SDCV and Director-General of Security [2019] AATA 6112 (2 December 2019)
Division:SECURITY DIVISION
File Number(s): 2018/4889
Re:SDCV
APPLICANT
AndDirector-General of Security
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
The Hon. John Pascoe AC CVO, Deputy President
Senior Member A Poljak
Date:2 December 2019
Place:Sydney
The decision under review is affirmed.
......................[sgd]..................................................
Deputy President B W Rayment OAM QC
CATCHWORDS
NATIONAL SECURITY - adverse security assessment - danger to security of Australia - ideology in support of politically motivated violence - consuming extremist material online - supportive of Islamic State of Iraq and the Levant (ISIL) - recommendation for cancellation of Partner visa - decision affirmed
LEGISLATION
Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 54
Migration Act 1958 (Cth) s 501
Administrative Appeals Tribunal Act 1975 (Cth) ss 35AA, 38A, and 39A
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
The Hon. John Pascoe AC CVO, Deputy President
Senior Member A Poljak2 December 2019
On 16 August 2018 the applicant was assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of Section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). That assessment was an adverse security assessment (ASA) relating to the applicant, and while it subsists the Minister for Home Affairs is to be satisfied that he fails the character test in s.501(6)(g) of the Migration Act 1958 (Cth) (the Migration Act).
On 21 August 2018 the Minister for Home affairs cancelled the applicant’s Class BS Subclass Partner (Residence) visa under s.501(3) of the Migration Act.
At the time when the Minister for Home Affairs cancelled his visa, the applicant had applied for Australian citizenship and the cancellation of his visa precluded the grant of citizenship to him.
These proceedings are brought pursuant to s.54 of the ASIO Act, to review the ASA. The parties to the review are the applicant and the Director-General of Security. The procedure of the Tribunal on such a review is governed by a number of provisions of the Administrative Appeals Tribunal Act 1975 (Cth) including sections 35AA, 38A, and 39A of that Act.
In open session, we have heard evidence called by both the Director-General and by the applicant.
We have also heard evidence in closed session in the absence of the applicant, which is the subject of closed reasons for judgment. These reasons deal only with findings which we make based upon the evidence given in open session.
Since the proceedings were heard in private, and the applicant has a pseudonym, we have made only generalised findings of fact where precise findings may have enabled the applicant to be identified.
The applicant was born in Lebanon, which shares a border with Syria.
The Islamic State (ISIL) is an Iraq and Syria-based extremist group and former al-Qa’ida affiliate that adheres to a global jihadist ideology, which has been listed as a terrorist organisation for the purposes of…
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- Case
- [2019] AATA 6112
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the Director-General's adverse security assessment was justified, and consequently, whether the recommendation for visa cancellation should be affirmed. This required the Tribunal to assess the evidence relating to SDCV's beliefs, online activities, and expressed support for ISIL, and to determine if these factors constituted a danger to Australia's security.
Deputy President Rayment Oam Qc P, in his reasoning, applied the principles of administrative review under the *Administrative Appeals Tribunal Act 1975* (Cth) and the relevant provisions of the *Migration Act 1958* (Cth) concerning security assessments. The Tribunal considered the nature of the threat posed by extremist ideologies and the potential for individuals holding such views to engage in or facilitate politically motivated violence. The Tribunal found that SDCV's engagement with and support for ISIL, as evidenced by online activities and expressed views, met the threshold for posing a danger to the security of Australia.
Consequently, the Tribunal affirmed the Director-General's decision and the recommendation for the cancellation of SDCV's Partner visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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