FEDERAL COURT OF AUSTRALIA

ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to: “Administrative Appeals Tribunal”.

2.    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

Introduction

1    This appeal is brought from orders of the Federal Circuit Court of Australia made on 6 May 2015 that the application to that Court be dismissed, with costs. The Federal Circuit Court had before it an application for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) on 9 February 2015 affirming the decision made by a delegate of the Minister for Immigration and Border Protection on 8 January 2015 not to grant to the then applicants, including the present appellant, protection visas under s 65 of the Migration Act 1958 (Cth). Before the Tribunal, the then second and third applicants, the first applicant’s son and his son’s wife, did not make any claims in their own right.

2    The then second and third applicants were not parties to the judicial review application to the Federal Circuit Court and neither are they parties to the present appeal. I shall refer to the first applicant before the Tribunal as the appellant.

3    The Tribunal set out, at [2]-[11], the appellant’s visa history since arriving in Australia on 23 June 2008, as the holder of a Student Visa (Guardian) due to cease on 31 December 2008.

4    The Tribunal found that the appellant was a national of China. His original claims were that he left China to escape persecution by the authorities and creditors and debt collectors; he feared being arrested by the police and persecuted by them, creditors and debt collectors, and the authorities would not protect him because they would arrest him. In a second form, the appellant said he could not return to his country because he is a Falun Gong practitioner, he had previously been taken by a police officer on three occasions because of Falun Gong, and if he returned his life would be at high risk.

5    In February 2014, personal information regarding the appellant was made available on the Departmental website for a short period of time. This may have included his name, date of birth, gender, nationality, details about detention (such as when and where he was detained and why), and if any other family members were in detention at that time.

The Tribunal

6    In relation to his claims regarding Falun Gong, the Tribunal was not satisfied that the appellant had ever had contact with Falun Gong in Australia or in China and it did not accept any of the appellant’s evidence in relation to those claims. These findings were based on the lack of relevant detail that could be expected if the appellant’s claims were true. The Tribunal did not find the appellant’s evidence about his alleged detention in China credible as it lacked the detail that could reasonably be expected from someone who had lived such an experience, such as much greater detail regarding the actual charge. The appellant was unable to give any credible evidence regarding the exercises involved in Falun Gong.

7    In relation to the appellant’s claims regarding owing a debt in China, the Tribunal was not satisfied that the appellant had such a debt and it did not accept any of the appellant’s evidence in relation to those claims. These findings were based on the inconsistent and contradictory evidence given by the appellant and, the Tribunal said, “the nonsensical nature of the evidence”. The Tribunal rejected the appellant’s claims regarding his alleged debt in their entirety.

8    In relation to the data breach, the Tribunal considered the written submissions made by the appellant, including that there was potentially global access to the file and that it could have been copied thousands of times, it was unknown how many times the personal details of asylum seekers were accessed, and that the document was accessed from several countries. In addition, it was submitted there was no way of knowing if the appellant would face a risk of harm going well beyond the authorities in his country. I note that the Tribunal recorded, at [33], that it had asked the appellant what concerns he had regarding the data breach by the Department. The appellant indicated that he did not understand the question. Asked if he had any concerns because of the data breach, the appellant said no. Asked who had made the written submissions in relation to the data breach, the appellant said his current lawyer. The Tribunal said, at [57], that it had considered the submissions made by the appellant in relation to data breach but was not satisfied that any of the claims were more than speculation and it was not satisfied that any of these claims were credible. The Tribunal instead found that the appellant’s actions had been opportunistic in his long-term attempt to remain in Australia.

Proceedings in the Federal Circuit Court

9    In his judicial review proceedings in the Federal Circuit Court the relevant grounds were as follows, using the numbering in that Court:

Final orders sought by applicant/s

…

1.    Some integers of our claims were not properly taken into account by the RRT member.

2.    We plead for an order not to be removed from Australia.

3.    We plead for an order to consider us for complimentary (sic) protection, to redirect the RRT decision, and order the Department to take this matter for further consideration.

Grounds of application

1.    We have more evidence and enough information for a fair complementary protection review.

2.    The RRT deprived us of natural justice.

3.    Trying to send us back home will result in jeopardizing our lives, pushing us into life-threatening situations, being physically harmed, mentally tortured, and emotionally unstable for the rest of our lives.

4.    I have genuine concerns as to how the data breach has affected me. Due to a misunderstanding when asked about it at the RRT interview, I fear I was not able to convey the gravity of this matter. My son and his wife are going to have a baby soon and I am concerned about the danger that the information leaked through the data breach has brought to all of our lives.

5.    While we are aware of the risk imposed upon us by the data breach, due to the fact that the Department of Immigration has not disclosed the complete details of it, we are in no position to assess the severity or the extent of the danger that it has caused us.

10    The judge of the Federal Circuit Court (the primary judge) first treated as a claim paragraph 1 under the heading “Final orders sought by the applicant/s”. The judge rejected that ground on the basis that the appellant’s claims were narrow in their scope and focused on his Falun Gong membership, debts he claimed to have owed, as well as the consequences of the data breach by the Department. The factual bases for the first of those two claims were comprehensively rejected by the Tribunal. The third was rejected because the Tribunal thought that the risk of harm was no more than speculative. There was no claim or integer of any claim that was not considered or properly taken into account by the Tribunal.

11    The primary judge then broke the remaining five grounds into two parts. The first part was constituted by paragraphs 1, 3, 4 and 5, being allegations by the appellant that he in fact met the criteria for the grant of the visa. The judge said that in respect of those grounds the Federal Circuit Court had no jurisdiction to consider them. They were rejected.

12    The second category was found in ground 2 and possibly in ground 4. The judge said there was no failure to comply with s 424A of the Migration Act and there was no evidence of a breach of s 425 or of any other requirement of the rules of procedural fairness. The judge said that ground 4 might also have been an allegation of denial of procedural fairness. It was possible to understand that ground as saying that the appellant was somehow prevented from giving evidence because his daughter-in-law was about to give birth. In the course of the hearing in the Federal Circuit Court the appellant said that he meant that he had a concern that if information was leaked then the appellant, his son and his son’s wife “if they go to China, they would be persecuted”. The judge said this appeared to be a claim not related to procedural fairness but, again, to the merits of the Tribunal’s decision.

13    At the hearing before the Federal Circuit Court, the appellant said, as he had before the Tribunal, that he had had a stroke, that his brain did not work all the time, and that his memory was not good. The judge said that there was no evidence before him, apart from that contained in the court book, and particularly in the Tribunal’s reasons, that the appellant, in fact, had a stroke. Even accepting that that had occurred, there was nothing to suggest that the appellant’s ability to give evidence had been sufficiently affected by it and that he was denied a real opportunity to give evidence and make submissions at the hearing before the Tribunal. The judge noted that the appellant was represented during the course of the review and that his son and son’s wife were present at the hearing. Nevertheless, there was never any suggestion that the appellant might not be able to give proper evidence and to explain all of his claims to the Tribunal. For those reasons, this ground did not give rise to jurisdictional error.

The appeal to the Federal Court of Australia

14    The grounds of appeal were as follows, as written:

Ground 1

The Tribunal fell in jurisdictional error by rejecting the applicants’ claims illogically, arbitrarily and irrationally.

Particulars

a)    The Tribunal did not consider about the applicant’s difficult situation that Falun Gong had been banned when he started to practice. And it was impossible for him to attend lectures, meetings and practices frequently. Also the public tense made the members unable to access the group internal information easily.

b)    The Tribunal failed to take relevant considerations into account.

–    First, the applicant had been in Australia for year and had no contact with the loan shark. It is impossible for him to calculate the amount including interests that he owed by now.

–    Second, the applicant suffered a stroke over a year ago, which could influence the applicant’s emotion, memory and logical thinking, especially in a stressful situation such as hearing. The Tribunal should give him extra time to provide written submission and evidence.

Ground 2

The Tribunal totally ignored the severe consequences of the data breach. The release of the applicants’ personal information 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

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.

c)    The release of the applicants’ personal information has caused the applicant to have a well founded fear that their removal from Australia and return to China will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Convention on Civil and Political Rights.

d)    There is likelihood that the Respondents will purport that 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 applicants’ personal information has been carried out in a way which the applicant is accorded procedural fairness.

15    Before turning to the submissions of the parties, I should state that I am satisfied that the appeal book was served on the appellant by letter dated 15 October 2015, in the ordinary course of post. I am also satisfied that the Minister’s written submissions were served on the appellant on 16 November 2015.

The submissions of the parties

16    The appellant filed no written submissions. In oral submissions in relation to his grounds of appeal, the appellant said no more than that the Department’s judgment in his case was unfair and that on his return to China he would be subject to persecution.

17    The Minister submitted that no error on the part of the primary judge in dismissing the appellant’s application for judicial review of the Tribunal’s decision was alleged by the appellant. The grounds of appeal did not reflect grounds relied on in the Federal Circuit Court. In any event, the primary judge did not err in dismissing the application.

18    As to ground 1, the Minister submitted that none of the grounds in the Federal Circuit Court contended that the Tribunal’s decision was illogical, arbitrary or irrational and the primary judge did not err in failing to consider such an argument. To the extent the particulars to this ground were not directed to illogicality or irrationality but instead sought to reagitate the appellant’s claim that “some integers of our claims were not properly taken into account by the RRT member”, no appellable error was disclosed in the primary judge’s explanation for rejecting that claim.

19    As to the first particular of this ground, the Tribunal considered the appellant’s claims in relation to when and where he attended Falun Gong meetings, his claimed detention in China on the basis of his membership and the exercises he performed. It noted the appellant’s evidence that he had been unable to practice since his stroke, and also “country of origin information recorded in the Departmental decision regarding the covert nature of Falun Gong practices in China”. The appellant’s evidence in the Tribunal was not that he had difficulties attending meetings or obtaining information about the group, as alleged in this particular, but his evidence was that he attended lectures three nights a week while in China and two or three meetings after his arrival in Australia. The Tribunal took into account both the appellant’s evidence as to his inability to practice Falun Gong since his stroke and information concerning the “covert nature of Falun Gong practices in China”.

20    As to the second particular of this ground, the first of these matters, the impossibility of the appellant calculating the amount he owed in China, none of the grounds in the Federal Circuit Court concerned the claimed failure by the Tribunal to take this matter into account. Nor did the appellant raise such a difficulty in the Tribunal. The appellant’s evidence before the Tribunal was that he did not know why the amount he said he owed would have remained the same for 10 years. In response to questions put to the appellant by the Tribunal on this issue, the appellant did not make any comment or provide any further evidence. As to the second of these matters, the effect of the appellant’s stroke, no request was made to the Tribunal for additional time to prepare written submissions or evidence, despite the appellant being represented during the course of the Tribunal’s review, albeit that his representative did not attend the hearing. The primary judge did not err in dismissing the ground raised at the hearing concerning the appellant’s stroke.

21    As to ground 2, the Minister submitted no error on the part of the Federal Circuit Court was identified. The primary judge correctly characterised the claim as not being concerned with procedural fairness but also with the merits of the Tribunal’s decision. The Minister submitted that the primary judge did not fall into error in finding that the Tribunal did not fail to consider the appellant’s claims in relation to the data breach. The Minister referred to [14], [41], [43] and [57] of the Tribunal’s reasons. The Minister submitted that it was not clear how any breach of the Privacy Act 1988 (Cth) arising from the data breach could amount to an error on the part of the primary judge and that to the extent any criminal offence under s 336E of the Migration Act had been committed by any officer of the Department, it would not be relevant to the identification of error on the part of either the primary judge or the Tribunal. The Minister submitted that the claim in the third particular of ground 2 was considered and rejected by the Tribunal and it was not the function of the Court to review the merits. As to the final particular of ground 2 concerning the likelihood of the appellant’s removal pursuant to s 198, the Minister submitted that to the extent this particular alleged breach of procedural fairness by the Tribunal, such a claim, made more generally in relation to the Tribunal’s decision, was rejected by the Federal Circuit Court.

22    The Minister submitted that the decision in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 at [121] was distinguishable as here the Tribunal, rather than the Department, was the relevant decision-maker. To the extent that the appellant claimed to have been entitled to some other process, apart from consideration by the Minister’s delegate in the context of the original decision and review of that decision by the Tribunal, to assess the implications of the data breach, the foundation for that entitlement was nowhere articulated, nor was such a claim raised in the Federal Circuit Court. The consequences of the data breach in the appellant’s case were considered both by the delegate in assessing his protection visa application and on review by the Tribunal, including by reference to consequences of the breach that he claimed gave rise to non-refoulement obligations.

Consideration

23    Assuming in the appellant’s favour that he may raise these grounds of appeal, my conclusions are as follows.

24    I see no basis for the contention that the Tribunal rejected the appellant’s claims illogically, arbitrarily or irrationally. As to Falun Gong being banned when the appellant started to practice, the Tribunal noted what the appellant had said about that at [25] and [53], the evidence being that Falun Gong was banned in China in 1999, the appellant claimed to have been a follower since 2001 and to have attended Falun Gong lectures three nights a week whilst in China. I find that this ground is no more than a purported challenge to the merits of the Tribunal’s decision. This ground fails.

25    As to the submission that the Tribunal failed to take into account as a relevant consideration the appellant’s difficulties in calculating the amount that he owed as a debt in China, and assuming this to be a relevant consideration in the legal sense, there is nothing to suggest that the Tribunal’s findings were based on any difficulties the appellant may have had with calculating the amount of interest. As the Minister submitted, the Tribunal’s consideration of this claim focused on why the amount of any debt would be the same in 2015 as it was in 2005. The Tribunal also asked the appellant if he had ever repaid any of the alleged debt during his time in Australia and the appellant said no. The appellant did not give then as a reason that he had no contact with the alleged lender while he had been in Australia. This ground seems to me to be a purported challenge to the merits of the Tribunal’s decision. This ground fails.

26    As to the contention that the Tribunal should have given the appellant extra time to provide written submissions and evidence, and again assuming this to be a relevant consideration in the legal sense, this was not a matter raised before the Tribunal, there was no medical evidence that the appellant had had a stroke, and even if there had been such evidence there was nothing to suggest that the appellant’s ability to give evidence had been sufficiently affected by it. I adopt, with respect, the reasons of the primary judge on this point at [26]-[27]. This ground fails.

27    As to the ground raising the alleged severe consequences of the data breach, there was no factual basis for it before the Tribunal and the Tribunal rejected the claim for that reason. Thus, the Tribunal did not ignore the claimed severe consequences of the data breach but in effect found there was no factual basis for them. I also note that the Tribunal found that the appellant may have had personal details unintentionally made available publicly on the Departmental website for a short period of time, and that those details may have included the appellant’s name, date of birth, gender, nationality and when and where he was detained and why. In light of the formal nature of this claim, as recorded by the Tribunal at [33] and [41], that the appellant said he did not have any concerns because of the data breach, I conclude there is no basis for discerning any error in this respect in the decision of the primary judge nor any basis for discerning jurisdictional error on the part of the Tribunal.

28    I add that to the extent that this ground raises the claim that the release of the appellant’s personal information was contrary to law, I accept the submissions of the Minister that in the circumstances it is not clear how any breach of the Privacy Act could amount to an error on the part of the primary judge. I make the same observation in relation to the alleged breach of s 336E of the Migration Act.

29    It is not necessary further to consider the Minister’s submissions on this point except to note that SZSSJ is distinguishable, at least on the basis that it concerned non-statutory processes being conducted by officers of the Department itself, rather than, as here, by the Tribunal under a statutory process.

30    Ground 2 fails.

31    What the appellant said on the hearing of the appeal, which I have set out at [16] above, took the matter no further.

Conclusion and orders

32    The name of the second respondent should be amended to refer to the Administrative Appeals Tribunal. The appeal must be dismissed, with costs.

Associate:

Dated:    26 November 2015