FEDERAL COURT OF AUSTRALIA

APD15 v Minister for Immigration and Border Protection [2017] FCA 407

ORDERS

THE COURT ORDERS THAT:

1.    The application for an injunction to restrain the Applicant’s removal from Australia this afternoon is dismissed;

2.    The application for leave to appeal is dismissed;

3.    The Applicant is to pay the First Respondent’s costs of the application, in the sum of $2200.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an application for an injunction, pending an application for leave to appeal from orders made by Judge Street of the Federal Circuit Court on 13 April 2017: APD15 v Minister for Immigration and Border Protection [2017] FCCA 742. On that day, his Honour dismissed an application by the Applicant for an injunction to restrain his removal from Australia to Sri Lanka, which is scheduled to take place early this afternoon, today.

2    By way of background, it is relevant to know that the Applicant is a 29-year-old man of Tamil ethnicity, from Jaffna, in Sri Lanka. He arrived in Australia on 16 September 2012 on a false United Kingdom passport. He had departed Sri Lanka shortly before that, however, on a lawful Sri Lankan passport. As a result of his arrival on a false passport, he was denied immigration clearance and, as I understood it, was placed in immigration detention thereafter. He has remained in immigration detention from 16 September 2012 to today.

3    Upon his going into immigration detention, it appears that at some point he lodged with the Minister, an application for a protection visa. The application was reasonably complex and developed, but at the heart of the account which he ultimately pursued before the delegate and, thereafter, the Refugee Review Tribunal (as it then was), was the proposition that he had links with the principal Tamil insurgency body in Sri Lanka, known as the LTTE. His application for the protection visa was rejected in the first instance, by a delegate of the Minister, and subsequently by the Refugee Review Tribunal.

4    I should say, by way of explanation, that the contention that he had an association with the LTTE in Sri Lanka was relevant, because of the well-known events that took place in Sri Lanka in 2010 between the Tamil minority and the Sinhalese majority. It was accepted in most quarters after 2010, that there was a real risk of persecution for Refugee Convention related reasons for Tamil men, particularly Tamil men from the north of Sri Lanka. That fact was accepted in UNHCR Guidelines issued in the years 2009 and 2010.

5    I make those remarks because it makes it important to note, as perhaps was not appreciated in the Court below, that cases involving the return of Tamils to Sri Lanka raise very serious questions and require close scrutiny.

6    The Refugee Review Tribunal, when it ultimately dealt with the Applicant’s claim for a protection visa, rejected his claim. This it did, because upon a close analysis of his testimony it concluded that it ought to reject his contention that he was associated with the LTTE. The Tribunal analysed his account with a reasonable degree of care and concluded that aspects of it were not true.

7    Accordingly, it concluded that he was not associated with the LTTE, and it rejected both his claims to be a refugee within the meaning of the Refugees Convention and also, his claims for complementary protection under the Migration Act 1958 (Cth). Those claims for complementary protection reflected, in a statutory form, the various non-refoulement obligations arising from the implied operation of the Refugee Convention, and the express provisions of the Convention against Torture and the International Covenant on Civil and Political Rights.

8    After the Tribunal rejected his application for a visa, the Applicant applied for judicial review of the Tribunal’s decision, which was rejected by the Federal Circuit Court in SZTKP v Minister for Immigration and Border Protection [2014] FCCA 1683. He also appealed from that decision, to this Court, and that appeal was dismissed on 23 March 2015: see SZTKP v Minister for Immigration and Border Protection [2015] FCA 256. At that point (March 2015) he had, as I have already indicated, been in immigration detention for some time. Prior to the disposition of the proceeding in the Full Court, however, an event which is the trigger for the issues which arise this morning took place. This event was (and is now known as) the Data Breach and it occurred in February 2014.

9    The Data Breach, which I will explain more fully in a moment, affected only persons who were in immigration detention. Through a mishap within the Department of Immigration and Border Protection, a graph was posted on the Department’s public website in a form which did not remove the metadata which underlay the graph. The metadata included a large quantity of personal information relating, essentially, to almost every person who was in immigration detention. That included the present Applicant.

10    As a consequence of the release of that information onto the World Wide Web, a legal possibility arose, as a matter of international law, that the disclosure might well give, at least refugee applicants, an ability to make a sur place claim. A sur place claim arises where, as a result of events which have happened after the applicant leaves their country of origin, they become exposed to a well founded fear of persecution.

11    Here, the argument would be that by releasing the personal information of refugee applicants onto the World Wide Web, this may have equipped persons in other places to know, at least, that an applicant had made a refugee application in this country and this, in turn, might be able to be seen as generating circumstances from which a valid claim for refugee status might be made. More directly, the issue of non-refoulement needed to be addressed.

12    There therefore arose a need within the Commonwealth, if it were to comply with its non-refoulement obligations under international law, to consider afresh the position of each of the persons whose personal information was released, to determine whether such a non-refoulement obligation arose. This was a different inquiry to the statutory inquiry, which the Tribunal and before it, the delegate, had considered under the heading of complementary protection, which was a related although not identical statutory inquiry (because the former was focussed on the Data Breach).

13    In order to comply with what it perceived to be its international obligations, the Commonwealth therefore appointed – or put in place a process known as - an International Treaties Obligation Assessment, also known as an ITOA. The point of the ITOA process was to consider whether the information which was released by way of the Data Breach would generate non-refoulement obligations under the three treaties and conventions which I have mentioned.

14    In the case of the Applicant, an ITOA process was undertaken which concluded on 9 April 2015. Obviously, the principal matter which it had to consider was the information of the Applicant which had been released as a result of the Data Breach. That information was before me in the form of affidavit evidence. The information included the name of the Applicant, his sex, his age, the fact that he had arrived in Australia but had not been cleared through immigration, the fact that he was in immigration detention, and also the fact that he had been, at least at the time that the Data Breach occurred, in immigration detention for a period of 503 days. This was the personal information which had been released, and this was the personal information which the assessing officer, under the ITOA process, considered.

15    The obligations which the ITOA officer was obliged to consider were the three non-refoulement obligations arising under the conventions I have mentioned. That is to say, the non-refoulement obligation arising from the United Nations International Covenant on Civil and Political Rights; and the explicit non-refoulement obligation arising from the Convention against Torture; and the essentially implied non-refoulement obligation arising from the Refugee Convention. The approach which the ITOA officer took to those conventions was to ask himself whether, by reason of the forced removal of the Applicant to Sri Lanka, whether it could be said that there were ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the [non-citizen] being removed from Australia to a receiving country, there [was] a real risk [the non-citizen would] suffer significant harm’.

16    In another case, I have considered whether that is a correct statement of the obligations arising under international law, and it seems to me that they are: see Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497. It seems to me, therefore, that there can be no debate that the correct standard was applied by the assessing officer. The officer conducting the ITOA adopted a particular procedure in doing so, and the procedure had been commenced on 12 March 2014, when the secretary of the Department of Immigration and Border Protection had written to the Applicant to inform him of the Data Breach, which had occurred on 10 February 2014.

17    On 15 July 2014, the Department sent the Applicant another letter, inviting him to provide any information he wished to have considered arising from the website disclosure. On 21 July 2014, the Applicant replied saying, perhaps not unreasonably, that there was no way of knowing from whom he would face a real risk of harm because ‘it may go well beyond the authorities in Sri Lanka, 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’. Accordingly, he argued that this would undermine his ‘ability to find employment and foreign governments may use this information as a reason not to grant visas’.

18    On 13 January 2015, the Applicant was notified by the Department, that the ITOA process had commenced and it would consider his claims. On 19 January 2015, the Applicant made submissions to the assessing officer, claiming an entitlement to have all information relating to the data breach disclosed, and claiming that Departmental officers were in a position of conflict of interest. At the time that submission was made it was not outlandish. Those propositions were, indeed, upheld by the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1 . However, that decision was reversed unanimously by the High Court: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 (‘SZSSJ’).

19    On 12 February 2015, the Department wrote to the Applicant, dealing with the various matters which were raised by him, and it put various matters to him by way of adverse information. It is not necessary to set them all out. One of them, however, is important. The officer put to the Applicant that the Data Breach incident had not altered his profile with the Sri Lankan profiles ‘in any way adverse to him’. This was a reference to the analysis which the Refugee Review Tribunal had undertaken of the Applicant’s position, both in relation to his complementary protection claim and in relation to his claim to suffer from a well-founded fear of persecution.

20    The Tribunal had adopted a process of reasoning whereby, having concluded that the Applicant had no links with the LTTE, it then went on to consider what other risks might exist for a person of Tamil ethnicity in being returned to Sri Lanka. This process of reasoning had depended, in part, upon the UNHCR Guidelines of 2012. These Guidelines have been published by the UNHCR to give guidance to those dealing with refugee claims relating to Sri Lanka in the events of the civil war in 2010, and what they did was to identify certain categories of person who require close scrutiny in the case of refugee applications as follows:

‘(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.

....

Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. Whereas persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. Other human rights issues, such as sexual and gender-based violence and violations of housing, land and property rights, also disproportionately affect members of ethnic minorities. In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.’

21    The Tribunal came to be looking at this, because it had already come to the conclusion that there was nothing in the particular situation of the Applicant to make good the refugee claim. But it was now looking at a broader question, which is whether the Applicant fell within one of these categories which had been identified by the UNHCR.

22    The Tribunal concluded that the Applicant was not a member of one of those classes, having therefore concluded that there was nothing in his particular circumstance to justify the claims for protection, and was able to also conclude there was nothing in his general circumstances to indicate that he was a member of one of the specified categories. It was that, therefore, to which the assessing officer was referring in his assessment when he put to the Applicant that there was nothing in the data breach incident to alter his profile with the Sri Lankan authorities.

23    Although that is a rather dense expression, what it meant was that it was not possible to connect the information which had been released as a result of the Data Breach, with any process of reasoning that would lead to the conclusion that he had moved from not being a person who is in one of those categories to, in fact, being a person in one of those categories.

24    The officer eventually, as I have mentioned already, decided that no non-refoulement obligations were owed on 9 April 2015. His process of reasoning to that conclusion was effectively, as follows. First, he rejected a number of arguments which, to my mind, are inconsequential and do not need to be considered in any detail. These are related to alleged conflicts of interest on the part of the Department (rejected by the High Court in SZSSJ), and denial of procedural fairness (also rejected in the same case). He did deal with the question of whether the Applicant would be harmed as a result of the website disclosure as a particular topic, and here he wrestled, as I have wrestled, in this application.

25    The task at hand is to understand what it is about the private information which was released on the website that would expose the Applicant to an increased risk of harm if returned to Sri Lanka. The information disclosed is: who he is, his birth date, the fact that he is a failed asylum seeker, and that he has been in immigration detention.

26    I will deal, in a moment, with the position of being a returned asylum seeker to Sri Lanka, but apart from that matter, it is difficult to understand as a matter of logic, how the release of this information puts the Applicant in a worse position. The assessing officer was not able to perceive such a problem. The reasons of Judge Street do not throw light on this issue. That said, I have found it difficult to understand how the release of the data, leaving aside the failed asylum seeker point, has an adverse impact.

27    I turn then to the issue of being a failed asylum seeker. The assessing officer dealt with this, with respect, in reasonable detail. First of all, he considered the position of failed asylum seeker returnees to Sri Lanka of any nationality, and he analysed various materials which were available from different sources, explaining what the position of persons who had failed as asylum seekers in other countries was, when they were returned to Sri Lanka. These included a report prepared by the Department of Foreign Affairs and Trade in 2014; a report of the UNHCR, which did note that some return persons, such as Tamils, had been a subject of reports of torture; and a report in 2011, prepared by the Immigration and Refugee Board of Canada, which reported on the treatment of Tamils returning to Sri Lanka, including asylum seekers.

28    I will not set that material out. It is set out in the assessor’s report. The bottom line of the material was (leaving aside the particular position of Tamils) that although failed asylum seekers who return to Sri Lanka could be, perhaps, imprisoned for a period and would almost certainly be questioned at the airport, there was no particular reason to think that there was a risk of serious harm or significant harm in the sense used in the law concerning non-refoulement. The position of Tamils was noted, but the UNHCR report to which I have referred, said that ‘there is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who are forcibly returned’. And it would be fair to say that the decision-maker who conducted the ITOA did not think that that, by itself, raised an issue.

29    The result of that aspect of the officer’s reasoning was to bring him to a conclusion that there was no particular reason to think that a failed asylum seeker, in principle, returning to Sri Lanka, would face a significant risk of harm. Further, that there had been nothing put by the Applicant to explain why the information released on the Data Breach would expose him, for some particular reason, to harm. That is a process of reasoning with which I respectfully agree. The officer then returned to the topic which the Tribunal itself had dealt with, which was to consider whether the Applicant might be in one of the categories of risk identified in the 2012 UNHCR risk profile document. I have set that out above.

30    Here, the analysis which was being undertaken by the assessor, was effectively a secondary argument, having concluded there was nothing in relation to the Applicant in particular which put him within a category which was exposed to a significant risk of harm. The assessor was then, quite properly, asking himself the more general question as to whether he could be seen as being in a category which, despite a failure to prove anything about his individual circumstances, might nevertheless ground an argument that there was a significant risk. The assessor analysed the Guidelines in the same way that the Tribunal had, and concluded that he could see nothing in relation to the Data Breach which would suggest that the Applicant, not otherwise being in one of these specified categories, would have been moved into one of these categories.

31    Accordingly, the assessor concluded there was no basis to think that the Applicant faced a significant risk in the relevant sense. That, then, is the background of the matter. It will be seen that the relationship between the Applicant’s personal circumstances, and his position under the 2012 UNHCR Guidelines, was a reasonably complicated argument, and one which required some careful reading of the officer’s decision in order to grasp. The application which is before me is an application for an injunction, pending the determination of an application for leave to appeal. Therefore, it involves an exercise of appellate jurisdiction. The principles upon which leave to appeal are to be granted, and those governing when interlocutory injunctions are granted, are well-established.

32    Insofar as injunctions are concerned, it is necessary to show that there is an arguable case and that the balance of convenience favours the granting of an injunction. In the case of an application for leave to appeal, what needs to be shown is arguable error and the existence of substantial injustice if leave is not granted, supposing the decision to be wrong. Some redundancy occurs when these two tests are applied to each other. The question of whether someone has an arguable case for leave overlaps, in a sense, with whether they have an arguable case for an injunction.

33    In this case, there will be no arguable case for leave if there is no arguable case that a substantial injustice will arise if leave be granted on the assumption that the decision below is wrong: see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 (‘Decor v Dart’). What that means is that, if an applicant for an urgent injunction on an application for leave to appeal is unable to demonstrate that the Court hearing the leave application, or the appellate Court, would not itself grant an interlocutory injunction, then there will be no arguable case for leave to appeal. What that means is that it is possible to assess whether an injunction should be granted in this case, simply by deciding whether this Court itself would grant an injunction. If it would not grant an injunction, then there can be no substantial injustice in terms of the Decor v Dart test and, therefore, no need to consider whether the Court below arguably made errors. I do not propose, therefore, to give any detailed consideration to the proposed ground of appeal advanced in this Court.

34    A question as to whether an injunction should be granted raises familiar principles; namely, whether there is an arguable case and whether the balance of convenience favours the making of the injunction. In this case, the Applicant has a strong hand in relation to the balance of convenience, and if he is removed this afternoon to Sri Lanka, it is very unlikely he will return. The fact that he has the upper hand on the balance of the convenience issues impacts, in turn, upon what needs to be demonstrated insofar as an arguable case is concerned.

35    The proposition which was advanced to Judge Street, and which was advanced in this Court, was that the assessing officer had asked himself the wrong question by asking whether the unintentional release of his personal information would not raise his profile, instead of assessing, as it was contended he should have, the risk of serious or significant harm.

36    There is no doubt that, at a particular point in his reasons, the assessor did ask himself whether the unintentional release of the Applicant’s personal information would raise the Applicant’s profile, and there is also no doubt that that is a different question to the underlying question which confronted the assessor, as to whether there was a significant risk of harm.

37    There are, I think, however, two answers to the Applicant’s contentions in that regard. First, whilst it is true that question was posed, that is not the only question that was posed. It is plain from the end of the assessor’s reasons that he was very clearly aware of what the appropriate standard for non-refoulement was, and that he did ask himself the correct question. That is another way of saying that it is a mistake to read the particular passage relied upon out of context.

38    Secondly, and more substantially, as I hope I have endeavoured to explain, the reason the assessor was examining the guidelines issue, and asking himself that question was, in effect, a secondary piece of reasoning after he had already determined that there were no particular reasons pertaining to the Applicant which would have generated a significant risk of harm. To put that another way, he was embarking upon the topic of asking whether there was a really serious risk of harm, and he did that through a two-stage process. The first stage was to ask whether there were any particular circumstances of the Applicant, generated by the Data Breach, which gave rise to a significant risk of harm. The second stage was, having considered that there was no such risk, whether the Data Breach could be properly seen as having moved the Applicant into one of the profile categories in the 2012 UNHCR Guidelines.

39    Once it is viewed that way, one can see that, far from asking himself the wrong question, the assessing officer asked himself the correct question and adopted a process of reasoning of some complexity. For that reason, I do not think that the error which is said to arise, does arise. And for that reason, I do not think that that aspect of the Applicant’s contentions is made good.

40    I should say, I have read the ITOA with some care myself, to see whether there are any other difficulties which might emerge. In particular, I have had a look at whether the correct standard was applied as a matter of international law and, as I have indicated already, it seems to me that it was. I have examined closely, the procedural fairness points which appear in it, and quite independently of the submissions which are made on the Applicant’s behalf today, I am unable to discern anything in this report which would give rise to a reasonably arguable case for an injunction.

41    For those reasons, I would myself not regard it as reasonably arguable that an injunction should have been issued by Judge Street, regardless of his Honour’s process of reasoning. And for that reason, the Applicant cannot establish on this application, that there is a substantial injustice, because regardless of what one thinks about the way this was dealt with in the Court below, the only possible outcome seems to me that the injunction should be refused. For that reason, I dismiss the application for the injunction.

42    The orders I make are:

(1)    The application for an injunction to restrain the Applicant’s removal from Australia this afternoon is dismissed;

(2)    The application for leave to appeal is dismissed;

(3)    The Applicant is to pay the First Respondent’s costs of the application, in the sum of $2200.

Associate:    

Dated:    26 April 2017