DZAFB v Minister for Immigration
[2016] FCCA 6
•11 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZAFB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 6 |
| Catchwords: MIGRATION – Protection (Class A) visa – whether tribunal’s decision was affected by jurisdictional error – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa), 91R |
| Cases: SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 |
| First Applicant: | DZAFB |
| Second Applicant: | DZAFC |
| Third Applicant: | DZAFD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 58 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 15 April 2015 |
| Date of Last Submission: | 15 April 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 11 January 2016 |
REPRESENTATION
| Counsel for the Applicants: | Ms Nguyen, directly instructed |
| Solicitor for the First Respondent: | Ms Newman |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance. |
ORDERS
The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Refugee Review tribunal)”;
The amended application filed on 2 April, 2015 be dismissed; and
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 58 of 2014
| DZAFB |
First Applicant
| DZAFC |
Second Applicant
| DZAFD |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476(1) of the Migration Act1958 (Cth) for review of a decision of a refugee review tribunal given on 10 December, 2014 that affirmed a decision of a delegate of the first respondent to refuse the applicants Protection (Class XA) visas.
The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicants and the first respondent have both filed written submissions, to which I have had regard.
Background
The applicants are Vietnamese nationals. They arrived by boat as irregular maritime arrivals on 14 April, 2013. The first and second applicants are husband and wife. The third applicant is their child who was born during their voyage to Australia.
On 6 September, 2013 each of the applicants applied for a protection visa. The first applicant was the main applicant and the second and third applicants sought their visas as part of the first applicant’s family unit. They did not advance any protection claims separate to those of the first applicant. For ease of reference, throughout the balance of these reasons I shall refer to the first applicant as the “applicant” and to the second and third applicants as “his family” or by a similar derivative.
On 3 September, 2013 the applicant signed an “Authority to seek Personal Information in relation to effective (prior) protection” form, stating:
I, [first applicant’s name], hereby give permission for the Department of Immigration and Citizenship (DIAC) to disclose any personal information supplied by me in relation to my application for a protection visa (PV) in Australia to the government authorities of any country except Vietnam
(emphasis added).
In February, 2014 the Department of Immigration and Border Protection publicly released private information about detainees who were in immigration detention on 31 January, 2014 including the applicant and his family.
On 12 March, 2014 the first respondent’s Department wrote to the applicant about the data breach, stating:
... it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.
On 13 August, 2014 the applicant was interviewed by the first respondent’s delegate about his family’s application for protection. On 10 October, 2014 a delegate of the first respondent refused the applicants’ visa applications.
The applicants sought review of the delegate’s decision by a refugee review tribunal. A tribunal was duly constituted, but was unable to make a favourable decision on the applicants’ applications on the papers alone. Accordingly, the tribunal invited the applicant’s to attend a hearing to give evidence and present arguments in support of their claims.
On 12 November 2014, the applicant attended a tribunal hearing assisted by an interpreter in the Vietnamese language. That hearing was adjourned on the basis that the applicant’s representative had withdrawn from the matter shortly before the hearing. The applicant attended a reconvened hearing on 2 December, 2014 assisted by a registered migration agent and an interpreter in the Vietnamese language.
By a decision dated 10 December, 2014 the tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. The tribunal rejected his family’s applications on the basis that the first applicant’s application had been unsuccessful. The tribunal sent a corrigendum to its reasons to the applicants on 15 December, 2014.
The applicant’s claims and the tribunal’s decision
The applicant claims that he married the second applicant in August, 2009. From 2010 to 2013, he was living at Vung Tau, working two weeks on and two weeks off at an oil rig.
He claimed that in late June, 2012 the applicant’s wife had started a stall at a local park which sold cigarettes and drinks. Four local police officers came to her stall one night and had drinks and cigarettes and refused to pay. They also demanded a “protection fee” of 300,000 dong, so as to allow the applicant’s wife to continue operating her stall. She refused and there was yelling. The police continued to harass her in this manner every night for the following ten nights.
The applicant claimed that ten days later, the applicant returned from work and assisted his wife at her stall. The same policemen came and demanded money. The applicant yelled loudly telling everyone that the policemen were corrupt and robbing himself and his wife. The police tried to hand cuff and arrest him for causing public disorder, but he resisted. They then beat him with batons and kicked him once he was on the ground. When others came to assist him, the police officers left.
The applicant said that he was taken to hospital and was released after 12 days. Once released, he made a written complaint to local police station about the police officers who harassed his family. Three or four days later, a police officer attended his house, wanting to pay his medical bills. He refused as he wanted to take the matter to court and have them dealt with criminally.
The applicant claimed that in late July or early August, 2012 the applicant’s injuries from the police bashing healed and he returned to work. His wife stopped working at her stall because she was, by then, pregnant. He claimed that the police sent people to intimidate his wife at her home while he was working away from home. They harassed wife saying that he had to stop trying to take the police to court and that they had to accept the money for the medical bills. The applicant’s wife refused and the police officers again, came to his home, knocking things over and breaking the television. He claims that they also threatened to kill her unborn baby.
The applicant said that his wife was visited in this manner on three occasions while he was away at work. He worried about his wife and child and so he went to police station to withdraw his complaint. He was forced to sign a written statement that police had never beaten him, after which his family were left alone.
In February, 2013 the applicant was encouraged by the doctor who treated him at the hospital to make a complaint directly to the Vung Tau police headquarters and he did so.
The applicant claimed that toward the end of February, 2013 the local police found out that the police headquarters had received the applicant’s complaint and were investigating. People came to his house, forcing their way in, and pushing over the applicant’s wife during one visit. The applicant and his wife left Vietnam because they felt that they were not safe.
The applicant claimed that he feared harassment and arrest because he had complained against police and because he had departed Vietnam illegally. He claimed that gave rise to an imputed political opinion against the police or against the Vietnamese authorities generally. He was also concerned that his child would not be allowed to enter Vietnam, having been born outside that country. The applicant claimed that the Vietnamese authorities could not and would not protect his family. He feared that he would be targeted wherever he went in Vietnam.
A further claim was made by letter on 3 September, 2014 on the basis that the applicants’ details had been disclosed by the Department as part of a data breach which occurred in January, 2014. The applicant claimed that this disclosure identified him as an asylum seeker and created a real chance that the applicants would be perceived as publicly critical of the Vietnamese government on return to Vietnam.
During the tribunal hearing the tribunal member questioned the applicant about aspects of his claims and he gave further detail about them. In particular the tribunal noted that it appeared that the threats made by the four local police officers indicated that they were concerned about the possibility of being punished as a result of the applicant’s complaint to police headquarters. The applicant stated that complaining to the police headquarters had increased his fear of harm rather than resolving it.
The applicant stated that the police in different areas were connected, and so if he moved from Vung Tao back to his home town to avoid the local police, the Vung Tao police would become aware that he had moved and may pursue him. He thought that the police in his hometown would become aware of his complaint and may take action against him.
The applicant stated that he and his family would be disrespected by people in his hometown on the basis that he had complained about the police and that they were failed asylum seekers. He also claimed that there would be a long delay before his child could be registered. He stated that his wife was pregnant again and that it would take even longer to register his second child.
The tribunal accepted all of the applicant’s claims about having been harassed and assaulted by police, the complaints that he made and the resulting threats from the police and others.
The tribunal found that:
a.the applicant’s withdrawal of his complaint following the police threats to his wife was “evidence that he genuinely stopped wanting to pursue the matter in court”. However the Tribunal also “considered whether it is evidence suggesting he modified his behaviour to protect himself and his wife from potentially serious harm.”
b.it was not satisfied that the applicant would refrain from pursuing the complaint to police headquarters in future out of fear of persecution. Rather, the applicant did not have any genuine desire to pursue his complaint further upon return to Vietnam and as a result did not face any risk of harm from the police there;
c.the applicant’s overall claims were about the police system offering to help and about what four local police feared he might do to damage them locally;
d.the higher levels of police “evidently” took a genuine interest in his complaint about the four individual local policemen who had been giving him and his wife such trouble;
e.the applicant’s adviser did not rebut that the higher authorities were duly acting on the applicant’s complaint at the time;
f.nothing the applicant said about going back to his hometown “suggested other than a remote chance that the authorities in Vietnam generally or in [his hometown] particular (sic) would take any negative interest in him arising from past events in Vung Tau”;
g.the applicant and his family could reasonably relocate to his hometown. The issue with the police in Vung Tao was localised. The Tribunal did not consider that the problem would follow Mr Le to other parts of Vietnam;
h.the applicant had provided no evidence to support the suggestion that police in his hometown would take action against him on the basis of his complaints in Vung Tao and that the suggestion “struck [the Tribunal] as mere speculation at best”; and
i.there was no satisfactory evidence that the residents of his hometown would discover that the applicant complained to the police or that his family were failed asylum seekers, and that the applicant’s fear of being disrespected fell “far short” of serious harm.
The tribunal:
a.was not satisfied on the evidence before it, that the applicant’s unlawful departure from Vietnam would significantly impact on [his family’s] integration back in Vietnam or cause it to be unreasonable for them to relocate back to [his hometown]”;
b.was not satisfied that the applicant “would be genuinely interested in taking up [the complaint about the police] again”;
c.was satisfied that the harm suffered by the applicant and his wife was individual criminal harm that they suffered in past circumstances;
d.was not satisfied that the circumstances described continue to exist in Vung Tau or anywhere else;
e.determined that the harm feared came from local individuals in a specific locality where the applicant and his wife are under no obligation to reside and work in future;
f.did not accept that the local problem encountered by the applicant and his wife would follow them in other parts of Vietnam;
g.was not satisfied that the applicant and his wife would be obliged to return to their home base in Vung Tau;
h.was not satisfied that any events in the applicant’s past give rise to a real chance of serious harm;
i.was not satisfied that the applicant and his family would encounter any difficulty or undue delay in being restored to the family Ho Khau in his hometown, or that the matter would give rise to a real chance of serious harm;
j.was not satisfied that the applicants faced a real chance of serious harm for reasons of having left Vietnam illegally or for having sought asylum abroad, because it was not satisfied on the evidence before it that the laws and practices dealing with people who previously departed Vietnam illegally are implemented or enforced in a discriminatory manner or that they would give rise to serious harm being inflicted on the applicant’s family;
k.was not satisfied that the data breach affected the applicant’s claims. The Tribunal rejected the applicant’s assertion that his statement of claims might have been published and referred to its findings regarding failed asylum seekers generally which included findings that Mr Le would not be at any risk of harm as a failed asylum seeker returning to Vietnam;
l.was satisfied that the applicant’s daughter would be formally recognized in Vietnam as a Vietnamese national and would be registered as a matter of course and that the applicant’s family do not face a real chance of serious harm arising from the daughter having been born undocumented at sea;
m.was not satisfied that the applicant faces a real chance of serious harm in Vietnam or that he has well-founded fear of Convention related persecution in Vietnam, and by extension, that he meets the criteria under s.36(2)(a) of the Migration Act;
n.noted that the applicant’s claims to complementary protection were the same as his claims to refugee status and set out some of the factors to which it paid particular regard in assessing those claims. The Tribunal found that Mr Le would not face significant harm if returned to Vietnam for the purposes of section 36(2)(aa) of the Act.
The applicants rely upon an amended application for review filed on 2 April, 2015. The amended application contains 8 purported grounds of review. One (paragraph 6 in the amended application) was abandoned.
In their written submissions, the applicants group the first two grounds (grounds 4 and 5 in the amended application) together. Those grounds are as follows:
4. The Tribunal erred in its conclusions about a jurisdictional fact, being the determination that the applicant “does not hold a well-founded fear of persecution based on any convention ground”, as the Tribunal failed to take into account and/or give adequate weight to a relevant consideration, being imputations of political dissent arising from action against police, as representatives of the Vietnamese state.
5. In finding that the overall claims “were about the police system offering to help”, and that the harm feared came from “local individuals in a specific locality”, the Tribunal erred in its placing insufficient weight upon the seriousness, brutality and persistence of the police conduct against the applicant and his family and the circumstances of duress under which the applicant withdrew his complaint about the police.
The tribunal accepted that the applicant was beaten by police as claimed and that he was taken to hospital as a result of the beating. However, it also found that the applicant’s overall claims were “about the police system offering to help” and that his problems with the four policemen who harassed, threatened and assaulted himself and his wife were a “localised” problem.
The applicants submit that the tribunal’s decision that it was not satisfied that the applicant faces a real chance of serious harm in Vietnam or that he has well-founded fear of Convention-related persecution in Vietnam, was affected by error of law because it failed to take into account or give sufficient weight to:
a.the imputations of being a political dissident from complaining about police brutality in Vietnam; and
b.the fact that the “local individuals” who harassed the applicant’s family were State Police, and that police at any level represent the state of Vietnam, thereby making local police action equivalent to action by the State.
Further, the applicants submit that when the tribunal determined that the applicant voluntarily withdrew his first complaint about the police conduct, the tribunal disregarded a relevant consideration, namely that the applicant’s withdrawal was not a voluntary act, but was a result of duress arising from the harassment, threats and abuse he and his wife suffered at the hands of the police.
Further, the applicants argue that when the tribunal determined that the higher levels of police “evidently” took a genuine interest in his complaint about the four individual local policemen, the tribunal failed to consider the possibility that the gangsters sent to harass his wife after the complaint was made to police headquarters could have been sent by police headquarters, and not the local police.
The applicants argue that each of the error is identified in the preceding three paragraphs affected the tribunal’s task on review under s.414 of the Act, namely to satisfy for itself, and on the material before it, whether the criteria set out in s.36(2)(a) of the Act, was met.
However, I reject each of those submissions. The tribunal’s reasons disclose that it properly understood the claims made by the applicant. It is not suggested in submission that the tribunal misunderstood any of the factual basis upon which the applicant advanced his claims. The tribunal undertook the task required of it. That is to say, the tribunal considered all of the evidence before it and made findings of fact upon that evidence. The tribunal was not bound to engage in speculation. Some of the matters to which the applicant points in this ground of review are speculation.
Moreover, when weighing the evidence and making its findings of fact, the weight to be accorded to any particular evidence is a matter entirely for the tribunal. The matters complained of by the applicants take issue with the merits of the tribunal’s fact finding in the present case.
For example, the applicant complains that the tribunal did not take into account or give sufficient weight to an imputation concerning his political opinion arising from the complaints that he made about the police. However, the tribunal’s reasons, at paragraph [23] as an instance, reveal that the tribunal was alive to that argument and acknowledged it. The tribunal further considered the claim at paragraph [25] of its reasons, and found that there was nothing to suggest anything other than a remote chance that authorities in Vietnam generally, or in his hometown region in particular, would take any negative interest in him arising from the events he described in Vung Tau.
The finding by the tribunal that the difficulty the applicant and his wife experienced from the local police was a local or individualised criminal matter disposes of the applicant’s claim that the local police, in conducting their campaign of harassment against the applicant and his wife were acting as agents of the State. There was no evidence to suggest that the actions of the local police were condoned in any way by the State. The tribunal’s finding that police at higher levels took a genuine interest in his complaint about the four individual local policeman who had been giving him and his wife trouble renders entirely unlikely the proposition that the local police were representing the State when they were harassing the applicant’s wife.
As to the withdrawal of the police complaint by the applicant, the tribunal considered whether the first applicant only withdrew his first complaint to the police under duress. At paragraph [20] of the tribunal’s reasons, the tribunal records in detail the harassment which the first applicant claimed to have experienced, and then states:
“[the applicant] claims he then went to the local police station to withdraw [his] complaint in writing. He claims he signed an acceptance of payment of his medical bills although these, he also claims, were never really paid. I take this as evidence that he genuinely stopped wanting to pursue the matter in court, but I have also considered whether it is evidence suggesting he modified his behaviour to protect himself and his wife from potentially serious harm’’.
As the first respondent points out, the tribunal then found at paragraph [41] that “Some of his evidence suggests he abandoned [his complaint] the first time to avoid further harassment, but he also gave evidence about a financial settlement”. The tribunal ultimately found that the first applicant would not pursue his complaints against police if returned to Vietnam.
In my view it is clear that the tribunal considered the circumstances in which the applicant came to withdraw his first complaint to the police. No criticism can be made of the tribunal’s approach to this issue.
To the extent that the applicant submits that the tribunal failed to consider the possibility that gangsters sent to the applicants’ house after he complained to the police headquarters could have been sent by the police headquarters, rather than the local police, the applicant’s submissions are entirely speculative. The applicant specifically claimed that it was the local police, not the police headquarters, which sent people to his house. At paragraph [16] of the first applicant’s statutory declaration made in support of his visa application (CB94), he states:
Once the local police found out that the police headquarters were investigating our complaint they sent some people around to our house.
The tribunal accepted this claim, however, found that the applicant did not face persecution or significant harm as a result of it.
Given the way in which the applicant chose to present his case to the tribunal, the tribunal was not required to consider the possibility that people were sent to the applicant’s house by the police headquarters. This case clearly was that it was the local police sent the relevant gangsters around the time.
These grounds of review reveal no jurisdictional error on the part of the tribunal.
The next ground is that specified in paragraph 7 of the amended application as follows:
The Tribunal committed an error of law in its determination of persecution under section 91R of the Migration Act, in failing to consider and apply the definition of “serious harm” under section 91R(2)(f) of the Act to the circumstances raised by the applicant, namely that a “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist” is an instance of “serious harm”.
The applicants argue that:
27. In rejecting the applicant’s claims to protection, the tribunal Decision Record does not establish any consideration of the definition of “serious harm” under section 91R(2)(f) insofar as it applied to the applicant’s circumstances, namely, that by continually harassing, threatening and abusing the applicant and his wife - including threatening to kill their unborn baby - the local policemen rendered the applicant’s family into a condition where they had to stop conducting their small business (the drink stall) and where this affected their capacity to subsist, as an instance of “serious harm”.
A proper consideration of the tribunal’s reasons for decision demonstrates that this ground of review cannot be made out.
Whilst the applicants allege that the tribunal failed to consider whether the first applicant faced serious harm on return to Vietnam, on the basis that the harassment by local police created a situation where the second applicant could no longer run her drink stall, the tribunal clearly considered that matter. The conclusions reached by the tribunal in paragraphs 41 and 42 of its reasons for decision (reproduced below) reveal that the tribunal was not satisfied that there was any real risk of any harm to the applicant or his wife in the future, or that the harm that they had suffered in the past was for a Convention reason.
The applicant’s allegations about the conduct of the local police were accepted by the tribunal. But the findings of fact made by the tribunal about the likelihood of such harm existing in the future, and the reasons for which that harm was perpetrated upon the applicant’s wife necessarily mean that even if the tribunal accepted that the conduct of the local police deprived the first applicant or his wife of the capacity to earn a livelihood, it would not constitute serious harm for the purposes of s.91R(2) of the Act.
Moreover, as the first respondent submits the tribunal found that the harm would not occur in the future and that the harm feared was not for a Convention reason. In those circumstances it is immaterial that the harm feared may have constituted “serious harm” within the meaning of s.91R(2) of the Act.
No jurisdictional error is evident from any of the matters set out in this ground.
The next ground is that specified in paragraph 8 of the amended application as follows:
The Tribunal’s decision regarding complementary protection involved an error of law as the Tribunal failed to consider and apply the test for complementary protection under section 36(2A) of the Migration Act, by failing to properly consider and apply the applicable law defining “significant harm” to the facts as raised by the evidence.
The applicants argue that:
28. There is no indication from the tribunal’s Decision Record that it turned its mind to the criteria to be satisfied for an assessment of complementary protection when it decided that it was “not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer serious harm.”
29. In particular, the RRT failed to address whether the applicant would be subject to “cruel or inhuman treatment or punishment” under s36(2A)(d) or “degrading treatment or punishment” under s36(2A)(e).
The applicant’s case was, in part, that he feared that if returned to Vietnam, the police would pursue him because of the complaints he had made. The tribunal dealt with that claim in the following way:
22. By [the applicant’s] evidence at the Tribunal hearing, the complaint against the four local police officers has long since lapsed. He did not suggest that there would be any point trying to revive such an old matter again now that he had for so long made himself unavailable. He expressed no genuine interest in pursuing the matter again in the event of returning to Vietnam. On the evidence before me, I am not satisfied that he would refrain from pursing the matter in future out of fear of persecution. His evidence also clearly indicated that it was also a purely local matter. I put this to him and he did not rebut the position satisfactorily. He did say that the police have networks throughout Vietnam, but, overall, his claims were about the police system offering to help and about what four local police feared he might do to damage them locally. He did not rebut that at higher levels the police evidently took a genuine interest in his complaint about the four individual local policemen who had been giving him and his wife such trouble.
23. I allowed the adviser an opportunity to make oral submissions in relation to [the applicant’s] claims. In particular he said that the claims related to imputed “political opinion” and that although the four policemen in Vung tau acted as though they were frightened of being penalised by their superiors they had nevertheless been very brutal towards [the applicant] and [the second applicant]. He did not dispute that the higher authorities were duly acting on [the applicant’s] complaint at the time.
And then later, the tribunal made the following findings:
41. I accept that [the applicant] and his wife encountered the problems in Vung Tau that are described in his case. On the evidence before me, it seems odd that he resumed his campaign on the advice of the doctor but I have accepted on the benefit of the doubt that he did. Some of his evidence suggests he abandoned the campaign the first time to avoid further harassment, but he also gave evidence about agreeing to a financial settlement. I have considered whether he would avoid taking up the matter in the future to avoid further persecution, but in view of the matter evidently having lapsed so long ago, and because he did not express to me a genuine desire to pursue the matter further, I am not satisfied that he would be genuinely interested in taking up the matter.
42. More significantly, I am satisfied that the harm [the applicant] and his wife fear is individualised criminal harm that they suffered in past circumstances. I am not satisfied that the circumstances described continue to exist in that location or anywhere else. I do not accept on the evidence before me that a Convention-related factor is the essential and significant factor in the harm feared. I find that the harm feared came from local individuals in a specific locality where [the applicant] and [the second applicant] are under no obligation to reside and work in the future. I do not accept o the evidence before me that the local problem they encountered in Vung Tau would follow them to other parts of Vietnam. Although [the applicant] had a job that he probably best performed from a home base in Vung Tau, I am not satisfied that he and his family would be obliged to return there, even to help resolve the matter of Anna’s identity and nationality.
In respect of the applicants claims for complementary protection, the tribunal said:
49. Having concluded that the [the applicant] does not meet the refugee criterion in s.36(2)(a), I have has considered the alternative criterion in s.36(2)(aa). [The applicant’s] claims to complementary protection are the same as his claims to refugee status. In considering his claims as claims to complementary protection I have had particular regard to the localised nature of the harm he claims to fear, the fact that he and [the second applicant] have a baby daughter who currently lacks documentation, the fact that [the second applicant] is evidently pregnant again, the reasonableness of residing in [the applicant’s hometown] and, accordingly, the availability and reasonableness of relocation (ref. s.36(2B)(a)). For the reasons given above, which also deal with other matters such as illegal departure, asylum seeking abroad and the DIBP data breach, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
The applicants submit that had the tribunal properly applied the legal principles relevant to establishing whether there was a risk of suffering “significant harm” if returned to Vietnam, it might have concluded that the applicant and his family should be afforded complementary protection.
But in my view, the tribunal properly considered this matter. The tribunal instructed itself correctly as to the law that applied. On the basis of the findings that it made concerning the applicants’ difficulties with the police and particularly having regard to the finding that the harm the applicant and his wife feared was individualised criminal harm that they had suffered in the past but which the tribunal was not satisfied continued to exist, the tribunal could have reached no other conclusion about this issue.
No jurisdictional error is evident from any of the matters set out in this ground.
The next ground is that specified in paragraph 9 of the amended application as follows:
The Tribunal’s determination that it was not satisfied on the evidence before it that the February, 2014 data breach gives rise to a real chance of serious harm for the applicant and his family, involved an error of law, as there was no actual evidence before the Tribunal about the content of the material disclosed by the DIBP, upon which the Tribunal could have directed its consideration.
As I have set out earlier in these reasons, on 3 September, 2013 the applicant signed an “Authority to seek Personal Information in relation to effective (prior) protection” form authorising the release of his personal information to the government authorities of any country, except Vietnam. It is uncontentious that between 10 and 19 February, 2014 the first respondent’s department unintentionally published the personal information of approximately 9,250 asylum seekers on its website, as part of its “Immigration Detention and Community Statistics Summary”. It seems to be uncontentious that this enabled the world to access personal information about people who were in immigration detention on 31 January, 2014. The applicant and his family were amongst those people in detention and whose details were so published.
The applicant and his family were informed of the “data breach” on 12 March, 2014.
There is no dispute that in November, 2014 the Privacy Commissioner published a report which found that:
a.the first respondent’s department breached Information Privacy Principle (IPP) 4 by failing to put in place reasonable security safeguards to protect the personal information that it held against loss, unauthorized access, use, modification or disclosure and against other misuse, and
b.The publication of the personal information of the listed individuals was an unauthorised disclosure, in contravention of IPP 11.
Before the tribunal, the applicant advanced a sur place claim arising from the publication of his information in the way described above. The tribunal referred to the material to which it access relating to this claim at paragraph 6 of its reasons for decision. In that paragraph it recorded:
In addition, I have had regard to a 12 March 2014 letter from the Secretary of the Department of Immigration to the applicants outlining the limits of the bio-data that was included in the February 2014 data breach; significantly, the applicants were informed that the data breach did not include any information about their protection claims or health information. [The applicant] was handed this letter but, as he was entitled to do, refused to sign for it.
Later, the tribunal dealt with that claim in the following way:
38. The February 2014 data breach involved the accidental publication on the Department’s website, in February 2014, of bio-data pertaining to about 10,000 asylum seekers:
A major data breach that exposed the personal details of almost 10,000 people in detention was caused by Immigration Department failures to check and approve documents for web publication, an independent review has found.
The report by management consultants KPMG, which was published on Thursday, reveals that the document containing the information was approved for publication by an assistant secretary at the department.
Guardian Australia revealed the data breach, one of the largest in Australian history, in February. The publication of the personal information, mostly of asylum seekers in Australia, raised serious safety concerns for those affected.
The document, which contained personal information such as names, dates of birth, location and nationality of those in detention - was downloaded 123 times “from multiple sources” with 104 unique IP addresses, the review found.
Its key findings are:
· Confusion within the department surrounding the clearance checks that needed to be undertaken for publishing material on the web.
· Checks of documents to be published online occurring on physical versions of documents, rather than online versions.
· The data breach occurred despite approval from an assistant secretary of the department.
· The individual who authored the document had never previously prepared the material, leaving the process “more susceptible to human error”.
The findings of the review, which was commissioned by the department, also appear to contradict responses given by the department at Senate estimates questions on 26 May - after it had received the report – that “there were 26 known downloads”.
Internal correspondence within the department, obtained through freedom of information, revealed officials had previously been unaware how many times the file had been accessed.
According to KPMG the “potential data access and distribution is widespread”, raising further concerns about the risks asylum seekers who were named in the breach could face if they are returned to their countries of origin.
The report states that “neither the content authors, nor the director of the responsible reporting team” were aware that they were responsible for assuring material was appropriately monitored and controlled for publication on the web.
“Authors and approvers were generally unaware that the IT security risk which led to this incident, could occur and were therefore not mindful of checking for indicators of this risk,” it said.
It describes how an employee who had never prepared the type of document before created the file. The process was normally automated, but was “manually expedited” to meet a target publishing date.
“The document was escalated through the responsible web management team’s clearance process, which involved review and approval up to assistant secretary level. The reviews resulted in various amendments to the document, with the incident occurring at some point in the process of making those amendments.”
David Manne, executive director of the refugee and immigration legal centre, said the breach placed asylum seekers at a “real risk of retribution from those they’ve fled from”.
Hundreds of those affected have complained to the privacy commissioner, who is conducting an own motion investigation into the breach.
Dozens of asylum seekers are also appealing to the federal court to halt their deportation, arguing that the breach could give them a stronger claim to refugee status.
Last week some asylum seekers affected by the breach received a letter telling them they had just 14 days to explain how the breach changed their protection claim, before they faced being returned.
The review recommends that the department develop procedures for “cleansing” personal data, update review procedures, develop an IT security training program and incorporate privacy training in connection with the Australian Privacy Principles.
[“Review blames Immigration for data breach exposing 10,000 detainees”, The Guardian,12 June 2014, I invited [the applicant] to comment on how he might be affected by the breach, and he said that maybe the Department had published his statement of claims. On the evidence before me, this did not happen. Overall, [the applicant] said the breach might tip off the authorities that he had sought asylum in Australia. As noted, we discussed the claim about “failed asylum seekers” in some detail at another stage in the hearing.
The applicants argue that:
a.without seeking for, or seeing the exact contents of the data unlawfully published, the tribunal relied upon the descriptions given by the first respondent’s department about what was disclosed;
b.the implications for the applicant of this data breach and the gravity of the consequences for the state from which he fears persecution knowing about the details of his identity and his arrival in Australia, are significant matters of concern to the applicant and his family;
c.the first respondent’s delegate could not have evaluated the claim because it results from a Departmental error. To do so would be to create perceptions of bias and unfairness; and
d.the categories of personal information compromised in the data published by the first respondent’s department, as summarised and described by the first respondent’s department and as relied upon by the Tribunal in deciding on the impact of the data breach upon the applicant 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.
However, in my view none of these matters address the issues that properly concerned the tribunal, namely whether there was a real chance of serious harm for a Convention reason to the applicants, or a real chance of significant harm, should they be returned to Vietnam. The release of data about the applicant could affect those considerations in at least two ways. First, the release of the data had the potential to identify the applicants as asylum seekers in Australia. That would necessarily be relevant to the applicant’s claim that known failed asylum seekers would be exposed to the relevant types of harm upon return. But the critical issue here is knowledge of the failed asylum claim. Second, the release of the data might be relevant to the nature of the claims made by the aspiring refugee. Knowledge of the claims made by the applicant might affect the applicant’s home State’s attitude towards an individual returning failed asylum seeker. That is to say, the claims made by the applicant might inform the relevant authorities of matters that might lead to persecution should the applicant be returned.
As to the first matter, to the extent that the applicant was concerned that the publication of his data “might tip off the authorities that he had sought asylum in Australia”, the tribunal considered separately, the risks for the applicants as unsuccessful asylum seekers returning to Vietnam. Insofar as the applicant’s fears of harm arose out of his status as a failed asylum seeker returning to Vietnam, that it was known that he was a failed asylum seeker was what was important, not how that knowledge came to be known.
As to the second matter, the tribunal was required to assess the applicant’s claims against the evidence before it. The tribunal accurately recorded the evidence before it. The applicant was asked at the tribunal hearing, to comment about the data breach. His concern focussed upon whether his statement of claims had been released. None of the material before the tribunal suggested that the applicant’s statement of claims had been released. Despite the applicants’ submissions to the contrary, there was evidence before the tribunal upon which it could find that the applicants statements and claims to protection had not been released:
The information did not include your address (or any former address), phone numbers, or any other contact details. It also did not include to any information about protection claims that you or any other person may have made, and did not include any in any other information such as health information.
(Letter from the first respondent’s department to the applicant dated 12 March, 2014)
The same letter set out the information that had been released namely, the applicants’ names, dates of birth, nationality, gender, details of their detention and if they had other family members in detention.
In my view, the tribunal undertook the task that it was required to undertake in respect of the applicant’s claims that arose out of the “data breach”.
The applicants further argue that even if and when the first respondent’s department provides all the necessary information to the applicants to enable them to fully understand what was disclosed, the applicants will not know who accessed the information and what has been done with it. As the applicant’s point out, the data, once accessed after it was made available to the world, could be saved, modified and passed on further without the first respondent’s department’s knowledge. The applicant’s argue that it is possible that if the Vietnamese State were concerned or interested in Vietnamese asylum seekers in Australia, it could monitor the monthly statistics published by the first respondent’s department, taking note of information of interest. It is possible that having done this, it could have “saved” the data which was freely available on line between at least 10-19 February 2015.
The applicant’s conclude by submitting that the tribunal’s conclusions about failed asylum seekers being safe to return to Vietnam is incorrect at law because the tribunal could not have properly decided on the effect of the “data breach” without knowing the exact content of the data that was published. For this reason the tribunal was not in a position to properly evaluate the claim.
But in my view, these arguments do not assist the applicants because the tribunal found that the details of the applicants’ protection claims were not revealed in the “data breach” and the applicant’s claims were assessed against information available to the tribunal about how the Vietnamese authorities dealt with known failed asylum seekers.
To the extent that the applicants argue that the tribunal ought to have obtained the “exact” information that had been disclosed by the first respondent’s department in the “data breach”, in my view, there was no obligation upon the tribunal to seek out that “exact” information will stop that is so because the tribunal had before it, evidence of the information that had been disclosed. That evidence was in the letter of 12 March, 2014. That letter provides particulars of the information that was disclosed and the information that was not disclosed. The tribunal needed to look no further. There was no failure to accord the applicant’s natural justice or procedural fairness by proceeding in the way in which it did.
In my view, this ground of review reveals no jurisdictional error in the tribunal’s decision
The next ground is that specified in paragraph 10 of the amended application as follows:
The Tribunal denied the applicant procedural fairness in deciding on the effect of the DIBP’s unlawful disclosure of the applicant’s personal information (data breach) when there are multiple ongoing and unresolved litigation directly affecting the applicant’s interests, specifically the applicant’s interests concerning DIBP “normal processes” for assessment of implications for individuals personally, as described in the DIBP’s letter to the applicant about the data breach, dated 12 March 2014.
The applicants submit that the first respondent’s “breach of privacy of individual asylum seekers has significant and far-reaching implications for the individuals whose privacy was breached and a number of individual complaints have been lodged and are being investigated by the Australian Privacy Commissioner. Amongst these, are the applicants’ complaints (the applicant’s complaint number CP14/03756; his wife’s complaint number CP14/03739 and his daughter’s, CP14/03755)”. They further argue that given that there are “ongoing privacy complaints” which are currently under investigation, it is inappropriate for both the first respondent’s delegate and the tribunal to determine conclusively that the first respondent’s data breach would not render the applicant a refugee sur place, or invoke complementary protection.
They further submit that “there is other unresolved litigation on foot which have direct import to the applicant in respect of questions concerning the processes by which his and his family’s Protection Visa applications must be dealt”. They point out that in the letter of 12 March, 2014 from the first respondent’s department about the “data breach”, the penultimate paragraph of the letter said:
“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes (emphasis added).”
Drawing upon the decision in SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 the applicants argue that the tribunal ought not to have rejected their applications.
The application in SZWAJ was for an injunction pending appeal from a decision of the Federal Circuit Court of Australia refusing the grant of an injunction restraining the Minister for Immigration from removing the applicant in that case from Australia. The applicant had received a letter in similar terms to the one received by the applicants in the case now before me. She had been unsuccessful in an application for a protection visa. She had not sought judicial review of the tribunal’s decision that, in effect, refused her application for that visa. She did, however, receive notice that she was to be removed from Australia.
SZWAJ claimed that the statement in the letter that the department would assess any implications arising from the data breach “as part of its normal processes” is apt to give rise to an expectation that the Department would conduct some other process to assess the impact of the data breach for her in addition to the protection visa application process that she had already exhausted. On the basis that such additional process has not yet occurred, that applicant sought an injunction restraining her removal from Australia.
After describing the competing constructions that might be placed on the relevant paragraph of the letter, at [9] – [10] Greenwood J said:
9. It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second‑last paragraph of the Department’s letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
10. It is not clear to me where the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.
The first respondent submits that the arguments raised in SZWAJ have no relevance to this proceeding because the applicant in SZWAJ sought a finding that the Department must carry out some assessment of the impact of the data breach on her which was in addition to the protection visa application and review process that she had already exhausted.
I agree. Irrespective of which of the two competing constructions of the relevant paragraph in the letter identified in SZWAJ is correct, the fact that is litigation on foot such as SZWAJ is irrelevant to the present proceedings. That is so because:
a.if the first construction is adopted (that there is a separate process to be undertaken in addition to the application for the protection visa) the necessity for that process cannot have an effect on the outcome protection visa application; and
b.if the second construction is adopted (that the question is to be taken up in the protection visa application process) the tribunal has undertaken what is required of it in that regard.
I accept the first respondent’s submission that the question of whether the present applicants are entitled to the benefit of some further process is irrelevant to this Court’s judicial review of the tribunal’s decision. The tribunal was not required to consider whether some additional process was required or had taken place in relation to the applicants.
Moreover, I accept the first respondent’s submissions that there is no apparent reason why the existence of ongoing privacy complaints by the applicant or his family are relevant to the tribunal’s review of the first applicant’s claims for protection.
This ground reveals no jurisdictional error.
The next ground is that specified in paragraph 11 of the amended application as follows:
The Tribunal’s determination that it was “not satisfied on the evidence before [it] that the applicants face a real chance of serious harm for reasons of having left Vietnam illegally, or for having [s]ought asylum abroad”, was affected by error in that there was an over-reliance on DFAT Country Information which the Tribunal was mandated to take into account under Ministerial Direction 56, and was a conclusion otherwise based on “no evidence”.
The tribunal addressed “Illegal Departure and Seeking Asylum Abroad” in paragraphs 28-33 of its reasons for decision. Relevantly, the tribunal said:
30. According to DFAT, punitive measures may not be applied in practice. DFAT advice to the Department of Immigration and Citizenship (DIAC; now DIBP) of February 2007 concluded that “it is unlikely that a person who departed illegally would suffer punitive action from Vietnamese authorities if deported back to Vietnam, even after committing criminal offences in Australia”. The advice stated that government agencies, including the Ministry of Public Security, had expressed that the Vietnamese policy on returnees “is that they have a right to return to Vietnam and that they will not face further punishment for offences committed outside Vietnam”. Post stated that practice appeared to concur with these statements. Similar information was provided again in September 2011 with regard to Vietnamese citizens who are repatriated after committing a crime overseas.
31. I put to [the applicant] that Vietnam had been co-operating with UNHCR, IOM and first asylum countries for over two decades in the matter of orderly and even forced return of failed asylum seekers who originally left Vietnam illegally. I put to him on the basis of independent country information that there is no evidence to suggest that Vietnam penalises people merely for having sought asylum abroad.
32. [The applicant] offered no response to the contrary. He did not suggest that relevant laws or practices would be applied or exploited in a discriminatory way. I am not satisfied on the evidence before me that they would be, or that [the applicant] or his family would face a real chance of serious harm for reasons of having left Vietnam illegally or having sought asylum abroad. I am not satisfied on the evidence before me that this would significantly impact on their integration back in Vietnam or cause it to be unreasonable for them to relocate back to [his hometown].
33. When I invited [the applicant] to comment further, he said that the real reason he cannot go back to Vietnam is that his daughter [name deleted] has no documents to prove that she is their daughter.
…
45. On the evidence before me I find that the laws and practices of dealing with people who previously departed Vietnam illegally are implemented under laws of general application. I am not satisfied on the evidence before me that these laws would be enforced in a discriminatory manner or that they would give rise to serious harm being inflicted on [the applicant] or his wife or daughter. I am not satisfied on the evidence before me that the applicants face a real chance of serious harm for reasons of having left Vietnam illegally, or for having sought asylum abroad.
As the applicants point out, the tribunal’s sources of information included:
a.Department of Foreign Affairs and Trade 2012, DFAT Report No. 1364 - Vietnam: RRT Information Request: VNM39900 , 6 March
b.US Department of State 2012, Country Reports on Human Rights Practices for 2011 - Vietnam , 24 May, Section 2(d)
c.Immigration and Refugee Board of Canada 2009, VNM103088.E Vietnam: Process for being reinstated onto a household registration, 26 February, UNHCR Refworld of Foreign Affairs and Trade 2007, CIS Request No VNM 8771: Update on treatment of Vietnamese returnees , 1 February (CISNET Vietnam CX170139)
e.Department of Foreign Affairs And Trade 2011, Country Information Report No. 11/55: VNM 12377 Return of a Vietnamese National with Criminal Conviction , 15 September (CISNET Vietnam CX272689)
The applicant submits that the tribunal gave too much weight to DFAT country information pursuant to the requirement in Ministerial Direction 56 to consider DFAT Country Information and that the tribunal’s preference for country information over the evidence given by the applicant, in the absence of independent sources of country information, is wrong in law.
The applicants also point out that the tribunal relied on information from the United States Department of State reporting that the Vietnamese government generally cooperated with UNHCR. They argue that “This is a consideration that should not be given much weight, as cooperation with UNHCR does not equate to non-ill-treatment of failed asylum seekers.”
However, the difficulty with these arguments is plain. First, the weight given to evidence by the tribunal is a matter for the tribunal. The tribunal was entitled to interpret and place such weight as it considered appropriate on country information. Further, to the extent that this ground of review suggests that the tribunal’s conclusions were based upon “no evidence” is clearly cannot succeed because there was material before the tribunal (which the applicants’ own submissions acknowledge) that supported the conclusion reached by the tribunal.
Second, there was no evidence given by the applicant that could have been given “preference” over the information relied upon by the tribunal. As the tribunal’s reasons at paragraph 32 demonstrate, the import of the country information obtained by the tribunal was put to the applicant for his comment, but he could offer no evidence to demonstrate that the relevant laws or practices would be applied or exploited in a discriminatory way.
No jurisdictional error is evident from any of the matters set out in this ground.
Conclusion
As no jurisdictional error is evident in the tribunal’s decision, the decision is a privative clause decision unable to be reviewed in this Court.
Accordingly the amended application must be dismissed with costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.
Associate:
Date: 11 January 2016
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