AZT15 v Minister for Immigration
[2017] FCCA 3244
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZT15 v MINISTER FOR IMMIGRATION | [2017] FCCA 3244 |
| Catchwords: MIGRATION – Applicant involved in ‘data breach’ – Applicant refused International Treaties Obligation Assessment – where data breach had been considered by the Tribunal – whether refusal was in relation to a migration decision – judicial comity – no jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.198(6), 256, 474(3)(h), 501A. Federal Circuit Court Rules 2001 (Cth), r.44.12. |
| Cases cited: AAG15 v The Minister for Immigration [2017] FCCA 328. |
| Applicant: | AZT15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 58 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 12 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | The Australian Government Solicitor |
ORDER MADE 12 OCTOBER 2017
The application in a case filed 26 September 2017 is dismissed.
ORDERS
The application filed 11 January 2017 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent fixed in the sum of $7328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 58 of 2017
| AZT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The substantive application before the Court, is one filed by the Applicant on 11 January 2017 seeking review of a decision of an officer of the Respondent (‘the officer’) made on 20 December 2016, to refuse the Applicant’s request that an International Treaties Obligations Assessment (‘ITOA’) be undertaken to assess whether Australia owes to the Applicant protection obligations. Final relief is sought by the Applicant to quash the decision of the officer and require that the Applicant’s request for an ITOA be determined according to law.
The application seeks interlocutory relief restraining the Respondent from determining which detention centre the Applicant should be detained in; requiring the Respondent to produce the Applicant in person for any hearing; and to prevent his removal from Australia until determination of the application. The Applicant filed a further application in a case headed ‘urgent’ on 26 September 2017, which related to the Applicant’s seeking of interlocutory relief, as described herein and as otherwise referred to in paragraph 37 herein.
The Respondent, in the contentions of fact and law filed 16 March 2017, submits that the Court does not have jurisdiction to undertake judicial review of the officer’s decision to refuse the ITOA request, as the refusal was not “in relation to a migration decision” made under the Migration Act 1958 (Cth) (‘the Act’). The decision was not a privative clause decision under ss.474(2) or (3) of the Act. The Respondent argues that the Respondent never made any personal procedural decision that engaged his statutory non-compellable powers. The decision to refuse the ITOA request has no statutory basis, and it did not attract procedural fairness obligations.
The Respondent further argues that should the Court conclude that the decision to refuse the ITOA request was conduct preparatory to the making of a decision to remove the Applicant under s.198(6) of the Act, and a decision within the Court’s jurisdiction pursuant to s.474(3)(h) of the Act, then the Respondent contends that there is no arguable basis for the Applicant’s claim that he has been denied procedural fairness.
The Respondent argues that as the substantive application does not raise an arguable case for the grant of the relief sought, it should be dismissed pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001 with costs. The Respondent also seeks dismissal of the application in a case.
Background
The Applicant is a citizen of Malta who immigrated to Australia with his family in 1981 when he was a four year old child. He returned to Malta on two occasions, once for several weeks in 1984 and on another occasion for approximately three years from 1985 to 1988. Since his last arrival in Australia in approximately 1988, the Applicant has not departed Australia.
In late 2004, the Applicant was convicted of two counts of attempted incest against his step-daughter. Further, in 2005, the Applicant was convicted of the rape of his ex-de facto partner and he was sentenced to prison for nine years and three months. This sentence was subsequently reduced on appeal to seven years and six months with a non-parole period of five years.
On 20 May 2010, the Applicant’s (Class BF) transitional (Permanent) visa (‘the visa’) was cancelled. On 17 August 2010 the decision was set aside by the Administrative Appeals Tribunal (‘the Tribunal’). On 19 July 2001, the decision was affirmed by the Federal Court of Australia.
On 14 February 2012, the then Minister for Immigration and Citizenship personally cancelled the Applicant’s visa pursuant to s.501A(2) of the Act on character grounds.
On 16 February 2012, as a result of the Minister cancelling the Applicant’s visa under s.501A, the Applicant was taken into immigration detention at the Maribyrnong Immigration Detention Centre in Victoria. He has been in immigration detention since that time. On 31 March 2012, the Applicant married an Australian citizen. On 23 June 2012, a child was born of that relationship.
On 27 November 2014, whilst in immigration detention, the Applicant applied for a protection (Class XA) visa. The application was based on the grounds that because he was a convicted child sex offender, the Applicant believed he would be “attacked and seriously harmed” if he was to be returned to Malta and further, that the applicant suffered from diabetes and depression and that he would be homeless if he was to be returned to Malta.
The Applicant’s application for a protection visa was refused by a delegate of the Respondent on 28 January 2015. On 4 February 2015, the Applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision. On 7 May 2015, the then Refugee Review Tribunal affirmed the decision of the delegate to refuse to grant the visa.
On 11 June 2015, the Applicant applied to the Court for review of the decision of the then Refugee Review Tribunal. In August 2015, the Applicant was transferred from immigration detention at the Maribyrnong Immigration Detention Centre in Victoria to the immigration detention centre on Christmas Island. On 14 July 2016, the Court dismissed the judicial review application of the Applicant and ordered the Applicant to pay costs.
On 25 July 2016, the Applicant appealed the decision of the Court of 14 June 2016 to the Federal Court of Australia. At around that time, the Applicant, who had been in immigration detention centre on Christmas Island, was transferred to an immigration detention centre at Yongah Hill in Northam, Western Australia. On 3 March 2017, the appeal to the Federal Court of Australia was dismissed with costs.
At some time after August 2016, the Applicant was returned from Western Australia to immigration detention on Christmas Island where he remained, at least to the date of the hearing in these proceedings.
The Data Breach
In February 2014, a routine report released on the website of the Department of Immigration and Border Protection (‘the Department’) unintentionally enabled access to some personal information about people who were in immigration detention in Australia on 31 January 2014 (‘the data breach’).
The Applicant was obviously in detention on that date. In response to the data breach, he was sent a letter dated 12 March 2014 by the Department advising that:-
“The department will assess any implications for you personally as part of its normal processes. You may also raise concerns you have during these processes.”
On 24 November 2016, the Applicant wrote to the Respondent, relevantly, as follows:-
“Dear Minister, on 12 March 2014, I received an “Apology Letter” from Martin Bowles PSM, Secretary of Your Department, the Department of Immigration and Border Protection, regarding the Exposure of My Personal Information on the Department’s Website in February 2014, along with another 9,257 asylum seekers, now known as the ‘DATA BREACH’.
I Hereby Request to start an assessment under the International Treaties Obligations Assessment (“ITOA”) in accordance with the Procedures Advice Manual (“PAM”).
Anticipating Your Kind response in regard to this matter.”
On 20 December 2016, the Department responded to the Applicant’s correspondence of 24 November 2016 advising, relevantly, as follows:-
“...
At the time of the unintentional release of your personal information on the Department of Immigration and Border Protection’s (the Department) website in February 2014, known as the data breach, you were able to make a valid application for a permanent protection (subclass 866) visa (PPV) to assess any claims you may want to raise. I understand that you made an application for a PPV on 27 November 2014 which was refused by the Department on 28 January 2015 as you were found not to engage Australia’s protection obligations. On 4 February 2015, you appealed this decision to the Refugee Review Tribunal who affirmed the department’s decision to refuse you a PPV on 8 May 2015.
As you were able to raise any claims you may have in relation to the data breach through this process, an International Treaties Obligations Assessment (IOTA) is not available to you. As advised in the letter you attached from the former Secretary of the Department, Mr Martin Bowles, you have had the implications of the data breach assessed through the normal process, which in your circumstances was a PPV application.
I understand that you are seeking judicial review of the RTTs decision at the Full Federal Court of Australia. If this matter is finalised not in your favour, you will have no lawful right remain and will be expected to depart Australia. You can request voluntary removal at any time. If you want to cooperate with your removal, you should speak with your case manager of your intentions. If you decide not to cooperate once your judicial review is finalised, the Department will commence arrangements for your involuntary removal from Australia as soon as reasonably practicable.”
The Applicant complains to the Court that asylum seekers affected by the data breach were notified of the commencement of ITOAs, yet the Applicant’s request for an ITOA was refused. The Applicant relies upon affidavits of evidence filed 11 January 2017, 27 March 2017, 8 May 2017, 8 June 2017 and 28 September 2017. The Applicant also relies upon submissions filed on 2 March 2017, 26 September 2017 and 12 October 2017.
The Applicant also complains to the Court as to his being detained at a place not of his choosing. To that end he seeks the interlocutory relief earlier described. The Court’s consideration of that part of the application is set out in the following paragraphs.
The Respondent relied upon an affidavit affirmed by Mr Lath Reardon on 5 June 2017. Mr Reardon is employed as the Superintendent of the Detention Placement Section, Detention Operations Branch in the Australian Border Force which is part of the Department of Immigration and Border Protection. In that role, Mr Reardon has responsibility for managing the placement and movement of persons in immigration detention across the national network of detention facilities.
In his affidavit of evidence, Mr Reardon set out the placement history of the Applicant as follows:-
a)On 5 July 2010, the Applicant was detained at Maribyrnong Immigration Detention Centre until 17 August 2010;
b)On 16 February 2012, the Applicant was detained at Maribyrnong Immigration Detention Centre until 28 August 2015;
c)On 28 August 2015, the Applicant was detained at Christmas Island Immigration Detention Centre until 11 August 2016;
d)On 11 August 2016, the Applicant was detained at Yongah Hill Immigration Detention Centre until 13 January 2017;
e)On 13 January 2017, the Applicant was detained at Christmas Island Immigration Detention Centre where the Applicant resided at the time of Mr Reardon affirming his affidavit.
The Applicant is currently assessed by the detention service provider as “high risk”. There was no current capacity at the time of the hearing to accommodate the Applicant as a high risk detainee on the mainland in a facility appropriate for his risk rating. There are only four detention facilities designated to accommodate “high risk” detainees; they are Villawood Immigration Detention Facility, Sydney; Maribyrnong Immigration Detention Centre, Melbourne; Perth Immigration Detention Centre, Perth; and North West Point Immigration Detention Centre, Christmas Island.
The place where a person in immigration detention is to be detained, is a matter for the Respondent and his officers.[1]
[1] NAFC v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587, 22 (‘NAFC’).
The Court has power under s.256 of the Act to make orders to ensure a person in detention has access to reasonable facilities to conduct legal proceedings.[2] The reasonableness of the facilities to be provided for the purposes specified in s.256 of the Act is a question to be determined by the making of a value judgment in the light of all the facts.[3] There is no evidence before the Court that the Applicant has been unable to avail himself of reasonable facilities in detention. He has been able to properly conduct a raft of legal proceedings, and is clearly able to articulate his position and provide evidence in support of his many applications. I am satisfied that the Applicant has been afforded procedural fairness in his ability to participate, in a meaningful way, in these proceedings. He has filed and served his application and application in a case, many affidavits of evidence on which he relies, and submissions and other material. His presence on Christmas Island has not impeded his proper conduct of these proceedings. The Applicant is able to access telephones and computers, including internet and social media facilities. His health issue and dietary needs are managed appropriately. He has the assistance of his personal officer in respect of any difficulties he might encounter in liaising with his legal representatives. There is a video link facility at Christmas Island and it was available to be used by him for the proper conduct of the hearing which included further oral submissions. The Applicant’s application for judicial review filed in the Federal Circuit Court was heard by video link from Christmas Island on 12 April 2016, and the appeal from that decision was heard by video link from Yongah Hill on 23 November 2016. The Applicant attended the handing down of the Federal Court decision by video link from Christmas Island on 3 March 2017. This leads the Court to conclude that his application in a case and interlocutory application should be dismissed insofar as the Applicant sought to rely upon s.256 of the Act.
[2] AZT15 v The Minister for Immigration & Border Protection [2017] FCA 191,52.
[3] NAFC, 53.
The ITOA
The Court accepts the submissions of the Respondent that the Court does not have jurisdiction to undertake judicial review of the officer’s decision to refuse a request for an ITOA.
There is no evidence before the Court that there has been any substantive decision or personal procedural decision made by the Respondent concerning whether to process the Applicant’s ITOA request.[4] Thus, the Respondent’s statutory non-compellable powers were not engaged and the decision had no statutory basis. It therefore did not attract procedural fairness.[5] Accordingly, the Court does not have jurisdiction to undertake judicial review of the decision made by the officer on 20 December 2016.
[4] AAG15 v The Minister for Immigration [2017] FCCA 328, 11.
[5] Minister for Immigration and Border Protection and SZSSJ; Minister for Immigration and Border Protection and SZTZI [2016] HCA 29, Plaintiff S10-2011 v Minister for Immigration & Citizenship [2012] HCA 31, 4 & 50 per French CJ and Kiefel J.
The Applicant had the opportunity to make submissions as to the implications upon his personal circumstances of the data breach when he participated in a hearing before the then Refugee Review Tribunal.
There is no independent obligation on the part of the Respondent to carry out an ITOA assessment where the Tribunal has fully considered all of the matters in relation to the Applicant, including the consequences of the data breach.[6] The Applicant cannot succeed in an argument that he was denied procedural fairness by the officer refusing his request for an ITOA.[7]
[6] SZVEY v Minister for Immigration and Border Protection [2015] FCA 394, 15-16.
[7] DZAEH v Minister for Immigration and Border Protection [2016] FCA 54, 31-33.
Even if procedural fairness was owed to the Applicant, there is no arguable basis upon which it can be said that procedural fairness was denied in relation to the impact of the data breach on the Applicant’s circumstances. As submitted by the First Respondent, the Applicant was able to give evidence and present arguments to a delegate of the Respondent and to the then Refugee Review Tribunal about his protection claims, including his claim that the data breach meant that he faced a real chance of serious harm or a real risk of significant harm should he return to Malta. The Applicant was afforded the opportunity to raise any concerns he had about the implications of the data breach for him personally as part of the protection visa application review process, and they were taken into account in considering whether the Applicant met the criteria for the grant of a protection visa. Furthermore, this is a matter which has already been dealt with by the Court and by Justice Siopis in the Applicant’s appeal of the decision of the Court to the Federal Court of Australia in his Honour’s decision handed down on 3 March 2017.
No conduct preparatory to the making of the decision to remove under s.198(6) of the Act
The Court is satisfied that the decision to refuse the ITOA request was not conduct preparatory to making a decision in relation to the removal of the Applicant under s.198(6) of the Act. The officer’s refusal to conduct a non-statutory process is qualitatively different from a decision by the Department to inform an applicant by letter that no further consideration would be given to Australia’s protection obligations toward him.
The Court refers to the decision of Judge McNab made 14 February 2017 in AAG15 v Minister for Immigration [2017] FCCA 328 wherein his Honour had before him the same issue, namely, an application involving the officer’s refusal to consider an applicant’s request for an ITOA and in similar factual circumstances. As in these proceedings, the Court was therein referred to the High Court decision of Minister for Immigration and Border Protection and SZSSJ; Minister for Immigration and Border Protection and SZTZI [2016] HCA 29. His Honour said in paragraph 11 of that decision:-
“In this case there is no evidence before the court that there has been any substantive decision made by the Minister and there has been no personal procedure decision made by the Minister whether to process an ITOA request. That is contradistinction to the situation referred to in paragraph 56 of the High Court decision.”
And, further, in paragraph 12:-
“I am not persuaded that the decision to refuse the ITOA request was conduct preparatory to making a decision as to the applicant’s removal under section 198(6) of the Act.”
His Honour concluded that no arguable case for the relief claimed had been raised. For reasons of judicial comity, I am obliged to follow AAG15 v Minister for Immigration [2017] FCCA 328, unless I am satisfied that it is plainly wrong. I am not satisfied that it is plainly wrong, so I do follow it.
The Court has determined in respect of these proceedings that the interlocutory application should be dismissed and that the substantive application does not raise an arguable case for a grant of the final relief sought, and thus should also be dismissed. A costs order shall follow the dismissal.
Application in a case filed 26 September 2017
The application in a case filed 26 September 2017, went to the Applicant’s assertion that Victoria Legal Aid needed certain information from him, and to obtain instructions from him, prior to 6 October 2017. This date was prior to the date upon which the Applicant’s application filed 11 January 2017 had been fixed for hearing. The purpose of the bringing of the application in a case was to secure the Applicant’s attendance in Melbourne prior to 6 October 2017. The Applicant indicated during the hearing of these proceedings on 12 October 2017, that his application in a case of 26 September 2017 had no utility and was of no ongoing concern to him, as Victoria Legal Aid had extended the time in which he was required to provide them with necessary material for it to consider, whether or not it would proceed to fund litigation in family law proceedings (which might be instituted in the Court) on his behalf. The application was accordingly dismissed on 12 October 2017.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 20 December 2017
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