BXV15 v Minister for Immigration

[2017] FCCA 455

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXV15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 455

Catchwords:
MIGRATION – Application for judicial review of ITOA decision – no breach of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29
CDM16 v Minister for Immigration [2016] FCCA 2758
AKD15 v Minister & Ors [2016] FCCA 2740

Applicant: BXV15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

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

Third Respondent: AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 52 of 2015

Judgment of: Judge Young

Hearing date: 1 March 2017

Date of Last Submission: 1 March 2017

Delivered at: Darwin

Delivered on: 1 March 2017

REPRESENTATION

Applicant via videolink: In person

Counsel for Respondents: Ms Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The oral application for an adjournment made by the applicant today be dismissed.

2. The application filed 23 September 2015 be dismissed.

3. The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 52 of 2015

BXV15

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

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. The applicant in this matter has sought an adjournment. He is unrepresented.  He has told me without demur from counsel for the Minister that he was released from detention on 1 December 2016.  In other words, he has been in the community for three months.  He sought an adjournment to obtain a lawyer and I asked him what steps he had taken to do that. 

3. He said that he had had an appointment with a solicitor in Sydney whose name is (as I understood it) Michaela Byers but the appointment had been cancelled.  I might say that the applicant is presently in the community in, as I understand it, Griffith in New South Wales even though the hearing is taking place by video link from Melbourne. 

4. I asked him what steps he had taken to arrange an appointment and he said that on 5 or 6 January he telephoned Ms Byers in Sydney.  She was recommended by friends and he told me he made an appointment to see her on 20 February 2016 and he travelled, presumably from Griffith, to Sydney to see her.  I might say that it is my understanding that a road journey from Griffith to Sydney is a considerable distance, involving a journey of at least some hours. He told me that once he got to Sydney to see Ms Byers she was too busy to see him, or, rather, specifically, he said she was in court.

5. He had also told me that he was seeking to retain Ms Byers on the basis that she would not charge him.  That is, she would act for him on a pro bono basis, and in his words, "Any other lawyer would be charging too much."  I asked why if Ms Byers had actually made an appointment to see him on 20 February he did not wait until she was out of court or at least make an arrangement to see her the next day.  I would have thought any lawyer, having made an appointment to see a prospective client, whether pro bono or otherwise, if they were unavailable because they had been detained in court would make time shortly afterwards to see that person whom they had potentially inconvenienced.

6. I asked the applicant why he had not waited to see her. He said that she was too busy to see him all week. I said that that seemed surprising in view of the fact that she had made an appointment to see him.  He then indicated that perhaps the reason for that was that he had not paid a fee or was not intending to pay a fee, which appeared to me inconsistent with his earlier statement that she was willing to act for him pro bono. 

7. I am not satisfied that there is a proper basis for an adjournment.  I am not satisfied that the applicant has taken any reasonable steps to obtain legal advice and I am far from satisfied that any definite arrangement has been made with Ms Byers. Had she been willing to appear for him at some later point but was unable to appear today, I would have expected perhaps at least some indication of that from her by affidavit or some other means.  There is silence.  I am not satisfied that the application that the applicant makes for an adjournment in order to seek a lawyer, having had at least three months to arrange that since he was released in the community, is a genuine one. I dismiss the application.

8. This is an application for judicial review of a decision made by a departmental officer under the International Treaty Obligation Assessment process, usually called ITOA.  The applicant is a citizen of India.  He arrived in Australia in December 2008 on student visa, as I understand it.  His visa was cancelled in September 2010, apparently for reasons of non-attendance.  He sought to review that decision unsuccessfully in the Migration Review Tribunal and later in this court.

9. In 2014 or perhaps in 2013 the applicant applied for a protection visa.  That was refused by a delegate in February 2014.  That decision was affirmed in the Refugee Review Tribunal in April 2014, in this court in June 2015, and, as I understand it, a Federal Court appeal from that decision was unsuccessful in July 2015 (but I have not seen the result of that appeal).  In February 2014 the applicant, along with thousands of others, was the subject of an event known as the “data breach” where the personal details of detainees were released accidentally on the internet.

10. As a result of that event the department undertook an ITOA for this applicant and others.  The ITOA resulted in a decision by the department, or at least the departmental officer, on 2 September 2015 that the applicant was not at risk of serious harm should he be returned to India.  In other words, Australia's non-refoulement obligations were not engaged as a result of the data breach.  The officer undertaking the ITOA assessed the various claims of the applicant, which I do not need to consider in any detail, but I will summarise them.

11. They included that he would be the target of foreign security or intelligence agencies, terrorist organisations or criminal syndicates as a result of the data breach. That claim was not accepted by the departmental officer.  I ought to have said that the ITOA was conducted on the basis that it was to be assumed by the assessing officer that the material leaked had been accessed by the applicant's home government, that is, the Indian government.

12. In relation to those claims, the departmental officer held that they were unsubstantiated and speculative.  I might add that in this court the applicant made a more specific claim, which is that if he returned to Punjab, which I understood is his home province, he would be subject to risk of harm from Pakistani agents.  That claim, whether or not it was made to the officer conducting the ITOA, would be subsumed under the general conclusions the officer conducting the ITOA made about foreign security and intelligence agencies. To the extent that that claim is relevant, it was subsumed in earlier claims that have been found to be unsubstantiated and speculative. 

13. There was consideration of a claim that the applicant would be denied employment as a result of the website disclosures.  The officer found, on the basis of the applicant's lack of skills, it would be very unlikely that for any job the applicant was likely to find in India a potential employer would search the web.

14. Similarly, for the claim that the applicant would be denied visa travel, while the departmental officer accepted that there was some such risk, particularly if the applicant sought to travel overseas to some country other than India, he found that even if that were to occur it did not amount to serious or significant harm.  Similarly, the claim that the applicant should be recognised as a refugee sur place, which appears to rest on the earlier protection visa claims which have been found to be not credible, was found to be inconsistent with country information about India. The officer found that claim unpersuasive and unconvincing. 

15. There is nothing in the consideration of the ITOA by the departmental officer that would suggest the conclusions of that officer were irrational or without an evident or intelligible basis. 

16. The applicant raised a complaint that the time he had to reply to the invitation to make submissions to the officer undertaking the ITOA, being 14 days, was too little.  He told me that he did, in fact, make submissions but the submissions he made were based on claims his friends had told him they had made.

17. The claims that he could not travel and could not get a job, which I have just referred to, he said were copied from friends' applications and he copied them because they had legal assistance and he did not.  He told me that there was a claim that he wanted to raise, which was that he had fear of “some person” in India. He was unable to explain to me how, given that he had the opportunity to make other claims (which on his own account would appear to have been not genuine), he was unable to make a genuine claim, that is, his fear of some other person, to use his words. He did not explain that to me. 

18. It appears to me that the process that was followed in the ITOA in this case was the same as the process, or at least indistinguishable from the process, that was considered by the High Court in SZSSJ v The Minister, SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653 and held to be procedurally fair.

19. The application to this court is a template application, and, while the heart of it is a complaint of lack of procedural fairness, it is a template complaint. There is no individuality about it whatsoever.  It appears to be a complaint in similar terms to that considered in SZSSJ.  There is nothing that the applicant has raised before me that amounts to an allegation of a denial of procedural fairness. 

20. In the template application there are also various other grounds, if I can put it that way. I use that word somewhat loosely as many of the claims are difficult to understand or misplaced. Those claims have been made in this court in identical terms in other cases. They were considered in CDM16 v Minister for Immigration [2016] FCCA 2758, a decision of Judge Driver, who held that they did not give rise to a ground for relief of any kind. A similar conclusion was reached by Judge Street in AKD15 v Minister & Ors [2016] FCCA 2740. It appears to me that the same conclusion must be reached in relation to those other grounds as was reached by those judges. Those other grounds do not give rise to a ground for relief for the reasons set out by those judges in those decisions. Accordingly, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 10 March 2017