Big15 v Minister for Immigration
[2017] FCCA 1051
•11 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIG15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 1051 |
| Catchwords: MIGRATION – Judicial review - International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| 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 AKR15 v Minister for Immigration and Border Protection [2015] FCCA 1734 CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758 AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740 |
| Applicant: | BIG15 |
| 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 41 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 11 May 2017 |
| Date of Last Submission: | 11 May 2017 |
| Delivered at: | Darwin |
| Delivered on: | 11 May 2017 |
REPRESENTATION
| Applicant: | In person by video link |
| Counsel for the Respondent: | Ms Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 13 July 2015 be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
No. DNG 41 of 2015
| BIG15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
Ex Tempore
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.
This is an application for judicial review following an International Treaty Obligation Assessment or “ITOA” carried out by a departmental officer, who I will call an “assessor”, on 7 July 2015. The purpose of the ITOA was to assess whether Australia owed any non-refoulement obligations to the applicant as a consequence of an event known as the ‘data breach’ when personal details of the applicant and others were published on the Web in February 2014 by accident. The published details included name, birthdate, nationality, place and circumstances of detention and whether or not the detainee had other family members in detention.
The applicant is a Chinese citizen. He arrived in Australia in 2007 on a student visa. His visa was cancelled in 2010. That cancellation was subsequently revoked for technical reasons. The visa, however, was deemed to have lapsed on 15 March 2010. The applicant thereafter failed to depart Australia. In September 2013 he was detained and, as far as I know, has been in detention since.
In October 2013 he made a protection visa application which, according to the Refugee Review Tribunal decision that is included in the court book, included consideration of the applicant’s claims that he or his family had borrowed money from loan sharks or criminal elements in China in order for him to come to Australia as a student and that he feared the consequences for himself should he return. The delegate’s decision and subsequently an RRT decision on 28 January 2014 found that the applicant lacked credibility. His claims were not accepted. His application for review to this Court was dismissed on 19 February 2014.
As I have mentioned, in February 2014 there was a data breach. In March 2014 the applicant was advised of the data breach. In July 2014 a letter was sent to him inviting submissions from him on the impact of a data breach. On 26 August 2014 he replied to that invitation and asserted that the data breach constituted a criminal act. He reiterated the need for provision of the findings of an independent inquiry into the circumstances of the data breach. He asserted there was a conflict of interest in a departmental officer investigating the matter or the consequences for him and asserted that there was no way of knowing where the information released in the data breach had been disseminated, whether to authorities in China, foreign security and intelligence organisations or terrorist organisations or criminal syndicates. He also asserted there would be a likely impact on his employment in China and a consequence that foreign governments might reject any future visa application.
On 14 January a further letter was sent to him asking whether there were any other claims he wished to make. There was no reply to that letter. On 1 May 2015 a letter that counsel called a ‘procedural fairness letter’ was sent to him stating that there may be adverse inferences drawn in relation to the matters raised by him based on country information and other information in the hands of the assessor.
The assessment was carried out on 7 July 2015. The assessor noted that there had been no submission from the applicant about any change of personal circumstances or change of circumstances in China. The assessor concluded that the immigration process that the applicant had been through, that is, the decision of the delegate, the Tribunal and subsequently an application for review to this Court which upheld the decision of the Tribunal, meant that the findings of the delegate and Tribunal were valid.
The applicant filed his application for review on 13 July 2015. His application for review included 19 grounds asserting jurisdictional error. The grounds at paragraph eight, in particular, relate to a claim that there had been a denial of procedural fairness. This was subsequently considered by the High Court 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 High Court allowed the Minister’s appeal in those cases with the consequence that the grounds set out in the application, which are the same as the procedural fairness grounds considered by the High Court, mean that the applicant’s grounds of review relating to procedural fairness cannot succeed.
The balance of the grounds have been considered in other cases in this Court, in particular in AKR15 v Minister for Immigration and Border Protection [2015] FCCA 1734, a decision of Judge Smith that pre-dated the High Court’s decision. Subsequent to the High Court’s decision there have been at least two decisions that have considered the remaining grounds of review in detail. The application contains template grounds of review with the same grounds considered in CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758, a decision of Judge Driver, and AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740, a decision of Judge Street. Those decisions have held that the remaining grounds are without merit. I also conclude for the reasons set out in those two cases that the remaining grounds are without merit. Accordingly, the application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 18 May 2017
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