SZTZL v Minister for Immigration

[2017] FCCA 300

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZL v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 300

Catchwords:
MIGRATION – Review of International Treaties Obligations Assessment – consequences of the February 2014 data breach by the Minister’s Department – applicant previously claiming to be a refugee, which claim was rejected by a delegate and the Refugee Review Tribunal – whether the Assessor asked herself the wrong question by reviewing previous protection decisions considered – whether the applicant was denied procedural fairness considered – no reviewable legal error.

Legislation:

Australian Constitution, s.75

Migration Act 1958 (Cth), ss.36, 46A,48B, 195A, 198, 417, 422B, 474, 477

Cases cited:

AFH15 v Minister for Immigration [2016] FCCA 99
AKD15 v Minister for Immigration [2017] FCA 166
ALZ15 v Minister for Immigration [2017] FCA 279
Minister for Immigration & Anor v SZSSJ [2016] HCA 29; 90 ALJR 901
Plaintiff M61 v Minister for Immigration (2010) 243 CLR 319; [2010] HCA 41
Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636

Re Minister for Immigration; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Tribunal; Ex Part Aala (2000) 204 CLR 82
SZUBX v Minister for Immigration & Ors [2015] FCCA 2822

SZSSJ v Minister for Immigration (No.2) (2015) 234 FCR 1
SZWAJ v Minister for Immigration [2016] FCA 1173

Applicant: SZTZL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: KATHY BACKHOUSE, IMA PROTECTION NEW SOUTH WALES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: SYG 3589 of 2016

Judgment of: Judge Driver

Hearing date: 22 February 2017

Delivered at: Sydney

Delivered on: 29 March 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application, as amended on 30 January 2017, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3589 of 2016

SZTZL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

KATHY BACKHOUSE, IMA PROTECTION NEW SOUTH WALES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of an International Treaties Obligation Assessment (ITOA) made on 24 March 2015.  The third respondent, the ITOA Assessor (Assessor) found that Australia does not have non refoulement obligations to the applicant. 

2. As is noted in the applicant’s submissions, this case involves a very similar factual scenario to that dealt with by the High Court in Minister for Immigration v SZSSJ (SZSSJ).[1]  The issue is the consequences of the so called “data breach” of the applicant’s personal information by the Minister’s Department by the accidental release of the applicant’s personal details along with some 10,000 others early in 2014. 

   [1] [2016] HCA 29.

3. The following statement of background facts is derived from the submissions of the parties.

4. The applicant, who is a national of China, arrived in Australia in January 2005 on a short stay business visa which remained in effect until 29 April 2005.[2]  He remained in Australia unlawfully following the expiry of his visa.  On 27 August 2013, after having been taken into immigration detention, the applicant applied for a protection visa, claiming to fear harm in China due to being a member of an underground Christian church.  He claimed that in 2003, Chinese authorities arrested his parents due to their Christian beliefs and that both later died in detention.  He claimed to have gone into hiding and then to have arranged a visa to come to Australia.[3]

   [2] see Protection Visa Decision Record, Court Book (CB) at 66

   [3] Protection Visa Decision Record, CB at 68

5. A delegate of the Minister (delegate) refused the applicant’s protection visa application on 16 September 2013.  On 8 January 2014, the then Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision.[4]

   [4] see Tribunal Decision Record, CB at 85

6. In February 2014, personal information relating to persons in immigration detention on 31 January 2014 was inadvertently and briefly made available on the internet by the Department (the data breach). 

7. On 12 March 2014, the Secretary of the Department wrote to the applicant (under the name of Identity A) in relation to the disclosure (the 12 March Letter).  The 12 March Letter expressed the Department’s deep regret for what had happened, and outlined the nature of the information that had been made accessible, stating:[5]

   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.

   [5] CB at 107

8. The applicant was informed on 14 January 2015 that the Department had commenced an ITOA in order to assess whether the circumstances of his case engaged Australia’s non-refoulement obligations as a result of the disclosure.[6]  The applicant made submissions in response to the letter notifying him of the ITOA and also in response to a letter of 5 February 2015 inviting him to comment on information before the Department that would be taken into account for the purposes of the ITOA.[7]  On 24 March 2015, the ITOA was finalised, with a finding that Australia’s non-refoulement obligations were not engaged.    

   [6] CB at 115

   [7] See letter dated 5 February 2015, CB at 154

9. In conducting the ITOA, the Assessor had regard to findings of fact made by the Minister’s Department and the Tribunal in relation to the applicant’s protection visa application.  In the course of the ITOA she put to the applicant that his previous protection claims were given consideration through a relevant protection status determination process; and that there was no indication of legal error in the Minister’s Department’s or Tribunal’s decisions.[8]  The Assesor noted that there was no new information before her (with the exception of the applicant’s claims arising as a result of the data breach) to suggest a change in the applicant’s circumstances since his protection claims were assessed by the Tribunal, or any basis to suggest legal error by the Tribunal.  She therefore accepted the findings of the Tribunal.[9]

   [8] ITOA, CB at 173

   [9] ITOA, CB at 179

10. As to the data breach, the Assessor considered the additional claims made by the applicant, including whether the applicant may face harm from the Chinese authorities, “foreign security and intelligence agencies, terrorist organisations and criminal syndicates”, potential employers and foreign governments, who he claimed may use his information as a reason not to grant visas.  The Assessor found that while the applicant may be detained by the Chinese authorities on return, even if they suspected that he overstayed his visa in Australia and applied for protection, he would not face a real chance of serious harm or a real risk of significant harm for that reason.[10]  The applicant did not have a profile which would expose him to being harmed by the Chinese authorities and/or any individuals or groups on return to China, and even if prospective employers had accessed the information the subject of the data breach, he would not be denied a livelihood in China.[11]  The Assessor declined to address the applicant’s claims regarding his fear of harm by state and non-state actors from countries other than China, as China was the applicant’s country of reference.[12]

    [10] ITOA, CB at 180

    [11] ITOA, CB at 180

    [12]    Ibid

The present proceedings

1. This matter has a somewhat complicated procedural history.  The applicant originally sought judicial review of the ITOA on 27 March 2015 in proceeding SYG871 of 2015.  The matter was allocated to the docket of Judge Smith and, along with a number of other matters, one or more adjournments were granted pending the decision of the High Court in SZSSJ.  For reasons which are unclear, but which apparently included some discussion between the applicant’s solicitors and those of the Minister, a Notice of Discontinuance was filed on 1 September 2016 in several proceedings including that proceeding. 

2. It appears that, following the decision of the High Court in SZSSJ, some consideration of this and other cases was sought from the Minister. The outcome was unfavourable in this case. The present proceedings were commenced by application filed on 15 December 2016. An amended application was filed on 30 January 2017. In that application the applicant seeks an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (Migration Act).

3. I raised with the parties whether the discontinuance of the earlier proceeding posed a barrier to the present application.  After a short adjournment in which the parties consulted and sought instructions, the Minister conceded that the earlier discontinuance should not be treated as a barrier to the present application and, moreover, to the extent that an extension of time was required for the present application, the Minister would not oppose it.

4. It was not entirely clear to me that an extension of time was required as it was not clear whether s.477 of the Migration Act applies to ITOAs. Nevertheless, I granted an extension of time, pursuant to s.477(2) of the Migration Act, to the extent that it was required.

5. The amended application raises the following grounds of review:

   1. The Reviewer misdirected herself and/or asked herself the wrong question.

   Particulars

   a. On page 2 of the Notification of commencement of an International Treaties Obligations Assessment Treaty (ITOA) dated 14 January 2015 from the Third Respondent it stated as follows:

   This ITOA will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

   Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations.  Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.

   This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protections claims were assessed.

   b. At pages 6 and 12 the Reviewer put to the applicant as follows:

   i.      It was put to the claimant that there is no indication that there was any legal error in the department’s and the RRT’s decisions (page 6); and

   ii.      In the findings of fact (credibility) section the Reviewer found that:

   The claimant’s original protection claims were given consideration through a relevant protection status determination process.  There is no indication that there was any legal error in the department’s and the RRT’s decision.  There is no evidence presently before me to indicate that there has been any change in the claimant’s circumstances since his protection claims were assessed by the RRT (apart from the claims concerning the website disclosure which are addressed in this ITOA).  The claimant had not provided any new information to contradict the RRT’s findings.  I therefore accept the findings of the RRT (page 12).

   c. What the reviewer in fact did was to see her job was to respond to previous decisions to engage in a review of those decisions.

   d. The task as understood by the reviewer as the task communicated to the applicant in the notification letter dated 14 January 2015 were clearly in conflict:

   i.      No explanation was provided why the representation in the notification letter were not proceeded with by the reviewer; and

   ii.      The reviewer clearly directed herself that the process was an opportunity to respond to previous findings as opposed to make a fresh review of the claims.

   2.The applicant has been denied procedural fairness in that the consideration of the Minister’s exercise of his personal power under s.48B, 195A or 417 has not proceeded notwithstanding the commencement of consideration of that process by the Secretary’s letter dated 12 March 2014 and as detailed in the High Court of Australia’s judgment in the matters of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [52] to [55].

   3. The reviewer denied the applicant procedural fairness by failing to warn him that it would not apply the assumption that all of the appellant’s personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm as held by the High Court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [91].

   4.      The reviewer denied the applicant procedural fairness.

   Particulars

   a. At page 12 the reviewer personally accessed the applicant’s personal disclosed information without disclosing the information to the applicant for verification and comment:

   The claimant’s personal information that was published as a result of the website disclosure indicates that he held an Australian Visitor visa and he is now an ‘overstayer’ in Australia (this is listed as the reason for his unlawful status); and

   b. The reviewer denied the applicant an opportunity to comment and to make submissions on the disclosed information.

6. I have before me as evidence the book of relevant documents filed on 23 January 2017.  I also received the affidavit of the applicant’s solicitor, Michaela Byers, made on 30 January 2017 in support of the extension of time application.

7. Both the applicant and the Minister prepared pre-hearing submissions and also made oral submissions at the trial of the matter through their counsel.  I was assisted by those submissions. 

Consideration

Applicant’s contentions

1. The proceedings seek declaratory and injunctive relief directed to the process by which the Minister gave consideration to the exercise of his personal discretionary powers under the Migration Act. The applicant seeks to achieve a concomitant effect on the exercise of the removal power under s.198 of the Migration Act, prior to the lawful completion of that process of consideration.

2. It was conceded by the Minister and accepted by the High Court in SZSSJ that the Minister had commenced the first stage of the process of exercising the personal discretionary powers under the Migration Act, in relation to those people affected by the privacy breach who had received a letter from the Minister’s Department dated 12 March 2014.

3. It was also accepted by the High Court in SZSSJ (over the objection of the Minster), that the Federal Circuit Court had jurisdiction in relation to an application for judicial review of the process by which those powers were exercised, once the Minister had initiated consideration of the exercise of those powers, as he had in this case.

4. The facts presented to the High Court in SZSSJ deal with the same “pro forma” letter which had been sent to those persons the subject of the data breach.

5. The representation from the Minister contained the following undertaking:[13]

   The department will access any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.

   [13] CB 107

6. As was found in SZSSJ, the letter was part of a decision by the Minister to commence consideration of the exercise of his personal discretionary powers.[14]  That process of Departmental consideration and assessment, during the process of dealing with Minster’s personal discretionary powers was conditioned by an obligation to accord the applicant procedural fairness.[15]

   [14] at [56]

   [15] at [79]

7. The applicant contends that, in the instant matter, despite the undertaking having been made, the assessment has not occurred (at least as a matter of law).

8. The decision maker has relied upon findings made by the Refugee   Review Tribunal which pre-date the representation to the applicant    that an assessment would occur.[16]

   [16] CB 173

9. These findings were adverse and determinative of his claims.

10. The decision maker is said to have been deflected from the task of making an assessment of the consequences of the data breach for the applicant personally – with the findings ultimately “anchored” to the earlier decision.

11. The assessment has therefore not occurred in accordance with law and the effect of the      representation, that the Minister’s Department would assess the consequences of the data breach for the applicant personally,  has been rendered meaningless.

12. The applicant submits that resort cannot be had to the proceedings in the Tribunal to discharge the duty to complete the task of jurisdiction embarked upon as a consequence of undertaking to use the Minister’s personal discretionary powers to assess the applicant’s claims.  That is so because:

    a)the Administrative Appeals Tribunal (AAT) has a function under Part 7 of the Migration Act which does not involve any power to make decisions under ss.48B, 195A or 417 of the Migration Act. Indeed, s.417 of the Migration Act can only arise for consideration after there has been an adverse decision by the Tribunal;

    b)the criterion with which the AAT is concerned is set out in s.36 of the Migration Act which is a qualitative different criterion for assessing whether a visa can be issued to the broad public interest criterion applicable to the Minister’s consideration of the exercise of his personal discretionary powers;

    c)the AAT is incapable of exercising any power under ss.48B, 195A or 417 because those powers must only be exercised by the Minister personally and there is no provision for the Tribunal to provide anterior advice to the Minister in exercising those functions; and

    d)the requirements of procedural fairness applying in the AAT are codified by Part 7 and s.422B of the Migration Act, whereas the content of the obligation to accord procedural fairness by the Minister in the consideration of his personal statutory powers is not so codified.

13. In SZSSJ, the obligation to accord procedural fairness had been discharged by the process of consideration of the Minister’s discretionary powers being channelled through an ITOA.[17]  That process was internal to the Minister’s Department and was consistent with the normal processes active consideration of the Minister’s discretionary powers.[18]

    [17] [2016] HCA 29 at [9]

    [18] see for example Plaintiff M61 v Minister for Immigration (2010) 243 CLR 319; [2010] HCA 41

14. The correct approach to the nature of the statutory process invoked by the Minister’s decision to commence consideration of his personal discretionary powers was explained by the High Court in SZSSJ:

    Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.

    First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

    Second, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

    Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.

1. In SZSSJ, the practical content of the requirements of procedural fairness was supplied by the structure of the ITOA process into which the Ministerial personal discretion had been channelled. That process had to be procedurally fair and involve a genuine assessment of the consequences of the data breach for the applicant personally. That process, commenced by way of letter to the applicant, in the applicant’s submission, has not as yet been completed.

2. The applicant relies on the persuasive authority of this court in SZUBX v Minister for Immigration & Ors (SZUBX).[19]

   [19] [2015] FCCA 2822

3. As stated by His Honour then Gleeson CJ in Re Minister for Immigration;Ex parte Lam:[20]

   The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

   A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs - . A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

   [20] [2003] HCA 6 at [36]-[37]

4. In the circumstances, the Assessor is said to have misdirected herself in respect of the conduct of the assessment.  The result was that the applicant was not able to lead evidence or make representations on matters ultimately determinative of the assessment, including the applicant’s credibility.

5. In Re Refugee Tribunal; Ex Part Aala,[21] the High Court held that the denial of procedural fairness by an officer of the Commonwealth, where duty to observe it has not been validly limited or extinguished by statute, will result in a decision made in excess of jurisdiction and thus attract the issue of prohibition under s.75(v) of the Constitution.

   [21] (2000) 204 CLR 82 at [17] and [41] (Gaudron and Gummow JJ, Gleeson CJ agreeing)

6. The applicant submits that he has never been given any opportunity to be heard in the process of consideration by the Minister of the exercise of his personal discretionary powers. The process by the Tribunal in relation to a different statutory function, applying a different statutory criteria and applying a different statutory procedure cannot be used as a substitute to discharge the clear duty to accord procedural fairness as recognised in SZSSJ.

Minister’s contentions

Grounds one and two

1. The applicant’s submissions address these compendiously, alleging that the Assessor misdirected herself in the conduct of the assessment and that therefore the assessment of the consequences of the data breach for the applicant referred to in the 12 March Letter has not been completed.[22]  The applicant relies on SZUBX.[23] 

   [22] applicant’s submissions at [23]-[31]

   [23] [2015] FCCA 2822 (SZUBX); applicant’s submissions at [28]

2. In SZUBX, the applicant had been informed that the ITOA would assess “whether there are any non-refoulement concerns” preventing the Department from progressing removal arrangements.[24]  The applicant in SZUBX was invited to attend an interview in connection with the ITOA.  At the interview, the applicant “was informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous officers”.[25] 

   [24] at [1]

   [25] SZUBX at [10]

3. Judge Street stated that ascertaining why the applicant disagreed with previous findings was not the correct focus in relation to the assessment of Australia’s non-refoulement obligations to the applicant.[26]  His Honour held that it was a breach of procedural fairness to conduct the ITOA interview on the basis that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers, in circumstances where the applicant had been invited to attend an interview “for the purpose of assessing the non-refoulement obligations allegedly owed by Australia to the applicant”.[27]

   [26] SZUBX at [13], [14]

   [27] at [14]

4. Judge Street accepted that the ITOA assessor in SZUBX “deflected himself from the appropriate task” by focussing on the applicant’s explanations as to disagreement with previous findings, “which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears”.[28]  The ITOA Assessor’s reasoning[29] demonstrated this focus on previous adverse findings.  There was an “over-focus and anchoring effect in the present case by the assessor to a task of seeking explanation on adverse findings”, which was not the correct task in assessing non-refoulement obligations.[30]  The requisite practical injustice[31] consisted of “the interview conducted in this deflected and anchored way”.[32]

   [28] SZUBX at [16]

   [29] extracted extensively at [18]

   [30] SZUBX at [21]

   [31] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [37]

   [32] at [22]

5. SZUBX is said to be clearly distinguishable.  In the first place, the Assessor did not conduct an interview with the applicant for the purposes of the applicant’s ITOA.  No question could arise in the present case as to whether such an interview was conducted in the “deflected” manner identified in SZUBX. 

6. Secondly, the Assessor did not make any statement at any stage during the ITOA suggesting that she was focussing on the applicant’s explanations for disagreeing with previous findings made in the assessment of his protection claims by other officers. 

7. Instead, the Assessor sent the applicant a letter (dated 5 February 2015)[33] to which was attached a document setting out adverse information the Assessor intended to consider in the ITOA.  The applicant was invited to comment on that information, and responded by letter from his migration agent stating that he continued to rely on all previous statements, submissions and statutory declarations made during the refugee determination process.[34] 

   [33] CB at 154-161

   [34] Letter dated 11 February 2015, RD at 162

8. The Minister submits that, neither the attachment to the 5 February 2015 letter nor the ITOA itself disclose an inappropriate focus on the applicant’s explanations for disagreeing with previous findings, as was found in SZUBX.  The 5 February 2015 letter (on which the applicant was invited to comment) simply noted the rejection of the applicant’s original protection claims and the subsequent review of those claims by the Tribunal, stating that there is “no indication that there was any legal error in the department’s and the RRT’s decisions”.[35]  That letter put to the applicant that the material before the Assessor (including but not limited to material before the RRT) appeared to indicate that the applicant was not of interest to the Chinese authorities or any other individuals or groups in China.[36] 

   [35] CB at 157

   [36] CB at 160

9. The ITOA statement likewise notes the absence of any indication of legal error in the Minister’s Department’s and Tribunal’s decisions,[37] but also that there was no evidence before the Assessor (apart from the claims as to the data breach addressed elsewhere in the ITOA) to indicate that there had been any change in the applicant’s circumstances since his protection claims were assessed by the Tribunal.  The Assessor proceeded to make an independent assessment in the ITOA of the applicant’s claims arising from the data breach, taking into consideration all the information before her as to the applicant’s profile with Chinese authorities and others whom he claimed to fear may have accessed his information made available online as a result.

   [37] CB at 179

10. The Minister submits that there was no jurisdictional error involved in the Assessor’s approach to the Tribunal’s findings.  Those findings were put to the applicant by the 5 February 2015 letter and he was given an opportunity to respond to them.  Contrary to the applicant’s submission,[38] the Assessor did not “use” the process of the Tribunal “as a substitute” to discharge the duty of procedural fairness in the ITOA, or deprive the applicant of the opportunity to provide evidence or make submissions about the Tribunal’s findings.[39] The fact that the Tribunal does not exercise the Minister’s dispensing powers under ss.48B, 195A or 417 and is subject to specific statutory procedural fairness requirements is irrelevant to the identification of jurisdictional error in the ITOA.[40] 

    [38] at [32]

    [39] cf applicant’s submissions at [30]

    [40] cf applicant’s submissions at [24.1]-[24.4]

11. Further, the Minister submits that it had been made clear to the applicant that from the outset of the ITOA process that its purpose was to assess whether he engaged Australia’s non-refoulement obligations as a result of the data breach, not to consider his explanations for disagreeing with previous adverse findings as was the case in SZUBX.  The letter informing the applicant of the commencement of the ITOA (dated 14 January 2015)[41] stated that the ITOA would assess “any protection claims you may have in relation to this breach of your personal data” (emphasis added), that it would consider Australia’s non-refoulement obligations and that the process “will also consider new information, changes in your circumstances, or your country of nationality … since your previous protection claims were assessed”.  The 5 February 2015 letter stated “[t]his ITOA will only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken”.[42] 

    [41] CB at 115-117

    [42] CB at 154

12. The Minister submits, contrary to the applicant’s submission,[43] that the Assessor’s findings were not “determined” by previous “adverse findings” or “ultimately ‘anchored’ to the earlier decisions”.  The Assessor referred to the Tribunal’s adverse findings as to the applicant’s credibility and to its conclusion that he would be permitted to enter China and return to his home area without consequences, but also had regard to the Tribunal’s findings as to the applicant’s involvement with the Christian church in Australia and his evidence to the Tribunal concerning fear of harm by the Chinese authorities if he was returned as a failed asylum seeker.[44]  The Assessor thus exhibited an appropriate concern with “the underlying reasoning in relation to the applicant’s claims and fears” as presented to the Tribunal.[45] But the Assessor also considered whether there had been any change in the applicant’s circumstances since his protection claims had been assessed,[46] and whether there was any information suggesting that a person in the applicant’s particular situation would have an adverse profile with the Chinese authorities.[47]  The Assessor proceeded to consider the applicant’s claimed fears as a result of the data breach, in view of his particular characteristics and profile.[48]  By contrast to the position in SZUBX, the task the Assessor undertook is said to have been entirely consistent with the statements made to the applicant about the purpose of the ITOA and what it would consider.  The Assessor was not deflected from the task of making an assessment of the consequences of the data breach for the applicant personally.[49]

    [43] applicant’s submissions at [23.2], [23.3], [24]-[24.4]

    [44] See ITOA, CB at 178-179

    [45] see SZUBX at [16]

    [46] CB at 179

    [47] Ibid

    [48] CB at 179-180

    [49] cf applicant’s submissions at [23.3]

13. Finally, the Minister submits that the breach of procedural fairness identified in SZUBX was not, as the applicant suggests, reliance on earlier findings by the Minister’s Department or Tribunal.  Indeed, the applicant’s counsel seemingly accepted in SZUBX that it was open to the decision maker to apply the same reasoning as in previous assessments, if that reasoning still applied in the current situation.[50]  Rather, the problematic “anchoring” was a focus by the assessor upon the applicant’s explanations as to disagreements with previous findings, “rather than the underlying reasoning as to the applicant’s claims and fears”.[51] 

    [50] SZUBX at [10], [11]

    [51] at [16]

14. The Minister submits that the applicant was not deprived of the opportunity to be heard in the ITOA process.  There is thus no basis for the applicant’s contention in Ground two[52] that the assessment of the consequences of the data breach for him personally has not been completed.  That process was completed by the finalisation of the ITOA, which as noted above concluded that he did not engage Australia’s non-refoulement obligations.

    [52] see eg applicant’s submissions at [28]

Ground three

1. The applicant has not made any separate submissions in respect of Ground three.  This ground proceeds on the assumption that the Assessor did not assume that the applicant’s personal information had been accessed by persons or entities from whom he feared persecution or other relevant harm.  That assumption is said to be factually incorrect.  While the assumption made by the Assessor is not expressly stated, the ITOA proceeds on the basis that the applicant’s personal information was accessed or could have been accessed by the relevant Chinese authorities as well as other individuals and groups that he claimed to fear on return to China and prospective employers.  The Assessor was satisfied that even if such access had occurred, the applicant did not have a profile that would give rise to a relevant risk of harm.[53] 

   [53] CB at 180

Ground four

1. Like Ground three, Ground four is not the subject of submissions by the applicant.  The Minister submits that it too proceeds on an incorrect factual assumption, namely that the Assessor failed to disclose to the applicant that the information made available in the data breach indicated that he held an Australian visa and was an “overstayer”.  The 5 February 2015 letter expressly put to the applicant that “the list of detainees inadvertently published by the department in February 2014 indicates that you are in detention in Australia because you overstayed your visa (however, the type of visa is not specified in your case)”.[54] 

Resolution

[54] CB at 158

Jurisdiction

1. I accept the Minister’s submissions concerning this Court’s jurisdiction in the present proceedings.

2. In SZSSJ at [71], the High Court held that a challenge to conduct undertaken by an officer of the Minister’s Department preparatory to the making of a substantive decision about the exercise of a non-compellable power listed in s.474(7)(a) of the Migration Act and for the purpose of assisting the Minister’s consideration of the exercise of such a power (that is, where the Minister has previously made a “personal procedural decision”) can be heard and determined by this Court. The Full Federal Court had previously made a factual finding (not challenged in the High Court) to the effect that “the Minister has made a personal procedural decision to consider whether to grant a visa under s.195A and s.417 of the Migration Act or to lift the bar under s.48B in the case of each applicant for a protection visa affected by the Data Breach”.[55] 

   [55] Minister for Immigration  v SZSSJ  [2016] 90 ALJR 901 at [56]; see also SZSSJ v Minister for Immigration (No.2) (2015) 234 FCR 1 at [75]-[87]

3. As the High Court confirmed in SZSSJ,[56] the question of whether the Minister has made a “personal procedural decision” to consider the exercise of those powers in a particular case is a question of fact.  In the present case, the Minister conceded that following the affirmation by the Tribunal of the decision to refuse his protection visa application, the applicant was relevantly in a comparable position to the visa applicant in SZSSJ. He had exhausted the possibilities for merits review of his visa application, such that in order to remain lawfully in Australia he would require an exercise of the non-compellable “dispensing powers” in ss.46A(2), 195A or 417 of the Migration Act so as to “obtain a measure of relaxation”[57] of the operation of the visa system. 

   [56] at [55]

   [57] See Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636 at [69] per Gummow, Hayne, Crennan and Bell JJ

4. While the factual finding in SZSSJ does not bind this Court,[58] consistent with SZSSJ, the respondents concede that the Minister had made a “personal procedural decision” prior to the commencement of the applicant’s ITOA and that this Court has jurisdiction in the present case to review conduct undertaken by the Assessor preparatory to the making of a substantive decision about the exercise of the Minister’s non-compellable powers under ss.46A, 195A or 417 and for the purpose of assisting the Minister’s consideration of the exercise of such a power. Contrary to the applicant’s characterisation[59] (this does not, however, mean there was any “undertaking to use the Minister’s personal discretionary powers to assess the Applicant’s claims”).

   [58] See eg SZWAJ v Minister for Immigration [2016] FCA 1173 at [24]; AFH15 v Minister for Immigration [2016] FCCA 99 at [39]-[40]

   [59] applicant’s submissions at [24]

The grounds of review

1. The focus of attention in this case is properly directed at the applicant’s first and second grounds.  The third and fourth grounds, while formally pressed, were not the subject of any meaningful submissions and I accept the Minister’s submissions in relation to those grounds.  In relation to the first and second grounds, it needs to be borne in mind that the applicant had had the benefit of a decision of the delegate[60] and a decision of the former Refugee Review Tribunal (Tribunal)[61].  Both of those decisions preceded the data breach and the adverse decisions of both the delegate and the Tribunal were based upon adverse credibility assessments.  The purpose of the ITOA was not to revisit those decisions, let alone the credibility assessments within them.  The purpose of the ITOA was to consider the impact of the data breach upon the applicant and to consider whether that impact enlivened Australia’s non refoulement obligations.  In the absence of new information pointing to changed circumstances it was not an opportunity to revisit the applicant’s previous protection claims which had been rejected[62].  The ITOA Assessor stated in her reasons at CB 179 that she accepted the findings of the Tribunal.  In the circumstances of the ITOA, it was not part of the Assessor’s function to revisit those findings.  The Tribunal’s findings had not been the subject of any legal challenge and therefore properly informed the Assessment in the ITOA.  The applicant had not presented anything that indicated any changed circumstances apart from the data breach.

   [60] CB 65

   [61] CB 85

   [62] The Assessor could consider new information but, apart from the data breach, there was none

2. Further, I agree with the Minister’s submissions that SZUBX is distinguishable.  In the present case there was no interview conducted for the purposes of the ITOA.  The Assessor was under no legal obligation to conduct an interview and, in the absence of an interview, there was not opportunity to be misled at an interview. 

1. The applicant was aware that the ITOA was being undertaken because on 5 February 2015 the Assessor wrote to him inviting comment on information that the Assessor proposed to rely upon[63].  The information was country information as well as information about the data breach and the earlier decision of the Tribunal.  The attachment to the letter simply presented the findings of the Tribunal and noted that there was no indication that there was any legal error in either the delegate’s or the Tribunal’s decisions. 

   [63] CB 154

2. I conclude that the Assessor did not fall into the error identified by Judge Street in SZUBX. 

3. The focus of attention by the Assessor was properly on the facts relating to the data breach and the possible consequences of that data breach.  In submissions made on behalf of the applicant to the Assessor by letter dated 11 February 2015,[64] that was also the focus of the applicant’s solicitor.  The decision of the Tribunal simply provided a factual matrix against which to consider the implications for the applicant of the data breach.  There is no indication that the applicant was deflected by the Assessor into a reconsideration of earlier findings.  Indeed, there is a tension in the applicant’s submissions between, on the one hand, asserting that the Assessor was deflected from her proper task by revisiting the findings of the Tribunal and, on the other hand, complaining that the applicant was denied the opportunity to contest the Tribunal’s adverse credibility findings.  The applicant cannot have it both ways.  The Assessor followed the correct approach of applying the previous findings on the applicant’s protection claims to the question of what adverse impact the data breach may have on the applicant in China.

   [64] CB 162

4. I otherwise agree with the submissions of the Minister in relation to the grounds of review advanced.  In that connection, shortly before delivery of this judgment, the Minister’s solicitor alerted the Court to two very recent decisions of the Federal Court bearing upon the issues raised in this case.[65] In my view, those cases are indistinguishable from the present case and, while it has not been necessary for me to alter the substance of these reasons in the light of those decisions, had I taken a different view in this case, I would have been bound to follow those decisions.

   [65] AKD15 v Minister for Immigration [2017] FCA 166; ALZ15 v Minister for Immigration [2017] FCA 279

Conclusion

1. I conclude that the applicant has failed to demonstrate that the ITOA was affected by any reviewable legal error.  I will order that the application as amended on 30 January 2017 be dismissed.

2. I will hear the parties as to costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 March 2017