WWKJ and Minister for Foreign Affairs - [2018] AATA 3894

WWKJ and Minister for Foreign Affairs [2018] AATA 3894 (25 September 2018)
Division:SECURITY DIVISION
File Numbers:2016/4031
2016/4083

Re:WWKJ
APPLICANT

Minister for Foreign AffairsAnd
RESPONDENT

Director-General of SecurityAnd
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Senior Member R Cameron
Brigadier A G Warner

Date:25 September 2018
Place:Perth

The decisions under review are affirmed.
......[sgd].................................................................
Deputy President S Boyle
CATCHWORDS
NATIONAL SECURITY – adverse security assessment – request for Minister to cancel Australian passport – ASIO Act – conduct that might prejudice the security of Australia or a foreign country – politically motivated violence – standard of satisfaction required – meaning of “likely” – Determination No. 2 – interpretation of Determination No. 2 – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 3(3), 25, 33(1)(c), 39A, 39A(3), 39A(8), 39A(9), 39A(12), 39B, 43AAA
Australian Passports Act 2005 (Cth) – ss 14, 14(1)(a)(i), 22, 22(2)(d), 48(c), 50(1), 50(1)(a), 57
Australian Security Intelligence Organisation Act 1979 (Cth) – ss 4, 17(1), 35, 35(1), 37(1), 37(2), 37(4), 38(2), 38(2)(b), 54(1)
CASES
BLBS and Director-General of Security and Anor [2013] AATA 820
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Civil Aviation Safety Authority v Alligator Airways Pty Ltd [2012] FCA 601
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Farnell v Chanbua [2016] FCWA 17
FTZK and Minister for Immigration and Border Protection [2015] AATA 155
George v Rockett (1990) 170 CLR 104
Hoskins v Repatriation Commission (1991) 32 FCR 443
MCLT and Director-General of Security [2018] AATA 1359
MYVC v Director-General of Security [2014] FCA 1447
Re S-B (Children)(Care Proceedings: Standard of Proof) [2010] 1 AC 678
Sullivan v Civil Aviation Authority [2013] FCA 1362
Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260; 122 ALD 49
SECONDARY MATERIALS
Australian Passports Determination 2005 (Cth) – 3.4(3)
Convention and Protocol Relating to the Status of Refugees
Security Assessment Determination No. 2 – 5(m)(ii), 7.2.5(b)
REASONS FOR DECISION
Deputy President S Boyle
Senior Member R Cameron
Brigadier A G Warner
25 September 2018
THE APPLICATIONS

The Applicant seeks the review of a security assessment issued by the Australian Security Intelligence Organisation (ASIO) and the decision made by the Minister for Foreign Affairs (the Minister) to cancel the Applicant’s passport.
ASIO’s security assessment is reviewable under s 54(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) as an “adverse security assessment” because it formed the basis of ASIO’s request to the Minister under the Australian Passports Act 2005 (Cth) (Passports Act) for the cancellation of the Applicant’s passport.
The Minister’s decision to cancel the Applicant’s passport under s 22(2)(d) of…

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.

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Details

Case: [2018] AATA 3894
Decision Date: 25 September 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Minister for Foreign Affairs to cancel the Applicant's Australian passport. This decision was made at the request of the Australian Security Intelligence Organisation (ASIO), which had issued an adverse security assessment concerning the Applicant. ASIO suspected, on reasonable grounds, that the Applicant adhered to an extremist ideology and intended to travel to engage in politically motivated violence, which could prejudice the security of Australia or a foreign country. The Applicant sought review of both the Minister's decision and ASIO's adverse security assessment.

The Tribunal was required to determine the legal standard of satisfaction applicable to ASIO's adverse security assessment and the Minister's subsequent decision to cancel the passport. Specifically, the Tribunal had to consider the meaning of "suspects on reasonable grounds" and the implications of the sensitive and potentially unverifiable nature of intelligence information in the context of national security assessments. The Tribunal also had to consider the procedural fairness requirements, particularly in light of certificates issued under the Administrative Appeals Tribunal Act 1975 (Cth) and the ASIO Act 1979 (Cth) that restricted the Applicant's access to certain information.

The Tribunal reasoned that while it must generally establish facts on the balance of probabilities, this standard must be applied in light of the nature of intelligence, which can be difficult to verify. The Tribunal affirmed that the standard for ASIO's suspicion under section 14(1)(a) of the Passports Act 2005 (Cth) is "on reasonable grounds." This standard requires the existence of facts sufficient to induce suspicion in a reasonable person, drawing on jurisprudence from cases like *George v Rockett*. The Tribunal noted that ASIO is not required to prove the likelihood of conduct on the balance of probabilities, but rather to have a reasonable suspicion. The Tribunal also considered that the potential consequences of failing to identify a security risk to the wider community necessitated a careful approach to the level of satisfaction required for an adverse security assessment. The Tribunal ultimately affirmed the decisions under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Minister’s decision to cancel the Applicant’s passport under s 22(2)(d) of the Passports Act, made on ASIO’s request under s 14 of the Passports Act, is a reviewable decision under s 48(c) of the Passports Act and is reviewable by the Tribunal under s 50(1)(a) of the Passports Act.BACKGROUND ASIO issued an adverse security assessment (ASA) in relation to the Applicant (T7 at p 11) and, pursuant to s 14(1)(a)(i) of the Passports Act, requested the Minister to cancel the Applicant’s passport (T4 at p 20). The statement of grounds accompanying the ASA (R5) attached to the request for cancelation made the following recommendation (at [6]):ASIO requests under section 14(1) of the Australian Passports Act 2005 (Cth…) and section 3.4(3) of the Australian Passports Determination 2005 (Cth)…, that the Minister for Foreign Affairs cancel the Australian passport held by [the Applicant]. The statement of grounds advised that ASIO suspected, on reasonable grounds, that (at [2]):(a)if the Applicant were to continue to hold an Australian passport he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country; (b)his Australian passport should be cancelled in order to prevent him from engaging in the conduct; and(c)ASIO assessed that the requirements of security made it necessary or desirable for the Minister to cancel any Australian passport held by the Applicant. The statement of grounds further advised that ASIO’s suspicion was based on ASIO’s assessment that the Applicant (at [11]):(a)adhered to an extremist ideology that included support for Islamic State of Iraq and the Levant (ISIL); and (b)intended to travel to engage in politically motivated violence or activities in support of politically motivated violence. Following ASIO’s request to cancel the Applicant’s passport, the Minister cancelled the Applicant’s Australian passport. By letter dated 11 July 2016, (T7 at p 9) the Minister advised the Applicant that she had, pursuant to s 22(2)(d) of the Passports Act, cancelled his passport on the grounds that, pursuant to s 14(1)(a)(i) of the Passports Act, the Director-General of Security suspected, on reasonable grounds, that if an Australian passport were to be issued to the Applicant, the Applicant would be likely to engage in conduct which might prejudice the security of Australia or a foreign country. That letter from the Minister also advised the Applicant of his rights to seek review in this Tribunal of the Minister’s decision to cancel his passport and the ASA. On 2 August 2016 and 4 August 2016 the Applicant made the current applications to the Tribunal for the review of the Minister’s decision and the ASA.LEGISLATIVE FRAMEWORK Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:(1)An enactment may provide that applications may be made to the Tribunal: (a)for review of decisions made in the exercise of powers conferred by that enactment; or (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

Evidence

Evidence Before The Court

Section 37(2) of the ASIO Act provides that:(2)An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:(a)shall contain all information that has been relied on by the Organisation in making the assessment, other than information the 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.PROCEDURES IN THE TRIBUNAL AND THE EVIDENCE Certificates were issued by the Attorney-General under ss 39A and 39B of the AAT Act and s 38(2)(b) of the ASIO Act. The effect of these certificates is that certain parts of the ASA and the statement of grounds are withheld from the Applicant (s 38(2) of the ASIO Act) and certain information, documents and the contents of documents (the closed material) cannot be disclosed to anyone other than a member of the Tribunal. Further, the effect of the certificate issued by the Attorney-General, as the responsible Minister under s 39A(8) of the AAT Act, was that the Applicant could not be present in the hearing when the submissions relating to the closed material were made (s 39A(9)(a) of the AAT Act). Similarly, pursuant to s 39A(9)(b) of the AAT Act the persons representing the Applicant could not be present while submissions were made in relation to the closed material unless the responsible minister consented. No such consent was given. The Tribunal is satisfied that the certificates were issued in accordance with the respective legislation and that they are effective. In accordance with s 39A(12) of the AAT Act, at the hearing the Tribunal first heard the evidence adduced and the submissions made by the Respondents. The Applicant and his counsel were present during the presentation of material not subject to the certificates referred to in [25] (the open material). Two witnesses, who had provided affidavits (the open affidavits), were called by the Respondents to present the open material. These witnesses, one a former First Assistant Director-General of the ASIO, now an employee of ASIO (R1) (the ASIO Officer), and the other an Australian Federal Police (AFP) Agent, attached to the Joint Counter Terrorism Team (R2) (the AFP Agent), were cross-examined by the Applicant’s counsel. Evidence was also adduced by these two witnesses and submissions made by the Respondents in relation to the closed material. In accordance with s 39A(9) of the AAT Act this evidence was given and the submissions made in the absence of the Applicant and the Applicant’s counsel. The Applicant provided two affidavits, the first sworn in August 2017 (A2) and the second sworn in December 2017 (A3). The second of the Applicant’s affidavits responded to some of the material contained in the open affidavits of the Respondents’ witnesses, in particular, material and images that were on a 16 gigabyte SD memory card and an Asus X44H model laptop computer that had been seized by the AFP on the execution of a search warrant at the Applicant’s residence on 15 June 2016.

Decision

Reasons for decision

The purpose of a security assessment is to provide advice on matters of security to relevant Commonwealth agencies (ss 17(1)(c) and 37(1) of the ASIO Act). Security, as defined in s 4 of the ASIO Act, is “the protection of, and of the people of, the Commonwealth” from the threats identified in subsections (i) to (vi) of the definition, which includes politically motivated violence. Accordingly, the findings of fact which may give rise to an ASA and the process of assessing those facts to draw conclusions as to possible conduct have consequences well beyond the individual in relation to whom the security assessment is made. More importantly, however, a failure to make findings which could be the basis of an ASA could have consequences for the wider Australian community and national security. Therefore, if one is looking at the consequences of making a finding of a security risk, the level of satisfaction that a decision-maker must have to do so must necessarily take into account the consequences of not making such a finding which are potentially wider and potentially more serious than making such a finding. The Tribunal considers this view to be consistent with the view expressed by the Tribunal in BLBS at [47] of the decision quoted in [54] above.THE ELEMENTS OF THE DECISION UNDER REVIEW The Respondents’ submissions, with which the Tribunal agrees, identify three key elements of s 14 of the Passports Act. They are:·suspects on reasonable grounds;·would be likely to engage in conduct; and·might prejudice.Suspects on reasonable grounds The Respondents submit that the Tribunal’s task is not to determine on the balance of probabilities whether the Applicant “would be likely to engage in conduct that might prejudice the security of Australia or a foreign country” but rather to determine whether there are reasonable grounds for suspecting that this is the case. They cite paragraph [80] of the decision in BLBS which is as follows:80. ASIO is not required to prove, or be satisfied on the balance of probabilities, that the person would be likely to engage in that conduct: it need only suspect on reasonable grounds that the person would be likely to do so. The relatively modest degree of actual apprehension required for ASIO (sic) have such a suspicion is explained in George v Rockett; see [75] above. Paragraph [75] of that decision is as follows:75. We except from these observations the Parliament’s use of the phrase “suspects on reasonable grounds.” That is because, in Australian jurisprudence, those words, where used to express a required degree of satisfaction, have a well-settled technical legal meaning and there is no reason to think Parliament would have intended otherwise. They convey the meaning given to them by the High Court of Australia in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 where the court held that: When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. This was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson…The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.(Footnotes omitted)

Ratio Decidendi

Legal Principle Established

The Applicant in Part 6 of his submissions makes the proposition that:The crucial difference between the Tribunal and the decision-maker is that the decision-maker may not be obliged to apply any standard of satisfaction as to the reliability of the facts upon which the decision is based. The ASIOA, for example, tells us nothing about any standard of satisfaction that ASIO must apply when evaluating ‘intelligence relevant to security’ [citing s 17(1)(a) of the ASIO Act] or evaluating the factual foundation for providing a security assessment.The Tribunal, however, unless some statutory provision provides otherwise, must establish the facts relevant to its decision on the balance of probabilities.(Footnotes omitted)Consideration The Applicant’s submissions do not extrapolate how the proposition in [50] should be applied in the present case. The role of the Tribunal in undertaking a review of the ASA is, as the Applicant’s earlier submissions note, to stand in the shoes of the decision-maker. By its nature, intelligence, whether that be from human or other sources, would in a lot of cases, be highly sensitive and simply incapable of the normal sorts of verification that would be expected in civil proceedings. Accordingly, while the Tribunal may need to be satisfied on the balance of probabilities that the facts from which conclusions are to be drawn are correct, that exercise of reaching a level of satisfaction has to be seen in light of the nature of facts that would be involved and the inherent difficulty in some cases in verifying those facts. The Tribunal also notes that the “standard of proof” required under s 14(1)(a) of the Passports Act is that ASIO has a suspicion “on reasonable grounds”. A useful discussion of what similar terms in other legislation means in the context of a standard of proof is contained in the text cited by the Applicant at footnote 23 of his submissions, wherein the passage from Murphy J’s judgment in Civil Aviation Safety Authority v Alligator Airways Pty Ltd [2012] FCA 601 is cited:…while procedural fairness must be afforded, I may have regard to evidence that is inexact or indefinite in providing a foundation for the existence of ‘reasonable grounds to believe’ the factual matters upon which my satisfaction rests. A useful discussion of this issue is also contained in Deputy President Forgie’s decision in FTZK and Minister for Immigration and Border Protection [2015] AATA 155 at [36]-[48], in that case, in the context of the term “serious reasons for considering” as it appears in Article 1F of the Convention and Protocol Relating to the Status of Refugees. This issue was considered by the Tribunal, which included the President, in BLBS. The following passages are of particular relevance:42. Nothing in the ASIO Act expressly sets out the standard of proof that ASIO is required to apply when making an adverse security assessment but, of course, the Organisation’s powers cannot be exercised capriciously.…44. Having regard to the terms of ss 37 and 38 we are of the opinion that it is implicit that the degree of satisfaction required for the making of an assessment must account for the circumstance that such an assessment may have initiated the loss of important rights.…46. We think it necessarily implicit that the ASIO Act permits this only if ASIO has a plausible basis, on objectively defensible grounds, that the decision is justified. While the degree of satisfaction required is not prescribed by the Act, the scheme of the Act is posited on ASIO being entitled to make an adverse assessment only if it possesses such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion(s) arrived at. We find that to be the minimum standard the ASIO Act requires.47. We think it unhelpful to express that requirement prescriptively as a “standard of proof”. The confidence level that a reasonable mind would accept as adequate to support a conclusion that an adverse assessment ought be made by ASIO will necessarily differ depending on the nature of the realm of assessment, the nature of the rights affected and the risks and dangers relevant to the assessment.(Footnotes omitted)