ALZ15 v Minister for Immigration & Ors
[2015] FCCA 1947
•17 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALZ15 v MINISTER FOR IMMIGRATION & ORS | [2015] FCCA 1947 |
| 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) Federal Circuit Court of Australia Act 1999 (Cth), s.16 Migration Act 1958 (Cth), ss.5AA, 13, 14, 48B, 65, 197C, 198, 198AD, 336E, 417, 474, 476, 501 |
| AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734 SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 SZWCP v Minister for Immigration & Border Protection [2015] FCCA 802 |
| Applicant: | ALZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| Third Respondent: | AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 1036 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 10 June 2015 |
| Date of Last Submission: | 10 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2015 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | 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 1036 of 2015
| ALZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
The facts and issues in these proceedings are very similar to those in AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734 (“AKR15”). In light of that, these reasons are very similar to the reasons in that case and, like that case, this application will be dismissed.
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 following recitation of the facts is adapted from the submissions for the Minister.
The applicant first arrived in Australia in May 1990 on a Thai passport bearing his birth name. After his visa expired he remained unlawfully in Australia until 1996 when he lodged an application for a protection visa. That application was refused and the Refugee Review Tribunal (“Tribunal”) affirmed that decision. As a result, the applicant was removed from Australia in August 1997.
The applicant returned to Australia on 14 May 1998 using a Thai passport in a different name. I will refer to that name as “Mr X”. Once again, the applicant remained in Australia long after his visa had ceased and, in June 2013, he was detained under the name Mr X pursuant to s.189 of the Act.
He applied for a protection visa that month, claiming his name was his birth name and that he had purchased a passport in the name of Mr X in Thailand. On 9 September 2013 a delegate of the Minister refused his application finding his current identity to be different from both his birth name and Mr X (the applicant having changed his birth name by deed poll in Thailand). The Tribunal affirmed the delegate’s decision on 20 January 2014. An application for judicial review of the Tribunal’s decision was dismissed by this Court on 12 February 2014. An application for leave to extend time and leave to appeal this Court’s decision was unsuccessful in the Full Court of the Federal Court: see SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 at [111]-[136].
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.
On 9 July 2014 the Department wrote again to the applicant. The terms of that letter were not in evidence before me. However, the applicant replied to that letter by an undated letter in which several points were made including that there was no way of knowing who had accessed the information and from whom he might face harm as a result.
On 11 July 2014 the applicant sought ministerial intervention on grounds unrelated to the disclosure. On 4 August 2014 the Assistant Minister declined to exercise the power under s.417 of the Act.
By letter dated 18 February 2015 an officer of the Department informed the applicant that the Department had commenced an ITOA in order to assess whether the circumstances of his case engaged Australia’s non-refoulement obligations as a result of the disclosure. The letter included the following:
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.
The applicant made submissions in response to that letter.
On 17 March 2015 another officer of the Department wrote to the applicant inviting him to comment on information before the Department. In that letter the following paragraph appeared under the heading “Procedural Fairness”:
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 applicant did not respond to the letter.
On 13 April 2015, the ITOA was finalised, with a finding that Australia’s non-refoulement obligations were not engaged. As foreshadowed, that finding was based on an assumption that the authorities in Thailand may have accessed the applicant’s personal details which were released on the Department’s website.
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 grounds and the relief sought
The grounds and the relief sought by the applicant are relevantly identical to those in AKR15: see [23] and [24] of that judgment. It is unnecessary to repeat them here.
Contentions
The applicant, who appeared unrepresented, did not file any written submissions in support of his application and at the hearing simply said that his safety could not be guaranteed in Thailand.
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, this Court only has jurisdiction in relation to migration decisions: s.476.
As more fully explained in AKR15, 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: see s.474(3)(h).
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, in light of the definition of a migration decision, can be conduct preparatory of a decision: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (“Plaintiff M61”); 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 (“SZSSJ”). 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 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 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 17 March 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. For the reasons given by me in AKR15 I have some doubts about the correctness of that decision.
However, in spite of those doubts, 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 (Cth)) 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) was ultimately available and yet the High Court gave relief by way of declaration: see 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.
1146.The 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 Thailand 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 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 24 September 2014 the Department revealed to the applicant the categories of information that had been disclosed. Next, in the 24 September 2014 letter, it provided the applicant with an opportunity to provide the details of any concerns he held as a result of the disclosure.
In its letter of 17 March 2015, the Department responded to the matters raised by the applicant, 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 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 the relevant officer had was that she was employed in the very Department that was responsible for the data breach. However, once the nature of the officer’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, the officer 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, the officer’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 the officer’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 the officer, 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 the officer who undertook the ITOA. 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, he was at all times until the visa ceased to operate 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 (70) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 17 July 2015
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