SZUYG v Minister for Immigration
[2015] FCCA 1224
•13 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUYG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1224 |
| Catchwords: MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal complied with s.425 and s.336E of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 336E, 457, 473A, 476, Part 7 Public Service Act 1999 (Cth) |
| SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 23 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 |
| First Applicant: | SZUYG |
| Second Applicant: | SZUYH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2346 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 April 2015 |
| Date of Last Submission: | 9 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2015 |
REPRESENTATION
| First Applicant: | In Person |
| Second Applicant: | In Person |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 22 August 2014 and amended on 14 January 2015 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $ 6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2346 of 2014
| SZUYG |
First Applicant
| SZUYH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 August 2014 and amended on 14 January 2015 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 August 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.
In evidence is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.
Background
The applicants are citizens of the People’s Republic of China (“China”) (CB 13 and CB 27). The first applicant (“the applicant”) arrived in Australia on a visitor’s visa on 13 April 2008 (CB 13). The second applicant is the applicant’s de facto partner (see further below) (CB 27). He arrived in Australia in 2008.
Both applicants had previously, and separately, applied for protection visas ([1] at CB 173, see also CB 102 to CB 103 and CB 254 to CB 272). Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicant applied for a protection visa again on 24 October 2013 to have her claims assessed under the complementary protection criterion at s.36(2)(aa) of the Act. At this time, the second applicant applied as a member of her family unit. He did not make any separate claims to fear harm in this application (see further below).
In a statement provided at the time of the making of the October 2013 application, the applicant claimed to fear significant harm if she were to return to China because she was a Christian who had adopted a child. Further, that she was being harassed to pay penalty fees in relation to that child (CB 55 to CB 58).
The delegate refused the application for the visas on 19 March 2014 (CB 90 to CB 116). The delegate did not find the applicant’s claims to fear significant harm to be credible (CB 107).
The applicants applied to the Tribunal for review of the delegate’s decision on 9 April 2014, with the assistance of a registered migration agent (CB 120 to CB 125). The applicants attended a hearing before the Tribunal on 21 July 2014. At the hearing the second applicant provided a letter from the Minister’s department indicating that his “personal” information had been “published” online for a short period of time, during a “data breach” (CB 149).
The Tribunal affirmed the delegate’s decision on 5 August 2014 (CB 172 to CB 188). The Tribunal did not believe the applicant’s claims ([49] at CB 185 to [51] at CB 186). It rejected the applicant’s factual account as to the basis for the feared harm. It gave reasons for this. The delegate’s decision was affirmed on this basis.
Initial Application to the Court
The sole ground of the application, made on 22 August 2014, asserted that the Tribunal failed to consider the risk of significant harm to the applicant due to the imputation of a political opinion to her by the Chinese authorities. This was said to occur because of her connection to her “ex-husband”, and his status as a failed asylum seeker, and the public release of “his” personal details by the Minister’s department.
The ground makes no reference to any complaint on behalf of the second applicant or any other person. It specifically refers to the first applicant only.
Some care must be taken here as to the reference to the “ex-husband”. The second applicant before the Court, on the evidence, is described, as at October 2013 (the date of the making of the application for visas on the second occasion), as the applicant’s “de facto” husband. The relationship is said to have commenced on 25 July 2011 (see CB 12). That is, the applicants were not in a relationship at the time the applicant made her first application for a protection visa in 2008. The only persons included in that application were the applicant and her son (see CB 189 to CB 271). At that time, the applicant claimed that her marital status was “divorced” in “2007”.
Before the Court
Before the Court the applicants appeared in person. The applicant was assisted by an interpreter in the Fuqing language. The second applicant was assisted by an interpreter in the Mandarin language.
The applicants filed written submissions in this matter on 14 January 2015. I understood that these were prepared with the assistance of a lawyer. At an earlier Court event, the applicant indicated that they had a spoken to a lawyer from the Edmund Rice Centre. The submissions state that the applicants are in a de facto relationship. The submissions foreshadowed that leave would be sought to file an amended application before the Court at the hearing (see applicant’s submissions at [13]). While the submissions refer to the sole ground of the amended application, the Minister took the view that there was a second ground that could be said to arise from the written submissions. For current purposes, whether the complaints are characterised as one, or two, grounds does not matter. In its entirety, the written submissions raise a number of matters. These are dealt with below.
I understood, from the applicant, that they wished to proceed on the basis of the “proposed amended application”. They were unable to assist as to whether this meant the sole ground, or the “additional” ground as well. Ultimately, I understood, in particular from the second applicant, that they wished to press the “data breach” issue.
Ultimately, leave was granted for the applicants to press two issues by way of an amended application. The first was an assertion of a breach of s.425 of the Act. The second was the data breach issue. I understood the applicants had abandoned the sole ground in the originating application. The applicants made clear that they wished to proceed on the basis of what was set out in the written submissions. The Minister did not oppose the grant of leave. In these circumstances, the uncertainty in relation to the “ex-husband” in the initial application to the Court no longer arises. In the amended application, contained in the written submissions, the reference is clearly to the release of the second applicant’s “personal information”.
Before the Court, the applicant also sought to complain about the Tribunal’s disbelief of her claims to fear harm from the authorities in China. Without anything further, this can only be seen as an expression of grievance with the Tribunal’s adverse finding of fact as to the credibility of her claims. This is in circumstances where the Tribunal’s findings were reasonably open to it on what was before it. The applicants’ request for the Court to give them a “fair hearing” and “protection”, can, therefore, be seen only as a request for the Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The applicant also stated that she asked for the “audio recording” of the Tribunal hearing “many times”, however, this had not been provided to her. There is no evidence before the Court that the applicants were refused the recording of the Tribunal hearing. I also note that the applicants’ written submissions, prepared by a lawyer and which assert a breach of s.425 of the Act (which concerns what was said to have occurred at the Tribunal hearing), do not make any complaint that the applicants sought, or were denied, the recording of the hearing. Importantly, there is nothing in the submissions to say that the applicants wished to rely on any recording, or a transcript of the hearing, in support of the ground of the amended application.
Before the Court, the second applicant’s oral submissions specifically pressed the data breach issue. That is dealt with below (see initially at [22]).
Consideration
The ground of the amended application is in the following terms:
“The Tribunal failed to give the applicants an opportunity for a fair hearing in accordance with s425 of the Act.
Particulars
a. The second applicant provided the letter from the department dated 12 March 2014 to the Tribunal stating that he feared returning to China due to his name and personal details being placed on the department’s website;
b. The unauthorised disclosure of the second applicant’s name and details on the department’s website was in breach of s336E of the Act;
c. At [50] on the basis of the department’s letter of 12 March 2014 alone the Tribunal made a finding that the main applicant’s protection visa application was not revealed;
d. At [50] the Tribunal misconstrued that the second applicant could not make his own protection claims and that the second applicant’s claims could only be considered on the basis of the criterion requiring that he be a family member of the holder of a protection visa;
e. Therefore, the Tribunal failed to consider all of the integers of the applicants’ claims and thereby failed to provide a fair hearing and fell into jurisdictional error.”
The ground asserts a breach of s.425 of the Act. The particulars refer to the data breach issue, and the letter from the Minister’s department dated 12 March 2014, which particular (a) to the ground asserts that the second applicant provided to the Tribunal.
In this regard, the Tribunal found the following, in relation to the letter provided by the second applicant ([50] at CB 186):
“… At the end of the hearing before me [the second applicant] produced a letter to him from the Department of Immigration dated 12 March 2014 indicating that his personal information had been accessible online for a short period of time. As I explained to [the applicant] and [the second applicant] at the beginning of the hearing before me, I am only able to consider [the second applicant’s] current application on the basis of the criterion requiring that he be a family member of the holder of a protection visa. So far as [the applicant’s] situation is concerned, as I put to her, this letter does not say that the information in her protection visa application has been revealed. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that she will suffer significant harm because she will be able to be identified as a failed asylum seeker as a result of this data breach.”
The letter referred to at particular (a) to the ground is reproduced in the Court Book (at CB 149). It is addressed solely to the second applicant. In essence, it notes that “some” of the second applicant’s “personal information” was “released on the department’s website unintentionally”, for a “short period of time before it was removed”.
As stated above, there are a number of complaints in the ground and in the written submissions. It must be said, however, that some of these complaints do not recognise that the Tribunal is a separate and independent entity to the Minister and his department.
The Refugee Review Tribunal was, and continues to be, created pursuant to s.457 of the Act. For the purposes of the Public Service Act 1999 (Cth), the Principal Member and the officers of the Refugee Review Tribunal constitute a statutory agency (s.473A(a) of the Act). That is, an agency separate to the Minister’s department. The Act gives powers to the Tribunal to review certain decisions made by the Minister (or his delegates) concerning persons who have unsuccessfully applied for protection visas. The Tribunal’s jurisdiction and powers are set out at Part 7 of the Act.
Some of the complaints in the ground, and as explained in the written submissions, proceed on the basis that the Tribunal carries some responsibility for the conduct of the Minister’s department. In any event, these are addressed below.
While referring to s.425 of the Act, the complaint appears to be that the Tribunal should have considered whether the second applicant would be at risk if he were to return to China because of the data breach issue. As set out above (at [21]), in its analysis the Tribunal found, in the context of the application for review, that it was only able to consider the second applicant’s claims in the context of his membership of the applicant’s family group.
Plainly, the Tribunal took the view that as the second applicant had previously applied for, and had had his claims to protection considered as against the criteria at s.36(2)(a) and (aa) of the Act, he was barred by s.48A of the Act from making another application for a protection visa based on either of those two criteria. The second applicant had not previously applied for a protection visa, or been considered for one, on the basis of membership of a family group, so s.48A of the Act did not bar an application on this basis (SZGIZ and see [55] at CB 187).
At the time of the Tribunal’s decision s.48A of the Act was in the following terms:
“48A No further applications for protection visa after refusal or cancellation
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.
(2) In this section:
application for a protection visa includes:
(aa) an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.”
The difficulty for the second applicant is that, on the evidence, his claims to protection were previously considered under both the criteria at s.36(2)(a) and (aa) of the Act. He was found not to be at risk under either criterion (CB 102 to CB 103 and see [1] at CB 173). Section 48A of the Act, therefore, operates to bar him from making a further application in relation to either of these two criteria.
As such, the Tribunal’s finding that in the application for review before it, it could only consider his application as against the criterion of whether he was a family member of a person entitled to a protection visa reveals no legal error (s.36(2)(b) of the Act and SZGIZ at [43]).
The particulars also appear to complain about the Tribunal’s finding that the personal details of the applicant were not revealed. The complaint specifically appears to be that the Tribunal determined this with reference only to the department’s letter to the second applicant. Before the Court the applicant stated that she would suffer harm on return to China as a result of the “data breach” involving her “husband’s” personal details, given her relationship to him.
The Tribunal’s account of the hearing, as contained in its decision record, is the only relevant evidence available before the Court. The applicants have not produced any evidence to the Court as to what may have otherwise occurred at the Tribunal hearing. On the evidence before the Court, the applicants only produced one item to corroborate the claim of a data breach before the Tribunal (the department’s letter). According to that letter, that data breach involved only the second applicant’s personal details. The Tribunal dealt with this.
There is no evidence before the Court that any material was provided to, or any claim was made before, the Tribunal in relation to any data breach involving the applicant in her own right. It is important to note that the production of the department’s letter, and the accompanying claim to fear harm, was done at the Tribunal hearing. As set out above, the applicants have not provided any evidence to the Court to challenge the Tribunal’s references to what occurred at the hearing.
On this basis, what can be said, is that the applicant claimed that, as a result of the data breach of the second applicant’s details, she would be identified as a failed asylum seeker on return and would suffer harm for this reason. The Tribunal dealt with this claim and made findings reasonably open to it on the material that was before it. To the extent that particular (e) asserts that all of the applicant’s claims to protection were not considered, this is not made out on the evidence before the Court. The Tribunal’s finding was reasonably open to it.
There was no obligation on the Tribunal, in the circumstances, to make any further inquiry (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123). Particular (c) to the ground is not made out, given that the only evidence of any data breach before the Tribunal was the letter given to it by the second applicant. On any plain reading, it was reasonably open to the Tribunal to find that the terms of this letter referred only to the second applicant.
Particular (b) to the ground asserts that the unauthorised disclosure of the second applicant’s “name and details” was a breach of s.336E of the Act. This was explained further in the applicants’ written submissions at [14] as follows:
“The release of the second applicant’s personal information by the First Respondent, his servants or agents, was contrary to law.
Particulars
a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988 (Cth);
b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.”
I agree with the Minister that the ground is misconceived. Whether the Minister’s department breached any law in relation to the data breach issue may give rise to other considerations. However, it cannot, in the circumstances of this case, reveal jurisdictional error on the part of the Tribunal. It is also of note that the only orders the applicants seek by way of the amended application, and the written submissions, are directed to the Tribunal (see [21] to [22] of the written submissions under the heading “Orders Sought”).
The submissions also complain that, although the department’s letter made reference to an assessment of any implications for the second applicant as a result of the data breach, no such assessment was made. However, as is made clear in the department’s letter, that assessment was to be done by the Minister’s department. There is nothing in the letter, contrary to the implication in the written submissions, to indicate that any such assessment would be conducted by the Tribunal.
Conclusion
The grounds of the amended application are not made out. No jurisdictional error on the part of the Tribunal is revealed. The application should be dismissed. I will make an order accordingly.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 May 2015
1
5
3