SZTVA v Minister for Immigration

[2015] FCCA 770

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 770

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
The Constitution s.61
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.91R, 476

ACCC v CG Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 292; ALR 303

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZWAJ v The Minister for Immigration and Border Protection [2015] FCA 26

Applicant: SZTVA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 497 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr F. Nikjoo
Michaela Byers Solicitor

Solicitors for the Respondent:

Mr S. Speirs

Clayton Utz

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 497 of 2015

SZTVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the application of a Constitutional writ within the Court’s jurisdiction, under s.476 of the Migration Act 1958, in respect of a decision of the Tribunal made on 25 February 2015, affirming a decision not to grant the applicant a protection visa.

2. The grounds of the application are as follows:

   1. The applicant is a citizen of India.

   2. On 3 October 2013 the applicant claimed that Australia owed protection obligations in respect of him.

   3. On 26 February 2015 the process by which the claims of the applicant that Australia owed protection obligations in respect of him was completed.

   4. The applicant is a person in respect of whom the First Respondent, his servants or agents held personal inf01mation within the meaning of the Privacy Act 1988;

   5. The First Respondent is an APP entity and the Secretary was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.

   6. In or about 11 February 2014, the First Respondent by his servants or agents released the applicant's personal information by publishing it on the world wide web.

   7. The applicant's personal information so released included his name, date of birth, nationality, gender, details about the applicant's detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.

   8. The release of the applicant's personal information by the First Respondent, his servants or agents, was contrary to law.

   a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;

   b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.

   9. The release of the applicant's personal information has caused the applicant to have a well-founded fear that his removal from Australia and return to India will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.

   10. On 12 March 2014, the applicant received a letter from the Second Respondent ("the 12 March2014 letter").

   Particulars

   a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.

   11. The 12 March 2014 letter contained a representation as follows ("the 12 March 2014 Representation"):

   "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."

   12. The department, to which reference is made in the 12 March 2014 Representation, and the Secretary, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.

   13. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s6 l of the Constitution is conditioned by an obligation to accord procedural fairness to the person.

   14. On 9 December 2014 the Federal Court of Australia remitted the applicant's matter back to the Refugee Review Tribunal by consent to be dete1mined according to law.

   15. On 25 February 2015 the Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa.

   16. The Tribunal made a jurisdictional error in making on finding based on no evidence.

   a. At [36] the Tribunal accepted that he was in detention on 31 January 2014 his personal details may have been unintentionally disclosed online;

   b. The Tribunal did not disclose any information held by the Department to the applicant in relation to the data breach for comment, therefore the Tribunal had no access to the information held by the Department about the data breach;

   c. The Tribunal had no access to the information held by the Department relating to the data breach and specifically about the applicant, however at [38] the Tribunal made a finding that there was no evidence before the Tribunal to suggest that any information in relation his claims for protection was published or accessed by anyone; and

   d. The refugee determination process is not an appropriate and fair process for determining the applicant's data breach claim.

   17. The Tribunal made a jurisdictional error in considering wrong issues in relation to the data breach.

   Particulars

   a. At [38] the Tribunal considered the wrong issue that there was no evidence to suggest that Indian nationals face adverse treatment following their return to India, for reason of having applied for refugee status abroad;

   b. The issue being that the disclosure of the applicant's personal information is a unique situation and no country information considers where a government department, in particular an Australian government department has placed asylum seekers' information on the internet in breach of section 336E of the Migration Act 1958 (Cth), privacy laws and asylum seeker confidentiality and whether this enlivens Australia's non-refoulement obligations under the Refugee Convention and other international human rights conventions.

   18. The Federal Court of Australia in the matter of SZWAJ v Minister/or Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 March 2014 and stated as follows:

   9. It may well be that the things I have just described define the scope of the debate Department's letter and whether it, on one construction, fairly gives rise to the about the construction to be attributed to the second-last paragraph of 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 whether 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.

   19. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be unde1taken by the First Respondent pursuant to s48B or s417 arising from the disclosure of the applicant's personal information.

   20. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to sl98 and s198AD of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.

3. The application identifies on the First court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. This matter was listed for 9:30am and was stood down in the list, because of, apparently, problems by the solicitor attending the Court.  The matter was stood down until 2.15pm. 

5. The Court indicated to Mr F. Nikjoo that, having looked at the application and the reasons, the Court was concerned that the application had failed to identify any reasonably arguable jurisdictional error. Beyond the issues identified in the grounds, Mr F. Nikjoo did not advance any further argument of jurisdictional error.

6. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

7. To the extent that the grounds seek to identify an argument based on s.61 of the Constitution, I am satisfied that it does not raise a real and substantial constitutional issue and is unarguable, see ACCC v CG Berbatis Holdings Pty Ltd and Others (1999) 95 FCR 292 at [14],[20] and [22].

8. The grounds allege error in relation to the data breach that had occurred whilst the applicant was in detention and that the findings of the Tribunal were merely speculative.  I reject that submission and it is clear from the reasons of the Tribunal that the impact of the data breach was clearly considered and the findings made were open. Relevantly the Tribunal found:

   36. The Tribunal accepts that in February 2014 a routine report was unintentionally released on the department's website, disclosing some of the applicant's personal information. According to correspondence received by the applicant from the department, the information that might have disclosed was the applicant's name, date of birth, nationality, gender and details about his detention, including when he was detained, reason and where. The Tribunal is also prepared to accept that this information might have been accessed in India.

   37. At the second hearing, when the applicant was to expand on his claims relating to the department's data breach, he said he would be unable to comment until he knows what the information in relation to the data breach is. When asked if he was claiming that he would be subjected to harm as a result of the data breach, he said he could not comment.

   38. In her submission of 2 February 2015, the applicant's representative submitted that that the department possesses all the information in relation to the data breach and that the applicant would be unable to prepare his claims or respond without having access to that information. If the department does not give the applicant access to the information, the only course of action open to the Tribunal is to recognise the applicant as a 'refugee sur place'. The Tribunal does not agree with this proposition. As it was discussed with the applicant at the second hearing, the information that was inadvertently disclosed was his name, date of birth, nationality, gender and details about his detention. There is no evidence before the Tribunal to suggest that any information in relation his claims for protection was published or accessed by anyone. Even if the Tribunal were to accept that the publication of the applicant's personal information somehow identified him as having sought protection in Australia, as discussed with him, there is no evidence to suggest that Indian nationals face adverse treatment, following their return to India, for reason of having applied for refugee status abroad.

   39. On the basis of the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm for a Convention reason as a consequence of his personal information being published and/or for having applied for protection in Australia.

9. It’s important to identify that the limited disclosure that occurred in February 2014 does not, of itself, establish that there is any risk of harm and does not establish that the applicant is a refugee sur place.  More importantly, it is a matter for the Tribunal to make findings of fact about that in circumstances and fear of the applicant, having been informed of the data breach and the opportunity to respond and put submissions concerning the same, and identifying the grounds of the concern in that regard to the Tribunal. It was a matter for the Tribunal to make findings on the material before it and those findings were not speculative.

10. It does not in any way follow that the disclosure of the applicant’s name, date of birth, nationality, gender, or details as to detention, including when, the reason, and where, give rise to any risk of serious harm to the applicant. Materially, the disclosure did not identify the fears or claims of persecution by the applicant and, in those circumstances, it was clearly open to the Tribunal to come to make the findings of fact in the paragraphs identified. 

11. However, I do not accept the contention that the Tribunal misdirected itself in relation to the relevant considerations under s.91R in coming to the finding made in para.39. In my opinion the grounds raised are an impermissible challenge to findings of fact that were open to the Tribunal.

12. The passage cited from SZWAJ v The Minister for Immigration and Border Protection [2015] FCA 26 at [9] and [10], does not identify any legal principle binding on this Court, nor, more importantly, does it in any way identify a principle that establishes any error in the findings of fact made by the Tribunal.

    The findings, in my opinion, cannot be said to lack an evident and intelligible justification.  There is no substance in the grounds of the application. 

13. I take into account that the applicant arrived in Australia on a student visa on 17 July 1998 and he overstayed that visa until 2013, when he was detained in immigration detention.  He then applied, on the 3 October 2013, for a protection visa.  It is in those circumstances that the Tribunal identified the issue in the case and the Tribunal refused to grant the visa on 11 November 2013:

    3. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention.in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.

14. Relevantly, the Tribunal recorded the delegate as saying:

    The delegate did not accept that the applicant was at risk of facing harm by Communists he claims to have been in conflict with over 25 years ago.

15. The Tribunal identified that there was an earlier Tribunal hearing which went on appeal and was remitted by the Federal Court of Australia to the Federal Circuit Court and, by consent, from the Federal Circuit Court, the matter was remitted to the Tribunal on 9 December 2014.

16. The Tribunal identified that the applicant appeared before the Tribunal to give evidence and present arguments on 18 February 2015.  The Tribunal carefully identified the applicant’s claims and the applicant had a genuine hearing.  It, relevantly, made the following findings:

    33. …Nothing happened to the applicant while he remained in India between 1988 and 1998. The Tribunal is not satisfied that the applicant faces a real chance of persecution by the authorities for the reason of his past activities if he were to return to India.

    34. Finally, the applicant waited more than 15 years to apply for a protection visa. In his submission of 3 January 2014, he stated 'no clue whatsoever' what a protection visa meant and it was only in Villawood detention centre that he became aware of protection visas. In his evidence at the second hearing the applicant repeated that he was unaware that Australia would grant protection to people who needed it. As it was put to the applicant, the Tribunal finds it very hard to believe that during the past 15 years the applicant was completely ignorant of the fact that he could seek protection in Australia. According to his submission of 3 January 2014, between July 1998 and June 2001, he had approached the department in relation to changes to his courses of study. If the applicant was genuinely fearful of returning to India, it would be reasonable to expect him to have made an effort to make enquiries into whether he could seek protection in Australia. The applicant's delay of 15 years in applying for a protection visa casts serious doubt on the genuineness of his fear of persecution.

    38. In her submission of 2 February 2015, the applicant's representative submitted that that the department possesses all the information in relation to the data breach and that the applicant would be unable to prepare his claims or respond without having access to that information. If the department does not give the applicant access to the information, the only course of action open to the Tribunal is to recognise the applicant as a 'refugee sur place'. The Tribunal does not agree with this proposition. As it was discussed with the applicant at the second hearing, the information that was inadvertently disclosed was his name, date of birth, nationality, gender and details about his detention. There is no evidence before the Tribunal to suggest that any information in relation his claims for protection was published or accessed by anyone. Even if the Tribunal were to accept that the publication of the applicant's personal information somehow identified him as having sought protection in Australia, as discussed with him, there is no evidence to suggest that Indian nationals face adverse treatment, following their return to India, for reason of having applied for refugee status abroad.

    39. On the basis of the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm for a Convention reason as a consequence of his personal information being published and/or for having applied for protection in Australia.

17. It is in those circumstances that the Tribunal turned to consider issues of complementary protection and relevantly made the following findings:

    40. For the reasons outlined above, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that the applicant will face significant harm at the hands of his old rivals, the Communists, 'anti-supporters', separatists, Gorkhaland Movement, the authorities or anyone else. The Tribunal finds that there is no real risk that the applicant will face significant harm arising out of his asylum application or the publication of aspects of his personal infom1ation.

    41. For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persec11tion for a Convention reason. The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    42. Having concluded that the applicant does not meet the refugee crite1ion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    43. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

1. I am clearly satisfied that the proceedings are doomed to failure.  There is no utility in granting any adjournment in respect of proceeding that are doomed to failure as it will only incur additional costs to the parties and utilise further valuable Court time. I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 April 2015