BWY17 v Minister for Immigration

[2020] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWY17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1783

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims accepted at least in part but his fears found not to be well-founded – whether the Authority’s exercise of power under s.473DD of the Migration Act 1958 (Cth) miscarried or whether the Authority unreasonably failed to consider getting new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 91R, 473CB, 473CC, 473DA, 473DC, 473DD, 473DE

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

DGZ16 v Minister for Immigration (2018) 258 FCR 551

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZJGV (2009) 238 CLR 642

Minister for Immigration v SZNPG [2010] FCAFC 51

Minister for Immigration v SZSSJ (2016) 259 CLR 180

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

SZSSJ v Minister for Immigration (2015) 234 FCR 1

Applicant: BWY17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1338 of 2017

Judgment of: Judge Driver

Hearing date: 1 July 2020

Delivered at: Sydney

Delivered on: 14 August 2020

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application the subject of leave granted on 1 July 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1338 of 2017

BWY17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 April 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The following statement of background facts is derived from the submissions of the parties. 

2. The applicant, a Tamil male from a named location in the Eastern Province of Sri Lanka, arrived at the Cocos (Keeling) Islands by boat on 26 September 2012. At the time of his arrival in Australia, the applicant was 16 years old. The applicant attended an entry interview on 18 January 2013[1] and claimed that his mother had been kidnapped and his family had been unable to locate her. The applicant further claimed that his father had previously been shot and his family had been temporarily relocated to a refugee camp in 2007 for approximately a year.

   [1] Court Book (CB) 120-154

3. On 15 February 2016, the applicant was invited to apply for a temporary protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) Visa (SHEV).[2]  The applicant applied for a SHEV on 13 April 2016.[3]  In a statutory declaration annexed to the visa application,[4] the applicant made the following claims:

   a)his mother was kidnapped when he was six years old, and his family had been unable to locate her;

   b)he was born and had lived in the same place for most of his life;

   c)he and his family had spent time in the a camp in 2007 due to the fighting between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lanka Army (SLA);

   d)he had been approached by SLA officials to undertake various errands in 2008;

   e)his father had been shot in November 2008 but he did not know who had shot his father or why;

   f)he did not feel safe in Sri Lanka and feared he would be targeted like his parents; and

   g)if forced to return to Sri Lanka, he feared he would be arrested, interrogated, detained and tortured and claimed that the authorities would not protect him.

   [2] CB 11-16

   [3] CB 17-61

   [4] CB 55-58

4. The applicant attended an interview with the delegate on 9 September 2016 and provided the following additional information:[5]

   a)his maternal uncle was a member of the LTTE;

   b)his mother went missing after this uncle was killed; and

   c)the SLA camp in his village was no longer operating.

   [5] CB 111

5. The delegate refused the application for a protection visa on 29 September 2016.[6] While the delegate accepted the majority of the applicant's claims, and that he may have been affected by the possible release of some of his personal information on the Minister’s Department's website in February 2014 (the 2014 data breach), the delegate was not satisfied that the applicant faced a real chance of serious or significant harm in the reasonably foreseeable future in Sri Lanka.

   [6] CB 110-123

6. On 6 October 2016, the decision of the delegate was referred to the Authority for review.[7]

   [7] CB 124-299

7. On 4 November 2017, the Authority received a written submission from the applicant. An accurate summary of the submission can be found in the Authority’s decision at [5]-[11].

Authority decision

1. The Authority affirmed the delegate's decision on 12 April 2017.[8] While the Authority accepted parts of the applicant's claims (for example that his mother had been kidnapped and his maternal uncle was a member of the LTTE and had been killed) it was not satisfied that the applicant faced a real chance of serious harm for those reasons. Further, the Authority considered that the applicant was not a person that faced a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections.[9] The Authority was also not satisfied that the applicant faced a real chance of serious harm on account of his details being made available for a short period of time of the Minister’s Department's website in February 2014.[10]

   [8] CB 334-349

   [9] CB 340 at [31]

   [10] CB 341 at [34]

2. The Authority accepted that the applicant would be identified by the Sri Lankan authorities as a failed asylum seeker and as someone who had departed Sri Lanka illegally. However, it was not satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution or significant harm for the purposes of the Migration Act 1958 (Cth) (Migration Act).[11]

   [11] CB 342 at [42] and CB 344 at [52]

3. The Authority also concluded, on the basis of an article in The Guardian newspaper (the Guaridan article),[12] that the 2014 data breach would not have resulted in publication of the applicant’s claims for protection, and that he therefore would not face a real chance of serious harm on that account.

   [12] annexed to the affidavit of Sai Priya Sivalohan made on 17 May 2018

The current proceedings

1. These proceedings began with a show cause application filed on 3 May 2017.

2. The matter came before me for a show cause hearing on 18 May 2018.  At that time I dispensed with the show cause hearing and gave the parties the opportunity to file an amended application and further evidence.  The matter was listed for final hearing in November 2019, but was stood over for hearing on 1 July 2020.  At the trial on that day the applicant sought and was granted leave to rely upon a further amended application annexed to the applicant’s outline of submissions filed on 17 June 2020.

3. The grounds in the application as thus amended are:

   1. The second respondent (Authority) misconstrued and misapplied the term "consider" in section 473DD of the Migration Act 1958 (Act).

   Particulars

   The Authority proceeded on the basis that, rather than merely not “considering” the applicant's new claims and evidence, it was required to proceed on the basis that those claims and evidence had never been raised.

   3.Further or in the alternative, the Authority's failure to consider exercising its discretion or the exercise of the Authority's discretion under subsection 473DC(3) of the Act not to invite the applicant to give new information was legally unreasonable.

4. In addition to the court book filed on 29 September 2017, I have before me as evidence the affidavit of Sai Priya Sivalohan made on 17 May 2018.  Annexed to that affidavit is a copy of an article published in The Guardian newspaper on 18 September 2015.

5. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.  I have been assisted by those submissions.

Consideration

Ground 1 – did the Authority misconstrue and misapply the term “consider” in s.473DD of the Migration Act?

Applicant’s contentions

1. Section 473DD of the Migration Act is entitled “Considering new information in exceptional circumstances” and provides:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)   was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

2. In his 4 November 2016 submissions, the applicant, amongst other things, claimed that members of his family had been subjected to adverse attention by the Sri Lankan authorities due to his family’s support of the LTTE, including that of his uncle and his mother:[13]

   My mother disappeared around 2002 because of her family background. My mother’s family members supported the LTTE and my uncle was serving a LTTE senior member. My mother along with her brother had been feeding LTTE cadres whenever they came to our village. The villagers are well aware of this fact and people feared for my mother’s family members as they had LTTE support and protection. We were very young at that time and we were not aware as to the consequences of being a LTTE supporter. Now that my mother disappeared we are un[a]ble to find out the location yet. May be my mother is kept along with her brother in LTTE secret camps in the South of Sri Lanka.  If the Australian government released any information to the army or CID from my claims they could be murdered if they are alive. I feared that I could endanger my mother’s life if I told anything about the army or CID atrocities towards us. My father had been shot and was treated and up until not we have no information as to the person who shot my father.

   Recently my father told me that the neighbours told him that the army in civil shot my father. The army wanted to kill my father as they suspected my father cold take revenge on them and to threaten him they did it. My brother who is at the Eastern University was recently arrested in September 2016 by the CID and was interrogated as to my hiding place …

   [13] CB 314-315

3. However the Authority, at [9], found that it was not satisfied for the purposes of s.473DD of the Migration Act that there were exceptional circumstances to justify consideration of these claims and then, at [27]-[29], relied upon a finding that the applicant had never claimed his family had come to the adverse attention of the Sri Lankan authorities due to his uncle’s LTTE activities or his mother’s disappearance, and that there was no evidence indicating the shooting of the applicant’s father was connected to the applicant or his family:[14]

   [14] CB 340 at [27]-[28]

   I have accepted that the applicant's maternal uncle was in the LTTE and that he was killed prior to 2003. The applicant has not raised any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his uncle's profile or prior LTTE activities, or on account of his uncle's death at least 14 years ago. I am not satisfied that the applicant faces a real chance of serious harm due his uncle's death or his prior LTTE links, now or in the foreseeable future.

   I have accepted that the applicant's mother went missing in around 2002. The reasons for her disappearance are unknown and the applicant has not raised any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his mother's disappearance. I am not satisfied that the applicant faces a real chance of serious harm due his mother's disappearance, now or in the foreseeable future.

   …

   I have accepted that the applicant's father was shot by an unknown person in November 2008. The applicant's evidence is that while his father continues to live in fear, he has had no further problems in Sri Lanka since this incident. While I accept it is plausible that a person in a neighbouring village was shot and killed by an unknown person after the applicant left Sri Lanka, there is no evidence before me that indicates that this incident is connected to the applicant or his family, or that the applicant is at risk of harm in Sri Lanka in relation to that incident.

4. However, in the applicant’s submission, the requirement of s.473DD of the Migration Act that the Authority must not “consider” new claims or new evidence unless the specified requirements were met did not require or entitle the Authority to proceed, as it did in the present case, on the basis that new claims had never in fact been made and new evidence had not in fact been placed before it.

5. To say that a decision-maker has “considered” a claim is to say that the decision-maker has discharged the statutory duty, it would ordinarily have to apply the visa criteria to the information, evidence and arguments provided to it by the visa applicant and thereby conduct a review, as contemplated by the Migration Act.[15]  Just because a decision-maker identifies a claim at some point in its statement of reasons does not mean that the claim has been “considered”.[16] Accordingly, just because s.473DD of the Migration Act requires that a new claim or evidence must not be “considered” does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed.

   [15] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [44]-[45]. See also Minister for Immigration v SZNPG [2010] FCAFC 51 at [27]-[28]

   [16] WAEE op cit at [47]

6. In the same way, the High Court held in Minister for Immigration v SZJGV[17] that the requirement, then in s.91R(3) of the Migration Act,[18] that the Minister “disregard” conduct engaged in by applicants in Australia for the purpose of strengthening their claims to be refugees, did not require the conduct to be ignored altogether. It was held that s.91R(3) only required that the chain of reasoning leading to a determination in favour of the applicant, where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia, could not be applied and that s.91R(3) did not prevent evidence of conduct in Australia being relied upon in making findings as to credibility.

   [17] (2009) 238 CLR 642

   [18] Now s.5J(6) of the Migration Act

7. In the applicant’s submission, the Authority misconstrued and misapplied s.473DD of the Migration Act and thereby committed jurisdictional error.

Minister’s contentions

1. The Minister submits that the applicant’s contention fails at a factual level. On careful analysis of the new information provided by the applicant in his submission at CB 314-315, and as identified at [6] and [8] of the decision record, the applicant provided additional details concerning his claims about his mother’s disappearance, submitting that it was connected to her family’s support of the LTTE, and about his uncle. The applicant had also submitted that his father had been told by neighbours that the shooting of his father in 2008 was carried out by the SLA. The Authority at [9] did not consider that exceptional circumstances existed to justify the consideration of this new information. No challenge to that determination is advanced in these proceedings.

2. The applicant submits that the Authority, despite finding that it could not “consider” the new information concerning the claim about his mother and his father, nevertheless did proceed to consider that information in an adverse way by finding that the applicant had not advanced certain evidence. That is said not to be so. The Authority in its reasons observed that:

   a)the applicant had not raised any claim that he or his family had come to the adverse attention of the Sri Lankan authorities or any other group on account of his uncle’s profile or prior LTTE activities, or on account of his uncle’s death at least 14 years ago;[19]

   b)the applicant had not raised any claim that he or his family had come to the adverse attention of the Sri Lankan authorities or any other group on account of his mother’s disappearance;[20]

   c)there was no evidence that indicated that the incident of a person in a neighbouring village having been shot was connected to the applicant or his family.

   [19] CB 340 at [27]

   [20] CB 340 at [28]

3. The Authority’s findings in this respect were, in the Minister’s submission, correct, and did not suggest any misapplication of s.473DD of the Migration Act. The applicant did not in his submissions to the Authority expressly claim that he or his family had come to the adverse attention of the authorities or any other group in connection with his uncle, or in connection with his mother’s disappearance, or that the incident involving the person having been shot in a neighbouring village was connected to the applicant or his family.

4. Even if those matters had been expressly advanced by the applicant in his submissions, the Minister submits that there was no error in the Authority proceeding on the correct basis that it was not permitted to consider that new information, and then to make findings without that new information in its mind. To do otherwise would be to skirt around the clear statutory imperative imposed by s.473DD to limit the information upon which basis the Authority must conduct its review under s.473CC of the Migration Act. The applicant’s analogy with the High Court’s interpretation of the now repealed s.91R(3) of the Migration Act in SZJGV is said to be inapposite.

Resolution

1. The applicant asserts that the Authority fell into jurisdictional error in that it misconstrued the term “consider” in s.473DD of the Migration Act. Specifically, the applicant submits that despite the applicant having raised in his new claims to the Authority (as new information) certain matters, the Authority ignored the fact of those claims as having been raised at all, and expressly determined that the applicant had not raised such claims.

2. It is certainly arguable that the Authority erred by asserting that no claims were made, as alleged by the applicant, when such claims were addressed and rejected in accordance with s.473DD of the Migration Act. Importantly, however, the applicant does not dispute the analysis undertaken by the Authority for the purposes of the application of that section. Rather, the applicant complains that the Authority in its substantive reasoning has improperly asserted that claims raised and rejected at that early stage were not made at all.

3. The applicant’s contention faces several hurdles. First, it does not appear to me that such an error in the interpretation of s.473DD can infect later substantive reasoning on the information that is before the Authority.

1. I am willing to accept, as a general proposition, that if the Authority receives new claims which it rejects as new information in accordance with s.473DD, it should not assert, in its substantive later reasoning, that no such claims were in fact made. Plainly, they would have been.

2. The correct approach, in my view, is for the Authority, to the extent that it needs to state anything about the rejected new claims, is simply to say that they were not considered as they did not satisfy the pre-conditions for consideration in s.473DD.

3. In that regard, I am not attracted to the Minister’s alternative proposition that a claim left unconsidered following the application of s.473DD is somehow taken to have not been made by reason of the operation of that section. That is, in my view, an unduly artificial interpretation of the section.

4. It is unnecessary to resolve the factual dispute as to whether or not the postulated claims were in fact made.  It is sufficient to note that the Authority identified at [6] of its reasons that new claims were advanced which the Authority at [9] and [10] of its reasons[21] declined to consider.  Those claims were in fact made but not considered. 

   [21] CB 336

5. To the extent that the Authority erred by later asserting in its reasons that the claims identified at [6], or some claim that might hypothetically be similar to those claims, were not in fact made, the error does not, in my view, go to jurisdiction. That is because the claims could not be considered, by reason of the operation of s.473DD, and the use of different terminology by the Authority, in order to recognise that the claims were in fact made, could not have affected the outcome.

Ground 3 – did the Authority err by failing to consider exercising its discretion under s.473DC(3) of the Migration Act?

Applicant’s contentions

1. Subsection 473DC(3) of the Migration Act provides that:

   … the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)  in writing; or

   (b)  at an interview, whether conducted in person, by telephone or in any other way.

2. In Minister for Immigration v CRY16,[22] the Full Federal Court stated that the legislature is to be taken to have intended that the Authority’s statutory power in s.473DC(3) of the Migration Act will be exercised reasonably and, if there are factual issues the applicant had not been given the opportunity to address before the delegate, the failure to invite an applicant to give new information on that issue may constitute jurisdictional error. In that case, the Authority based its decision on the availability of internal relocation in circumstances where the delegate’s decision and the protection visa interview had not addressed that issue:[23]

   …The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

   As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.

   [22] (2017) 253 FCR 475

   [23] at [82]-[83] per the Court (Robertson, Murphy and Kerr JJ)

3. The High Court subsequently adopted this principle in Plaintiff M174/2016 v Minister for Immigration,[24] with the plurality noting at [21] the various powers conferred upon the Authority by Part 7AA (including s.473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration v Li.[25] At [26] the High Court noted that, although there is no general requirement for the Authority to give to the applicant material provided to the Authority by the Secretary (s.473DA(2)), there is nothing in Part 7AA to preclude the Authority from giving the whole or some part of that material to the applicant in the context of exercising the power under s.473DC(3) to invite the giving of new information and s.473DA(2) does not address what may be required of the Authority in particular circumstances in order to exercise that power reasonably.

   [24] (2018) 353 ALR 600

   [25] (2013) 249 CLR 332

4. More recently, in DPI17 v Minister for Home Affairs,[26] the Full Federal Court noted that there is no general principle that the Authority is never obliged to provide the referred applicant with an opportunity to respond if the Authority departs from the delegate’s course of reasoning.  The Full Federal Court found that the failure of the Authority to consider inviting the appellant to comment upon inconsistencies in the referred applicants’ evidence, not relied upon by the delegate, was “plainly unjust” and therefore legally unreasonable.  The Full Federal Court specifically rejected the Minister’s submission based on DGZ16 v Minister for Immigration[27] that the Authority is never required to give a referred applicant the opportunity to comment before it takes a different view regarding the material that was before the delegate.

   [26] [2019] FCAFC 43 (Griffiths, Mortimer and Steward JJ)

   [27] (2018) 258 FCR 551

5. In the present case, the Authority recognised at [13] that the material referred by the Secretary under s.473CB of the Migration Act did not properly address and enable it to conduct a review in respect of that issue:

   I considered it necessary to obtain … new information in order to determine this issue and in my view, there is insufficient information before me regarding the data breach for me to be able to properly assess the claim.  

6. The applicant himself said that he had not been given sufficient opportunity to provide information regarding the issue of the 2014 data breach.[28]

   [28] CB 337

7. The Authority found at [33] that it was “satisfied that no asylum claims were published” in the 2014 data breach but did not refer to the evidence upon which that finding was based.  Although it had obtained new information in the form of the Guardian article, that news article did not say whether details of asylum claims were published.  The applicant submits that, by failing to invite the applicant to give new information, the applicant was denied the opportunity to respond to the proposition that his protection claims had not been published in the 2014 data breach and to comment on the Guardian article which appears to be the sole evidence upon which the Authority’s disposition could have been based.

8. In the applicant’s submission it was not legally reasonable for the Authority not to have invited or considered inviting the applicant to give new information.  The Authority at [13] said that it considered that the Guardian article fell under the exception in s.473DE(3)(a) of the Migration Act; however that was not a justification for it not exercising or considering the exercise of its discretion under s.473DC(3) to invite the applicant to give new information on the issue of the 2014 data breach. There was no evident and intelligible justification not to do so.

Minister’s contentions

1. The Minister submits that it was not legally unreasonable for the Authority not to invite the applicant to an interview, or to consider doing so. First, the applicant himself in his submission to the Authority at CB 316 stated that:

   The Department failed to give an opportunity for me to put in writing which I couldn’t explain in person at the interview being a young boy.

2. That is, the applicant was not asking the Authority for a further opportunity to appear at an interview. He had already had such an opportunity before the delegate.[29] Rather, the applicant had complained that the Minister’s Department had not given him an opportunity to put something in writing. However the applicant had the opportunity to make written submissions to the Authority, which opportunity he took up, but he did not provide any information relating to the harm he feared about the 2014 data breach. In the circumstances, the Minister submits that it was not incumbent upon the Authority, acting reasonably, to invite the applicant to an interview to provide further information, or to enable him further opportunities to provide additional information about the 2014 data breach matter.

   [29] CB 294

3. Secondly, the Minister submits that it is not evident what information the applicant could have given to the Authority concerning the risk of harm he would face arising from the 2014 data breach. The Authority took into account information it derived from its sources concerning the nature of the 2014 data breach, the fact that protection claims had not been disclosed, and that therefore the applicant would not face a relevant risk of harm.

4. Thirdly, the Minister submits that legal unreasonableness is a separate matter from the applicant’s entitlement to procedural fairness. To the extent the applicant wished to attend an interview before the Authority in order to be afforded an opportunity to give evidence about the 2014 data breach, that complaint concerns a question of procedural fairness. The applicant was not entitled to be invited to a hearing, or to address particular issues arising on the review, in order for the Authority’s processes to be fair.[30]  The relevant analysis rather is whether it was legally unreasonable for the Authority not to invite, or to consider inviting, the applicant to an interview. As Wigney J stated in Minister for Immigration v Stretton[31] at [92]:

   The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. … If there is an evident, transparent and intelligible justification for the decision... or if the decision is within the "area of decisional freedom" of the decision-maker, it would be an error for the Court to overturn the decision simply on the basis it would have decided the matter differently.

   [30] DGZ16 at [75]

   [31] (2016) 237 FCR 1

5. Further, the applicant contends that there was no evidence upon which basis the Authority concluded at [33] that no asylum claims were published in the 2014 data breach document. Whilst the Authority does not cite a direct source for that finding, it was understood on the facts of SZSSJ v Minister for Immigration,[32] to which the Authority referred, and which was the subject of a successful appeal,[33] that only the identities of the asylum seekers were identified in the 2014 data breach document, not the nature of any claims. To the extent the applicant suggests the Authority made a factual error going to jurisdiction, the Minister contends that it is for the applicant to prove the error.

   [32] (2015) 234 FCR 1

   [33] Minister for Immigration v SZSSJ (2016) 259 CLR 180

Resolution

1. In the third ground the applicant contends that the Authority failed unreasonably to exercise, or to consider exercising, its power under s.473DC(3) to get new information from the applicant concerning the applicant’s claim of being at risk of harm due to the 2014 data breach. As the Authority set out at [32] of its reasons, the applicant did not in his initial protection claims rely on the 2014 data breach. He was informed that his name and date of birth, but not details about his protection claims, were “possibly” made available. The Authority at [33] noted that it had been conceded by the delegate that the applicant’s private details had been included in the document that was inadvertently made public for 14 days in 2014. The Authority, by reference both to Department of Foreign Affairs and Trade (DFAT) country information and new information it obtained in the form of the Guardian article, accepted that it was possible the Sri Lankan authorities had accessed the document. However, it was satisfied that no asylum claims were published such that the Sri Lankan authorities would not know the applicant’s reasons for seeking protection.

2. While the Authority stated at [13][34] that it had regard to new information concerning the 2014 data breach, it did not there identify that information.  In the discussion on that issue at [33],[35] the Authority identified three pieces of information.  The first was the Guardian article.  The second was the decision of the Full Federal Court in SZSSJ.  The third was the DFAT Country Report published on 24 January 2017 in relation to Sri Lanka (2017 DFAT Report). 

   [34] CB 337

   [35] CB 341

3. The Authority had already stated at [12][36] that it had obtained the 2017 DFAT Report and so that may be put to one side. Court decisions are not, in my view, new information for the purposes of s.473DD of the Migration Act because they are matters of public record and while they guide the exercise of power by the Authority, they have no evidentiary character.

   [36] CB 336

4. It is a mystery to me why the Authority felt the need to have regard to the Guardian article when the article simply reported on the decision of the Full Federal Court in SZSSJ.  The same facts could have been (and in my view should have been) obtained from the Court’s judgment.

5. In any event, the Authority did not in my view err by failing to consider exercising its discretion under s.473DC(3), if it did in fact fail to consider it. The applicant had already made submissions to the delegate concerning the 2014 data breach and could have made further submissions to the Authority. The applicant does not contend, that because the process put in place by the Minister’s Department to deal with the consequences of the 2014 data breach was found to be unfair, some further process before the Authority was necessary. Rather, the applicant asserts that, because new information relating to the 2014 data breach was obtained by the Authority, the applicant should have been invited to give new information on it. The new information obtained was, however, simply a commentary on the Minister’s Department’s process. The additional facts revealed about the 2014 data breach were unlikely to be matters on which the applicant could usefully comment. The applicant had no personal knowledge of what had been revealed and to whom. The Authority proceeded on the basis that the applicant would be returning to Sri Lanka as a failed asylum seeker, which would be known to the Sri Lankan authorities.

6. It was not, in my view, unreasonable for the Authority not to consider exercising its power under s.473DC of the Migration Act, in the event that there was in fact no such consideration.

Conclusion

1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 August 2020