AAG15 v Minister for Immigration
[2015] FCCA 2445
•24 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAG15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2445 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – alleged denial of procedural fairness – “sur place” claim – departmental data breach – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, (36)(2A), 91R(1)(a), 501, 501(2), 424, 424A, 424AA Migration Regulations 1994 (Cth), sub-cl.866.221 of sch.2 |
| Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | AAG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 356 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 1 September 2015 |
| Date of Last Submission: | 1 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
Leave be granted to amend the name of the second respondent to ‘Administrative Appeals Tribunal’.
The application filed 27 May 2015 be dismissed.
The applicant pay the first respondent’s costs in the quantum of $6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 356 of 2015
| AAG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
This is an amended application filed 15 July 2015 seeking judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 27 January 2015 affirming a decision of the Minister’s Delegate to refuse the grant of a Protection (Class XA) visa (“the Visa”).
The applicant appears in person.
He is currently in detention on Christmas Island, having been moved from the Maribyrnong Detention Centre in June 2015.
Background:
The applicant is 44 years old. He is a citizen of Fiji. The applicant first arrived in Australia as a visitor in 1989. He made an application for a humanitarian visa in the early 1990s, such application being withdrawn. He returned to Fiji in May 1995. The applicant returned to Australia on 6 April 2007 as the holder of a temporary Spouse visa. He was granted a permanent Spouse visa on 3 December 2008 and has since remained in Australia other than a visit to Fiji in 2009.
On 13 August 2012 the applicant was charged with two counts of sexual offences in relation to children. He pleaded guilty and a term of imprisonment was imposed. His permanent Spouse visa was cancelled on 18 October 2013, pursuant to s.501(2) of the Migration Act 1958 (“the Act”). That determination was affirmed by the Administrative Appeals Tribunal (“the AAT”). The applicant has remained in detention from his release on parole on 12 November 2013.
The applicant unsuccessfully sought a review of the AAT decision in the Federal Court on 10 October 2014. He lodged an application for a Protection (Class XA) visa on 30 October 2014.
The Minister’s Delegate refused the grant of the visa on 17 November 2014. The applicant lodged an application for review before the Refugee Review Tribunal on 24 November 2014. The applicant appeared at the hearing before the Tribunal on 8 January 2015. On 27 January 2015 the Tribunal affirmed the Delegate’s decision.
The applicant has provided submissions under affidavits affirmed on 25 February and 29 July 2015. Those submissions are lengthy, articulate and comprehensive.
The amended application is heavily particularised as to seven primary grounds which can be summarised under six headings thus:
(i) The Respondent(s) were not satisfied that I, the Applicant, ... was a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (the Act) and sub-clause 866.221 of schedule 2 of the Migration Regulations and refused to grant me, the Applicant, the Protection (Class XA) Visa ...after acknowledging;
(a) ‘I find the claimed harm amounts to significant harm pursuant to subsection (36)(2A) of the Migration Act’;
(b) ‘I am satisfied that the Convention reasons of race and members of a particular social group comprised of the (applicant’s) family in Fiji are essential and significant reasons for some of the harm feared, as required by paragraph 91R(1)(a) of the Migration Act.’
(ii) That the Respondent(s) failed to acknowledge that two privacy principles contained in the Privacy Act 1988 (Cth) s.14 had been breached by reason of a data breach in February 2014;
(iii) That the Tribunal’s decision was legally unreasonable, illogical and irrational and lacked evident and intelligible justification;
(iv) The Tribunal’s findings are unsupported by probative materials and made inferences of fact not reasonably available to it;
(v) That the Applicant was denied procedural fairness in that:
(i) that the Applicant was not invited to respond in writing and put evidence pursuant to sections 424 and 424A of the Act in respect of the UNHCR report relied upon in its reasons;
(ii) that the Tribunal did not invite the Applicant to respond pursuant to s.424 or 424A to the contents of a news report/article about his visa cancellation;
(iii) that the Tribunal (ground 6) erred in requiring that there be evidence as to the Applicant’s feared harm by reason of his family membership/ethnicity;
(iv) that the Tribunal erred in requiring further evidence that a Fijian Government entity accessed the data made public by the data breach before accepting that the Applicant faced a real chance of persecution or a real risk of suffering significant harm;
(v) that there was a denial of procedural fairness in the Tribunal finding that the Applicant was a refugee and that he was a credible witness of the truth but failing to decide that protection obligations arose.
(vi) (Grounds 6 and 7) -That the breaches under the Privacy Act obliged the Tribunal to find that the Applicant was a refugee “sur place” in accordance with the Refugee Convention and Regulations Act 1951 and the Migrations [sic] Act 1958 (the Act) being that details of his criminal convictions in Australia would regularly have become known in Fiji.
The Tribunal’s Decision:
At [85] of its reasons the Tribunal correctly summarises the claims of the applicant set out in his written material and in his oral submissions and argument to the Tribunal. The Tribunal identified six bases for the applicant’s claim to fear persecution should he be returned to Fiji as follows:
(i) his part-European ethnicity;
(ii) his family’s lease of Crown land;
(iii) his being a returnee failed asylum seeker from Australia;
(iv) his personal details having been released by reason of the data breach;
(v) his having been attacked in 2006 by a military officer; and
(vi) a generalised claim as to a lack of freedom of speech in Fiji.
At [90] the Tribunal accepted that part-Europeans may suffer some discrimination in Fiji in respect of land rights, employment and education. However, the Tribunal took into account country information and the applicant’s own evidence as to his past experiences in Fiji and made a finding of the fact that such discrimination did not rise to the level of serious or significant harm in this instant.
At [88] the Tribunal noted that the applicant had a varied work history whilst in Fiji and that his part-European background did not prohibit him from obtaining employment to support himself and his family.
At [90] the Tribunal found that in relation to land rights, employment and education opportunities, the available country information and the applicant’s own evidence did not indicate that discrimination against part-Europeans rose to the level of serious or significant harm.
At [91-95] the Tribunal accepted that the applicant’s family had been harassed by neighbouring farmers. The Tribunal noted, however, that the applicant’s family had resided on the land for 30 years and suffered no physical harm and had been able to subsist. The Tribunal noted that the applicant’s family remained living on the land. The Tribunal found that the harassment experienced did not amount to a level of serious or significant harm.
At [97] the Tribunal noted that no action had been taken against the applicant’s father for not having paid rent on the land for 10 years. The Tribunal did not accept, based on the evidence before it, that there was a real chance or a real risk that the Fijian Government intended to or would confiscate the applicant’s family’s leased land. The Tribunal found that the risk of the applicant’s family being evicted in the reasonably foreseeable future was remote.
At [92] the Tribunal noted that the applicant had not relied on the farm to earn income, although he had lived on the family property prior to returning to Australia in 2007.
At [121] the Tribunal noted that the applicant returned to Fiji in 1995 voluntarily and after having applied for asylum in Australia in 1989. There was no claimed adverse treatment as a result of those events.
At [122] the Tribunal noted that the available country information did not indicate that persons returning to Fiji after residing in Australia faced a real risk of serious or significant harm by reason of being perceived as wealthy and, therefore, candidates for robbery. The Tribunal again noted the applicant’s own experience on returning to Fiji in 1995 after six years of residing in Australia. The Tribunal found that a contemporaneous robbery of the family property was related to harassment by neighbours rather than to the applicant’s perceived wealth on his return from Australia.
At [121], on the evidence before it, the Tribunal found that the data breach in February 2014 had not disclosed the applicant’s current visa application and was satisfied that the applicant seeking protection in Australia was not sufficient of itself to give rise to a real chance of serious harm or a real risk of significant harm from Fijian authorities.
At [108] the Tribunal found that there was no evidence that information as to whether the applicant had made protection claims or, specifically, the nature of those claims had been included in the data breach of February 2014. The Tribunal noted that the data breach, affecting some 10,000 persons in immigration detention, involved information being placed on a website for 8.5 days and on an internet archive for 16 days. The Tribunal noted that the data was accessed 123 times from 104 different IP addresses, only one of which was an unidentified Fijian IP address. The data breach disclosed the applicant’s full name, gender, citizenship, date of birth, period of detention and that his remaining in Australia became unlawful when his Partner visa was cancelled under s.501 of the Act. The Tribunal continued on to find that the chance of a person in Fiji seeking to use or make an inference as to the applicant’s criminal history to render harm to the applicant or to disseminate such information to others who would harm the applicant was remote.
At [110] the Tribunal found that the chance that the applicant’s criminal record would become known to the Fijian Government from the data breach was remote.
At [111] the Tribunal considered whether the applicant’s criminal record would be revealed to the Fijian Government if he was removed from Australia and found that the relevant Department’s procedures emphasised the importance of not disclosing sensitive information, including criminal histories, to a foreign government without consent.
At [112-113] the Tribunal considered whether the applicant would face a real chance of persecution or a real risk of suffering significant harm if the Fijian Government learned of his criminal record and whether it would perceive him as homosexual. The Tribunal found that, on the evidence before it, there was no indication that persons convicted of criminal offences, including sexual offences against children, faced a real risk of serious harm or significant harm in Fiji. The Tribunal noted that the applicant himself insists that he is not homosexual and that his list of criminal offences do not reference the gender of his victim.
At [114-116] the Tribunal considered the applicant’s claim that the data breach may result in his criminal record becoming known and, therefore, adversely impacting on his employment prospects in Fiji. The Tribunal found such a risk to be remote, although noted that some prospective employers would be likely to require the applicant to declare any criminal record.
At [116] the Tribunal noted the applicant’s own evidence that, should his father pass away, then his mother and uncle would be likely to live with one of his sisters and, hence, did not accept that the applicant would have to provide sole support for is mother and uncle and found that there was no real chance of them being evicted from the leased land or that the applicant faced a real chance of significant economic hardship such that he would be unable to subsist.
At [117-120] the Tribunal did not accept the applicant’s claim that information as to the particulars of his criminal record would be leaked through his family or from fellow detainees or that he would be imputed with homosexuality.
The Tribunal rejected the applicant’s claim that the data breach created a “sur place” claim.
The applicant claimed that he was assaulted by a military officer in 2006 and this was an example of his membership of a particular social group constituted by his family being part-European and, therefore, a social group persecuted by Indian neighbours and indigenous Fijians. The Tribunal noted the applicant’s evidence that an argument occurred between the same military officer and the applicant’s brother contemporaneous with the alleged assault.
At [101-103] the Tribunal found the incident to be an isolated one which had occurred because of specific dealings between the applicant and the military officer rather than because of his membership of the particular social group, being his family. The Tribunal noted that there had been no further interactions with the particular military officer since the date of the assaults. The Tribunal found that there was not a real chance that the applicant would suffer serious harm, or a real risk that he would suffer significant harm by reason of his clash with the military officer.
At [125] the Tribunal dealt with the applicant’s unspecified claims as to a lack of free speech in Fiji. The applicant had not claimed to be politically active in Fiji since 1989 and the Tribunal thereupon concluded that the applicant was non-political and did not fit the profile of a government critic who would face harm at the hands of the authorities.
At [126-129] the Tribunal, having considered the applicant’s claims each individually and cumulatively, found that the applicant’s fear of persecution was not well-founded and the Tribunal was not satisfied that he met the complementary protection criteria.
The Application to this Court:
Ground 1:
The applicant particularises two quotations as set out above. It is clear that they both emanate from the Delegate’s decision since the subject of a merits review by the Tribunal. It is not the Delegate’s decision which is now under review. As such, the applicant at this ground fails to identify a jurisdictional error in the Tribunal’s decision and the ground must fail.
Ground 2:
The applicant says that two privacy principles were breached by the data breach. It is clear that the Tribunal considered, as set out above, whether the data breach created a “sur place” for this applicant and placed him at risk if returned to Fiji. I am satisfied that the Tribunal, as set out in these reasons at [19-24], addressed the relevant factual platform in respect of the data breach and that its findings of fact were reasonably open to it. The relevant facts were before the Tribunal, engaged and considered by the Tribunal. It is the Tribunal who is the determiner of the facts. I find no merit in this ground of complaint.
Ground 3:
The applicant argues that the Tribunal’s decision is unreasonable and/or irrational and illogical. It is for the Tribunal to engage and consider the evidence and to attribute weight.[1] As indicated to the applicant during the course of the hearing before this Court, it is not the function of this Court to provide yet another hearing on the merits of his application and it is not for this Court to interfere with a Tribunal’s findings of fact and credit, save they be illogical or unreasonable on a reading of the reasons. In this case, I am satisfied that the applicant here shows no more than a disagreement with the Tribunal’s findings of facts, such, in my view, open to the Tribunal and based on evidence set out in the reasons. [2]
[1] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 10 at [13]
[2] Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [131].
Ground 4:
The applicant argues that the Tribunal’s findings are unsupported by probative material and made inferences of fact not reasonably available to it. Again, the applicant’s claims and the evidence are highly detailed in the Tribunal’s reasons. It is for the Tribunal to attribute weight and to make findings of fact and credit. The applicant, in the particulars of his complaint, is arguing with the findings of the Tribunal. He challenges the merits of those findings. It is not the role of this Court to conduct yet another hearing on the merits of the application. I am not persuaded that the Tribunal “made inferences” as distinct from factual findings open to it on the material. There is no merit to this ground of complaint.
Ground 5:
The applicant claims that he was denied procedural fairness.
Firstly, s.424A of the Act does not oblige the Tribunal to put country information to the applicant for response. The Tribunal’s reasons at [75] show that country information as to the situation of part-Europeans in Fiji was put to the applicant.
It is for the applicant to make his own case and to put material to the Tribunal. It is not for the Tribunal to make out the applicant’s case for him.[3] S.424 of the Act provides:
[3] Aporo v Minister for Immigration and Citizenship [2009] FCA FC 123 at [45]
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
S.424AA provides:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give the applicant clear particulars of any information the Tribunal may considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is to be taken affirmed under subsection 426A (1F).
It is always open to the applicant to put whatever material he desires before the Tribunal and it is ultimately for the applicant to make out his own case. The Tribunal’s reasons clearly show that its decision was based on the material that was put before it. The applicant misconceives the Tribunal’s reasons when he complains that he was required to put further evidence as to why he feared harm because of his membership of the particular social group, being his family. It is clear that the Tribunal concluded that the applicant’s issue with the military officer was not based on his membership of the particular social group and that there had been no incidents since 2006. Similarly, the Tribunal concluded that the applicant’s family being subject to harassment from its neighbours was not based on the family’s part-European heritage but particular inter-family jealousies. Further, the Tribunal considered in detail the data breach and made a finding of fact that the applicant would not face a real chance of serious harm or a real risk of significant harm even if the Fijian Government had access to the information as to the applicant’s criminal record.
It is correct that the Tribunal found generally that the applicant was a credible witness but still determined not to grant the protection visa. Such finding and conclusion are not necessarily contradictory and were available to the Tribunal within its discretion in making findings of fact and credit. The findings were also reasonably available to and open to the Tribunal to the effect that there was nothing to prevent the applicant from returning to Fiji on account of his offences in Australia or the nature of it becoming more widely known, and, hence, the “sur place” claim was not made out.
For the reasons set out above, I find no merit in grounds 6 and 7 of the applicant’s application. There he does no more than mount argument as to the merits of the Tribunal’s findings of fact and credit.
Conclusion:
There being no merit to the applicant’s grounds of complaint, the application will be dismissed with an order for costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 24 September 2015
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