AKD15 v Minister for Immigration and Border Protection
[2016] FCCA 2740
•24 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKD15 v MINISTER FOR IMMIGRATION & ORS | [2016] FCCA 2740 |
| Catchwords: MIGRATION – International treaties obligation assessment – whether the release of personal information breached Australia’s non-refoulment obligations – whether the department denied the applicant procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.197C, 198, 476. Judiciary Act 1903 (Cth), s.78B. |
| Applicant: | AKD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | PEG 131 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 24 October 2016 |
| Date of Last Submission: | 24 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms J E Davidson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 131 of 2015
| AKD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
Background
This is an application for declaratory and injunctive relief within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of conduct preliminary to a decision within this Court’s jurisdiction. The application also seeks the declaration that an International Treaties Obligations Assessment (“the ITOA”), made on 19 March 2015, has not been made in accordance with law.
The applicant is a citizen of China. The applicant arrived in Australia on 12 April 2007 on a subclass 679 (Tourist) visa, valid until 12 July 2007. The applicant then remained unlawfully in Australia until he was detained on 13 July 2007 until 17 July 2012, when the applicant applied for protection on 17 July 2012. That application was refused on 8 August 2012. The Refugee Review Tribunal (“the Tribunal”) affirmed that decision on 5 November 2012. The applicant applied for judicial review, which was dismissed on 15 November 2013 The applicant appealed to the Full Court, which was heard and dismissed on 27 March 2014.
The applicant claimed to fear persecution at the hands of the government official who operated a business in competition with a business operated by the applicant. The applicant claimed that the official had his father arrested as a member of the underground Christian church. The applicant claims his father died as a result of mistreatment while in detention and that the official arranged for people to assault his brothers and threaten and harass the applicant and his business operations. The applicant maintained that he would be persecuted because he and his father were House Church practitioners.
The Delegate’s Decision
The delegate made adverse credibility findings and found that the applicant’s fears were not genuine. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and found the applicant’s fear of persecution was not well-founded as defined under the Refugees Convention.
The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there was a real risk the applicant would suffer significant harm.
The Tribunal’s Decision
The Tribunal found the applicant’s alleged adverse incidents in China had been fabricated. The Tribunal found the applicant did not have a well-founded fear of persecution for a Convention reason.
The Tribunal was not satisfied that the applicant met the criteria under ss.36(2)(a) or 36(2)(aa) of the Act and affirmed the decision of the delegate.
Release of personal information
In February 2014, personal information relating to certain persons who were in immigration detention was inadvertently and briefly made available on the internet by the Department, thereafter referred to as “the data breach”. On 12 March 2014, the Secretary of the Department wrote to the applicant in relating to the data breach. The letter identified that the Department would assess any implication for the applicant personally, as part of its normal process The letter also invited the applicant, if he had any concerns, to raise those during the process.
On 14 July, the applicant was sent a further letter inviting him to provide information in writing about the impact of the data breach on his ability to return to his home country. The applicant had not responded to the earlier letter dated 12 March, but did respond to the letter of 14 July, on 21 July 2014. The applicant was informed on 14 January 2015, that the Department had commenced an ITOA in order to assess whether the circumstances of the applicant’s case engaged Australia’s non-refoulement obligations as a result of the disclosure.
The applicant made submissions in response to the letter, notifying him of the entire process. In response to the letter inviting him to comment on the information before the Department, he indicated that he continued to rely on all the statements and submissions related to the Department about his claims for protection.
The ITOA
On 23 March 2015, the ITOA was finalised with a finding that Australia’s non-refoulement obligations were not engaged in relation to the applicant.
The ITOA identified the applicant’s earlier claims and what occurred on 21 July 2014, as well as what occurred in February 2014 as identified in the letter dated 12 March 2014. The ITOA assessment identified the communications sent to the applicant on 15 July 2014 and the response of the applicant dated 21 July 2014 as well as the communication notifying the assessment on 14 January 2015 and the applicant’s response dated 21 January 2015.
On 16 February 2015, the ITOA assessment records that the applicant was sent a letter informing him that the Department is currently considering information relevant to his ITOA. The information included relevant country information and concerns regarding the applicant’s particular circumstances. The applicant was given the opportunity to comment on that information. The ITOA assessment provided the applicant with a real and genuine opportunity to respond to the information raised in the letter dated 16 February 2015 as to whether Australia had any non-refoulement obligation arising out of the data breach.
Part of the information raised with the applicant was that he had left China lawfully. In response, the applicant on 17 February 2015 claimed that he continued to rely on his previous statements and submissions. The assessor made reference to the earlier determinations and found that there had been nothing to indicate any change in the claimant’s circumstances since his protection claims were assessed. The assessor also noted that there was no evidence before the Department to indicate the applicant had been involved in any activities in Australia that would bring him to the adverse attention of Chinese authorities.
The assessor noted the applicant had not provided any new information to contradict the earlier findings. The assessor noted that the applicant had not provided a response to the adverse inferences noted in the Department’s procedural fairness letter; namely, that he was not of any interest to the Chinese authorities at the time of his departure from China and there was no evidence before the Department to indicate that he would be subject to serious or significant harm on return to China. The assessor identified the limited information that was disclosed over a brief period.
The assessor found the applicant was fully aware of the details inadvertently published on the World Wide Web and had been afforded procedural fairness in the opportunity to respond and raise his concerns in respect of the same. The assessor concluded that the proposition that foreign security or intelligence agencies, terrorist organisations or criminal syndicates would use the applicant’s information to target or harm him to be unsubstantiated and speculative.
The assessor did not accept that the applicant will be denied employment in China as a consequence of the website disclosure, finding that to be nothing more than speculative and implausible. The assessor made reference to the possibility of the applicant being denied a visa to travel overseas but found that that was not of itself a denial of a human right and does not amount to persecution, torture, cruelly inhumane or degrading treatment or punishment to the claimant. The assessor found the applicant’s claim to be recognised as a refugee sur place to be unpersuasive and unconvincing. The assessor found that the claimant does not have a real chance of being persecuted for a Refugees Convention reason and found that the applicant’s fears, as defined under the Refugees Convention, were not well-founded.
The assessor found that the harm feared by the applicant was not significant harm and was not satisfied that there were substantial grounds for believing that there is a real risk of significant harm to the applicant if returned to China. Accordingly, the assessor was not satisfied that the applicant was a person to whom Australia had a non-refoulement obligation.
Proceedings Before this Court
By orders made on 31 August 2016, the applicant was given an opportunity to file an amended application, further affidavits and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the assessment of 23 March 2015 had been made according to law and whether the applicant was entitled to any injunctive relief or declaratory relief as claimed. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent, and then hear submissions from the applicant in reply.
The applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table, the applicant maintained that he would be in danger if returned to China and disputed the findings of fact made by the assessor. Nothing said by the applicant from the bar table identified any basis to grant the relief of the kind identified in the application or any other relief.
The grounds of the application are as follows:
1. The applicant is a citizen of China.
2. The applicant claimed that Australia owed protection obligations in respect of him.
3. The process by which the claims of the applicant that Australia owed protection obligations in respect of him was completed.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In or about 11 February 2014, the First and or Second Respondent by their servants or agents released the applicant's personal infonnation by publishing it on the world wide web.
7. The applicant’s personal information so released included his name, date of birth, nationality, gender, details about the applicant's detention (when detained, the reason for the detention and where) and also the details of tbe identity of any family members in detention.
8. The release of the applicant's personal information by the First and or Second Respondents, their servants or agents, was contrary to law.
Particulars
1. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
2. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
9. The release of the applicant's personal information has caused the applicant to have a well founded fear that his removal from Australia and return to [country of origin] will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
3. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
11. The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):
“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."
12. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
13. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
14. On 25 July 2014 the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia's non-refoulement obligations. this process was instigated as the applicant's previous ITOA decision was affected by the Full Federal Court of Australia's decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
15. On [date of ITOA decision] the delegate made a finding that non-refoulement obligations are not engaged in the applicant's case.
16. In the ITOA assessment the delegate denied the applicant procedural fairness.
Particulars
The delegate accepted that he was in detention on 31 January 2014 and his personal details may have been unintentionally disclosed online;
Tbe delegate did not disclose any of the information held by the Department to the applicant in relation to the data breach for comment;
The delegate as the employee of the Department that disclosed the applicant's name and personal details on the internet did not bring an impartial mind to the decision making process and is in a conflict of interest; and
The ITOA process is not an appropriate and fair process for determining the applicant's data breach claim.
17. The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 march 2014 and stated as follows:
“It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second-last paragraph of the Department's letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
“It is not clear to me whether the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application. "
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to [boat arrivals with no process- s46A or s195A][RRT decisions - s48B or s417] arising from the disclosure of the applicant's personal information.
19. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 or s198AD of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.
Grounds 1 to 8 do not identify any basis to enliven this Court’s jurisdiction referable to a decision under the Act within s.476. I do not accept that there has been any breach of the applicant’s privacy, nor any such breach entitling the applicant to the kind of relief sought in the present case. I do not accept that there is any evidence of any criminal offence having been committed, nor would such contravention enliven any jurisdiction to grant the relief of the kind sought by the applicant.
Grounds 9 and 15, in substance, cavil with the adverse findings made by the assessor and do not identify any relevant error of law. On the material before the Court, the assessor complied with the requirements of procedural fairness in the conduct of the assessment, and there is no basis to find any denial of procedural fairness. The findings of the assessor were open on the material before the assessor.
Grounds 10 to 13 seek to advance an alleged Constitutional issue arising from an alleged representation. There is no real Constitutional question raised in grounds 10 to 13. The proposition as to representation is without substance. There is no exercise of executive power under s.61 of the Constitution in this case so to enliven any consideration of procedural fairness. There is no basis for the alleged issue of an emanation of the Executive. There is no real issue under s.61 of the Constitution that arises in the present case. Accordingly, no obligation to further consider the requirements of s.78B of the Judiciary Act 1903 (Cth).
Ground 14 is a recital of fact and does not identify any basis to grant the relief sought. Ground 16 is an allegation of denial of procedural fairness which, in substance, seeks to cavil with the adverse findings by the Assessor that were open. The material before the Court has indicated the assessor complied with the obligations of procedural fairness. The process adopted by the assessor was a fair process for determining whether Australia has a non-refoulement obligation to the applicant.
Ground 17 does not articulate or identify any jurisdictional error. In relation to ground 18, no basis for declaratory relief has been made out, nor has any proper basis been made out to grant the applicant injunctive relief. In relation to ground 19, I accept the submission of the respondents that the removal of the applicant from Australia without further assessment of non-refoulement obligations will not involve any error of law.
The assertion that the assessment was carried out otherwise in accordance with procedural fairness is without substance. On the material before the Court the assessor complied with the requirements of procedural fairness in the conduct of the assessment. No basis has been made out for the granting of the declaratory or injunctive relief or any writ of mandamus in relation to the assessment.
I accept the first respondent’s submission that the declaratory relief in relation to removal under s.198 of the Act is contrary to the clear language of s.197C of the Act. There is no basis for the grant of any quia timet injunctive relief.
The application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 17 November 2016
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