SZUYG v Minister for Immigration and Border Protection

1. The appellants have leave to amend their notice of appeal so as to raise as a ground of appeal, in lieu of those pleaded, proposed ground 1 as set out in the affidavit of the first appellant filed herein on 30 October 2019 (first appellant's affidavit).
2. To the extent that it sets out proposed ground 1, the first appellant's affidavit serve as an amended notice of appeal with the requirement to file and serve an amended notice of appeal setting out that ground being dispensed with accordingly.
3. Leave to raise as grounds of appeal proposed grounds 2 and 3 as set out in the first appellant's affidavit be refused.
4. The appeal be dismissed.
5. The appellants pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellants are each citizens of the People's Republic of China. Their Australian immigration history is a complicated one. However, their counsel, Ms Okereke-Fisher, who made submissions on their behalf with a succinctness, care and candour matched by those of Ms Francois for the Minister for Immigration and Border Protection (Minister), the only active party respondent, made it clear that there was no dispute as to the accuracy of the chronology offered in the Minister's submissions. I have therefore drawn extensively upon that chronology in the following account. 2 The first appellant is an adult woman. She first arrived in Australia on a visitor's visa on 13 April 2008. The second appellant is an adult man, some six years older than the first appellant. He arrived in Australia in or about 2008. He is the first appellant's de facto spouse and thus a member of her family unit. Their relationship commenced on 25 July 2011. 3 On 15 May 2008, the first appellant lodged an application for a protection visa (the first appellant's first PVA). The first appellant's first PVA was made prior to the introduction of the complementary protection criterion, now found in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). Accordingly, the first appellant's first PVA was made only in respect of the refugee criterion, found in s 36(2)(a) of the Act. The first appellant's son was included in this visa application, but the second appellant was not. Inferentially, that was because their de facto relationship had not then commenced. 4 The first appellant's first PVA was refused by a delegate of the Minister on 13 August 2008. 5 The first appellant sought the review of that decision by the then Refugee Review Tribunal (RRT). On 12 January 2009, the RRT affirmed the Minister's delegate's decision. 6 On 8 July 2013, the second appellant lodged an application for a protection visa (the second appellant's first PVA). Curiously, although their relationship had by then commenced, the first appellant was not included in the second appellant's first PVA, but the second appellant's son was. The application was made after the introduction into the Act of the complementary protection criterion. The second appellant's first PVA was made in respect of both the refugee criterion and the complementary protection criterion. 7 On 27 August 2013, a delegate of the Minister refused second appellant's first PVA. 8 The second appellant sought the review of that decision by the RRT. On 22 October 2013, the RRT affirmed the Minister's delegate's decision. 9 On 24 October 2013 the first appellant applied again for a protection visa (the second PVA). On the second PVA, the second appellant was listed as a secondary applicant. As the first appellant has already had her protection claims assessed in respect of the refugee criterion and as a consequence of s 48A of the Act as it then stood, and as construed by this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), her protection claims in the second PVA were limited to the complementary protection criterion. Further, as the second appellant had already had his protection claims assessed in respect of both the refugee criterion and the complementary protection criterion, a further consequence of s 48A of the Act as so construed was that his application was limited to the family unit criterion found in ss 36(2)(b) and (c) of the Act. 10 In the second PVA, the first appellant claimed to fear significant harm if she were to return to China because she was a Christian who had adopted a child and was being harassed to pay penalty fees in relation to that child. For the purposes of the second PVA, the second appellant attended an interview with a delegate of the Minister on 11 March 2014. On 19 March 2014 that delegate refused the second PVA on the basis that he did not consider the first appellant's claims to be credible. 11 On 9 April 2014, the appellants sought the review of the Minister's delegate's decision in relation to the second PVA by the RRT. On 21 July 2014 the appellants, together with their then representative, appeared at a hearing before the RRT. At the end of the hearing, the second appellant produced a letter from the Minister's department dated 12 March 2014 indicating that, in February 2014, certain of his personal information had been inadvertently made available on the department's website for a short period of time (the data breach). 12 On 5 August 2014, the RRT affirmed the decision of the Minister's delegate in respect of the second PVA. The RRT did not accept the truth of the first appellant's claims (see [49] and [51]). In relation to the data breach, the RRT stated (at [50]): … At the end of the hearing before me [the second appellant] produced a letter to him from the Department of Immigration dated 12 March 2014 indicating that his personal information had been accessible online for a short period of time. As I explained to [the first appellant] and [the second appellant] at the beginning of the hearing before me, I am only able to consider [the second appellant's] current application on the basis of the criterion requiring that he is a family member of the holder of a protection visa. So far as [the first appellant's] situation is concerned, as I put to her, this letter does not say that the information in her protection visa application has been revealed. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the first appellant] being removed from Australia to China, there is a real risk that she will suffer significant harm because she will be able to be identified as a failed asylum seeker as a result of this data breach. 13 On 22 August 2014, the appellants applied to Federal Circuit Court for the judicial review of the RRT's decision of 5 August 2014. As pleaded, the originating application contained one ground (particulars omitted): 1. The Tribunal erred in failing to consider the risk of significant harm to the applicant due to her imputed political opinion derived from her connection to her ex-husband and his status as a failed asylum seeker and the release of his personal details. 14 On 14 January 2015, the appellants filed written submissions with the Federal Circuit Court (the FCC written submissions) by which they sought to raise two grounds of review as follows: (a) the Tribunal erred by failing to comply with s 425 of the Act with respect to the data breach issue; and (b) the department breached either the Privacy Act 1988 (Cth) or s 336E of the Act with respect to the data breach issue. 15 On 13 May 2015, the Federal Circuit Court dismissed the appellants' application. In so doing, the learned primary judge observed (at [15]) that, at the hearing, the appellants abandoned the ground pleaded in the originating application in favour of the grounds set out in the FCC written submissions. 16 The learned primary judge considered (at [23] - [25]) that the appellants' pleaded ground and written submissions erroneously proceeded on the basis that the RRT was responsible for the conduct of the Minister's department. His Honour noted (at [26]) that the alleged breach of s 425 of the Act was said to have arisen because the RRT did not consider whether the second appellant would be at risk of harm in China as a result of the data breach. However, his Honour's view (at [29]) was that, because the second appellant had already had his protection claims considered under both the refugee criterion and the complementary protection criterion (in the context of the second appellant's first PVA), he was barred from having his protection claims further considered under these criteria by s 48A of the Act. His Honour concluded (at [30]) that the RRT was therefore correct to conclude that, following SZGIZ, the second appellant was only entitled to be considered against the family unit criterion. 17 The learned primary judge also addressed (at [31]) the appellants' claims that the first appellant would face a real risk of significant harm in China as a result of the data breach. He observed (at [32]-[33]) that the only evidence before the RRT (and before the Federal Circuit Court) related to the release of the second appellant's personal information, not the first appellant's personal information. The primary judge found that the RRT did consider the first appellant's claim to fear harm in China because of the release of the second applicant's personal information, and that the RRT's findings in respect of that claim were reasonably open to it on the evidence before it (at [34] - [35]). Ultimately (at [37] - [38]), his Honour was not satisfied that the data breach revealed any error in the RRT's decision. He observed that the Minister's department's letter to the second appellant indicated that a separate assessment would be made by the department as to the implications for the second appellant resulting from the data breach by the department. 18 On 29 May 2015, the appellants appealed to this Court against the Federal Circuit Court's order dismissing their judicial review application. In the notice of appeal, filed that day, the following grounds of appeal were pleaded: 1. The Appellants claimed that Australia owed protection obligations in respect of them. 2. The FCC erred by not finding that the Respondents made errors of law by not tacking into account some vital aspects, such as the release of the Appellants' personal information on the internet (the Data Breach) in February 2014 and the impact of the Data Breach on the Appellants. 3. The FCC erred by not finding that the Second Respondent made an error of law by not considering evidences which were significant and critical to the decision under review. 4. The FCC erred by not finding that all the Respondents has deprived the Appellants from natural justice. 5. The Court did not consider claims that the Appellant might raise as a consequence of the release of his personal information on the internet through the Data Breach and the publications of their previous Court judgements and RRT Decision Records. 6. The "promised normal process" by which the claims of the appellants that Australia owed protection obligations in respect of them has been wrongly completed. 7. In or about 11 February 2014, the First Respondent by his servants or agents released the appellants' personal information by publishing it on the world wide web. 8. The appellant's personal information so released included his name, date of birth, nationality, gender, details about the appellant's detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention. 9. Through the publications of their Court judgement and RRT Decision Record even more "identifying information" along with their all climes are publicly accessible. 10. The release of the appellant's personal information by the First Respondent, his servants or agents, was contrary to law. Particulars 1. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988; 2. Further, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure. 11. The release of the appellants' personal information has caused the appellants to have a well founded fear that their removal from Australia and return to China will involve a breach of Australia's non-refoulement obligations under the Refugee Convention; and/or the Convention Against Torture; and/or the International Covenant on Civil and Political Rights. 12. On 12 March 2014, the Second Appellant received a letter from the Secretary of the Department of Immigration and Border Protection ("the 12 March 2014 letter"). Particulars 3. The document was in writing and handed to the appellant and the appellant relies on the entirety of the letter as though it were pleaded herein. 13. The 12 March 2014 letter contained a representation as follows ("the 12 March 2014 Representation"): "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." 14. There is utility for the appellants in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s48B or s417 arising from the disclosure of the applicant's personal information. 15. There is a likelihood that the First Respondent will purport that it is reasonably practicable to remove the applicant pursuant to s198 and/or s197C of the Act irrespective of whether an assessment of Australia's non-refoulement obligations in relation to the February 2014 disclosure of the appellants' personal information has been carried out in a way which the appellants is accorded procedural fairness. [sic; emphasis in original] 19 On 4 June 2015, a registrar made standard appeal case management directions to the end of the appeal being heard in the Court's August 2015 appeal sittings. In the result, the appeal was not listed in that sittings. Subsequent case management orders were made by registrars, the effect of which was progressively to postpone the hearing of the appeal to the Court's first appeal sittings for 2016 and then to the November 2016 appeal sittings. In anticipation that the appeal would be heard in the first 2016 sittings, a Court Book was prepared and filed. The appellants prepared, filed and served an outline of submissions accordingly. Although there was no formal amendment of the notice of appeal, the appellants' outline of submissions was apparently prepared on the footing that an amendment had been made. That is because the submissions commence, "I press the four grounds of the amended notice of appeal" [sic]. The submissions are directed to asserted errors by the Federal Circuit Court in failing to find jurisdictional error in the RRT's dealing with asserted ramifications of the consequences of the data breach for each of the appellants. The RRT's error was said to include a failure to make inquiries as to those consequences. 20 In the result, the appeal was not heard in the November 2016 sittings. Instead, on 4 November 2016, Burley J ordered that: No further listing action occur in this matter, and the appeal will remain in abeyance, pending the outcome of the Minister for Immigration and Border Protection's appeal in the matter of Minister for Immigration and Border Protection v Singh & Anor: VID1202/2016. 21 The issue raised in that case touched on the impact of the non-disclosure to an applicant for review of certificates given under s 357A or, as the case may be, s 438 of the Act. 22 Thereafter, the occurrence of further test cases intruded upon the progression of the appeal to a hearing. On 18 June 2018, following a case management hearing, Burley J ordered that no further action occur in the matter, and the appeal: remain in abeyance, pending the determination of the appeals currently before the High Court of Australia from the decisions of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 23 Eventually, these various test cases were resolved by the judgement of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (SZMTA). The case management result was that, in September 2019, the appeal was listed for hearing on 11 November 2019. Also in September 2019, counsel who had previously agreed to act for the appellants pursuant to a pro bono referral order made by the Court for the benefit of the appellants in 2018 was granted leave to return the brief. The following month, the appellants filed and served an affidavit of the first appellant in which she deposed to the retainer of Ms Okereke-Fisher. In that affidavit, she also stated that, on advice, she (an I infer she also meant the second appellant) wished to amend the ground of appeal so as to plead the following as grounds of appeal: Ground One The Federal Circuit Court failed to find that the Tribunal failed to follow the Assumption in the High court's decision in SZSSJ in dealing with the question whether the Appellant would face significant harm as a result of the Data Breach Claim. Particulars (a) The second appellant's application was considered on the basis that he is a family member of the holder of a protection visa. [Paragraph 1, AB13] (b) The second appellant claimed that he was a victim of the department of immigration data breach that took place in 2014 and the Chinese government might persecute them ("Data Breach Claim"). [Paragraph 41, AB23] (c) Before the court the appellant stated that she would suffer harm on return to China as a result of the "data breach" involving her "husband's" personal details given her relationship to him. [Paragraph 31, FCCA Judgment, AB32] (d) The Tribunal accepted that the Appellant was subject to the Data Breach but found that it was the second appellant's name and personal details that were revealed, the letter did not state that the appellant's protection visa information was released. [Paragraph 41]. Ultimately the Tribunal found that there were no substantial grounds to believe that as a necessary and foreseeable consequence of the Appellant being removed from Australia, she will suffer significant harm because she will be identified as a failed asylum-seeker. [Paragraph 50, AB 26]. (e) On any view, the Data Breach was very serious. The information disclosing the identities of the applicants for protection visas embedded in the document published by the Department was information protected from unauthorised access and disclosure by criminal prohibitions in Pt 4A of the Migration Act 1958 (Cth). [Paragraph 4, Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29] ("SZSSJ")] (f) The High Court's decision in SZSSJ at [90]-[91] shows that officers conducting the ITOAs were instructed - to assume that an applicant's personal information may have been accessed by authorities in the country in which the applicant feared persecution or other relevant harm (the "Assumption"). Ground 2 The Federal Circuit Court failed to find that the Tribunal failed to give proper, genuine and realistic consideration to the Appellant's claim that her agent had fabricated her claims and she was a victim of a rogue Migration Agent. The Tribunal made adverse credibility findings because of the inconsistencies between the Appellant's representations and the fabricated claims leading to a proposition that adverse finding as to credit expose jurisdictional error. Particulars a) With respect to inconsistencies in her statements, the Appellant repeatedly stated that her agent misstated her claims, she had followed the instructions of her former migration agent and she had been manipulated by her agent [Paragraphs, 9, 11,20,31,34, 35, 36, 37 ("Migration Agent Claims") b) The Tribunal found that the Appellant was not a witness of truth because of the numerous inconsistencies in her evidence - [Paragraph 48, AB24] Ground Three The Federal Circuit Court of Australia failed to grant the Appellant's plea to corroborate the Appellant's claim in refusing to contact the Migration Agent resulting in a failure to exercise the discretion in section 424 of the Migration Ac reasonably, leading to a proposition that adverse findings as to credit expose jurisdictional error. In the alternative, the Tribunal failed to inquire about the Migration Agent Claims leading to jurisdictional error. Particulars a) Following repeated answers to the effect that her migration agent fabricated aspects of her claims, the Appellant invited the Tribunal to call her former migration agent to clarify her representations [Paragraph 28, AB20] b) Again, the Appellant stated that the former migration agent was in Australia and could b contacted by telephone. In response the Tribunal stated that it could not assign any weight to evidence from the migration agent given the Appellant's allegation that the agent was responsible for the lies in the Appellant's claims. [Paragraph 37, AB22] [sic; emphasis in original] 24 As distilled by Ms Okereke-Fisher in her submissions, the three proposed amended grounds of appeal raised these issues: (i) Ground 1 - whether the Lower Court failed to find that Tribunal (a) failed to consider the Appellants' Data Breach claim leading to a failure to exercise jurisdiction; and (ii) failed to consider the Appellants' Data Breach Claim in accordance with the law, pursuant to the High Court's decision in SZSSJ at [90]; (ii) Ground 2 - whether the Lower Court failed to find that the Tribunal failed to engage in an active intellectual process with respect to the Migration Agent Claims leading to the formulation of adverse credibility findings that expose jurisdictional error; and (ii) Ground 3 - whether the lower court failed to find that the Tribunal (a) failed to exercise its discretion under s 424(2) of the Act, reasonably; (b) failed to make relevant inquiries leading to a failure to exercise jurisdiction. [sic] 25 Ms Okereke-Fisher recognised, with respect correctly, that grounds 2 and 3 raised issues which had not been raised in the Federal Circuit Court and thus required a grant of leave in order to raise them on the appeal. Ground 1, she submitted, was but a recasting of, but not a substantive departure from, an issue which had been raised in that court. The Minister submitted that each proposed ground raised new issues and opposed the granting of leave. It was convenient to the parties and certainly in the interests of justice to hear submissions in respect of the merits of each of the proposed amended grounds and treat that as argument on the appeal for all purposes, rather than separately to determine in advance whether or not to grant leave to raise proposed amended grounds 2 and 3. I have approached the determination of the appeal, including whether to grant leave, accordingly.