AKC15 v Minister for Immigration and Ors (No.2)

The applicant, a Chinese national, sought judicial review of a decision made by an International Treaties Obligations Assessment (ITOA) assessor. The assessor had determined that Australia did not owe the applicant non-refoulement obligations under the Refugees Convention, the Torture Convention, or the International Covenant on Civil and Political Rights. The applicant had arrived in Australia on a tourist visa, overstayed, and was subsequently detained. He applied for a protection visa based on fears of harm if returned to China due to breaches of family planning laws, but this visa was refused, and the decision was affirmed by the Refugee Review Tribunal. The ITOA process was initiated following a data breach by the Department of Immigration and Border Protection, which unintentionally disclosed the identities of 9,258 protection visa applicants. The applicant was one of those affected.

The court was required to determine two primary legal issues. First, whether the applicant was denied procedural fairness because he was not adequately notified of the nature and scope of the ITOA inquiry, specifically whether the assessor would revisit previous findings of the delegate and the Refugee Review Tribunal. Second, whether the assessor denied the applicant procedural fairness and failed to take into account a relevant consideration by not assuming that all of the applicant's personal information had been accessed by all persons or entities from whom he feared persecution or harm, as interpreted by the High Court in *SZSSJ*.

The court dismissed the applicant's application. Regarding the first ground, the court found that the correspondence between the applicant and the department conveyed that the ITOA process was to assess new claims for protection arising from the data breach and to consider any changes in the applicant's circumstances since earlier decisions. The court held that the assessor was not required to embark on a reassessment of previous findings but rather to use them as a starting point to determine if there had been a relevant change. The applicant had the opportunity to provide evidence of such change but did not. Concerning the second ground, the court found no warrant for the conclusion that the assessor did not apply the required assumption that the applicant's information may have been accessed by relevant persons. The court noted that the disclosed information was limited and that the applicant, a farmer without formal qualifications, had not provided evidence to support claims of harm from denial of employment or from non-state actors. The assessor's findings that certain entities would not take "radical steps" to source the information and that the applicant's fears were speculative and implausible were considered to be within the scope of the assessment, implicitly acknowledging the assumption of access.

Consequently, the application was dismissed, and the applicant was ordered to pay the First Respondent's costs fixed at $7,206.