1. The Respondent provided details of the security vetting process as follows.
2. The Protective Security Policy Framework (PSPF) is the official whole of Australian Government policy prescribing what Australian Government entities must do to protect their people, information and resources, both domestically and internationally. The PSPF is reviewed annually to ensure that the requirements imposed by the PSPF reflect the current threat environment.
3. The PSPF provides that applicants for an Australian Government Security Clearance must undergo a security vetting process to determine their eligibility and suitability to hold a security clearance.
4. An Australian Government Security Clearance is a privilege, not an entitlement. Employers may require employees to obtain a security clearance where they need additional assurance of the suitability and integrity of personnel, for access to security classified resources, or to provide greater assurance for designated positions.
5. The PSPF requires that ASIO conduct a SCSA as part of the vetting process for any Australian Government Security Clearance above Baseline (which includes a NV1 security clearance which the Applicant applied for).
6. The purpose of a SCSA is to provide security advice to an Authorised Vetting Agency - in this instance AGSVA - about a clearance subject's suitability to hold a security clearance.
7. As part of a SCSA, ASIO conducts a range of checks and inquiries directed at:

(a) verifying relevant information about a clearance subject's background;

(b) identifying any potential security concerns associated with a clearance subject; and

(c) evaluating the prospective level of security risk associated with a clearance subject having access to sensitive or privileged Australian Government information, facilities, personnel, networks and resources.

1. ASIO is also reliant on access to intelligence holdings, information systems and information-sharing arrangements across government and private industry.

1. ASIO made findings as part of the statement of grounds in the prejudicial SCSA as follows:

[15] As [the applicant] resided outside Australia in the United Arab Emirates for the majority of the checkable period relevant to this SCSA, ASIO is unable to access all of the information and conduct all of the security checks necessary to assess his suitability to hold a NV1 security clearance with an adequate level of security assurance. Consequently, ASIO assesses that [the applicant]'s background is security uncheckable for the purpose of assessing his suitability to hold a NV1 security clearance.

[16] [The applicant]'s period of residence outside Australia in the United Arab Emirates creates a significant gap in his checkable background. ASIO assesses the security risks associated with this gap are not readily able to be mitigated and therefore leave doubt about the suitability of [the applicant] to hold a NV1 security clearance. Consistent with the PSPF, any doubt concerning the suitability of a clearance subject to hold a security clearance must be resolved in favour of the national interest. On this basis, ASIO assesses [the applicant] is not suitable to hold a NV1 security clearance as a consequence of his background being assessed as security uncheckable.

[17] [The applicant]'s security uncheckable background means that ASIO's capacity to apply the necessary scrutiny is compromised or negated and ASIO therefore cannot provide an adequate level of assurance.

[18] In some circumstances, ASIO has the capacity to conduct security checks and inquiries in relation to a person who has been resident outside Australia with the assistance of one or more foreign government authorities with which ASIO has an established and trusted partnership. However, ASIO assesses it is unable to depend upon foreign authorities to provide information in relation to [the applicant]'s previous period of residence offshore in the United Arab Emirates.

1. Further, ASIO assessed at [22] that there were no risk mitigation strategies which could be implemented to mitigate the risks associated with the Applicant's security uncheckable background.
2. ASIO concluded that the Applicant is not suitable to hold a NV1 security clearance. ASIO considered that this finding was 'reasonable, appropriate and proportionate to the assessed security risk represented by his security uncheckable background.'

1. The Applicant relies upon the Australian Government Personnel Security Adjudicative Standard (2025) which provides for "risk factor areas" to be considered when determining suitability of individuals to hold security clearances. The Applicant contends that the evidence before the Tribunal establishes his positive adherence to all of the risk factor areas.

1. The Respondent acknowledges that the Applicant has provided an extensive amount of material regarding his employment, associates and residence in the United Arab Emirates during the checkable period, but contends that this material is incapable of sufficiently ameliorating the security concerns regarding the Applicant's suitability to hold a NV1 security clearance.

1. The Tribunal is reviewing the prejudicial SCSA, not AGSVA's decision to not issue a security clearance. I note that for the purposes of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Director-General of Security has power under the ASIO Act to make decisions reviewable by the Tribunal which include a security assessment, a security clearance decision and a security clearance suitability assessment (SCSA).
2. The terms 'security assessment', 'security clearance decision' and 'security clearance suitability assessment' are defined in s 4 of the ART Act:

security assessment means: > > (a) an adverse security assessment within the meaning of Part IV of the [Australian Security Intelligence Organisation Act 1979] ASIO Act; > > (b) a qualified security assessment within the meaning of Part IV of the ASIO Act. > > security clearance decision has the same meaning as in the ASIO Act. > > security clearance suitability assessment has the same meaning as in the ASIO Act.

Under s 4 of the ASIO Act, 'security clearance decision' means:

security clearance decision means a decision to do any of the following: > > (a) grant a security clearance to a person; > > (b) deny a security clearance in respect of a person; > > (c) impose, vary or remove conditions on a security clearance in respect of a person; > > (d) suspend a security clearance, or revoke a suspension of a security clearance, held by a person; > > (e) revoke a security clearance held by a person.

The term 'security clearance suitability assessment' is given the following meaning in s 4 of the ASIO Act:

security clearance suitability assessment means a statement in writing that: > > (a) is furnished by the Organisation; and > > (b) is about a person's suitability to hold a security clearance (with or without conditions imposed in respect of the security clearance) that has been, or may be, granted by another security vetting agency (within the meaning of Part IVA); and > > (c) expressly states that it is a security clearance suitability assessment for the purposes of paragraph 82C(1)(d).

The Tribunal's review is conducted under Part 6 of the ART Act. Subsection 133(3) of the ART Act provides that:

To avoid doubt, this Act applies in relation to criminal intelligence assessments, security assessments and security clearance suitability assessments as if: > > (a) those assessments were decisions; and > > (b) the making of those assessments were the making of decisions.

In the review of a 'security clearance suitability assessment', which is an 'intelligence and security decision',[2] the Tribunal must affirm, vary or set aside ASIO's prejudicial SCSA under s 105 of the ART Act. In so doing, the Tribunal is bound by s 166 of the ART Act:

(1) The Tribunal: > > (a) must make and record its findings in relation to the decision; and > > (b) in relation to those findings - may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the decision. > > (2) The Tribunal must not make findings in relation to the decision that would have the effect of superseding any information that is (or is taken to be) part of the decision unless those findings state that, in the Tribunal's opinion, the information: > > (a) is incorrect; or > > (b) is incorrectly represented; or > > (c) could not reasonably be relevant to the requirements of security; or > > (d) could not reasonably be relevant for the purposes of having regard to whether there is intelligence or information that suggests that the person: > > (i) may commit a serious and organised crime; or > > (ii) may assist another person to commit a serious and organised crime.

As can be seen, the Tribunal must make findings and may state its opinion about the correctness or justification for any opinion, advice or information in the prejudicial SCSA. Assessing the correctness of or justification for any opinion, advice or information in the prejudicial SCSA does not require the Tribunal to engage in fact-finding in the usual way, being reasonably satisfied of relevant facts. The task is to consider if the available materials are sufficient to support such a finding. This is informed by the limit on making findings which would have the effect of superseding any information in the prejudicial SCSA unless the information is incorrect, incorrectly represented or not reasonably relevant for the purposes of s 166(2)(c) or (d) of the ART Act. 8. As the Tribunal noted in HWMW and Director-General of Security (Intelligence and Security),[3] while the language used in s 166 is somewhat different from that used in the ss 43AAA(2) and (3) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations of the majority in SDCV v Director-General of Security (SDCV)[4] remain apposite:

[157] ... [The Tribunal] must record its findings and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. There are constraints on the circumstances in which the Tribunal is entitled to make findings that supersede ASIO's findings. And there is a bar before the Tribunal can substitute its view for that reached by ASIO. It can only do so if in the Tribunal's opinion the information is incorrect, incorrectly represented or could not reasonably be relevant for the requirements of security.

1. Section 83(2) of the ASIO Act provides that a prejudicial SCSA is an externally reviewable decision, which means an affected person may apply to the Tribunal for review of a prejudicial SCSA.[5]
2. The issue to be determined by the Tribunal is whether the Tribunal should affirm, vary or set aside ASIO's prejudicial SCSA pursuant to s 105 of the ART Act.
3. The outcome of the SCSA was that ASIO assessed the Applicant was not suitable to hold a NV1 security clearance on the basis that the Applicant's background was security uncheckable.[6]
4. In assessing the correctness of or justification for ASIO's opinion as to the Applicant's suitability to hold a NV1 security clearance, I am guided by the PSPF which sets out Australian Government policy. As noted in HWMW, the national scheme in relation to security clearances is an element of the Commonwealth system for limiting access to sensitive information, resources and locations. The system is a creature of policy rather than statute.[7] If the Applicant were granted a NV1 Security clearance he would be entitled to access security classified material up to and including the classification of SECRET. If material classified as SECRET was compromised, it would potentially cause serious damage to the national interest, organisations or individuals.[8]
5. The determination as to suitability to hold a security clearance is based on an assessment against the Australian Government Personnel Security Adjudicative Standard; minimal personnel security checks; and a resolution of any doubt in the national interest.[9]
6. Under the PSPF, to be eligible for an Australian Government Security Clearance, an individual must be an Australian citizen and have a checkable background. Similarly, in determining whether a person is suitable for a security clearance under the SCSA process, ASIO must consider whether a person has a security checkable background and may deem that a person is 'security uncheckable'.[10]

1. The Applicant resided and worked in the UAE from around August 2010 to May 2023. The Applicant's eligibility and suitability to hold a NV1 security clearance is assessed by conducting minimum personnel security checks commensurate with a NV1 security clearance level. The applicable minimum personnel security check requires an applicant for a NV1 security clearance to undergo a background assessment for a checkable period of 10 years.[11] For the purposes of the SCSA, the checkable period for the Applicant commenced in June 2014, 10 years prior to ASIO providing the Applicant with the procedural fairness letter in June 2024. It follows that the Applicant resided outside of Australia in the UAE for the majority of the relevant checkable period.
2. ASIO found it was unable to access all of the information and conduct all of the security checks necessary to assess the Applicant's suitability to hold a NV1 security clearance with an adequate level of security assurance. Therefore, ASIO found that the Applicant's background was 'security uncheckable'. The PSPF provides that an uncheckable background is where it is unable to validate information provided by the clearance subject with respect to their background from independent and reliable sources or authorities. This includes where there is an uncheckable period during which the clearance subject's identity can be competently established, but it is unable to check the clearance subject's activities and associations as they have spent a significant period of time in a high security risk country where reliable checking is not possible. [Information redacted]. The PSPF provides that periods spent in those countries are usually uncheckable. [12]
3. There is no evidence to contradict ASIO's finding that the Applicant's background was 'security uncheckable'. I accept as correct ASIO's finding that it was unable to access all of the information and conduct all of the security checks necessary to assess the Applicant's suitability to hold a NV1 security clearance with an adequate level of security assurance. The Applicant's material included witness statements, financial and employment information, identification documents and a Dubai Police Clearance Certificate which provided meaningful and comprehensive information in relation to the circumstances of his residency and activities in the UAE. This material is relevant to the assessment against the Australian Government Personnel Security Adjudicative Standard. However, this extensive material provided by the Applicant is nevertheless incapable of sufficiently ameliorating the security concerns because ASIO does not have the ability to conduct security checks within the UAE that are necessary to be positively assured that the Applicant would not pose a risk to Australia's security, should he have access to sensitive Government information.
4. It follows from the finding as to the Applicant's background being 'security uncheckable' that there is doubt about the Applicant's suitability to hold a NV1 security clearance. The existence of doubt must be resolved in favour of the national interest as opposed to the interests of the Applicant. The PSPF provides that the determination as to suitability is based on, inter alia, a resolution of any doubt in the national interest.[13]
5. As to whether the risk to security could be mitigated, I find that there are no risk mitigation strategies that could be implemented in circumstances where the specific risks are unknown due to the uncheckability of the Applicant's background. Mitigation is not practicable where the risks cannot be assessed. The material from the closed session provides support for this finding.
6. The findings I have made in the above paragraphs in relation to the decision under review do not have the effect of superseding any information that is part of the decision for the purposes of s 166(2) of the ART Act. Accordingly, I have not found that any of the information in the decision under review is incorrect, incorrectly represented or could not reasonably be relevant to the matters in s 166(2)(c) and (d). To the contrary, I consider that ASIO's recommendation that the Applicant be denied a NV1 security clearance is reasonably supported by the material and information before the Tribunal.

1. It follows that the decision under review should be affirmed but I would add that my decision should not be seen as reflecting in any way poorly on the Applicant. The doubt as to the suitability of the Applicant to hold a NV1 security clearance did not arise from any information relating to the Applicant's character or conduct. This view seems to be shared by the Respondent because when I raised during submissions the absence of any character concerns intrinsic to the Applicant, counsel for the Respondent said:

... this is a case that turns purely on the security uncheckability of the Applicant and we do not rely upon any material ... to suggest that there is a positive finding the Tribunal should make as to the Applicant's untrustworthiness

1. This has the unfortunate result from the perspective of the Applicant, in the circumstances of his lengthy residence in the UAE, that his positive evidence as to his conduct and his character does not mean that he is suitable to hold a NV1 security clearance.

1. I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

...............[SGD]...................................................

[1] A prejudicial SCSA is a SCSA in respect of a person that contains information that would or could be prejudicial to a security clearance decision in respect of the person: ASIO Act s 82A.

[3] [2025] ARTA 105 (HWMV) at [11].

[4] [2021] FCAFC 51.

[6] Respondent's unclassified s141 materials, p RD8.