AUJ15 v Minister for Immigration
[2016] FCCA 1700
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUJ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1700 |
| Catchwords: MIGRATION – Judicial review – protection visa – data breach – applicant father of a 14 year old girl who has now filed a separate claim for jurisdictional review in proceedings DNG76/2015 – father has pro bono assistance who prepared the application but did not make submissions – applicant relying on outcome of his daughter’s claim. |
| Legislation: Migration Act 1958 (Cth), ss.30, 31, 36(1), 36(2), 42(1), 414 |
| Cases cited: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 SZWAJ and Minister of Migration Immigration and Border Protection [2015] FCA 26 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 WZAWA v Minister for Immigration & Anor [2015] FCCA 3075 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 AUI15 v Minister for Immigration & Anor [2016] FCCA 1701. |
| Applicant: | AUJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 30 of 2015 |
| Judgment of: | Judge Harland |
Hearing date: | 4 & 17 December 2015, 2 March 2016, 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application for judicial review filed 19 May 2015 be dismissed.
That the Applicant pay the First Respondent’s costs in the sum of $8,250.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 30 of 2015
| AUJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons need to be read with the reasons in AUI15 v Minister for Immigration & Anor [2016] FCCA 1701. The two cases were heard together. AUI15 is the daughter of AUJ15. To avoid confusion they will be referred to as the daughter and the father in both sets of these reasons.
Procedural background
This matter was listed for hearing on 4 December 2015. On that occasion the applicant, who needed the assistance of an interpreter asked the Court to ring Mr Thomas, a barrister based in Darwin. The proceedings were initiated in Darwin when the applicants lived there. They later moved. No request had been made for the barrister to appear electronically. The barrister had prepared the application for judicial review. The Court acceded to his request. The barrister, Mr Thomas, indicated that he thought the applicant was represented by Legal Aid in Victoria. The applicant has recently found out that Legal Aid was not assisting him. Mr Thomas indicated that in those circumstances he would continue to assist the applicant father and asked for an adjournment.
Mr Thomas told the Court that there was a separate application by the applicant’s daughter. He indicated that that has been filed. There was some confusion about this as there was no such application on the Court file. The Minister’s legal representatives also had not been served with it. The Court made a notation that Mr Thomas would email the documentation he was referring to. As he was appearing by telephone from Darwin it was not possible for him to hand up the documents he was referring to.
The Court granted the adjournment on the basis that the matter would be listed for hearing in a few weeks time as the application had been listed for hearing for some months. The Court adjourned the hearing to 18 December 2015 at 2.15pm and made a timetable for filing of submissions.
At the request of Chambers, after receiving no email from Mr Thomas the Darwin registry emailed the documents it had. Of note is a handwritten note saying received 19 May 2015 being an application on behalf of the daughter. It is noted there that the application was not accepted for filing as the applicant was 14 years old and would need a litigation guardian.
Mr Thomas did not comply with the direction to file and serve written submission setting out the application’s contentions of fact and law by 4.30pm on 11 December 2015.
Instead he filed an application for judicial review by the daughter. That is discussed further in AUI15 v Minister for Immigration & Anor [2016] FCCA 1701. together with an affidavit by himself seeing leave for that application to be joined with these proceedings and for the daughter being granted leave to proceed out of time as he thought lawyers in Melbourne were going to follow this up. He also filed an affidavit by a proposed litigation guardian for her.
The solicitor for the minister consented to the applicant’s request for an adjournment so that the two matters could be heard together
The matter was next listed for hearing on 2 March 2016. The matter had to be adjourned again in most unsatisfactory circumstances. At the commencement of the hearing Mr Thomas told the Court he was acting for both applicants. He only filed submissions on behalf of daughter. He said that father’s claim is predicated on the result of his daughter’s claim.
When the Court asked if that meant the father was not pressing his claims. The following exchange took place:
HER HONOUR: All right. Well, we will deal with the earlier matter first and then the second matter. All right. So, Mr Thomas, what’s your client’s position with respect to his application for judicial review?
MR THOMAS: His application; it’s predicated, in essence, upon what occurs in respect of his daughter, in my submission.
HER HONOUR: So you’re saying he’s not pressing ‑ ‑ ‑
MR THOMAS: No, no.
HER HONOUR: ‑ ‑ ‑ his own claims any further.
MR THOMAS: I mean, I have strict duties to examine the question as to whether or not there’s merit in the submissions that are put to this court.
HER HONOUR: Yes.
MR THOMAS: I’ve examined it in detail and that’s the view that I’ve come to you – or the opinion, I should say, that I’ve come to.
HER HONOUR: And he understands that.
MR THOMAS: Well, I might say there is a language barrier and I might say this also given there’s a distance barrier as well ‑ ‑ ‑
HER HONOUR: Yes.
MR THOMAS: ‑ ‑ ‑ and I’m certainly not satisfied at this point to this court that he does and, in fact, as a matter of fairness to him, I think that he ought to know that.
HER HONOUR: Well, isn’t that something you should have dealt with ‑ ‑ ‑
MR THOMAS: Well ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ much before today?
MR THOMAS: Your Honour ‑ ‑ ‑
HER HONOUR: I mean, it concerns me that you’ve filed submissions in one matter and not the other. You’re saying you represent both ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: ‑ ‑ ‑ but it seems like you’re really taking the position that it’s the daughter is the one that has got ‑ ‑ ‑
MR THOMAS: I have to look at merit.
HER HONOUR: ‑ ‑ ‑ legs and not – but you still have a duty to take instructions from a client.
MR THOMAS: Indeed, I do. But, I repeat, given the exigency of where I am and he is and the language barrier, it is difficult. Now ‑ ‑ ‑
HER HONOUR: But that applies to both parties. I’m just concerned that he may really not be being represented in this matter when he thinks that he is.
MR THOMAS: Well, he certainly is, in terms of the position that I’ve adopted in respect of his daughter.
HER HONOUR: Well, no – but the very point is that you filed a separate claim for his daughter ‑ ‑ ‑
MR THOMAS: Indeed. Indeed.
HER HONOUR: ‑ ‑ ‑ so it really worries me about whether or not he understands that your position is that his case is basically not worth arguing.
MR THOMAS: Indeed. Yes.
HER HONOUR: Because I think it raises real issues in terms of fairness to him and the sort of – and I suspect some conduct issues, because I don’t think it’s enough to say, “Well, I don’t think his case has got any merit, so I’m not going to put any arguments,” ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: ‑ ‑ ‑ because that would have to be on instructions.
MR THOMAS: Indeed. But at the same time I have, as I’ve said, strict duties to the court in terms of – under the Migration Act as to putting submissions which have merit. Now ‑ ‑ ‑
HER HONOUR: Sure, but, you know, he thinks you’re representing him.
MR THOMAS: Indeed. I understand what your Honour is saying. Your Honour, there is one way perhaps to deal with this and that is for the matter to stand down whilst I endeavour to speak with him in relation to it.
HER HONOUR: All right. Well, you’re going to have to sort that out ‑ ‑ ‑
MR THOMAS: Indeed.
HER HONOUR: ‑ ‑ ‑ and it should have been sorted out before now, because – I mean, this matter has been on for months.
MR THOMAS: Yes.
HER HONOUR: And it really concerns me that this isn’t something that you’ve turned your mind to because ‑ ‑ ‑
MR THOMAS: Well ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ it seems pretty obvious to me that there’s also an issue of getting instructions from a client and he may ..... say, “Well, I’m not going to instruct you any more.” It’s not purely based on the legislation, but if you’re going to act for a client you have to actually take instructions from them ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: ‑ ‑ ‑ and they have to be aware that ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: Because it’s a very different position for him to turn up with no lawyer than it is to turn up with a lawyer. And, certainly, on the last occasion he thought that you were representing him.
MR THOMAS: Indeed.
HER HONOUR: So I’m really concerned about that and I’m really concerned that it hasn’t been clearly addressed with him earlier.
MR THOMAS: Well, your Honour, as I say, there is a way to deal with that which is, as I’ve said ‑ ‑ ‑
HER HONOUR: Well, depends on whether you can get over the language barrier that you’ve just raised.
MR THOMAS: Indeed.
HER HONOUR: Right. Well, I will stand it down.
HER HONOUR: Yes.
MR THOMAS: Your Honour, firstly, thank you to the court for that indulgence. Your Honour, I’ve spoken to the father and, regrettably, I am not satisfied that – for a number of reasons – as to whether he, amongst other things, truly comprehends the position from this point. Now, the fault is entirely mine. I accept that. I would like it obviously to be otherwise with regard to the father, but that’s the position as I see it as far as he’s concerned. I think he ought ideally to get separate legal advice. Now, I appreciate the consequences obviously of that. I’m very aware of that, especially given that the matter is for hearing today. I repeat, the fault is entirely mine.
HER HONOUR: How are you going to arrange ‑ ‑ ‑
MR THOMAS: Well, your Honour, I might say, I’ve been endeavouring for months to secure legal representation, not merely for the father, but also for his daughter, without success. Hence my appearance here today. I repeat, it is my fault. I don’t duck it or seek to obviate it or do something at all. I regret it. I wish it were otherwise, but that’s as I see it.
It then turned out that Mr Thomas had not communicated this to the father. Mr Thomas referred to the language barriers and the distance. I acknowledge that Mr Thomas acts on a pro bono basis but this does not lessen his duty to the Court. All lawyers who appear before a Court and who give advice on Court matters to assist the Court in the administration of justice. However, Lawyers who do pro bono work are to be commended as they often do a considerable amount of work for no payment using their time when they could be doing paid work. If a lawyer decides to act on a pro bono basis particularly in an ongoing matter such as this, rather than appearing as a duty lawyer, they must take the same care as they would in any other case.
As will be apparent from this exchange it was necessary to adjourn both matters again. It was not possible to arrange an interpreter at short notice so the matter could not be adjourned to the following day.
It would not have been fair to the father to proceed with his daughter’s application as the matters interrelated and he would not have been able to follow the proceeding without an interpreter.
The matter next came before me on 26 April 2016 for hearing of both matters.
It is necessary to set out the following exchange between the Court and Mr Thomas:
MR THOMAS: Yes, Your Honour. Thomas, counsel, I appear for both parties. That is, DG76 of 2015. I think appears under the pseudonym of AUI15.
HER HONOUR: You are back appearing both whereas last time it was adjourned because you were only going to appear for one.
MR THOMAS: And what has occurred is in the interim is that I have had the father’s position assessed independently by other counsel, who has reached a certain view in relation to the matter.
HER HONOUR: You haven’t filed any submissions on behalf of the father.
MR THOMAS: No. But the position remains as it was with regard to him.
HER HONOUR: Are you acting for him or not?
MR THOMAS: I act for him only in the sense of – in a general sense but I adhere to the position which I have stated previously.
HER HONOUR: Mr Thomas, the whole reason this matter was adjourned on the last occasion was because you explicitly were saying that you hadn’t – you weren’t representing a case for him because you thought he had no merit.
MR THOMAS: Indeed.
HER HONOUR: In which case, it had to be adjourned to get him an interpreter so that he could represent himself. So which is it?
MR THOMAS: It was adjourned for the purposes, as I understood it, of having his case independently assessed by other counsel.
HER HONOUR: No. No. It was not. That was not any suggestion at all. It would have proceeded the next day if it had been able to get an interpreter, but could not.
…
MR THOMAS: And that ‑ ‑ ‑
HER HONOUR: Now, you have signed his application.
MR THOMAS: Yes.
HER HONOUR: So at the time you must have thought there was merit in that case. The only reason why this case was adjourned until today ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: ‑ ‑ ‑ was because it was clear from what you said you were not going to represent the father because you were not making any arguments on his behalf. The matter had to be stood down. You tried to explain that to him. There was no interpreter because the court doesn’t book interpreters when parties are represented ‑ ‑ ‑
MR THOMAS: Yes.
HER HONOUR: ‑ ‑ ‑ to explain the position.
MR THOMAS: Yes.
HER HONOUR: Because it would have been unfair to proceed for him ‑ ‑ ‑
MR THOMAS: Indeed.
HER HONOUR: ‑ ‑ ‑ having a barrister who he thinks is acting for him but who proposes to make no argument on his behalf.
MR THOMAS: Yes. Indeed.
HER HONOUR: So if that’s the case, then in fact he has to represent himself.
MR THOMAS: Your Honour, that’s where the difficulty lies. I do not see the fact that I have come to the considered view that he has no merit in the position – in his position in terms of an argument, and that has been independently assessed by other counsel and in fact, had previously been assessed by other counsel in relation to the matter, so in other words, on three occasions that has occurred I do not see, with respect, that that means that I cannot at least stand here and represent him, subject of course to that, and the reason why is this, it is because if his daughter’s claim is successful, then he, as the only relative of that child in Australia, then has potentially a right to remain in the country by virtue of that connection, that blood connection.
HER HONOUR: Does he understand that you are not making submissions on his behalf?
MR THOMAS: That is the next step. What – the interpreter has only just recently arrived. I ‑ ‑ ‑
HER HONOUR: This was adjourned on the last occasion to sort this issue out, Mr Thomas.
MR THOMAS: Your Honour, I am ‑ ‑ ‑
HER HONOUR: You have had weeks to sort this out.
MR THOMAS: I am very aware of that. However, what would be proposed simply now, your Honour, is for the matter to stand so that the interpreter can speak – I can speak through the interpreter to the father.
HER HONOUR: Why haven’t you done that before? That’s why it was adjourned.
MR THOMAS: Your Honour, I am in – the difficulty is in that I am 3000 kilometres away and I ‑ ‑ ‑
…
MR THOMAS: I’m not disputing that. I understood that – and proceeded on the assumption that I was here at 1.40 pm for the purposes of meeting the interpreter and ideally, the daughter and her father, and I think it could be fairly anticipated that in the period of time available then, that is 35 minutes, that the proceedings and the result of the decision of the independent counsel could be appropriately explained to the father.
HER HONOUR: So in other words though, he has had no notice before today that he would need to make his own arguments. Is that what you are telling me?
MR THOMAS: He – yes. But his position is such that I have no doubt of what the consequences of my advising him of what has occurred with the independent counsel reviewing this matter that he would not be doing so.
HER HONOUR: Is he aware ‑ ‑ ‑
MR THOMAS: I have ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ that you are not speaking – making any argument in his behalf in his own case today, yes or no?
MR THOMAS: I repeat he is not currently aware of that.
HER HONOUR: That is what this was adjourned for.
MR THOMAS: Your Honour ‑ ‑ ‑
HER HONOUR: It’s not acceptable to not have dealt with that after this matter was adjourned on the last occasion.
My impression is that Mr Thomas was trying to assist both applicants when they could not find local assistance. The father indicated with the assistance of the interpreter that he understood that Mr Thomas was only representing his daughter. In those circumstances the hearing of both cases proceeded in fairness to the father, given he was unrepresented I heard arguments in his daughter’s case first.
Background facts
The applicant father is a Vietnamese citizen. He left Vietnam with his daughter and travelled to Indonesia before travelling to Australia by boat. His wife and two sons remain in Vietnam.
The applicant is one of the many people affected by the accidental publishing of unauthorised personal information on the Immigration Department’s website. The letter from Department dated 12 March 2014 informing the applicant of this data breach.[1] The information published on the website includes his name, date of birth, nationality, gender and details of his detention (including when he was detained, reason and where) as well as family members in detention. His addresses (current and former), phone number and other contact details were not included. Details of his protection claims were not included.
[1] Court Book (“CB”) 93.
The Department wrote to the father on 20 August 2014 inviting the applicant to respond to issues arising out of his protection visa interview.[2] The issues included concerns that he was not a real risk in Vietnam because of his religion, his claim that he did not know that the boat he was on was travelling to Australia despite paying $4,000. He has returned to Vietnam twice since arriving in Australia.
[2] CB 94 to 97.
The applicant’s migration agent replied to that letter on 15 September 2014. The letter is fairly brief.[3]
[3] CB 98 to 99.
The applicant’s migration agent provided a much more detailed letter with respect to the data breach. In that letter dated 24 September 2014,[4] she says that the breach has increased the risk of the applicant coming to harm if he is returned to Vietnam because his profile will have increased. She raised a new sur place claim arising out of the breach.
[4] CB 104 to 107.
It is apparent from the Court Book (“CB”) that the applicant travelled to the UK in 2006 illegally and was imprisoned there for drug offences. After serving his sentence he was deported. He used two aliases he failed to disclose in his protection visa application.
The delegate refused his application on 27 October 2014. The delegate lists the applicant’s migration history at CB 134-5 which included the following:
· Travel to Cambodia in 2001 or 2002;
· Travel to Russia and other European countries in 2006;
· Illegal entry into the United Kingdom in 2006;
· He was convicted of drug producing in the United Kingdom in 2007 and deported in 2008 and returned to Vietnam;
· Travel to Indonesia and on to Christmas Island in 2010, returning voluntarily to Vietnam in November 2010;
· Travel to Indonesia with his daughter in June 2012 and on to Australia in February 2013.
The applicant applied to the Refugee Review Tribunal (“RRT”) to review the delegate’s decision. He was invited to appear before the RRT.
The applicant’s representative prepared lengthy written submissions and a further statement by the applicant for the RRT to consider. The submissions provided detailed critique of the delegate’s decision. He also points out that there was no consideration of the applicant’s daughter’s claim. He also included a lengthy reports about human rights abuses in Vietnam.[5]
[5] CB 212.
The Tribunal Decision
The Tribunal member handed down her decision on 14 April 2015 affirming the delegate’s decision not to grant the applicant’s protection visas. The Tribunal member summarised the applicant’s statement with his visa application at [10] and his second statement submitted by his representative on 25 March 2015 at [11]. The Tribunal member summarised the further issues raised by the applicant at the hearing at [12].
The Tribunal member referred to the extensive material for it including the material submitted by the applicant’s representative. She referred to country information.
The Tribunal accepts the country information that in practice the government restricts independent religious practice despite the Constitution providing for religious freedom and that in particular the government will repress religious individuals and groups who the government views as challenging its authority. Unregistered and unrecognised religious groups with political activism are monitored and harassed “not with-standing those restrictions, there are over six million Catholics in Vietnam and that number is growing”.[6]
[6] CB [15].
The Tribunal member accepted that there was a clash between Catholics and authorities in Con Cuong in July 2012 but that the situation there has improved since 2013.
The Tribunal member noted that whilst the applicant gave vague simplistic evidence. She accepted that he was a practising Catholic but did not accept that he participated in a major protest at the Catholic Church in Con Cuong in July 2012.
The Tribunal found that the incident that the applicant described at Con Cuong occurred in July 2012 not May 2012 the applicant and daughter left the country by then.
The incident referred to when the statue of Mary was smashed, according to country information, in July 2012 after the applicants left Vietnam.[7] The Tribunal member details other inconsistencies in the applicant’s evidence which caused her to be concerned about the applicant’s veracity.
[7] CB [22].
She also expressed concern that the applicant’s expanded and added to his claim and even towards the end of the hearing before he made a new claim. In view of the inconsistencies and the concerns the Tribunal identified it was not satisfied that the father participated in any religious protests and not satisfied that he is of any interest in authorities.
The Tribunal member refers to the data breach at paragraph [29] to [32]. In that regard she found that the information which were published included:
Names, dates of birth, nationality, gender and details about when and why they were detained may have been released. The applicant was detained because the entered Australia without a visa. There was release of details as to whether the applicant had lodged a protection visa application or on what grounds.[8]
[8] CB [31].
The Tribunal member expressed concerns about the father’s recent claim about the Vietnamese police visiting the detention centre the applicants were staying at in August 2013. The father heard about their visit from other detainees. She then referred to information which stated that the Vietnamese officials visited several detention centres to arrest the Australian Immigration department with identification of detainees who had not made refugee claims. The Tribunal rejected the suggestion that any information was given to Vietnamese authorities about either applicant.[9]
[9] CB 497 [31].
She goes on to note that the information was only available on the website for a short period for was removed then refers to a KPMG report which was commissioned by the department to independently review and report on that breach.
She found that there was nothing in the data breach that could not otherwise be known to the Vietnamese authorities, for example, that he was detained because he arrived in Australia without a visa and “this would be obvious due to his method of arrival.”
The Tribunal then referred to reports about the treatment of failed asylum seekers returning Vietnam noted that these reports indicated that failed asylum seekers were not harassed upon their return to Vietnam she further noted that the applicant had already returned to Vietnam twice, the first time being from the United Kingdom and the second time from Christmas Island Australia in 2012. The applicant did not give any evidence of being harmed on his return to Vietnam on either of those occasions.
The Legislation
The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:
The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).
The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2). It relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.
Grounds for Review
The applicant filed an application for judicial review on 19 May 2015. The application was prepared by Mr Thomas assisting the applicants. The grounds for review focus exclusively on the data breach.
The grounds appear in the application as follows:
Ground one:
a) The decision of the Tribunal was affected by error of law.
Ground two:
b)The jurisdiction of the Tribunal was not constructively exercised due to a fraud committed upon the Tribunal by the Minister for Immigration and Border Protection, namely the withholding of critical information from the Tribunal relevant to the Tribunal’s task of review under s 414 of the Migration Act with respect to the applicant’s claims arising out of the Department’s unlawful disclosure of the applicant’s personal information (data breach). In particular, the Minister for Immigration and Border Protection withheld from the Tribunal and applicant:
i)Information about the full scope of the applicant’s personal data, which the Department for Immigration and Border Protection had unlawfully disclosed on its website in February 2014, and
ii)The actual data that was unlawfully disclosed (that is, the substantive content of what was made public), as it was relevant to the applicant.
Ground three:
c)The Tribunal denied the applicant procedural fairness in deciding on the effect of the Department for Immigration and Border Protection’s unlawful disclosure of the applicant’s personal information (data breach) when there was ongoing and unresolved litigation on foot which directly affected the applicant’s claims and interests, specifically:
i)Federal Court proceedings in SZWAJ v Minister of Immigration and Border Protection [2015] FCA 26 (23 January 2015), concerning the Department’s ‘normal processes’ for assessment of implications for individuals personally, as described in the Department’s letter to the applicant about the data breach.
Ground four:
d)The Tribunal erred in law due to its determination that it was not satisfied on the evidence before it that the February 2014 data breach gave rise to a real chance of serious harm being occasioned to the applicant, as there was no actual evidence before the Tribunal about the content of the material disclosed by the Department of Immigration and Border Protection, upon which the Tribunal could make its determination.
Ground one
The applicant has not filed any submissions in compliance with the directions made by Registrar Caporale on 19 August 2015. Unsurprisingly, the father did not expand on his grounds for review given he was without representation at the hearing.
The first ground simply states that the decision was accepted by an error of law. Without particulars this ground is meaningless.
Ground two
The second ground is that the jurisdiction of the Tribunal was not constructively exercised because of fraud committed by the Minister by withholding critical information relevant to the Tribunal’s task of review with respect to the data breach. It specifically says that the Minister withheld from the Tribunal and the applicant the full scope of the applicant’s personal data which was disclosed on its website and the actual data that was disclosed about the applicant. It is a serious matter to make an allegation of fraud.[10]
[10] Legal practitioners must not make allegations of fraud unless the barrister believes on reasonable grounds that available material which supports the allegation. See r 37 of the Schedule to the Constitution of the Northern Territory Bar Association – Barristers’ Conduct Rules.
It is clear from the Tribunal decision that the Tribunal was aware of the KPMG report and refers to the information released. An allegation of fraud is a serious one. Mr Thomas drafted this ground. The issue of the data breach including the nature of the information that was released and the possible impact of the breach on the applicant returning to Vietnam was addressed by the Tribunal.
The High Court considered the issue of fraud in the public law context in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. That case concerned a fraudulent migration agent. The issue considered the effect of the fraud on the Tribunal’s decision-making. In that case the fraud of the agent process stultified the procedural fairness provisions of Part VII of the Migration Act 1958.
I also agree with Judge Hartnett’s comment about this in WZAWA v Minister for Immigration & Anor [2015] FCCA 3075. The grounds of review in that case which were drafted in similar terms to this case.
There is no base for the allegation of fraud. Ground 2 is not made out.
Ground three
The third ground complaints the Tribunal denied the applicant procedural fairness in deciding the issue about the unlawful disclosure the applicant’s personal information when there was ongoing litigation fought directly affecting the applicant’s claims and in this regard refers to Federal Court decision of SZWAJ and Minister of Migration Immigration and Border Protection [2015] FCA 26. Nor does SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 (“SZWAJ”) as that invoked different processes. There is no suggestion about how the resolution of SZWAJ would assist the applicant. The procedural fairness claim has not been expanded on. The Tribunal considered the type of information that was released and the consequential impact of that on the applicant.
Ground four
The fourth ground complains that Tribunal erred in law in its determination that the data breach did not arise to a real risk of harm as there was no actual evidence before the Tribunal about the content of what was disclosed by the Department.
This ground is misconceived. The Tribunal did have evidence about the information released in the data breach and considered the impact of that information on the applicant. Furthermore as Mr Brown correctly pointed out the Tribunal proceeded on the assumption that the Vietnamese authorities would find out that he had sought asylum. The ground also must be dismissed.
As the applicant father has not established any jurisdictional error his application must be dismissed.
A fair reading of the Tribunal’s decision shows that it found that the applicant was not a credibility witness and this together with the country information lead it to conclude that the delegate’s decision should be affirmed. As no jurisdictional error has been established the application must be dismissed.
Costs
The first respondent sought costs in the sum of $8,250 if the application was dismissed. The amount is greater than the usual amount allowed for in the Federal Circuit Court scale of costs but this reflects the extra costs involved because of the adjournments. The amount is reasonable. I will make that order.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 7 July 2016
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