SZTZM v Minister for Immigration - [2017] FCCA 521

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZM v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 521

Catchwords:
MIGRATION – Review of International Treaties Obligations Assessment – whether International Treaties Obligations Assessment affected by jurisdictional error – whether the applicant was denied procedural fairness by the International Treaties Obligations Assessment – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36

Cases cited:
SZUBX v Minister for Immigration & Anor [2015] FCCA 2822
AKD15 v Minister for Immigration and Border Protection & Anor [2016] FCA 166

Applicant:

SZTZM

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 3593 of 2016

Judgment of:

Judge Emmett

Hearing date:

20 March 2017

Date of Last Submission:

20 March 2017

Delivered at:

Sydney

Delivered on:

22 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Cameron Murphy

Solicitor for the Applicant:

Michaela Byers (Pro Bono)

Counsel for the Respondents:

Ms Joanna Davidson

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3593 of 2016

SZTZM

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

This is an application for judicial review of an International Treaties Obligations Assessment, dated 19 March 2015 (“the ITOA”).
The Court’s jurisdiction is helpfully summarised in the written submissions of counsel for the first respondent as follows:
“In Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 (SZSSJ) at [71], the High Court held that a challenge to conduct undertaken by an officer of the 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 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 Act or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the Data Breach”.
As the High Court confirmed in SZSSJ (at [55]), 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 accepts that following the affirmation by the RRT of the decision to refuse his protection visa application, the Applicant was relevantly in a comparable position to the respondent (initially the applicant) in SZSSJ. He had exhausted the possibilities for merits review of the refusal of his protection visa application and was out of time to seek judicial review of the RRT’s decision, such that in order to remain lawfully in Australia he would require an exercise of the non-compellable “dispensing powers” in ss 48B, 195A or 417 of the Act so as to “obtain a measure of relaxation” of the operation of the visa system.
While the factual finding in SZSSJ does not bind this Court, consistent with SZSSJ, the respondents accept 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 third respondent preparatory to the making of a substantive decision about the exercise of the Minister’s non-compellable powers under ss 48B, 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 (AS at [9]), this does not mean there was any “undertaking to use the Minister’s personal discretionary powers to assess the Applicant’s claims”.

Background

The Applicant claims to be a citizen of China and of Christian faith, who fears harm from local officials in Baoding, China.
The Applicant arrived in Australia on 17 September 2010 having departed legally from the People’s Republic of China on a passport issued in his own name and a valid Tourist subclass 676 visa. That visa ceased on 17 October 2010.
The Applicant overstayed his Tourist subclass 676 visa and remained in Australia unlawfully for a period of three years.
On 3 September 2013 the Applicant was located by Departmental Compliance officers and placed in immigration detention at Villawood Immigration Detention Centre.
On 12 September 2013, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 16 October 2013, the Delegate refused the Applicant’s application for a protection visa. The Applicant lodged an application for review of the Delegate’s decision by the Tribunal thereafter.
On 12 February 2014, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 March 2014, the Department informed the Applicant that unauthorised access to his personal information had occurred through the Department’s website (“the Data Breach”).
On 13 January 2015, the ITOA was commenced by the Department. The ITOA was finalised on 19 March 2015 with a finding that non-refoulement obligations were not engaged in the Applicant’s case.
On 16 December 2016, the Applicant filed an application in this Court seeking judicial review of the ITOA’s decision made by the third respondent (“the Assessor”).

The Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated:
a)He overstayed after arriving in Australia on a tourist visa as he believed he would be persecuted for his religious beliefs if he returned to China.
b)He refused to join the Communist Party in China as a result of his Christian faith. The local Communist Party officials perceived him to be guilty of not supporting the Party and distributing illegal or unofficial Christianity as a result of his attendance at an unregistered Christian church.
c)In the course of operating his business, he did not collude with local officials, which offended powerful people and bureaucrats in the area. He was known as a successful local entrepreneur.
d)He believed that the local officials thought they would be able to cut off his unregistered church’s finances and enforce its closure by ruining his business. His business ultimately stagnated as a result of various restrictions enforced by local officials. Thereafter, he was forced to sell his business for one-third of its value.
e)In early 2010, he was attacked by a man with a knife he claims was hired by the local officials and his former business partner. He believes that if he returns to China, he will be fatally attacked to prevent him from retaking his business.
f)Prior to leaving to China, he was required to report to the police station almost every week on account of his Christianity. On some occasions, he was detained there for days.
g)While in Australia, the Applicant conducted an online search of his former business in China, and found that he was still listed as the legal person on the business license despite having submitted forms to remove himself from the position after he sold the company. He believes that he may be arrested upon his return to China for any issues the company is legally liable for.

The Delegate’s decision

On 3 October 2013, the Applicant attended an interview with the Delegate.
On 16 October 2013, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Delegate did not accept the Applicant’s claims that he is a member of a particular social group of previous Chinese entrepreneurs, referring to relevant country information and information provided by the Applicant. In the circumstance, the Delegate only considered the Applicant’s religious and political claims.
The Delegate accepted the Applicant’s evidence that he is a Christian, both during his time living in China, and since he has resided in Australia. However, the Delegate found that the Applicant’s purpose for coming to Australia was not to escape religious persecution in China. The Delegate referred to the fact that the Applicant had delayed his application for a protection visa until three years after arriving to Australia, during which time he had remained in Australia unlawfully.
The Delegate did not accept the Applicant’s claims that he was subject to reporting requirements with the police because of his Christianity, nor that he was detained for any period of time due to his religion when he previously resided in China.
The Delegate accepted that the Applicant had been asked to join the Chinese Communist Party, as a result of his role as a business owner, and had refused on various occasions. However, the Delegate found that the Applicant did not flee China and come to Australia in order to seek asylum based on imputed political persecution. The Delegate referred to the same reasons above, namely, the significant delay before the Applicant applied for a protection visa in Australia.
The Delegate therefore found that the Applicant would not be arrested, detained, imprisoned, or otherwise harmed by Chinese authorities by reason of his adherence to Christianity or his imputed political opinion if he returns to China.

The Tribunal’s review and decision

The Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application including correspondence from local officials in China received by his wife, submissions relating to his religious activities in China, and personal reference letters from Christian ministers in Australia.
On 6 December 2013, the Applicant attended the Tribunal hearing and gave evidence. The Applicant attended a further Tribunal hearing on 17 January 2014. Both Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages and the Applicant was represented by his registered migration agent.
The Tribunal noted at the hearings that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal explored the Applicant’s claims with him in some detail at the hearings and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the Applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.
The Tribunal found the Applicant’s claims for a protection visa not to be credible. The Tribunal did not accept that the Applicant followed a religion in China that was not authorised by the government. The Tribunal found that the Applicant’s explanations relating to his involvement in the unregistered Christian church in China did not overcome the inconsistencies in his evidence.
The Tribunal did not accept that the Applicant refused to join the Communist Party because of his religious beliefs. The Tribunal also did not accept that the Applicant was required to attend a police station and was questioned or detained as a result of his Christianity and attendance at the unregistered church.
The Tribunal found that the Applicant’s business did not fail because he was a follower of an unauthorised religion or as a result of his refusal to pay local government officials bribes or collude with them. As a result, the Tribunal did not accept that the Applicant had suffered any harm because he was a follower of an unauthorised religion in China.
Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the Applicant would suffer harm for a Convention related reason were he to return to China, that the Applicant did not have a well-founded fear of persecution in China and for these reasons the Applicant was not a person to whom Australia owed protection obligations.
The Tribunal also considered whether the Applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone in China had threatened to harm the Applicant upon his return to China. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to the receiving country, China, there is a real risk that the Applicant would suffer significant harm.
Accordingly, having determined that the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The ITOA Decision

On 12 March 2014, the Department informed the Applicant that the Data Breach had caused his personal information to become publicly accessible. This included information regarding his name, date of birth, nationality, gender, and that he overstayed his visa in Australia.
On 13 January 2015, the Department informed the Applicant of the commencement of the ITOA. The Assessor requested the Applicant to provide any further information he would like to be considered in respect of non-refoulement obligations.
On 14 January 2015, the Applicant provided further information through his representative to the Department. The Applicant claimed that he feared persecution by Chinese officials who could have accessed his personal details and information relating to his detainment in Australia.
Further, the Applicant claimed that he would be denied procedural fairness unless the Department disclosed all information relating to the Data Breach. The Applicant also claimed that the Assessor had a conflict of interest as they were affected in their capacity to reach a decision adverse to the Department.
On 5 February 2015, the Assessor invited the Applicant to provide further comment on information relevant to the ITOA. The Assessor attached adverse information that would be given consideration in the ITOA. This included information relating to the Applicant’s claim of procedural unfairness and the conflict of interest that the Applicant’s representative claimed affected the Assessor’s ability to make a finding adverse to the Department. The Assessor also included information relating to the Applicant’s protection claims. The Assessor noted that there was no indication that there was any legal error in the Delegate’s and the Tribunal’s decisions. Further, the Assessor provided relevant country information which would assist in the ITOA.
The Assessor noted that while the Applicant departed China legally in 2010, she would be giving careful consideration as to whether the Applicant faced a real risk of serious harm or significant harm by the Chinese authorities upon his return to China due to his unauthorised absence from China since 2010. In particular, the Assessor identified adverse inferences that may be drawn in the ITOA arising out of the Tribunal’s findings that the Applicant did not have a profile in China that put him at risk of harm.
On 11 February 2015, the Applicant’s representative responded to the Assessor and confirmed that the Applicant continued to rely upon all previously made statements, submissions and statutory declarations during the refugee determination process.
The Applicant also made a further submission that the Department was unable to effectively assess the real chance of serious or significant harm it has placed the Applicant in as a result of the Data Breach, and should find that the Applicant is now a refugee sur place.
On 19 March 2015, the Assessor finalised the decision with a finding that non-refoulement obligations were not engaged in the Applicant’s case. The Assessor found that, apart from the claims concerning the ITOA, there was no evidence to indicate that the Applicant’s circumstances had changed since his protection claims were assessed by the Tribunal and no new information had been provided. As a result, the Assessor accepted the findings of the Tribunal (including its adverse findings) in circumstances where there was no new information to contradict them and the Tribunal’s decision did not otherwise suggest any legal error.
The Assessor referred to the Delegate’s decision and the subsequent decision by the Tribunal, both of which found that the Applicant was not a person to whom Australia owes protection obligations. The Assessor noted the fact that the Applicant had delayed applying for the protection visa until more than three years after arriving to Australia, during which time he had remained in Australia unlawfully.
The Assessor considered the Applicant’s claim that he feared persecution by Chinese officials who could have accessed his personal details and information relating to his detainment in Australia. The Assessor noted that she was unable to find any country information to indicate that a person in the Applicant’s situation would have a profile that could potentially cause him to be subjected to a real chance of serious harm or real risk of significant harm by the Chinese authorities due to overstaying his visa in Australia.
The Assessor found that the Applicant did not have an adverse profile with the Chinese authorities at the time of his departure from China and she did not accept that he now has a profile which could be of adverse interest to the authorities upon his return to China.
The Assessor also noted that the Applicant was not of adverse interest to the Chinese authorities as he had been able to leave China freely on a tourist visa to Australia in 2010. As a result, the Assessor found that the Applicant did not face a real chance of being subjected to serious harm by the Chinese authorities or any individuals or groups upon his return to China.
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 upon 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. The Applicant did not have a profile which would expose him to being harmed by the Chinese authorities or others if returned 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. China was the Applicant’s country of reference and, accordingly, 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.

The proceeding before this Court

The Applicant was represented at the hearing by Mr Cameron Murphy, of counsel.
Counsel for the Applicant confirmed that the Applicant relied on the grounds contained in an Amended Application filed on 30 January 2017 as follows:
“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 11 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 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 11).”
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 2016 were clearly in conflict:
i. No explanation was provided why the representations 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 s48B, 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 Applicant'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.”
At the heart of the Applicant’s complaints with respect to the grounds is a contention that the Applicant was denied procedural fairness by reason of the failure of the Assessor to provide to the Applicant an opportunity to lead evidence or make representations on matters ultimately determinative of the assessment, including the Applicant’s credibility. The Applicant submitted that he had never been given an opportunity to be heard in the process of consideration by the first respondent in respect of the exercise of his personal discretionary powers.
In support, counsel for the Applicant referred to SZUBX v Minister for Immigration & Anor [2015] FCCA 2822 (“SZUBX”) where that Court found that the assessor deflected himself from the appropriate task “by focusing upon explanations as to disagreements in the findings of previous officers, which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears.”
The Court in SZUBX found that by focusing the applicant on commenting on previous adverse findings at an interview, the assessor did not focus on the correct question to determine whether Australia had non-refoulement obligations in respect of the particular applicant and in light of his claims and fears.
Counsel for the first respondent sought to distinguish SZUBX on the same bases as was done in the recent decision of Markovic J in AKD15 v Minister for Immigration and Border Protection & Anor [2016] FCA 166 (“AKD15”) where Markovic J distinguished SZUBX for the following reasons:
i)The assessor did not conduct an interview for the purposes of the International Treaties Obligations Assessment.
ii)The assessor did not suggest that the assessor was focusing on the appellant’s explanations for disagreeing with previous findings made by other officers in assessing the protection claims.
iii)The assessor stated in a letter to the appellant that it would “only address claims and country information which had not previously been addressed in any prior protection or obligations assessment which the Department has undertaken.” The assessor sent the appellant a document setting out the adverse information that he intended to consider in the International Treaties Obligations Assessment and invited the appellant to comment. Markovic J found that neither that attachment to the assessor’s letter nor the International Treaties Obligations Assessment itself disclosed an inappropriate focus on the appellant’s explanations for disagreeing with previous findings made about the appellant. In the attachment to the letter, the assessor referred to the appellant’s protection visa application and the rejection and subsequent reviews of that application. The assessor noted that there was “no indication that there was any legal error in the Department’s and the RRT’s decision”. The International Treaties Obligations Assessment also referred to the appellant’s previous claims for protection and their assessment, again concluding that there was “no indication that there was any legal error in the Department’s and the RRT’s decisions.”
iv)Letters sent to the appellant for the purposes of the International Treaties Obligations Assessment made clear that the process was to assess whether Australia’s non-refoulement obligations were engaged as a result of the Data Breach; and that it was not to re-determine his previous claims made on other bases or to consider his explanations for disagreeing with pervious adverse findings.
v)The assessor’s letter informed the appellant that the reason for the International Treaties Obligations Assessment was that some of the appellant’s personal information had been included in a routine report released on the Department’s website unintentionally enabling access to personal information about people who were in immigration detention on 31 January 2014. Relevantly the letter stated that “any protection claims you may have in relation to this breach of your personal data will now be assessed by this ITOA.” The letter also stated that “this process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.”
vi)The assessor’s findings were not “anchored” to earlier decisions of other officers. However, the assessor had regard to the findings of the Refugee Reviews Tribunal that the appellant did not have an adverse profile with Chinese authorities at the time he left China.
vii)The assessor considered whether there had been any change in the appellant’s circumstances since his protection claims had been assessed; and, whether there was any new information which suggested that he had been involved in activities in Australia that would bring him to the adverse attention of the Chinese authorities as a result of the Data Breach.
Markovic J found at [28] that in contrast to the position in SZUBX, the assessor undertook the task consistently with the statements made to the appellant about the purpose of the International Treaties Obligations Assessment and what he would consider. Markovic J found that the assessor did not deflect the task of making an assessment of the consequences of the Data Breach for the appellant personally.
Further, Markovic J found that the breach of procedural fairness identified in SZUBX was not reliance by the assessor on earlier findings made by the Department or the Refugee Review Tribunal. Rather, the error was the focus by the assessor in that case on the applicant’s explanations as to disagreements with previous findings, rather than on the underlying reasoning as to the applicant’s claims and fears.
Markovic J found that procedural fairness in the circumstances before her did not require the assessor to re-determine all of the appellant’s previous claims in order to conduct the International Treaties Obligations Assessment lawfully.
In the case before this Court, the conduct of the ITOA and the Assessor’s reasons are akin to the manner in which the International Treaties Obligations Assessment was conducted in AKD15.
In its letter dated 13 January 2015, the Assessor wrote to the Applicant informing him that the reason the Department had commenced the ITOA was because some of his personal information was included in a routine report released on the Department’s website unintentionally enabling access to personal information about people who were in immigration detention on 21 January 2014. The letter then stated “any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA.”
The Assessor’s letter also stated that the ITOA process would involve consideration of new information, changes in circumstances, or country of nationality or former habitual residence since the previous protection claims were assessed.
The letter stated that the Applicant would receive procedural fairness during the ITOA process and would be asked to comment on any adverse information with a reasonable opportunity to respond to that information before the ITOA was finalised.
The terms of that letter are identical to those referred to by Markovic J in AKD15.
On 5 February 2015, the Assessor wrote again to the Applicant stating that:
“This 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.”
Again that statement was identical to a statement made in the letter provided to the appellant and referred to by Markovic J in AKD15.
The Assessor’s letter, dated 20 February 2015, attached various adverse information that was to be given consideration in the ITOA. In particular, the attachment stated that the Department and the Tribunal had found that the Applicant was not a person to whom Australia had protection obligations. The Assessor stated that it appeared that the Applicant was not of adverse interest to the Chinese authorities at the time of his departure from China and did not face a real chance of being subjected to serious harm if returned. The Assessor also noted that the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant’s removal to China, there was a real risk that the Applicant would suffer significant harm. In particular, the Assessor stated:
“Your 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 Tribunal’s decision.”
The attachment further stated that the Assessor would be giving consideration to relevant country information provided by independent sources.
The Assessor’s attachment also addressed adverse inferences which may be drawn. In so doing, the Assessor referred to the evidence before her that indicated the Applicant was not of interest to Chinese authorities prior to his departure from China and that he did not have an adverse profile with Chinese authorities or others which could potentially expose him to a risk of harm if he was to return to China. The attachment went on to state that the Assessor would give careful consideration as to whether the Applicant would face a real risk of harm if returned to China due to the fact that he had an unauthorised absence from China since 2010 and had been unlawfully residing in Australia during that period.
In response to the Assessor’s letter dated 5 February 2015 and its attachment, the Applicant’s migration agent stated as follows:
“In reference to your letter dated 5 February 2015, the applicant relies on all previously made statements, submissions and statutory declarations during the refugee determination process and makes the following submissions.”
The Applicant’s migration agent’s letter then went on to address the circumstances of the Data Breach only.
No other information was provided by the Applicant to the Assessor.
In its assessment, the Assessor, in short, referred to the findings of the Department and the Tribunal that the Applicant was not of adverse interest to Chinese authorities at the time of his departure from China.
The Assessor then referred to the Applicant’s concern that sharing his confidential information with his country of origin, including the fact that he applied for asylum in Australia could create serious repercussions for him with the Chinese authorities. However, the Assessor noted that there was no information published in relation to the Applicant’s protection claims and that he did not appear to have an adverse profile with the Chinese authorities or a profile of any interest to the Chinese authorities or others.
The Assessor noted when assessing protection claims in relation to the Data Breach, case officers are instructed to assume that the authorities in the Applicant’s country may have accessed personal information released on the Department’s website.
The Assessor then referred to the country information provided to the Applicant in her letter dated 5 February 2015 and to the Applicant’s response.
The Assessor noted that the Tribunal did not accept the Applicant’s claims as credible and found various inconsistencies in his evidence and that some of his evidence was implausible.
Relevantly, the Assessor concluded that there was no evidence before her to indicate that there had been any change in the Applicant’s circumstances since his protection claims were assessed by the Tribunal, apart from his claims in relation to the Data Breach. In particular, the Assessor noted that the Applicant had not provided any new information to contradict the Tribunal’s findings. In those circumstances, the Assessor accepted the findings of the Tribunal, including its adverse credibility findings.
Ultimately, the Assessor was not satisfied that the Applicant had a profile which could expose him to serious or significant harm by Chinese authorities or others upon return to China.
Those findings of the Assessor were open to her on the evidence and material before her and for the reasons she gave.
The ITOA process and the conduct of it by the Assessor were almost identical to those in AKD15.
I do not accept the Applicant’s submission that the case before this Court is akin to SZUBX, other than the fact that both involved an International Treaties Obligations Assessment.
There was no interview in the case before this Court attended by the Applicant at which the Applicant’s focus was directed by the Assessor’s questions (as in SZUBX). The Applicant in the case before this Court was invited in writing to put whatever he wished. The attachment to the letter dated 5 February 2015 was not expressed in terms that would have the effect of focusing the Applicant’s mind only on explanations for disagreeing with previous adverse findings (as was the case in SZUBX).
There was every opportunity offered to the Applicant to put any new claims and country information to the Assessor about his previous claims. The Applicant’s migration agent clearly responded in the letter dated 11 February 2015 that the Applicant relied on all previously made statements, submissions and statutory declarations made during the refugee determination process. There was no new material of any nature provided to the Assessor for the purposes of the ITOA. The Applicant’s response was directed to the circumstances and consequences of the Data Breach. Those submissions were a matter for the Applicant and his migration agent. The invitation to respond from the Assessor was not limited in any particular way.
I accept the submission of counsel for the first respondent that it had been made clear to the Applicant from the outset of the ITOA process that its purpose was to assess whether the Applicant engaged non-refoulement obligations as a result of the Data Breach and not to consider his explanations for disagreeing with previous adverse findings, as was the case in SZUBX.
In the absence of any evidence or submissions to the contrary, it cannot come as a surprise to the Applicant that the Assessor found that the Tribunal’s decision did not disclose any legal error and that its findings were therefore accepted by the Assessor. It was made very clear to the Applicant in the letter dated 5 February 2015 that the ITOA would only address claims and country information which had not previously been addressed in any protection obligations assessment which the Department had undertaken.
Further, as Markovic J stated in AKD15, in the circumstances before her, procedural fairness did not require the assessor to re-determine all of the appellant’s previous claims in order to conduct the International Treaties Obligations Assessment lawfully. The circumstances in AKD15 were all but identical with the circumstances of the case before this Court.
Counsel for the Applicant referred to the letter dated 12 March 2014 where the Assessor stated that the Department would assess any implications for the Applicant personally as part of its normal process and that the Applicant may raise any concerns that he may have during that process. Counsel for the Applicant submitted that such a statement had the effect of implying to the Applicant that the adverse credibility findings made against him by the Tribunal would be re-assessed. I reject that submission.
The subsequent correspondence referred to in detail above makes absolutely clear to the Applicant what it is that the ITOA process would consider. The ITOA process provided the Applicant every opportunity to make whatever submissions he wished including submissions that may have sought to address adverse credibility findings by the Tribunal. As stated above, the Applicant declined to provide any new information, changes in his circumstances or his country of nationality since the Applicant’s protection claims had been assessed.

Counsel for the Applicant did not consider the various grounds identified in the Amended Application individually or sequentially. The substance of the complaints in the grounds of the Amended Application were addressed by counsel for the Applicant as referred to above. To the extent that ground 3 and 4 were not subject to any oral submissions, I find those grounds to be misconceived for the reasons set out in counsel for the first respondent’s written submissions. I do not understand those grounds to have been pressed. However, neither were they withdrawn. Accordingly, I set out below counsel for the first respondent’s written submission in relation to grounds 3 and 4, which I accept in their entirety:
“Ground 3
27. The applicant has not made any separate submissions in respect of ground 3. This ground proceeds on the assumption that the third respondent 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 factually incorrect. The ITOA noted the instructions to officers conducting ITOAs as to the assumption (relevantly identical to the instruction in SZSSJ) and the ITOA expressly considers the position “even if the Chinese authorities were to suspect he remained in Australia for economic reasons and/or that he applied for a Protection visa in order to remain in Australia” and “even if a prospective employer accessed the claimant’s personal information as a result of the website disclosure”. The third respondent 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. Ground 3 should be dismissed.
Ground 4
28. Like ground 3, ground 4 proceeds on an incorrect factual assumption, namely that the third respondent 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 were in Australia on a Visitor visa and states that you are an ‘overstayer’ (this is listed as the reason for your unlawful status)”. The ITOA proceeded to consider risks identified by the applicant as arising from the data breach, as well as risks to the applicant arising out of his prolonged unauthorised absence from China and the fact that he had been unlawfully residing in Australia since 2010.Contrary to the applicant’s submission (AS at [15.2]), there was not thereby a failure “to consider the implications of the data breach on the applicant personally”. Ground 4 could not be made out.”
There has been no denial of procedural fairness to the Applicant or any other jurisdictional error either in the conduct of the ITOA or the ultimate assessment.
Accordingly, the application should be dismissed with costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 22 March 2017