FEDERAL COURT OF AUSTRALIA

SZTZM v Minister for Immigration and Border Protection [2017] FCA 534

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for an interim injunction be dismissed.

2.    The appellant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    The appellant is a national of the Peoples Republic of China. He is currently in immigration detention. On 22 March 2017 the Federal Circuit Court dismissed his application for judicial review of an International Treaties Obligations Assessment (ITOA). Five days later the appellant filed a notice of appeal. On 1 May 2017 orders were made, amongst other things, for the constitution of an appeal book and the filing of submissions.

2    On 10 May 2017, however, an officer of the Minister’s Department wrote to the appellant to advise him that arrangements had been made for his removal from Australia under s 198(6) of the Migration Act 1958 (Cth). The Departmental officer noted that he had lodged an application in this Court but stated that, “unless we are restrained from doing so by an interlocutory injunction or order made by the Federal Circuit Court or other court of competent jurisdiction, it is the department’s intention to proceed with your removal on 18 May 2017”.

3    Two days later, the appellant filed an interlocutory application seeking an injunction to prevent his removal from Australia. The application was supported by an affidavit affirmed by Michaela Byers, the appellant’s solicitor, which merely annexed the Department’s correspondence. At the hearing the appellant was granted leave to amend the application to limit its terms so as to restrain the respondents from removing him until the appeal was determined or withdrawn.

Background

4    The appellant arrived in Australia in September 2010 on a month-long tourist visa. He was apprehended nearly three years later and taken into immigration detention at Villawood. While in detention he applied for a protection visa, claiming to be a Christian who fears harm from local officials in his country of nationality. A delegate of the Minister refused to grant the visa and that decision was affirmed by the Refugee Review Tribunal on review.

5    On 12 March 2014, exactly a month after the Tribunal’s decision, while the appellant remained in immigration detention, presumably awaiting his removal, the Department advised him that there had been unauthorised access to his personal information (the data breach). The circumstances in which this occurred are set out in the High Court’s judgment in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) 334 ALR 653; 90 ALJR 901 (SZSSJ).

6    It appears that the data breach occurred following the publication on the Department’s website on 14 February 2014 of embedded information disclosing the identities of 9,258 detainees who had applied for protection visas (the information). The information that was disclosed was protected from disclosure by criminal sanctions: see Migration Act, Pt 4A. The appellant was one of those detainees. The information in his case consisted of his name, date of birth, nationality, gender, the fact that he had overstayed his visitor’s visa, and the duration of his time in detention. The information remained on the website for two weeks.

7    The Department arranged for the firm, KPMG, to investigate the data breach. KPMG conducted an investigation and reported to the Department. An abridged version of the KPMG report was made available to affected applicants. The abridged version revealed that the information had been accessed 123 times and that the access had originated from 104 unique IP addresses. It did not, however, disclose the IP addresses or the precise times of access. It merely “acknowledge[d] that access originated from a range of sources, including media organisations, various Australian Government agencies, internet proxies, TOR network and web crawlers”. It also noted that there was nothing to indicate that the disclosure of the underlying data was intentional or malicious. But as the High Court observed in SZSSJ at [7]:

Irrespective of the cause of the disclosure there was obviously a risk that those in other countries from whom applicants for protection visas claimed to fear persecution or other relevant harm might have gained access to the document containing the embedded information so as to become aware of the identities of applicants for protection visas in Australia.

8    The appellant filed an application in the Federal Circuit Court seeking an injunction preventing his removal from Australia as a result of the data breach but, according to the Commonwealth Courts Portal, that application was discontinued on 19 January 2015.

9    On 27 June 2014 the Department wrote to the appellant inviting him to put in writing his concerns. In the event that he had “any particular concerns about the impact of the data breach on [his] ability to return to [his] home country or country of usual residence”, he was asked to provide the Department within 14 days with “specific reasons and details for those concerns”. He was also told that he would be advised of the outcome of the assessment and that, if it was adverse to him and he had no ongoing matters before the courts or the Department, he would be expected to leave the country.

10    Three days later, Ms Byers, who is also a migration agent, responded on the appellant’s behalf. She noted, amongst other things, that The Guardian newspaper had reported that the information had been accessed in 16 countries including China. She stated:

There is no way of knowing who [SZTZM] 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 [SZTZM]’s ability to find employment and foreign governments may use this information as a reason not to grant visas for him to travel out of China. The possibilities are endless[.]

11    In a follow up letter Ms Byers notified the Department that the appellant also relied on the claims he had made in his protection visa application and in his application for review in the Tribunal.

12    On 13 January 2015 the assessor informed the appellant that an ITOA had begun. She told the appellant that the purpose of the assessment was to assess whether the circumstances of his case engage Australia’s non-refoulement obligations. As she later explained in her decision, Australia’s non-refoulement obligations arise under a number of international treaties and are incorporated in s 36(2) of the Migration Act. They require that a contracting State not expel a refugee (defined in Article 1A of the Convention relating to the Status of Refugees) where the refugee’s life or freedom would be threatened on account of any of his or her race, religion, nationality, membership of a particular social group, or political opinion. They also require that a person not be forcibly returned, deported or expelled to a place where there are substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal to a receiving country, there is a real risk (s)he will suffer “significant harm”, defined in s 36(2A) to mean the arbitrary deprivation of life, the imposition of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

13    The assessor explained the reason for the assessment and advised the appellant that any protection claims he may have in relation to “this breach of [his] personal data” would now be assessed through the ITOA. She told him that the assessment would consider Australia’s non-refoulement obligations, any new information and changes in his circumstances or nationality or former habitual residence since his previous protection claims were considered. She assured him that he would receive procedural fairness during the ITOA process because the assessor will ask him to comment on “any adverse information, which is credible, relevant and significant to the decision”. She invited the appellant to provide any further information he would like to be considered in the assessment.

14    The following day the appellant replied, through Ms Byers. The letter contained no such information. It merely noted that the Department had all the information in relation to the data breach and complained that the appellant would be denied procedural fairness unless the Department disclosed it to him. It also complained that the assessor, as an employee of the Department, could not conduct an impartial review.

15    On 5 February 2015 the assessor invited the appellant to provide additional comment on information relevant to the ITOA, attaching adverse information which would be considered and advising the appellant of the inferences that might be drawn from the information. In the attachment the assessor addressed the concerns about procedural unfairness. For present purposes it is sufficient to observe that the appellant was advised:

When assessing protection claims in relation to the privacy data breach, case officers are instructed to assume that the authorities in the claimant's receiving country may have accessed personal information released on the department's website. Case officers will refer to the claimant's personal circumstances and country information to determine whether the privacy data breach will affect the individual if he or she is returned to his or her country of origin.

The reason for this approach is that, although the KPMG review found that there were relatively few internet users who accessed the document, it is not possible to discount the possibility that the authorities in another country may have accessed this document. Accordingly, releasing the IP addresses, the unabridged KPMG report, or other information related to the privacy data breach, is·not required for a claimant to participate in this process.

16    Ms Byers replied that the appellant continued to rely on all his previous statements, submissions and statutory declarations made in relation to his application for a protection visa. Relevantly, she submitted that, without access to the information held by the Department, “all assumptions and claims made are speculation only”. She was critical of the assumption the assessor indicated would be applied, saying it was too narrow. She complained that it could not be assumed that “only the home country” had accessed the information, particularly when the country information (disclosed in the attachment to the assessor’s letter) did not deal with “the scenario of a foreign government placing the names and details of asylum seekers held in immigration detention facilities on the world wide web …”. In these circumstances, she submitted that the appellant should be found to be a refugee sur place. This submission, I hasten to add, had also been made in the earlier correspondence.

17    On 19 March 2015 the assessor determined that Australia’s non-refoulement obligations were not engaged in the appellant’s case.

18    In her reasons for decision, the assessor began by noting the purpose of the assessment. After satisfying herself of the appellant’s identity, she recounted the relevant history, including the correspondence passing between him or his agent and the Department. Amongst other things, she noted the discontinued application in the Federal Circuit Court and observed:

He stated that the publication of his private information rendered him a refugee 'sur place' and for Australia to return him to China would be in breach of the non-refoulement principle contained in Article 33 of the United Nation's Refugee Convention and incorporated into section 36(2)(a) of the Migration Act 1958. The claimant advised he was concerned that the sharing of his confidential information with his country of origin, including the fact that he applied for asylum in Australia, could create serious repercussions for him with the Chinese authorities.

19    The assessor then summarised Australia’s non-refoulement obligations. She found that the appellant was a citizen of China and that China was therefore the relevant country for the purpose of assessing whether he was owed non-refoulement obligations.

20    She said that, apart from the claims concerning the disclosure of the information on the Department’s website, there was no evidence to indicate that the appellant’s circumstances had changed since his protection claims were assessed by the Tribunal, he had provided no new information, and the Tribunal’s decision did not suggest any legal error. Consequently, she said, she accepted the Tribunal’s findings. She then proceeded to examine the implications of the data breach.

21    She noted that the appellant had claimed that the personal information released on the Department’s website, including his protection claims, could cause him to be harmed by “the Chinese authorities” on return to China. But she observed that the information disclosed on the website did not include any details of his protection claims. She said she was unable to find any country information to indicate that a person in the appellant’s particular situation would have a profile that could potentially cause him to be subjected to a real chance of serious harm or a real risk of significant harm by the Chinese authorities.

22    The assessor then turned to consider whether the appellant faces a real risk of serious harm or a real risk of significant harm by the Chinese authorities on return to China because of his unauthorised absence from China and his unlawful residence in Australia since 2010. On this question she said:

As the claimant departed China lawfully, I do not consider that he would be subjected to any form of punishment in relation to his departure from his country of origin. However, in relation to his now prolonged, unauthorised absence from China and unlawful residence in Australia, taking into account the country information cited above and his personal circumstances, I consider that the claimant could be briefly detained and questioned at the border on return to China. However, I consider that brief detention for questioning under such circumstances would be in line with China's laws of general application concerning exit and entry procedures at the border and would not be for any Convention reason. I do not consider the claimant would be subjected to serious harm or significant harm which is systematic and discriminatory and therefore it would not amount to persecution. In the claimant's particular case, given that he does not have an adverse profile with the Chinese authorities, even if the Chinese authorities were to suspect he remained in Australia for economic reasons and/or that he applied for a Protection visa in order to remain in Australia, I am satisfied that other than being briefly detained for questioning regarding his absence from China and his reason(s) for remaining in Australia, the claimant does not have an adverse profile with the Chinese authorities that could cause him to be subjected to a real chance of serious harm amounting to persecution, nor a real risk of significant harm.

23    The assessor noted the submission that the information could be dispersed beyond authorities in China and that this could affect his ability to find employment or obtain visas. Since his country of “reference” (presumably nationality) is China, however, and the latter submission speculative, the assessor declined to address these matters.

24    In the covering letter the assessor informed the appellant that he should make arrangements to leave Australia voluntarily and that, if he did not, the Department was required to make arrangements to remove him “once all matters relating to [his] immigration status [had been] finalised”.

The power of removal

25    It is deeply troubling that the Department has resolved to remove the appellant from Australia when he has invoked his statutory right to appeal the decision of the lower court. The Department’s decision rests on s 198(6) of the Act, which is in the following terms:

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)    one of the following applies:

    (i)    the grant of the visa has been refused and the application has been finally determined;

    (ii)    the visa cannot be granted; and

    (iii)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

26    The appellant is a detainee. He has made a valid application for a substantive visa. The grant of the visa was refused. The application was finally determined: Migration Act, s 5(9)–(9A). The final determination was made on 12 February 2014 when the Tribunal affirmed the delegate’s decision. The administrative decision need not be valid to have been “finally determined”: SZKUO v Minister for Immigration and Citizenship (2009) 180 FCR 438 at [24]. In any event, the appellant never sought judicial review of the Tribunal’s decision.

27    The only remaining question is whether it is reasonably practicable to remove the appellant, as planned, while his appeal is pending. There are a number of cases in which this question has been considered: see Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] FCA 1571 at [34] and SZSPI v Minister for Immigration and Border Protection and Another (2014) 233 FCR 279 at [17]–[21]. But the appellant did not challenge the power of an officer to remove him. The question does not therefore arise.

The decision of the Federal Circuit Court

28    The appellant relied on four grounds of review in the court below. All four were dismissed.

29    The first ground pleaded that the assessor had misdirected herself and/or asked herself the wrong question. It is unnecessary to say anything more about it other than to note that, as I understand it, the complaint is largely replicated in ground 1 of the notice of appeal. Grounds 2 and 4 of the review application are presently irrelevant. Having regard to the grounds of appeal and the way in which the interlocutory application was argued, it is also unnecessary to refer to the primary judge’s reasons for dismissing these three grounds.

30    The only ground which is presently relevant is ground 3. It pleaded that the assessor denied the appellant procedural fairness by failing to warn him that she would not apply the assumption made in SZSSJ that all of the appellant’s personal information had been accessed by all the persons or entities from whom he feared persecution or other relevant harm.

31    I interpolate that in SZSSJ a Full Court of this Court made declarations that the process conducted to assess the implications of the data breach for SZSSJ and SZTZI had been procedurally unfair and, in the appeal by SZSSJ, granted an injunction restraining the Minister and the Secretary from removing him until after the determination of the ITOA process. No injunction was sought by SZTZI but the Full Court declared that the process was procedurally unfair. The High Court unanimously allowed the Minister’s appeals in both cases. It agreed with the Full Court that procedural fairness was required but it held that procedural fairness had been afforded. In the course of its reasons the court said this (at [90]-[91]):

90.    The assumption made in the ITOA process that their personal information may have been accessed by authorities in Bangladesh and China removed from the scope of factual inquiry any question of precisely who accessed their personal information as a result of the Data Breach. The assumption was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them, and when, might be expected to have been a hopeless endeavour.

91.    Sensibly interpreted and applied in the context of making an assessment of whether the Data Breach engaged Australia's non-refoulement obligations with respect to them, the assumption was not simply that some of their personal information might have been accessed by some authorities. The assumption was rather that all of their personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm. That is how the assumption was in fact interpreted and applied by the officer who conducted SZTZI's ITOA and how it could reasonably be expected to be interpreted and applied in the conduct of SZSSJ's ITOA.

(Emphasis added.)

32    The primary judge noted that ground 3 was not pressed and in this Court, the respondents submitted, without contradiction, that no written or oral submissions were made. Nevertheless, as the primary judge noted, the ground was not withdrawn.

33    The primary judge disposed of ground 3 by accepting in their entirety the Minister’s submissions, which were as follows:

The applicant has not made any separate submissions in respect of ground 3. This ground proceeds on the assumption that the third respondent did not assume that the applicant’s personal information had been accessed by persons or entities from whom he feared persecution or other relevant harm. That assumption is factually incorrect. The ITOA noted the instructions to officers conducting ITOAs as to the assumption (relevantly identical to the instruction in SZSSJ) and the ITOA expressly considers the position “even if the Chinese authorities were to suspect he remained in Australia for economic reasons and/or that he applied for a Protection visa in order to remain in Australia” and “even if a prospective employer accessed the claimant’s personal information as a result of the website disclosure”. The third respondent [the assessor] was satisfied that even if such access had occurred, the applicant did not have a profile that would give rise to a relevant risk of harm. Ground 3 should be dismissed.

(Original emphasis.)

The appeal

34    The notice of appeal contained one ground, that:

The Federal Circuit Court erred in not finding that the [assessor] misdirected herself and/or asked the wrong question.

35    Seven particulars follow. The gravamen of the complaint is that the assessor informed the appellant that the purpose of the ITOA process was to assess any protection claims he may have in relation to the data breach but that she went further. Instead of asking herself whether the appellant’s claim for protection relating to the data breach attracted Australia’s non-refoulement obligations, she asked herself whether the appellant had provided evidence to contradict the Tribunal’s findings.

36    In his written submissions in support of the interlocutory application the appellant’s counsel, Mr Lawrence, conceded that the appellant was “not assisted” by two recent decisions of this Court in AKD15 v Minister for Immigration and Border Protection [2017] FCA 166 (Markovic J) and ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 (Mortimer J). At the hearing of the interlocutory application, Mr Lawrence said he anticipated that ground 1 would be abandoned and that he had nothing further to say about it. He explained that he would not be submitting that this ground raised a serious question to be tried. His position at least for the purposes of the interlocutory application was that the two judgments referred to above were relevantly indistinguishable and he did not contend that they were wrong.

37    The appellant’s entire case rested on a second ground of appeal included in a draft amended notice of appeal he was granted leave to file in court. That ground was in the following terms:

The Federal Circuit Court erred in finding that the assessor had applied the same assumption applied in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 and therefore erred in not finding that the appellant had been denied procedural fairness.

The scope of the present dispute

38    There is no dispute that the Court has the power to grant the relief the appellant seeks. That power is expressly conferred by s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that “[t]he Court has power in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”. That power is available in the exercise of the appellate jurisdiction conferred by s 24(1) of the Act to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under the Migration Act: see Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152 at [7]. There can be no question that the Court has jurisdiction to make interlocutory orders to prevent the frustration of its processes (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [35]) and an implied or inherent power to preserve the subject matter of the appeal: Woolworths Ltd v BP plc (2006) 150 FCR 134 at [48]. See, too, Tait v R (1962) 108 CLR 620.

39    An applicant for an interlocutory injunction must first show that he has a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. What will be sufficient will depend on “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks”: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

40    These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341; (2000) 74 ALJR 830 at [7] (Gleeson CJ).

41    That means that the appellant must satisfy the Court that, prima facie, the primary judge was wrong to conclude that the assessor had made the same assumption that the High Court found had been made in SZJSS.

42    Secondly, the appellant must show that the inconvenience of the injury he would be likely to suffer if the injunction were not granted outweighs the injury the respondents would suffer if it were granted.

43    These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, the strength of an applicant’s case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively):

[A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

44    In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, however, Gleeson CJ observed at [18]:

The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff’s claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule.

Should the injunction be granted?

45    The harm that would be occasioned to the appellant if an injunction is not granted would be irreparable. Absent an injunction it is likely, if not inevitable, that he will be removed from Australia to China. As the respondents conceded, this would have the practical effect of rendering his appeal nugatory. There can be no doubt that damages would be an inadequate remedy. In these circumstances, even a weak case would be sufficient to tip the balance of convenience in the appellant’s favour. The real question, then, is whether the ground of appeal relied upon raises a reasonably arguable case of error. In substance, that devolves into a question as to whether the assumption made by the assessor was materially different from the assumption the High Court said was made by the assessor in SZSSJ.

46    The primary judge correctly observed that the instruction as to the assumption to be made, recorded by the assessor in her decision and in the Departmental correspondence, is “relevantly identical” to the one given in SZSSJ: see SZSSJ v Minister for Immigration and Border Protection and Others (No 2) (2015) 234 FCR 1 at [122] and SZSSJ at [26].

47    The appellant accepted that the assessor had told the appellant in effect that she had made such an assumption but submitted that a close analysis of her reasons revealed otherwise.

48    In particular, the appellant submitted that the assessor did not assume that the local officials in Baoding, from whom he claimed to fear persecution, had had access to that information. He argued that the closest thing to an “assumption” as to access to the information appears in the passage of the decision where the assessor stated:

[E]ven if the Chinese authorities were to suspect he remained in Australia for economic reasons and/or that he applied for a Protection visa in order to remain in Australia, I am satisfied that other than being briefly detained for questioning regarding his absence from China and his reason(s) for remaining in Australia, the claimant does not have an adverse profile with the Chinese authorities that could cause him to be subjected to a real chance of serious harm amounting to persecution, nor a real risk of significant harm.

49    The appellant contended that this was “clearly” a reference to officials who might be involved in questioning the appellant at the Chinese national border and, to the extent that the assessor made any relevant assumption, it “clearly” did not involve an assumption that the appellant’s information had been accessed by the persons or entities from which he feared persecution — the local officials in Baoding. Consequently, he contended that the primary judge erred in accepting the Minister’s submission that the assumption applied in the present case was relevantly identical to the assumption in SZSSJ.

50    It is not in dispute at least for present purposes that, if the appellant’s contention be right, that is to say, if the assumption made in SZSSJ was not made in this case, then he was denied procedural fairness and the assessor’s decision would have been made in excess of jurisdiction: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [17], [41].

51    I am not persuaded, however, that there is any merit in the contention or in the notion that the assessor did not apply the assumption she was instructed to make and that there is therefore a reasonably arguable case that the primary judge was wrong to conclude that the assumption made in the present case was relevantly identical to the assumption made in SZSSJ.

52    First, the appeal to this Court is in the nature of a rehearing in which error must be shown. In circumstances such as these, where the appellant made no submissions to the primary judge in support of his contention and no particulars were given in the application, it is difficult to accept that an appellate court would find that her Honour was wrong to come to the conclusion she did.

53    In any event, there is no reason to read down the reference to “the Chinese authorities”. Nor is there reason to doubt that the assessor applied the assumption she told the appellant she had been instructed to make. Not only did the assessor refer to the instruction in her reasons, she also said:

In relation to the privacy data breach incident, you have indicated that the personal information released on the department's website (specifically your claim for protection) could cause you to be harmed by the Chinese authorities who you have alleged will persecute you on return to your country of origin. However, as stated above, no details regarding your protection claims in Australia were publicly disclosed due to the privacy data breach. The list of detainees inadvertently published by the department in February 2014 indicates that you were in Australia on a Visitor visa and states that you are an ‘overstayer’ (this is listed as the reason for your unlawful status).

(Emphasis added.)

54    “The Chinese authorities” whom the appellant alleged would persecute him on his return were (or at least included) local and provincial authorities. It is obvious from the assessor’s response to the appellant’s concern that she assumed that those authorities might have access to his personal information disclosed as a result of the data breach.

55    The distinction between this case and SZSSJ is illusory.

56    The appellant also submitted that part of the assessor’s task was to reconsider the appellant’s substantive claim in the light of the data breach and that when undertaking that task (in the first four paragraphs of part 10 of her reasons) she did not bring to bear the assumption that the authorities might have had access to his personal information. I reject the submission. The assessor’s task, as she explained in her decision, was to consider whether Australia had non-refoulement obligations to the appellant in the light of the data breach. Contrary to the appellant’s submission, the assessor was not “reconsidering” and “rejecting” the appellant’s claims. In the paragraphs in question, the assessor was summarising the Tribunal’s findings and noting the absence of material to indicate that there was any basis to reconsider them. In the absence of any reason to call those findings into question, the assessor was entitled to proceed, as she did, on the basis that the facts as found by the Tribunal were true. The occurrence of the data breach could not affect those findings, although it might have provided the foundation for a different reason to believe that the appellant could suffer serious or significant harm as a necessary and foreseeable consequence of his removal from Australia to China.

57    It follows that I am not persuaded that there is a prima facie case that the primary judge erred in accepting the Minister’s submission that the assumption made by the assessor in the present case was the same assumption that was made in SZSSJ. No other error is raised or relied upon. Consequently, there is no sufficient likelihood of success to justify the preservation of the status quo pending the appeal.

58    In the circumstances I have no alternative but to dismiss the interlocutory application. Costs should follow the event.

Associate:

Dated:    18 May 2017