BNC15 v Minister for Immigration

[2017] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNC15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 2094

Catchwords:
MIGRATION – International Treaties Obligation Assessment – Australia’s non-refoulment obligations – whether the applicant was denied procedural fairness – data breach – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.197C, 198, 198AD, 336E

Privacy Act 1988 (Cth)

Cases cited:

BTA15 v Minister for Immigration & Border Protection [2017] FCCA 417

BTA15 v Minister for Immigration & Border Protection [2017] FCA 422

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

Applicant: BNC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent: T. DEVENDRAN, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number: PEG 347 of 2015

Judgment of: Judge Smith

Hearing date: 8 August 2017

Date of Last Submission: 8 August 2017

Delivered at: Perth

Delivered on: 8 August 2017

REPRESENTATION

The applicant appeared in person via video-link.

Solicitors for the First and Second Respondents: Mr P J Corbould, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first and second respondents’ costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 347 of 2015

BNC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for relief in respect of, or in relation to an assessment of refoulement obligations owed by Australia to the applicant, known as an International Treaties Obligations Assessment (ITOA).  The ITOA was made by an officer of the Department of Immigration and Border Protection (Department) on 15 July 2015. 

2. The relevant factual background to this application has been described at [2] to [10] in the written submissions filed by the first and second respondents, which I set out below: 

   2.The applicant is a citizen of Fiji who was born on 18 June 1976. He arrived in Australia on 17 March 1990 as the holder of a Class UA, subclass T80 visa. On 4 January 1994 the applicant was granted a Religious Worker (Class UA, subclass 428) visa and on 26 May 2004 he was granted a Partner (Class BS, subclass 801) visa.

   3.The applicant's Partner visa was cancelled under s 501 of the Migration Act 1958 (Cth) (the Act) on 10 March 2010 following the applicant's conviction of various offences on 24 March 2005.

   4.Following his release from prison the applicant was detained as an unlawful non-citizen on 31 May 2012 and has remained in immigration detention since that date.

   5.On 13 June 2012, the applicant applied to the Department for a Protection (Class XA) visa (protection visa). The application was refused by a delegate of the former Minister for Immigration and Citizenship on 9 August 2012 and on 14 September 2012 the delegate's decision was affirmed by the former Refugee Review Tribunal (the Tribunal).

   6.On 27 September 2012 the applicant filed an application in the Federal Magistrates Court (No PEG225/2012) for judicial review of the Tribunal's decision. The application was dismissed by Judge Burchardt on 14 May 2013.

   7.On 24 May 2013 the applicant appealed from Judge Burchardt's judgment to the Federal Court (No WAD161/2013). The appeal was dismissed by Justice Siopis on 9 August 2013.

   8.On 6 September 2013 the applicant applied to the High Court of Australia (No P44/2013) for special leave to appeal and on 13 December 2013 Justices Kiefel and Keane dismissed the application.

   9.On 29 January 2014 an officer of the Department conducted a pre-removal clearance assessment in relation to the applicant and found that his removal to Fiji did not raise concerns relating to Australia's non-refoulement obligations.

   10.In February 2014 some personal information about the applicant was released in the data breach and by letter dated 12 March 2014 the second respondent wrote to the applicant expressing deep regret for the data breach. The 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.

   (Emphasis in original and citations omitted) 

3. This application was filed on 23 July 2015 and contains 19 grounds of review.  Those 19 grounds are in precisely the same form as many other cases that have been heard and determined in this Court, and some of which have been determined also on appeal to the Federal Court.  It is for that reason that, having regard to the relevant factual differences, of which there are few, I am able to give my reasons in this case relatively briefly by reference to one of the more recent judgments of this Court; namely, the decision of Judge Lucev in BTA15 v Minister for Immigration & Border Protection [2017] FCCA 417 (BTA15).  That decision was appealed to the Federal Court where Gilmour J found that there was no error in Judge Lucev’s decision: see BTA15 v Minister for Immigration & Border Protection [2017] FCA 422.

Grounds 1-7

1. Grounds 1 to 7 of this application are set out at [9] of the decision in BTA15, which I also set out below:

   1.The applicant is a citizen of Fiji.

   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 completed.

   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 APP 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.

2. As Judge Lucev said at [10] in BTA15:

   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.

3. For that reason, these grounds do not support the relief sought by the applicant in the proceedings.

Ground 8

1. Ground 8 is:

   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 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.

   (Emphasis in original)

1. Ground 8 is a mix of factual assertions and allegations about a breach of the Privacy Act1988 (Cth) and an alleged offence under s.336E of the Migration Act 1958 (Cth) (Act): see [12] of BTA15 and the cases cited there. 

2. Accordingly, there is nothing in ground 8 which supports the relief sought by the applicant and so it is rejected.

Ground 9

1. Ground 9 is an assertion that the Data Breach has caused the applicant to have a well-founded fear that his removal from Australia will involve a breach of Australia’s non-refoulement obligations.  That may well be the case, but as I have explained to the applicant, it is not the role of this Court to determine that issue.  The role of this Court is limited to determining whether or not there is some jurisdictional error that affects the exercise, or permission of exercise of power under, the Act.  For that reason, ground 9 is not made out.

Grounds 10-13

1. Grounds 10 to 13 are of a different nature.  They are (without alteration):

   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.

(Emphasis in original)

1. As Judge Lucev found at [20] in BTA15, the difficulty with these grounds is that the representation made in the letter to the applicant on behalf of the Department did not in fact contain the representation relied upon.  For that reason, the grounds are misconceived.  I would otherwise adopt [20] and [21] of his Honour’s reasons in BTA15, with which I agree.

Ground 14

1. Ground 14 contains an assertion concerning the beginning of the ITOA process, which may be accepted.  The second assertion in the ground however, is that because a previous ITOA was affected by a decision of the Full Court of the Federal Court, there is some error in this ITOA process.  The difficulty in this case, as it was in BTA15, is that there is no evidence of any previous ITOA process, and so the ground simply does not relate to the facts of this case.  For that reason, this ground too is rejected.

Ground 15

1. Ground 15 is that the delegate, which I take to be a reference to the assessor who made the ITOA decision, made a finding that non-refoulement obligations are not engaged in the applicant’s case.  That assertion too, may be accepted.  However, it is an uncontroversial fact that does not raise any error which can support the relief sought, and so has to be rejected as a basis for that relief.

Ground16

1. Ground 16, which appears to be the critical ground in the application, is in effect that the ITOA assessment was made in denial of procedural fairness.  The particulars of the ground include:

   i)the assessor did not disclose any of the information held by the Department to the applicant in relation to the Data Breach for comment;

   ii)the assessor, because he was an officer of the same Department that had committed the Data Breach, was actually biased and so could not make a proper decision in respect of Australia’s non-refoulement obligations; and

   iii)the ITOA process was not an appropriate and fair process for determining the applicant’s data breach.

2. It may be accepted that, because the ITOA process was conducted as a preliminary to the possible consideration by the Minister of the exercise of a power under the Act, there was an obligation to afford procedural fairness.  Indeed, that is part of the reasons for the decision of the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 (SZSSJ).  However, I do not see any denial of procedural fairness in this case. 

3. First, for the reasons given by Judge Lucev at [31] to [35] in BTA15 and on the facts of this case, I find that relevant information was given by the assessor to the applicant.  I note in particular that in SZSSJ, the High Court found that this had been done, and that the denial of procedural fairness, which was the basis for the Full Court of the Federal Court’s decision, was not made out on the material.

4. The element of bias was also rejected in the High Court in SZSSJ. I refer to Judge Lucev’s summary of the outcome of SZSSJ at [36] in BTA15, as well as his Honour’s reasoning from [37] to [40]. I agree that, on the facts of this case, there is no factual foundation for the assertion that the assessor had pre-judged this matter so that there was either a reasonable apprehension of bias or an actual bias in the decision-making. Finally, I also reject, for the reason given by Judge Lucev at [41] and [42] in BTA15, that the ITOA process was not a fair process in and of itself. 

Grounds 17-18

1. Grounds 17 and 18 are dealt with by Judge Lucev at [44] to [48] in BTA15 and I adopt those paragraphs.  There is nothing further that can be said in respect of them.

Ground 19

1. Ground 19, the last ground in this application, concerns the operation of ss.198 or 198AD of the Act, which concerns the removal of non-citizens from Australia. The difficulty, as Judge Lucev found in BTA15 at [50], is that the terms of s.197C of the Act clearly establish that any decision to remove the applicant under s.198 of the Act without further assessment of non-refoulement obligations would not involve an error of law. In addition, is the fact that the ITOA process itself was an assessment of non-refoulement obligations. Ground 19 therefore fails for both of those reasons.

Conclusion

1. I have considered the material for myself beyond the grounds raised by the applicant in these proceedings.  None of the grounds raised by the applicant supports the application for the relief for an injunction and declarations, and there is nothing in that material either which gives rise to any jurisdictional error or other error sufficient to warrant the grant of that relief.  All of that means that this application must be dismissed.

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

Associate: 

Date:       5 September 2017