Akw15 v Minister for Immigration - [2016] FCCA 2648

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKW15 v MINISTER FOR IMMIGRATION & ORS

[2016] FCCA 2648

Catchwords:
MIGRATION – Protection visa application – publication of personal information – International Treaties Obligations Assessment (“ITOA”) – – whether information was withheld from the applicant in respect of the Data Breach – whether the delegate was impartial in the decision-making process – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48B, 195A and 417

Cases cited:

Attorney-General(NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29

Applicant:

AKW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 23 of 2015

Judgment of:

Judge Smith

Hearing date:

13 September 2016

Date of Last Submission:

13 September 2016

Delivered at:

Sydney

Delivered on:

13 September 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent:

Mr C. Lenehan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

DNG 23 of 2015

AKW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

On 10 February 2014, the Department of Immigration published statistics on its website that included embedded information disclosing the identities of 9,258 applicants for protection visas who were then in immigration detention (the “Data Breach”). The applicant in this case was one of those people. She had applied for a protection visa on 20 September 2013, although that was not her first application for such a visa. What followed was part of a process undertaken by the Department to assess the possible impacts of the release of information about the applicant if she were to return to her country of origin, namely, China. That process resulted in a determination by an officer of the Department on 9 April 2015, to the effect that Australia did not have any non-refoulement obligations to the applicant.
On 24 April 2015, the applicant commenced these proceedings seeking relief in connection with the process undertaken by the Department and the determination by the officer of the Department. The applicant was one of many of the people affected by the release of information who brought such proceedings and the grounds in the application were, clearly, not prepared by her but rather, were prepared as part of a whole series of such applications. The essential basis of the applicant’s claim is that she was denied procedural fairness in connection with the process. Her application was similar to two proceedings which were determined by a decision of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Akw15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 2648
Decision Date: 13 September 2016

CaseChat Overview and Summary

The applicant, Akw15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Akw15 a protection visa. The matter was heard before Judge Smith in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Akw15's claims for protection, thereby vitiating the decision-making process.

Judge Smith reasoned that the delegate's assessment of Akw15's claims had been flawed. The delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution in their country of origin. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant evidence and not engage in a superficial or perfunctory assessment. The failure to do so constituted a jurisdictional error.

Consequently, Judge Smith quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders