Removal to China and publication of the personal information of an asylum seeker online

Facts

The author of the communication is J.S., a Chinese national. In 2013, J.S. travelled to Australia and applied for a protection visa. The author claimed that, in China, she had a relationship with a married businessman and witnessed transactions between him and corrupt officials. She argued that, upon her return to the country, she would have been exposed to a real risk of serious harm at the hands of the corrupt officials and the man’s wife, who had already paid others to harass and attack her. The Australian authorities concluded that her claims lacked credibility and rejected her application. In 2014, the Australian Department of Immigration published online, in error, the personal details of several asylum seekers, including the author. She filed an administrative complaint but did not receive compensation. J.S. claims that Australia’s rejection of her application for protection, also in light of the publication of her personal data, constitutes a violation of articles 6 (right to life) and 7 (prohibition of torture). Moreover, the author alleges that the publication of her personal data amounts to a violation of article 17 (right to privacy).

Admissibility

The Committee recalls that considerable weight should be given to the factual assessment conducted by a State party, unless it is clearly arbitrary, manifestly erroneous or amounts to a denial of justice. Since the author’s claims under articles 6 and 7 are based on the same allegations that were rejected by the Australian authorities and J.S. did not show that their assessment was arbitrary or erroneous, the Committee declares such claims inadmissible. By  contrast, the Committee determines that the author’s claim under article 17 is admissible. Although not expressly invoked by the author, the claim also raises issues under article 17 read in conjunction with article 2(3).

Merits

The Committee recalls that States have to take effective measures to ensure that information concerning a person’s private life is not accessed by persons who are not authorised by law. The Committee also recalls that such safeguards are particularly important for persons in vulnerable situations, including asylum seekers and refugees. In the present case, the breach of the author’s privacy is not contested and no remedies were provided. Therefore, the Committee concludes that the author’s rights under article 17, read alone and in conjunction with article 2(3), have been violated.

Recommendations

The State party is obligated, inter alia, to take appropriate steps to provide adequate compensation to the author for the violation suffered. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Implementation

Deadline: January 1, 2022

More info on the case:

Office of the Australian Information Commissioner – Immigration Data Breach Privacy Complaint

The Guardian – Immigration Department data lapse reveals asylum seekers’ personal details

Human Rights Law Centre – High Court rules on Department of Immigration ‘data breach’ cases

By: Giacomo Bruno