BNW15 v Minister for Immigration
[2017] FCCA 1737
•3 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1737 |
| Catchwords: MIGRATION – Judicial review – International Treaties Obligation Assessment process – data breach – whether normal Departmental process used – whether denial of procedural fairness – whether finding based on no material evidence – nature of power to remove applicant from Australia – whether representation that executive power of the Commonwealth would be used – whether error established. |
| Legislation: 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees Constitution (Cth), s.61 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Migration Act 1958 (Cth), ss.46A(2), 48B, 195A, 197C, 198, 417, 474, 476 |
| Cases cited: AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224 BTA15 v Minister for Immigration & Ors [2017] FCCA 417 | ||
| Applicant: | BNW15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 352 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 May 2017 |
| Date of Last Submission: | 1 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 3 August 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondents: | Mr PJ Corbould |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 352 of 2015
| BNW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks an injunction and declarations variously directed to the first respondent, the Minister for Immigration & Border Protection (“Minister”) or the second respondent, the Secretary of the Department of Immigration and Border Protection (“Secretary” and “Department” respectively) arising out of the inadvertent disclosure by the Department (then the Department of Immigration and Citizenship), in February 2014 of personal information of persons, including the applicant, in immigration detention on 31 January 2014 (“Data Breach”).
Pursuant to orders made by a Registrar of the Court on 14 October 2015 a Court Book (“CB”) was filed and served by the Minister and the Secretary.
Factual and procedural background
The factual and procedural background to this matter is as follows:
a)the applicant is a citizen of Vietnam who was born on 15 September 1988. He arrived in Australia on 22 June 2010 as an illegal maritime arrival: CB 40 and 313;
b)on 28 January 2011 the applicant requested a Refugee Status Assessment (“RSA”) and on 27 April 2011 an officer of the Department found that the applicant was not someone to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“Refugees Convention”): CB 39-59 and 75-86;
c)on 13 May 2011 the applicant applied for an Independent Merits Review (“IMR”) of the RSA: CB 87-90, and on 30 June 2011 the IMR reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention: CB 91-115 (“IMR Recommendation”);
d)on 22 December 2011 an officer of the Department (“Assessor”) completed an International Treaties Obligations Assessment (“ITOA”) in relation to the applicant, and found that Australia did not have protection obligations to the applicant under the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”): CB 122-136;
e)on 28 May 2012 the applicant applied to this Court (then the Federal Magistrates Court of Australia) for judicial review of the IMR Recommendation: CB 138-142. On 19 October 2012 the Court dismissed the applicant's application with costs: DZADN v Minister for Immigration & Anor [2012] FMCA 1009; reproduced at CB 143-150;
f)by letter dated 3 December 2012 the applicant requested that the Minister exercise his power under s.46A(2) of the Migration Act 1958 (Cth) (“Migration Act”) to allow the applicant to make a valid visa application: CB 151-153;
g)in February 2014 some personal information about the applicant was released in the Data Breach, and by letter dated 12 March 2014 (“12 March 2014 Letter”) the Department wrote to the applicant as follows:
In February 2014 a routine report released on the department's website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014.
This information was accessible online for a short period of time before it was removed from the department's website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.
We deeply regret inadvertently allowing potential unauthorised access to your personal information.
The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again.
The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
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.
If you would like to seek more information about the incident, talk to your case manager.
CB 191;
h)on 5 September 2014 an officer of the Department wrote to the applicant in relation to the Data Breach, advising that the Department would undertake a further ITOA (“Further ITOA”) and inviting him to put any concerns regarding the impact of the Data Breach on his case to the Department: CB 192-194. The applicant responded to the Department with an undated two page letter: CB 195-196 and a statement dated 10 February 2015: CB 197-198, together with a variety of attachments: CB 197-243;
i)by letter from the Department dated 19 February 2015, the applicant was invited to attend an interview with an officer of the Department (“Further Assessor”) to discuss his claims and to provide comment on any adverse information in relation to the Further ITOA: CB 244-247;
j)on 11 March 2015 the applicant, assisted by a Vietnamese/English interpreter, attended an interview and provided additional documents in relation to the Further ITOA: CB 248-312;
k)on 2 July 2015 the Further ITOA was finalised with a finding that Australia's non-refoulement obligations were not engaged. The applicant was advised of the outcome of the Further ITOA by letter from the Department dated 2 July 2015: CB 312-348;
l)on 27 July 2015 the applicant commenced these proceedings;
m)by letter dated 31 July 2015 the Department advised the applicant that his request for Ministerial intervention under s.46A(2) of the Migration Act was assessed against the Minister’s Guidelines for the consideration of post review protection claims and was not referred to the Minister for consideration: CB 349-350;
n)on 14 October 2015 a Registrar of the Court made directions and listed the matter for hearing at 10.15am on 20 June 2016;
o)on 2 September 2015 the Full Court of the Federal Court delivered judgment in SZSSJ & Ors v Minister for Immigration & Border Protection & Ors (No 2) [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 (“SZSSJ No 2”);
p)on 11 March 2016 the High Court granted special leave to the Minister to appeal from the judgment in SZSSJ (No 2);
q)on 18 April 2016 the Court made orders by consent vacating a hearing listed on 20 June 2016 and directing that this matter be relisted for hearing following determination of the Minister’s appeal from the judgment in SZSSJ (No 2);
r)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) 333 ALR 653 (“SZSSJ-High Court”);
s)on 10 August 2016 the Court relisted this matter for final hearing on 16 November 2016 and made directions to prepare the matter for hearing on that date;
t)the applicant filed an “Amended Application” on 10 August 2016 and a “Further Amended Application” on 15 August 2016;
u)the matter was ultimately adjourned through to a further directions hearing on 20 February 2017 when the Court made an order that the applicant file and serve by 20 March 2017 any further amended application and any further affidavits upon which he intends to rely and listed the matter for hearing on 1 May 2017;
v)on 22 February 2017 the applicant filed another Further Amended Application (“Second Further Amended Application”); and
w)save for an affidavit filed with the originating application on 27 July 2015, and which annexed the Further ITOA and the 12 March 2014 Letter, the applicant has not filed any further affidavits or any outline of submissions.
Grounds of the Second Further Amended Application and final orders sought
The Second Further Amended Application contains grounds 1 to 4 which are as follows:
1. The Minister has still not undertaken the normal departmental process promised and commenced by the Secretary's letter of 12 March 2014 and as detailed in the High Court of Australia's judgment of MIBP v SZSSJ; MIBP v SZTZI [2016] HCA 29 at [52] to [55].
2. The applicant has been denied procedural fairness in that the consideration of the Minister's exercise of his personal power under s48B, 195A or 417 has not proceeded notwithstanding the commencement of consideration of that process by the Secretary's letter dated 12 March 2014 and as detailed in the High Court of Australia's judgment in the matters of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [52] to [55].
3. The reviewer denied the applicant procedural fairness by failing to warn him that it would not apply the assumption that all of the appellant's personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm as held by the High court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [91].
4. The ITOA reviewer erred in making a finding based on no material evidence.
Particulars
a) The ITOA reviewer did not have access to my personal information that was disclosed on the department's website from 10 to 19 February 2014;
b)I had no opportunity to access my information that was disclosed on the department's website so I had no opportunity to comment on and verify the information that was disclosed; and
c)The ITOA reviewer made a finding based on no evidence.
(Transcribed from the Second Further Amended Application without amendment).
The final orders sought by the applicant are as follows:
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.
A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 of the Act other than according to law and consistently with the declarations in orders 2-4.
2. A declaration that it is not reasonably practicable for the Respondent, his officers or agents, to remove the applicant from Australia within the meaning of s 198 of the Migration Act until this matter finally determined on the obligations under the 12 March 2014 letter from the Second Respondent in respect of the applicant, according to law.
3. A declaration that the representation that an assessment of any implications for the applicant personally by the Departmental Secretary 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 him by s61 of the Constitution will be used in favour of the applicant.
4. Costs.
(Transcribed from the Second Further Amended Application without amendment).
Consideration
Jurisdiction
This Court has jurisdiction in this matter on the basis that:
a)the originating application filed on 27 July 2015 and the Second Further Amended Application filed on 22 February 2017 invoke the Court’s jurisdiction under s.476 of the Migration Act in relation to both the Further ITOA and a future decision or other action by the Minister or an officer under the Migration Act;
b)the applicant seeks to review conduct preparatory to a decision by the Minister to consider the exercise of his dispensing powers under ss.48B, 195A or 417 of the Migration Act: SZSSJ-High Court at [66] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; and
c)the applicant also seeks to review conduct preparatory to a decision as to whether the applicant is to be removed from Australia under s.198 of the Migration Act: Migration Act, s.474(2) and (3)(h); SZSSJ v Minister for Immigration & Border Protection & Anor [2014] FCAFC 143; (2014) 231 FCR 285 at [39]-[40] per Perram, Jagot and Griffiths JJ.
Ground 1
Ground 1 does not identify the “normal departmental process” allegedly promised but not undertaken by the 12 March 2014 Letter. The applicant refers to SZSSJ-High Court at [52]-[55] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, but those paragraphs need to be read in context, and in conjunction with the paragraphs that follow: thus in SZSSJ-High Court at [52]-[57] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court observed as follows:
52 Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.
53 First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
54 Second, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
55 Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.
56 Here, on the unchallenged finding of the Full Court, the Minister has made a personal procedural decision to consider whether to grant a visa under s 195A and s 417 of the Act or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the Data Breach. The ITOA processes have been undertaken by officers of the Department to assist the Minister in that consideration. An ITOA is accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act.
57 That characterisation of an ITOA, as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417, informs the resolution of the issue whether procedural fairness was required in the process. The same characterisation also informs the resolution of the issue whether the Federal Circuit Court had jurisdiction.
The applicant had his claims based on the Data Breach assessed in the Further ITOA process, as did the visa applicants in SZSSJ: see SZSSJ-High Court at [9] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. That process is appropriately regarded as a “normal process” of the Department: SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 at [32] per Griffiths J (“SZWAJ”). The applicants in SZSSJ-High Court had received the same 12 March 2014 Letter as the applicant received in this matter. In SZSSJ-High Court at [56] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court stated that an ITOA was properly characterised as “a process” undertaken by an officer of the Department. There is no suggestion that the High Court considered that the ITOAs conducted by officers of the Department were not part of the Department’s “normal processes”, or that a visa applicant who had received an ITOA was also entitled to some other Departmental assessment in relation to the Data Breach. As observed in SZWAJ at [32] per Griffiths J an ITOA is a “normal process” for a person in the same circumstances as the applicant where protection obligations have previously been assessed by a delegate and the Tribunal before the occurrence of the Data Breach.
The 12 March 2014 Letter made no representation that any particular process would be followed. The applicant had his claims about the effects of the Data Breach on him considered by an officer of the Department under the Further ITOA, and that is part of a relevant normal process by the Department for the purposes of assessing the effect of the Data Breach.
For the above reasons ground 1 is not made out.
Ground 2
In ground 2 reliance is placed upon SZSSJ-High Court at [56] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ where the High Court accepted that the Minister had made a personal procedural decision to consider whether to grant a visa under ss.195A and 417 of the Migration Act or to lift the bar under s.48B of the Migration Act in the case of each applicant for a protection visa affected by the Data Breach.
The High Court’s characterisation in SZSSJ-High Court of an ITOA as a process undertaken by an officer of the Department under and for the purposes of ss.48B, 195A and 417 of the Migration Act does not lead to a conclusion that the Minister was obliged to make a substantive decision to grant a visa under ss.195A or 417 of the Migration Act, or to lift the bar under s.48B. The High Court in SZSSJ-High Court at [53] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, referring to the procedural decision whether to make a substantive decision, and the substantive decision to grant a visa or lift the bar, observed that “The Minister has no obligation to make either decision”.
The Minister is therefore under no duty to make a substantive decision under ss.48B, 195A and 417 of the Migration Act, even though he made a personal procedural decision to consider whether to make a decision under ss.48B, 195A and 417 of the Migration Act. There can therefore be no denial of procedural fairness if the Minister chooses not to make a substantive decision under any of those provisions: SZSSJ-High Court at [53] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. Whether or not the Minister decides to exercise any of his powers under those provisions in any particular case will be determined by the outcome of the ITOA in relation to that person. In this case the Further Assessor concluded that Australia does not have non-refoulement obligations to the applicant as a result of the Data Breach. It is to be inferred that, as the Minister did not subsequently exercise any of his personal powers under ss.48B, 195A or 417 of the Migration Act in relation to the applicant, he decided not to do so in light of the Further Assessor’s conclusions in the Further ITOA.
It follows from the above that ground 2 is not made out.
Ground 3
The applicant’s assertion that he was denied procedural fairness because of a failure by the Further Assessor to warn the applicant that the Further Assessor would not assume that the applicant’s personal information had been accessed by those from whom he feared persecution or harm is unfounded as the Further Assessor did proceed to assess the applicant’s claims on the assumption that the authorities in Vietnam, and any other persons from whom he feared harm, may have accessed the information released by the Data Breach: CB 333. In those circumstances it cannot be said that, “[s]ensibly interpreted and applied in … context”: SZSSJ-High Court at [91] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, there was any denial of procedural fairness by the Further Assessor in the making of the Further ITOA: SZSSJ-High Court at [92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; BTA15 v Minister for Immigration & Ors [2017] FCCA 417 at [63]-[65] per Judge Lucev.
It follows from the above that ground 3 is not made out.
Ground 4
In relation to ground 4:
a)the applicant contends that neither he nor the Further Assessor had access to his personal information that was disclosed in the Data Breach and that the Further Assessor therefore made a finding based on no evidence;
b)in the ITOA it was found that the information disclosed in the Data Breach included names, dates of birth, nationality, gender, details of detention (reason and where) and if any other family members were also in detention: CB 333. Although the Further Assessor did not disclose the source of that information, there clearly was evidence in support of that uncontroversial finding: see in particular the 12 March 2014 Letter at CB 191; and
c)it was not necessary for the Further Assessor to have access to the applicant's personal information that was disclosed in the Data Breach in order to make its finding about the information that was disclosed. The applicant's complaint that he had no opportunity to comment on and verify the information that was disclosed in the Data Breach provides no basis for the allegation that the ITOA findings were based on no material evidence, particularly so where the ITOA findings were based on the fact of the disclosure which actually occurred, and an assumption that the information released by the Data Breach may have been accessed by both the Vietnamese authorities and others from whom the applicant said he feared persecution or harm.
It follows from the above that ground 4 is not made out.
Other possible bases for error in the Further ITOA – matters in the prayers for relief
Prayer 1
The first prayer for relief (“Prayer 1”) seeks an injunction restraining the Minister from removing the applicant under s.198 of the Migration Act “other than according to law and consistently with the declarations in orders 2-4”.
The Court requires strong evidence of a real threat of violation of the law before granting an injunction against officers of the Commonwealth: Plaintiff M61/2010E v The Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 at [8] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. There is no evidence in the present case to indicate that an injunction in these terms is warranted.
Additionally, absent the references to “the declarations in orders 2-4”, the proposed injunction would do no more than require the Minister to comply with the law. A quia timet injunction will not be granted in the absence of evidence of some likely illegal future act which violates the applicant’s rights: Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 at [13] per Finkelstein J.
Finally, for the reasons set out below, it is not appropriate to make the declarations sought in relation to Prayers 2 and 3, and it is therefore not appropriate in any event for the Court to grant an injunction in the terms sought in Prayer 1.
Prayer 2
The second prayer for relief (“Prayer 2”) seeks a declaration that it is not reasonably practicable to remove the applicant from Australia under s.198 of the Migration Act until final determination of the obligations under the 12 March 2014 Letter, according to law. The declaration sought in Prayer 2 appears to be an attempt to determine the decision as to reasonable practicability of removal reposed in an officer of the Department under s.198 of the Migration Act, without regard to the requirements of s.197C of the Migration Act.
Section 198(6) of the Migration Act provides that an officer must remove, as soon as reasonably practicable, an unlawful non‑citizen who meets the requirements of paragraphs (a) to (d) of s.198(6) of the Migration Act. A decision that the applicant be removed pursuant to s.198(6) of the Migration Act:
a)does not require that an applicant have an opportunity to be heard before such a decision is made; and
b)requires only the satisfaction of the statutory criteria.
The officer is only required to determine if the applicant satisfied the statutory criteria in s.198(6) of the Migration Act. In any event, s.197C of the Migration Act provides that, for the purposes of s.198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s.198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
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 further assessment of non-refoulement obligations would not involve any error of law.
For the above reasons no declaration as sought in Prayer 2 should issue.
Prayer 3
The third prayer for relief (“Prayer 3”) 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.
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.
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 Further 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 Further ITOA is) “will be used in favour of the applicant”. Rather, the12 March 2014 Letter says that the implications for the applicant will be assessed as part of the Department’s “normal processes”, which, for reasons set out above includes the Further ITOA: see [8]-[9] above;
b)in SZWCP v Minister for Immigration& Anor [2015] FCCA 802 at [3] per Judge Street, and followed in AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224 at [61] per Judge Smith, 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 Further 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 the applicant’s grounds or prayers for relief; and
c)even if the 12 March 2014 Letter did convey the representation alleged, there would be no utility to the declaratory relief sought in Prayer 3. A declaration in the terms sought would have no legal significance, as no estoppel could ordinarily alter the scope, content or criteria for the exercise of the relevant public powers and functions: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 17-18 per Mason CJ.
For the above reasons no declaration as sought in Prayer 3 should issue.
Conclusion and orders
The Court has concluded that the applicant has not established any error in the Further ITOA, and that the applicant’s application, as finally manifested in the Second Further Amended Application, must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 3 August 2017
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