TCXG and and Minister for Foreign Affairs

Case •

[2013] AATA 284

[2013] AATA 284

Division Security Appeals Division

File Number(s)

2012/3549

Re

TCXG

APPLICANT

And

Director General of Security

RESPONDENT

File Number(s)

2012/3550

Re

TCXG

APPLICANT

And

Minister for Foreign Affairs

RESPONDENT

NOTE

This decision has been published in accordance with the Tribunal’s decision in [2013] AATA 377. Pursuant to s 35AA of the Administrative Appeals Tribunal Act 1975, the Tribunal has directed that the publication of the name of the applicant and of the name of the applicant’s legal representative be prohibited. Publication of matter identifying the applicant may be an offence.

Section 63(5) of the Administrative Appeals Tribunal Act 1975 provides the following:

Contempt of the Tribunal

A person is guilty of an offence if:

(a)    the person engages in conduct; and

(b)   the person’s conduct would, if the Tribunal were a court of record, constitute a contempt of that court.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

DIRECTION

Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal being satisfied that there is an obvious error in the written statement of reasons for the decision of 10 May 2013, directs the Registrar to alter the text by:

a.Deleting the second sentence of paragraph 29:

‘The certificated Statement of Grounds ASIO supplied to the Applicant contains the allegation that TCXG adheres to an extremist interpretation of Islam which condones the use of politically motivated violence (PMV) to defend the Islamic faith.’

and substituting therefor:

‘The un-certificated Statement of Grounds ASIO supplied to the Applicant contains the allegation that TCXG adheres to an extremist interpretation of Islam which condones the use of politically motivated violence (PMV) to defend the Islamic faith.’

b.Deleting the first sentence of paragraph 30:

‘However, the un-certificated version of ASIO’s Statement of Grounds contains additional specific allegations.’

and substituting therefor:

‘However, the certificated version of ASIO’s Statement of Grounds contains additional specific allegations.’

DECISION

Tribunal

Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JF Toohey, Senior Member
Date 10 May 2013
Place Sydney

The Tribunal affirms the decisions under review.

..............[sgd]............................................

Justice D Kerr, President

CATCHWORDS

NATIONAL SECURITY – adverse security assessment – refusal of application for Australian passport – likely to engage in conduct which might prejudice security – correctness, justification for any opinion or information contained in assessment –whether evidence, information, material relied on sufficiently probative to justify assessment – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Passports Act 2005 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth)
Criminal Code Act 1995 (Cth)

CASES

Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380

Edwards v The Queen (1993) 178 CLR 193

RJCG v Director-General of Security [2013] FCA 269

SECONDARY MATERIALS

Australian Passport Determination 2005

OPEN REASONS FOR DECISION

Justice D Kerr, President
Mr RP Handley, Deputy President
Ms JF Toohey, Senior Member

  1. TCXG (the Applicant) has applied for the review of two decisions:

    (i)an adverse security assessment made by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO) (the Respondent) who assessed that if TCXG holds an Australian passport, [TCXG] would be likely to engage in conduct that might prejudice the security of Australia or another foreign country; and

    (ii)a decision made by the Minister for Foreign Affairs (the Minister) to refuse TCXG’s application for an Australian passport.

    BACKGROUND

  2. TCXG, [redacted] is an Australian citizen. [redacted]

  3. [redacted].

  4. [redacted].

  5. [redacted].

  6. [redacted].

  7. [redacted].  

  8. ASIO invited the applicant to participate in an interview prior to making its security assessment in respect of [TCXG’s] 2011 application for a new passport.

    ASIO INTERVIEW AND SECURITY ASSESSMENT

  9. On 21 December 2011, TCXG, accompanied by [TCXG’s lawyer], [redacted], voluntarily attended an interview with ASIO officers. The interviewers explained that they were providing TCXG with an opportunity to state [TCXG’s] views about politically motivated violence (PMV) and explain [TCXG’s] conduct in that regard. The interviewers asked TCXG to identify all of [TCXG’s] important relationships. TCXG was advised that the interview would not be recorded but that a detailed note of what [TCXG] was asked and [TCXG’s] answers would be taken.

  10. Notes of the interview prepared by ASIO were included in the documents provided to the Tribunal. [TCXG’s lawyer] told the Tribunal that his client did not dispute their content and accuracy. [redacted].

  11. [redacted].

  12. [redacted].

  13. [redacted].

  14. [redacted].

  15. [redacted].

  16. [redacted].

  17. [redacted].

  18. [redacted].

  19. On 21 June 2012, the Director-General made a new adverse security assessment in respect of TCXG. On 12 July 2012, the Australian Passport Office contacted TCXG to inform [TCXG] that the Minister had decided to refuse [TCXG’s] application for an Australian passport. On 15 August 2012, TCXG applied to the Tribunal for a review of the Director-General’s and the Minister’s decisions.

    RELEVANT LAW AND ISSUES

  20. Pursuant to s 17(1) of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), the functions of ASIO include:

    (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.

  21. Section 37(1) states:

    The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities. 

    Section 37(2) requires that an adverse or qualified security assessment be accompanied by a statement of grounds for the assessment. 

  22. Section 4 defines ‘security’ as meaning:

    (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:

    (i) espionage;

    (ii) sabotage;

    (iii) politically motivated violence;

    (iv) promotion of communal violence;

    (v) attacks on Australia's defence system; or

    (vi) acts of foreign interference;

    whether directed from, or committed within, Australia or not; and

    (aa) the protection of Australia's territorial and border integrity from serious threats; and

    (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

  23. ‘Politically motivated violence’ is defined in s 4 to mean:

    (a) 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; or

    (b) acts that:

    (i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and

    (ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or

    (ba) acts that are terrorism offences; or

    (c) acts that are offences punishable under the Crimes (Foreign Incursions and Recruitment) Act 1978 , the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991 ; or

    (d) acts that:

    (i) are offences punishable under the Crimes (Internationally Protected Persons) Act 1976 ; or

    (ii) threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General.

  24. ‘Security assessment or assessment’ is defined in s 35(1) as meaning a statement in writing furnished by ASIO to a Commonwealth agency expressing any recommendation, opinion or advice on, or referring to whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of the person. ‘Adverse security assessment’ is defined in s 35(1) as meaning a security assessment in respect of a person that contains (a) any opinion, advice or 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 taken in respect of the person, the implementation of which would be prejudicial to the interests of the person.  ‘Prescribed administrative action’ is defined as including the exercise of any power, or the performance of any function, in relation to a person under the Australian Passports Act 2005 (the Passports Act).

  25. As stated above, the Respondent made an adverse security assessment in respect of TCXG on the ground that if [TCXG] holds an Australian passport, [TCXG] would be likely to engage in conduct that might prejudice the security of Australia or another foreign country. The Respondent requested that the Minister refuse to grant TCXG’s application for an Australian passport in order to prevent [TCXG] from engaging in such conduct.

  26. Section 14 of the Passports Act provides, relevantly, that:

    (1) If a competent authority suspects on reasonable grounds that:

    (a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:

    (i) might prejudice the security of Australia or a foreign country; or

    …; and

    (b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;

    the competent authority may make a refusal/cancellation request in relation to the person.

    (2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.

    (3) In this section:

    "competent authority" :

    …

    (b) in relation to a circumstance mentioned in subsection (1) that relates to a foreign country, means:

    …

    (iii) an agency (within the meaning of the Financial Management and Accountability Act 1997) that is specified in a Minister's determination as a competent authority in relation to the circumstance.

  27. ASIO has been specified to be such an agency pursuant to paragraph 3.4(3) of the Australian Passport Determination 2005.

  28. TCXG exercised [TCXG’s] right to apply to the Tribunal for a review of the decisions pursuant to s 54 of the ASIO Act and ss 48(b) and 50(1) of the Passports Act. Dr Renwick SC, for the Respondent, submitted that if the Tribunal was not persuaded to set aside ASIO’s adverse security assessment there could be no legal or factual foundation for the Tribunal to set aside the consequential decision made under the Passports Act. [TCXG’s lawyer] conceded that it could not be the correct or preferable decision for the Tribunal to set aside the Minister’s decision to refuse to issue TCXG an Australian passport if the Tribunal did not also set aside TCXG’s adverse security assessment. The Tribunal accepts that [TCXG’s lawyer] was correct to make that concession and the Tribunal has proceeded on that basis.

  29. The principal issue for the Tribunal therefore is whether ASIO was correct in its assessment that TCXG would be likely to engage in conduct ‘that might prejudice the security of Australia or another foreign country’ with reference to definition of ‘security’ in s 4 of the ASIO Act. The certificated Statement of Grounds ASIO supplied to the Applicant contains the allegation that TCXG adheres to an extremist interpretation of Islam which condones the use of politically motivated violence (PMV) to defend the Islamic faith. [redacted].

  30. However, the un-certificated version of ASIO’s Statement of Grounds contains additional specific allegations. The Tribunal was and is prohibited from disclosing those allegations to either the Applicant or [TCXG’s] lawyer. Nevertheless, in so far as it was possible, the Tribunal tested the evidence for those certificated allegations during its closed hearings.

  31. The procedure governing the conduct of the Tribunal’s review is that stipulated in s 39A and s 39B of the Administrative Appeals Tribunal Act 1975 (the AAT Act). (See, for example, Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380, at [43ff].) Section 43AAA(2) provides that upon the conclusion of this review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the Tribunal’s opinion as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. However, s 43AAA(3) provides that the Tribunal must not make findings in relation to an assessment that would have the effect of superseding any information taken to be part of the assessment unless, in the Tribunal’s opinion, the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security.

    ASIO’S UNCLASSIFIED EVIDENCE

  32. Under the pseudonym of Lachlan Sawyer, a senior ASIO officer with responsibility for managing the Branch within ASIO responsible for the security intelligence investigation of TCXG, provided an open affidavit dated 28 February 2013 and a closed affidavit dated 2013 and gave evidence at the hearing both in open and closed sessions. [redacted]. His closed affidavit and much of the evidence relied upon by the Respondent is the subject of Ministerial certificates issued pursuant to s 39A(8) of the AAT Act and, therefore, was not disclosed to the Applicant and may not be disclosed in this Statement of Reasons. Non-disclosure to the Applicant made [TCXG’s lawyer]’s task of cross-examining Mr Sawyer and presenting a case for the Applicant a very difficult one. In relation to Mr Sawyer’s evidence, conscious of those difficulties, the Tribunal invited [TCXG’s lawyer] to identify any questions to which the Applicant sought an answer, but which would be subject to the Ministerial certificates. The Tribunal undertook to put any questions to Mr Sawyer in closed session.

  33. [redacted].

  34. [redacted].

  35. [redacted].

  36. [redacted].

  37. [redacted].

  38. Mr Sawyer stated that ASIO assessed that TCXG maintains an extremist Islamic ideology. ASIO assesses an extremist Islamic ideology to be one whose objectives include the promotion and condoning of the use of violence. [redacted]. He said ASIO assesses that TCXG’s extremist actions involve encouraging, fostering and supporting extremist activities including the use of politically motivated violence. ASIO’s assessment is drawn from a range of open and closed sources. Mr Sawyer said it would be against the interests of national security to reveal what ASIO does or does not know about particular issues. But, in many instances, it is what is not said – being evasive, omitting or misleading – which is of significance when compared with what ASIO knows to be true.

  39. [redacted].

  40. [redacted].

    TCXG’S EVIDENCE

  41. TCXG provided an affidavit dated 31 January 2013 and gave oral evidence at the hearing, which, in accordance with s 39A(5) of the AAT Act, was held in private. In [TCXG’s] affidavit, [TCXG] said [TCXG] does not agree with ASIO’s assessment that [TCXG] holds extremist views. [TCXG] is simply a devout Muslim:

    5. I do not agree with engaging in violence such as suicide bombing, terrorist acts and thinks [sic] of that nature involving innocent people. That includes providing material support to those who may engage in such acts.

    6. If my passport were reinstated I wish to travel overseas and possibly live overseas. I prefer to live in a country with an Islamic majority as then I blend in rather than stand out as I do in Australia. By standing out in Australia I am often the victim of unsolicited discriminatory comments which are at the least a nuisance.

    7. I have no intention of engaging in acts of politically and/or religiously motivated violence or supporting those who do.

  42. At the hearing, TCXG was asked about the security assessment interview with ASIO on 21 December 2011. [TCXG] said [TCXG] answered ASIO’s questions to the best of [TCXG’s] ability and does not think [TCXG]  lied or twisted the truth. [TCXG]  did avoid mentioning the names of friends because they might also be thought to be of bad character by association with [TCXG].

  43. During the security assessment interview, [TCXG]  acknowledged that [TCXG]  practices a strict form of Islam. However, [TCXG]  said that [TCXG]  does not support war or wish harm on anyone whether Muslim or not. [TCXG]  also does not believe in killing innocent people. [redacted].

  44. [redacted].

  45. [redacted].

    TCXG said [TCXG]  has not engaged in any acts that would condone politically or religiously motivated violence and does not condone the killing of anybody. TCXG said (transcript 20 March 2013, p 14):

    I think that acts like terrorist acts and suicide bombing are not okay, but I think people’s rights to defend their homes and their wives and children is okay. I also think that if people could help people not to be oppressed by such governments like Syria, that it’s okay for them to help them, as long as they’re not crossing any moral grounds of killing and hurting innocent people.

  46. [redacted].

  47. [redacted].

  48. [redacted].

  49. [redacted].

  50. [redacted].

  51. [redacted].

  52. [redacted].  

  53. [redacted].

  54. [redacted].

  55. [redacted].

  56. [redacted].

  57. [redacted].

  58. [redacted].

  59. [redacted].

  60. [redacted].

  61. [redacted].

  62. [redacted].

    DISCUSSION

  63. As noted above, the Tribunal has been provided with both ‘open’ evidence and submissions and also with ‘closed’ evidence and submissions, the latter being the subject of a Ministerial certificate issued pursuant to s 39A(8) of the AAT Act and which may not, therefore, be disclosed in this Statement of Reasons. This makes the Tribunal’s task of explaining its decision to the Applicant a difficult one. The Tribunal will address the full Statement of Grounds and the certificated material in an additional closed Statement of Reasons provided to the Respondent.

  64. The open ‘Statement of Grounds’ provided by ASIO in support of its decision and provided to TCXG states relevantly:

    4. ASIO assesses [TCXG], an Australian citizen, would be likely to engage in conduct that might prejudice the security of Australia or a foreign country if granted an Australian passport. The basis for this assessment is supported by, amongst other things, the following:

    a. [TCXG]  adheres to an extremist interpretation of Islam, which condones the use of politically motivated violence (PMV) to defend the Islamic faith.

    5. ASIO assesses that should [TCXG] travel, [TCXG]  might engage in activities prejudicial to the security of Australia or a foreign country.

    6. It is assessed that [TCXG’s] application for an Australian passport should be refused in order to prevent [TCXG] from engaging in conduct that might prejudice the security of Australia or a foreign country.

    …

    9. [redacted].

  65. [redacted].

  66. [The Applicant’s lawyer] noted that the Respondent sought to distinguish between a person holding ‘fundamentalist’ or strict Islamic views, who would not be of concern to ASIO, and a person holding ‘extremist’ Islamic views, including the promotion and condoning of politically motivated violence, who would be of concern. [The Applicant’s lawyer] said that TCXG had made it clear in [TCXG’s] evidence that [TCXG’s] beliefs were of the former kind. He urged the Tribunal to accept TCXG as sincere and a witness who had told the truth.

  67. Dr Renwick SC, for the Respondent, by contrast contended that TCXG’s evidence supports an assessment that [TCXG] condones Politically Motivated Violence (PMV), referring to [TCXG’s] evidence, quoted at paragraph 44 above. He said TCXG had sought to downplay [TCXG’s] association with others who hold extremist views and encourage or condone PMV.

  1. [redacted].

  2. [redacted].

  3. Dr Renwick also drew attention to TCXG’s association with a significant number of Australian citizens whom ASIO assessed to have extremist connections:

    ·[redacted].

  4. We have given careful consideration to the open evidence and submissions by both Dr Renwick and [TCXG’s lawyer]. Notwithstanding the evidence of TCXG’s associations, we are not satisfied from the open evidence alone that the adverse security assessment should be affirmed.

  5. The Tribunal acknowledges the difficulties facing TCXG in seeking to practice the form of fundamentalist Islam [TCXG]  adheres to in Australia. [redacted]. It is understandable that [TCXG]  might feel more comfortable, as [TCXG]  says, in a country where the practice of strict Islamic beliefs is widely accepted in the community, is part of the normalcy of everyday life, and where [TCXG] will not be reviled by others. We do not doubt that TCXG was sincere in [TCXG’s] statements to the Tribunal as to [TCXG’s] motivation in that regard and, as an Australian citizen, [TCXG]  is fully entitled to make those choices. In our opinion, even [TCXG’s] choice to associate with people who hold fundamentalist or extremist views would not in itself be sufficient to justify an adverse security assessment. [redacted].

  6. However, the Tribunal has been provided with other, classified material which does satisfy us that the adverse security assessment was soundly based. That material establishes that some of the evidence that TCXG presented was objectively false, involving TCXG having lied to the Tribunal in giving [TCXG’s] evidence. We are satisfied that TCXG seriously downplayed the nature of [TCXG’s] views and the strength and breadth of [TCXG’s] associations with those involving in promoting PMV. We have concluded that TCXG’s lying is explicable only on the basis that the truth would have implicated TCXG both with [TCXG’s] holding the views and [TCXG’s] being likely to undertake the conduct ascribed to [TCXG] by the Respondent (Edwards v The Queen (1993) 178 CLR 193). The closed reasons for our decision, which may not be disclosed to the Applicant, explain our reasons for so concluding.

  7. The Tribunal is therefore satisfied from the classified evidence that, with reference to the definition of ‘security’ in s 4 of the ASIO Act, an adverse security assessment was warranted in TCXG’s case. We are also satisfied that if TCXG is issued with a passport, [TCXG] would be ‘likely to engage in conduct that might prejudice the security of Australia or another foreign country’. Thus, pursuant to s 14 of the Passports Act, we conclude that the correct or preferable decision was for the Minister to refuse to issue TCXG with an Australian passport.

  8. The Tribunal is not unmindful of the difficulties of this outcome from the perspective of the Applicant. On the open material, the Tribunal has found that there was no sufficient evidence to justify ASIO’s assessments. The focus of these proceedings, however, is on security, both within the Commonwealth of Australia and its States and Territories, and in relation to Australia’s responsibilities to any foreign country. It is for reasons of the public interest and, in particular, of security, that the Attorney-General has issued certificates under s 36(1)(a), s 39A(8) and s 39B(2)(a) of the AAT Act which have had the effect of denying the Applicant access to classified documents and evidence so that [TCXG] has not a proper opportunity to know the case against [TCXG].

  9. The Tribunal has taken this into account in its approach to the hearing and the evidence so far as it was able to do so. We can do no more than state that to the extent open to us, the three members comprising the Tribunal did all that they could to test all of the classified evidence for the Respondent adverse to the Applicant. We cannot detail that evidence, but we can indicate that in our opinion it was presented by ASIO professionally, fairly and thoughtfully and in a way that satisfied us of its credibility. Nevertheless, we acknowledge that might be perceived to be an inadequate substitute for the testing of evidence by counsel.

  10. The Tribunal drew Dr Renwick’s attention to the provisions of s 39A(9)(b) which  permits the responsible minister to consent to the legal representative of a person being present during the reception of classified evidence which is the subject of a certificate. Such consent was not given in this case. As noted, there are limits to the degree the Tribunal can make up for the absence of cross-examination and submissions on behalf of an applicant. Taken too far, sceptical intervention from the Tribunal could give rise to a perception of bias. If an applicant was able to brief a security cleared lawyer to take on that role without risk to national security, we would urge consideration of permitting that course in future matters.

  11. [redacted].

  12. The Tribunal notes Justice Foster’s comment in RJCG v Director-General of Security [2013] FCA 269, at [58], that there is no foundation in the AAT Act for not publishing its Open Statement of Reasons. We have considered s 81(1) of the ASIO Act, to which Justice Foster referred at [59], and, in our view, this does not preclude us from publishing this Open Statement of Reasons. This Open Statement of Reasons will therefore be published as is the practice with other decisions of the Tribunal.

    DECISION

  13. The Tribunal affirms the decisions under review.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President, Mr RP Handley, Deputy President
Ms JF Toohey, Senior Member.

.........[sgd]...............................................................

Associate

Dated:  10 May 2013

Date(s) of hearing 18, 19, 20 and 22 March 2013
Date final submissions received March 2013
Advocate for the Applicant [redacted]
Solicitors for the Applicant [redacted]
Counsel for the Respondents Dr J Renwick SC and Mr T Glover
Solicitors for the Respondents Australian Government Solicitor
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Cases Citing This Decision

1

BLBS and Director-General of Security and Anor [2013] AATA 820
Cases Cited

3

Statutory Material Cited

0

Steinberg v Federal Commissioner of Taxation [1975] HCA 63
Edwards v The Queen [1993] HCA 63
RJCG v Director-General of Security [2013] FCA 269