SZUVX v Minister for Immigration
[2015] FCCA 1520
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUVX v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1520 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant fearing persecution on various bases in Fiji – applicant’s fears found not to be well-founded – whether the Tribunal has breached s.429 of the Migration Act 1958 (Cth) or otherwise fallen into error considered. |
| Legislation: Migration Act 1958 (Cth), ss.36, 429 |
| Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 |
| Applicant: | SZUVX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2148 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application filed on 31 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2148 of 2014
| SZUVX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 3 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from submissions prepared on behalf of the Minister and filed on 20 January 2015.
On 19 November 1987 the applicant, a citizen of Fiji who was born on 25 May 1976, arrived in Australia on a subclass V12 Visitor visa. On 18 March 1992 he was granted a subclass 154 Permanent Resident visa. On 11 August 2011 this visa was cancelled on character grounds[1].
[1] Relevant Documents (RD) 164 at [3]
On 16 December 2011 the applicant lodged an application for a Protection (Class XA) visa (the visa)[2]. He claimed that he would be discriminated against on account of his Indian ethnicity; that he was attacked in prison for expressing certain views about Fiji and that he had been informed that people in Fiji were planning to attack him[3].
[2] RD 1-58
[3] RD 167.4
On 9 January 2012 the application was refused by a delegate of the Minister[4].
[4] RD 63-71
On 16 January 2012 the applicant sought review of that decision by the Tribunal[5].
[5] RD 2-78
On 28 February 2012 the Tribunal affirmed the decision of the delegate[6].
[6] RD 105-116
On 31 December 2013, following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration[7], the applicant filed a second application for the visa[8].
[7] [2013] FCAFC 71
[8] RD 117-155
On 4 June 2014, a delegate refused the application[9].
[9] RD 160-179
On 12 June 2014 the applicant applied for review of the delegate’s decision to the Tribunal[10].
[10] RD 180-184
Before the Tribunal the applicant confirmed his claims were as follows:
a)a fear of unknown people in Fiji due to political comments he made while in detention and jail in Australia;
b)a fear arising because of his Indian Fijian heritage;
c)because he would not be able to find accommodation or employment;
d)because of a data breach which had occurred on the Departmental website.
On 1 July 2014, the applicant attended a hearing before the Tribunal. On 3 July 2014, the Tribunal made its decision affirming the decision of the delegate not to grant the applicant the visa[11].
[11] RD 205-212
The Tribunal found the applicant’s claims that he feared unknown people in Fiji due to comments he made while in detention and in jail were vague and unsubstantiated[12].
[12] RD 210 at [31]-[31]
Taking into account country information, and noting the lack of detail provided, the Tribunal found there were not substantial grounds for believing there was a real risk the applicant would suffer harm in Fiji arising from his Indian Fijian heritage[13].
[13] RD 211 [33]
The Tribunal accepted that it was possible some of the applicant’s personal information would have been available on the Department’s website and may have been downloaded in Fiji. However the Tribunal noted this information did not include the applicant’s address or other details and was accessible online for a short period of time only. The Tribunal did not accept that potential employers or those offering accommodation in Fiji would have the interest in or ability to access the information released. Nor did the Tribunal accept that the applicant would be unable to subsist in Fiji due to having no family support and/or because of his criminal record[14].
[14] RD 211-212 [34]-[41]
Having considered the applicant’s claims both individually and cumulatively, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act 1958 (Migration Act)[15], which was the only basis upon which the applicant had applied for protection.
[15] RD 212 [44]
The present proceedings
These proceedings began with a show cause application filed on 31 July 2014. The applicant continues to rely upon that application. It contains the following grounds of review:
1. Procedural unfairness as the [T]ribunal was in breach of Section 429 of the Migration Act.
2. The decision of the [T]ribunal was so unreasonable that its [Wednesbury] unreasonableness.
3. Failure of the Tribunal to take into account and give proper if any weight to the material evidence presented.
4. The Tribunal relied on evidence that was incorrect at the time of decision making as it did have [contrary] evidence before it.
I have before me as evidence the book of relevant documents filed on 24 September 2014. In the light of oral argument before me on 3 June 2015, I required the Minister to produce to the Court a copy of the sound recording of the Tribunal’s hearing. That was done and I have listened to it.
This matter has had a somewhat protracted procedural history. The applicant has been held on remand awaiting criminal proceedings. On 20 April 2015 I made procedural orders in order to seek to overcome difficulties the applicant had encountered in preparing for a hearing of this matter. He sought a further adjournment on 3 June 2015 but I rejected that application. The applicant has been given several opportunities to amend his application and produce evidence in support of it. The opportunities he has been afforded are, in my view, sufficient.
Consideration
Ground 1 – did the Tribunal breach s.429 of the Migration Act?
I accept the Minister’s submissions on this issue.
Section 429 of the Migration Act provides:
429 Review to be in private
The hearing of an application for review by the Tribunal must be in private.
The Tribunal’s reasons for decision disclose that the applicant was asked if he had any further claims he would like to make. The applicant said he would but that he would not do so where “Serco accompanied him to the hearing”. The Tribunal informed the applicant that he had been accompanied by Serco because of his extensive criminal history and behaviour while in detention. The Tribunal also assured the applicant of the confidentiality obligations by which the Serco officers were bound[16].
[16] RD 209 [20]
The effect of s.429 was addressed by the High Court in SZAYW v Minister for Immigration[17]. In that matter the applicant’s hearing had taken place in the presence of other applicants and the girlfriend of one of those applicants. The High Court held this not to be in breach of s.429.
[17] (2006) 230 CLR 486
Relevantly, the High Court stated[18]:
It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the Tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal’s functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence.
[18] at [25]
Section 429 was also considered by Smith FM in SZQCV v Minister for Immigration & Anor[19]. In that matter, a Serco guard was present in the hearing room and the Court considered whether, applying the High Court test set out above, that person’s attendance was “reasonably required for the purposes of or in connection with the performance of the Tribunal’s functions…”.
[19] [2011] FMCA 984
His Honour accepted that it was the task of the member conducting the hearing to assess each matter in relation to the person held in immigration detention and to determine whether it was necessary for a Serco officer to be present during the hearing. His Honour concluded[20]:
I am not satisfied that an inappropriate or erroneous assessment occurred. I am not persuaded on my own objective assessment of the circumstances shown in the evidence before me, that the hearing has been established to have been not held ‘in private’ for the purposes of s 429.
[20] SZQCV at [37]
In this matter, the reasons disclose that the Tribunal explained to the applicant why he had been accompanied by Serco guards to hearing. Further, the Tribunal made clear, in the presence of those guards, that they were bound by Commonwealth confidentiality obligations and the penalty which applied for a breach of those obligations.
In his oral submissions, the applicant asserted that there would not have been a problem with a single Serco guard being present at the Tribunal hearing but that he objected to multiple security personnel being present in the hearing room as that would magnify the risk of them discussing his circumstances and the relevant facts becoming more widely known. He claimed that he had had difficulties with a particular security officer who was present. He claimed that he had raised his concerns with the presiding member at the Tribunal hearing.
The sound recording of the Tribunal hearing discloses that the applicant did raise a concern about the presence of Serco officers in the Tribunal hearing room and the Tribunal explained the need for them to be there. The presiding member stated that she had been notified that four Serco officers would be present but that she had limited the number to two. There was no discussion about the presence of a particular Serco officer being objectionable. In my opinion, the Tribunal dealt with the issue in an unexceptionable way and no error is disclosed.
Ground 2 – was the decision of the Tribunal unreasonable?
As Crennan and Bell JJ said in Minister for Immigration v SZMDS[21]:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[21] [2010] HCA 16 at [135]
The Tribunal did not find the applicant’s claims to be substantial or credible. From the evidence before it, a fair reading of the Tribunal’s reasons show its conclusions were open to it for the reasons given, including its adverse credibility findings, which were based on rational grounds following a consideration of the matters which were “logically probative of the issue of credibility”[22].
[22] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
In his oral submissions, the applicant contended that his real concern is with what he saw as pre-judgement on the part of the presiding member, that was disclosed at the outset of the Tribunal hearing. I have listened to the sound recording of the Tribunal hearing and can find no support whatever for the applicant’s assertion. The sound recording discloses that the applicant accused the presiding member of pre-judgement because she had received a security assessment about him, but in my opinion, nothing the presiding member said or did supported that accusation.
This ground is not established.
Grounds 3 and 4 – did the Tribunal fail to take into account material evidence or did the Tribunal rely on evidence that was incorrect?
In his oral submissions, the applicant explained that his concerns in relation to this ground are with the release of personal information about him as part of what has become known as a “data breach” reported in the Guardian newspaper. The Tribunal dealt with that issue at [36]-[40] of its reasons[23]:
After the hearing the applicant submitted evidence from The Guardian newspaper which reported that the data breach information from the Department had been downloaded in Fiji. The graph provided by the applicant, and later accessed online by the Tribunal, recorded the number ‘1’ in relation to Fiji, and rated the level as ‘medium’.
The Tribunal finds that it is possible that some of the applicant’s personal information was available on the Departmental website, including his name, date of birth, nationality, gender, details about his detention (such as when he was detained, the reason and where) and if he had any other family members in detention. The Tribunal also finds that this information may have been downloaded in Fiji. These findings are based on the correspondence from the Department to the applicant dated 12 March 2014 (folio 57 of the Departmental file) which clearly recorded this information, and information from The Guardian provided by the applicant.
The Tribunal finds that the information in the data leak did not include the applicant’s address or any former of addresses, phone numbers or contact information, or any information about protection claims that he or any other person had made or his health. The Tribunal also finds that the information was accessible online for a short period of time before it was removed and the information was not a visible part of the report and was not easily accessible. These findings are made on the basis of correspondence from the Department to the applicant dated 12 March 2014 (folio 57 of the Departmental file) which clearly recorded this information.
During the hearing the Tribunal raised that it had difficulty accepting that, if the applicant applied for accommodation or employment in Fiji, people would have either the wish or the ability to access information about the applicant on the Internet including that available from the data breach. The Tribunal acknowledges that the applicant submitted that he believes this information would be known to people in Fiji already, and that they would be able to continue to access such information as it had been downloaded by over 100 people in Australia. The applicant also submitted that more information has been released than that admitted to by the Department. However, he offered no further evidence in support of this submission.
After considering all of the evidence before it the Tribunal is not satisfied that potential employers or those offering accommodation in Fiji would have the interest or ability in accessing the information available on the data breach by the Department on 31 January 2014. In addition, the Tribunal does not accept that information above that outlined in the Departmental correspondence to the applicant dated 12 March 2014 would be available, including regarding the applicant’s criminal record or reason for deportation.
[23] RD 211-212
In his oral submissions, the applicant contended that the Tribunal relied upon a letter from the Secretary of the Minister’s Department about the data breach which was itself unreliable. He contends that the data breach information would have disclosed that his previous visa had been cancelled on character grounds which would in turn reveal his criminal past, with an adverse impact on him should he return to Fiji. He also contended that the information relied upon by the Tribunal about the downloading of the data in Fiji was incorrect. It is apparent from the Tribunal’s reasons, in particular at [39] that the applicant advanced these arguments before the Tribunal and the Tribunal considered them. Before me, the applicant contended that the Minister’s delegate was not in a position to give proper consideration to the data breach issue (because it had only just been revealed) and that the Tribunal incorrectly assumed that the delegate did give proper consideration to it. In my opinion, nothing turns on that assertion because the purpose of the review before the Tribunal was to correct any error made by the Minister’s delegate. Further, there is nothing in the Tribunal’s decision or the sound recording of the hearing to support the contention.
I conclude that the applicant has not established any error by the Tribunal in these grounds.
Conclusion
I conclude that the applicant has failed to establish that the Tribunal decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 June 2015
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