AKR15 v Minister for Immigration & Anor
[2015] FCCA 1734
•1 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKR15 v MINISTER FOR IMMIGRATION & ORS | [2015] FCCA 1734 |
| Catchwords: MIGRATION – Protection visa – publication of personal information – International Treaties Obligations Assessment (“ITOA”) – whether the ITOA was a “migration decision” within the meaning of the Migration Act 1958 – whether the Federal Circuit Court has jurisdiction in respect of the ITOA decision – Department was engaged in conduct that was preparatory of either a decision to remove the bar to a further visa application or to remove the applicant from Australia – jurisdiction of the Court raised – whether the applicant was denied procedural fairness or the ITOA decision was affected by bias – no jurisdictional error – application dismissed. |
| Legislation: Constitution, ss.61, 75(v) |
| Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143 |
| Applicant: | AKR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| Third Respondent: | KENT CRAWFORD, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 979 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 10 June 2015 |
| Date of Last Submission: | 10 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr S. Lloyd SC and Ms J. Davidson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 979 of 2015
| AKR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| KENT CRAWFORD, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
On 10 February 2014 a monthly report entitled “Immigration Detention and Community Statistics Report” was published on a website maintained by the Department of Immigration and Border Protection (“Department”). That report contained a link to some personal information of individuals who were in immigration detention facilities as at 31 January 2014. There is no suggestion that that publication was deliberate.
Following the publication, the Department undertook an assessment of the possible effect of the publication on Australia’s protection obligations under various international treaties in respect of the individuals concerned. That assessment was called an “International Treaties Obligations Assessment” (“ITOA”). The applicant was amongst those whose personal information was published and in respect of whom there was an ITOA.
The applicant, like many of the others involved, seeks declaratory and injunctive relief based on the publication and the ITOA.
Both the relief sought and the grounds put forward as the basis for that relief bear the hallmarks of a template prepared by somebody with some familiarity with the Migration Act 1958 (Cth) (“Act”). However, it also appears that little, if any, attention was given in the preparation of the application to the individual circumstances of the applicant and to the limits of this Court’s jurisdiction. The limits relevant to these proceedings are that an applicant for relief must establish not only that there is a “migration decision” but also that that decision is affected by jurisdictional error. In these proceedings, while I am satisfied that the Court has jurisdiction to determine the matter, the applicant has established no basis for the relief sought and the application will be dismissed.
In order to understand the reasons for these conclusions it is necessary first to have regard to a broad outline of the relevant facts.
Background facts
The applicant is a citizen of Vietnam who was born in Cambodia in 1986. His father, who was a member of the Khmer Rouge, died and the applicant went to Vietnam with his mother, his grandmother and uncle to live. When his mother later travelled to Australia she left the applicant to be brought up by his grandmother. When he was 11 his mother sponsored him to come to Australia and he arrived in Australia as the holder of a subclass 101 (Child) visa.
On 19 November 2007 the applicant was granted a subclass 155 (Resident Return) permanent visa. However, after committing a number of serious criminal offences, a delegate of the Minister cancelled his visa under s.501 of the Act on 28 March 2012. That decision was affirmed on review by the Administrative Appeals Tribunal (“AAT”) in June 2012[1] and the Federal Court dismissed an application for an extension of time within which to file an application for review of that decision.[2]
[1] [2012] AATA 384
[2] [2014] FCA 533
On 14 December 2012 the applicant was detained under s.189 of the Act and on 16 September 2013 he lodged an application for a protection visa. In support of that application the applicant claimed that he would be targeted by the Vietnamese authorities because of his ethnicity, his religion and his criminal background in Australia. In spite of the fact that the decisions of both the AAT and the Federal Court were available on the Internet and included details of his name, the applicant did not claim to fear harm for that reason.
On 17 October 2013 a delegate of the first respondent decided to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal (“Tribunal”) for review of that decision. On 13 November 2013 the Tribunal affirmed the decision of the delegate. On 26 November 2013 the applicant’s mother applied to the first respondent (“Minister”) for the exercise of his discretion under s.417 of the Act. On 8 February 2014 the Assistant Minister indicated that she did not propose to consider the exercise of the power under s.417 of the Act.
As already noted, on 14 February 2014 a report was released on the Department’s website which enabled access to some personal information about people who were in immigration detention on 31 January 2014 including the applicant. The information included the applicant’s age, sex, date of birth, citizenship, the fact that he was in detention and the reason for which he was in detention, namely that his visa had been cancelled under s.501 of the Act.
By letter dated 12 March 2014 the Secretary of the Department wrote to the applicant in respect of the publication of his personal information. That letter relevantly stated:
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. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.
…
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.
On 5 April 2014, at the request of the Department, the firm KPMG produced a report regarding the publication entitled “Management Initiated Review Privacy Breach – Data Management, Department of Immigration and Border Protection”. The firm also produced an abridged version of the report dated 20 May 2014.
By letter dated 14 July 2014 an officer of the Department wrote to the applicant inviting him to provide information regarding the unauthorised access to his personal information. After referring to the letter dated 12 March 2014, the letter relevantly stated:
Currently you do not hold a permanent visa to remain in Australia and may be liable for removal. If you have concerns regarding the impact of the data breach in your case, then you are invited to put those concerns to the Department in writing.
Any concerns you have will be considered in addition to any other information you have already provided to the Department. If you have any concerns about the impact of the data breach on your ability to return to your home country or country of usual residence, you should give specific reasons as to why you cannot return.
In response to that letter the applicant wrote to the Department stating, amongst other things:
5.There is no way of knowing from whom I could face a real risk of harm as it may go well beyond the authorities in my home country, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates. In addition the Human Resources Sections of companies and public service departments would also have access to the information would undermine my ability to find employment. Foreign governments may use this information as a reason not to grant visas for me travel;
…
7.I note that you have only given me 14 days to respond to your letter. I believe this time limit is unreasonable as after the breach to my privacy occurred there are no longer any IAAAS agents or Legal Aid lawyers available to assist me to prepare a response and he has a very limited written English Language Ability. I am only available to assist to write this letter.
The terms of the letter suggest that it was written by someone on behalf of the applicant.
On 17 July 2014 a solicitor engaged by the applicant wrote to the Department by email asking for a copy of the “full and exact content” of the information about the applicant on the Department’s website and seeking a further seven days to provide a response. The extension of time was granted and the relevant information was provided to the applicant by letter dated 31 July 2014.
By letter dated 16 January 2015 an officer of the Department wrote to the applicant about the ITOA process mentioned above. In her letter, the officer wrote:
This ITOA will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.
This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.
You will receive procedural fairness during the ITOA process. In particular, this means that the departmental officer who assesses your claims for protection will ask you to comment on any adverse information, which is credible, relevant and significant to the decision. You will be given a reasonable opportunity to respond to that information before the ITOA is finalised.
On 6 February 2015 the same officer of the Department wrote to the applicant providing him with a copy of country information relevant to the ITOA and inviting him to comment upon it. The letter also stated:
… A decision that you engage non-refoulement obligations will enable the department to progress your immigration status. A decision that you do not engage non-refoulement obligations will enable the department to progress your removal arrangements.
In an attachment to that letter under the heading “Procedural Fairness” there appeared the following paragraph:
When assessing protection claims in relation to the privacy data breach, case officers are instructed to assume that the authorities in the claimant’s receiving country may have accessed personal information released on the department’s website. Case officers will refer to the claimant’s personal circumstances and country information to determine with the privacy data breach will affect the individual if he or she is return to his or her country of origin.
The ITOA process in respect of the applicant was completed on 18 March 2015 with a finding that Australia’s non-refoulement obligations were not engaged in his case. A statement of the reasons for that assessment was sent to the applicant on the same day. In those reasons, the assessing officer wrote, consistently with the note set out in the previous paragraph, that she accepted that the claimant’s information was disclosed on the departmental website and that it was possible that state and non-state agents in Vietnam may have viewed the information. She also considered that it was not far-fetched that anyone who had viewed the disclosed information may draw the inference that the claimant had attempted or intends to seek asylum in Australia.
As affirmed in an affidavit by the third respondent, Mr Crawford, on 27 May 2015, in carrying out the ITOA the officer had access to hard copy and electronic departmental files held in relation to the applicant. However she did not have access to the full KPMG report but only to the abridged version of that report dated 20 May 2014 which can, in any event, be accessed on the Department’s website.
The applicant commenced these proceedings by application filed on 9 April 2015.
The relief sought
The applicant seeks an injunction together with a number of declarations. The precise orders that he seeks are (without correction):
·A declaration that the recommendation of the Third Respondent was not made in accordance with law, by reason of the ground/s of this application.
·An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 or s198AD of the Act other than according to law and consistently with the declarations in orders 2 – 4.
·A declaration that it is not reasonably practicable for the First or Second Respondents, their officers or agents, to remove the applicant from Australia within the meaning of s198 or s198AD of the Migration Act unless and until consideration has been given by the Minister of Australia’s non-refoulement obligations (under the Refugee Convention; the Convention Against Torture; and the International Convent on Civil and Political Rights) arising from the release of the applicant’s personal information in or about February 2014 in respect of the applicant, according to law.
·A declaration that the representation that an assessment of any implications for the applicant personally by the Second Respondent as part of the Department’s normal processes made on 12 March 2014 (“the 12 March 2014 representation”) involves a representation that the power vested in the Second Responded by s61 of the Constitution will be used in favour of the applicant.
·Costs
Grounds of the application
The following “grounds” are set out in the application:
1.The applicant is a citizen of Vietnam.
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”).
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)
Contentions
The applicant, who appeared unrepresented, did not file any written submissions in support of his application and was unable at the hearing to explain the basis upon which the application was brought. He told the Court that the application had been prepared by a friend. Given the nature of the document and the similarity of its contents with other applications before the Court I very much doubt that what the applicant said was true. It is more likely that this application was adapted by someone from the arguments in other proceedings and provided to the applicant for a fee. However, as the Minister makes no objection to, or any application in respect of the origin of the application, that is not a matter that I need to determine.
The Minister submitted that the ITOA was not a “migration decision” within the meaning of the Act and so this Court did not have jurisdiction in respect of it. He further argued that, to the extent that an injunction was sought in respect of s.198AD of the Act it should be refused on the basis that that section only relates to “unauthorised maritime arrivals” and, as the applicant had a visa that permitted him to enter Australia, the section does not apply to him. Thirdly, in so far as the injunctive and declaratory relief related to s.198 of the Act, they were unarguable in light of s.197C of the Act. Finally, the representation relied upon in the fourth prayer for relief was not made out on the facts.
In order to properly understand the issues in these proceedings it is necessary to have regard to the relevant statutory provisions.
Jurisdiction
Relevant legislation
First, it is important to understand the basis and extent of the Court’s jurisdiction. That jurisdiction in respect of matters related to the Act 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 (“Regulations”) 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.
One of the issues, then, is whether the ITOA was:
a)conduct preparatory to the making of a decision under the Act; and
b)made “under the Act”.
The first of those questions requires consideration of the possible future decision and the connection, if any, between it and the ITOA.
With that issue in mind, it is necessary to have regard to the provisions that the applicant says provide the necessary connection between the ITOA and the Act.
Consideration
The first question in the application is whether the Court has jurisdiction to determine the matter. As the statutory provisions set out above reveal, that question comes down to whether or not there is a relevant “decision under the Act”. That decision need not already have been made and can be conduct preparatory of a decision: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207.
The application is essentially aimed at preventing the removal of the applicant pending a lawful determination of Australia’s non-refoulement obligations under a number of international treaties. Thus, as I have mentioned, the applicant must rely on the ITOA process to provide the connection to the Act that is essential to the jurisdiction of the Court.
A similar question was considered by the Full Court of the Federal Court in SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143. In that case the Full Court allowed an appeal from a decision of this Court dismissing an application for want of jurisdiction. Like the applicant here, the applicant in that case was in detention on 31 January 2014 and was amongst those whose personal information was inadvertently disclosed by the Department in February 2014. Just as in this matter, the applicant there received a letter dated 12 March 2014, the terms of which are set out in the judgment of the Full Court at [6]. It was relevantly identical to the letter received by the applicant in these proceedings.
That applicant also received a letter concerning the ITOA process. The learned primary judge found that the applicant had not identified a migration decision which enlivened the Court’s jurisdiction but had only “referred to decisions which he speculated, inferred or suggested had been made but pointed to no actual decision, or future decision which was in prospect, which could be characterised as a migration decision”: SZSSJ at [25].
The critical passage in the judgment of the Full Court is:
[40]In our view, the Department has, since at least 12 March 2014, been engaged in conduct that is preparatory to a decision which is 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. Having regard to the extended definition of “decision” in s 474(3)(h) (which defines a decision as including a reference to “conduct preparatory to the making of a decision”), and the definition in s 474(2) of a “privative clause decision”, the FCCA had jurisdiction in respect of the applicant’s proceedings. The Department’s current conduct in respect of the ITOA process and its earlier conduct since at least 12 March 2014 (if not earlier from the time the applicant was taken into detention) are properly to be viewed as conduct which is preparatory to the making of the decision which is required under s 198(6). That is evident from the Department’s correspondence with the applicant and from the applicant’s evidence of what he was told by his new Case Manager in late September 2014. Even though the Minister’s statutory powers of intervention are not expressed in a way which requires him to make a decision under those provisions, any decision which is made under those provisions must necessarily be relevant to the decision which ultimately has to be made under s 198(6).
The Minister argued that that decision is distinguishable from the present case on its facts. I disagree. The facts that were critical to the Full Court’s decision were: first, the letter of 12 March 2014 and, in particular the statement in it that the Department “will assess any implications for you personally as part of its normal processes” (see SZSSJ at [7]); secondly, a letter from the Department in response to letters from the applicant that his letters would “also be placed on (the applicant’s) file for consideration” and that the Department “will assess any implications for (the applicant) personally as part of its normal processes”; thirdly, a letter dated 1 October 2014 concerning the ITOA process (see SZSSJ at [13]); and fourthly, the fact that the applicant’s case manager had asked him whether he was willing to leave Australia voluntarily and told him that once his court case was finished the Minister would be making a decision regarding the matters raised in the Department’s letter dated 1 October 2014 (see SZSSJ at [17]).
With the exception of the fourth fact referred to above, the facts in this case are relevantly identical to those in SZSSJ. The fourth matter, however, was consistent with what the applicant in this case was told in a letter to him dated 6 February 2015. Of particular note in that letter is the following statement:
… A decision that you engage non-refoulement obligations will enable the department to progress your immigration status. A decision that you do not engage non-refoulement obligations will enable the department to progress your removal arrangements.
(Emphasis added)
In the context of the previous correspondence, the statement that the outcome of the ITOA would “enable the Department” to progress either the applicant’s immigration status or his removal arrangements could only sensibly mean that the outcome was to be taken into account either in connection with a decision whether to allow the applicant to make a further application for a protection visa (if there was a positive outcome) or a decision to remove the applicant under s.198(6) (in the event of a negative outcome).
In light of those matters, and in spite of the differences between the facts in this case and those in Plaintiff M61, I am satisfied that, at least from 12 March 2014 the Department was engaged in conduct that was preparatory of either a decision to remove the bar to a further visa application under s.48B or to remove the applicant from Australia under s.198(6).
The Minister also relied upon the decision of Judge Street in SZTZI v Minister for Immigration & Border Protection [2015] FCCA 1271 (“SZTZI”) and submitted that I was bound to follow that decision unless I considered that it was clearly wrong. His Honour said in that case at [6]:
Picking up what was said by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at [580] – [581] (sic), it is clear that the ITOA report is not a decision under the Migration Act and is not a report that has any legal effect under the Migration Act, and it is not a report that of itself can found jurisdiction under s476.
The passage in Ainsworth referred to by Judge Street was:
The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. But the Commission’s report is not in that category. The report may bear upon the appellants’ prospects of obtaining licences under the Gaming Machine Act 1991 (Q) for that Act, in s. 3.3(1)(b)(ii) and (iii), makes reputation a matter to be taken into account in determining whether a licence should be granted. However, like the report considered in Reg. v Collins; Ex parte A.C.T.U.-Solo Enterprises Pty Ltd ((1976) 50 ALJR 471; 8 ALR 691), the report does not “legally affect … rights”, for it may be that the appellants will be granted such licence or licences under the Gaming Machine Act 1991 as they request “even … in direct opposition to any recommendations [made] in it” (ibid at p 475; p 699) by the Commission. There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants.
(Emphasis added)
It is not clear to me whether, or how, Judge Street dealt with the emphasised part of that passage. That part of the quoted passage supports the conclusion of the Full Court in SZSSJ. His Honour, however, did not refer to that decision. It may well be that neither of the parties raised it before him.
It may be noted that his Honour went on to deal with an argument that the ITOA operated “as a precondition to a step in a process capable of altering the rights of the applicant”: see [6] – [9]. However, in my view, that does not directly address the question of whether the ITOA was preparatory of, rather than a precondition to, a decision to remove the applicant from Australia under s.198(6).
In spite of my doubts about the correctness of the decision in SZTZI, it is not necessary for me to consider whether it is clearly wrong. That is because the facts of that case may have been different to the facts before me. They are not set out in the judgment and it would be speculation on my part to proceed on the basis that the applicant in that case received the same correspondence from the Department as the applicant in these proceedings.
The Minister argued that, even if a connection with a decision under s.198 is able to be drawn on the application, any attempt to obtain injunctive relief against removal on the grounds connected to the ITOA would be so unarguable that the claim for it may properly be regarded as colourable by reason of s.197C. The enactment of that section, it was argued, means that even if the applicant could establish that the ITOA was not undertaken according to law, that would have no effect on the duty to remove him from Australia under s.198 and injunctive relief would not be available.
A similar argument concerning the effect of s.197C was, as I have mentioned, upheld by Judge Street in SZTZI. In SZSSJ v Minister for Immigration & Border Protection (No.2) [2015] FCCA 1148 Judge Cameron found that an injunction in terms similar to that sought in these proceedings was not available in light of s.197C of the Act. It may be noted that, as s.197C only came into operation on 16 December 2014, it was not considered by the Full Court in SZSSJ.
For the purposes of determining whether the Court has jurisdiction it is not necessary for me to decide whether or not s.197C has the effect argued for by the Minister. The question is at a much lower level, namely, whether the “matter” is arguably one which might give rise to the grant of injunction: R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26 per Gibbs J. If it is not, then the Court has no jurisdiction and there is no power to grant any relief, whether that be by way of declaration (as to which, see s.16 of the Federal Circuit Court of Australia Act 1999) or otherwise. It does not matter, for that limited purpose whether or not the Court ultimately decides to grant an injunction. Plaintiff M61 was a case where none of the remedies in s.75(v) were ultimately available and yet the High Court gave relief by way of declaration: see CLR 319 at 358-360 [99]-[104]. In light of s.476 of the Act, the same possibility may be open in this Court.
Section 197C was inserted into the Act by item 2 of pt.1 of sch.5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The section applies in relation to the removal of an unlawful non-citizen on or after 16 December 2014.
A hint as to the purpose of that insertion is given by the heading to sch.5: “Clarifying Australia’s international law obligations”. The relevant parts of the Explanatory Memorandum that accompanied the Bill expanded on this in some detail: see [1128] – [1146]. Of particular note are the following paragraphs:
1133.In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia‘s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of a presumed legislative intention for the Migration Act as a whole to facilitate Australia‘s compliance with its obligations under the Refugees Convention.
1136.Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia‘s international obligations (for example, the Full Court of the Federal Court decision in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131). This was because it was understood that Australia‘s international obligations had already been considered during separate processes prior to removal, for example when considering the persons application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137.In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
The reference to the consideration by the Minister of the use of his or her personal powers is important. It is highlighted in at [1142] to [1146]:
1142.Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
1143.The Minister’s personal power under subsection 46A(2) provides that the Minister may determine that an unauthorised maritime arrival may make a valid visa application if the Minister things that it is in the public interest to do so. The Minister’s lifting of the visa application bar may enable non-refoulement obligations to be considered in an appropriate visa application process.
1144.The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so. In the exercise of this power the Minister is not bound by the provisions of the Migration Act or Migration Regulations governing application and grant requirements. The Minister has the flexibility to grant any visa that is appropriate to that individual’s circumstances. In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.
1145.The Minister’s personal power under section 417 provides that the Minister has power to substitute a decision more favourable to the applicant than the decision of the Refugee Review Tribunal in relation to a reviewable decision. In these circumstances, the Minister may, if the Minister thinks that it is in the public interest to do so, grant a visa to a person who has had a visa decision affirmed by the Tribunal to ensure the person is not removed in breach of Australia’s non-refoulement obligations.
1146The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
The applicant in this case implicitly refers to ss.48B and 417 in the grounds for the application. Given that the correspondence from the Department suggests that the outcome of the ITOA will be relevant to progressing the applicant’s immigration status and that that must involve the exercise of one of these powers by the Minister, there appears to me to be an arguable connection between the ITOA and the consideration of the exercise of those powers by the Minister. Further, it is not beyond argument that any decision whether to remove a detainee under s.198 will require consideration of whether or not the Minister is considering the exercise of his powers. This says nothing about the strength of such arguments; however, it is sufficient in my view to raise the jurisdiction of this Court.
Consideration of grounds of application
Grounds 1-8
The first eight grounds involve a mix of factual assertions and allegations about the breach of the Privacy Act 1988 (Cth) and a criminal offence under s.336E of the Act. I cannot see how any of these matters engage the jurisdiction of the Court other than to provide a factual basis for the real contentions, namely, that the applicant was denied procedural fairness in connection with the ITOA process. In this respect I agree with the reasons of Judge Street in SZWCP v Minister for Immigration & Border Protection [2015] FCCA 802 at [13]; see also SZWCH v Minister for Immigration & Border Protection (No.3) [2015] FCCA 1128 (“SZWCH”) at [16] and SZTZI at [12], [13].
Ground 9
Ground 9 asserts that 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 Vietnam will involve a breach of Australia’s non-refoulement obligations under various international treaties. That may well be, but given the Court’s jurisdiction, it is not a question for the Court to determine. As such, the ground gives no basis for any constitutional relief.
Grounds 10 to 13
Grounds 10 to 13 rely on the contents of the 12 March 2014 letter to argue that the applicant was owed procedural fairness in connection with the ITOA. Although the grounds refer to s.61 of the Constitution they do not raise any real constitutional question: SZWCP at [3]; SZWCH at [5]. Further, for the reasons I give further below, there was no denial of procedural fairness, a question that is severable from any underlying issue connected with the Constitution, and so the grounds fail in any event.
Ground 14
Ground 14 contains two assertions of fact. The first is that the ITOA was commenced in order to determine whether the applicant’s circumstances engaged any of Australia’s non-refoulement obligations. That much is not in dispute. The second assertion is that it was commenced because the previous ITOA decision was affected by the decision in Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505. Whether that is so or not is irrelevant to any relief sought by the applicant. In any event, there is no evidence before me of any prior ITOA in respect of the applicant. This ground is one of the matters that reflect the template nature of the application.
Ground 15
Ground 15 is that the “delegate” made a finding that non-refoulement obligations are not engaged in the applicant’s case. There is no evidence before me to suggest that the officer who made the ITOA was a delegate of the Minister or, for that matter, of anyone else. Apart from that, this ground does no more than assert an uncontroversial fact.
Ground 16
Ground 16 is that the applicant was denied procedural fairness. This, as I have said, is the crux of the application. There are two particulars to the ground: first, that the Department did not disclose “any information held by the Department in relation to the data breach” for comment. The second is that the “delegate” was biased.
The Minister argued that there was no obligation to afford procedural fairness to the applicant in connection with the ITOA process because it was divorced from any exercise of authority required by statute: cf. Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 246 CLR 636 (“Plaintiff S10/2011”) at 665 [92]-[93] per Gummow, Hayne, Crennan and Bell JJ, at 655 [51]-[52] per French CJ and Kiefel J. He also argued that there was no obligation to afford procedural fairness because that is only required where an administrative decision adversely affects rights or interests: Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [11]-[15]; Plaintiff S10/2011 at [66].
The Minister argued that the applicant in this case was even further removed from any relevant exercise of statutory power because, unlike the plaintiff in Plaintiff S10/2011, he had no current application for the exercise of one of the Minister’s discretionary powers. A problem with that argument is that, unlike, say, the power to grant a visa under s.65 of the Act, none of the Minister’s relevant powers is conditioned by an application for the exercise of the power.
The Minister also argued that this point has already been decided in favour of the Minister in SZTZI at [14]. I do not agree that Judge Street did decide this point in that decision. His Honour referred to the ground of procedural fairness, stated that there was a potential issue, commented that, in light of s.197C, it was not apparent how that decision could adversely affect the rights or interests of the applicant but then said, “in any event, it is apparent from the content of the report that there was no breach of procedural fairness …”. His Honour did not consider any connection with ss.48B or 417.
While my preliminary view is that the Minister’s submissions are correct in light of Plaintiff S10/2011, I prefer, like Judge Street, to base my decision on the substantive basis that there was no denial of procedural fairness.
In that respect, I agree with the Minister’s submission that the first particular of this ground is baseless. In its letters of 12 March 2014 and 14 July 2014 the Department revealed to the applicant the categories of information that had been disclosed. Next, on 31 July 2014, it provided the applicant with the full content of the information disclosed. On 6 February 2015 the Department gave the applicant information as to how many times the information had been accessed and the number of unique internet protocol addresses that were involved. In the same letter the Department gave the applicant details of country information that it considered might be adverse to him and gave him the opportunity to comment on it. In short, there is nothing to suggest that the Department held any information that was credible, relevant and significant to the decision that it did not disclose the applicant and give him the opportunity to address: Kioa v West (1985) 159 CLR 550 at 587 per Mason J, and 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 95 [15]; Snedden v Minister for Immigration & Border Protection (2014) 315 ALR 352 at [175] per Middleton and Wigney JJ.
The second particular is that the officer who prepared the report, Ms Turner, was biased in that she did not bring an impartial mind to the decision-making process and was in a conflict of interest. The allegation of actual bias is not supported by any evidence and is rejected.
The principles relating to the apprehension of bias were explained recently in Isbester v Knox City Council [2015] HCA 20. There, the plurality said:
[21]The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
[22]It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
The nature of the “interest” which the applicant seems to say that Ms Turner had was that she was employed in the very Department that was responsible for the data breach. However, once the nature of Ms Turner’s role is properly understood, it cannot be said that there is any logical connection between her employment and the possibility that she might stray from the true course of decision making. First, Ms Turner was not asked to make any determination about the responsibility for the breach but, to the contrary, was instructed to accept not only that it occurred but also that it may have resulted in the applicant’s details being known to foreign entities. Assuming, as the applicant appears to, that it was in the Department’s interest that the breach be covered up, that was an instruction against the interests of the Department. Second, Ms Turner’s task was to determine whether the breach gave rise to any protection obligation being owed by Australia in respect of the applicant. In that respect, there is nothing to suggest that it was in the Department’s interest (and, by extension, in Ms Turner’s interest) that there be found to be no such obligations. Such a possibility could arise if there was bad faith in the Department and also in Ms Turner, but there is not a skerrick of evidence to suggest that.
For those reasons there was no actual or apprehended bias on the part of Ms Turner. I have reached that conclusion without recourse to any principle of necessity (as to which see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89 per Mason CJ and Brennan J and Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51 at [143] to [177]) although it may be arguable that that principle is applicable in the circumstances of this case.
Grounds 17-19
The removal provisions are in subdiv.A of div.8 of pt.2 to the Act. That Subdivision commences with s.197C, one of the provisions relied on by the Minister. It provides:
197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Section 198 relevantly provides:
198 Removal from Australia of unlawful non-citizens
…
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
…
(11)This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
Subject to a number of irrelevant exceptions, s.198AD applies to an “unauthorised maritime arrival” who is detained under s.189.
An “unauthorised maritime arrival” is a person who entered Australia by sea at an excised offshore place or at any other place at any time on or after the commencement of this section and the person became an unlawful non-citizen because of that entry and is not an excluded maritime arrival: s.5AA. None of those matters applied to the applicant. Critically, because he arrived in Australia on a visa and held a visa until it was cancelled in 2012, he was at all times up until that point a lawful non-citizen (see s.13 of the Act) and, accordingly, not an unlawful non-citizen (see s.14 of the Act). For those reasons, I accept the Minister’s submissions that, in so far as relief is sought in connection with a possible decision under s.198AD, it must be refused.
Conclusion
There is no jurisdictional error apparent in the possible exercise of the powers and duties under the Act in relation to the applicant. For that reason, there is no basis for granting either any injunction or any declaratory relief. The proceedings must be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 1 July 2015
11
21
7