AHB17 v Minister for Immigration
[2017] FCCA 1863
•7 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHB17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1863 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – 2014 data breach – whether the Authority fairly or properly dealt with the applicant’s claim in respect of the data breach considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 46A |
| Cases cited: Minister for Immigration v SZSSJ; Minister for Immigration v SZTZI [2016] HCA 29; (2016) 333 ALR 653 SZTFZ v Minister for Immigration & Anor [2014] FCCA 1861 |
| Applicant: | AHB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 39 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 August 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 7 August 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The application filed on 19 January 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 39 of 2017
| AHB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 19 December 2016. The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of legal submissions, filed on 28 July 2017.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 20 September 2012 and is an unauthorised maritime arrival.
On 3 June 2016, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa.[1]
[1] Court Book CB28–32
On 11 August 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV). That application was received by the Minister's Department (Department) on 15 August 2016.[2]
[2] CB33–84
On 9 November 2016 a delegate of the Minister (delegate) refused to grant the applicant a SHEV.[3] The delegate's decision was a fast track reviewable decision and was referred by the Minister to the Authority for review.
[3] CB134–152; esp. CB139–152
On 19 December 2016 the Authority affirmed the decision under review.[4]
[4] CB169–188; esp. CB172–188
Applicant’s claims
The applicant’s claims were set out in the statement accompanying his SHEV application.[5] He claimed to fear harm on the basis of his political opinion as a supporter of the United National Party (UNP), his status as a failed asylum seeker and illegal departee, and his status as a person affected by the February 2014 data breach by the Department (the data breach). The applicant also claimed to have converted to Christianity after his arrival in Australia; however, he made no claims to be at risk of persecution for this reason.
[5] CB70–74
In support of his claims to fear harm on the basis of his involvement with the UNP, the applicant recounted the following events:
a)his role was to canvas support for the UNP and put up posters in his local area;
b)in August 2008, he was attacked by a man named Sampat due to his association with the UNP and he suffered a cut to his Achilles tendon;
c)in January 2009, he was organising a meeting for a candidate when a man named Irfan vandalised the stage and assaulted the applicant, and told him to stop working for the UNP;
d)in February 2009, he was arrested by the police, severely beaten and warned to stop associating with the UNP;
e)on 17 February 2009, he was deliberately hit by a motorcycle and attacked by the rider with a knife. He claims his attacker was Irfan; and
f)in August 2011, he and four other UNP supporters were attacked. He was hit in the face with a metal bar and his jaw was broken.
Authority decision
The Authority accepted that the applicant had a low level of political involvement with the UNP. However, it found that there was no indication in the country information that this level of involvement would give rise to persecution on that basis or resulted in being subjected to discrimination or targeting.[6] Relying on its finding that the applicant had a low level of political involvement, the Authority rejected the applicant's factual claims for the reasons below:
a)in relation to the 2008 incident, the Authority accepted that the applicant suffered a cut to his right leg but found that this may have occurred as a result of generalised pre-election violence rather than as a result of the applicant being personally targeted by Sampat;[7]
b)regarding the January 2009 incident, the Authority was prepared to accept that there may have been a disturbance at the meeting and that the applicant may have been threatened, but was not prepared to accept that the applicant was individually targeted or that the applicant faced ongoing threats as a result of this incident;[8]
c)regarding the February 2009 arrest, the Authority considered it implausible that the applicant would have been arrested for supporting a candidate but later released at the request of that candidate.[9] The Authority was prepared to accept that the applicant was questioned by police but not by reason of his support for the UNP;
d)in relation to the motorcycle incident, the Authority did not accept that the applicant was targeted by Irfan or incurred injuries for the reasons claimed due to implausibility in his account and the fact that he could obtain medical documents of the 2008 incident, but not the 2009 incident;[10] and
e)in light of its findings that the earlier incidents were as a result of generalised pre-election violence, the Authority found that the 2011 incident was also attributable to generalised pre-election violence and not a personal attack.[11]
[6] CB175–176 at [10]–[15]
[7] CB 176 at [18]
[8] CB177 at [21]
[9] CB177 at [25]
[10] CB 177–178 at [26]–[29]
[11] CB 178 at [30]–[31]
Having regard to the country information and the applicant's profile, the Authority did not accept that he would face harm on the basis of his status as a failed asylum seeker.[12] In relation to his illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm[13] or significant harm[14] and that the applicant would face a law of general application.[15] The Authority found that the applicant did not face a risk of harm arising from the data breach on the basis of country information and the applicant's profile.[16]
[12] CB 179–180 at [42]–[44] and CB182 at [60]
[13] CB181 at [52]
[14] CB183 at [63]–[64]
[15] CB181 at [53]
[16] CB179 at [38]
The Authority found that the applicant did not have a well-founded fear of persecution due to his conversion to Christianity in either the refugee or complementary protection contexts.[17]
[17] CB179 at [40]–[41] and CB182 at [59]
The Authority ultimately concluded that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act[18] nor did he satisfy the complementary protection criterion.[19]
[18] CB181 at [55]
[19] CB183 at [64]
The present proceedings
These proceedings began with a show cause application filed on 19 January 2017. The applicant continues to rely upon that application, although he sought to augment it orally. There is one particularised ground in the application:
1.The IAA failed to follow the judgment of the High Court of Australia in Minister for Immigration and Border Protection v SZSSJ and Anor [2016] HCA 29 (27 July 2016).
(a) At [91] the High Court of Australia held:
Sensibly interpreted and applied in the context of making an assessment of whether the Data Breach engaged Australia's non-refoulement obligations with respect to them, the assumption was not simply that some of their personal information might have been accessed by some authorities. The assumption was rather that all of their personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm.
(b)The IAA failed to apply this assumption in assessing the applicant's data breach claim and thereby denied him procedural fairness.
In addition to the applicant’s affidavit filed with his application, I have before me as evidence the court book filed on 21 February 2017. I also accepted as an exhibit[20] the letter dated 12 May 2014 from the Secretary of the Department to the applicant, concerning the February 2014 data breach. The exhibit includes a Singhalese translation of the letter.
[20] Exhibit A1
Only the Minister prepared written submissions in accordance with procedural orders made by a judge of this Court.
I invited oral submissions from the applicant this afternoon. He raised for the first time a new ground of protection. The applicant told me that his father died in October 2015. He told me that his father’s death was related to the data breach, because of threats and pressure applied to his father by the Sri Lankan authorities following the data breach. When I pressed the applicant for further details of this claim, he told me that his father suffered from mental agony following threats by the authorities, which led to excessive drinking, which in turn resulted in his father’s death. It appears that the link between the data breach and the death of the applicant’s father was drawn by his mother, who passed the information on to him orally.
The applicant confirmed that he was revealing this information for the first time today. He told me that he had been afraid to reveal the information previously, and had suffered from some mental problems. The new information might be considered relevant by the Minister, were he minded to give further consideration to the applicant’s claims. As I pointed out to the applicant, however, it does not assist me in dealing with his judicial review application. That is because the information was not provided to the Authority.
The ground of review in the application contains a quote from the decision of the High Court in Minister for Immigration v SZSSJ; Minister for Immigration v SZTZI.[21] The quotation is taken out of context from the High Court’s decision, and needs to be considered in its proper context. The context is provided by the full text of [90] and [91] of the High Court decision:
The assumption made in the ITOA process that their personal information may have been accessed by authorities in Bangladesh and China removed from the scope of factual inquiry any question of precisely who accessed their personal information as a result of the Data Breach. The assumption was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them, and when, might be expected to have been a hopeless endeavour.
Sensibly interpreted and applied in the context of making an assessment of whether the Data Breach engaged Australia's non-refoulement obligations with respect to them, the assumption was not simply that some of their personal information might have been accessed by some authorities. The assumption was rather that all of their personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm. That is how the assumption was in fact interpreted and applied by the officer who conducted SZTZI's ITOA and how it could reasonably be expected to be interpreted and applied in the conduct of SZSSJ's ITOA.
[21] [2016] HCA 29; (2016) 333 ALR 653 at [91]
The High Court was not setting down a general principle as to the proper approach to be taken by decision-makers in relation to the data breach. The High Court was simply making clear the sensible approach taken by the Department for the purposes of the International Treaties Obligations Assessment (ITOA) the subject of the High Court’s decision. The issues dealt with by the High Court in SZSSJ were those set out at [39] of the High Court’s reasons.
In my view, the Authority did not err in its consideration of the data breach. The applicant’s claims in relation to the data breach were limited to his claim of political persecution or significant harm. The data breach was considered by the Authority in that context.
The data breach might also have borne upon the applicant’s claim to be a returnee who would be recognised as a failed asylum seeker. That claim was referred to by the Authority at [60] of its reasons.[22] There, the Authority accepted that the applicant may be identified as a returned asylum seeker should he return to Sri Lanka. Importantly, however, the Authority reasoned that that fact alone would not expose the applicant to harm from the Sri Lankan authorities. The Authority reasoned that the applicant was not of any interest to the Sri Lankan authorities by reason of his actual or perceived political opinion.
[22] CB182
I otherwise agree with the Minister’s submissions in relation to the ground of review advanced by the applicant.
The applicant contends that the Authority “denied him procedural fairness” by applying an incorrect assumption in relation to the personal information that may have been accessed by authorities as a result of the data breach. To the extent that the applicant makes complaints about the procedure of the Authority in handling this claim, SZSSJ relevantly concerned a different decision-making scheme - the ITOA - and therefore is not necessarily a relevant authority to refer to for the purpose of assessing the Authority’s compliance with its procedural fairness obligations.
The Minister’s submissions include a comprehensive discussion of the statutory framework within which the Authority operates. It is not necessary to repeat that statutory framework which has been referred to numerous times in other decisions. It is sufficient to note that the applicant’s ground of review raises an issue of procedural fairness, and the procedural fairness obligations of the Authority must be informed by the statutory framework within which it operates.
In any event, in substance, the applicant’s ground of view is not an assertion of procedural unfairness but an assertion that the Authority misunderstood or misapplied some rule or principle established by the High Court in SZSSJ. There was no such misunderstanding or misapplication.
The Authority appropriately considered the data breach in making its decision and did so in accordance with its own statutory obligations. The Authority considered the applicant's specific claims that he would be at risk of harm from Irfan and Tissa.[23] Regarding the Sri Lankan authorities, the Authority found the applicant was not at risk of “harm” on the basis that the authorities do not have any interest in the applicant.[24] While the Authority did not make an explicit finding about whether the applicant would face a real risk of significant harm in the context of complementary protection as a result of the data breach, I accept that the Authority made sufficiently dispositive findings in the context of the refugee criterion where it found that the applicant was not at risk of “harm” (generally, and not qualified by the word “serious”), such that this finding was sufficient to dispose of that claim the context of the complementary protection criterion.[25]
[23] at [37]–[38]
[24] at [38]
[25] cf. SZTFZ v Minister for Immigration & Anor [2014] FCCA 1861 (Judge Driver) at [23]–[24], [27]–[29] (that decision was affirmed on appeal: SZTFZ v Minister for Immigration [2015] FCA 1347 (Buchanan J), and special leave to appeal from the decision of Buchanan J was refused: SZTFZ v Minister for Immigration [2016] HCASL 34
In addition, the applicant's claimed fear arose primarily from his political activities, and the Authority had already found that his low-level political involvement did not give rise to a real chance of persecution.[26] As such, there is no need for any separate consideration given the Authority’s earlier findings.
[26] at [58]
Other issues
In the context of complementary protection, the Authority found that the applicant's experiences on account of his illegal departure would not amount to significant harm.[27] In doing so, the Authority relevantly made findings that there was no “indication that authorities or others, through any act or omission intentionally inflicted pain or suffering” harm.[28]
[27] at [61]–[63]
[28] at [62]
On current authority, this Court is bound to hold that the definition of significant harm was not satisfied in the absence of an “actual subjective intention”.[29]
[29] SZTAL v Minister for Immigration (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL) per Kenny and Nicholas JJ at [59]
An appeal from the decision of the Full Court of the Federal Court of Australia in SZTAL was heard by the High Court of Australia on 5 April 2017, with judgment reserved.
Until held to be wrong, this Court remains bound by the Full Court's decision in SZTAL.
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of my dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant sought, and was given, clarification of the outcome of today’s proceedings but did not seek to make any submissions on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 August 2017
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