ALO16 v Minister for Immigration

[2016] FCCA 2571

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2571

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – publication of personal information – whether the Tribunal made a finding based on no evidence and/or false factual premise – whether the Tribunal had the jurisdiction to determine the data breach claim – whether the Tribunal considered if the applicant faced a serious risk or real risk of harm upon return to India – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 48B, 116, 195A, 414, 417

Privacy Act1988 (Cth)

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Minister for Immigration & Border Protection v Lesianawai (2014) 227 FCR 562; [2014] FCAFC 141
Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 441, [2010] FCAFC 123
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347

SZSSJ v Minister for Immigration & Border Protection (2015) 234 FCR 1; [2015] FCAFC 125

Applicant: ALO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 98 of 2016

Judgment of: Judge Smith

Hearing date: 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Sydney and by video-link to Perth and by telephone-link to Yonga Hill Immigration Detention Centre

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person in Perth by video-link.

Counsel for the First Respondent: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 98 of 2016

ALO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 8 January 2008 as a student. His student visa was cancelled under s.116 of the Migration Act 1958 (Cth)[1] on 24 February 2010. On 7 June 2011 the applicant was convicted for a number of offences and sentenced to a term of imprisonment for a period of 28 months. On 31 July 2013 the applicant was taken into immigration detention and has remained there since that time.

   [1] Unless otherwise stated, all references to “the Act” are to Migration Act 1958 (Cth).

2. In February 2014 a routine report released on the Department of Immigration’s (“Department”) website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. The applicant was amongst those whose personal information was released in this way. The information was accessible online for a short period of time before it was removed from the Department’s website. This incident has become known as the Data Breach.

3. The applicant was informed about the Data Breach in a letter from the Department dated 12 March 2014. Amongst other things, that letter stated:

   …

   The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.

   The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.

   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.

   …

4. On 17 June 2015 the applicant applied for a protection visa. He claimed that, as a result of the Data Breach, he would be a person of interest to the government agencies on his return to India and could be harassed and tortured.

5. On 7 December 2015 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal for review of that decision.

6. The Tribunal held a hearing on 25 January 2016 at which the applicant gave evidence and presented arguments in relation to the issues arising on the review. At that hearing the applicant was unable to identify whom he feared harm from or what harm he feared as a result of the Data Breach and stated that he could only formulate his claims once the Department had released the full report by KPMG concerning the Data Breach. He explained to the Tribunal that his application to it was based upon the decision of the Federal Court in SZSSJ v Minister for Immigration & Border Protection (2015) 234 FCR 1; [2015] FCAFC 125 and, in particular, the paragraphs in the judgment which indicated that procedural fairness required the Department to provide him with an unabridged copy of the KPMG report.

7. On 4 February 2016 the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal considered that it was unlikely that the authorities in India had become aware that the applicant was in detention through information obtained as a result of the Data Breach. This was because that material was only available online for a short period of time and was accessed by a relatively small number of IP addresses. However, the Tribunal accepted that the Indian authorities were probably aware of the applicant’s detention due to his application for a passport with which he authorised the Department to assist him. It considered that it was also likely that the authorities were aware of his period of criminal detention in Australia.

2. The basis for this last finding appears to have been a handwritten letter by a person held in Bunbury Prison authorising the Department to act on his behalf in regards to deportation and obtaining a passport[2]. However, that letter was not written by, or on behalf of the applicant and the Minister conceded that the Tribunal was wrong to rely on it in its decision. I will consider the consequences of that concession later in these reasons.

   [2] See exhibit 1 (Court Book) p.75.

3. The Tribunal then considered whether the possible knowledge by the authorities in India of the applicant’s detention in Australia might give rise to a well-founded fear of persecution on return to that country. Having had regard to information from the Department of Foreign Affairs and Trade (DFAT), which was not contradicted by anything provided by the applicant, it found that such awareness would not give rise to a relevant fear of persecution. It noted that there was no credible information before the Tribunal to indicate that persons who had spent time in detention outside of India are persecuted on return to India for that reason. The Tribunal also found that the claim that there was a real chance that the applicant would be persecuted for that reason was far-fetched and mere speculation. It also found the possibility that corrupt local police might identify him as having spent time in detention in Australia, and therefore target him to persecution, was too remote to amount to a real chance and was mere speculation.

4. The Tribunal next considered the possibility that the applicant may be harmed by his family upon return to India and concluded that, as he was still in contact with his mother, and although his relationship with his father is distant, any consequences would not amount to serious harm for the purposes of the Migration Act.

5. The Tribunal also considered, but rejected in the absence of evidence, as speculative the possibility that the family of the person assaulted by the applicant in Australia might harm him in India.

6. Finally, the Tribunal rejected as speculative the applicant’s assertion that he would find it difficult to access employment in India.

7. For those reasons the Tribunal found that the applicant did not have a well-founded fear of persecution for any of the reasons claimed in his written application or as raised before the delegate of the Tribunal and so did not satisfy the requirements of sub-s.36(2)(a) of the Act.

8. For essentially the same reasons as the delegate, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he would suffer significant harm. Accordingly the Tribunal found that the applicant did not meet the criterion for a protection visa in sub-s.36(2)(aa) of the Act.

9. For those reasons, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

First ground: “The Tribunal made a legal error in making a finding based on no evidence and/or false factual premise.”

1. The particulars to this ground refer to the following parts of the Tribunal’s decision:

   [17]… The Tribunal put to him that it did not have the report[3] and could not provide this information, but that in any event it may never be known who accessed the information as it may have been saved and passed on.

   …

   [21]The Tribunal considers it unlikely the authorities in India became aware the applicant was in detention through information obtained as a result of the data breach. The Tribunal considers the material was available online for a short period of time and was accessed by a relatively small number of IP addresses.

   [3] This is a reference to the unabridged KPMG report into the Data Breach.

   …

   [26]... the claim that there is a real chance the Indian authorities, or anyone else in India, would persecute the applicant because he spent time in detention in Australia, to be far-fetched and mere speculation.

2. In his written submissions, the applicant explained that the basis of this ground was that the Tribunal did not have access to the unabridged version of the KPMG report. In light of this, the ground appears to be based on the assumption that the unabridged KPMG report contained information that would have supported the applicant’s claimed fears. There is no basis for that assumption. Not only did the Tribunal not have the unabridged report, but it is not before the Court. For that reason, the contents of the report are unknown and it is not possible to make the assumption on which the applicant relies.

3. Further, and in any event, the fact that the Tribunal did not have the unabridged report did not affect the lawful exercise of its power of review. First, it was not suggested that the Tribunal could have obtained the report. Secondly, it was not obliged to take into account information that was not available to it.

4. The Tribunal made its decision based on the information available to it. This included an abridged version of the KPMG report and information from DFAT about the situation in India relevant to people in the applicant’s position. It was open to the Tribunal on that material to conclude that there was nothing to suggest that the applicant’s fears were well-founded. The Tribunal was not required to accept the applicant’s assertions to the contrary: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347, 348.

5. The Tribunal did, as mentioned at [9] above, take into account information that was not probative of any issue in the review; namely, the letter written by a prisoner in Bunbury Prison. By using that letter to make a finding about what might occur to the applicant, it made a finding for which there was no evidence. The question is whether that constituted a jurisdictional error.

6. The impact of errors associated with findings of fact is not always easy to determine. It is clear that, in the determination of whether an administrative decision is affected by jurisdictional error, the distinction between errors of law and errors of fact (to the extent that there is one) is not the decisive discrimen: Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [53]-[60] (McHugh and Gummow JJ).

7. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) referred to Craig v State of South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 (“Craig”) and said, at [82]:

   ... “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

   …

   See also Minister for Immigration & Border Protection v Lesianawai (2014) 227 FCR 562; [2014] FCAFC 141 at [56]-[62] per Buchanan J.

8. Central to this question is the identification of the particular decision-maker’s task. In the case of the Tribunal, that task is to “review” the decision of the delegate: s.414. It is an essential element of that task that the Tribunal must consider the applicant’s claims, that is, the reasons for which he says he satisfies the criteria for the grant of a protection visa: see, for example, MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 441, [2010] FCAFC 123 at [83]. The Court there noted that in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303 at [28]; [2010] FCAFC 51 North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims. However, it is now accepted that their Honours were not attempting to give an exhaustive statement of when factual errors are jurisdictional: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [113].

9. The important factor in this case is that the finding made by the Tribunal without evidence was in favour of the applicant. The applicant claimed that the Indian authorities would know about his detention in Australia because of the Data Breach. The Tribunal rejected that argument, but found that the authorities would know about him for a different reason, namely, his application for a passport (based on another person’s application). It cannot be said, in those circumstances, that the Tribunal’s error caused it not to consider the applicant’s claims. More broadly, and critically, this means that the error cannot be said to have affected the Tribunal’s exercise of power. It did not lead the Tribunal to reject, overlook or otherwise fail to deal with any evidence or argument put forward by the applicant. In short, the Tribunal fulfilled its obligation to review the decision of the delegate in spite of the error. For that reason, the error was not jurisdictional.

Second ground: “The Tribunal made a legal error as it did not have the jurisdiction to make (sic) determine the data breach claim.”

1. The basis of this ground is the contention that jurisdiction is invested by the Privacy Act1988 (Cth) in the Office of the Australian Information Commission. That may well be so; however, the Tribunal did not purport to determine whether there was any breach of the Privacy Act. It determined the question, amongst others, whether the Data Breach meant that the applicant satisfied one or more of the criteria for the grant of a protection visa. It had jurisdiction to do so by virtue of s.414 of the Act. This ground is rejected.

Third ground: “The Tribunal made a legal error in asking itself the wrong question.”

1. The particulars to this ground in the application are:

   a.My claim was that I feared harm because the department disclosed my name, personal details and reason for detention in its website.

   b.Without access to the KPMG report I could not identify who had accessed my personal information and who I fear harm from.

   c.The finding at [26] the Tribunal asks itself the wrong question whether I would be persecuted because I spent time in detention in Australia.

2. The question for the Tribunal was whether the applicant faced a serious risk or real risk of harm on return to India as a result of the Data Breach. One of the matters revealed in the Data Breach was the fact that the applicant was in detention. In light of that, the risk that might be posed by knowledge of the fact that the applicant had been in detention was relevant to the Tribunal’s task and the Tribunal did not err by considering it.

3. At the hearing the applicant submitted, consistently with the second particular to this ground, that he could not know what harm he faced in India as a result of the breach without more information. That may be accepted and it made his application for a protection visa difficult for him; however, that fact did not undermine what the Tribunal did. It was only able to determine the issues before it on the basis of the material that it had. If that material was inadequate to establish the applicant’s case that did not limit its jurisdiction or prevent it from making a decision. As already noted, there is no suggestion here that the Tribunal could easily have obtained the report or any other material to support the applicant’s case. For those reasons the third ground is rejected.

4. In his written submissions the applicant raised two further matters. The first matter was that there was a conflict of interest in that the Department was investigating the consequences of its own breach; and secondly, that denied procedural fairness in that consideration of the Minister’s exercise of his personal power under ss.48B, 195A or 417 of the Act. Neither of these grounds is relevant as they do not concern the Tribunal. The second matter appears to be a formulaic repetition of an argument that was considered, and finally rejected, in a different context: Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 21 October 2016