AKC15 v Minister for Immigration and Ors (No.2)
[2018] FCCA 636
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKC15 v MINISTER FOR IMMIGRATION & ORS (No.2) | [2018] FCCA 636 |
| Catchwords: MIGRATION LAW – Applicant in breach of Chinese one-child policy – lodges application for protection visa – fears vasectomy if returned to China – fears imposition of fines – protection visa refused – Data Breach – applicant among those whose personal data is released on departmental website – application for judicial review of decision of ITOA assessor – whether applicant denied procedural fairness – whether ITOA assessor correctly applied assumption as to extent of data release – whether ITOA decision supported by evidence – criticisms of ITOA not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 36, 48B, 195A, 198, 417 Convention Relating to the Status of Refugees |
| ABV16 vMinister for Immigration and Border Protection [2017] FCA 184 AKC15 v Minister for Immigration and Border Protection [2017] FCCA 450 AKD15vMinister for Immigration and Border Protection [2017] FCA 166 ALZ15 vMinister for Immigration and Border Protection [2017] FCA 279 APD15 v Minister for Immigration and Citizenship [2017] FCA 407 BMF16 vMinister for Immigration and Border Protection [2016] FCA 1530 BRF038 v The Republic of Nauru [2017] HCA 44 HFM045 v The Republic of Nauru (2017) 350 ALR 34 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMUF vMinister for Immigration and Citizenship [2009] FCA 182 SZSLM v Minister for Immigration and Border Protection [2017] FCA 413 SZTZM vMinister for Immigration and Border Protection [2017] FCA 534 |
| Applicant: | AKC15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | ITOA ASSESSOR |
| File Number: | PEG 137 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 31 May 2017 |
| Date of Last Submission: | 31 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Spencer |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Mr Yuile |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. PEG 137 of 2015
| AKC15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| ITOA ASSESSOR |
Third Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 28 April 2017, judicial review is sought of a decision made upon an International Treaties Obligations Assessment (ITOA). By reasons dated 23 March 2015, the assessor determined that the applicant was not a person in respect of whom Australia had non-refoulement obligations under the Refugees Convention, the Torture Convention or the International Covenant on Civil and Political Rights (collectively, the conventions).
The applicant, a Chinese national aged 43 years, arrived in Australia on 10 October 2012 on a tourist visa valid until 10 January 2013, which visa was extended to 10 April 2013. The applicant became an unlawful non-citizen when that visa expired. He was then detained.
On 7 May 2013, the applicant applied for a Protection (Class XA) visa.
The applicant claimed protection on the basis that, in breach of the Chinese one-child policy, he and his wife had had two children. By his application it was claimed that the applicant had been questioned and detained on two occasions and that he faced harassment from the Family Planning Office which had levied fines on him. The applicant feared that if returned to China he would face further fines and be forced to undergo a vasectomy.
On 23 July 2013, a delegate of the first respondent refused the visa application. The applicant sought review of that decision by the Refugee Review Tribunal. The application was heard and determined, adversely to the applicant. On 14 October 2013, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa.
The applicant remains in detention.
The Data Breach
On 10 February 2014, an event known as the ‘Data Breach’ occurred. The breach entailed the unintentional disclosure of the identities of 9,258 protection visa applicants on the website of the Department of Immigration and Border Protection. The breach was rectified on 24 February 2014 by the removal of that information from the department’s website: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, [1]-[4].
The applicant was one of those 9,258 applicants.
As the applicant’s counsel observed, the Data Breach was a very serious matter. The department responded to that breach by retaining external consultants, KPMG, to conduct an investigation. KPMG prepared a report, an abridged version of which was provided to affected parties, including the applicant. As the Court observed in SZSSJ at [7], one consequence of the Data Breach was an obvious risk that ‘those in other countries from whom applicants for protection visas claimed to fear persecution or other relevant harm might have gained access to the document [and so] become aware of the identities of applicants for protection visas in Australia.’
The department responded to that risk by establishing a standardised set of procedures now known as ITOA assessments to assess the impact of the breach on particular visa applicants.
The purpose of the ITOA assessment was to assess whether, as concerned a particular applicant, Australia was in breach of its non-refoulement obligations under one or other of the conventions: SZSSJ, [9], [89]. The procedures upon which the assessments were conducted were recorded in a manual that was publicly available: SZSSJ, [9], [88]. ITOA assessors were instructed to adopt an assumption that the applicant’s personal information may have been accessed by authorities in the country in which the applicant feared persecution or other relevant harm: SZSSJ, [10], [90], [91].
One outcome of an ITOA assessment was a finding by the assessor that Australia’s non-refoulement obligations were enlivened under one or other of the conventions. In that event, the affected applicant’s case might become the subject of a Ministerial referral to lift or remove a statutory bar to the grant of a protection visa. Upon referral it was open to the Minister to exercise various non-delegable and non-compellable powers to substitute a decision favourable to an applicant in place of that which had been arrived at by a Tribunal: see ss 48B, 195A and 417.
An important feature common to those provisions is that those powers are open to be exercised in relation to persons who are in detention. Although the Court has determined that the powers conferred on the Minister by these provisions are not conditioned by an obligation of procedural fairness, contrastingly, it remains an implied condition of the exercise of the power to conduct an ITOA that the assessment will be attended by procedural fairness by reason that the exercise of that power was apt to prolong the period of an applicant’s detention: SZSSJ, [12], [41]-[43], [52]-[55], [74]-[79]. The Court held at [75]:
. . . it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power . . . The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced . . .
As the applicant was the subject of the Data Breach, the ITOA process was engaged and from the ITOA decision the matter is before the court.
Background
The Tribunal accepted that the applicant had two sons but did not accept there was a real chance he would suffer harm as a result of the breach of Chinese family planning laws. As the applicant’s sons had been registered, this suggested to the Tribunal that the compensation fee levied by the family planning department had been paid. The applicant’s wife appeared not to have had any problems with Chinese authorities in the period since the applicant’s departure.
The Tribunal inferred that Chinese authorities were not interested in the applicant’s family. It found that the applicant was able to pay and had no moral objections to payment of the compensation fee which had been levied. The Tribunal had significant credibility concerns about the applicant and the evidence he had given. It was not satisfied that family planning authorities in China had any adverse interest in the applicant and did not accept that he had been detained, beaten or threatened. Nor did it except that the applicant would be detained, sterilised or harmed if he were to be returned to China.
The applicant was informed of the Data Breach. By letter dated 12 March 2014, the department wrote to the applicant a letter titled ‘Unauthorised access to personal information’. The department’s letter expressed its deep regret at the inadvertent disclosure of the applicant’s personal data. It identified that the information which was possible to access from the department’s website comprised the applicant’s name, date of birth, nationality, gender, details about his detention and whether he had any other family members in detention. The letter also identified the types of information which was not included on the website.
In concluding, the department’s letter stated in part:
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.
By letter dated 14 July 2014, the department wrote to the applicant a letter entitled ‘Invitation to provide information regarding the unauthorised access to personal information’. The letter reiterated that the applicant was a person affected by the Data Breach and of the nature of the information which was, and was not, included on the department’s website respectively. The letter stated in part that:
You were informed that any implications for you personally would be assessed as part of the department’s normal processes.
Currently you do not hold a permanent visa to remain in Australia and may be liable for removal. If you have concerns regarding the impact of the data breach in your case, then you are invited to put those concerns to the department in writing.
Any concerns you have will be considered in addition to any other information you have already provided to the department. If you have any concerns about the impact of the data breach on your ability to return to your home country or country of usual residence, you should give specific reasons as to why you cannot return.
The applicant was requested to provide additional information in writing within 14 days. He did so.
By letter dated 17 July 2014, the applicant responded in some detail to the department’s letter. The applicant objected to the department conducting an ITOA assessment on the basis that the department was, in effect, conducting an investigation in relation to the implications of the Data Breach which had been committed by the department itself. This objection has now been considered and rejected in SZSSJ: [80] – [85]. The applicant requested that the ITOA process be conducted according to principles of natural justice which would include that:
. . . if there were to be an adverse finding made in my case that I be notified of the reasoning behind the finding and be permitted to make a response which should be taken into account before any final decision is made.
By letter dated 14 January 2015, the department wrote to the applicant stating that it had commenced an ITOA assessment on that date so as to consider whether the applicant’s case engaged Australia’s non-refoulement obligations in the circumstances flowing from the Data Breach. The letter stated in part:
Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA.
…
This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protections claims were assessed.
You will receive procedural fairness during the ITOA process. In particular, this means that the departmental officer who assesses your claims for protection will ask you to comment on any adverse information, which is credible, relevant and significant to the decision. You will be given a reasonable opportunity to respond to that information before the ITOA is finalised.
By letter dated 21 January 2015, the applicant responded to the department’s letter to which he attached:
(a)a report of the Privacy Commissioner into the Data Breach;
(b)the abridged KPMG report; and
(c)Procedural Fairness Guidelines of the Office of the Ombudsman, Western Australia.
The applicant made submissions including as to the scope of the department’s obligation of natural justice.
The applicant also stated that he regarded the department’s responsibility for the Data Breach as attracting criminal sanctions, which he had reported to the Australian Federal Police and others. The applicant submitted that in all the circumstances, the only decision open to the department was to make a finding that the applicant was a refugee sur place.
By letter dated 16 February 2015, the department wrote to the applicant referring to the ITOA process and stated in part:
As previously advised this ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case. This ITOA will only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken. (Emphasis added)
Attached to the department’s letter was a document entitled ‘Adverse Information that will be given consideration in this assessment.’ The attachment addressed the correspondence referred to above and the topic, Procedural Fairness. The attachment stated that the applicant’s letter dated 21 January 2015 had commented that unless the department disclosed to him all information relating to the Data Breach then he would be denied procedural fairness. The attachment continued:
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 attachment addressed the following further topics: conflict of interest; protection claims; privacy breach; country information; and adverse inferences which may be drawn. In particular, as concerned the topics:
(a)protection claims, the attachment referred to the applicant’s protection visa application, the findings of the Tribunal and then stated:
Your original protection claims were given consideration through a relevant protection status determination process and judicial review. There is no indication that there was any legal error in the department’s and the RRT’s decisions.
(b)adverse inferences which may be drawn, the attachment stated:
The evidence before the department appears to indicate that you were not of interest to the Chinese authorities prior to your departure from China and that you do not have an adverse profile with the Chinese authorities which could potentially expose you to a real chance of serious harm or real risk of significant harm on return to your country of origin.
Information contained in your Protection visa application indicates that you departed China lawfully on your genuinely-obtained Chinese passport (valid until 18 November 2019) . . .
It appears you would not be subjected to punishment in relation to your departure from China. However, in relation to your now prolonged absence from China and unlawful residence in Australia . . . it would appear that you could be briefly detained and questioned at the border on return to China . . . It would seem that other than being briefly detained for questioning . . . there is no real chance that you would be subjected to serious harm amounting to persecution nor a real risk of significant harm.
On 23 March 2015, the department finalised the applicant’s ITOA. The assessor concluded that Australia did not owe non-refoulement obligations to the applicant.
The ITOA assessor provided a written assessment. The assessor found that the applicant’s claims had been assessed by a delegate of the Minister and the Tribunal and that neither had found the applicant to be a person to whom Australia owed protection obligations. Further, the assessor found that in the period since the assessment of those protection claims by the delegate and the Tribunal there was ‘no evidence before the department to indicate that there has been any change in the claimants circumstances. . .’ Nor was there any suggestion that the applicant had been involved in any new activities which would bring him to the attention of authorities.
The assessor noted that the applicant had not provided:
(a)any new information to contradict the Tribunal’s findings;
(b)a response to the department’s statement that the applicant was not considered to be a person of interest to Chinese authorities at the time of his departure from China or that he would be subjected to serious or significant harm on return to China.
The assessor considered the Tribunal’s findings upon the applicant’s protection claims continued to be valid and effective. Further, the assessor found that the applicant did not have a profile that would cause him to be subjected to a real risk of harm amounting to persecution (albeit he could be detained briefly and questioned at the border on his return to China). The assessor considered the circumstances of the applicant’s entry into Australia, noting that he had arrived on a tourist visa, secured the extension of that visa (on two occasions) and that the reason for his now having unlawful status was because he had overstayed his visa permit.
The assessor had regard to country information, finding that there was no suggestion a person in the applicant’s position would have a profile which would put him at a real risk of serious or significant harm or that intelligence or security agencies or others would find the applicant’s personal information either valuable or usable. As concerned the applicant’s claim that he would be denied employment on return to China, the assessor found there was no evidence to suggest that employers in the private or public sectors would take radical steps to source the publicly disclosed information to limit the applicant’s ability to find work. The assessor noted the applicant’s occupation as a farmer without other formal qualifications and found it was implausible that prospective employers would check the information that had been disclosed or use that information so as to refuse the applicant employment. The assessor rejected the applicant’s claim to harm based on denial of employment as both speculative and implausible.
The assessor accepted that the applicant might be detained briefly and questioned on his return to China, but that this would constitute the application of Chinese general laws and would not for any reason be connected to the Refugee Convention. The assessor concluded that as there was no evidence of a change in the applicant’s circumstances since the Tribunal’s decision, there was no risk of persecution and no risk of persecution under the Refugee Convention.
As claims of possible harm had been rejected the assessor found there was no risk of significant harm for the purposes of the other conventions (as also reflected in ss 36(2)(aa) and 36(2A)).
Procedural History
On 26 March 2015, the applicant commenced a proceeding in this court seeking declaratory and injunctive relief in relation to the ITOA assessment.
The Minister’s response to the application opposed the making of orders sought on the ground that no legal error or jurisdictional error in the ITOA was disclosed.
Orders regulating the conduct of the proceeding were made on 22 July 2015, 15 January 2016, 11 August 2016, 19 October 2016, 8 March 2017, 15 March 2017, 19 April 2017 and 31 May 2017.
On 1 March 2017, a notice was issued by the Australian Border Force stating that the applicant was liable for removal from Australia under sub-s 198(6) of the Migration Act 1958 (Cth) (Act) and that it was anticipated the applicant would be removed from Australia on 8 March 2017. Steps were taken toward the applicant’s immediate removal.
On 8 March 2017, the applicant sought and obtained injunctive relief restraining his removal from Australia and in the determination of his claim for substantive relief. The circumstances in which that application was made and the difficulties he had encountered in instituting the application for interim relief were described in an affidavit of the applicant’s solicitor.
Interim relief was granted restraining the applicant’s removal pending the hearing and determination of an interlocutory application for injunctive relief: AKC15 v Minister for Immigration and Border Protection [2017] FCCA 450.
As events occurred, the parties agreed to dispense with an interlocutory hearing and preferred that the substantive application proceed directly to trial.
The interim orders were continued, by consent, until judgment in the proceeding.
By an amended application filed on 28 April 2017, the applicant advanced three grounds for relief, each of which was defined by detailed particulars.
It was accepted by the Minister that this court is seized of jurisdiction to determine an application for review in relation to an ITOA: SZSSJ, [58] – [73]. As the Court observed at [71]:
A challenge to conduct undertaken by an officer of the department under the Act and for the purpose of assisting the Minister’s consideration of the exercise of a non-compellable power can be heard and determined by the Federal Circuit Court.
Grounds of review
Ground 1 – denial of opportunity to be heard
Ground 1 reads:
The second respondent denied the applicant procedural fairness insofar as his conduct denied the applicant an opportunity to be heard on matters of significance to the [ITOA].
Particulars
a) By letter dated 14 January 2015, an administration officer of the Department of Immigration and Border Protection represented to the applicant that the department had commenced an ITOA in order to assess whether disclosure of the applicant’s personal information on the internet engaged with Australia’s non-refoulement obligations.
b) In arriving at his decision that the applicant was not a person in respect of whom Australia had non-refoulement obligations, the second respondent found that the findings of the Refugee Review Tribunal (RRT) in relation to the applicant’s protection claims continued to be “valid and effective”.
c) The finding in b) above depended on the second respondent’s reasoning that:
i)the applicant had not provided any new information to contradict the RRT’s findings;
ii)there was no indication that there was any legal error in the department’s and the RRT’s decisions.
d) The applicant was not put on notice that the nature of the inquiry that would be undertaken in his case was one in which the second respondent would, or potentially would (if the applicant submitted information to contradict the findings or made submissions that identified legal error), revisit the decisions and adverse findings made in previous assessments in relation to the applicant’s protection visa application on their merits.
e) Had the applicant been aware of the nature of the inquiry that would be undertaken by the second respondent, he would have submitted further information and/or made submissions in order to challenge and contradict the decisions and adverse findings made in the previous assessments. (Emphasis added)
The applicant submitted that a fair opportunity to be heard required that he be put on notice of the nature of the inquiry that would be undertaken by the ITOA assessor and of the issues to be considered in conducting the assessment: citing SZSSJ, [83]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]. It was said that to give meaning to this opportunity the assessor needed to identify at a level of specificity the nature of the inquiry to be conducted and the issues that were to be considered: SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, [22]; BMF16 vMinister for Immigration and Border Protection [2016] FCA 1530, [162]-[163].
The applicant submitted that the ITOA’s conduct was procedurally unfair by reason that he was not put on notice that the nature of the inquiry was one in which the assessor would, or potentially would, revisit the decisions and adverse findings which had been made by the delegate and Tribunal. When it was said that the assessor ‘potentially would’ revisit those decisions and findings, the applicant submitted that the ITOA assessment indicated that the assessor would have so revisited those decisions and findings had the applicant been told he might submit information to contradict those earlier findings or made submissions so as to identify legal error in the earlier decisions.
The applicant submitted that, based upon the content of the department’s letters referred to above, he would have understood that the nature and purpose of the ITOA process was to assess any new claims for protection arising from the Data Breach.
Having characterised the department’s letters in that way, the applicant further submitted that at no stage was he told that the ITOA process was one in which the assessor would, or potentially would, embark upon a reconsideration of the earlier decisions and adverse findings.
It was then said that in arriving at a conclusion the applicant was not a person in respect of whom Australia owed non-refoulement obligations, the assessor determined that the Tribunal’s findings in relation to the applicant’s claims for protection continued to be valid and effective. The applicant submitted that the assessor’s conclusion depended upon reasoning that the applicant had not provided any new information to contradict the Tribunal’s findings and there was no indication of any legal error in the decisions of the department or the Tribunal.
So it was said that, when arriving at the decision that non-refoulement obligations were not engaged, the assessor had acted upon the applicant’s failure to provide information or otherwise demonstrate legal error in the decisions of the department or the Tribunal.
The applicant submitted that had he been on notice that the legal correctness of the earlier decisions was in issue, the opportunity would have been taken to submit further information and make submissions so as to challenge those decisions and adverse findings.
The applicant contended that the failure to properly identify the nature of the inquiry that would be undertaken by the ITOA assessor and the issues to be considered constituted procedural unfairness.
The Minister, accepting that the applicant was to be afforded procedural fairness, submitted that Ground 1 misstated that which the assessor had to do and mischaracterised the role which the findings of the department and the Tribunal had in the ITOA process. Further, the Minister contended that the applicant’s submissions failed to take into account the effect of more recent authority: ALZ15 vMinister for Immigration and Border Protection [2017] FCA 279; AKD15vMinister for Immigration and Border Protection [2017] FCA 166.
The Minister submitted that the principal purpose of an ITOA was to consider whether the publication of personal information would affect Australia’s non-refoulement obligations in respect of the applicant. It was said that the assessor was required to consider whether the disclosure of such information as had been uploaded to the department’s website gave rise to risks of harm: ALZ15 [2], [42]; APD15 v Minister for Immigration and Citizenship [2017] FCA 407, [38]. The Minister submitted the department’s letters made plain that, from the commencement of the ITOA process, the assessor would also consider whether there was any new information or change in circumstances since the applicant’s protection visa application had been determined which might give rise to a protection or non-refoulement obligations.
For those reasons it was submitted that the Tribunal’s findings became relevant as a starting point from which an assessment could then be made whether there had been any relevant change. In short, the requirement to assess whether any change had occurred necessitated the identification of a starting point from which to consider any change in the applicant’s presently existing circumstances.
The Minister submitted that the purpose of the ITOA was not, as suggested by the applicant, to allow for a wholesale review of the findings made by the delegate and Tribunal: AKD, [29]. The ITOA demonstrated that the assessor had not undertaken such a review. Rather, the assessor had found that there was no evidence of a change in circumstances and no evidence to suggest that the applicant would be of any interest to the authorities.
In those circumstances, the assessor had concluded that the Tribunal’s findings continued to be valid and effective. The Minister submitted that the assessor’s use of the phrase ‘valid and effective’ was merely a shorthand method of stating that there was no basis for the assessor to revisit the Tribunal’s findings on their merits since the underlying substratum of fact was not asserted to have changed: ALZ15, [17], [49]. The phrase was not to be misunderstood as a further pronouncement by the assessor upon the legal validity of those findings: AKD15, [27]; SZTZM vMinister for Immigration and Border Protection [2017] FCA 534, [56]. Moreover, it was submitted that there was no error in an assessor using the findings of a previous decision-maker as part of the factual matrix so as to determine the possible risk of harm: ALZ15, [51].
Procedural fairness
It was common ground that the ITOA assessor was obliged to afford the applicant procedural fairness.
In SZSSJ, the Full High Court said at [83]:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]; see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59].
It may be accepted that it is necessary to identify at some level of specificity the nature of the inquiry to be conducted and the issues that are to be considered. For example, in SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, Flick J stated at [22]:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
See also ABV16 vMinister for Immigration and Border Protection [2017] FCA 184, [27].
However, the scope of the obligation is not at large. The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision: see BMF15 vMinister for Immigration and Border Protection [2016] FCA 1530, [162]-[163]. Generally, where the obligation is engaged, procedural fairness will require that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant: HFM045 v The Republic of Nauru (2017) 350 ALR 34, [51].
Contrastingly, in SZSSJ at [83], the Court held that ordinarily there was no requirement to notify a person of information which is in the possession of, or accessible to, the decision maker which he or she has decided not to take into account at all in the conduct of the inquiry. Further, as stated above the Tribunal is not required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
In Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82, [177], Middleton and Wigney JJ observed that the ‘rules of procedural fairness do not have an immutably fixed content . . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .’
Consideration
It is apparent that the process which has been adopted in relation to the applicant in the present case is the same process that has been undertaken for all persons affected by the publication: ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279, [2].
In ALZ15, Mortimer J identified the task confronting the ITOA at [42]:
Thus, as the Minister’s counsel correctly accepted, there were two tasks for the ITOA. The first was to determine whether there were any changes in the appellant’s circumstances since the determination of his protection claims which might give rise to protection obligations under either the Refugees Convention or the ICCPR or CAT. This was a broad assessment, not limited to any risks arising from the publication of his personal information. Second, the ITOA had to determine whether the publication of his personal information gave rise to any risks of harm should he return to Thailand, whether those risks arise because of a Convention reason or were risks of harm that reach the threshold set by the ICCPR and CAT.
See also SZSLM v Minister for Immigration and Border Protection [2017] FCA 413, [16], (Perram J).
I have set out the train of correspondence which passed between the applicant and the department in the course of the ITOA. I accept the applicant’s submission that objectively the content and tenor of that correspondence would have conveyed to the applicant that the nature and purpose of the ITOA process was to assess any new claims for protection. The assessor was concerned to consider whether there were any changes to the applicant’s circumstances since the earlier decisions. However, I do not accept the further submission that the assessor would or would potentially have embarked upon any reassessment or reconsideration of findings or decisions already reached by the delegate or the Tribunal. I have described the purpose of the ITOA process above. The assessor was required to consider whether the disclosure of such information as had been uploaded to the department’s website gave rise to any risk of harm: APD15 v Minister for Immigration and Citizenship [2017] FCA 407, [38] (Perram J).
There was nothing impermissible in an ITOA decision-maker looking at the evidence which was before a previous tribunal or decision-maker on an applicant’s protection claims in order to decide whether there was a change in the applicant’s circumstances since his or her protection claims were assessed. The consideration given to the Tribunal’s decision was no more than a starting point: ALZ15, [48].
Having had regard to the Tribunal’s findings and decision that the applicant did not face a relevant risk of harm and as no change in the applicant’s circumstances had been suggested, the assessor had concluded that there was no reason to alter the assessment of the present risk of harm to the applicant. For those reasons, the assessor, as in ALZ15, had found that the Tribunal’s findings remained valid. The assessor’s description of the earlier decisions as being ‘valid and effective’ was not to be misunderstood as a further pronouncement by the assessor upon the legal validity of those findings: ALZ15, [49]; AKD15, [27]; SZTZM, [56].
In substance, the applicant’s submission rested upon a false premise. At no point did the assessor suggest that the Tribunal’s decision or findings would be revisited absent information or evidence of a change in circumstances occurring after the Tribunal’s decision. There was no call for the applicant to provide information impugning the earlier decisions. The task of the assessor was to assess whether there had been any relevant change in circumstances such as to attract Australia’s non-refoulement obligations under the conventions.
The applicant was invited to, and so had the opportunity, but did not provide evidence of any relevant change in circumstances.
As Markovic J observed in AKD15 at [29]:
. . . procedural fairness did not require the third respondent to redetermine all of the appellant’s previous claims in order to lawfully conduct the ITOA.
Ground 1 is rejected.
Ground 2 – Assumption of access to information
Ground 2 reads:
In arriving at his decision that the applicant was not a person in respect of whom Australia had non-refoulement obligations, the second respondent denied the applicant procedural fairness and/or failed to take into account a relevant consideration by failing to assume that all of the applicant’s personal information had been accessed by all of the persons or entities from whom the applicant feared persecution or other relevant harm.
Particulars
a)The second respondent refused to provide the applicant with the IP addresses of internet users who had accessed the document containing his personal information, the unabridged KPMG report or other information related to the privacy data breach on the basis that, for the purposes of the ITOA assessment, he would assume that the authorities in the applicant’s receiving country may have accessed the applicant’s personal information released on the department’s website.
b)However, when assessing the applicant’s claims in the context of the ITOA assessment, the second respondent did not interpret and apply the assumption in such a way as to assume that all of the applicant’s personal information had been accessed by all of the persons or entities from whom the applicant feared persecution or other relevant harm and instead found that:
i)there was “no evidence to establish that Human Resources sections of private and public sector departments would take radical steps to source the information publicly disclosed on the department’s website”;
ii)it was implausible that the organisations where the applicant would seek employment on return to China would seek to check the information that was published on the website in February 2014;
iii)the information published on the department’s website in February 2014 had been removed and was no longer publicly available.(Emphasis added)
The applicant submitted that he was not accorded procedural fairness by reason that the assessor failed to assume that all of the applicant’s personal information had been accessed by persons or entities from whom the applicant feared persecution or other relevant harm.
The applicant accepted the assessor had advised him that in conducting the ITOA assessment, the assumption would be made that the authorities in the applicant’s receiving country may have accessed the applicant’s personal information which had been released on the department’s website.
Reference was made to the assumption in like terms which had been adopted in SZSSJ and to the Courts statement at [91] that:
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 . . . harm.
The applicant accepted that the Court had held in SZSSJ that, despite not having the unabridged KPMG report, the applicants had not been deprived of any opportunity to submit evidence or make submissions relevant to the subject matter of the ITOA process. The Court had reasoned that access to the information would not have advanced the case for engagement of the non-refoulement obligations any further than the assumption which was already made in their favour: [92].
The applicant claimed that persons in both the state and private sectors from whom he feared harm as a result of the Data Breach were those who would deny him employment. The applicant submitted that the assessor ought to have assumed that those persons would have accessed the applicant’s personal information as a result of the breach.
It was submitted that the assessor had not made the requisite assumption but rather reasoned to a conclusion that the applicant’s fear of harm was speculative and implausible on the basis of findings that:
(a)there was no evidence to establish that private and public sector departments would take radical steps to source the information publicly disclosed on the department’s website; and
(b)it was implausible that organisations where the applicant would seek employment on return to China would seek to check the information that was published on the website in February 2014.
The assessor noted that the information had been removed from the website and was no longer publicly available: see assessment at p. 10.
The applicant submitted that the error in the assessors approach was that the assessor had failed to interpret and apply the assumption in the way that had been explained by the Court in SZSSJ above. In particular, the applicant submitted that in the present case the assessor confined the assumption to prospective employers in the public sector as having made access to the applicant’s personal information whereas a different assumption had been made in relation to prospective employers in the private sector. This was said to be demonstrated by the use of the expression that such persons would not take ‘radical steps’ to source the information.
Upon the distinction being made by the applicant between prospective employers in the public and private sector having accessed such information, his substantive complaint was that the assessor confined the use of the assumption to prospective employers from the public sector alone and applied a different assumption in the case of private sector employers. Accordingly, it was submitted that the assessor’s failure to adopt the correct assumption meant that any unfairness arising from failure to disclose to the applicant the unabridged KPMG report was not cured in the manner that had been accepted in SZSSJ.
Further, it was said that the assessor had failed to take into account a relevant consideration being the harm that the applicant may suffer from non-state actors who may have accessed his personal information.
The Minister submitted that, properly read, the ITOA assessor had applied the assumption to prospective employers in both the public and private sectors. Further, what the assessor had done was said to be evidenced by the content of the department’s correspondence and the reproduction of the assumption in the ITOA assessment. Those matters were said to suggest at least a prima facie implementation of the instruction to adopt the assumption: cf SZTZM, [53]; ALZ15, [33].
The Minister further submitted that the assessor had found there was no evidence suggesting that the applicant’s personal information would be usable or valuable to intelligence agencies, terrorist groups or criminal syndicates or that such entities would utilise such information to target or harm the applicant. It was said that reasoning of this kind demonstrated a clear implementation of the assumption that such entities had the information but that no risk to the applicant would arise because the entities would have no use for it.
As concerned the assessor’s use of the phrase ‘radical steps’, the Minister submitted that the assessor had found it was implausible that organisations to which the applicant might apply for work would seek to check the information or use it as a motive to refuse him employment. The focus on that phrase was said not to assist the applicant by reason that the assessor had had regard to the applicant’s particular characteristics – including his previous work as a farmer and his lack of formal qualifications – in reaching a conclusion that it was implausible that organisations of the type from which he might seek employment would access the information or use it as a motive to deny him employment. Again, it was said to be implicit in such reasoning that the assessor had adopted the assumption. So it was said that, just because the prospective employers were assumed to have accessed the information, this did not mean that it would make any difference to a decision whether to hire the applicant.
Consideration
The ITOA assessor stated that the assumption would be made. There is no warrant for a conclusion that the assessor did not do so.
Fairly read, the assessment indicates that the assessor did not merely consider whether the information might have been accessed but rather that it had been accessed by relevant persons: cf SZSSJ, [91].
The assessor’s reasons do not suggest that the expression ‘radical steps’ was confined to persons in the private sector. What the assessor in fact stated was that ‘there is no evidence to establish that Human Resource sections of private and public sector departments would take radical steps to source the information publicly disclosed on the department’s website so as to limit his ability to source and secure employment on return to China.’ The assessor also noted that the claimant had failed to provide a response to this proposition.
I reject the submission that the assessor failed to take into account as a relevant consideration, whether the applicant might suffer harm from the non-state actors who had accessed his personal information. In this context, it will be recalled that the disclosed information comprised limited data related to the applicant’s name, date of birth and the fact of his having been placed in detention by reason of having overstayed his tourist visa in Australia. It will also be recalled that in China the applicant had been employed as a farmer and had no formal qualifications. It is in this context that the assumption fell to be evaluated.
The ITOA examined the applicant’s risks arising out of the publication of the material in the Data Breach. The ITOA assessment noted an absence of country information supporting a conclusion that foreign security, intelligence agencies, terrorist organisations and/or criminal syndicates would find the information released usable or that it would be used to target and harm the applicant. A similar finding as to the absence of risk was asserted in relation to private and public employers. The ITOA, having examined country information (or more accurately its absence), concluded:
There is no evidence before the department to indicate that the claimant has ever been of interest to security and intelligence agencies, terrorist agencies and criminal syndicates. Neither is there any evidence before the department to indicate that the claimant has a profile or that he has ever been involved in any activities or undertakings that would bring him to the adverse interest of these organisations and agencies.
Consequently, I consider the claim that foreign security and intelligence agencies, terrorist organisations and/or criminal syndicates would use the claimant’s information, which includes his name, date of birth, nationality, gender and detention details to target and harm him to be unsubstantiated and speculative.
The ITOA considered the applicant’s fears of being denied employment as a result of the website disclosure incident. The ITOA assessment noted the applicant had not provided any response when requested to provide reasons why a human resource department might limit his ability to source and secure employment on return to China, stating:
It is noted from the information provided by the claimant to the department that he has been working as a farmer in China. There is no evidence before the department to indicate that the claimant has any formal qualifications. Given his lack of formal qualifications and high-level employable skills, I consider it implausible that the organisations where the claimant would seek employment on return to China, would seek to check the information that was published on the department’s website in February 2014 and use it as a motive to refuse his employment. Furthermore, it is noted that the information published on the department’s website in February 2014 has been removed and is no longer publically available.
As the authorities confirm, ITOA’s task is to determine whether the publication of a person’s personal information has given rise to any risks of harm should that person be returned to their home country.
In my view, when assessing the risk of harm, the assessor did apply the requisite assumption in relation to prospective employment in both the public and private sectors and its findings are not open to criticism in this regard. An assessment whether or not the applicant faced a risk of harm arising out of the Data Breach was made in respect of each of claim that had been advanced by the applicant.
Ground 2 is not made out.
Ground 3 – unsupported finding
Ground 3 reads:
The conduct of the ITOA by the second respondent was affected by jurisdictional error and/or denied the applicant procedural fairness, in that the second respondent made a critical finding that was not supported by some probative material or logical grounds.(Emphasis added)
Particulars
a)In respect of Australia’s non-refoulement obligations under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, the second respondent concluded that he was not satisfied there were “substantial grounds for believing that there is a real risk of significant harm”.
b)This conclusion depended upon the second respondent’s finding that the harm claimed by the applicant was not significant harm pursuant to subsection 36(2A) of the Migration Act 1958 (Cth).
c)Insofar as the second respondent’s finding b), was expressed to apply in respect of all of the applicant’s claims, it was a finding that was not supported by some probative material or logical grounds.
The applicant further submitted that the ITOA assessor had based the conclusion that the applicant was not owed non-refoulement obligations upon a finding that he was not satisfied there were substantial grounds for believing there was a real risk of significant harm: assessment at p. 15. It was said that the assessors lack of satisfaction derived from an earlier finding that the harm claimed by the applicant was not significant harm within the meaning of sub-s 36(2A) of the Act.
In support of Ground 3, the applicant had made, but abandoned, a submission which focussed upon the nature of the assessor’s task. Instead it was submitted that insofar as the assessor’s finding was expressed to apply to all of the applicant’s claims it was a finding that was not supported by some probative material or logical grounds. It was said that the applicant’s claims in respect of the Data Breach included a fear of being targeted and harmed by authorities and others in China and a fear of being denied employment. Those claims were said to be clearly capable of meeting the description of cruel, inhuman or degrading treatment or punishment (and so constituted significant harm: see para 36(2A)(d)). The applicant accepted that the assessor had proceeded on that basis.
The approach so taken was then contrasted with the assessor’s consideration of the applicant’s claimed fear of being denied a visa for overseas travel, which claim, the assessor found neither constituted the denial of a human right nor persecution, torture, cruel, inhuman or degrading treatment or punishment. It was submitted that the assessor had made no such finding in respect of the applicant’s other claims, and that no such finding was lawfully open.
The Minister submitted that the substantive bases for the applicant’s Ground 3 were that: (1) the assessor had applied the criteria by reference to sub-s 36(2A) rather than the criteria embodied in the relevant conventions; and (2) there was a lack of probative material or logical ground to support the assessor’s findings.
The Minister submitted that the assessor had understood the task which he had to undertake; namely, to assess whether Australia owed the applicant non-refoulement obligations under the conventions.
Consideration
The first limb to the applicant’s Ground 3 rested on a submission that the assessor had applied the criteria of significant harm as embodied in the Act rather than those which were stipulated by the conventions. Having regard to the assessment, I do not accept that submission.
In providing an introduction to the assessment, the assessor identified in Part A at para 1 that the central purpose of the ITOA was to consider whether Australia owed the applicant non-refoulement obligations pursuant to any of the conventions, each of which was referred to.
The assessor next observed that various provisions of the Act contained concepts relevant to an assessment of non-refoulement obligations under those conventions and that those statutory provisions reflected ‘Australia’s interpretation of those obligations.’ For that reason, the assessor considered it to be acceptable to use the statutory provisions, but did so acknowledging that the ITOA was not the assessment of a protection visa application.
Part B of the assessment concerned the topic, ‘Assessment of non-refoulement obligations under the Refugee Convention.’ Part C of the assessment concerned the topic, ‘Assessment of non-refoulement obligations under the ICCPR and CAT [Conventions].’
Section 1 of Part C set out Australia’s non-refoulement obligations under the CAT and ICCPR conventions. The assessor addressed the criteria or test to be applied under those conventions for a finding that a person was owed non-refoulement obligations. Having done so the assessor reiterated that the test stated in those conventions was also contained in sub-s 36(2)(aa) and 36(2A) of the Act. I agree in the Minister’s submission that in doing so, the assessor was not applying the statutory test under those provisions but merely drawing upon the Act as a passing reference so as to demonstrate that those international law concepts as embodied in the conventions had been adopted in the Act. Read fairly, I consider the assessment indicates that this is precisely what the assessor was doing in referring to the Act.
Subject to what follows, I disagree that the assessor was suggesting the statutory criteria were being applied. As the assessor was conducting an ITOA assessment, it was made plain from the Introduction in Part A and the recitation in Part C of the criteria from the relevant conventions that the assessor applied those criteria from those conventions to the question whether the applicant was owed non-refoulement obligations by Australia. However, in section 2 of Part C, the assessor addressed the question: Does the harm amount to significant harm?
The assessor recorded that the applicant had ‘not made any other claims that would engage Australia’s complementary protection provisions as specified in the Act.’ The use of the expression ‘as specified in the Act’ must be taken as being a reference to sub-s 36(2)(aa) and 36(2A). While the reference to those provisions was erroneous, the error needs to be seen in the context that the assessment otherwise made plain that the assessor was conscious of and had said that he would apply the criteria stipulated under the conventions. Further, I agree in the Minister’s submission that no attempt was made by the applicant to demonstrate how or why the convention criteria differed in any relevant respect from the criteria stated in sub-s 36(2)(aa) and 36(2A). Indeed, in the course of oral argument the applicant accepted that this was so. The error so made was not of such seriousness as to constitute jurisdictional error.
As to the second limb of Ground 3, I do not accept that the assessor did not have probative evidence or a logical basis for the conclusion that the applicant was not at a significant risk of harm. Fairly read, the assessment addressed each of the applicant’s claims comprehensively.
The consideration and dismissal of those claims was addressed in section 10, Part A of the assessment. The conclusion in Part C of the assessment recorded that the assessor had dismissed the applicant’s claims in their entirety. The reasoning employed by the assessor was, in effect, to incorporate, by reference, the findings made in Part A and then to record that the applicant had not made any other claims that would engage Australia’s complementary protection provisions.
The assessor had rejected the applicant’s claims of harm if returned to China by not accepting that such harm would come to pass: section 10 of Part A. Upon the premise that such harm would not eventuate, the finding that there was no real risk of significant harm was inevitable.
In these circumstances, it cannot be said that the Tribunal’s findings were made unsupported by probative material or logical grounds. The material and grounds are set out in the ITOA itself.
Ground 3 is not made out.
Conclusion
As the applicant has not made out any of his grounds of judicial review, the application must be dismissed.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 23 March 2018
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