AAG15 v Minister for Immigration
[2017] FCCA 328
•14 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAG15 v MINISTER FOR IMMIGRATION | [2017] FCCA 328 |
| Catchwords: MIGRATION – Application to show cause – applicant in immigration detention – whether department conducted ITOA – whether there is an obligation to accord procedural fairness to ITOA processes – whether there was a migration decision – whether jurisdiction exclusion by s 476(2) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.198, 476 Federal Circuit Court Rules 2001, r.44.12 |
| AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131 (3 June 2016) Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 |
| Applicant: | AAG15 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | MLG 1917 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 February 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 7 September 2016 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1917 of 2016
| AAG15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(delivered Ex Tempore and revised for transcript)
Nature of Application
By an application filed 7 September 2016, the Applicant seeks final orders that:
(a) the decision of the Minister be quashed;
(b) a writ of mandamus directed to the Minister requiring him to determine my request according to law; and
(c) an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents from relying upon the decision on 31 August 2016 and from removing me from Australia.
The Applicant also seeks costs.
The Respondent has filed an application in the case seeking that the substantive application be dismissed and requiring the Applicant to show cause why it should not be dismissed in accordance with the rule 44.12(1)(a) of the Federal Circuit Court Rules 2001. That rule provides:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or…
The decision said to be the subject of the application is set out in a letter dated 31 August 2016 from the Director of ABF Ministerial Correspondence section of the Australian Border Force addressed to the Applicant. The correspondence reads, omitting formal parts:
Thank you for your correspondence of 8 August 2016 to the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP, concerning your request for an International Treaties Obligations Assessment (ITOA) due to the unintentional release of your personal information by the Department of Immigration and Border Protection in February 2014. The Minister appreciates the time you have taken to bring this matter to his attention and has asked that I reply on his behalf.
As part of your Protection visa application, and outlined in your decision record of 17 November 2014, the Minister’s delegate considered the impact of the unintentional release of your personal information when assessing your claims for protection. As such, your request for an ITOA will not be considered.
The Respondent submits that the application does not raise an arguable case for the grant of relief sought and should be dismissed pursuant to rule 44.12(1) of the Federal Circuit Court Rules 2001. The submissions filed on behalf of the Minister set out a factual background surrounding this application, and it does not appear that there is any substantial dispute raised in relation to that recitation of the background. For ease of reference I reproduce the chronology below:
8. The applicant is a 45 year old citizen of Fiji who first arrived in Australia as a visitor in 1989. An application for a humanitarian visa lodged in the early 1990's was withdrawn, and he returned to Fiji in May 1995.
9. (The Applicant ) Returned to Australia on 6 April 2007 as the holder of a temporary Spouse visa, the applicant was granted a permanent Spouse visa on 3 December 2008. Other than a visit to Fiji in 2009, he has remained in Australia since December 2008.
10. On 13 August 2012 the applicant was charged with two representative counts of sexual offences relating to children, pleaded guilty, and was imprisoned. His permanent Spouse visa was cancelled on 18 October 2013, under s 501(2) of the Act, a decision affirmed by the General Division of the Administrative Appeals Tribunal (the AAT). The nature and extent of the applicant's offending was detailed in the AAT's decision record published on 15 January 2014 (Re SQNR and Minister for Immigration and Border Protection AAT 2013/5462 (15 January 2014)).
11. Once released on parole the applicant was taken into immigration detention on 12 November 2013, where he remains.
12. The applicant was in detention on 31 January 2014, when the data breach occurred, and was one of almost 10,000 detainees affected. Following the data breach the applicant was sent a letter by the Department dated 12 March 2014 that told him that "the department will assess any implications (arising from the data breach) for you personally as part of its normal processes. You may also raise concerns you have during these processes".
13. After failing in an application for review of the AAT decision in the Federal Court on 10 October 2014, the applicant lodged an application for a Protection (Class XA) visa (the protection visa) on 30 October 2014, claiming amongst other things that his personal details had been released by reason of the data breach, and that this provided a basis for a claimed fear of persecution that should attract Australia's protection obligations.
14. A delegate of the Minister refused to grant the protection visa on 17 November 2014, and an application for review was lodged with then Refugee Review Tribunal (the Tribunal) on 24 November 2014.
15. The applicant appeared at a Tribunal hearing to give evidence and present arguments on 8 January 2015, claiming amongst other things that the data breach had created a sur place claim for protection while the applicant was in Australia, because the details of his criminal convictions in Australia would have become known in Fiji. He feared being unable to find employment due to his criminal convictions becoming known and his being perceived to be homosexual, and harm from the Fijian authorities if his convictions and his application for protection became known.
16. The Tribunal found, at [121] of its Decision Record (RRT Decision in case number 1419234 (27 January 2015)), that on the evidence before it the data breach in February 2014 had not disclosed the applicant's protection visa application, and the applicant's seeking protection in Australia was not enough in itself to give rise to a real chance of serious harm or a real risk of significant harm from the Fijian authorities.
17. Further, the Tribunal found at [108] of its Decision Record that there was no evidence that the data breach had included information as to whether the applicant had made protection claims, or the nature of such claims. The Tribunal found that the data breach had disclosed the applicant's full name, gender, citizenship, date of birth, period of detention, and that he became unlawful in Australia when his Partner visa was cancelled under s 501 of the Act.
18. The Tribunal affirmed the delegate decision on 27 January 2015.
19. The applicant filed an application for judicial review on 25 February 2015, which was heard by his Honour Judge McGuire on 1 September 2015. His Honour rejected the applicant's claim that the Tribunal had erred by not finding that the data breach had created a sur place claim by placing him at risk on his return to Fiji. His Honour further found that the Tribunal had addressed the relevant factual platform in relation to the data breach, and that its findings of fact were open to it. The Tribunal had engaged with, and given consideration to, the applicant's claims, and there was no merit in the applicant's claim that the Tribunal had erred by failing to address the sur place claim.
20. Judge McGuire dismissed the application on 24 September 2015.
21. An appeal was filed in the Federal Court, and was heard on 8 February 2016 by his Honour Justice Jessup.
22. His Honour found that the fact scenario in SZSSJ (SZSSJ v Minister for Immigration and Border Protection [2014] HCASL 73) had been concerned with the Minister's obligation to afford procedural fairness to persons affected by the data breach whose protection visa claims had already been refused. By contrast, what the applicant was seeking to have exercised in relation to his protection visa application was the decision-maker's power to issue a visa under the Act (AAG15 v Minister for Immigration and Border Protection [2015] FFCA 2445 at [15]).
23. His Honour further found that the applicant was afforded procedural fairness in the way that the Tribunal dealt with the matter of the data breach. The applicant had been invited to provide evidence and present arguments, and did so. His argument was entertained, understood and considered (AAG15 v Minister for Immigration and Border Protection [2015] FFCA 2445 at [23]).
24. The appeal was dismissed on 8 February 2016, with written Reasons for Judgment published by his Honour Justice Jessup on 22 February 2016 (AAG15 v Minister for Immigration and Border Protection [2015] FFCA 2445).
25. The applicant submitted a request that the Minister intervene to set aside the Tribunal decision pursuant to s 417 of the Act on 17 February 2016, which was rejected on 30 March 2016 by an officer of the respondent on the basis that the request did not meet the guidelines issued by the Minister for referral of such requests to him for consideration.
26. The applicant sought to challenge this rejection by filing an application in the High Court seeking an order to show cause why the rejection of his s 417 Ministerial intervention request should not be quashed, which was dismissed by his Honour Justice Nettle on 3 June 2016 (AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131 (3 June 2016).
27. A further request to the Minister to exercise his non-compellable powers was rejected as not meeting the guidelines issued by the Minister for referral of such requests to him for consideration on 23 May 2016.
On 27 January 2015, the Administrative Appeal Tribunal made a decision in respect of the application by the Applicant for a Protection visa. At [105], the issue of the data breach was considered by the Tribunal and the Tribunal dismissed the application having considered at length the material raised by the Applicant. That decision was the subject of a review to his Honour Judge McGuire in this Court, and subsequently an appeal to the Federal Court which was dealt with by Jessup J. It was also the subject of an unsuccessful application for leave to appeal to the High Court.
The matters relating to the data breach and the impact of that data breach the Applicant have been considered by the Tribunal and the Courts. The 31 August 2016 letter correctly noted that the delegate had considered the data breach in the course of assessing the applicant’s claims for protection and the decision to reject that claim and the effect of the data breach have been considered by the Tribunal and Courts reviewing that decision.
In this matter, the Respondent contends that this Court does not have jurisdiction to undertake judicial review of the officer’s refusal to consider the Applicant’s request for an ITOA.
Submissions
The Respondent submits that refusal was not in relation to a migration decision made under the Migration Act 1958 (Cth) (‘Migration Act’). It is put that there is no procedural decision made by the Minister which is capable of review and therefore the Court does not have jurisdiction.
Both the Applicant and the Respondent have referred to the decision in the High Court of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29. In particular, I was referred to paragraphs [52]–[ 56 ]of that decision. The Applicant relies upon the passage in paragraph 56, however I do not believe that passage is of any assistance to him.
In this case there is no evidence before the Court that there has been any substantive decision made by the Minister, and there has been no personal procedural decision made by the Minister whether to process an ITOA request. That is contradistinction to the situation referred to in paragraph 56 of the High Court decision.[1] The letter makes plain that there has been no process undertaken by an officer of the Department in relation to an ITOA, and in those circumstances there is no migration decision such as would give this Court jurisdiction to deal with this matter.
[1] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29.
I am not persuaded that the decision to refuse the ITOA request was conduct preparatory to making a decision as to the Applicant’s removal under section 198(6) of the Act.
In relation to any claim that the Applicant has been denied procedural fairness, procedural fairness can only be implied as a condition of the exercise of a statutory power: Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 at [75]. There has been no exercise of statutory power in this matter.
In the application for leave to appeal to the High Court, Nettle J succinctly set out the limitations on the requirements of the Minister to consider the application for a Protection visa, and the reasoning applicable to a request for an ITOA:[2]
Furthermore, as was held in Plaintiff S10 of 2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at 654-655 paragraphs 50 and 51 in the joint judgment of Chief Justice French and Justice Kiefel; and at 668 paragraph 100 in the joint judgment of Justices Gummow, Hayne, Crennan and Bell, the Minister is under no duty to respond to a request for his or her consideration of the exercise of the power conferred by section 417, and it makes no difference at law that, on the basis of the ministerial instructions laid down in the guidelines, certain classes of requests are not to be submitted to the Minister for his or her consideration. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 [2003] HCA 1; (2003) 211 CLR 441 at 460-461 paragraphs 44-48; and 474 paragraphs 99-100 in the judgment of Justices Gaudron and Kirby. The work done by officers acting under the guidelines involves the acquisition of information and categorisation of requests or cases. It is an executive function incidental to the administration of the Act which stands outside the conventional statutory regime. Nothing about the character of the guideline processes, whether as an exercise of the executive power of the Commonwealth or otherwise, is sufficient in itself to attract a requirement to observe procedural fairness or to impose an obligation on the Minister to intervene.
[2] AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131 (3 June 2016)
In this case, where the Minister has not personally made a procedural decision of a personal substantive nature and there is no decision made by the officers of the Department – in particular, there is no ITOA process that had been undertaken by the officers of the Department to assist the Minister for his consideration. Section 476(2) of the Migration Act operates to preclude this Court from engaging in review in relation to the advice contained in the 31 August 2016 letter that the Minister would not consider the Applicant’s request for an IOTA.
The Applicant’s submissions were to the effect that the Minister had made a decision. I do not accept that there is an arguable claim that a migration decision has been made.
The Applicant has not raised an arguable case for the relief claimed in respective of the substantive application and I dismiss it in accordance with Rule 44.12 (1) of the Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 27 February 2017
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