FEDERAL COURT OF AUSTRALIA WZAWA v Minister for Immigration and Border Protection [2016] FCA 759 Appeal from: WZAWA v Minister for Immigration & Anor [2015] FCCA 3075 File number: WAD 23 of 2016 Judge: GILMOUR J Date of judgment: 29 June 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for an extension of time within which to file a Notice of Appeal pursuant to rules 36.03 and 36.05 of the Federal Court Rules – whether the primary Judge of the Federal Circuit Court erred in finding that the Tribunal's decision was not affected by error of law – whether the primary Judge erred in finding that the Tribunal's decision was not adversely impacted by the Department of Immigration's failure to provide details of the specific personal information of the Applicant that was made public, and details as to who the information was accessed by, in a data breach incident in February 2014 Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 189, 411(1)(c), 426A Federal Court Rules 2011 (Cth) rr 36.03, 36.05 Cases cited: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Sutera v Nelson [2011] FCA 1470 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 SZWAJ v Minister for Immigration and Border Protection (2015) FCA 26 WZAWA v Minister for Immigration and Border Protection [2015] FCFCA 3075 Date of hearing: 3 May 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr P Macliver Solicitor for the Respondent: Sparke Helmore ORDERS WAD 23 of 2016 BETWEEN: WZAWA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 29 june 2016 THE COURT ORDERS THAT: 1. The application for an extension of time within which to appeal is dismissed. 2. The applicant is to pay the costs of the first respondent to be fixed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 This is an application for an extension of time within which to file a Notice of Appeal from the judgment of the Federal Circuit Court of Australia, which dismissed the applicant's application for review of the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), dated 21 January 2015, affirming the decision of the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa. Factual and procedural background 2 The following background, which is not controversial, is drawn from the Minister's written submissions. 3 The applicant is a citizen of the People's Republic of China who was born in Tumen, Jilin Provence, on 18 April 1960. The applicant first arrived in Australia on 8 May 1996, on a Subclass 676 (Tourist) visa valid until 8 August 1996, using a false South Korean passport issued in the name Kyun Jin Choi. 4 On 13 May 1996, the applicant lodged an application for a Protection (Class XA) visa in the false name of Kyun Jin Choi, and that application was refused by a delegate of the first respondent on 14 August 1996. 5 On 29 April 2009, the applicant lodged an application for review of the delegate's decision of 14 August 1996 with the former Refugee Review Tribunal. I will also refer to this as the Tribunal. Notwithstanding the application was made in excess of 13 years after the delegate's decision, the Tribunal concluded that the decision was a reviewable decision under s 411(1)(c) of the Migration Act 1958 (Cth) (Migration Act). 6 The applicant did not appear at the scheduled Tribunal hearing, and pursuant to s 426A of the Migration Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. On 26 June 2009, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa, as it was satisfied that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention. 7 On 11 June 2013, the applicant's last Bridging E visa ceased and the applicant subsequently became an unlawful non-citizen. The applicant was located by the Department of Immigration and Border Protection (Department) on 16 December 2013, and the applicant was detained pursuant to s 189 of the Migration Act and transferred to an immigration detention centre. 8 On 20 December 2013, the applicant lodged a further application for a protection visa on the basis that his previous protection visa application was not assessed under the complementary protection criteria now to be found in s 36(2)(aa) of the Migration Act. 9 On 3 October 2014, a delegate of the Minister refused to grant the applicant a Protection (Class XA) visa. The applicant lodged an application for review of the delegate's decision with the Tribunal on 11 November 2014, and appeared before the Tribunal on 17 December 2014 to give evidence and present arguments in relation to the issues arising in his case. 10 Based on the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the Tribunal found that it did not have power to consider the Refugees Convention criterion in s 36(2)(a) of the Migration Act, but that it could consider the applicant's claims under the complementary protection provisions in s 36(2)(aa). 11 On 21 January 2015, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a Protection (Class XA) visa, as it did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to China there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Migration Act, and therefore the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). 12 In concluding that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act, the Tribunal found that: (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 would be seen as anti-government; (3) 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; (4) 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; (5) 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; (6) there was no evidence to suggest that the applicant's claims had been leaked in the data breach to the Chinese authorities. It found that the applicant had no profile in China, and that he would be of no interest to the authorities or be seen to be anti-government upon his return to China; and (7) 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." Federal Circuit Court 13 The applicant sought review of the Tribunal's decision of 21 January 2015, and on 23 June 2015 he filed an amended application in the Federal Circuit Court. 14 The grounds set out in the amended application were that: (1) The jurisdiction of the Tribunal was not constructively exercised due to a fraud committed upon the Tribunal by the Minister and/or the Department in withholding critical information from the Tribunal with respect to the applicant's claims arising out of the Department's unlawful disclosure of the applicant's personal information (referring to the data breach incident involving the Department's disclosure of personal information in relation to persons held in immigration detention in February 2014). (2) The Tribunal denied the applicant procedural fairness in deciding on the effect of the Department's unlawful disclosure of the applicant's personal information when there is ongoing unresolved litigation on foot which directly affects the applicant's claims and interests (referring to the Federal Court proceeding in SZWAJ v Minister for Immigration and Border Protection (2015) FCA 26 concerning the Department's "normal processes" for the assessment of implications for individuals personally, as described in the Department's letter to the applicant about the data breach dated 12 March 2014). (3) The Tribunal erred in law by taking a "cautious" approach in considering the applicant's new claims following his previous unsuccessful application in circumstances where the applicant was entitled to have any new claims assessed on the basis of different criterion from those assessed in his previous application, namely the complementary protection criterion under s 36(2)(aa) of the Migration Act, and that the applicant's previous application was based only on consideration of the Refugees Convention criterion in s 36(2)(a), the complementary protection provisions only having entered into force on 24 March 2012. 15 On 23 November 2015, the Federal Circuit Court dismissed the application with costs: WZAWA v Minister for Immigration and Border Protection [2015] FCCA 3075. 16 Pursuant to rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules), an appellant must file a notice of appeal: (a) within 21 days after the date on which the judgment appealed from was pronounced or the order was made, or the date on which leave to appeal was granted, or (b) on or before a date fixed for that purpose by the court appealed from. 17 Accordingly, subject to any order of the Court extending time to appeal, the 21 day period for filing a notice of appeal ended on 14 December 2015. 18 On 15 January 2016, the applicant filed an application under rule 36.05 of the Rules applying for an extension of time to file a notice of appeal. The application was supported by an affidavit affirmed by the applicant on 15 December 2015. 19 In a proposed notice of appeal also filed on 15 January 2016, the applicant seeks to appeal from the whole of the judgment of the Federal Circuit Court given on 23 November 2015 on the grounds that: "1. The primary judge erred in finding that the Tribunal's decision was not affected by error of law. 2. The primary judge erred in finding that the Tribunal's decision was not adversely impacted by the Department's failure to provide details of the specific personal information of the Applicant that was made public and details as to who the information was accessed by." Application for an extension of time in which to appeal 20 Pursuant to rules 36.03 and 36.05 of the Rules, the Court may grant an extension of time within which to file a notice of appeal. Pursuant to rule 36.05, such an application must be accompanied by an affidavit stating the facts on which the applicant's application relies and why the notice of appeal was not filed within the time. 21 The application for an extension of time was made only 32 days after the ordinary 21 day period for filing a notice of appeal, and the applicant's affidavit of 15 December 2015 provides reasons as to why he was not able to file a notice of appeal within the 21 day period. 22 It is well established that before an extension of time to appeal is granted, the Court must be satisfied that there are merits in the proposed notice of appeal: see e.g. Sutera v Nelson [2011] FCA 1470 at [7] and the cases there cited. 23 The Minister, in opposing the extension application, submits that neither of the applicant's grounds of appeal in his proposed notice of appeal has any merit, and accordingly, the Court should not grant an extension of time. Proposed Ground 1 24 The Minister submitted that ground 1 in the applicant's proposed notice of appeal merely asserts that the primary Judge erred in finding that the Tribunal's decision was not affected by error of law. No particulars are provided as to the manner in which the primary Judge is alleged to have erred, and no particulars are provided of the particular aspect or aspects of the Tribunal's decision which are alleged to have been affected by "error of law". I agree that in the absence of any such particulars this first ground of appeal must fail. 25 I can, in any event, discern no error on the part of the primary Judge in concluding that none of the applicant's three grounds of application before him established any jurisdictional error on the part of the Tribunal. Proposed Ground 2 26 Ground 2 asserts that the primary Judge erred in finding that the Tribunal's decision was not adversely impacted by the Department's failure to provide details of the specific personal information of the applicant that was made public and details as to who the information was accessed by. It seems that this ground relates to ground 1 of the application before the Federal Circuit Court below, which alleged that the jurisdiction of the Tribunal was not constructively exercised due to a fraud, committed by the Tribunal by either the Minister and/or the Department, in withholding critical information from the Tribunal in relation to the data breach incident of February 2014. 27 In rejecting this ground of application, the primary Judge noted that the Tribunal had accepted that information was leaked in relation to the identities of people in detention, including the applicant, but not the claims they had made, and that in reaching that finding the Tribunal had relied on various independent reports. 28 The primary Judge further observed, correctly, that an allegation of fraud made against a Minister or a Department is a very serious matter and should not be made lightly, and that in this case it was not made out. 29 I find no error in his Honour's reasons at [29]-[31] in so concluding. Moreover, the applicant's contention in ground 2 that the Department had failed "to provide details of the specific personal information of the applicant that was made public", is erroneous. The primary Judge at [24] of his reasons set out part of the Department's Secretary's letter to the applicant on 12 March 2014, which stated that: "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." 30 There is also no substance to the allegation in Ground 2 of the proposed notice of appeal that the primary Judge erred in finding that the Tribunal's decision was not adversely impacted by the Department's failure to provide "details as to who the information was accessed by". 31 The issue before the primary Judge in relation to Ground 1 of the application in the Court below was not whether the Tribunal's decision had been adversely impacted by a failure to provide the Tribunal with details as to who the data breach information was accessed by. The applicant did not raise any issue in the court below in relation to who the information was accessed by. 32 Furthermore, and in any event, as the Minister correctly submits, any details as to who had accessed the data inadvertently disclosed on the Department's website, including the personal data of the applicant, could not have affected the Tribunal's decision, and therefore any failure to provide such details to the Tribunal could not have resulted in the Tribunal's decision involving jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82] and [84]. 33 Again, as the Minister correctly submits, the Tribunal specifically considered the applicant's claims regarding the data breach and release of his personal information, and noted that there was no indication that the data breach had released the applicant's protection claims: see Tribunal's Decision at [63] and [64]. 34 I was referred by the Minister to the two following matters concerning the Tribunal's considerations and conclusions: (1) The Tribunal then considered information provided to the Department by the Department of Foreign Affairs and Trade in respect of the treatment of failed asylum seekers in China, in a report by Doctor Thomas Weyrauch (at [65]-[69]). This information indicated that Chinese authorities regarded it as commonplace for people to apply for protection in Australia, and that they do not see it as a sign of political disloyalty, and that failed asylum seekers who are unknown to the Chinese authorities and who have not been named and widely reported in the Australian media are unlikely to face harsher treatment or political persecution upon their return. (2) The Tribunal concluded at [70] that there was no evidence to suggest that the applicant's claims had been leaked in the data breach to the Chinese authorities, but in any event, based on the evidence before it, the Tribunal also considered that the applicant "has no profile in China and would be of no interest to the authorities or seen as anti-government on his return to China". This was so because the applicant would be known to the Chinese authorities as a failed asylum seeker, irrespective of whether the Chinese authorities had been able to access the data about the applicant inadvertently disclosed in the February 2014 data breach. 35 I accept the Minister's submissions that it follows that the Tribunal's decision could not have been "adversely impacted" because it had not been advised by the Department as to who the applicant's information had been accessed by. Even if the data had been accessed by the Chinese authorities and the Tribunal had been advised of that, I accept the Minister's submission that this knowledge could not have affected the Tribunal's decision. Conclusion 36 The two proposed grounds of appeal are, in my opinion, without merit. The application for an extension of time within which to appeal will be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 29 June 2016