AFH15 v Minister for Immigration & Border Protection
[2016] FCCA 99
•4 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFH15 v MINISTER FOR IMMIGRATION | [2016] FCCA 99 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – application for review of Tribunal decision made out of time – publication of personal information – whether an International Treaties Obligations Assessment (“ITOA”) process was commenced – dispensing powers of Minister – whether there was a “migration decision” – conduct preparatory to a decision – whether applicant denied procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5E, 48A, 48B, 189, 195A, 198(6), 417, 474, 476, 477 |
| AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734; (2015) 297 FLR 224 Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 90 ALJR 25 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 Plaintiff S10/2011 v Minister for Immigration & Citizenship [2012] HCA 31; (2012) 246 CLR 636 Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125 SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 WZARH v Minister for Immigration & Border Protection [2014] FCAFC 137; (2014) 230 FCR 130 |
| Applicant: | AFH15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 99 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 17 November 2015 |
| Delivered at: | Sydney and by videolink to Darwin and Perth |
| Delivered on: | 4 February 2016 |
REPRESENTATION
| The Applicant appeared in person by way of videolink |
| Counsel for the Respondent: | Mr R.J.S. French |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 99 of 2015
| AFH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia as the holder of a student visa on 16 September 2008. That visa expired on 13 March 2011. The applicant was taken into immigration detention on 3 September 2013 because he no longer held a valid visa and has been detained since then. On 1 October 2013 he applied for a protection visa but that application was refused by a delegate of the Minister. The applicant then applied to the Refugee Review Tribunal[1] for review of that decision. The Tribunal affirmed the delegate’s decision on 4 February 2015.
[1] Now the Administrative Appeals Tribunal.
In February 2014 the Department of Immigration published a report on its website which contained a link to some personal information of the applicant. The applicant was informed about this by letter dated 12 March 2014 and informed that the “department will assess any implications for you personally as part of its normal processes.”
In the meantime, the applicant applied to this Court for review of the Tribunal’s decision.
By letter dated 14 July 2014 the Department repeated to the applicant that any implications of the release of his personal information would be assessed as part of the “department’s normal processes”. The applicant was invited to provide information to the Department and informed that if, after 14 days, no response was received then it would be assumed that he had no information to provide regarding the unintentional data breach and that his current immigration circumstances would remain unchanged.
The applicant responded to this letter in a letter dated 17 July 2014. The letter referred to the “ITOA process” which was a reference to the process conducted by the Department in some cases known as the “International Treaty Obligations Assessment” process. That letter relevantly stated:
…
6.I further submit that the Privacy Commissioner is the only independent authority that can assess the impact of the risk of harm should I return to my home country. I have lodged a complaint to the Privacy Commissioner and my reference number is given above. This must be included in any further ITOA process.
7.I further request that the ITOA process be conducted according to the principles of natural justice which would include that if there were to be an adverse finding made in my case that I be notified of the reasoning behind the finding and be permitted to make a response which should be taken into account before and final decision is made.
…
On 22 September 2014 this Court made an order by consent for the issue of writs to quash the Tribunal’s decision dated 4 February 2014 and to direct the Tribunal to reconsider and determine the matter according to law.
The Tribunal, differently constituted, made a decision on 4 December 2014 again affirming the decision not to grant the applicant a protection visa. Amongst the matters considered by the Tribunal were the potential consequences of authorities or other persons in China having had access to the personal details of the applicant as a consequence of their being published on the Department’s website.
On 22 January 2015 the Department wrote to the applicant again concerning the data breach. The letter contained the following relevant statement:
…
On 27 November 2014, you attended a hearing by the RRT and made claims relating to the unintentional release of your personal information on the department’s website. On 5 December 2014 the RRT found that the chance of any harm stemming from the unintentional release of some of your personal information to be “both remote and insubstantial” and again affirm the department’s decision to refuse you a protection visa. As your claims in relation to the unintentional release of your personal information have now been assessed by the RRT, the Department will not be giving further consideration against Australia’s protection obligations to the concerns raised in your letter of 17 July 2014.
…
On 16 March 2015 the applicant commenced these proceedings. He later filed an amended application on 21 September 2015. The only respondent to the proceedings is the Minister, although the applicant appears to also seek, amongst other things, orders that the “decision of the tribunal or Minister be quashed” and that a writ of mandamus directed to the “tribunal or Minister, requiring them to determine the applicant’s application according to law”. In these circumstances it is difficult to know with any precision what “decision” is the subject of the proceedings. The difficulty is exacerbated by the fact that the orders sought and the grounds in the application are clearly pro forma and have been prepared with very little regard to the actual facts and circumstances of this case.
The matter came on for hearing on 3 November 2015 in Perth. At the hearing the applicant appeared unrepresented by videoconference from Darwin; however, as there are no accredited interpreters in the Mandarin language in Darwin, the interpreter was in the courtroom in Perth. It is a credit to the skill of the interpreter that this caused no apparent difficulties. The applicant handed up (by electronic means) what was described as a written submission. I will set out the content of those submissions later in these reasons. For present purposes it is sufficient to note that the applicant claimed that he was denied natural justice (by the Tribunal) on the basis that he had been told by the Department that any implication of the data breach would be assessed by it and that he was not given an unabridged version of the KPMG report which would have revealed who accessed his information.
It appeared to me at the time that this submission, in circumstances where the Department ultimately indicated that it would not make any assessment of the applicant’s circumstances, might in fact support an argument that the applicant had been denied procedural fairness. I had in mind the possible application of what was known as “legitimate expectation” which, in spite of a number of decisions to the contrary, had been one of the bases for the joint judgment (Flick and Gleeson JJ) in WZARH v Minister for Immigration & Border Protection [2014] FCAFC 137; (2014) 230 FCR 130 (“WZARH”). However, as the issue had not previously been raised and the High Court was due to hand down its decision on the appeal from that judgment on the following day, I allowed the parties further time to file written submissions on this issue. Only the Minister filed further submissions.
For the following reasons, the applicant was not owed any obligation of procedural fairness at any relevant time and the application must be dismissed.
Consideration
Jurisdiction of the Court
It is the first duty of the Court to determine its jurisdiction. The following outline of the Court’s jurisdiction relevant to these proceedings is taken from my judgment in AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734; (2015) 297 FLR 224 (“AKR15”).
The Court’s jurisdiction in respect of matters related to the Migration Act 1958 (Cth) is provided for in s.476 of the Act. That section relevantly provides:
476 Jurisdiction of the Federal Circuit Court
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. …
(Emphasis added)
This means that if there is no relevant migration decision the Court has no jurisdiction.
The term “migration decision” is defined in s.5 of the Act as follows:
migration decision means:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non‑privative clause decision.
…
non‑privative clause decision has the meaning given by subsection 474(6).
…
privative clause decision has the meaning given by subsection 474(2).
…
purported privative clause decision has the meaning given by section 5E.
Section 474 of the Act relevantly provides:
474 Decisions under Act are final
(1) A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non‑citizens from disposing of property 5 section 223 Valuables of detained non‑citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 section 353A Directions by Principal Member 18 section 354 Constitution of Migration Review Tribunal 19 section 355 Reconstitution of Migration Review Tribunal 20 section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 section 356 Exercise of powers of Migration Review Tribunal 22 section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 section 421 Constitution of Refugee Review Tribunal 26 section 422 Reconstitution of Refugee Review Tribunal 27 section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers 31 regulation 5.35 Medical treatment of persons in detention (5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
…
(Emphasis added)
Regulation 5.35AA of the Migration Regulations 1994 (Cth) provides:
5.35AA Decisions that are not privative clause decisions
For subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the following table is not a privative clause decision.
Item Provision Subject matter of provision 1 section 252AA Power to conduct a screening procedure 2 section 252A Power to conduct a strip search 3 section 252B Rules for conducting a strip search 4 section 252C Possession and retention of certain things obtained during a screening procedure or strip search 5 section 252D Authorised officer may apply for a thing to be retained for a further period 6 section 252E Magistrate may order that thing be retained 7 section 252G Powers concerning entry to a detention centre 8 Division 13A of Part 2 Automatic forfeiture of things used in certain offences
Section 5E of the Act provides:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
In short, a migration decision is, for present purposes a decision, including conduct preparatory to the making of a decision, that is, or purports to be made under the Act.
In the present proceedings there are several possible “decisions”: first, the Tribunal’s decision to affirm the decision not to grant the applicant a visa; secondly, conduct preparatory to a decision by the Minister whether or not to exercise one of his personal powers under the Act such as those under ss.48B, 195A and 417 of the Act; and thirdly, conduct preparatory to the removal of the applicant from Australia pursuant to s.198(6) of the Act. I will consider each in turn.
Decision of the Tribunal
There is no question that the Court has jurisdiction under s.476 of the Act in respect of decisions of the Tribunal. They are either privative clause decisions or purported privative clause decisions. However, an application for relief under s.476 of the Act must be made within 35 days of the date of the decision: s.477(1). Here, the date of the decision was 4 December 2014 and the application to this Court was not made until 21 September 2015.
The Court has power to extend the period within which an application may be made: s.477(2). However, there are two conditions that must be satisfied in order for that power to arise:
a)an application for an order to extend the time must have been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court must be satisfied that it is necessary in the interests of the administration of justice to make the order.
The first of these has not been satisfied and so the Court has no power to extend the time for making the application. In any event, even if that requirement had been met, I am not satisfied that it would be necessary in the interests of justice to make an order extending time.
Although the matters relevant to the question are not confined by statute, there are ordinarily 3 matters that the Court takes into account in deciding whether it is necessary in the interests of justice to extend the time for making an application for judicial review: the extent of and reasons for delay; the prospects of success; and any prejudice to the other parties. There is no relevant prejudice in this case, however, the applicant has not explained the considerable delay in bringing the proceedings and there are, in my view, insufficient prospects of success.
The sole ground of review relied on by the applicant in respect of the Tribunal is set out in the written submissions handed up at the hearing. Those submissions were as follows:
1. The Tribunal denied me natural justice and procedural fairness as required by s422B of the Act and thereby failed to give me an opportunity for a fair hearing as required by s425 of the Act.
Particulars
a)I was held in immigration detention on 31 January 2014;
b)My name, personal details and reason for detention was disclosed on the Department’s website from 10 to 19 February 2014;
c)The Department told me in both the 12 March 2014 and 27 June 2014 letters that it would assess any implication of the data breach for me personally. This implied the scope of the Department’s obligation to afford me procedural fairness;
d)The Tribunal did not disclose any information in relation to the data breach to me and the only information the Tribunal had was supplied by my representative;
e)The unabridged version of the KPMG report would reveal who has accessed my information and failure to disclose this information to me for comment is unfair and unjust and in violation of natural justice as required by s422B(3) and failure to provide a fair hearing as required by s425 of the Act; and
f)I rely on the judgment of the Full Federal Court in the matter of SZSSJ v Minister for Immigration (2015) FCAFC 125 in that the Department denied procedural fairness in relation to the data breach to people in the International Treaties Obligations Assessment process which is a non-statutory process.
These paragraphs reveal some confusion between the Department and the Tribunal. The applicant’s assertion that the Tribunal was in possession of any information about the data breach other than that given to it by his adviser is consistent with the evidence before me and I accept it. It may well be that the Department had much more information about the data breach in its possession. I have no evidence before me about that. However, the Tribunal’s obligation to disclose information to the applicant does not extend to material that it does not have. Its obligation in respect of adverse information is contained in s.424A of the Act. There is nothing in that provision that requires the Tribunal (or, indeed, the Department) to provide the applicant with information not available to the Tribunal. It would be impossible, for instance, for the Tribunal to “consider” information that it does not have to be “the reason or part of the reason for the decision”.
For that reason, I consider that there are no reasonable prospects of success in any judicial review of the Tribunal’s decision and would, for that additional reason, refuse to extend the time to bring this application.
Since the application is out of time the Court has no valid application before it and cannot determine any argument about the Tribunal’s decision.
Conduct preparatory to a decision by the Minister whether or not to exercise one of his personal powers under the Act such as those under ss.48B, 195A and 417 of the Act
The Minister’s powers under ss.48B, 195A and 417 of the Act have been described as “dispensing powers” that might be used to provide a measure of relaxation of the operation of the visa system: Plaintiff S10/2011 v Minister for Immigration & Citizenship [2012] HCA 31; (2012) 246 CLR 636 (“Plaintiff S10/2011”).
Under s.48B the Minister has the power to determine that s.48A does not apply to prevent a person applying for a protection visa. Section 48A applies, relevantly, to a non-citizen, like the applicant, who has made an application for a protection visa where the grant of the visa has been refused.
Section 195A gives the Minister the power to grant a visa to a person who is detained under s.189, that is, who has been detained because an officer reasonably suspects that he or she is a non-citizen who does not have a visa.
Section 417 gives the Minister the power to substitute for a decision made by the Tribunal a decision that is more favourable to the applicant.
The question of whether these provisions (and another presently irrelevant provision) import the requirement to afford procedural fairness was considered by the High Court in Plaintiff S10/2011. The plurality (Gummow, Hayne, Crennan and Bell JJ) identified the following features of those provisions at [99]:
(i)The powers they confer may be exercised by the Minister personally and not otherwise; that is to say, unlike many other decisions respecting the issue of visas, the power may not be delegated by the Minister under s 496 of the Act.
(ii)By the tabling requirements the Minister is rendered accountable in an immediate sense to each House of the Parliament for exercises of the dispensing powers.
(iii)The exercise of the powers is not preconditioned by the making of any request by any other person, and, if a request be made there is no requirement to consider it.
(iv)The exercise of the powers is preconditioned by (a) the Minister having decided to consider whether to exercise the power in question, and (b) the Minister thinking that: “It is in the public interest” to exercise it; but the Minister is not obliged to take either step.
(v)The expression “in the public interest” can have no fixed and precise content and involves a value judgment often to be made by reference to undefined matters. Here the legislative supposition upon which the dispensing powers are conferred is that there will be cases in which the requirements which otherwise control the administration of the Act are not to dictate a particular outcome.
(vi)Further, as to (iv), while the personal circumstances of an individual may be taken into account, they are not a mandatory relevant consideration.
(vii)Rather, as the Commonwealth Solicitor‑General submitted, individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas.
(viii)The premise for the operation of s 48B is that there has been the refusal of a protection visa (with attendant RRT engagement) which will be final unless the Minister lifts the bar upon further applications which is lowered by s 48A; the premise for the engagement of either s 351 or s 417 is that on a merits review the relevant tribunal has determined that there is no right to the visa sought; leaving aside the categories of offshore entry persons to whom sub-ss (3) and (4) of s 189 apply, the premise for the engagement of s 195A in present cases was that the person concerned either had unsuccessfully applied for a visa or, at least, while in detention, could have done so.
(ix) Against that background, it is not surprising that the focus of the four dispensation sections is upon the Minister's view of the public interest rather than upon the satisfaction of conditions for the issue of visas.
(Citations omitted)
Their Honours concluded:
[100]The cumulative significance of the matters referred to above in (i)‑(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O'Shea, namely where a senior official standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.
(Citations omitted)
The “Offshore Processing Case” referred to in this passage was Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (“M61”). In that case, the High Court found, on the basis of an announcement by the Minister, that the Minister had decided that consideration would be given to exercising the powers under ss.46A and 195A in every case in which an offshore entry person claimed that Australia owed that person protection obligations. That is, the first precondition referred to in [34](iv) had been met. The Court then said at 353 [77]:
… once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.
The apparent tension between Plaintiff S10/2010 and M61 was explained by the Full Court of the Federal Court in SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125 (“SZSSJ”) at [73] where, after referring to [100] in Plaintiff S10/2010, the Court said:
We do not, by any means, think their Honours were overruling M61; they were merely highlighting the same factual matter to which French CJ and Kiefel J had referred. Heydon J explained the same point at 673-674 [120]-[121]. Indeed, as indicated in the last sentence of [100] quoted above, their Honours applied and distinguished M61.
SZSSJ, like the present case, involved the disclosure of personal information about a non-citizen in detention. There followed, as here, certain correspondence from the Department in relation to that disclosure. However, there are two significant distinctions between this case and SZSSJ. First, unlike this case, the Tribunal in SZSSJ had made a decision in respect of the appellant’s application for review before the first letter from the Department on 12 March 2014; and secondly, in SZSSJ the Department wrote to the applicant informing him that it had commenced an ITOA on 30 September 2014 in order to assess whether the circumstances of the appellant’s case engaged Australia’s non-refoulement obligations. No such letter was sent to the applicant in this case.
The Full Court found, at [87], that the Minister had “arrived at the second stage of the process of exercising his dispensing powers”. That is, he was considering whether it was in the public interest to exercise one of his powers (see [34](iv) above). The Court concluded that this meant that the case before it fell within the scope of M61 rather than S10. The essential reason for this conclusion was that an ITOA process had been instigated and, because there were some 9,258 people who had been affected by the data breach, the Minister must have been aware of that process: [80]. The Court found that, on this basis, the unavoidable inference was that the Minister had already decided to consider theses 9,258 matters under his dispensing powers: [82].
Those findings of fact do not bind me. I am bound to make findings on the basis of the evidence before me rather than on the basis of what was before the Full Court of the Federal Court.
In this case there was no direct evidence about any ITOA process or, indeed, the number of people whose personal details had been disclosed or the likely expense involved in dealing with the claims arising as a result. As I have said, unlike in SZSSJ, there was no letter to the applicant indicating that an ITOA process had been commenced. There was no letter indicating that one would be commenced. There were only the vague references in the letters to the Department’s “normal processes”.
I infer from those facts that no ITOA process was ever commenced in respect of the applicant. As a consequence, I cannot and do not infer that the Minister had decided, in respect of this applicant, that he would consider the exercise of one or other of his dispensing powers. That means that, unlike SZSSJ, this case is governed by the outcome in Plaintiff S10/2010. In other words, there was no obligation on the Minister or his Department to afford the applicant procedural fairness in connection with the data breach or any associated claim.
That conclusion is not affected by any notion of legitimate expectation. In WZARH Flick and Gleeson JJ said, at 138 [18], that although the notion of "legitimate expectation" as the criterion for an entitlement to procedural fairness from an administrative decision‑maker has been criticised, it remains a useful tool when considering “what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power”. On appeal, the High Court emphasised that recourse to the concept of “legitimate expectations” was unhelpful and unnecessary: Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 90 ALJR 25. The plurality (Kiefel, Bell and Keane JJ) said, at [30]:
… The “legitimate expectation” of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness.
Their Honours went on to quote the following passage from the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [25]:
… There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision; but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances.
In both WZARH and Lam it was accepted that there was an obligation to afford procedural fairness. The only issue was whether that obligation had been fulfilled. In the former case it was held that there was unfairness to the extent that the appellant had not been given notice that the person who had conducted the hearing would not be making the decision. In the latter case it was held that there was no unfairness simply because a representation had not been fulfilled. In both cases the real issue was whether the procedure adopted by the decision-maker was, in all the circumstances, fair.
For the reasons I have already given, there was no obligation on the Minister or the Department to afford procedural fairness to the applicant. In those circumstances, the mere representation that a certain procedure would be adopted did not, of itself, give rise to the obligation to afford procedural fairness and also to fulfil the representation.
In any event, there was no “migration decision” with any connection to the potential exercise of the Minister’s dispensing powers. Thus, this Court has no jurisdiction in respect of action taken that could have some relevance to that power.
Conduct preparatory to the removal of the applicant from Australia pursuant to s.198(6) of the Act
After the Tribunal had made its decision, the Department wrote to the applicant on 22 January 2015 saying that it would not consider his claims to be owed any protection obligations as a result of the data breach. The Minister accepts that this was a migration decision because it was conduct preparatory to a decision required to be made under the Act, namely, whether or not the applicant is to be removed from Australia under s.198(6) of the Act: see SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 at [40].
That means that the conduct of the Department, as evidenced in the letter of 22 January 2015, constituted a “migration decision” within the meaning of the Act and that this Court has jurisdiction in relation to it.
I propose, then, to deal with the application as though the “decision” in question was conduct preparatory to the removal of the applicant from Australia. Although the applicant has not framed the application in this way, the Minister is on notice of it and has had the opportunity to address the issues that arise.
The first issue that arises is whether there was, or is likely to be, a denial of procedural fairness. The second issue, or issues, are those that appear as the grounds of the application.
The issue of procedural fairness can be dealt with briefly. The only unfairness said to have arisen was that the Department did not give the applicant a copy of the final KPMG report in respect of the data breach. The information in that report could only be relevant to the exercise of one of the Minister’s dispensing powers. For the reasons I have given, there was no obligation to afford procedural fairness in that respect and so this ground must fail.
The following “grounds” are set out in the amended application:
1.The applicant is a citizen of China.
2.The applicant claimed that Australia owed protection obligations in respect of him.
3.The process by which the claims of the applicant that Australia owed protection obligations in respect of him/her was completed.
4.The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5.The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6.In or about 11 February 2014, the First and or Second Respondent by their servants or agents released the applicant’s personal information by publishing it on the world wide web.
7.The applicant’s personal information so released included his name, date of birth, nationality, gender, details about the applicant’s detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8.The release of the applicant’s personal information by the First and or Second Respondents, their 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 and in the alternative, the release of the personal identifier information, or the 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.
9.The release of the applicant’s personal information has caused the applicant to have a well founded fear that his removal from Australia and return to [country of origin] will involve a breach of Australia’s non-refoulement obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10.On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
3.The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
11.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.”
12.The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
13.The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal’s characteristics and circumstances pursuant to s61 of the Constitutional is conditioned by an obligation to accord procedural fairness to the person.
14.On 25 July 2014 the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia’s non-refoulement obligations. This process was instigated as the applicant’s previous ITOA decision was affected by the Full Federal Court of Australia’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
15.On [date of ITOA decision] the delegate made a finding that non-refoulement obligations are not engaged in the applicant’s case.
16.In the ITOA assessment the delegate denied the applicant procedural fairness.
Particulars
The delegate accepted that he was in detention on 31 January 2014 and his personal details may have been unintentionally disclosed online;
The delegate did not disclose any of the information held by the Department to the applicant in relation to the data breach for comment;
The delegate as the employee of the Department that disclosed the applicant’s name and personal details on the internet did not bring an impartial mind to the decision-making process and is in a conflict of interest; and
The ITOA process is not an appropriate and fair process to determining the applicant’s data breach claim.
17.The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary’s letter dated 12 march 2014 and stated as follows:
“It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second last paragraph of the Department’s letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
It is not clear to me whether the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process is a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.”
18.There is utility for the applicant 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 [boat arrivals with no process – s46A or s195A] [RRT decisions – s48B or s417] arising from the disclosure of the applicant’s personal information.
19.There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 or s198AD of the Act irrespective of whether an assessment of Australia’s non-refoulement obligations in relation to the February 2014 disclosure of the applicant’s personal information has been carried out in a way which the applicant is accorded procedural fairness.
(Emphasis and errors in the original)
With the exception of the country reference contained in para.1, these are precisely the same as the “grounds” relied on in AKR15. I repeat what I said there about grounds 1 to 13. As to the remaining grounds, they are based on the existence of an ITOA process. Here there was no such process and the grounds must fail for that reason.
Conclusion
The applicant has failed to establish any basis on which constitutional writs might issue. The application is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 4 February 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Limitation Periods
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Statutory Construction
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Standing
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Procedural Fairness
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