BQI15 v Minister for Immigration
[2017] FCCA 1049
•10 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQI15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 1049 |
| Catchwords: MIGRATION LAW – Judicial review – International Treaty Obligation Assessment – alleged jurisdictional error – 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 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 SZGIZ v Ministerfor Immigration and Border Protection [2013] FCAFC 71 ALZ15 v Ministerfor Immigration and Border Protection [2017] FCA 279 |
| Applicant: | BQI15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | AUDREY FERNANDES, DEPARTMENT IMMIGRATION AND BORDER PROTECTION |
| File Number: | DNG 45 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Darwin |
| Delivered on: | 10 May 2017 |
REPRESENTATION
| Applicant | In person via video link |
| Counsel for the Respondents: | Ms Davidson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 12 August 2015 be dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 45 of 2015
| BQI15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| AUDREY FERNANDES, 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 of a decision following an International Treaty Obligation Assessment, usually called an ITOA, after an event known as the ‘data breach’ in February 2014. The data breach resulted in the advertent publication on the web of personal details of various persons in detention, including the applicant in this case, such as their names, ages, nationality, whether family members were in detention and the like.
Following that release of information the Department of Immigration undertook the ITOA to assess whether or not Australia’s non‑refoulement obligations were engaged on the basis of the Refugee Convention, Convention Against Torture and the International Covenant on Civil and Political Rights. The decision in this case was that Australia’s non-refoulement obligations were not engaged.
The applicant filed an application for review. The application for review sets out 19 template grounds, some of which were considered by the High Court, or at least the claims relating to procedural fairness, 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 balance of the template grounds have been considered in this Court in decisions such as CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758 and AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740.
The template grounds in this case, in my view, have no merit and ought to be dismissed for the reasons set out in the cases in preceding paragraph. I explained that the difficulty that the applicant would face with the 19 template grounds at the outset of this hearing and I asked the applicant whether there was any other submissions he wished to make about the decision.
The applicant had nothing more to say. However, the counsel for the Minister, Ms Davidson, did raise in her submissions a point that has really taken up most of my consideration in this application. She very properly, recognising not only the obligations of counsel which she has discharged admirably but also the obligation of the Minister as a model litigant, pointed out that there is an error in the assessment decision, a factual error. The error is this: at paragraph 17 of the ITOA decision the assessor says that the Refugee Review Tribunal – referring to a 2014 decision of the Tribunal – had concluded that there was no real chance that the applicant would suffer serious harm for any Convention related reason upon his turn to China or in the reasonably foreseeable future.
She had pointed out that the Tribunal did not reach that conclusion and did not consider that question. What the Tribunal did consider was the ground or grounds arising under subsection 36 (2)(aa) of the Migration Act, usually known as the complementary protection grounds. In considering those grounds or that ground the Tribunal found there were no substantial grounds for believing that there was a real risk the claimant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to China.
Ms Davidson went on to submit that there was an error and the error was reflected earlier in the ITOA process in a letter dated 1 June 2015 – which is often called a ‘procedural fairness letter’ – where the assessor or the Department set out various pieces of information that might be adverse to the applicant. In particular at page 3 of that letter it is stated in the third paragraph:
In relation to your protection visa application, the Department and the RRT found you not to be a credible witness and concluded that you were not a person to whom Australia has protection obligations. The primary decision-maker and the RRT found that you did not face a real chance of being subjected to serious harm on return to the People’s Republic of China.
The phrase ‘and the RRT’ is incorrect in that sentence. The primary decision-maker – that is the delegate – did make that finding but the RRT did not because it did not consider the Convention grounds. I will explain why in a moment. The next sentence is correct:
The primary decision-maker and the RRT were also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of your removal from Australia to the PRC that there was a real risk you would suffer significant harm.
This is directed to the complementary protection ground. The reason why the RRT did not consider the Convention grounds is related to the decision in SZGIC v Minister [2013] FCAFC 71, a decision of the Full Court of the Federal Court. The nub of SZGIC is that the prohibition in section 48A(2) of the Migration Act, which on its face prohibited a second application for a protection visa after an earlier unsuccessful application, was to be read as not preventing a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa.
I will deal with the chronology of this matter in a moment but it is enough to say that there was an earlier unsuccessful application for a protection visa by this applicant. When the second application for a protection visa was made in 2013 (and ultimately disposed of in 2014) the applicant expressly made his application on the basis of the decision in SZGIC, that is, he was asking for a protection visa on the basis of a complementary protection ground as distinct from the Convention grounds.
The Tribunal, consistently with both the form in which the application was made by the applicant and the decision in SZGIC, considered only the complementary protection grounds. On my reading, the Tribunal was in fact prohibited from a consideration of the Convention grounds, because it was a second application, to the extent that the grounds were based on same criterion or criteria as the original application.
I will say something about the nature of the applicant’s grounds. He, as I have mentioned, is a citizen of China. The Tribunal decision in 2014 outlines the basis of his protection visa application. There is only indirect reference in the material before me to the initial application for a protection visa in 1996 which was decided in 1999. The grounds set out in the RRTs decision from 2014 were that the applicant said that land which his family had occupied had been expropriated, either by the State or by private individuals in a position of authority, and that he would be likely to suffer harm as a result of either having protested against the expropriation or as a result of protesting against the expropriation when he returned to China.
The Tribunal, for reasons it sets out in detail, did not accept the applicant was a credible witness and found that the events he described had not occurred and consequently found that there was no ground on which the applicant was entitled to complementary protection.
The Tribunal referred indirectly to the earlier 1996 application by saying that those claims had been vague. It is not clear to me whether the grounds were identical or similar in the original application. Nevertheless, the only grounds advanced at any point, it would appear, relate to the alleged expropriation of land in China, an event that the RRT found had not occurred.
The applicant’s immigration history is relevant. In July 1996 the applicant arrived in Australia on a tourist visa. In September 1996 he applied for a protection visa. That was the original application. In February 1999 the decision to refuse his application was affirmed by the RRT.
On the expiration of a bridging visa in 1999 the applicant overstayed and remained in the country. It appears that he was then an unauthorised over-stayer for the next 14 years. In November 2013 he was located and detained. On 28 November 2013 he lodged a second application for a protection visa based, as I said, on the complementary protection criteria or criterion.
The claims that were made were as I have described: he claimed there had been a compulsory acquisition of family land or land which the family had occupied, that his household registration had been cancelled, and that he would suffer harm if he returned to China and claimed the land, and lose social benefits.
The delegate, in fact, considered both the Convention grounds and the complementary protection grounds. On an application for review the RRT considered the claims advanced by the applicant, which were as I have described, considering the same claims considered by the delegate. The factual matrix in both cases was the same even though the formal legal consideration was, in the case of the RRT, more circumscribed, being limited to the complementary protection grounds.
In February 2014 there was the data breach which I have already described. In March 2014 the applicant was advised of the data breach and submissions were invited from him. After that date, on 19 August, there was the delegate’s decision to which I have referred and on 15 September 2014 the RRT decision to which I have referred.
On 20 January 2015 there was a further letter from the Department inviting submissions from the applicant on the impact of the data breach on him. On 19 February 2015 he responded with a pro forma response, essentially directed towards arguments that the Department would be in a position of conflict of interest in conducting an inquiry into the data breach. On 14 May 2015, the applicant was advised of the ITOA and he was told that the ITOA would consider Australia’s non‑refoulement obligations:
…will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the status of refugees, the Convention against torture and other cruel, inhuman or degrading treating or punishment, the International Covenant on Civil and Political Rights and the second optional protocol.
He was invited to put forward any new information about changes in his personal circumstances or country of nationality. There was no response by the applicant to that letter. On 1 June 2015 another letter was sent by the Department and that repeated that information and referred to matters which the Department considered ought to be put to the applicant by way of procedural fairness. There is nothing particularly exceptional in that, but, as I have mentioned, under the subheading ‘Protection Claims’ the letter did make a misstatement in that it said that the primary decision-makers, that is, the delegate and the RRT, had found that the applicant did not face a real chance of being subjected to serious harm on return to China. As I have noted, the RRT did not say that.
There was no response to that letter from the applicant. On 6 August 2015 the ITOA was completed and a written decision provided which found that Australia’s non-refoulement obligations were not engaged. That decision repeated the error that I have mentioned in that it assumed, incorrectly, that the RRT had considered the applicant’s entitlement to a protection visa under the Convention on refugees ground when in fact it only considered the complementary protection ground.
As I have noted, on my reading of SZGIC, the Tribunal was prohibited from considering the Convention grounds. Counsel for the Minister said that, while there was an error made by the assessor, it was not a jurisdictional error. She said that the ITOA, that is the ITOA process, was correctly described in, for example, the letter of 14 May 2015 as a consideration of Australia’s non-refoulement obligations, based on the various sources mentioned there, arising from the data breach.
Counsel for the Minister made a number of points. She said it is clear from the decision that there was a consideration of the consequences of the data breach for this applicant and whether that gave rise to non-refoulement obligations, from whatever source, including the Convention. She said that was consistent with the process as described in paragraph [42] of decision of Mortimer J in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279.
She said that the assessor considered whether there were any changes in the circumstances of the applicant personally or in his country of origin, China. There were no submissions from the applicant about any change of circumstances. She went on to say that there is nothing to indicate that the error had led the assessor to take into account irrelevant considerations or fail to take into account relevant considerations.
I am not completely persuaded that the assessor did not fail to take into account a relevant consideration with that error. It appears to me it was relevant to take into account that the RRT had considered only the complementary protection grounds and not the Convention grounds, albeit the factual basis was the same in both cases. However, I am not satisfied that there was any consequence to that failure. In the context of this case, where every factual matter put forward by the applicant was considered, I do not consider that the error made any difference to the outcome. The effect of that is that, even if there were jurisdictional error, I would not exercise my discretion to grant a remedy.
Counsel for the Minister also said that the error had not resulted in procedural unfairness because it did not deprive the applicant of the opportunity to make any relevant submissions. I accept that submission for a number of reasons. First, the applicant did not make any submissions, notwithstanding that the error was repeated in the procedural fairness letter of 1 June 2015. Secondly, if the assessor been aware of the correct situation, it appears to me that the process of reasoning would have been no different, that is, the assessor relied on the validity of the findings of the delegate and the Tribunal in relation to the second protection visa application, as the assessor was entitled to do. I cannot see that the course of the consideration would have followed any different channel had the assessor been aware of the true situation. Thirdly, counsel for the Minister submitted that, while there was an error, it was not of a kind that led to a chain of errors or led to a misapprehension by the assessor of the task facing her or of her asking herself a wrong question. I accept that submission. The assessor continued to ask herself the right question, that is, were Australia’s non‑refoulement obligations arising from the data breach engaged.
I dismiss the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 18 May 2017
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