BCD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1158
•29 September 2022
FEDERAL COURT OF AUSTRALIA
BCD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1158
Appeal from: BCD17 v Minister for Immigration & Anor [2019] FCCA 3235 File number: NSD 2031 of 2019 Judgment of: MARKOVIC J Date of judgment: 29 September 2022 Catchwords: MIGRATION – appeal from orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of a decision of the Immigration Assessment Authority – whether Authority acted unreasonably – whether Authority made a finding based on no material evidence – whether appellant denied procedural fairness – where grounds of appeal bear no resemblance to the grounds raised in the Federal Circuit Court – whether to grant leave to raise new grounds on appeal – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v SZSSJ [2016] 259 CLR 180
NDBR v Minister for Home Affairs (2021) 286 FCR 336
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307; [2013] FCAFC 26
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 64 Date of hearing: 12 September 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms C Hillary, Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 2031 of 2019 BETWEEN: BCD17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
29 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Leave to rely on the proposed grounds set out in the notice of appeal filed on 6 December 2019 is refused.
2.The appeal is dismissed.
3.The appellant is to pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an appeal from orders made by the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) dismissing an application for judicial review under s 476 of the MigrationAct 1958 (Cth) of a decision of the second respondent, the Immigration Assessment Authority. The Authority had affirmed a decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to grant the appellant a temporary protection visa.
BACKGROUND
The appellant is a citizen of Sri Lanka. He arrived in Australia by boat on 11 September 2012.
On 25 July 2016 the appellant applied for a temporary protection visa. In that application he claimed to fear harm because he had participated in a protest organised by the “Fishery’s Society” in a manner that brought him to the adverse attention of the authorities and because he departed Sri Lanka illegally.
In a submission provided to the Minister’s department on 8 December 2016, which was one day prior to the appellant’s interview with a delegate of the Minister, the appellant’s advisors informed the department that the appellant had advised them on the day prior that he was a victim of a departmental data breach. The appellant claimed that he also feared harm as a result of the data breach which enabled access to personal information about people who were in immigration detention on 31 January 2014, which included him. This was because the Sri Lankan authorities may have accessed his personal information.
On 4 January 2017 a delegate of the Minister refused the appellant’s application for a temporary protection visa.
The decision to refuse the appellant a protection visa was referred to the Authority for review.
On 3 March 2017 the Authority affirmed the decision not to grant the appellant a protection visa.
THE AUTHORITY’S DECISION
The Authority set out the appellant’s claims including that:
(1)in February 2012 he participated in a protest organised by the “Fishery’s Society”. Prior to the protest he attended a meeting with his uncle where the attendees were told that police were attacking protesters on a beach about 1-2 km away. He went with his uncle and 10 others to assist the protesters where he saw about 20-30 police hitting 15 protesters with batons. When his uncle started fighting with the police, the appellant sheltered behind him;
(2)about 10 armed men from the Special Forces arrived at the beach and started firing shots. He witnessed the shooting and death of his friend;
(3)after the shooting his friend’s wife asked him to report what he had seen to the police but he did not do so. He feared going to the police in case they suspected him of throwing rocks during the protest;
(4)two weeks later army officers attended his family’s home while he was away fishing and told his family that they had heard that the appellant was going to give evidence against the army. They threatened that if he did so he would “pay the price”;
(5)during May 2012 the appellant travelled to Dubai because of the problems he had experienced following the protest. Unknown men came in a van looking for him, mostly at night, and while he was in Dubai army officers paid a second visit to his family threatening that they would take him away;
(6)with the exception of the month he spent in Dubai, from February 2012 until August 2012 the appellant worked as a fisherman in the eastern province;
(7)his family made preparations for him to travel by boat to Australia and he left Sri Lanka on 24 August 2012;
(8)since leaving Sri Lanka army officers have visited his home at least three times saying they wish to talk with him; and
(9)he has been affected by the 2014 data breach and fears authorities will interrogate and torture him on return to Sri Lanka either for being imputed as a people smuggler or in order to obtain information about the people smuggling ring responsible for his boat travel.
The Authority accepted that the appellant is a national of Sri Lanka.
The Authority also accepted the appellant’s account of his participation in the protest organised by the Fishery’s Society and found that his participation was limited to attending the protest and did not attract any prominence. However, the Authority did not accept the appellant’s claim that he was in close proximity to his friend when he was shot. It considered that it was implausible that the appellant was the only person who may have witnessed the shooting or that he was identified and singled out by army officers or police as an important witness.
The Authority accepted that the appellant travelled from Sri Lanka to Dubai for one month from early May to early June 2012 and noted that, on his evidence, the appellant was not questioned or detained at the airport on departure or arrival. The Authority was of the opinion that if the Sri Lankan army or the police considered the appellant to be an important participant in anti-government activity and were searching for him he would have been identified at the airport and prevented from travelling overseas. The Authority was concerned about the plausibility of the appellant’s motivation for his travel in 2012 and found that the reason for it was to obtain work and that he did not have a profile of interest to Sri Lankan authorities for anti-government activity.
The Authority did not accept the appellant’s claim that he attracted the adverse attention of Sri Lankan authorities for any reason including because he was a witness to the shooting of his friend, for imputed anti-government activity or for imputed Tamil ethnicity or pro-Tamil beliefs.
The Authority also considered the appellant’s claim that he will face harm on return to Sri Lanka as a returned asylum seeker and an illegal deportee and that, because of the release of information as a result of the 2014 data breach, he would be identified as a Sinhalese fisherman and suspected of being part of a people smuggling crew or holding information about a people smuggling ring.
The Authority accepted that the appellant departed Sri Lanka illegally, that he will return to Sri Lanka as a returned asylum seeker and would likely be identified as such. However, it noted that people who depart Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigration and Emigrants Act 1949 and upon arrival are processed by a number of agencies which may take several hours, primarily due to the administrative practices, interview lengths and staffing constraints. It also noted that as such people are processed en masse and individuals are unable to leave the airport until all returnees have been processed. However, they are processed in accordance with standard procedures, regardless of ethnicity, and are not subjected to mistreatment during processing.
The Authority found that there was no evidence to suggest that Sinhalese people are treated in a discriminatory manner during processing and considered that the appellant’s fear that he would be identified by authorities as a people smuggler, on the basis that he would be identified as a fisherman, to be speculative. The Authority was not satisfied there is a real chance he would face serious harm on that basis.
The Authority referred to the fact that illegal departees can be charged under the Immigration and Emigrants Act and set out the consequences for a person so charged and what might happen to them on their return, depending on whether they were to plead guilty or not guilty to the charge. The Authority concluded that there was no evidence before it that indicated that the operating procedures under that Act were discriminatory nor did the country information suggest it was applied in a discriminatory manner. Accordingly it was not satisfied that detention arrangements for the purposes of being charged under the Immigration and Emigrants Act and financial penalties imposed upon a plea of guilty are applied in a discriminatory manner.
The Authority accepted that the appellant was affected by the 2014 data breach and that if the Sri Lankan authorities had access to that information they might be aware that he had applied for asylum in Australia. The Authority observed that, regardless of the data breach, Sri Lankan authorities would also be able to discern that the appellant had sought asylum overseas due to the manner of his return and absence of a passport. It was satisfied that the appellant would be considered to be a passenger on a people smuggling venture, rather than a member of crew, despite being Sinhalese and even if the authorities became aware he was a fisherman. The Authority was not satisfied that there was a real chance the appellant will be at risk of serious harm for being identified through information released in the data breach.
The Authority concluded that the appellant did not meet the criterion in s 36(2)(a) of the Migration Act.
The Authority also considered whether the appellant met the criteria for complementary protection set out in s 36(2)(aa) of the Migration Act but concluded, upon considering his claims in that context, that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant will suffer significant harm and thus that he did not meet the requirements for complementary protection.
PROCEEDING BEFORE THE FEDERAL CIRCUIT COURT
The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court.
Before that court the appellant relied on a document titled “ Further x2 Amended Application” which raised two grounds of review numbered 4 and 5 as follows (as written):
4.The IAA fell into jurisdictional error as a consequence of the issuing of an invalid s 473GB certificate.
Particulars
a.S473GB(2)(b) requires the IAA to have regard to an advice given to it by the Secretary under s473GB(2)(b) and consequently the IAA must determine whether or not it should exercise that power depends on whether it considers that the certificate is valid or not (Minister for Immigration v BBS16 [2017] FCAFC 176 at [96);
b.At point (a) of the s473GB certificate the reason for the issuance of the certificate is given as:
(a)the documents, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence;
c.The Pre-Transfer Assessment form was prepared by a Senior Case Manager on Christmas Island and as such is not a document or information given to the Minister, or an officer of given to the Minister for an officer of the Department, in confidence but an internal working document;
d.The Client Incident Analysis and Risk Assessment is from the applicant’s file and as such was not a document or information given to the Minister or to an officer of the Department, in confidence but an internal working document;
e.The certificate issuer was required to specify which limb or limbs of section 473GB(l)(b) the certificate was issued pursuant to and the issuing of the certificate on multiple possible basis, without specifying one or more with certainty, renders the certificate void as no actual basis was relied upon;
f.S473GB did not empower the departmental officer to issue the s473BG certificate to forward the documents/information to the IAA and in doing so breached the Act and/or constituted an abuse of power; and
g.The IAA failed to consider the legal implication of the issuance of an invalid certificate and thereby failed in exercising its jurisdiction.
5.The IAA acted outside of jurisdiction by determining the matter in circumstances where the delegate's decision was a nullity, because:
i)the delegate had acted in a way that occasioned a want of procedural fairness by not applying the presumption identified in Minister for Immigration and Border protection v SZSSJ,· Minister for Immigration and Border Protection v SZTZI [2016] HCA 21 in [91].
ii)the delegate had failed to deal with an integer of the applicant's claim, being that he might face serious harm on account of being a victim of the 'data breach' by making transposed factual findings [at CB 154] from another case in respect of, "terrorist organisations, criminal syndicates, foreign authorities and foreign intelligence agencies" and, "paramilitary groups operating in Iraq".
iii)the delegate had failed to deal with an integer of the applicant's claim. being that he might be wrongly believed by the Sri Lankan authorities to be a 'people smuggler' and therefore at risk of serious harm upon detention on account of that;
iv)the delegate acted unreasonably and occasioned a want of procedural fairness by engaging in a "process of reasoning which damns a man's credibility by reference, materially. to a false factual premise” [SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37]] by holding at CB150, “I do not accept the applicant's evidence that that [sic] his friend's wife asked him to give evidence in the court. Firstly, the applicant claimed in his Entry Interview in 2013 that his friend's wife came and told him at the protest: "we are going to file a court case against the Army person” when the application had said no such thing in the interview and when the interview was never disclosed to the applicant.
(Underlining omitted.)
Based on those grounds, the two questions before the Federal Circuit Court were described by the primary judge to be:
(1)whether the Authority had jurisdiction to review what the appellant contended was a purported decision by a delegate of the Minister not to grant a temporary protection visa; and
(2)whether the Authority fell into jurisdictional error because of what the appellant claimed was the issuing, purportedly under s 473GB of the Migration Act, of an invalid certificate,
see BCD17 v Minister for Immigration & Anor [2019] FCCA 3235 at [1].
The primary judge noted that at the hearing it was accepted by the parties that the outcome of the first issue would, to a significant degree, depend on the outcome of the decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. After his Honour reserved his decision, it became apparent the second question might turn on the decision of the High Court, which was subsequently handed down, in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34. Accordingly the proceeding was relisted before his Honour on 25 October 2019 at which time an inquiry was made of the parties as to whether they wished to make any further submissions in light of the decisions in those matters. They declined the invitation to do so: BCD17 at [2]-[3].
The primary judge therefore determined the matter on the basis of the submissions before him.
In relation to the first question (ground 4 of the application) his Honour first noted that it was unnecessary to set out the particulars in support of the claim because counsel for the appellant accepted that the appellant was bound to fail on that ground given the decision in Minister for Immigration and Border Protection v BBS16[2017] FCAFC 176. Notwithstanding that finding, his Honour referred to the judgment of the plurality in BVD17 noting that the question in that case was whether the giving of a notification under s 473GB(2)(a) of the Migration Act triggers obligations of procedural fairness equivalent to that triggered on the giving of a notification under s 438(2)(a) of the Migration Act. The primary judge observed that the “short answer” given by the plurality to that question was that procedural fairness did not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) of the Migration Act to a referred applicant under Pt 7AA of that Act and that the plurality referred to the decision in BBS16 at [35] with apparent approval. In light of the appellant’s acceptance that given BBS16 ground 4 could not succeed, the primary judge concluded that the ground must fail: see BCD17 at [10]-[12].
In relation to the second question (ground 5 of the application) the primary judge considered that, in light of the decision in Plaintiff M174 in which the plurality held that a fast-tracked reviewable decision is a decision made in fact, regardless of whether the decision is legally effective, the ground could not succeed. His Honour found that whether the delegate’s decision was a nullity was not relevant to the Authority’s jurisdiction to review the decision: see BCD17 at [13]-[14].
Accordingly, the primary judge dismissed the appellant’s application for judicial review.
THE APPEAL
On 6 December 2019 the appellant filed a notice of appeal in this Court in which he raises three grounds:
1.His Honour erred when he did not find that the IAA acted unreasonably
2.His Honour erred when he did not find that the IAA erred by making a finding based on no material evidence.
3.His Honour erred when he did not find that the IAA denied the appellant procedural fairness by failing to warn him that it would not apply the assumption that all the appellant's personal information, released by the data breach of February 2014, had been accessed by persons or entities that he feared.
I pause to observe that the appellant is not legally represented in this Court. He was however represented before the Federal Circuit Court by solicitors and counsel.
The appellant’s grounds of appeal bear no resemblance to the grounds raised before the Federal Circuit Court and therefore to the extent they allege any error on the part of the primary judge, do not do so by reference to the grounds raised for resolution in that court. They are new grounds which the appellant seeks to raise for the first time on appeal. That said, given that the appellant is not represented the Minister pointed out that the grounds included in the notice of appeal resemble and may be referrable, in part, to an earlier version of an application for judicial review filed in the Federal Circuit Court, namely a further amended application. In his further amended application filed in the Federal Circuit Court, the appellant raised four grounds. The grounds of appeal set out above are referrable to grounds 1, 2 and 3 respectively in the further amended application filed but, as is apparent from the primary judge’s reasons, ultimately were not relied on, in the court below. The Minister provided me with a copy of written submissions signed by counsel (FCC Submissions) which were filed in support of the further amended application in the court below.
Given the way in which the matter proceeded before the Federal Circuit Court and the reasons of the primary judge, it is clear that the earlier version of the application for judicial review, the further amended application, was abandoned by the appellant’s subsequent reliance on the “Further x2 Amended Application”.
As I have already observed, the grounds now raised by the appellant in his notice of appeal are new grounds, not raised before the Federal Circuit Court, and the appellant requires leave to rely on them.
Leave will be granted to raise a new ground on appeal where the Court considers that it is expedient in the interests of justice to entertain the issue on appeal. The Court is more likely to permit a new ground to be raised on appeal where it turns only upon a question of construction or a point of law or where the facts are not in controversy. In determining whether leave should be granted, among other things, the Court considers the explanation for not raising the ground below, whether there is any prejudice to the respondent in permitting the ground to be raised for the first time on appeal and the merits of the proposed new ground: see NDBR v Minister for Home Affairs (2021) 286 FCR 336 at [54].
No explanation has been provided by the appellant as to why these grounds were not raised below. The appellant was represented by solicitors and counsel in the court below and, while represented, elected not to rely on the very grounds on which he now seeks to rely. The Minister could not point to any prejudice to him should leave be granted to the appellant to rely on the new grounds but submitted that the grounds are obscure, unparticularised and lack substance and that it would not be in the interests of justice to grant leave to the appellant to raise them for the first time on appeal.
The appellant is not represented in this Court and I would readily infer that he may not understand that he is required to explain why these grounds were not raised below and in fact abandoned. Despite being given an opportunity at the hearing to explain why that occurred, he was unable to do so. Ultimately the question of whether leave should be granted to raise these grounds for the first time on appeal turns on whether they have any merit.
As drafted, proposed grounds 1 and 2 are unparticularised and without knowing how it is alleged that the Authority acted unreasonably or which finding was made on “no material evidence”, they are meaningless. On the face of the notice of appeal alone, grounds 1 and 2 have no merit. However, below I address those grounds and proposed ground 3, which is more meaningfully particularised, having regard to the further amended application and the FCC Submissions.
Ground 1
By proposed ground 1 the appellant contends that the primary judge erred when he did not find that the Authority acted unreasonably.
The allegation of unreasonableness is particularised in the further amended application by reference to the way in which the Authority considered the psychologist’s report and by the way in which it dealt with a recording of the transferee interview with the appellant.
The psychologist’s report, which is dated 7 December 2016, was provided to the Minister’s delegate under cover of a submission from the appellant’s representative on 8 December 2016, which was the day before the appellant’s interview with the delegate.
In his submission the appellant’s representative requested “that the interviewer has consideration (sic) of the psychological findings and the vulnerability of the [appellant] during the interview process”. The report itself referred to the fact that the appellant “obtained a score of 3.5 of the Harvard Trauma Questionnaire indicating that he is currently experiencing severe symptoms of traumatic stress such as having recurrent thoughts or memories of terrifying events, feeling jumpy and easily startled, and having difficulty in remembering parts of the traumatic event”.
The appellant’s representative said the following in relation to the delegate’s finding about the purpose of the psychological report:
The delegate misconstrued the purpose of providing the report as evidence of a claim under the UN Refugee Convention or complementary protection. However, the purpose of the STARTTS report was to evidence his limited ability to present and recall evidence.
In the FCC Submissions, the appellant submitted that the Authority acted unreasonably by finding that the psychological report “is not retrospective in its application”. He contended that this finding was made in the context of the appellant having submitted that the inconsistencies between his accounts should be viewed in the context of what the report suggested as to his mental state and that by declining to accept “retrospective application” of the report the Authority was able to discount the appellant’s psychological difficulties as being “causatively related to the inconsistences”, a conclusion that would have assisted the appellant in respect of credibility findings. The appellant submitted that the unreasonableness lay in the implicit finding that the report was detailing mental problems of recent onset and which therefore could not explain the inconsistencies between the October and December 2012 accounts. He contended that such a finding was not open based on the contents of the report which was clearly concerned with past experiences and traumatic stress related to past terrifying events. He said that the approach taken had the effect that the Authority failed to take into account the psychological material properly.
The Authority addressed the report at [10]-[11] of its reasons where it said:
10.I am mindful of the difficulties the applicant may (sic) in putting forward his claims for protection, particularly his mental state as assessed in the psychological report of 7 December 2016, and the passage of time. However, I note that the report is based on an assessment during a period of treatment from 28 November 2016 to 2 December 2016 and is not retrospective in application. I have listened to the transferee interview of 30 December 2012 and am satisfied the applicant was assisted through a Sinhalese interpreter and was provided ample opportunity to state his claims. He readily provided information in response to questions asked and appeared to engage with the interview. I consider the applicant’s ability to present and recall information at the arrival interview and the transferee interview were not impeded.
11.Having regard to this, I have considerable doubt that if the applicant had departed Sri Lanka to escape harm from the Sri Lankan authorities he would not have made some mention of this during his first interview in Australia. I find his rationale for not referring to his other claims unconvincing and have given weight to the initial reason he provided for coming to Australia. These findings impact on the credibility with which I have viewed the applicant’s subsequent claims and his motivation for moving to different areas in 2012, as assessed below. Given the deterioration of the applicant’s mental health more recently and the passage of time, I have taken this into account when assessing minor inconsistencies in detail and recall during the visa interview.
As noted above, the appellant alleges that the observation by the Authority that the psychologist’s report was “not retrospective in application” was indicative of unreasonableness. The appellant contended both before the Authority and apparently in support of this proposed ground of appeal that the explanation for any inconsistency in his account is attributable to his mental state as referred to in the psychologist’s report. However, the report is plain on its face. It does not refer to the appellant’s state of mind as at 2012. Rather it says that the applicant is “currently experiencing” severe symptoms of traumatic stress, and provides examples of how those symptoms would manifest. The report says nothing about the appellant’s ability to recall events as at 2012. The Authority was thus correct in its finding that the report was not retrospective in application. The report does no more than to address the appellant’s difficulties in recollection in December 2016, at the time of his interview with the delegate. The appellant’s representative asked that the report be taken into account and that is what the Authority did. In those circumstances it cannot be said that the way in which the Authority dealt with the psychologist’s report was legally unreasonable.
In his FCC Submissions the appellant also submitted that it was unreasonable for the Authority to consider and take into account adversely the contents of the interview that took place in December 2012 in circumstances where it was known that the interview had not been disclosed to him. Accordingly he had not had the opportunity to respond before the delegate and the Authority did not exercise a power to provide the interview for comment to the appellant.
As the Minister submitted this aspect of proposed ground 1 has no merit. The Authority was obliged by s 473DB of the Migration Act to consider the interview. That section provides that the Authority must consider the review material provided to it under s 473CB of the Migration Act without accepting or requesting new information and without interviewing the referred applicant. In turn s 473CB of the Migration Act mandates what the secretary must give to the Authority in respect of each fast track reviewable decision and relevantly includes any other material that is in the secretary’s possession or control and is considered by the secretary to be relevant to the review.
Further, the appellant does not particularise what part of the interview was said to have been taken into account adversely to him. It is not apparent, based on a review of the Authority’s reasons, that it took any aspect of it into account adversely. Rather, it listened to the interview to make an assessment of the appellant’s level of engagement and participation in the process at that time. Having done so, the Authority was satisfied that the appellant was assisted by a Sinhalese interpreter, was provided an opportunity to state his claims, that he readily provided information in response to questions asked, that he appeared to engage with the interview and that his ability to present and recall information at the arrival interview and the transferee interview were not impeded: at [10]-[11] of the Authority’s reasons. It is not apparent that there was anything to put to the appellant for comment and, critically, there was no obligation on the part of the Authority to do so.
It follows that proposed ground 1 has no merit.
Ground 2
By proposed ground 2 the appellant alleges that the primary judge erred when he did not find that the Authority erred by making a finding based on no material evidence. The ground is not particularised in the notice of appeal. However, in the further amended application filed in the Federal Circuit Court and in the FCC Submissions the appellant particularised this ground by reference to [34] and [38] of the Authority’s reasons where it made a finding that the appellant would be considered by the Sri Lankan authorities to have been a passenger rather than a crew member during his boat trip to Australia. The appellant submitted that this finding was based on no evidence and that the Authority’s reasons expose no reasoning in support of it. He submitted the finding based on no evidence caused the Authority to fail to consider an integer of his claim being that he might be imprisoned for a lengthy period on suspicion of being a crew member on a people smuggling operation.
Contrary to that submission and in particular the assertion that the Authority’s finding was based on no evidence, at [31] the Authority said:
There is no evidence before me to suggest that Sinhalese people are treated in a discriminatory manner during processing. The applicant has claimed that authorities would identify him as a fisherman, giving rise to a suspicion he was part of the people smuggling crew. At interview, the applicant confirmed that he has never been registered as a fisherman and was not a member of the fishing union. I consider the applicant’s fear that he would be identified by authorities as a people smuggler on the basis of being identified as a fisherman to be speculative and am not satisfied there is a real chance he would face serious harm on this basis.
As the Minister submitted, that evidence referred to by the Authority provides a sufficient basis in law for the Authority’s findings at [34] and [38] of its reasons: see Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307; [2013] FCAFC 26 at [83]-[88] (per Jagot J with whom Nicholas J agreed).
For that reason ground 2 has no merit.
Ground 3
By proposed ground 3 the appellant contends that the primary judge erred when he did not find that the Authority denied the appellant procedural fairness by failing to warn him that it would not apply the assumption that all of his personal information, released by the data breach, had been accessed by persons or entities that he feared.
In the FCC Submissions the appellant submitted that this ground would be the subject of a further amended application to expand it to contend that the Authority acted without jurisdiction in circumstances where the delegate’s decision was attended by a want of procedural fairness occasioned by:
(1)the non-disclosure of the KPMG report, which I understand to be a reference to a report prepared by KPMG following its investigation into the data breach; and
(2)the delegate’s failure to presume that persons and entities from whom the appellant claimed to fear harm had accessed the data.
The appellant submitted that the way the delegate and the Authority dealt with the data breach issue occasioned a want of procedural fairness such as to amount to jurisdictional error in both decisions. The appellant submitted that he was entitled to procedural fairness in respect of the data breach and that the want of procedural fairness brought about by the failure to disclose the KPMG report was not remedied or otherwise rendered immaterial by any assumption applied by the delegate. He contended that the delegate failed to provide him with the KPMG report or with sufficient information relating to the breach and failed to provide the assumption considered by the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] 259 CLR 180 and that this was a breach of Div 3 of Pt 2 of the Migration Act and/or breach of procedural fairness more generally.
In SZSSJ the High Court was tasked with determining, relevantly, whether procedural fairness was required in the process undertaken to assess the implications of the data breach (ITOA process) and, if it was, whether procedural fairness had been afforded to the appellants during that process. The High Court held that procedural fairness was required and had been afforded to the appellants. Relevantly, during the ITOA process an assumption was made that all of the appellants’ personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm.
The appellant submitted that the Authority in its consideration of the issue seemingly did not unequivocally accept that the Sri Lankan authorities had access to the information, an approach which occasioned a want of procedural fairness because the appellant had never seen the KPMG report and therefore a decision was made without him having been put on notice of the issue and being given the opportunity to comment.
The appellant submitted that this want of procedural fairness meant that the delegate’s decision was in fact no decision and the Authority therefore had no jurisdiction to embark upon the review.
Given the way in which the appellant puts this ground in the FCC Submission, in order to succeed he must establish that the delegate: did not disclose the KPMG report referred to in SZSSJ; did not provide him with sufficient information relating to the breach; did not apply an assumption (as referred to in SZSSJ), such that the delegate's decision is invalid as a matter of law; and that, as a matter of statutory construction, the Authority therefore either had no jurisdiction or it acted in excess of it.
In their decision, the delegate referred to the information about the appellant which had been disclosed by the breach and said:
Whilst I accept that the applicant fears that the Sri Lankan authorities may have accessed his personal information through the website disclosure and may be aware of the details of Sri Lankan detainees in Australia who arrived by boat and they had come to seek asylum in Australia, there is no evidence to support the assertion that the Sri Lankan authorities were aware of the website disclosure.
I consider that the unintentional release of the applicant’s personal information would not raise his profile as a returnee other than to indicate that he had returned from Australia where he had been detained. There is no information before the department suggesting that the applicant’s personal information published online would be valuable or usable to any terrorist organizations, criminal syndicates, foreign authorities and foreign intelligence agencies; including for the denial of a visa which in itself, may not constitute serious or significant harm. No information was disclosed in relation to the applicant's claims for protection. And with regard to any members of paramilitary groups operating in Iraq accessing the applicant’s personal information, such a claim is purely speculative. Therefore, I conclude that there is no real chance of serious harm or real risk of significant harm as a result of the website disclosure, and further, that the applicant is not a sur place refugee.
Having received submissions from the appellant’s representative, which included submissions identifying deficiencies in the delegate’s decision in relation to its treatment of the effect of the data breach on the appellant, at [38] of its reasons the Authority said:
I accept that the applicant was affected by the 2014 data breach in which certain information about people in immigration custody was inadvertently released publicly online for a period of time. I accept that if the Sri Lankan authorities had accessed this information they might be aware that the applicant had applied for asylum in Australia. I note that regardless of the data breach, Sri Lankan authorities would also be able to discern the applicant had sought asylum overseas due to the manner of his return and absence of a passport. Having regard to the applicant’s claims about the data that was leaked and how it could be used by Sri Lankan authorities, I consider his fears that he would be suspected as having been part of the crew are speculative. I am satisfied the applicant would be considered to be a passenger on a people smuggling venture rather than a member of crew, despite being Sinhalese, and even if the authorities became aware he was fisherman. He has no criminal convictions, outstanding warrants or perceived connection with LTTE or pro-Tamil activity prior to or while having been overseas. I am not satisfied that there is a real chance the applicant would be at risk of serious harm for being identified through information released in the data breach.
For the following reasons I am of the opinion that this ground lacks merit:
(1)the appellant has not made out the factual premise on which the proposed ground proceeds, namely that the KPMG report referred to in SZSSJ was before the delegate;
(2)it is not clear how it is said that the delegate did not provide the appellant with “sufficient information relating to the breach”. No particulars are provided and it seems that the appellant takes no account of the detail in the delegate’s decision;
(3)the Court has no jurisdiction in relation to the delegate’s decision: see ss 476(2)(a) and (4)(c) of the Migration Act;
(4)the conduct of the Authority’s review is governed by Pt 7AA of the Migration Act. The Authority addressed the issue raised by the appellant in relation to the 2014 data breach. The appellant does not identify any departure by the Authority from the prescribed scheme in Pt 7AA; and
(5)in any event, the Authority, in effect, applied the “assumption” (see [38] of its reasons at [61] above).
CONCLUSION
It follows from the matters set out above, that I would not grant leave to the appellant to rely on the new grounds included in his notice of appeal for the first time on appeal. Accordingly, the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.
I will make orders accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic. Associate:
Dated: 29 September 2022
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