Aqf15 v Minister for Immigration
[2017] FCCA 977
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQF15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 977 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – factors for consideration – previous judgments in relation to same grounds. |
| Legislation: Constitution, s.61 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Federal Circuit Court Rules 2001 (Cth), r.1.03 Migration Act 1958 (Cth), ss.14, 46A, 48B, 65, 189, 195A, 197C, 198, 336E, 417, 476 Privacy Act 1988 (Cth) |
| Cases cited: AFH15 v Minister for Immigration & Border Protection [2016] FCCA 99; (2016) 308 FLR 369 AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224 ALZ15 v Minister for Immigration & Ors [2015] FCCA 1947 Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901; (2016) 333 ALR 653 Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 |
| Applicant: | AQF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Third Respondent: | FERGUS MCCORMICK, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 177 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 May 2017 |
| Date of Last Submission: | 1 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| For the Applicant: | In person |
| For the First and Second Respondents: For the Third Respondent: | Mr PJ Corbould Submitting appearance, save as to costs |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS (as made on 1 May 2017)
That the applicant’s oral application for an adjournment of the hearing is dismissed.
That the applicant’s application for interlocutory and final relief in the application be dismissed.
That formal written reasons for judgment be published from Chambers at a later date.
That the applicant pay the first and second respondents’ costs in the sum of $7206 by 1 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 177 of 2015
| AQF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| FERGUS MCCORMICK, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
Orders made
On 1 May 2017 the Court made the following orders in this matter:
1. The applicant's oral application for an adjournment of the hearing is dismissed.
2. The applicant's application for interlocutory and final relief in the application be dismissed.
3. Formal written reasons for judgment be published from Chambers at a later date.
4. The applicant pay the first and second respondents' costs in the sum of $7206 by 1 June 2017.
What follows are the reasons for judgment referred to in order 3 above.
Introduction
The applicant seeks judicial review (“Judicial Review Application”) of an International Treaties Obligations Assessment (“ITOA”) made by an officer of the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“the Assessor” and “the Department” respectively) on 15 June 2015. The ITOA is in the Court Book (“CB”) at 142-153.
The applicant seeks an injunction and declarations arising out of the inadvertent disclosure by the Department in February 2014 of personal information of persons, including the applicant, in immigration detention on 31 January 2014 (“Data Breach”).
At the outset of the hearing on 1 May 2017 the applicant sought an adjournment of the hearing. For reasons set out below the adjournment applicant was refused: see [11]-[21] below.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Nepal who was born on 27 November 1983, who arrived in Australia on 2 June 2007 as the holder of a student (subclass TU 572) visa (“Student Visa”) which ceased on 12 August 2009: CB 36 and 103-104;
b)following expiry of the applicant's Student Visa, he remained in Australia and he became an unlawful non-citizen within the meaning of s.14 of the Migration Act 1958 (Cth) (“Migration Act”): CB 104;
c)on 6 October 2010 the applicant was located and granted two bridging visas on departure grounds. The applicant failed to depart Australia and became an unlawful non-citizen once again: CB 104;
d)on 22 June 2013 the applicant was located by the NSW Police and detained by officers of the Department pursuant to s.189 of the Migration Act. The applicant has remained in immigration detention since that date;
e)on 16 July 2013 the applicant made an application to the Department for a Protection Visa: CB 4-29;
f)on 2 October 2013 the applicant was refused a Protection Visa by the Delegate: CB 103-115 (“Delegate’s Decision”);
g)the applicant applied to the Tribunal for review of the Delegate's Decision, and on 6 January 2014 the Tribunal decided to affirm the Delegate’s Decision not to grant the applicant a Protection Visa (“Tribunal Decision”). The applicant did not seek judicial review of the Tribunal Decision: CB 155-166;
h)in February 2014 the Data Breach resulted in some personal information about the applicant being released on the Department’s website : CB 120;
i)by letter dated 12 March 2014 the Tribunal wrote to the applicant expressing regret for the Data Breach (“12 March 2014 Letter”): CB 120. The 12 March 2014 Letter also stated that:
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.
j)on 14 July 2014 an officer of the Department wrote to the applicant in relation to the Data Breach, inviting him to put any concerns regarding the impact of the Data Breach on his case to the Department (“14 July 2014 Letter”): CB 121-122, and the applicant responded to the Department by letter dated 22 July 2014: CB 123-124 (“Applicant’s 22 July 2014 Letter”), and see [49]-[50] below;
k)by letter from the Department dated 14 January 2015, the applicant was notified that the Department had commenced the ITOA in order to assess whether the circumstances of his case engaged Australia's non-refoulement obligations, and the applicant was advised that any protection claims he may have in relation to the Data Breach would now be assessed through the ITOA and he was invited to provide any further information which he would like to have taken into consideration: CB 126-128 (“January 2015 ITOA Invitation Letter”) and see [51] below. The applicant responded to the invitation by letter dated 21 January 2015: CB 130-131 (“Applicant’s January 2015 Letter”) and [52] below;
l)on 11 February 2015 the Assessor wrote to the applicant inviting him to comment on information relevant to his ITOA: CB 133-136 (“February 2015 ITOA Invitation Letter”). The applicant did not respond to the February 2015 ITOA Invitation Letter;
m)the ITOA was finalised on 14 April 2015 with a finding that Australia's non-refoulement obligations were not engaged. The applicant was advised of the outcome of the ITOA by letter from the Department dated 14 April 2015: CB 140-154;
n)on 28 April 2015 the applicant filed the Judicial review Application in this Court;
o)on 27 May 2015 the Court made directions and listed the matter for hearing on 16 September 2015;
p)on 19 August 2015 the Court made an order by consent vacating the hearing on 16 September 2015 and directing that the Judicial Review Application be listed for hearing after delivery of judgments by the Full Court of the Federal Court in various appeals;
q)on 2 September 2015 the Full Court of the Federal Court delivered judgment in SZSSJ v Minister for Immigration & Border Protection & Ors (No 2 ) [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 (“SZSSJ (No 2)”);
r)on 11 March 2016 the High Court granted special leave to the Minister to SZSSJ (No 2);
s)on 27 July 2016 the High Court delivered judgment in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901; (2016) 334 ALR 653 (“SZSSJ – High Court”);
t)on 10 August 2016 this Court relisted this matter for final hearing on 15 November 2016 and made directions (“August 2016 Directions”) to prepare the matter for hearing on that date;
u)the applicant did not file any amended application, further affidavits or an outline of submissions in accordance with the August 2016 Directions;
v)on 27 October 2016 a consent order was vacating the 15 November 2016 hearing, and providing for the matter to be relisted for hearing on a date to be fixed after 22 January 2017;
w)on 20 February 2017 this Court relisted this matter for final hearing on 1 May 2017 and made directions (“February 2017 Directions”) to prepare the matter for hearing on that date;
x)the applicant did not file any amended application, further affidavits or an outline of submissions in accordance with the February 2017 Directions.
ITOA
In the ITOA the Assessor considered the applicant’s claims that, on account of the Data Breach he feared harm from persons including, but not limited to:
a)authorities in Nepal;
b)foreign security and intelligence organisations;
c)terrorist organisations; and
d)criminal syndicates: CB 144,
and that the Data Breach had exacerbated the applicant’s risk of serious or significant harm because of his claimed:
e)homosexuality;
f)drug addiction; and
g)conversion to Christianity: CB 144.
The ITOA did not consider the applicant’s claims that:
a)the Data Breach would make it difficult for him to obtain employment, as the Assessor did not consider this claim was a claim of a fear of harm;
b)foreign governments may use Date Breach information as a basis for refusing him visas for travel out of Nepal, as the Assessor did not consider this claim to be a fear of harm in Nepal, but rather from foreign governments: CB 144.
The Assessor:
a)noted the applicant’s claims had been comprehensively assessed during the Protection Visa process and that the Delegate and Tribunal found the applicant was not a credible witness: CB 146;
b)accepted the Delegate and Tribunal’s findings that:
i)the applicant was neither homosexual nor Christian, and that these claims were fabricated to enhance his Protection Visa claim: CB 146; and
ii)the chance of the applicant being persecuted or experiencing significant harm on account of his drug addiction was remote: CB 146-147,
c)noted that there was no evidence to suggest the findings of the Delegate and Tribunal were no longer valid: CB 147;
d)considered the applicant’s contention that the Department had a conflict of interest and could not fairly assess whether the applicant would be subjected to harm because of the Data Breach because they could not make adverse findings about the Department. The Assessor found that the applicant had been afforded procedural fairness and that there was nothing preventing the Department from conducting the ITOA: CB 147;
e)considered the applicant’s claims with respect to foreign security and intelligence organisations, terrorist organisations and criminal syndicates, finding that there was no evidence that the applicant had ever been of interest to those types of groups, and no evidence the applicant had the profile of someone who would be of adverse interest to those groups: CB 147-148;
f)by letter put to the applicant that he had made no specific claims as why any group or individual would seek to harm him if he returned to Nepal, and that no country information indicated any harm or mistreatment for failed Nepalese asylum seekers. The Assessor put to the applicant that both those propositions indicate that he may not have a real risk of experiencing serious or significant harm in Nepal. The applicant did not respond to that letter: CB 147;
g)overall, rejected all claims made by the applicant;
h)on the above bases, concluded that the applicant was not a person in respect of whom Australia has non-refoulement obligations under the Refugees Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the International Covenant on Civil and Political Rights: CB 149-152.
The Judicial Review Application
Interim and final orders sought by applicant
The interim and final orders sought by the applicant are as follows:
Other Interlocutory, interim or procedural orders sought by applicant/s
1. An injunction restraining the Respondents from removing the applicant from Australia pending the determination of final relief in these proceedings. (This order will not be moved on unless and until there is a current threat of removal).
Final orders sought by applicant
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant's application according to law.
X 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.
X 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.
x 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.
x 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 Respondent by s61 of the Constitution will be used in favour of the applicant.
x Costs.
Adjournment application
At the commencement of the hearing, and notwithstanding the applicant’s failure to file any materials as most recently ordered by the Court in the February 2017 Directions, the Court invited the applicant to make oral submissions in support of the Judicial Review Application. The applicant initially said he did not wish to make oral submissions.
The Court pressed the applicant as to why he did not seek to make oral submissions. The applicant essentially said he knew nothing about the case, or what it was about. Asked as to how he came to make an application containing 19 detailed grounds of review he said that the application was done “as a group”, and that there were “hundreds of people” involved. The applicant sought an adjournment so he could prepare his case. When pressed as to why he should have an adjournment the applicant said that the ITOA was decided without the legal authority to do so, and that had been “proved”. When asked by whom it had been proved, the applicant said “people”, and then proceeded to refer, without any prompting, to “AKR15”, which is a leading case in this Court on the issues raised by the grounds of review: AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224 (“AKR15”). The Court then indicated that, as presently constituted, it had applied AKR15 in BTA15 v Minister for Immigration & Anor [2017] FCCA 417 (“BTA15”) in dismissing the same 19 grounds as were relied on by the applicant (albeit in BTA15 there were three additional grounds, which were also dismissed: BTA15 at [53]-[65] per Judge Lucev). The Court also indicated to the applicant that there were several other judgments of this Court to similar effect, and that very recently the Federal Court in BTA15 v Minister for Immigration & Border Protection [2017] FCA 422 (“BTA15 – Federal Court”) had held that it was “unable to discern any relevant error” in the reasons in BTA15, and that those reasons were “correct”: BTA15 – Federal Court at [19] and [21] per Gilmour J, and that in the circumstances the applicant’s submission that an adjournment should be granted for the purpose of the applicant “acquiring knowledge” about the case would not assist as the outcome was unlikely to be any different in light of the Federal Court’s judgment in BTA15 – Federal Court as to the correctness of the reasoning in BTA15, and by extension AKR15 and other similarly decided cases in this Court. The Court also referred to the considerable amount of time that had passed since the Judicial Review Application was filed, and its procedural history, as being considerations which weighed against an adjournment.
It suffices to observe that the first and second respondents, the Minister for Immigration and Border Protection (“Minister”) and the Administrative Appeals Tribunal (“AAT”) opposed the application for adjournment, referring to the issue of delay and BTA 15 – Federal Court in so doing.
Whether or not an adjournment is granted is a discretionary matter for the Court, and in exercising the discretion the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev (“MZZZL”), but which must include the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev (and cases there cited) (“Sandeep”).
The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration is the doing of justice between the parties, but recognising that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”).
The adjournment sought by the applicant should not be granted for reasons which follow.
Firstly, because the Judicial Review Application has been on foot since 28 April 2015, and the applicant has therefore had adequate time generally to research and prepare.
Secondly, the procedural history shows that the Judicial Review Application was first listed for hearing on 16 September 2015 pursuant to orders made by a Registrar of this Court on 27 May 2015, with the applicant to file and serve an outline of submissions not less than 42 days before the hearing. On 19 August 2015 by order of the Court that hearing was vacated pending the outcome of litigation then before the Full Court of the Federal Court, and which was subsequently determined by the High Court (as to which see [46]-[47] below). Under the August 2016 Directions the Court made further orders listing the matter for hearing on 15 November 2016 with the applicant to file and serve, amongst other things, an outline of submissions not less than 42 days before the hearing. The applicant did not file any materials in accordance with the August 2016 Directions. On 27 October 2016 consent orders were made vacating the hearing listed for 27 November 2016, and providing for it to be re-listed on a date to be fixed after 22 January 2017. Under the February 2017 Directions the Court made further orders listing the matter for hearing on 1 May 2017 with the applicant to file and serve, amongst other things, an outline of submissions not less than 42 days before the hearing. Again no materials have ever been filed by the applicant, and the applicant thereby failed to comply with orders of the Court and failed to engage in the litigation process in respect of his own application.
Thirdly, if the Judicial Review Application is adjourned it is unlikely to be re-listed for hearing in the ordinary course of events in this Registry of the Court until September 2019, unless it is given preferential listing treatment, for which there is no particular warrant. In the context of the objects of the FCCA Act and the FCC Rules, referred to above: see [14] above, a further delay of that length is, of itself, unacceptable. The Court recognises that in circumstances where there are hundreds of migration cases alone presently listed for hearing between May 2017 and September 2019 in the Perth Registry of this Court, and only one full-time judge in the Perth Registry of this Court, that delay is not necessarily the applicant’s fault, but the fact of the delay has to be considered not only of itself, but also in the context that the applicant has had ample time to prepare for the hearing he now seeks to adjourn, and that he has seemingly made no attempt to prepare prior to the present hearing, and has not filed any outline of submissions as he was ordered to do, and that, for reasons set out below, the 19 grounds of the Judicial Review Application lack any merit whatsoever. Litigation must, at some appropriate juncture, come to an end, and for this Judicial Review Application that juncture is now.
Fourthly, the adjournment notice was made late and without any notice to the Minister or the Court.
Finally, and perhaps most importantly, it is plain that none of the grounds have any merit (for reasons set out below: see [23]-[72] below), and that each of the grounds have previously been held to have no merit on a number of occasions in this Court, including in AKR15 and BTA15. In BTA15 the same 19 grounds as appear in the Judicial Review Application were dismissed, and in BTA15 – Federal Court the reasoning in BTA15 was held to be correct. No good purpose would be served by the grant of the adjournment as there is no prospect that the applicant would succeed on the present grounds of the Judicial Review Application.
Consideration
Jurisdiction
The Court has jurisdiction to deal with the Judicial Review Application because the applicant:
a)invokes the Court's jurisdiction under s.476 of the Migration Act in relation to a “future decision or other action by the Minister or an officer under the Migration Act concerning an unauthorised maritime arrival, following the making [of] a recommendation by [the third respondent]”; and
b)seeks to review conduct preparatory to a decision by the Minister to consider the exercise of his dispensing powers under ss.468, 195A or 417 of the Migration Act: see SZSSJ–High Court at [66] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
Grounds 1-7
Grounds 1-7 of the Judicial Review Application are as follows:
1. The applicant is a citizen of Nepal.
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 to him was complete.
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 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.
Grounds 1-7 set out factual assertions which are largely uncontroversial. In any event, nothing in grounds 1-7 asserts, or gives rise to, any error in the ITOA. It follows that grounds 1-7 are not made out. See also BTA15 at [10] per Judge Lucev.
Ground 8
Ground 8 of the Judicial Review Application is as follows:
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 information derived from personal identifier, is contrary to s336E of the [Migration] 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.
Ground 8 of the Judicial Review Application is a mix of factual assertions and allegations about an alleged breach of the Privacy Act 1988 (Cth) (“Privacy Act”) and an alleged criminal offence under s.336E of the Migration Act. In AKR15 at [59] per Judge Smith where, in relation to an identically worded ground (also a ground 8), this Court held that these matters do not engage the jurisdiction of this Court other than to provide a factual basis for an applicant’s contention of a denial of procedural fairness in relation to the Data Breach. In the Court’s view the rationale in AKR15 at [59] per Judge Smith is correct (or, at least, not plainly wrong), and has been followed on a number of occasions by this Court: see, for example, ALZ15 v Minister for Immigration & Ors [2015] FCCA 1947 at [49] per Judge Smith (“ALZ15”); AFH15 v Minister for Immigration & Border Protection [2016] FCCA 99; (2016) 308 FLR 369 at [54] per Judge Smith (“AFH15”); CDM16 v Minister for Immigration & Anor [2016] FCCA 2758 at [25] per Judge Driver (“CDM16”); and notably in BTA15 at [12] per Judge Lucev, the reasoning in which was, as set out above: see [12] above, found to be “correct” by the Federal Court in BTA15 – Federal Court. In those circumstances, the reasoning in AKR15 at [59] per Judge Smith will again be followed again by this Court in relation to ground 8.
For the above reasons ground 8 is not made out.
Ground 9
Ground 9 of the Judicial Review Application is as follows:
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-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
The applicant’s assertion is contrary to the finding of the Assessor but, in any event, it is not for this Court to determine whether the applicant’s removal will involve a breach of Australia’s non-refoulement obligations, and the assertion gives no basis for any relief by this Court: AKR15 at [60] per Judge Smith, and see also ALZ15 at [50] per Judge Smith; AFH15 at [54] per Judge Smith; CDM16 at [26]-[28] per Judge Driver, and BTA15 at [15] per Judge Lucev, where an identically worded ground 9 as appears here was held not to provide any basis for relief on the same basis as in AKR15. Once again, the Court’s view is that AKR15, and those cases which have followed it, are correctly decided: BTA15 – Federal Court at [21] per Gilmour J. For those reasons, ground 9 is also, in any event, no more than an impermissible attack on the merits of the ITOA: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J.
It follows that ground 9 is not made out.
Grounds 10-13
Grounds 10-13 of the Judicial Review Application are as follows:
10. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
3. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
11. The 12 March 2014 Letter contained a representation as follows (“the 12 March 2014 Representation”):
“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.”
12. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
13. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
Section 61 of the Constitution provides as follows:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
Grounds 10-13 rely on the contents of the 12 March 2014 Letter from the Secretary to the applicant: CB 120, the relevant terms of which are set out at [3(i)] above. Grounds 10-13 assert that the 12 March 2014 Letter conveyed a representation that executive power pursuant to s.61 of the Constitution will be exercised in relation to the applicant. The applicant seeks a declaration that the 12 March 2014 Letter involved a representation that the power vested in the Secretary by s.61 of the Constitution will be used in favour of the applicant.
These grounds are misconceived, because:
a)the 12 March 2014 Letter does not convey the representation relied upon. Even if, as may be the case, the ITOA process is a manifestation of executive power for the purpose of execution or maintenance of a law of the Commonwealth, there is nothing in the 12 March 2014 Letter which suggests that any exercise of executive power under s.61 of the Constitution (if that be what the ITOA is) “will be used in favour of the applicant”. Rather, the letter says that the implications for the applicant will be assessed as part of the Department’s “normal processes”, which, for reasons set out below: see [60]-[61] and [65]-[66] below, includes the ITOA; and
b)in SZWCP v Minister for Immigration& Anor [2015] FCCA 802 at [3] per Judge Street; SZWCH v Minister for Immigration & Anor (No 3) [2015] FCCA 1128 at [5] per Judge Street, followed in AKR15 at [61] per Judge Smith and BTA15 at [20(b)] per Judge Lucev, it was said that no Constitutional issue arises with respect to the 12 March 2014 Letter (that letter being a letter which was sent, in the same or similar terms, to all persons affected by the Data Breach). With respect, that view is correct, because, assuming that the ITOA represents an exercise of the executive power under s.61 of the Constitution, no issue of constitutional validity or constitutional limitation on the exercise of that power arises in this case, or at least, none discernible to the Court on the basis of grounds 10-13.
For reasons otherwise set out: see [43]-[54] below, the applicant has been afforded procedural fairness in the ITOA process, whether that be a process for the purposes of s.61 of the Constitution, or otherwise.
It follows from the above that grounds 10-13 are not made out.
Ground 14
Ground 14 of the Judicial Review Application is as follows:
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.
Ground 14 asserts that the ITOA was commenced:
a)on 25 July 2014 in order to determine whether the applicant’s circumstances engaged any of Australia’s non-refoulement obligations. That is correct, except that the Department commenced the ITOA on 14 January 2015: CB 126-128; and
b)because a previous ITOA was affected by the decision in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269. This assertion is incorrect. There is no evidence of any previous ITOA in respect of the applicant. Even if there were evidence of a previous ITOA it would be irrelevant to any relief as now sought by the applicant: AKR15 at [62] per Judge Smith; BTA15 at [24(b)] per Judge Lucev.
In the above circumstances, ground 14 does not allege any error in the ITOA, and, in any event, is not made out.
Ground 15
Ground 15 of the Judicial Review Application is as follows:
On [date of ITOA decision] the delegate made a finding that non·refoulement obligations are not engaged in the applicant's case.
Ground 15 is that “the delegate” made a finding that non-refoulement obligations are not engaged in the applicant’s case. Read as a reference to “the Assessor”, this ground does no more than assert an uncontroversial fact as to the Assessor’s finding. Except insofar as it asserts an uncontroversial fact as a basis for other grounds, ground 15 provides no basis for any of the relief sought by the applicant: BTA15 at [27] per Judge Lucev.
Ground 16
Ground 16 of the Judicial Review Application is as follows:
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 for determining the applicant's data breach claim.
Ground 16 alleges a breach of procedural fairness in the ITOA process.
The Minister had personally decided to consider whether to exercise the powers conferred by ss.48B, 195A and 417 of the Migration Act in respect of the applicant: see SZSSJ - High Court at [33] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, referring to the unchallenged findings of the Full Federal Court in SZSSJ (No 2)-Federal Court at [77]-[82] and [98] per Rares, Perram and Griffiths JJ. It follows that:
a)the ITOA was a process undertaken by the Assessor as an officer of the Department preparatory to the making of a decision by the Minister whether to exercise one or other of the powers conferred by ss.48B, 195A and 417 of the Migration Act; and
b)procedural fairness was required in the ITOA process.
The applicant advances three matters in the particulars in support of this ground, as follows:
a)the “delegate” did not “disclose any of the information held by the Department to the applicant in relation to the data breach for comment”;
b)the “delegate”, as the employee of the Department that was involved in the Data Breach, “did not bring an impartial mind to the decision-making process and is in a conflict of interest”; and
c)the ITOA is not an “appropriate and fair process for determining the applicant’s data breach claim”.
The allegation of non-disclosure is factually incorrect. The Department disclosed the Data Breach in the 12 March 2014 Letter. The applicant’s argument appears to be that addressed in SZSSJ - High Court at [83]-[84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, that is, an assertion that the Department was under an obligation to reveal “all that it knows” about the Data Breach. The asserted obligation was dealt with in SZSSJ - High Court at [83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ as follows:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
In SZSSJ - High Court at [84] and [92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, the High Court observed that the circumstances of the Data Breach do not warrant a departure from the ordinary requirements set out above.
There was therefore an obligation in the ITOA process to deal with the matter of the Data Breach having regard to the ordinary requirements of procedural fairness.
In the 12 March 2014 Letter the Department sets out the fact of the Data Breach, and the extent of the disclosure relevant to the applicant, including the information that it was possible to access as a consequence of the Data Breach, and advised that it was assessing the implications for the applicant, and that the applicant, may raise any concerns during that assessment process (which, as it happens, was the ITOA process). In the Court’s view the 12 March 2014 Letter is sufficient to dispose of the non-disclosure aspect of this ground as lacking in substance. It plainly discloses the nature of the information held by the Department which was released as a consequence of the Data Breach. The 14 July 2014 Letter reiterated the content of the 12 March 2014 Letter, and invited the applicant to make submissions in relation to any concerns that he had.
The Applicant’s 22 July 2014 Letter addressed, amongst other things:
a)the information disclosed in the Data Breach;
b)that the Department, as the entity that had committed the Data Breach, had a conflict of interest in assessing the effect of the Data Breach on the applicant;
c)the Data Breach’s effect on him if he were to return to Nepal, that there was no way knowing from whom he would face a real risk of harm. That it may include Nepalese authorities, foreign intelligence agencies, terrorists, or criminal syndicates;
d)that the Privacy Commissioner, rather the Department, should assess the risk of harm if he were to return to Nepal; and
e)requested a migration agent or legal aid lawyer, noting that the 14 day period within which he had to reply was insufficient because he was self-represented.
(CB 123-124)
The January 2015 ITOA Invitation Letter notified the applicant that the ITOA had commenced, explained the ITOA process and that the applicant would receive procedural fairness, and informed the applicant he could provide further information he would like to be taken into consideration.
The Applicant’s 21 January 2015 Letter stated, amongst other things:
a)that because the Department would not release the unabridged KPMG report they no had choice to find he was a refugee sur place;
b)he could not prepare for the ITOA without access to the unabridged KPMG report and this was a breach of procedural fairness; and
c)repeated claims made in the Applicant’s 22 July 2014 letter that the Department could not undertake the ITOA because they had a conflict of interest.
(CB 130-131)
The February 2015 ITOA Letter set out information that was adverse to the applicant’s claim, and invited him to comment on it: CB 133-135 and 137. The February 2015 ITOA Letter specifically noted that if a response was not received the ITOA would be made on the basis of the current information: CB 135. The applicant did not take up that invitation, and did not provide any further comment.
Significantly, nothing points to any possible or likely omissions from the information disclosed to the applicant as a consequence of the Data Breach. In short, there is nothing to suggest that the Department held any information that was credible, relevant and significant to the ITOA decision-making process that it did not disclose to the applicant and give him the opportunity to address: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; CLR at 587 per Mason J and 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 at [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; Snedden v Minister for Justice & Anor [2014] FCAFC 156; (2014) 230 FCR 82; (2014) 315 ALR 352; (2014) 145 ALD 273 at [175] per Middleton and Wigney JJ.
As to the allegation that the Assessor did not bring an impartial mind to the ITOA and that that was a contravention of the requirements of procedural fairness, the High Court, addressing a similar argument in SZSSJ-High Court at [84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, said:
That the Department was responsible for its occurrence [referring to the Data Breach] is regrettable. That the Department was responsible for its occurrence nevertheless provides no foundation for apprehending that an officer of the Department tasked with assessing the consequences of the Data Breach for an individual applicant would not bring an impartial and unprejudiced mind to the conduct of an assessment.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135; (2015) 89 ALJR 609; (2015) 208 LGERA 263; (2015) 320 ALR 432; (2015) 147 ALD 93 at [21]-[22] per Kiefel, Bell, Keane and Nettle JJ the majority of the High Court observed as follows:
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.
In this case, the allegation of bias arises in the same statutory and factual context as that in AKR15 at [72] per Judge Smith where this Court observed as follows:
The nature of the “interest” which the applicant seems to say that … [the Assessor] had was that she was employed in the very Department that was responsible for the data breach. However, once the nature of … [the Assessor’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 Assessor] 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 Assessor’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 Assessor’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 Assessor], but there is not a skerrick of evidence to suggest that.
There is no evidentiary foundation in this case for the allegation that the Assessor was not impartial in the ITOA process, and there was therefore no denial of procedural fairness to the applicant: SZSSJ - High Court at [84] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; AKR15 at [72] per Judge Smith; BTA15 at [39] per Judge Lucev.
The applicant’s allegation that the ITOA was not an appropriate and fair process for determining the applicant’s Data Breach claim has the appearance of a catch-all claim. It lacks particulars, and for that reason alone cannot succeed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited). Otherwise, the Court observes that:
a)the ITOA procedure was substantially the same as that considered by the High Court in SZSSJ - High Court. In particular, it closely resembles that followed in the case of Applicant SZTZI: SZSSJ - High Court at [24]-[29] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; and
b)the relevant requirements of procedural fairness applicable to the ITOA process were summarised by the High Court in SZSSJ - High Court at [82]-[94] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, and nothing in the reasons of the High Court in SZSSJ - High Court at [84]-[92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ suggests any denial of procedural, or “practical injustice”, arose from the procedure that was adopted in the cases of Applicants SZTZI and SZSSJ.
There is nothing in the circumstances of this case which suggest that the Court should reach a different conclusion to that reached by the High Court in SZSSJ-High Court. The applicant’s claim founded upon an assertion that the ITOA process was not appropriate or fair is without any basis in fact or law: BTA15 at [42] per Judge Lucev.
In the above circumstances, ground 16 is not made out.
Grounds 17-18
Grounds 17 and 18 of the Judicial Review Application are as follows:
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 has 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.
In Ground 17 the applicant refers to the judgment of the Federal Court in SZWAJ v Minister for Immigration & Border Protection [2015] FCA 26; (2015) 146 ALD 589 at [9]-[10] per Greenwood J (“SZWAJ-2015”), and asserts in Ground 18 that there is utility in the declarations sought by the applicant for the purpose of any process to be undertaken by the Minister pursuant to his non-compellable powers under ss.46A, 48B, 195A or 417 of the Migration Act.
Nothing in Grounds 17 and 18 provides any basis for the relief sought by the applicant. The applicant here was provided with an ITOA process in relation to the disclosure of his personal information as a result of the Data Breach, and was in fact provided with “… a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application”: SZWAJ-2015 at [10] per Greenwood J. Put differently, grounds 17 and 18 provide no basis for relief because what was contemplated by the Federal Court in SZWAJ-2015 was exactly what was provided to the applicant in this case. In SZVEY v Minister for Immigration & Border Protection [2015] FCA 394; (2015) 146 ALD 168 (“SZVEY”) the applicant had had the benefit of a consideration of her claims by the Tribunal and of an application for judicial review (which was dismissed) by this Court, and a subsequent application for an injunction to prevent the applicant’s removal from Australia, which was also dismissed by this Court: SZVEY at [8] per Bennett J. In SZVEY the applicant submitted that there was an independent obligation on the part of the Minister to carry out an ITOA, even where the Tribunal had fully considered all of the matters in relation to an applicant’s Protection Visa application, including the consequences of the Data Breach: SZVEY at [15] per Bennett J. The Federal Court in SZVEY observed that the Tribunal had given consideration to the consequences for the applicant of the Data Breach as well as matters raised under the complementary protection provisions of the Migration Act: SZVEY at [14] per Bennett J. The Federal Court held that the applicant had failed to establish that she had not had adequate consideration of her claims, including as to the consequences of the Data Breach, and refused leave to appeal from a decision of this Court refusing an injunction to the applicant in those proceedings to prevent her removal from Australia: SZVEY at [1] per Bennett J.
The decision of this Court from which the Federal Court granted leave to appeal on the question of interlocutory relief and an interlocutory injunction pending the hearing and determination of the appeal in SZWAJ-2015 was heard by the Federal Court, and determined in SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 (“SZWAJ-2016”). In SZWAJ-2016 the Federal Court observed that the ITOA process was a normal process of the Department for a person in circumstances including those where the person’s Protection Visa application had been considered and dealt with prior to consideration of the Data Breach: SZWAJ-2016 at [32] per Griffiths J.
In the above circumstances, it is plain that the ITOA process is part of a normal Departmental process, and that the applicant has had the benefit of that process: BTA15 at [46]-[48] per Judge Lucev. Grounds 17 and 18 are therefore not made out.
Ground 19
Ground 19 of the Judicial Review Application is as follows:
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-refoulment 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.
Ground 19 concerns the reasonable practicability of removal from Australia. The terms of s.197C of the Migration Act clearly establish that any decision to remove the applicant under s.198 of the Migration Act without a further assessment of non-refoulement obligations would not involve any error of law. To the extent that Ground 19 claims to the contrary, it must fail: BTA15 at [50] per Judge Lucev.
In any event, an assessment of whether Australia has non-refoulement obligations to the applicant as a result of the Data Breach has taken place by reason of the ITOA conducted by the Assessor, and in a way in which the applicant was accorded procedural fairness: see [43]-[54] above, and thus the concern evinced by this ground of the application is rendered otiose: BTA15 at [51] per Judge Lucev.
Ground 19 is therefore not made out.
Other relief sought
To the extent that interlocutory relief is sought it must be dismissed because the grounds for final relief have not been made out.
Conclusion and orders
The Court has concluded that:
a) the applicant’s oral application for an adjournment of the hearing must be dismissed;
b) the Judicial Review Application is to be dismissed, both as to interlocutory and final relief.
It follows that the applicant must pay the first and second respondents’ costs, in the sum of $7206, by 1 June 2017.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 May 2017
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