AJO15 v Minister for Immigration
[2017] FCCA 2547
•11 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJO15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 2547 |
| Catchwords: MIGRATION – Judicial review of International Treaties Obligation Assessment decision – data breach – whether the application was denied procedural fairness – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.336E, 476 |
| Cases cited: SZTTA v Minister for Immigration & Anor [2015] FCCA 426 Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) ALR 653 |
| Applicant: | AJO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: Third Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 139 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 August 2017 |
| Date of Last Submission: | 11 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms G Doyle of Sparke Helmore |
ORDERS
The application made on 24 March 2015 and amended on 14 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 139 of 2015
| AJO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 March 2015 seeking review of the decision of the relevant assessor in an International Treaties Obligation Assessment (“ITOA”) dated 17 March 2015, which found that Australia did not have non-refoulement obligations to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant filed an amended application on 14 February 2017. At the hearing of the matter, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. The applicant confirmed that he wanted to rely on the grounds of the amended application. The applicant indicated that he was unable to explain the grounds of the amended application, and that they had been drafted by a lawyer whom a “friend” had arranged to assist him.
The Minister’s written submissions filed on 4 August 2017 addressed the amended application, and as such, there is no prejudice to the Minister. I will therefore address the grounds in the applicant’s amended application.
By way of background, the applicant is a citizen of China (CB 16). He spent an initial period of time in Australia from 27 November 2007 until 4 July 2009 as the holder of a subclass TU-571 (Student) visa (CB 41). He returned to Australia on 12 August 2009. His student visa ceased on 15 March 2010 (CB 41). It is not clear what the applicant did following that cessation of his visa, but it appears that the applicant remained in Australia.
The applicant then applied for a protection (Class XA) visa on 11 July 2013 (CB 1 to CB 35). This was refused by a delegate of the Minister (“the delegate”) on 22 August 2013 (CB 37 to CB 56). The delegate’s decision to refuse to grant a protection visa to the applicant was affirmed by the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) on 9 December 2013 (CB 59 to CB 78). The applicant then applied for judicial review of the Tribunal’s decision, which was dismissed on 27 February 2015 (CB 98 to CB 107 and see SZTTA v Minister for Immigration & Anor [2015] FCCA 426).
In January 2014, the applicant was one of a number of persons held in immigration detention whose personal details were disclosed on the Minister’s department’s website (“the data breach”). The applicant was notified of this by letter dated 12 March 2014 from the Secretary of the Minister’s department regarding “[u]nauthorised access to personal information” (see CB 79). The letter advised that any implications for the applicant personally would be assessed as “part of [the Minister’s department’s] normal processes” (CB 79.7), and advised the applicant that he “may also raise any concerns [he had] during those processes” (CB 79.8).
By letter dated 14 July 2014, the applicant was invited by an officer of the Minister’s department “to provide information regarding the unauthorised access to personal information” to the Minister’s department in writing within 14 days (CB 80 to CB 81).
The applicant responded to this letter on 17 July 2014 (CB 82 to CB 83). He made a number of claims. These included:
a)The Minister’s department, by its conduct, had breached s.336E of the Act, and that given that the Minister’s department had caused the breach, any investigation by it would present a conflict of interest.
b)There was no possible way of determining who had accessed or “saved” the applicant’s personal information, and that therefore there was no possible way of knowing from whom the applicant would likely face harm in the future.
c)The risk of harm in the applicant’s home country increased because the information may have been accessed by intelligence agencies, terrorist organisations and criminal syndicates, “well beyond” the authorities of his home country.
d)A foreign government could use the information as a reason not to grant the applicant a visa for travel in the future.
e)The Privacy Commissioner was the only authority that could appropriately assess the risk of harm to the applicant as a result of the data breach.
f)14 days to respond to the Minister’s department’s letter of 14 July 2014 was “unreasonable”.
In his letter, the applicant referred to what he said were some key findings set out in a report by KPMG in relation to the data breach. This report was commissioned by the Minister’s department to investigate the data breach (“KPMG report”).
On 14 January 2015, the Minister’s department again wrote to the applicant, notifying him of the commencement of the ITOA process, and inviting him to provide any further information for consideration within 14 days of the date of the letter (CB 85 to CB 87).
The applicant responded on 27 January 2015 (CB 88 to CB 90). In his response, the applicant claimed:
a)Procedural fairness during the ITOA process required that “all relevant information be provided” to the applicant, in particular the unabridged version of the KPMG report.
b)If the Minister’s department did not give the applicant access to the unabridged version of the KPMG report, “the only course of action open to [it]” was to “recognise [the applicant] as a refugee sur place”.
c)The breach of s.336E of the Act by the Minister was a “criminal act”, and complaints had been made by the applicant to the Australian Federal Police and the Office of the Australian Information Commissioner.
d)The Minister’s department could not be “impartial” in the ITOA process, and as the “opportunity to be heard by an ‘impartial decision maker’” was at “the heart of natural justice”, the “only decision” open to the Minister’s department was to find that the applicant was a “refugee sur place”.
On 16 February 2015 the Minister’s department wrote to the applicant, giving him the opportunity to “provide comment”, on information relevant to the ITOA process (CB 91 to CB 96). The letter attached adverse information that would be considered in the ITOA. The applicant responded on 18 February 2015, stating that he continued to “rely on all [his] previous statements and submissions made to the department about [his] claims for protection” (CB 97).
The ITOA was finalised on 17 March 2015 with a finding that Australia’s non-refoulement obligations were not engaged in the applicant’s case (CB 108 to CB 127).
In his written submissions dated 4 August 2017, the Minister summarises the findings of the relevant ITOA assessor. I am satisfied that it is a fair summary of the assessor’s findings, and for the purposes of this judgment today, it is convenient to adopt the relevant paragraph as follows ([9] of the Minister’s written submissions):
“In finding that non-refoulment obligations were not engaged in the applicant’s case, the Officer made the following findings (CB 112 – 127):
a) The Tribunal’s findings in relation to the applicant’s protection claims continued to be valid and effective.
b) The applicant would be briefly detained and questioned upon his return in line with China’s laws of general application concerning exit and entry procedures, and as the applicant did not have an adverse profile with the Chinese authorities, such process would not amount to serious or significant harm.
c) The applicant was fully aware of the details of the inadvertently published information and had been afforded procedural fairness.
d) There was no conflict of interest in the Officer conducting the ITOA.
e) The claim that any foreign security and intelligence agency, terrorist organisation and/or criminal syndicates would use the applicant’s information to target and harm him was ‘unsubstantiated and speculative’.
f) It was implausible that the organisations where the applicant would seek employment upon return to China would seek to check the information that was published on the Department’s website and use it as a reason to refuse his employment. Further, the information had been removed and was no longer publicly available. In that regard, the applicant’s claim was ‘speculative and implausible’.
g) Being denied travel, in itself, was not a denial of a human right and did not amount to persecution, torture, cruel, inhuman or degrading treatment or punishment to the applicant.
h) The contention that the applicant be recognised as a refugee sur place was unpersuasive.”
As noted above, the applicant filed an application for judicial review of the relevant ITOA decision on 24 March 2015, in the Perth Registry of this Court.
On 5 August 2015, orders were made by a Registrar of this Court, listing the matter for hearing on 26 February 2016. However, on 14 January 2016, his Honour Judge Lucev made orders vacating the hearing listed for 26 February 2016 pending the High Court’s determination of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) ALR 653 (“SZSSJ”). The matter was also transferred to the Sydney Registry of this Court by orders made by His Honour on 10 August 2016.
The grounds of the amended application are as follows:
“1. The applicant has been denied procedural fairness in that the consideration of the Ministers exercise of his personal power under s48B, 195A or 417 has not proceeded notwithstanding the commencement of consideration of that process by the Secretary's letter dated 12 March 2014 and as detailed in the High Court of Australia's judgment in the matters of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [52] to [56].
Particulars
a. At [56] of the judgment the High Court noted as follows:
56. Here, on the unchallenged finding of the Full Court, the Minister has made a personal procedural decision to consider whether to grant a visa under s195A and s417 of the Act or to lift the bar under s48B in the case of each applicant for a protection visa affected by the Data Breach. The ITOA processes have been undertaken by officers of the Department to assist the Minister in that consideration. An ITOA is accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss48B, 195A and 417 of the Act.
2. The reviewer denied· the applicant procedural fairness by failing to warn him that it would not apply the assumption that all of the appellant's personal information had been accessed by all the persons or entities from. whom he feared persecution or other relevant harm as held by the High Court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [91].”
The applicant was unable to assist the Court with any explanation in relation to the grounds in his amended application. The applicant submitted that he did not know what was written in the amended application. It had been drafted for him by “lawyers”. In any event, it is clear is that those grounds attempt to rely on the High Court’s judgment in SZSSJ.
Drawing on what I have said earlier, in particular I note the following.
The applicant had applied for a protection visa in Australia. Ultimately, this was refused. The decision was reviewed by the Tribunal. Following an unsuccessful application for judicial review, the applicant was taken into immigration detention. While in immigration detention, he was one of a very large number of persons to be affected by the data breach. The Minister’s department commenced a process, the ITOA, to consider the applicant’s situation.
For current purposes, it is sufficient to note that the High Court held in SZSSJ at [41] that the ITOA process is an administrative process. Its purpose was to inform the Minister for Immigration as to the possible exercise of the Minister’s non-compellable powers under the Act. Amongst other matters, the High Court confirmed that the subject of such a process, that is, for example, the applicant before this Court, is entitled to be afforded procedural fairness (SZSSJ at [74] - [79]).
In this light, ground one of the amended application asserts that the applicant was denied procedural fairness. The applicant was unable to further explain the exact complaint in this ground. However, it would appear that the real complaint is that the applicant’s case was not referred to the Minister personally for consideration. That is, for the Minister to consider whether to exercise any of the relevant powers conferred by the Act.
As the Minister’s written submissions, in my view, correctly submit, the complaint is misconceived. The High Court in SZSSJ found that the object of the ITOA process was to inform the Minister as to the possible exercise of any of his otherwise non-compellable powers (see SZSSJ at [41]). In the current case, the assessor found that Australia’s non-refoulement obligations were not engaged in relation to the applicant. This conclusion, and the findings that informed it, were all reasonably open to the assessor on what was before him. In effect, having reached that conclusion, there was no necessity or utility, in referring the applicant’s case to the Minister.
It is to be remembered that the purpose of any such referral would be for the Minister to consider the exercise of his powers under the Act. The effect of the assessor’s conclusion was that there was no basis for any such exercise. The applicant has not otherwise indicated how he was denied procedural fairness.
On the evidence that is before the Court, the applicant was given, in writing, two opportunities to provide information for the purposes of the assessment. I have already referred to those letters and, indeed, the applicant’s response to both of them (see above at [8] – [9] and
[11] – [12]). I note, in particular, that the assessor addressed the remaining outstanding matters arising from the applicant’s responses (see CB 116 to CB 118.5).
It must be said that, in the circumstances, ground one is a formulaic attempt to express a grievance with the assessor’s conclusion. I note further, in this regard, that before the Court, the Minister’s solicitor referred to another recent judgment of this Court, BNW15 v Minister for Immigration & Anor [2017] FCCA 1737, in which an applicant involved in a similar data breach incident put before the Court grounds which, but for minor differences, were almost identical to the grounds that the applicant has now provided to this Court. In all, therefore, there is no legal error revealed by ground one.
Ground two asserts that the applicant was denied procedural fairness because the assessor did not warn the applicant, that he would not apply the “assumption” that all of the applicant’s personal information had been accessed by all the persons or entities from whom he feared persecution. I note, in this regard, that the applicant had previously been put on notice, by the Minister’s department’s letter dated 16 February 2015, of the following (CB 93.7):
“When assessing protection claims in relation to the privacy data breach, case officers are instructed to assume that the authorities in the claimant’s receiving country may have accessed personal information released on the department’s website. Case officers will refer to the claimant’s personal circumstances and country information to determine whether the privacy data breach will affect the individual if he or she is returned to his or her country of origin.”
The assessor made specific reference to the letter of 16 February 2015, and to what is quoted at [28] above, in his decision record (at CB 116.5). The assessor then proceeded to apply the “assumption” in the assessment of the applicant’s circumstances.
On what is before the Court, the assessor’s approach was consistent with High Court authority in SZSSJ, and in all, ground two is not made out.
Conclusion
There is no legal error in the ITOA. It is therefore appropriate to dismiss the application. I will make that order.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 October 2017
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