FEDERAL COURT OF AUSTRALIA

AZT15 v Minister for Immigration and Border Protection [2017] FCA 191

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    The appellant is a citizen of Malta who immigrated to Australia with his family in 1981 when he was a four year old child. The appellant briefly returned to Malta between 1985 and 1988, but has not departed Australia since 1988. The appellant never became an Australian citizen.

2    In late 2004, the appellant was convicted of two counts of attempted incest against his step-daughter. Further, in 2005, the appellant was convicted of the rape of his ex-de facto partner, and was sentenced to nine years and three months imprisonment. This sentence was subsequently reduced on appeal, to imprisonment for a non-parole period of five years.

3    In May 2010, a delegate of the Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (the Minister), cancelled the appellant’s permanent residency visa on character grounds, pursuant to s 501(2) of the Migration Act 1958 (Cth). Consequently, on 5 July 2010, upon his release from prison on parole, the appellant was placed into immigration detention at the Maribyrnong immigration detention centre in Victoria. However, following a review by the Administrative Appeals Tribunal (the AAT), on 17 August 2010, the visa cancellation decision was set aside and the appellant was released from immigration detention though he remained on parole. The Minister’s appeal to this Court from the AAT decision was dismissed on 19 July 2011.

4    In February 2012, the Minister, pursuant to s 501A(2) of the Migration Act, cancelled the appellant’s permanent residency visa on character grounds.

5    On 16 February 2012, as a result of the Minister cancelling his visa under s 501A, the appellant was again taken into immigration detention at the Maribyrnong immigration detention centre in Victoria. The appellant has been in immigration detention since that time.

6    On 15 July 2013, the Herald Sun newspaper published an article which stated that the appellant had been gaoled for raping his ex-de facto partner and also that his ex-de facto partner had told the court that she had found him raping her 12 year old daughter. The article also referred to the fact that the appellant was then being detained in immigration detention.

7    In late January 2014, there was a data breach by the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department). By reason of that data breach, the department’s website revealed, among other information, the appellant’s name and that he was in immigration detention and that his visa had been cancelled on character grounds. It did not include the appellant’s contact details nor any details about his criminal history.

8    On 30 July 2014, the appellant’s case was the subject of a report on the Australian television programme “A Current Affair”. There was also a report about the appellant’s case on the “A Current Affair” webpage. This report included a picture of the appellant which showed that he had tattoos on his upper body. There was also a photograph of the appellant’s mother in the report, which was subsequently taken down. This report attracted comments hostile to the appellant from readers of the “A Current Affair” webpage.

9    On 31 July 2014, Malta Today, a newspaper in Malta, published an article headed “Australia wants to deport Maltese ‘sex predator’”, on its website which referred to the “A Current Affair” programme report on the appellant. The Malta Today article contained a photograph of the appellant and a link to the “A Current Affair” website and its report about the appellant. The Malta Today article also appeared on its Facebook page.

10    The appellant’s aunt (his mother’s sister), who is, and was at that time, resident in Malta, saw the article on the Malta Today webpage.

11    Further, at around this time, the appellant was identified on an internet Facebook page called “Australian Child Abusers Named and Shamed”. This webpage included a photograph of the appellant sitting with his young son, in the immigration detention centre, whilst his son was on a visit to the appellant. This entry on the website also attracted numerous comments hostile to the appellant.

12    On 27 November 2014, whilst in immigration detention, the appellant applied for a protection visa on the ground that because he was a convicted child sex offender, he believed he would be “attacked and seriously harmed” if he was to be returned to Malta. The protection visa application also claimed that the appellant suffered from diabetes and depression and that he would be homeless if he was returned to Malta.

13    On 28 January 2015, the appellant’s protection visa application was refused by a delegate of the Minister.

14    On 4 February 2015, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The appellant was represented by a solicitor in respect of his Tribunal application.

15    The appellant’s representative made written submissions, dated 4 March 2015 and 11 March 2015. The appellant contended that there was a real risk that he would be attacked by persons in Malta because he was a sex offender and so feared he would suffer serious harm. He also said he feared that he would not be able to find work, that he would be ineligible for social security unemployment benefits, or medical assistance and that he would become homeless. He also said, in substance, that he would not be protected from vigilantes and other persons intent on causing him harm, by a Maltese government.

16    On 12 March 2015, the Tribunal held a hearing at Melbourne. The appellant attended the hearing and gave evidence. Following the hearing, on 9 April 2015, the appellant’s representative made further written submissions to the Tribunal.

17    On 7 May 2015, the Tribunal affirmed the decision of the delegate to refuse to grant the appellant a protection visa.

18    On 11 June 2015, the appellant filed an application for judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia (the Federal Circuit Court).

19    On 28 August 2015, the appellant was transferred from immigration detention at the Maribyrnong immigration detention centre in Victoria to the immigration detention centre on Christmas Island.

20    On 12 April 2016, the appellant’s application for judicial review was heard by the Federal Circuit Court.

21    On 14 July 2016, the Federal Circuit Court dismissed the appellant’s application for judicial review.

22    On 25 July 2016, the appellant appealed to this Court from the order of the Federal Circuit Court dismissing the appellant’s application for judicial review.

23    On 11 August 2016, the appellant was transferred from the immigration detention centre on Christmas Island to an immigration detention centre at Yongah Hill in Northam, Western Australia. The appellant was being detained in that detention centre at the time of the hearing of the appeal.

THE TRIBUNAL

24    As mentioned, the Tribunal dismissed the appellant’s application for a review of the decision of the delegate.

25    The Tribunal accepted that the appellant, and his criminal history, had been the subject of publicity in the media; and that this included a report of that information on the website of Malta Today on 31 July 2014. The Tribunal also accepted that there was material which disclosed that the appellant was a child sex offender on other internet media which were accessible in Malta.

26    The Tribunal, however, did not consider that the people and media in Malta would have, nor would there be a real chance of them having, a particular interest in the appellant and the nature of his crimes. The Tribunal observed that the crimes were committed over 10 years ago in a country outside of Malta and there was only one article, being that which appeared on the Malta Today webpage that named the appellant in the Maltese media.

27    The Tribunal also said that hostile comments regarding the appellant had been made on a number of internet sites but that there was no evidence that the persons making the comments were resident in, or from, Malta.

28    The Tribunal also accepted that there was a real chance that persons associated with his ex-de facto partner would inform associates or relatives in Malta of his return to Malta. However, the Tribunal observed that the appellant was not able to refer to specific threats; and in the absence of specific threats, the Tribunal found that it was remote that relatives, or anyone else, would harm him. The Tribunal also observed that the appellant’s aunt - who resides in Malta - had said that she and her family did not want anything to do with the appellant, and she had warned her sister that the safety of the appellant would be threatened if he were to return to Malta. However, the Tribunal considered his aunt’s comments to be “a general and unspecified warning about his safety” and were, therefore, not taken to indicate that any individual in Malta was presently motivated to harm the appellant nor did the comments indicate that any individual would become so motivated if the appellant was returned to Malta.

29    The Tribunal also observed that the appellant’s personal details had been inadvertently made available online on the department’s website on 31 January 2014. As mentioned, these details included the appellant’s name, date of birth, nationality, gender, location and time of detention and the fact that his permanent residency visa had been cancelled on character grounds. However, the Tribunal observed that the published information did not include the details of the appellant’s convictions, and, therefore, the Tribunal considered that the publication of this limited level of information would not have caused him to come to the “adverse attention” of the Maltese public, such that there was a real chance or real risk of harm if he was to return to Malta.

30    In considering whether there was a real risk of the appellant suffering serious or significant harm if returned to Malta, the Tribunal also referred to a report put forward by the appellant’s representative, about the risk of paedophiles in Malta being exposed to vendettas and vigilantes. However, the Tribunal said that it had been unable to find any reports of vigilantes or individuals actively targeting convicted paedophiles or sex offenders in Malta.

31    The Tribunal also observed that there was a law which, in January 2012, established the child sex offender register in Malta and that country information showed that the law did not operate retrospectively. Therefore, said the Tribunal, the register would not refer to the appellant and, in any event, the register was not available for public viewing.

32    Further, the Tribunal did not accept that the appellant would be unable to find work. The Tribunal observed that the appellant was a man in his 30s with significant work experience and qualifications in a number of different fields. The Tribunal observed that 60% of employers in Malta did not ask for a police clearance certificate.

33    The Tribunal also observed that the health services in Malta were generally free at point of use and the Tribunal did not accept that the appellant would not be able to access health services or medication for his diabetes and depression or any other health issues.

34    Further, the Tribunal did not accept that the appellant would not qualify for unemployment benefits, nor that he would be homeless.

35    Given these considerations, the Tribunal accepted that the appellant was a member of the particular social groups of “convicted criminals”, “convicted sex offenders”, “convicted child sex offenders”, “ex-prisoners”, “criminal removes” and “mental health sufferers in Malta”. However, the Tribunal did not accept that there was a real risk that the appellant will be persecuted by reason of his membership of these particular social groups if returned to Malta.

36    Finally, the Tribunal considered the question of State protection. The Tribunal also observed that Malta’s High Commissioner to Australia had expressed reluctance about issuing a travel document for the appellant to return to Malta, but the Tribunal did not accept that this meant that the Maltese State would not take steps to protect the appellant were he to be returned to Malta.

37    The Tribunal observed that Malta has a constitution that prohibits discrimination, respected judicial independence and a considerable and well-trained police force given the country’s geographical size and population. Further, the Minister for Home Affairs in Malta stated in January 2015:

We need to look at the reintegration of sex offenders from the aspect of vulnerable people.

38    The Tribunal found that for these reasons, the Maltese State would be willing and able to assist the appellant if he were targeted upon his return. Accordingly, the Tribunal considered that the appellant would be able to access a level of State protection if he was returned to Malta.

THE FEDERAL CIRCUIT COURT

39    The Federal Circuit Court, in a concise judgment, rejected, as mentioned, the appellant’s application for judicial review.

40    The Federal Circuit Court considered that the Tribunal had cited and applied the correct law when determining that the appellant did not meet the requirements for the grant of a protection visa.

41    The Federal Circuit Court found that the department’s data breach did not give rise to any jurisdictional error.

42    The Federal Circuit Court stated that the Tribunal had considered and rejected the appellant’s core claims on the basis of “credibility findings”. The Federal Circuit Court held that such findings by the Tribunal were findings of fact par excellence. The Tribunal’s findings, said the Federal Circuit Court, were open on the evidence before it, and no jurisdictional error was apparent in the decision record of the Tribunal.

THE APPEAL proceeding

43    Before this Court, the appellant filed an amended notice of appeal, dated 3 November 2016.

The interlocutory applications

44    In addition to the amended notice of appeal, the appellant also filed two interlocutory applications.

45    By the first interlocutory application, dated 23 August 2016, the appellant sought an interlocutory injunction restraining the Minister from returning the appellant to the Christmas Island immigration detention centre and requiring the Minister either to return him to Maribyrnong immigration detention centre, or to continue to detain him at the Yongah Hill immigration detention centre. The interlocutory application, which was filed at the time that the appellant anticipated that his appeal would be listed for hearing in Melbourne, also claimed relief by way of habeas corpus that the appellant be produced at the hearing of the appeal in Melbourne.

46    By the second interlocutory application, dated 3 November 2016, the appellant sought leave to adduce further evidence on appeal that was not before the Tribunal or the Federal Circuit Court.

47    At the hearing, I dismissed both of the interlocutory applications and said that I would give my reasons at the time that I delivered judgment in relation to the appeal.

48    The application for the interlocutory injunction was made in the appellate jurisdiction, and not in the original jurisdiction. The appellant made this application, therefore, in the absence of having commenced an originating application in which he alleged a cause of action against the Minister, and in which he sought final relief.

49    The Court, however, has power, pursuant to s 256 of the Migration Act, to make orders in respect of the appellant’s place of immigration detention. That section provides as follows:

Person in immigration detention may have access to certain advice, facilities etc

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention…afford to him or her all reasonable facilities…for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

50    In NAFC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99, the applicant, who was resident in Sydney, had been notified that his protection visa had been cancelled and he was taken into custody with a view to his transportation to Woomera immigration detention centre in South Australia later that day. The applicant immediately brought an application for review of the cancellation decision in the Refugee Review Tribunal and an application in this Court under s 256 of the Migration Act seeking to restrain the Minister from removing him to Woomera.

51    Beaumont J observed at [47]-[49]:

47    The key element in the provisions of s 256, in my opinion, is the concept of “reasonable facilities”. It appears that these words were intended to have their ordinary meaning. The primary dictionary definition of “facility” is “something that makes possible the easier performance of any action”.

48    The appropriate dictionary definition of “reasonable” appears to be “not excessive”, as in “reasonable terms” (Macquarie Dictionary); or “within the limits of reason; not greatly more or less than might be thought likely or appropriate” (The New Shorter Oxford English Dictionary). As Gaudron J observed in an analogous context (Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at 332 [53]; 177 ALR 585 at 599 [53]) these are ordinary words bearing their ordinary meaning, and the question “requires no more than a making of a value judgment in the light of all the facts”.

49    Thus, so far as concerns the application of s 256 here, the real question, as the Minister has submitted is essentially one of fact, an issue to be resolved primarily upon the evidence adduced for the Minister from Ms McPaul, as to the facilities proposed to be made available, to which reference will be made shortly.

52    The power that the Court has to make orders, pursuant to s 256 of the Migration Act, as to the detention of a person, includes the power to make such orders to facilitate an appellant in detention in conducting an appeal proceeding.

53    However, in my view, the fair and proper determination of this appeal, does not call for the making of the orders sought by the appellant. The appellant was transferred to the immigration detention centre closest to the Court in Perth some three months prior to the hearing of the appeal, and has not been impeded in his conduct of this proceeding. The appellant has been able to commence this appeal, file his interlocutory applications, serve and file affidavits in support of his interlocutory applications and draft and file submissions in support of his appeal. In addition, the appellant was present personally in Court, and presented extensive oral submissions. Accordingly, I dismissed the interlocutory injunction application, insofar as the appellant relied upon s 256 of the Migration Act.

54    As to the appellant’s interlocutory injunction application more generally, in his affidavit in support of his application for the interlocutory injunction, the appellant referred to considerations relating to his health and the deleterious effect of not being able to see his family and, in particular, his son of five years of age. However, as mentioned, the appellant’s application for the interlocutory injunction was not made in furtherance of a primary proceeding in which a cause of action was alleged and final relief was sought in the original jurisdiction of the Court. In those circumstances, the application for the interlocutory injunction was misconceived (Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 and SZTYO v Minister for Immigration and Border Protection (2015) 231 FCR 376), and I dismissed it on that basis.

55    I observe, in passing, that in the case of SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29 (SBEG), the applicant sought injunctive relief in relation to the manner of SBEG’s immigration detention. However, that application was commenced in the original jurisdiction of this Court, alleging negligence against the Commonwealth, the Minister and the Secretary of the department.

56    Further, the habeas corpus application was inutile. This is because the appeal proceeding was ultimately heard in Perth, not Melbourne, and the appellant was present in Court in person to present his case.

57    In those circumstances, I dismissed the appellant’s first interlocutory application.

58    As to the second interlocutory application, the appellant applied to adduce into evidence at the hearing of the appeal, the following documents:

(i)    Ministerial Intervention under section 195A of the Migration Act 1958 (the Act).

(ii)    Media Publicity after the Federal Circuit Court Final Hearing on 12 April 2016.

(iii)    Petition after the Federal Circuit Court Final Hearing on 12 April 2016.

(iv)    Articles uploaded onto Google on the Internet after the Federal Circuit Court Final Hearing on 12 April 2016.

59    The appellant deposed in his affidavit, affirmed on 2 November 2016, that he had been required to obtain the ministerial intervention document by an Freedom of Information application, because the original document had been in a bag which Serco’s officers on Christmas Island had lost. The appellant had only received the document after the hearing in the Federal Circuit Court had concluded.

60    The ministerial intervention document relates to whether the Minister would consider whether to intervene, pursuant to s 195A of the Migration Act, by granting the appellant a visa which would release the appellant from immigration detention pending his removal from Australia. The Minister ultimately decided not to consider such an intervention. There is no basis to receive the document into evidence. The Tribunal was aware of the relevant part of the document, namely, the reluctant attitude of the Maltese authorities to the prospect of the appellant’s return to Malta; and the Tribunal dealt with this issue.

61    The remaining documents concern, in essence, public commentary and reaction on internet sites to the appellant, since the date of the Federal Circuit Court hearing. These documents do not relate to the question of whether the Tribunal has committed a jurisdictional error in respect of the appellant’s case. Thus, the documents are of no relevance to this appeal.

the SUBSTANTIVE APPeal

62    The amended grounds of appeal are as follows:

1.    Her honour Judge Hartnett erred in law for not finding that the Decision of the Refugee Review Tribunal as it was known then but now known as the Administrative Appeals Tribunal is affected by Jurisdictional Error in that Judgement on 14 July 2016 ‘Breached natural Justice’.

2.    Her honour Judge Hartnett erred in law for not finding that the Decision of the Refugee Review Tribunal as it was known then but now known as the Administrative Appeals Tribunal is affected by Jurisdictional Error in that Judgement on 14 July 2016 ‘Relied on irrelevant material’.

3.    Her honour Judge Hartnett erred in law for not finding that the Decision of the Refugee Review Tribunal as it was known then but now known as the Administrative Appeals Tribunal is affected by Jurisdictional Error in that Judgement on 14 July 2016 ‘Ignored relevant material’.

4.    Her honour Judge Hartnett erred in law for not finding that the Decision of the Refugee Review Tribunal as it was known then but now known as the Administrative Appeals Tribunal is affected by Jurisdictional Error in that Judgement on 14 July 2016 ‘Failed to acknowledge that because of the “DATA BREACH” in February 2014, the Privacy Act 1988 (Cth) s14 was Breached twice under IPP 4 and IPP 11 by the First Respondent’.

5.    Her honour Judge Hartnett erred in law for not finding that the Decision of the Refugee Review Tribunal as it was known then but now known as the Administrative Appeals Tribunal is affected by Jurisdictional Error in that Judgement on 14 July 2016 ‘Did not take into account mandatory relevant information’.

63    The appellant filed written submissions which ran to 89 pages. Further, the appellant made extensive oral submissions at the hearing of this appeal.

64    The written submissions did nominally purport to address each of the five grounds of appeal separately. However, the content of the submissions was overwhelmingly addressed to expressing disagreement with the findings of fact made by the Tribunal, and the merits of the Tribunal’s decision.

65    I will, notwithstanding this circumstance, address each of the grounds of appeal as formulated by the appellant.

The first ground of appeal – procedural fairness

66    The first ground of appeal, in essence, contended that the primary judge failed to find that the appellant had been denied procedural fairness. In his written submissions addressed to this ground of appeal, the appellant complained about findings made by the Tribunal as to his work experience and the reluctance of the Maltese government to issue the appellant with a travel document. The appellant also referred to orders made in the proceeding before the AAT in 2010.

67    The matters referred to by the appellant in his submissions do not demonstrate that the Tribunal denied the appellant procedural fairness. The complaints about the Tribunal are directed to the merits of the Tribunal’s decision and do not address any issue of procedural fairness by the Tribunal. The reference to the 2010 AAT proceeding is irrelevant.

68    Accordingly, in my view, the primary judge did not err when her Honour found that the appellant had not been denied procedural fairness. To the contrary, the Court book shows that the appellant was competently represented in his dealings with the Tribunal before the hearing, as well as at, and after, the Tribunal hearing. The appellant’s legal representative presented detailed submissions to the Tribunal, both before and after the Tribunal hearing. Further, the appellant appeared at the hearing and gave evidence.

69    Accordingly, in my view, the first ground of appeal is dismissed.

The second ground of appeal – irrelevant material

70    The second ground of appeal contended that the primary judge had erred in failing to find that the Tribunal had fallen into jurisdictional error on the grounds that it had relied on irrelevant material.

71    In his written submissions, under this ground of appeal, first, the appellant complained, in effect, that the Tribunal erred in finding that the appellant would not be denied State protection from persons who might seek to harm him if he was returned to Malta.

72    Secondly, the appellant also took issue with the Tribunal’s finding that he would, notwithstanding not having contributed to an unemployment benefit scheme, be eligible for a form of non-contributory unemployment benefit.

73    Thirdly, the appellant took issue with the Tribunal’s finding that he would have access to medical assistance for his diabetes and depression and other ailments.

74    In relation to the first complaint, the appellant drew attention to the fact that Malta’s High Commissioner to Australia had said that the Maltese authorities were reluctant to arrange a travel document to permit the appellant to travel to Malta since he had left Malta at the age of four years old, and had grown up in Australia, and so the fact that he had subsequently committed crimes as an adult, were issues more associated with Australia than Malta. The Tribunal, however, took that circumstance into account and found that, notwithstanding the reluctance expressed by Malta, the system of government and protections inherent in the Maltese legal system and the nature of its police force were such that, if the appellant were returned to Malta, he would not be denied State protection.

75    The primary judge found that this was a finding which was open to the Tribunal on the evidence. I agree.

76    As to the second of the appellant’s complaints, the appellant’s representative before the Tribunal, presented country information to the effect that the appellant would not be entitled to an unemployment benefit if he was to return to Malta, as he had not made contributions. However, the Tribunal did its own research in relation to available unemployment benefits in Malta and found more recent country information to the effect that a person in the appellant’s situation would be entitled to a limited unemployment benefit, notwithstanding having not made any contribution. The Tribunal went on to prefer the country information which its own research had revealed.

77    It is well recognised that the weight to be given to country information is a matter within the jurisdiction of the Tribunal. In the case of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], the Full Court (Gray, Tamberlin and Lander JJ) observed:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance” as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.

78    Therefore, as the primary judge found, it was open to the Tribunal to have preferred the country information which its own research had revealed.

79    Thirdly, as to the Tribunal’s views on the accessibility of medical assistance for a person in the appellant’s position, in my view, for the reasons which the Tribunal gave, it was open to the Tribunal to have come to the view that it did.

80    Accordingly, in my view, the arguments advanced by the appellant under the rubric of the second ground of appeal do not demonstrate that the Tribunal fell into jurisdictional error. Rather, as the primary judge found, these were findings which were open to the Tribunal.

81    Accordingly, the second ground of appeal is dismissed.

The third ground of appeal – ignoring relevant material

82    The third ground of appeal is that the primary judge erred by failing to hold that the Tribunal had fallen into jurisdictional error because it had “ignored relevant material”.

83    Under the heading of the third ground of appeal, the appellant complained in his submissions about the Tribunal’s finding that it was not satisfied that there was a real chance that the appellant would be subjected to serious or significant harm from persons in Malta who would target him if he was to return to Malta.

84    The appellant contended that the Tribunal had underestimated the extent of the information which was available about him on the internet. In particular, the appellant argued that the Tribunal had failed to take into account information presented to it which showed that a number of persons in Malta had responded in a hostile manner on the Malta Today Facebook page in relation to the article which it had published on 31 July 2014, which referred to the “A Current Affair” programme.

85    The information to which the appellant referred was contained in submissions of 4 March 2015 which the appellant’s representative sent to the Tribunal prior to the hearing. Those submissions referred to the article published in Malta Today on 31 July 2014 and went on to state that the article attracted 75 comments on the Facebook page. The submissions then set out six of the comments. One of the comments stated:

Sentence him to death not sending him to mess with our children. Get rid of rubbish

86    Another stated:

The beauty of Malta being such a small country in comparison to others, is that it becomes much more difficult to fade into the background and hide away. I’m sure many in Malta will be happy to give [the appellant] the welcome home he deserves; as you can bet money he will have left behind victims and their families who will relish the opportunity to give this animal some true justice.

87    The appellant complains that the Tribunal did not refer to this material in considering the significance of the risk of harm that he faced should he be returned to Malta.

88    In addition, the appellant repeated his disagreement with the finding that the Tribunal was not satisfied that the State would deny him protection from any vigilante group or any other person who may wish to cause him harm.

89    In this regard, the appellant referred to another item of country information, to which his representative had referred in her submissions to the Tribunal of 4 March 2015. This was an article which had appeared in a newspaper in Malta in 2008 headed: “Condemned to shame”. The appellant complained that the Tribunal had not referred to this article in its reasons. The article pointed out that there were potential risks that the confidentiality provisions associated with the child sex offender register in Malta might not be observed.

90    It is the case that the Tribunal did not refer to the comments on the Malta Today Facebook page to which I have referred at [84]-[86] above. However, in my view, the failure of the Tribunal to refer to this material does not mean that the Tribunal fell into jurisdictional error.

91    It is not apparent from the materials in the Court book that evidence of the Malta Today Facebook page was ever placed before the Tribunal, other than by means of the appellant’s representative’s submissions referred to above.

92    However, in any event, the comments on that Facebook page are no more than the expression of hostile opinion by readers of the Malta Today article, and do not amount to anything more than that. It is apparent that these comments express hostile views in strong and sometimes vulgar language, but it does not follow that, without more, any of these comments is to be construed as a serious expression of intent by the commentator to cause physical harm to the appellant. It was open to the Tribunal to treat the hostile comments in that way and give those comments little or no weight. In this regard, it is significant that the Tribunal addressed what was, in my view, the relevant consideration, namely, whether the appellant knew of any threat by any specific person or persons to cause him serious or significant harm. The Tribunal raised the matter with the appellant at the hearing. In its reasons, the Tribunal recorded that the appellant was not able to identify any specific and realistic threat by any specific person. In my view, it was open to the Tribunal to find that it was not satisfied that there was a real chance that the appellant would suffer serious or significant harm by reason of being identified as a child sex offender if he were to be returned to Malta.

93    There was, accordingly, in my view, no jurisdictional error, and the primary judge did not err by so holding.

94    As to the appellant’s repetition of the complaint that the Tribunal preferred the country information regarding unemployment benefits to the information provided by his representative, I refer to my observations at [76]-[78] above, which also apply to this complaint.

95    As to the complaint that the Tribunal failed to address, in its decision record, the newspaper article, “Condemned to shame”, it is not incumbent upon the Tribunal to mention every item of evidence which is referred to the Tribunal (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]). It was open to the Tribunal to ignore the evidence of the article because it was speculative and, in any event, the Tribunal found that the appellant’s convictions would not be recorded on Malta’s child sex offender register, because it was not retrospective.

96    As I have previously said, it was open to the Tribunal, on the basis of the evidence that was before it, to make the findings which it did in relation to the risk that the appellant would be denied the benefit of State protection from vigilantes and any persons intent on causing him harm.

97    It follows that the primary judge did not err in holding to that effect.

98    It also follows that the third ground of appeal is dismissed.

The fourth ground of appeal – the data breach

99    The fourth ground of appeal alleged that the Tribunal committed a jurisdictional error as it failed to acknowledge that a data breach by the department, which occurred in respect of information about the appellant in late January 2014, constituted a breach of s 14 of the Privacy Act 1988 (Cth).

100    In support of ground four, the appellant referred to the decision of the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1 (SZSSJ). In SZSSJ, the jurisdictional error which the Full Court found was not by reason of a breach of the Privacy Act, but rather that the department’s data breach, and associated actions of the department, had constituted a failure to provide procedural fairness. I observe, in passing, that the Full Court’s decision in SZSSJ was set aside by the High Court of Australia (Minister for Immigration and Border Protection v SZSSJ (2016) 334 ALR 653).

101    The facts in SZSSJ are distinguishable, however, from the appellant’s case. In SZSSJ, the applicant was at the time of the data breach, an applicant for a protection visa. After the data breach had occurred, the department had written to the applicant on 1 October 2014 informing him that an assessment process had commenced (called the “International Treaties Obligations Assessment” (ITOA) process) as a precursor to the Minister considering whether or not to exercise his dispensing powers under the Migration Act. The question in SZSSJ was whether the applicant had been accorded procedural fairness in the course of the ITOA process.

102    However, the appellant in this case, unlike SZSSJ, was not an applicant for a protection visa at the time of the data breach and he did not allege he had received a letter about the initiation of an ITOA process. Accordingly, this was not a case, such as SZSSJ, in respect of which the process initiated after the data breach could found a possible finding of procedural unfairness.

103    The Tribunal concluded that, while the appellant’s data had been disclosed on the department’s website, that data was of such a limited level of detail that it would be unlikely to expose the appellant to adverse attention from the Maltese public so as to give rise to a real risk of harm if he were to be returned to Malta.

104    The Tribunal did not fall into jurisdictional error in its treatment of the data breach incident as it applied to the appellant. The primary judge did not err in so concluding.

105    Accordingly, ground four of the appellant’s grounds of appeal is dismissed.

The fifth ground of appeal – mandatory considerations

106    The fifth ground of appeal contended that the primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error by not having taken into account mandatory relevant information.

107    Under this ground, in his written submissions, the appellant again contended that the Tribunal had erred in finding that the fact that the government of Malta was reluctant to facilitate the grant of a travel document to him meant that the Maltese government would not provide State protection in relation to threats to the appellant’s personal safety by vigilantes and persons intent on harming him.

108    Further, the appellant took issue with the Tribunal’s finding that it did not accept that the appellant would not be able to find employment in Malta, and that it was remote that the appellant would become a homeless person.

109    I have already referred to the appellant’s previous complaint in relation to the Tribunal’s finding that the Tribunal was not satisfied that the appellant would be denied State protection because of the expressed reluctance to facilitate a travel document for the appellant. The Tribunal set out the basis for its finding in its decision record, which included the independence of the judiciary in Malta, a functioning police force, a constitution which precluded discrimination and statements by a minister in the Maltese government to the effect that sex offenders need to be reintegrated into Maltese society.

110    In my view, as I have previously said, the finding was open to the Tribunal.

111    As to the complaint about the Tribunal’s finding in relation to employment and homelessness, the Tribunal set out the basis for its reasoning in relation to the finding that it was not satisfied that the appellant would not be able to find employment. This included the fact that the appellant was young, could speak English, that he had experience in a number of fields of work and that 60% of the employers in Malta did not ask for a police clearance certificate.

112    In my view, it was open to the Tribunal on the evidence to come to the conclusion that it did.

113    Accordingly, in my view, the primary judge did not err in finding to that effect.

114    The fifth ground of appeal is dismissed.

115    Finally, I observe that the appellant also mentioned in his submissions that the Tribunal failed to take into consideration the possibility of him being subject to a prolonged and possibly indefinite detention in Australia by reason of Malta’s reluctance to supply a necessary travel document.

116    In support of this contention, the appellant referred to a number of cases. Those cases are distinguishable. In the cases referred to by the appellant, the requirement to consider the possibility of indefinite detention in Australia arose in the context of a challenge to the decision to cancel the visas of the applicants in each case. In this case, however, the appellant is seeking the grant of a protection visa. In that context, the issue of a prolonged or indefinite detention in Australia does not arise as a mandatory or relevant consideration.

117    The appeal is dismissed.

Associate:

Dated:    3 March 2017