TSJY and Director-General of Security

[2015] AATA 243

[2015] AATA 243  

Division	Security Appeals Division
File Number(s)	2013/3022
Re	TSJY
APPLICANT
And	Director-General of Security
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance Deputy President S E Frost Senior Member N Isenberg
Date	23 April 2015
Place	Sydney

The adverse security assessment in respect of the Applicant, issued by the Director-General of Security on 22 May 2013, is affirmed.

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

Deputy President J W Constance

Catchwords

NATIONAL SECURITY – adverse security assessment – whether assessment should be affirmed as correct – assessed as involved in people smuggling – serious threat to territorial and border integrity – assessment affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 43AAA(3)

Australian Security Intelligence Organisation Act 1979 (Cth) ss 4, 17(1), 35(1), 37(2), 37(4), 54, 61

Cases

BLBS and Director-General of Security [2013] AATA 820
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.

UNCLASSIFIED REASONS FOR DECISION

INTRODUCTION

1. The Applicant arrived in Australia by boat and without the necessary travel documents in 1999.  He was granted a visa shortly after his arrival. This visa entitled him to reside in Australia, but did not permit him to leave the country.

2. In June 2007, the Applicant was granted a permanent visa. He travelled overseas on a number of occasions between 2007 and 2012. In early 2013 the Applicant was granted a Return (resident) visa. A short time later he left Australia.

3. On 22 May 2013, whilst the Applicant was still overseas, 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). The relevant part of the assessment read:

   … it would not be consistent with the requirements of security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979) for [the Applicant] to continue to hold a permanent visa to reside in Australia and that he is directly or indirectly a risk to security, and recommend that his permanent visa be cancelled.

4. On 24 May 2013, the Minister for Immigration and Citizenship cancelled the Applicant's Return (Residence) visa.  As a result of the cancellation, the Applicant was no longer entitled to travel to Australia.  He was advised that if he did so, he would be refused immigration clearance and removed from the country. The Applicant has not returned to Australia since.

5. The Applicant has applied to the Tribunal to review the adverse security assessment issued on 22 May 2013.

6. For the reasons which follow, and for those set out in the Classified Reasons for Decision, the adverse security assessment will be affirmed.

   THE ISSUE

7. The issue for the Tribunal is whether to affirm as correct, to vary, or to set aside, the Respondent’s assessment that it is not consistent with the requirements of security for the Applicant to hold a Return (resident) visa to reside in Australia.

8. The subsequent decision of the Minister to cancel the Applicant's visa is not the subject of this review.

   BACKGROUND

9. The Applicant is 42 years old.  He was born in Afghanistan and is a citizen of that country.

10. In 1999, the Applicant arrived in Australia on a “Suspected Irregular Entry Vessel”.  Early the following year, he was granted a 785 temporary protection visa by the Department of Immigration and Citizenship.

11. The Applicant applied for a permanent protection visa in 2007.  Upon receipt of the application, the Department requested the Australian Intelligence Security Organisation undertake a security assessment of the Applicant.  ASIO issued a non-prejudicial security advice in relation to the Applicant and in June 2007 the Department issued the Applicant with a permanent protection visa.  It should be noted that the definition of “security’ in the ASIO Act was amended in 2010 to include the provision relating to the protection of Australia’s territorial and border integrity.

12. In June 2012, the Applicant applied for Australian citizenship.  Again the Department requested a security assessment.  As part of this assessment ASIO officers interviewed the Applicant in October 2012.  He was advised at the interview that ASIO would rely on what he said to provide advice to the Department as to whether he posed a risk to national security. The Applicant was also warned that an adverse assessment may affect his residency entitlement and/or his citizenship application.

13. The Department granted the Applicant a Return (resident) visa in February 2013 which enabled him to travel overseas.  He departed Australia shortly after the visa was granted.

14. The Director-General of ASIO issued an adverse security assessment in May 2013 and recommended to the Minister that the Applicant's citizenship application be refused and that his return visa be cancelled.  In broad terms, the adverse assessment was based on the assessment that the Applicant was involved in smuggling people into Australia.  The Minister implemented both recommendations in May 2013.

    THE LAW TO BE APPLIED

    The functions of ASIO

15. The functions of the Organisation are set out in subsection 17(1) of the Australian Security Intelligence Act 1979 (Cth) 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.

    The meaning of “security”

16. In section 4 of the Australian Security Intelligence Act 1979, “security” is defined to include:

    (aa) the protection of Australia’s territorial and border integrity from serious threats …

17. In Sayed Akbar Jaffarie v Director-General of Security and Migration Review Tribunal[1] the Full Court of the Federal Court rejected an argument that the definition 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.[2]

    [1] [2014] FCAFC 102.

    [2] [2014] FCAFC 102,.at para 64.

18. In relation to the words serious threats, the Court stated:

    Nor is it necessary for present purposes to attempt any detailed exposition of what may constitute a “serious threat” to security. Such phrases, it is respectfully considered, must be interpreted “flexibly”. But ultimately any assessment on the part of ASIO that the facts constitute a “serious threat” must be an assessment “grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible’.  [Reference to decision of Supreme Court of Canada omitted].[3]

    [3] [2014] FCAFC 102,.at para 72.

    The power of ASIO to furnish security assessments

19. The functions of the Organisation set out in subsection 17(1)(c) “include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.”[4]

    [4] Subsection 37(1) of the ASIO Act.

    What is a ‘security assessment’?

20. Subsection 35(1) of the ASIO Act provides in part:

    Security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.

21. Prescribed administrative action is also defined in subsection 35(1). The definition includes, in paragraph (b) “the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act”.

    What is an ‘adverse security assessment’?

22. Subsection 35(1) provides the following definition:

    adverse security assessment means a security assessment in respect of a person that contains:

    (a) any opinion or advice, or any qualification of any opinion or advice, or any 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 be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

    A statement of grounds must accompany an adverse security assessment

23. Subsection 37(2) of the Act provides:

    An adverse … security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:

    (a) shall contain all the information that has been relied on by the Organisation in making the assessment, other than information inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and

    (b) shall, for the purposes of this Part, be deemed to be part of the assessment.

    Application for review

24. Section 54 of the Act provides that an application may be made to the Administrative Appeals Tribunal for a review of an adverse security assessment.

25. Section 61 provides that every Commonwealth agency concerned with prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.

26. 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, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.

    The application of policy – Security Assessment Determination No.2

27. On 28 July 2010, the Director-General of Security issued the above Determination to provide guidance to the decision-maker in making security assessment under the ASIO Act. 

28. 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,[5] 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.” [6]  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.

    [5] [2013] AATA 820 at paras 48-54.

    [6] At para.54.

29. In reaching our conclusion that the adverse assessment should be affirmed, we have applied the terms of the Determination.

    The relevant provisions of the Security Assessment Determination No.2

    Matters to be taken into account

30. 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; and

    6.3. Consequences to security.

31. 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.

32. Under the heading “Making a finding or the conclusion” clause 7.2.5 of the Determination provides:

    a.   A decision maker should consider whether there is enough information to justify a finding or conclusion being drawn.

    b.   Any finding or conclusion in an assessment (whether intermediate or final) which is adverse to the assessment subject should be judged to be at least ‘likely’.

33. Clause 5(m) provides:

    (m)   The ‘test’ terms used in clauses 6 and 7 are to be interpreted as below:

    ...

    (ii)   ‘Likely to be’: The ‘likely to be’ test is met if the decision maker is of the opinion that there is a real, and not remote, possibility that the risk could occur. It is not necessary that the risk is ‘more likely than not’ to occur. (Emphasis in the original)

34. Again, we adopt the interpretation of the Tribunal in BLBS and Director-General of Security.[7] The term ‘likely’ in 7.2.5(b) is not to be given the same meaning as ‘likely to be’ in clause 5(m). As stated by the Tribunal in BLBS:

    ……the word “likely” in clause 7.2.5(b) was used in its ordinary sense and does not require further embellishment in order to apply the policy of the determination

    ……

    The expression “at least likely” in cl 7.2.5 (b), used in its ordinary sense but read in context as part of the Determination, does not in our opinion, convey the meaning of “more likely than not”. A possibility supported by such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion that the event foreshadowed is plausibly and plainly foreseeable, would be understood, in that context, to come within what the Tribunal understands to be the ordinary meaning of the expression “at least likely”.[8]

    [7] [2013] AATA 820.

    [8] [2013] AATA 820 at paras 62-63.

    THE ASSESSMENT AND THE STATEMENT OF GROUNDS

35. The assessment made by the Director-General of Security on 22 May 2013 is set out above in the Introduction to these reasons.

36. The unclassified Statement of Grounds[9] states, in part:

    People smuggling poses a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented individuals to gain entry to Australia, potentially including individuals of security concern.

    ……

    ASIO assesses [the Applicant ] is a prominent member of the Sayed Abbas maritime people smuggling syndicate in Australia […..] co-ordinating [....] involved in people smuggling. Specifically, ASIO assesses [the Applicant] has assisted in organising people smuggling ventures to Australia, sourced PIIs through the Afghan Azara community in Sydney [....] facilitating irregular maritime ventures targeting Australia.

    […..] given his established people smuggling contacts, […..] provider of people smuggling services in the Sydney Afghan Azara community, and the profitable nature of people smuggling, ASIO assesses [the Applicant] will continue to engage in people smuggling activities targeting Australia and, as an Australia-based organiser for the Sayed Abbas network, represents a serious threat to Australia’s border integrity.

    EVIDENCE

    [9] Exhibit R2.

    The evidence of Mr Masling

37. Mr Masling is a Senior Advisor to the Director-General of Security. Prior to his appointment to that position in December 2013, he was an officer of ASIO for approximately 27 years and gained significant experience in the analytical and operational areas of the Organisation.

38. Mr Masling provided an affidavit sworn 3 October 2014 and gave evidence in both the open and closed hearings.

39. Mr Masling acknowledged that not every activity involved with people smuggling constitutes a serious threat to Australia’s territorial and border integrity.  He stated further:

    ……ASIO is primarily concerned with investigating people smuggling facilitators and organisers.  Such persons are of security interest as they have the capacity to illegally bring dozens or even hundreds of people to Australia, circumventing normal border controls. Additionally, there is a risk one or more of those people will prove to be of security concern themselves.[10]

    [10] Exhibit R1, para.22.

40. The adverse security assessment was made on the basis of confidential information which could not be disclosed at the open hearing as it is protected by public interest certificates. The Applicant was informed of the existence of this information at the interview conducted by ASIO officers on 11 October 2012. At this interview the Applicant denied any involvement in people smuggling.

41. ASIO assesses that a Mr Sayed Abbas is a prominent Indonesia-based Afghan people smuggler who has organised irregular maritime ventures targeting Australia. Mr Abbas was arrested and detained in Indonesia in 2011 for alleged immigration offences.  He remains in custody in Indonesia and may face extradition to Australia.

42. It is the assessment of ASIO that a Mr Akbar Jaffarie is “a key Australia-based member of the Sayed Abbas maritime people smuggling syndicate which operates from Pakistan and Indonesia. He associates with individuals, including the applicant, involved in people smuggling ventures targeting Australia.”[11]

    [11] Exhibit R1, para.35.

43. ASIO assesses that the Applicant is a close associate of Mr Jaffarie. They have the same residential address and the Applicant works at Mr Jaffarie’s grocery shop in a suburb of Sydney.

44. ASIO also assessed that the Applicant had unexplained income and assets consistent with receiving payments for people smuggling activity. Financial gain from people smuggling was assessed as a key motivator for the Applicant to continue these activities. Nonetheless, Mr Masling said that the evidence relating to income was not crucial to the decision to make an adverse assessment.

45. Mr Masling noted that during ASIO’s interview of the Applicant, the Applicant stated that people had given wrong information and had lied about him. However, he did not identify the source of any such wrong information or lies.  Confidential information supported the adverse security assessment, notwithstanding the Applicant’s assertions.

    The evidence of the Applicant

46. The Applicant gave evidence by telephone. He also provided a statement made 1 December 2013.

47. In his affidavit, the Applicant set out his sources of income from when he was living in Australia. We do not propose to set out this evidence in detail as Counsel for the Director-General of Security conceded that the Applicant’s income was not in issue. In this regard, Counsel also agreed that it was not necessary for the Applicant to call Mr Jaffarie to give evidence as to his business dealings with the Applicant and the earnings of their partnership.

48. We draw no inference against the Applicant arising from any of the evidence concerning his income.

49. The Applicant also denied in his affidavit any involvement in people smuggling activities. He said that allegations against him in this regard were made by his enemies in the Sydney Afghan community.

50. When he gave evidence, the Applicant consistently denied any involvement whatsoever in people smuggling.

1. In relation to his assets, the Applicant said that in 2007 his wife bought a house in Afghanistan for $50,000, using funds which he provided to her. The house was later sold and he brought $130,000 with him on his return to Australia. This represented the proceeds of the sale. He later used this money, and money borrowed in Australia, to purchase a house in Sydney in 2010.

2. At about the time he purchased the Sydney house, the Applicant also purchased a share of a grocery business. The business was purchased in the name of Mr Jaffarie, but was in fact operated as a partnership. The premises on which the business was conducted burnt down in 2012. Prior to the fire, the business was very profitable.

3. The Applicant denied knowing a person by the name of Sayed Abbas, other than having heard his name in the media.  He denied having ever sent money to, or having received money from, Mr Sayed Abbas.

4. As to his belief that his enemies within the Afghan community had told lies about him, the Applicant said that this was common as part of the “usual tradition of jealousy”.[12] He said also that hatred within the community “stems from the …  ethnic group and opposition in terms of political parties and sects”. [13] When he came to Australia he believed that he had left behind such matters.

   [12] Transcript 30/10/14 p-215.

   [13] Transcript 30/10/14 p-223.

5. When questioned as to the answers he gave during his interview with ASIO, the Applicant said that he was not given access to an interpreter. As such, he did not fully understand the questions put to him by the ASIO officers.

   The evidence of the Applicant's son

6. The Applicant's 22 year-old son provided an affidavit sworn 20 May 2014 and gave evidence.

7. Prior to the hearing the son had read some pages of the transcript of the Applicant’s interview with the ASIO officers. He had told his father that he had received the transcript from his father’s solicitor. He did not have particular interest in what was said at the interview.

8. The son said that his father had not understood all that was put to him in the interview and had not been able to clarify some of the matters spoken of.  These matters were not identified.

9. When asked, the son denied any knowledge of the Applicant or Mr Jaffarie working with Mr Abbas.  He denied any involvement in people smuggling activities.

10. The son strongly believed that rumours against the Applicant were circulated by his enemies within the Afghan community.  When pressed for names, he said that he had suspicions but could not name any individual.

    CONSIDERATION

11. Counsel for the Director-General conceded that, based on the unclassified material alone, the assessment should not be upheld.  We agree.

12. The Applicant has consistently denied any participation in the smuggling of people into Australia.  He did so in the interview conducted on 11 October 2012 and in his evidence before this Tribunal.

13. The interview conducted by two ASIO officers was extensive. It involved 1020 questions and was conducted over a period of more than two hours. The interviewing officers directly questioned the Applicant as to his involvement in people smuggling and his association with Mr Abbas.  He denied any involvement in people smuggling and denied any knowledge of the involvement of any family member, friend or associate. He denied knowing or dealing with Mr Abbas.

14. In the open hearing, Counsel advised that part of the assessment was based on the Applicant's relationship with Mr Jaffarie.  The unclassified evidence in this regard does not justify a finding adverse to the Applicant.

15. In both the open and the closed sessions, Mr Masling gave his evidence clearly and concisely, referring us to the various documents which supported the assessment.  We are satisfied that he was an honest witness who gave his evidence carefully.  He was fair to the Applicant and referred us to those aspects of the evidence which may be favourable to the Applicant.

16. Although all of the details of the allegations against him could not be put to the Applicant, the thrust of the allegations were put directly to him in the interview and in cross-examination.  Despite the alleged lack of understanding of the questions at the interview, by the time of the hearing before the Tribunal, there was no risk of misunderstanding by the Applicant as to the nature of the matters which gave rise to the assessment, notwithstanding that the sources of information were not disclosed.  At all times the Applicant categorically denied any association with people smuggling and any association with Mr Abbas.

17. Based on the classified evidence before us, we are satisfied that the Applicant was not a truthful witness. We are satisfied that he was involved in people smuggling while in Australia and that if he returned to Australia it is likely that he would continue to be involved in that activity.  We are satisfied also that the Applicant knows Mr Abbas and has been associated with him in regard to people smuggling.

18. Whilst we accept that not all activity involved in people smuggling necessarily involves a serious threat to Australia’s territorial and border integrity, we are satisfied that the Applicant was involved in activities which could have brought a significant number of people to Australia by circumventing normal border controls, as described by Mr Masling.  We are satisfied that the conduct of the Applicant, if resumed, would likely be inconsistent with security in that it would likely be a serious threat to Australia’s territorial and border integrity.

19. 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 7.3.5(b) of the Determination, we are satisfied that the findings and conclusions adverse to the Applicant are at least likely. These conclusions include that the Applicant’s actual and likely people smuggling activities mean that he presents a direct and indirect risk to security.[14]

    [14] Respondent’s Unclassified Statement of Facts, Issues and Contentions, para 18.

20. We have not made any findings that have the effect of superseding any information that is taken to be part of the assessment.  The provisions of subsection 43AAA(3) are not enlivened.

    CONCLUSION

21. The adverse security assessment in respect of the Applicant, issued by the Director-General of Security on 22 May 2013, will be affirmed.