BTA15 v Minister for Immigration & Ors
[2017] FCCA 417
•22 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTA15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 417 |
| Catchwords: MIGRATION – Judicial review – International Treaties Obligation Assessment process – data breach – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Constitution (Cth), s.61 Federal Circuit Court of Australia Act 1999 (Cth), s.15 Migration Act 1958 (Cth), ss.46A, 48B, 189, 195A, 197C, 198, 336E, 417, 474, 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 SZSSJ v Minister for Immigration & Border Protection & Anor [2014] FCAFC 143; (2014) 231 FCR 285 SZSSJ & Ors v Minister for Immigration & Border Protection & Ors (No 2) [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 |
| Applicant: | BTA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| Third respondent: | AUDREY FERNANDES |
| File Number: | PEG 398 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 February 2017 |
| Date of Last Submission: | 8 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 22 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First and Second Respondents: | Mr P R Macliver |
| For the Third Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the injunction issued on 2 February 2017, and continued in force on 8 February 2017 until further order of the Court, be discharged.
That otherwise the applicant’s applications for interlocutory and final relief be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 398 of 2015
| BTA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| AUDREY FERNANDES |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks an injunction and declarations arising out of the inadvertent disclosure by the Department of Immigration and Border Protection (formerly the Department of Immigration and Citizenship) (“Department”) of personal information of persons, including the applicant, in immigration detention (“Data Breach”).
Final orders sought
The final orders sought by the applicant are as follows:
* An Order that the decision of the Delegate (Third Respondent) be quashed.
* A writ of mandamus directed to the Minister and his Department requiring Him to determine My Application according to law.
1. An Injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the Applicant pursuant to s198 or s 198AD of the Act other than according to Law and consistently with the declarations in Order 2-4.
2. A Declaration that it is not reasonably practicable for the First Respondent, his officers or agents, to remove the Applicant from Australia within the meaning of s198 of the Migration Act until this matter is 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 Department Secretary (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 him by s61 of the CONSTITUTION OF AUSTRALIA will be used in favour of the Applicant.
4. A Declaration of the Secretary, his officers and agents, in undertaking the assessment identified in the 12 March 2014 representation is required to accord to the Applicant Procedural Fairness according to Law.
5. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the Decision of the Delegate and from removing Me from Australia.
6. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents from ever Detaining Me at the Christmas Island Immigration Detention Centre (CI IDC) off Western Australia near Indonesia.
7. The Minister for Immigration and Border Protection (First Respondent) pay the Cost of the proceedings.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicant is a citizen of Albania who was born on 19 December 1980. He arrived in Australia on 14 February 2013 using a fraudulent Italian passport: CB 12-18 and 135;
b)after being interviewed by a Department airport inspector on 14 February 2013 the applicant stated his real name and he presented an Albanian passport in that name: CB 1-11, 47 and 135-136;
c)the applicant was refused immigration clearance and detained under s.189(1) of the Migration Act 1958 (Cth) (“Migration Act”): CB 136;
d)on 14 March 2013 the applicant lodged an application for a Protection (Class XA) visa (“Protection Visa”) with the Department. The Protection Visa application was refused by a delegate of the Minister on 15 August 2013. The delegate’s refusal was affirmed by the former Refugee Review Tribunal (“Tribunal”) on 2 October 2013 (“Tribunal Decision”): CB 19−46, 135, 148 and 149;
e)on 1 November 2013 the applicant applied to this Court for judicial review of the Tribunal Decision, and on 20 November 2014 that application was dismissed by the Court: MZZVF v Minister for Immigration & Anor [2014] FCCA 2641 (“MZZVF”). The applicant appealed MZZVF, but discontinued his appeal on 30 March 2015: CB 203 and 264-265;
f)in February 2014 some personal information about the applicant was released in the Data Breach: CB 170;
g)by letter dated 12 March 2014 (“12 March 2014 Letter”) the second respondent, the Secretary of the Department (“Secretary”) wrote to the applicant concerning the Data Breach (at CB 170) and said 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.
h)on 14 July 2014 an officer of the Department wrote to the applicant in relation to the Data Breach, reiterating the substance of the 12 March 2014 Letter, and inviting the applicant to put any concerns regarding its impact on his case to the Department (“14 July 2014 Letter”): CB 174-175. The applicant’s migration agent responded to the Department with a submission dated 28 July 2014 (“Applicant’s July 2014 Submissions”): CB 176-198;
i)on 19 May 2015 the applicant and his migration agent were notified that the Department had commenced an International Treaties Obligations Assessment (“ITOA”) in order to assess whether the circumstances of the applicant’s case engaged Australia’s non-refoulement obligations. The applicant was advised that the Applicant’s July 2014 Submissions would be considered, and he was also invited to present any further information that he would like to have taken into consideration: CB 215-216 and 217-221;
j)by letter dated 9 June 2015 the third respondent, Audrey Fernandes, the ITOA assessor (“Assessor”) advised the applicant and his migration agent of concerns relating to his case, including matters arising from the Applicant’s July 2014 Submissions, and a response was received from the applicant’s migration agent on 23 June 2015: CB 227-235 and 236-241;
k)the ITOA was finalised on 19 August 2015 with a finding by the Assessor that Australia’s non−refoulement obligations were not engaged. The applicant was advised of the outcome of the ITOA by letter from the Assessor dated 19 August 2015, and provided with a copy of the ITOA: CB 242-277;
l)on 28 August 2015 the applicant commenced the current proceedings in this Court for an injunction and declarations arising out of the Data Breach;
m)on 28 October 2015 the Court made directions to prepare the matter for hearing on a date to be fixed following determination of the Minister’s application for special leave to appeal, and any subsequent appeal, from the judgment of the Full Court of the Federal Court 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 – Federal Court”).
n)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”).
o)on 11 August 2016 the Court listed this matter for final hearing on 30 November 2016 and made directions to prepare the matter for hearing on that date;
p)on 23 August 2016 the applicant filed an amended application, but did not file an outline of submissions;
q)on 10 November 2016 the Court made orders by consent, vacating the hearing on 30 November 2016 and listing the matter for directions on a date to be fixed after 22 January 2017;
r)on 30 January 2017:
i)the Department gave notice to the applicant that, unless restrained by an injunction or other Court order, the Department would remove him from Australia on 6 February 2017; and
ii)the applicant filed a “Final Amended Application” and a “Request for Court Order” seeking an injunction to prevent his removal from Australia;
s)on 2 February 2017 the Court:
i)issued an injunction restraining the Minister and the Secretary, by themselves or by their Departments, officers, delegates or agents, from removing the applicant from Australia pending hearing of the application for final relief in this matter;
ii)made directions for the filing of written submissions by the parties; and
iii)listed the application, as it related to both the interlocutory and final relief sought, for hearing on 8 February 2017;
t)the applicant did not file submissions in accordance with the Court’s 2 February 2017 orders, but did send to the Court a letter headed “Submission” in which he asserted:
i)that he had been denied procedural fairness (or natural justice, both terms being used);
ii)that he was denied procedural fairness because the Minister, Secretary and Assessor “did not take into [account] relevant considerations”, but did not say what those relevant considerations were;
iii)that he was denied natural justice by being kept in detention for four years, and that the Minister, Secretary and Assessor failed in their duty to release him despite there being strong evidence that prolonged detention had had a dramatic impact on the health of detainees, and especially in his case;
iv)that a “judicial error” was made and he was denied procedural fairness; and
v)that he sought that the “Decisions … be quashed”, and that another decision be made according to law taking into consideration his prolonged detention because of the Data Breach and other factors including the impact on him;
u)the applicant’s “Submission” has been marked as Exhibit 1 in the proceedings;
v)the Minister and Secretary filed submissions on 8 February 2017 in accordance with the Court’s 2 February 2017 orders; and
w)at hearing on 8 February 2017 both the applicant and the Minister made submissions. The applicant’s submissions were very general in their nature, and did not add to the applicant’s written submissions to any degree. The Minister briefly outlined the nature of the Minister’s written submissions which did not depart from the content of the Minister’s written submissions.
ITOA
In the ITOA the Assessor considered the applicant’s claims that, on account of the Data Breach, he was at risk of serious or significant harm at the hands of:
a)the Albanian authorities;
b)individuals who had allegedly threatened him in the past;
c)criminal syndicates; and
d)foreign governments: CB 267 at [16].
The Assessor:
a)accepted the findings of the Tribunal that the applicant was not of interest to the Albanian authorities on account of his alleged involvement in a murder case and that he did not face a real chance of persecution or significant harm at the hands of the Albanian authorities: CB 271 at [41]-[42];
b)accepted that the Albanian authorities may be aware that the applicant had applied for refugee status in Australia but found no evidence to indicate that failed asylum seekers face persecution or significant harm on return to Albania: CB 271 at [43];
c)did not accept that, as a consequence of the Data Breach, the applicant will be targeted or face serious or significant harm at the hands of the Albanian authorities: CB 271-272 at [44];
d)in relation to individuals who had allegedly threatened the applicant in the past:
i)noted that the Tribunal accepted that the applicant was named in media reports with other individuals as being involved in an incident where two persons of a particular family were shot and killed; and
ii)did not accept that the applicant was targeted and shot at in November 2012, or that the family and relatives of the deceased persons or anyone else had targeted, or intended to target and harm, the applicant on account of a blood feud or the murders of the deceased: CB 272 at [45];
e)accepted country of origin information confirming the existence of blood feuds in Albania, but, given the Tribunal’s findings as to the credibility of the applicant’s claims about being targeted, did not accept that the applicant was of adverse interest to the family and relatives of the deceased persons prior to his departure from Albania: CB 272-273 at [48]-[49];
f)accepted that as a result of the Data Breach, persons in Albania, possibly with links to the deceased persons, may be aware of the applicant’s current residence and asylum claims in Australia, but did not consider it plausible that their knowledge would prompt them to seek and harm the applicant on return to Albania: CB 273 at [50]; and
g)considered the claim that the applicant will be targeted and harmed by criminal syndicates or organisations and foreign governments as a consequence of the Data Breach to be speculative and implausible: CB 273 at [53].
The Assessor 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 276 at [72] and CB 277 at [82].
Grounds of Final Amended Application
There are 22 grounds in the application. The grounds are set out and considered below: see [9]-[66] below. The Court notes that a least the first 19 grounds are identical (or practically identical) to grounds previously considered and dismissed by this Court in some of the cases discussed below.
Consideration
Jurisdiction
This Court has jurisdiction in this matter on the basis that:
a)the applicant’s original application filed on 28 August 2015 and the applicant’s “Final Amended Application” filed on 30 January 2017 invoke the Court’s jurisdiction under s.476 of the Migration Act in relation to both the ITOA by the Assessor 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 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: ss.474(2) and (3)(h) of the Migration Act; SZSSJ v Minister for Immigration & Border Protection & Anor [2014] FCAFC 143; (2014) 231 FCR 285 at [39]-[40] per Perram, Jagot and Griffiths JJ (“SZSSJ (No 1)-Federal Court”).
Grounds 1-7
Grounds 1-7 of the Final Amended application are as follows:
1. The applicant is a citizen of Albania.
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.
Ground 8
Ground 8 of the Final Amended 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 Final Amended 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: AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224 at [59] per Judge Smith (“AKR15”) 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. The reasoning in AKR15 at [59] per Judge Smith has been followed by this Court in subsequent judgments: 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”). 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, and in those circumstances it will 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 Final Amended 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 and CDM16 at [26]-[28] per Judge Driver, 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 (or, at least, not plainly wrong). 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 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 170, the terms of which are set out at [3(g)] 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’s third prayer for relief then 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 maybe 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 [44]-[48] 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, and followed in AKR15 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 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 10-13.
For reasons otherwise set out: see [28]-[43] 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 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 19 May 2015: CB 215; 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.
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 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.
Ground 16
Ground 16 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 those ordinary requirements. As in SZSSJ-High Court, no further disclosure of the matters surrounding the Data Breach was required by reason of the assumptions made in the applicant’s favour identified at CB 271 at [43] and CB 273 at [50]: SZSSJ-High Court at [90]-[92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
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 provided detailed submissions, through his then lawyers, running to some 23 pages, which addressed, amongst other things, the information disclosed in the Data Breach and its effect upon him if he were to return to Albania. Significantly, nothing in the Applicant’s July 2014 Submissions, or any other correspondence from the applicant, 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.
In circumstances where there is no foundation for finding that the Assessor did not bring an impartial and unprejudiced mind to the ITOA there can be no bias. 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.
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 usefully 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.
In the above circumstances, ground 16 is not made out.
Grounds 17-18
Grounds 17 and 18 of the 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. Grounds 17 and 18 are therefore not made out.
Ground 19
Ground 19 of the 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.
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 [28]-[43] above, and thus the concern evinced by this ground of the application is rendered otiose.
Ground 19 is therefore not made out.
Ground 20
Ground 20 of the application is as follows:
20. 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 Judgement of MIBP v SZSSJ; MIBP v SZTZI [2016] HCA 29 at [52] to [55].
Ground 20 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 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-2016 at [32] per Griffiths J. The applicants in SZSSJ-High Court had received the same 12 March 2014 Letter. 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 set out above: see [47] above, in SZWAJ-2016 at [32] per Griffiths J the Federal Court observed that an ITOA conducted by an assessor was a “normal process” for a person in the same circumstances as the applicant where protection obligations had 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 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 20 is not made out.
Ground 21
Ground 21 of the application is as follows:
21. The Applicant has been denied procedural fairness in that the consideration of the Minister's exercise of his personal power under ss 48B, 195A and 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 Judgement 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 [56].
Particulars
(i) At [56] of the Judgement, the HIGH COURT noted as follows:
[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.”
In ground 21 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 s.195A and s.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. 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 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 Assessor’s conclusions in the ITOA.
It follows from the above that ground 21 is not made out.
Ground 22
Ground 22 of the application is as follows:
22. The reviewer denied the applicant procedural fairness by failing to warn him that it would not apply the assumptions that all of the appellant's personal information had been accessed by all the persons or entities from whom he 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].
The applicant’s assertion is unfounded as the Assessor did proceed to assess the applicant’s claims on the assumption that the authorities in Albania and any other persons from whom he feared harm may have accessed the information released by the Data Breach: CB 271 at [43] and CB 273 at [50].
It follows from the above that ground 22 is not made out.
Conclusion on grounds 1-22
None of the applicant’s grounds 1-22 have been made out, and none of the grounds therefore justify any of the interlocutory or final relief sought by the applicant.
Application for interlocutory injunctions
The applicant seeks interlocutory injunctions restraining the Minister, by himself or by his Department, officers, delegates or agents from:
a)detaining him at the Christmas Island Immigration Detention Centre (“Christmas Island IDC”) (“Proposed Place of Detention Injunction”); and
b)removing him from Australia until after the hearing and determination of his application (“Proposed Removal Injunction”).
The test to be applied with respect to the grant of an interlocutory injunction under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) is that outlined by the High Court in AustralianCourse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398, namely that there be a serious question to be tried and that the balance of convenience favours the issuance of the injunction: MZZFW v Minister for Immigration & Border Protection [2015] FCCA 1902; (2015) 299 FLR 22 at [62] per Judge Lucev.
The places at which, the persons by whom, and the manner in which, a person in immigration detention is to be detained is essentially a matter for the Minister and officers of the Department to determine: NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99; (2002) 72 ALD 405 at [22] per Beaumont J (“NAFC”); Soh v Commonwealth [2008] FCA 520; (2008) 220 FCR 127; (2008) 101 ALD 310 at [83] per Madgwick J; Minister for Immigration & Multicultural & Indigenous Affairs v B & Anor [2004] HCA 20; (2004) 219 CLR 365; (2004) 78 ALJR 737; (2004) 206 ALR 130; (2004) 77 ALD 640; (2004) 31 Fam LR 339; [2004] FLC 93-174 at [218] per Callinan J.
There are limited bases upon which this Court may restrain or direct the exercise of power to determine where a person in immigration detention is to be detained, usually pertaining to case management issues, in particular the necessity for a person to be in a particular place to facilitate proper preparation of their cases: Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27 at 32-33 per Sheppard J; NAFC at [27]-[28] and [47]-[49] per Beaumont J.
The applicant has not identified any basis on which this Court should issue the Proposed Place of Detention Injunction restraining the Minister or officers from detaining him at the Christmas Island IDC. Nor has he put forward any evidence that he might be transferred to Christmas Island IDC. The application for the Proposed Place of Detention Injunction is entirely speculative and should be dismissed.
There is no basis for the Proposed Removal Injunction sought by the applicant, as the applicant’s case has now been heard and determined.
For the reasons set out above, the applicant has not raised a serious issue to be tried. In addition, the balance of convenience does not favour the issuance of either the Proposed Place of Detention Injunction or the Proposed Removal Injunction: AWX16 v Minister for Immigration & Anor [2016] FCCA 928 at [54]-[58] per Judge Lucev.
The interlocutory injunction issued on 2 February 2017, and continued in force on 8 February 2017 until further order of the Court, should therefore be discharged, and relief in the form of the Proposed Place of Detention Injunction or the Proposed Removal Injunction refused.
Conclusions and orders
For the reasons set out above the Court has concluded that:
a)the interlocutory injunction issued on 2 February 2017, and continued in force on 8 February 2017 until further order of the Court, should be discharged; and
b)the applicant’s application for interlocutory and final relief must be dismissed,
and there will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 March 2017
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