ZXYM and Director-General of Security

[2019] AATA 2004

ZXYM and Director-General of Security [2019] AATA 2004 (19 July 2019)

Division:SECURITY DIVISION

File Number(s):      2018/4184

Re:ZXYM

APPLICANT

AndDirector-General of Security

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance
Deputy President B W Rayment QC OAM

Senior Member A Poljak

Date:19 July 2019

Place:Sydney

In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), it is decided that the adverse security assessment approved by the acting Director-General of Security as head of the Australian Security Intelligence Organisation in respect of the Applicant is affirmed.

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

Deputy President J W Constance

CATCHWORDS

NATIONAL SECURITY - adverse security assessment - danger to security of Australia - ideology in support of politically motivated violence - consuming and sharing extremist material online - supportive of Islamic State of Iraq and the Levant (ISIL) - recommendation for cancellation of Partner visa - decision affirmed

LEGISLATION

Australian Security Intelligence Organisation Act1979 (Cth) ss 4, 54

Migration Act 1958 (Cth) s 501(3)(b)

Administrative Appeals Tribunal Act1975 (Cth) ss 19E, 39A, 39B

REASONS FOR DECISION

Deputy President J W Constance
Deputy President B W Rayment QC OAM
Senior Member A Poljak

19 July 2019

1. These proceedings concern an adverse security assessment approved by the acting Director-General of Security as head of the Australian Security Intelligence Organisation concerning the applicant, who arrived in Australia in 2010 and who holds a Partner Visa (subclass 100) allowing him to remain permanently in Australia. 

2. The acting Director-General of Security recommended to the Minister for Home Affairs that the applicant’s visa be cancelled, and pursuant to s.54 of the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”) the applicant applied to this Tribunal for review of the security assessment.

3. The basis of the assessment was that the applicant presents an unacceptable risk of promoting politically motivated violence in Australia by dissemination and republication of online videos prepared by foreign extremist organisations, and that it would not be consistent with the requirements of security as defined in s.4 of the ASIO Act for the applicant to retain his partner visa.

4. The Minister did cancel the applicant’s visa pursuant to s.501(3)(b) of the Migration Act 1958 (Cth) and the applicant is presently in immigration detention.

5. The only parties to the review are the applicant and the Director-General of Security. This is consistent with s39A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The proceedings have been conducted in accordance with provisions of the AAT Act including sections 19E, 39A and 39B, and these reasons discuss issues which arose in the public section of the hearing, which the applicant attended.

6. ASIO assessed that the applicant is directly or indirectly a danger to the security of Australia because he likely holds an ideology in support of politically motivated violence, and consumes and shares extremist material online.  In particular ASIO assessed that the applicant until 2015 had been supportive of Islamic State of Iraq and the Levant (ISIL) and had posted ISIL propaganda online including on Facebook, had been supportive of Jabhat Fatah al-Sham (JFS) previously known as Jabhat al Nusra (JN) and of individuals who travelled to engage in the conflict in Syria, and was unconcerned about the tendency of extremist material which he published online to incite others to undertake an act of violence.  Both ISIL and JFS are proscribed terrorist organisations under Australian law.  In September 2014 ISIL released an audio message calling for attacks against a number of countries, including Australia, and against ‘disbelievers, whether civilian or military.

7. More recently, ISIL has suffered a number of setbacks, losing strongholds in Mosul, Raqqa and elsewhere.  Nevertheless, ASIO evidence suggested that the threat from ISIL-inspired lone actors and local groups will endure.

8. Both ISIL and JFS/JN are Sunni jihadist groups, the latter having been an al-Qa’ida affiliate in the past, although ASIO assesses that the linkages remain in place.

9. ASIO assesses that since 2012 approximately 230 Australians have travelled to Syria, Iraq and the region to join, train and fight for, or otherwise support Islamic extremist groups including ISIL and JFS/JN.  We were told that the decision of Australian and other Sunni Muslims to join such groups has been significantly influenced by propaganda published online.

10. ISIL has either claimed responsibility for, or been reliably attributed to a number of significant attacks outside Syria and in Europe or the United States since 2014 which resulted in multiple civilian deaths. In 2016 ISIL released an English language version of a magazine which contained an article calling for lone-wolf attacks in the West, including Australia.

11. The applicant was twice interviewed by ASIO staff.  The second interview of 6 March 2018 was recorded and the evidence led about it was not controversial.  The first interview of 29 November 2017 was not recorded and notes were made about it soon after the interview concluded.  The applicant challenges some of the notes. 

12. The first interview notes attribute to the applicant statements that included:

    (a)He hated the West and Western governments and believed it was legitimate to engage in attacks and fight against Western countries who were intervening in Syria and Iraq;

    (b)He did not believe in the killing of innocent civilians or citizens of the West outside Syria and Iraq;

    (c)He supported any group opposed to Syrian President Assad and the West and therefore supported both ISIL and JN.  He later clarified that he had not meant he supported ISIL  or JN but supported anyone who fought the Assad regime and the West;

    (d)His family in Jordan did not agree with his views and had been shocked about his beliefs;

    (e)He supported any individuals who travelled to engage in the conflict including one he met at a Toowoomba mosque and others whom he met online from the UK and the US and knew some people from Jordan who travelled there;

    (f)He had about 10 Facebook accounts in his real name, all of which had been shut down by Facebook due to his posting content;

    (g)The last account had been shut down in July/August 2017;

    (h)He had frequently viewed and shared ISIL videos via Facebook and YouTube because he supported ISIL and their activities;

    (i)He did not care if the content incited someone to violence as he believed it was a person’s own choice;

    (j)When told incitement of violence was against the law he said “yeah, but that’s Western law”;

    (k)He did not want to see an attack in Australia and did not agree with individuals who conducted attacks in Australia, but ultimately could not control what they did based on what they read online.

13. We received evidence given over the telephone from the ASIO interviewers who confirmed that the notes of the first interview were accurate.  The notes were made soon after the first interview and we treat them as the more reliable evidence of what was said, despite some evidence which casts some doubt on the notes from the applicant. 

14. The applicant told us that he does not hate Australia or its government, and that he is against the use of violence.  He said that he never believed in killing individuals from the West, or seeing them as legitimate targets. He stressed that he had never believed that killing civilians was justifiable and that it was against Koranic law.  Parts of the first interview notes which the applicant disputed include (f) above, in that the applicant said that he was not told any reason by Facebook as to why his accounts were shut down.  As to (e) he said that when he met the man in a Toowoomba mosque he did not know that the man intended to travel to Syria although he later found out that fact. In oral evidence he said that he stressed to the interviewers that he does not support violence and the transgression of rights by any political group against the general public.  He said that he travels to Jordan roughly once a year and that he has never had any interest or intention of joining or contacting any groups in Syria or Iraq or elsewhere.

15. In his second interview (the transcript of which was uncontroversial) the applicant was informed that the purpose of the interview related to his visa.  He said that he does not agree with the Australian government having troops in the Middle East.  He said he was with any group that fights the Assad regime, including Australia.  He said he used to support ISIL but he had changed his views about them. He watched almost all the ISIL videos.  He said he had shared those videos on Facebook. He said the attacks in France were ISIL’s retaliation for the French government’s activities in the Middle East.  He described the ISIL’s attacks as “not good, but these things still not as bad as what the West are doing in the Middle East”.  He said repeatedly that he was against killing civilians.  He said that his Facebook account was shut down because he posted too many graphic things on there.   He said he used to post beheading videos, and also a video in which ISIL boasted of the killing of a Jordanian pilot by burning him alive.  He also said that he and his wife had some intention or wish to go to Jordan in a few years’ time, and that he would not wish to take an oath required of persons who apply for citizenship in this country, because that oath might conflict with his faith.

16. Some of the remarks attributed to the applicant in the second interview are disjointed and difficult to understand.  However the interview transcript is readily understood about some matters. Without attempting to be exhaustive we refer to some matters in particular in the several following paragraphs.

17. It appears to us that he asserted that the reaction of those who read his Facebook posts is the concern of those persons rather than himself, and, in effect, he denied responsibility for any radicalisation that may have occurred as a result of his posts.

18. He expressed a great antipathy for Assad and referred to his regime killing innocents and to his antipathy for anyone, including the Russians, who supported him.  He said he had never met any Australians who supported the Assad regime.  He sought to make it clear that he used to support ISIL and seemed to admit that he shared the graphic videos because he then supported ISIL. He said that when he supported ISIL he looked for their videos using Google.

19. He said he did not wish to name the group of which he was the administrator.

20. He said that as an administrator he now deletes graphic images, like other administrators, because “we just don’t think it’s right to put these things on”.

21. In his statement of facts issues and contentions he said he had shared graphic videos in 2013-2015 and that it was wrong of him to do so.  He says he did not intend harm to any person when he shared those videos.  He says he stopped doing so several years ago because he now believes that the sharing of such videos is wrong.

22. He married in Australia and has several young children of his own and a step-daughter.  His wife who is an Australian citizen gave evidence before us as did his parents in law and others who know him and his family in their local area.  They (and particularly his wife, whose evidence impressed us) gave a good account of his behaviour, kindness to others, and good local reputation where he resides.

23. The oral evidence led by the applicant included that he used to be the administrator for the largest Islamic Facebook group in Australia, which had 30,000 members and that on the webpage he would delete or block graphic posts because he did not believe it was right to share.  In cross-examination he asserted that when he supported ISIL he had not studied his own religion as closely as he has now studied it.  He asserted that he has now changed.  He said that at one time he supported violent jihad. He suggested that his changing views had evolved over time and were still evolving now. He asserted that Western media outlets continually incite violence and racism towards Muslims.  He said that he once supported those who travel to join the conflict in Syria including ISIL and JN, and that he once watched and shared extreme material online, with little regard or concern.  He said that it remained his view that the Australian government should not be sending troops to the Middle East.  He said he disliked any government engaging in the conflict in Syria and Iraq.   He said in the second interview that the ISIL terror attacks in France were not good but that presumably what the West is doing in the Middle East is worse.  In oral evidence he said he could not compare the two, because in Iraq there was a war going on.

24. He said that among the videos he once shared were beheading videos and videos of ISIL killing people.  He suggested that he had now changed his mind about sharing videos, but that what he thought when he also watched extremist videos was that it was not his fault if they affected anyone who watched what he posted online.

25. He said that he did not agree with the West proscribing organisations as terrorist organisations. He said that he did not hate the West and loves his life here.

26. We heard from the applicant’s wife, who stated that the applicant has never broken the law, or harmed anyone with whom he has had contact in his locality, and has been respectful, kind and generous to others.  She told us that he is a good husband and father.  She said that he has great concern over oppression of civilian populations, in particular in Syria, Iraq and the Palestinians, a view shared by many others in Australia.

27. She stated that he does not agree with Australia, France or Russia being in the Middle East simply because it’s not their fight to fight. 

28. She stated that he has changed from his former extreme view after discussion with her and his family members and a friend in

    
    

    Jordan.  She noticed that after the change he seemed more relaxed and that she saw light from him after a pilgrimage in Saudi Arabia.  He began to read many beautiful books.

29. We gathered that if the applicant was removed to Jordan she would go with him, although it would mean leaving behind her daughter from an earlier marriage.

30. We heard from the wife’s parents who spoke well of the applicant and his general behaviour.  Her father knew little of the applicant’s online activities.  Her mother spoke of kindness shown to her by the applicant, and said he is now a lot happier than previously

31. Written statements from persons who know the applicant in his local area were also put before us, attesting to his good character.

    Consideration

32. Based upon the evidence called before us in open session, we would affirm the reviewable decision.

33. In the first place, this country presently has armed forces in the Middle East and it is distinctly possible that that state of affairs will continue.  Australia has contributed forces to overseas operations in the Middle East and fought alongside US forces and other Western forces. That it may do so in the future seems entirely possible.

34. Radical extremist organisations and groups are likely to oppose the present and future presence of Western troops in the Middle East and to call in publications including online publications for retaliatory action, including in this country.

35. The applicant also opposes the presence of Australian armed forces in Middle Eastern countries, and continues to do so.  Even though the applicant opposes the Assad regime in Syria, he also opposes the presence of Australian troops in Syria, even though Australia also opposes the Assad regime.  That is, the fact that Australia also opposes the Assad regime does not overcome the opposition of the applicant to the presence of this country’s troops in Syria.

36. In the past the applicant has been prepared to disseminate ISIL propaganda and radicalising online videos.  His expressed intention no longer to do so and the evidence of an apparent change in his attitude to extremist overseas organisations is difficult to accept as reliable because of his relatively recent past conduct, that is, according to his evidence, he last did so in about 2015.

37. Radicalising videos may lead vulnerable persons to engage in terrorist activity in this country.

38. The statement of the applicant that he cannot accept responsibility for the effect that his admitted former online communications have on others does not make us confident that he will no longer disseminate such communications and we are not confident in the light of his actions a few years ago that he will not again participate in such activity, directly or indirectly, for example as an administrator of an online group.

39. We would therefore affirm the reviewable decision on those grounds.

40. Laudable personal conduct, such as his wife described, including his loving conduct as a husband and father, do not gainsay the matters of concern to which we have referred. Our findings do not involve any finding that he personally may engage in acts of terrorism.

41. We have also written confidential reasons for decision dealing with evidence we received in the absence of the applicant covered by certificates issued under s,39A(8) of the AAT Act.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Deputy President B W Rayment QC OAM, Senior Member A Poljak

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Associate

Dated: 19 July 2019

Date(s) of hearing:	17 & 18 December 2018
Applicant:	In person
Counsel for the Respondent:	Paul Connor QC, Catherine Boston
Solicitors for the Respondent:	Australian Government Solicitor