Analysis
46 I have set out s 102.3 of the Code and the particulars of the basis upon which the respondent was sentenced above (at [26] and [42]). As I have already indicated, the respondent submitted that the Court should place great weight on the fact that she was not convicted of any act involving violence. She submitted that the assessment of the risk is primarily informed by the nature of the offence of which the person has been convicted (Booth v Khazaal [2020] FCA 1241 at [23] per Wigney J) and on the basis that the risk of the respondent committing a terrorist act was very low. In fact, at one point she submitted that the only risk was that she would become a member of a terrorist organisation. As will become clear, I do not accept this submission. Nor do I consider it relevant to inquire into whether the High Court took an expansive view of membership of a terrorist organisation in ordering the respondent's appeal against conviction be dismissed. It is the facts of the case that matter. For the same reason, it is unnecessary to analyse previous cases in which the Court has made a control order as the respondent urged in her written submissions. Furthermore, she pointed to the contents of an Operational Threat Assessment prepared by the Australia-New Zealand Counter-Terrorism Committee on or about 20 June 2019. That Operational Threat Assessment relates to the respondent and provided as follows. The potential risk posed by the respondent in regards to the commission of an act of politically motivated violence (PMV) within Australia, primarily South Australia, is "NOT EXPECTED". At the time of reporting and based on current intelligence holdings, there were no clear indicators of a threat. With respect to the respondent's intent to carry out an act of PMV in South Australia, both her confidence and desire level was assessed as "UNLIKELY". The point is also made that until the respondent is observed in the community, her commitment to an extremist ideology cannot be accurately assessed. The assessment provided that with respect to the respondent's knowledge and skills to carry out an act of PMV, it is assessed to be "HIGHLY UNLIKELY" and to have access to resources is assessed as "UNLIKELY".
47 For her part, the applicant emphasised two matters. First, she emphasised the fact that the respondent's interest in Islamic State and violent jihad was at an intense level and that the respondent was aware of the violence involved. Secondly, she emphasised the respondent's involvement with the group referred to as the Women in Mombasa and the activities of that group.
48 Before discussing those matters, it is necessary to consider the immediate circumstances of the respondent's attempted travel to Turkey. On 13 July 2016, the respondent booked a one-way ticket with Singapore Airlines to travel to Turkey, via Singapore on the next day. On 14 July 2016, the respondent attended the Singapore Airlines counter at Adelaide Airport, checked in for the flight from Adelaide to Singapore and obtained her boarding pass. The respondent did not check-in any luggage with Singapore Airlines. On her outgoing passenger card, the respondent stated that she was travelling to Turkey for seven days, and that the main reason for her overseas travel was a holiday. The respondent was prevented from boarding her flight by the Australian Border Force (ABF). During an examination of her carry-on luggage by ABF officials, various items were located, including an Australian citizenship document, $183 in cash, a printed accommodation booking, female clothing, including a 'niqab', black gloves and two black shirts and the Samsung S6. The respondent was carrying with her a handbag containing a power adaptor and plastic bag with toiletries. The respondent was arrested on 14 July 2016.
49 The applicant submitted that the Court should infer that the respondent's intention in attempting to travel to Turkey was to travel from there into Syria or some other area controlled by Islamic State, to support its activities in some way. The applicant submitted that that follows from the observations of the sentencing judge summarised above (at [26]) and that to the extent necessary, there is an overwhelming inference to be drawn as to the respondent's intention on the evidence before this Court. I note that such an inference was drawn by Charlesworth J in McCartney v Abdirahman-Khalif (No 2), although her Honour said that it was not necessary to make any conclusive findings as to the precise role the respondent would have played in the conflict zone had she succeeded in travelling to Turkey and, from there, into Syria (at [140] and [142]). In this connection, the respondent submitted that even assuming that she intended to go on to travel to Syria, it does not necessarily follow that there was any attempt or threat or suggestion of violence associated with that attempt or with that proposed travel. The respondent submitted that her decision should be characterised as a spontaneous act by a very young and immature youth who was in conflict with her mother and stepfather on domestic issues.
50 In my opinion, it follows from the circumstances of the respondent's attempted travel and, in particular, the extent to which her conduct was consistent with the advice contained in the blogs discussing travel to Islamic State territory she had accessed in the months leading up to her attempted travel (discussed below at [52]), that it was the respondent's intention to travel to Syria or some other area controlled by Islamic State and to engage with Islamic State in some way.
51 With respect to the first matter emphasised by the applicant then, the background as set out in the SOAF is that the respondent had the following communication devices: (1) an Apple MacBook Pro model A1278 laptop computer with serial number CPWL2PEYDTY3; and (2) between at least 23 November 2014 and 23 July 2015, an Apple iPhone 5 (the iPhone 5). The respondent replaced the iPhone 5 with a Samsung S6 Galaxy mobile phone (which is an Android based device) (the Samsung S6) in around May 2016.
52 Between 23 November 2014 and 23 July 2015, the respondent accessed on the iPhone 5 a number of blogs and a number of these blogs referred to violence and martyrdom. Although lengthy, it is instructive to set out the agreed facts with respect to the respondent's access to blogs between 23 November 2014 and 23 July 2015:
45. In the period between 23 November 2014 and 23 July 2015, the Respondent used the iPhone 5 to access blogs on a micro-blogging website called Tumblr. Tumblr is a social media application that enables users to publish, search, and access 'micro blogs' being short articles. Tumblr is an application which permits access to blogs on a very large range of subjects. Annexed to this Statement of Facts at Annexure A is a selection of blogs. For example:
45.1. On 23 November 2014, the Respondent's iPhone is recorded to have accessed a blog attributed to "Amir al-Mu'mineen Abu Umar al-Hussaini al-Baghdadi alQuraishi - First Emir of the IS". The blog discussed the beliefs of IS, particularly as it concerned Shia Muslims and others it considered to be apostates. It stated a belief that there was an obligation to kill "practitioners of witchcraft who are apostates and have become infidels". It further stated "We believe those who defend the Infidel/apostate rulers are also apostates, as are those who help them (rulers) with any type of defense or aid; such as clothing, food, medicine or anything else that can strengthen their position. So, his actions (helping apostate rulers) thus, will become the justification/reason for us to shed his blood (due to his apostasy)" and that "we believe that Jihad fisabilillah (fighting in the path of Allah) is an obligation upon every single Muslim in the effort to liberate occupied Muslim lands".
45.2. On 28 March 2015, the Respondent's iPhone 5 is recorded to have accessed a blog attributed to "Umm Uthman", a female resident in Al-Raqqa, Syria. The author stated that the blog was being made to "show you sisters how life is like here is [sic] dar al Islam and to prepare you as best I can". The post concluded "May Allah azza wa jal allow this blog to be a means of benefit to my sisters and to bring you here to the Islamic state to the true justice of Islam".
45.3. Later on 28 March 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which commenced, "Heres [sic] a list me and a group of sisters made of what you should pack on your hijrah to the Islamic state. May Allah bring anyone who is sincere here safe and well". The list included winter clothing, running shoes and boots, toiletries for a month, stretchable t-shirts to accommodate future pregnancies, makeup, torch or LED lights, hijab, niqab, 2 black skirts, undergarments, toothpaste, comfortable pyjamas and flip flops. The blog included advice to bring hand luggage only unless taking a direct flight, and to delete all Islamic content and Telegram from mobile phones prior to travelling. It said "Remember you will be running in your hand luggage across the border so be smart-you need back pack". Elsewhere it referred to transiting through Turkey and arriving in "Raqqa".
45.4. Later on 28 March 2015, the Respondent'siPhone 5 is recorded to have accessed a blog which commenced "Hijrah-what to bring if your going to study at the medical college (doctors needed)". It discussed what textbooks should be brought on hijrah and what would be provided at the college. It closed "Sisters stuck in dar al kufr hoping to come. Please make use of your time in studying medicine. I know its difficult being stuck home but renew your intentions and work hard the sake of Allah. Dawlah needs your commitment, especially sisters in the medical field".
45.5. Later on 28 March 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which discussed getting married before making hijrah and the accommodation for unmarried women who arrived in the IS territory. It observed that medical students could reside in a dorm.
45.6. Later on 28 March 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which discussed hijrah and setting up a home after arrival in IS territory, including the supply of food and a furnished apartment. It closed "Can you even imagine a state that cares so much for its people? Whose priority, spending, concern are you? This is the Islamic state and their concerns are the ummah".
45.7. On 2 April 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which recounted the female author's arrival in IS territory after crossing "the border" in a group of 17. It noted that all electronic devices were taken on arrival and observed "... you could be there for days to weeks with no communication with the outside word which is scary seeing as most parents still haven't been told where there [sic] child is". It stated "May allah take our souls as shuhada and put it in the bodies of green birds. Ameen. We met amazing sisters all different nationalities from 8oroccan to Australian to Indonesian in the maqqar".
45.8. On 7 April 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "written by Abu Usamah as-Somali", which discussed the obligatory nature of jihad and specified that this meant "going out and confronting the kuffaar directly; with one's wealth, which means spending on what is required for jihad such as weapons etc..." The blog contended that "it is obligatory for women to take part in jihad by means of their wealth if they have excess [sic] to wealth", and went on to state "For those who are unable to migrate to the IS but have the ability to support the Jihad and the Muhajireen. This is the next best thing you can do aside from striking the enemies in Dar al-Kufr".
45.9. On 8 April 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which discussed relationships with family after leaving them behind to make hijrah to the IS.
45.10. On 10 April 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which discussed marriage in "the State" between women who have made hijrah and the men who far outnumber them.
45.11. On 28 April 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "By Abu Sa'eed Al-Britani". The article opened "I felt that I should also give a glimpse into the lives of other Mujahideen here in Sham. These souls have gone forward and are now, bi ithnillaah, in the hearts of green birds". It recounted the author's recollections of jihadists in Raqqa and the surrounding region who had been martyred.
45.12. On 5 May 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "By Abu Sa'eed Al-Britani" discussing weaponry in the Sham. It commented "If you truly know the reward of killing a Kaafir, then you would pick up any gun and run towards the Kaafir with a smile of joy on your face".
45.13. Later on 5 May 2015, the Respondent's iPhone 5 is recorded to have accessed another blog "By Abu Sa'eed Al-Britani" discussing duties of soldiers in Sham, including their "vital role in ensuring the Caliphate does not decrease in size".
45.14. On 10 June 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which referred to an article written by "Journalist Huyssein Al-Maadidi ... About his trip to the Islamic State; his encounter with Islamic State mujahidin" which had been translated into English.
45.15. On 13 June 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which stated:
Know that in Jihad is the best in Dunya, Akhirah, and in leaving jihad there is a loss in Dunya
Do you await for us except on of the two best things
Meaning either victory or martyrdom leading to paradise, so whoever lives from the mujahidin lives an honourable life in Dunya.
45.16. On 17 June 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "By Abu Sa'eed Al-Britani" which discussed concerns which "sisters may have about coming to Sham". The blog purported to explain, amongst other things, that "Dawlah is a State which is expanding every week in a balloon-like fashion, and all the deaths, killings, bombs etc. happen on the borders of the State in our ribat points". 'Ribat' is a fortification built on a frontier.
45.17. Later on 17 June 2015, the Respondent's iPhone 5 is recorded to have accessed another blog "By Abu Sa'eed Al-Britani" which contained advice to the "Muhajirahs", wives to the Mujaahid. The blog advised Muhajirahs to understand that the life of a Mujaahid is stressful, stating that "The blood he sees, the body pieces he walks over on the battlefield, the friends he loses, the disrupted sleep he gets, all of this is sufficient to make anyone break... So when your husband returns from the front lines, do not burden him with complaints... Some brothers end up wishing they could go for a martyrdom operation after marriage due to the stress some sisters cause them. Do not be like this".
45.18. On 2 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "By Abu Sa'eed Al-Britani" which provided advice on preparations for travelling to Sham. The blog advised readers to save cash, although it also stated "however, even if you have nothing let this not be a reason to delay your hijrah and jihad as when the call to arms is made, you are required to come, whether light or heavy". The author further advised readers to learn "military first aid" (noting that "[t]here have been a few cases where some brothers bleed to death due to the brothers around them not knowing the correct procedure on how to deal with injuries"), keep fit, learn Arabic, not overburden themselves with baggage and that "Once you arrive in Turkey airport, you need to get out and moving to your next destination as soon as possible as the Turkish police are arresting those who look suspicious. Being lightly packed helps here especially if you look like any other tourist. Furthermore, when crossing the border between Turkey and Sham, it can be somewhat difficult if you have extra baggage to run with". Winter clothes were recommended. It noted that "the souk of Raqqa has almost everything you need". The 'souk of Raqqa' is a market in the Syrian city of Raqqa.
45.19. On 16 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which discussed life with IS. The blog stated, inter alia, "When I arrived in Sham in February last year, I was so happy and believed that Allah had finally answered my prayers and I felt safe" and that "Living in the Islamic State. My family accepted my decision. Married to a Mujahid. Blessed with a child".
45.20. On 19 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which concerned an "Islamic State fighter (originally from Saudi Arabia) singing a nasheed". The blog stated, inter alia, that "this brother attained martyrdom few days ago".
45.21. On 22 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog containing "a list of things to bring if you are planning to make hijrah soon". The list includes winter clothes, boots, hat, scarf and undergarments. The blog noted that "if you are Somali you know what a baati is (light house dress)". It also listed medications, and "at least one jihab in your suitcase and one in the bag you are carrying with you once you are about to cross, preferably in black". Under the heading "Electronics", the blog recommended "Android Phone (No Apple. No iPhones/iPads/Macs etc they aren't allowed here so sell them beforehand" a portable charger (solar and rechargeable) and other items. The blog stated "If you are planning hijrah on your own it's best to be as discrete as possible, even if you think you can trust someone. It is best to wait until you actually reach until you break the news if that's what you decide" and recommended readers to "Avoid searching things from your home wi-fi and devices you plan to bring, this way you have nothing that can be held against you in the case you were caught".
45.22. Later on 22 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog addressing "sisters who keep asking questions regarding life in the Islamic State". The blog provided answers to questions including "what will happen after I reach Turkey?" and "What happens next after I cross the border?".
45.23. Later on 22 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog which contained further advice regarding hijrah. It provided advice under headings such as "Keep it Secret", "Delete Everything" (under which it advised to "Just delete all the nasheed, videos, pictures, messages etc"), "Travel Route", "What to Pack" and "Don't contact your family until you have crossed the border".
45.24. Later on 22 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog from a woman in IS territory which was addressed to women who remain in "Dar-ul Kufr". 'Dar-ul Kufr' means land not governed by Islam.
45.25. Later on 22 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog "By Abu Sa'eed Al-Britani" entitled "Why should a Muslimah migrate to Sham". The blog called for women to undertake hijrah as an obligation and to preserve their dignity. The blog stated:
...by migrating to Sham you are not just benefitting yourself but you are also benefitting the Islamic State in its expansion and advancement. By raising your kids here, you are increasing its population and hence creating more Mujaahideen of the future. A society cannot survive without inhabitants and just by you living in Sham you are helping its economy grow.
45.26. On 23 July 2015, the Respondent's iPhone 5 is recorded to have accessed a blog concerning Sharia law, IS and the punishments prescribed for various religious offences including death.
53 A significant amount of Islamic State material, or material relating to Islamic State, was found on the Samsung S6 when it was seized on 14 July 2016. This included videos "depicting executions, including a video of IS child soldiers executing prisoners and giving the one finger salute" (SOAF para 56).
54 Furthermore, on 22 September 2016, the Joint Counter Terrorism Team again seized the Samsung S6 and its contents were again examined. Analysis revealed approximately 300 audio files containing information purporting to be on behalf of Islamic State and also Nasheeds were stored on the device. It is an agreed fact that the Samsung S6 had been used to access a number of images and videos, including:
104.1. A video depicting what purport to be IS fighters performing a one-fingered salute, wearing combat fatigues, using military-style weapons and beheading and whipping prisoners. See Annexure D: still images taken from that video.
104.2. An image depicting London Bridge, Westminster and Big Ben in London with the following words superimposed in the foreground: "Britain is a nation of pimps and prostitutes. Soon it will rattle, crumble, and fall to its knees at the hands of the Muslims. Abu Mutassim". See Annexure E: a copy of that image.
104.3. A video depicting images of people holding signs which state "release all Muslim prisoners", persons arrested and in the custody of Australian police and some with text stating, "Westerners need to accept the fact that Islam will dominate all lands it touches! The holy quran teaches us that where we put our feet we shall rule that land, it's that simple!". See Annexure F: still images taken from that video.
104.4. A video depicting scenes of what purport to be IS fighters holding a grenade launcher and using other military-style weapons, a tank, fighters performing the one-fingered salute, prisoners on their knees about to be killed by fighters wielding large knives, and a quote from Abu Bakr Al-Bahgdadi stating: "So glad tidings o ummah of Islam and expect good, for your sons from the soldiers of the Islamic State today are stronger and more determined by Allah's favour". See Annexure G: still images taken from that video.
104.5. A video depicting scenes including a deceased male persons with the words "despair not o'my brothers, I am a Shaheed (martyr)" superimposed, and a green field with the words "to give victory to my faith, and when my blood is spilling is a glad tiding of the approaching Shaheed". See Annexure H: still images taken from that video.
55 The nature of Nasheeds is the subject of an agreed fact. The fact is as follows:
26. Islamic groups (including, but not limited to, persons purporting to speak for and/or represent IS) have used a musical form of Arabic poetry, essentially chants, which are known as Nasheeds since the 1970s. There are categories of Nasheeds, including (i) battle hymns (ii) martyr hymns (iii) mourning hymns and (iv) praising hymns.
56 I referred earlier in these reasons to Mr Warwick's evidence. I will not summarise it in full. The extreme nature of the violence shown in some of the videos may be illustrated by the description in para 46 of Mr Warwick's affidavit of a video accessed by the respondent:
The video is of 14 minutes and 18 seconds total duration and commences with the title "Halab". I would describe what is depicted in this video as follows. It features French IS fighters and predominantly is aimed at the French government and people from an IS perspective. … From 3 minutes duration images of IS fighters engaged in combat and multiple deceased persons are shown. … At 7 minutes and 30 seconds duration a young boy about 10 years old wearing camouflage and a beanie is shown firing an AK47 in a field. A younger boy about 8 years also fires the AK47. Both boys then give the 1 finger salute. … Footage of combat follows and then the young boy is talking to the camera, shooting his AK47 and giving the 1 finger salute. At 12 minutes and 30 seconds duration the footage shows a shooting range where the targets are various world leaders including Barack Obama. The young child then shoots the world leader targets in the head. From 13 minutes and 15 seconds duration footage is shown of 2 male captives in orange jumpsuits in a forest. The title is "Soldat de l'armee nosairite" which translates via Google translate to "soldier of the Nosairite army". The young IS member (10-12 years old) approaches them together with a younger IS male child (approx. 8 years) with an adult IS member. They are dressed in all black with black beanies. The adult IS member hands both the children black handguns. At 13 minutes and 53 seconds duration the two children lift their handguns and take aim at the two captives' heads. At 14 minutes duration the two young children fire their handguns into the head of the captives and execute them. This is captured in high definition and close up. The footage then shows the blood soaked corpses of the captives as the two IS children walk away and the video ends.
57 As I have said, the second matter which the applicant emphasised was the activities of the group known as the Women in Mombasa and the respondent's association with that group. Those matters are the subject of agreed facts. Three women carried out a terrorist attack in Mombasa, Kenya on 11 September 2016. The respondent's communications with those women, including communications in the immediate aftermath of the respondent's attempted travel to Turkey, are described in the following agreed facts:
57. By around 3 May 2016, the Respondent was in a 'chat group' with 3 young women in Mombasa, Kenya named Tasnim Farah (Farah), Maimuna Hussein (M. Hussein) and Ramla Hussein (R. Hussein) (the Women in Mombasa).
58. The Respondent communicated with the Women in Mombasa using Telegram and WhatsApp.
59. Contacts stored in the Samsung S6 Galaxy mobile phone (which is an Android based device) Telegram account included the Kenyan telephone number of each member of the Women in Mombasa.
60. In their communications, the Women in Mombasa used nicknames or "kunyas". The kunya and phone numbers of the 3 were:
60.1. 'Moon' and +254772905374 for M Hussein. The number, '254772905374', was subscribed to M. Hussein.
60.2. 'Bint Lovely' and +254737258344 for R Hussein, although the number, itself, was subscribed to Farah.
60.3. 'Bint Sweety' and +254737968344 for Farah. The number, '254737968344', was subscribed to Farah.
61. On 11 September 2016, all 3 of the Women in Mombasa (with whom the Respondent had been in a 'chat group') were killed whilst carrying out an attack in Mombasa, Kenya (see [89]-[97] below).
62. In the course of her electronic communications via the Telegram application the Respondent used various kunyas for herself including 'Umm Baraa', 'Umm Al-Baraa' and 'Umm Baraa Somaliah.'
63. Between 3 May 2016 and 18 July 2016, the Respondent called (or attempted to call) M. Hussein and M. Hussein called (or attempted to call) the Respondent. There were at least 10 calls (or attempted calls) over that period.
64. From about 5 May 2016, the Respondent also used the Samsung S6 and Telegram application to participate in a private chat group named 'Baqiyaa Sisters'. This chat group had 4 members, 3 of whom were: the Respondent (using the kunya 'Umm AlBaraa') R. Hussein and Farah.
65. Between 15 May 2016 and 24 May 2016 the Respondent used the Samsung S6 and Telegram application to participate in another chat group named "Naughty Sisters". This chat group had 4 members, 3 of whom were: the Respondent, R. Hussein and Farah.
66. . Material posted to the "Naughty Sisters" chat group included a video called "Mujahideen Moments" from the Somalia and Kenya based Islamic Extremist group AlShabab. The video depicts persons calling for the creation of an IS in Somalia and Kenya. It also features sermons by Sheik Aboud Rogo, a deceased Mombasa-based extremist. In another IS video shared on the "Naughty Sisters" chat group it depicts several women shared their experiences of living in IS controlled territory.
67. The profile picture used by each of Farah, M Hussein and R Hussein on Telegram was a photo of Abu Omar al-Shishani, a former Minister of War for IS.
68. In a police interview on 8 February 2017, the Respondent described both Farah and M Hussein as friends.
69. On 15 May 2016 the Respondent participated in a conversation in the "Naughty Sisters" chat group which included discussion regarding the Nasheed 'Qariban' …
70. On 23 May 2016, a video titled 'Mujahideen Moments' was forwarded by the Respondent so that it was visible in the "Naughty Sisters" chat group. The video purports to be from the group known as Al-Shabab, and calls for the creation of an IS in Somalia and Kenya, and attacks against the 'kuffar'. It features scenes depicting deceased persons, weapons and locations in Mombasa. It also features sermons by Kenyan based ideologues and images of Mombasa, Kenya.
71. On 15 May 2016 the Respondent's Samsung S6 is recorded to have accessed a document entitled "A Message to the Supporters of the Islamic State", which states:
Islamic State supporters online have exceeded the tens of thousands. However, a great number of them only watch video releases and follow the news
To those I sent this message: Supporting brother, you are a part of the Islamic State media on the Internet don't be a liability by just watching videos and following only, but learn how to upload, share, transcript, translate, program and work towards having an impact on the ongoing war against the disbelieving Crusaders.
Just as a society, Islamic State supporters include very diverse people with different skills and abilities. use what you know to do best to support the Islamic State. If you don't, learn how to download / upload releases, get the know-how to be an efficient supporter.
Ask yourself: what have done to support the Islamic? Are you here to effectively support the Khilafah or to spend your free time? Supporting the Islamic State is by work, not by sitting watching idly. Leave the laziness of excuses and ask yourself what can you do to support the Mujahideen who defend the honour of the Muslims, facing the nations of Kufr and disbelief, giving their blood in battles in the east and the west?
72. On 23 May 2016, in the "Naughty Sisters" chat group, a still image was posted of a woman dressed in all black pointing her index finger toward the ceiling. Subsequent analysis revealed this still image was similar to that depicted in a video also located on the Samsung S6.
…
84. On 15 July 2016, the day after her attempted departure from Australia, the number apparently used by M. Hussein (+254772905374) sent a cartoon image of a crying child to the Respondent. On 17 July 2016 two further messages were sent from the same number saying 'I miss you.'
58 The terrorist attack carried out by the Women in Mombasa is described in the following agreed facts:
89. On 11 September 2016, the 3 Women in Mombasa (with whom the Respondent had communicated via a 'chat group') were killed whilst carrying out an attack in Mombasa, Kenya. On that day, at around 10.30am, the 3 Women in Mombasa, each wearing a hijab, entered the Mombasa police station in Kenya. One of the officers requested they remove their hijabs. Two of the women complied with the request.
90. The women were armed with knives and carrying petrol in containers. Shortly after entering the station one of the women stabbed a police officer and wrestled with him whilst she attempted to remove his firearm from his holster. The other women doused the police station with petrol and set it alight, causing a large explosion.
91. Throughout the course of the attack the 3 women were heard to shout, in Swahili, "Allah Akbar", "Unbeliever", "We have come to kill you non-believers", "Infidels, we will finish you all", "Infidels, we will kill you", and "Kill me or I will kill you."
92. The 3 women died at the scene. Two of them were shot dead by police officers and the third died from complications from burns she sustained from the fire.
93. Two of the women were identified as sisters, M. Hussein and R. Hussein. The third women was identified as Farah.
94. Farah was observed to be wearing a wrist band with the word 'Baaqiyah' printed on it.
95. In the days following the attack a handwritten note written by M. Hussein was published on Twitter account @nidalgazui with the title, "The letter of 3 women who attacked yesterday Kenyan's Central Police Station, Pledge Allegiance to #ISIS".
96. The handwritten note contained the names "Umm Maysarah, Umm Ma'bad, Umm Sa'ad" and included the following text:
A Message to the Kuffar: We say to you, O filthy ones, 'Indeed, we are disassociated from you and from whatever you worship other than Allah. We have denied you, and there has appeared between us and you animosity and hatred forever until you believe in Allah alone.' By Allah, peace and security will only be wishes for you, especially when you've taken it upon yourselves to fight and oppress the true Muslims. You expect to live in peace while you kill us and fill your prisons with our brothers and sisters? Know that the Islamic State soldiers are everywhere and by Allah, we will take revenge. Even if it takes a while, we will take revenge.
97. The attack was later claimed by persons holding themselves out as representing ISIS in the publication Rumiyah, under the heading 'A Message from East Africa'. The article included the text set out in paragraph 95 above, as well as the following editorial comment:
If there are any men of this Ummah, who have not yet taken their stand against kufr by waging jihad for Allah's cause and who truly care about fulfilling their duties to their Lord, they must march forth without delay. They can take their example from the countless thousands of men who have sacrificed themselves for Islam throughout the ages, or they can take a lesson from their courageous sisters. These men can learn what it means to be sincere to Allah by reading the last testament of their sisters in Kenya who have joined the ranks of the shuhada - we consider them so, and Allah is their judge.
The respondent was very interested in the attack. The agreed facts continue as follows:
98. The day after the attack referred to at paragraphs [89]-[92] above, the Respondent used the Samsung S6 to access online news reports through the African news site 'Widh Widh online news'. The news reports included reports about the attack.
99. On 16 September 2016, the Respondent used the Samsung S6 to access online news reports through the African news site 'Widh Widh online news'. The news reports included reports about the father of the Mombasa attackers wanting to bury his daughters.
100. On 22 September 2016, the JCTT executed a search warrant at the Respondents residence. Police located, amongst other things, a binder book titled "Umm Baraa :) Year 2016 Subject: Sahaba Book, School Baqiya", one page of which contained a series of handwritten telephone numbers including Kenyan country code +254, some of which were scribbled over. The scribbled over numbers included the numbers for each of M Hussein, R Hussein and Farah. In a police interview on 8 February 2017, the Respondent told police that the numbers were written down in her exercise book so that she could save them into her phone when it was replaced.
59 In the period following the terrorist attack by the Women in Mombasa, the respondent, rather than recoil from any further involvement in Islamic State, continued to involve herself heavily in Nasheeds and reciting statements referring to violent jihad. During this time, the respondent was also recorded (by listening device) as discussing with her brother the application "Kik", during which she referred to having "deleted the messages".
60 The applicant asked the Court to infer that the respondent knew of the proposed terrorist attack by the Women in Mombasa. If the Court is not prepared to draw this inference, then in the alternative, the applicant submitted that in making the risk assessment required in this case, the Court should take into account that the respondent may have known of the proposed terrorist attack. The respondent submitted that the evidence with respect to her communications with the Women in Mombasa was not strong enough to create a sufficient link between those communications and some suggestion that the respondent knew of a specific terrorist attack or of the attack that the Women in Mombasa were proposing to make. She submitted further that if she was viewing an African news site then it may well be that in the course of viewing that general African news site, a story about the Mombasa attack would have come up. The evidence does not rise high enough, the respondent submitted, to enable a finding that the respondent went out and sought specifically the news story about the attack.
61 In my opinion, an inference should be drawn, on the basis of the nature and extent of the respondent's communications with the Women in Mombassa (above at [57]) and the evidence that the respondent accessed multiple reports about the attack carried out by the Women in Mombassa (above at [58]), that the respondent had prior knowledge of the attack. It is not necessary to consider making any additional finding such as the finding made by Charlesworth J in McCartney v Abdirahman-Khalif (No 2) that the respondent subjectively considered herself to be in a position to influence the timing of the attack (at [143]).
62 The applicant relies on comments the respondent was recorded (by listening device) as saying after voluntarily attending an interview with investigators from the Joint Counter Terrorism Team on 8 February 2017. Agreed fact 124 is as follows:
124. The parties agree to the following facts, but the Respondent does not accept their relevance. Inferences to be drawn are a matter for submissions:
124.1. After the interview with the JCTT on 8 February 2017, the Respondent was recorded on a listening device in a conversation with her mother and brothers in which she discussed the police investigation.
124.1.1. That transcript records that in a discussion with her mother and brother about whether she should get a lawyer, the respondent said 'Lawyer needs to be told the truth, these men already have the truth of the matter, what do I do? and then a bit later 'What will a lawyer do for me! Say okay, I get a lawyer, he will ask me to tell him my case, tell him everything, is it true what these guys are saying, if it's false, I need to tell him something, what do I tell him? What these guys are saying is true':
124.1.2. She also said 'When they searched my phone, they took those things like pictures, videos, many videos, ISIS videos slaughtering white'.
To my mind, it is not immediately obvious what the respondent is saying in this passage and so I put it to one side.
63 The remarks by the judge who sentenced the respondent for her criminal offence are to the effect that the respondent committed the offence of which she was convicted between about 14 July 2016 and 23 May 2017. The respondent relies on the fact that that is now some time ago. In addition to this circumstance, the respondent relies on the following matters. First, during her incarceration in the Adelaide Women's Prison, the respondent was a quiet person and a model prisoner (SOAF para 145) and she asserts that she has never acted violently and the AFP has no evidence to the contrary (SOAF para 146). Secondly, the respondent asserts that she has not corresponded with any person referred to in the then Control 10 since her release from custody on 31 October 2019 and the AFP has no evidence to the contrary (see now part of Control 6). Thirdly, the respondent has taken a number of voluntary steps towards her rehabilitation and her assimilation back into the community. The respondent has been participating in the YIIP since 15 May 2019, has made progress towards obtaining her driver's licence, has taken steps to resume her tertiary studies, and whilst in custody at the Adelaide Women's Prison, undertook the following programs: (1) a four week life skills program; (2) the Flinders "ACCEPT" Program; (3) the "Peace Education Programme"; and (4) the "FoodREDi Program" (SOAF paras 156 to 159). Fourthly, with respect to the ICO made on 22 November 2019, the respondent proactively complied with the order and with respect to the first confirmed control order, the respondent has proactively complied with that order (SOAF paras 165 to 166). Furthermore, the respondent asserts that she has never engaged in any conduct in contravention of the terms of the first ICO, or the first control order, and the AFP has no evidence to the contrary (SOAF para 167).
64 In addition to the fact that she has not engaged in violence and has taken steps towards her rehabilitation, the respondent relies on the fact that her passport has been cancelled. It is an agreed fact that on 19 August 2016, the Joint Counter Terrorism Team served the respondent with a copy of a passport cancellation letter that had been issued by the Department of Foreign Affairs and Trade. The letter, which was dated 19 July 2016, advised the respondent that under s 22(2)(d) of the Australian Passports Act 2005 (Cth) (the Act) the Minister for Foreign Affairs had cancelled the respondent's Australian passport and that the decision to cancel her passport was made on the grounds that, pursuant to s 14(1)(a)(i) of the Act, the Director-General of Security suspected on reasonable grounds that if an Australian passport were issued, the respondent would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, and that the respondent should be refused an Australian passport in order to prevent her from engaging in the conduct (SOAF para 88).
65 The respondent also relied on the insight and remorse shown in, for example, her letter to the Parole Board dated 22 November 2020 and in Ms Chapple's Rehabilitation Summary Report dated 5 August 2019 and the counselling she has received from Dr Nadia Ibrahim, a person appointed by Correctional Services.
66 In addition to the absence of a passport, the respondent submitted that the applicant or the AFP had adequate powers to obtain warrants in relation to premises or to a person under s 3ZZOA and s 3ZZOB of the Crimes Act 1914 (Cth). In other words, there was a less intrusive means of eliminating or containing the risk and that is relevant to the proportionality analysis. Furthermore, the respondent submitted that the procedure of obtaining a monitoring warrant has the safeguard that the issuing officer must be satisfied of the statutory preconditions to the issuing of a warrant.
67 The presence of this procedure is relevant to the task I am carrying out by reason of s 104.4(1)(d) of the Code. However, it has not dissuaded me from the conclusion that all of the controls should be imposed. In my opinion, the risk is sufficiently significant to warrant the applicant or the AFP having the ability to take immediate action directly under a control order.
68 In support of the order, the applicant relied on two matters which she submitted were important. First, the applicant submitted that the respondent has at no time made full and sensible admissions as to the circumstances surrounding her offending. This is established, so the applicant submitted, by the responses given by the respondent during two interviews of her by the authorities and the evidence of the health professionals and others involved in her rehabilitation. Secondly, the applicant submitted that the evidence supports the conclusion that the respondent is a vulnerable person and particularly susceptible to undesirable influence and persuasion. This is established, so the applicant submitted, by the respondent's association with the Clavell family in addition to the evidence of the health professionals and others involved in her rehabilitation. I accept both of these matters.
69 Dr Loraine Lim is a psychologist. She prepared an extensive report dated 1 November 2018 with respect to the respondent. Although this is some time ago, the report is detailed and instructive. In terms of the respondent's presentation and behaviour during Dr Lim's assessment, Dr Lim noted a pervasive reluctance on the respondent's part to engage with the assessment process, except on a superficial level. Dr Lim noted that in relation to discussions about her alleged offending behaviour, she continued to present as somewhat dismissive and evasive, in a manner consistent with her documented communications with members of the AFP when she was interviewed on 14 July 2016 at the Adelaide Airport. In discussing her internet activities and, in particular, her interactions with Maimuna Hussein, Dr Lim noted that the respondent denied being aware of Maimuna's extreme ideologies or the fact that she might have been a member of a terrorist organisation until after Maimuna was killed during the course of committing an act of terrorism in Kenya in September 2016. Dr Lim asked the respondent why she had purchased a one-way ticket to Turkey. The respondent replied that she was naïve. She had watched a lot of aid videos on Turkey and Syrian refugees and she wanted to go and help these people. She felt sorry for them. She knew her mother would never let her go. She argued with her mother. She just needed to find some aid workers when she got to Turkey and would be "okay". With respect to her activity of watching or listening to Arabic-based rhetoric online or reciting Arabic passages out loud in the past, the respondent asserted that "there is no understanding behind it… I only say those things because I like how Arabic sounds out loud". I do not accept these statements.
70 Dr Lim expressed the opinion that the respondent's radicalisation had occurred against "a backdrop of social and emotional isolation, immaturity and naivety, as well as her experiences of a series of familial and psychosocial stressors between the period of mid-2015 to mid-2017". Dr Lim diagnosed as likely an adjustment disorder with mixed anxiety and depressed mood at the time.
71 Dr Lim expressed the view that the respondent's persistent rejection of the charges that had been filed against her was due to her lack of insight into her psychological vulnerabilities and the absence of any understanding on her part that she had been a victim of grooming by some of her online peers, in particular, Maimuna. Dr Lim noted that even after the respondent realised that the Women in Mombasa were terrorists, she persisted with her radicalisation because of "the disconnect between her interpretation of her own motivations for engaging in some of those violent materials versus her lack of understanding of the grooming process that was occurring".
72 Dr Lim did not consider the respondent a dangerous person inherently predisposed to committing acts of violence. She gave her reasons for reaching that view. She stated that, in her opinion, the respondent is capable of empathy and feelings of guilt and remorse. Dr Lim considered that November 2018, or thereabouts, was the optimal time to offer the respondent the personally relevant rehabilitation she needed to maintain her ongoing disengagement from her radical ideologies.
73 Ms Chapple met with the respondent at the Adelaide Women's Prison on 14 occasions between February 2019 and July 2019. She noted that the respondent failed to acknowledge the incriminating aspects of her offending. However, the respondent showed greater willingness to address her risk factors, including social isolation and inappropriate online communication. Ms Chapple said that future intervention should keep these risk factors in mind. A point of note is that Ms Chapple suggested future measures which would eliminate opportunities for others to groom the respondent.
74 In her memorandum dated 12 January 2021 and by way of summary of the key points from the Individual Development Plan and VERA-2R Panel Review, Ms Roesch noted that the respondent provided minimal new information at her most recent interview, although she had engaged in greater discussion compared to her 2019 interview:
She still minimised her index offending and denied that she was guilty of being a member of a terrorist organisation. It appeared that she was hesitant to discuss varied factors linked to her offending and focussed her discussion on her view that she was socially isolated and was utilising social media to relieve stress. She reported that she was vulnerable and naïve, was "easy to approach", did not understand the gravity of the situation and justified her offending behaviour on this basis. She avoided topics that deviated from this (i.e. why she pledged allegiance to IS, planned travel to Turkey etc.). Ms Abdirahman-Khalif did not provide any further information in relation to her ideology or how she was radicalised, as she denied that this occurred, stating that she was "not a terrorist".
75 Ms Roesch said that the respondent's overall risk assessment had not changed from being moderate on a 3-point scale and moderate-low on a 5-point scale. However, she had continued to display no remorse or insight in relation to her offending and had continued to present with no empathy in relation to the victims of the offences committed by violent extremists. Furthermore, she had continued to minimise, justify and deny various aspects of her offending.
76 The respondent's minimisation of her offending is identified in the parole reports dated 9 July 2019 and 21 October 2020. The respondent minimised her involvement in the offending in her discussions with Mr Young on 25 February 2021 stating, for example, "that there was no IS involvement, to her knowledge, in regards to her travel to Turkey" and "she did not have an in-depth knowledge of Islamic faith and was naïve in the sense that she considered everything she consumed about Islam on facebook and telegram was legitimate". The respondent conceded that Islamic State propaganda may have been present in her social media consumption, but said that at this time prior to her flight to Turkey "she did not identify a difference between extremist and mainstream narratives of Islam on telegram at the time - due to an ignorance around Islam". Again, I do not accept these matters as truthful.
77 A more recent indication of the respondent's personality profile and traits is provided by the Personality Assessment Summary dated 12 March 2021 relating to the respondent and exhibited to the affidavit of Ms Grech. Ms Grech deposes that a Personality Assessment Summary is prepared to summarise the results of one or more personality assessment tools undertaken by an offender and to outline what the results mean in terms of the offender's personality profile. Relevantly, the contents of the Personality Assessment Summary prepared in relation to the respondent overlap with and reflect the earlier conclusions drawn by Dr Lim in terms of the respondent's vulnerability to outside influences and grooming. It is convenient to set out in full the summary of the respondent's assessment:
Ms Abdirahman-Khalifs MCMI-IV profile echoed mostly that of a dependent personality who is interpersonally submissive (i.e., a submission to stronger, nurturing persons, without whom they may feel anxiously alone and helpless) and expressively puerile (i.e., characteristically withdrawn, docile and passive, displays few functional competencies and avoids self-assertion). Her responses also reflected that of an avoidant personality type, that can be interpersonally aversive (i.e., socially anxious, avoidant, and distrusting) and a personality style that can be melancholic (i.e., inclination towards pessimism) and turbulent (i.e., prone to manic like patterns that can lead to depression and exhaustion). Also embedded within the context of the identified personality patterns were the clinical syndromes relevant to generalised anxiety (i.e., an apprehensive sense that problems are imminent, an excessive alertness to one's environment, and a generalised state of tension and edginess) and post-traumatic stress (i.e., reexperiencing of traumatic events with associated anxious arousal, hypervigilance and avoidance of triggers). These syndromes tend to be transient states that wax and wane over time and are often precipitated by external factors. Ms Abdirahman-Khalif engagement in the YSQ-L3 also demonstrated various potential maladaptive schemas, including emotional deprivation, failure to achieve, self-sacrifice, and subjugation.
78 It is necessary then, to consider the evidence of the respondent's association with the Clavell family. Although it was the respondent who ceased the correspondence and she did so after becoming aware of the criminal history of the Clavell family, I accept the applicant's submission that there remains a concern that the respondent through her conviction for a terrorism-related offence, has come to the attention of persons such as the Clavell family who may, and in this case did, seek to make contact with her. That is significant when considered alongside the findings I make as to the respondent's personality profile and traits, namely that she is a vulnerable person susceptible to destructive influence. I note that Charlesworth J put the matter thus in McCartney v Abdirahman-Khalif (No 2) (at [147]):
By replying affectionately to the correspondence, the respondent made it known that she was amenable to further communications. The latter correspondence and money orders from the Clavell family must be viewed in that light. It is not correct to say that they were unsolicited.
I agree with that observation. It is unnecessary to decide precisely when the respondent became aware of the criminal history of the Clavell family.