CJK18 v Minister for Home Affairs
[2019] FCCA 47
•14 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 47 |
| Catchwords: MIGRATION – Application for judicial review of decision under fast track review process in Part 7AA of Migration Act – Data Breach – whether requirement to adopt assumption as interpreted in Minister for Immigration and Border Protection v SZSSJ – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.7AA, 48B, 195A, 417, 473DA, 473DB, 473DC Immigrants and Emigrants Act (Sri Lanka) |
| Cases cited: BRF15 v Minister for Immigration and Border Protection [2018] FCA 1057 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Kioa v West (1983) 159 CLR 550 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 |
| Applicant: | CJK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | DNG 7 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Darwin |
| Delivered on: | 14 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Mr Liveris of Counsel |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 7 of 2018
| CJK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made under the fast track review process in Part 7AA of the Migration Act (“the Act”) to affirm a decision of the Minister’s delegate not to grant the applicant a protection visa.
The applicant is a Sri Lankan citizen of Tamil ethnicity who fled from Sri Lanka to India to escape the civil war when he was four or five years old. He said that his father was suspected of assisting the Liberation Tigers of Tamil Eelam (“LTTE”) and was killed by the Sri Lankan army. He said his mother disappeared when she went to look for his father. He went to India in 1989 with his grandmother and grew up there in a refugee camp. The Authority accepted the credibility of the applicant’s claims about these matters.
The Authority summarised the applicant’s claims as follows:
· His parents were killed in the war and his father was suspected of being an LTTE supporter.
· The Sri Lankan authorities are hunting down Tamils to retain control over the land and his life will be threatened if he returns.
· Conflict between the LTTE and the government is ongoing and he will not be able to live in peace.
· Local police in India falsely accused him of crimes against the Sri Lankan government and he was brutally beaten and tortured and forced to move around because of the attitude shown towards him.
· His personal details were released online by the Department during the Data Breach of February 2014
In relation to the applicant’s claims about his father’s LTTE associations, Tamil ethnicity and imputed political opinion the Authority accepted that the applicants father was killed because of suspected LTTE involvement and that his mother disappeared, presumed killed, when she went to search for his father. However, the Authority found that since the end of the civil war and the change of government (the election of the Sirisena government in 2015) that the human rights situation for Tamils had greatly improved. The country information referred to by the Authority acknowledged that instances of serious human rights abuses, including torture, had been reported more recently but this was not related to any particular ethnic group and arose when citizens come into contact with law enforcement officials. Country information also said that individuals with certain profiles, including family links to former LTTE members or cadres, may be at risk. Given that the death of the applicant’s father because of suspected LTTE involvement had taken place more than 28 years ago and the applicant had left Sri Lanka at age five the Authority was not satisfied that the applicant was at risk from the Sri Lankan authorities on the basis of his or his father’s actual or imputed connection to or support for the LTTE.
In relation to the applicant’s claims about his activities in India the Authority observed that the details of his claims were vague. The Authority accepted that the applicant took part in two or three demonstrations in support of refugees in India and was also willing to accept that he had been beaten by local police but did not accept, because that claim was made late, that he had been tortured. The Authority accepted that the applicant may have had some low-level involvement, in demonstrations, such as chanting slogans, but nothing more. In any event this had taken place in about 2007/2008 and the applicant has never been arrested by Indian authorities. The Authority did not accept that with such a limited profile that the applicant faced any real chance of harm from the Sri Lankan authorities should he return.
In relation to the applicant’s claims about his illegal departure from Sri Lanka and being a returning asylum seeker the Authority accepted the applicant was likely to be found to have breached the Immigrants and Emigrants Act (Sri Lanka) and might be held in custody for up to 24 hours after arrival but concluded that the risk of torture or mistreatment in that process was low.
In relation to the Data Breach the applicant claimed that the Sri Lankan government will know his details as a result of the Data Breach and would have identified him as the son of a person who was “on their radar”. The Authority accepted that some of the applicant’s personal information may have been disclosed online. The Authority dealt with the issue as follows. First, it concluded that the chance of the applicant’s personal information being accessed was remote:
As the delegate noted the personal information about people in immigration detention on 31 January 2014 was accessible online for only a short period of time before being removed from the website and was not easily accessible. Given this, I consider the chances the applicant’s personal information was accessed are remote.
Additionally, the Authority concluded that the information did not increase the applicant’s risk of harm:
Secondly, even if the information was accessed (which I do not accept), it did not include information about his protection claims or contact details. It would have revealed no more than the fact that the applicant was seeking asylum in Australia, a fact that will become apparent to the authorities by the manner of his return. I am not satisfied that the applicant is it any increased risk of harm on re-entry to Sri Lanka due to the Department’s data breach.
The Authority concluded that the applicant did not have a well-founded fear of persecution under the Act nor was he in need of complementary protection because the Authority was not satisfied that there is a real risk that he will suffer significant harm on return to Sri Lanka.
The applicant was unrepresented in the hearing before me. His written application did not describe any legally recognisable ground of review. It said “Please can you review my application again”. The only purported ground of review in his application referred to him residing for four years in Australia and for 24 years in India and said that he does not have “any status”. The applicant did not identify any form of jurisdictional error in his brief oral submissions.
Notwithstanding the applicant’s inability to identify any jurisdictional error I asked counsel for the Minister to make a submission about the treatment by the Authority of the Data Breach. I was concerned that the decision of Rares J in BFR15 v Minister for Immigration and Border Protection [2018] FCA 1057 and related cases dealt with in that decision may have some relevance. I was otherwise satisfied that the Authority’s decision was not affected by jurisdictional error.
The decision in BFR15 followed the High Court’s decision in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180. In SZSSJ the applicant argued, among other things, that the failure of the Department to provide an unabridged report prepared by KPMG which may have contained further information about the Data Breach constituted procedural unfairness. In conducting an International Treaties Obligations Assessment (“ITOA”) following the Data Breach, a departmental Procedures Advice Manual required departmental officers to adopt the assumption than an applicant’s personal information may have been accessed by the authorities in the country in which the applicant feared persecution or other relevant harm. The High Court held that, sensibly interpreted, this required an assumption that all of the personal information of the relevant person had been accessed by all of the persons or entities from whom that person fear persecution or other relevant harm. This removed from the scope of factual enquiry any question of precisely who had accessed their personal information as a result of the Data Breach. The departmental officer applied that assumption and, accordingly, the failure of the Department to provide the unabridged report did not constitute procedural unfairness.
In BFR15 Rares J held that the failure of a decision-maker undertaking an International Treaties Obligation Assessment in relation to the Data Breach to apply that assumption constituted jurisdictional error. He said:
Each assessor reasoned to his findings of implausibility in a way that denied the operation of the assumption that the High Court said was the sensible interpretation and application of it. It follows that each assessor made a jurisdictional error in failing to conduct each ITOA in accordance with the assumption as explained by the High Court. (at [29]).
His Honour was not specific about the category of jurisdictional error, whether procedural unfairness or otherwise. The High Court in considering the ITOA process in SZSSJ found, referring to the decision of the Full Court, that neither a failure by the Department to adequately explain the ITOA process to the applicant or a failure by the Department to reveal “all that it knows” to the applicant (by disclosing the unabridged KPMG report) constituted procedural unfairness (SZSSJ at [84], [85]) so his Honour must have been referring to some other kind of jurisdictional error. In some cases it may be procedurally unfair to depart from an administrative or regular practice which a person can reasonably expect it to continue: Kioa v West (1985) 159 CLR 550 at p. 583 per Mason J and p. 626 per Brennan J.
In SZSSJ the departmental officers were conducting the ITOAs preparatory to an exercise of the Minister’s personal powers under ss. 48B, 195A and 417. In assessing the effect of the Data Breach they were specifically instructed in a publicly available Procedures Advice Manual to adopt the assumption that an applicant’s personal information may have been accessed by the authorities in the country in which the applicant feared persecution or other relevant harm.
The different fast track review process under Part 7AA contains an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority: s. 473 DA. Reviews are to be conducted on the papers provided to the Authority by the Secretary of the Department and without accepting or requesting new information and without interviewing the applicant: s. 473DB. The Authority may get “new information” which is defined as information that was not before the Minister when the relevant decision was made and which the Authority considers relevant: s. 473DC. The Authority must not consider new information unless it is satisfied that there are exceptional circumstances for doing so and unless the Authority is satisfied that in relation to any new information it could not have been provided to the Minister before the relevant decision was made or is credible personal information which was not previously known and may have affected the consideration of the applicant’s claims: s. 473DD. The Authority said that it did not consider any new information in this case.
It is not clear what papers and materials were provided to the Authority by the Secretary. There is no evidence that the Procedures Advice Manual used in the ITOA process requiring the adoption of an assumption about access to the Data Breach information was before the Authority or that it was instructed to adopt the assumption. It is apparent from reading the decision record of the Minister’s delegate that the delegate did not apply the assumption, as interpreted by the High Court, that all persons and entities from whom the applicant feared harm had accessed the personal information published in the Data Breach. The Authority did not expressly refer to the assumption in its consideration of the potential impact of the Data Breach although it considered the likely impact of the release of the applicant’s personal information assuming it was accessed by the Sri Lankan government, which arguably amounted to the same thing.
In this case, the Minister submitted that BFR15 should be distinguished and that the reasoning in SZSSJ was inapplicable to the present case because it applied to a different legislative framework. It was submitted that BFR15 and SZSSJ were concerned with the ITOA process following the Data Breach rather than the fast track review process under Part 7AA of the Act.
In SZSSJ the High Court said that procedural fairness was required in the ITOA process conducted for the purposes of the relevant sections of the Migration Act. The Court said at [75]:
… a statute conferring power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.
In a more recent High Court decision, Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1, the plurality (Kiefel CJ, Gageler and Keane JJ) said at [24]:
Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute to which the decision-maker purported to make it.
Unless bound by direct authority I would not be satisfied that a failure to adopt the assumption that departmental assessors were required to adopt by the relevant Procedures Advice Manual in the ITOA process, as interpreted by the High Court in SZSSJ, constituted jurisdictional error under the different decision making process in Part 7AA. It is not apparent that the relevant Procedures Advice Manual was before the Authority or that it was required to adopt that assumption. Further, there is no indication of any relevant practice directions pursuant to section 473F or guidance directions pursuant to section 473FC of the Act having been issued relating to such matters. In my view, in this context a failure by the Authority to apply the same assumption does not constitute jurisdictional error because it is not a failure to exercise a power subject to an implied legislative condition as formulated in SZSSJ and Hossain.
I am not satisfied any ground of jurisdictional error is made out.
The application is dismissed and there will be an order for costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 14 January 2019
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