TNFD and Director-General of Security

Case [2015] AATA 752

TNFD and Director-General of Security [2015] AATA 752 (25 September 2015)

Division

SECURITY DIVISION

File Number(s)

2014/4292

Re

TNFD

APPLICANT

And

Director-General of Security

RESPONDENT

File Number(s)

2014/4294; 2014/4627

Re

TNFD

APPLICANT

And

Minister for Foreign Affairs

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Deputy President S E Frost
Senior Member N Isenberg
Date 25 September 2015
Place Sydney

In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), it is decided that:

1.in application 2014/4292, the adverse security assessment issued by the Director-General of Security in respect of the Applicant is affirmed;

2.in application 2014/4294, the decision of the Minister for Foreign Affairs to cancel the Applicant’s Australian passport is affirmed;

3.in application 2014/4627, the decision of the Minister for Foreign Affairs to order that the Applicant surrender his Jordanian passport/travel document is affirmed.

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

Deputy President J W Constance

Catchwords

NATIONAL SECURITY – adverse security assessment – cancellation of Australian passport – order to surrender foreign travel document - likely to engage in conduct which might prejudice security – decisions affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 43AAA(3)
Australian Passports Act 2005 (Cth) ss 22, 50
Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1), 35(1), 37(2), 54, 61

Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) ss 15(1), 16(1), 23

Cases

BLBS and Director-General of Security [2013] AATA 820
MYVC v Director-General of Security [2014] FCA 1447

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.

REASONS FOR DECISION

Deputy President J W Constance
Deputy President S E Frost
Senior Member N Isenberg

25 September 2015

A:        INTRODUCTION

  1. The Applicant was born in Jordan and is 44 years old.  In 1992 he was granted Australian citizenship.  He retained his Jordanian citizenship.

  2. In March 2013, the Applicant was issued an Australian passport.  At the time he also held a Jordanian passport.

  3. Subsequently to the issue of the Australian passport, 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 would be likely to engage in conduct that might prejudice the security of Australia or a foreign country if he were to hold an Australian passport;

    ·the applicant would likely engage in politically motivated violence, or activities in support of politically motivated violence, if he were to travel overseas using an Australian passport;

    ·unless the applicant’s foreign travel documents were surrendered, the applicant would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. [1]

    [1] Exhibit UR1 section 3 p.3.

  4. On the basis of this assessment the Director-General requested the Minister for Foreign Affairs to cancel the Applicant’s Australian passport and to order the surrender of his Jordanian travel documents.  In accordance with this request the Minister cancelled the Applicant’s passport…

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Details
AGLC
TNFD and Director-General of Security [2015] AATA 752
Case
[2015] AATA 752
Decision Date

CaseChat Overview and Summary

The case involves the Applicant, whose Australian passport was cancelled and who was ordered to surrender his Jordanian passport. The Respondents, the Director-General of Security and the Minister for Immigration and Border Protection, made these decisions based on an adverse security assessment conducted by the Australian Security Intelligence Organisation (ASIO). The Applicant sought judicial review of these decisions in the Administrative Appeals Tribunal (AAT), which were subsequently appealed to the Federal Court. The central legal issues were whether the decisions to cancel the Applicant’s Australian passport and to order the surrender of his Jordanian passport were lawful and whether the Minister’s decision to order the surrender of the Applicant’s Jordanian passport was the preferable decision.

The Court considered the functions and powers of ASIO under the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the definition of "security" within that Act, and the provisions of the Australian Passports Act 2005 and the Foreign Passports (Law Enforcement and Security) Act 2005 relevant to the cancellation of passports and the surrender of foreign travel documents. The Court also examined the evidence provided during both open and closed hearings, as well as the reasoning provided by the ASIO officer in charge of the security assessment.

The Court found that the adverse security assessment was based on classified evidence that was not disclosed during the open hearing. Based on this classified evidence, the Court was satisfied that the Applicant was not truthful in his denials and that the ASIO assessment that the Applicant would likely engage in conduct that might prejudice the security of Australia or a foreign country was correct. The Court determined that the Minister’s decisions to cancel the Applicant’s Australian passport and to order the surrender of his Jordanian passport were lawful, as they were supported by the necessary quantity and quality of information to justify the security assessment. The Court further affirmed the AAT’s decision that the Minister’s decision to order the surrender of the Applicant’s Jordanian passport was the preferable decision.

The final orders of the Court were to affirm the decisions of the AAT, upholding the Minister’s decisions to cancel the Applicant’s Australian passport and to order the surrender of his Jordanian passport.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The third issue is whether the Minister’s decision to order the surrender of the Applicant’s Jordanian passport is the preferable decision.C: BACKGROUNDNotification of the adverse security assessment Initially the Applicant was not notified of the making of the adverse security assessment as the Attorney-General had issued a certificate in accordance with paragraph 38(2)(a) of the ASIO Act. It was determined that the withholding of the notice was essential to the security of Australia. On 6 February 2014, the Australian Federal Police executed a search warrant at the Applicant’s residence. During this search the Police Officers seized the Applicant’s passport and provided him with correspondence from the Department of Foreign Affairs and Trade advising him of the cancellation and surrender decisions. The certificate issued by the Attorney-General was later revoked. A further certificate under paragraph 38(2)(b) was issued by the Attorney-General precluding only parts of the adverse security assessment being disclosed to the Applicant On 28 February 2014, the Department of Foreign Affairs and Trade wrote to the Applicant advising him once more of the making of the cancellation and surrender decisions and advising him of the existence of the adverse security assessment.[2][2] Exhibit UR1 section 6 p.41.Request by ASIO to interview of the Applicant On 27 May 2014, two officers of ASIO attended the Applicant’s residence and advised the Applicant that they wished to talk to him about concerns ASIO held in relation to him. The Applicant declined to be interviewed and referred the officers to his solicitor.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). The relevant part of the definition of politically motivated violence states that the expression means:…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. In Sayed Akbar Jaffarie v Director-General of Security and Migration Review Tribunal[3] the Full Court of the Federal Court rejected an argument that the definition of security should be interpreted in a confined manner based on the breadth of the heads of power contained in the Australian Constitution. The Court said:The term ‘security’ and the phrase ‘the protection of Australia’s territorial and border integrity’ are thus not to be read in the confined manner advanced on behalf of Mr Jaffarie. Nothing in paragraph (aa) suggests that the phrase should be given anything other than the natural and ordinary meaning of the words employed. Indeed, if anything, the statutory context in which the phrase is employed strongly suggests that no pedantic or unnecessary construction should be placed upon the phrase.[4][3] [2014] FCAFC 102.[4] [2014] FCAFC 102, at para 64.D.1.2: The power of ASIO to furnish security assessments

Evidence

Evidence Before The Court

The Applicant’s parents live in Jordan. He wishes to travel to Jordan to see his parents and to holiday. As the Applicant is the eldest son of his parents, it is important that he be able to travel to Jordan in the event of the death of a parent. In addition to wishing to be able to travel to Jordan, the Applicant would like to be able to visit the United Arab Emirates (where his brothers are living) and Malaysia.G.2. The evidence of Mr Sawyer Mr Sawyer is a Senior Executive Service Officer of ASIO and has been an ASIO officer for ten years. He has significant experience managing counter-terrorism investigations and conducting security assessments regarding whether passport should be refused or cancelled. Mr Sawyer provided an affidavit affirmed 29 October 2014,[14] and gave evidence in both the open and closed hearings.[14] Exhibit UR1 section 3. In his affidavit Mr Sawyer stated, in part:20. The nature and extent of ASIO’s investigation to inform a security assessment will vary from case to case. This is because ASIO’s investigative actions are appropriate and proportionate to address the security concerns in each specific case.21. The security assessment of the applicant was conducted in accordance with Security Assessment Determination No. 2 made by the Director-General on 28 July 2010 pursuant to section 37 (4) of the ASIO Act. 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. In response to questions raised by the Applicant, Mr Sawyer said that so far as he was aware, when the search warrant was executed, no documents indicating that the Applicant was involved in transferring funds overseas were located. Mr Sawyer gave evidence concerning the factors favourable to the Applicant and considered by ASIO. He acknowledged that the Applicant stated that he had not committed any offences. In response to this denial Mr Sawyer stated that:It is ASIO’s continued assessment that if the applicant held an Australian passport he would be likely to engage in conduct that may prejudice the security of Australia or a foreign country and his passport should remain cancelled in order to prevent him from engaging in that conduct.[15]H. CONSIDERATION[15] Exhibit UR1 section 3 p.5..H.1. The argument on behalf of the Applicant Counsel for the Applicant argued that on the open material we could not be satisfied that the Director-General had reasonable grounds to suspect that the Applicant would be likely to engage in the specified conduct if an Australian passport was issued to him and if he retained his Jordanian travel documents. On this basis the Director-General was not entitled to make the cancellation and surrender request and the consequent actions in response to those requests were invalid. H.2. DiscussionH.2.1 The adverse security assessment

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.D.3.3 Review of the decision to order the surrender of the Applicant’s Jordanian travel documents Section 23 of the Foreign Passports (Law Enforcement and Security) Act 2005 provides that an application may be made to this Tribunal to review a decision of the Minister to order the surrender of a person’s foreign travel documents.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,[7] 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.” [8] 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. [7] [2013] AATA 820 at paras 48-54.[8] 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.

Ratio Decidendi

Legal Principle Established

He acknowledged that the Applicant stated that he had not committed any offences. In response to this denial Mr Sawyer stated that:It is ASIO’s continued assessment that if the applicant held an Australian passport he would be likely to engage in conduct that may prejudice the security of Australia or a foreign country and his passport should remain cancelled in order to prevent him from engaging in that conduct.[15]H. CONSIDERATION[15] Exhibit UR1 section 3 p.5..H.1. The argument on behalf of the Applicant Counsel for the Applicant argued that on the open material we could not be satisfied that the Director-General had reasonable grounds to suspect that the Applicant would be likely to engage in the specified conduct if an Australian passport was issued to him and if he retained his Jordanian travel documents. On this basis the Director-General was not entitled to make the cancellation and surrender request and the consequent actions in response to those requests were invalid. H.2. DiscussionH.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. In fact, this was conceded by Counsel for the Respondents. The Applicant has consistently denied any wrongdoing and he has not been charged with any offences. Mr Sawyer was unaware of any evidence which demonstrated that the Applicant had been involved in the transfer of funds overseas for purposes which might prejudice the security of Australia or a foreign country. The Applicant explained that he wished to travel to Jordan in order to visit his parents, and not for any purposes which might prejudice the security of Australia or a foreign country. However, based on the classified evidence, we are satisfied that the Applicant was not a truthful witness when he gave evidence before us. We have concluded that the assessment by ASIO that:·[the Applicant] would be likely to engage in conduct that might prejudice the security of Australia or a foreign country if he were to hold an Australian passport; ·[the Applicant] would likely engage in politically motivated violence, or activities in support of politically motivated violence, if he were to travel overseas using an Australian passport;·unless [the Applicant’s] foreign travel documents were surrendered, the applicant would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.is correct. In general we have followed the principles to guide decision-makers which are set out in Security Assessment Determination No.2. We have determined that there is sufficient information before us to justify the findings and conclusions in the assessment. In accordance with clause 7.2.5(b) of the Determination, we are satisfied that the findings and conclusions adverse to the Applicant are at least likely. The prescribed administrative action which is under consideration is the power of the Minister under the Australian Passports Act 2005 to cancel the Applicant’s Australian passport and the power under the Foreign Passports (Law Enforcement and Security) Act 2005 to order the surrender of the Applicant’s Jordanian passport. Based on the evidence given in the closed hearing, we have considered the consequences to security of the decision to cancel the Applicant’s passport. We are satisfied that the information provided to us is of the necessary quantity and quality to make the security assessment.