BDY15 v Minister for Immigration
[2018] FCCA 1327
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDY15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1327 |
| Catchwords: MIGRATION – Judicial review – International Treaties Obligation Assessment process – citizen of Papua New Guinea – data breach – whether denial of procedural fairness – whether bias – whether process appropriate – whether jurisdictional error. |
| Legislation: Constitution, s.61 Migration Act 1958 (Cth), ss.91R, 197C, 198, 256, 336E, 474, 476, 477 Privacy Act 1988 (Cth) |
| Cases cited: AFH15 v Minister for Immigration & Border Protection [2016] FCCA 99; (2016) 308 FLR 369 SZUCF v Minister for Immigration & Anor [2014] FCCA 1863 SZVCP v Minister for Immigration & Ors(No 3) [2016] FCCA 3328 |
| Applicant: | BDY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | AMY LAH, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | PEG 276 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 April 2018 |
| Date of Last Submission: | 20 April 2018 |
| Delivered at: | Perth (and by video-link to Cairns) |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) (by video-link from Cairns) |
| Counsel for the First Respondent: | Mr PJ Corbould |
| For the Second and Third Respondents: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That paragraphs 3 to 20 inclusive (and any annexures therein referred to) of the applicant’s affidavit affirmed on 6 September 2016 be struck out.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 276 of 2015
| BDY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| AMY LAH, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Third Respondent |
REASONS FOR JUDGMENT
Introduction
On 25 June 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of an International Treaties Obligations Assessment dated 2 June 2015 (“ITOA”) conducted by the third respondent, Ms Amy Lah (“ITOA Assessor”). The first respondent is the Minister for Immigration & Border Protection (“Minister”), and the second respondent is the Secretary of the Department of Immigration & Border Protection (“Secretary”). A copy of the ITOA is at Court Book (“CB”) 71-91.
Following a series of developments subsequent to the filing of this Judicial Review Application in 2015, referred to in the reasons hereunder, the matter came on for final hearing on 20 April 2018.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Papua New Guinea who arrived in Australia on 3 October 2010 on a Student Visa, and upon overstaying his visa was subsequently detained in immigration detention as an unlawful non-citizen on 6 November 2013: CB 1, CB 30 and CB 72;
b)on 2 December 2013 the applicant applied for a Protection (Class XA) visa: CB 3-28 (“Protection Visa”);
c)on 9 January 2014 a delegate of the Minister (“Delegate”) refused to grant the applicant a Protection Visa: CB 29-42 (“Delegate’s Decision”);
d)the applicant filed an application for review of the Delegate’s Decision with the then Refugee Review Tribunal (now Administrative Appeals Tribunal) (“Tribunal”);
e)on 18 February 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 43-49 (“Tribunal Decision”);
f)on 24 March 2014 the applicant filed an application in this Court for judicial review of the Tribunal Decision, which was dismissed with costs on 8 July 2014: CB 51; SZUCF v Minister for Immigration & Anor [2014] FCCA 1863 (“SZUCF-FCCA”);
g)on 31 January 2014 personal information of persons held in immigration detention, including the applicant, was released in a data breach (“Data Breach”) by the then Department of Immigration & Citizenship, now the Department of Immigration & Border Protection (“Department”), and by letter dated 12 March 2014 the Secretary wrote to the applicant expressing regret for the Data Breach (“Secretary’s 12 March 2014 Letter”) and stating, at CB 50:
In February 2014 a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.
We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again.
The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reasons and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
The Department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.
If you would like to seek more information about the incident, talk to your case manager.
h)on 14 July 2014 an officer of the Department wrote to the applicant (“Department’s July 2014 Letter”) in terms which included the following:
i)that the applicant had been advised in March 2014 that he was affected by a routine report released on the Department’s website which “unintentionally enabled access for a short period of time to personal information about people who were in immigration detention on 31 January 2014”: CB 52
ii)that as previously stated the information included name, date of birth, nationality, gender, details of when the applicant was detained (reason and where) and that if other family members were in detention, but did not include any current or former address, phone number or contact information, and “did not include any information about protection claims that you or any other persons may have made, and did not include any other information such as health information”: CB 52
iii)that the applicant had been informed that “any implications for you personally would be assessed as part of the department’s normal processes”: CB 52;
iv)that the applicant did not hold a permanent visa to remain in Australia and may be liable for removal, and that if he had concerns regarding the impact of the Data Breach in his case then he was “invited to put those concerns to the department in writing”: CB 52, and that those concerns would be considered in addition to any other information he had already provided to the Department, and that if he had concerns about the impact of the Data Breach and his ability to return to his home country or country of usual residence he should give specific reasons as to why he cannot return, and was asked to provide the information to the Department in writing 14 days after the receipt of the Department’s July 2014 Letter: CB 52;
i)by letter dated 16 July 2014 the applicant responded (“Applicant’s July 2014 Letter”) to the Department’s July 2014 Letter as follows:
i)the Department breached s.336E of the Migration Act and in doing so has committed a crime: CB 54;
ii)the Department cannot lawfully or ethically investigate the breach of privacy as it would be a conflict of interest: CB 54;
iii)there is no way of knowing who has accessed this information and who he could face a real risk of harm from as it may go beyond the authorities in his own country to foreign intelligence agencies: CB 54; and
iv)the 14 day time limit to respond and provide submissions regarding the Data Breach was unreasonable for the applicant in his circumstances and he requested a migration agent or lawyer be made available to assist him, or alternatively he be released from immigration detention to source one: CB 54;
j)on 8 August 2014 the applicant applied to the Federal Court for an extension of time to appeal from SZUCF-FCCA, and on 17 November 2014 the Federal Court granted an extension of time for the appeal, but ultimately dismissed the applicant's appeal: SZUCF v Minister for Immigration & Border Protection [2014] FCA 1207 (“SZUCF-FC”); CB 55;
k)by letter dated 14 January 2015, the applicant was notified by the Department that the ITOA had been commenced to assess if the circumstances of his case engaged Australia's non-refoulement obligations (“Department’s January 2015 Letter”): CB 57-58, specifically the applicant was advised that:
i)any protection claims he may have in relation to the Data Breach would now be assessed through the ITOA;
ii)the applicant’s response in the Applicant’s July 2014 Letter would be taken into account in the ITOA process;
iii)the ITOA process would also consider “new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed”: CB 58;
iv)as part of the procedural fairness to be afforded the applicant during the ITOA process the applicant would be asked to comment on any adverse information which was credible, relevant and significant to the ITOA, and would be given a reasonable opportunity to respond to that information before the ITOA was finalised: CB 58; and
v)the applicant had 14 days from the date of receipt of the Department’s January 2015 Letter to provide further information that he would like to have taken into consideration in the ITOA: CB 58;
l)the applicant responded by letter dated 19 January 2015 (“Applicant’s January 2015 Letter”) and an undated letter received by the Department on 3 February 2015 (“Applicant’s February 2015 Letter”) in which he stated:
i)he has a real fear of returning to Papua New Guinea because of the breach of privacy: CB 59;
ii)most of the information and his claims for protection were against his people and he will have sparked outrage because the information has been leaked: CB 59;
iii)he is suffering ongoing emotional stress because of the police brutality and violence in his village, and is in real danger now, and the breach of privacy should make him an automatic refugee under the Refugee Convention: CB 59;
iv)there is no way of knowing who has accessed this information, and from whom he could face a real risk of harm, as it may go beyond the authorities in his own country to foreign intelligence agencies, human resource sections of companies, and the public service, and their access to the information would undermine his ability to find employment, while foreign governments are likely not to allow him to travel in the future: CB 59;
v)the Department breached s.336E of the Migration Act and in doing so has committed a crime and must be held accountable for their mistake: CB 59-60;
vi)denying him access to the unabridged KPMG report is a denial of procedural fairness, and the only course of action is to recognise him as a refugee sur place: CB 61; and
vii)the ITOA Assessor is not impartial or independent, but rather is an employee of the Department: CB 61;
m)on 30 April 2015 the Department wrote to the applicant inviting him to comment on information relevant to his ITOA, specifically the responses the Department had produced to the issues the applicant raised in his previous correspondence: CB 63-68 (“Department’s April 2015 Letter”);
n)the applicant responded to the Department’s April 2015 Letter on 7 May 2015 (“Applicant’s May 2015 Letter”) as follows:
i)his father died in November 2014 from long standing injuries to his right eye sustained in a conflict with a rival clan, and in his Protection Visa he made claims against the Papua New Guinea government and police force that if he was returned to Papua New Guinea his rival enemies work in the police force, the Papua New Guinea Foreign Affairs Department and other government agencies, so he is scared: CB 69;
ii)all the information that was released was valuable and worth protecting: CB 69; and
iii)it is not safe for him as an individual as anyone working in the Papua New Guinea government sector could be linked to cyber criminals and hackers who want to forge his identity and destroy his life, or the internet hackers might be his tribal enemy who were stalking him, and his life has been stolen because they might use the “personal identities to track me down and this would be very sad if I face such experience in the future”: CB 70; and
o)the ITOA was finalised on 2 June 2015 with a finding that Australia's non-refoulement obligations were not engaged: CB 71-91.
ITOA
In the ITOA, the ITOA Assessor:
a)outlined the applicant’s migration history, the background to the Data Breach, and the correspondence between the Department and the applicant, including summarising the responses in the Applicant’s July 2014 Letter and the Applicant’s January 2015 Letter, and referred to the Applicant’s May 2015 Letter: CB 71-73;
b)noted the material and information before her, and explained the law and principles of Australia’s non-refoulement obligations: CB 74-75;
c)referred to the Department’s April 2015 Letter, and:
i)noted that that letter “put” to the applicant adverse information: CB 75;
ii)provided a detailed analysis of the information and reasons as to why the information was “adverse” and required to be “put”: CB 75-77;
iii)referred to various sources of country information: CB 77-78;
iv)considered changes in country circumstances since the delivery of the Delegate’s Decision and the Tribunal Decision: CB 79;
v)dealt with and put to the applicant relevant findings from the Delegate’s Decision and the Tribunal Decision, and noted that having regard to the fact that there was a three year delay in the applicant making his Protection Visa claim, that it may be open to the ITOA Assessor to conclude that the applicant’s fear of protection related harm did not have a material basis: CB 79; and
vi)noted the response by way of the Applicant’s May 2015 Letter: CB 79;
d)considered the applicant's claims that he feared harm as a result of:
i)a land dispute with rival clans;
ii)problems with the police and local authorities and problems due to the Data Breach, including those specifically raised by the applicant, being harm from the Papua New Guinea authorities; and
iii)harm from foreign security and intelligence agencies, terrorist organisations and criminal syndicates: CB 80-84;
e)in relation to the land dispute:
i)accepted that the applicant was a member of a particular clan and that his clan had engaged in a long-running dispute over land ownership and that this land dispute resulted in violence directed towards the applicant and his family between 1997 and 2004, but found that there was no evidence that supported the conclusion the applicant's family had experienced violence related to this dispute since 2004: CB 80-81;
ii)accepted that long-standing injuries associated with his clan's long-running conflict over access to land contributed to the applicant's father's death, which was corroborated by the Departmental record, but expressed the view that this did not “materially change, or contravene”, the findings in the Delegate’s Decision or the Tribunal Decision that the applicant would not face serious or significant harm as a result of the land dispute: CB 80;
iii)noted that country information indicated that clan land disputes are relatively common in Papua New Guinea but was not satisfied, in the applicant's particular circumstances, where there was an absence of a pattern of violence or mistreatment for over a decade, that there was a compelling reason that gave rise to a well-founded fear of persecution or significant harm on that basis: CB 81; and
iv)found that there was no evidence sufficient to hold that the applicant would face harm on the basis of the land dispute now or in the foreseeable future, even when considered with other elements of his claim relating to the Data Breach: CB 81;
f)in relation to the applicant's claims based on problems with the police and local authorities:
i)was not satisfied that the applicant's claim that he would be harmed by police in relation to the land dispute had a factual basis, particularly where his family had engaged with local courts and the authorities regarding the land dispute, which suggested the applicant, or his family, did not have an adverse profile with the authorities: CB 82; and
ii)was satisfied that the applicant and his family had experienced harassment and violence at the hands of the local authorities, “notably in 2008”, but found that this took the form of a random act and was not systematic, and that there was insufficient evidence to support a finding that the applicant will be the target of police harm now or in the foreseeable future: CB 82;
g)in relation to the applicant's claims based on problems due to the Data Breach:
i)was of the view that there was no substantial basis to the applicant's claim that the Papua New Guinea government or society had access to the details and specifics of his claims for protection in Australia as it was confirmed, and this had been communicated to the applicant, that the substance of the Protection Visa application was not disclosed in the Data Breach: CB 82;
ii)was not satisfied that there was any material basis to the applicant's claim that he would be of interest to the Papua New Guinea government due to the Data Breach and was not satisfied that he was at risk of government harm on this basis, nor that there was a factual basis to the applicant's claim that the private sector, terrorist organisations, foreign governments and intelligence agencies had accessed the applicant's details or would have an interest in the information or use it to harm the applicant: CB 83;
iii)noted the applicant was unable to offer any meaningful countervailing evidence to found the applicant's claim that criminals could have accessed his information to harm him, and noted that there was nothing to indicate that the applicant possessed any other relevant personal attribute that, in conjunction with the Data Breach, would put him at risk of harm: CB 83;
iv)accepted the Papua New Guinea government could infer, as a result of the Data Breach, that the applicant was a failed asylum seeker but found the lack of any supporting evidence or adverse profile meant it was not likely the applicant would be harmed, and country information suggests the Papua New Guinea government has cooperated with the United Nations to protect and offer assistance to returning refugees and asylum seekers: CB 83;
v)appreciated that cyber-criminals operate and engage in identity theft, have considerable resources and target individuals for information, but did not accept they would either directly or indirectly target the applicant and was unconvinced any information pertaining to the applicant would be useful or valuable: CB 84; and
vi)expressed the view that the applicant was not at risk of harm on the basis of the Data Breach: CB 84;
h)found an essential reason for the harm the applicant feared was based upon grounds of race and identifying as a member of a particular social group (his tribe) and that the harm feared was serious harm and systemic and discriminatory conduct, thus satisfying s.91R(1)(a)-(c) of the Migration Act, however found the applicant did not have a real chance of being persecuted because of those reasons, and therefore the fear of persecution was not well-founded: CB 85-86;
i)concluded that the applicant did not have a real chance of being persecuted for a Refugees Convention reason and that he was not a refugee within the meaning of Article 1A of the Refugees Convention: CB 87; and
j)was not satisfied that the applicant had a real chance of being subject to significant harm should he be returned to Papua New Guinea and was not satisfied that the applicant was a person in respect of whom Australia has non-refoulement obligations: CB 87.
Judicial Review Application
Background
The proceedings in this Court have been on foot for some time, and it is necessary for the Court to detail the events that have occurred as the matter progressed to the final hearing on 20 April 2018:
a)following the applicant filing his Judicial Review Application on 25 June 2015, a Registrar of this Court made orders on 16 September 2015 programming the matter and listing the final hearing for 28 April 2016;
b)on 2 September 2015 the Full Court of the Federal Court delivered judgment in SZSSJ v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 (“SZSSJ-FCAFC”), and the issues determined in SZSSJ-FCAFC were of some relevance and significance to the Judicial Review Application;
c)on 11 March 2016 the High Court granted special leave to the Minister to appeal from the judgment in SZSSJ-FCAFC, and as a result on 12 April 2016 the Court made orders by consent vacating the hearing on 28 April 2016 and directing that this matter be relisted for hearing following determination of the Minister’s appeal to the High Court;
d)on 27 July 2016 the High Court delivered judgment in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180; (2016) 90 ALJR 901; (2016) 334 ALR 653 (“SZSSJ-HC”) and on 12 August 2016 this matter was relisted for final hearing on 1 December 2016, though for administrative reasons the matter was subsequently relisted for hearing on 2 December 2016;
e)on 10 November 2016 the Court made orders by consent vacating the hearing on 2 December 2016 and listing the matter for a directions hearing on a date to be fixed;
f)the matter was subsequently listed for hearing on 20 April 2018, and by orders made on 5 May 2017 the applicant was given leave to file any amended application, further affidavits or outline of submissions, which he did not do; and
g)on 20 April 2018 the matter was finally heard with the applicant appearing by video-link from Cairns with the assistance of a Pidgin English interpreter.
At the commencement of the hearing on 20 April 2018 the applicant advised the Court he required the interpreter to be on “standby,” and he proceeded to give his opening submissions in English. In the midst of Counsel for the Minister making his submissions it became apparent the video-link was no longer working. The Court adjourned to allow the video-link to be re-established and upon returning Counsel for the Minister (who was in Perth) repeated his oral submissions in full for the benefit of the applicant. When making his submissions in reply the applicant spoke in Pidgin English, and the interpreter interpreted the applicant’s submissions from Pidgin English to English.
Grounds
The 19 grounds on which the above relief is sought are set out or referred to below: see [23] (grounds 1-7), [24] (ground 8), [26] (ground 9), [30] (grounds 10-13), [35] (grounds 14-15), [38] (ground 16), [65] (grounds 17-18) and [69] (ground 19).
The applicant’s filed materials
The applicant filed an affidavit on 7 September 2016, affirmed on 6 September 2016 (“Applicant’s Affidavit”), providing what were described as “Supplementary Considerations.” The applicant also filed a written outline of submissions on 7 September 2016 (“Applicant’s Written Submissions”).
The Applicant’s Affidavit
The Applicant’s Affidavit comprises 19 paragraphs and 16 annexures.
The Minister submitted the Court should not have regard to the Applicant’s Affidavit as the evidence lacked relevance to the present matter.
At [3] of the Applicant’s Affidavit he indicates that he had not been able to present certain evidence to the ITOA, the Delegate or the Tribunal due to circumstances beyond his control, and seeks to now present that evidence and have the Court take it into consideration, and at [20] of the Applicant’s Affidavit he says that he has established an obligation on the part of Australia to grant him protection. At [4]-[19] of the Applicant’s Affidavit is a list of documents marked as annexures, including:
a)maps, photographs of, and (untranslated) information about, his village;
b)a series of court documents and police reports pertaining to the applicant’s claimed land dispute predominantly dated in 2007, though one document was dated 2013;
c)photographs of injuries suffered seemingly because of the land dispute;
d)various medical reports (including the applicant’s father’s death certificate) dated predominantly in 2008, save for the death certificate dated in 2014; and
e)what appears to be a “To Whom it May Concern” letter dated 22 March 2016 from the Talasea Police referring to the land dispute, and that it is still ongoing in the District Land Court in Papua New Guinea.
It is not open to the Court to admit new evidence or materials from the applicant for the purpose of asking the Court to disagree with a factual conclusion reached by the administrative decision-maker, and where the Court does admit such evidence it will engage in impermissible merits review: Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 (“Tesic”) at [53]-[55] per Reeves, Robertson and Rangiah JJ, contrary to the long-standing principle arising from Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. On the basis that what is actually sought by the applicant is merits review of the ITOA (and arguably also the Delegate’s Decision from 2014): see [14]-[17] below, the Court cannot therefore consider the substantive material in the Applicant’s Affidavit, and the Minister’s objection should be upheld, and [3] to [20] of the Applicant’s Affidavit, plus annexures, must be struck out. There will be an order accordingly.
The Applicant’s Written Submissions
The Applicant’s Written Submissions went into great detail to provide information from various sources, which were variously footnoted and included appendices.
In Part I of the Applicant’s Written Submissions, headed up “INTRODUCTION”, the applicant:
a)states he was one of the 9,258 asylum seekers affected by the Data Breach;
b)identifies letters he has received from the Department in respect of the Data Breach; and
c)notes that he was the subject of an ITOA that found “Australia does not have non-refoulement obligations to Me”, and that the Judicial Review Application was “an appeal” against the ITOA.
In Part II of the Applicant’s Written Submissions, headed up “Consideration of CLAIMS”, the applicant at [5]-[13] sets out certain matters individually stated in certain paragraphs by “The Decision Maker (the “Third Respondent”) in Her Decision Record” (bold emphasis in original; underlining added). The applicant in each submission under Part II then takes issue with what was stated by the Delegate in each of the challenged paragraphs, and the applicant also refers to information which the applicant says refutes the statement, and often adds his own submission or remark as a conclusion in relation to the challenged paragraph, and thus in each case the specific matters sought to be dealt with are matters in the Delegate’s Decision (made by a male and not a female), and not that of the ITOA Assessor. The applicant refers to:
a)the Delegate’s Decision at CB 36 and a statement that certain tribes attempted to chase inhabitants off land so that they could claim it, and makes submissions as to the nature of the land concerned, whether the tribes who had chased the inhabitants off were legitimate or non-legitimate custodians, the role of his father in developing the land in the relevant district, and issues associated with police brutality and ineffective policing;
b)the Delegate’s Decision at CB 36, and the applicant’s assertions about a 2008 police raid during which it was asserted that the police hit family members and that this was a common occurrence, and then makes submissions by reference to a Human Rights Watch 2014 Report and that report’s observations in relation to police violence;
c)the Delegate’s description of the applicant’s claims that he was attacked on three occasions by members of other tribes, and that he did not report the matter to the police as they would not investigate it: CB 37, and then makes submissions concerning police brutality by reference to certain country information;
d)the Delegate’s reference to the applicant’s submission that the police attended but took no action against the perpetrators: CB 36, and then makes a submission concerning the arrest of police for certain crimes related to assaults and threats, but in respect of which none have been convicted, and to the fact that villages now defend themselves and deal with threats and assaults because the police refuse to intervene, often on the basis of inter-tribal connections by marriage or blood, which has seen the police promote illegal land grabbing;
e)the Delegate’s Decision and findings by the Delegate that even if certain documents existed, the applicant’s family in other villages felt safe enough to return to their home village in 2000 and remained there, and that the last alleged incident at the hands of rival tribes occurred in 2004, and that if the applicant’s family felt threatened in the village then they would have moved away: CB 37. The applicant made submissions in respect of this asserting that he now had documented evidence in relation to who were the legitimate custodians of the land, the nature of land and land ownership and customs in Papua New Guinea, and the fact that returning to their lands did not mean that his family did not fear the threats that they faced and may encounter, and went on to make observations about the nature of inter-tribal conflict in Papua New Guinean society;
f)refers to the Delegate asking the question as to whether or not the applicant could re-locate to another part of Papua New Guinea: CB 38, and goes on to make submissions as to why the applicant cannot re-locate within Papua New Guinea by reference to customary land ownership over generations, and the inability or lack of jurisdiction of the government to re-settle people on customary land, and to the difficulties of re-settlement including ethnic clashes, the difficulties of land shortage as population increases and the increase in land disputation between members of the same family;
g)refers to the Delegate making reference to questions asked of the applicant during a Compliance Client Interview, and inconsistent answers as to the applicant’s intention to depart Australia once he had obtained an education for the purpose of supporting his family, with the Delegate indicating that the applicant had initially indicated a willingness to depart Australia, but had more recently indicated that he wished to find a job in Australia and support his family in Papua New Guinea from Australia: CB 37. The applicant made submissions concerning whether or not he said what was attributed to him in terms of staying in Australia, the nature of a good education and work, and affirmed that his intention was to acquire a better education, find employment in Australia and support his family in Papua New Guinea;
h)referred to the Delegate’s comments concerning whether or not the applicant was drunk or sober at the time of the Client Compliance Interview: CB 37, and made submissions refuting the Delegate’s finding that he “may well” have been sober, and asserted that at the time he was interviewed there was still alcohol in his system and he had had insufficient rest resulting in limited judgment making him prone to make claims which were now being used against him; and
i)referred to the Delegate’s findings with respect to the applicant’s delay in applying for a Protection Visa, and the applicant remaining in Australia unlawfully for over 18 months: CB 38, and made submissions asserting that he was unaware of the Protection Visa provisions, that he did not want to show himself to be in fear of being detained and deported, did not know of the existence of migration agents or that assistance could be obtained from the Department, and that remaining unlawfully was not a “choice”, and refuted the claim that he had chosen not to consult a migration agent or the Department regarding his situation.
In Part III of the Applicant’s Written Submissions at [20], headed up “CONCLUSION” the applicant indicated that he “wished to submit these Statement of Facts in support of my Appeal” against the ITOA, and submitted that he had established that he had a well-founded fear of returning to Papua New Guinea and that Australia owed him protection obligations accordingly. The reference to the “Statement of Facts” appears to be a reference to Parts I and II of the Applicant’s Written Submissions.
The applicant made oral submissions at hearing as follows:
a)he was in immigration detention for three years (the Court notes that the applicant went into immigration detention on 7 November 2013: CB 72) and was unable to access the documents he needed for his case, but he now has all the documents he needs to make his case and he wishes to provide them to the Court;
b)he was one of those persons involved in the Data Breach, and he received two letters from the Department, and is now waiting for the Privacy Commissioner to respond to him;
c)the fight on his land is still ongoing, his family is still affected, and there are still issues surrounding the case as his family have been assaulted and he has pictures that they are suffering and targeted by the police;
d)he has a wife and a family now, he volunteers in the community, and he will soon receive a college qualification; and
e)he believes that he is the type of person the Australian law should protect.
Minister’s submissions
The Minister’s submissions referred to the 19 grounds of the applicant’s Judicial Review Application and submitted that those grounds are identical, or practically identical, to grounds previously considered on many occasions by this Court (and the Federal Court on appeal) which have been held to have no merit: see, for example BTA15 v Minister for Immigration & Border Protection [2017] FCA 422 (“BTA15-FC”); AKR15 v Minister for Immigration & Ors [2015] FCCA 1734; (2015) 297 FLR 224; (“AKR15”); ARZ15 v Minister for Immigration & Anor [2018] FCCA 204 (“ARZ15”). The Minister further noted that arguments pursued by the applicant were those pursued in SZSSJ-HC which were ultimately rejected by the High Court. For the reasons expounded in those cases, the Minister submitted the applicant’s Judicial Review Application should also fail, and that the Judicial Review Application should be dismissed.
Consideration of the Judicial Review Application
Jurisdictional error required
This Court does not have the jurisdiction to review the merits of the ITOA, or determine the applicant’s claim for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This Court must exercise a power of judicial review limited to determining whether the ITOA is affected by jurisdictional error: Migration Act, ss.474 and 476; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J.
Grounds generally
The grounds are “template” grounds, and generally are the same, or substantially the same, as grounds in other judicial review applications dismissed by this Court, and from which appeals from some of those dismissals have been dismissed by the Federal Court: BTA15-FC at [19] and [21] per Gilmour J; BTA15 v Minister for Immigration & Ors [2017] FCCA 417 (“BTA15-FCCA”) at [12] per Judge Lucev; BNC15 v Minister for Immigration & Border Protection [2017] FCA 1318 (“BNC15-FC”) at [39]-[41] and [46] per McKerracher J; BNC15 v Minister for Immigration & Anor [2017] FCCA 2094 [(“BNC15-FCCA”)] at [4]-[20] per Judge Lucev; AQF15 v Minister for Immigration & Anor [2017] FCCA 977 at [23]-[71] per Judge Lucev; ARZ15 at [49]-[85] per Judge Barnes; AKR15 at [24] and [59]-[77] per Judge Smith (“AKR15”).
In BTA15-FC at [19] per Gilmour J the Federal Court observed that it was “unable to discern any relevant error” in the Reasons for Judgment of this Court in relation to the same grounds as are presently under consideration in this case. In BNC15-FC at [46] per McKerracher J the Federal Court, on appeal in relation to the same grounds, said that “the applicant has not demonstrated any prima facie case or a serious issue to be tried”.
The Court notes that the judgments in BTA15-FC and BNC15-FC are directly on point and must be followed as binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ. In fairness to the applicant, the Court has spelt out its rationale for dismissing the Judicial Review Application, albeit that it is essentially the same as that in BTA15-FCCA, BNC15-FCCA, and the other cases set out above: see [20] above.
Grounds 1-7
Grounds 1-7 recount the factual history of the matter which is not contested by the Minister or in any way disputed, and nothing in those grounds asserts, or gives rise to, any legal error in the ITOA. It follows that grounds 1-7 do not identify or establish any legal error in the ITOA Decision.
Ground 8
Ground 8 of the Judicial Review Application states:
8. The release of the applicant's personal information by the First and or Second Respondents, their servants or agents, was contrary to law.
Particulars
1. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
2. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
In AKR15 at [59] per Judge Smith this Court considered, and dismissed, an identically worded ground on the basis that this ground does no more than provide a factual basis for an applicant’s contention of a denial of procedural fairness in relation to the Data Breach. The reasoning in AKR15 at [59] per Judge Smith was cited in BTA15-FCCA at [12] per Judge Lucev, which was upheld on appeal to the Federal Court in BTA15-FC at [19] and [21] per Gilmour J. The reasoning in AKR15 at [59] per Judge Smith has been followed by this Court in a number of subsequent judgments: see, for example, ALZ15 v Minister for Immigration & Others [2015] FCCA 1947 (“ALZ15”) at [49] per Judge Smith; AFH15 v Minister for Immigration & Border Protection [2016] FCCA 99; (2016) 308 FLR 369 (“AFH15”) at [54] per Judge Smith; CDM16 v Minister for Immigration & Anor [2016] FCCA 2758 (“CDM16”) at [25] per Judge Driver. Having regard to the judgments of the Federal Court on appeal from this Court in BTA15-FC and BNC15-FC and the judgments of this Court otherwise in relation to this ground of appeal, it follows that in light of Federal Court authority finding no error in the Court dismissing ground 8 for those reasons, and likewise in the judgments of this Court, that the Court is bound to find, and does find, that ground 8 is not made out.
Ground 9
Ground 9 of the Judicial Review Application is as follows:
9. The release of the applicant's personal information has caused the applicant to have a well founded fear that his removal from Australia and return to [country of origin] will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
It is pertinent to note that the Data Breach:
a)“did not include any information about protections claims that … [the applicant] … may have made …”: CB 73; and
b)indicates that the applicant “was in Australia on a Student visa and stated he was an “over-stayer””: CB 76.
It is not for this Court to determine if it will be a breach of Australia’s non-refoulement obligations should the applicant be removed from Australia, and the applicant’s assertion gives no basis for any relief by this Court and is plainly an impermissible attack on the merits of the ITOA: AKR15 at [60] per Judge Smith; ALZ15 at [50] per Judge Smith; AFH15 at [54] per Judge Smith; CDM16 at [26]-[28] per Judge Driver; BTA15-FCCA at [15] per Judge Lucev, and BTA15-FC; BNC15-FCCA at [10] per Judge Lucev, and BNC15-FC.
It follows that ground 9 is not made out.
Grounds 10-13
Grounds 10-13 of the Judicial Review Application are as follows:
10. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
3. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
11. The 12 March 2014 Letter contained a representation as follows (“the 12 March 2014 Representation”):
“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.”
12. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
13. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
Grounds 10-13 rely on the contents of the Secretary’s 12 March 2014 Letter to the applicant: CB 50, and see [3(g)] above. Grounds 10-13 assert that the Secretary’s 12 March 2014 Letter conveyed a representation that executive power pursuant to s.61 of the Constitution will be exercised in relation to the applicant. The applicant’s third prayer for relief seeks a declaration that the Secretary’s 12 March 2014 Letter involved a representation that the power vested in the Secretary by s.61 of the Constitution will be used in favour of the applicant.
These grounds are misconceived, because:
a)the Secretary’s 12 March 2014 Letter does not convey the representation relied upon. Even if, as may be the case, the ITOA process is a manifestation of executive power for the purpose of execution or maintenance of a law of the Commonwealth, there is nothing in the Secretary’s 12 March 2014 Letter which suggests that any exercise of executive power under s.61 of the Constitution (if that be what the ITOA is) “will be used in favour of the applicant”. Rather, the Secretary’s 12 March 2014 Letter says that the implications for the applicant will be assessed as part of the Department’s “normal processes”, which, for reasons set out below: see [67]-[69] below, includes the ITOA; and
b)in SZWCP v Minister for Immigration& Anor [2015] FCCA 802 (“SZWCP”) at [3] per Judge Street, SZWCH v Minister for Immigration & Anor (No 3) [2015] FCCA 1128 (“SZWCH”) at [5] per Judge Street (from which an appeal was dismissed by the Federal Court: SZWCH v Minister for Immigration & Border Protection [2016] FCA 1551 (“SZWCH-Federal Court”), and an application to the High Court for special leave to appeal SZWCH-Federal Court was dismissed: SZWCH v Minister for Immigration & Border Protection [2017] HCASL 130) and followed in AKR15 at [61] per Judge Smith, it was said that no Constitutional issue arises with respect to the Secretary’s 12 March 2014 Letter (that letter being a letter which was sent, in the same or similar terms, to all persons affected by the Data Breach). With respect, that view is correct, because, assuming that the ITOA represents an exercise of the executive power under s.61 of the Constitution, no issue of constitutional validity or constitutional limitation on the exercise of that power arises in this case, or at least, none discernible to the Court on the basis of the applicant’s grounds 10-13.
For reasons otherwise set out: see [41]-[65] below, the applicant has been afforded procedural fairness in the ITOA process, whether that be a process for the purposes of s.61 of the Constitution, or otherwise.
It follows from the above that grounds 10-13 are not made out.
Grounds 14-15
Grounds 14 and 15 of the application are as follows:
14. On 25 July 2014 the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia's non-refoulement obligations. this process was instigated as the applicant's previous ITOA decision was affected by the Full Federal Court of Australia's decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
15. On [date of ITOA decision] the delegate made a finding that non·refoulement obligations are not engaged in the applicant's case.
The flawed nature of the template grounds in the Judicial Review Application is made manifest by ground 14 which has no relevance or factual connection to the applicant’s circumstances because:
a)the applicant’s ITOA commenced on 14 January 2015 (not 25 July 2014); and
b)the applicant was never the subject of a previous ITOA, rather the ITOA was instigated as a result of the Data Breach.
Grounds 14 and 15 are merely further factual assertions, albeit an incorrect assertion of facts in ground 14. Ground 15 refers to a ‘delegate’ as opposed to an ‘assessor’, but does not allege any error in the ITOA. Grounds 14 and 15 are therefore not made out: BTA15-FCCA at [23]-[27] per Judge Lucev; BTA15-FC.
Ground 16
Ground 16 is as follows:
16. In the ITOA assessment the delegate denied the applicant procedural fairness.
Particulars
The delegate accepted that he was in detention on 31 January 2014 and his personal details may have been unintentionally disclosed online;
The delegate did not disclose any of the information held by the Department to the applicant in relation to the data breach for comment;
The delegate as the employee of the Department that disclosed the applicant's name and personal details on the internet did not bring an impartial mind to the decision-making process and is in a conflict of interest; and
The ITOA process is not an appropriate and fair process for determining the applicant's data breach claim.
The applicant advances three matters in the particulars in support of this ground, as follows:
a)the “delegate” did not “disclose any of the information held by the Department to the applicant in relation to the data breach for comment”;
b)the “delegate”, as the employee of the Department that was involved in the Data Breach, “did not bring an impartial mind to the decision-making process and is in a conflict of interest”; and
c)the ITOA is not an “appropriate and fair process for determining the applicant’s data breach claim”.
The “delegate” for the purposes of this ground can be assumed to be the ITOA Assessor (otherwise the ground is meaningless).
In SZSSJ-HC at [83]-[84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court said as follows (footnote omitted):
83 Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
84 Extraordinary as they are, the circumstances of the Data Breach do not warrant a departure from those ordinary requirements. That the Department was responsible for its occurrence is regrettable. That the Department was responsible for its occurrence nevertheless provides no foundation for apprehending that an officer of the Department tasked with assessing the consequences of the Data Breach for an individual applicant would not bring an impartial and unprejudiced mind to the conduct of an assessment. Nor does that circumstance provide a principled foundation for converting the ordinary requirement of procedural fairness that an affected person be given notice into a duty that the Department reveal “all that it knows” about the Data Breach.
Non-disclosure
In SZSSJ-HC at [84] and [92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, the High Court observed that in the circumstances of the Data Breach there was an obligation in the ITOA process to deal with the Data Breach having regard to the ordinary requirements of procedural fairness.
In the Secretary’s 12 March 2014 Letter the Department sets out the fact of the Data Breach, and the extent of the disclosure relevant to the applicant, including the information that it was possible to access as a consequence of the Data Breach, and advised that it was assessing the implications for the applicant, and that the applicant, may raise any concerns during that assessment process (which was the ITOA process). In the Court’s view the Secretary’s 12 March 2014 Letter is sufficient to dispose of the non-disclosure aspect of this ground as lacking in substance. It plainly discloses the nature of the information held by the Department which was released as a consequence of the Data Breach. The Department’s July 2014 Letter reiterated the content of the Secretary’s 12 March 2014 Letter, and invited the applicant to make submissions in relation to any concerns that he had about the Data Breach and its impact on his protection claims. The Applicant’s July 2014 Letter responded to the Department’s 14 July 2014 Letter, and significantly, nothing in the Applicant’s July 2014 Letter, or any other correspondence from the applicant, points to any possible or likely omissions from the information disclosed to the applicant as a consequence of the Data Breach. In short, there is nothing to suggest that the Department held any information that was credible, relevant and significant to the ITOA decision-making process that it did not disclose to the applicant and give him the opportunity to address: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; CLR at 587 per Mason J and 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 at [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; Snedden v Minister for Justice & Anor [2014] FCAFC 156; (2014) 230 FCR 82; (2014) 315 ALR 352; (2014) 145 ALD 273 at [175] per Middleton and Wigney JJ. The applicant’s argument appears to be that addressed in SZSSJ-HC at [83]-[84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, that is, an assertion that the Department was under an obligation to reveal “all that it knows” about the Data Breach. The asserted obligation was dealt with in SZSSJ-HC at [83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ as set out at [40] above where it was found that there was not a procedural fairness obligation in those terms, which appear to be the terms now asserted by the applicant.
It follows from the above that the allegation of non-disclosure is not made out.
Bias
As to the allegation that the ITOA Assessor did not bring an impartial mind to the ITOA and that that was a contravention of the requirements of procedural fairness, the High Court, addressed a similar argument in SZSSJ-HC at [84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, which is set out at [40] above, and found that an allegation that an officer of the Department tasked with assessing the consequences of the Data Breach for an individual would not bring an impartial and unprejudiced mind to the conduct of that assessment had “no foundation” even though the Department was responsible for the Data Breach.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”) at [27] per Gleeson CJ, Gaudron and Gummow JJ. In this case there is no evidence of bias, and no more than a mere assertion by the applicant of bias, and that does not meet the test set out in Jia Legeng and Ex parte H.
In this case, the allegation of bias arises in the same statutory and factual context as that in AKR15 at [72] per Judge Smith where this Court observed as follows:
The nature of the “interest” which the applicant seems to say that … [the Assessor] had was that she was employed in the very Department that was responsible for the data breach. However, once the nature of … [the Assessor’s] role is properly understood, it cannot be said that there is any logical connection between her employment and the possibility that she might stray from the true course of decision making. First, … [the Assessor] was not asked to make any determination about the responsibility for the breach but, to the contrary, was instructed to accept not only that it occurred but also that it may have resulted in the applicant’s details being known to foreign entities. Assuming, as the applicant appears to, that it was in the Department’s interest that the breach be covered up, that was an instruction against the interests of the Department. Second, … [the Assessor’s] task was to determine whether the breach gave rise to any protection obligation being owed by Australia in respect of the applicant. In that respect, there is nothing to suggest that it was in the Department’s interest (and, by extension, in … [the Assessor’s] interest) that there be found to be no such obligations. Such a possibility could arise if there was bad faith in the Department and also in … [the Assessor], but there is not a skerrick of evidence to suggest that.
As in AKR15 there is, in this case, not a skerrick of evidence to support a finding of bias on the part of the ITOA Assessor, and there is therefore no evidentiary foundation in this case for the allegation that the ITOA Assessor did not bring an impartial and unprejudiced mind to the ITOA process, and there was therefore no denial of procedural fairness to the applicant on this basis: SZSSJ-HC at [84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; AKR15 at [72] per Judge Smith. It follows that the allegation of bias is not made out.
Process
The applicant’s allegation that the ITOA was not an appropriate and fair process for determining the applicant’s Data Breach claim has the appearance of a catch-all claim. It lacks particulars, and for that reason alone cannot succeed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited). Otherwise, the Court observes that:
a)the ITOA process was substantially the same as that considered by the High Court in SZSSJ-HC: SZSSJ-HC at [24]-[29] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; and
b)the relevant requirements of procedural fairness applicable to the ITOA process were usefully summarised by the High Court in SZSSJ-HC at [82]-[94] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, and nothing in the reasons of the High Court in SZSSJ-HC at [84]-[92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ suggests any denial of procedural fairness, or any “practical injustice”, arose from the process that was adopted by the ITOA in this case.
There is nothing in the circumstances of this case which suggest that the Court should reach a different conclusion to that reached by the High Court in SZSSJ-HC. The applicant’s claim founded upon an assertion that the ITOA process was not appropriate or fair is without any basis in fact or law.
The Applicant’s Written Submissions (see too the Applicant’s July 2014 Letter) suggested that he was unable to provide an adequate and timely response as a result of his being in immigration detention and without access to a migration agent or lawyer.
The mere fact that an applicant does not have publically funded legal representation is, of itself, insufficient to constitute procedural unfairness: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68, (2016) 241 FCR 30; (2016) 338 ALR 551 (“AMF15”) at [51]-[52] per Flick, Griffiths and Perry JJ, although it is a factor which may be taken into account, along with other relevant factors, in determining whether there has been a denial of procedural fairness: AMF15 at [52] per Flick, Griffiths and Perry JJ.
In relation to the applicant being in detention the Court notes that:
a)in WZAUG v Minister for Immigration & Anor [2017] FCCA 771 at [28] per Judge Lucev (from which an appeal by the applicant has recently been dismissed: WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649) the Court, in the context of an application for an extension of time under s.477(2) of the Migration Act, observed that the fact that the applicant was in immigration detention did not of itself explain the delay, and that the Court needed to be cautious in placing too much reliance on such a matter lest too ready an acceptance of such a matter make an extension of time the rule and not an exception on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1, CLR at 553 per McHugh J; and
b)in SZVCP v Minister for Immigration & Ors(No 3) [2016] FCCA 3328 at [122] per Judge Street this Court held that an applicant being in immigration detention did not explain the delay for the purposes of an extension of time application.
It appears that the applicant was in detention for a period of three years commencing in November 2013. Thus, the applicant was in detention during the ITOA process, but also during the process of consideration of his protection visa claims (lodged with the Department in December 2013), by the Delegate and then the Tribunal, and then on judicial review to this Court, and then on appeal to the Federal Court, a process which finalised with the handing down of the Federal Court’s judgment in SZUCF-FC in November 2014.
From an examination of the Delegate’s Decision, the Tribunal Decision and the judgments in SZUCF-FCCA and SZUCF-FC it does not appear that the applicant’s claims have changed to any significant degree during the course of the abovementioned decisions and judgments, and nor do the claims appear to have changed during the ITOA process.
The complaint now made concerning the process is that the applicant’s capacity to prepare his case, and in particular, his capacity to gather information related to his case, whilst he was in detention, was affected by his being in detention, and by his not having the assistance of a migration agent or lawyer. The Court does not underestimate the difficulty for an applicant in preparing for a case, or a series of cases as here, whilst in detention. In this case, the Court notes that:
a)the Delegate’s Decision notes that the applicant had said that his ancestors had signed documents concerning ownership of the relevant land and that these documents were with his father: CB 37. The applicant further said that his father would try and send copies of the documents and the applicant was given two weeks to submit those documents, but at the time of the Delegate’s Decision those documents had not been received: CB 37;
b)the Tribunal Decision at CB 46-47 at [22] indicates that the applicant provided several documents to the Tribunal including a letter from the applicant’s father addressed to the detention centre in which the applicant was then detained, and which indicated that the father was currently fighting for his customary land in court in Papua New Guinea. The Tribunal Decision does not otherwise indicate that there was any difficulty raised by the applicant in relation to the provision of documents to the Tribunal;
c)when the matter came before this Court for judicial review of the Tribunal Decision the applicant alleged that:
I have more evidence and enough information for a complementary protection review.
SZUCF-FCCA at [8] per Judge Cameron, but that ground was rejected on the basis that what the applicant sought was to have his case reopened to reargue the merits of his Protection Visa application by reference to additional material, and that it was not the task of the Court to conduct a new merits review: SZUCF-FCCA at [10] per Judge Cameron; and
d)in SZUCF-FC on appeal from SZUCF-FCCA there is no indication that the “more evidence” ground raised before this Court was the subject of any further comment by the applicant, and the Federal Court rejected that ground, and a number of other grounds, as being concerned with the merits of the applicant’s claim, and found that they were “rightly rejected” by this Court: SZUCF-FC at [14] per Buchanan J.
The applicant now asserts that he has fresh evidence (contained in the Applicant’s Affidavit) which he wishes the Court to consider on the hearing of the Judicial Review Application (a similar claim was made upon the hearing of the judicial review application resulting in the judgment in SZUFC-FCCA: see [54(c)] above). The applicant seemingly seeks to justify this plea on the basis that he could not readily obtain this evidence whilst in detention. The difficulties with these submissions are set hereunder.
Firstly, the Applicant’s Affidavit which the applicant seeks to rely on (but the majority of which has been struck out: see [12] above) is said to contain new information obtained by the applicant whilst actually in detention, and the Applicant’s Affidavit, together with the Applicant’s Written Submissions, which are detailed (also prepared whilst the applicant was in detention), negate his argument that he was not able to, or had insufficient time to, obtain and prepare material whilst in detention. That is particularly so where most of the material is historical, and all but a temporary order of the District Land Court of March 2013, the father’s death certificate from 2014 and a vague police report as to fighting over tribal lands dated March 2016, pre-date 2008 and therefore pre-date the ITOA process.
Secondly, there is no evidence of what the applicant did in detention, or was prevented from doing in detention, which restricted his capacity to obtain the documentary evidence now submitted in the Applicant’s Affidavit. There is no evidence from the applicant that he was prevented from doing anything he sought to do to obtain the documentary evidence. Nor is there evidence that the applicant was not granted any assistance that he might have sought whilst in detention to help prepare his case: Migration Act, s.256.
Thirdly, the applicant had over 14 months between the notification and the Secretary’s 12 March 2014 Letter of the intention to assess any implications of the Data Breach for the applicant, and the indication in that letter that he may “raise any concerns you have during those processes” and the finalisation of the ITOA on 2 June 2015: see [3(g) and (o)] above. During that time the Department wrote to the applicant twice: see the Department’s July 2014 and January 2015 Letters inviting him to submit materials in relation to the Data Breach and its implications for him, and once: see the Department’s April 2015 Letter, inviting him to comment on the Department’s responses to matters he had raised in the Applicant’s January 2015 Letter. The applicant does not appear to have responded at all to the Secretary’s 12 March 2014 Letter. The Department’s July 2014 and January 2015 Letters, and the Department’s May 2015 Letter, each elicited a response from the applicant. Apart from complaining about a lack of full access to what was called the KPMG Report (an issue dealt with in SZSSJ-HC: see [40] above), there was no complaint in the Applicant’s January and May 2015 Letters about his inability to access material of the kind now contained in the Applicant’s Affidavit (which it is worth reiterating was obtained by the applicant whilst in detention). In the absence of evidence as to what steps the applicant took during the ITOA process to obtain information such as that now contained in the Applicant’s Affidavit it is not possible to draw the conclusion that the applicant was prevented or inhibited from obtaining the information now contained in the Applicant’s Affidavit during the more than 14 months it took to complete the ITOA process.
Fourthly, the applicant does not explain how he obtained the material in the Applicant’s Affidavit whilst in detention, and what, if anything, changed to permit him to obtain those materials in the period between the ITOA finishing on 2 June 2015 and the Applicant’s Affidavit being sworn on 6 September 2016, rather than the earlier March 2014 to June 2015 ITOA process period, in circumstances where all but the father’s death certificate of 2014 and the vague police report of March 2016 were historical materials in the sense that they pre-dated the commencement of the ITOA process, and in most cases by some years.
Fifthly, it was not for the ITOA Assessor at the Department to ensure that the applicant made the best use of any opportunity that he had to obtain relevant materials in the course of the procedural fairness afforded to him by allowing the applicant to raise issues or respond to the Secretary’s 12 March 2014 Letter and the Department’s July 2014, January 2015 and April 2015 Letters: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; SZTDX v Minister for Immigration & Border Protection [2014] FCA 515 at [16] per Perry J.
Finally, save for the purpose of assessing the alleged denial of procedural fairness, any consideration of the materials now submitted in the Applicant’s Affidavit would constitute the Court engaging in impermissible merits review: Wu Shan Liang, CLR 272 per Brennan CJ, Toohey, McHugh and Gummow J.
In the above circumstances, there was no denial of procedural fairness as alleged by the applicant.
For the reasons set out in relation to the alleged non-disclosure, bias and process issues above, ground 16 is not made out.
Grounds 17-18
Grounds 17 and 18 of the application are as follows:
17. The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 march 2014 and stated as follows:
“It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second-last paragraph of the Department's letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
“It is not clear to me whether the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.”
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to [boat arrivals with no process- s46A or s195A][RRT decisions - s48B or s417] arising from the disclosure of the applicant's personal information.
Nothing in Grounds 17 and 18 provides any basis for the relief sought by the applicant. The applicant here was provided with an ITOA process in relation to the disclosure of his personal information as a result of the Data Breach, and was in fact provided with “… a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application”: SZWAJ v Minister for Immigration & Border Protection [2015] FCA 26 (“SZWAJ-2015”) at [10] per Greenwood J. Put differently, grounds 17 and 18 provide no basis for relief because what was contemplated by the Federal Court in SZWAJ-2015 was exactly what was provided to the applicant in this case.
In SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 (“SZWAJ-2016”) the Federal Court observed that the ITOA process was a normal process of the Department for a person in circumstances including those, as is the case here, where the person’s Protection Visa application had been considered and dealt with prior to consideration of the Data Breach: SZWAJ-2016 at [32] per Griffiths J; see also BTA15-FCCA at [46]-[48] per Judge Lucev.
In the above circumstances, it is plain that the ITOA process is part of a normal Departmental process, and that the applicant has had the benefit of that process. Grounds 17 and 18 are therefore not made out.
Ground 19
Ground 19 of the application is as follows:
19. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 or s198AD of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.
Having already found the ITOA satisfied the obligations of procedural fairness in affording the applicant an assessment of Australia's non-refoulement obligations in relation to the Data Breach: see [41]-[64] above, this ground cannot be made out. In any event, the terms of s.197C of the Migration Act clearly establish that any decision to remove the applicant under s.198 of the Migration Act without a further assessment of non-refoulement obligations would not involve any error of law: BTA15-FCC at [50]-[51] per Judge Lucev; BTA15-FC.
Ground 19 is not made out.
Applicant’s Written Submissions
The Applicant’s Written Submissions refer to specific paragraphs of the Delegate’s Decision: see [15] above. The Court need not deal with the Applicant’s Written Submissions at length. Essentially, they seek to invite the Court to undertake impermissible merits review of the Delegate’s Decision: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court notes that the Delegate’s Decision was the subject of merits review by the Tribunal which affirmed the Delegate’s Decision: see [3(e)] above and CB 43-49 in the Tribunal Decision, from which an application for judicial review of the Tribunal Decision was dismissed on 8 July 2014: CB 51; SZUCF-FCCA, and that an appeal from the judgment of this Court in SZUCF-FCCA was dismissed on 17 November 2014: SZUCF-FC. Thus, the Delegate’s Decision has been the subject of both merits review by the Tribunal, and judicial review by this Court, and in respect to the latter an appeal to the Federal Court was unsuccessful.
The Court cannot otherwise consider the matters set out in the Applicant’s Written Submissions because:
a)the Delegate’s Decision is a primary decision and this Court has no jurisdiction to review the Delegate’s Decision: Migration Act, s.476(2)(a) and (4);
b)even where the Delegate’s Decision may have been affected by an error, if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J. The Tribunal Decision is not flawed in that it was held not to be affected by jurisdictional error in SZUCF-FCCA, and that determination was upheld on appeal in SZUCF-FC;
c)the Protection Visa application has already been decided and is not the subject of review in the present proceeding; and
d)the doctrines of res judicata and issue estoppel further deny the applicant the opportunity to now appeal or review the Delegate’s Decision as the Delegate’s Decision was reviewed by the Tribunal Decision, which was judicially reviewed by this Court, and was the subject of an appeal to the Federal Court, and has therefore been finally determined: SZUCF-FCCA and SZUCF-FC.
There is nothing in the Applicant’s Written Submissions which establishes any legal error in the ITOA reviewable by this Court.
Oral Submissions
The applicant’s oral submissions:
a)reiterated that because of circumstances beyond his control, including his being in immigration detention, he was unable to obtain documents to support his case; and
b)raised claims of events and progress he has made since his release from detention, including education achievements, his starting a family and becoming involved in the community.
The claim made with respect to the applicant’s asserted inability to obtain documents whilst in immigration detention has been dealt with above: see [50]-[63] above, and does not provide a basis for this Court to find legal error in the ITOA. The claims made in respect of the applicant’s education and family have no relevance to the ITOA process, or this Court’s consideration of whether there was any legal error in the ITOA process.
In response to the Minister’s submissions the applicant gave a lengthy explanation and recount of the land dispute claims, providing dates of recent events, and stating that the land dispute was still ongoing. The claims the applicant raised at the hearing in his oral submissions simply sought to re-agitate the merits of his Protection Visa application and the ITOA process, and invite the Court to engage in impermissible merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Nothing in the applicant’s oral submissions at hearing establishes any legal error in the ITOA reviewable by this Court.
Conclusion and orders
The Court has concluded that the Judicial Review Application is not affected by any legal error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 25 May 2018
2
51
4