FEDERAL COURT OF AUSTRALIA

AKD15 v Minister for Immigration and Border Protection [2017] FCA 166

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1.    This is an appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 24 October 2016: AKD15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2740 (AKD15). In his application to the Federal Circuit Court the appellant sought declaratory and injunctive relief against the first respondent (Minister) in respect of an asserted “future” decision under the Migration Act 1958 (Cth) (Act). The orders sought referred to the “recommendation” of the third respondent, an officer of the Department of Immigration and Border Protection (Department), who conducted an international treaties obligation assessment (ITOA) in respect of the appellant.

background

2.    The appellant is a citizen of China who arrived in Australia on 12 April 2007 on a Sponsored Family Visitor (Subclass 679) visa. That visa expired on 12 July 2007. Notwithstanding that, the appellant remained in Australia unlawfully until he was located by officers of the Department and detained pursuant to s 189 of the Act on 3 July 2012.

3.    On 17 July 2012 the appellant applied for a Protection (Class XA) visa and on 8 August 2012 that application was refused by a delegate of the Minister. The appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for review of the delegate’s decision. On 5 November 2012 the Tribunal affirmed the decision not to grant the appellant a protection visa. The appellant then filed an application for judicial review of the Tribunal’s decision with the Federal Circuit Court, which was dismissed by that court on 15 November 2013. A subsequent appeal to this Court, heard in March 2014, was unsuccessful: SZSHJ v Minister for Immigration and Border Protection [2014] FCA 268.

4.    In February 2014, while the appellant was in immigration detention, personal information relating to him and others in immigration detention on 31 January 2014 was inadvertently and briefly made available on the internet by the Department (Data Breach). On 12 March 2014 the Secretary of the Department wrote to the appellant informing him of the Data Breach and that the information that could be accessed as a result of it was the appellant’s name, date of birth, nationality, gender, details about his detention (when he was detained, the reason and where) and whether he had any other family members in detention. In that letter the appellant was also informed that the information did not include his address (or any former address), phone numbers or any other contact information, nor information about protection claims that he or any other person may have made, nor any other information such as health information. The letter concluded:

The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes. If you would like to see more information about the incident, talk to your case manager.

5.    On 14 July 2014 the Department once again wrote to the appellant. In that letter it referred to its letter dated 12 March 2014 and reiterated the nature of the information that was made available and was not made available as a result of the Data Breach. That letter also included the following:

Currently you do not hold a permanent visa to remain in Australia and may be liable for removal. If you have concerns regarding the impact of the data breach in your case, then you are invited to put those concerns to the department in writing.

Any concerns you have will be considered in addition to any other information you have already provided to the department. If you have any concerns about the impact of the data breach on your ability to return to your home country or country of usual residence, you should give specific reasons as to why you cannot return.

…

If after 14 days no response is received then it will be assumed that you have no information to provide to the department regarding the unintentional data breach and your current immigration circumstances will remain unchanged. Should you have no ongoing immigration matters you will be expected to depart Australia and removal planning will be progressed.

6.    On 21 July 2014 the appellant wrote to the Department in response to its letter dated 14 July 2014. In that letter, among other things, the appellant:

(1)    alleged that any evaluation of Australia’s ITOA with respect to him must take into account the fact that the Department had breached s 336E of the Act by reason of the Data Breach;

(2)    referred to a privacy breach/data management report dated 20 May 2014 prepared by KPMG and aspects of that report that the appellant described as “key findings”;

(3)    alleged that, as the Department disclosed his name and other personal details “to the world on the Internet”, it could not lawfully or ethically investigate whether he had been harmed by “the Department’s own breach of [his] privacy as it would be a conflict of interest”;

(4)    alleged that because the Department disclosed his name and other personal details on the internet there was “no possible way of determining who has accessed and/or saved his personal information”;

(5)    noted that Australia’s non refoulement obligations meant that he should not be sent back to his home country to face a real risk of harm. He alleged that there was no way to know from whom he could face such a risk and that it may go beyond the authorities in his home country, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates. The appellant also alleged that human resources sections of companies and public service departments would have access to the information, which would undermine his ability to find employment, and that foreign governments may use the information as a reason not to grant him visas; and

(6)    submitted that the Privacy Commissioner was the only independent authority that could assess the impact of the risk of harm should he return to his home country. He noted that he had lodged a complaint with the Privacy Commissioner.

7.    By letter dated 14 January 2015 the appellant was informed by the Department that it had commenced an ITOA in order to assess whether the circumstances of his case engaged Australia’s non refoulement obligations as a result of the Data Breach.

8.    On 21 January 2015 the appellant responded to the Department’s letter dated 14 January 2015. In that letter, among other things, the appellant:

(1)    attached the Privacy Commissioner’s report on the Data Breach, the abridged KPMG report and the “Ombudsman Western Australia Guidelines Procedural fairness (natural justice)”;

(2)    submitted that the Department possessed all the information in relation to the Data Breach, in particular the unabridged KPMG report which provided further details of the Data Breach;

(3)    contended that natural justice required all relevant information to be provided before preparation of a reply and that he could not effectively prepare his claim without having access to that information. He further contended that if the Department would not give access to the information then the only course of action open to it was to recognise him as a refugee “sur place”;

(4)    again alleged a breach of s 336E of the Act by the Department and referred to pending matters in the Court; and

(5)    alleged that the Department had placed the decision maker in a position of conflict of interest as he or she was required to make a decision on whether there was a real chance that the appellant would face serious or significant harm upon return to China as a result of the Data Breach, which was caused by the Department.

9.    On 16 February 2015 the third respondent wrote to the appellant inviting him to comment on particular country information and concerns the Department had about his case. In his response dated 17 February 2015, the appellant informed the third respondent that he continued “to rely on all statements and submissions made to the department about [his] claims for protection”.

10.    On 23 March 2015 the ITOA was finalised with a finding that non refoulement obligations were not engaged.

11.    On 26 March 2015 the appellant commenced a proceeding in the Federal Circuit Court. That proceeding was adjourned pending judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 (SZSSJ). After the High Court had handed down its judgment in SZSSJ, the appellant was given an opportunity to file an amended application, further affidavits and submissions, which he did not do, and the matter proceeded to hearing.

12.    On 24 October 2016 the Federal Circuit Court made orders dismissing the appellant’s application with costs.

Proceeding before the Federal Circuit Court

13.    The appellant’s application filed in the Federal Circuit Court contained 19 grounds of review. They are extracted at [21] of AKD15. In his judgment the primary judge found that:

(1)    grounds 1 to 8 did not identify any basis to enliven the court’s jurisdiction. His Honour did not accept that there had been any breach of the appellant’s privacy nor any such breach entitling him to the kind of relief sought: at [22];

(2)    grounds 9 and 15, which alleged that the appellant had a well founded fear arising from the disclosure of his personal information, that his removal from Australia and return to China would involve a breach of Australia’s non refoulement obligations and that the ITOA assessment had found that those obligations were not engaged, challenged the adverse findings made by third respondent and did not raise any error of law: at [23];

(3)    in relation to grounds 10 to 13, which sought to advance an alleged Constitutional issue arising from an alleged representation, there was no real constitutional question raised in those grounds and the proposition as to representation was without substance: at [24];

(4)    ground 14 was a recital of fact and did not identify any basis to grant the relief sought: at [25];

(5)    in relation to ground 16, which alleged a breach of procedural fairness in the ITOA because the third respondent did not disclose “any of the information held by the Department to the applicant in relation to the data breach for comment” and because the third respondent, as a departmental employee, was “in a conflict of interest”, the third respondent had complied with the requirements of procedural fairness in the conduct of the ITOA and the process adopted was a fair process for determining whether Australia had a non refoulement obligation to the appellant: at [25] and [27];

(6)    ground 17 did not articulate or identify any jurisdictional error: at [26]; and

(7)    in relation to grounds 18 and 19, which concerned the declaratory relief sought, no proper basis had been made out to grant the relief sought and the removal of the appellant from Australia without further assessment of its non refoulement obligations would not involve any error of law: at [26].

the appeal

14.    On 11 November 2016 the appellant filed a notice of appeal appealing from the whole of the judgment in AKD15. That notice of appeal provided no grounds but rather included the following statement:

Grounds will be provided once Judge Street releases his judgment.

15.    At the time the notice of appeal was filed the appellant had legal representation. On 14 February 2017 the appellant’s solicitor filed a notice of intention to cease to act.

16.    On 16 February 2017 the appellant filed submissions annexing a draft notice of appeal which included one ground of appeal as follows:

    [T]he Federal Circuit Court erred in failing to find that the review asked herself the wrong question of misdirected herself.

Particulars

a.    Unlike the jurisdiction of the department and the Tribunal which considers the Refugee Convention and Complementary Protection, an ITOA assessment considers Australia's non-refoulement obligation not to forcibly return, deport or expel a person to a place where he will be at risk of a specific harm; Article 33 of the Refugee Convention, Article 3 of the Convention Against torture and articles 6 and 7 of the International Covenant of Civil and Political Rights.

b.    In a letter dated 16 February 2015 at [CB90] the Third Respondent wrote:

This ITOA will only address claims and country information which have not previously been address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken.

c.    At CB103 the reviewer found as follows:

The claimant's claims were comprehensively assessed during the PV application process. It is noted that neither the delegate who initially assessed the claimant's protection claims not the RRT found the claimant to be a person to whom Australia has protection obligations.... there is no indication that there was any legal error in the department's and the RRT's decisions

d.    At CB104 the reviewer found as follows:

Consequently, in light of the evidence before me, I consider the findings of the RRT in relation to the claimant's protection claims continue to be valid and effective.

e.    At [15] of the Federal Circuit court decision this finding was noted "the applicant had not provided any new information to contradict the earlier findings.

f.    The Federal Circuit Court erred in failing to find that the reviewer incorrectly focused upon previous adverse findings rather than the underlying reasoning in relation to the applicant's claims and fears (SZUBX v Minister for Immigration [2015] FCCA 2822).

(errors in original)

17.    The proposed ground was not raised before the primary judge and the appellant would require leave to raise it for the first time in this Court. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48] a Full Court of this Court (Kiefel, Weinberg and Stone JJ) said:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

18.    The appellant has not offered any explanation for his failure to raise this ground below. He can only be permitted to raise it if it clearly has merit.

Application for an adjournment

19.    At the commencement of the hearing the appellant applied for an adjournment so that he could retain a lawyer. He submitted that he does not understand Australian law; that his former lawyer had promised to represent him and only in the previous week had he been informed that was no longer the case. The respondents opposed the application for an adjournment. They submitted that the notice of intention to cease to act had been filed six days prior to the hearing; that no steps had been taken by the appellant to obtain alternative representation; and that rather than file an application for an adjournment the appellant had filed submissions in his own name purporting to deal with the arguments and the proposed ground of appeal and the respondents had prepared on that basis.

20.    I declined to grant the adjournment. The appeal was commenced on 11 November 2016, more than three months prior to the hearing, at which time the appellant had a solicitor acting for him. Six days prior to the hearing the appellant’s solicitor had filed a notice of intention to cease to act with the Court. There was no evidence that the appellant had taken any steps in the intervening period to secure alternative representation or any explanation provided as to what he proposed to do to obtain representation. Rather, the appellant filed submissions and a draft notice of appeal signalling an intention to proceed.

consideration

21.    In his written submissions the appellant submitted that the third respondent had relied upon findings made by the Tribunal which predated the representation to the appellant that an assessment would occur and that these findings were adverse and determinative of the appellant’s claims. The appellant further submitted that the third respondent had deflected the task of making an assessment of the consequences of the Data Breach for the appellant personally with the findings ultimately “anchored” to the earlier decisions. Thus, the appellant contended that the assessment had not occurred and the representations in the 12 March 2014 letter that the Department would assess the consequences of the Data Breach personally and those representations in the third respondent’s letter dated 15 February 2015 had been rendered meaningless. The appellant relies on the decision of the Federal Circuit Court in SZUBX v Minister for Immigration and Border Protection & Anor [2015] FCCA 2822 (SZUBX) (Street FCCJ).

22.    At the hearing the appellant submitted that the Department had revealed his personal information, which was unfair and had caused him personal anxiety; that he came to Australia from China as if he were a refugee, had been in Australia for 10 years and spent three to four years in detention; that last month he attended the Chinese consulate to renew his passport, which had expired, and last week the consulate called him and said: “you applied for refugee status, protection, in Australia”; that the Chinese government had learnt “everything about [him]”; and that the consulate kept his passport and he still does not have one.

23.    Turning first to the appellant’s oral submissions. They did not address the ground proposed in the draft notice of appeal but rather raised what could be described as personal concerns and alleged effects of the Data Breach. The unfairness of and anxiety caused to the appellant by the Data Breach are matters that go to the merits of the appellant’s claim arising from the Data Breach. They are not matters for this Court. Nor are the appellant’s alleged dealings with the Chinese consulate matters that this Court can take into account on appeal. The Court’s task is confined to considering whether there is any appellable error in the judgment in AKD15.

24.    In order to consider the appellant’s proposed ground of appeal it is necessary to first consider the judgment in SZUBX. There the applicant had been informed that the ITOA would assess “whether there are any non-refoulement concerns” preventing the Department from progressing removal arrangements and was invited to attend an interview as part of the process. The applicant was “informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous officers”: SZUBX at [10]. Judge Street found that this was not a correct focus in relation to the assessment of Australia’s non refoulement obligations to the applicant.

25.    His Honour held that it was a breach of procedural fairness to conduct the ITOA interview on the basis that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers, in circumstances where he had been invited to attend an interview for the purpose of assessing whether Australia owed the applicant a non refoulement obligation: SZUBX at [15]. Judge Street accepted the applicant’s submission that, “in substance, the assessor deflected himself from the appropriate task by focusing upon explanations as to disagreement with the findings of previous officers, which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears”: SZUBX at [16].

26.    Judge Street found that the assessor’s reasoning demonstrated a focus on previous adverse findings and that there was an “over-focus and anchoring effect in the present case by the assessor to a task of seeking explanation on adverse findings”, which was not the correct task in assessing non refoulement obligations: SZUBX at [21]. His Honour held that the requisite practical injustice consisted of “the interview conducted in this deflected and anchored way”: SZUBX at [22].

27.    I accept the respondents’ submission that the decision in SZUBX can be distinguished from this case on the following bases:

(1)    first, in this case the third respondent did not conduct an interview with the appellant for the purposes of the ITOA. Thus the question as to whether an interview was conducted in the “deflected” manner identified in SZUBX does not arise;

(2)    secondly, the third respondent did not make any statement during the course of the ITOA suggesting that he was focusing on the appellant’s explanations for disagreeing with previous findings made by other officers in assessing his protection claims;

(3)    thirdly, the third respondent’s letter dated 16 February 2015 expressly stated that the ITOA would “only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken” and attached a document setting out the adverse information he intended to consider in the ITOA. The appellant was invited to comment on the adverse information and provided the response referred to at [9] above. Neither the attachment to the letter nor the ITOA itself disclose an inappropriate focus on the appellant’s explanations for disagreeing with previous findings made about the appellant. In the attachment the third respondent referred to the appellant’s application for a protection visa and the rejection and subsequent reviews of that application. The third respondent noted that there was “no indication that there was any legal error in the department’s and the RRT’s decisions”. The ITOA also referred to the appellant’s previous claims for protection and their assessment, again concluding that there was “no indication that there was any legal error in the department’s and the RRT’s decisions”;

(4)    fourthly, in contrast to SZUBX, it had been made clear to the appellant in the letters sent to him that the purpose of the ITOA process was to assess whether he engaged Australia’s non refoulement obligations as a result of the Data Breach, not to redetermine his previous claims made on other bases or to consider his explanations for disagreeing with previous adverse findings:

(a)    the letter dated 14 January 2015 from the Department notifying the appellant of the commencement of the ITOA provided:

The reason the department has commenced this ITOA is that some of your personal information was included in a routine report released on the department’s website unintentionally enabling access to personal information about people who were in immigration detention on 31 January 2104. Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA.

And:

This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.

(emphasis added); and

(b)    the letter dated 16 February 2015 from the third respondent provided that the ITOA would only consider claims and country information not previously addressed in any prior protection obligations assessment (see subpara (3) above); and

(5)    fifthly, the third respondent’s findings were not anchored to earlier decisions as submitted by the appellant. The third respondent had regard to the Tribunal’s finding that the appellant did not have an adverse profile with the Chinese authorities at the time he left China, thus focusing on the underlying reasoning in relation to his claims and fears: see SZUBX at [16]. But the third respondent then went on to consider whether there had been any change in the appellant’s circumstances since his protection claims had been assessed, whether there was any new information which suggested that he had been involved in activities in Australia that would bring him to the adverse attention of the Chinese authorities and considered his claimed fears as a result of the Data Breach.

28.    In this case the primary judge correctly held that the ITOA assessment provided the appellant with “a real and genuine opportunity to respond to the information raised in the letter dated 16 February 2015 as to whether Australia had any non-refoulement obligation arising out of the data breach”: AKD15 at [13]. In the ITOA the third respondent made an assessment of the appellant’s claims arising from the Data Breach taking into account all of the information available to him about the appellant’s profile with the authorities in China and others whom he claimed may have accessed his information. In contrast to the position in SZUBX, the third respondent undertook the task consistently with the statements made to the appellant about the purpose of the ITOA and what he would consider. The third respondent did not, as submitted by the appellant, “deflect the task of making an assessment of the consequences of the data breach for the appellant personally”.

29.    Finally, as submitted by the respondents, the breach of procedural fairness identified in SZUBX was not, as the appellant suggests, reliance on earlier findings made by the Department or Tribunal. It was the focus by the assessor in that case on the applicant’s explanations as to disagreements with previous findings, rather than on the underlying reasoning as to the applicant’s claims and fears. Contrary to the appellant’s submissions, procedural fairness did not require the third respondent to redetermine all of the appellant’s previous claims in order to lawfully conduct the ITOA.

30.    For these reasons, in my opinion, the proposed ground in the draft notice of appeal is without merit and I would not grant leave to the appellant to raise it. It follows that the appeal should be dismissed and that the appellant should pay the respondents’ costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    2 March 2017