AIK15 v Minister for Immigration
[2017] FCCA 1044
•9 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIK15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 1044 |
| Catchwords: MIGRATION – Judicial review – International Treaty Obligation Assessment – procedural fairness – alleged failure to ask correct question because of focus on contradictory evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Privacy Act 1988 (Cth) |
| Cases cited: CDM16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2758 AKD15 v Minister for Immigrationand Border Protection & Ors [2016] FCCA 2740 |
| Applicant: | AIK15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | DNG 8 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 9 May 2017 |
| Date of Last Submission: | 9 May 2017 |
| Delivered at: | Darwin |
| Delivered on: | 9 May 2017 |
REPRESENTATION
| Applicant in person via video link |
| Counsel for the Respondent: | Ms Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 24 March 2015 be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 8 of 2015
| AIK15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision made by an assessor as part of an International Treaty Obligation Assessment or ITOA for shorthand. The decision was made on 17 March 2015. This matter was adjourned by consent on 12 November 2015 pending the outcome of the case ultimately decided by the High Court in Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653. The matter has come for hearing today after that case was resolved in the High Court.
The grounds of the application were originally a template application of a kind that has been used repeatedly in this Court with the difference that, in this case, it appears the template is missing a page, certainly on the version that has been filed in court. Instead of the usual 19 grounds there are only 17. That template application was one that has been dealt with in other decisions. It was the template that was used in SZSSJ and has been considered in other cases in this Court such as CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758 and AKD15 v Minister for Immigrationand Border Protection [2016] FCCA 2740.
The significance of the template is that, while the applicant filed an amended application abandoning the template grounds, in oral submissions the applicant returned to one of the grounds that had been raised in the template application, that is, ground eight alleging a breach of the Privacy Act.
The applicant filed an amended application on 31 March 2017 which abandoned the template grounds and relied on one ground with particulars. The one ground is that the third respondent erred in asking herself the wrong question. The third respondent is the assessor in the ITOA process. The ITOA was directed towards assessing whether Australia’s non-refoulement obligations were engaged by the data breach when personal information about the applicant and many others was published on the internet by accident in February 2014. The applicant was an applicant for a protection visa. She is a citizen of China.
Returning to the amended application, the ground is that the third respondent, that is, the assessor, erred in asking herself a wrong question and particulars are given as follows:
a)On 12 March 2014, the second respondent wrote to me stating that any implication of the data breach for me would be assessed as part of the department’s normal processes.
b)The third respondent undertook a review of the previous findings which included an adverse credibility finding and country information that pre-dated the data breach.
c)The third respondent did not put the passages of the RRT findings to me to contradict; and
d)The third respondent erred in asking herself the wrong question as to whether my evidence contradicted previous findings. Her duty was to assess whether my protection claims in relation to the data breach engaged non-refoulement obligations. She did not do this.
The applicant did not comply with an order to file written submissions. That is perhaps not surprising as she is not legally represented, she speaks Mandarin and her English is very limited it would appear. She was not able to make submissions directed towards supporting the ground in her amended application. When invited to make oral submissions she made submissions that appeared to me to be unrelated to her amended application. Nevertheless, I did my best to assess the ground in the amended application with reference to the material that was before me.
It is relevant to consider the chronology of events in this matter. The applicant, as I have mentioned, is a citizen of China. She was an authorised arrival by air in November 2009 and overstayed her visa. On 23 January 2014 she applied for a protection visa. The grounds for her application were, broadly speaking, that she had protested against unjust compulsory acquisitions of her property in China and was then subject to adverse notice by the Chinese authorities.
The Refugee Review Tribunal eventually decided that Australia’s protection obligations were not engaged. An appeal to the Federal Court was dismissed on 7 November 2014. In February 2014 there was the event to which I have already referred, the ‘data breach’, being a shorthand reference to the inadvertent or accidental publication on the internet by the Department of the personal details of the applicant and others. On 12 March 2014 the Department advised the applicant of the data breach. On 14 July 2014 the Department invited submissions from the applicant as to the impact of the breach on her.
On 31 August 2014 the applicant replied to that invitation and made submissions about the impact of the data breach on her. The submissions appear somewhat pro forma. She asserted in those submissions that it was, in substance, unethical for the Department to be investigating itself in relation to the data breach and she also asserted that she was at risk from criminal syndicates or terrorist organisations as a result of the data breach information being accessed by them and by the Chinese authorities. I might add that an assumption used in the subsequent ITOA was an assumption that the information had been accessed by the Chinese authorities.
On 14 January 2015 the Department notified the applicant that the ITOA was to take place and invited submissions. On 28 January 2015 the applicant made submissions and those submissions appear, again, to be somewhat pro forma. She referred to a criminal act, presumably a reference to the data breach itself. She required complete disclosure of the circumstances regarding the data breach. It was submitted that there ought to be an impartial decision-maker assessing the consequences and asserted that there would be a lack of procedural fairness in an officer of the Department undertaking the process.
It is noteworthy that in none of those submissions was there any suggestion that there had been a change of circumstances since the RRT decision affecting the applicant or any submission directed towards either a change of the applicant’s personal circumstances or a change in circumstances in China that would make the findings of the RRT invalid or necessitate review of those findings.
On 19 February 2015 the Department sent a letter to the applicant which has been referred to by counsel for the Minister as a ‘procedural fairness letter’. It, in substance, invited further submissions from the applicant but also included an attachment which is headed “Adverse information that will be considered in this assessment”. I will not refer to each of the subheadings included in that letter but the letter does refer to the applicant’s protection visa application and the dismissal of that application by the RRT and referred to, in general terms, the conclusions of the RRT, that is, that the applicant did not face a real chance of being subjected to serious harm by Chinese authorities or any individual or groups on return to China.
The procedural fairness letter also referred to the RRT having considered the potential consequences of the data breach on the applicant. The letter also referred to the protection claims having been considered through a relevant protection status determination process and the letter went on to say:
There is no indication that there was any legal error in either the department’s decision or the RRTs decision.
The procedural fairness letter also referred to country information and, while there was detailed consideration or detailed reference to the country information, I can summarise it as follows: the country information supported the view that returnees or failed asylum seekers were unlikely, unless they had some independent profile, to be subjected to any significant harm or adverse consequences on returning to China. It was accepted that returnees may be interviewed and detained for a short period. It said that seeking asylum overseas was no longer viewed by Chinese authorities as an act of disloyalty, as distinct from someone who publicly criticised the Chinese government, who might be subjected to more severe treatment.
The general tenor of the country information was that the applicant as a returnee or failed asylum seeker would not be subjected to any serious harm on return to China, although she may be detained, questioned, and even fined if her absence overseas was unauthorised, as would appear to be the case here. As I have previously mentioned in the recitation of the chronology, there was no response from the applicant to those matters.
The amended grounds allege that the third respondent, having undertaken a review of the previous findings, which included an adverse credibility finding and country information that pre-dated the data breach, did not put those passages of the RRT findings to the applicant to contradict. Leaving aside the question of whether or not the third respondent was undertaking a ‘review’ of the previous findings, while the previous findings may have been referred to, the actual process being undertaken was a separate assessment of whether or not Australia’s non-refoulement obligations were engaged.
The RRT decision certainly included adverse credibility findings, in the sense that the Tribunal did not accept the claims advanced by the applicant. And it is true that the specific passages containing the adverse credibility findings of the RRT were not put to the applicant in the procedural fairness letter. I might add that the ITOA was conducted entirely in writing.
While those precise passages were not put to the applicant, the procedural fairness letter certainly put to the applicant that the protection visa claims had been dismissed and that the findings of the RRT were not the subject of any finding of legal error. While it is true that the precise passages of the RRT findings were not put, the general conclusions of the RRT were put and it was put there was no error in those conclusions. It appears to me that there is no error or denial of procedural fairness in the way that the procedural fairness letter was couched, in that it did not deprive the applicant of the opportunity to comment on the matter.
The country information, which I have summarised, was also relied on by the assessor in terms that did not depart from the terms of the country information outlined in the procedural fairness letter. I do not accept as a matter of fact that the assessor did not put those passages to the applicant. They were put in the procedural fairness letter and an opportunity to contradict or challenge them was certainly given.
I should refer at this stage to the decision of Mortimer J in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279. Mortimer J, at paragraph [42], describes the task in an ITOA as twofold. First, the task is to determine whether there were any changes in the appellant’s circumstances since the determination of protection claims which might give rise to a protection obligation. That was to be a broad assessment, not limited to any risks flowing from the data breach. Secondly it was to determine whether or not the data breach, or as his Honour calls it, “the publication of personal information”, gave rise to any risk of harm should the applicant be returned, in that case to Thailand, and whether those risks arose because of a Convention reason or some other relevant reason.
I accept that the task of the assessor in this case was identical, that is, assessing whether or not there had been any change in the applicant’s circumstances since the time of the RRT decision, which, as I have mentioned, was not shown to be the subject of legal error. There was no evidence of any change in circumstances, either in the country or in the applicant’s personal circumstances. I am satisfied that the procedural and substantive requirements of the ITOA process were satisfied given that there were no changes, and certainly no changes addressed by the applicant, at any point.
The applicant goes on, at part 1(d), to say that the third respondent, that is, the assessor, erred in asking herself the wrong question, “as to whether my evidence contradicted previous findings”. As counsel for the Minister has pointed out, that appears to be a reference to a decision in this Court in SZUBX v Minister for Immigration [2015] FCCA 2822 where Judge Street found that the assessor had been ‘deflected’ from the correct question or questions, as described by Mortimer J for example, to consider whether or not the applicant’s submissions or assertions or evidence in the ITOA contradicted previous findings of the RRT and thereby failed to address the proper question.
That is not the case here. The assessor, on my reading of the decision, has not addressed or considered in any way whether there are any contradictory answers from the applicant or answers that contradicted findings of the RRT because there were no relevant submissions from the applicant that contradicted earlier findings. The assessor did not address that because she was not required to. The assessor proceeded on the basis, as she was entitled to do, that the RRT findings were correct. The assertion in 1(d) that the third respondent erred in asking herself the wrong question as to whether her evidence contradicted previous findings is based on an incorrect assumption. There was no evidence that contradicted previous findings.
The other matter that was raised orally by the applicant was a breach of the Privacy Act. That appears to hark back, as I have mentioned, to ground eight in the original application. The data breach may well have been a breach of the Privacy Act. I make no finding about that but that in itself can have no bearing on the question of whether or not there has been a jurisdictional error made by the assessor. I agree with the observations made by Judge Driver at paragraph [25] of CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758. His Honour said that the assertion in the template that he was considering – the identical template to that in this case – was a mixture of factual assertions and allegations of breach of the Privacy Act and a criminal offence. He said these matters did not engage the jurisdiction of the court other than as a factual basis for considering the question of jurisdictional error. I agree with that observation.
The other ground that was raised by the applicant in her oral submissions was that as a consequence of the data breach she may be denied the right to travel overseas. It was a little unclear who she was referring to as denying her right to travel overseas but I interpreted that to mean that she may be denied the right to travel overseas by foreign governments, that is, governments other than China, who may, in view of her immigration history in Australia, refuse her a visa.
That was considered by the assessor in the ITOA. The assessor concluded that she did not need to address that claim, which she took as a claim regarding the claimant being denied a visa for travel to countries outside China, because the refusal of a visa by that other country would not be an action of the Chinese government. So to that extent, I find that the issue raised by the applicant in her oral submissions was addressed. I see no error in the way that it was addressed. Accordingly I dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young.
Date: 18 May 2017
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