SZLWQ v Minister for Immigration
[2008] FMCA 486
•30 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 486 |
| MIGRATION – Review of two decisions of the Refugee Review Tribunal – applicant claiming religious persecution in Georgia – refusal of a protection visa by the first Tribunal – second Tribunal finding it had no jurisdiction – applicant claiming the first Tribunal breached the Privacy Act 1988 (Cth) by disclosing her personal information in Russia (and Georgia) – applicant consented to the disclosure – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 417, 424A, 474 Privacy Act 1988 (Cth) |
| Abbasi v Minister for Immigration [2001] FCA 1274 Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609 Goldie v Commonwealth of Australia & Ors [2002] FCA 433 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLWQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG64 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 15 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG64 of 2008
| SZLWQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
I have before me an application filed on 11 January 2008 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 December 2007 and sent to the applicant the following day (the second Tribunal decision). In reality, however, the applicant is challenging an earlier decision of the Tribunal handed down on 20 August 2002 (the first Tribunal decision). In that decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and two other applicants protection visas. The second decision of the Tribunal simply found that the Tribunal had no jurisdiction because the decision of the delegate had been reviewed previously. I adopt the following statement of background facts from the Minister’s written submissions filed on 8 April 2008.
The applicant is a citizen of Georgia, and arrived in Australia on 12 April 2001.[1]
[1] court book (“CB) 14
On 7 May 2001 the then Department of Immigration and Multicultural Affairs (Department) received an application for a protection visa from the applicant.[2]
[2] CB 1
The applicant claimed to fear persecution in Georgia as a result of her religion. She claimed that she was introduced to the Jehovah’s Witness faith whilst on a business trip to the United States in 2000. The applicant returned to Georgia and continued to practice her faith. The applicant claimed that religion in Georgia is controlled by the Greek Orthodox Church which is intolerant of non-Orthodox believers. The applicant claimed her house was raided by police and that her freedom would be at risk if she continued to disseminate Jehovah’s Witness publications.
These claims were similar to the claims made by two other applicants for protections visas, who claimed to be involved in similar events and also claimed to fear persecution in Georgia for essentially the same reasons.
On 1 August 2001 a delegate of the Minister refused the application for a protection visa. [3]
[3] CB 30
On 27 August 2001 the Tribunal received an application for review of the delegate’s decision.[4]
[4] CB 42
The first Tribunal decision
The Tribunal member who conducted the review held an oral hearing on 21 May 2002 at the same time as the hearing for two other applicants for protection visas.[5] That process was suggested by the Tribunal member and approved by the applicant and the other applicants. Given that their claims to fear harm in Georgia were almost identical, arose out of the same factual matrix, and they all used the service of the same migration agent, this was the proper and most sensible and efficient way in which to conduct the oral hearing.
[5] CB 57
After the hearing, the Tribunal sent a s.424A letter to the applicant.[7] The applicant (together with the other applicants) responded to that letter by facsimile received by the Tribunal on 25 July 2002.[8]
[7] CB 69
[8] CB 72
On 26 July 2002 the Tribunal made the first Tribunal decision, which affirmed the decision of the delegate.[9]
[9] CB 79
The Tribunal set out the written claims of the applicant and the other applicants in comprehensive detail. The Tribunal also referred to and extracted a substantial amount of independent country information in connection with the treatment of Jehovah’s Witnesses in Georgia.[10] Finally, the Tribunal set out in detail the evidence given by each of the applicants, including their responses to the s.424A letter.
[10] CB 99 - 104
The s.424A letter referred to information obtained by the Tribunal after it had investigated the specific claims of the applicant and the other applicants. That information included information that the applicant (and indeed the other applicants) was not a member of the particular Jehovah’s Witness congregation in Georgia which she had claimed to be a member of.
The Tribunal accepted that Jehovah’s Witnesses in Georgia suffered persecution,[11] but did not accept that the applicant (and the other applicants) were ‘genuinely involved’ in the religion while in Georgia.[12]
[11] CB 121.3
[12] CB 121.3
This rejection was based principally on:
a)‘the unequivocal nature’ of the advice received from the official channels of the Jehovah’s Witness Church in Georgia,[13] and in particular on the basis of information obtained from the Administrative Centre of Jehovah’s Witnesses in Russia;[14]
b)a rejection of the explanation proffered by the applicants for the serious matters raised in the s.424A letter;[15] and
c)numerous, identified contradictions in the applicants’ evidence.[16]
[13] CB 122.3
[14] CB 122.2
[15] CB 121.5
[16] CB 122.3
Prior to commencing these proceedings, the Tribunal rejected the applicant’s claim by reference to the totality of the evidence of each of the applicants, and concluded that they were not truthful witnesses.[17]
[17] CB 122.8
Prior to commencing these proceedings, the applicant did not take any steps to seek judicial review of the first Tribunal decision.
The second Tribunal decision
On 27 August 2007 the applicant made a further application to the Tribunal for review of the delegate’s decision.[18] The applicant claimed that the application arose out of ‘exceptional circumstances’ because the Tribunal’s conduct in 2002 during the review which led to the first Tribunal decision had breached the Privacy Act 1988 (Cth) (“the Privacy Act”).[19]
[18] CB 126
[19] CB 125
On 18 December 2007 the Tribunal made a decision which found that the Tribunal had already discharged its functions under the Act and had no jurisdiction in relation to the delegate’s decision, which had already been reviewed by the Tribunal.[20]
[20] CB 133
The judicial review application
Although it is not apparent on the face of the judicial review application, the applicant contends that the first Tribunal committed jurisdictional error by breaching the Privacy Act. The applicant further contends that the second Tribunal should have recognised that error and accepted the second review application. Relevantly, the applicant contends:
The Tribunal failed to comply with obligations under the Privacy Act.
In its “Finding and Reasons” the previously constituted Tribunal said, “the Tribunal made further inquiries with its sources in the Jehovah’s Witnesses organisation in Russia,, giving personal details of the applicants, referring to their comments”.
Thus, my personal details and the fact that I had applied for protection in Australia had been given to Georgians. The reply, received by the Tribunal on 1 July 2002 confirmed the fact. It said, “herewith we would like to provide you with further information per your request in connection with refugee applicants from Georgia. There is a congregation of Jehovah’s Witnesses located in the Svanetisubani region of Tbilisi. Congregations do not keep any record of attendance by individuals at meetings, however the refugee applicants named in [your] facsimile of May 22, 2002 are unknown to members of this congregation”.
The Tribunal ought to take into account its failure to comply with the Privacy Act (resulted in disclose of my personal information) and accept my second review application.
The applicant seeks an order that the decision of the second Tribunal be set aside. However, the applicant has clarified orally that she is seeking an order that the Tribunal be required to conduct a further review of the delegate’s decision.
The Minister relies upon an amended response filed on 29 February 2008. The Minister contends:
1.The application seeking to review the decision of the Refugee Review Tribunal signed on 18 December 2007 should be dismissed because:
(a)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal signed on 18 December 2007.
(b)The applicant has no reasonable prospect of successfully prosecuting the proceeding and the proceeding should be dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules.
2.The application seeking to review the decision of the Refugee Review Tribunal handed down on 20 August 2002 should be dismissed because:
(a)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 20 August 2002.
(b)The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.
The evidence
I received the applicant’s two affidavits filed on 11 January 2008 and 12 February 2008. I also have before me as evidence the court book filed on 10 March 2008. An affidavit by Megan Louise Palmer filed on 4 February 2008 on behalf of the Minister was not read. However, I have before me as an aide memoir a chronology of relevant events forming annexure A to that affidavit. I also have before me as part of the procedural record two letters written by the applicant to the Minister seeking his intervention pursuant to ss.417 and 48B of the Migration Act 1958 (Cth) (“the Migration Act”).
Submissions
The applicant’s position is simple. She contends that the Tribunal, by disclosing her personal information about her protection visa application to Jehovah’s Witnesses overseas, breached Information Privacy Principle 11. The applicant submits that at the hearing conducted by the first Tribunal she was assured that the hearing would be strictly confidential and that her personal information would not be passed to any other party. The applicant refers to the Tribunal’s statement in its reasons that it had made further enquiries with its sources in the Jehovah’s Witnesses organisation in Russia giving personal details of the then applicants, and referring to their comments. The applicant contends that this disclosure was made without her knowledge or consent. The applicant contends that by thus breaching the Privacy Act the Tribunal committed an unlawful act constituting a jurisdictional error and that the second Tribunal was incorrect in finding that it had no jurisdiction to further review the delegate’s decision.
Counsel for the Minister submits that relief should be refused in the exercise of discretion because of the delay on the part of the applicant in bringing these proceedings. Further, counsel submits that the applicant had in fact authorised the Tribunal to make inquiries about her with Jehovah’s Witnesses overseas and that, even if there was no express authority and a breach of the Privacy Act, such a breach has no consequence for the purposes of the validity of the Tribunal decision.
Counsel for the Minister also makes submissions in relation to s.424A and s.429 which are not put in issue by the applicant.
Reasoning
Information Privacy Principle 11 is contained within s.14 of the Privacy Act. Principle 11 states:
Limits on disclosure of personal information
1.A record‑keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a)the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
(b)the individual concerned has consented to the disclosure;
(c)the record‑keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d)the disclosure is required or authorised by or under law; or
(e)the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record‑keeper shall include in the record containing that information a note of the disclosure.
3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.
The High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 established that if the Tribunal commits a jurisdictional error the Tribunal decision may thereby be the subject of constitutional writs notwithstanding s.474 of the Migration Act. At [160] the High Court dealt with excesses of power by reference to the Migration Act. However, it does not follow that only a breach of some imperative duty or inviolable restraint in the Migration Act can constitute a jurisdictional error. It is well established that jurisdictional error may be established by reference to the general law. Section 422B of the Migration Act was enacted for the purpose of excluding the fair hearing rule under the general law. I see no reason in principle why a jurisdictional error may not hypothetically be found by reference to a breach of some Commonwealth enactment other than the Migration Act.
If the applicant were simply seeking a court declaration that the Tribunal had breached the Privacy Act, then the proper answer would be that the applicant should follow the procedure for the making of a complaint set out in the Privacy Act itself: Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609 at [85]-[87][21]. Further, an order setting aside either the first and/or the second Tribunal decisions would not assist the applicant because she would still be left with the decision of the delegate, which was adverse to her. What she is seeking is a further review by the Tribunal of the delegate’s decision. The making of an order in the nature of mandamus depends upon a finding of invalidity by reason of jurisdictional error. In Abbasi v Minister for Immigration [2001] FCA 1274 at [67] Beaumont J approached the issue of the application of the Privacy Act in migration proceedings as a matter calling for the refusal of relief in the exercise of discretion, because of the alternative remedy available. However, his Honour did not rule out the possibility of a breach of the Privacy Act being relevant to an allegation of jurisdictional error.
[21] Overturned in part on appeal for other reasons. See Goldie v Commonwealth of Australia & Ors [2002] FCA 433
It may be that the Privacy Act has no application to Tribunal decisions because Part VII of the Migration Act establishes a code of procedure, including provisions dealing with the confidentiality of information[22] and conferring a general power to obtain information in pursuance of the Tribunal’s functions[23]. It may be also that, given the terms of s.424, exception (d) to the general prohibition on disclosure in Information Privacy Principle 11 applies.
[22] s.439
[23] s.424
It is unnecessary to resolve these potentially difficult questions. That is because the applicant consented to the disclosure of the information in issue. The first Tribunal in its decision[24] records that it contacted a senior official of the Jehovah’s Witnesses in Russia for information without identifying any of the then three applicants. At the hearing conducted by the first Tribunal the applicants were invited to provide further information about their Jehovah’s Witness adherence which the Tribunal could put to its source in Russia again, together with personal details about the applicants[25]. The Tribunal advised the applicants that it would make further inquiries, giving personal details about them and further information which had been provided by them in seeking advice as to whether the use of the names of congregations was a recent innovation[26]. The first Tribunal in its decision then records its further approach to its source in Russia giving personal details of the applicants and inquiring about the particular congregation they claimed to be members of. The Tribunal records the response received and a request to comment about the inquiry and response made pursuant to s.424A of the Migration Act[27].
[24] CB 103
[25] CB 117
[26] CB 118
[27] CB 118-120
The Tribunal’s approach to its source in Russia providing personal details of the applicants is dated 22 May 2002 and is reproduced at CB 65 and 66. Before that, on 30 April 2002, and presumably in response to the discussion that occurred at the Tribunal hearing, the applicant gave a written authority to the Tribunal to make inquiries about her to US immigration authorities, a firm known as Georgian Technologies and officials of the Jehovah’s Witnesses[28]. Given the discussion that occurred at the Tribunal hearing the applicant must have known, in giving that authority, that personal information about her would be disclosed to officials of the Jehovah’s Witnesses in Russia.
[28] CB 61
In my view, in giving that authority, the applicant consented to the disclosure in the letter reproduced at CB 65 and 66. If she had been in any doubt as to what had occurred, that doubt was removed when copies of that letter and the response received were provided to her with the s.424A letter dated 4 July 2002[29]. It is noteworthy that in her response to the request to comment on the information received from Russia, the applicant made no complaint about the disclosure of her personal information. Indeed, she and the other applicants expressed gratitude at the opportunity to comment on the information received from Russia in response to the disclosure. It was not until 18 July 2007 that the applicant raised the issue of disclosure with the Minister in the context of her request for his consent to make a fresh protection visa application pursuant to s.48B of the Migration Act. In the following month the applicant made her second application to the Tribunal. In the light of the discussion that occurred at the first Tribunal hearing, the applicant’s lack of complaint in her response to the s.424A invitation when presented with the details of the disclosure made and the five year delay before any complaint was made to either the Minister or the Tribunal, her assertion that she did not consent to the disclosure lacks credibility. I reject that assertion and find that the disclosure made by the Tribunal was made with the applicant’s consent. It follows that exception (b) to Information Privacy Principle 11 applies and the challenge to the validity of either or both Tribunal decisions must fail.
[29] CB 69-70
I will order that the judicial review application be dismissed. I will further order that the applicant pay the Minister’s costs and disbursements of and incidental to the application in accordance with the Federal Magistrates Court scale of costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2008
[6] CB 57 - 68
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