BEI16 v Minister for Immigration
[2016] FCCA 2611
•21 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEI16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2611 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – publication of personal information – whether the Tribunal erred in failing to consider the best interests of the applicant’s extended family – whether the Tribunal failed to acknowledge the Data Breach – whether the Tribunal made its decision without regard to the Data Breach material – whether the Tribunal correctly dealt with the possibility of the applicant’s past criminal history – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2), 501(3A) Privacy Act1988 (Cth) |
| Cases cited: ABC15 v Minister for Immigration & Border Protection [2015] FCA 1314 |
| Applicant: | BEI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 217 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 27 September 2016 |
| Date of Last Submission: | 27 September 2016 |
| Delivered at: | Sydney and by video-link to Perth and by telephone-link to Yonga Hill Immigration Detention Centre |
| Delivered on: | 21 October 2016 |
REPRESENTATION
| The Applicant appeared in person in Perth by video-link. |
| Solicitors for the Respondents: | Mr Corbould, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 217 of 2016
| BEI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Malta who arrived in Australia on 7 August 1970 on a Transitional Permanent (Class BF) visa and has lived here since. In 2004 he was convicted of and sentenced for sex offences against children. As a consequence, his visa was cancelled under s.501(3A) of the Migration Act1958 (Cth)[1]. On 24 August 2015 the applicant lodged an application for a protection visa. That application was refused by a delegate of the Minister and the applicant applied to the Administrative Appeals Tribunal for review of that decision. On 7 April 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a visa. The applicant now seeks judicial review of the Tribunal’s decision.
[1] Unless otherwise stated, all references to “the Act” are to Migration Act 1958 (Cth).
In order to succeed the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow he has not done so and the application must be dismissed.
Background
After the applicant’s visa was cancelled he was taken into immigration detention. In February 2014 a routine report released on the Department of Immigration’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. The applicant was amongst those whose personal information was released in this way. The information was accessible online for a short period of time before it was removed from the Department’s website. This incident has become known as the Data Breach.
The applicant was informed about the Data Breach in a letter from the Department dated 12 March 2014. Amongst other things, that letter stated:
…
The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you are detained, reason 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.
…
In his application for a protection visa, the applicant claimed that his life was at permanent threat by reason of the Data Breach. The Tribunal summarised the applicant’s claims in [10] of its statement of reasons as follows:
[10]The applicant claims that he departed Malta when he was 22 years of age as a migrant looking for a better life and future. He fears returning to Malta as his personal details have been exposed worldwide by the department in what is known as the “data breach” in February 2014 and his life is at a permanent threat. A fellow countryman in the same situation told him that the Maltese Government has made a statement that they do not want him back as he has lived in Australia 45 years and has a son who was born here. His siblings and all his family are in Australia and they call Australia “home”. He has no family members in Malta and if he returns he will be homeless apart from being discriminated against about his past. He indicates he has not experienced any harm in the past in Malta. He states people make one big mistake in life and genuinely try to make amends for it but they cannot change the past. Since his personal history has been exposed by the department’s “data breach” he is classed as a criminal therefore as part of this social group he will face permanent threat of his life with permanent discrimination and deprived in any area of his life by the community and authorities alike and deemed as an outcast in the Maltese community. He has lived in Australia for 45 years and has not been back to his country since leaving from better life. Therefore he is already classed as abandoning his fellow man and thus the Maltese Government has already said they don’t want him. The department’s “data breach” has exposed his criminal history worldwide and thus his life is at permanent threat as he does not know who to trust. He does not have anyone in Malta and since it is a very small country he does not have anywhere to be safe.
In addition to a letter from a Catholic priest, the applicant provided a copy of a letter dated 23 January 2015 sent by him to the High Commissioner of Malta in support of his visa application. After setting out his personal details in the letter, the applicant asked the High Commissioner to reconsider the applicant’s Australian status.
The applicant appeared at the hearing conducted by the Tribunal on 1 April 2016. He expanded upon his claims at that hearing. The applicant told the Tribunal that he needed a visa to stay in Australia to look after his son who had a disability and was living with his godmother. Contrary to earlier assertions, the applicant said that he had two siblings living in Malta but did not have contact with them because of issues in the past. He claimed that he feared being killed or bashed because of the Data Breach and did not think that the Maltese authorities would protect him. The applicant said that he had no family in Malta to assist him; he could not find work and would find life very difficult if he went back as he had been in Australia for such a long time. He said that he did not know what Malta was like any more and that he might get lost.
Tribunal’s decision
The Tribunal found that the applicant was a citizen of Malta and so assessed his claims against that country. The Tribunal found that people in Malta generally do not have any interest in him or that there was a real chance of them having a particular interest in, or familiarity with, the applicant and the nature of his crimes upon removal from Australia. The Tribunal explained that those crimes had been committed over 10 years ago in a country outside of Malta and that there was no evidence that indicated that the applicant’s crime drew any attention in Malta at the time. It did not accept that people there would class him as having “abandoned his fellow man”.
The Tribunal did not accept that there was a real chance that persons visiting from Australia would recognise him and inform others; or that that would lead to him and his crimes being widely known in Malta; or the applicant facing a real chance or real risk of serious harm or significant harm from any person or group. While the Tribunal accepted that the applicant’s family in Malta was aware of his crimes, it did not accept that there was a real chance that that would lead to him and his crimes being widely known in Malta, or the applicant facing a real chance or real risk of serious harm or significant harm from any person or group.
The Tribunal found that the applicant’s claim that a person would walk up behind him and attempt to harm him was remote and speculative. It did not accept that anyone in Malta was presently motivated to harm the applicant and the chance that they would be motivated to harm him was no more than remote.
The Tribunal also considered the effect of the Data Breach. It found that, given that no details of the applicant’s convictions were released, the fact that the information was only available for a short period of time before it was removed, and was not downloaded in Malta, the Data Breach would not have caused the applicant to come to the adverse attention of members of the Maltese public. It concluded that as such, there would be no real chance or real risk that the applicant would be harmed by the Maltese public if he was to return. The Tribunal also considered that there was nothing in the Data Breach that could not be known to the Maltese authorities should the applicant be removed to Malta in the future, given that his visa was cancelled on character grounds and that he has been in immigration detention.
In those circumstances, the Tribunal found that the chance that the applicant would be seriously or significantly harmed on the basis of his membership of a particular social group of “criminals”, “convicted sex offenders” or “convicted child sex offenders” or any combination thereof, was remote.
The Tribunal rejected the applicant’s claim that the government of Malta did not want him back, as there had been no response to the letter sent by him to the High Commissioner and that there was no other evidence to indicate that he would not be allowed to return to, and enter Malta.
Further, the Tribunal did not accept that the applicant would be unable to obtain income support, health and other services. This conclusion was based upon evidence about the applicant’s eligibility for the age pension, the availability of health care and its standard in Malta.
For those reasons the Tribunal found that the applicant did not face a well-founded fear of persecution in Malta and so was not a refugee within the meaning of s.5H(1) of the Act. The Tribunal also found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malta, that there was a real risk that he will suffer significant harm. In light of those findings, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
There are three grounds in the application and one issue that arose during the hearing. It is convenient to deal first with the grounds in the application.
First Ground
The first ground is that the Tribunal’s decision was legally unreasonable in that the Tribunal failed to consider the best interests of the applicant’s son, his family ties, and the length of time spent in and his contributions to the Australian community through work and paying tax. The Minister correctly submitted that this ground is misconceived.
The Tribunal was required to “review” the decision of the delegate. That meant that it was required to determine whether it was satisfied that the applicant satisfied the criteria for the grant of a protection visa. The relevant criteria for that visa were found in sub-ss.36(2)(a) and (aa) of the Act. Those criteria both concern the possibility of harm coming to the applicant upon his return to Malta. The question of his connection to Australia, including his son and family ties, do not arise under them. For that reason, any failure by the Tribunal to take those considerations into account in reviewing the delegate’s decision did not amount to an error of jurisdiction. The first ground is rejected.
Second Ground
The second ground is that the Tribunal failed to acknowledge the breach by the Department of Immigration of the Privacy Act1988 (Cth) by virtue of the Data Breach. This ground, too, is misconceived. Whether or not the Data Breach constituted a contravention of the Privacy Act was irrelevant to the Tribunal’s task as described in [19] above. The Data Breach was relevant to that task only insofar as it gave rise to the possibility that the applicant might be harmed upon return to Malta. However, the Tribunal considered that question and determined it against the applicant for the reasons that are set out above. The second ground is rejected.
Third Ground
The third ground is (without correction):
The Tribunal failed to seriously consider All of the consequences of the ‘DATA BREACH’ by the Department of Immigration and Border Protection (First Respondent) in February 2014, and breached it’s Duty to act Judicially in that it’s findings are unsupported by probative material and it made inferences of fact that and which cannot reasonably be drawn from it’s findings of fact.
The particular to this ground refers to the following sentence in [31] of the Tribunal’s decision:
… As discussed with the applicant at hearing, no details of his convictions were released, the information was only available for a short period of time before it was removed and according to a report in the Guardian newspaper, citing KPMG as its source, the information was not downloaded in Malta. …
In his written submissions the applicant took issue with the findings in this paragraph. The applicant asserted that there was no way of knowing from whom he could face a risk of harm, as the information disclosure resulting from the Data Breach may have gone beyond the authorities of Malta, including foreign security and intelligence agencies as Malta is part of the European Union. The applicant also referred to the decision of the Full Court of the Federal Court of Australia in SZSSJ v Minister for Immigration & Border Protection (2015) 234 FCR 1; [2015] FCAFC 125 (“SZSSJ”) in support of the proposition that he was denied procedural fairness.
The Full Court’s decision in SZSSJ has no bearing on the present proceedings. First, the circumstances in that case concerned a non-statutory process, albeit one carried out for the purposes of the exercise of statutory powers by the Minister. Here, on the other hand, the Tribunal was operating under a closely circumscribed statutory scheme: see for example ABC15 v Minister for Immigration & Border Protection [2015] FCA 1314 at [29]. Secondly, even if the circumstances in this case were relevantly identical to those in SZSSJ, the aspect of that decision dealing with procedural fairness was overturned on appeal to the High Court: Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29.
The other assertions made in this ground are also not made out. The applicant’s claims were that he feared he would be bashed or killed as a result of the Data Breach because it would be known that he had been convicted of certain offences in Australia. The Tribunal rejected this claim on three bases. First, information about his offences had not been released as a result of the Data Breach. That finding was consistent with the information before the Tribunal and, in particular, the letter dated 12 March 2014 informing the applicant about the Data Breach.
Secondly, the information was only available for a short period. That, too, was consistent with the letter dated 12 March 2014.
Thirdly, the information was not downloaded in Malta. The applicant argued in his written submissions that there was information before the Tribunal to the effect that the information could have been copied thousands of times, that it was not known how many times the personal details of asylum seekers were accessed, and that the document had been accessed in the United States, Canada, Fiji, India, South Korea and anonymous locations.
The difficulty with the applicant’s argument is that it does not recognise that his claims were based not simply on the availability of some information about him, but rather, information about his criminal conviction in Australia. There is no suggestion in the material before the Court that information about that conviction was made public by reason of the Data Breach. For that reason, the fact that other information may have been available elsewhere does not undermine the Tribunal’s conclusion that the Data Breach did not give rise to a real chance of persecution or significant harm in Malta for reasons of his criminal conviction.
For those reasons, the third ground is rejected.
Ground raised at hearing
The issue that arose at the hearing concerned what appears to be one of the central elements of the Tribunal’s reasons for affirming the decision of the delegate, namely, that the applicant’s criminal history would not become known in Malta. On one reading of the Tribunal’s reasons, the Tribunal did not deal with the possibility that the applicant’s previous history might be discovered. I raised this with the solicitor advocate who appeared for the Minister and asked whether there was a potential error arising from it similar to the errors discerned by the majority in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (“S395”).
The principle for which S395 stands was explained in Minister for Immigration & Citizenship v SZSCA (2014) 254 CLR 317; [2014] HCA 45 where Gageler J explained at [36]:
A fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.
The Minister accepted in oral argument that it was at least implicit in the Tribunal’s reasons that the applicant would not disclose his criminal convictions to other people in Malta. However, he argued that that was entirely consistent with the way in which the applicant framed his claims and so there was no error in the Tribunal’s approach.
While I consider that the Tribunal’s reasons are troubling, on closer analysis, the difficulty is not with the Tribunal’s approach, but with the lack of clarity in its explanation of its reasons. As the following analysis reveals, the Tribunal did not fall into any jurisdictional error, either of the type identified by the majority in S395 or otherwise.
The essential findings made by the Tribunal in this respect were as follows:
[27] The Tribunal has considered the applicant’s evidence but does not consider that people in Malta generally have an interest in him or that there will be a real chance of them having a particular interest in or familiarity with the applicant and the nature of his crimes even upon removal from Australia. …
[28]… The Tribunal notes from the applicant’s evidence that his family in Malta are aware of his crimes. However he raised no fear of harm from them, stating that he wants nothing to do with them.
[29]The Tribunal does not accept that there is a real chance that persons visiting from Australia will recognise him and inform others or this will lead to him and his crimes being widely known in Malta or the applicant facing a real chance or real risk of serious harm or significant harm from any person or group. While the Tribunal accepts that his family in Malta are aware of his crimes, the Tribunal does not accept that there is a real chance this will lead to him and his crimes being widely known in Malta or the applicant facing a real chance or real risk of serious harm or significant harm from any person or group.
[30]… The Tribunal does not accept that any individual or group in Malta is presently motivated to harm the applicant and [considers] that the chance that any individual or group will be motivated to harm him (and will seriously or significantly harm him) is anything more than remote.
…
[32]Considering all the circumstances, the Tribunal finds the chance or risk that the applicant will be seriously or significantly harmed on the basis of his membership of particular social groups of “criminals”, “convicted sex offenders” or “convicted child sex offenders” or any combination thereof, is remote.
It is necessary to comment generally on the reasoning in these passages before returning to the issue mentioned in [29] above.
The reasoning in these passages is sparse. The Tribunal does not give any detailed reasons as to why it came to the conclusion that there was no real chance or real risk that people in Malta would not become aware of the applicant’s criminal convictions or, indeed, if they were, that that would not give rise to any real chance or real risk of serious or significant harm. That is partially explained by the sparsity of the material before the Tribunal. There was, in effect, nothing more than an assertion by the applicant that he would be harmed and discriminated against because of his criminal conviction.
Further, it appears that the Tribunal’s reasons for these conclusions were, first, that the criminal convictions were 10 years old; secondly, they were in a country far away from Malta; thirdly, that in spite of the fact that the applicant’s family in Malta were aware of these convictions he did not express any fear from them. Understood in that way, the Tribunal’s conclusions appear to have a logical basis in the material.
At one point[2], the Tribunal appears to base its decision on the proposition that the applicant’s previous convictions would not become “widely known in Malta”. Had that been a factual basis for the Tribunal’s decision, it would have been readily arguable that the Tribunal did not complete the review of the delegate’s decision. The finding would have left open the possibility of harm coming from an individual, or group of individuals, rather than from the mere fact of a broad reputation. However, the Tribunal did not rely solely on that finding for its conclusions. The paragraph in which the finding is made ends with the alternative conclusion that there was no real risk or real chance of harm arising out of a person coming to Malta from Australia with knowledge of the previous convictions. Read as a whole, the Tribunal’s reasons show that the Tribunal did grapple with the possibility of harm arising if the convictions were less than widely known.
[2] See [29] of the Tribunal’s reasons.
Returning to the issue referred to at [29] above, the Tribunal did not, as the Tribunal had in S395, ask itself how the applicant could avoid persecution. Rather, more like the Tribunal in both Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29 and Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 (“SZSCA”), it asked simply what might happen to the applicant if he were to return to Malta. As there was no suggestion that the applicant would reveal his convictions himself, the issue of having to conceal them did not really arise.
Further, while unlike the Tribunal, I have some doubts as to whether the Refugees Convention[3] extends to protect people because they are, without more, criminals and in particular, child sex offenders, there was no claim that any essential characteristic in that respect ever required expression by the applicant. In that way, the Convention characteristic of membership of those groups was not the same type in this case as, say, those of left-handed people, teachers, or business people opposed to organised crime and corruption. As Gageler J explained in SZSCA at [37], the principle in S395 directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. As there was no apparent behaviour of the applicant that would manifest his membership of the relevant particular social groups, the principle had no application.
[3] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967)
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 21 October 2016
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