consideration
21. In his written submissions the appellant submitted that the third respondent had relied upon findings made by the Tribunal which predated the representation to the appellant that an assessment would occur and that these findings were adverse and determinative of the appellant's claims. The appellant further submitted that the third respondent had deflected the task of making an assessment of the consequences of the Data Breach for the appellant personally with the findings ultimately "anchored" to the earlier decisions. Thus, the appellant contended that the assessment had not occurred and the representations in the 12 March 2014 letter that the Department would assess the consequences of the Data Breach personally and those representations in the third respondent's letter dated 15 February 2015 had been rendered meaningless. The appellant relies on the decision of the Federal Circuit Court in SZUBX v Minister for Immigration and Border Protection & Anor [2015] FCCA 2822 (SZUBX) (Street FCCJ).
22. At the hearing the appellant submitted that the Department had revealed his personal information, which was unfair and had caused him personal anxiety; that he came to Australia from China as if he were a refugee, had been in Australia for 10 years and spent three to four years in detention; that last month he attended the Chinese consulate to renew his passport, which had expired, and last week the consulate called him and said: "you applied for refugee status, protection, in Australia"; that the Chinese government had learnt "everything about [him]"; and that the consulate kept his passport and he still does not have one.
23. Turning first to the appellant's oral submissions. They did not address the ground proposed in the draft notice of appeal but rather raised what could be described as personal concerns and alleged effects of the Data Breach. The unfairness of and anxiety caused to the appellant by the Data Breach are matters that go to the merits of the appellant's claim arising from the Data Breach. They are not matters for this Court. Nor are the appellant's alleged dealings with the Chinese consulate matters that this Court can take into account on appeal. The Court's task is confined to considering whether there is any appellable error in the judgment in AKD15.
24. In order to consider the appellant's proposed ground of appeal it is necessary to first consider the judgment in SZUBX. There the applicant had been informed that the ITOA would assess "whether there are any non-refoulement concerns" preventing the Department from progressing removal arrangements and was invited to attend an interview as part of the process. The applicant was "informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous officers": SZUBX at [10]. Judge Street found that this was not a correct focus in relation to the assessment of Australia's non refoulement obligations to the applicant.
25. His Honour held that it was a breach of procedural fairness to conduct the ITOA interview on the basis that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers, in circumstances where he had been invited to attend an interview for the purpose of assessing whether Australia owed the applicant a non refoulement obligation: SZUBX at [15]. Judge Street accepted the applicant's submission that, "in substance, the assessor deflected himself from the appropriate task by focusing upon explanations as to disagreement with the findings of previous officers, which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant's claims and fears": SZUBX at [16].
26. Judge Street found that the assessor's reasoning demonstrated a focus on previous adverse findings and that there was an "over-focus and anchoring effect in the present case by the assessor to a task of seeking explanation on adverse findings", which was not the correct task in assessing non refoulement obligations: SZUBX at [21]. His Honour held that the requisite practical injustice consisted of "the interview conducted in this deflected and anchored way": SZUBX at [22].
27. I accept the respondents' submission that the decision in SZUBX can be distinguished from this case on the following bases:
(1) first, in this case the third respondent did not conduct an interview with the appellant for the purposes of the ITOA. Thus the question as to whether an interview was conducted in the "deflected" manner identified in SZUBX does not arise;
(2) secondly, the third respondent did not make any statement during the course of the ITOA suggesting that he was focusing on the appellant's explanations for disagreeing with previous findings made by other officers in assessing his protection claims;
(3) thirdly, the third respondent's letter dated 16 February 2015 expressly stated that the ITOA would "only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken" and attached a document setting out the adverse information he intended to consider in the ITOA. The appellant was invited to comment on the adverse information and provided the response referred to at [9] above. Neither the attachment to the letter nor the ITOA itself disclose an inappropriate focus on the appellant's explanations for disagreeing with previous findings made about the appellant. In the attachment the third respondent referred to the appellant's application for a protection visa and the rejection and subsequent reviews of that application. The third respondent noted that there was "no indication that there was any legal error in the department's and the RRT's decisions". The ITOA also referred to the appellant's previous claims for protection and their assessment, again concluding that there was "no indication that there was any legal error in the department's and the RRT's decisions";
(4) fourthly, in contrast to SZUBX, it had been made clear to the appellant in the letters sent to him that the purpose of the ITOA process was to assess whether he engaged Australia's non refoulement obligations as a result of the Data Breach, not to redetermine his previous claims made on other bases or to consider his explanations for disagreeing with previous adverse findings:
(a) the letter dated 14 January 2015 from the Department notifying the appellant of the commencement of the ITOA provided:
The reason the department has commenced this ITOA is that some of your personal information was included in a routine report released on the department's website unintentionally enabling access to personal information about people who were in immigration detention on 31 January 2104. Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA.
And:
This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.
(emphasis added); and
(b) the letter dated 16 February 2015 from the third respondent provided that the ITOA would only consider claims and country information not previously addressed in any prior protection obligations assessment (see subpara (3) above); and
(5) fifthly, the third respondent's findings were not anchored to earlier decisions as submitted by the appellant. The third respondent had regard to the Tribunal's finding that the appellant did not have an adverse profile with the Chinese authorities at the time he left China, thus focusing on the underlying reasoning in relation to his claims and fears: see SZUBX at [16]. But the third respondent then went on to consider whether there had been any change in the appellant's circumstances since his protection claims had been assessed, whether there was any new information which suggested that he had been involved in activities in Australia that would bring him to the adverse attention of the Chinese authorities and considered his claimed fears as a result of the Data Breach.
28. In this case the primary judge correctly held that the ITOA assessment provided the appellant with "a real and genuine opportunity to respond to the information raised in the letter dated 16 February 2015 as to whether Australia had any non-refoulement obligation arising out of the data breach": AKD15 at [13]. In the ITOA the third respondent made an assessment of the appellant's claims arising from the Data Breach taking into account all of the information available to him about the appellant's profile with the authorities in China and others whom he claimed may have accessed his information. In contrast to the position in SZUBX, the third respondent undertook the task consistently with the statements made to the appellant about the purpose of the ITOA and what he would consider. The third respondent did not, as submitted by the appellant, "deflect the task of making an assessment of the consequences of the data breach for the appellant personally".
29. Finally, as submitted by the respondents, the breach of procedural fairness identified in SZUBX was not, as the appellant suggests, reliance on earlier findings made by the Department or Tribunal. It was the focus by the assessor in that case on the applicant's explanations as to disagreements with previous findings, rather than on the underlying reasoning as to the applicant's claims and fears. Contrary to the appellant's submissions, procedural fairness did not require the third respondent to redetermine all of the appellant's previous claims in order to lawfully conduct the ITOA.
30. For these reasons, in my opinion, the proposed ground in the draft notice of appeal is without merit and I would not grant leave to the appellant to raise it. It follows that the appeal should be dismissed and that the appellant should pay the respondents' costs as agreed or taxed. I will make orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.