CLR15 v Minister for Immigration
[2018] FCCA 989
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLR15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 989 |
| Catchwords: MIGRATION – Protection visa (class XD) – applicant claimed to fear harm, if returned to Vietnam, from Vietnamese authorities because of her catholic religion and imputed “anti-government” political opinion – applicant applied for protection visa and then later gave birth and sought to add her child to the visa application – forms 866B and 866D sent to minister’s delegate – minister’s delegate failed to consider child’s application – tribunal wrongly finding it lacked jurisdiction to review child’s application – applicant’s name and immigration status published on the internet following departmental data breach in 2014 – applicant claimed risk of harm at the hands of Vietnamese authorities was greatly exacerbated because of data breach – tribunal dismissed applicant’s claim about the consequences of the data breach as “highly speculative” – tribunal’s attempt to make a finding about precisely who had obtained access to the personal information from the data breach published on the internet was a “hopeless endeavour” – application allowed – constitutional writs issued. |
| Legislation: Migration Act 1958, ss.36, 45AA, 47(3), 422B Migration Regulations 1994, reg.2.08F, Sch.2, cl.785.221 |
| Cases cited: AAG15 v Minister for Immigration and Border Protection [2016] FCA 67 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 |
| Applicant: | CLR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 66 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 December 2017 |
| Date of Last Submission: | 21 January 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr C McDermott |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
Leave is granted to join the applicant’s son (“CLR15.1”) as a party to this proceeding.
The applicant is hereby known as the first applicant and CLR15.1 is hereby known as the second applicant.
Leave is granted to the first applicant to file a further amended application by 4pm on 29 November 2017.
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 22 October 2015 (in matter number 1511609).
A writ in the nature of prohibition issue restraining first respondent, by himself, his employees, officers, delegates or agents, from acting upon or giving effect to the decision made by the second respondent on 22 October 2015.
A writ in the nature of mandamus issue requiring the second respondent differently constituted to rehear and determine according to law –
(a)the first applicant’s application for review of the decision of the delegate of the first respondent; and
(b)the second applicant’s forms 866B and 866D.
The first respondent pay the first applicant’s costs of this proceeding fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 66 of 2016
| CLR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raised a complicated issue for determination concerning the status of a child born to a mother then in immigration detention.
The applicant (described as CLR15), a citizen of Vietnam, arrived in Australia as an unauthorised maritime arrival on 8 April 2013. She applied for a protection visa on 16 June 2014. On 7 April 2015 CLR15 gave birth to her son. On 10 July 2015 CLR15 purported to include her son in her visa application as a member of the family unit. On 14 August 2015 the minister’s delegate refused to grant CLR15 the protection visa she sought. However, the minister’s delegate made no decision in respect of CLR15’s son in the delegate’s decision.
On 25 August 2015 CLR15 applied to the Administrative Appeals Tribunal for a merits review of the delegate’s decision. CLR15 purported to include her son as an applicant in that application. On 8 September 2015 the tribunal invited CLR15 and her son to appear before it to give evidence and to present argument at a hearing scheduled for 6 October 2015. CLR15 duly appeared on that hearing and her representative provided a supplementary written submission to the tribunal on 16 October 2015.
On 22 October 2015 the tribunal made a decision on CLR15’s protection visa application affirming the delegate’s decision not to grant the visa and the tribunal determined that it had no jurisdiction in relation to CLR15’s son.
In this application CLR15 sought judicial review of the tribunal’s decision. In her amended application filed by consent on 29 November 2017 CLR15 sought leave to join her son as the second respondent. She also sought an order appointing her as her son’s litigation guardian.
On 5 December 2017 I heard argument on the judicial review application. On that day the minister’s counsel sought leave to file further submissions in relation to ground 1 in response to which I granted leave to the minister to file further submissions by 10 January 2018 and for CLR15 to file responding submissions by 24 January 2018. Submissions were duly filed.
Against that factual backdrop, two main issues emerged for my determination. The first was whether the tribunal fell into jurisdictional error in relation to CLR15’s protection visa application. The second was whether the tribunal made an error of law in determining that it had no jurisdiction in relation to CLR15’s son.
Synopsis
In my judgment for the reasons that follow the tribunal did in fact fall into jurisdictional error on both grounds. Constitutional writs must issue.
The factual context of this application
All aspects of this case were hard-fought. Yet they were argued with precision, clarity and courtesy. May I at once record my gratitude to all legal representatives in this case for the high quality of their submissions in respect of the two legal issues that arose the determination.
Before addressing the factual history of the case, during debate on 5 December 2017 the parties adopted the pseudonym CLR15.1[1] in reference to the proposed second applicant, CLR15’s son. Whether he acquired the formal legal status of the second applicant depended on whether I granted leave for his joinder as the second applicant. That in turn depended on whether his joinder application had merits as it seemed to me that no useful purpose would have been served by ordering his joinder in circumstances where the very purpose of his being joined was devoid of merit.
[1] Transcript of proceeding (5 December 2017) p.3, ll.29-30
Certain rudimentary information concerning CLR15 was obtained in her irregular maritime arrival entry interview conducted on 28 April 2013. In order to better understand how the tribunal approached its statutory tasks it became necessary to set out the state of the information that was available to the tribunal.
CLR15 stated that for a period she sold flowers at Vinh Market, Nghe An, Vietnam where she worked in retail. She stated she was married. She stated she had a daughter born in 2007 who was residing in Nghe An, Vietnam, and that she had another daughter born in 2012 who was also residing in Vietnam with CLR15’s mother-in-law. She stated she first met a people smuggler in March 2013 who was an acquaintance at her church. The people smuggler was known only as Ali, who appeared to be Indonesian, she said.
She said she paid Ali USD 8,000 for which Ali arranged for her to be transported by boat to a larger boat, later identified by the codename “Outback” on which she travelled between Indonesia and Australia. During her interview she was asked why she chose Australia to which she responded “it is more comfortable to live here”. She was unable to sign the interview record so the mark “n/a” was added against the date 1 May 2013.
With the assistance of an interpreter CLR15 made a statutory declaration on 6 June 2014. It was 23 paragraphs in length. Relevantly paraphrased, the more important points that emerged from her statutory declaration were those recorded below. She stated that –
a)she feared persecution because she was catholic and in Vietnam catholics routinely face discrimination by the authorities and by non-catholics;
b)land that belonged to her local parish church was taken by the government, turned into a park and when protesters complained, they were assaulted, although CLR15 was not among them;
c)she performed charity works for catholics, a risky undertaking as catholic charity workers could have been arrested;
d)as a catholic she encountered difficulty securing employment;
e)she feared she would be harmed in Vietnam by reason of the activities of her husband’s family, one member of which (his uncle) was a campaigner against corruption whose house had been bombed;
f)on 18 September 2011 CLR15’s husband was arrested by plain-clothed police who broke her husband’s nose and a tooth;
g)thereafter CLR15’s husband decided to leave Vietnam as his life had been threatened by persons opposed to the husband’s uncle’s anticorruption activities;
h)CLR15’s husband’s uncle was stabbed while riding a motorbike following the bombing of his house;
i)CLR15’s husband left Vietnam as he felt his life was in danger from police and hired thugs;
j)CLR15 did not leave Vietnam at the same time as her husband did as they decided it was too risky to leave together;
k)she did not give information at the entry interview of political activities in Vietnam as she feared that such information would be available to the Vietnamese government if she was returned to Vietnam;
l)she was very concerned that her name and her husband’s name, as asylum seekers, would be published as it would create problems for them if they were returned to Vietnam;
m)any person wanting to find CLR15 and her husband could do so easily as Vietnam is not a large country and they could not get protection in Vietnam from the government or authorities; and
n)she believed she was a refugee.
On 2 December 2014 the department wrote to an officer of Refugee and Immigration Legal Centre Inc. (“RILCI”) stating that RILCI had been authorised to receive correspondence on behalf of CLR15. Also on 2 December 2014 the delegate invited CLR15 to attend an interview on 16 December 2014.
No notes, records or other documents were among the delegate’s papers in the court book in respect of the interview on 16 December 2014.
On 7 April 2015 CLR15.1 was born.
In mid-May 2015 RILCI and officers of the department communicated by email with information concerning CLR15’s husband’s uncle. On 10 July 2015 CLR15 signed an application for a member of the family unit (form 866D) for her son to be included in CLR15’s protection visa. On 13 July 2013, a solicitor with RILCI emailed the form to the department along with a form 866B.
On 14 August 2015 the delegate notified RILCI (as the entity authorised to receive correspondence on behalf of CLR15) to inform CLR15 that her application for a protection visa had been refused.
By reason of the significance that the tribunal placed on the delegate’s findings, especially in relation to CLR15’s son, it became relevant for me to go to the details of the delegate’s decision even though, on a merits review, the tribunal ordinarily examines the visa application afresh through new eyes unaffected by whatever the delegate did.
On 14 August 2015 the delegate notified CLR15 of the delegate’s decision concerning the visa application in respect of CLR15 but not in relation to CLR15’s son. The delegate did that despite the RILCI’s solicitor emailing the delegate a month earlier with forms 866B and 866D in respect of CLR15’s son. In other words, the forms 866B and 866D had in fact been provided to the delegate one month prior to the delegate deciding to refuse CLR15’s application for a visa yet the delegate said nothing about the application by CLR15’s son.
The delegate did not acknowledge receipt of the application made on behalf of CLR15’s son. The delegate ignored CLR15’s son’s application, a peculiar position for the delegate to adopt as the forms 866B and 866D had been emailed to the delegate directly by RILCI. The delegate did not take issue with RILCI’s email attaching the forms 866B and 866D when sent on 13 July 2015 nor did the delegate ask why those forms were sent to the delegate in the first place. It was obvious enough that RILCI was emailing the forms 866B and 866D to the delegate on 13 July 2015 so that CLR15’s son’s application could be considered as a member of the family unit of which his mother CLR15 self-evidently was part. It was also obvious that RILCI, by emailing those forms to the delegate on 13 July 2015, was communicating to the delegate the significance of having CLR15’s application addressed concurrently with that of her son. Yet for an unexplained reason the delegate said nothing in response to the 13 July 2015 email, instead remaining silent and in the process permitting RILCI to assume (perfectly properly, in my view) that CLR15’s son’s application was regularly before CLR15. Put differently, had CLR15’s son’s application not been properly and regularly before the delegate following the email transmission by RLICI to the delegate on 13 July 2015 then one would legitimately have expected the delegate to not remain silent but rather to have given voice to the illegitimacy of CLR15’s son’s application.
But that did not happen.
That behaviour by the delegate went unexplained. I found it inexplicable that the delegate remained silent in that manner and in those circumstances, especially having regard to the fact that by the delegate’s failure to engage with RILCI’s solicitor after 13 July 2015, RILCI and CLR15 were entitled to assume that both visa applications and not only one were before the delegate for decision. In my view, that was peculiar treatment by the delegate towards CLR15, her son and towards RILCI, wholly antithetical to the good behaviour required of the minister as a model litigant.
At all events, the delegate commenced her reasons by stating that the delegate was not satisfied CLR15 was a person in respect of whom Australia had protection obligations under s.36 of the Migration Act (“Act”) and cl.785.221 of Schedule 2 to the Migration Regulations (“regulations”), so she refused CLR15 a temporary protection (class XD) visa. That result was imposed notwithstanding that CLR15 applied for a protection visa (class XA), not a temporary (protection) (class XD) visa.
Returning to the delegate’s reasons, the delegate stated in paragraph 2 of her reasons that CLR15’s application for a protection (class XA) subclass 866 visa was validly made on 16 June 2014. The delegate then stated that by operation of s.45AA of the Act and reg.2.08F of the regulations, CLR15’s application for a protection (class XA) visa was converted to an application for a temporary protection (class XD) visa. It seemed to me that the legal correctness or otherwise of the delegate’s construction and application of s.45AA of the Act and reg.2.08F of the regulations did not call for examination. The upshot of this application fell for consideration on other grounds.
Under section 5, entitled “MATERIAL BEFORE THE DECISION MAKER”, the delegate referred to the departmental file relating to CLR15 only, not forms 866B and 866D relating to CLR15’s son. That seemed to me to be erroneous. I am persuaded that those forms 866B and 866D were properly before the delegate. Precisely why the delegate did not refer to them in paragraph 5 of her decision was not said.
In section 6 of her reasons, the delegate paraphrased the matters mentioned by CLR15 in her statutory declaration. The matters to which the delegate referred in paragraph 6 of the reasons missed a number of the points raised in CLR15’s statutory declaration including how her husband uncle’s house had been bombed, how her husband’s uncle had been stabbed and that she feared harm by reason of her imputed political beliefs.
In section 9 of her reasons the delegate addressed CLR15’s credibility. Without giving any reasons, let alone intelligible reasons capable of withstanding scrutiny, the delegate said she did not accept that CLR15 had been persecuted or discriminated against due to her catholic religion. In section 9 under the heading “Situation for Catholics in Vietnam”, the delegate referred to the United States Commission on International Religious Freedom report regarding Vietnam which highlighted violence between Vietnamese and catholics. The delegate also referred to the 2014 annual report of the United States Commission on International Religious Freedom that spoke of a deterioration of religious relations between catholics and local government officials in the Nghe An province and that force was used to arrest catholic activists. The delegate also referred to a report by the special rapporteur of the United Nations concerning incidents between catholics and security force members in relation to expropriation of church land in the Nghe An province (consistent with one particular in CLR15’s statutory declaration). The delegate also referred to the report of July 2014 from the United Nations special rapporteur to Vietnam who spoke of property disputes creating tension between religious and local authorities as well as his speaking of human rights violations by authorities in Vietnam including disruption of religious ceremonies, imprisonment, assault of parishioners and pressuring religious adherents to cease their religions and to follow religions or practices condoned by the authorities.
Those references seemed to me to be consistent with the very thing to which CLR15 referred when mentioning persecution and discrimination on account of her catholic religion. To my mind, objective evidence corroborated the claim by CLR15 that she had been persecuted or discriminated against due to her catholic religion. Thus, I found it impossible to conclude that a rational thread of logic existed in the evidence underpinning the delegate’s statement on page 6 of the reasons[2] that she did not accept that CLR15 could claim that CLR15 had been persecuted or discriminated against due to her catholic religion. An abundance of objective evidence existed of persecution of and discrimination against catholics. That finding by the delegate was peculiar in the extreme.
[2] Court book filed 24 December 2015, p.141
On page 10 of her reasons[3] the delegate stated that she did not accept that CLR15 or CLR15’s husband had been located, singled out or threatened because CLR15’s husband provided a delivery service on occasion for his uncle. The delegate gave no reason for not accepting CLR15’s statement as aforesaid. Under the heading “employment” between pages 9 and 10 of the delegate’s reasons[4] the delegate recited information given by CLR15 about CLR15’s husband providing certain delivery services to his uncle. The delegate either accepted that information or the delegate was not faced with contradictory evidence nor was there any indication that CLR15 was challenged by the delegate to the effect that the information given was wrong, nonsensical, against other evidence or inherently improbable. Yet despite that state of affairs, the delegate asserted that she did not accept that CLR15 and her husband had been threatened by reason of CLR15’s husband having provided a delivery service to his uncle. Not only was there no rational basis for the delegate not accepting CLR15’s version of events but that version of events was wholly consistent with CLR15’s principal thesis that she and her husband were imputed with having the political views and attributes of her husband’s uncle. In my view, the delegate’s assertion that the delegate did not accept that CLR15 or her husband had been threatened by reason of the husband providing delivery services for his uncle was forensically illogical.
[3] Court book, filed 24 December 2015, p.145
[4] Ibid, pp.144-45
On page 11 of her reasons[5] the delegate stated she did not accept that CLR15 had been subjected to police brutality. That conclusion, so the delegate said, was based on CLR15’s failure to directly answer whether CLR15 had been a victim of police brutality. Yet the delegate did state that CLR15 told the delegate that police engaged gangsters to make telephone calls for them, thereby delivering their threats and that gangsters had often delivered threats to the effect that the uncle needed to stop sending anti-government letters and unless that occurred, the threats would continue.
[5] Ibid, p.146
On that version, uncontradicted as it was, police used intermediaries to make threats. That evidence was well capable of amounting to evidence of police engaging in threatening behaviour, albeit done through intermediaries. That was also well capable of amounting to CLR15 being subjected to threatening behaviour by police. The delegate’s refusal to accept that uncontradicted evidence was illogical.
On page 14 of her reasons[6] the delegate stated that she did not accept that all police and authorities in Vietnam are corrupt. The delegate said she did not accept that CLR15’s husband, in undertaking a low-profile activity of driving his uncle while delivering letters, would result in any long-term threat after the activity stopped. No explanation was given for the delegate’s refusal to accept the proposition put in that regard by CLR15.
[6] Ibid, p.149
On page 15 of her reasons[7] the delegate stated that she found no evidence to support CLR15’s claims to fear persecution as result of the husband’s uncle’s work and as a result of her association with a catholic charity. The conclusion that there was no evidence to support those claims was erroneous. Evidence capable of supporting both claims existed, as I have canvassed above. The delegate’s refusal to accept that the authorities would persecute CLR15 on her return to Vietnam due to either of those claims was erroneous.
[7] Ibid, p.150
The data breach claim was addressed on page 15 of the delegate’s reasons. The delegate referred to the assertion by CLR15 to the effect that CLR15 feared that she would suffer retribution once her name was published on the Internet. The delegate dismissed that claim by stating that the delegate found that CLR15 would not face a real chance of serious harm by the Vietnamese authorities as a consequence of the data breach. The logic of the delegate’s reasoning on that issue was peculiar. Let me expose it.
First, the delegate stated on page 17 of her reasons[8] that she accepted that by reason of the data breach CLR15’s details may have been publicly available. Then the delegate referred to CLR15’s post interview submissions to the effect that it was impossible to gauge the extent of the dissemination of the information other than to assume it was widespread. Then the delegate stated that based on the information before her, the delegate was satisfied any details regarding CLR15’s protection visa claims had not been made available to the Vietnamese authorities. Precisely how the delegate was able to so conclude, especially after referring to other information before her to the effect that the extent of the information dissemination was widespread, was impossible to gainsay. It seemed to me that the conclusion that CLR15’s protection visa claims information would not have been available to Vietnamese authorities, when information disseminated following the data breach is widespread, was a logical non-sequitur.
[8] Ibid, p.152
Then the delegate made the findings set out at the foot of page 18 of her reasons.[9] Those findings led to the delegate’s rejection of the protection claims advanced by CLR15. As mentioned above, the delegate made no reference to the protection claims advanced by CLR15.1.
[9] Ibid, p.153
As mentioned above, the delegate dismissed CLR15’s application for a protection visa.
Being dissatisfied with the delegate’s decision, CLR15 applied electronically online to the tribunal for merits review on 25 August 2015. The CLR15’s son was listed as the second applicant.[10] RILCI was specified on the application to the tribunal as the representative.[11] The tribunal emailed RILCI on 27 August 2015 in respect of the application by CLR15 although the email header said nothing about the son’s application yet the attached correspondence made express reference to an acknowledgement of the applications to the tribunal having been made on behalf of both.
[10] Ibid, p.168
[11] Ibid.
On 8 September 2015 the tribunal wrote separately to RILCI and also jointly to CLR15 and CLR15.1, inviting CLR15 and CLR15.1 to appear before the tribunal on 6 October 2015 at 11:30am (Northern Territory time). On 30 September 2015 Kate Bones, a solicitor with RILCI, wrote to the tribunal in relation to the proposed hearing on 6 October 2015. The salient portions of the email were as follows –
[The applicant] has raised claims concerning the impact of the unauthorised disclosure of her personal information by the Department of Immigration and Border Protection. In February 2014. We note the recent decision of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCCA 125, which indicates that in order for the requirements of procedural fairness to be observed in considering these claims, [the applicant] should be provided with a copy of the unabridged KPMB (sic) report from the Department of Immigration. We have been advised by the Department of Immigration that any processing of claims concerning the data breach has been suspended while the Department determines its response to the case.
As [the applicant] is unable to properly respond about the effect of the data breach until such a time as the KPMG Report is provided, she has instructed us to request that her hearing scheduled for 6 October 2015 be adjourned. We consider that if a hearing were to be conducted at present, she would not be able to fairly address her claims in their totality.
On the same day the tribunal wrote to RILCI as well as to CLR15 and her son to inform them that the tribunal member had decided not to postpone the hearing and that the hearing would proceed at 11:30am on 6 October 2015. With that correspondence the tribunal provided a draft response to hearing invitation. The blank form that was so provided separately listed CLR15 and her son when enquiring whether both would be taking part in the hearing.[12]
[12] Ibid, p.203
On 1 October 2015 Kate Bones of RILCI provided the tribunal with a completed response to hearing invitation, a pre-hearing submission and a statement by CLR15. The statement was a single page bearing 11 separately numbered paragraphs. The RILCI pre-hearing submissions were detailed with submissions of fact and law, including a renewal of CLR15’s request for an adjournment pending provision of the KPMG report and reliance upon the decision of the Full Court of the Federal Court of Australia in SZSSJ v Minister for Immigration and Border Protection.[13] The response to hearing invitation was completed to indicate CLR15 would attend along with Ms Bones of RILCI.
[13] (2015) 234 FCR 1
On 5 October 2015 Ms Bones provided documentation to the tribunal, including a news article concerning the attack on CLR15’s uncle with a full translation of that article, duly certified as correctly translated by an accredited NAATI[14] translator.
[14] National Accreditation Authority for Translators and Interpreters
On 16 October 2015 Ms Bones provided post-hearing submissions to the tribunal.
On 22 October 2015, as mentioned above, the tribunal affirmed the delegate’s decision to not grant CLR15 the protection visas she sought. The tribunal stated it had no jurisdiction in relation of the second applicant.
Before going to the grounds of review in this case, it is necessary to examine aspects of the tribunal’s reasons.
The tribunal’s reasons, in its opening paragraph, stated that the delegate found that the application by CLR15.1 was not a valid application and so the delegate did not make a decision in relation to CLR15.1. That had the consequence that the tribunal had no jurisdiction in relation to the second named applicant, so the tribunal said.
That was not true. The delegate said no such thing. At no point did the delegate mention CLR15.1. At no stage did the delegate state, still less find, that CLR15.1’s application was not a valid application. The simple fact of the matter was that the delegate failed to pass upon it or adjudicate in any way, shape or form in respect of the child’s application. That was a major failure, it seemed to me. It was an equally major failure for the tribunal to state, as the tribunal did in paragraph 1 of its reasons, that the delegate found that CLR15.1’s application was not a valid application and that the delegate therefore did not make a decision in relation of the child.
The delegate failed to determine CLR15.1’s application. The tribunal should have been cognisant of CLR15.1’s application. The tribunal should have passed upon the matter for itself. The tribunal should not have merely said what it said in the last two sentences of paragraph 1 of its reasons. In my view, on that basis alone (there were more) the tribunal fell into jurisdictional error in this case such that the tribunal’s decision must be set aside.
Having regard to the manner in which counsel for CLR15 arranged his submissions, it is more convenient in these reasons to address the specific facts and law relevant to each ground of review than it is to narrate how the tribunal undertook its statutory tasks in this case.
Ground 1
CLR15 contended that the tribunal misapplied the applicable law regarding whether the second applicant, CLR15.1, made a valid application and whether the tribunal therefore was seized of jurisdiction. In her amended application CLR15 relied on 10 particulars of that ground.
In my judgment, ground 1 succeeded.
The delegate did not state that CLR15’s child had not made a valid visa application, as the tribunal purported to recount. That was an error by the tribunal. The tribunal should have, but failed to, consider the second applicant’s application. By reason of its failure to do so, the tribunal fell into jurisdictional error in this case.
Constitutional writs must issue.
In an endeavour to resist the obvious reality of the error made by the tribunal in respect of ground 1, before me in written submissions then later in submissions in court, the minister valiantly attempted to show that the tribunal did nothing wrong when concluding that the tribunal had made no jurisdictional error in relation to the second applicant’s application. The minister contended that –
a)CLR15 was an unauthorised maritime arrival as was the child’s father;
b)as a result of his parents’ status under the Act, their child was likewise an unauthorised maritime arrival and a transitory person and as such, a visa application made by an unauthorised maritime arrival or a transitory person was not a valid visa application unless the minister determined to “lift the bar” and that under s.47(3) of the Act the minister is not permitted to consider an invalid visa application;
c)the tribunal’s finding at paragraph 1 of its reasons was “factually unassailable” (a phrase or submission with which I disagree); and
d)the fact that the tribunal may have entered into correspondence with CLR15 on the basis that a child was part of the application was neither here nor there as that cannot give rise to there being any jurisdiction.
I do not agree with most of those contentions.
But even if there was merit in the last mentioned proposition the tribunal did not say any such thing in its reasons nor give CLR15 the opportunity to meet such a point. The point was critical to CLR15 as her child’s fate of the application was tied to hers.
It was an uncontroversial fact that the forms 866B and 866B were provided to the delegate by email through the proper channel of RILCI. The delegate did not reject those documents. The delegate did not write to RILCI upon receipt of the forms 866B and 866D to protest that the forms and the claim underpinning them had no statutory validity. The delegate remained altogether silent about the claim relevant to CLR15.1. Then the delegate did precisely nothing in respect of the claim made in the forms 866B and 866D.
But the tribunal became embroiled in that most unsatisfactory conduct because the tribunal stated in paragraph 1 of its reasons that the delegate “found that the application by the applicant’s child was not a valid application”. The delegate found no such thing. The delegate did nothing in respect of the child’s application. It was erroneous at its most innocuous and positively misleading at its most noxious for the tribunal to have said that the delegate made a finding of application invalidity. The delegate failed to discharge the statutory duty on it by deciding on the child’s application and the tribunal committed a jurisdictional error (in my view of a most egregious type) by falsely stating that the delegate had done something that the delegate had failed to do.
I reject the minister’s submissions that ground 1 is without merit.
Accordingly, having regard to my conclusion in respect of ground 1, I grant leave –
a)to join CLR15.1 as the second applicant to this proceeding; and
b)to file and serve the amended application and, to the extent necessary, for the second applicant to rely on ground 1.
On ground 1 I order the issue of constitutional writs and additionally order the tribunal to hear and determine the first applicant’s protection visa along with the second applicant’s forms 866B and 866D. The minister must pay the costs of this application.
Ground 2
Under this ground CLR15 contended that the tribunal failed to follow and apply the ratio in Minister for Immigration and Border Protection v SZSSJ.[15] Rather ambitiously, the minister contended that the High Court decision in that case had “no direct precedential bearing on this proceeding”.[16] More helpfully, the minister submitted that the exhaustive natural justice considerations canvassed by s.422B of the Act overtook the observations of the High Court in SZSSJ. But in any event the minister argued that, even assuming that the observations in SZSSJ continued to apply to the facts of this case, the tribunal here did in fact apply those observations.
[15] (2016) 259 CLR 180
[16] First respondent’s submissions filed 30 November 2017 (at [36]).
It is necessary to go to the detail in addressing this ground.
The relevant data breach was addressed by the tribunal in a passage in paragraph 24 the tribunal’s reasons. The tribunal said the following –
Furthermore, whilst accepting that the applicant’s details were released as part of the “data breach” in February 2014, the Tribunal considers that the applicant’s claims that this information was accessed by the authorities and will result in her being harmed upon her return to Vietnam to be highly speculative and not supported by the evidence.
The tribunal’s consideration of CLR15’s contentions concerning the data breach were recorded in paragraph 23 the tribunal’s reasons. It was as follows –
The applicant has claimed that she fears harm, either separately or cumulatively, due to her religion as a practising Catholic; her imputed political opinion as an anti-government due to her association with her husband’s uncle, [omitted], who is an anti-corruption campaigner; her status as having sought asylum in a Western county; and the Department’s data breach. She also claims that she fears harm due to her membership of a particular social group of her husband’s family due to their association to her uncle, [omitted]. It has been submitted that the applicant’s risk of harm has been greatly exacerbated by the Department of Immigration’s breach of data and publication of her name and immigration status on the Internet.
(errors in original)
The final sentence of paragraph 23 was the relevant portion. In fact, on 30 September 2015 RILCI emailed the tribunal member and requested a copy of the unabridged KPMG report in relation to the data breach that was the subject of the Full Court’s decision in SZSSJ v Minister for Immigration and Border Protection,[17] the then prevailing authority because the High Court had not then handed down its decision in SZSSJ[18] and only did so on 27 July 2016. On 1 October 2015 RILCI renewed its request for an adjournment, relying again on SZSSJ (in the Full Court) and contending that upon viewing that report CLR15 may have had further claims about how the unauthorised disclosure of information placed CLR15 at risk of harm in Vietnam. Under paragraph 3 of those submissions, on behalf of CLR15, RILCI wrote that she feared that if she was returned to Vietnam she would suffer serious harm at the hands of the Vietnamese authorities by reason of, among other things, her imputed political opinion being anti-government due to the department’s data breach and that the risk of harm to her had been greatly exacerbated as result of the department publishing her name and her immigration status on the internet in 2014.
[17] (2015) 234 FCR 1
[18] Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
The details of the hearing before the tribunal were absent in this case, such as the start time and conclusion time. That information was not among the papers on the court book, as it usually is.
RILCI made post hearing submissions on 16 October 2015. In the second last sentence of those submissions, RILCI wrote the following –
… We emphasise in particular that the effect of the data breach, taken cumulatively with [the applicant’s] Catholic religion and connection with her uncle, combine to place her at a risk of harm for the Vietnamese authorities which is more than remote.
When the RILCI material was properly read and examined, in my view there could have been no doubt that CLR15 was asserting that her protection claims were in part based on the fact that she feared harm, if returned to Vietnam, from Vietnamese authorities and that such a risk of harm had been exacerbated by the data breach of 2014 resulting in the publication of her name on the Internet.
The tribunal said that such a claim was speculative and was not supported by the evidence.
The minister said that CLR15’s natural justice entitlements were exhaustively set out in s.422B of the Act.
In my view the minister’s contentions on this issue were wrong. In my view the tribunal’s conclusion on this issue in paragraph 23 of its reasons was in the nature of jurisdictional error. Let me explain.
In SZSSJ, the High Court held as follows in paragraph 75 –
Why that conclusion follows is that it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a 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.
Importantly, in the final sentence of paragraph 75 the High Court held that the presumption operates unless clearly displaced by the particular statutory scheme.
The statutory scheme under consideration in SZSSJ was different to the statutory regime in operation in this case, a matter passed upon by his Honour Judge Smith in BEI16 v Minister for Immigration and Border Protection,[19] by Markovic J in AVB16 v Minister for Immigration and Border Protection[20] and by Jessup J in AAG15 v Minister for Immigration and Border Protection.[21]
[19] [2016] FCCA 2611 (at [23])
[20] [2017] FCA 241
[21] [2016] FCA 67
The application of those authorities tends to support the minister’s contentions in this case although by no means has the point been authoritatively determined.
In SZSSJ, the High Court made observations about the consequences of information such as personal information caused by the data breach to have been uploaded to the internet, being available to users of the internet. The High Court in SZSSJ said the following at paragraph 90 of its reasons –
The assumption made in the ITOA process that their personal information may have been accessed by authorities in Bangladesh and China removed from the scope of factual inquiry any question of precisely who accessed their personal information as a result of the Data Breach. The assumption was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department’s website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them, and when, might be expected to have been a hopeless endeavour.
Here, the tribunal said that the contentions by CLR15 about the consequences of the data breach were speculative. While that was true, the tribunal’s decision was given on 22 October 2015 and the High Court decision in SZSSJ was handed down on 27 July 2016. That more logically explained why the tribunal said nothing about the High Court’s observations extracted above from paragraph 90 of the High Court’s reasons. Attempting to make a finding about precisely who had obtained access to the personal information uploaded from the data breach was a hopeless endeavour. Yet in AVB16 v Minister for Immigration and Border Protection,[22] Markovic J “noted”[23] (as her Honour used that verb in paragraph 48 of her Honour’s reasons) that on the facts of that case no evidence had been adduced that persons or groups had seen the information or had use the information in any way that created a real risk of the applicant in that case suffering harm. That observation, at first blush, stood at odds with the observations of the High Court in SZSSJ.
[22] [2017] FCA 241
[23] Ibid (at [48])
About a week later, on 22 March 2017 a different judge of the Federal Court of Australia pronounced upon the significance or otherwise of an applicant having the full or abridged KPMG report. In ALO16 v Minister for Immigration and Border Protection[24] Logan J dealt with the data breach case. In two paragraphs of his Honour’s reasons the issue was recorded in the following terms –
13.The data breach which occurred in the Minister’s department is set out at [20] of the Tribunal’s reasons. From that it emerges that, on 19 February 2014, the department received information that a database containing the personal information of around 10,000 detainees was available on its website. That was a lamentable breach of information security by the Minister’s department. It later came to be the subject of a report by KPMG (KPMG Privacy Breach – Data Management report of 20 May 2014). That report is publicly available only an abridged form and, in that form, was available to the appellant and the Tribunal. Excerpts of it are detailed in [20] of the Tribunal’s reasons.
14.That excerpt materially includes this statement in the report:
123 accesses via 104 unique internet protocol (IP) addresses attempted to retrieve the file at least once. Analysis of available data has provided the [department] with some indication of the likelihood of each IP address having access to the personal information of detainees.
[24] [2017] FCA 270
His Honour then paraphrased an argument that was advanced in that case, having a parallel with ground 2 in this case. At paragraph 17 of his Honour’s reasons Logan J said the following –
Read in isolation, it is possible to regard the Tribunal’s statement as to access by a relatively small number of IP addresses at [21] as inconsistent with and evidencing a failure to appreciate the wider unknowability of exactly how many people or agencies came to know of data released or accessible as a result of the data breach, as described in observations made by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 (SZSSJ). The appellant drew attention to this case in the course of his submissions.
Logan J then identified how the decision in SZSSJ arose against a very different factual backdrop than the facts with which his Honour was then concerned. His Honour then turned to the number of detected IP addresses accessed, stating as follows at paragraph 19 of his Honour’s reasons –
It may readily be accepted that an illogical finding in respect of a material fact relevant to determining whether one is satisfied that protection visa criteria have been met, can amount to jurisdictional error, and that a failure on the part of the Federal Circuit Court to so hold could give rise to appealable error. Read in isolation, and once one is seised with the reasoning in respect of the data breach evident in the passages quoted from SZSSJ, it is possible to regard … the Tribunal’s reasons as deficient and not taking into account a relevant consideration in the circumstances, which is that the true number of persons to whom the identities may become known is not limited by the small number of detected IP address accesses, as opposed an indeterminately large number.
Then his Honour concluded as follows at paragraph 26 of his Honour’s reasons –
It only comes to this. It was immaterial as to whether the appellant did or did not have access to the unabridged version of the KPMG report. The Tribunal dealt with the evidence before it, which included the abridged version. It made an assumption, which I have mentioned, in the appellant’s favour and it reached a conclusion reasonably open on material before it as to an absence of a well-founded fear of persecution on the part of the appellant, having regard to the claim as made by him. It necessarily follows that the appeal must be dismissed.
As is readily apparent, the facts of that case were quite different to the facts of this case. In that case the abridged KPMG report was available and the tribunal quoted from it, unlike the circumstances of this case. In that case, the tribunal made an assumption in the applicant’s favour yet in this case the tribunal merely accepted the existence of the data breach but no more, quite differently to the acceptance of the assumption to which Logan J referred.
It seemed to me that some factual and legal matters may be fairly distilled arising out of the foregoing analysis of ground two. They were –
a)the statutory regime in SZSSJ was different to the statutory regime under consideration in this case;
b)nevertheless, as Logan J held in ALO16, that did not mean that the whole the High Court’s observations in SZSSJ were irrelevant and also, as Logan J pointed out in ALO16, the observations at paragraphs 90, 91 and 92 in SZSSJ remain pertinent;[25]
c)direct evidence of actual downloading of information derived from the data breach was not necessary and the “noting” of which Markovic J spoke on the point in AVB16 did not bind me;
d)in any event, it was a “hopeless endeavour”[26] as the High Court said in SZSSJ to make a finding (still less was evidence on the point purposeful) about precisely who had obtained access to the personal information downloaded from the data breach because once downloaded that information could have been forwarded to and interrogated by anyone, anywhere, anytime;
e)in this case, despite many repeated requests, CLR15 was not provided with the abridged or an unabridged KPMG report, notwithstanding how RILCI contended it was important;
f)the tribunal hearing proceeded without CLR15 having any version of the KPMG report;
g)pre-hearing and post-hearing submissions highlighted the importance to CLR15 of the KPMG report in terms of her ability to make out a significant component of her case; and
h)the tribunal’s reference to aspects of the KPMG report between paragraphs 48 to 64 of the tribunal’s statement that the report in an abridged form was publically available did not meet the point raised by CLR15
[25] Ibid (at [18])
[26] SZSSJ (2016) 259 CLR 180 (at [90])
It must not be forgotten that RILCI sought the full text of the KPMG report, not the publicly available abridged form. Nor must it be forgotten that as result of the tribunal’s refusal to adjourn the hearing by reason of the failure to provide the full version of the KPMG report, the hearing proceeded without CLR15 knowing the totality of the report’s content. Yet the tribunal referred at length to its terms in the tribunal’s reasons in this case. The entirety of the report was obviously important to the first applicant. The tribunal refused the adjournment request yet it did not volunteer that so much of the KPMG report on which it would rely was publicly available.
In my view this case fell outside of the facts to which Logan J referred or to which Markovic J referred in their respective judgments. I do not agree that the tribunal’s rejection of CLR15’s submissions that this matter was not taken seriously by the tribunal. RILCI was on a strong footing when submitting that the tribunal did not take this matter seriously.
In my view, by the tribunal proceeding without providing CLR15 with a copy of the unabridged KPMG report, the tribunal failed to accord CLR15 procedural fairness. Section 422B of the Act has not wholly codified the procedural fairness to which CLR15 was entitled.
In my view, ground 2 was made out.
Ground 3
This ground was plainly a fall-back argument lest ground 2 failed. It was but faintly pressed in CLR15’s written submissions and in his submissions in court. Mr Williams of counsel for CLR15 and CLR15.1 frankly conceded that ground 3 was a “safety net”.[27] In my view the ground was not made out.
[27] Transcript of proceeding, 5 December 2017, p.15, l.1
Conclusion
Grounds 1 and 2 succeeded. Ground 3 failed.
Constitutional writs must issue. The minister must pay CLR15’s costs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 4 May 2018
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