DFB16 v Minister for Immigration
[2019] FCCA 52
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFB16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 52 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – data breach – procedural fairness – new information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 46A, 424A, 473CB, 473DD, 473DE, 473GA, 473GB |
| Cases cited: DZG17 v Minister for Immigration [2018] FCCA 1829 Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 |
| Applicant: | DFB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2329 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 18 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2329 of 2016
| DFB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed on 26 October 2016 for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 29 September 2016 which affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The judicial review application filed contains 5 grounds of application. The Applicant’s written submissions filed on 19 September 2018 addressed only enumerated grounds of review 1 and 2 (together) and 4. The Applicant confirmed at the hearing that grounds 3 and 5 of the application were abandoned. The written submissions also had attached articles, dated 3 August 2016, from ‘The New York Times’ and ‘The Kathmandu Post’. Those article attachments were introduced into evidence in the proceedings.
Grounds 1, 2 and 4 of the application are as follows:-
“1. The Second Respondent made jurisdictional error by denying the Applicant Procedural fairness.
Particulars
a) See particulars a-d of Ground 2 below.
2. The Second Respondent made jurisdictional error by failing to comply with section 473DE of the Migration Act 1958.
Particulars
a) In relation to the ‘data breach’ the Second respondent made a finding that the new information is not specifically about the Applicant and is just about a class of persons of which the applicant is a member, namely people whose information was included in the data breach, for the purpose of s.473DE(3)(a).
b) The ‘data breach’ however contained information specifically about the Applicant including his, full name, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details and reason why the individual was deemed to be unlawful, as set out by Office of the Australian Information Commissioner Investigation Report of November 2014 which is also referenced in the decision at page 6.
c) Therefore the information was not just about a class of persons of which the applicant is a member but specifically about the Applicant.
d) As subsection 473DE(3)(a) did not apply to the new information, the Second Respondent failed to comply with the mandatory requirements of subsection 473DE(1).
4. The Second Respondent made jurisdictional error by relying on obsolete information provided by DFAT at paragraph [14] and failing to have consideration to section.
a) The Second Respondent relied on the DFAT Report published in 21 April 2016 at paragraph 14 to find that “The Maoists are a minor party in the current Constituent Assembly, which is governed by a coalition between the Nepali Congress and the Communist Party of Nepal (Unified Marxist-Leninist).
b) The Second Respondent failed to consider that the Prime Minister since 4 August 2016 and prior to the decisions by the First and Second Respondents was the chairman of the Unified Communist Party of Nepal (Maoist) and the Communist Party of Nepal (Unified Marxist-Leninist) has been in opposition.
c) The Respondents considered and heavily relied on the information which did not exist at the time of their decision.”
(emphasis in original.)
The First Respondent submitted that no jurisdictional error attends the decision of the Authority and that accordingly the application should be dismissed. The First Respondent relied upon submissions filed 4 October 2018. The First Respondent filed a Court Book on 5 May 2017 and its contents are in evidence before the Court.
History
The Applicant is a citizen of Nepal, of Mongolian ethnicity and Hindu religion. He arrived in Australia on 7 September 2013 as an irregular maritime arrival. An entry interview was conducted with him on 26 November 2014 whilst the Applicant was in immigration detention on Christmas Island. The Applicant continued to be in immigration detention on 31 January 2014, and as a result he was advised by the Department of Immigration and Border Protection (‘the Department’), by correspondence to him of 12 March 2014, that some of his personal information may have been accessed by the unintentional release of a routine report (in February 2014) on the Department’s website. The information was accessible online for a short time before its removal from the website.
On 6 November 2015 the s.46A of the Act ban was lifted and on 10 March 2016 the Applicant lodged an application for a protection visa (subclass XE-790) Safe Haven Enterprise visa (‘SHEV’). A delegate of the Minister for Immigration and Border Protection (‘the Minister’) refused to grant the Applicant a SHEV on 18 August 2016. The proceedings were referred to the Authority.
The Authority had regard to the review material referred by the Secretary of the Department under s.473CB of the Act.
The Authority had regard to the decision of the delegate dated 18 August 2016 in the Decision and Reasons of the Authority (‘the Decision Record’):-
“The delegate accepted the applicant was a rank and file member of the Rastriya Prajatantra Party – Nepal (“RPP”) and a former member of the RPP youth wing but did not accept he was a political activist. The delegate accepted too the applicant was detained in the jungle for two days by Maoists in 2002. The delegate also accepted between 2003 and 2013, Maoists asked the applicant for donations, or to join their party and threatened him when he refused, but that he was never harmed. The delegate considered that was opportunistic, criminal activity not motivated by the applicant’s political opinion. The delegate found the applicant has a right to enter and reside in India and had not taken all possible steps to avail himself of that right. Therefore s.36(3) applies to the applicant and he is not owed protection obligations.”[1]
[1] Decision Record, paragraph 2.
The Applicant’s protection claims to which the Authority gave necessary consideration in respect of each and every such claim, in summary were, (as set out in paragraphs 8 and 9 of the Decision Record), as follows:-
“The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:
- On arrival in Australia, the applicant claimed he was born in Bhutan and was displaced from that country to Nepal in 1990. He stated he had no political activities in Nepal and there was no reason why he feared to return to Nepal.
- In May 2015, the applicant wrote a letter to the department stating he was a member of the RPP and its youth wing and he was a supporter of the Nepal royal family. He was continuously extorted and threatened by the Maoists. The information he said on arrival in Australia is untrue. He was taught to say those things by his agent.
- In his invalid SHEV application, the applicant repeated his claims he was a member of the RPP and that Maoists extorted him for donations. He added Maoists took him to a camp in the jungle for two days, beat him to make them join them, but he escaped. He moved from his home village to Pokhara and then to Kathmandu. Maoists threatened him many times and forced him to support them and make donations. For that reason, he left Nepal to seek asylum in Australia. His family members tell him Maoists are still looking for him.
- He repeated the same claims in his valid SHEV application and added he would provide a more detailed statement later. The review material does not include any more detailed statement of the applicant.
9. The applicant fears if he returns to Nepal, he will be harmed by the Maoists, because of his pro-RPP/pro-Monarchist political opinion. I have considered too whether the applicant is owed protection obligations due to people claiming to be Maoists extorting him, or because his personal details were included in a ‘data breach’ by the department.”
In setting out the information before it, which included the Applicant’s claims, the Authority noted:-
a)that on 6 September 2016 the Applicant provided to the Authority a written submission. The Authority referred to the requirements of s.473DD of the Act and said as follows:-
“The IAA submission in part includes a new claim. The applicant went to India because he felt unsafe in Nepal. After he went to India, he realised he was not safe there, so he had to leave India. He extracts country information he submits is regarding the relationship between Nepal Maoists and the Indian government. Because of the relationship between Nepal Maoists and the Indian government, the applicant’s life was at threat in India (“the IAA claims”). I consider the IAA claims are new information. The IAA submission does not comply with Practice Direction 1 dated May 2016 (“the Practice Direction”) made by the President under s.473FB. The applicant has not provided a statement addressing the requirements of s.473DD(b). Even if I had the benefit of that statement, I must still first consider whether or not there are exceptional reasons justifying that I should have regard to the IAA claims. The IAA claims are inconsistent with his earlier evidence he travelled through India via bus from Kathmandu to Delhi, then via train to Kolkata on his way to Australia and that he experienced no difficulty while in India. The country information he provided is an opinion piece by the Institute for Defence Studies and Analyses dated November 2010 (“the Opinion”). The Opinion appears to have little relevance to the IAA claims as it relates to links between Indian and Nepalese Maoists groups, not between Nepalese Maoists and the Indian government. It is not apparent to me why the applicant could not provide the Opinion to the delegate. In these circumstances, I am not satisfied there are exceptional circumstances justifying I consider the IAA claims or the Opinion.”[2]and;
b)that it obtained new information relevant to the issue of a departmental “data breach” which affected the Applicant. Of that new information, the Authority said, relevantly:-
“…I considered it necessary to obtain that 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. For these reasons, I am satisfied there are exceptional circumstances to justify my considering that new information under s.473DD. Further, I consider that new information is not specifically about the applicant and is just about a class of persons of which the applicant is a member, namely people whose information was included in the data breach, for the purpose of s.473DE(3)(a).”[3]
[2] Ibid, 6.
[3] Ibid, 7.
Grounds One and Two
The “new information” comprised documents relating to the departmental “data breach”, and included:-
a)the judgment of the Federal Court of Australia in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125;
b)a web page relating to a report prepared by the Information Commissioner relating to the data breach; and
c)a Guardian news article concerning the data breach.
Section 473DE(1) of the Act relevantly requires the Authority to give to an applicant particulars of certain new information, explain to the applicant why the information is relevant to the review, and invite the applicant to give comments on the new information. However, s.473DE(3) of the Act provides that subsection (1) does not apply to certain information including – relevantly in paragraph (a) – information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”. The exception to the operation of s.473DE(1) of the Act in s.473DE(3)(a) of the Act is substantially similar to the exception to the operation of s.424A(1) of the Act in s.424A(3)(a) of the Act.
This Court has previously considered the operation of s.473DE(3)(a) of the Act in the context of documents relating to the “data breach”. In SZTYD v Minister for Immigration [2017] FCCA 1472, the Applicant claimed (inter alia) that the Authority erred in not putting to him certain new information about the “data breach” in accordance with s.473DE(1) of the Act, which appeared to include the same (or similar) report from the Information Commissioner as at issue in this case. The Court dismissed the application, including on the basis that:-
“99. …the information, as explained by the IAA, on which it relied is about a class of persons of which the applicant is a member, and is not specifically about the applicant.
“102. … the IAA’s reference to ‘new information’ was about the character of the data breach, as it applied to all persons, whose private details were released, not just the applicant.”
The Court rejects the Applicant’s contention that the Authority failed to comply with s.473DE of the Act. As submitted by Counsel for the First Respondent, none of the documents obtained by the Authority under s.473CB of the Act are “specifically about” the Applicant. To the extent that they are “about” the Applicant, they are about him only insofar as he is a member of a class of individuals, being a class of asylum seekers in respect of whom certain details were mistakenly made available on the Department’s website for a certain period.
The requirements of the natural justice hearing rule have been exhaustively codified in Pt 7AA (specifically, Division 3 and ss.473GA and 473GB) of the Act.[4] There was no breach of this legislatively provided for procedural fairness. As correctly submitted by Counsel for the First Respondent, no aspect of “common law” procedural fairness, of a kind that was at issue in the Federal Court of Australia’s decision SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1, is relevant in this legislative context.
[4] Migration Act 1958 (Cth), s.473DA.
Paragraphs 7, 20 and 21 of the Decision Record should be read together. Paragraphs 20 and 21 incorporate footnotes 2, 3 and 4 of the Decision Record, all of which identify the “new information” obtained and considered by the Authority.
Paragraphs 20 and 21 of the Decision Record state:-
“20. As noted above, I considered new information in relation to the ‘data breach’. I accept the applicant was amongst the asylum seekers whose personal details mistakenly were made publically available in a document on the website of the department (“the Document”) for a period of approximately 14 days in February 2014 (“the data breach”).[5] The facts before the Full Court Federal Court in SZSSJ [6] are that the Document was accessed 123 times. In its report to the department following the data breach, KMPG stated it was not possible to discount the authorities in another country may have accessed the Document. As the Document was available on the internet, I therefore am open to accepting the possibility parties in Nepal, including the Maoists may have accessed the Document.
21. I note the applicant made both SHEV applications after the date of the data breach. The evidence [7] before me is the Document did not include anything regarding the nature of the applicant’s claims. Therefore, all that would be known to anyone who accessed the Document is the applicant is returning to Nepal from Australia. I have found above the applicant does not face a real chance of serious harm from the Maoists.”
[5] P. Farrell, ‘Scott Morrison ensured asylum seeker data breach probe failed, court finds’, 18 September 2015 “The Guardian”.
[6] SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125.
[7] The Australian Information Commissioner Investigation Report sets out the personal information included in the data breach consisted of: full names; gender; citizenship; date of birth; period of immigration detention; location; boat arrival details and reasons why the individual was deemed to be unlawful. See: Office of the Australian Information Commissioner, “Department of Immigration and Border Protection: Own motion investigation report” (November 2014) >
None of this “new information” contained information that is specifically about the Applicant. No article set out personal information about the Applicant. These grounds cannot succeed.
Ground Four
In its consideration of whether the Applicant had a well-founded fear of persecution, the Authority considered each of the Applicant’s claims and relevant country information. That country information included the ‘DFAT Country Information Report Nepal, 21 April 2016’.
The Authority set out its consideration of the DFAT country information in paragraph 14 of the Decision Record as follows:-
“DFAT reports the Unified Communist Party of Nepal (Maoist) (“the Maoists”) were involved in a ten year civil war, which ended in 2006 and resulted in Nepal becoming a republic in 2008. The Maoists are a minor party in the current Constituent Assembly, which is governed by a coalition between the Nepali Congress and the Communist Party of Nepal (Unified Marxist- Leninist). Since the end of the civil war, the security situation in Nepal has improved dramatically, but there remain credible allegations of violence, extortion and intimidation by groups associated with political parties. Also, with the end of the 2015 Constitutional crisis, the political situation in Nepal has changed significantly, with diverse political parties operating in a lively political environment. DFAT assess the risk of harm due to political opinion is low, although some Maoist and splinter groups threaten a return to strikes and violence.”
In paragraphs 16 to 18 of the Decision Record inclusive the Authority set out its findings with respect to the Applicant’s claims which are set out below:-
“16. For the purpose of this decision, I accept the applicant was a member of the RPP and its youth wing, and that he has a pro-monarchist political opinion. On the basis of his evidence at the SHEV interview regarding his activities with the RRP [sic] and the youth wing, I consider the applicant was only a low-level member of the RRP [sic]. I am willing to accept all of the applicant’s claims as made regarding his abduction and being threatened to make donations, but I consider he has subjectively exaggerated that was for reasons of his RPP membership and he has exaggerated the frequency of how often the Maoists had dealings with him. I also draw a distinction between the Maoists, who abducted him for political reasons, and the people claiming to be Maoists, who threatened him to make donations.
17. I am willing to accept his abduction by the Maoists in 2003 was an incident of serious harm as he was deprived his liberty for an extended period of time and endured physical pain and suffering when the Maoists beat him to coerce him to join their party. I am willing to accept the applicant then relocated from his home village to Pokhara. The evidence before me though is the Maoists did not pursue the applicant for escaping from them. That suggests to me the Maoists did not consider him someone of a significant profile. Supporting that conclusion is the applicant’s own evidence at the SHEV interview the Maoists were abducting many people in his home village because they wanted to control the whole area. This is consistent too with my finding above the applicant is only a low-level member of the RRP [sic]. I note while in Pokhara for approximately 5 years, his evidence is the Maoists asked him for donations three times. He refused three times. Nothing else happened to him. I note too while in Kathmandu for approximately 5 years, his evidence is it was not until two years after he arrived in Kathmandu did he have any dealings with Maoists and nothing happened on that occasion. He received one telephone call request for a donation, which he refused to pay and Maoists came to his house one time, when he was absent. He claims in the approximately three years since he left Nepal, Maoists have come to his home twice and both times, his family refused to pay any donation. That is a total of eight interactions with the Maoists in approximately 13 years. I consider the applicant has exaggerated he was troubled by Maoists many times. While I accept the Maoists may have made threats when asking for the donations, no threats were ever carried out against the applicant or his family. That leads me to conclude the threats albeit a source of some subjective distress to the applicant, were empty threats. I consider this is consistent too with the country information and the applicant’s claim these were opportunistic attempts of extortion by persons claiming to be Maoists.
18. For the above reasons, other than the abduction in 2003, I consider the applicant has not experienced any serious harm in the past were not for reason of his pro-RRP [sic]/pro-monarchist political opinion. Rather, the attempts to extort donations from him by people claiming to be Maoists were occasions he was a victim of an attempted crime. I consider attempts by persons claiming to be Maoists to extort money from the applicant would not be for the essential and significant reason or combination of reasons in s.5J(1)(a) and therefore would not be persecution. Having regard to the country information that the civil war ended in 2006 and the Maoists are now of reduced influence in Nepalese politics, I consider there is only a remote and therefore not a real chance the applicant will be targeted for harm by Maoists for reason of his pro-RRP [sic]/pro-monarchist political opinion, now or in the reasonably foreseeable future, if he returns to Nepal.”
In respect of its complementary protection assessment, the Authority made findings as set out in paragraph 27 of the Decision Record as follows:-
“I accepted above the applicant in the past had been victim of an attempted crime by people claiming to be Maoists opportunistically seeking to extort money from him. I am mindful of the DFAT report noting there are credible allegations of groups associated with political parties engaging in acts of intimidation and extortion. I am mindful too of the country information quoted by the delegate regarding people claiming to be Maoists opportunistically extorting people for donations for personal gain. On the evidence before me, I am satisfied the applicant would face a real chance of being extorted by people claiming to be Maoists if he was removed to Nepal. However, the evidence before me is the applicant and his family always refused to pay and that the people claiming to be Maoists have never carried through on any threats made at the time of the attempted extortion. While I accept the experience of being extorted and threatened would cause distress, I am not satisfied the level of that level of distress would constitute significant harm as exhaustively defined under ss.36(2A) and 5 of the Act. I have considered too if the people claiming to be Maoists escalated their threats or carried out threats and caused harm to him if the applicant refused to pay the donation, however on the evidence before me, I am not satisfied the applicant will face a real risk of significant harm from people claiming to be Maoists if the applicant is removed to Nepal.”
The Applicant’s fourth ground of review is based on country information, which he neither provided to the delegate (who made his decision on 18 August 2016), nor to the Authority (which made its decision on 29 September 2016), to the effect that:-
“[T]he Prime Minister of Nepal from 4th August 2016 was Pushpa Kamal Dahal who had previously been prime minister in 2008-2009. He was a Maoists [sic] being the leader of the Unified Communist Party of Nepal.”[8]
[8] Applicant’s submissions filed 19 September 2018, paragraph 20.
In effect, the Applicant submits that the Authority erred because it did not seek out more recent country information as to the identity of the parties constituting the government of Nepal (e.g. by “checking on the internet” [9]) than that in the April 2016 DFAT report.
[9] Ibid.
The Applicant argues that the Authority had a duty to enquire, and had it done so, the Authority would have discovered that on 4 August 2016, the majority coalition of the Nepalese Government had changed.
But of course, in failing to make the inquiry, if that can be said to be an obligation of the Authority, which in the circumstances here the Court finds it was not, then a wrong finding of fact is made, which is not in itself jurisdictional error.
If the Applicant thought providing information to the delegate and/or subsequently the Authority, was relevant and important to the delegate and/or the Authority’s consideration of his protection claims, the Applicant could have and should have provided that information he now places before the Court, to the delegate and/or the Authority. There was nothing precluding the Applicant from requesting the Authority to consider ‘new information’ (including country information). Indeed, the Authority’s ‘practice direction’ issued to the Applicant explained that the Applicant could request the Authority to consider ‘new information’.
As submitted by the First Respondent, the Applicant did not give any information to the Authority as to the identity of the parties comprising the government of Nepal, or indicate that there had been a recent change, or submit that that would have any particular significance to his claims. Accordingly, this case may readily be distinguished from Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, where recent country information was before the Tribunal (having been provided by the Applicant), and where the Tribunal failed to understand a claim made by the Applicant based on that recent country information.
There was no evidence that there was reason for the Authority to think that the DFAT report as at April 2016, insofar as it described the identity of the parties in coalition in the then current government might no longer be accurate in August or September 2016. As submitted by the First Respondent, the reliance by the Authority on information as to the party (or parties) in government in Nepal in April 2016 (as compared to August or September 2016), even if outdated, does not of itself bespeak jurisdictional error by the Authority. [10]
[10] VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161, 25;
The application must be dismissed as no jurisdictional error is established in the decision of the Authority. Costs will follow.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 January 2019
Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161, 20; SZDWK v Minister for Immigration and Multicultural Affairs [2006] FCA 405, 15; DZG17 v Minister for Immigration [2018] FCCA 1829, 106.
6
2