ALZ15 v Minister for Immigration and Border Protection

Background 5 The appellant has made two previous unsuccessful applications for protection visas. The last was in June 2013. It was refused, and that decision was affirmed on review by the Refugee Review Tribunal (RRT) on 20 January 2014. The appellant sought judicial review through the Federal Circuit Court and then on an application for leave to appeal to this Court but was unsuccessful: see SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3. 6 While he was undertaking judicial review, the publication to which I have referred above at [1] occurred, in February 2014. How the publication occurred is set out in SZSSJ at [3]-[7]. 7 A letter from the Secretary of the Department dated 12 March 2014 informed the appellant about the publication, in substantively the same terms as the letter sent to the appellant in SZSSJ, assuring him that the "implications for you personally" will be assessed by the Department "as part of its normal processes". In fact, rather than any "normal process", what occurred was that all those affected were given special access to a further protection obligations assessment, namely the ITOA to which I referred in [1] above. Notification of this process to the appellant took some time. He was not informed about the ITOA process until February 2015, a year after the publication. Counsel for the Minister accepted there was no evidence before the Court about why it took a year before the appellant was notified of the ITOA process. The appellant remained in immigration detention for all this time: so much is apparent from the affidavit he filed on this appeal, dated 7 August 2015, in which he gave his address as Villawood Immigration Detention Centre. After an event such as the public release of his personal identifying information, it seems extraordinary for the appellant to be detained for an entire year with no progress at all in addressing the consequences of such a disclosure for him. 8 By that correspondence in February 2015, the appellant was told about the ITOA and that its purpose was to assess the effect of the publication on Australia's non-refoulement obligations with respect to him. He was told that information he had already provided would be taken into account in the ITOA, and he was invited to provide any further information within 14 days of receiving the letter. 9 The appellant provided a response by email. In this document the appellant made six points: 1. The DIBP possesses all the information in relation to the data breach, in particular the unabridged report from KPMG which provides details such as IP addresses and number of accesses to the information; 2. On page 2 of your letter you mention that that I will receive procedural fairness during the ITOA process. I respectfully submit that procedural fairness is more than just putting adverse material for comment. On the contrary natural justice and procedural fairness or the "fair hearing" rule requires that all relevant information be provided before preparation of a reply. I cannot effectively and competently prepare my claim with respect to the data breach that I am a refugee sur place without having access to that information. I respectfully submit that to deny me access to the information held by DIBP is a breach of natural justice and procedural fairness; 3. If DIBP will not give me access to the information then the only course of action open to you is to recognise me as a refugee sur place; 4. Your employer, DIBP breached s336E of the Act in disclosing my name and personal details on the Internet. The breach is a criminal act. Complaints have been made to the Australian Federal Police (AFP) and the Office of the Australian Information Commissioner (OAIC). The applicant's OAIC complaint reference no.: [redacted]. 5. The AFP is awaiting the outcome of the Privacy Commissioner complaint and court matters SZSSJ and SZTXY before commencing its own investigation; and 6. An opportunity to be heard by an "impartial decision maker" is at the heart of natural justice and procedural fairness. Your employer, DIBP has placed you as the decision maker in a position of conflict of interest. You are required to make a decision on whether there is a real chance that I will face serious or significant harm upon return to Thailand due to my name and personal details being placed on the Internet by your employer. You cannot undertake this assessment without having full disclosure of the information that is in the possession of your employer to you and I cannot make any submissions without full disclosure of this information to me. Can you be an impartial decision maker and make a decision adverse to your employer? If you make a decision adverse to me without disclosing any information in relation to the data breach then you have breached the rules of natural justice and procedural fairness. Therefore, I respectfully submit that the only decision is open to you is to find that I am a refugee sur place. 10 I accept the Minister's submission this email appears to have been sent around 19 February 2015. 11 The officer assigned to conduct the ITOA, Ms Fernandes, wrote to the appellant on 17 March 2015. This is how she described what the assessment would involve: This ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case. This ITOA will only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken. 12 This letter addressed the points the appellant had raised in his email about procedural fairness, conflict of interest, the outcome of the appellant's claims for protection and what was disclosed in the February 2014 publication. The letter also contained some matters under a heading "Adverse inferences which may be drawn". In this section, Ms Fernandes directly addressed the claim made by the appellant in his 19 February 2015 email that he would face harm at the hands of the Thai authorities because of the website publication. She continued: The evidence before the department appears to indicate that you were not of interest to the Thailand authorities prior to your departure from Thailand and that you do not have an adverse profile with the Thailand authorities which could potentially expose you to a real chance of serious harm or real risk of significant harm on return to your country of origin. 13 Ms Fernandes went on to reproduce the findings made by the RRT on the appellant's review, all of which were to the effect that any consequences which might befall the appellant would be as a result of Thai laws of general application, without any discriminatory treatment and that there was no risk of serious harm to the appellant in being detained in Thai prisons. She concluded: There is no evidence before the department to indicate that there has been any change in your circumstances or country of origin information since your previous protection claims were assessed. … I am unable to locate any country of origin information that supports the conclusion that these organisations would find the information released on the department's website valuable and usable or that they would use such information to target and harm you. 14 I note, as the Minister submitted, that this letter contained similar material to that sent to the individual claimant in SZTZI (the second appeal heard with SZSSJ), to which the High Court referred in SZSSJ at [26]. 15 In particular it is worth noting the feature of the correspondence which was noted by the High Court: namely that officers such as Ms Fernandes were instructed to assume (favourably to the individual claimants) that a person's personal information may have been accessed by authorities in the country in which person feared persecution or other relevant harm. 16 The appellant did not provide any response to Ms Fernandes' letter. Ms Fernandes proceeded to make her assessment. By a document dated 13 April 2015 Ms Fernandes notified the appellant of the outcome of that assessment. Ms Fernandes found that Australia did not have non-refoulement obligations to the appellant. The last page of the document indicates that the Manager of IMA Protection in New South Wales agreed with the assessment, although the agreement is dated the same day as the assessment and it is unclear what process was undertaken before the Manager indicated agreement. 17 It is unnecessary to go through the ITOA reasons in detail, although the following aspects should be noted. Under the heading "Findings of Fact (Credibility)", Ms Fernandes found there was no evidence to indicate there had been any change in the appellant's circumstances since his protection claims were assessed and therefore the RRT's findings on those claims remained "valid and effective". I assume Ms Fernandes was using this phrase as a shorthand way of saying there was no basis for her to need to revisit those findings on their merits since the underlying sub-stratum of fact was not asserted to have changed, rather than pronouncing upon the legal validity or effectiveness of those findings, which would not be a matter for her. 18 Ms Fernandes then addressed the appellant's arguments about procedural fairness and conflict of interest that he had raised in his 19 February 2015 email. 19 Thereafter she turned to what I later explain is the second, and most critical of her two tasks: to assess the effect of the website publication of the appellant's personal information on the website on what might happen to the appellant were he to be returned to Thailand. She did so under four headings: "Fear of being targeted and harmed by the Thai authorities as a consequence of the website disclosure"; "Fear of being targeted and harmed by foreign security and intelligence agencies, terrorist organisations and criminal syndicates"; "Fear of being denied employment as a consequence of the website disclosure"; and "Denial of visas for travel". She then also dealt with the appellant's claim to be a refugee "sur place". After considering these matters, Ms Fernandes reached a conclusion on Australia's non-refoulement obligations under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) (in Part B of the document) and under the ICCPR (International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171; 6 ILM 386 (entered into force 23 March 1976)) and CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85; 23 ILM 1027 (entered into force 26 June 1987)) (in Part C of the document). 20 The appellant sought judicial review of Ms Fernandes' decision in the Federal Circuit Court. Although the decision records the appellant as appearing in person, it is clear from the grounds as expressed in the Federal Circuit Court decision that the appellant had some assistance in formulating his grounds of review. 21 The Federal Circuit Court decision was handed down prior to the High Court's decision in SZSSJ. Thus it considered in some detail the Federal Circuit Court's jurisdiction to deal with applications of this kind, a matter settled in favour of jurisdiction by the High Court in SZSSJ. Aside from the jurisdiction question, there were 16 grounds of review raised and the learned Federal Circuit Court Judge dealt with each of them. In relation to grounds alleging denial of procedural fairness, the Federal Circuit Court dealt with these on a substantive basis, while acknowledging the Minister's arguments that no duty to afford procedural fairness was owed. In SZSSJ the High Court found a duty of procedural fairness was owed: see [2]. 22 That application was dismissed by the Federal Circuit Court on 17 July 2015, and from that decision the appellant appeals to this Court.