SDCV and Director-General of Security - [2019] AATA 6112

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 Poljak
2 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read SDCV and Director-General of Security and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 6112
Decision Date: 2 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by SDCV against a decision by the Director-General of Security to affirm a recommendation for the cancellation of SDCV's Partner visa. The Director-General's recommendation was based on an adverse security assessment, which concluded that SDCV posed a danger to the security of Australia. This assessment was informed by SDCV's ideology in support of politically motivated violence, including consuming extremist material online and expressing support for Islamic State of Iraq and the Levant (ISIL).

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