FEDERAL COURT OF AUSTRALIA

AAG15 v Minister for Immigration and Border Protection [2016] FCA 67

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    On 8 February 2016, I dismissed this appeal. These are my reasons for having done so.

2    The appeal was from a judgment of the Federal Circuit Court of Australia, given on 24 September 2015, in which the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 January 2015, was dismissed. The decision of the Tribunal had affirmed an earlier decision of a delegate of the respondent Minister to refuse the appellant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

3    In his Amended Application in the Federal Circuit Court, the appellant relied on eight grounds, as follows:

1.    The Respondent(s) were not satisfied that I, the Applicant, … was a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (the Act) and subclause 866.221 of schedule 2 of the Migration Regulations and refused to grant me, the Applicant, the Protection (Class XA) Visa ... after acknowledging;

(a)    ‘I find that the claimed harm amounts to significant harm pursuant to subsection 36(2A) of the Migration Act’.

(b)    ‘I am satisfied that the Convention reasons of race and membership of a particular social group comprised of the [appellant’s] family in Fiji are essential and significant reasons for some of the harm feared, as required by paragraph 91R(l)(a) of the Migration Act’.

2.    The Respondent(s) failed to acknowledge that because of the ‘DATA BREACH’ in FEB. 2014, the Privacy Act 1988 (Cth) s.14 was breached twice under IPP 4 and IPP 11 ... stating;

(a)    ‘I am not satisfied that the harm feared for reason of the exposure of the Applicant’s criminal record, or his status as a returnee from Australia, are Convention-related.[’]

3.    The Refugee Review Tribunal’s decision is Legally unreasonable in that;

-- The Tribunal committed a particular error in it’s reasoning.

-- The Tribunal’s reasoning is Illogical and Irrational and

-- while the precise nature of the error is not apparent, the outcome “bespeaks error”, because it is “unreasonable, unfair, plainly unjust” and lacks an evident and intelligible justification.

…

4.    The Refugee Review Tribunal breached it’s [sic] duty to act Judicially in that;

--It’s [sic] findings are unsupported by probative materials and it made infrences [sic] of fact that and which cannot reasonably be drawn from it’s [sic] findings of fact.

…

5.    The Refugee Review Tribunal in coming to the decision denied me Procedural fairness in that;

5.1-- it failed to provide me with an opportunity to respond in writing and put in evidence pursuant to Sections 424 and 424A of the Migration Act 1958 with regards to the UNHCR report that it relied on that it was going to be the reason of part of the reason for ‘affiming’ the decision under review and for me to meet the case against me.

…

5.2. – it failed to provide me with an opportunity to respond in writing and put in evidence pursuant to Sections 424 and 424A of the Migration Act 1958 with regards to the copy of a news report in a news article about my visa cancellation and personal details that it relied on that it was going to be the reason or part of the reason for ‘affirming’ the decision under review ad for me to meet the case against me.

…

6.    1. The Refugee Review Tribunal’s decision is [vitiated] by Jurisdictional error in it requiring that there be evidence that there be other harm I feared due to my membership of my family group before it was obliged to consider and be satisfied that it would lead to a risk of future harm either due to my membership of my family group or due to my ethnicity.

This is a denial of procedural fairness.

…

2. The Refugee Review Tribunal’s decision is [vitiated] by Jurisdictional error in it requiring that there be evidence as to whether a government authority or private individual accessed information of the data breach by the department (First Respondent) before it was obliged to consider and be satisfied that the risk or chance that anyone in Fiji would seek to harm me or to disseminate such information to anyone who would harm me….

This is a denial of procedural fairness.

…

The Tribunal was bound to find that I am a refugee on the evidence that was before it, having found that I am a credible witness of truth, as [at] paragraph 84, of the Tribunal’s decision, the Tribunal stated:

“The applicant provided relatively consistent and credible evidence in relation to his background and past incidents. Accordingly the Tribunal finds that the applicant is a credible witness.”

This is a denial of procedural fairness.

7.    Given the breach of my Privacy the Tribunal was obliged to find that I am a refugee “sur place” in accordance with the Refugee Convention and Regulations Act 1951, and the Migrations [sic] Act 1958. (the Act).

4    In its reasons published on 24 September 2015, the Federal Circuit Court “summarised” these grounds under the following six “headings”:

(i)    The Respondent(s) were not satisfied that I, the Applicant, ... was a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (the Act) and sub-clause 866.221 of schedule 2 of the Migration Regulations and refused to grant me, the Applicant, the Protection (Class XA) Visa ...after acknowledging;

(a)    ‘I find the claimed harm amounts to significant harm pursuant to subsection (36)(2A) of the Migration Act’;

(b)    ‘I am satisfied that the Convention reasons of race and members of a particular social group comprised of the (applicant’s) family in Fiji are essential and significant reasons for some of the harm feared, as required by paragraph 91R(1)(a) of the Migration Act.’

(ii)    That the Respondent(s) failed to acknowledge that two privacy principles contained in the Privacy Act 1988 (Cth) s.14 had been breached by reason of a data breach in February 2014;

(iii)    That the Tribunal’s decision was legally unreasonable, illogical and irrational and lacked evident and intelligible justification;

(iv)    The Tribunal’s findings are unsupported by probative materials and made inferences of fact not reasonably available to it;

(v)    That the Applicant was denied procedural fairness in that:

(i)    that the Applicant was not invited to respond in writing and put evidence pursuant to sections 424 and 424A of the Act in respect of the UNHCR report relied upon in its reasons;

(ii)    that the Tribunal did not invite the Applicant to respond pursuant to s.424 or 424A to the contents of a news report/article about his visa cancellation;

(iii)    that the Tribunal (ground 6) erred in requiring that there be evidence as to the Applicant’s feared harm by reason of his family membership/ethnicity;

(iv)    that the Tribunal erred in requiring further evidence that a Fijian Government entity accessed the data made public by the data breach before accepting that the Applicant faced a real chance of persecution or a real risk of suffering significant harm;

(v)    that there was a denial of procedural fairness in the Tribunal finding that the Applicant was a refugee and that he was a credible witness of the truth but failing to decide that protection obligations arose.

(vi)    (Grounds 6 and 7) -That the breaches under the Privacy Act obliged the Tribunal to find that the Applicant was a refugee “sur place” in accordance with the Refugee Convention and Regulations Act 1951 and the Migrations [sic] Act 1958 (the Act) being that details of his criminal convictions in Australia would regularly have become known in Fiji.

It will be noted that, apart from reducing the appellant’s terminology to summaries, the main alteration to those grounds effected by the Federal Circuit Court was to incorporate in item (v) all of the procedural fairness points that the appellant had made in his Grounds 5 and 6.

5    As set out in his Amended Application in the Federal Circuit Court, the appellant’s grounds were, as his Honour pointed out, heavily particularised. This was especially so with respect to Ground 3, which was supported by nearly four pages of single-spaced particulars. In every case (ie under all of the grounds), the particulars consisted of a setting out of the passages in the Tribunal’s written reasons which were said to support the grounds to which the particulars were subjoined.

6    In this court, the appellant’s grounds of appeal were as follows:

1.    His honour Judge McGuire erred in law for not finding that the decision of the Refugee Review Tribunal as it was then known but now known as the Administrative Appeals Tribunal is affected by jurisdictional error in that it was legally unreasonable given the fact that the Tribunal committed a particular error in its reasoning as the Tribunal’s reasoning was and is illogical and irrational and while the precise nature of the error is not apparent, the outcome “bespeaks error”, because the decision was and is unreasonable, unfair, and plainly unjust and lacks an evident any intelligible justification on the evidence that was before the Tribunal.

2.    His honour Judge McGuire erred in law for not finding that the decision of the Refugee Review Tribunal as it was then known but now known as the Administrative Appeals Tribunal is affected by jurisdictional error in that the Tribunal denied me procedural fairness given the breach of the tribunal of section 425 and 424 and 424A of the Migration Act 1958.

3.    His honour Judge McGuire erred in law for not finding that the Tribunal failed to properly consider the implication of the my personal information by the Department and the Federal Circuit Court had and did not grasped correctly the extent of the Minister and indeed the Tribunal’s obligation to reveal what the Minister and indeed the Tribunal knows or knew about the Data Breach.

4.    His honour Judge McGuire erred in law for not taking into consideration and taking into account the findings and the ruling of the Full Federal Court of Australia in matter and proceedings number FCAFC 125 given on 2 September 2015. The Federal Circuit Court of Australia was bound by law to have regards and to take into account the principles and rulings of that judgement in making its judgement and findings and coming to conclusion regarding the Data Breach. The Court failed to do so.

It will be noticed that the first three of these grounds correspond with Grounds 3, 5 and 6.2, respectively, advanced by the appellant in the Federal Circuit Court. The fourth ground relates to a judgment of the Full Court given, as it happens, one day after the hearing in the Federal Circuit Court and about three weeks before the delivery of judgment in that court.

7    Dealing first with the first ground of appeal, his Honour below held that the appellant’s point amounted to no more than a disagreement with the Tribunal’s findings of fact which, his Honour observed, were open to the Tribunal and based on evidence set out in its reasons. Nothing put by the appellant on appeal casts any doubt upon the correctness of that conclusion on the part of his Honour. This first ground should be rejected.

8    Turning to the second ground of appeal, the question is whether the Federal Circuit Court was in error not to have held that the Tribunal failed to comply with one or more of ss 424, 424A and 425 of the Act. It is not clear why the appellant included a reference to s 425 in this ground: there was no such reference in the corresponding ground advanced by him in the Federal Circuit Court, and his Honour did not refer to the section in his reasons. Section 425(1) provides as follows:

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

As I have said, there is no suggestion of a contention by the appellant at first instance that the Tribunal failed to comply with this provision: indeed, it is as clear as may be that the appellant was invited to appear before the Tribunal, and did so.

9    Neither is it clear how the appellant could contend that the Tribunal had acted in contravention of s 424 of the Act. Subsection (1) of that section provides as follows:

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

In the present case, the Tribunal did get information, did consider it relevant and did have regard to it in making its decision on the review initiated by the appellant. Although his Honour in the Federal Circuit Court set out the terms of s 424 in his reasons, nothing appears to have followed from that. Neither, in my view, need it have.

10    In essence, the appellant’s contention under this second ground arose under s 424A of the Act. That section provides as follows:

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non‑disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

11    The passage in the Tribunal’s reasons to which this aspect of the appellant’s case relates is the following:

There is very little information available about the treatment of part-Europeans in Fiji, who make up approximately 1.7 percent of the population. A 2009 article in The Australian refers to Fijians of European descent (along with Indian and mixed race backgrounds) being disadvantaged in areas including land rights as well as employment and education due to positive discrimination in favour of indigenous Fijians. However, a UNHCR report notes that just under 50% of the European/part-European population of Fiji is employed in high wage professional, technical and legislative occupations and that the European community continues to have the highest income.

[footnotes omitted]

12    Although these sources of information, and the information itself, referred to in the passage above were, it seems, raised with the appellant at the hearing in the Tribunal, it is common ground on the present appeal that the information concerned was not given to him by the means required in s 424A(2) of the Act. Counsel for the Minister, however, pointed out that s 424A did not apply to information of this kind, since it was excluded under subs (3)(a). That submission is self-evidently correct, and should be accepted. The appellant’s case under the second ground of appeal should, therefore, be rejected.

13    I shall next deal with the appellant’s fourth ground of appeal. As he explained at the hearing of the appeal, it relies upon the judgment of the Full Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125. It seems that the appellant was one of the 9,258 asylum seekers whose names and personal details were made publically accessible on a departmental website on 10 February 2014. The appellant submitted that his circumstances were governed by the decision in that case, and that the Judge in the Federal Circuit Court should have applied it.

14    SZSSJ was concerned with the Minister’s obligation to afford procedural fairness to two foreign nationals whose claims for protection visas had been refused. In one case, an adverse decision of the Tribunal had been followed by unsuccessful judicial review and appellate proceedings. In the other case, the Tribunal had given its decision, and (at least so far as appears) no further proceedings had followed by the time of the events which became controversial in the instant litigation. The factual situation of both persons was that they were exposed to the prospect of removal under s 198 of the Act. They succeeded before the Full Court because they had been denied procedural fairness in the context of what was described as the ITOA (“International Treaties Obligations Assessment”) process preparatory to removal.

15    In neither of the cases which were before the Full Court in SZSSJ was the jurisdictional validity of a decision made by the Tribunal under challenge. Indeed, in SZSSJ’s own case, the Full Court made the orders which it did notwithstanding the dismissal, during the period when the case was pending in the Federal Circuit Court, of an application for special leave to appeal from an earlier judgment of the court rejecting his contention that the decision of the Tribunal was affected by jurisdictional error: SZSSJ v Minister for Immigration [2014] HCASL 73. By contrast, the power which the appellant sought to have exercised in his favour in the present case was the power to issue a visa under the Act. At its core, the appellant’s case in the Federal Circuit Court was for mandamus, since he needed a positive outcome: one which granted him the visa which he sought. It was the power to issue a visa which the delegate refused to exercise, and it was that refusal which was confirmed by the Tribunal. No question under s 198, or concerning Australia’s non-refoulment obligations, arose. The facts which led to the result in SZSSJ were fundamentally different from those upon which the appellant here relied, and relies.

16    The present case is not, therefore, governed by SZSSJ. The fourth ground of appeal must be rejected. It was for this reason also that, at the hearing of the appeal, I refused the appellant’s application for a stay of the present proceeding pending the disposition of the Minister’s application for special leave to appeal from the judgment of the Full Court.

17    That leaves the third ground of appeal. The point here is not whether the case was governed by SZSSJ. It is, rather – and here I would have to say that the appellant’s ground 6.2 in the Federal Circuit Court is more revealing as to the nature of his complaint than is the third ground of appeal – whether the appellant was denied procedural fairness when the Tribunal required there to be “evidence as to whether a government authority or private individual accessed [the] information of the data breach”. This point was not, I would have to say, dealt with by the Federal Circuit Court at all.

18    The starting point, of course, is how the appellant sought to use the fact of the data breach in his application in the Tribunal. His stated fears were of (and here I quote from the Tribunal) “being unable to find employment due to his criminal convictions becoming known and being perceived to be homosexual” and of “harm from the Fijian government if his criminal convictions and his application for protection were to become known”.

19    The passage in the Tribunal’s reasons to which the appellant referred in his ground 6.2 was the following (noting particularly the final sentence):

As discussed with the applicant, a November 2014 own motion investigation report by the Australian Privacy Commissioner relating to the data breach advised that the data breach affected almost 10,000 individuals in immigration detention. Sources indicate that the information was available on the department’s website for eight and a half days and on an internet archive site for 16 days. Sources indicate that during that time, the data was accessed 123 times from 104 unique IP addresses and that one of the IP addresses was in Fiji. The retention risk for the data accessed in Fiji was classified as ‘medium’. There is no indication in the evidence before the tribunal as to whether a government authority or private individual accessed the information.

[footnotes omitted]

This was a harmless observation about the state of the evidence before the Tribunal. As will appear, however, the Tribunal took the limitations in the evidence into account, and in some respects made assumptions favourably for the appellant, in its reasons which followed.

20    The Tribunal noted that an element of the data which had been released to the public was the fact that the appellant was in detention due to his visa having been cancelled under s 501 of the Act. But his criminal record had not been “referenced”. The Tribunal held that, even if it were to be inferred by someone that the appellant had a criminal history, “the risk or chance that anyone in Fiji would seek to harm the [appellant] or to disseminate such information to anyone who would harm the [appellant] is remote.” It also held that the chance of the Fijian government becoming aware of his criminal record through the data breach was “remote”.

21    The Tribunal continued:

[112]    While the tribunal has found that the risk the applicant’s criminal history will become known to the Fijian government as a result of the data breach or his removal from Australia is remote, it has considered as an alternative finding whether the applicant would face a real chance of serious harm or a real risk of significant harm if the Fijian government did become aware of his criminal record. As discussed with the applicant at hearing, the evidence before the tribunal does not indicate that persons convicted of criminal offences including sexual offences against children face a real risk of serious or significant harm in Fiji. Accordingly, the tribunal does not accept that there is a real risk the applicant would face serious or significant harm by the Fijian authorities if they became aware of his criminal offences.

[113]    As part of its alternative reasoning, the tribunal has also considered whether there is a real chance of risk that the Fijian government would perceive the applicant to be homosexual if his criminal history became known. The applicant’s criminal offences do not refer to the gender of his victim and the applicant has not provided any other reason why he would be perceived to be homosexual. He has stated that he is not a homosexual. Accordingly the tribunal finds that the risk or chance that the Fijian government would perceive the applicant to be homosexual to be remote.

22    The Tribunal proceeded to deal with related aspects of the appellant’s claim, such as the difficulties which he might encounter finding employment in Fiji in circumstances where prospective employers required him to disclose his past convictions, but they do not bear directly on his complaint that he was denied procedural fairness in relation to the consequences of the data breach.

23    Aside from such provisions of the Act as might be relevant, it is clear that the appellant was accorded procedural fairness in the way that the Tribunal dealt with the matter of the data breach. It was the appellant’s own application, and he was given the opportunity to support his case by argument and evidence. That a more perfect evidentiary base was not available to him does not mean that he was denied procedural fairness. As disclosed by the passages in the Tribunal’s reasons to which I have referred above, it is clear that the appellant’s point was entertained, understood and considered.

24    But I cannot ignore the relevant provisions of the Act. By s 422B(1), Div 4 of Pt 7 contains an exhaustive statement of the requirements of the natural justice hearing rule for a proceeding in the Tribunal such as the appellant’s. As I have said, conformably with s 425, the appellant was invited to place evidence, and to advance his arguments, before the Tribunal. He accepted that invitation. I have already dealt with so much of his case as relies on ss 424 and 424A. Although referred to by the Federal Circuit Court, and mentioned in the appellant’s submissions on the appeal, s 424AA was no part of his case in that court, and was not mentioned in his Notice of Appeal in this court. In other respects, I cannot see any suggestion that a provision of Div 4 was not complied with.

25    For these reasons, the appellant’s third ground should be rejected.

Associate:

Dated:    22 February 2016