ALY15 v Minister for Immigration

[2017] FCCA 406

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALY15 & ANOR v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 406

Catchwords:
MIGRATION – Judicial review – International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653
CDM16 v Minister& Anor[2016] FCCA 2758
AKD15 v Minister & Ors [2016] FCCA 2740

First Applicant: ALY15

Second Applicant: AMX15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 17 of 2015

Judgment of: Judge Young

Hearing date: 1 March 2017

Date of Last Submission: 1 March 2017

Delivered at: Darwin

Delivered on: 6 March 2017

REPRESENTATION

The Applicants by videolink: In person

Counsel for the Respondent: Ms Davidson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application file 9 April 2015 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 17 of 2015

ALY15

First Applicant

AMX15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision made by a departmental officer under the International Treaty Operation Assessment process, commonly called the ITOA, following a data breach affecting the applicants in February 2014. 

3. The applicants are father and son.  The father is 54 years old and the son is 26 years old. They are Chinese citizens. They arrived lawfully in Australia on 4 May 2008 but at some point their entitlement to stay either expired or was revoked. 

4. In 2014 there was a protection visa application made by both, as I understand it, or at least by the father with the son as a secondary applicant.  The Refugee Review Tribunal rejected that application on 28 May 2014.  On 12 March 2014 the applicants were informed of the event, commonly known as the data breach, when in February 2014 the personal details of about 9,000 persons were released accidentally by the Department on the internet.  The Department undertook the ITOA process as mentioned in respect of the applicants. The purpose of the ITOA process was to determine whether Australia’s non-refoulement obligations were engaged as a result of the data breach so the applicants should not be returned to China. It was determined on 13 April 2015 that those obligations were not engaged.

5. In the ITOA process the applicants asserted that the information released in the data breach would be accessed by the Chinese authorities and, as a result, they would be treated as political dissidents. They further claimed that the information may have been accessed by criminal syndicates or terrorists and they would be targeted as a result. They claimed they were at risk of being denied employment on return to China and their ability to travel to other countries would be compromised. They said that they were already of interest to the Chinese authorities. 

6. The ITOA process assumed disclosure to the Chinese authorities and the officer undertaking the process concluded that there was no evidence to support the asserted claim of the applicants that they feared serious or significant harm on their return to China.  In other words, it was found that Australia’s non-refoulement obligations were not engaged in this particular case.  The process adopted in the ITOA appears to be relevantly identical or at least not dissimilar in any relevant way to the process considered by the High Court in SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653 where the High Court held that the ITOA process in that case was not affected by procedural unfairness and that the ITOA decision was valid.

7. It appears to be that the same result must occur in this case. 

8. I should say something further.  The application to this court was made in a template form that has been used in a number of other applications to the court. The template grounds of review have been considered in detail in at least two other decisions: CDM16 v Ministerfor Immigration & Anor [2016] FCCA 2758 and AKD15 v Minister for Immigration & Ors [2016] FCCA 2740, decisions by Judge Driver and Judge Street respectively.

9. For the reasons set out by Judge Driver in CDM16 I find that the balance of the claims set out in the application, that is, the balance of the claims other than the procedural fairness claim, do not give rise to a ground for relief. The application is dismissed and the applicants must pay the first respondent’s costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 6 March 2017