Ground Four
17 In this ground, the appellant asserts that the Tribunal did not assess her claim that, after the introduction of the Legislative Instrument, she faced a real chance of persecution in Sri Lanka, as her "personal details would have been passed to the Sri Lankan Police". At para (21(d)) of her written submissions, the appellant submits that she sent a copy of the Legislative Instrument to the Tribunal but that it was overlooked.
18 The same case was put in the court below. In support of it, the appellant read affidavits affirmed by herself and her son-in-law. In addition, the appellant's daughter gave oral evidence.
19 The Minister read an affidavit affirmed by Bernadette Ruddy, the Director of Technology Services at the Tribunal.
20 The primary judge summarised the evidence going to the question of whether the Legislative Instrument had been sent to the Tribunal at R [32]-[36], as follows:
(1) The appellant's daughter gave evidence that she asked her husband, on behalf of the appellant, to fax various documents to the Tribunal at various times, including the appellant's post-hearing submission dated 9 July 2013 (at R [32]). She said that the fax on 9 July 2013 included the Legislative Instrument. When questioned by the primary judge, she conceded that she was not present when her husband faxed the documents to the Tribunal (at R [33]).
(2) The appellant's son-in-law adopted the truth of his statutory declaration, which was annexed to his affidavit (at R [34]). This evidence was "not persuasive evidence" that the appellant sent the Legislative Instrument to the Tribunal (at R [35]). Under cross-examination, he had no precise recollection of what occurred on 9 July 2013 (at R [35]). He had annexed to his affidavit transmission records from his employer, but they were "inconclusive" (at R [35]).
(3) The fax transmission of the post-hearing submission "disclose[d] from the transmission lines at the top and bottom of the document ... that it was only the submission (without the copy of the [Legislative] [I]nstrument) that was sent to the Tribunal by facsimile" (at R [35]). His Honour considered that this conclusion was reinforced by the evidence of Bernadette Ruddy: that the Tribunal's records of fax transmissions on 9 July 2013 disclose the transmission of a single page (the post hearing submission), albeit that it was sent twice (at R [36]). His Honour observed that Ms Ruddy's evidence was "unshaken in cross-examination " (at R [36]).
21 In the light of this evidence, his Honour found that the appellant's post-hearing submission raised a sur place claim, but that the Legislative Instrument "was not put by the appellant to the Tribunal as part of that claim" (at R [37]). These findings were open to the primary judge on the basis of the evidence as described above. No appealable error arises from the making of those findings. Consequently, it is not correct to say, as the appellant does at para (21(d)) of her written submissions, that the Tribunal "overlooked" the Legislative Instrument.
22 In any event, as submitted by the Minister in the court below, the Legislative Instrument was irrelevant to the appellant's sur place claim. His Honour acknowledged this at R [38]. Then, at R [39]-[51], his Honour adopted the Minister's preferred construction of s 336F of the Act, which was set out in his written submissions in the court below. It is convenient to repeat those paragraphs.
23 The Legislative instrument was made on 11 June 2013 pursuant to reg 5.34D of the Migration Regulations 1994 (Cth) and commenced on 1 July 2013. It specifies, for the purposes of s 336F(1)(d) of the Act, certain bodies as prescribed bodies. One of those bodies is the "Sri Lanka Police Service" ("SL Police").
24 Section 336F of the Act makes it an offence for a person to cause, by their conduct, disclosure of "identifying information" (as defined in s 336A), provided that the disclosure is not a "permitted disclosure" within the meaning of ss 336E(2) and (3). Relevantly, a permitted disclosure is a disclosure that is authorised under s 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised: s 336E(2)(c).
25 Subsection 336F(1) permits the Secretary of the Minister's department ("Secretary") to authorise, in writing, a specified officer or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to, relevantly:
(a) One or more specified bodies each of which is a police force or police service of a foreign country: s 336F(1)(b)(i); or
(b) one or more prescribed bodies of a foreign country: s 336F(1)(d).
26 However, by reason of s 336F(3), a disclosure is taken not to be authorised under s 336F if, relevantly:
(a) The person to whom the identifying information relates is an applicant for a protection visa: s 336F(3)(a)(i) ;and
(b) the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country: s 336F(3)(b).
27 Subsection 336F(3) had the effect of prohibiting disclosure of the appellant's identifying information to the SL Police, including while her application to the Tribunal was on foot.
28 There are two relevant exceptions to the prohibition in s 336F(3). First, it will not apply where the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which they made their application: s 336F(5)(a). Secondly, it will not apply where an applicant for a protection visa has had their application refused and finally determined: s 336F(5)(b). Importantly, nothing in s 336F(5) permits the Secretary to disclose a protection visa applicant's identifying information while their application is not finally determined (within the meaning of the then s 5(9) of the Act).
29 The appellant's claim as set out in her post-hearing submission was as follows:
Since I heard the news that the department of Immigration and Citizenship has decided to share information with the Sri Lankan police from 1 July 2013, I fear that my personal details also may have been given to the Sri Lankan authorities. The Sri Lankan authorities perceive people who apply for asylum in Australia as LTTE sympathisers. Therefore, I fear if I returned to Sri Lanka, I will be harmed because I fear that the Sri Lankan police by now may have got my information regarding my protection visa.
30 Thus, the appellant feared that, in the light of the making of the Legislative Instrument, the Minister's department had the power, from that time, to give information regarding her protection visa application to the SL Police. The appellant's claim for protection clearly was based on the SL Police possibly having that information already. That is the only way in which her claim could sensibly be understood. The basis of her fear of harm could not have been that her personal details could be given to the SL Police after her visa application was refused and finally determined, as in those circumstances she would not be a person to whom Australia owes protection obligations. Nor could the appellant have feared that the instrument permitted an authorised officer to give the information to the SL Police if the Tribunal set aside the primary decision under s 415(2) and substituted for it a decision to grant a protection visa to her, as that would be contrary to s 336F(3) (and, in any event, the appellant would not be forcibly returned to Sri Lanka).
31 The question for the primary judge, therefore, was whether the Legislative Instrument permitted a person authorised by the Secretary to provide identifying information concerning the appellant to the SL Police prior to the Tribunal making a decision on the review. In the court below, the Minister submitted that the instrument did not so permit and that it could even be said that it had no effect at all on the appellant's circumstances, given the power in s 336F(1)(b)(i), which contemplated permitted disclosures to police services of foreign countries.
32 The primary judge accepted the Minister's construction of s 336F at R [48]. His Honour was correct to do so. In the light of his Honour's conclusion, it followed that the Tribunal did not misinterpret the appellant's sur place claim at [71] of its decision.
33 His Honour agreed with the Minister that the Tribunal was correct when it found that there "is no reason to expect that the Sri Lankan authorities would become aware of (the appellant's unsuccessful protection visa application in Australia, despite the appellant's claim to the contrary in her post-hearing submission". That was so at least for the reason that an authorised officer could not have disclosed identifying information about the appellant to the SL Police while the Tribunal was still considering her application (which the appellant feared had already occurred: see the final sentence of her submission extracted at [29] above). Further, the definition of "identifying information" in s 336A does not include information about a person's visa application per se.
34 His Honour considered that the Tribunal was also correct in finding that there was "[n]o evidence ... that the Australia[n] government shares with the Sri Lankan government identifying information on persons applying [for] protection visas in Australia, which in any event is contrary to the provisions of the Migration Act''.
35 His Honour also observed that the Tribunal found, at [71] of its reasons, that there was no reason to expect that the appellant would be of any interest to the Sri Lankan authorities on her return, and that there was no evidence to support her claimed fear of adverse attention for that reason.
36 There is no error in his Honour's conclusions as to the construction of s 336F or the Tribunal's consideration of the appellant's post-hearing submission.