DZAEH v Minister for Immigration and Border Protection

The Facts 4 On 10 December 2013, the applicant made an application for a Protection visa. On or about 31 January 2014, she was advised by letter that her application had been refused and she was given a copy of the delegate's reasons for refusal. 5 On 6 February 2014, the applicant lodged an application for review with the Tribunal. The Tribunal conducted a hearing on 31 March 2014 and, on 13 June 2014, it made a decision to affirm the decision not to grant the applicant a Protection visa. 6 The Tribunal proceeded on the basis that the applicant was a citizen of China. The Tribunal said that the applicant had arrived in Australia on 29 May 2003 under a student visa. She was granted several further student visas before lodging another student visa application which was refused on 4 December 2007 on the ground that the applicant did not have a valid certificate of enrolment to commence study in Australia. The applicant sought a review of that decision. She was unsuccessful on the review and the decision was affirmed on 5 March 2009. On 13 April 2009, the Bridging visa associated with her appeal to the Migration Review Tribunal ceased, and she remained in Australia as an unlawful non-citizen. On 29 November 2013, she was located by the Australian Federal Police and detained at the Perth Immigration Detention Centre. 7 The Tribunal said that the applicant is approximately 35 years of age and speaks, reads and writes Mandarin. The applicant had stated in her application form that she had not experienced harm in China in the past. However, she said that she fears harm from underworld figures, as well as mistreatment from the authorities, if she returns to China. She claimed that her father had been working for the Bureau of Land Management and that property developers had paid underworld figures to force her father to approve a development project, failing which the underworld figures would kill her family. She claimed that the ringleader and his "members" had been arrested and sentenced and that her father and family had been warned not to say anything against them otherwise her parents would be harmed or killed. She claimed that authorities had been investigating corruption in respect of redevelopment approvals, and if her father does not tell the truth to the authorities, he will be charged and convicted for taking bribes and for corruption. She claimed that the authorities were investigating his past conduct and that they cannot protect him if he tells the truth. She claimed that her father had remained silent as demanded by the gangsters for her mother's safety. 8 The applicant claimed that she feared returning to China because she feared harm from underworld figures who are connected to the government. She also feared returning to China because the authorities will know that she has been in Australia unlawfully as her details were leaked and the authorities will accuse her father of sending money overseas. The applicant provided the Tribunal with a copy of a letter which she claimed was evidence that her details had been leaked. 9 The applicant elaborated on her claims and the Tribunal summarised her evidence. It is not necessary for me to set out the details. 10 The Tribunal did not accept the applicant's claims that she feared harm from gangsters if she returned to China. The Tribunal found that the applicant's evidence was "vague, inconsistent, general in substance and lacking in persuasive detail". The Tribunal set out in its reasons the matters asserted by the applicant which it said it did not find plausible, and matters which it did not accept. 11 The Tribunal said that it did not accept that the applicant had a well-founded fear of persecution in China within the meaning of the Convention. It said that it did not accept that there was a real risk that the applicant would face significant harm (as defined) in her country for the reasons which she claimed. The Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in the applicant's case, China, there was a real risk that she will suffer significant harm there for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). 12 The Tribunal turned to consider the applicant's claim that she feared being returned to China after reports in the Australian press that thousands of names of those in immigration detention in Australia had been published on the Department's website. She claimed that her name was on the list and that she was given a letter from the Department advising her of this fact. She said that because she was named, she was in danger from authorities in China by reason of the fact that the government will know about her unlawful status, her detention and her Protection visa application in Australia. 13 The Tribunal said (at 48): The Tribunal accepts that the names of many immigration detainees were published/available on the department's website as the applicant claims and that this was reported upon by Australian media sources. While the Tribunal has no information available to it to enable it to make a finding about whether the applicant's details were published on the department's website as claimed, for the purposes of this decision the Tribunal accepts that her name was on the list and could have been seen by Chinese authorities as the applicant claims. 14 The Tribunal said that, in any event, the authorities in China will know that the applicant has been detained in Australia because the Department will approach the Chinese "consulate/embassy" about her "identity/documents" for her return. The Tribunal said that the authorities in China will know that the applicant left China in May 2003 to travel to Australia to study, and that she was detained in immigration detention in Australia because she did not have a visa to continue to stay in Australia. The Tribunal said that authorities in China could well assume that the applicant claimed asylum in Australia so that she could remain permanently in Australia as many Chinese citizens detained in Australia for overstaying their visas in Australia had done. 15 The Tribunal annexed to its reasons a section identifying independent country information regarding the attitude of the authorities in China towards Chinese nationals who make refugee applications in Australia or other countries. The Tribunal said that, having regard to that information, it accepted that the applicant will be questioned and interviewed after her return to her country as a failed asylum seeker from Australia. However, the Tribunal did not accept that the fact that the applicant lodged an application for a Protection visa or the fact that she was unlawfully in Australia of itself gave rise to a real chance that the applicant faced serious harm on return to China by reason of her membership of a particular social group, such as failed asylum seekers or persons unlawfully in Australia. The Tribunal did not accept that the applicant would be of adverse interest to authorities in China for these reasons. 16 The Tribunal concluded that the applicant did not satisfy the criterion in s 36(2)(a) or s 36(2)(aa) of the Act and it affirmed the decision not to grant the applicant a Protection visa.

The Federal Circuit Court 17 The applicant's application for judicial review is dated 16 July 2014. The judge of the Federal Circuit Court delivered his decision on 4 March 2015. After summarising the Tribunal's findings, he said that the applicant's first ground of complaint about the Tribunal's approach was, in reality, a complaint that her claims were not accepted. He rejected that complaint on the basis that that was a matter entirely for the Tribunal and that it was not appropriate for the Court or legally permissible for the Court to embark upon a consideration of the merits of the Tribunal's decision. The primary judge dealt with the applicant's complaint that the Tribunal refused to take into account the fact that the applicant's name was published on the official websites which had been accessed by many countries. His Honour said that the Tribunal had accepted, for the purposes of the application then before it, that the applicant's name had been so published and it referred to paragraph 48 of the Tribunal's reasons. The judge said (at [28], [29]): Whilst it may be true that the tribunal did not make a finding of fact that the Chinese authorities had seen the applicant's name on the list, the tribunal accepted the proposition and thereafter, in paragraph 49 of the reasons for decision, went on to explain why the data breach, in the circumstances of this case, did not matter. As I have already indicated, the tribunal thought that, even without the data breach, the Chinese authorities would have known about the applicant. In oral submissions before me, the applicant suggested that a crime had been committed by the Department, and that she had rights as a result of the breach of privacy that she had endured at the hands of the Department. She may be right on both of those counts, but it does not matter to this proceeding. Whether a crime has been committed by the Department and whether her rights have been intruded upon in the way in which she claims is, for the purposes of determining whether there has been a jurisdictional error committed by the tribunal, irrelevant. … 18 The primary judge dismissed the application for judicial review.

Evidence on the Application for an Extension of Time 19 The applicant's application for an extension of time is supported by an affidavit sworn by her on 15 January 2016. The applicant deposed to the fact that, on 13 January 2016, she was given a notice of intention to remove her from Australia by the Department of Immigration and Border Protection. The notice said that she would be removed from Australia on 20 January 2016. The applicant claimed in her affidavit that the Minister had told her that the International Treaties Obligations Assessment ("ITOA") which she was waiting for had been finalised and that she had no case and would be deported. The applicant said that following the dismissal of her application for judicial review by the Federal Circuit Court on 4 March 2015, she mentioned to her case manager at the detention centre where she was held that she would like to appeal to the Federal Court of Australia. She said that she would like to wait for a letter "from ITOA" to hand in all her case information and evidence. She said that ITOA would review and assess her personal case, including "data breach". The applicant said that at about the end of 2014, most of the detainees at the detention centre who were also involved in the data breach had had their cases finalised, but had received a so-called ITOA. The applicant stated that when she saw all the other detainees who received an ITOA, she had a legitimate expectation that she would be given one. She was never told between May 2015 and January 2016 that she would not be able to have an ITOA. She believes that that is not fair to her and she believes that she is entitled to an ITOA like the other detainees. 20 The applicant annexes to her affidavit, among other documents, a draft notice of appeal which contains the following grounds: 1. His Honour erred in not finding that RRT (now known as the AAT) did not have jurisdiction to make findings in relation to the breach of the appellant's privacy which occurred in February 2014. Particulars a. The breach of the appellant's privacy was a breach of the Privacy Act. The Australian Office of the Information Commissioner has jurisdiction to hold investigate the consequences of breaches of privacy. 2. This matter is affected by the matters S206/2015 and S207/2015 which are currently on appeal in the High Court of Australia and should be adjourned until those matters are finalised. 21 The detention centre where the applicant is held is in Western Australia. The applicant told me that she approached the Western Australia District Registry with two applications on 19 January 2016. The first application was accepted by that Registry and was listed before a judge of this Court resident in that Registry. The application included a claim by the applicant for an interlocutory injunction restraining her removal from Australia and that aspect of the application was given an urgent hearing. The other application is the application for an extension of time which is presently before me. The applicant said that the Registry suggested that the proper registry for that application was the Northern Territory District Registry because the application for judicial review had been issued in the Northern Territory. 22 The applicant's application for an interlocutory injunction preventing her removal from Australia was heard by Justice Barker on the afternoon of 19 January 2016. Justice Barker refused the application. 23 The application for an extension of time came on for hearing before me after the hearing before Justice Barker. The applicant and first respondent appeared by telephone from Perth. The hearing commenced at about 8 pm. I had limited documents and I was not aware of the details of the substantive application before Justice Barker. I was told by the first respondent that, although the applicant was one of the data breach group, she had not been offered an ITOA because this was a case where the applicant had her claims in respect of the privacy breach considered by the Tribunal. I was referred to the decision in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 ("SZSSJ") and ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314 ("ABC15"). I decided that I should hear full submissions on the application for an extension of time and I listed the hearing of the application for Friday, 29 January 2016. I ordered that the Minister file and serve any affidavit evidence on or before 4 pm on Friday, 22 January 2016, and I ordered that the applicant not be removed from Australia pursuant to s 198 of the Migration Act until further order. 24 Prior to the hearing before me on 29 January 2016, the first respondent filed two affidavits, both of Mr Arran Niall Gerrard and dated 22 January 2016 and 27 January 2016, respectively. Mr Gerrard is a lawyer employed by the Australian Government Solicitor.

Issues on the Application 25 The factors which the Court takes into account in determining whether to grant an extension of time are well-known. They are: (1) the length of the delay; (2) the explanation for the delay; (3) whether the appeal has a real or realistic prospect of success; (4) the prejudice to the applicant if the extension of time is not granted; (5) any prejudice to the respondent if the extension of time is granted; and (6) any relevant public interest considerations. The factor referred to in (3) has been described in various ways in the authorities. However, I do not need to pause on that issue in this case because I have reached the clear view that the appeal does not have a real or realistic prospect of success. 26 The first consideration is the period of the delay. As I have said, the Federal Circuit Court judge delivered reasons and made orders on 4 March 2015. He published written reasons on 5 May 2015. The applicant made her application for an extension of time on 19 January 2016. The applicant had 21 days within which to appeal from the orders of the Federal Circuit Court and the extension of time required is almost 10 months from the date of the orders and almost eight months from the date the written reasons were published. 27 The second consideration is the explanation for the delay. The delegate's decision was made on 31 January 2014. On a date in March 2014, the applicant received a letter from the Department of Immigration and Border Protection dated 12 March 2014 which was in the following terms: Unauthorised access to personal information In February 2014 a routine report released on the department's website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department's website. The information was not visible as part of the report, and was not easily accessible. As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time. We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again. The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention. The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information. The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes. If you would like to seek more information about the incident, talk to your case manager. 28 The Tribunal conducted a hearing of the applicant's application for review on 31 March 2014 and it appears, although it is not entirely clear, that the applicant provided a copy of the Department's letter to the Tribunal. 29 The applicant's evidence explaining the delay is set out above. To recapitulate, the applicant believed that she would receive a letter from the Department advising her that, as a result of the data breach, any claim she might have because of the breach would be the subject of an ITOA. Although her evidence is fairly general, it appears she formed this belief as a result of discussions she had with other detainees who had also been the subject of the data breach. She said that other detainees who had been the subject of the data breach and whose cases had otherwise been finalised, had received such a letter by "around end of the 2014", and she believed that she would also receive such a letter. She did nothing in terms of an appeal from the date of the orders of the Federal Circuit Court in March 2015 and January 2016 because she believed she would be the subject of an ITOA. She said that she was not advised to the contrary. The first respondent did not apply to cross-examine the applicant. 30 The third consideration relates to the merits of the proposed appeal. An extension of time may be refused if the proposed appeal has no real or realistic prospects of success and that conclusion can be reached on the application for an extension of time. The proposed grounds of appeal are set out in the draft notice of appeal (see [20] above). The first respondent submitted that it is not necessary to consider this issue and the other considerations I will mention below because the delay is so substantial and the applicant's explanation for the delay so inadequate that the extension should be refused on these grounds alone (In Re Commonwealth of Australia and Another; Ex parte Marks (2000) 177 ALR 491; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tran v Minister for Immigration and Border Protection [2014] FCA 533). It is true that the delay is very substantial. It is also true that one may question the applicant's explanation for the delay in view of the fact that the Tribunal addressed the consequences of the data breach and the applicant's inactivity between March 2015 and January 2016. On the other hand, there is no evidence as to the reason there was no attempt to remove the applicant from Australia between late March 2015 and January 2016. 31 I have reached the conclusion that the proposed grounds of appeal have no real or realistic prospects of success, and I base my decision on that as the decisive consideration rather than the delay and the explanation for the delay alone. Before explaining my reasons for reaching that conclusion, I will briefly address the other considerations. 32 The fourth consideration is the prejudice that the applicant will suffer if an extension of time is not granted. Leaving aside any consideration of the merits of the proposed appeal, the prejudice to the applicant if an extension of time is not granted is substantial. She will not be able to pursue an appeal and she will be removed from Australia. 33 The fifth consideration is the prejudice to the first respondent if an extension of time is granted. Again, leaving aside the merits of the proposed appeal, although it may be said that there appears to be little prejudice to the first respondent if an extension of time is granted, there is an important public interest in adherence to time limits and the final disposition of matters in an orderly and expeditious fashion. 34 I return to the merits of the proposed appeal. As framed, there is no merit in the first ground of the proposed appeal. Indeed, it is difficult to understand the point being made in the first ground of appeal. The matter before me is an extension of time within which to appeal from orders made by the Federal Circuit Court. I am not considering whether, absent an appeal, the applicant should be permitted to remain in Australia whilst the data breach is investigated by the "proper" authority. It was the applicant who raised the issue of the data breach before the Tribunal and advanced it in support of her claims. Furthermore, the Tribunal's consideration of the topic made no difference to the result. In other words, notionally excluding it does not alter the result. Leaving these points to one side, the argument has no merit in any event. The Tribunal hears an application for review de novo and is required to make the correct and preferable decision. The effect of the data breach was relevant to the issues before the Tribunal and it was appropriate for the Tribunal to consider it. 35 The applicant recognised the difficulties with the terms of the first ground of the proposed appeal as framed and she refashioned it during her submissions. She claimed, as I understood it, that the Tribunal did not have sufficient information about the data breach and, therefore, did not properly consider its effect. I do not think that there is any merit in this argument. It appears that the Tribunal had the Department's letter of 12 March 2014, but even if it did not, the approach of the Tribunal to the data breach proceeded on the basis of the material part of the information which the letter states was disclosed. 36 The applicant was not represented before this Court and for that reason I have considered whether she can complain of the Tribunal's approach to the effect of the data breach on more general grounds. 37 The Tribunal considered whether the applicant faced serious harm on being returned to China by reason of her membership of a particular social group such as failed asylum seekers or persons unlawfully in Australia. That is the information which might have come to the attention of the Chinese authorities as a result of the data breach, although the Tribunal considered that certain information would come to the attention of the Chinese authorities in any event. I do not need to address that latter matter. The Tribunal had regard to country information about the attitude of the Chinese authorities to nationals who make refugee applications in Australia or other countries. It attached its summary of that information to its reasons as "Attachment B". It reached the conclusion that, although the applicant will be questioned and interviewed after her return to her country as a failed asylum seeker from Australia, it did not think the fact that the applicant lodged an application for a Protection visa or was unlawfully in Australia, gave rise to a real chance that the applicant faced a serious risk of harm on return to China by reason of her membership of a particular social group such as failed asylum seekers or persons who had been unlawfully in Australia. I do not think that there is a jurisdictional error in that conclusion or the reasoning which led to it. 38 The second ground of appeal in the draft notice of appeal is that the present matter is affected by applications for special leave before the High Court and should be adjourned pending the finalisation of those applications. This is not a proper ground of appeal because it does not identify an error allegedly made by the Federal Circuit Court. Nevertheless, I have considered the decision of the Full Court of this Court in SZSSJ and the amended application for special leave. The matters there raised relate to non-statutory processes being conducted by officers of the Department, and I do not think they bear on the matters before me (see ABC15 at [29] per Robertson J). I do not think that there is any merit on the second ground of the proposed appeal. 39 During the hearing, the applicant applied to tender documents which she submitted were relevant. Those documents related to two unrelated applicants for a Protection visa. In each case I was given a Tribunal decision and a letter from the Department after the Tribunal decision advising the applicant that he or she would be the subject of an ITOA because of the data breach. In each case it appears that the Tribunal had given some consideration to the consequences of the data breach. The applicant suggested that she was not being treated as others were being treated. She suggested that it could not be said that she was not the subject of an ITOA because the Tribunal had addressed the issue of the effect of the data breach. I should add that other than the fact that the Tribunal addressed the issue in the way in which it did, and the fact that the applicant has not been made the subject of an ITOA, I have no evidence of the decisions made in the applicant's case. 40 I will receive the documents because, although not directly linked by evidence, they are potentially relevant to the explanation for the delay in this case. However, I cannot see that they are relevant beyond that. The question for me is whether the grounds of the proposed appeal have any real or realistic prospects of success. That in turn raises an issue, and only raises an issue, as to whether the Federal Circuit Court judge erred in failing to conclude that the Tribunal committed a jurisdictional error. I do not think that there is any real or realistic prospect of successfully contending that he did. 41 The applicant's real complaint is that she should be or should have been the subject of an ITOA. She complains that she has been treated less favourably than other detainees in a similar position to her. She claims that she should have an ITOA which is made in light of further information as to the circumstances of the data breach. These matters appear to have been and to be the subject of the application before Justice Barker. Since writing these reasons in draft, I have had the advantage of reading his Honour's reasons in relation to the applicant's interlocutory application for an injunction (DZAEH v Minister for Immigration and Border Protection [2016] FCA 54). 42 The difficulty for the applicant is that I do not think any of these matters bear on the question of whether the Tribunal committed a jurisdictional error. The Tribunal considered the claims the applicant raised before it and it proceeded on the basis that the applicant's details could have become known to Chinese authorities. The Tribunal's reasoning thereafter did not involve jurisdictional error.

Conclusion 43 The application for an extension of time filed on 19 January 2016 is dismissed. The order I made on 19 January 2016 restraining the first respondent from removing the applicant from Australia pursuant to s 198 of the Migration Act will be discharged. I will hear the parties as to costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.