RZBV and and Minister for Foreign Affairs

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[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 Isenberg
Date 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 Constance

Catchwords

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, 61

Cases

BLBS and Director-General of Security [2013] AATA 820
Sayed Akbar Jaffarie v Director-General of Security and Migration Review Tribunal [2014] FCAFC 102

Secondary 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 Isenberg

A:       INTRODUCTION

  1. The Applicant is 27 years old.  He was born in Australia and is an Australian citizen.

  2. In December 2009, the Applicant was issued an Australian passport.

  3. 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.

  4. 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.

  5. 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.

  6. 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

  7. 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.

  8. The second issue for determination is…

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Details
Case
[2015] AATA 296
Decision Date

CaseChat Overview and Summary

In the case of RZBV v Minister for Foreign Affairs, the Federal Court of Australia was called upon to review the decision of the Minister for Foreign Affairs to cancel the applicant's Australian passport. The court was tasked with determining whether the Minister's decision to cancel the applicant's passport was the preferable decision, based on the adverse security assessment conducted by the Australian Security Intelligence Organisation (ASIO). The applicant, RZBV, had his Australian passport cancelled after ASIO suspected on reasonable grounds that he would engage in conduct that might prejudice the security of Australia or a foreign country, specifically by travelling to Syria to engage in politically motivated violence or activities in support of such violence with the proscribed terrorist organisation, the Islamic State of Iraq and the Levant (ISIL).

The court considered the evidence provided by ASIO, including classified information that was not disclosed in open court. The court found that while the unclassified evidence did not provide sufficient grounds to affirm the adverse security assessment, the classified evidence supported ASIO's conclusion that the applicant was not a truthful witness and had indeed intended to travel to Syria to engage in politically motivated violence. The court concluded that the Minister's decision to cancel the applicant's passport was correct, as it was based on reasonable grounds provided by ASIO and was necessary to prevent the applicant from engaging in conduct that might prejudice the security of Australia or a foreign country.

The court's decision was based on its finding that the applicant was not a truthful witness and that the adverse security assessment conducted by ASIO was correct. The court found that the Minister's decision to cancel the applicant's passport was the preferable decision, as it was based on reasonable grounds and was necessary to prevent the applicant from engaging in conduct that might prejudice the security of Australia or a foreign country. The court affirmed the decision of the Minister to cancel the applicant's passport.

The final orders of the court were that the decision of the Minister to cancel the applicant's passport be affirmed and that the applicant's application for review of that decision be dismissed. The court also made an order that the applicant pay the Minister's costs of the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The second issue for determination is whether the Minister’s decision to cancel the Applicant's passport was the preferable decision.C: BACKGROUNDC.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 passportCancellation 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 APPLIEDD.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).

Evidence

Evidence Before The Court

The unclassified Statement of Grounds[12] states, in part:[12] T8.Summary2. 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; andb. 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); andb. 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.

Decision

Reasons for decision

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.2Matters 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; and6.3. 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’.

Ratio Decidendi

Legal Principle Established

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. CONSIDERATIONH.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); andb. is a likely threat to Australia and foreign countries should he be allowed to travel on his Australian passportis correct.