SDCV and Director-General of Security
[2019] AATA 6112
•2 December 2019
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.
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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 subsection 102.1(1)of the Criminal Code. It is said to follow an extremist interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its interpretations as infidels and apostates. It openly calls for attacks against Australia and its interests, both because of Australia’s support to military operations against Islamic State in Iraq and Syria, and because of the group’s anti-Western ideology.
The ASA concluded, amongst other things, that the applicant used a phone other than his personal or work phones which he later said that he had obtained specifically for the purpose of communication with his Syria-based brother, via the encrypted messaging application, Telegram (the covert phone). He also used that covert phone to communicate with an uncle in Syria who is an ISIL leadership figure. He also used the covert phone to communicate with Australian-based family members of security interest, and when using the telephone ASIO assessed that the applicant used communications security tradecraft practices, and provided inaccurate information to ASIO when interviewed by that organisation. The Australian-based family members of security interest were charged with and subsequently convicted of certain very serious offences, but ASIO did not assess that the applicant had any involvement with those offences. He said he disposed of the covert phone following arrests of his Australia-based relatives, as he was concerned he had committed an offence by using the covert phone to speak to his Syria-based brother.
ASIO assessed that the applicant has support for politically motivated violence and ISIL and employed security tradecraft practices while engaging with individuals of security concern, including Syria-based individuals affiliated with ISIL. ASIO accordingly assessed the applicant to be directly or indirectly a risk to security, and that it would not be consistent with the requirements of security for the applicant to continue to hold an Australian permanent Partner visa.
The applicant accepted that at his first interview with ASIO he had been untruthful about the covert phone and said that he had done so out of fear. His denials of possession and use of the covert phone in his first ASIO interview were emphatic. He also said he does not support ISIL and does not support politically motivated violence. He said that he associates with persons of other faith persuasions and has been attending Catholic mass regularly. He said that he wanted the covert phone to communicate with his brother in Syria, about whom he was worried, and whom he wished to persuade to leave Syria. That brother has since died in Syria. In oral evidence, the applicant put himself forward as a liberal and open-minded Muslim, with Christian friends both in Lebanon and Australia. He gave answers about the covert phone and the use of a sim card that may have been inconsistent but may have been affected by difficulties of translation.
A Catholic priest told us that the applicant has regularly attended services which he has conducted at the place where the applicant has been in detention, and informal gatherings afterwards, and that he gained a good impression of the applicant, and his veracity, and that he does not believe that the applicant supports politically motivated violence.
The applicant’s wife who is an Australian citizen, born in Australia, and who is a teacher, gave evidence before us. She has been married to the applicant for more than nine years. Until detained, he was in gainful employment. She said he is not a very religious Muslim, and she has never seen any indication that he supports politically motivated violence. He had Christian friends in Lebanon and celebrates his birthday, unlike religious Muslims. In her oral evidence, she said that neither she nor her husband go to the mosque, and that her husband is a fanatic of music and loud speakers, and goes out partying with his mates. She herself wears a head scarf but wears pants and stiletto heels. She says that her husband gives her the confidence to do whatever she likes, that the applicant is not an extremist Muslim, and is open minded about other faiths. She confirmed various aspects of the applicant’s evidence, and said that she and her husband were both “low-level” Muslims.
We also heard from the applicant’s brother-in-law who is an Australian, and who desires the applicant to remain here with his wife and hopes that they will bring up children here. We were also provided with references from persons who worked with the applicant, who spoke well of him. His conduct in detention has been good.
The applicant’s case is not advanced by his having told lies to ASIO in his first interview. On the other hand, his explanation that he was concerned that if he told the truth he was admitting guilt of an offence, and his statement that he was in shock about the arrest of Australian relatives are not improbable on their face.
It was put to the applicant in the first ASIO interview that he had sent his Australian-based uncle an audio file of a pro-ISIL kutbah or sermon praising the Caliphate and Islamic State and asking for martyrdom for God’s sake. The applicant said that he did not send the audio file to his uncle and at times that he did not recall it. During the second interview with ASIO he admitted having had a Samsung phone connected by Wi-Fi and disposed of it after the arrest of Australian relatives. He admitted sending the kutbah to an Australian uncle. The terms of the sermon were found on the uncle’s phone and received into evidence before us. The applicant denied that he had listened to the kutbah.
The open affidavit of the Director-General’s witness discloses at paragraph 75 that the assessment of the applicant’s support for politically motivated violence and ISIL is also supported by material which will be the subject of a classified affidavit.
We were not able to form a view on the main question before us, which may be summarised as whether the ASA was justified, based upon the evidence led before us in open session.
We have written closed reasons for decision based upon the classified evidence placed before us and have concluded, based upon that evidence, that the ASA is justified and that the reviewable decision should be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC, The Hon. John Pascoe AC CVO, Deputy President, Senior Member A Poljak
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Associate
Dated: 2 December 2019
Date(s) of hearing: 7 - 10 May 2019, 24 September 2019 Solicitors for the Applicant: Mr M Jones, Parish Patience Immigration Lawyers
Counsel for the Respondent: Mr P D Herzfeld Solicitors for the Respondent: Australian Government Solicitor
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