In addressing the underlying question in issue in this proceeding, however, issues as to the net effect on Australia of the applicant’s activities or as to whether particular activities have been beneficial to Australia’s interests are not relevant.[59]
[58] Statement of applicant of 3 March 2021 in which he states that he introduced a large number of investment projects to Australia
[59] The respondent raised the issue of the applicant’s activities being detrimental to Australia’s interests. This. However, reflected an alternative submission, one which is unnecessary to address given our findings in this proceeding.
The applicant contends that he has previously been found by ASIO not to be a risk to security, noting that he has been the subject of three security assessment interviews.[60] The relevance of that contention is not clear to us. In any event, we reject it. The fact that ASIO assessed the applicant to be a risk to security after a security assessment interview in June 2020 does not mean that there was an assessment that he was not a risk to security after the earlier interviews. If no assessment is made that a person is a risk to security after a particular security assessment interview, this simply reflects the fact that no assessment was then made. It does not imply an assessment that the relevant person is not a risk to security.
[60] A SFIC [39]
Counsel for the applicant suggested that any risk to security represented by the applicant was ameliorated, as he was now very much alive to the fact that his desire to live in Australia may be thwarted were he, in the future, to engage in conduct that may be seen to be a risk to security. The difficulty we have with this suggestion, however, is that it assumes that the applicant has an appreciation of issues from an Australian security perspective. In fact, the applicant appeared to have little insight into why his activities in relation to, for example, Mr S, might be seen as problematic from a security perspective, noting his continued characterisation of them in terms of being a goodwill gesture.
Since around 2014, the applicant has kept in continuing, albeit occasional, contact with a person who the applicant believed to be in the employ of the foreign government’s security services, Person A.
Ongoing contact with the government of the foreign country is understandable, especially in light of the applicant’s remaining, significant, business interests in the foreign country (a matter to which we will return) and his desire for justice in relation to Person B.
The applicant’s contact was not, however, with the organs of state which might ordinarily be expected to be involved in the regulation of business activities or the prosecution of criminal behaviour. Nor was that contact with staff of the foreign country’s Australian embassy or consulates.[61] Instead, it was with Person A, a man who would not disclose the identity of the governmental agency which employed him, whose only point of contact was non-governmental and subject to frequent change (for what the applicant assumed were reasons of security), and who the applicant believed to be an officer of the foreign government’s security services.
[61] The applicant stated that he had no meetings with embassy officials or diplomats, officially or unofficially, in Australia [UD282-283] albeit that he had in or around 2014 or 2015 used a contact in a consulate of the foreign country to send a letter concerning Person B to the body charged by the foreign government to deal with corruption [UD284]-see also UD185-187
The applicant contends that he “… has on many occasions been approached by …[foreign country] intelligence agents to undertake intelligence work in Australia. He has always refused.”[62] His refusal to do so is said to suggest that he is not a security risk.[63] We disagree. As we have found, the applicant has undertaken in Australia activities at the behest of Person A, a person who the applicant believed to be an intelligence officer. We accept that he has rejected approaches made to him by others purporting to be operatives of the foreign country’s intelligence services but, as mentioned earlier, he did so because he thought that these others may have been seeking to “scam” him.
[62] A SFIC [7(j)]
[63] A SFIC [37]
The applicant engaged in activities of concern at the behest of Person A. These were activities that, of themselves, had nothing to do with the applicant’s business interests in the foreign country or his pursuit of Person B. The applicant stated that his “correspondences” with Person A were “all in relation to the recovery of assets, and nothing else.”[64] It is clear from the facts that this is not the case. We refer, in particular, to the applicant’s activities, at Person A’s instigation, in relation to Person C and Mr S.
[64] Statement of 4 March 2021 [13]
Whether the applicant engaged in those activities because he perceived he had a duty to do so or because he wished to curry or remain in favour with the foreign government, the upshot is that his past conduct evidences a willingness to engage in activities at the direction of the foreign country’s security services, being activities that constituted a risk to security through acts of foreign interference.
There is material before the Tribunal consistent with the applicant being of the view that he has a duty to assist the foreign government. In this regard, we note reports of the applicant having praised the leadership of the foreign government and that he aspired to start again in the foreign country and, hence, did not wish to involve Australian police when he thought he was under surveillance by agents of the foreign government. We also note that in his May 2019 security assessment interview the applicant mentioned that he had rejected a proposal that he join the party in control of the foreign government because he had not as yet ”reached that level” and that he had to “continue trying hard.”[65]
[65] UD126
More significantly, however, the applicant’s particular circumstances are such as to suggest at least several, subsisting, reasons for him having a desire to curry or remain in favour with the foreign government. The foreign government retains a capacity to exercise significant leverage over the applicant.
The applicant contends that this is not the case. He said that he:
…is personally wealthy and does not need to pursue the lost assets of the public company that were swindled by …[Person B] for his own benefit. He did so out of a sense of moral responsibility. That cause has come at too high a price for the applicant and has now abandoned that effort. The applicant has no cause for future dealings with …[Person A].[66]
[66] A SFIC [7(h)]
His abandonment of the pursuit of Person B is said to result in the applicant no longer being “vulnerable” to pressure from the foreign government.[67]
[67] A SFIC [32-34]
Whether the applicant only pursued Person B out of a sense of moral responsibility (noting that the applicant had a significant financial stake in the assets allegedly stolen by Person B), he remains vulnerable to pressure from the foreign government despite his abandonment of that pursuit. There are a number of aspects to that vulnerability.
First, while we accept the applicant’s statements of intention to return to Australia should he receive a favourable decision in this proceeding (noting his statement at the hearing of this proceeding that his fiancée lives in Australia), he is now (or at least was at the time of the hearing of this proceeding) living in the foreign country.
Second, several members of the applicant’s family live in the foreign country and could be subjected to threats from the foreign government for the purpose of seeking to influence members of the diaspora. Indeed, in his second security assessment interview, the applicant stated that his father had been persecuted by the local police in the foreign country in connection with allegations made against the applicant.[68]
[68] UD269, 270
Third, quite apart from the applicant’s financial stake in the assets allegedly stolen by Person B, the applicant owns significant assets in the foreign country. In this regard, we accept Mr Edwin’s evidence to the effect that the foreign government retains leverage over the applicant in the form of its control over a significant portion of the applicant’s wealth.[69]
[69] Unclassified affidavit of George Edwin of 5 February 2021 at [55]
In his June 2020 security assessment interview, the applicant estimated the value of those assets to be very significant.[70] At the hearing of this proceeding the applicant stated that the value of those assets had decreased significantly since that interview, in that they now mainly comprise properties worth considerably less. Even accepting such a significant drop in the value of the relevant assets, the applicant still retains significant assets in the foreign country.
[70] UD278
CONCLUSION
We confirm the correctness of the information in the statement of grounds forming part of the ASA.
The applicant is, directly or indirectly, a risk to the protection of Australia and its people from acts of foreign interference. That risk is serious. It is substantial rather than negligible. Hence, cancellation of his visa is consistent with the requirements of security and is made necessary or desirable by those requirements.
The decision of the Tribunal is to affirm the ASA.
119. I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones, Senior Member Cameron and Senior Member Furnell
............[sgd]...............................................
Administrative Assistant
Dated: 15 December 2021
Date of hearing: 24, 25 and 26 March 2021 Counsel for the Applicant: Mr Angel Aleksov Solicitors for the Applicant: D & X Legal Counsel for the Respondent: Mr Daniel Bruno Solicitors for the Respondent: Australian Government Solicitor
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