APD15 v Minister for Immigration and Anor
[2017] FCCA 742
•13 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APD15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 742 |
| Catchwords: MIGRATION – International Treaties Obligations Assessment – whether the assessor asked himself the wrong question – whether the assessor considered the applicant’s risk of serious harm – no jurisdictional error identified – no prima facie case to warrant granting of injunction – application for interlocutory injunctive relief is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.198, 497. |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | APD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JAMES MACGIBBON, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 3591 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 13 April 2017 |
| Date of Last Submission: | 13 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Hart |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Ms J Davidson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Under s.477 of the Migration Act 1958 (Cth), the time for the filing of the application in the present case is extended up to and including 16 December 2016.
The application in a case for injunctive relief is dismissed.
The applicant to pay the respondents’ costs of the interlocutory hearing fixed in the amount of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3591 of 2016
| APD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JAMES MACGIBBON, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Background
This is an application for interlocutory relief to prevent the removal of the applicant from Australia. The applicant commenced proceedings in this Court on 16 December 2016, which are currently listed for directions before a Registrar of this Court on 27 April 2017. The applicant has very recently been issued with a notice of intention to remove from Australia under s.198(2) of the Migration Act 1958 (Cth) (“the Act”). That notice refers to removing the applicant from Australia on 20 April 2017.
An application in a case has been filed seeking an interlocutory injunction and an amended application has been filed, which identifies the following ground:
1. The assessor fell into jurisdictional error by asking himself the wrong question.
Particulars
a. The assessor asked himself whether the unintentional release of some of the applicant's personal information would not raise the applicant's profile instead of assessing the risk of serious or significant harm due to the unintentional release of some of the applicant's personal information;
b. The assessor's use of “profile” is drawn exclusively from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“Guidelines)”;
c. The Guidelines detail risk profiles resulting from the defeat of the LTTE by the Sri Lankan Armed Forces and are not contemplated in light of Australia's breach of asylum seeker confidentiality; and
d. To ask whether the applicant's profile as assessed against the Guidelines is raised by the unintentional release of some of the applicant's personal information is the wrong question.
The proceedings concern an International Treaties Obligation Assessment conducted by an assessor on 9 April 2015.
Before this Court
At the commencement of the proceedings, counsel for the first respondent indicated that an extension of time under s.477 of the Act was not in the circumstances opposed. Affidavit evidence was filed in relation to communications that have taken place between the parties. The Court was satisfied that it was an appropriate matter in which to make such an order.
The principles in relation to whether an interlocutory injunction should be granted are not in dispute and relevantly involve whether the applicant has a prima facie case of arguable jurisdictional error by the assessor in the assessment. The balance of convenience plainly weighs in favour of the applicant in circumstances where the applicant would otherwise be removed from Australia and, accordingly, it is not a high threshold for the applicant to reach in relation to determining whether there is a prima facie case given the consequences that follow if an injunction is not granted. I also take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].
Ms Hart, on behalf of the applicant, submitted that the assessor had not taken into account the applicant’s changed personal circumstances. In that regard Ms Hart drew attention to the information contained in the affidavit provided by the respondent, which had only been recently provided to the applicant’s solicitor that reflected the information apparently released on the website as a result of the data breach. That information included a reference to the applicant having already spent 503 days detained in a facility.
Ms Hart submitted that the assessor had asked himself the wrong question in determining whether Australia had a protection obligation to the applicant by focusing upon risk profiles in a UNHCR guideline that predated the disclosure of the applicant’s information on the website. Ms Hart submitted that the assessor had been deflected in discharging the task required in determining whether Australia had a protection obligation by focusing upon the UNHCR risk profile rather than the applicant’s individual profile and that this gave rise to an arguable jurisdictional error.
On 12 February 2015 the assessor sent to the applicant information providing an opportunity to comment. That information, relevantly, included information in respect of the applicant’s profile. Relevantly, it included:
With consideration to the country of origin information cited above I may find:
·that as you departed Sri Lanka legally via an international airport you would not face charges under the I&E Act;
·that even if you are questioned by the authorities on your return to Sri Lanka that this treatment would not constitute persecution for a Refugees Convention reason, nor would it constitute significant harm;
·that the data breach incident has not altered your profile with the Sri Lankan authorities in any way; and
·that you do not engage Australia's protection obligations on the basis of being a returnee or failed asylum seeker.
That information, providing an opportunity to respond, also included reference to the UNHCR document dated 21 December 2012.
Submissions were provided in response by the applicant’s migration representative on 13 February 2015, in part taking issue with the failure to disclose the information that was disclosed as well as raising an issue of alleged conflict.
The ITOA
The assessor identified in the introduction the purpose for which the assessment was being undertaken and then set out the applicant’s relevant details. One of them included the applicant arriving in Australia on 16 September 2012 on a bogus UK passport. It was noted that the applicant subsequently presented a valid Sri Lankan passport and raised protection claims.
On 26 September 2012 the applicant lodged a protection claim, which was refused by a delegate on 12 March 2013. The applicant sought review of that decision and on 1 October 2013, the Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review and on 17 November 2014, the Court found there was no error in that decision. The applicant appealed that decision and it was dismissed on 23 March 2015.
The assessor made reference to the claims that had been made that were found not to engage Australia’s protection obligations. Following that determination, in February 2014, a routine report released on the Department’s website unintentionally enabled access to some personal information. The assessor identified in relation to the information the limited nature of the information that was provided. The assessor made reference to the letter sent to the applicant on 15 July 2014 inviting the applicant to identify any information that the applicant wished to have considered arising from the website disclosure. The assessor noted the response dated 21 July 2014 and the applicant’s concern of a real risk of harm in that the data breach could go beyond the Sri Lankan authorities and that it could include foreign security, intelligence agencies, terrorist organisations and criminal syndicates. It was also submitted that the disclosure could have an impact on the applicant’s ability to find employment and that he may not be granted visas by foreign countries and, accordingly, that he was a refugee sur place.
The assessor made reference to the notification given to the applicant on 13 January 2015 of the assessment process being commenced to consider the claims raised by the applicant in relation to the website disclosure. The letter also invited the applicant to present any further claims. The assessor made reference to the response from the applicant’s migration agent on 19 January 2015 and identified the claims that will be assessed in the ITOA:
In response, on 19 January 2015 the claimant's representative submitted the following:
• Unless the department discloses all information related to the website disclosure, the claimant will be denied procedural fairness.
• Departmental case officers are placed in a conflict of interest as they are unable to make a finding adverse to the department.
• The only course of action open to the department is to recognise the claimant 'as a refugee sur place'.
In light of the submissions received from the claimant and his authorised representative in response to the website disclosure notification, the following is a summary of the claims that will be assessed in this ITOA:
• Whether on account of the website disclosure the claimant is at risk of serious or significant harm at the hands of foreign security and intelligence agencies, terrorist organisations and/or criminal syndicates.
• Whether the claimant's ability to find employment on return to Sri Lanka would be affected on account of the website disclosure.
• Whether the claimant will be denied visas to travel out of Sri Lanka and whether this would amount to serious or significant harm.
• Whether the claimant has been denied procedural fairness.
Whether there is a conflict of interest in departmental officers conducting this ITOA assessment
• Whether the claimant would face harm as a failed asylum seeker who would be differentially treated on return to Sri Lanka as a result of the website disclosure.
The assessor correctly identified the relevant law and found that the applicant had been given an opportunity to comment on the country information and possible adverse findings and identified the opportunity for the applicant to provide information.
Consideration of the applicant’s claims
The assessor then set out the findings of fact under heading “10. Findings of Fact (Credibility)”. The assessor referred to the adverse findings of credibility that had earlier been made in relation to the applicant’s earlier claims.
The assessor responded to the submissions in relation to the alleged denial of procedural fairness and found the applicant was fully aware of the details of the website disclosure and found that the applicant had been afforded procedural fairness.
The assessor rejected the assertion of a conflict of interest and found that the applicant had been afforded procedural fairness.
The assessor referred to the applicant’s fear of being targeted and harmed as a consequence of the website disclosure and referred to the submissions that had been put. The assessor noted that it was put to the applicant that there is no country of origin information that supports the claim that the applicant would face harm from foreign security and intelligence agencies, terrorist organisations and/or criminal syndicates in Sri Lanka and that the Department may find that the applicant does not engage Australia’s protection obligations on this basis.
The assessor noted that it was put to the applicant that he did not need any of the UNHCR risk profiles and that there was no other basis to find the applicant would engage Australia’s protection obligations. The assessor identified the response to that opportunity and the assessor found there was no evidence before the Department to indicate that the applicant has ever been of interest to security and intelligence agencies, terrorist organisations and criminal syndicates. It was found there was no evidence before the Department to indicate that the applicant had a profile or that he had ever been involved in activities or undertakings that would bring the applicant to the adverse interest of these organisations and agencies.
In relation to the disclosure on the applicant’s respective employment, the assessor was not satisfied that the applicant with his particular profile would suffer such a fear of discrimination that would amount to serious or significant harm. The assessor found that he was not satisfied that the applicant’s profile would be considered so significant that he would not have the rights to earn a livelihood in Sri Lanka. The assessor found, even accepting that the applicant may be denied visas by foreign governments, that such treatment did not constitute persecution, torture, cruel, inhumane or degrading treatment or punishment to the applicant.
The assessor found that the applicant’s claim that he may face harm from non-state actors as a result of the website disclosure to be highly speculative and unsubstantiated. The assessor dismissed the applicant’s claims regarding harm from non-state actors in their entirety.
The assessor turned to the issue of the applicant’s claimed fear as a failed asylum seeker. The assessor referred to having put to the applicant that with consideration to the country information the Department may find:-
• That as the claimant departed Sri Lanka lawfully via an international airport and using his own passport he would not face charges under the I&E Act.
• That even if he is questioned by the authorities on his return to Sri Lanka that this treatment would not constitute persecution for a Refugees Convention reason, nor would it constitute significant harm.
• That the website disclosure incident has not altered the claimant's profile with the Sri Lankan authorities in any way; and
• That the claimant does not engage Australia's protection obligations on the basis of being a returnee or failed asylum seeker.
The assessor also referred to having other recent country information put to the claimant along with the possible findings that may be drawn. The assessor referred to having put to the claimant that the assessor may find that the website disclosure has not altered his profile with the Sri Lankan authorities in any way and that this would therefore not impact his treatment on return to Sri Lanka. The assessor noted that the applicant failed to respond or at least failed to address this concern in response to the department dated 13 February 2015.
The assessor then made the following findings:-
• That as the claimant departed Sri Lanka lawfully via an international airport and using his own passport he would not face charges under the I&E Act.
• That even if he is questioned by the authorities on his return to Sri Lanka that this treatment would not constitute persecution· for a Refugees Convention reason, nor would it constitute significant harm.
• That the data breach incident has not altered the claimant's profile with the Sri Lankan authorities in any way; and
• That the claimant does not engage Australia's protection obligations on the basis of being a returnee or failed asylum seeker.
The assessor referred to the submission that the applicant should be treated as a refugee sur place and found that the applicant should not be recognised as a refugee sur place. In that regard the assessor was not satisfied the applicant’s profile with the Sri Lankan authorities had been altered or enhanced in any way adverse to him both since his protection visa application was finally determined and as a result of the website data breach.
The assessor then turned to an assessment of the applicant’s UHNCR risk profiles and by reference to those risk profiles from the UNHCR and available country information found that the assessor was not satisfied that there was any credible evidence for finding that the applicant meets any of the profiles outlined, nor that the applicant consequently engages Australia’s protection obligations on account of meeting any of those risk profiles.
Consideration of refugee criterion
It was in those circumstances that the assessor found the applicant was not a person who is a refugee and did not engage Australia’s non-refoulement obligations under the Refugees Convention.
Consideration of complementary protection criterion
The assessor was not satisfied the applicant has any chance of being subject to significant harm should he be returned to Sri Lanka and found that Australia had no non-refoulement obligation under the CAT and the ICCPR.
Consideration of the grounds before this Court
Ground 1
Notwithstanding the low threshold to which I have referred in determining whether there is a prima facie case, ground 1 does not in my opinion, identify any arguable jurisdictional error.
The proposition that the assessor asked himself the wrong question is not reflected or supported by the reasons of the assessor and I reject the submission that the assessor did not take into account the applicant’s personal circumstances in determining the applicant’s profile and the evaluation of whether the applicant was a person in respect of whom Australia had protection obligations. The assessor referred to the applicant’s personal circumstances.
It is apparent from the assessor’s reasons that the applicant was on notice of the use of the UNHCR guidelines and on notice of the concern by the assessor as to whether the applicant had a profile that was in any way affected as a result of the data breach disclosure. Ground 1 fails to identify any arguable jurisdictional error.
Submissions advanced from the bar table
In the submissions advanced on behalf of the applicant, it was also advanced that there had been a failure to assess the risk of serious or significant harm to inadvertent release of information. It is apparent on a fair reading of the assessor’s report, that the assessor focused on both the risk of serious and significant harm as a result of the data breach disclosure and no arguable case is identified in that regard.
It was also submitted that the assessor had failed to adopt an assumption that the applicant’s personal information may have been accessed by the authorities in the country in which the applicant feared persecution and other relevant harm. I reject that submission. A fair reading of the assessor’s reasons reflects an assumption that authorities in the country may have accessed the data breach information
Further consideration
Notwithstanding the reference to what was disclosed as identified in the affidavit of the respondents, there is no basis to find that there was a failure by the assessor to adopt the assumption that the authorities may have accessed the information. No arguable case is identified by that proposition.
The third dot point referred to in paragraph 26 above reflects in substance the issue raised by ground 1 and the assertion that there was a failure to assess and consider the applicant’s real circumstances due to the data breach disclosure. In this regard, attention was drawn to the 503 days of detention by the applicant in a detention facility. There was no separate claim by the applicant to fear harm by reason of his detention. The fact of his detention was apparent in relation to the data breach. I do not regard the detention of the applicant as giving rise to a claim that should have been addressed by the assessor.
On the material before the Court, the assessor addressed the claims advanced on behalf of the applicant and no other claim clearly arose on the material the assessor should have dealt with. No arguable case is identified by reason of reference to the 503 day detention in a detention facility. It is apparent the assessor appreciated that the applicant was in detention and had been since the data breach.
It was also submitted that the guidelines had not contemplated the data breach disclosure. That is in substance an invitation to this Court to engage in an impermissible merits review. It is apparent from the UNHCR document provided to the applicant in his opportunity to comment, what the date of that document was and it was open to the assessor to use that country information in assessing the applicant’s claims. No arguable jurisdictional error is identified by the applicant’s submissions.
Conclusion
In the circumstances of the present case, I am not satisfied that there is any prima facie case to warrant the grant of an interlocutory injunction.
The application in a case for interlocutory injunctive relief is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 26 April 2017
CORRECTIONS
Reasons for Judgment: Page 7, Paragraph 24, delete “assessor made a finding” insert “Department may find”.
Reasons for Judgment: Page 10, Paragraph 37, delete “36” insert “26”.
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