RZBV and and Minister for Foreign Affairs
[2015] AATA 296
•5 May 2015
[2015] AATA 296
Division Security Appeals Division File Number(s)
2014/2922
Re
RZBV
APPLICANT
And
Director-General of Security
RESPONDENT
File Number(s)
2014/2923
Re
RZBV
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Deputy President S E Frost
Senior Member N IsenbergDate 5 May 2015 Place Sydney 2014/2922
The adverse security assessment in respect of the Applicant, issued by the Director-General of Security on 2 May 2014, is affirmed.
2014/2923
The decision of the Minister for Foreign Affairs, dated 7 May 2014, to cancel the Applicant’s Australian passport, is affirmed..............[sgd]...........................................................
Deputy President J W ConstanceCatchwords
NATIONAL SECURITY – adverse security assessment – cancellation of Australian passport – likely to engage in conduct which might prejudice security – assessed as likely to engage in politically motivated violence - whether assessment should be affirmed as correct – decisions affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 43AAA(3)
Australian Passports Act 2005 (Cth) s 22
Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1), 35(1), 37(2), 37(4), 54, 61Cases
BLBS and Director-General of Security [2013] AATA 820
Sayed Akbar Jaffarie v Director-General of Security and Migration Review Tribunal [2014] FCAFC 102Secondary Materials
Security Assessment Determination No.2, issued 28 July 2010.
UNCLASSIFIED REASONS FOR DECISION
Deputy President J W Constance
Deputy President S E Frost
Senior Member N IsenbergA: INTRODUCTION
The Applicant is 27 years old. He was born in Australia and is an Australian citizen.
In December 2009, the Applicant was issued an Australian passport.
On 2 May 2014, the Director-General of Security issued an adverse security assessment in relation to the Applicant under the provisions of the Australian Security Intelligence Organisation Act 1979 (Cth). It was assessed that the Applicant:
·likely intends to travel to engage in politically motivated violence or activities in support of that violence; and
·is a likely threat to Australia and foreign countries should he be allowed to travel on his Australian passport.[1]
[1] Document T8. Reference to documents with the prefix “T” is a reference to documents filed by the Respondents in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
On the basis of this assessment the Director-General requested the Minister for Foreign Affairs to cancel the Applicant’s Australian passport. The Minister cancelled the Applicant’s passport on 7 May 2014.
The Applicant has applied to the Tribunal to review the adverse security assessment and the decision of the Minister for Foreign Affairs to cancel his passport.
For the reasons which follow, and those set out in the Classified Reasons for Decision, the adverse security assessment will be affirmed. The decision to cancel the Applicant's passport will also be affirmed.
B: THE ISSUES
The first issue for the Tribunal is whether to affirm as correct, to vary or to set aside the Director-General’s assessment that it is not consistent with the requirements of security for the Applicant to hold an Australian passport.
The second issue for determination is whether the Minister’s decision to cancel the Applicant's passport was the preferable decision.
C: BACKGROUND
C.1: Jabhat al-Nusra
In June 2013, Jabhat al-Nusra was listed as a terrorist organisation by the Australian Government. The information provided by the Government in relation to the listing included that the organisation was established in late 2011 in Syria by al-Qa’ida Iraq to fight the regime of President Bashar al-Assad.[2]
[2] Exhibit RO1 para.14.
C.2: ASIO interview of the Applicant
ASIO interviewed the Applicant on 4 July 2013. During that interview he was informed of the listing of Jabhat al-Nusra. He was also advised that if ASIO believed that a person intended to travel to Syria to train or undertake military activity with the organisation, it may lead to cancellation of the person’s passport. In summary, the Applicant said that:
·he had little understanding of the situation in Syria;
·he had not heard of anyone in his community who had planned to travel overseas to fight for Jabhat al-Nusra or any other groups in Syria;
·he had not heard of anyone raising funds for Jabhat al-Nusra or any other groups in Syria.
ASIO was unsuccessful in its attempts to arrange further interviews with the Applicant.
C.3: Issue of the Adverse Security Assessment
The Security Assessment issued on 2 May 2014[3] stated that the purpose of the assessment was to make an Australian passport cancellation request. The Assessment included a request to the Minister for Foreign Affairs that the Applicant’s passport be cancelled.
[3] T5.
C.4: Cancellation of the Applicant’s passport
By letter of 7 May 2014, the Department of Foreign Affairs and Trade advised the Applicant as follows:
I am writing to inform you that, in accordance with the powers provided under subsection 22(2)(d) of the Australian Passports Act 2005 (the Act), the Minister for Foreign Affairs has cancelled Australian travel document number N2000623 issued to [the Applicant] following a request from a competent authority authorised under subsection 14(1) of the Act.
Cancellation of an Australian passport
Cancellation has been made on the grounds that, pursuant to subsection 14(1)(a)(i) of the Act, the Australian Security Intelligence Organisation suspects on reasonable grounds that if an Australian passport were issued to you, you would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.
D: THE LAW TO BE APPLIED
D.1: The functions of ASIO
The functions of the Organisation are set out in subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”) and include the following:
(a) to obtain, correlate and evaluate intelligence relevant to security;
…
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.
D.1.1 The meaning of “security”
In section 4 of the ASIO Act, “security” is defined to include:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
……..
(iii) politically motivated violence;
……
(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the sub paragraphs of paragraph (a) or the matter mentioned in paragraph (aa).
The relevant part of the definition of politically motivated violence states that the expression means:
…acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere.
In Sayed Akbar Jaffarie v Director-General of Security and Migration Review Tribunal[4] the Full Court of the Federal Court rejected an argument that the definition of security should be interpreted in a confined manner based on the breadth of the heads of power contained in the Australian Constitution. The Court said:
The term ‘security’ and the phrase ‘the protection of Australia’s territorial and border integrity’ are thus not to be read in the confined manner advanced on behalf of Mr Jaffarie. Nothing in paragraph (aa) suggests that the phrase should be given anything other than the natural and ordinary meaning of the words employed. Indeed, if anything, the statutory context in which the phrase is employed strongly suggests that no pedantic or unnecessary construction should be placed upon the phrase.[5]
[4] [2014] FCAFC 102.
[5] [2014] FCAFC 102, at para 64.
D.1.2: The power of ASIO to furnish security assessments
The functions of the Organisation set out in subsection 17(1)(c) “include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.” [6]
[6] Subsection 37(1) of the ASIO Act.
D.1.3: What is a ‘security assessment’?
Subsection 35(1) of the ASIO Act provides in part:
Security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency 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.
Prescribed administrative action is also defined in subsection 35(1). The definition includes, in paragraph (c) “the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007, the Australian Passports Act 2005 or the regulations under either of those Acts”.
D.1.4: What is an ‘adverse security assessment’?
Subsection 35(1) provides the following definition:
adverse security assessment means 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.
D.1.5: A statement of grounds must accompany an adverse security assessment
Subsection 37(2) of the Act provides:
An adverse … security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:
(a) shall contain all the information that has been relied on by the Organisation in making the assessment, other than information 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.
D.2: The role of the Minister for Foreign Affairs
Subsection 22(1) of the Australian Passports Act 2005 (Cth) provides:
The Minister may cancel an Australian travel document.
A passport is an Australian travel document.[7]
[7] See subsection 6(2).
Subsection (2) provides, in part:
Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:
……
(d) a competent authority makes a refusal/cancellation request in relation to the person.
ASIO is a competent authority under the Australian Passports Act.
D.3: Applications for review by this Tribunal
D.3.1 Review of the adverse security assessment
Section 54 of the ASIO Act provides that an application may be made to the Administrative Appeals Tribunal for a review of an adverse security assessment.
Section 61 provides that every Commonwealth agency concerned with 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.
The Administrative Appeals Tribunal Act 1975 (Cth) also has special provisions for the making of decisions in relation to security assessments. Subsection 43AAA(3) provides:
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, information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
D.3.2 Review of the decision to cancel the Applicant's passport
Section 50 of the AustralianPassports Act provides that an application may be made to this Tribunal to review a decision of the Minister to cancel an Australian passport.
E: THE APPLICATION OF POLICY – SECURITY ASSESSMENT DETERMINATION NO.2
On 28 July 2010, the Director-General of Security issued the above Determination to provide guidance to the decision-maker in making security assessments under the ASIO Act.
Subsection 37(4) of the ASIO Act provides that any such determination is not binding on the Tribunal. Nevertheless, we respectfully adopt the reasoning of the Tribunal in BLBS and Director-General of Security,[8] that subsection 37(4) “does not prevent our deciding this matter consistently with the policy of the Direction [sic] unless persuaded that the policy expressed in the Determination is inconsistent with the ASIO Act or would produce an unjust outcome in the circumstances of a particular case.” [9] There is nothing in the evidence before us, either in the open or the closed sessions, which gives any reason to regard the policy expressed in the Determination as being inconsistent with the provisions of the ASIO Act. Nor is the evidence such that deciding the application consistently with the policy would produce an unjust outcome.
[8] [2013] AATA 820 at paras 48-54.
[9] At para.54.
In reaching our conclusion that the adverse assessment should be affirmed, we have applied the terms of the Determination.
E.1: The relevant provisions of the Security Assessment Determination No.2
Matters to be taken into account
Clause 6 provides in part:
6. In formulating a security assessment, three primary considerations are to be taken into account:
6.1. The prescribed administrative action and type of security assessment;
6.2. The assessment subject; and
6.3. Consequences to security.
Clause 6.1 provides in part:
(b)The decision maker must identify in the security assessment what access, ability, power, performance and/or function is being sought and/or affected (the relevant prescribed administrative action) in relation to the assessment subject.
...
(d) The decision maker may then ascertain the necessary quantity and quality of information required to make the security assessment.
Under the heading “Making a finding or the conclusion” clause 7.2.5 of the Determination provides:
a. A decision maker should consider whether there is enough information to justify a finding or conclusion being drawn.
b. Any finding or conclusion in an assessment (whether immediate or final) which is adverse to the assessment subject should be judged to be at least ‘likely’.
Clause 5(m) provides:
(m) The ‘test’ terms used in clauses 6 and 7 are to be interpreted as below:
...
(ii) ‘Likely to be’: The ‘likely to be’ test is met if the decision maker is of the opinion that there is a real, and not remote, possibility that the risk could occur. It is not necessary that the risk is ‘more likely than not’ to occur. (emphasis in the original)
Again, we adopt the interpretation by the Tribunal in BLBS and Director-General of Security.[10] The term ‘likely’ in 7.2.5(b) is not to be given the same meaning as ‘likely to be’ in clause 5(m). As stated by the Tribunal:
……the word “likely” in clause 7.2.5(b) was used in its ordinary sense and does not require further embellishment in order to apply the policy of the determination
……
The expression “at least likely” in cl 7.2.5 (b), used in its ordinary sense but read in context as part of the Determination, does not in our opinion, convey the meaning of “more likely than not”. A possibility supported by such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion that the event foreshadowed is plausibly and plainly foreseeable, would be understood, in that context, to come within what the Tribunal understands to be the ordinary meaning of the expression “at least likely”.[11]
[10] [2013] AATA 820.
[11] [2013] AATA 820 at paras 62-63.
F: THE ASSESSMENT AND THE STATEMENT OF GROUNDS
The relevant part of the assessment made by the Director-General of Security on 2 May 2014 is set out above in the Background section of these reasons.
The unclassified Statement of Grounds[12] states, in part:
[12] T8.
Summary
2. ASIO suspects on reasonable grounds that:
a. if [the Applicant] were to continue to hold an Australian passport, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country; and
b. his Australian passport should be cancelled in order to prevent him from engaging in the conduct.
3. ASIO assesses [the Applicant]:
a. Likely intends to travel to Syria to engage in politically motivated violence (PMV) or activities in support of PMV with proscribed terrorist organisation, the Islamic State of Iraq and the Levant (ISIL); and
b. is a likely threat to Australia and foreign countries should he be allowed to travel on his Australian passport.
4. Accordingly, ASIO recommends that the Minister for Foreign Affairs cancel the Australian passport held by [the Applicant] in order to prevent him from engaging in the conduct.
G. EVIDENCE
G1.The evidence of Mr Woodgate
Mr Woodgate is a senior officer of ASIO and has been an ASIO officer for nine years. He is in charge of an ASIO Branch responsible for managing counter-terrorism investigations and conducting security assessment regarding whether passports should be refused or cancelled.
Mr Woodgate provided an affidavit sworn 19 August 2014,[13] and gave evidence in both the open and closed hearings.
[13] Exhibit RO1.
In his affidavit Mr Woodgate stated, in part:
The security assessment involved consideration of the applicant’s activities and character as relevant to security. The assessment only took into account security-relevant information with a reasonable nexus to the applicant. In each case the currency, credibility, nature and authenticity of the information were considered.
Mr Woodgate gave evidence concerning the factors favourable to the Applicant and considered by ASIO.
After being notified of the adverse security assessment and cancellation of his passport, the Applicant contacted ASIO on 8 May 2014. He told ASIO officers that he planned to visit family in Turkey and to get married whilst in that country. He said that when he was interviewed by the Australian Federal Police immediately prior to his intended departure from Australia, he was asked whether he planned to travel to the Turkey/Syria border. The applicant told the ASIO officers that he did not know anything about Syria other than what he had read in an article which he was shown at the interview.
The Applicant again contacted ASIO officers on 13 May 2014. There was some discussion concerning a possible further interview but later the Applicant’s solicitor advised ASIO officers that they should not contact his client.
It is the assessment of ASIO that the Applicant likely intends to travel to engage in politically motivated violence or activities in support of politically motivated violence. The information on which this assessment is based is subject to a certificate issued by the Attorney-General and cannot be dealt with these unclassified reasons.
Mr Woodgate stated that:
It is ASIO’s continued assessment that if the applicant held an Australian passport he would be likely to engage in conduct that may prejudice the security of Australia or a foreign country and his passport should remain cancelled in order to prevent him from engaging in that conduct.[14]
[14] Exhibit RO1 para.26.
G.2.The evidence of the Applicant
The Applicant provided an affidavit affirmed 25 September 2014 and gave evidence.
In his affidavit the Applicant stated that he made his travel arrangements in March 2014. He intended to travel to Turkey to meet his extended family and to get married. He confirmed this when he gave evidence. At all times he denied any intention to become involved in politically motivated violence. He denied ever having the intention to travel to the Syrian border.
The Applicant was asked whether he supported Islamic State’s attempts to establish an Islamic caliphate. He replied:
It’s up to them whatever they do. I’m not a part of them. I don’t speak Arabic. Just because I’m Muslim, you know, it doesn’t mean I want to join them or anything.[15]
[15] Transcript 11/03/14 p-127.
Further, when asked his views as to the objectives of Islamic State he said that he did not know what those objectives were. He had no view as to whether violent acts carried out by or on behalf of Islamic State were, or were not, justified.
The Applicant said that he took $39,000 with him when he planned to leave Australia as he was looking for investment properties.
During cross-examination the Applicant was asked whether he knew of, or had dealings with, a number of people who had been convicted of, or charged with, various terrorism related offences. He denied any knowledge of all but one of those persons. The Applicant said that a person he knows as Ibrahim may be the same person as Mr Ali Al-Talebi who has been charged with engaging in conduct relating to the funding of terrorism. He said that he was unaware of these charges having been made.
H. CONSIDERATION
H.1.The argument on behalf of the Applicant
Counsel for the Applicant referred us to what the Tribunal said in BLBS and Director-General of Security, to which we have already referred:
ASIO is not required to prove, or be satisfied on the balance of probabilities that the person would be likely to engage in that conduct: it need only suspect on reasonable grounds that the person would be likely to do so. [16]
He referred us also to the Tribunal’s reliance upon the High Court’s judgement in George v Rockett[17] in which the Court said:
When a statute prescribes that there must be “reasonable grounds” for state of mind -including suspicion or belief- it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[16] At para.80.
[17] (1990) 170 CLR 104 at 116.
Counsel argued that, based on the unclassified material there was “nothing there that would give this Tribunal any confidence whatsoever to hold a view that the adverse assessment was based upon material which could cause a reasonable suspicion that anything would occur.” [18] In relation to most of the names of various people put to the Applicant, he denied any knowledge or contact. In one case it appears that the Applicant does know the person referred to but he denies any knowledge of the charges against him or of any conduct which could be regarded as a risk to security.
H.2.Discussion
[18] Transcript 11/03/15, p.151.
H.2.1 The adverse security assessment
If the only evidence before us was that provided during the open hearing we would have agreed with the submissions of Counsel for the Applicant. Although the Applicant was asked whether he had dealings with a number of individuals he denied any contact with most of them. He consistently denied any intention to engage in any form of politically motivated violence and gave an explanation for his intention to travel to Turkey and for his proposing to take with him the amount of money he had in his possession.
However, based on the classified evidence before us, we are satisfied that the Applicant was not a truthful witness when he gave evidence before us. We are also satisfied that the Applicant did not tell the truth when he was interviewed by ASIO officers.
We have concluded that the assessment by ASIO that the Applicant:
a. likely intends to travel to Syria to engage in politically motivated violence (PMV) or activities in support of PMV with proscribed terrorist organisation, the Islamic State of Iraq and the Levant (ISIL); and
b. is a likely threat to Australia and foreign countries should he be allowed to travel on his Australian passport
is correct.
In general we have followed the principles to guide decision-makers which are set out in Security Assessment Determination No.2. We have determined that there is sufficient information before us to justify the findings and conclusions in the assessment. In accordance with clause 7.2.5(b) of the Determination, we are satisfied that the findings and conclusions adverse to the Applicant are at least likely.
The prescribed administrative action which is under consideration is the power of the Minister under the Australian Passports Act 2005 to cancel the Applicant’s Australian passport. Based on the evidence given in the closed hearing, we have considered the consequences to security of the decision to cancel the Applicant’s passport. We are satisfied that the information provided to us is of the necessary quantity and quality to make the security assessment.
We have not made any findings that have the effect of superseding any information that is taken to be part of the assessment. The provisions of subsection 43AAA(3) are not enlivened.
H.2.2 The cancellation of the Applicant’s passport
The second decision for review is that of the Minister for Foreign Affairs to cancel the Applicant’s passport. The power to cancel a passport is discretionary. Section 22(2) of the Australian Passports Act provides that where a request is made from a competent authority (in this case ASIO) the Minister may cancel a passport.
On the basis of the evidence given in the closed hearing, we are satisfied that there are substantial grounds to justify the cancellation of the Applicant’s passport in order to prevent conduct which is prejudicial to the security of Australia.
I. CONCLUSION
The decision to issue the adverse security assessment and the Minister’s decision to cancel the Applicant’s passport will be affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Deputy President S E Frost and Senior Member N Isenberg. ...[sgd].............................................................
Associate
Dated 5 May 2015
Date(s) of hearing 9-12 March 2015 Date final submissions received 12 March 2015 Counsel for the Applicant G Foster Solicitors for the Applicant Zali Burrows Lawyers Counsel for the Respondents A Berger Solicitors for the Respondents Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Natural Justice
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Proportionality
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