BFP15 v Minister for Immigration

[2017] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFP15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 1048

Catchwords:
MIGRATION –Judicial review – International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed. 

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v  SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653

CDM16 v  Minister for Immigration & Anor [2016] FCCA 2758
AKD15 v  Minister for Immigration & Ors [2016] FCCA 2740

Applicant: BFP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 42 of 2015

Judgment of: Judge Young

Hearing date: 9 May 2017

Date of Last Submission: 9 May 2017

Delivered at: Darwin

Delivered on: 9 May 2017

REPRESENTATION

Applicant in person via video link

Counsel for the Respondent: Ms Davidson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Applicant’s oral application for an adjournment be dismissed.

2. The application filed 30 July 2015 be dismissed.

3. The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 42 of 2015

BFP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Application for adjournment

1. The applicant has made an oral application for adjournment.  This matter was originally set down for hearing on 17 December 2015.  However, on 19 November 2015 I made an order adjourning the matter pending the outcome of the hearings leading to the decision in Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653. The hearing date was vacated and the matter was adjourned indefinitely. At that stage it appears that the applicant was – I hesitate to use the word ‘represented’ because nothing I have heard suggests that the applicant was in any real sense of the word represented - in communication with some lawyers who had prepared his application for judicial review of a decision of an assessor in an International Treaty Obligation Assessment.  As I say, the matter was adjourned indefinitely and on 13 February 2017, following the High Court decision in SZSSJ, the court through an administrative process sent a listing notice to each of the parties advising that this matter was listed for hearing before me today at 2.45 pm Eastern Standard Time.  I say Eastern Standard Time because the applicant is presently appearing by video from Sydney.

2. The applicant was living in the community at that time.  He was released from detention, he told me, in July 2016.  He told me when he sought the adjournment, in response to a question I had asked him about the absence of any written submissions from him, that he was seeking an adjournment and he suggested that written submissions were being prepared and he suggested that he had been in touch with a solicitor who was preparing them.  At least that is how I understood his answers.  Given what followed, it is possible that I misunderstood what he said but that was my initial understanding.  He told me initially that he had not understood that the matter was listed for hearing today.  He thought it was simply an administrative matter.  Later he told me that he had telephoned a solicitor although he then qualified that to say that really he did not telephone a solicitor, he had simply communicated with a friend who may or may not have been in touch with a solicitor.  I asked him when he became aware that there was to be a hearing and he mentioned March, somewhat inconsistently with what he had told me a few minutes earlier.

3. I am satisfied that the applicant has not been in touch with any solicitor in recent times and has not been in touch with a solicitor at least since his release from detention in July 2016.  It was incumbent upon the applicant himself to keep himself informed of the progress of his case.  He has not done that and what prompted him to actually do something, however ineffectual that was, four days ago by making an inquiry of a friend, I do not know.  I suspect he became anxious that his hearing was approaching and he had taken no steps to be ready for it.  I am satisfied that the applicant was aware that the hearing was set down for today.  I am satisfied that he has been aware of that since March.  I am satisfied that he has taken no effective step to obtain legal advice and in fact has not obtained legal advice and has not communicated with any solicitor or legally qualified person directly with a view to obtaining representation.  I find that his application for an adjournment is without merit.  I dismiss the application.

Judicial Review

1. This is an application for judicial review of a decision made by an assessor pursuant to an International Treaty Obligation Assessment on 24 June 2015.  The ITOA followed the event known as the ‘data breach’ in February 2014 when the personal information of this applicant and others was accidentally published on the web.  The information released in this case, as in others, related to date of birth, name, country of origin, I understand, and other similar matters.  The grounds of any protection visa application made by an individual were not released or were not published. 

2. The background to this matter is as follows. The applicant arrived in Australia on 15 December 2007 on a student visa.  His visa was renewed, I think at least once, but eventually his visa expired and his continued presence was unauthorised.  He was detained sometime in 2013.  On 26 November 2013 he made an application for a protection visa and the grounds he set out were, to summarise, that he feared harm from creditors and debt collectors in relation to money that he or his family had borrowed.

3. On 16 May 2013 the Refugee Review Tribunal rejected the application.  The decision was not subject to any further review or appeal.  In February 2014 the data breach occurred.  On 14 July 2014 the Department sent a letter to the applicant advising him of the data breach and inviting submissions on the impact of the data breach on him.  On 17 July 2014 he replied. It appears to be a pro forma reply and raised a number of points including that the data breach was a criminal act, complaining that the Department should not investigate its own breach, so to speak, or its own conduct and to do so would be a conflict of interest; raising a risk that the information would be released to terrorists or criminal organisations; asserting that the information would, if accessed in China, create difficulties about seeking employment in future and finally that there were likely to be travel restrictions by virtue of applying for and being refused visas by foreign governments.

4. On 14 January 2015 the Department advised that it was undertaking an International Treaty Obligation Assessment, the ITOA, and that the applicant’s protection visa claims would be assessed through the ITOA and that the process would consider ‘new information, changes in your circumstances or country of nationality… since your previous protection claims were assessed.’  On 27 January 2015 the applicant replied, again apparently in a pro forma way, asserting and repeating some of the earlier assertions: that the data breach was a criminal act, that the department was obliged to disclose all of the relevant circumstances surrounding the breach, that there ought to be an impartial decision maker involved in any ITOA process, that is, presumably someone outside the department, and asserting that the applicant had become a refugee sur place as a result of the data breach.  On 24 June 2015 the assessor published a written decision following the assessment and found that Australia’s non-refoulement obligations were not engaged in the applicant’s circumstances.

5. The applicant filed an application for judicial review on 30 July 2015.  The grounds of review were a template that has been used repeatedly in this Court and was also, in one aspect at least, the subject of consideration in the High Court.  The aspect that I refer to is the allegation that the applicant was denied procedural fairness. That was resolved in Minister for Immigration v SZSSJ, Minister for Immigration v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653.

6. The decision in SZTZI is analogous because that was a case where there had been an ITOA following an unsuccessful protection visa application.  The circumstances are not dissimilar here and the High Court decision effectively disposes of the claim set out in the application that the applicant had been denied procedural fairness. 

7. The balance of the grounds have been considered in a number of cases, including detailed consideration by Judge Driver in CDM16 v  Minister for Immigration at [2016] FCCA 2758 and Judge Street in AKD15 v Minister for Immigration [2016] FCCA 2740. The balance of the grounds in the applicant’s application must be dismissed for the reasons set out by those judges in those decisions.

8. The applicant had not filed any written submissions and when invited to make oral submissions it appeared was unable to make any useful submissions in relation to the grounds of review set out in his application.  He is not legally trained.  His English is poor or non‑existent and it appeared the grounds of review were prepared by lawyers who had very little, if any, contact with the applicant and, as I say, a template was used for many applicants.  I see no real reason why I should expect the applicant to understand what was filed on his behalf.  I am satisfied that he did not understand it and accordingly I am not surprised that he was unable to make submissions.  He did, however, when invited by me in more general terms to explain what he thought was wrong with the assessor’s decision say that, in substance, he disagreed with the assessor’s opinion.  He said that it is impossible to know what the consequences will be on his return to China because it is impossible to be 100 per cent certain about what will happen.  He said even if there is a one degree chance of some harm coming to him then that is a possibility.  He said that he has mentioned a lot of things in relation to the Chinese government and he is afraid they will take some action.  I might observe that the grounds of the protection visa application as I understood them related to something other than the applicant being critical of the Chinese government; rather the grounds related to fearing harm from creditors and debt collectors.

9. The counsel for the Minister responds that the applicant’s oral submissions did not identify any jurisdictional error and merely amounted to a disagreement with the conclusion on the merits. I agree. I am satisfied that there is no jurisdictional error revealed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 18 May 2017