APH15 v Minister for Immigration and Border Protection

Prior protection visa claims 8 On 31 August 2007, the appellant, a citizen of the People's Republic of China, was granted a subclass 679 sponsored visitor visa. On 24 October 2007, she arrived in Australia. On 4 December 2012, she was identified as an unlawful non-citizen and detained under s 189 of the Migration Act 1958 (Cth). On 4 March 2013, she lodged a valid application for a protection visa. On 15 July 2013, a delegate of the Minister refused the grant of a protection visa. On 6 September 2013, the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed the delegate's decision. 9 On 20 November 2013, the appellant wrote to the Minister asking that he exercise his discretion under s 48B or s 417 of the Migration Act, to allow a further protection visa application to be made or to grant a visa, respectively, to allow her to remain in Australia with her partner and future husband, whom she was planning to marry on 22 January 2014. The marriage ultimately did take place on that day. The appellant's letter stated that she was a Chinese national and that her fiancé was a Tamil (later apparently corrected to be Sinhalese) from Sri Lanka who was found to be a refugee, but who had been given an adverse security clearance. 10 The Minister's intervention was sought on compassionate grounds. The appellant's letter characterised the appellant's fiancé as being in a position analogous to a permanent resident of Australia to which the Minister's guidelines applied, by reason of the fact of his indefinite detention in Australia. It was asserted that the relevant unique and exceptional circumstances for the purposes of the guidelines arose from the fact that neither the appellant nor her fiancé had a visa to remain in Australia, with the appellant being in imminent danger of removal and her fiancé facing indefinite detention in Australia. It was asserted that it was in Australia's public interest that the Minister show compassion and let the appellant remain in Australia permanently. The appellant's letter also detailed her life in Australia, her work history and her fiancé's circumstances, and enclosed various letters of support and related documents. 11 On 5 February 2014, the Department wrote to the appellant and advised her that the Minister had declined to exercise his power under s 417 of the Migration Act in her case. 12 On 24 February 2014, the appellant's solicitors wrote to the Department and again asked that the Minister exercise his discretion to permit a second protection visa application to be made, pursuant to s 48B of the Migration Act. The basis for the application was that the appellant feared that she would face a real chance of persecution if she were to return to China, as she feared that the Chinese authorities would consider her a traitor and enemy of the state for seeking asylum in Australia. It may be observed that this was the last date upon which the Data Breach had taken place and, accordingly, each step to this point of time took place without any awareness on the part of the appellant, and most likely any of those within the Department dealing with her protection visa and other applications.

Before the assessor 13 On 12 March 2014, the then Secretary of the Department wrote to the appellant (along with other persons affected) advising of the Data Breach, as referred to above. 14 On 17 March 2014, the appellant applied to the Federal Circuit Court of Australia for an order that the Minister, the Tribunal and the assessor show cause why a constitutional writ should not issue based on the Data Breach. At that time, an injunction was also sought preventing her removal from Australia. 15 On 25 June 2014, an officer of the Department wrote to the appellant, referring to the Secretary's Data Breach notification letter of 12 March 2014 and also to the application for judicial review filed in the Federal Circuit Court. The letter invited the appellant, if she had any particular concerns about the impact of the Data Breach on her ability to return to her home country or country of usual residence, to provide specific reasons for, and details of, those concerns within 14 days. The appellant responded in writing, referring to the Data Breach and the impossibility of knowing who had accessed her information, and therefore who she could face a real risk of harm from, as it "may go well below the authorities, insurgents and paramilitaries in my home country, including foreign security and intelligence agencies". The appellant's letter further stated that the 14-day period in which to respond was unreasonable, given the lack of assistance she said was available to her to prepare a response, and seeking that such assistance be made available through a migration agent or lawyer. 16 On 30 June 2014, the appellant's solicitor wrote to the Department, again responding to the 25 June 2014 letter, and asserted a right to receive more details as to who had been able to access the appellant's personal information, as well as asserting a conflict of interest in having an officer of the Department conduct the ITOA. The letter enclosed the appellant's certificate of marriage to her fiancé, who was also said to be a victim of the Data Breach. A follow-up letter from the appellant's solicitor dated 8 July 2014 advised that she also sought to rely upon claims that she made in her original protection visa application to the Department, as well as in her application for review to the Tribunal. 17 On 14 January 2015, an officer of the Department wrote to the appellant advising that the Department had that day commenced an ITOA. The letter sought any further information in relation to the ITOA process within 14 days. 18 On 19 January 2015, the appellant's solicitor responded in writing to the Department's 14 January 2015 letter regarding the ITOA. That letter sought more detailed information about the Data Breach and again asserted that an impartial ITOA process could not be carried out by an officer of the Department, by reason of a conflict of interest arising from the Department being responsible for that breach occurring in the first place. 19 On 16 February 2015, the assessor sent a further letter to the appellant, as well as a copy to her solicitors, which enclosed information said to be relevant to the ITOA and inviting comment. The attachment outlined the objections that were contained in the letters sent by the appellant's solicitors on 30 June 2014 and 19 January 2015. The attachment addressed the issues of procedural fairness, conflict of interest, prior protection visa claims, the Data Breach "incident" and country information relating to departures from China and the treatment of failed asylum seekers upon returning to China. The attachment to the assessor's letter gave notice of the "adverse inferences" which could be drawn on the available information. This included a prediction to the effect that other than being briefly detained for questioning regarding her absence from China and her reasons for remaining in Australia, there was no real chance that she would be subjected to serious harm amounting to persecution, nor a real risk of significant harm. 20 On 17 February 2015, the appellant's solicitor responded to the Department's 16 February 2015 letter and attachment, pointing out that reference had not been made to the fact that the appellant was "now married to a Sri Lankan national who has an adverse ASIO finding and how this would affect [her] and may even expand her own protection claims against Sri Lanka and the foreign agencies that have an adverse interest in her husband". The solicitor's letter substantially repeated the complaints about the ITOA process, asserting that assumptions made about what access had been obtained was "speculation only", that the Department could not effectively and fairly assess whether non-refoulement obligations are engaged and that to do so was still a denial of procedural fairness. The solicitor's letter quoted from a single judge decision of this Court about the perceived inadequacies of the ITOA process, which has now been superseded by the High Court's decision in SZSSJ, and again sought further details about the Data Breach. 21 The ITOA conducted by the assessor was concluded on 9 April 2015, with a finding that non-refoulement obligations were not engaged in the appellant's case. Detailed reasons were supplied for that conclusion, sent under cover of a letter advising of the decision that had been made. Those reasons included a summary of the adverse information put to the appellant and the response provided on her behalf. The summary of the response was as follows, including footnotes: On 17 February 2015, the claimant's representative responded to the concerns raised in the departmental letter. The claimant's representative states that: • Without access to the information held by the department, 'all assumptions and claims made are speculation only. To assume that only the home country has accessed the information is casting too narrow field in speculation as to who has accessed, saved, copied and sent on and received the information and as to who could harm the applicant' and 'the assumption that case officers are to accept that the home country has had access to the information then assess the applicant's claims against the country information is a flawed assumption to make, particularly as the country information does not deal with the scenario of a foreign government placing the names and details of asylum seekers held in its immigration detention facilities on the world wide web, breaching the migration Act, asylum seekers' confidentiality and international human rights obligations … the department cannot effectively assess the real chance of serious or significant harm that it has placed the applicant in and should find the applicant is now a refugee sur place'. • An employee of the department which has 'breached the confidentiality of the applicant, who has not been granted access to the information held by the department, cannot effectively and fairly assess whether disclosing of the applicant's name and details on the world wide web the non refoulement obligations are engaged … it is still a denial of procedural fairness…". • In relation to the KPMG Report, '… no-one knows how many times the information was copied, saved, stored and sent on. This information has now been stored by unknown persons/organisations and can be accessed for eternity and the harm caused to the applicant is not only immediate but for the rest of the applicant's life …'. • Due to Australia's privacy laws, the 'only remedy open to the OAIC18 is to award compensation'. DIBP cannot 'investigate and decide whether the crime…committed has caused harm to the victims, or not'. • By the department not disclosing 'the information to the applicant then the only assumption that can be made is that the department is hiding something adverse to its own interests'. • The non-refoulement obligations are engaged by the data breach incident and 'the only task is to assess whether the country information indicates that the home country has a record of human rights violations and if so, the applicant is a refugee sur place'.19 It was also submitted that the departmental letter of 16 February 2015 did not refer to the fact that the claimant is married to a Sri Lankan national who has an adverse ASIO finding and that she is pregnant. When asked whether she had any concerns relevant to Australia's non-refoulement obligations assessed in this ITAO [sic],20 the claimant's representative submitted that if returned to China Ms LAI would be alone as her husband and their child would not be allowed to reside in China according to Chinese laws.21 It is submitted that according to ICCPR and the Convention of the Rights of the Child 'the family is the most important unit in society and should be protected and children should be with their parents'. 18 Office of the Australian Information Commissioner 19 Departmental file CLD2015/3456303 20 Departmental file CLD2015/3650842 21 Departmental file CLD2015/3650884 22 The last passage quoted above was taken from an email sent on behalf of the appellant on 20 February 2015, being part of the material referenced at footnote 21. That email was not before the primary judge but should have been. It was added to the appeal papers as an exhibit by consent. There was no problem with this as the substance of the email had already been referred to. 23 More generally, the last paragraph reproduced above at [21] refers to the passage in the 17 February 2015 letter, also quoted at [20] above, advising that the appellant was "now married to a Sri Lankan national who has an adverse ASIO finding and how this would affect [her] and may even expand her own protection claims against Sri Lanka and the foreign agencies that have an adverse interest in her husband".

The appellant's case before the Federal Circuit Court and on appeal 24 The response on behalf of the appellant to the issues raised in the enclosure to the 16 February 2015 letter from the assessor, contained in the 17 February 2015 letter sent by the appellant's solicitor, formed the primary basis for relief sought before the primary judge, and on appeal to this Court. 25 The notice of appeal dated and filed 30 March 2017 contained the following ground of appeal: The Federal Circuit Court erred by failing to find that the reviewer [assessor] incorrectly focused on pre-data breach Tribunal findings and failed to adequately consider the applicant's post data breach circumstances. Particulars (a) In a letter dated 17 February 2015 the appellant's agent wrote: Your letter does not refer to the fact that the applicant is now married to a Sri Lankan national who has an adverse ASIO finding and how this will affect the applicant may expand her own protection claims against Sri Lanka and the foreign agencies that have an adverse interest in her husband. Furthermore the applicant is pregnant with their first child. As Chinese nationality by descent is passed through the father then it is more likely that the child will have no claim to Chinese nationality, only Sri Lankan nationality; and (b) The reviewer [assessor] only considered this claims [sic] as a separation of the family claim and failed to consider all the integers raised. 26 The notice of appeal stated that the appellant reserved the right to raise further grounds upon the primary judge's reasons being published. No further grounds were advanced. 27 The written submissions for the appellant in this Court: (1) noted that the primary judge at [25] had observed: By letter dated 17 February 2015, the applicant's migration agent responded to the Department's letter dated 16 February 2015. Relevantly, the applicant sought to maintain the reliance upon all previously made statements, submissions, statutory declarations given during the refugee determination and the ITOA processes and then advanced the submission that the applicant was now married to a Sri Lankan national who has an adverse ASIO finding. Reference was also made to the applicant being pregnant with her first child and the fact that the applicant's child may not be able to claim Chinese nationality was an issue that was flagged. (2) referred to the primary judge's observation at [44], where his Honour stated: The assessor referred to the applicant being returned to China without her family and found that the applicant being removed from Australia to China and separated from her husband and her still unborn child would not be a breach of Australia's non-refoulement obligations. (3) described the argument on her behalf before the primary judge as being that the assessor: "… saw his job as responding to previous decisions and to engage in a review of those decisions and in doing so failed to consider all the integers of the new claims that post-dated the previous decisions [referring to the s 417, Migration Act application made by letter dated 20 November 2013, including enclosures, the letter from the appellant's solicitor dated 30 June 2014, and the paragraph from the adverse information response letter of 17 February 2015 referred to above] that was: a. The appellant was married to a Sri Lankan national with an adverse ASIO finding; b. The [appellant] was pregnant and it was unknown as to what nationality the child may be eligible for; and c. The appellant did not raise a "separation of family" claim, nevertheless that was how the ITOA reviewer [assessor] dealt with the claim. 28 The appellant's written submissions asserted, relying on: (1) Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [25] and [88]-[89] as to constructive failure to exercise jurisdiction; and (2) Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; reported much later in 2015 in 233 FCR 136, at [42] to the effect that "making a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon", that the primary judge erred in failing to find that the assessor fell into jurisdictional error by failing to deal with "the entirety of the appellant's claims". That was said to be because the assessor, in finding that there was no legal error in the prior decisions, erred in failing to consider the integers of the new claims. It was asserted, in effect, that the primary judge failed to grapple with the assessor overlooking the new claims. 29 The oral submissions by counsel for the appellant departed, to some extent, from the written submissions filed on her behalf. In part, that was due to questions from the bench as to how the matters said to have been omitted from consideration fell within the terms of the ITOA process and, in particular, how they could have had any bearing on the question of whether Australia had any non-refoulement obligations in relation to the appellant. 30 The substance of oral argument on behalf of the appellant was not particularly easy to understand, not least because it was somewhat inconsistent and at times appeared to stray into merits issues, although merits review was expressly disavowed by counsel for the appellant. Those oral submissions have been treated as advancing arguments in the alternative. Upon that basis, one argument was that the ITOA process, and therefore the requirements of that process, had to be read in the context of the letter from the former Secretary of the Department dated 12 March 2014, which included the following sentence: "The department will assess any implications for you personally as part of its normal processes". 31 Counsel for the appellant made it clear at the hearing of the appeal that the 12 March 2014 letter from the Secretary of the Department was relied upon as context and scene-setting by which the ITOA process was to be considered, rather than any new or different ground of review. To the extent that the argument advanced may be seen to have been asserting that the ITOA process was required to extend to any aspect of detriment to the appellant going beyond the non-refoulement aspects of the three treaties, as this point seemed to be developed in oral argument, that submission is rejected. Such an argument would, in any event, have been entirely new and thus would have required leave, which was not sought. 32 The alternative argument advanced within the ambit of the existing grounds of appeal was that the matters said to be overlooked, and therefore not considered, did go to Australia's non-refoulement obligations. This was said to be because of a failure on the part of the assessor to have regard to: (1) the appellant's husband's adverse ASIO assessment; (2) the appellant's husband also being a victim of the Data Breach and that this was relevant to non-refoulement obligations owed to the appellant.; (3) the child of the appellant and her husband being unable to gain citizenship in China; and (4) the appellant's husband being found to be a refugee.

The case for the Minister 33 The written submissions for the Minister correctly pointed out that the covering letter by which the assessor's decision was communicated, enclosing a copy of the reasons for that decision, pointed out that the appellant had raised issues which concerned matters other than Australia's non-refoulement obligations, namely family unity and the best interests of the child of the appellant and her husband. The letter advised that this information had been referred for consideration in relation to the Minister's guidelines to the exercise of the power under s 195A of the Migration Act. It was further pointed out on behalf of the Minister that the assessor: (1) had regard to the findings of fact made by the Department and the Tribunal in relation to the appellant's protection visa application and, in the absence of any legal error being identified, and in the absence of anything being provided by the appellant to suggest a change of circumstances relevant to that claim, had treated the Tribunal's findings as valid and effective for the purposes of the ITOA assessment; and (2) addressed the appellant's submission that she was now married and the claim that her removal from Australia to China would involve separation from her husband and (at that time unborn) child because neither would be allowed to enter and reside in China, noting that concerns about the family unit and arbitrary interference with the family had been assessed and considered and found not to constitute any breach of Australia's non-refoulement obligations under any of the three treaties. 34 The Minister's submissions also pointed out: (1) that the case before the primary judge, by way of two grounds of review, relied upon: (a) a prior decision of the primary judge in SZUBX v Minister for Immigration [2015] FCCA 2822 at [53], which his Honour distinguished on the facts, and which the appellant did not in this appeal press further; (b) an asserted denial of procedural fairness on the basis that the assessor failed to disclose to the appellant that the information made available as part of the Data Breach indicated that the appellant was an "overstayer", which the primary judge rejected, holding that the appellant's continued unlawful presence in Australia after the expiry of her visa was a matter identified in the adverse information document enclosed with the assessor's 16 February 2015 letter, to which she was given an opportunity to respond, such that there was no such denial of procedural fairness; and (2) that the case now advanced on appeal, at least as to particular (b) referring to the assessor not considering all the integers of her claim and relying upon Dranichnikov, was not advanced before the primary judge, although no point was taken as to leave being required to raise this particular for the first time on appeal. 35 At the hearing of the appeal, counsel for the Minister appeared to be content to proceed upon the basis that the case advanced on behalf of the appellant in this Court entailed greater detail and content than had been advanced before the primary judge, rather than an entirely new case requiring leave. 36 The Minister's written submissions point out, correctly, that the appellant's written submissions do not identify which integers of her claim that engage Australia's non-refoulement obligations had been overlooked. After detailing the appellant's history, the written submissions for the Minister assert that no such claim or integer of a claim was overlooked. That is because the matters relied upon by the appellant did not go to the issue under consideration by the assessor, namely Australia's non-refoulement obligations. 37 In oral submissions, counsel for the Minister relied upon what was said by Mortimer J in ALZ15 v Minister for Immigration and Border Protection [2015] FCA 279 at [41]-[43] as follows in support of the limited ambit of the ITOA process, being the harm thresholds set by Article 3 of the ICCPR and Articles 6 and 7 of the CAT, not extending to Articles 17 and 23 of the ICCPR. Her Honour said: 41. In the letter dated 18 February 2015 to the appellant, a different officer made it clear to the appellant that: 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 2014. Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA. … This ITOA will consider Australia's non-refoulement [emphasis in original] obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol. … 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. 42. Thus, as the Minister's counsel correctly accepted, there were two tasks for the ITOA. The first was to determine whether there were any changes in the appellant's circumstances since the determination of his protection claims which might give rise to protection obligations under either the Refugees Convention or the ICCPR or CAT. This was a broad assessment, not limited to any risks arising from the publication of his personal information. Second, the ITOA had to determine whether the publication of his personal information gave rise to any risks of harm should he return to Thailand, whether those risks arose because of a Convention reason or were risks of harm that reached the thresholds set by the ICCPR and CAT. 43. The second task was clearly the principal focus of the ITOA, as it was a possible consequence of the publication of personal information of all those detainees affected by the disclosure on the Department's website in February 2014. The first task was nonetheless a real one, but in the absence of any material change in circumstances for a given individual, was not likely to result in a favourable ITOA. The fact that there were two tasks should be borne in mind when considering the first ground of appeal. It is also possible that the first task might inform the second task, in the sense of contributing to the way the decision-maker assesses any risks of harm said to flow from the publication. 38 It was pointed out by counsel for the Minister that the passages from the correspondence in the ITOA process quoted by Mortimer J in ALZ15 at [41], reproduced in the preceding paragraph, correspond to identical passages in the 14 January 2015 letter from the Department in this case. It was submitted that the assessor had carried out the tasks identified in ALZ15. 39 Counsel for the Minister submitted at the hearing of the appeal that none of the four issues or claims relied upon by the appellant, summarised at [32] above, were capable of rising to the level necessary to engage Australia's non-refoulement obligations. While the assessor was clearly aware of the claims that had been made as to separation and the situation with respect to the appellant's husband and child, none of those claims could have made any difference to the non-refoulement claim under consideration. It therefore was of no moment that the claims now articulated were not addressed in those specific terms in the assessor's reasons. The relevant aspect of separation was addressed but found, correctly, it was submitted, not to have engaged Australia's non-refoulement obligations. Instead, such claims were to be addressed separately in relation to the exercise of the Minister's discretion going beyond treaty non-refoulement obligations, as reflected in the covering letter advising of, and providing the reasons for, the assessor's decision. Indeed, the appellant had been released from immigration detention on a bridging visa while consideration was given to the Minister exercising his discretion under s 195A of the Migration Act. 40 It was submitted on behalf of the Minister that the only issue to which the asserted claims might have had a bearing on non-refoulement, being separation of the family unit, was specifically considered by the assessor, effectively addressing the third and fourth asserted integers identified by counsel for the appellant. There was no suggestion that the adverse ASIO assessment had formed any part of the Data Breach, which disposed of the first and second asserted integers identified by counsel for the appellant to the extent that they might be seen as going beyond the family separation issue expressly addressed by the assessor. It was further submitted that, contrary to an assertion on behalf of the appellant, those four matters were not sidestepped by the ITOA process, but were rather referred so that they could be separately addressed in a process which might be able to take them into account, being the exercise of the Minister's wider discretion.

Consideration 41 The decisions relied upon by the appellant of Dranichnikov and Htun must be read and applied in a way that focuses not on every assertion made, but instead more narrowly upon those assertions which are integers of the claim being made, in this case for the engagement of non-refoulement obligations by reason of the three treaties under consideration. It follows that there was no jurisdictional obligation to consider facts or claims which can properly be regarded as not going to an integer of the claim being made. Of course, if an incorrect assessment is made by a decision-maker as to whether or how an assertion is directed to a claim, or integer of a claim, that may result in a jurisdictional error, as indeed happened in Dranichnikov and Htun. 42 In Dranichnikov, the particular social group defined by the then Refugee Review Tribunal for the purposes of the application of the Refugees Convention was cast too broadly as business people, rather than business people in public protest about state-sanctioned corruption, including violence. Mr Dranichnikov claimed to belong to a group of legitimate businessmen who posed a threat to organised crime and had taken a stance against crime, which could be seen to be a social group at greater risk of persecution than businessmen more generally. As a result of this characterisation error, the Tribunal misstated the basis for a finding that Mr Dranichnikov's asserted fear of persecution was not well-founded. That characterisation error led to a constructive failure to exercise jurisdiction because the Tribunal asked itself the wrong question for the purposes of assessing the asserted grounds for claiming a fear of persecution. It was also said to constitute a denial of procedural fairness by at least two justices of the High Court. 43 In Htun, one of the bases for a sur place claim was not addressed, being again a central aspect of the claims made for the purposes of the application of the Refugees Convention. 44 It may therefore be seen that both Dranichnikov and Htun were dealing with situations in which the claim that was misconstrued or otherwise overlooked went directly to the basis for the claim for refugee status, and thereby a protection visa. In a like fashion, for a jurisdictional error of this kind to have been committed by the assessor in this case, an assertion that was shown to have been overlooked had to be capable of being characterised as one that went to the issue of non-refoulement, being the purpose of the ITOA process, and not to some other issue or concern. That was the jurisdiction being exercised by the assessor. 45 While it is true that the four matters relied upon by the appellant at the hearing of the appeal, as listed above at [32], were not expressly addressed by the assessor in his reasons, at least in the way referred to in oral submissions for the appellant, there was nothing submitted by counsel for the appellant to indicate that any of them were relied upon in that way by the appellant as part of the ITOA process beyond the information provided by the appellant and addressed by the assessor as pertaining to family separation. There was no other aspect identified as being pertinent in some way to non-refoulement obligations owed to her. Nor was it demonstrated that they could have assisted her in that respect even if they had been. 46 The Minister's submissions, both written and oral, are compelling and should be accepted. The correspondence from the Department, including in particular the letters sent by the assessor, make it clear that the ITOA process was confined to determining the question of whether the appellant's circumstances engaged any non-refoulement obligations. Each matter raised on behalf of the appellant had to be considered against the substance of those obligations. It is clear that this is precisely what the assessor did. Nothing more was required.

Conclusion 47 The appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.