AMJ15 v Minister for Immigration

[2017] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMJ15 & ANOR v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 1035

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment – procedural fairness – protection visa claims allegedly released in data breach – application dismissed.  

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection SZTZI [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653

CDM16 v Minister for Immigration  & Anor [2016] FCCA 2758

AKD15 v Minister for Immigration & Ors [2016] FCCA 2740

First Applicant: AMJ15

Second Applicant: AMK15

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 18 of 2015

Judgment of: Judge Young

Hearing date: 8 May 2017

Date of Last Submission: 8 May 2017

Delivered at: Darwin

Delivered on: 8 May 2017

REPRESENTATION

First Applicant in person via video link.

Second Applicant in person via video link.

Counsel for the Respondents: Ms Davidson

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 16 April 2015 be dismissed.

2. The Applicants pay the Respondents’ costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 18 of 2015

AMJ15

First Applicant

AMK15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR 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 judgment 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 an International Treaty Obligation Assessment, usually called an ITOA, undertaken by a Departmental officer on 7 April 2015 in respect of the two applicants who are Chinese citizens.  The migration history of the applicants is relevant.  They both arrived in Australia in October 2006 on false South Korean passports.  On 9 January 2014 a protection visa application was refused for the first applicant as the primary applicant and the second applicant as a member of his family. 

3. It appears that the applicants were then or thereafter taken into detention.  In February 2014 there was a release of information about thousands of people on the Department’s website, usually called the ‘data breach’.  The information released, essentially, was biographical information about applicants including names, addresses, age, detention, place of detention, whether other family members were in detention and the like.  It is not my understanding that in any case information on which protection visa applications were based was released.

4. On 12 March 2014 the applicants were advised that information had been disclosed.  There was a further letter on 21 March 2014 in relation to the same matter.  On 27 August 2014 a response was sought by the Department from the applicants about the breach. Submissions were made on their behalf about the consequences of the breach.  They appear to have been rather pro forma.

5. On 28 January 2015 there were further claims from the applicants setting out their submissions in relation to the data breach.  The letter was a template letter and was apparently prepared by lawyers on behalf of the applicants.  The template essentially made submissions alleging that there had been a breach of procedural fairness, seeking further information, asserting there was a conflict of interest and alleging that the applicants should be treated as refugees sur place on the basis of the data breach. 

6. On 19 March 2015 the Department sent a letter to the applicants, who were then in detention at Wickham Point outside Darwin, raising various matters that were called “adverse inferences” which I do not need to repeat in any detail but they were matters that the applicants were invited to address.

7. The Minister relied on an affidavit from a Departmental officer stating that the letter – I will call it the ‘adverse inferences letter’ – was given to both applicants and explained with the assistance of a Korean interpreter (although Chinese citizens the applicants are Korean speaking) over the telephone. As mentioned, the letter invited further submissions about the adverse inferences and the affidavit states that nothing was received in response from the applicants about that.  On 17 April 2015 the assessor made the decision pursuant to the ITOA and found that the applicants were not at risk of significant harm or serious harm as a result of the data breach if they were to be returned to China.

8. The applicants lodged a judicial review application which was in a template form that has been considered in this court on repeated occasions. The 19 grounds set out there, as I say, are a template and have been considered in other decisions of this court.  The template grounds include an allegation of denial of procedural fairness and the identical allegation was considered by the High Court in the Minister for Immigration v SZSSJ; Minister for Immigration v SZTZI [2016] HCA 29; 90 ALJR 901; 334 ALR 653.

9. It is the latter case which is analogous to this one, that is, where the ITOA took place after filed protection visa applications.  The High Court found that there was no denial of procedural fairness in that case and I consider that I am bound by that conclusion. 

10. The balance of the grounds set out in the template claim have been considered in a number of other cases, including CDM16 v Ministerfor Immigration [2016] FCCA 2758 and AKD15 v Ministerfor Immigration [2016] FCCA 2740. Those cases considered whether the grounds set up in the template disclosed jurisdictional error. The judges in those cases, Judge Driver and Judge Street respectively, found that the grounds did not disclose any jurisdictional error. For the reasons given in those decisions the application in respect of the template grounds will be dismissed.

11. In this case, notwithstanding an order that the applicants file written submissions no written submissions were filed. When I asked the applicants what they wished to say it was clear enough to me that they were not in any position to make submissions about the template grounds.

12. I am not even sure that they were aware of what the template grounds said.  However, in the course of explaining to them that they would need to demonstrate some error on the part of the assessor in the ITOA decision or the ITOA decision-making process the first applicant who largely but not exclusively spoke on behalf of the second applicant, his wife, said that the assessor had made an error by failing to consider the impact of the release of information about their protection visa claims and, specifically, that they were Christians.

13. It is undoubted that the assessor did not consider that matter.  The reason for that, I am satisfied, is that the applicants did not raise that with the assessor. In their letter or letters – there are identical letters from each of them – dated 28 February 2015 which was sent to the Department as part of the ITOA process they raised a number of grounds in their complaint about the consequences of the data breach.  Those grounds were reflected in the template application for judicial review.

14. Essentially, they relate to a complaint that the Department failed to provide adequate information about the data breach, that they were denied procedural fairness and that they should be recognised as refugees sur place. I am satisfied that the decision-maker or the assessor, I should say, considered all of those matters in the ITOA and, as I have already mentioned, those matters were dealt with by the High Court in SZSSJ and SZTZI.  The other grounds in the template application were dealt with in CDM16 and AKD15. At no point was a complaint raised to the assessor that the applicants’ Christianity had been disclosed in the data breach.

15. It was said by the applicants that they had often raised with the Departmental officers the fact of their Christianity and, indeed, it was suggested by the applicant’s pastor, who was present in court and who I permitted to speak briefly, that if that information was raised with the Department and not passed on to the assessor then that was an error by the Department that should provide some remedy to the applicants.  While the applicants may have raised the basis of their protection claims at various times to Departmental officers and others, I am satisfied that claim was never raised formally with the assessor and is unlikely to have been raised in any way at all given that the assessment was carried out by correspondence.

16. It is certainly not mentioned in the written submissions that were made on behalf of the applicants in the ITOA process. They said that they say they did not understand those written submissions and they were drafted by lawyers.  Nevertheless, the claim that the basis of their protection visa claims was released were not raised.  The reason they were not raised may be that there is no evidence that the basis of the protection visa claims was released in the data breach. 

17. The Department has repeatedly asserted in correspondence that the information released in the data breach was limited to personal information about the applicants, including names, addresses, birth dates, places of detention and whether a family member was in detention.  The nature of the data breach was considered by the High Court in SZSSJ and SZTZI and in the cases in this court that I have mentioned. There is no suggestion in those cases that anything beyond the information that I have described was released in the data breach.

18. The position is, it appears to me, clear.  There was no personal information beyond that which I have described released in the data breach.  There was no information about the applicants’ Christianity released in the data breach.  In fact, as Ms Davidson has pointed out in submissions, there was a letter sent to the applicants in this case, and no doubt a pro forma sent to many others, which states as the reason given in the data breach for the applicants’ detention was that they were ‘over-stayers’.  I am satisfied that no claim of the kind now raised by the applicants was raised previously because there was no basis for such a claim.

19. The assessor was not required to consider whether the Chinese authorities would react in some way to the applicants being Christians because that was not information released in the data breach.  It follows that the ground has no merit and the application will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date:     18 May 2017