FEDERAL COURT OF AUSTRALIA

SZTKG v Minister for Immigration and Border Protection [2015] FCA 267

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed by the parties.

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

REASONS FOR JUDGMENT

1    The reasons that follow are edited reasons given orally on 9 March 2015 for an order dismissing this appeal.

2    The appellant is an Indian national who arrived in Australia on a student visa issued in April 2009. In 2012, the appellant lodged two applications for protection visas which did not comply with the requirements and were not therefore processed. In April 2013 he lodged a further application for a protection visa which was compliant. In that protection visa application the appellant claimed that he was a Sikh from a religious family, and that he had been rejected by his family after he told his parents, in or around June 2012, that he had converted to Christianity in 2011. He also claimed that his father told him not to return to India, and threatened to seriously harm or kill him.

3    The appellant also claimed that in June 2012, he was acquitted of stabbing three men in self-defence at his residence in Australia. He said these men were from the same district that he came from in India, were aware of his conversion and had spread news in that district in India about it. He claimed that relatives of those men wanted to kill him as revenge for the stabbing, and that the situation had been exacerbated by his conversion to Christianity, which they viewed as a further crime.

4    In May 2013, the appellant was interviewed by an officer of the Department of Immigration and Border Protection. At this interview, his agent summarised his claims that he feared to return to India as a Christian convert, that he would be harmed for damaging his family’s reputation, that Christians are a minority in India and churches have been burnt down, that he was fearful of the men he stabbed and their families as they have connections to corrupt police and can use their influence to harm him, and that he was unable to relocate within India as he had no real connections elsewhere in that country.

5    In July 2013, a delegate of the Minister for Immigration and Border Protection assessed the appellant as not being a person to whom Australia has protection obligations and refused his application for a protection visa. In that same month, the appellant made an application to the Refugee Review Tribunal for review of the delegate’s decision. In September 2013, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa, and advised the appellant of its decision by letter.

6    In October 2013, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court listing some nine grounds. They were:

1.    There are some jurisdictional errors in R.R.T. decision.

2.    The R.R.T. member did not assess my Complementary Protection properly.

3.    The R.R.T. deprived me of Natural Justice.

4.    Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled for the rest of my life.

5.    The R.R.T. Member made an error of Law since the Decision the R.R.T. Member made regarding my case is wrong.

6.    The R.R.T. Member made an error of Law for not considering my relevant documents which are important in my case.

7.    The situation had I had to go back home would be very critical and life threatening to myself: also, I will be tortured for the rest of my life.

8.    The R.R.T. Member made an error of Law by not considering evidences which were significant and critical to the Decision under Review.

9.    I have also attached a newspaper article which comprehends that people are waiting to persecute me if I happened to be sent back home.

7    In July 2014, the Federal Circuit Court dismissed the application for judicial review. The primary judge’s reasons for doing so can be found at SZTKG v Minister for Immigration & Anor [2014] FCCA 1473.

8    At the end of July 2014, the appellant filed a notice of appeal from the Federal Circuit Court judgment to this Court listing 10 grounds of appeal. Grounds 1 to 8 and ground 10 are identical to the nine grounds of review in the judicial review application in the Federal Circuit Court, stated above. Ground 9, however, is a new ground and it states as follows:

9.    I have more evidence and enough information for fair complementary protection. As a result of data breach by immigration my life will be at risk and danger if I was to be sent home.

9    The Court will now deal, firstly, with grounds of appeal 1 to 8 and 10, which are the same as the grounds of review raised in the Federal Circuit Court.

10    The primary judge in the Federal Circuit Court dismissed the appellant’s application in relation to these same grounds, and the reasons for doing so were set out at [53]-[56] of the judgment. In dismissing that application the primary judge found that the findings of the Tribunal were open to it on the material in evidence before it and that the Tribunal applied the correct law to those findings, and complied with its obligations under the statutory regime in the making of its decision, including the conduct of the review. His Honour found that the Tribunal’s decision was not affected by jurisdictional error.

11    In the proceeding before this Court the appellant has not filed any further submissions to explain why he says the primary judge made any error in making the findings that he did about grounds 1 to 8 and 10 currently before the Court, which were the nine grounds of review agitated before the Federal Circuit Court. Nothing that has been said by the appellant in his formal submissions today points to any particular error. The appellant did draw attention to a particular paragraph of the Minister’s written submissions, which concerned the claim that he had made initially, to the delegate of the Minister, that in June 2012 he was acquitted of stabbing three men in self-defence, and pointed out from the bar table that there was an international gang involved and that the system is corrupt.

12    To the extent that was intended to be a complaint that an error was made in the Court below, or in the Tribunal before that, the Court can only observe that fact finding about such issues was for the Tribunal to make, and if the Tribunal came to a view that the applicant disagrees with, this Court, and the primary judge below, are not in a position to make fresh findings of fact. If these findings of fact were open to the Tribunal, as the primary judge found, then this complaint does not disclose any jurisdictional error.

13    The primary judge, as to the nine grounds of appeal before him, grouped grounds 1, 2 and 3 and considered the way the hearing before the Tribunal was conducted, the Tribunal’s finding of adverse credibility and its assessment of the complementary protection criteria in its decision, finding no error. His Honour then considered grounds 6 and 8 together. These were complaints that relevant evidence and documents had not been properly considered, including a newspaper article, but his Honour, once again, said that all those grounds could not be sustained on a factual basis. Then his Honour considered grounds 4, 5, 7 and 9 together and, once again, was unable to find any factual basis for these grounds or other error made.

14    I have reviewed the primary judge’s findings and can see no basis upon which it can be said that his Honour erred as a matter of law.

15    Ground 9, as stated above, is a further ground of appeal, which was not raised in the Court below, and concerns the so-called data breach issue. As the Minister’s written submissions suggest, this ground, on one view, appears to raise two issues: first, that the appellant possibly means to indicate that he intends to put forward further evidence in support of his claim for complementary protection. Putting further evidence forward is something that can be done in this Court, at the discretion of the Court. However, no application to that effect has been made, and I do not apprehend that the appellant has intended to make it. No further documents have been raised in that regard. The Minister says that even if there was an application to adduce further evidence, it could not establish jurisdictional error, in any event.

16    The second issue raised by ground 9, the Minister submits, is the data breach by the Department. That clearly is a reference to a report released on the Department’s website on 10 February 2014, which has been referred to in some detail in the decision of SZTXY v Minister for Immigration & Anor and SZTXZ v Minister for Immigration and Anor and SZTZJ v Minister for Immigration & Anor [2014] FCCA 841 at [1] and [13]. It is not in dispute in this proceeding that certain personal information was released on the Department’s website.

17    It is submitted, on behalf of the Minister, that the information released included the name, date of birth, nationality, gender and detention details of each person in detention on 31 January 2014, including when, where and why the person was detained, and whether the person had other family members in detention. The Minister says the information did not include the person’s address, or any former address, phone numbers or contact information, and also did not include any information about the person’s protection claims or other information such as health records. The Minister submits that in all of these circumstances any release of data about the appellant on 10 February 2014 could have had no bearing on the Tribunal’s earlier decision made on 26 September 2013. The Tribunal’s decision therefore cannot involve jurisdictional error by reason of the Department’s release of the appellant’s data on 10 February 2014, which, the Minister points out, was accidental.

18    Today, when invited to develop this ground, the appellant raised a number of issues. I will not seek to repeat them all, but they included his real concern that by reason of the information that was, albeit accidentally, released on the website, if he were to return to India he would be arrested at the airport, held in custody and treated as a common criminal. That first concern, as I perceive it, was stated in a number of ways.

19    The second concern the appellant expressed, not unrelated to the first, was that the information that was put up on the website, if obtained by others, could be utilised by them or others to obtain passports or other documentation, or otherwise to pretend to be the appellant. That possibility, as I understood it in the submission of the appellant, could also likely cause him harm in the future, including if he were to be returned to India.

20    The Minister made further submissions in relation to this so-called data breach. The Court was advised that the Minister has ensured that all persons affected by the breach, including the appellant, have had the opportunity to make submissions to the Department. The Court was further advised that the appellant has made a submission in response to that invitation. The Court has not inquired as to the substance of the submission, although the Court would infer that much, if not all, of what the Court was told by the appellant has been communicated to the departmental officers concerned. The Minister’s counsel also advised that the submission of the appellant has not been considered or processed at this point because these proceedings have been pending.

21    These proceedings were listed for hearing at this time because similar issues concerning the so-called data breach were pending in other parts of Australia in the Federal Court. Most recently the Full Court of the Federal Court heard three matters, which are to be found in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 handed down on 23 January 2015. The so-called data breach issue was not, it appears, dealt with in those cases, which were decided on other grounds. Counsel for the Minister submitted, and probably this is the case, that the data breach incident was not considered to be an issue in those cases because it occurred after the Tribunal’s decisions and therefore, logically, could not be seen as having resulted in some deficiency of decision making by the Tribunal. In other words, if a person affected, or who believes they are adversely affected by the data breach incident, wishes to take action about it, then they would need to institute separate proceedings, perhaps along the lines of that taken in the case of SZTXY in the Federal Circuit Court of Australia.

22    The result is that the Court considers, as indeed the Full Court considered in SZTGV, that the data breach issue, which forms ground 9 in this appeal, is not directly raised in the circumstances. In my view, in any event, because the data breach incident occurred after the Tribunal’s decision and could not have figured in the decision making of the Tribunal, it cannot be said that the Tribunal engaged in any conduct or decision making that involved jurisdictional error.

23    The result is that the current appeal should be dismissed, having regard to all the grounds raised. However, the appellant’s submission to the Department about the data breach remains to be considered, as a matter of administration. I would assume that if there is anything else that needs to be said by the appellant to the departmental officers about the adverse consequences that incident may have for him, then he can still make those submissions (and presumably would need to do so quickly). It would also be open, of course, to the appellant to obtain, if he can, further legal advice about what action, if any, he can separately take in respect of the so-called data breach. Counsel for the Minister has confirmed, in the course of submissions, that nothing said or decided in this appeal proceeding has the effect of preventing the appellant from raising the data breach issue in a separate proceeding, should he wish to do so.

24    In those circumstances, and for the reasons I have just given, the appeal now before the Court should be dismissed.

Associate:

Dated:    25 March 2015