SZWDB v Minister for Immigration
[2015] FCCA 2320
•27 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2320 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether Tribunal properly considered each integer of the applicant’s claim – whether Tribunal erred by making adverse credit findings against the applicant – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.336E, 476 Judiciary Act 1903 (Cth), s.78B |
| ACC v C.G. Berbatis Pty Limited (1999) FCA 1151 |
| Applicant: | SZWDB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1636 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 27 August 2015 |
| Date of Last Submission: | 27 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr R White Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1636 of 2015
| SZWDB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in which the applicant seeks a Constitutional writ in respect of a decision of the Tribunal made on 13 May 2015 affirming the decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country. The applicant arrived in Australia on 28 March 2013. On 18 November 2014 the delegate refused the application, and the applicant sought a review.
The Tribunal affirmed that refusal on 27 January 2015. The applicant thereafter made an application for judicial review in the Federal Circuit Court of Australia, and the matter was remitted by consent to the Tribunal to determine according to law. It was in those circumstances that the applicant was sent an invitation on 20 March 2015 to appear before the Tribunal on 12 May 2015, which the applicant attended to present arguments and give evidence and was assisted by an interpreter. The grounds of the application are as follows:
1. The Refugee Review Tribunal made jurisdictional error in finding that I was not a person to whom Australia owes protection for the purpose of s 36(2) of the Migration Act 1958 (Cth).
2. The Tribunal had failed to exercise jurisdiction in data breach matter and reached mistaken conclusions.
Particulars
The Refugee Review Tribunal made jurisdictional error in assessing the data breach claim, breached by the department in February 2014.The delegate of the Department of Immigration and Border Protection stated on page 18 of the decision paper that the data breach may cause the applicant to face harm as a result of his illegal departure from Bangladesh being highlighted. But the Tribunal of DIBP had failed to exercise jurisdiction in this matter and reached mistaken conclusions. In paragraph [10] of SZTVA v Minister for Immigration and Border Protection [2014] FCA 1334, his Honour stated that “The applicant also raised an argument that the Department had accidentally released his personal details on the World Wide Web. This may well generate a 'sur place' claim: cf. SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143."
The delegate of RRT stated on 13/05/2015 at paragraph 45 that “The most the information offered was that the applicant sought asylum. The applicant could have made a protection visa application on any number of grounds. As such, the tribunal does not consider that the Data Breach would in any way increase the risk of harm to the applicant." which is error within the meaning of the Migration Act of 1958 (cth) and the delegate of RRT reached mistaken conclusions.
3. On 18 November 2014 the delegate refused to grant a visa. The applicant sought review of decision. On 27 January 2015 the Tribunal (differently constituted) affirmed the delegate's decision. The applicant made an application for judicial review to the Federal Circuit Court of Australia and the matter was remitted by consent.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In or about 11 February 2014, the First and or Second Respondent by their servants or agents released the applicant's personal information by publishing it on the world wide web.
7. The applicant's personal information so released included his name, date of birth, nationality, gender, details about the applicant's detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8. The release of the applicant’s personal information by the First or Second Respondents, their servants or agents was contrary to law.
Particulars
1. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
2. 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
8. The release of the applicant's personal information has caused the applicant to have a well founded fear that his removal from Australia and return to Bangladesh will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
9. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
3. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
10. The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):
the department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes. "
11. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
12. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
13. The delegate did not disclose any of the information held by the Department to the applicant in relation to the data breach for comment.
14. The delegate as the employee of the Department that disclosed the applicant's name and personal details on the internet did not bring an impartial mind to the decision making process and is in a conflict of interest.
15. The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 March 2014 and stated as follows:
“It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second-last paragraph of the Department's letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that
individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
''It is not clear to me whether the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.”
16. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to [boat arrivals with no process- s46A or s 195A][RRT decisions - s48B or s417] arising from the disclosure of the applicant's personal information.
17. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 or s198AD of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.
18. The Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if returned to his country of nationality.
This was a case where the Tribunal formed the view that the applicant had been entirely untruthful in the claims he made in his protection visa application. The Tribunal found that the applicant had been untruthful in relation to his past employment and that he had fabricated his claims. The Tribunal carefully identified the inconsistencies in relation to the adverse credit findings in respect of the applicant, relevantly in para.28.
The grounds are prolix and fail to make out any jurisdictional error. It is however appropriate to deal with each paragraph of the grounds raised by the applicant in the application. Before doing so, I should note that on 30 July 2015 the Court made orders to permit the applicant to file an amended application, any further evidence and to provide submissions and that no such documents were filed by the applicant.
Ground 1 is an impermissible challenge to the adverse finding of fact by the Tribunal and does not identify any jurisdictional error. In relation to ground 2, it is clear that the Tribunal addressed concerns of the applicant relating to the data breach, and accordingly ground 2 fails to make out any jurisdictional error. It was a matter for the Tribunal to determine the significance of the limited information that was disclosed in relation to the applicant and the applicant’s claims and it is clear that the Tribunal took into account that data breach in coming to the finding in para.45 as follows:
45. The Tribunal finds that there is no real chance that the applicant will be persecuted for the reason of his political opinion (actual or imputed), his membership in any particular social group, however defined, or for any other reason or reasons, if he were to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason or reasons.
The Tribunal also took into account the applicant’s fabricated claims in determining whether the applicant was entitled to complementary protection, and that expressly included the data breach. Accordingly, para.2 fails to make out any jurisdictional error. The findings made were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.
Paragraph 3 fails to articulate any ground upon which jurisdictional error could be made out. The Privacy Act1988 is not legislation that gives rise to any rights to relief in respect of the applicant’s claim for protection under the Migration Act 1958. Moreover, in the present case the Court is not persuaded that there was any breach of the Privacy Act 1988 that would entitle the applicant to any relief under that statute.
Paragraph 4 fails to identify any jurisdictional error. Paragraph 5 fails to identify any jurisdictional error. Paragraph 6 fails to identify any jurisdictional error. Paragraph 7 fails to identify any jurisdictional error. There is no basis for any finding of contravention of s.336E of the Migration Act 1958, and the assertion of interference with the applicant’s privacy under the Privacy Act 1988 is without substance. It was a matter for the Tribunal to determine the impact of the data breach in relation to the applicant and the applicant’s alleged fears and claims for protection.
The application set out two paragraphs numbered “8”. The Court has followed the numbering that was identified in the application, and neither para.8 identifies any jurisdictional error. Paragraphs 9 and 10 fail to identify any jurisdictional error. The reference to the letter dated 12 March 2014 does not give rise to any representation or any entitlement to relief and there is no substance in relation to grounds in what is paras.9 and 10 of the application.
In relation to para.11, there is no real issue in these proceedings arising under the Constitution and the allegations advanced do not give rise to any obligation under s.78B of the Judiciary Act 1903; see ACC v C.G. Berbatis Pty Limited (1999) FCA 1151. Paragraphs 9, 10, 11, 12 fail to disclose any arguable jurisdictional error.
In relation to para.13, no evidence has been put on to identify the withholding of relevant material and there is no basis for any finding of jurisdictional error arising by reason of any of the matters alleged in para.13.
In relation to para.14, no conduct has been identified by the applicant in relation to the allegation there made other than, by inference, the adverse determination by the Tribunal. An adverse determination by the Tribunal is not a proper basis upon which bias can be made out. Bias must be distinctly alleged and clearly proved. Bias is not proved in this case. No fair-minded observer might reasonably apprehend by reason of the adverse decision of the Tribunal by reference to its reasoning that the Tribunal might not bring an independent and impartial mind to determination of the matter on its merits. No other conduct was identified.
To the extent that it is inferred that there was absence of material or information from the Department relating to the data breach, no step has been taken to identify the basis upon which it could be said to have any significance to the applicant. A fair-minded observer in these circumstances might not reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by reason of para.14.
In relation to para.15, it is clear that the applicant has had the benefit of a hearing before the Tribunal and, in light of the material before the Court, I am satisfied that the applicant had a genuine hearing and that that hearing included the issue of the applicant’s fear in relation to the data breach. In these circumstances, nothing said in para.15 identifies any jurisdictional error by the Tribunal.
In relation to para.16, there is no basis upon which any declaratory relief could be granted to the applicant, as the applicant has not made out any ground to support the grant of declaratory relief. There is no basis to find any jurisdictional error or to grant any relief identified by para.16 of the application.
In relation to para.17, no ground has been made out by reason of which the first respondent is not entitled to exercise powers under the Migration Act 1958. Moreover, it is clear that the applicant has had the benefit of a determination of his claims by the Tribunal and nothing in para.17 identifies any jurisdictional error or any basis upon which the Court could find grounds to grant any other type of relief.
The Tribunal correctly set out the relevant tests to be applied in relation to the complementary protection law in para.9 and it is clear from paras.46 and 47 that that was the test applied by the Tribunal. In these circumstances, there is no jurisdictional error disclosed by para.18 of the application.
The application fails to identify any jurisdictional error and there has been no foundation made out for the grant of any other relief. The Court notes that the applicant conveyed that he wanted to obtain further documents that he was hopeful of receiving from overseas. I accept the first respondent’s submission that it was a matter for the Tribunal to determine the review on the material before the Tribunal and that further documents obtained by the applicant from overseas would not assist the applicant in establishing any jurisdictional error.
To the extent that the applicant’s reference to the desire to obtain further documents was a request for an adjournment, this is a matter that had been fixed for hearing on 30 July 2015 and for the reasons given there would no utility in granting an adjournment and, further, and adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.
The applicant indicated that he was very fearful of being returned to his country of citizenship and that he had been unable to contact his family over the past week. The applicant asserted that returning him would be like death for him.
Nothing said by the applicant identifies any basis upon which the Court could find jurisdictional error in relation to the decision of the Tribunal or any other basis upon which relief could be granted to the applicant.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 31 August 2015
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