FEDERAL COURT OF AUSTRALIA

AVB16 v Minister for Immigration and Border Protection [2017] FCA 241

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s 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    The appellant appeals from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 13 September 2016 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 March 2016: AVB16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2325 (AVB16). The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) to refuse the appellant a Protection (Class XA) visa (Visa).

background

2    The appellant is a citizen of China. She arrived in Australia on 24 September 2001 as the holder of a student visa. On 27 April 2002 the appellant was granted a second student visa which expired on 18 March 2003. Thereafter the appellant remained in Australia unlawfully. On 4 October 2012 the appellant was located and detained pursuant to s 189 of the Migration Act 1958 (Cth) (Act).

3    The appellant was in immigration detention on 31 January 2014 and accordingly was one of a group of people whose personal details were made available on publicly accessible areas of a website maintained by the Department of Immigration and Border Protection (Department) (Data Breach). In March 2014 the appellant was notified of the Data Breach and informed that the information made available included her name, date of birth, nationality, gender, details of when she was detained (the reason and where) and whether she had other family members in detention. The information did not include any current or former address, phone number, contact information or any other information such as health information. The appellant was also informed that any implications for her personally would be assessed as part of the Department’s normal processes.

4    By letter dated 19 June 2014 the Department:

(1)    referred to and reiterated the matters that were set out in its letter of March 2014;

(2)    informed the appellant that she currently did not hold a permanent visa to remain in Australia and may be liable for removal; and

(3)    invited the appellant to put to the Department in writing any concerns she had regarding the impact of the Data Breach on her ability to return to her home country or country of usual residence, giving specific reasons as to why she could not return.

5    By letter dated 24 June 2014 the then solicitors for the appellant wrote to the Department in response to its letter dated 19 June 2014. They referred to the appellant’s personal circumstances, including that she had spent the last 13 years in Australia and had lost any connection with friends, family or a support network in her country of origin; noted that she had been in immigration detention and awaiting removal from Australia for a lengthy period; and referred to her medical condition, including that she had developed depression. The letter continued:

5.    the release of her personal information has only amplified her dissatisfaction and stress with her situation; and

6.    further, the release of the information to the public poses the risk that she will be ostracised due to the fact that her detention becomes known to her former friends and family (even if they get back in touch) and affect her future social interactions – further reducing her ability to re-integrate into her country of origin.

6    On 19 February 2015 the appellant applied for the Visa. In her application she claimed that:

(1)    she left China to seek higher education;

(2)    she cannot return because the Department “leaked out my personal information and I would be detained and even suffer more if I was send (sic) back”; and

(3)    upon her return she would probably be “questioned, detained, locked up in jail, tortured or even sentence (sic) to death”.

7    Annexed to the appellant’s application for the Visa was a document titled “Annex: Data Breach” in which the appellant stated, among other things:

2.    The Secretary's letter provides no details of the "process" that will be employed to assess the risk of harm to me should I return to China. I respectfully submit that the process should accord with the principles of natural justice and procedural fairness. Therefore, the department should disclose all the information in its possession in relation to the data breach to me so I have an opportunity to make my case. If the material cannot be disclosed to me that (sic) I should be found to be a refugee sur place.

3.    KPMG’s Privacy breach- Data management report, 20 May 2014, made the key findings:

•    Confusion within the department surrounding the clearance checks that needed to be undertaken for publishing material on the web.

•    Checks of documents to be published online occurring on physical versions of documents, rather than online versions.

•    The data breach occurred despite approval from an assistant secretary of the department.

•    The individual who authorised the document had never previously prepared the material, leaving the process “more susceptible to human error”.

4.    As the department disclosed my name and other personal details on the internet there is no possible way of determining who has accessed and/or saved my personal information, how many times and who it has been forwarded to. …

5.    There is no way of knowing who I could face a real risk of harm from as it may go well beyond the authorities in China, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates. In addition, the Human Resources Sections of companies and public service departments would also have access to the information and would undermine my ability to find employment in my home country and overseas and foreign governments may use this information as a reason not to grant visas for me to travel out of China. Without disclosure of the information then everyone involved in this process is speculating;

8    On 7 December 2015 a delegate of the Minister made a decision not to grant the appellant the Visa.

9    On 26 December 2015 the appellant applied to the Tribunal for review of the delegate’s decision. On 16 March 2016 she attended a hearing before the Tribunal and on 18 March 2016 the Tribunal made its decision affirming the delegate’s decision not to grant the appellant the Visa.

the Tribunal decision

10    The relevant part of the Tribunal’s decision for the purposes of this appeal is its assessment of the appellant’s claims to fear harm in China because of the Data Breach commencing at [10] of its decision record. After setting out the appellant’s claims, the Tribunal referred to the nature of the information that was released as follows:

The delegate stated that the information would have included the applicant’s name, date of birth, nationality, gender, and details as to when she was detained. That information did not include current or former addresses, telephone numbers, contact information or information about health or any visa applications she had made.

11    The Tribunal then said the following at [11] of its decision record:

Available country information indicates that Chinese authorities are generally not concerned about Chinese nationals who travel out of China and also apply for asylum overseas. Those Chinese nationals likely to be of interest to the Chinese government on return to China after staying abroad, including those who seek asylum abroad, are those people the government perceives as opponents. Such people are likely to be those with a profile of activism in Falun Gong; the underground church or political opposition. The applicant is not such a person and even if the Chinese government had access to the minimal information about her that was made available for a short period of time by the department, the risk of the government taking an adverse interest in her and causing her to suffer serious harm is remote. The Tribunal discussed this country information with the applicant at the hearing and put those inferences to her.

12    The appellant alleged that the information made available was downloaded in many countries. The Tribunal found that, “[e]ven if that was the case”, the allegation did not alter its view of the risk of her suffering serious harm from the Chinese government as the appellant had no history of activism of any kind that would make her of interest. The Tribunal also rejected the appellant’s claim that the independent country information did not reflect reality: at [12].

13    The Tribunal also addressed the appellant’s claim that she had complained to the Privacy Commissioner about the Data Breach and her opinion that a privacy authority should undertake an assessment of what happened, not the Department. The Tribunal noted that this claim related to a complaint about a breach of privacy and did not demonstrate that there was a real chance that the appellant would suffer serious harm in China because of the Data Breach: at [13].

14    The Tribunal noted the appellant’s written submission that there was no way of knowing who had access to her personal information. It noted that she had named those whom she thought could have accessed the information: “foreign security and intelligence agencies, terrorists (sic) organisations and criminal syndicates” as well as “human resources sections of companies and public service departments”. The Tribunal then referred to the appellant’s submission that this would undermine her ability to find work in China and obtain visas to travel to other countries. The Tribunal acknowledged the appellant’s fears about other entities also gaining access to the information that had been made available as a result of the Data Breach. But the Tribunal had no evidence that such groups had seen the information and held interest in her or had used the information in any way that created a real chance of the appellant suffering serious harm in China. The Tribunal found the appellant’s assertions that other entities had seen the information, which would lead to her being harmed, to be highly speculative: at [14]

15    The Tribunal concluded that the risk of the appellant suffering serious harm due to the Data Breach was remote: at [14].

16    The Tribunal then went on to consider the appellant’s claims concerning her health and her relationship with her family. In relation to her health the Tribunal found, based on independent country information, that the appellant could access health care in China in the public system when she had household registration restored and in the private system in the interim. In relation to the claims concerning her relationship with her family the Tribunal found that she still had a relationship with her family, that they were not estranged from her and that there was no evidence that the appellant’s family had disowned or rejected her. The Tribunal also rejected as mere speculation the appellant’s claim that the release of her personal information posed the risk that she would be ostracised in China because former friends and family would know that she had been in detention, which would affect her future social interactions in China and her ability to integrate back into life there.

17    The Tribunal concluded that the appellant did not have a well-founded fear of persecution based on any Convention ground and that the risk of her suffering serious harm in China was remote. For the same reasons the Tribunal found that the risk of the appellant suffering significant harm in China was remote. Accordingly the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to China, there was a real risk that the appellant would suffer significant harm. The Tribunal was not satisfied that the appellant met the refugee criterion in s 36(2)(a) of the Act, nor that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Proceeding before Federal Circuit Court

18    In her application filed with the Federal Circuit Court seeking judicial review of the Tribunal’s decision the appellant raised four grounds of review. At the hearing she only pressed the first two of those grounds, namely, that:

1.    The Tribunal erred by asking itself the wrong question.

Particulars

a.    At [13] the Tribunal found that:

All of these claims relate to a complaint about a breach of privacy and do not demonstrate that there is a real chance she will suffer serious harm in China because their basic data was made temporarily available some time ago; and

b.    The Tribunal has failed consider (sic) whether the applicant would face serious or significant harm upon return to China due to the data breach.

2.    The Tribunal erred in making a finding on the data breach based on no evidence.

Particulars

a.    At [14] the Tribunal found that:

The Tribunal acknowledges the applicant's fears about other entities also gaining access to that minimal and basic information made available about her but the Tribunal has no evidence that such groups have seen this information and hold interest in her or have used this in any way that creates a real change (sic) of the applicant suffering serious harm in China; and

b.    The Tribunal makes the further finding that the applicant's assertions are "highly speculative" while the Tribunal at no time had any access to any of the data breach information in the possession of the department.

19    The primary judge rejected the first ground as entirely unsustainable. His Honour noted that the passage from the Tribunal decision at [13] relied on by the appellant in particular (a) was immediately preceded by:

The applicant also referred to litigation in the High Court about the data breach and said that she had complained to the Privacy Commissioner about it. Her privacy had been breached and that had nothing to do with immigration law. She said that a privacy authority should do an assessment of what happened not the department. She made similar claims when this issue was explored with her by the delegate and in written submissions she made to the department.

20    His Honour found that the “claims” referred to in the passage relied upon by the appellant were claims made outside her application for the Visa and that in that passage the Tribunal was not summarising the appellant’s protection visa claims: AVB16 at [13].

21    The written submissions filed in support of the appellant’s application did not address the first ground as it appeared in the application. There the appellant submitted that “the Tribunal has not only asked itself the wrong question but has failed in its function to review the decision of the delegate”. At [14] of his reasons the primary judge noted that this submission was based on his judgment in ACR15 v Minister for Immigration and Border Protection & Anor (2015) 302 FLR 431; [2015] FCCA 2992 (ACR15), where his Honour had said at [26]:

On its face, this finding by the Tribunal was made with no other basis than the fact that the delegate had made the same finding. If that is in fact the case, it is inconsistent with its obligation to "review" the delegate’s decision. In order to "review" a decision, the Tribunal must consider "for itself" the material before it and make its own findings based on that material: Minister for Immigration and Border Protection v MZYTS and Another (2013) 230 FCR 431 at [32]; MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [58]. Simply adopting a finding made by the delegate is not a product of a "review", it is copying.

22    His Honour observed that the appellant did not seek leave to raise this ground but that, even if she had, leave would not have been granted because the argument was bound to fail. The primary judge held that there was nothing in the Tribunal’s reasons to suggest that it did nothing more than copy material from the delegate’s decision and that, to the extent that the Tribunal had relied upon the delegate’s decision to make a finding about the extent of the Data Breach, there was no error. His Honour noted that the delegate had found, on the basis of what was stated in the letter from the Department to the appellant, that there had been a release of certain personal information. That letter was before the Tribunal. Thus, his Honour held that the Tribunal did more than simply accept an assessment by the delegate of some unseen information. Further, the simple fact that the Tribunal came to the same conclusion as the delegate on the basis of country information lent no support to the appellant’s assertion that the Tribunal had done nothing more than copy part of the delegate’s decision: AVB16 at [18].

23    The primary judge also held that the second ground was unsustainable. His Honour noted that the appellant did not contest the Tribunal’s finding that there was no evidence of a real chance of her suffering serious harm in China because certain other entities had gained access to her information. Rather, the appellant argued that the Tribunal erred because it did not have access to the credible, relevant and significant information held by the Department about the Data Breach, in particular the abridged KPMG report dated 20 May 2014 and the Privacy Commissioner’s report dated November 2014. The primary judge also noted that in her written submissions the appellant presented the ground not only as a “no evidence” ground but also as a failure to comply with s 425 of the Act: AVB16 at [20]-[21].

24    His Honour found that whichever way the ground was argued it was rejected for three reasons:

    first, the appellant had not established that the Tribunal was easily able to obtain the abridged KPMG report or the Privacy Commissioner’s report and, more importantly, had not established whether there was information in either of those reports that was of such obvious and critical importance to the Tribunal’s decision that it ought to have made efforts to obtain them: AVB16 at [22];

    secondly, the position was that the Tribunal (like the court) was unaware of the content of those reports. That is, it did not have information of which the appellant was unaware and which the appellant did not have the opportunity to address: AVB16 at [23]; and

    thirdly, the appellant did not put the material before the Tribunal and did not seek to obtain the information in either of the reports: AVB16 at [24].

25    The primary judge concluded that in those circumstances there was no unfairness in the Tribunal’s procedure and that its findings were based upon the material before it, including its assessment of what was not in that material, namely, any support for the contention that the release of the appellant’s personal information in February 2014 might have given rise to a relevant risk of harm to the appellant in China: AVB16 at [25].

the appeal

26    The appellant’s notice of appeal raised five grounds but in her written submissions she only pressed grounds 2 and 5, which are in the following terms:

2.    His Honour erred in failing to find that the Tribunal did not to (sic) apply the assumption that all of the appellant's personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm as held by the High Court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [91].

Particulars

a.    The Tribunal failed to consider the significance of the fact that the personal information that was disclosed and accessed by all persons and entities she feared persecution or other harm disclosed that she was held in detention for x days which would indicate that she had the status of an unlawful non-citizen in Australia and had protection claims considered by Australia (sic) government for extended period of time.

…

5.    His Honour erred in finding that the appellant's disclosed personal information was not credible, relevant and significant information in the possession of the Department.

ground 2

27    The appellant submitted that, although inelegantly expressed, this ground is in essence a challenge to the rejection of the first ground of the application which was before the Federal Circuit Court. But, as articulated in the notice of appeal, this ground alleges error on the part of the primary judge in failing to find that the Tribunal did not adopt the assumption identified by the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 (SZSSJ) at [91].

28    There was no argument below about the assumption made in the ITOA process at issue in SZSSJ and discussed at [90] and [91] of the High Court’s judgment. That is not surprising given that the High Court’s judgment in SZSSJ was not handed down until 27 July 2016, five days after the hearing before the primary judge. However, judgment in the Federal Circuit Court was reserved until 13 September 2016. The appellant did not at any point between 27 July 2016 and that date apply to reopen submissions to address SZSSJ or the Tribunal’s alleged failure to apply the relevant assumption, although it would have been open to her to do so.

29    The appellant’s oral and written submissions focus on a different argument which does not reflect the ground as included in the notice of appeal. In her written submissions the appellant submitted that the Tribunal only considered her claims to fear persecution through the rubric of a failed asylum seeker and not by reason of the Data Breach. She submitted that:

(1)    the primary judge rejected ground 1 at [12]-[13] of his reasons and his findings failed to address the substance of the ground by focusing on particular (a) and ignoring particular (b);

(2)    the primary judge failed to deal with the proposition that the Tribunal did not consider whether the appellant would face serious or significant harm upon her return to China;

(3)    it was clear from her application for the Visa that a claim was made by the appellant that she feared that “because the DIBP leaked out [her] personal information and [she] would be detained and even suffer more if [she] was send (sic) back” she “probably will be questioned, detained, locked up in jail, tortured or even sentence (sic) to death”. That claim included a statement in the “Annex” to her application that any attempt to return her to her home country would be “in violation of Article 33 of the Refugee Convention and Article 17 of the International Covenant on Civil and Political Rights” and also included reference to her concerns referred to at [13] of the Tribunal’s decision;

(4)    the primary judge was incorrect to find that the “claims” referred to at [13] of the Tribunal’s decision record were claims outside of her Visa application;

(5)    it was the entire effect of the Data Breach which the appellant feared and upon which she relied in her application for the Visa. Had the presumption identified at [91] of SZSSJ been made in the present case then no issue of a failure to consider the entirety of the claims would have arisen;

(6)    the Tribunal only considered whether the appellant would have a well-founded fear of return on the basis that the authorities would believe her to be a failed asylum seeker and the only country information reviewed was that concerning the Chinese government’s attitude to failed asylum seekers. The Tribunal did not review the breadth of claims made but substituted its own, narrowed definition of those claims which was then dismissed; and

(7)    the appellant’s claim was that there was a real chance that the totality of the circumstances of the Data Breach placed her in danger on her return.

30    The appellant submitted that the ground as set out in the submissions was raised by particular (b) of ground 1 below, although that is not reflected in the primary judge’s reasons.

31    The Minister submitted that, as formulated in her notice of appeal and as articulated in her written submissions, ground 2 raises arguments for the first time on appeal that were not raised below. The Minister further submitted that leave should not be granted to raise the ground:

    as formulated in the notice of appeal, in circumstances where the appellant has offered no explanation for her failure to raise it before the primary judge and where the ground is, in any event, without merit, the assumption in SZSSJ being directed to procedural fairness in the non-statutory International Treaties Obligations Assessment (ITOA) process, which may be distinguished from the statutory procedure being undertaken by the Tribunal; or

    as set out in the appellant’s written submissions, because, formulated in that way, the ground is of doubtful merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ) at [48].

The argument in the notice of appeal

32    As I have already observed, the appellant alleges in the notice of appeal that the primary judge erred because he failed to find that the Tribunal did not apply the assumption referred to at [91] of SZSSJ which was adopted in the ITOA process. The relevant assumption was that all of the appellant’s personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm.

33    That argument has no merit. It cannot succeed and leave is not granted to raise it for the first time on appeal. As framed, the ground ignores the fact, as has been previously recognised by this Court and as submitted by the Minister, that the ITOA process is a non-statutory administrative process unlike the procedure undertaken by the Tribunal. For example, in AAG15 v Minister for Immigration and Border Protection [2016] FCA 67 Jessup J said at [13]-[16]:

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 (sic) 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.

34    SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173 concerned an appellant who was affected by the Data Breach but who, at the time of the Data Breach, was in a different position to the respondents in SZSSJ in that there was no evidence that the Minister had commenced considering the exercise of his dispensing powers under any of his non-compellable powers in the Act. At [25]-[26] Griffiths J said:

25    I accept the Minister’s submission that the findings as to the lack of procedural unfairness in SZSSJ High Court were all directed to the ITOA process in circumstances where a factual finding had been made by the Full Court, which was not challenged on appeal, to the effect that consideration of the exercise of those dispensing powers had commenced.

26    It is critical to note that, in the proceeding here, the Data Breach occurred prior to the appellant applying for a protection visa. The processes which then ensued before both the Minister’s delegate and the Tribunal provided the appellant with an opportunity to say whatever she wished to say concerning the implications of the Data Breach for her entitlement to protection. Subject to relevant provisions in the Migration Act the statutory processes of considering and determining her application for a protection visa, both by the delegate and on review by the Tribunal, attracted procedural fairness obligations. The appellant did not point to any aspect of those processes which involved procedural unfairness to her. Nor is her case strengthened by her reliance on SZSSJ High Court because of the findings made there concerning the different process which had commenced in respect of the aggrieved persons in those proceedings.

35    Here the appellant applied for the Visa claiming that she feared persecution because of the Data Breach. She made her claims about the effect of the Data Breach on her in the context of that application. She was not subject to the ITOA process carried out by the Department and referred to in SZSSJ.

36    The procedures to be adopted by the Tribunal in considering the appellant’s application for the Visa are prescribed by statute and import requirements of procedural fairness. In particular, Div 4 of Pt 7 of the Act prescribes the procedures to be adopted by the Tribunal. An allegation of breach of procedural fairness on the part of the Tribunal would need to allege a breach of a provision found in that Division of the Act. Before the primary judge the appellant submitted that the Tribunal had failed to comply with s 425 of the Act in making a finding on the Data Breach based on no evidence. As discussed at [59] below the primary judge rightfully rejected that argument. The Tribunal’s failure to make the assumption referred to at [91] of SZSSJ does not amount to a denial of procedural fairness in the circumstances of the appellant’s case.

The argument in the appellant’s submissions

37    In my opinion, the ground as put in the written submissions is not entirely without merit. It is arguable and the appellant should be granted leave to raise it.

38    As articulated in the appellant’s written and oral submissions, this ground is essentially concerned with the Tribunal’s decision at [11] to [14]. In particular, the appellant submitted that [11] cannot be “unbundled” and must be read as a whole; that it is focused on the appellant’s claim to fear persecution because she applied for asylum overseas; and that it does not address her fear of persecution because of the Data Breach. The appellant further submitted that the Tribunal should have considered whether she had a well-founded fear of persecution by reason of the Chinese authorities having seen the totality of material released as a result of the Data Breach.

39    It was contended that the appellant was not merely a Chinese national who had travelled out of China and applied for asylum overseas but that she was a person who was detained by the Australian government because she was an unlawful non-citizen. The appellant contended that her particular information released as a result of the Data Breach, notably the period of her detention, and her unwillingness to return to China were not considered by the Tribunal. At [31] of her written submissions, the appellant contended that no consideration was given by the Tribunal as to whether “release of the information (which would necessarily include the fact and duration of the appellant’s detention as unlawful non-citizen in Australia as a Chinese citizen) would give rise to a real chance of serious or significant harm on arrival in China because of the Chinese government’s (or the other feared entities) attitude to its Chinese citizens who may embarrass China by being detained as unlawful non-citizens in Australia”.

40    In relation to the particular claim articulated at [31] of the appellant’s written submissions, the Minister submitted that no such claim was apparent or squarely arose on the face of the material before the Tribunal in the sense described in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) or NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK). The appellant submitted that the claim arose because she said she feared harm as a result of the Data Breach; because the information released by reason of the Data Breach, in particular the details of when the appellant was detained, conveyed that she was detained; and because she could only be detained if she was an unlawful non-citizen.

41    A constructive failure to exercise jurisdiction will arise if a tribunal fails to consider a claim which clearly arises on the material before it in that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE at [58].

42    In NAVK (upheld on appeal: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124) Allsop J (as his Honour then was) said at [15]:

The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

43    In my opinion it is difficult to see how the particular claim arose squarely on the material before the Tribunal. The claims before the Tribunal were articulated in the appellant’s protection visa application, set out at [6] above. Her claims to fear persecution arose from the Data Breach: she said that because of the Data Breach she would be questioned, detained, jailed, tortured or even sentenced to death and that she would not be able to get any help from the community or the government. She did not say that, because the information that was released included the details of when she was detained, the Chinese government would be aware that she was an unlawful non-citizen and that she feared harm as a result. That claim does not arise sufficiently clearly from the material. It could only be discerned if the Tribunal engaged in the kind of “constructive or creative activity” said in NABE not to be required.

44    Even if I am wrong in that conclusion I do not agree that the Tribunal limited its consideration of the appellant’s claims by viewing them only through the rubric of a failed asylum seeker. It considered the full breadth of the appellant’s claims to fear harm by reason of the Data Breach including the claim, if it was made, concerning her fear arising from the Chinese government becoming aware that she was an unlawful non-citizen. My reasons follow.

45    At [10] of its decision record the Tribunal set out the nature of the information that was released as a result of the Data Breach. That information included details of when she was detained. Then at [11] the Tribunal considered the appellant’s claims. It commenced by stating, by reference to country information, that Chinese authorities are generally not concerned with Chinese nationals who travel from China and apply for asylum overseas. Arguably, at this point of its discussion the Tribunal was considering fear of persecution on the basis of the appellant being a failed asylum seeker.

46    The appellant submitted that the Tribunal framed the balance of its consideration through this lens and did not consider the claim by the appellant that she feared persecution because the Chinese authorities would know, by reason of the information disclosing when she was detained, that she was an unlawful non-citizen. That submission construes the Tribunal’s decision too narrowly.

47    At [11] the Tribunal continued its consideration by referring to the categories of Chinese nationals who after staying abroad would likely be of interest to the Chinese authorities on return: those with a profile of activism in Falun Gong, the underground church or political opposition. It noted that the appellant is not such a person. The Tribunal then stated that, “even if the Chinese government had access to the minimal information” about the appellant that was made available by the Department, “the risk of the government taking an adverse interest in her and causing her to suffer serious harm is remote”. At that point in its decision the Tribunal was focused on the information that was made available by reason of the Data Breach and considered the impact of its release on the appellant. This included the information about when the appellant was detained which she submitted implicitly conveyed that she was an unlawful non-citizen. Its consideration at that point was not limited by reference to the country information referred to in the first sentence of [11].

48    The Tribunal also considered the appellant’s claims concerning access to her personal information by entities other than the Chinese authorities as a result of the Data Breach at [14] of its decision record. It noted that it had no evidence that other groups had seen the information and held interest in her or had used the information in any way that created a real chance of the appellant suffering serious harm in China.

Other matters

49    For completeness I note that there was otherwise no error in the primary judge’s consideration of ground 1 of the application filed in the Federal Circuit Court. In addressing ground 1 the primary judge correctly construed the word “claims” as it appears in [13] of the Tribunal’s decision record as the claims about the appellant’s complaint to the Privacy Commissioner concerning the Data Breach. That was, as the Minister submitted, the natural and ordinary reading of [13] of the Tribunal’s decision record when that paragraph is read as a whole.

50    Before the primary judge the appellant submitted that the Tribunal had abdicated its statutory role of reviewing the delegate’s decision by “simply adopting a finding made by the delegate” in the manner described in ACR15. The primary judge noted the appellant’s submission that the Tribunal had failed in its function to review the decision of the delegate and that, as that submission did not deal with ground 1 as it appeared in the application, the appellant would require leave to raise it. His Honour held, correctly, in my opinion, that even if leave had been sought it would have been rejected because there was nothing in the Tribunal’s reasons to suggest that it did nothing more than copy material from the delegate’s decision and the argument was bound to fail.

Ground 5

51    By ground 5 the appellant alleges that the primary judge erred in finding that her disclosed personal information was not credible, relevant and significant information in possession of the Department. The appellant submitted that this ground challenges the primary judge’s finding at [22] that the appellant had failed to establish that the Tribunal was “easily able to obtain the abridged KPMG Report or the report of the Privacy Commissioner, or more importantly whether the (sic) was such information in either of those reports that was of such obvious and critical importance to the Tribunal’s decision that it ought to have made efforts to obtain them”.

52    The appellant further submitted that there could be no doubt that both documents were available to the Department given that it commissioned the KPMG Report and was a party to the Privacy Commission complaint, which she described as a “fact notorious”; that the relevance of the KPMG Report was made clear by the terms of the application for the Visa which was the subject of consideration by the Tribunal; that the relevance of the Privacy Commissioner’s findings also arose from the Visa application; and that in its letter dated 6 January 2016 addressed to the appellant the Tribunal noted that it had requested the Department to provide it with “all documents and files which they consider to be relevant to your application”. The appellant contended that as both documents were peculiarly within the knowledge of the Department there could be no evidentiary onus on her to provide them to the Tribunal and that in the present case, unlike in SZSSJ, there was no assumption made in her favour which would preclude or cure any error by the Tribunal in failing to obtain and provide that material to the appellant.

53    The Minister submitted that the primary judge did not err in his findings at [22] of AVB16. The Minister further submitted that the appellant’s suggestion that the primary judge should have taken judicial notice of the fact that the abridged KPMG report and the Privacy Commissioner’s report were “available to the Department” should not be accepted; that the Department’s role in relation to those reports were not matters of common public knowledge as required by s 144(1)(a) of the Evidence Act 1995 (Cth); and that, even if the primary judge had been prepared to infer in the absence of evidence that those reports were available to the Department, that would not establish the further matter with which his Honour was concerned at [22] of his reasons, namely, whether the Tribunal would easily have been able to obtain them.

54    The Minister also submitted that the appellant did not attempt to identify what information in either report was of such “obvious and critical” importance to the Tribunal’s decision that it should have attempted to obtain them and that there was no evidence before the primary judge directed to establishing what information might have been elicited if the Tribunal had requested the Department to supply either report.

55    Implicit in his Honour’s reasoning at [22] of his judgment and in his rejection of the argument that the Tribunal erred because it did not have access to the reports is a finding that the appellant would have needed to establish that the Tribunal was obliged to obtain such access. I accept the Minister’s submission that the primary judge’s reasoning in [22] is linked to the duty to inquire as propounded in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 (SZIAI) at [25] where the High Court said:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …

(footnotes omitted)

56    As in SZIAI, here the primary judge found that there was nothing provided by the appellant to establish whether the reports could be easily obtained by the Tribunal and, more importantly, whether they contained any information that was of obvious and critical importance to the Tribunal’s decision.

57    The appellant points to the “Annex” to her Visa application to establish that those reports did contain information of that nature. In that attachment the appellant refers to the KPMG report and what she describes as its “key findings”. She states that she has lodged a complaint with the Privacy Commissioner. Neither of those references to the KPMG report or her complaint to the Privacy Commissioner fairly give rise to an inference that the reports contained information about critical facts for the purposes of the Tribunal’s decision, such that a failure by the Tribunal to obtain the reports could constitute a failure to fulfil the Tribunal’s statutory review function.

58    Further, contrary to the appellant’s submission, there was no breach by the Tribunal of an obligation to obtain the reports and provide them to her that needed to be precluded or cured by the making of an assumption of the nature of that made in SZSSJ.

59    There was no error in the approach of the primary judge in failing to draw an inference that those reports contained information about critical facts for the purposes of the Tribunal’s decision as alleged. In any event, as the primary judge went on to find (and as referred to above), the Tribunal was not aware of the contents of those reports and did not have information of which the appellant was unaware and which she did not have the opportunity to address. His Honour concluded that there was no breach of s 425 of the Act. There was no error in his Honour’s conclusion in that regard.

60    Ground 5 of the notice of appeal is not made out.

conclusion

61    The appeal should be dismissed and the appellant ordered to pay the first respondent’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    14 March 2017