Apb15 v Minister for Home Affairs
[2019] FCCA 475
•4 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APB15 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 475 |
| Catchwords: MIGRATION – Review of International Treaties Obligations Assessment – finding that Australia does not owe non-refoulement obligations to the applicant – whether the Assessor asked himself the wrong question or overlooked an integer of a claim considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: AKD15 v Minister for Immigration [2017] FCA 166 ALZ15 v Minister for Immigration [2017] FCA 279 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration & Anor v SZSSJ (2016) 259 CLR 180 NAJT v Minister for Immigration (2005) 147 FCR 51 SZTZM v Minister for Immigration [2017] FCA 534 Tickner v Chapman (1995) 57 FCR 451 |
| Applicant: | APB15 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | FERGUS MCCORMICK, IMA PROTECTION NSW, DEPARTMENT OF HOME AFFAIRS |
| File Number: | SYG 918 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Solicitors for the Respondents: | Ms L Buchanan of Australian Government Solicitor |
ORDERS
The application filed on 27 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 918 of 2017
| APB15 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| FERGUS MCCORMICK, IMA PROTECTION NSW, DEPARTMENT OF HOME AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of an International Treaties Obligations Assessment (ITOA) made on 14 April 2015. The ITOA Assessor (Assessor) concluded that Australia did not have non-refoulement obligations to the applicant under relevant treaties.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Bangladesh who first arrived in Australia in 2005 on a student visa. He was granted a further student visa, his last ceasing in 2011 and he remained in Australia unlawfully before applying for a protection visa on 11 April 2013, after having been taken into immigration detention.[1] On 17 July 2013, the applicant’s protection visa application was refused.[2] He sought review with the former Refugee Review Tribunal (RRT) which affirmed the decision under review on 24 September 2013.[3]
[1] Court Book (CB) 1-58. See also the applicant’s submissions at [2]-[8]
[2] CB 79-88. See also the applicant’s submissions at [9]
[3] CB 89- 97. See also the applicant’s submissions at [10]-[13]
In February 2014, a report was published on the internet by the Minister’s Department which enabled personal information about the applicant (and other persons held in immigration detention at that time) to be accessible online for a short period of time. The circumstances of that disclosure are summarized by the High Court in Minister for Immigration & Anor v SZSSJ.[4] It is convenient to refer to that disclosure as the “data breach”.
[4] (2016) 259 CLR 180 at [3]-[7]
On 12 March 2014, the Secretary of the Minister’s Department wrote to the applicant in relation to the data breach.[5] Similar correspondence was sent to other persons affected by the data breach, described by the High Court in SZSSJ at [8]. On 27 June 2014, an officer of the Minister’s Department wrote to the applicant inviting him to provide particulars of any concerns he had regarding the data breach,[6] to which his migration agent responded on 1 July 2014.[7]
[5] CB 104
[6] CB 110-111
[7] CB 115
On 12 January 2015, the applicant was notified that the Minister’s Department would be carrying out an ITOA to assess any non-refoulement claims he may have. The Minister’s Department’s letter noted that this was due to the data breach and that the applicant’s response on 1 July 2014 to the Minister’s Department’s earlier letter would be considered along with the concerns raised in an application for judicial review filed in this Court in 2014 which raised concerns about the data breach. The letter also stated that the process will “consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protections claims were assessed”.[8]
[8] CB 116-118
On 20 January 2015, the applicant provided material to the Minister’s Department, being material relating to his claims for protection in Bangladesh.[9] On 21 January 2015, the applicant’s solicitor also provided documents to the Minister’s Department.[10]
[9] CB 119-155
[10] CB 156-162
On 4 February 2015, the Assessor wrote to the applicant,[11] noting that the:
ITOA will only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken. I have considered your submissions and note that you have had a lawful decision made with regard to your previous protection claims so these claims will not be reconsidered. I do not consider that there is sufficiently new information or changes in your circumstances that would affect the outcome of this decision.
[11] CB 163-164
The Assessor also put to the applicant for comment various matters relating to his claims, including country information relevant to treatment of returnees to Bangladesh. The court book filed in this matter omits a page of this letter, and a full copy was provided in a supplementary court book.[12] Between 17 February 2015 and 23 February 2015, the applicant’s solicitor and the Assessor corresponded about a response to the Assessor’s letter. The applicant’s solicitor sought further time to respond and this was granted. On 23 February 2015, the applicant’s solicitor then indicated the applicant had no comment and intended to discuss the issues raised at interview. The Assessor replied to that email informing the applicant’s solicitor that he was not intending to hold an interview and asked the applicant to respond in writing immediately.[13] No further response was received before the ITOA was finalised almost two months later on 14 April 2015.[14]
[12] supplementary court book 1-4
[13] CB 165-168
[14] CB 169-181. See also the applicant’s submissions at [14]-[21]
The present proceedings
These proceedings began with a show cause application filed on 23 March 2017. The applicant continues to rely upon that application. Additional grounds were foreshadowed in written submissions filed on behalf of the applicant but no amended application was produced and the additional grounds foreshadowed were not pursued. The grounds as advanced in the original application are:
1. The Reviewer misdirected himself and/or asked himself the wrong question.
Particulars
a.On pages 1-2 of the Notification of commencement of an International Treaties Obligations Assessment Treaty (ITOA) dated 14 January 2015 from the Third Respondent it stated the process of assessing the applicant's protection claims in relation to the data breach as follows [CB 116-7]:
This ITOA will consider Australia's non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia's interpretation of those obligations, Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.
This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protections claims were assessed;
b. At pages 8 [CB176] the Reviewer found as follows:
While these documents relate to the claimant’s previous protection claims and have not been previously assessed by a delegate, I do not consider that they significantly alter the RRT’s findings regarding the risk of harm the claimant faces.
Consequently, in light of the evidence before me, I consider the findings of the RRT in relation to the claimant’s protection claims continue to be valid and effective;
c.What the reviewer in fact did was assess the newly provided documents/information against the findings of the RRT that pre-date the data breach and to test whether the applicant could contradict the RRT findings;
d.The reviewer erred in not implementing the process as represented in previous letters to the applicant and in particular in the 14 January 2015 letter assessing any new information in relation to the impact of the data breach for the applicant personally; and
e.The reviewer erred in focussing on the previous findings and not the purpose and process as stated in the commencement letter and assess protection claims relating to the data breach, thereby failing to complete the assessment.
2. The reviewer erred in failing to consider all the integers of the claims and/or misdirected himself.
Particulars
a.The applicant provided new information to the reviewer as follows:
i. A letter from the applicant's lawyer in Bangladesh stating there is an arrest warrant against the applicant and his brother [CB158]; and
ii. A letter from the applicant’s brother stating there is an arrest warrant against them [CB159].
b. At page 8 the reviewer noted that:
While these documents relate to the claimant's previous protection claims and have not been previously assessed by a delegate, I do not consider that they significantly alter the RRT’s findings regarding the risk of harm the claimant faces;
c.The purpose of supplying the new information was to be assessed in relation to the data breach and the applicant was unaware that the reviewer would consider the new information as to whether it contradicted previous findings of the RRT; and
d.The reviewer [h]as failed to perform its task of assessing the applicant's new information relation to the data breach as indicated it would be doing in the ITOA commencement notification letter dated 14 January 2016 and has failed to assess the claim as made to him.
The application was filed outside the period prescribed by s.477(1) of the Migration Act 1958 (Migration Act), if it applies. The Minister did not object to the granting to an extension of time if necessary. To the extent necessary, at the trial on 28 February 2019, I extended time under s.477(2) of the Migration Act up to and including 27 March 2017.
In addition to the court book filed on 8 May 2017 and a supplementary court book filed on 16 November 2018, I have before me as evidence (subject to relevance) three affidavits made by the applicant’s solicitor (Ms Byers) on 17 March 2017, 27 March 2017 and 25 February 2019. The first affidavit goes essentially to the question of an extension of time while the second affidavit merely attaches the ITOA decision. The third affidavit seeks to explain why the applicant did not take up the opportunity to comment on information provided to him, through his solicitor, by the Assessor. In the absence of any allegation of procedural unfairness (of which there is none) the relevance of that explanation is questionable.
Consideration
Applicant’s contentions
The second asserted error involves the way that the Assessor dealt with the newly provided documents/information, being the letter from the lawyer and the letter from the brother. That material was provided to the Assessor in the context of the data breach. The newly provided documents/information were given in addition to the written submissions of the solicitor set out at CB 113-115 to support the claim that the applicant was now at risk because of the ramifications of the release of his personal information, which included that he was an asylum seeker who was in detention in Australia.
Instead of considering the new information, changes in his circumstances, or in his country of nationality since his previous claims were assessed, the Assessor assessed the newly provided information against the findings of the Tribunal, which pre-dated the data breach. The Assessor, in effect, is said to have tested the newly provided information against the Tribunal findings. This is said to be evident at CB 176 where the Assessor noted that “the RRT concluded that the claimant was not a credible witness” and had raised concerns that the documents were not genuine. The Assessor also noted that the RRT had given no weight to the documents the applicant had provided to it.
Although the Assessor noted that the newly provided information had not been before a delegate, it concluded that it did not “significantly alter the RRT’s findings regarding the risk of harm the claimant faces”. This last statement of the Assessor is said to reveal the error as to context in which the newly provided information was being assessed. It was not being assessed in respect of the data breach but in respect of whether it would alter the RRT’s findings.
The asserted error is also said to constitute a jurisdictional error in that the Assessor failed to perform his task and assess all integers of the claims submitted by the applicant. A requirement, whether imposed by common law or by statute, to consider a claim requires a decision-maker to engage in “an active intellectual process directed at that representation or submission”.[15] To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[16]
[15] Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. See also NAJT v Minister for Immigration (2005) 147 FCR 51
[16] Htun v Minister for Immigration (2001) 194 ALR 244
The process of reasoning of the Assessor is also said to reveal that he misdirected himself and failed to properly consider the newly provided information and documentation in the context of the data breach. This is the asserted jurisdictional error complained of in Ground 1.
In oral submissions, counsel for the applicant focused attention initially, and in addition to what is in the written submissions, upon the asserted failure of the Assessor to focus on the data breach in terms of what was disclosed and the impact upon the applicant.
Resolution
In relation to the submission made orally that the Assessor failed to focus on the data breach and the impact on the applicant, that is readily understandable when one considers the circumstances upon which the ITOA came into being. The applicant (along with a significant number of others) had brought proceedings in this Court in order to seek relief in relation to the data breach, claiming among other things that the data breach rendered him a refugee sur place. That assertion was pursued following the establishment of the ITOA. The applicant asserted in a submission[17] that he did not know (and by implication could not know) how he might be affected by the data breach, given the myriad of persons or agencies who might have come to know his personal information. The applicant provided additional documents, however, which bore upon his protection claims which had been made before the RRT. The applicant was then invited to provide comment on information bearing upon the data breach issue but did not respond. The applicant’s solicitor seeks to explain that non response in her affidavit but the fact is that there was no response and the Assessor was not given anything further to work with in relation to the possible implications of the data breach. It is understandable that, given the applicant claimed to be a refugee sur place because of the data breach, and given that the applicant had submitted new information bearing upon his protection claims which had been dealt with by the RRT, the ITOA focused on those claims.
[17] CB 114 at [5]
Nevertheless, the ITOA dealt generally with the data breach in the following terms:[18]
Fear of being harmed as a consequence of website disclosure
The claimant's authorised representative submitted that there is no way of knowing from whom the claimant could face a real risk of harm as a consequence of the website disclosure. It was submitted that ‘it may go well beyond the authorities in Bangladesh, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates.’[19]
It was put to the claimant that they have provided no new claims regarding why any particular group or individual would seek to harm him if he returned to Bangladesh. It was also put to the claimant that given his lack of specific claims regarding the website disclosure his circumstances would be assessed in conjunction with country information regarding the situation for returnees to Bangladesh. It was noted that there is no country information to support the claim that returnees or failed asylum seekers are subjected to harm or mistreatment upon return to Bangladesh. It was put to the claimant that his lack of specific claims regarding a fear of harm coupled with the aforementioned country information indicates that he may not have a real risk of experiencing either serious or significant harm upon return to Bangladesh. The claimant did not provide a response to this information.
There is no evidence before the department to indicate that the claimant has ever been of interest to security and intelligence agencies, terrorist organisations and criminal syndicates. Neither is there any evidence before the department to indicate that the claimant has a profile or that he has ever been involved in any activities or undertakings that would bring the claimant to the adverse interest of these organisations and agencies. While the claimant does claim to be of interest to police in Bangladesh, the claimant has not stated that his involvement in the website disclosure has affected the harm he claims to fear in this regard, and accordingly, I do not accept that the website disclosure would have any bearing on his previous protection claims.
Consequently, I consider the claim that foreign security and intelligence agencies, terrorist organisations and/or criminal syndicates would use the claimant's information, which includes his name, date of birth, nationality, gender and detention details to target and harm him to be unsubstantiated.
[18] CB 177
[19] Departmental file ADD2014/857478
In my view, the Assessor did not stray from the task before him, having regard to the observations of the High Court on this issue in SZSSJ in particular at [9], [10], [90] and [91]. The information disclosed about this applicant was his name, his date of birth, the fact that he was in detention, the fact that he had held a temporary residence visa, the fact that he was an overstayer and the length of time he was in detention.[20] In the absence of anything else, it is hard to imagine how Australia’s non-refoulement obligations under international treaties could be engaged simply by the fact of disclosure of that information.
[20] CB 99-102
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
The applicant asserts error by the Assessor in the way he considered new information provided to him on the basis that the Assessor had assessed the new material against previous findings made by the RRT.
The new information consisted only of two documents which raised claims regarding an arrest warrant which related to a claim previously raised by the applicant before the RRT.[21] These documents were considered in the context of the Assessor considering the applicant’s previous claims for protection.
[21] the letters are contained at CB 158-159
In the ITOA process, the applicant had been informed that the process would consider any claims relating to the data breach and any changes in the applicant’s circumstances since his previous protection claims had been assessed.[22] Further, the applicant had been put on notice by the Assessor that, having considered the material provided by the applicant, he did not consider there was sufficiently new information or changes in the applicant’s circumstances that would affect the outcome of those previous assessments.[23] The applicant made no submissions in response to the Assessor on this issue.
[22] CB 117
[23] CB 163
There was no error in the way the Assessor considered the applicant’s material in the ITOA where the Assessor’s task was, as indicated to the applicant, to assess whether there had been any relevant change in circumstances such as to attract Australia’s non-refoulement obligations.[24] Further, to the extent that the complaint is that the material was to support a claim regarding the data breach,[25] there was nothing in the material relevant to any claims regarding the data breach such that the Assessor would need to consider them or that they in any way constituted an integer of the applicant’s data breach claims. The Assessor clearly considered[26] the claims made by the applicant in relation to the data breach, as set out above.
[24] see, for example, similar reasoning considered in ALZ15 v Minister for Immigration [2017] FCA 279; AKD15 v Minister for Immigration [2017] FCA 166 and SZTZM v Minister for Immigration [2017] FCA 534
[25] applicant’s submissions at [22]
[26] at CB 177
Conclusion
The applicant has failed to establish that the ITOA is affected by any reviewable legal error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 4 April 2019
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