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

1. The application be dismissed.

2. 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)

1. 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.

2. 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 Full Court of the Federal Court in September of 2015. The Full Court determined that there had been a denial of procedural fairness involved in the Department’s process.

3. The Minister sought and obtained, a grant of special leave to appeal to the High Court from the Full Court’s decision. The hearing of this matter was delayed in order for the appeal by the Minister to be determined by the High Court. On 27 July 2016, the High Court handed down its decision on the appeal, allowing the appeals from the decisions of the Full Court. Critically, the High Court found that the procedures adopted by the Department did not involve a denial of procedural fairness.

Consideration

1. With that background in mind, it is necessary to turn to the facts of this case and to the particular arguments raised in the application before the Court.

2. Following the release of the information on the Department’s website, the Secretary of the Department wrote to the applicant by letter dated 12 March 2014. The letter informed the applicant of the release of the information and stated that the information that was possible to access included the applicant’s name, date of birth, nationality and details about her detention. This was essentially the same letter that was sent in the matters considered by the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 (“SZSSJ”) at [8].

3. On 14 July 2014, an officer of the Department wrote to the applicant reiterating the effect of the information that had been disclosed and inviting the applicant to inform the Department of any concerns about the impact on her ability to return to her home country. A similar letter appears to have been sent in the matter of SZSSJ at [9]. The applicant replied to that letter by an undated letter that, once again, appears to have been a form letter. The letter refers to a report entitled “KPMG’s Privacy breach Data management Report, 20^th May 2014”. This reveals that the applicant was aware of at least as much of that report as is summarised in her letter.

4. By letter dated 15 January 2015, an officer of the Department informed the applicant that the Department had commenced what was called an International Treaties Obligation Assessment (“ITOA”). Once again, the applicant was invited to provide the Department with any written concerns that she might have in connection with the release of the information. This was similar to a letter sent in the proceedings of SZSSJ before the High Court: see [25]. The applicant responded to the Department’s letter by letter, which I infer was sent to the Department on 28 January 2015. In that letter the applicant referred to the fact that the Department possessed all the information in relation to the Data Breach and submitted that she would be denied procedural fairness unless she was given access to all of that information.

5. In response to that letter, another officer of the Department, Mr Brewer, wrote to the applicant on 20 March 2015. In an attachment to that letter, Mr Brewer wrote, and I quote:

   …

   When assessing protection claims in relation to the website disclosure incident, case officers are instructed to assume that the authorities in the client’s receiving country may have accessed personal information released on the department’s website. …

   The letter also included some extracts from various country information reports concerning circumstances in China relevant to the applicant. There was no response to that letter and on 9 April 2015, Mr Brewer made a report of his assessment of the potential international obligations owing to the applicant in light of the release of information. His conclusion was that Australia did not have non-refoulement obligations in respect of the applicant.

6. Although there are 19 grounds in the application, the central ground is found in para.16, being that the applicant was denied procedural fairness in connection with the ITOA assessment. There are four particulars to that ground, the first two being assertions of fact, which I set out below.

   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;

   …

7. It is not true to say, as is asserted above, that the officer did not disclose any of the information held by the Department; however, I infer that what is meant by the particular is that the Department did not release all of the information available to it.

8. The third particular is that the officer of the Department did not bring an impartial mind to the decision-making process and was in a conflict of interest. I will deal with the second and third particulars before returning to the fourth.

9. Before doing so, I need to deal briefly with the question of jurisdiction. In SZSSJ, the High Court examined the process undertaken by the Department in connection with the ITOAs and, in particular, at [53] to [56], found that there had been a personal decision made by the Minister to consider whether or not to make a substantive decision. That is, whether or not to grant a visa under ss.195A and 417 of the Migration Act 1958 (Cth), or to lift the bar under s.48B in the case of each applicant for a protection visa affected by the Data Breach. The Court found in those circumstances that the ITOA was properly characterised as a process undertaken by an officer of the Department under, and for the purposes of ss.48B, 195A and 417 of the Act.

10. There are two consequences of that finding that are relevant: first, that this Court has jurisdiction to hear and determine the matters seeking declaratory and injunctive relief on the ground that the ITOA process was procedurally unfair, and secondly, that procedural fairness was required in undertaking the process. The High Court then went on to consider whether there had been a denial of procedural fairness and found that there was not: at [83], [84] and [92].  

11. Important to the conclusions of the High Court was the assumption upon which each of the officers undertaking the ITOA were instructed to act: namely, that all of the personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm. The officer of the Department who undertook the ITOA in this case operated under the same assumption. Although the relevant instructions from the Department were stated in his reasons at a higher level of generality (see the first dot point at p.103 of the court book), the relevant assumption appears clearly to have been made in the following paragraph of the delegate’s decision (see p.108 of the court book):

    …

    The claimant submitted that there is no way of knowing from whom she could face a real risk of harm as a consequence of the website disclosure. It was submitted that ‘it may go well beyond the authorities in my home country, including foreign security and intelligence agencies, terrorist organisations and criminal syndicates’.

    It was put to the claimant that there is an absence of country of origin information that supports the conclusion that foreign security and intelligence agencies, terrorist organisations and/or criminal syndicates would find the information released on the department’s website valuable and usable or that they would use such information to target and harm her.

    …

    (Emphasis in original)

12. Given the adoption of that assumption and the similarity of the correspondence passing between the Department and the applicant in this case and in the cases before the High Court, the allegation that there was a denial of procedural fairness must be rejected. Essentially, as the High Court concluded, the applicant was not deprived of any opportunity to present her case as a result of not having such further information as might be inferred to have been contained in the full version of the KPMG report.

13. There remains a number of other claims for relief and grounds that need to be dealt with, briefly. The first are in para.8 of the grounds. The proposition in that ground appears to be that a breach of law at one instance will infect all subsequent action in connection with that breach with invalidity. I cannot see any basis for that ground and, as the breach of any law connected with the release of information was anterior to any action taken by the Department, and in particular by the officer of the Department in this case, those subsequent actions were unrelated in law to that breach and unaffected by any unlawfulness.

14. The second further matter to consider, are the second and third orders sought by the applicant for relief which are set out below:

    …

    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-refoulment obligations (under the Refugee Convention; the Convention Against Torture; and the International Covenant 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.

    …

    (Emphasis in original)

15. There are a number of difficulties with the relief sought in these paragraphs however, they both appear to be reliant upon the success of the procedural fairness ground and, as that ground fails, so too would the application for that relief.

16. Finally, the fourth prayer for relief, on one view, raises a constitutional issue. However, I consider that the purpose of the relief sought in that paragraph was to attach to the ITOA procedure a requirement to observe procedural fairness. As I have found in accordance with the decision of the High Court in SZSSJ that there was such an obligation, it is not necessary to consider any possible constitutional issue and, in accordance with the usual approach of the courts to such issues, I will refrain from doing so.

17. Finally, I will return to the fourth particular of ground 16. The ground is that the process of ITOA was not an appropriate and fair process for determining the applicant’s Data Breach claim. The Minister submitted that, properly understood, that was no more than an attack on the merits and inconsistent with the observation by Brennan J in Attorney-General(NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 36 that “...the court has no jurisdiction simply to cure administrative injustice or error.” In my view, the proper understanding of the particular is no more than a summary of the two earlier particulars, namely, that there had been a denial of procedural fairness because of the failure to disclose information held by the Department and a failure to bring an impartial mind to the decision-making process. As that ground has been rejected, so too will the fourth particular.

18. As none of the grounds in the application has been successful, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     27 October 2016