VYMF and Director-General of Security - [2018] AATA 891

VYMF and Director-General of Security [2018] AATA 891 (5 April 2018)
Division:SECURITY APPEALS DIVISION
File Number(s):2015/1742
Re:VYMF
APPLICANT

Director-General of Security And
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Deputy President I Molloy
Senior Member D Morris

Date:5 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
Deputy President I Molloy
Senior Member D Morris
Catchwords
NATIONAL SECURITY – adverse security assessment – 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)
Cases
BLBS and Director-General of Security and Minister for Foreign Affairs (2013) 61 AAR 423
CXQY and Director-General of Security [2013] AATA 695
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
Deputy President I Molloy
Senior Member D Morris
5 April 2018
INTRODUCTION

VMYF (the applicant) has applied for the review of a qualified security assessment (QSA) made on 4 March 2015 by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO or the Organisation) (the respondent) in relation to the applicant.
BACKGROUND
The applicant is an Australian citizen who is a former employee of ASIO. [redacted for security reasons]
[redacted for security reasons]
On 4 September 2014 the respondent directed that a Review for Cause be conducted to assess the suitability of the applicant to continue to hold a PV security clearance.
On 12 November 2014 an assessing officer of ASIO assessed that the applicant was unsuitable to hold a PV security clearance on the basis that the applicant’s continued suitability to hold a PV security clearance could not be established beyond a reasonable doubt.
The assessing officer assessed that the applicant did not meet the suitability indicators of trustworthiness, maturity or tolerance. The assessing officer also assessed that the applicant was vulnerable to influence and coercion [redacted for security reasons].
On 24 November 2014 the respondent notified the applicant of his intention to withdraw her PV security clearance. The withdrawal would take effect 14 days from the date of the notice unless, within those 14 days, the applicant applied to the Inspector-General of Intelligence and Security (IGIS) for a review of the decision.
On 12 December 2014 the applicant requested the IGIS to conduct a review of the decision by the respondent to withdraw her security clearance. On 23 December 2014 the IGIS concluded the review and did not make any recommendation to affect the respondent’s decision to withdraw the applicant’s security clearance.
On 5 January 2015 the respondent advised the applicant that the decision to withdraw her security clearance had taken effect and her employment with ASIO was terminated with effect on 6 January 2015.
In early 2015 the applicant sought employment with another Australian Government agency. The position required a security clearance.
On 4 March 2015 the Director-General issued a qualified security assessment…

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 VYMF 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: [2018] AATA 891
Decision Date: 5 April 2018

CaseChat Overview and Summary

The applicant, VYM F, sought review by the Administrative Appeals Tribunal of a qualified security assessment (QSA) issued by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO). The QSA contained information relating to the withdrawal of the applicant's previous Positive Vetting (PV) security clearance, which had led to the termination of her employment with ASIO. The applicant sought to have the QSA set aside or varied.

The primary legal issues before the Tribunal were whether the evidence and information relied upon by the Director-General were sufficiently probative to justify the QSA, and whether the assessment correctly and preferably reflected the applicant's suitability to hold a security clearance. Specifically, the Tribunal considered whether the Director-General had adequately taken into account mitigating factors raised by the applicant and whether the grounds for the assessment were factually accurate.

The Tribunal affirmed the Director-General's decision, finding that the evidence presented by ASIO officers was clear, thorough, and compelling. It accepted that mitigating factors had been considered during the assessment process, even if not explicitly required by the governing policy for a QSA. The Tribunal noted that the applicant's submission regarding the "inconsequentiality of the breaches" indicated a failure to recognise their security implications. While minor amendments were made to the Statement of Grounds within the QSA for factual accuracy, the Tribunal concluded that these did not alter the fundamental justification for the assessment.

The Tribunal affirmed the qualified security assessment, subject to minor amendments to the Statement of Grounds. The Tribunal indicated a tentative view that there should be no order as to costs, allowing parties 21 days to make submissions if they wished to argue for a different costs order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

VMYF (the applicant) has applied for the review of a qualified security assessment (QSA) made on 4 March 2015 by the Director-General of Security of the Australian Security Intelligence Organisation (ASIO or the Organisation) (the respondent) in relation to the applicant.BACKGROUND The applicant is an Australian citizen who is a former employee of ASIO. [redacted for security reasons] [redacted for security reasons] On 4 September 2014 the respondent directed that a Review for Cause be conducted to assess the suitability of the applicant to continue to hold a PV security clearance. On 12 November 2014 an assessing officer of ASIO assessed that the applicant was unsuitable to hold a PV security clearance on the basis that the applicant’s continued suitability to hold a PV security clearance could not be established beyond a reasonable doubt. The assessing officer assessed that the applicant did not meet the suitability indicators of trustworthiness, maturity or tolerance. The assessing officer also assessed that the applicant was vulnerable to influence and coercion [redacted for security reasons]. On 24 November 2014 the respondent notified the applicant of his intention to withdraw her PV security clearance. The withdrawal would take effect 14 days from the date of the notice unless, within those 14 days, the applicant applied to the Inspector-General of Intelligence and Security (IGIS) for a review of the decision. On 12 December 2014 the applicant requested the IGIS to conduct a review of the decision by the respondent to withdraw her security clearance. On 23 December 2014 the IGIS concluded the review and did not make any recommendation to affect the respondent’s decision to withdraw the applicant’s security clearance. On 5 January 2015 the respondent advised the applicant that the decision to withdraw her security clearance had taken effect and her employment with ASIO was terminated with effect on 6 January 2015. In early 2015 the applicant sought employment with another Australian Government agency. The position required a security clearance. On 4 March 2015 the Director-General issued a qualified security assessment (QSA) which contained information relating to the withdrawal of the applicant’s PV security clearance. Attached to the QSA was a Statement of Grounds. The QSA was issued to [redacted for security reasons] and the Australian Government Security Vetting Agency (AGSVA). AGSVA, as the name implies, is responsible for vetting applications for, and granting, security clearances. On 12 April 2015 the applicant applied to the Tribunal for a review of the decision to issue the QSA. TRIBUNAL’S JURISDICTION The application is made pursuant to 54(1) of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) which provides relevantly that an application may be made to the Tribunal for review of a qualified security assessment. The task of the Tribunal is to determine whether to affirm, set aside or vary the QSA, according to what it considers to be the correct and preferable decision.

Evidence

Evidence Before The Court

“Prescribed administrative action” action under the ASIO Act, s 35, is also widely defined, sufficient to include refusing person employment or withholding the granting of a security clearance. COURSE OF EVIDENCE The statement of grounds which accompanied the QSA refers to the applicant having breached security policies in four respects whilst employed by ASIO. They were: (i)Removing electronic media (an unclassified DVD, believed to be a writable disc) from ASIO premises without proper authority, in contravention of ASIO security policy;(ii)Using official resources to conduct a secondary business in breach of ASIO HR and IT policies; (iii)Accessing an IT system for personal reasons; and (iv)Posting a number of derogatory comments about the workplace, the culture of the Organisation and senior management on a social media forum in breach of ASIO’s professional conduct and personal security guidelines. The statement of grounds also referred to psychological assessments of the applicant said to be relevant amongst other things to her vulnerability to external influences, [redacted for security reasons], and consequently her fitness to hold a security clearance. Much of the evidence was directed towards the statement of grounds. The evidence on behalf of the respondent included affidavit and oral evidence from two senior ASIO officers. The first of these officers [redacted for security reasons]. [redacted for security reasons] [redacted for security reasons] The second ASIO officer had responsibility for personnel security. She expressed doubts about the applicant’s ability to abide by protected security policy even after she had received counselling. She based this opinion, she said, on the whole person which included psychological assessments. She was referred to references in the statement of grounds that the applicant had enduring personality characteristics as a PV security clearance holder. In this context she referred to the applicant’s activities over a number of months. She also alluded to evidence later given in closed session. One of the incidents of misconduct in the statement of grounds, referred to above, concerned the unauthorised removal of a DVD from ASIO premises in contravention of ASIO security policy. It was put to this witness that this incident of misconduct concerned a CD and not a DVD. She answered that it was still a writable media. She was taken to the four incidents of misconduct. She agreed that the first and second incidents, including the removal of this disc, and occurring as it happens on Christmas Eve 2013, essentially arose out of the same set of facts. She regarded both incidents as very serious. She said that the third incident, which involved the applicant using official resources in the course of a conducting a [redacted for security reasons], was serious. She said the fourth incident involving the social media posting was a failure to comply with policy. These witnesses were, as we said, senior ASIO officers. Their evidence was clear, thorough and ultimately compelling. We accept the evidence of these witnesses including the opinions they expressed.

Decision

Reasons for decision

One reason why the Tribunal agrees that the applicant has demonstrated behaviour and activities that raised doubts about her capacity to abide by protective security policies required by a PV holder is that she has ignored a clear warning about security matters that was given to her on 25 November 2013 after she made the social media post in November 2013. Soon after in the next month she then used a [redacted for security reasons] terminal in a top secret area for personal reasons in clear disregard of security policy even though she had no authority to access the terminal. The removal of the electronic media from the top secret area without authorisation was also made in disregard of security policy. DECISION The reference in the statement of grounds to the date of access of the [redacted for security reasons] IT system as being “24 December 2014” should be deleted and replaced by a reference to “24 December 2013”. The reference in the statement of grounds to “over a number of years” should be deleted. The reference in the statement of grounds to “a number of derogatory comments in the workplace” should be amended by deleting the words “a number of”. The reference to “[social media] postings” should be replaced with “[social media] post”. [redacted for security reasons] Apart from these amendments to the statement of grounds of the Qualified Security Assessment, the Tribunal otherwise affirms the decision under review. The question of costs was alluded to in submissions. The Tribunal considers that the parties should have an opportunity to address this issue if they wish. Our tentative view, having regard to s 69B of the AAT Act is there should be no order as to costs. The parties each have 21 days from the date of publication of this decision to notify the Tribunal should either of them wish to submit that some other order in respect of costs be made. Otherwise that tentative ruling on costs will take effect.

Ratio Decidendi

Legal Principle Established

The applicant strongly submitted that the QSA should be set aside because, amongst other things, it failed to take into account the mitigating factors. CONSIDERATION We have to say we accept all of the submissions on behalf of the respondent in respect of the statement of reasons. The applicant mainly, but not exclusively, relied on what were described as mitigators. It is a matter of concern that one of the mitigators raised by the applicant was “the inconsequentiality of the breaches”. We accept the respondent’s submission that this indicates that the applicant has still failed to recognise the security implications of the breaches. [redacted for security reasons] We consider there is unchallenged evidence that, in making the QSA, mitigators were considered as part of the process of assessment. The second ASIO officer gave evidence which emphasised that regard was had to the long period of service of the applicant. The same witness in her second affidavit deposed that in making the QSA certain enumerated conditions which were mitigators were considered. This statement was not challenged by the applicant. In re-examination, the witness reiterated the view she expressed in her second affidavit that those factors did not significantly mitigate the security concerns identified in the QSA. In any event, in reviewing a QSA there is no express policy requirement that mitigators be considered. While the vetting policy document which was included in the affidavit of this same witness provided background information on the history of the matter, that policy document does not apply to the provision of a QSA. The policy document that governs the QSA is Determination No. 2 (Open documents, page 301), which was considered in BLBS and Director-General of Security (2013) 61 A.A.R. 423. This policy document, unlike the “Personnel Security Protocol”, does not make any reference to mitigators. In these circumstances, the fact that the QSA was made without express regard to mitigators does not in our view impugn the document. Removal of electronic media from ASIO premises Foremost in the statement of grounds was the action of the applicant on 24 December 2013 in removing electronic media, which is referred to in the statement of grounds as “an unclassified DVD believed to be a writeable disc”, from a top secret area in ASIO premises contrary to policy. The applicant stated that she had received the disc from [redacted for security reasons] who had made a request to the external agency under the Right to Information Act for documents concerning an unsuccessful job application that he had made. She stated that [redacted for security reasons] had received the disc and the applicant had made the decision to review the file. In her affidavit of 9 February 2015 she explained: “My decision to access the [redacted for security reasons] system was merely to ascertain and confirm that the RTI file which had been sought by [redacted for security reasons] was on the disc as [redacted for security reasons] had previously received a blank disc [redacted for security reasons]”.