ACR15 v Minister for Immigration
[2016] FCCA 1927
•27 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1927 |
| Catchwords: MIGRATION – Whether Tribunal decision that the Applicant did not meet s.36(2)(aa) of the Migration Act 1958 (Cth) was affected by jurisdictional error – effect of 2014 data breach on detainees returning to China – whether reasonable grounds for believing there is a real risk Applicant would suffer significant harm because of his 1989 pro-democracy activities – whether Tribunal considered cumulative effects of Applicant’s claims – whether Applicant denied procedural fairness – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 414 |
| Cases cited: ACR15 v Minister for Immigration & Anor [2015] FCCA 2992 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 |
| Applicant: | ACR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 7 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitor Advocate for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 24 March 2016 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 7 of 2016
| ACR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 March 2016, affirming a decision of a Delegate of the First Respondent (“delegate”) made on 13 October 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
Background
The Applicant, who is a national of China, arrived in Australia in October 1996 on a one-month visa. He has spent a lengthy period in Australia, which has included periods during which he has not held a visa and periods of immigration detention. During this time he has applied unsuccessfully for Ministerial Intervention and for the grant of a visa.
On 26 February 2014 the Applicant lodged an application to have his claims for protection considered under the complementary protection provisions of the Migration Act 1958 (“the Act”). A delegate of the Minister found that complementary protection obligations were not owed to the Applicant, and, following an application for review, the (then) Refugee Review Tribunal affirmed the delegate’s decision on 4 February 2015.
The Applicant sought review of that decision. The Federal Circuit Court (differently constituted) quashed the Tribunal decision on 6 November 2015, and the application for review was remitted to the Tribunal (differently constituted) to complete its review in accordance with law.[1]
[1] ACR15 v Minister for Immigration & Anor [2015] FCCA 2992, per Smith J.
The Applicant appeared before the Tribunal, differently constituted, on 16 February 2016 to give evidence and present arguments. The Applicant was assisted by a Mandarin interpreter.
The Tribunal affirmed the delegate’s decision on 7 March 2016, and the Applicant filed a further application for judicial review of the current Tribunal’s decision on 24 March 2016, which is the subject of this proceeding.
The Applicant attended this judicial review proceeding in person and was assisted by an interpreter in the Mandarin and English languages. I informed the Applicant, that if he did not understand what was being translated, if he believed there was a problem in the translation or if he had a question of the Court about the proceedings, he should let the Court know.
As the Applicant was self-represented, I explained, as best as I could, to the Applicant the nature of a judicial review proceeding, by comparison to the merits review proceeding before the Tribunal. I emphasised that the function of the Court was not to determine whether he should be granted the visa, but to decide whether the Tribunal decision (including the proceedings before the Tribunal) was wrong in the sense that there was a serious legal mistake.
I reminded the Applicant that the issue before the Tribunal was whether he was owed protection, because of Australia’s complementary protection obligations: s.36(2)(aa) of the Act; namely, whether the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant returning to China, there is a real risk that he will suffer significant harm. I then gave him examples of the meaning of significant harm under s.36(2A) of the Act.
Solicitor Advocate for the Minister gave lengthy oral submissions, setting out, for the benefit of the Applicant, in detail, the contents of the Minister’s Contentions of Fact and Law filed on 15 July 2016.
I am satisfied that the substance of the contents of the Minister’s Contentions of Fact and Law filed on 15 July 2016 were translated to the Applicant.
Applicant’s Claims
The Applicant’s claims were summarised by the Tribunal (CB91-92, at [24] to [33]) and are as follows:
a)he attended the Tiananmen Square pro-democracy protests in 1989, at which he shouted slogans. He had gone there with some friends. When the police arrived he escaped, but some friends were caught;
b)he heard that some of his friends had “given up his name” during questioning. He was unable to say what happened to his friends, how long they had been detained for and was unable to provide any further details about why his friends would give his name up to the police;
c)after the protests, he moved to Fu Zhou city in the Fujian province, where he lived for six years. He initially said he worked there and also had his own business. Upon questioning, he said he was only employed in a restaurant, as a kitchen assistant;
d)the Applicant stated that he had never been arrested in China and never had any interactions with the police;
e)after six years, with the help of a friend, he obtained a passport and visa to travel to Australia. He said he did so because he was being persecuted and on the run. The Tribunal noted that the Applicant was unable to provide details about how his friend obtained a passport and visa, but believed the documents to be genuine;
f)in response to a question from the Tribunal, he said he did not have any problems when he left China through the airport using the documents. Later, the Applicant said the only reason he had no trouble was because the custom officials were “sloppy” that day. He later recalled during the hearing that his friend, who had assisted him obtain the documents, had told him he had to pay someone from customs, in order to permit him to leave the country;
g)the Applicant says he will be arrested and imprisoned upon his return to China, because of his past involvement in pro-democracy activities and because he is on a “blacklist”;
h)he has had no involvement in pro-democracy groups or activities since he has been in Australia; and
i)the Applicant made a sur place claim on the basis that he is affected by the 2014 data breach, as the details of his protection visa claim will become known to the Chinese authorities.
The Data Breach
As the Applicant was in immigration detention before 31 January 2014, he was amongst those whose personal details were published on the website maintained by the Department of Immigration and Border Protection (“the data breach”).
The details and circumstances of this data breach are set out in the Tribunal’s decision (CB93, at [47] to [48]), as follows:
47. The Tribunal accepts that on 19 February 2014, the Department of Immigration received information that a database containing the personal information of ‘almost 10,000’ asylum seekers was available on its website. By way of background, each month, the Department publishes a document entitled ‘Immigration Detention and Community Statistics Summary’ on its website ( The document includes statistics about asylum seekers. For accessibility reasons, the Department publishes the document in Adobe PDF and Microsoft Word versions. On 10 February 2014, the Department published the Microsoft Word version of the January 2014 issue of the Immigration Detention and Community Statistics Summary, dated 31 January 2014 (the Detention report). In preparing the Microsoft Word version of the Detention report for web publication, the Department inadvertently embedded the Microsoft Excel spread sheet that had been used to generate the statistics used in the Detention report.
48. The spread sheet included the personal information of approximately 9,250 asylum seekers and was accessible through the Detention report. The Department was notified of the breach by the Guardian Australia at 9:15am on 19 February 2014. The Department removed the Detention report from its website by 10.00am on that date. The Detention report was, therefore, available on the Department’s website for about eight and a half days.
Tribunal decision
Having set out the Applicant’s claims, the Tribunal then noted, in its decision record, that it had expressed to the Applicant at the end of the hearing that it doubted he would be persecuted by authorities upon his return, or that he was on a blacklist (CB92 [35] to [37]).
The Tribunal considered relevant country information (CB92 to 93, [40] to [44]) and proceeded to make the following findings (CB93 [45] to [46]):
45. Given the country information, the applicant’s ability to live for a further six years in another part of China after his pro-democracy activities, and his stated lack of subsequent activism, the Tribunal does not accept that he will face significant harm upon his return to China because of his pro-democracy activities in 1989. While the applicant may have been a low level protestor, it is unlikely that he would be of continuing interest to Chinese authorities.
46. Given the country information, the lack of detail about how the applicant’s name would be known to the authorities and the contradictory information about how the applicant was able to depart China, the Tribunal does not accept that the applicant’s name is on a black list, or any list, in China. It follows that the Tribunal finds that the applicant will not face significant harm upon his return to China for reasons of being on a black list or for reasons of his pro-democracy activities or for these reasons considered cumulatively.
The Tribunal then proceeded to consider the Applicant’s sur place claim arising out of the 2014 data breach. The Tribunal first identified the information before it regarding the data breach as follows (CB94, at [50]):
The information before the Tribunal also indicates that following the “data breach” the Department of Immigration and Border Protection commissioned KPMG to conduct an assessment of the “events leading up to the disclosure of personal information of detainees, in connection with a document uploaded to its website on 10 February 2014”. Similarly, the Office of the Privacy Commissioner has undertaken an independent report into the breach.
(footnotes omitted)
The Tribunal then set out extracts from the audio recording of the hearing relating to the question of the data breach (CB94, at [52]). This extract records the Tribunal Member saying that, based on the information that she had, what was leaked was his name, his date of birth and his citizenship. The Applicant is recorded as responding, “But all the documents - all the information in my file was leaked as well” and, “But I’m under the impression that whatever is in the computer regarding my file were (sic) released”. There is then the following exchange:
Q. No – there have been two reports – one commissioned by the Department for Immigration and another one undertaken by a separate government agency called the Office of the Privacy Commissioner and those reports both found that the details that were released were only your name, your date of birth, your citizenship, the place you were detained – in that case, Villawood –when you began being detained there – so January 2014 for you – and the reasons you were detained, so in that case, having an expired visa. So assuming that’s the case and assuming that information was accessed by the Chinese authorities, how do you say it would cause you problems?
A. There must be troubles caused.
Q. Why would it cause you trouble if all the Chinese authorities knew was that you had been picked up for not having a valid visa in Australia?
A. Because the information is leaked and once I go back to China they will arrest me.
With respect to the Applicant’s sur place claim regarding the data breach, the Tribunal found (CB95, at [54] to [56]):
54. The Tribunal has first considered the information in relation to the “data breach”. The Tribunal is firstly of the view that, as a result of the “data breach” of the records of detainees in immigration detention centres for some eight days in early 2014, it is highly unlikely that the Chinese authorities have become aware of the applicant’s details or that he was in a detention centre. The information released in the data breach was also only available for a short period of time before it was removed.
55. Additionally, given the categories of personal information as outlined above, the Tribunal does not accept that the Chinese authorities would be aware of the applicant’s claims for protection as a result of the data breach itself. According to both reports and the reportage of the Guardian Australia, which broke the story, the information that was available to be accessed did not include details as to whether applicants had lodged protection visa applications or on what grounds. The Tribunal finds, therefore, that the details of the applicant’s claims were not accessed during the short time that the information was available and also does not accept that the data breach itself would have resulted in the Chinese authorities becoming aware of the applicant’s application for protection in Australia.
56. The Tribunal noted that all the authorities would have discovered, had they accessed the released data, was that the applicant had been in detention since January 2014 because he had been located in the community with no visa. They would not know he had applied for a protection visa or the claims he had made. The Tribunal noted that in the event he was returned to China, it is likely they would know that information anyway, as they would be contacted to arrange a travel document for his return travel.
The Tribunal then proceeded to consider the cumulative effect of the data breach and the Applicant’s past involvement in pro-democracy activities. The Tribunal stated that, for the purpose of its decision, it was prepared to accept and does accept, the Chinese authorities had access to the information through the data breach and are aware of “when, where and why” the Applicant was detained, and that he was detained because he had no visa when detected by the Department of Immigration and Border Protection (“the Department”) in January 2014 (CB96, at [60]).
The Tribunal found (CB96, at [61] to [62]):
61. However, on the evidence before it, including the reports of the Guardian-Australia, KPMG and the Office of the Privacy Commissioner, the Tribunal does not accept his claim that the information in the data breach included the fact he has applied for a protection visa or the details of his application, including his claims and allegations, and it does not accept that the Chinese authorities would be aware of those matters because of the data breach. For these reasons, having carefully considered the evidence and information before it, the Tribunal does not accept that there are substantial grounds to believe there is a real risk the data breach, and any awareness by the Chinese authorities that he has been in immigration detention in Australia, will cause him to suffer, or be a reason why he will suffer, significant harm if he returns to China in the reasonably foreseeable future.
62. In making this finding I have considered but do not accept his claim that the applicant’s name appears on a black list because of his pro-democracy activities more than 20 years ago or that the information available from the data breach will somehow rekindle the authorities’ interest in the applicant and that together, this will cause him to suffer significant harm. The Tribunal considers his claim that his name is on a black list to be pure speculation unsupported by behaviour of the authorities in issuing the applicant a passport and permitting his departure six years after his pro-democracy activities. The release of his immigration detention status in early 2014 to the authorities is highly unlikely to have any effect of the response of the authorities to the applicant’s return to the country. In the Tribunal’s view, the chance or risk of an adverse reaction by the authorities upon the applicant’s return to China based either on his pro-democracy activities, the data breach, or some combination of the two is remote and far-fetched, and, on the evidence before it, the Tribunal considers there are no substantial grounds to believe there is a real risk he will suffer significant harm in that way or for those reasons.
The Tribunal concluded, for the reasons given earlier, that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Judicial Review
The Applicant filed a further Application for judicial review on 24 March 2016, in which he specified his grounds for review as follows (CB4):
1. The first respondent breach (sic) my privacy of information by releasing my name and other details on the Department’s website as per of (sic) the January 2014 detention Statistic for a period of nine days before 19 February 2014.
Particulars
It is a fundamental principle of the Refugee Law that a person seeking asylum like myself should be free to make my protection claims free of disclosure and my identity and other details to the authorities of my home country.
To return me to my home country would be in breach of the non-refoulement principle contained in Article 33 of the UN Refugee Convention and incorporated in section 36(2)(aa) of the Migration Act 1958, and the breach of my privacy of the information has rendered us (sic) a refugee “Sur Place” under the UN Refugee Convention and rendered the decision of the second respondent (sic).
2. As we are (sic) already a “Sur Place” refugee, failing to recognise the (sic) constituted a violation of Procedural Fairness.
3. The Second Respondent owns (sic) me nature justices (sic) in reaching the decision.
4. The Second Respondent erred by finding (sic) as it denied me procedural fairness by take (sic) irrelevant consideration in its decision.
Ground one
I asked the Applicant to explain why he believed the Tribunal’s decision regarding the effect of the data breach on him was wrong.
The Applicant’s response was that if returned to China he will be persecuted because his details were released publically and because the Chinese authorities know about the fact he participated in the civil protest movement in 1989.
The Minister submits in its Contentions of Fact and Law filed on 15 July 2016 at [23] to [26]:
23. The applicant does not explain how the data breach has placed him in a position where he would be at risk of persecution should he return to China.
24. It was open to the Tribunal to find that the data breach included no information about the applicant having lodged a protection visa, having considered evidence including reports from the Guardian Australia, KPMG and the Office of the Privacy Commissioner.
25. The Tribunal did not find the applicant’s claim that his name appeared on a black list due to his pro-democracy activities more than 20 years ago to be credible, with such findings being a matter for the Tribunal par excellence.[2] As the Tribunal had found that the applicant was a low level participant, rather than a leadership figure in the pro-democracy activities whose name appears on a black list, it concluded that the applicant would not face a real risk of significant harm upon return to China. As such, non-refoulement principles were not at risk of being breached.
26. It was further open to the Tribunal to find that a sur place claim had not been established. No information about protection visa applications had been released as part of the data breach, and no evidence had been produced to support the applicant’s claims in relation to a sur place claim having been established.
[2] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
It is apparent, having regard to the Applicant’s submissions, that he disagrees with the Tribunal’s findings:
a)about the nature of the data released publically, because of the data breach;
b)that the data released would not cause the Chinese authorities to be aware of his protest movement activities in 1989; and
c)that the Applicant was not on a “black list” and did not have the political activist profile that would attract adverse interest.
I am satisfied that the Tribunal identified, in its decision record, the source of and the information it relied on for its conclusion that the Applicant’s visa claim or the contents therein were not released publically on the Department’s website. I am satisfied that the Tribunal considered the Applicant’s claims and evidence and engaged in cogent reasoning, leading to its conclusions that:
a)the Chinese authorities would not be aware, because of the data breach, that the Applicant had made a claim for a protection visa, nor would they know the basis for those claims; and
b)the only information the Chinese authorities would be aware of was his name and the fact that he had been in detention since January 2014, because he had been located in the community with no visa. This was information the authorities would likely know, in any event, as they would be contacted by Australian authorities to arrange travel documents for his return travel to China.
The Tribunal did not accept that, because of the Applicant’s pro-democracy activities over 20 years ago, the Applicant would face significant harm on his return to China or that he was on a “black list”. The Tribunal set out its bases for these findings as follows:
a)country information, the gist of which was that 1989 activists, who return to China, were likely to be of interest to the Chinese Government if they have remained politically active and had a high profile. Further, exit procedures were carried out in accordance with Chinese law, which included a bar on people exiting, who may cause danger to national security or extreme harm to national interests;
b)the Applicant’s ability to live a further six years in China after 1989;
c)the Applicant’s evidence that he had not subsequently been politically active;
d)the fact the Applicant was a low-level protestor; and
e)the lack of detail in the Applicant’s evidence about how he would be on a “black list”. The Tribunal found this claim was speculative and not supported by the fact he obtained a passport and left China without difficulty.
These findings were open to the Tribunal.
It is evident that the Tribunal also addressed the cumulative effect of the Applicant’s claims; namely, the effect of the data breach and the Applicant’s claims regarding his pro-democracy activities (including his claim he was on a black list) on the Applicant if he returned to China, and found that there was no substantial grounds to believe there is a real risk he will suffer significant harm for the claimed reasons.
In light of this, I am satisfied that the Tribunal performed the statutory task it was required to engage in under s.414 of the Act: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, at [32].
I find the Tribunal’s decision was not affected by jurisdictional error on this ground.
Ground two
I asked the Applicant to explain why he said the Tribunal’s failure to recognise he was a sur place refugee constituted a violation of procedural fairness.
The Applicant responded that he questioned why the Tribunal insists that his information was not disclosed. He believes it has been disclosed.
The Minister relied on the written submissions in relation to Ground one.
As far as I can ascertain, the Applicant believes that his details, that were part of the data breach, included the fact he has made claims for a protection visa and the content of his claim for protection. He simply disagrees with the Tribunal’s finding that these details were not released.
I have earlier found that the Tribunal disclosed the source and content of the information upon which it made its findings and set out cogent reasons for its findings. In these circumstances, the Applicant’s disagreement with the Tribunal’s finding of fact does not give rise to jurisdictional error.
There is no reason why the Tribunal’s finding regarding the Applicant’s sur place claim denied him procedural fairness.
I find, for the reasons given, no jurisdictional error arises from this ground.
Ground three
I asked the Applicant whether what was claimed by this ground was that he was not given a fair hearing by the Tribunal.
The Applicant said yes. I asked him why he said he was not afforded natural justice. The Applicant responded that the Tribunal’s finding that he would not be persecuted if he returned to China was unfair.
The Minister Submitted in its Contentions of Fact and Law filed on 15 July 2016 at [27]:
The applicant was given an opportunity to appear at the Tribunal hearing, assisted by an interpreter, where he could give evidence and present arguments. He was accorded natural justice in the course of the review proceeding. The applicant has not identified any foundation for his claim to have been denied natural justice.
Again, it is apparent that the Applicant disagrees with the Tribunal’s findings. It is notorious that a Court should not engage in impermissive merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.261. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, the High Court emphasised that judicial review is not an appellate procedure enabling either a general review of a decision or a substitution of the decision, which the Court thinks should have been made: [23].
I am of the view that what the Applicant is asking is that the Court revisit the merits of his claims. Accordingly, I find that no jurisdictional error arises on this ground.
Ground four
I asked the Applicant to explain what were the irrelevant considerations the Tribunal took into account, which had the result that he was denied procedural fairness.
The Applicant identified the irrelevant consideration as the fact that the Tribunal concluded he would not be persecuted if he returned to China, because all that was disclosed by the data breach was his name.
In the Minister’s Contentions of Fact and Law filed on 15 July 2016, it is submitted at [28] to [29]:
28. The applicant does not particularise his “irrelevant considerations” ground, and we have been unable to identify an occasion where the Tribunal has taken account of an irrelevant consideration in the course of reaching its decision. The applicant’s claim of a denial of procedural fairness is not made out.
29. The Tribunal considered each of the claims made by the applicant, provided him with an opportunity to give evidence and present arguments, and has given reasons for the conclusions reached in its Decision Record that are not infected by jurisdictional error.
I accept that the Applicant fundamentally disputes the Tribunal’s findings regarding the content of the data that was made public on the Department’s website. However, as I have made clear, the fact he disagrees with this finding does not give rise to jurisdictional error.
For the reasons I have set out earlier, I find no jurisdictional error arises on this ground. The Tribunal set out the source of the information it relied on and its reasoning leading to its conclusion that the data released in the data breach did not include the fact the Applicant had made an application for a protection visa or the claims he relied on, was cogent and open to it.
Conclusion
For the reasons set out in this judgment, I will dismiss the Applicant’s application for judicial review, with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 27 July 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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