AustLII Home | Databases | WorldLII | Search | Feedback

Federal Circuit Court of Australia
You are here:  AustLII >> Databases >> Federal Circuit Court of Australia >> 2015 >> [2015] FCCA 3075

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

WZAWA v Minister for Immigration & Anor [2015] FCCA 3075 (23 November 2015)

Last Updated: 7 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAWA v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.


Legislation:


Minister for Immigration v Jia Legeng (2001) 205 CLR 507
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125
WZAVY v Minister for Immigration and Border Protection [2013] FCCA 2590


Applicant:
WZAWA

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
PEG 58 of 2015

Judgment of:
Judge Hartnett

Hearing date:
16 November 2015

Delivered at:
Perth

Delivered on:
23 November 2015

REPRESENTATION

Counsel for the Applicant:
Ms L Nguyen

Solicitors for the Applicant:
Ward Keller Lawyers

Counsel for the First Respondent:
Mr PR Macliver

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

(1) The name of the second respondent be amended to “Administrative Appeals Tribunal”.
(2) The application be dismissed.
(3) The Applicant pay the First Respondent’s costs in the sum of $6825.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 58 of 2015

WZAWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. Before the Court is an amended application filed on 23 June 2015 wherein the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 21 January 2015. The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 3 October 2014 to not grant the Applicant a Protection (Class XA) visa (‘the visa’).
  2. The grounds set out in the amended application are as follows:-
  3. The Applicant relied upon his amended application and an affidavit sworn by him on 16 February 2015. The Applicant further relied upon written submissions dated 2 November 2015.

  1. The First Respondent relied upon:-
    1. the following affidavits:-
      • (i) Affidavit of Jake Terrance Kyranis, affirmed 8 July 2015;
      • (ii) Affidavit of Claire Amy Campbell, affirmed 26 June 2015;
      • (iii) Affidavit of Tanya McIntyre, affirmed 24 June 2015; and
    2. submissions dated 9 November 2015.
  2. There is also before the Court evidence as contained in the court book lodged electronically on 27 May 2015.

History

  1. The Applicant was born in Tumen Jilin Province, People’s Republic of China (‘PRC’) on 18 April 1960. He first arrived in Australia on 8 May 1996 on a Subclass 676 (Tourist) visa valid to 8 August 1996. He travelled to Australia on a false South Korean passport issued in the name of Kyun Jin Choi.
  2. On 13 May 1996 the Applicant lodged his first application for a Protection (Class XA) visa and in the false name of Kyun Jin Choi. That application was refused by a delegate of the First Respondent on 14 August 1996.
  3. On 29 April 2009 the Applicant lodged an application for review of the decision of the delegate with the Tribunal. I note the filing of that application with the Tribunal was many years after the delegate’s decision. In fact, in excess of 13 years. The decision notification letter had relevantly advised the Applicant that he must apply for review ‘within 28 days of receiving this letter. You are taken to have received this letter seven days after the date of this letter’. The letter, however, was defective as it relied on R.5.03 of the Migration Regulations 1994 (Cth) when prescribing the time within which the Applicant was taken to have received the document. That rule was subsequently held by the Full Court of the Federal Court of Australia to be invalid.[1] The first decision of the Tribunal on 26 June 2009, set out in paragraph 5 of the Decision Record, that the Tribunal concluded the Applicant did not appear to have been properly notified of the decision to review the visa and thus that Tribunal found that the delegate’s decision was a Tribunal reviewable decision under s.411(1)(c) of the Migration Act 1958 (Cth) (‘the Act’).
  4. In respect of that first decision hearing of the Tribunal, the Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In those circumstances and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it. The Tribunal considered the substantive claims of the Applicant which it summarised in paragraph 25 of that decision record as being:-
    1. he Joined the Liberal Democratic Party which was recently destroyed by the Chinese Government. Many party members were arrested and accused of attempting to overthrow the government. Under such circumstances, I had no choice but to seek help from my relatives in South Korea, who helped me come to Australia; and
    2. in China, he would be jailed and deprived of the right to work. He would be harmed by the Chinese Government, the Public Security Bureau (‘PSB’) and local authorities. He is regarded as an anti-government activist and a counter-revolutionary. He is still wanted by the government.
  5. The Tribunal found the written information provided by the Applicant in the first Tribunal hearing to be brief, vague and entirely unsubstantiated amounting to no more than a series of simple assertions. Had the Applicant attended the hearing the Tribunal member would have used that opportunity to discuss the concerns the Tribunal had with the Applicant’s claims and, in particular, offer him the opportunity to explain in detail the political opinion or activity which he claimed to be a reason for his being targeted by the authorities in China.
  6. The Tribunal on 26 June 2009 affirmed the decision not to grant the Applicant a Protection (Class XA) visa being satisfied that the Applicant was not a person to whom Australia had protection obligations under the Refugees Convention. At that time, the only matter before the Tribunal to consider was the criterion set out in s.36(2)(a) of the Act and the Tribunal found the Applicant did not satisfy that criterion.
  7. On 15 November 2012, the Applicant submitted a request that the Minister intervene under s.417 of the Act. On 11 December 2012, the Applicant lodged a request that the Minister intervene under s.48B of the Act to enable him to make a further protection visa application. This latter request was finalised the same day as “subsequent application not allowed”. On 8 March 2013, the Applicant’s s.417 of the Act Ministerial intervention request was finalised as “not considered”.
  8. On 11 June 2013, the Applicant’s last Bridging E visa ceased. According to departmental records, the Applicant failed to attend an interview scheduled for that day and subsequently became an unlawful non-citizen. On 16 December 2013, the Applicant was located by Department of Immigration Border Protection (‘the Department’) compliance officers and detained pursuant to s.189 of the Act. He was transferred to an immigration detention centre.
  9. On 20 December 2013, the Applicant lodged a further application for a protection visa which is the subject of the judicial review application now before the Court and in relation to which these reasons are published. The basis of the application is that the Applicant’s first protection visa application was not assessed under the complementary protection criteria now in existence.
  10. Ordinarily, s.48A of the Act operates to prevent a non-citizen who, while in the migration zone, has made one or more applications for a protection visa where the grant of the visa has been refused, from making a further such application The bar in s.48A of the Act is subject to the waiver provision in s.48B of the Act. However, since the Full Court of the Federal Court of Australia decision in SZGIZ v Minister for Immigration[2], protection visa applications made on the basis of different criteria are understood to be unaffected by the bar pursuant to s.48A of the Act. Thus the Applicant was not refused subsequent application for a protection visa on the basis of the Complementary Protection criteria in s.36(2)(aa) of the Act.
  11. On 3 October 2014, the delegate refused the grant of the visa. The delegate accepted that the Applicant was of Korean ethnicity and had been employed as a police officer. The delegate, however, did not accept that the Applicant had no family support and would be unable to subsist upon return; that he was a member of a political party whilst in China; that the Applicant was targeted due to his employment as a police officer; or that he was of interest to the PSB. The delegate also found that the Applicant’s profile had not been elevated by the data breach.
  12. The Applicant lodged an application for review to the Tribunal on 11 November 2014. The Applicant appeared before the Tribunal on 17 December 2014 to give evidence and present arguments in response to the invitation to hearing letter sent to the Applicant by the Tribunal.

The Tribunal hearing and decision

  1. The Tribunal, differently constituted, as set out in its decision record, found that it did not have power to consider the Refugee Convention criterion in s.36(2)(a) of the Act, but that it could consider the Applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. This conclusion was based on the reasoning in SZGIZ.
  2. The Tribunal assessed the Applicant’s claims against PRC as the country of nationality. The Tribunal was satisfied that the Applicant did not have a right to enter and reside in any other country.
  3. The Tribunal noted, in its decision record at paragraph 26, that during his departmental interview conducted on 23 June 2014 the Applicant made further new claims which were not previously raised. The Tribunal noted it had considered all of the Applicant’s claims. The Tribunal summarised those claims wherein the Applicant claimed he would face a real risk of significant harm if he returns to China because of:-
    1. his involvement in the Korean Liberal Democratic Party (‘KLDP’);
    2. his employment as a police officer and failure to issue arrest warrants during the 1989 democracy movement protests;
    1. a Department data breach;
    1. status as a failed asylum seeker, who departed China illegally and travelled to Australia on a false passport;
    2. the length of time he has spent in Australia and the lack of employment prospects in China; and
    3. his Christian religious beliefs.
  4. The Tribunal did not find the Applicant to be a credible witness.
  5. The Tribunal found, as accurately and succinctly put in the written submissions of the First Respondent dated 9 November 2015:-
    1. the Applicant’s evidence about his membership of the Korean National Liberal Party (‘KNLP’) was inconsistent and vague. Having regard to that, as well as the lack of independent country information, it did not accept that the Applicant was a member of the KNLP in China as claimed;
    2. even if it were to accept that the Applicant was a member of the KNLP and had been questioned by the authorities, it did not accept that the Applicant would be of any interest to the authorities because of his profile as a former KNLP member and/or be would be seen as anti-government;
    1. it did not accept that the Applicant was employed as a police officer, refused to issue arrest warrants for family and friends associated with the 1989 democracy movement protests, or that he was subsequently arrested and detained by the Chinese authorities;
    1. it accepted that the Applicant was a Christian, who attended a registered church in China and a Korean Christian church in Australia, however did not consider that the Applicant, upon his return, would face a real risk of suffering significant harm because he was a Christian;
    2. that the Applicant’s immediate and extended family were all in China, and that he had been able to live and work in Australia for 18 years and in Korea for 4 years. Accordingly, it found that the Applicant’s family connections and work skills would enable him to find work and integrate back into Chinese society, and that there was no real risk that the Applicant would face significant harm due to the length of time he spent in Australia, or for the reason of his inability to find employment;
    3. there was no evidence to suggest that the Applicant’s claims had been leaked in the data breach to the Chinese authorities, that the Applicant had no profile in China, and would be of no interest to the authorities or be seen to be anti-government upon his return to China;
    4. having regard to the country information and the Applicant’s lack of profile, it found that the maximum penalties referred to did not amount to significant harm. It accepted that the Applicant would be detained for a short period of time, questioned, and may be kept under surveillance, but having regard to the Applicant’s profile, found that the perception by the authorities upon the Applicant’s return to China would be of a “failed economic migrant” to Australia, and not as someone who was anti-government.
  6. The Tribunal found accordingly and on the evidence before it that the Applicant did not meet the protection obligations under s.36(2)(aa) of the Act, and the decision under review was affirmed.

Consideration
Ground 1

  1. By correspondence of 12 March 2014, from Martin Bowles, Secretary of the Department, the Applicant was advised that some of his personal information may have been disclosed on the Department’s website and accessed by unauthorised parties. That correspondence further advised the Applicant, that 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, as the Applicant was. The information was said to be accessible online for a short period of time before it was removed from the department’s website. That correspondence to the Applicant said further relevantly the following:
  2. The Department by earlier correspondence of 27 February 2014 had written to Mr Pilgrim, Australian Privacy Commissioner, notifying of the privacy breach. The details of the incident therein described were as follows:
  3. The issue of the privacy breach as described in the preceding paragraphs was discussed with the Applicant in the interview before the delegate and the delegate found the Applicant’s profile had not been elevated by the data breach.
  4. The Tribunal accepted that information was leaked in relation to the identities of the people in detention including the Applicant, but not the claims they had made. Contrary to the submissions of the Applicant, I accept the submissions of the First Respondent that the Tribunal, in reaching that finding, did not adopt “the department’s delegate’s assertion” but instead relied on various independent reports. The Tribunal further considered the Applicant’s claims and relevant country information, and found that the Applicant had no profile in China and would be of no interest to the authorities or seen as anti-government upon his return.
  5. The Applicant claims that the Department did not release specific information, and in its failure to do so, was fraudulent. I note particulars of that claim were provided. A finding of fraud should have specified:-
    1. what was said that was fraudulent;
    2. how it was fraudulent; and
    1. how it was acted upon.[3]
  6. An allegation of fraud by a Minister or a Department is a very serious matter and should not be lightly made. It is a claim that has no application here and cannot be made out. It is clear that the Department became aware of the data breach on 19 February 2014 and immediately removed the report. The Privacy Commissioner was notified on 27 February 2014, and the Applicant was notified of the breach on 12 March 2014, and notably advised of the class of information accessible. The Department undertook investigations into the breach; accepted the information should not have been made publicly available; and on its own motion instituted an investigation report. The Privacy Commissioner published an “own motion investigation report” in November 2014, which is publicly available, and KPMG made a report regarding the Department’s data breach, which is an abridged report and also one that was made publicly available.
  7. The Department indicated that further information in relation to the data breach could not be released for “security reasons.” In the circumstances, it cannot be said, as submitted by the First Respondent, that the non-disclosure of further information could constitute bad faith as it was withheld for legitimate reasons.[4]
  8. There is no evidence that the Applicant was misled in any way and there is no evidence of dishonesty or deceit.

Ground 2

  1. The Applicant relied on the decision of the Full Court of the Federal Court in SZSSJ v Minister for Immigration and Border Protection[5] as the basis for this ground. That decision is distinguishable. This is a case where the Tribunal was the subject of the statutory regime identified in ss.420 and 422B of the Act. The processes addressed by the Full Court of the Federal Court of Australia in SZSSJ were not the subject of such statutory obligations as found in Division 4 of Part 7 of the Act that applied to the Tribunal in assessing whether or not Australia had an obligation of non-refoulement of the Applicant by reason of the application of the complementary protection provisions in section 36(2)(aa) of the Act.[6]
  2. Furthermore, as submitted by the First Respondent, SZSSJ involved what the Court therein described as the Department’s conflicted role in assessing non-refoulement obligations that arose from its own wrongful conduct, and it was in that context that the Court considered that the decision-maker was required to “Show its full hand”.[7]
  3. I am satisfied that the Tribunal accorded the Applicant procedural fairness and complied with the statutory regime. The Applicant was given an opportunity to give evidence and present arguments and the Tribunal carefully considered each and every of the claims put before it by the Applicant, including the data breach. The Tribunal made findings open to it on the evidence before it.
  4. No jurisdictional error attends the Tribunal’s decision in regard to this ground.

Ground 3

  1. There is no evidence to suggest that the approach taken by the Tribunal in determining the Applicant’s claims was in any way biased or that the decision-maker was guilty of pre-judgment. Such allegation is a serious one, and needs to be firmly and distinctly made and clearly proven.[8] The ground is unparticularised. The Tribunal made findings of fact in relation to the Applicant’s alleged fears in respect of the risk that he would suffer significant harm if he returned to China. It considered each of the integers of his claims. The findings made by the Tribunal were open to it on the evidence before it.
  2. The grounds of apprehended bias, or actual bias on the part of the Tribunal are essentially absent in their expression in the amended application, and on a fair reading of the Tribunal decision cannot go anywhere near being established. There is no jurisdictional error in the Tribunal’s reasons. The Tribunal’s decision turned ultimately on adverse findings of credit against the Applicant that were clearly open to the Tribunal on the material before it. Such findings were a matter for the Tribunal.
  3. The application will be dismissed and costs shall follow the event.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 23 November 2015

[1] Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 171 ALR 53.
[2] [2013] FCAFC 71 (‘SZGIZ’).
[3] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 42 (‘SZFDE’).
[4] SZFDE at 13.
[5] [2015] FCAFC 125 (‘SZSSJ’).
[6] WZAVY v Minister for Immigration and Border Protection [2013] FCCA 2590 at [9].
[7] SZSSJ at 121.
[8] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; at [69] per Gleeson CJ and Gummow J, and at [127] per Kirby J.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCCA/2015/3075.html