APH15 v Minister for Immigration

[2017] FCCA 547

FEDERAL CIRCUIT COURT OF AUSTRALIA

APH15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 547

Catchwords:
MIGRATION – International Treaties Obligations Assessment – whether the assessor inappropriately focused upon whether there was error in the Department or Tribunal’s decision – whether the assessor had deflected from the proper task in the assessment of the applicant’s claims and fears in respect of the data breach – the assessor properly understood the task required in assessing Australia’s non-refoulement obligations to the applicant arising out of the data breach – the assessor was entitled to take into account evidence and outcome in relation to the applicant’s earlier claims – procedure adopted by the assessor in the present case adequately complied with the requirements of the procedural fairness – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48B, 91R, 195A, 416, 476.

Cases cited:

SZUBX v Minister for Immigration & Anor [2015] FCCA 2822

Applicant: APH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MILAN OZEGOVIC, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: MLG 900 of 2015

Judgment of: Judge Street

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Sydney

Delivered on: 22 March 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the Respondents fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 900 of 2015

APH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MILAN OZEGOVIC, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for declaratory and injunctive relief within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an International Treaties Obligation Assessment (“ITOA”) made on 9 April 2015. This Court has jurisdiction in the present case to review conduct undertaken by the second respondent preparatory to the making of a substantive decision about the exercise of the Minister’s non-compellable powers under ss.48B, 195A and s.417 of the Act and for the purpose of assisting the Minister’s consideration of the exercise of such a power.

2. The applicant is a citizen of China. The applicant first arrived in Australia on 24 October 2007 on a Sponsored Visitor visa. After, the expiry of that visitor visa, the applicant remained unlawfully in Australia from January 2008 until she was detained on 4 December 2012. The applicant made an initial application for protection on 4 March 2013 which was refused by the delegate on 15 July 2013. The Refugee Review Tribunal (“the Tribunal”) affirmed the decision not to grant the applicant a protection visa on 9 September 2013. The applicant unsuccessfully sought Ministerial Intervention and unsuccessfully sought an extension of time to challenge the decision of the Tribunal. 

Unauthorised access to the applicant’s personal information

1. In February 2014, the personal information relating to the applicant was inadvertently and briefly made available on the internet by the Department. The data breach was the subject of a letter sent to the applicant on 12 March 2014. That letter foreshadowed that the Department will assess any implications for the applicant personally as part of its normal processes and that the applicant may also raise any concerns the applicant has during those processes.

Invitation for the applicant to provide information as to the impact of the data breach

1. On 25 June 2014, the Department wrote to the applicant inviting her to provide the Department with information in writing about any concerns she held as to the impact of the data breach on her ability to return to her home country or country of usual residence. The applicant and a migration agent, being a legal practitioner, made submissions in response to that request in June 2014. 

Notification of the commence of an ITOA

1. On 14 January 2015, the applicant was informed that the Department had commenced an ITOA process in order to assess whether the circumstances of the case engaged Australia’s non-refoulement obligations as a result of the data breach.

2. The letter dated 25 June 2014 noted that the implications arising from the unintentional data breach would be assessed on the basis of the claims the applicant had made in the application for judicial review. The applicant was informed by the letter that the applicant would be advised of the outcome of the assessment of the claims relating to the unintentional data breach in due course. The applicant was informed that if the assessment was adverse and there are no ongoing matters before the Court, then the applicant may be expected to depart Australia. 

3. The letter dated 14 January 2015 explained to the applicant that the commencement of the ITOA was to assess whether the circumstances of the applicant’s case engaged Australia’s non-refoulement obligations. The letter explained the reason the Department commenced the ITOA was due to some of the applicant’s personal information included in a routine report having been released on the Department’s website. This unintentionally enabled access to personal information about people who were in immigration detention at the relevant time. 

4. The letter noted that any protection claims that the applicant may have in relation to the breach of personal data would now be assessed through the ITOA. The letter referred to the communication sent to the applicant on 25 June 2014 requesting the applicant to identify concerns the applicant may have in relation to the breach of the applicant’s personal data and referred to the response that had been provided. The letter indicated that that response would be considered through the ITOA process.

5. The letter identified that the ITOA would consider Australia’s non-refoulement obligations and that the process would consider new information, changes in the applicant’s circumstances or the applicant’s country of nationality or former habitual residence since the previous protection claims were assessed. 

6. The letter foreshadowed the applicant would receive procedural fairness during the ITOA process and explained that this meant the Department officer who assesses the applicant’s claims for protection will ask the applicant to comment on any adverse information which is credible, relevant and significant to the decision.  The letter indicated that the applicant would also be given a reasonable opportunity to respond to that information before the ITOA is finalised. The letter referred to the 14 days the applicant had to provide further information which the applicant would like to have taken into consideration in relation to the ITOA. 

Applicant’s response providing further information for the ITOA

1. By email dated 19 January 2014, the applicant’s migration agent who is a legal practitioner, responded to the letter and attached a report from the privacy commission into the data breach. The letter referred to the obligation of ensuring procedural fairness was more than just putting adverse material for comment and asserted that what was required was that all relevant information be provided before preparation of a reply. It was contended that the applicant could not effectively prepare her claim with respect to the data breach and that she is a refugee sur place without having access to that information. 

2. It was submitted that if that information was not provided, the applicant should be treated as a refugee sur place. The letter submitted that there a breach of s.336E of the Act by the disclosure. It was asserted that the ITOA was one in respect of which the assessor was in a position of conflict and a request was made for the interview recording.

Opportunity for the applicant to comment on possible adverse information

1. On 16 February 2015, the applicant’s migration agent was sent a letter informing the applicant that the assessor was currently considering information relevant to the assessment and invited the applicant to comment on possible adverse information. 

2. The covering letter explained in the opening paragraph the commencement of the ITOA and in the second paragraph, relevantly noted that as previously advised, the ITOA will assess whether there are any non-refoulement obligations which would prevent the Department from progressing removal arrangements in the applicant’s case. The letter noted that the ITOA assessment will only address claims and country information which have not previously been addressed in any prior protection obligation assessment which the Department has undertaken. The letter observed that as part of the ITOA, the Department is currently considering country information relevant to the applicant’s case. A copy of the relevant country information was attached to the letter. 

Attachment outlining the ITOA’s concerns

1. The letter also provided an attachment which outlined concerns regarding the applicant’s case. The letter provided a 14 day period for the applicant to comment and foreshadowed the consequences of the applicant not responding. The attachment comprised almost five pages and was titled “ATTACHMENT - Adverse information that will be given consideration in this assessment.”

2. The attachment identified the procedural background giving rise to the current application, the applicant’s request to be recognised as a refugee sur place and noted that the applicant’s comments would be given consideration in the assessment. The attachment referred to procedural fairness and the observation that the KPMG review found that there were relatively few internet users who accessed the information but that it is not possible to discount the possibility that authorities in another country may have accessed the document. The attachment noted that releasing the unabridged report was not required for a claimant to participate in the assessment process.  

3. The attachment referred to a heading, “Conflict of Interest” and identified that the assessor had been instructed to make an assessment as to whether Australia’s non-refoulement obligations are engaged as a result of the disclosure of their personal information and that this reflected the standard ITOA process and does not require an assessment of whether the Department has erred in disclosing the information. The attachment noted that whether or not the applicant engages Australia’s protection obligations is not dependent on a finding as to whether the Department made an error in disclosing the information.

4. The attachment referred to the disclosure being unauthorised, the applicant’s protection claims and the outcome of those claims before the Tribunal. The summary in the attachment referred to the primary decision-maker in the Tribunal finding that the applicant did not face a real chance of being subjected to serious harm for a Convention reason in China and that the primary decision-maker of the Tribunal were also not satisfied that there was substantial grounds of believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there was a real risk the applicant would suffer significant harm. 

5. The letter made the observation that the original protection claims had been assessed and the attachment observed that there was no indication that there is any legal error in the Department’s and Tribunal’s decision. The attachment referred to the request for a copy of the protection interview and the procedure by which that could be obtained was identified. Reference was then made to the privacy breach incident and the applicant’s personal information released on the Department’s website that the applicant contended could cause harm by the Chinese authorities on return to China. 

6. The attachment noted that whilst personal details including the applicant’s name, date of birth, nationality, gender and some details of the applicant’s detention were published as a result of the unintentional privacy data breach incident, there was no information published in relation to the applicant’s protection claims. The attachment noted that the Department was unable to find any country information that indicated there is a real risk the Chinese authorities would subject a person in the applicant’s particular situation to serious harm or significant harm due to overstaying their visa in Australia. 

7. The attachment noted that the applicant did not appear to have an adverse profile with the Chinese authorities at the time of the applicant’s departure and that it appeared the applicant would not be of adverse interest to the authorities on return to China. The attachment noted that there was no indication that the applicant’s personal information published online would be valuable or usable to terrorist organisations, criminal syndicates and/or foreign security and intelligence agencies. The attachment noted there was no information to indicate that the information publicly disclosed will limit the applicant’s ability to source and secure employment to the level that it would amount to serious or significant harm. 

8. The attachment then referred to country information following which there was a heading in relation to adverse inferences which may be drawn. Under that heading, there is reference to the possibility that the evidence before the Department appeared to indicate that the applicant was not of adverse interest to the Chinese authorities prior to the applicant’s departure from China and that the applicant did not have an adverse profile with Chinese authorities which could potentially expose the applicant to a real chance of serious harm or real risk of significant harm on return to China. 

9. Reference was made to the applicant departing China lawfully. The proposition was advanced that the applicant appeared to be a person who would not be subjected to punishment in relation to the applicant’s departure from China and that it may appear that the applicant could be briefly detained and questioned at the border on return to China. The observation was made that the brief questioning would be under circumstances that would be in line with China’s laws of general application concerning exit and entry procedures at the border. The attachment suggested it would not appear that the applicant would be subject to serious harm or significant harm which is systematic and discriminatory. 

10. The attachment observed that in the particular case, given that the applicant does not appear to have an adverse profile with the Chinese authorities, even if the Chinese authorities were to suspect that the applicant remained in Australia for economic reasons and that the applicant applied for protection in order to remain in Australia, it would seem that other than being briefly detained for questioning regarding their absence from China and remaining in Australia, there is no real chance that the applicant would be subjected to serious harm amounting to persecution or a real risk of significant harm. 

Applicant’s response to the adverse information

1. By letter dated 17 February 2015, the applicant’s migration agent responded to the Department’s letter dated 16 February 2015. Relevantly, the applicant sought to maintain the reliance upon all previously made statements, submissions, statutory declarations given during the refugee determination and the ITOA processes and then advanced the submission that the applicant was now married to a Sri Lankan national who has an adverse ASIO finding. Reference was also made to the applicant being pregnant with her first child and the fact that the applicant’s child may not be able to claim Chinese nationality was an issue that was flagged.

2. The applicant’s migration agent referred to the data breach claim and complaint made about the lack of access to the information. The submission was maintained that the applicant should be treated as a refugee sur place. Submissions were put as to the disclosure amounting to an alleged crime and the steps taken by the Office of Australian Information Commission. In substance, the submission was put that by reason of the data breach, the applicant was the subject of a non-refoulement obligation. 

ITOA

1. The assessment dated 9 April 2015, identified the nature of the assessment being undertaken in relation to the applicant’s details and the applicant’s migration history. The assessor found that Australia does not have a non-refoulement obligation to the applicant. The assessor identified the procedural steps that had been taken in relation to the assessment and identified the relevant law to be applied. 

Consideration of procedural fairness and the adverse information put to the applicant

1. Materially, in relation to the process, the assessor identified that the applicant was advised, that when assessing protection claims in relation to the website disclosure relevantly:-

   ·   Departmental case officers are instructed to assume that the authorities in the claimant’s receiving country may have accessed personal information released on the department’s website and that case officers will refer to the claimant’s personal and country information to determine whether the website disclosure will affect the claimant if he/she is returned to his/her country of origin.

   ·   Departmental case officers are instructed to make an assessment as to whether Australia’s non-refoulement obligations are engaged as a result of the disclosure of the claimant’s personal information. Whether or not the claimant engages Australia’s protection obligations is not dependent on a finding as to whether the department made an error in disclosing the information.

2. The assessor observed that in addition to the above, the applicant was advised that the ITOA would only address claims and country information which had not been addressed in the prior protection obligations assessment. The applicant was invited to comment on specified information.

3. The assessor set out the substance of the attachment in relation to the applicant not being a person of adverse interest to the Chinese authorities and not being a person who would face real risk of serious harm or real risk of significant harm on return to China. 

4. The observation was made by the assessor that the applicant’s protection claims were given consideration through a relevant protection status determination process and that there was no indication that there was any legal error in the Department’s and the Tribunal’s decision. That is a reference to the same proposition of inference that was referred to in the attachment. 

5. The assessor referred to the applicant’s lawful departure from China being raised with her and the limited process of questioning to which the applicant would be exposed. In relation to the website disclosure, the assessor referred to the fact that the applicant had been advised the information published online did not include her protection claims and that there is no indication such information would be valuable or usable to terrorist organisations, criminal syndicates and/or foreign security and intelligence agencies. The assessor referred to the fact that while the information published online stated that the applicant was an overstayer, there was no country information to indicate that the Chinese authorities would subject a person in the applicant’s particular situation to serious harm or significant harm due to overstaying their visa in Australia.  Reference was made to the fact that there was no information to indicate that the information publicly disclosed would limit the applicant’s ability to source and secure employment to the level that it would amount to serious or significant harm.

Consideration of procedural fairness and the adverse information put to the applicant

1. The assessor then set out the applicant’s migration agent’s response and the substance of the submissions advanced on behalf of the applicant.

Consideration of the disclosure of information relating to the website disclosure

1. The assessor dealt with the submission in relation to the assertion that there should be full disclosure. 

2. The assessor found that the applicant was aware of the details inadvertently published by the Department on the World Wide Web in the website disclosure incident and it found that the applicant had been afforded procedural fairness. 

Consideration of the conflict of interest 

1. The assessor considered the submission of a conflict in interest and found that the applicant had been afforded procedural fairness and that there was no conflict of interest in the Department officer conducting the ITOA assessment. 

Consideration of the applicant’s claims for protection

1. The assessor referred to the applicant’s claims for protection and in referring to the findings of the Tribunal, noted there is no indication that there was any legal error in the Department’s and the Tribunal’s decisions. 

2. This was a reference back to the same proposition referred to in the attachment letter sent to the applicant. The assessor referred to there being no evidence before the Department to indicate that there has been any change in the applicant’s circumstances since her protection claims were assessed. An observation was made that in light of the evidence before the assessor, the assessor considered the findings of the Tribunal in relation to the applicant’s protection claims to continue to be valid and effective.

3. The assessor referred to the applicant’s submissions in respect of her profile and made particular findings in that regard. The assessor was satisfied that, other than being briefly detained for questioning regarding her absence from China and her reasons for remaining in Australia, the applicant did not have an adverse profile with the Chinese authorities that could cause her to be subjected to a real chance of serious harm amounting to persecution nor a real risk of significant harm. 

Consideration of the applicant’s fear of being targeted due to the data breach

1. The assessor turned to the applicant’s fears a result of the data breach disclosure. The assessor observed that the assessor had been unable to find any country information to indicate that a person in the applicant’s particular circumstances would have a profile that could potentially cause her to be subjected to a real chance of serious harm or a real risk of significant harm by the Chinese authorities due to the website disclosure incident on the Department’s website in February 2014. 

2. The assessor did not accept that the applicant had an adverse profile with the Chinese authorities at the time of departure from China and did not accept that the applicant now has a profile which could be of adverse interest to the authorities on return to China. The assessor considered that the applicant’s claim that agencies or organisations or syndicates could use the information to target and harm the applicant to be unsubstantiated and speculative.

Consideration of the applicant’s fear of being denied employment due to the data breach

1. The assessor found the proposition that the applicant would be denied employment in China as a consequence of the website disclosure incident to be speculative and implausible. 

Consideration of the applicant’s fear of being denied visas due to the data breach

1. The assessor considered the restriction on the applicant’s potential travel overseas and found that the applicant being denied a visa for travel overseas is not of itself a denial of a human right and does not amount to persecution, torture, cruel, inhumane or degrading treatment or punishment to the claimant.

Consideration of the applicant’s fear of being returned to China without family

1. The assessor referred to the applicant being returned to China without her family and found that the applicant being removed from Australia to China and separated from her husband and her still unborn child would not be a breach of Australia’s non-refoulement obligations. 

Consideration of the applicant being a refugee sur place

1. The assessor found the applicant’s submission to be recognised as a refugee sur place was unpersuasive and unconvincing. 

Assessment of non-refoulement obligations under the Refugees Convention

1. The assessor found there is no Refugees Convention ground that can be found to be the essential and significant reason for the harm feared pursuant to s.91R(1)(a) of the Act. The assessor found that the harm feared by the applicant is not serious harm and systematic and discriminatory conduct as required by s.91R(1)(b) and (c) of the Act. The assessor found that the harm feared does not amount to persecution. The assessor found that the applicant does not have a real chance of being persecuted for a Refugees Convention reason.

2. The assessor found the applicant’s claimed fear of persecution as defined under the Convention was not well-founded. The assessor found that the applicant was not a refugee and that Australia does not have a non-refoulement obligation to the applicant under the Refugees Convention. 

Assessment of non-refoulement obligations under the ICCPR and CAT

1. The assessor found that the harm claimed by the applicant is not significant harm pursuant to s.36(2A) of the Act and was not satisfied the applicant has a real chance of being subject to significant harm should she return to China and accordingly concluded that the applicant was not a person in respect of whom Australia had non-refoulement obligations consistent with the test under s.36(2)(aa) and s.36(2A) of the Act.

Before this Court

1. The grounds in the amended application are as follows:-

   1. The Reviewer misdirected himself and/ or asked himself the wrong question.

   Particulars

   a. The Notification of commencement of an International Treaties Obligations Assessment Treaty (ITOA) dated 14 January 2015 from the Second Respondent it stated as follows [CB152-3]:

   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. The Reviewer found as follows:

   i. Her protection claims were given consideration through a relevant protection status determination process and there is no indication that there was any legal error in the department's and RRT's decisions [CB204];

   ii. In the findings of fact (credibility) section the Reviewer found that:

   There is no indication that there was any legal error in the department’s and the RRT’s decision [CB208]; and

   iii. The Reviewer found under the findings on Is the fear well-founded? As follows:

   ... the claimant has not provided any new information to contradict the RRT's findings [CB213].

   c. What the reviewer in fact did was to see his job was to respond to previous decisions to engage in a review of those decisions.

   d. The task as understood by the reviewer as the task communicated to the applicant in the notification letter dated 14 January 2016 were clearly in conflict:

   i. No explanation was provided why the representations in the notification letter were not proceeded with by the reviewer; and

   ii. The reviewer clearly directed herself that the process was an opportunity to respond to previous findings as opposed to make a fresh review of the claims.

   2. The reviewer denied the applicant procedural fairness by failing to warn him that it would not apply the assumption that all of the appellant's personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm as held by the High court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [91].

   Particulars

   a. Departmental case officers are instructed to assume that the authorities in the claimant's receiving country may have accessed personal information released on the department's website;

   b. The Reviewer only considered country information in relation to the applicant in the class of persons described as 'over-stayers' returning to China and failed to consider the integer of the breach of confidentiality and the Chinese authorities accessing her personal information and any implications for the applicant personally.

   3. The reviewer denied the applicant procedural fairness.

   Particulars

   a. At [CB205], [CB207] and [CB212]the reviewer personally accessed the applicant’s personal disclosed information without disclosing the information to the applicant for verification and comment:

   i. While the information published online stated that she was an 'over-stayer' CB205];

   ii. The reviewer denied the applicant an opportunity to comment and to make submissions on the disclosed information.

2. Mr Bodisco of counsel abandoned Ground 2. 

Consideration

1. In relation to Ground 1, Mr Bodisco of counsel took the Court to the findings of the assessor and in particular, the observations made by the assessor referable to there being no error in the Department’s and the Tribunal’s decision. 

2. Mr Bodisco submitted that the assessor had been deflected from the proper assessment task in respect of the consideration of Australia’s non-refoulement obligations as a result of the data breach. Mr Bodisco submitted that the assessor inappropriately focused upon whether there was error in the Department’s or Tribunal’s decision. Mr Bodisco drew attention to the use of the similar expression of there being no indication that there is any legal error in the Department’s and Tribunal’s decision and that the assessor considered the findings of the Tribunal in relation to the applicant’s claims to continue to be valid and effective. 

3. Mr Bodisco submitted that in substance, the task that had been foreshadowed in the original letter relating to the data breach and in relation to the letter identifying the commencement of the ITOA process had been the subject of a moving of goals whereby the assessor had focussed inappropriately upon the findings or error made by the Department or Tribunal in its earlier decision. In this regard, Mr Bodisco also sought to rely upon by analogy, the decision of this Court in SZUBX v Minister for Immigration & Anor [2015] FCCA 2822. Mr Bodisco submitted that the assessor had misdirected himself by focusing upon the earlier protection claims made by the claimant rather than focusing upon the assessment or the applicant’s claims and fears in respect of the data breach.

4. I accept the first respondent’s submissions that there are a number of distinguishing features in relation to this case that make the decision in SZUBX v Minister for Immigration & Anor [2015] FCCA 2822 clearly distinguishable. That was a case in which there had been an interview and the evidence before the Court in the course of that interview supported the finding that the interview had been conducted in a materially deflected way.

5. In the present case, there was no interview. Mr Bodisco skilfully endeavoured to advance that the absence of the interview made the error in the present case more obvious. I reject that submission. This case is clearly distinguishable from the adverse findings that were made in relation to the conduct of the assessment in SZUBX v Minister for Immigration & Anor [2015] FCCA 2822.

6. A fair reading of the assessor’s assessment in the present case indicates that the assessor properly understood the task required in relation to assessment of Australia’s non-refoulement obligations to the applicant arising out of the data breach and addressed that issue. The assessor was entitled to take into account the evidence and outcome in relation to the applicant’s earlier claims in the assessment. Moreover, in the present case, it is apparent that the applicant was on notice because of the attachment in the letter sent to the applicant that the assessor was considering taking into account the proposition that there was no indication that there is any legal error in the Department’s and the Tribunal’s decision. 

7. I do not regard the assessor’s reference to that background as giving rise to the assessor being deflected from the proper task in the assessment in the present case.  I reject the submission that the assessor asked the wrong question in carrying out the assessment. The applicant was clearly given a proper opportunity and had a meaningful opportunity to respond to the attachment in respect of the potential approach by the assessor in the assessment.  The applicant responded to that opportunity. I reject the submission that the applicant was not given a meaningful opportunity to respond.  I reject the submission that the applicant was denied procedural fairness in the conduct of the assessment. 

8. I accept the first respondent’s submission that the procedure adopted by the assessor in the present case adequately complied with the requirements of procedural fairness for the conduct of the assessment.  No jurisdictional error as alleged in Ground 1 is made out. 

9. In relation to Ground 3, it is apparent in the present case that the applicant’s continued unlawful presence in Australia after expiry of her visa was in the attachment and identified as a matter of consideration in the attachment to which the applicant was given the opportunity to respond. No jurisdictional error is made out by Ground 3 of the amended application. 

Conclusion

1. The amended application is dismissed. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 April 2017