The report advised that the woman intended to travel to Syria to join the Islamic State of Iraq and the Levant (ISIL) to engage in or facilitate a terrorist act.
ISIL is a terrorist group which formed in Iraq in 1999 and became affiliated with Al-Qaida in 2004.
The report also detailed a previous attempt by the woman to travel to Syria to join ISIL and her intention to hijrah (which the NZSIS understood to mean travelling to live under ISIL) and marry an ISIL fighter. She had also been translating and disseminating what the NZSIS thought to be ISIL propaganda.
It also highlighted two of her online accounts, which had numerous pro-ISIL posts.
An urgent review of New Zealand’s capability to respond to terrorism threats both locally and internationally led to the bolstering of passport laws in 2014 and extended the power to cancel a passport.
The minister was advised that cancelling her passport, which would prevent her from travelling there, would prevent or effectively impede her ability to facilitate terrorist acts.
The woman, who was born overseas but moved to New Zealand with her family as a child, challenged that decision but an application for a judicial review was dismissed by the High Court, as was an appeal to the Court of Appeal.
However, the Supreme Court has now ruled the minister was wrong to cancel her passport on terrorism-related grounds. It said cancelling a citizen’s passport is a serious intrusion on a person’s rights.
Supreme Court decision
In allowing the appeal, the court concluded that the briefing paper on which the minister made the decision failed to meet the “fair, accurate and adequate” requirement.
It also failed to provide an adequate basis for the minister to form the necessary belief on reasonable grounds that the appellant was a danger to the security of Syria because she intended to facilitate a terrorist act.
The Supreme Court agreed with the parties, and the lower courts that the briefing paper must be fair, accurate and adequate, but that depended on the context.
In this case, this requirement was more stringent because of the “significant consequences” that flowed from cancelling a person’s passport, the fact that the person was not informed before the decision was made, and the issues of fairness that arose when classified information was withheld from the person.
The decision released today is based on publicly available evidence. Some of the case was held in closed court because parts of the evidence and argument contained classified security information.
The court said in a statement that the principle of open justice could only be overridden in limited circumstances, including where the matter concerns national security.
The statutory procedure adhered to in this case was “extremely rare” in New Zealand’s court system and the first time the Supreme Court used it.
Arrival in NZ
The woman became a New Zealand citizen in 2001 when she acquired her first New Zealand passport. She later emigrated with family to Australia, where she also acquired citizenship.
In August 2015, she was detained by Turkish authorities on suspicion of attempting to enter Syria, allegedly to marry an ISIL fighter.
She left Turkey the following month bound for Australia but did not board her connecting flight in Kuala Lumpur and instead changed her appearance before travelling, on her New Zealand passport to a series of countries in the Middle East.
The journey caught the attention of the NZSIS and when the woman returned to New Zealand with a family member, she told customs officials in an interview that she had travelled to Turkey to visit family members in a refugee camp at the Syrian border.
In October 2015, the woman and a family member left New Zealand for Indonesia but returned to New Zealand via Australia when they were denied entry.
In April 2016, the woman was booked to fly to Australia but her New Zealand passport was then suspended for 10 working days.
However, she travelled to Melbourne without a passport, relying on a letter saying that the Australian officials approved her to travel as she was an Australian citizen awaiting renewal of her Australian passport she claimed to have lost.
On the same day, her New Zealand passport was recorded lost by the Department of Internal Affairs. The NZSIS then wrote to the DIA, recommending the cancellation of her passport and gave a classified briefing to the Minister who then cancelled the woman’s passport for 12 months.
The 20-page briefing paper, which the Minister did not get the chance to read beforehand contained classified information, and was “silent on the Bill of Rights”.
The Australian Federal Police then served the woman with notice that her New Zealand passport had been cancelled on grounds of national security and on information supplied by the NZSIS, most of which was classified.
She was told she would not be able to get another New Zealand passport for 12 months unless the Minister, or a court, revoked his decision and she was advised of her rights of appeal.
She then lodged legal action including a claim for damages.
The Supreme Court declared the cancellation decision was unlawful and invalid, but declined to make the direction sought for consequential relief, such as rectifying New Zealand records and notification to overseas agencies to change their records.
The woman was awarded costs of $30,000.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
