BFS15 v Minister for Immigration

[2017] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 692

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment following “data breach” – citizen of Malaysia – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

Cases cited:
The Minister for Immigration v SZSSJ, The Minister for Immigration v  SZTZI [2016] HCA 29; (2016) 90 ALJR 901; 334 ALR 653
CDM16 v The Minister for Immigration [2016] FCCA 2758
AKD15 v The Minister for Immigration [(2016] FCCA 2740

Applicant: BFS15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

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

Third Respondent: T. DEVENDRAN, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 39 of 2015

Judgment of: Judge Young

Hearing date: 15 March 2017

Date of Last Submission: 15 March 2017

Delivered at: Darwin

Delivered on: 15 March 2017

REPRESENTATION

Applicant in person via videolink

Counsel for the Respondents: Ms Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 29 June 2015 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00 within 30 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 39 of 2015

BFS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

T. DEVENDRAN, 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.

2. This is an application for judicial review of a decision made by a departmental officer on 25 June 2015 as part of the International Treaty Obligation Assessment (ITOA) process that followed the release of personal information about the applicant and many others on the Internet in February 2014. 

3. The matter was previously adjourned by order of the court, although it is unclear to me whether it was by consent, on 27 November 2015 pending the outcome of the Federal Court decision in SZSSJ v The Minister for Immigration and any subsequent appeal. There was an appeal from the decision of the Full Court which was resolved in the High Court in July last year.

4. The applicant’s immigration history is of some relevance. She arrived in Australia in 2006.  At that time she was using the surname that she now uses but her first names were different. She overstayed her visa and was removed to Malaysia in 2010. It was found during the ITOA assessment that while in Malaysia the applicant changed her name or changed her first names and obtained another passport in those names. She returned to Australia using that passport in 2012. In February 2013 she applied for a protection visa. The claim she made at that stage was that she feared harm from her ex-boyfriend who was violent or had been violent to her. 

5. In March 2013 a delegate of the Minister refused her application. In June 2013 the Refugee Review Tribunal affirmed the decision of the delegate. Thereafter, the applicant, who was apparently living in the community, remained unlawfully in Australia. In October 2013 she was detained. In November 2013 she was named as a dependant in a protection visa application by another person. 

6. In March 2014 that application was refused by the delegate and in July 2014 that decision was affirmed by the Tribunal. In February 2014 there was the “data breach”, as it is commonly known, to which I have referred. In March 2014 the applicant was informed of the data breach and that she was affected by that data breach.  In January 2015 the Department wrote to her informing her of the ITOA process that was to be held.  This was to assess whether, in the applicant’s case, Australia’s non-refoulement obligations were engaged as a result of the data breach. 

7. On 19 January 2015 the applicant responded. There is a long letter from her then lawyer or migration agent, along with at least one document signed by the applicant herself. I raise that because the applicant said to me in submissions that she had not received any correspondence prior to the ITOA decision. I am satisfied that that is not correct.

8. On 18 May 2015 an invitation to make submissions was sent to the applicant at the Wickham Point Immigration Detention Centre outside Darwin. The applicant has confirmed to me that at that date she was then resident at Wickham Point but she said she did not remember whether she received the letter dated 18 May 2015 from the Department. 

9. That letter is of some significance because it sets out the basis for the Department’s ITOA, that is, it would be assumed that there had been access to the applicant’s personal details by the authorities in Malaysia, her country of citizenship. It also included country information which set out possible bases for not accepting that the applicant was at risk of harm should she be returned to Malaysia. There was no response from the applicant to that letter. 

10. On 25 June 2015 the departmental officer finalised the ITOA and concluded that there was no non-refoulement obligation owed to the applicant by Australia.  In the process of the ITOA the officer of the Department assessed the applicant’s claims to fear harm from her ex-boyfriend in Malaysia and rejected those claims, essentially for the same reason that the Tribunal had rejected those claims in her initial claim in 2013 for a protection visa: her claims lacked detail and there appeared to be no reason why she could not relocate within Malaysia. The assessment also concluded that there was no likelihood that the applicant would be subjected to harm or a risk of significant harm if she returned to Malaysia. 

11. The applicant has lodged an application for judicial review. The application is a template application of a type that has been considered by this court in a number of other cases.  There are some 19 grounds that are the same across all of the cases where the template has been used except that the country of citizenship of the applicant has been left blank in the template and left to be filled in in handwriting by the applicant.  In this case it has been filled in as “Malaysia”.

12. I consider the nub of the application to relate to the claim in paragraph 16 that the ITOA process denied the applicant procedural fairness.  The claims are particularised to some extent but the claim of lack of procedural fairness appears to me to be in substance the same as the claim of lack of procedural fairness considered by the High Court in The Minister for Immigration v SZSSJ, The Minister for Immigration v  SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653. The factual bases in those two cases were slightly different but SZTZI is the case where an assessment took place after the applicant had unsuccessfully sought a protection visa. It is analogous to the case before me at the moment.

13. The High Court found that there had been no denial of procedural fairness in the ITOA process. I am bound by that conclusion. I find accordingly that there has been no denial of procedural fairness.

14. The balance of the grounds set out in the template claim have been considered, as I mentioned, in a number of other cases, including CDM16 v The Minister for Immigration [2016] FCCA 2758 and AKD15 v The Minister for Immigration [2016] FCCA 2740. Both of those decisions, by Judge Driver and Judge Street respectively, considered the identical grounds set out in this template and both concluded that the grounds did not disclose any jurisdictional error. I agree with the conclusions of those two judges in those two cases and, accordingly, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 6 April 2017