AMQ15 v Minister for Immigration

[2017] FCCA 686

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMQ15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 686

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment following “data breach” – citizen of China – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

AKD15 v The Minister for Immigration [2016] FCCA 2740
The Minister for Immigration v SZSSJ, The Minister for Immigration v SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653

Applicant: AMQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

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

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

File Number: DNG 19 of 2015

Judgment of: Judge Young

Hearing date: 14 March 2017

Date of Last Submission: 14 March 2017

Delivered at: Darwin

Delivered on: 14 March 2017

REPRESENTATION

Applicant appearing in person via videolink

Counsel for the Respondents: Ms Buchanan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 17 April 2015 be dismissed.

2. The Applicant pay the Respondent costs of and incidental to the application fixed in the sum of $6,825 within 30 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 19 of 2015

AMQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION & 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 by a departmental officer in an International Treaty Obligation Assessment (ITOA). The application for judicial review was filed on 21 April 2015.  On 10 August 2015, the matter was adjourned by consent pending the decision of the Full Court of the Federal Court in a number of decisions, ultimately resulting in the decisions of the High Court in The Minister for Immigration v SZSSJ, The Minister for Immigration v SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653. The latter decision was relevant because it was an examination of the ITOA process. It disposed of many, if not all, of the arguments that have been raised by the applicant in this case.

3. At the time of the application the applicant was in immigration detention at Wickham Point outside Darwin. She told me that on 3 June 2016 she was released from immigration detention into the community. She said she met with a lawyer in July 2016. She has referred to a lawyer by first name, Michaela. The applicant told me that she assumed that there was, and I use a phrase in translation from Mandarin, “a class action” and that her lawyer was “looking after everything”. That is far from the case because there is no class action of which I am aware. There has been no lawyer involved in this proceeding at any point as far as I can tell from the court file. The applicant has not been represented in this court by a lawyer at any point.

4. The applicant said she was aware that the matter was adjourned on 10 August 2015 but thereafter lost track of matters. I do not know what she was told in July 2016. It is pointless speculating and it is inappropriate to ask. The applicant was aware that the proceeding was adjourned by consent to a date to be determined and the applicant has not filed a new notice of address for service following her release from immigration detention. That means there is no current address at which a court listing could be sent to her. There has been no means by which the court or the respondent could correspond. No step was taken by the applicant to inquire about the course of proceedings following her meeting with the lawyer in July 2016.

5. She has taken no steps to be prepared for the hearing today and has taken no steps to inform herself of the course of the proceedings.  Accordingly, I refuse the application for adjournment.

6. This is an application for judicial review of a decision made by a departmental officer on 7 April 2015 following an International Treaty Obligation Assessment, usually called ITOA in brief. The ITOA decision concluded that Australia owed the applicant no non-refoulement obligations under its various international treaty obligations. The factual matrix out of which the matter arises is an event known as the “data breach” which occurred in February 2014 when personal information about the applicant and thousands of other people was accidentally published on the internet. The applicant’s migration history is of some relevance here. She arrived in Australia on 10 April 2008 on a false South Korean passport. In September 2012 she applied for a temporary business visa which was rejected. In October 2013 she applied for a protection visa which was refused.

7. In February 2014 the Refugee Review Tribunal affirmed the refusal of the delegate to grant the applicant a protection visa. In about March 2014 the applicant was notified of the data breach. In July 2014 she was invited to provide information about the data breach and how that might affect her. In January 2015 she was notified that the ITOA process had commenced and she was invited to present any further claims she might have. On 28 January 2015 she submitted further claims and they are listed at page 4 of the ITOA decision. Essentially, those claims were that as result of the website disclosure she was at risk of serious or significant harm at the hands of foreign security and intelligence agencies, terrorist organisations or criminal syndicates; her employment in China would be affected and she would be denied a visa to travel out of China; that she had been denied procedural fairness; that there was a conflict of interest in departmental officers conducting the ITOA and that the applicant suffered a real risk of serious harm or significant harm on her return to China due to her illegal departure from China, her unauthorised, prolonged absence from China and a period of illegal stay in Australia.

8. On 17 March the Department sent a letter to the applicant outlining various matters which have been called adverse inferences or adverse information in short hand and which might be bases for deciding the matter adversely to the applicant. I will leave aside the procedural fairness and conflict of interest claims for the time being but her protection claims were considered and there was a conclusion by the departmental officer that those claims did not give rise to any obligation of non-refoulement by Australia or obligation not to return the applicant to China.  That was based on the consideration of the country information which concluded that, to summarise, the applicant was not considered a person who was politically opposed to the Chinese government.

9. The ITOA was conducted on the assumption that the Chinese authorities were aware of the material released in the data breach. The ITOA assessment concluded that the applicant was unlikely to be treated adversely in relation to her employment. The ITOA also concluded that there was a risk that the applicant would be denied a passport in China as a result of these matters for a period of six months to three years.  In the decision on 7 April the departmental officer dealt with those claims and, as I have mentioned, and concluded adversely to the applicant in each case.

10. The applicant applied to this court for judicial review and has done so on the basis of a template application. The template has been considered previously by this court and, I was informed by counsel for the Minister, indirectly by the Federal Court in an appeal from the decision of Judge Street in AKD15 v MIBP [2016] FCCA 2740 which dealt with the same template. Judge Street’s decision rejecting the application was upheld in the Federal Court according to counsel for the Minister. I was not provided with a copy of the Federal Court decision but I am informed by counsel that the decision, while not expressly or specifically considering the template grounds, generally upheld the decision. Accordingly I can be confident that Judge Street’s decision, at least at the appellate level of a single judge, has been held to be correct.

11. The other significant matter, and this is probably the most significant matter, is that the High Court decisions in The Minister for Immigration v SZSSJ, The Minister for Immigration v  SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653 are relevant to this decision. The High Court considered in both cases, but specifically in SZTZI which was a case concerning an ITOA conducted after the refusal of a protection visa, the identical procedural fairness grounds raised in this application and held that there was no denial of procedural fairness in the ITOA process in those cases. The decision specifically dealt with the arguments raised here in the template grounds: that it was unfair for an officer of the Department to be considering the consequences of the data breach, and considered whether the basis on which the ITOA was undertaken, that is, an assumption that the data released in the data breach was in the possession of the relevant authorities, was an appropriate assumption. It appears to me that on the procedural fairness grounds raised in this case the decisions in SZSSJ and SZTZI are dispositive. For the reasons in those cases the grounds must fail. Similarly, the balance of the grounds which are set out in the template were considered by Judge Street in AKD15 v MIBP [2016] FCCA 2740 and for the reasons given by him I reject the balance of the grounds. I dismiss the application with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  5 April 2017