FEDERAL COURT OF AUSTRALIA

BXV15 v Minister for Immigration and Border Protection [2017] FCA 989

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

PAGONE J:

1    This proceeding is an appeal from the whole of the judgment of the Federal Circuit Court of Australia delivered on 1 March 2017 in BXV15 v Minister for Immigration [2017] FCCA 455. The judgment was an application for judicial review of a decision made by a departmental officer under the International Treaty Obligation Assessment process also referred to as the ITOA. The appeal contained 13 numbered paragraphs under the heading “grounds of appeal” and was supported by an affidavit containing three paragraphs with two annexures. The appellant appeared in person but was assisted by an interpreter to make submissions. The appellant had some command of English and at one point made submissions in English clearly. His submissions repeated what he had said previously, namely, that he was concerned about his personal safety if he were to return to India. He informed the Court of his concern of harm arising in part because personal information had been leaked by the Department of Immigration and Border Protection (“the Department”), and also that he was concerned about his position because he lived near the border of Pakistan and had been collecting evidence against certain people in his home country. He complained also about not having been provided with a lawyer to assist him by the Department, particularly in light of the detention which he had been in previously.

2    The affidavit filed by the appellant identified the deponent as the appellant, contained a statement that the affidavit was true and based on his knowledge and on information and belief based upon inquiries of relevant persons and facts referred to by the deponent. The affidavit did not itself contain any other facts but paragraph 3 requested the Court to reconsider the protection visa application as “Genuine true Facts according to” two annexures. The first annexure was the notice of appeal containing the 13 numbered paragraphs under the heading “Grounds of appeal” which contained some facts. The second annexure was a copy of orders made by the Federal Circuit Court from which the appeal was brought. At the hearing, as I have indicated, the appellant made further submissions and referred to further facts upon which his merits were said to be based.

3    The appellant is an Indian citizen who arrived in Australia as an authorised air arrival on a student visa in January 2009. His student visa was cancelled on 15 September 2010 and he was unsuccessful in having that decision reviewed by the Migration Review Tribunal and a judicial review application was subsequently referred by the Federal Circuit Court. The appellant subsequently applied for a protection visa which was refused by a delegate of the first respondent in February 2014. That refusal was affirmed by the Refugee Review Tribunal in April 2014 and by the Federal Circuit Court in June 2015. An appeal to this Court from that decision was also unsuccessful.

4    In February 2014 the appellant, together with very many others, was the subject of an accidental disclosure of personal details on the internet. That disclosure resulted in the Department undertaking an International Treaty Obligation Assessment which in the case of the appellant, resulted in a decision on 2 September 2015 that the appellant was not at risk of serious or significant harm if he were to be returned to India. On 23 September 2015 the appellant applied to the Federal Circuit Court for judicial review of the assessment but was unsuccessful in that application. It was heard and dismissed by Judge Young on 1 March 2017.

5    The Federal Circuit Court dismissed the application for judicial review and also an application by the appellant for an adjournment. The appellant had sought an adjournment of the hearing to obtain a lawyer to represent him. The Court had been told that he had been released from detention on 1 December 2016 and was asked about the steps he had taken to obtain representation in the three months between then and the hearing on 1 March 2017. His Honour recorded the appellant’s responses to the Court’s inquiries and concluded that there was not a proper basis for an adjournment and that the Court was not satisfied that the appellant had taken any reasonable steps to obtain legal advice and was far from satisfied that there was any definite arrangement made by the appellant to obtain legal advice from the practitioner whom he had identified as a person from whom he was seeking advice. There was no evidence before this Court of any attempts having been made in the time passed since then.

6    The Federal Circuit Court went on to consider the substantive application for review and summarised the findings of the International Treaty Obligation Assessment. The Court found that the process followed by the assessment in the appellant’s case was the same as the process, or at least indistinguishable from the process, that the High Court had considered in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653 to be procedurally fair. The Federal Circuit Court found that there was nothing in the consideration of the International Treaty Obligation Assessment by the departmental officer in the appellant’s case that would suggest the conclusion of the officer was irrational or without an evident or intelligible basis.

7    The appellant’s oral submissions to this Court sought a review of his case on the merits, however, the Court is unable to undertake a review of the merits. Its jurisdiction is confined to reviewing legal error of the decision below. The 13 numbered paragraphs in the appellant’s notice of appeal, and to the extent to which they are to be treated as evidence by incorporation in the appellant’s affidavit, and the additional matters to which the appellant referred orally at the hearing do not identify any error in the decision of the Federal Circuit Court. The 13 paragraphs are as follows:

1.    Failure to consider relevant Information and paying regards to irrelevant information.

2.    Unreasonableness and Unfairness of Procedures, as failure in accept original documents and Unwillingness and disregard to further investigate its veracity.

3.    Failure to acknowledge that the Applicant was a genuine candidate as a Refugee under Subsection 36(2) of the Migration Act 1958, at Federal Circuit Court.

4.    As a result of data breach by immigration my life will be at risk and danger if I was to be sent home.

5.    There are some jurisdictional errors in ITOA decision.

6.    The ITOA member did not assess complementary protection properly.

7.    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 India will involve a breach of Australia’s non-refoulement obligation under the Refugee Convention; or the Convention against Torture; or the International Covenant on Civil and Political Rights.

8.    In the ITOA assessment the delegate denied the applicant procedural fairness.

9.    The ITOA process is not an appropriate and fair process for determining the applicant’s data breach claim.

10.    There is likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s 198 or s 198AD of the Act irrespective of whether an assessment of Australia's non refoulement 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.

11.    On 2 September 2015 the delegate made a finding that non-refoulement obligations are not engaged in the applicant's case.

12.    The release of the applicant's personal information by the first and or Second Respondents, their servants or agents, was contrary to law.

13.    The release of the personal information was an interference with the privacy of an individual for the purpose of the Privacy Act 1988; further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336 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.

None of these grounds identify any error made by the Federal Circuit Court or by the departmental officer making the International Treaty Obligation Assessment. The additional matters referred to by the appellant at the hearing understandably complain about the decision but do not show error in its conclusion or in its reasoning.

8    The learned judge summarised the assessment made by the officer undertaking the International Treaty Obligation Assessment. The officer was required to determine whether there were any changes in the appellant’s circumstances since the determination of the protection visa application which might give rise to protection obligations, and to determine whether the publication of the appellant’s personal circumstances might give rise to any risk of harm should he be returned to India. The departmental assessment made findings in relation to these matters adverse to the appellant which the primary judge correctly found to be neither irrational nor without an evident and intelligible basis. None of the material relied upon by the appellant in the appeal warrants a contrary conclusion.

9    The learned primary judge also correctly determined that the process adopted by the Department in considering the appellant’s position as a result of the data breach was in conformity with the process considered by the High Court in SZSSJ. On 12 March 2014 and 14 July 2014 the Department wrote to the appellant identifying each of the categories of information which had been disclosed as a result of the data breach. The third respondent was instructed to make an assumption favourable to the appellant’s interests, namely, that the authorities in India may have accessed his personal information as a result of the data breach. That assumption was made by the departmental officer conducting the International Treaty Obligation Assessment but the officer concluded that she was not satisfied that the appellant, who had departed India on genuine travel documents and could return with valid travel documents, would be exposed to a real chance of serious harm or a real chance of significant harm by the Indian government on return to India even if the Indian authorities were aware that he was a failed asylum seeker.

10    The specific matters raised in paragraphs 10 and 13 of the appellant’s grounds similarly disclose no error in the International Treaty Obligation Assessment or the decision of the learned primary judge. The matter in paragraph 10 concerns the reasonable practicability of removal from Australia. That, and the matter in paragraph 13, were dealt with by his Honour by reference to the other grounds which had been contained in what his Honour had described as “a template application” raising matters without reference to the appellant’s circumstances. His Honour dismissed those grounds at [19] and [20] and there is no error identified in his Honour’s conclusions or reasoning: see Migration Act 1958 (Cth), s 197C; CDM16 v Minister for Immigration [2016] FCCA 2758; AKD15 v Minister for Immigration [2016] FCCA 2740.

11    Accordingly, the appeal will be dismissed with costs.

Associate:

Dated:    22 August 2017