FEDERAL COURT OF AUSTRALIA

DZAFB v Minister for Immigration and Border Protection [2016] FCA 827

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellants arrived in Australia by boat on 14 April 2013. On 5 September 2013, they applied as a family for a Protection (Class XA) visa. A delegate of the Minister refused the visa by a decision made on 13 October 2014. That decision was affirmed by the Refugee Review Tribunal (the RRT) on 10 December 2014.

2    The appellants sought judicial review of the RRT decision in the Federal Circuit Court (the FCC). That application was dismissed: DZAFB v Minister for Immigration [2016] FCCA 6. The appellants now appeal against the decision of the FCC. They were unrepresented on the appeal, although they had had legal representation in the FCC.

3    The Notice of Appeal named four appellants, but the fourth had not been a party to the proceedings in the FCC. On that basis I ordered that he be removed as a party to the proceedings.

4    The third appellant, who is the daughter of the first and second appellants, is an infant. On the application of the first and second appellants, I ordered, pursuant to rr 9.62 and 9.63 of the Federal Court Rules 2011 (Cth), that the first appellant be appointed as her litigation representative.

5    The notice of appeal filed on 2 February 2016 stated the grounds of appeal and orders sought as follows:

Grounds of appeal

1.    The Administrative Appeals Tribunal has no jurisdiction over breaches of the Privacy Act 1988 (Cth).

2.    A matter going before the High Court for S206 and S207 is relevant to and affects my matter.

Orders sought

1.    The decision be quashed.

2.    The matter be adjourned pending outcome in the High Court for S206 and S207.

6    It was common ground that the matters “S206 and S207” to which the notice of appeal referred were the applicants SZTZI and SZSSJ whose claims had been the subject of the decision of the Full Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1. Ms Newman, counsel for the Minister, informed the Court that the High Court had, on 11 March 2016, granted special leave to appeal from the decision of the Full Court. The appellants sought an adjournment of the hearing of the appeal in this Court on two grounds: first, so that they could seek legal representation; and, secondly, to await the decision of the High Court on appeal in SZSSJ.

7    I declined to grant the adjournment. In relation to the first ground, I considered that the appellants had had more than an adequate opportunity in which to obtain legal representation for the present hearing and because it was uncertain that, even if an adjournment was allowed, the appellants would be able to obtain legal representation.

8    At the appeal hearing, the grounds upon which the High Court had granted special leave in SZSSJ were not known so that it was not certain whether the High Court decision in that matter would have any significance for the determination of the present appeal. In that circumstance I directed that the appeal proceed but made orders having the effect that the appellants could make further submissions on that topic once the grounds were known.

Background

9    The first two appellants are nationals of Vietnam and are married. DZAFB’s work took him away from their home periodically. In May 2012, the second appellant, DZAFC, opened a refreshment store. They gave an account of four local police officers shortly afterwards acting in the manner of standover men, taking goods without paying and demanding protection money. DZAFB protested at their behaviour and was subjected to a serious assault. He reported this to the police and received an offer for payment of his medical bills in exchange for his withdrawal of the complaint. He declined this offer. Subsequently, and while he was away from home, the second appellant was harassed by other persons thought to have been sent by the offending police officers. This prompted DZAFB to reconsider the offer. He accepted the offer and withdrew his original complaint.

10    Subsequently, in February 2013, he was persuaded to renew the complaint and did so. Again, this was followed by harassment of the second appellant, including physical harassment. It was then that DZAFB and DZAFC decided to leave Vietnam and they did so using the services of people smugglers.

11    The first appellant is one of about 9,250 persons whose details were inadvertently published on the website of the Department of Immigration and Border Protection between 10 and 24 February 2014 (the Data Breach). The details included the first appellant’s name, date of birth, gender, nationality, some information about his detention, and whether he had family members in detention. The first appellant received a letter from the Department dated 12 March 2014 which included the following:

Unauthorised access to personal information

In February 2014 a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.

As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.

…

The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.

The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.

…

12    The appellants’ migration agent attached considerable significance to the Data Breach in the written submission made on their behalf to the Minister’s delegate. In particular, the agent submitted that the appellants had a claim for complementary protection which existed independently of the original claim for protection. The agent submitted:

The grounds for this secondary claim have been created by the publication of their personal details in relation to their immigration status as this alone creates a real chance of our clients being perceived as publicly critical of the political, religious and social regime from which they have fled. This risk exists irrespective of whether they in fact hold such views or held them in the past. It also exists irrespective of whether or not they have actually undertaken any activity that would indicate the holding of such views. The simple knowledge that our client is in immigration detention in Australia is sufficient to trigger an assumption that our clients are asylum seekers and this in turn is sufficient to impute our clients with a political opinion that is in conflict with the authorities of their home country. The risk of persecution that results from this imputation has been created solely by the actions of others and exists as a result of factors totally outside our clients’ control. As a result, these risk factors cannot be discounted under s 91R of the Migration Act.

13    As is evident, this claim did not succeed. Nor did it succeed in the RRT. The RRT said:

[31]    I put to [the first appellant] that Vietnam had been co-operating with UNHCR, IOM and first asylum countries for over two decades in the matter of orderly and even forced return of failed asylum seekers who originally left Vietnam illegally. I put to him on the basis of independent country information that there is no evidence to suggest that Vietnam penalises people merely for having sought asylum abroad.

[32]    [The first appellant] offered no response to the contrary. He did not suggest that relevant laws or practices would be applied or exploited in a discriminatory way. I am not satisfied on the evidence before me that they would be, or that [the first appellant] or his family would face a real chance of serious harm for reasons of having left Vietnam illegally or having sought asylum abroad. I am not satisfied on the evidence before me that this would significantly impact on their integration back in Vietnam or cause it be unreasonable for them to relocate back to [their village].

[33]     When I invited [the first appellant] to comment further, he said that the real reason he cannot go back to Vietnam is that his daughter … has no documents to prove that she is their daughter.

…

[39]    I invited [the first appellant] to comment on how he might be affected by [the Data Breach], and he said that maybe the Department had published his statement of claims. On the evidence before me, this did not happen. Overall, [the first appellant] said the breach might tip off the authorities that he had sought asylum in Australia. As noted, we discussed the claim about “failed asylum seekers” in some detail at another stage in the hearing.

…

[46]    I am not satisfied on the evidence before me that the February 2014 Data Breach gives rise to a real chance of serious harm for [the first appellant] or his family.

14    The FCC considered that the RRT decision was not affected by jurisdictional error, at [69]-[90].

Ground 1: The AAT and breaches of the Privacy Act

15    Ground 1, in the notice of appeal, which asserts that the Administrative Appeal Tribunal (AAT) does not have jurisdiction over breaches of the Privacy Act, cannot succeed for a number of reasons. First, it does not appear to be a matter which was argued in the FCC, so the appellants would need leave to raise the ground now. There is no point to a grant of such leave because the RRT (whose jurisdiction is now exercised by the AAT) was not, in relation to the appellants’ claims, exercising a jurisdiction conferred by the Privacy Act in respect of breaches of its provisions. Instead it was exercising the jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth). Secondly, it is not in any event apparent that the RRT or, for that matter, the FCC erred in any material respects in relation to the application of the Privacy Act. The FCC Judge held, correctly in my opinion, that “there is no apparent reason why the existence of ongoing privacy complaints by the applicant or his family are relevant to the Tribunal’s review of the first applicant’s claims for protection”, at [89]. The RRT was not bound by the outcome of complaints made to the Privacy Commissioner, and neither the fact, nor the content, of the complaints altered the obligations of the RRT.

16    This ground of appeal fails.

Ground 2: The High Court proceedings in SZSSJ v Minister for Immigration and Border Protection

17    It was because it was unclear whether the grounds of appeal in SZSSJ may give rise to consideration of the implications of the Data Breach in an analogous context that I considered it appropriate that the appellants have an opportunity to make further submissions once the grounds of appeal in SZSSJ were known.

18    Counsel for the respondent provided a copy of the grounds of appeal to the appellants on the day following the appeal hearing. However, the appellants have not since provided any further submissions, let alone a submission explaining how the appeal in SZSSJ is relevant to the issues in their case. Nevertheless, I have considered whether, in the light of the grounds of appeal to the High Court in SZSSJ, the decision on this appeal should be deferred pending the High Court’s decision.

19    SZSSJ concerns, relevantly, the circumstances of two applicants who, at the time of the Data Breach, had been refused a protection visa and whose applications to the RRT and to the FCC, and the subsequent appeal to this Court, had been dismissed. The occurrence of the Data Breach, and its circumstances, gave rise to further litigation in the FCC and in this Court which it is unnecessary to record presently. Relevantly, however, the Full Court of this Court considered the Department’s obligations of procedural fairness in relation to its undertaking of an International Treaties Obligations Assessment (ITOA). The Full Court held, relevantly, that a decision-maker who invites a claimant to make submissions about what should happen in consequence of the decision-maker’s own failure to adhere to statutory safeguards of confidentiality affecting the claimant, should disclose all information relevant to an assessment of the claim, subject to any proper considerations of confidentiality, and not simply information which is adverse to the claimant, at [121]. The Full Court held further, that the applicants had been denied procedural fairness because they could not make meaningful submissions about Australia’s non-refoulement obligations arising from the disclosure of their personal information without being informed to whom that information had been disclosed, at [149].

20    Four of the grounds for which the Minister has been granted special leave to appeal to the High Court in SZSSJ concern the Full Court’s decision concerning the requirement for procedural fairness. The remaining two grounds raise questions of jurisdiction and construction which do not arise in the present case.

21    The appellants have not identified any particular aspect of the decision of the FCC which will be in question in the appeal in SZSSJ. In particular, it does not appear that the grounds of their application for judicial review in the FCC included a complaint of the kind made by the applicants in SZSSJ.

22    Unlike the circumstances in SZSSJ, the present appellants’ claims do not involve an ITOA assessment at all. As previous noted, the applications for protection visas were determined by the Minister’s delegate and later affirmed by the RRT. Both decisions were made after the Data Breach had occurred and after its occurrence had been made known to the appellants. Further, account was taken of the Data Breach in the determinations of the applications and the appellants made submissions concerning it.

23    The Minister submitted that this meant that the issues in SZSSJ are different from those arising presently. In short, counsel for the Minister submitted that SZSSJ relates to a non-statutory process conducted by officers of the Department and not the statutory process undertaken by the RRT. This difference is material because, amongst other things, the procedural fairness obligations owed by the Tribunal to the appellants were governed by the provisions in Pt 7 Div 4 of the Migration Act.

24    The relevance of the distinction to which the Minister refers has been recognised in the authorities: ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314 at [29]; DZAEH v Minister for Immigration and Border Protection [2016] FCA 54 at [31]-[32]; AAG15 v Minister for Immigration and Border Protection [2016] FCA 67 at [13]-[14], [16]; and DZAEH v Minister for Immigration and Border Protection [2016] FCA 83 at [38].

25    In these circumstances, I do not consider that the appellants have shown a proper basis upon which this Court should defer the decision on their appeal pending the High Court’s decision in SZSSJ.

26    For similar reasons as given in relation to the adjournment application, the appellants have not shown any error in the FCC decision.

Conclusion

27    For these reasons, the appeal is dismissed.

Associate:

Dated:    21 July 2016