WWKJ and Minister for Foreign Affairs
[2018] AATA 3894
•25 September 2018
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), 57Australian 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 1362Tisdall 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 RefugeesSecurity 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 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.
Section 3(3) of the AAT Act defines “decision” in terms of “including” specified things set out in subsections (a)-(g). Assessment is not included in any of those subsections. Notwithstanding that the definition of decision in the AAT Act does not refer to “assessment”, it is beyond doubt that it is intended that the Tribunal have jurisdiction to review ASIO security assessments made under the ASIO Act with ss 39A and 43AAA of the AAT Act, as well as the ASIO Act, dealing specifically with review of security assessments by the Tribunal.
Section 54(1) of the ASIO Act provides that:
(1)An application may be made to the Tribunal for a review of an adverse or qualified security assessment.
Section 48(c) of the Passports Act defines a reviewable decision as including:
(c) a decision to cancel an Australian travel document (other than under section 22AA).
Section 50(1) of the Passports Act provides:
(1)If a reviewable decision is made:
(a)by the Minister; or
(b)under subsection 49(4) by a delegate of the Minister;
application may be made to the Administrative Appeals Tribunal for review of that decision.
Section 14 of the Passports Act relevantly provides as follows:
(1)If a competent authority suspects on reasonable grounds that:
(a)if an Australian travel document 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
(ii)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii)might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv)might constitute an indictable offence against this Act; or
(v)might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister's determination; and
(b)the person should be refused an Australian travel document 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 travel document.
(3)In this section:
competent authority, in relation to a circumstance mentioned in subsection (1), means:
…
(e)any person specified in a Minister's determination as a competent authority in relation to the circumstance.
Section 3.4(3) of the Australian Passports Determination 2005 (Cth) (the Determination), made pursuant to s 57 of the Passports Act, relevantly provided:
(3)For subparagraph (b)(iii) of the definition of competent authority in subsection 14(3) of the Australian Passports Act, the following agencies are specified:
…
(c)in relation to conduct of the kind mentioned in subparagraph 14(1)(a)(i) of the Australian Passports Act—the Australian Security Intelligence Organisation;
The Tribunal is satisfied that at the time that the request for cancelation of the Applicant’s passport was made and at the time that the Minister cancelled the passport, the Determination applied.
Section 22 of the Passports Act provides:
(1)Subject to section 22AA, the Minister may cancel an Australian travel document.
(2)Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:
…
(d)a competent authority makes a refusal/cancellation request in relation to the person;
Section 17(1) of the ASIO Act sets out the functions of ASIO which 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.
Section 37(1) of the ASIO Act states:
(1)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 4 of the ASIO Act defines “security” as meaning:
(a)the protection of, and of the people of, the Commonwealth and the several States and Territories from:
…
(iii)politically motivated violence.
whether directed from, or committed within, Australia or not;
(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)…
Section 4 of the ASIO Act defines “politically motivated violence” 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; …
Section 35(1) of the ASIO Act includes the following definitions:
security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State 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.
and
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.
and
prescribed administrative action means:
…
(c)the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007, the Australian Passports Act 2005 or the regulations under either of those Acts; …
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.
The Applicant gave evidence at the hearing and was cross-examined. As well as the two affidavits of the Applicant, the Applicant filed affidavits by his father (A4), his mother (A5) and an Imam and religious counsellor from the Applicant’s mosque (A6). These affidavits were admitted into evidence by consent and the Respondents did not seek the attendance of the deponents for cross-examination.
The hearing took place in Perth on 15, 16 and 19 March 2018 with oral closing submissions being made by counsel for the parties on 21 May 2018.
The Applicant’s evidence
The evidence of the Applicant in his first affidavit (A2) was to the following effect:
(a)he lives with his mother and father and three brothers;
(b)he currently works as a kitchenhand;
(c)he was born in Australia and is 23 years old;
(d)he has lived in Australia all of his life except for occasional short overseas travel;
(e)he is a law abiding citizen who has never been in trouble with the police;
(f)he had held a security officer’s licence under the Security and Related Activities (Control) Act 1996 (WA) which has not been renewed because of the ASA;
(g)his family is a “fairly devout” Muslim family and he considers himself to be a “practicing devout believer” and attends his local Mosque. He usually attends with his father and two of his brothers and frequently attends evening prayers;
(h)he is friendly with a large number of people of all ages in the Perth Muslim community;
(i)he has an interest in political and social changes around the world relating to the Muslim faith including an interest in the developments in “the Middle-East Conflict Zone in Syria and Iraq”;
(j)he is of the view that Islam is a moderate religion and that to be extremist is not to be religious;
(k)he does not hold extreme views;
(l)he is a tolerant person evidenced by the fact that although he is a non-drinker he works in a hotel and although his diet is halal he works in a non-halal kitchen;
(m)he has contact with Muslims with a range of views. He has met and been exposed to others who hold more radical views about Islam and although he attends the Dawah Centre, which he describes as a small prayer group, he is not sympathetic to their more extreme views;
(n)he has co-operated fully with ASIO although he did agree to an interview with ASIO in February 2015 but only “complied partly with the arrangements” to attend the interview as he “began to tire of the elaborate process” to attend the meeting and “did not follow through with the meeting arrangement or return further calls from ASIO”;
(o)when interviewed by ASIO on 16 February 2017 he answered 411 questions and the transcript of that interview covers 72 pages;
(p)when interviewed by AFP on 3 March 2017 he answered 680 questions and the transcript of his interview covers 52 pages;
(q)when his passport was seized in June 2016 he was part of a family group travelling to Malaysia. His mother was born in Malaysia and is a Malaysian citizen but ordinarily resides in Australia;
(r)his father was born in Turkey and remains a Turkish citizen. His father normally resides in Australia;
(s)the Applicant understands that he can apply for Turkish citizenship but has no desire to become a Turkish citizen;
(t)his education consisted of primary and secondary school education until year 11;
(u)he does not believe that there is credible evidence that he is likely to engage in politically motivated violence;
(v)he is concerned that law enforcement and security agencies have reached the incorrect assumption that he adheres to an extremist ideology, when that is not the case at all; and
(w)he is also concerned that the law enforcement and security agencies have reached the incorrect conclusion that he would engage in politically motivated violence when that is definitely not the case.
The Applicant’s second affidavit in December 2017 (A3) responded to some of the open material included in the AFP Agent’s affidavit (R2) and unclassified material provided by the Respondents under s 39A(3) of the AAT Act by way of unclassified and partially redacted T documents (R4). The open material included photographs and videos from the Applicant’s laptop and the SD memory card seized by the AFP under the search warrant on 15 June 2016 (see [30] above). These had been shown to the Applicant at his interview with the AFP agents on 3 March 2017.
In the Applicant’s second affidavit the Applicant gave the following explanations in relation to the material that he was shown in his interview with the AFP agents. In relation to:
(a)the following photographs, videos and material, the Applicant said that these had been “synced” to his phone or SD card without his knowledge:
othe logo of the Curtin Muslim Student Association;
oa picture of the ISIL flag;
othe cover of “Inspire” an Islamist online magazine;
ophotograph of a table with food and a package with “celebrating Paris Attack Islamic State Baqiyah” and a plate with “ISIS” written in sauce;
ophotograph of two explosive devices on two plastic chairs;
ophotograph of two men with the verse “so do not weaken and do not grieve, and you will be superior if you are [true] believers” written over the photograph;
ophotograph of [redacted] with quote “Please make dua to #Free[redacted], media are reporting that he is among five men arrested over alleged plan to take small boat to Indonesia to join Islamic State”;
oTwitter quotation from “invitetoislam.org” reading “Brother [redacted] has been arrested and [redacted] has also been arrested, keep them in your duas”;
omaterial from Amaq News Agency (The Tribunal notes here that this was described in the AFP Agent’s affidavit (R2) as an “IS sponsored media group which releases IS news and imagery pertaining to IS victories or tactical operations, casualties inflicted on opposing forces”, a description not disputed by the Applicant); and
oscreenshot image of an individual standing next to ISIL flag with the caption “Islamic State Nasheed Balighu Mina Bekr Salama” underneath the image of the ISIL flag.
(b)a photograph of Mohamed Sheglabo (Sheglabo), the Applicant said that he took a trip with him “to celebrate Eid”. (The Tribunal notes here, that Sheglabo travelled to Iraq to fight with ISIL. This is not disputed by the Applicant);
(c)a photograph of the Applicant wearing a “Shahada cap”, the Applicant said that this was a cap with a religious symbol and, according to the Applicant, the symbol is not associated with extremism;
(d)a photograph of the Applicant with the individual Hussin Alaydrus (Alaydrus), the Applicant said Alaydrus had his passport cancelled but later got it back;
(e)a photograph of seven individuals and the Applicant, the Applicant said that this was taken at the Dawah Centre;
(f)a photograph of Sheglabo at the Dawah Centre, the Applicant described Sheglabo as his “former friend”;
(g)various photographs of “Fossil” brand bags taken from the Fossil website, the Applicant said that his cousin in Malaysia had asked him to buy them in Australia and take them to Malaysia as they are cheaper in Australia;
(h)screenshots of Telegram conversations between the Applicant and his fiancé, the Applicant said he uses the name “Abu Firdaus” as his Facebook name (the Tribunal notes that the word “Firdaus” means paradise (Transcript p 144));
(i)a screenshot of the Applicant’s fiancé’s divorce papers, the Applicant confirmed that his fiancé had previously been married;
(j)a photograph of the Applicant’s fiancé wearing a niqab and headband with the printed message in Arabic “there is no God but Allah and Muhammad, peace be upon him, is his final messenger” and pointing her Shahada finger (index finger) skywards, the Applicant says that the Shahada finger means “God is one” and that every Muslim who prays uses this finger and that there is nothing extremist about this;
(k)a photograph of advertisements to learn Arabic the Applicant said he is learning Arabic to be better versed in his religion;
(l)a photograph of person standing in front of a road sign that reads “Sugarloaf Road”, the Applicant identified the man as [redacted] and that it was taken when a group including [redacted] and the Applicant went fishing. (The Tribunal notes that [redacted] was one of five men arrested while trying to leave Australia to join ISIL by a small boat);
(m)various photographs of groups of men. The Applicant claims that some of these photographs had “been automatically sent to [him] via group chat” and that he had not seen most of them. In many of the photographs the individuals are raising the Shahada finger. This, according to the Applicant, is not extremist and “is like a Christian making the ‘sign of the cross’ when he is representing his faith”;
(n)a screenshot of a Facebook conversation with the image of Osama Bin Laden at the top the Applicant said he was not a party to the conversation and had never seen it before; and
(o)a photograph of a cake with candles spelling “Happy 911” and an image of Osama Bin Laden on the cake, the Applicant says that this photograph “may have been in a Telegram channel that [he] subscribed to” but he had not seen the photograph.
In paragraph 27 of his second affidavit, the Applicant said that he was enrolled in a madrasa (an Islamic boarding school) in Malaysia after he finished high school in Perth but that he only stayed there one month.
In paragraph 39 of his second affidavit he deposed that he did not realise visiting websites and following social media accounts would cause such problems for him and that he has since deleted all social media accounts including Facebook and Telegram.
He further deposed to a belief that law enforcement and security agencies have reached the incorrect conclusion that he would engage in politically motivated violence.
The affidavits of the Applicant’s father (A4), mother (A5) and the Imam (A6) were to the effect that the Applicant was a good Muslim, he had not previously been in trouble with the police, that he was interested in current affairs and what was happening in Syria and Iraq and that he was not extremist in his views.
The Respondents’ open material and open affidavits
The open affidavit of the ASIO Officer (R1) was to the following effect:
(a)he had been employed by ASIO since the late 1970s. During his time with ASIO he had held senior positions across ASIO’s counter-terrorism functions with the last 17 years as a member of ASIO’s Senior Executive Service. These roles included senior management roles in counter-terrorism investigations and operations; counter-terrorism threat and strategic analysis and, most recently, as the head of the Division responsible for counter-terrorism investigation, analysis, priority setting and requirements;
(b)the evidence given in the open affidavit is limited to the unclassified documents and redacted documents filed pursuant to s 39A(3) of the AAT Act (in the T documents) and information otherwise not subject to restriction on security grounds;
(c)the Applicant attended Perth Airport to travel to Malaysia on 15 June 2016 at which time Border Force Officers issued the Applicant with a passport cancellation letter, the Applicant’s passport having been cancelled some time earlier;
(d)the ASA, insofar as it can be disclosed, is to the effect that:
oif the Applicant were to continue to hold a passport he would be likely to engage in conduct that might prejudice the security of Australia;
ohis passport should be cancelled to prevent him from engaging in the conduct; and
othe accompanying statement of grounds contained in ASIO’s assessment are that the Applicant intended to travel to engage in politically motivated violence or activities in support of politically motivated violence, that the Applicant adheres to extremist ideology (that includes support for ISIL) and intends to travel to engage in politically motivated violence or activities to support ISIL;
(e)the security assessment undertaken by ASIO was made in accordance with Security Assessment Determination No. 2 (Determination No. 2) (made by the former Director-General on 28 July 2010 pursuant to s 37(4) of the ASIO Act);
(f)the assessment made by ASIO only took account of the Applicant’s activities, associates and character as were relevant to security;
(g)the conflict in Syria and Iraq has drawn a large number of foreign fighters and those who support extremist causes. Since 2013 the majority of travellers to the region have gone to fight with or support Islamist extremist groups, predominantly ISIL and the al-Qa’ida-affiliated Jabhat Fatah al-Sham (JFS) formerly known as Jabhat al-Nusra (JN). Both groups are proscribed terrorist organisations under Australian law;
(h)since 2014 ISIL is the largest jihadist group in Syria and Iraq. It is a Sunni extremist group and former affiliate of al-Qa’ida and adheres to a global jihadist ideology. ISIL followers have an extreme interpretation of Islam. In June 2014 ISIL announced a Caliphate claiming land from Aleppo in Syria to Diyala in Iraq;
(i)ISIL conducts attacks against security and civilian targets including bombing public gatherings, conducts public executions and violent punishments in areas that it controls and requires those who live under its control to adhere to its interpretation of Sunni Islam and Sharia (Islamic law). It has also engaged in ethnic cleansing of minority groups in Syria and has released messages calling for attacks against a wide range of countries involved in fighting ISIL including Australia;
(j)beyond the Middle-East ISIL supporters have been involved in large and small scale terrorist attacks particularly in Western Europe (France, UK, Belgium, Spain and Germany), the US, Canada and South East Asia;
(k)since the late 1990s small numbers of Australians have travelled overseas to train and fight with Islamist extremist groups. Some of these travellers have returned to Australia and have become involved in terrorist planning in Australia;
(l)many Australian Muslims who have gone overseas to fight with ISIL have been significantly influenced by messages presented by extremist groups on social media and in some mosques and Islamic prayer centres;
(m)ASIO assesses that since 2012 approximately 220 Australians have travelled to Iraq and Syria to join extremist groups, including ISIL. Around 200 Australians, whom ASIO assessed intended to travel, or did travel to the region, have had their travel documents cancelled;
(n)the majority of those seeking to travel to the region have used Turkey as the entry point;
(o)Australians who have travelled to join ISIL have, in a relatively short period, received weapons training and are expected to participate at some level in the fighting. The training includes intensive religious indoctrination to reinforce their commitment to the ideology;
(p)ASIO assesses that at least 68 Australians have been killed as a result of their involvement in the conflict;
(q)ASIO identifies social media and the online media as being significant tools used by ISIL to radicalise. Common amongst the individuals who have been identified by ASIO as having been influenced by these means are:
oaccessing the teachings of extremist ideologues;
ouse of the internet to communicate with those who are already engaged in politically motivated violence in conflict zones;
oaccessing well-packaged extremist propaganda which often details egregious acts of violence and the rationalisation of the use of that violence; and
oaccessing “how to” guides aimed at facilitating travel to Iraq and Syria and material to support attacks in home countries.
(r)since 2014 there have been five Islamist extremist-inspired terrorist attacks in Australia resulting in eight deaths and significant injuries to others. Other plots have been disrupted prior to implementation. The online propaganda is targeting the younger and more easily influenced members of the community;
(s)those who have travelled to the Middle East conflict zones demonstrate a reinforced commitment to Islamist extremist views. They are likely to have trained with and fought alongside a range of violent Islamist extremists and built a network. These people represent a significant risk to the security of Australia as their training, experience and contacts will create greater capacity to conduct violent activity in the future;
(t)that indications are that the operating environment in Syria and Iraq provide a springboard for Islamist extremists to plan and launch terrorist attacks elsewhere (e.g. Paris in November 2015, Brussels in March 2016 and Istanbul in January 2017). Those returning from the conflict zone represent a higher risk of engaging in politically motivated violence;
(u)ASIO has the responsibility under the definition of “security” in s 4 of the ASIO Act to carry out its responsibilities to foreign countries as well as Australia and to act against politically motivated violence under the United Nations Security Council Resolution 2170 (2014) to prevent Australians from travelling to engage in or support politically motivated violence overseas;
(v)ASIO has interviewed or attempted to interview the Applicant on several occasions. The first interview was on 14 March 2012. The Applicant’s brother attended that interview with the Applicant (who was at that stage a minor). Matters discussed in the interview included;
othe Applicant admitted meeting Mohammed Hasan (Hasan) at a Perth mosque. The Applicant advised that Hasan had spoken to him about travelling overseas to do “something” and had suggested that the Applicant learn Malay so that he could travel with Hasan and assist him overseas;
othe prayer classes at the mosque, conducted by Zeki Bayatly (Bayatly), were attended by the individuals Abdul Mateen (also known as Matthew Smith) (Mateen) and Safaa Allami (Allami);
othe prayer classes were conducted by Bayatly who was not well-liked because he had given lectures promoting overseas jihad and had had an altercation with a person at the mosque;
oBayatly had subsequently attempted to organise a prayer group at another mosque and then at his home. The Applicant had attended one of these prayer groups at Bayatly’s home at which the group discussed jihad and he was told by others in the group not to talk about the meeting to anyone;
oat the time of the interview the Applicant thought that Bayatly was overseas, possibly in Turkey; and
othe Applicant advised that he had known Allami for a long time and that Allami was in gaol for attempted murder, but that Allami claimed that he had been “set-up” by ASIO;
(w)on 20 and 21 January 2015 ASIO attempted to arrange a further interview with the Applicant and attended his residence for that purpose, however, the Applicant declined to be interviewed;
(x)on 3 February 2015 the Applicant agreed to a further interview. On 5 February 2015 ASIO tried to contact the Applicant to arrange the time and location for the interview, however, despite repeated attempts to contact the Applicant, ASIO was unable to do so and the Applicant did not respond to any of the voicemail messages left by ASIO asking him to contact them;
(y)at the time that the Applicant was stopped at Perth Airport on 15 June 2016 he was travelling with his family and a search of his baggage did not identify any items of concern;
(z)on 15 June 2016 the AFP executed a search warrant at the Applicant’s residence and seized the laptop and SD memory card;
(aa)that following the seizure of the laptop and the SD memory card, the AFP Agent undertook an analysis of the material on the laptop and the SD memory card. The AFP Agent has advised the ASIO Agent that there were 22,520 files on the SD card of which over 16,000 were images and that there were 1,183,948 separate files on the laptop. The AFP Agent gave more details of these matters in his affidavit (R2);
(bb)on 3 March 2017 the Applicant was interviewed by the AFP. At that interview, the transcript of which was included in the T documents (T5), the following matters were discussed:
othe arrest of the Applicant’s fiancé. The Applicant advised that his fiancé had been arrested in Malaysia for possession of a Shahada headband and imprisoned for two years. The ASIO Agent noted that the Malaysian news article relating to the case said that the headband was described as having the IS logo and that she had been arrested for possession of a terrorism-related item;
oin relation to the items seized under the search warrant, the Applicant claimed ownership of the laptop which was given to him by his father and the SD card which he had bought from a shop. The laptop may have been used by his father, brothers and some friends. The Applicant said that the SD card had been used in his previous phone to store “quotes from Instagram and Facebook” and no-one else used it. He said that many of the files on the SD card must have automatically synced and that he was only interested in researching ISIL;
oat the interview the AFP Agent showed the Applicant 20 images taken from the SD memory card and laptop. These images were:
· an image of an ISIL flag. The Applicant thought the image must have been synced from Facebook;
· images of five men arrested trying to leave Australia by boat to join ISIL. The Applicant said that he had met two of them, [redacted] and [redacted], at the mosque in Perth but was not friends with them;
· images of Sheglabo. One of the images shows Sheglabo wearing a black jumper with, what the Applicant described as having, a design “resembling one used by ISIL” but the Applicant stated that the writing did not directly reference ISIL. He described going on fishing trips with Sheglabo and that Sheglabo had gone offshore to fight with ISIL;
· a group photograph including Sheglabo and Junaid Thorne. The Applicant denied that Junaid Thorne was a friend;
· a cover of the “Inspire” magazine which the Applicant said he thought was “a bit extreme” and that the image must have been automatically synced;
· a photograph depicting support for the Paris terrorist attacks of November 2015 which the Applicant said must have been automatically synced. He said that he condemns such extreme acts;
· a photograph of two explosive devices. The Applicant said that he had not seen this photograph and assumes that it was automatically synced; and
· an image from the book “Advice For Those Doing Hijrah”. The Applicant said that he could not remember reading it and thought that it must have been automatically synced to his device.
(cc)that from the material on the laptop and the SD memory card, ASIO notes the following as being of interest:
opropaganda depicting prominent Australian ISIL supporter, Neil Prakash, presently incarcerated in Turkey;
ophotographs of ISIL supporters in the conflict zone;
othe image of the cover of the Inspire magazine, a magazine produced by supporters of Anwar Al Aulaqi. This edition spoke of targeting people for attack in non-Muslim countries;
oa photograph of the two improvised explosive devices;
oa photograph of a person wearing a suicide vest;
oimages of Melbourne-based extremist [redacted], currently charged with engaging in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to s119.4(1) of the Criminal Code Act 1995 (Cth). [Redacted] was part of the group arrested while trying to leave Australia by boat to join ISIL;
ophotographs of groups of individuals many of whom are known to ASIO as holding extreme views;
ophotographs of the Applicant wearing the Shahada logo with the Shahada flag behind him; and
oa photograph of a desktop computer monitor showing YouTube video featuring ISIL leader Abu Bakr Al-Baghdadi and the ISIL logo.
(dd)the Applicant was again interviewed by ASIO on 16 February 2017. The transcript of that interview was included in the T documents. In that interview the Applicant, in summary, advised ASIO that:
owhen he was stopped at the airport in June 2016 he was travelling to Malaysia with his family and that he had no plans to engage in politically motivated violence;
ohe was not interested in going anywhere other than Malaysia where he was going to see his family and get married;
ohis fiancé was arrested and gaoled for two years for having what the media described as a “Jihadi headband” but that she did not hold extreme views. The ASIO Agent noted that the Applicant’s fiancé had, in addition to being sentenced on the charges relating to the Jihadi headband, been sentenced on charges relating to the forging of identity documents;
ohe does not support any terrorist groups;
ohe is not a violent person;
oin the early days he did not know what to make of ISIL, however, since then they have shown their “true face”, that they had engaged in brutal acts and that was not religion;
ohe thought that his association with certain people in Melbourne may have been the reason that he came to the attention of ASIO. He said that he had gone to Melbourne to stay with a person who had gone to fight and had been killed in Iraq;
oto him “jihad” means personal struggle, not attacks on civilians and random people and that there was no circumstances in which military action could be justified other than in self-defence;
ohe is not a member of the “Junaid Group”, a reference to Junaid Thorne who is described by the ASIO Agent as a prominent figure in the Australian Islamic community who reportedly delivers “radical” sermons to younger members of the community praising ISIL. He said that he had attended “one to two” classes conducted by Junaid Thorne. The Applicant also advised that he is not a member of “Millatu Ibrahim” (a Salafist group founded in Germany in 2011);
ohe had social relations with Sheglabo but he did not know him too well. He saw him at Murdoch University and had been on fishing trips with him as well. The Applicant was not aware that Sheglabo was intending to go to Syria or Iraq and fight with ISIL. Sheglabo had shown the Applicant some ISIL videos on his (Sheglabo’s) phone and had been secretive about it and only when they were alone. He thinks that Sheglabo may have been trying to encourage him to a pro-ISIL view. He thought that the videos were some form of brainwashing that had influenced Sheglabo to travel overseas;
ohe had watched extremist material for educational purposes but no longer looked at that type of material;
owhile he did not know that Sheglabo intended travelling overseas to fight, Sheglabo had greeted him on one occasion in a way that suggested that he might not see him again. He had not contacted Sheglabo after he left although he had seen some Twitter messages from Sheglabo sent from overseas;
ohe knows Matthew Smith (also known as Mateen) who appeared in a number of the group photographs in the Applicant’s possession but in the Applicant’s view, Mateen was not extreme although he had seen Mateen in a photograph in the paper in which Mateen and others were standing in front of an ISIS flag, which he thought was a pretty stupid thing to do; and
ohe had not had contact with Allami (period not specified) and does not think that Allami holds extreme views;
(ee)the ASIO Officer’s view was that the Applicant still held the extremist views that he held at the time of the ASA, that he intended to travel to engage in politically motivated violence and that the material that had been gathered by ASIO and the AFP since the time of the ASA strengthened ASIO’s assessment;
(ff)that in the ASIO Officer’s view the material that ASIO has seen since the ASA is consistent with the Applicant supporting ISIL, particularly when considered in accumulation. Of particular note in this regard are:
oIslamist extremist groups’ use of flags, emblems and logos as a convenient and effective way of representing the group and its causes. The ISIL banner appears frequently in the material on the Applicant’s laptop and SD memory card;
othe numerous instances of the “shahada flag” in that material. It is extensively used by extremist groups such as al-Qa’ida and was used by Man Monis during the Lindt Café siege in Sydney;
othe repeated use of the one index finger gesture (known as the Tawheed Finger and which is also sometimes referred to as the “Shahada Finger”) by the Applicant and others in the photographs;
ophotographs of prominent supporters of ISIL in Australia and overseas. These include [redacted], Junaid Thorne and Neil Prakash. In 2015 Junaid Thorne was convicted of travelling under a false name, thought by ASIO to avoid detection by security agencies; and
opossession of extracts from the book “Advice For Those Doing Hijrah”;
(gg)that while ASIO accepts that the Applicant may have legitimate reasons for travelling to Malaysia, ASIO assesses that overseas travel poses a risk to security. ASIO notes that Malaysia has also been used as a departure point for onward travel to Syria and Iraq for those who have travelled to engage in violence; and
(hh)that ASIO’s position (in paragraphs 86 and 87 of his open affidavit) is as follows:
86. Based [on] the preponderance of the applicant’s online interests which feature frequent images of ISIL or other Islamic extremists images; his association with a range of other Australians strongly associated with ISIL views and beliefs, including some who have travelled to Syria and Iraq or have been arrested for terrorism-related offences; and indications from images on his SD card and laptop of his own affinity with extremist beliefs, ASIO remains of the view, including based on classified reporting, that the applicant may have sought to use his travel to Malaysia in order to travel onward to Syria and Iraq.
87. It is ASIO’s continued assessment that if the applicant held an Australian passport he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. The decision to cancel his Australian passport was the correct or preferable decision.
The open affidavit of the AFP Agent (R2) was to the effect:
(a)he is currently attached to the Joint Counter Terrorism Team (JCTT) of the AFP and is responsible for conducting investigations to prevent and respond to terrorist threats and attacks in Australia. He completed the Australian-New Zealand Counter-Terrorism Committee (ANZCTC) Counter Terrorism Investigators Program and the ANZCTC Advanced Counter Terrorism Investigators Program (for senior investigators);
(b)he was the JCTT case officer responsible for investigating the Applicant in 2016 and 2017;
(c)he analysed the material on the laptop and the SD memory card seized during the search of the Applicant’s residence undertaken by the AFP on 15 June 2016;
(d)approximately 15,000 of the images that he reviewed contained material which, based on his training and experience, in particular with the JCTT, contained either Islamic State (IS) propaganda from newsfeeds or, what he would describe as, abhorrent images;
(e)that a large amount of the propaganda material was:
olabelled as originating from Amaq News Agency, an IS sponsored media group which releases IS news and images relating to IS victories or tactical operations and casualties inflicted on opposing forces; and
oidealistic images of areas that had been occupied by IS fighters purporting to show them taking part in community engagement activities such as handing out food and water;
(f)that by “abhorrent images” he means;
oexecution videos and photographs in which clearly identifiable soldiers or supporters of IS, badged as IS or carrying or against a background of IS flags, were executing individuals who appeared to be captured soldiers or civilians. These included:
· public beheadings; and
· firing squad executions
obeheading photographs which showed a bound man being beheaded, the head falling from the body and the exposed spinal column;
oa series of still photographs showing a captured soldier pushed face down with an IS soldier kneeling across his back, holding the captive’s head back with the series of photographs progressively showing the captive’s head being sliced off with the final photograph showing the severed head placed in the middle of the deceased’s back;
oa line of captured soldiers kneeling in front of an angled trench who then have their heads severed by IS soldiers using knives and the headless bodies falling across the trench with the blood from the bodies flowing along the trench;
obattlefields showing bodies of killed people and burnt out vehicles and buildings; and
omutilated bodies of children and Iraqi and Syrian soldiers (identifiable by their uniforms) and with IS flags draped over them;
(g)that the images also included;
ophotographs of the Applicant and persons who appear to be known to him; and
oa single image screenshot of a page from the digital book entitled Advice For Those Doing Hijrah. This page made recommendations of electronic and clothing items to pack. Hijrah is a term used to describe migration and the book provides advice on how to prepare to travel to conflict zones and what indicators law enforcement and airport personnel use to screen for those wishing to participate in incursion activities;
(h)that the abhorrent images had been deliberately selected by those who took and shared them to show a high degree of violence; and
(i)he was one of the AFP agents who conducted the video recorded interview with the Applicant on 3 March 2017 at which time the Applicant claimed ownership of the laptop and the SD memory card which he stated had been used in his mobile phone. During that interview the AFP Agent showed the Applicant 20 of the images that the agent had recovered from the laptop and SD memory card.
THE PARTIES’ SUBMISSIONS
The parties submitted Statements of Facts, Issues and Contentions. The parties also filed outlines of their respective closing submissions to which each counsel spoke at the hearing on 21 May 2018.
The Applicant identifies the Tribunal’s review as being a de novo procedure in which the Tribunal stands in the shoes of the decision-maker citing the passage from the judgment of Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 referred to in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 (CMHV) at [37]:
…The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made…
The Tribunal would also note the oft-cited passage from the judgment of Bowen CJ and Deane J in that case (at 68):
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal…
The Applicant submits that nothing in the AAT Act identifies a burden of proof, but that there is “an ordinary obligation to prove what one asserts” (Applicant’s closing submissions Part 3). The Tribunal accepts that to be the case.
The Applicant also notes that the Tribunal is not bound by the rules of evidence (s 33(1)(c) of the AAT Act) but that it is bound by the rules of natural justice (procedural fairness). Again the Tribunal agrees. In that regard the Applicant refers to the rule in Browne v Dunn (1893) 6 R 67 that any matter which is proposed to contradict the evidence-in-chief of a witness, must be put to the witness to provide the witness with an opportunity to explain the contradiction. That rule has been held to apply to proceedings in the Tribunal (Hoskins v Repatriation Commission (1991) 32 FCR 443 and Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206). The principle behind the rule is a refined element of procedural fairness applicable to cross-examination. The Applicant concedes that in proceedings in the Security Division, it is not possible to put to a witness material which may well contradict the witness but which is covered by ministerial certificates (see [25]-[27] above).
As the Applicant’s submissions put it, “…the Tribunal will have to do its best to test the material in the closed session”. The Tribunal did test the closed material in the closed session. As part of that testing exercise the Tribunal adopted the approach taken by the Tribunal in the matter of BLBS and Director-General of Security and Anor [2013] AATA 820 (BLBS) in which the Tribunal noted at [149]:
The Tribunal undertook that any questions BLBS’s counsel wanted to put to Mr Sargent in closed session that could not be asked and answered in open proceedings would be asked by the Tribunal in the closed proceedings. That was done.
In the present case the Applicant’s counsel provided a list of questions for the Tribunal to ask both the ASIO Officer and the AFP Agent in the closed session. These questions required information from:
(a)the ASIO Officer relating to the Applicant’s contact with specific individuals who had been identified by the officer in the open material as having had contact with the Applicant and of holding extremist views. This included questions as to the frequency of the contact, where the contacts had taken place and what occurred during these contacts; and
(b)the ASIO Officer and the AFP Agent relating to the evidence to support the factors that ASIO had identified in the statement of grounds and its open material to reach the conclusion that ASIO had in relation to the Applicant adhering to extremist ideology that supports ISIL and an intention to travel to engage in politically motivated violence.
These questions, as well as others from the Tribunal, were put to the ASIO Officer and the AFP Agent in the closed session.
STANDARD OF PROOF
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)
The Applicant refers the Tribunal to the “Briginshaw” test (Briginshaw v Briginshaw (1938) 60 CLR 336) (Briginshaw) and the “suggestion” in the judgment of Dixon J in that case that the gravity of the consequences flowing from a finding may affect the answer to the question of whether the fact in issue has been proved to the necessary degree of satisfaction. As the submissions and the Applicant’s counsel in oral closing submissions noted, that principle has been the subject of criticism both judicial and academic.
While made in the context of the discussion of the phrase “at least likely” in cl 7.2.5(b) of Determination No. 2, the Tribunal considers that the Tribunal’s finding in BLBS as to the nature of the task to be undertaken by ASIO in making a security assessment has general application. At [67] the Tribunal in BLBS makes the following comment:
67. We reject Mr Johns’ submissions that ASIO is prohibited from engaging in ‘speculation’. We accept that ‘mere speculation’ can never form the basis of an adverse assessment but, as an intelligence agency, ASIO’s fundamental task is not to search out past misconduct. ASIO exists to anticipate and help prevent future dangers. Inevitably the prediction of future events must involve speculation —understood in a neutral, not pejorative sense. Certainty will rarely, if ever, be attainable. All that is required is that any prediction of future events contained in an adverse assessment must be well informed; the reasoning supporting the prediction must be rational and inferences must be based on sound foundations. Reasoned speculative foresight is not prohibited.
In discussing that passage from the decision in BLBS, the Tribunal in CMHV under the heading “The role of speculation” said:
116. Before it is possible to suspect on reasonable grounds that something has happened or is likely to happen, it is necessary that there are sufficient facts to induce that state of mind in a reasonable person. The facts need not be such as to induce a state of mind of certainty, as would be the case in a criminal matter where the standard of proof is that of being beyond reasonable doubt. They need not even induce a person to be satisfied on the balance of probabilities. The facts must, however, induce a state of mind that, in the words of Gray and Lee JJ in Goldie, is placed not too closely to irrationality on the spectrum between certainty and irrationality. When the subject matter of reasonable suspicion is whether a person is likely to engage in conduct of a certain type, that very subject matter draws the state of mind further along the spectrum and away from irrationality.
117. Wherever reasonable suspicion sits on that spectrum, we must be able to point to a background of facts, established either by direct evidence or by inference, on which we do, or do not, suspect on reasonable grounds the likelihood of a person’s engaging in specified conduct. Any inferences that we make must be properly made following the principles set out by the majority in Luxton v Vines. Mr Luxton had been found injured on a road and brought an action against the Nominal Defendant claiming that his injuries had been caused by, or arose out of, the use of a motor vehicle the identity of which could not be established. Was the evidence such that the jury could infer that the driver of the motor vehicle struck Mr Luxton either due to inattention or failure to keep a proper lookout or of conscious wrong doing? In answering this question in the negative, the majority relied on the following passage from the judgment of the Court in Bradshaw v McEwans Pty Ltd.
(Footnotes omitted)
This Tribunal agrees with the above passages. What those passages do is to highlight the different, if not unique, functions with which ASIO is charged in analysing information and providing advice on security. By their nature, the security assessments made under s 17(1)(c) of the ASIO Act are forward looking, they are making assessments of likely or possible future conduct, albeit based on past or present conduct and other indicators. In that sense the exercise undertaken by ASIO in making a security assessment under s 17(1)(c) of the ASIO Act to be furnished to Commonwealth agencies under s 37(1) of the ASIO Act is materially different to the exercise faced by courts as discussed by Dixon J in Briginshaw which involved an examination of historical conduct or as stated by Dixon J in Briginshaw for the purposes of “persuasion of its occurrence or existence” (Briginshaw at p 361 per Dixon J). That examination being undertaken by a court in the course of determining whether a fact or facts have been proven is, as noted above, a different task to that facing ASIO and the Tribunal in cases such as this, being an assessment of the likelihood of a future occurrence.
The Tribunal also notes the judgment of Jagot J in Sullivan v Civil Aviation Authority (2013) 138 ALD 600; [2013] FCA 1362. In that case the Court was called on to determine the questions at [1]:
1. Whether as a matter of law the Tribunal was required to take into account the Briginshaw v Briginshaw principle in applying the standard of proof in findings on material questions of fact adverse to the applicant.
2. Whether as a matter of law the Tribunal was required to identify application of the Briginshaw v Briginshaw principle in applying the standard of proof in referring to evidence on which the findings on material questions of fact adverse to the applicant are based.
In answering those questions the Court found:
39. For these reasons questions 1 and 2 of the amended notice of appeal should both be answered “No”.
In reaching that decision the Court made the following observations:
33. The first question is what it means to say, as Mr Sullivan contended, that the Tribunal was bound to take into account the Briginshaw principle in applying the standard of proof in findings on material questions of fact adverse to him. It appears from the submissions for Mr Sullivan that what is meant is that the Tribunal was required to assess the preponderance of the probabilities by reference to the seriousness of the facts in issue and the presumption of innocence so that mere competing conjecture or inexact proofs should have been found to be inadequate. This, it is said, the Tribunal failed to do in respect of all adverse material findings against Mr Sullivan.
34. Expressed in this way, by reference to the preponderance of probabilities, the source of the principle from judicial rather than administrative decision-making is apparent. The Tribunal is not bound by the rules of evidence (s 33(1) of the Administrative Appeals Tribunal Act). Section 140(1) of the Evidence Act 1995 (Cth), expressing the civil standard of proof on the balance of probabilities, does not apply to the Tribunal. Nor does s 140(2) which is a statutory embodiment of the Briginshaw principle. That said, as the submissions for Mr Sullivan pointed out, administrative decision-makers do routinely apply the approach identified in Briginshaw to their fact finding. Common examples in which the principle is applied include disciplinary hearings against professionals. In Minister for Immigration v Pochi (1980) 4 ALD 139 at 157 it was explained that the content of the requirements of natural justice was shaped by “the nature of the decision which the statutory tribunal is authorized to make or review and the effect that that decision may have on the person affected by it” so that deportation was not to be based “on no more than suspicion and speculation”, an example of the principle’s application. In Re Kirby and Collector of Customs (1989) 20 ALD 369 at 377 the Tribunal applied Briginshaw in the context of a statutory provision which required an applicant to satisfy the Collector of Customs about certain matters, a different context from the present where there is no suggestion of any party being subject to a burden of proof.
…
37. The principle which Briginshaw embodies, that there is a rational relationship between the seriousness of the fact to be found and the strength of the material sufficient to prove that fact, is a tool available to the Tribunal to assist it in reaching the correct or preferable decision in the context of administrative decision-making. The usefulness of this tool will depend on the nature and the facts of the case.
The other aspect of a security assessment under s 17(1)(c) of the ASIO Act which arguably distinguishes this case from Briginshaw and the examples cited by Dixon J at page 362-363 of his judgment, is that in those cases he was referring to the consequences to the party of a finding of fact only. In that context Dixon J observed (at 363 in Briginshaw) that:
It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
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)
The Applicant too cites the first paragraph from George v Rockett (1990) 170 CLR 104 (George v Rockett) cited above and also refers to [8] of the decision in CMHV which summarised the Tribunal’s findings on that issue as follows:
…
(3) Each of the prescribed administrative actions requires the competent authority to suspect on reasonable grounds that the person in this case, would be likely to engage in certain conduct. In this case, the conduct is that which might prejudice the security of Australia or of a foreign country.
(a) To “suspect on reasonable grounds” is to have a fabric of facts and inferences drawn from those facts that gives reason to suspect.
(b) Speculation does not have a part to play in that process.
The Applicant then summarises his position as follows:
In summary, the facts which are the foundation of the suspicion in s 14 of the APA must be proved to the civil standard (otherwise there would be the danger of assuming a possible future risk on the basis that there was only a possibility that an event happened in the past) – and the inferences drawn from them must be those that can properly be drawn.
In support of that proposition the Applicant cites Farnell v Chanbua [2016] FCWA 17 at 698. The extensive citation of Baroness Hale’s judgment in In re S-B (Children)(Care Proceedings; Standard of Proof) [2010] 1 AC 678 by Thackray CJ at [698] was in relation to the meaning to be given to the word “likely” as it is used in s 28 of the Children and Community Services Act 2004 (WA). Presumably the Applicant is relying on the statement in [8] of Baroness Hale’s judgment as cited wherein she says:
First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there is a real possibility that they did.
The Tribunal does not consider that anything said by His Honour in Farnell v Chanbua or by Baroness Hale in the case that His Honour cites, is inconsistent with the approach taken by the Tribunals in BLBS or CMHV or the statement in [14] of the judgment in George v Rockett cited at [65] above. The Tribunal accepts that the “objective circumstances”, to use the term used in George v Rockett, need to be established on the balance of probabilities, but that the “assent to belief” based on those circumstances is to be based on “more slender evidence than proof”, again using the terminology of George v Rockett.
The Respondents in their closing submissions make the following submission:
It should be borne firmly in mind 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’. Rather the Tribunal’s task is to determine whether there are reasonable grounds for suspecting this is the case (see s 14(1) of the Passports Act and BLBS v Director-General of Security and Minister for Foreign Affairs [2013] AATA 820 (BLBS) at [80]). More precisely, the Tribunal needs to decide whether it is positively satisfied such a suspicion by ASIO is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security (see s 43AAA(3) of the AAT Act).
(Emphasis added)
The Tribunal does not read s 43AAA(3) of the AAT Act to be saying that. Section 43AAA(3) of the AAT Act is dealing with findings by the Tribunal “that…information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security”. More particularly it is referring to “information…under subsection 37(2) of that [ASIO] Act”. Subsection 37(2)(a) of the ASIO Act distinguishes between the assessment and “information that has been relied on by the Organisation in making the assessment”. Although s 37(2)(b) of the ASIO Act provides that the statement of grounds, which must set out the information relied on, is deemed to be part of the assessment, that, in the Tribunal’s view, does not alter the distinction between the information relied on and the assessment. Accordingly, s 43AAA(3) of the AAT Act does not require that the Tribunal be “positively satisfied such a suspicion by ASIO is incorrect…”, what it requires is that the Tribunal must not make a finding that information on which ASIO has relied in making its assessment is incorrect or irrelevant without specifically noting that to be the case in its findings. The “suspicion” formed by ASIO based on that information is a different issue, and is not the subject of s 43AAA(3) of the AAT Act.
The end result of the above is that the Tribunal accepts that it has to be satisfied on the balance of probabilities that the facts, or, using the language of s 43AAA(3) of the AAT Act and s 37(2) of the ASIO Act, the information, on which ASIO has based the assessment are correct and relevant. However, the next step in that assessment process, that is the forming of the suspicion, is not to be tested by application of the balance of probabilities standard, but rather the standard described by the Tribunal in BLBS, in particular in [67] and [80] of the decision in that case and cited in [56] and [64]-[65] above.
Would be likely to engage
The Respondents refer to Determination No. 2 and in particular to clause 5(m)(ii) of Determination No. 2 (T4) which provides that 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.” The Respondents note that s 37(4) of the ASIO Act provides that regulations issued by the Director-General do not affect the powers of the Tribunal and that Determination No. 2 is not binding on the Tribunal.
There has been debate as to the status of Determination No. 2. The Respondents’ submissions refer at some length to the Tribunal’s view in BLBS on that issue. They cite [54] of the decision of BLBS which is:
54. We think we should apply the policy disclosed in the Determination similarly to the way Ministerial policy was discussed in Re Drake notwithstanding that the Determination was made by the Director-General rather than a Minister, is not subject to Parliamentary scrutiny and much of its content cannot be known to the public because it remains classified for security reasons. These factors differ from those in Re Drake, but because Parliament has conferred the power to make such determinations on the Director-General in consultation with the Minister we think there is sufficient similarity not to reject its applicability. While s 37(4) of the ASIO Act is explicit that the Determination is not binding upon the Tribunal we think that does not prevent our deciding this matter consistently with the policy of the Direction 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. Subject to the observation below we discern no reason to regard the policy expressed in the Determination as in any way inconsistent with the ASIO Act.
A different view was taken by the Tribunal in the subsequent case of CMHV which found:
65. An assessment is not a discretionary decision of the sort considered in Drake No 2 and in the earlier case of Drake v Minister for Immigration and Ethnic Affairs. It is for that reason that we view Determination No. 2 in a different light from that in which it was viewed in BLBS. An assessment is a statement containing opinion, recommendation or advice addressed to the question whether it would be consistent with the requirements of security, or necessary or desirable, for prescribed administrative action to be taken under a specified enactment in respect of a person. Characterisation of the expression of an opinion, making a recommendation or giving advice directed to whether certain action would be consistent or desirable with the needs of security does not sit comfortably with the notion that there may be a range of correct opinions, recommendations or advice on the subject and, from that range, there is one is to be preferred to the others. Options may be weighed in reaching the final assessment but that is different from a decision that more than one option is the correct decision. Determination No. 2 does not present itself as a policy document directed to guiding the assessment that is made but as a document directed to guiding the process to be followed in making an assessment.
…
68. Where the difference between the Tribunal’s approach in BLBS and the approach that we adopt becomes apparent arises in the passage in which it considers the meaning of the word “likely” or the expressions “likely to” or “likely to be” as they are used in Determination No. 2….
…
70. Therefore, while we will have all due regard to Determination No. 2, we do not propose either to “apply the policy of the Determination” (original emphasis) or to analyse the meaning to be given to the word “likely” in the context of Determination No. 2…
More recently the Tribunal in MCLT and Director-General of Security [2018] AATA 1359 found (MCLT):
78. Determination No. 2 is written with this process and the need to act with procedural fairness in mind. In so far as those processes are concerned, it is consistent with the terms of the ASIO Act and with those enactments under which prescribed administrative action is taken. Our review of the assessment will follow a process consistent with the procedures set out in Determination No. 2 for both ASIO and the Tribunal must follow the requirements of the law.
79. Beyond the processes, we have come to the view that Determination No. 2, when viewed without regard to the particular prescribed administrative action under consideration, is not consistent with the task that the ASIO Act requires ASIO to undertake i.e. furnish assessments to Commonwealth agencies relevant to their functions and responsibilities as required by s 37(1). There is nothing in the ASIO Act and, more particularly, nothing in the task that ASIO is asked to undertake or in the definitions of “security assessment or assessment”, “adverse security assessment” or “security” that requires findings of fact to be made on the basis of what is “at least likely”, as used in cl 7.2.5b of Determination No. 2 or what is “likely to be” as used in cll 5(m)Iii) (sic), 6.2.2(i)(a)2 and (iv)(a)1 and 2 and 7.2.5b. There is nothing that requires them to be made on the basis of “reasonable suspicion” as used in cll 5(m)(i) and 6.2.2(ii) and (iii). An assessment sets out ASIO’s recommendation, opinion or advice on, or otherwise referring to, a particular question that may be framed in one of two ways: would be consistent with the requirements of security for a prescribed administrative action to be taken in respect of a person or would the requirements of security make it necessary or desirable for that action to be taken.
In the end whether the view expressed by the Tribunal in BLBS as to the status of Determination No. 2 is to be preferred over the Tribunals’ views expressed in CMHV and MCLT may be, if not academic, at least of no great significance in that the tests adopted by the Tribunals in those cases are materially the same.
The Tribunal in BLBS concluded that:
79. However, twinned with and inseparable from the individual rights recognised and protected by that requirement is the interest of Australia’s national security and our protection of our community. Section 14 of the Passports Act balances the competing interests, in the Tribunal’s view, not by requiring a strained or attenuated meaning to be given to the words “would be likely to engage in” but by authorising ASIO, as a competent authority, to ask the Minister for Foreign Affairs to refuse to issue or to cancel a passport whenever it holds a suspicion on reasonable grounds that a person would be likely to engage in such relevantly disqualifying conduct.
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 have such a suspicion is explained in George v Rockett; see [75] above.
81.Given what we conceive to be the correct approach to statutory interpretation we will resist the temptation to express the notion conveyed by the expression “would be likely to engage in” in alternative terms.
This concept of the meaning of “likely to engage in conduct” having to be considered in the context of the administrative action in question, in this case cancellation of a passport on national security grounds, is also raised in CMHV wherein the Tribunal opined:
103. We have referred to only two of a considerable number of authorities that have considered the meaning of the word “likely”. It is clear from both of them that the word “likely” cannot be understood without its context. That context comprises the section in the first instance and then the legislation as a whole. Both are needed in order to determine both the precise circumstances in which the word is used and then the consequences of the decision made under the particular section. In this case, the section focuses attention on the conduct in which the “person would be likely to engage” if issued with a passport. The first thing to note is that the word “likely” does not stand alone but is linked with “would”. Would the person be likely to engage in the specified conduct?
…
106. Whether a person would be likely to engage in the specified conduct needs to be contrasted with the way in which s 14(1) of the Passports Act specifies the conduct. The focus of the conduct itself is not upon its likely outcome but upon what that conduct “might” do. The word “might” or “may” is used to express permission but may also be used to express a possibility. Given that “likely” and “might” are both used in s 14(1)(a)(i) of the Passports Act, it can be expected that the interpretation of one may affect the other.
…
108. Having regard to all these matters, the balance seems to be that the likelihood that a person “would” engage in conduct that “might”, and so that would possibly, prejudice the security of Australia or of a foreign country must be a more than possible occurrence. …
…
112. In view of these considerations, the meaning of “probable” or of “more likely than not”, requiring proof on the balance of probabilities, would seem to be setting the bar too high when trying to apply the words “would be likely”. It would seem to place too much weight on the person’s loss of entitlement and not enough on security.
113. At the same time, proper regard must be had to the words themselves. Parliament has not chosen the words “may be likely”. In doing so, it appears to have implicitly rejected the test of possibility. That it has done so is underlined by its choice of the words “would be likely”. It is also underlined when regard is had to the seriousness of the issues in balance and the way in which what conduct “would be likely” is counterbalanced by what the conduct “might” result in. Having regard to all of these matters, to test what “would be likely” by reference to what is “probable” or what is “more likely than not” is to set a statistical standard where an assessment of whether a person’s likelihood to engage in the conduct must be assessed at over 50%. That is too high given the balance that must be achieved between collective security and individual liberty. That leads us to the conclusion that whether a person “would be likely” to engage in the specified conduct is tested by whether there is “a substantial or ‘real and not remote’ chance regardless of whether it is less or more than 50%” and what “might be” the result of that conduct by reference to possibility.
(Footnotes omitted)
This Tribunal considers the statement of the test laid out in the above paragraphs, in particular [113] in CMHV (cited in [79] above), to be the most appropriate formulation of the meaning of the phrase “likely to engage in conduct” in the context of s 14(1)(a) of the Passports Act. This formulation of the test is consistent with what the Applicant (at page 10 of his closing submissions) and the Respondents (at paragraph 37 of their closing submissions) assert to be the test.
Might prejudice
The Tribunal in CMHV observed at [106] of its decision (see [79] above) that the test for whether a person would be likely to engage in conduct needs to be contrasted with the way that s 14(1) of the Passports Act identifies the relevant conduct. In the context in which the word “might” is used in s 14(1) of the Passports Act, it is alluding to a possibility. The Tribunal in CMHV also observes at [106] that, given that “likely” and “might” are both used in s 14(1)(a) of the Passports Act, “it can be expected that the interpretation of one may affect the other”.
In the present case we are looking only at whether the identified conduct which the Applicant is likely to engage in might prejudice the security of Australia or a foreign country. ASIO’s designation of a “competent authority” under the Determination is limited to subsection 14(1)(a)(i) of the Passports Act (see [15] above). Accordingly, the only relevant conduct is conduct which might prejudice the security of Australia or a foreign country.
Therefore the issue for this Tribunal to determine is whether, if the Applicant were to engage in the conduct that ASIO suspects that he is likely to engage in, such conduct might prejudice the security of Australia or a foreign country. The particular conduct that ASIO has identified in the ASA, as particularised in the statement of grounds, is politically motivated violence. As noted at [21] above, s 4 of the ASIO Act defines security to include the protection of the Commonwealth and the people of the Commonwealth from politically motivated violence or carrying out Australia’s responsibilities to a foreign country in relation to the prevention of politically motivated violence.
Accordingly, the issue for determination by this Tribunal in this regard is whether the conduct identified by ASIO as being conduct that the Applicant would be likely to engage in falls within the definition of politically motivated violence as that term is defined in s 4 of the ASIO Act (see [22] above).
ASSESSING THE EVIDENCE
As discussed at [58] above, by its nature, a security assessment is making an assessment of future events based on past and present indicators. In BLBS the Tribunal at [67] of its decision expressed the nature of the exercise in the following way:
…ASIO exists to anticipate and help prevent future dangers. Inevitably the prediction of future events must involve speculation—understood in a neutral, not pejorative sense. Certainty will rarely, if ever, be attainable. All that is required is that any prediction of future events contained in an adverse assessment must be well informed; the reasoning supporting the prediction must be rational and inferences must be based on sound foundations. Reasoned speculative foresight is not prohibited.
The Tribunal in CMHV described the process as inferential, citing (at [118]) the judgment of Buchanan J in Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260; 122 ALD 49:
It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application or a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.
Rares J in MYVC v Director-General of Security [2014] FCA 1447 (MYVC) expressed the exercise in the following terms:
52. Importantly, their Honours [referring to the Court in George v Rockett] approved what Kitto J had said, that a suspicion that something exists is more than mere idle wondering about its existence. Rather, it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion, but without sufficient evidence. Whatever the source of the suspicion is, it has to be sufficient to create in the mind of a reasonable person an actual apprehension or fear that the matter being considered actually exists. Where a statute requires a decision maker to determine whether there is a real chance or possibility that something might happen in the future, the decision maker must estimate the likelihood that one or more events would give rise to the occurrence of that thing. In many, if not most, cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
… what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.
53. It is therefore, ordinarily, an integral part of the process of making a determination concerning the chance of something occurring in the future that the decision-maker will arrive at conclusions concerning past events: see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The decisions of the Tribunals in BLBS and CMHV also provide guidance on how the Tribunal is to assess the evidence and draw inferences. The Tribunal in CMHV referred to reviewing the evidence to identify patterns in the following terms:
38…Whether we are reviewing a decision in the Tribunal’s Security Division or any of its other Divisions, the assessment of evidence may be described as being about patterns. It may be that one piece of evidentiary material when viewed alone may suggest a finding of fact that may support one party or another. A single piece of evidence is, however, only a snapshot of the whole. Only by looking at each snapshot, as it were, can the whole pattern be seen. Only by looking at the whole pattern can findings be made or, in a case such as this, can there be a basis for suspecting, on reasonable grounds, that a person would be likely to behave in a certain way i.e. engage in conduct that might prejudice the security of Australia or of another country.
The Tribunal’s above statement was made in the context of not all of the evidence being put to the applicant. In that regard the Tribunal noted (at [38]) that:
38. Cases of this sort are always difficult for we are not permitted to put to CMHV the information that is given in evidence in the closed part of the hearing. That means we must be particularly careful in assessing the weight and probity of the evidentiary material that is put to us in the closed session. We must keep in mind what it is that CMHV has said and keep our minds open to the explanations that he might give were he to have the opportunity to respond to that evidentiary material and to remind ourselves that events take on a different hue when viewed from different perspectives.
The Tribunal in CMHV went on to describe the assessment process to be undertaken by the Tribunal as follows:
66…That process is necessarily a discretionary process involving analysis of material and information, whether it is called evidence, material or the like, for relevance to the issue or issues that must be decided in making the decision and for the probity of that material or information. Its probity will depend on factors such as its source, whether the source is a primary or secondary source, the interests of those sources and the passage of time since the events to which it related. It will also depend on other evidentiary material that is available and whose relevance and probity has also been assessed in this way. How do those separate pieces of evidentiary material sit together? Do they sit together to form a pattern? The pattern may be neatly ordered but it may not. What is relevant is not so much the nature of the pattern as ordered or chaotic or somewhere in between but that the evidentiary material has a place in it. If it has a place in it so that it is either supported by, or makes sense when compared with, other relevant evidentiary material or known events, that will be a factor in assessing the weight to be accorded to that evidence.
The Tribunal in CMHV draws these concepts together (at [119]) as follows:
119. Once facts have been found and any inferences from those facts drawn, we must assess it in light of our common sense and common experience for indications of future behaviour. Indicative factors might include, for example, a person’s past conduct, stated intentions, associations, life experience and influences to which he or she has been, and is, exposed. The evidence may support or point to those factors to varying degrees. Account must be taken of those variations while recognising that people do not always act consistently, people may change with age and according to their environment and that each person’s likely conduct needs to be assessed specifically in relation to evidence relating to him or her without generalisations relating to the community to which he or she belongs. Only when the whole of the assessment is done and the pattern of the evidence examined, can we come to a view whether we suspect on reasonable grounds that a person is likely to engage in conduct likely to prejudice the security of Australia or of a foreign country. We would not regard this process as “reasoned speculative foresight” or that it involves “speculation – understood in a neutral, not pejorative sense” as described by the Tribunal in BLBS.
The Tribunal in BLBS described the process in similar terms as follows:
144. A finding by the Tribunal, particularly in this Division, need not be based on direct evidence. There will (sic) many instances where various pieces of intelligence information assessed by a process of inductive reasoning, taken together can validly justify a conclusion despite no single element being compelling.
145. However, valid reasoning to a circumstantial conclusion depends on confidence in the existence of the underlying bits of the puzzle, or parts of the mosaic or strands of rope from which connecting inferences can be drawn. In the present case, restricting its consideration to the open materials, the Tribunal has concluded (a) BLBS did not share common views with those with whom he was asserted to associate; (b) his failure to have comprehensive plans about who he would meet and at which institution he would study in Yemen was not inconsistent with his claimed intention of looking to go there to undertake intensive Islamic studies; (c) BLBS ’s statements about his understanding of his religion in earlier interviews are not inconsistent with his positive assertion in the Tribunal that he would not choose to participate in militant jihad activities if he was permitted to travel overseas; and (d) that any inconsistencies in his accounts or reluctance to answer questions can be explained for other reasons.
Based on the above cases, and extracting what the Tribunal considers to be the essence of the approaches taken by the Tribunals in BLBS and CMHV and guided by the authorities referred to in those decisions, this Tribunal understands the process to be undertaken by it, standing in the shoes of ASIO, to be to:
(a)look at the evidence to determine the facts, which the Tribunal must be satisfied on the balance of probabilities are correct and relevant; and
(b)determine whether, from those facts, there are patterns or pieces of the puzzle which, when viewed as a whole, are sufficient to induce suspicion in the mind of a reasonable person that the Applicant would be likely to engage in politically motivated violence if he were to hold a passport.
The above process applies to both the review of the ASA and the review of the Minister’s decision to cancel the Applicant’s passport. The cancellation of the Applicant’s passport by the Minister under s 22 of the Passports Act following a request by ASIO as the competent authority under s 14(1)(a)(i) of the Passports Act, was the prescribed administrative action under s 35 of the ASIO Act for which the ASA was prepared and provided to the Minister’s department under s 37(1) of the ASIO Act. The review of the ASA by the Tribunal under s 54 of the ASIO Act therefore must be undertaken in light of the purpose for which the security assessment was prepared and, more particularly, in light of the requirements of s 14(1) of the Passports Act upon which the prescribed administrative action was based.
CONSIDERATION
The Respondents submit that the open evidence shows:
(a)the Applicant had access to substantial amounts of ISIL-related material which the Director-General submits is indicative of the Applicant’s strong interest in and support of ISIL;
(b)the Applicant has associated and continues to associate with individuals who adhere to extremist and/or ISIL-supportive ideology, including individuals who have travelled to fight in support of ISIL; and
(c)a lack of candour on the part of the Applicant when giving evidence in relation to these matters.
The Respondents identify categories of evidence in the open material that they say support their contentions. They are set out below.
Access to extremist materials
From the affidavit of the AFP Agent, the Applicant had 15,000 images containing ISIL propaganda and “abhorrent imagery” on the laptop and SD memory card seized on 15 June 2016 (see [41] above). Insofar as the Applicant says that these images were “synced” to his devices, the Director-General submits that the explanation is unconvincing in light of the fact that the SD card contained predominantly ISIL-related material and that if images were being synced to the Applicant’s devices without any input from the Applicant there would be a greater mixture of ISIL-related and non-ISIL-related material. The Director-General submits that the more likely explanation for the ISIL-related material being on the SD memory card and the laptop is that the Applicant sought that material out and accessed it.
The Applicant did in his oral evidence admit that he had viewed ISIL-related material through, for example, channels on Telegram, but claimed that it was for research purposes, and that he subscribed to Telegram channels to keep up to date with developments in the Middle East. In that regard the Director-General submits that that explanation is unconvincing given the sheer volume of material and the fact that it is almost exclusively ISIL-related material makes it unlikely that it is part of a general research exercise on the Middle East. Rather, the Director-General submits, this is evidence of a strong interest in and support for ISIL.
Images of the “Tawheed finger” and Shahada flag
The evidence of the ASIO Officer was that ASIO routinely sees the Tawheed finger in images of ISIL supporters and that the symbol has wide, global use among those supportive of ISIL ideology. The AFP Agent gave evidence of the widespread use of the Tawheed finger amongst ISIL supporters and the avoidance of the use of that symbol among “mainstream Muslims” because of its association with ISIL. The Applicant’s evidence was that its use was common amongst Muslims and was like the sign of the cross to Catholics.
The Shahada flag appeared in many of the photographs on the SD memory card and the laptop including on clothing worn by the Applicant’s fiancé and others with whom the Applicant has associated, including Sheglabo (see [35(j)] and [40(bb)] above). The Applicant agreed in cross-examination (Transcript, page 149) that he was aware that the Shahada is extensively used by extremist groups and those supportive of ISIL. Many of the images showing ISIL soldiers fighting show them flying or displaying the Shahada flag.
The Respondents submit that when the photographs of the Applicant and the others displaying the Tawheed finger and the Shahada flag are considered in the context of: (i) the other material on the laptop and the memory card; (ii) the Applicant’s concession that he was aware of the use of these symbols by extremist groups; and (iii) the closed evidence, the Applicant’s evidence that he believes that these symbols have no extremist connotations is unconvincing. The Tribunal also refers to [40(dd)] where the Applicant conceded that the photograph taken of a group of his associates standing in front of an ISIS flag was “a pretty stupid thing to do”.
The Applicant’s Associates
The Respondents point to the Applicant’s association with individuals identified as having extremist views or being sympathetic to ISIL. The open material identifies the Applicant as being associated with the following individuals:
(a)Safaa Allami - convicted of attempting to murder his brother reportedly for insulting the prophet Mohammed. The Applicant conceded in his interview with ASIO in March 2012 that he attended prayer meetings with Allami and has visited him in gaol;
(b)Amir Millson - travelled to Iraq/Syria and was killed fighting with ISIL. The Applicant said that he knew Millson through the mosque and had gone on fishing trips with him;
(c)Mohamed Sheglabo – pictured in numerous photographs found on the Applicant’s SD memory card and laptop, including photographs with Sheglabo displaying the Tahweed finger and wearing the symbol of Brothers Reviving Our Sunnah (BROS) group. The Applicant conceded in an interview that the BROS logo was similar to the ISIL flag. The Applicant also conceded at the hearing that he knew that Sheglabo was sympathetic to ISIL but did not think that he would join ISIL;
(d)Mohammed Junaid Thorne – Thorne appears in photographs found on the Applicant’s laptop and SD memory card. The Applicant attended prayer groups with Thorne. Thorne preaches extremist Islamic ideology. Thorne was convicted in 2015 of travelling under a false name reportedly to avoid detection by authorities;
(e)[Redacted] – he was arrested trying to leave Australia by small boat to join ISIL; and
(f)[Redacted] – arrested with [redacted] trying to leave Australia by small boat to join ISIL.
The Respondents submit that while the Applicant being associated with one or two of these people would not normally be reason for concern, the Applicant’s association with so many individuals who have extreme views or at least sympathy to ISIL and its ideology, gives rise to concerns as to the security of Australia or of a foreign country. This is particularly the case if these associations are viewed in light of the closed evidence.
The Applicant’s evidence
The Applicant gave evidence and was cross-examined on his associations with individuals whom ASIO consider have extremist views or who are sympathetic to ISIL, as well as on the material that was found on his laptop and SD memory card. The Tribunal did not find the Applicant to be a frank witness. His explanations for the material being on his laptop and on the memory card were unconvincing given the specific nature and the significant volume of ISIL-related images and material, totalling over 16,000 images.
The Tribunal also prefers the evidence of the experienced ASIO Officer and the AFP Agent that the use of the Tawheed finger is associated with extremist Islamic ideology and ISIL. The Tribunal notes the use of that sign by ISIL fighters in a number of the images that were on the Applicant’s laptop and SD memory card. The Tribunal does not accept the Applicant’s assertion that the use of the sign is not associated with extremism and that it is akin to a Catholic using the sign of the cross as asserted in paragraph 35(m) of the Applicant’s affidavit of 1 December 2017 (A3).
The Tribunal also finds that the Applicant attempted to downplay the depth of his association with persons of interest to ASIO. His evidence was evasive and inconsistent. The Applicant’s evidence in relation to his association with Sheglabo and knowledge of the extremist views held by Sheglabo is a good example. The following exchange took place under cross-examination (Transcript pp 147-148):
COUNSEL: Did you know before they went that they were going to do that?
APPLICANT: No, I did not know that they were going to fight in Syria and Iraq.
COUNSEL: And how did you become aware that they had been fighting with ISIL in Syria?
APPLICANT: Well pretty much, what I said to ASIO; after Sheglabo posted on Twitter, and it came on the media. That’s how most people had knew.
COUNSEL: So you became aware through the media that they were over in Syria or the region, fighting with ISIL, is that right?
APPLICANT: From Twitter and then the media.
COUNSEL: How did you become aware through Twitter?
APPLICANT: Well I used to be on Twitter and I had this account and one day I saw his…
COUNSEL: Whose account?
APPLICANT: Mohommed Sheglabo. So I just saw him posting photos one day, showing that he’s in Syria.
COUNSEL: And what was your reaction when you became aware of that?
APPLICANT: Pretty much surprised.
COUNSEL: Surprised?
APPLICANT: I did not know that he would end up being there.
COUNSEL: And were you concerned and alarmed to learn that he had ended up in Syria, fighting with ISIL?
APPLICANT: Yes, I was surprised and alarmed.
COUNSEL: And did you tell the Tribunal you had no indication or reason to believe that Mr Sheglabo was supportive of ISIL before you (sic) went overseas?
APPLICANT: Well according to what I had knew is that Sheglabo was supportive to the Muslims overseas being oppressed and he did speak about wanting to go and help the Muslims but he did not speak anything of trying to join ISIL and wanting to be a part of them, so.
COUNSEL: So do you tell the Tribunal you didn’t know he wanted to join ISIL or you did know that before he left?
APPLICANT: Yes, I did not know he was.
COUNSEL: You didn’t know?
APPLICANT: Yes.
COUNSEL: Did you know that he was supportive of ISIL before he left to travel overseas?
APPLICANT: No, I did not know.
COUNSEL: Are you quite certain of that?
APPLICANT: Actually, yes, I did know. Because I remember how he would show me videos of ISIL, but I wasn’t sure that if he was very – inclined towards ISIL. I thought maybe he was just sympathising by watching the videos or just like anyone would see what’s going on in the Middle East. So I couldn’t say he was an ISIL supported before because wasn’t 100 percent sure but there was signs indicating that he was.
COUNSEL: I suggest that what just happened, [Applicant], is you were initially going to advance evidence to the Tribunal that you did not know Mr Sheglabo was supportive of ISIL before he went overseas, but then you remembered you had given information to the AFP in an interview with the contrary and changed your answer, is that what happened?
APPLICANT: No. I’m – from my rememberance (sic) is that I couldn’t remember Sheglabo was in support of ISIL but then I just remembered how he would watch the videos. But even that, at that time I did not know he was very supportive until he actually went there.
The Tribunal agrees with the Respondents’ counsel’s characterisation of the Applicant’s evidence.
The classified evidence and materials
The truthfulness of the Applicant’s evidence must be assessed in light of all of the evidence before the Tribunal. That of course includes the closed evidence. While the Tribunal is limited in what can be disclosed as to its reasoning in respect of the closed material and evidence, the Tribunal is satisfied that on the basis of what is disclosed in the closed material, in conjunction with the open material, critical elements of the Applicant’s evidence cannot be believed. The Tribunal is satisfied that the Applicant has materially downplayed, if not directly misrepresented, the depth and nature of his association with certain individuals who are clearly associated with radical Islam and the promotion of politically motivated violence. In a case involving the assessment of whether there are reasonable grounds to suspect that a person would be likely to engage in conduct which might prejudice the security of Australia or a foreign country, the nature and depth of the person’s association with others known to hold radical views or to support politically motivated violence, some of whom have gone on to engage in politically motivated violence, is a material issue in the sense that that term is used in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. In that case at 209 Deane, Dawson and Gaudron JJ held that for a lie to be relied on to prove “guilt”, that lie “must relate to a material issue” and the telling of the lie “must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie.” (see also BLBS at [138]).
In the present case the Applicant must be taken to have appreciated the materiality of his various associations with certain individuals in assessing whether he posed a security threat. The Tribunal concludes that it was for that purpose that the Applicant deliberately lied about the nature and extent of his relationships with certain individuals in his various interviews with ASIO and AFP agents as well as in these proceedings.
DECISION
Based on the evidence, in particular the closed evidence, the Tribunal is satisfied that at the time that the ASA was undertaken by ASIO and furnished to the Minister, ASIO had reasonable grounds to suspect that if the Applicant were to hold a passport he would be likely to engage in conduct, namely politically motivated violence, and that that conduct might prejudice the security of Australia or of a foreign country. That justified the making of the ASA and the request by ASIO to the Minister under s 14(1)(a) of the Passports Act to cancel the Applicant’s passport.
The Minister’s decision to cancel the Applicant’s passport following the request from ASIO was therefore lawful and, in the circumstances, the correct and preferable decision. Further, based on the evidence presented to the Tribunal in both the open and closed material, the Tribunal is of the view that the suspicion set out in the ASA still applies and that there are at this time reasonable grounds to suspect that, if the Applicant were granted a passport, he is likely to engage in conduct, namely politically motivated violence, which may prejudice the security of Australia or of a foreign country.
Accordingly, the Tribunal affirms the decisions under review.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle, Senior Member R Cameron, Brigadier A G Warner
.....[sgd]...................................................................
Associate
Dated: 25 September 2018
Dates of hearing: 15, 16, 19 March and 21 May 2018 Counsel for the Applicant: Mr Nicholls, QC Solicitors for the Applicant: Legal Aid WA Solicitors for the Respondent: Australian Government Solicitor
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