AAZ15 v Minister for Immigration

[2017] FCCA 340

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAZ15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 340

Catchwords:
MIGRATION – Protection visa application – publication of personal information online (“Data Breach”) – International Treaties Obligations Assessment (“ITOA”) – whether the assessor failed to consider an integer of the applicant’s claims relating to the access and finding of his personal information by the Taliban – assessor failed to consider the claim – declaration made.

Legislation:

Migration Act 1958 (Cth), ss.46A, 195A, 417

Cases cited:

Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant: AAZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent: JUSTIN MCGRATH, IN HIS CAPACITY AS INDEPENDENT TREATIES OBLIGATION ASSESSOR

File Number: SYG 465 of 2015

Judgment of: Judge Smith

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Counsel for the First Respondent: Ms J E Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Declare that the assessment of the International Treaties Obligations Assessor was not made in accordance with law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 465 of 2015

AAZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

JUSTIN MCGRATH, IN HIS CAPACITY AS INDEPENDENT TREATIES OBLIGATION ASSESSOR

Third Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Afghanistan who arrived in Australia on 27 November 2009. In February 2014, personal information relating to individuals, including the applicant, then held in immigration detention was inadvertently and briefly made available on the Internet by the Department of Immigration. This event has come to be known as the Data Breach.

2. On 31 July 2014, the Department informed the applicant that it would commence a process in order to assess whether the circumstances of his case, including the Data Breach, engaged Australia’s non-refoulement obligations. This process followed from a personal procedural decision made by the Minister. This process was preparatory to the making of a substantive decision by the Minister of his non-compellable powers under ss.46A, 195A or 417 of the Migration Act1958 (Cth): see Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29.

3. The process involved a number of submissions made by the applicant and an interview with the third respondent. These were then culminated in a report made by the third respondent on 18 February 2015.

4. The applicant contends that the third respondent erred in making his report by failing to consider an integer or aspect of his case. In particular, he argues that the third respondent failed to deal with the claim that non-State actors, and more particularly the Taliban, may become aware that the applicant had spent time in Australia and had sought asylum here. He also argues that one of the ways that the non-state actors may have become aware of those facts was because they had accessed information relating to the applicant as a consequence of the Data Breach.

5. It was not in dispute that the third respondent was required to deal with each aspect of the applicant’s claim, which was either expressly raised or clearly arose on the material before him: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55]-[63]; [2004] FCAFC 263.

6. However, the Minister argued first, that the claim relied upon by the applicant did not arise on the material before the third respondent, and secondly, that if it did, the third respondent properly dealt with it by finding that the fact that the Taliban would become aware that the applicant had spent some time in Australia was remote.

7. On a proper understanding of the material before the third respondent, and findings made by him on the basis of that material, he was obliged to consider the possibility that, by reason of the Data Breach, the Taliban might become aware that the applicant had been in Australia. The third respondent did not consider that possibility and so fell into error.

8. It is important to recall in the first instance that the entire process undertaken by the third respondent was driven by the Data Breach. The applicant had already been assessed for any potential protection obligations owed by Australia and, in its letter of 31 July 2014 the Department explained that it would no longer rely upon the previous assessment “due to legal developments and changes to departmental policy”. The Department also explained that a further assessment would take place. In the same letter there was the following statement and invitation:

   On 12 March 2014 you received a letter from the Secretary of the department advising that a routine report released on the department’s website unintentionally enabled access to personal information about people who were in immigration detention on 31 January 2014.

   The information included your name, date of birth, nationality, gender, details of when you were detained (reason and where) and if you have other family members in detention. It did not include any current or former address, phone number or contact information. It did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.

   This letter advised you that the department will assess any implications for you personally as part of its normal processes.

   If you have concerns regarding the impact of the unauthorised access to your personal information you are now invited to provide information as part of your submission for consideration in your ITOA.

9. On 23 September 2014 the third respondent wrote to the applicant in very similar terms.

10. The applicant responded by way of letter from his migration agent dated 27 September 2014. In that letter the agent submitted, amongst other things:

    I note that [the applicant] has been held in immigration detention since his arrival at Christmas Island on 27 November 2009 and I respectfully submit that his identity and details were disclosed by the Department of Immigration and Border Protection January 2014 Detention Statistics and in doing so have rendered [the applicant] a refugee sur place and he cannot be refouled to Afghanistan.

    …

    The following extracts from published reports and articles indicate the inherent dangers for any failed asylum seekers to Afghanistan. There are reasonable grounds for believing there is a real risk [the applicant] will suffer inhuman and degrading treatment by the Taliban. As an Afghani forcibly returned to his homeland, [the applicant] will be targeted as a ‘westernised’ Afghani and anti-Islam and he would be at risk of being accused of being an apostate.

    …

    The weight of country information demonstrates that Afghanistan is unable to contain the violence wherever that violence is perpetrated. [The applicant’s] alleged apostasy, his has lived in Australia for the past 4 years constitutes significant and essential reasons for fearing persecutory harm should he be returned to Afghanistan.

    (Emphasis in original)

11. The third respondent conducted an interview with the applicant on 3 December 2014. Towards the end of the interview[1] the third respondent raised the issue of the Data Breach and there was the following exchange:

    [1] Transcript p.25.

    …

    Tribunal:Why would that put you at risk, if people in Afghanistan knew that you applied to stay in Australia?

    Applicant:People have notice by the internet that there are some people in countries, Asian countries, in that list, including Afghanistan. There was a list of Asian countries, including Afghanistan, and people have seen that there was no security in those countries.

    Tribunal:So if people in Afghanistan knew that you were in Australia, why would that place you at risk because of that data breach?

    …

12. The Minister relied upon this passage, noting that the applicant did not refer to the Taliban in his response to the Tribunal. There are two points to be made in response to that argument: first, the Tribunal’s question was based on an assumption that people in Afghanistan would have had access to the Data Breach material. Thus, the question was not addressed to whether or not people in Afghanistan might come to know that the applicant had been in Australia and, more particularly in detention, but rather, what harm might come to him because of that knowledge. The applicant had already claimed that he would be harmed by the Taliban because he had been in Australia and thus “westernised”. In effect, the Tribunal already had an answer to its question in the material before it and the applicant’s response did not abandon that claim.

13. The second point is that although the applicant’s response did not expressly refer to the Taliban, it could be readily seen to include them because of the use of the general word “people”. Importantly, the use of this general term, in addition to the claim about fear of harm from the Taliban, meant that the risk of harm feared as a result of the Data Breach was not restricted to the authorities in Afghanistan.

14. In any event, the exchange which immediately followed the passage set out at [11] above reveals that little weight can be given to the extent of the applicant’s response to the Tribunal’s question at this stage of the interview[2]:

    [2] Transcript p.25.

    …

    Agent:Can I add something?

    Tribunal: Yes.

    Agent:Because of the data breach we have sought information from the Department regarding that matter. So before having those (sic) information in our hand [the applicant] can’t even properly consider that breach of the Privacy Act by the Australian Department of Immigration and Border Protection.

    Tribunal:You said that there is an issue before the Privacy Commissioner?

    Agent:Yes, the matter is before the Privacy Commissioner at the moment. We have sought detailed information about those countries who had access to that site. To be able to properly respond for [the applicant] in this matter we need to have those (sic) information before [the applicant] can be defended on that matter.

    …

15. What the agent was suggesting was that the applicant required further concrete information about the extent of the dissemination of the Data Breach in Afghanistan before he would be able to give a complete answer to the Tribunal’s question. In other words, without such information, submissions concerning the effect of the Data Breach would be highly speculative. That said, as will appear, the level of speculation required was reduced by the following findings made by the third respondent:

    …

    I accept that the claimant’s details may have been publicly available for a short time. Media reports make reference to the data being accessed by at least 104 IP addresses and it is impossible to gauge the extent of the dissemination of the information other than to assume it is widespread.

16. The assumption upon which the third respondent based his conclusion left open the very real possibility that the Taliban were amongst those who had come to know of the applicant’s presence in Australia. If that much were accepted, then the third respondent would have had to assess the likelihood of the Taliban acting upon that knowledge in the way feared by the applicant.

17. Understood in this way, the material before the third respondent and the findings made by him gave rise to an obvious claim concerning the Taliban and the Data Breach. It was not a claim that the third respondent had to construct or imagine and, clearly enough, if accepted may have established that Australia did owe protection obligations to the applicant. For those reasons, the third respondent was obliged to deal with the claim.

18. The next issue is whether the third respondent did deal with the claim. In order to determine that issue, it is necessary to consider the structure and content of the third respondent’s reasons as a whole.

ITOA assessment of non-refoulement obligations

1. The third respondent’s reasons are divided into four parts. The first part, Part A, sets out, relevantly, findings of fact including the rejection of some the applicant’s claims but an acceptance of the Data Breach. Part B contains the third respondent’s assessment of non-refoulement obligations under the Refugees Convention[3]. The three critical sections of this part address, in turn, the issues that arise from the definition of a “refugee” in Art.1A(2) of the Convention. The first issue, dealt with in the second section, is whether the harm feared is for a Convention reason, namely race, religion, nationality, membership of a particular social group or political opinion.

   [3] The Convention Relating to the status of Refugees done at Geneva 1951 and the Protocol Relating to the Status of Refugees done at New York 1967.

2. In this section, the third respondent addressed each of the applicant’s separate claims in order to determine which of these Convention reasons might apply to those claims. The third respondent concluded that the claim of fear of the Taliban “who will consider him to be an apostate or anti-Islam and a pro-Western free thinker for marrying a Western woman” was for reason of religion. On the other hand, the third respondent assessed the harm the applicant might face as a failed asylum seeker or the potential that he would be forcibly recruited by the Taliban would be for reason of an imputed political opinion. Finally, the third respondent found that the reason for the harm that might arise because of the Data Breach were for reason of political opinion.

3. The taxonomy in this section is important because, as will be seen, the balance of the third respondent’s reasons I deal with, by means of the categories identified in it.

4. The third section of Part B deals with the issue of whether the applicants fear was well founded. In the first part of this section the Tribunal considers the risk of harm that might arise because the applicant would return to Afghanistan as a failed asylum seeker. The third respondent addressed this issue solely by reference to potential harm by the authorities of Afghanistan.

5. The next part of this section deals with the fear of harm from the Taliban on the basis of apostasy or anti-Islam. Given the centrality of the third respondent’s findings on this issue, it is necessary to set out the whole passage:

   The claimant states that he fears being persecuted by the Taliban because he married a westerner and that he will be perceived as a free thinker for living in a western country for several years and that he would be at risk of being accused is an apostate or as Anti-Islam.

   The UNHCR notes that conversion from Islam is regarded as apostasy and that under some Islamic law interpretations it is punishable by death. Male citizens over the age of 18 who convert from Islam to another religion risk having their marriage invalidated, the rejection of their families and communities and lose their jobs. Converts from Islam also risk being threatened with death by the Taliban.

   According to DFAT, Afghanistan’s Constitution states that no law can contradict the beliefs of Islam and that blasphemy and apostasy may be punished under Islamic law which includes the perpetrator being sentenced to death. While DFAT is aware that a number of people may have been arrested for blasphemy and apostasy, it is not aware that anyone has been executed since 2004.

   At the ITOA interview, the claimant attempted to underplay his previous claim that he is a Sunni Muslim, claiming that he has never really practised Islam since he was young and that he only went to the mosque to satisfy his father. At the ITOA interview, his main concern appeared to be that he could not return to Afghanistan with his wife as she would be kidnapped or killed by the Taliban as a westerner rather than that he would be accused of being an apostate for living in Australia and being regarded as against Islam for marrying a westerner. He was vague as to how the Taliban would discover that he had married a Westerner or that he had lived in a western country. I also note that his marriage was a civil ceremony and that he was not required to denounce Islam.

   While I accept that persons who convert from Islam to another religion may be at risk from the Taliban, the religious hierarchy or even the Afghan government, if such information comes to light, I have not located reports of incidents whereby a returnee to Afghanistan was threatened by the Taliban or anybody else for marrying a westerner in a western country. The October 2014 DFAT report on Kabul talks of economic issues impacting on some returnees, but makes no mention of returnees being targeted on account of having spent time in a western country.

   There are reports of returnees or expatriate Afghanis having been kidnapped by the Taliban and in at least one case, being killed whilst travelling between Ghazni and Kabul. However, I consider that the chances of the claimant coming to the notice of the Taliban and discovering that he lived in Australia for several years and that he married an Australian woman to be remote given that there have been few incidents of attacks against returnees or expatriate Afghanis and given that there have been so many returnees to the country since 2002.

   Given this, I find that the claimant’s fear of persecution on account of the Refugees Convention ground of religion is not well-founded.

   (Emphasis added)

6. There are two things to note about this passage. First, the emphasised words in the first and fourth paragraphs reveals that the third respondent understood that the applicant’s claim in this respect arose both because he was married to a Western woman and because he had lived in Australia. Secondly, although the logic in the emphasised part of the penultimate paragraph is not immediately apparent, properly understood, the passage reveals that the third respondent inferred that there had been few incidents of attacks against returnees or expatriate Afghanis because the Taliban had not found out that the returnees were in fact returnees. Otherwise, that passage would be illogical.

7. The proper understanding of this passage is important. It highlights the fact that the third respondent did not turn his mind at this point of the analysis to the possibility that the Taliban might have found out where the applicant had been by reason of the Data Breach. That conclusion is fortified by reference to later passages in the third respondent’s reasons. However, for present purposes, it is sufficient to undermine the Minister’s argument that the finding by the third respondent that the chance of the Taliban finding out that the applicant had lived in Australia was remote, was a finding which dealt with the relevant claim. That argument has some force on the basis of a superficial reading of the third respondent’s reasons. However, when the reasons are understood as a whole, it cannot be accepted.

8. In the next section of his reasons the third respondent considered the claim of forced recruitment by the Taliban. There is no need to deal with that here.

9. In the final part of the section the third respondent addressed the Data Breach. Once again it is important to set out this passage in its entirety:

   The claimant was in Australian immigration detention on 31/01/2014 and, as such, his personal information may have been available to unintentional access in the public domain. Departmental advice regarding this breach of data states that information including the affected individuals’ name, date of birth and nationality as well as details about their detention in Australia may have been publicised. I accept that the claimant’s details may have been publicly available for a short time. Media reports make reference to the data being accessed by at least 104 IP addresses and it is impossible to gauge the extent of the dissemination of the information other than to assume it is widespread. The claimant submits that he will now be credited with anti-government views and his profile will be raised which would place him at greater risk of persecution if he were to be returned to Afghanistan.

   The extent of the dissemination of the data is speculative. In any event, there is no information before me to indicate the data, in particular his PV claims, was accessed by or provided to the Afghanistan authorities. I note the countries identified as the location of the IP addresses do not include Afghanistan. However, as it is not possible to discount the possibility that the authorities in Afghanistan may have accessed this document, for the purposes of this assessment, I will accept that the authorities in Afghanistan may have accessed the claimant’s personal information released on the Department’s website.

   Despite this, DFAT and other sources do not support the claim that failed asylum seekers are targeted by the Afghanistan authorities upon return to Afghanistan for this reason alone. Furthermore, DFAT assesses that even those persons who used fraudulent documents to depart Afghanistan or who departed in other irregular ways are unlikely to be prosecuted by the authorities.

   Also, it is reasonable to conclude that many if not most involuntary removals and many voluntary removals from Australia to a receiving country would have been held in Australian immigration detention and that the Afghanistan authorities would be aware that Afghanistan nationals who returned to Afghanistan would have been in detention. I find no evidence to indicate being in immigration detention prior to return to Afghanistan, in itself, will result in persecutory harm by the Afghanistan authorities.

   In the case of the claimant I find no credible evidence to indicate he was involved in any political activities which brought him to the adverse attention of the Afghanistan authorities prior to his departure from Afghanistan or afterwards.

   For the reasons given above, I am not satisfied that the claimant will be imputed with an anti-government political opinion by the Afghanistan authorities even if they have information that he was in immigration detention. Consequently, I find the claimant does not face a real chance of serious harm by the Afghanistan authorities as a consequence of the data breach. Therefore, I find his fear of serious harm by the Afghanistan authorities as a consequence of the data breach is not well founded.

   (Emphasis added)

1. There is no question that the third respondent focused solely on the Afghanistan authorities in this passage. They are the only potential persecutors mentioned and there are some 11 references to them. Further, the third respondent restricted his consideration of the impact of the Data Breach to the risk that the applicant would be imputed with anti-government views.

2. In summary, I conclude that the third respondent did not deal with the possibility that the Taliban would find out about the applicant’s stay in Australia by reason of the Data Breach for three reasons:

   i)his reasons were highly segmented, being categorised by reference to the possible reasons for the risk of harm in each claim made by the applicant;

   ii)the logic in the part of the third respondent’s reasons dealing with the Taliban’s knowledge of the applicant’s return excluded the impact of the Data Breach; and

   iii)when the third respondent did deal with the potential effects of the Data Breach, he did so solely by reference to potential harm from the Afghanistan authorities.

Conclusion

1. For those reasons the third respondent failed to consider a claim that was made by the applicant. His conclusions were affected by error and a declaration to that effect will be made.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 March 2017