CDM16 v Minister for Immigration & Anor
[2016] FCCA 2758
•25 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDM16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2758 |
| Catchwords: MIGRATION – Review of a possible future decision by the Minister to remove the applicant from Australia – applicant previously unsuccessful in judicial review of a Refugee Review Tribunal decision – no known decision concerning the removal of the applicant – applicant raising the issue of the February 2014 data breach – issue addressed by the Refugee Review Tribunal – application dismissed. |
| Legislation: The Constitution s. 61 Migration Act 1958 (Cth), ss.46B, 195A, 198, 417, 45AA, 476, 474 Migration Regulations 1994 (Cth) |
| Cases cited: AKR15 v Minister for Immigration & Anor [2015] FCCA 1734 Attorney-General (NSW) v Quin (1990) 170 CLR 1 CGK15 v Minister for Immigration & Anor [2016] FCCA 1463 Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Proctor v Bayley (1889) 42 Ch D 390 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 SZSSJ v Minister for Immigration [2014] FCAFC 143; (2014) 231 FCR 285 SZWCH v Minister for Immigration & Anor (No. 3) [2015] FCCA 1128 SZWAJ v Minister for Immigration [2016] FCA 1173 SZWCP v Minister for Immigration & Anor [2015] FCCA 802 |
| Applicant: | CDM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | PEG 347 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 October 2016 |
| Delivered at: | Sydney via video link to Perth |
| Delivered on: | 25 October 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Corbould |
ORDERS
The application filed on 3 August 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 347 of 2016
| CDM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a somewhat unusual application filed on 3 August 2016.
The final orders sought by the applicant are as follows:
A.An order that the decision of the tribunal or Minister be quashed.
B.A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
C. 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 order 2-3.
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 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 Departmental Secretary as part of the Department’s normal processes made on 12 March 2014 (“the 12 March 2014 representation”) involved a representation that the power vested in him by s61 of the Constitution will be used in favour of the applicant.
4.A declaration that the Departmental 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. Costs.
The grounds advanced in support of the application are as follows:
1.The applicant is a citizen of Vietnam.
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 of him was completed.
4.The applicant is a person in respect of whom the Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988.
5.The Respondent is an APP entity and 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 February 2014, Respondent by his servants or agents released the applicant’s personal information by publishing it on the world wide deb.
7.The applicant’s personal information so released included his name, date of birth, nationality, gender, fails 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.
8. The release of the applicant’s personal information by the Respondent, is servants or agents, was contrary to law.
Particulars
a) The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
b) Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
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 his home country 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.
10. The applicant’s well founded fear that his removal from Australia to his home country will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; on the Convention Against Torture; or the International Covenant on Civil and Political Rights by reason of the release of his personal information in or about February 2014.
11. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
a. 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.
12. 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.”
13. The department, to which reference is made in the 12 March 2014 Representation, and the Departmental Secretary, 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.
14. 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.
15.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 Respondent pursuant to ss46A, 48B or 417 arising from the disclosure of the applicant’s personal information.
16.There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 of the Act irrespective of whether an assessment of Australia’s non-refoulement 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 due to the operation of section 197C of the Act.
17. Section 197G removes the non-refoulement obligations from the Act thereby removing the International Treaties Obligations Assessment from the department’s normal process leaving the Secretary’s undertaking in his 12 March 2014 letter unfulfilled. (errors in original)
The background to the matter is conveniently set out in the Minister’s outline of submissions filed on 18 October 2016.
Background
The applicant is a citizen of Vietnam who was born on 9 October 1971. He arrived in Australia as an unauthorised maritime arrival at Darwin on 23 March 2013.[1]
[1] Court Book (CB) 36, 57-58. For a detailed chronological background, see the judgment of Judge Young in CGK15 v Minister for Immigration & Anor [2016] FCCA 1463 at CB 125-127.
The applicant was affected by the February 2014 data breach and received a letter dated 12 March 2014 from the Secretary of the Minister’s department (Department) (the 12 March 2014 letter) informing him of the data breach and expressing deep regret.[2] The 12 March 2014 letter also stated that:
The Department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.
[2] See annexure B to the applicant’s affidavit affirmed on 29 July 2016.
On 6 June 2014 the applicant applied to the Department for a Protection (Class XA) visa (protection visa).[3] However, by operation of s.45AA of the Migration Act 1958 (Cth) (the Migration Act) and r 2.08F of the Migration Regulations 1994 (Cth) (Migration Regulations), from 16 December 2014 the application was taken to have been a valid application for a Temporary Protection (Class XD) visa (temporary protection visa).
[3] CB 20-56.
In his application for a protection visa, the applicant made claims based, among other things, on the data breach.
On 9 January 2015 a delegate of the Minister (the delegate) refused to grant the applicant a protection visa.[4] On 19 January 2015 the applicant applied to the former Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.[5] The applicant attended a hearing before the Tribunal on 14 April 2015 to give evidence and present arguments.[6]
[4] CB 57-77.
[5] CB 78-83.
[6] CB 94 [5].
On 30 May 2015 the Tribunal set aside the delegate’s decision to refuse to grant the applicant a protection visa and substituted a decision to refuse to grant the applicant a temporary protection visa.[7]
[7] CB 93.
On 30 October 2015 the applicant filed an application in the Darwin registry of this Court for judicial review of the Tribunal decision.[8] Following a hearing on 3 June 2016, Judge Young granted an extension of time but dismissed the applicant’s application on 16 June 2016.[9]
[8] CB 117-122.
[9] CB 123-143 , CGK15 v Minister for Immigration & Anor [2016] FCCA 1463
On 1 August 2016 the applicant commenced the current proceeding in the Perth registry of this Court.
Present proceedings
On 26 September 2016 I made orders that the applicant file and serve any amended application, any affidavits, written submissions and a list of authorities by 4.00pm on 11 October 2016. The applicant has not filed any such documents to date.
It is common ground that the Court has jurisdiction to deal with the application. In that regard, I agree with and adopt the Minister’s submissions.
The applicant’s application invokes the Court’s jurisdiction under s.476 of the Migration Act in relation to a ‘future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person’.
The Federal Circuit Court has jurisdiction in this matter on the basis that 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.[10]
[10] see ss.474(2) and (3)(h) of the Migration Act; SZSSJ v Minister for Immigration [2014] FCAFC 143; (2014) 231 FCR 285 at [39]-[40] (SZSSJ).
There is no evidence of conduct preparatory to a decision by the Minister to consider the exercise of his dispensing powers under ss 46B, 195A or 417 of the Act.[11]
[11] cf Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 (SZSSJ)
I have before me as evidence the court book filed on 19 September 2016. I also received, subject to relevance, a bundle of documents marked as exhibit A1. Those documents are, first, a typewritten document in Vietnamese and bearing an official stamp. The applicant says that this is a form of summons dated 25 May 2015, which the applicant only received after the Tribunal made its decision.
The second document is a handwritten undated letter in the Vietnamese language apparently to the applicant from his wife. The applicant told me from the bar table that in this letter his wife advises him that she has been sexually assaulted and that threats were made against him should he return to Vietnam. The applicant received this letter in around August this year. The final two documents in the bundle are colour photographs which the applicant told me show Vietnamese officials and his wife speaking together in his home. The applicant told me that the photographs were taken surreptitiously.
As matters transpired, the documents have no bearing upon these proceedings, although they might be of assistance to the applicant should he wish to seek the Minister’s intervention pursuant to s.417 of the Migration Act.
Only the Minister prepared written submissions in accordance with procedural orders made to prepare for today’s hearing. I invited oral submissions from the applicant. He told me that he wants to stay in Australia and that he fears he will be seriously harmed should he be required to return to Vietnam. The applicant said that he has not committed any offences in Australia and that he is at risk as a former Communist Party member who has turned against the Communist Party. Those are matters which might be considered by the Minister if he was so minded, but they did not assist me to resolve the issues raised in the application.
Those issues focus upon the data breach in the Department in February 2014, which included personal information concerning this applicant. The data breach occurred and the applicant was informed of it before he sought protection. It was an issue in the applicant’s protection visa application. Substantial submissions were put to the Tribunal about it. The Tribunal considered the issues and dealt with them in the decision it made on 30 May 2015 at [70].[12] The applicant unsuccessfully applied for judicial review of the Tribunal’s decision. The Tribunal decision was found to be free of any jurisdictional error.
[12] CB 105
The short answer to this application is that the applicant has had the benefit of the ordinary processes of the Minister’s Department in raising the consequences of the data breach. Nothing has been raised by the applicant in these proceedings to persuade me that any further relief should be granted.
The Minister’s submissions otherwise deal adequately with the particular grounds raised in the application. I agree with those submissions.
Grounds 1-8
The applicant’s first eight grounds involve a mix of factual assertions and allegations about the breach of the Privacy Act 1988 (Cth) and a criminal offence under s 336E of the Act. None of these matters engage the jurisdiction of this Court other than to provide a factual basis for the applicant’s contention that he was denied procedural fairness in relation to the data breach.[13]
[13] AKR15 v Minister for Immigration & Anor [2015] FCCA 1734 (AKR15) at [59]
Grounds 9-10
Grounds 9 and 10 assert that, by reason of the data breach, the applicant has a well-founded fear that his removal from Australia to Vietnam will involve a breach of Australia’s non-refoulement obligations under various international treaties.
The applicant’s assertion is contrary to the findings of both the Minister’s delegate and the Tribunal who considered that the applicant would not face harm on return to Vietnam as a result of the data breach. The delegate, at CB 65, noted that the applicant stated at his protection visa interview that he was aware of the data breach but did not understand how the release of the information could affect him. The Tribunal, at CB 105 [70], considered that there was nothing in the data breach that could not be known to the Vietnamese authorities should the applicant be removed to Vietnam in the future.
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 this ground gives no basis for any relief.[14]
[14] AKR15 at [60].
Grounds 11-14
Grounds 11-14 rely on the contents of the 12 March 2014 letter to apparently argue that the applicant was owed procedural fairness in connection with the assessment of his claims based on the data breach. Although the grounds refer to s 61 of the Constitution, they do not raise any real constitutional issue.[15]
[15] SZWCP v Minister for Immigration & Anor [2015] FCCA 802 at [2], [3], [15]; SZWCH v Minister for Immigration & Anor (No. 3) [2015] FCCA 1128 at [4], [5]; AKR15 at [61].
The applicant appears to claim that, by virtue of representations in the 12 March 2014 letter, he was entitled to have any implications based on the data breach assessed by the Department as part of its ‘normal processes’, in a manner that accorded him procedural fairness.
It is clearly the case that the applicant’s claims based on the data breach were assessed by the Department in a process that was both procedurally fair and part of its ‘normal processes’. The claims were assessed in the course of the applicant’s protection visa application which was lodged on 6 June 2014, after the data breach.
As part of that process, the applicant was invited to and attended an interview with the Minister’s delegate on 27 October 2014. He was also assisted with his protection visa application by a legal representative.
Following the delegate’s decision refusing to grant a protection visa, the applicant sought review by the Tribunal in a process which complied with the procedural fairness requirements in Division 4 of Part 7 of the Migration Act. The Tribunal’s decision refusing to grant the applicant a temporary protection visa was upheld on review by the Federal Circuit Court on 16 June 2016.
In the circumstances, there is simply no basis for the applicant’s contention that he has not been accorded procedural fairness in the assessment of his claims based on the data breach or that his claims were not assessed as part of the Department’s ‘normal processes’. There is no basis for the injunction and declarations sought by the applicant.
To the extent that the applicant contends that his claims based on the data breach should have been assessed in an International Treaties Obligations Assessment (ITOA) or some other process, the contention has no merit. The 12 March 2014 letter made no representation that the applicant would receive an ITOA and there is no other evidence that the applicant was offered an ITOA or some other non-statutory process for assessing his claims based on the data breach. The applicant’s claims were properly dealt with in the protection visa application process and no other process was required to be initiated.
This circumstances of this case are relevantly indistinguishable from those in SZWAJ v Minister for Immigration [2016] FCA 1173 (SZWAJ) where the appellant’s claims based on the data breach were similarly assessed in the context of the process relating to the consideration and determination of her application for a protection visa (together with the subsequent review by the Tribunal under Part 7 of the Migration Act). Griffiths J, at [32], accepted that such a process was appropriately regarded as a ‘normal process’ of the Department and that the primary judge had not erred in concluding that the appellant’s case was not reasonably arguable.
Ground 15
The applicant asserts that there is utility in being granted the declarations sought in his application for the purposes of any statutory process to be undertaken by the Minister pursuant to his non-compellable powers under ss.46A, 46B or 417 of the Migration Act.
There is no evidence that the Minister is or was at any time considering the exercise of any such powers or that the applicant has requested that he do so. This case is different from SZSSJ where the Full Court of the Federal Court made a factual finding, which was not challenged in the High Court, that the inference to be drawn from the totality of the evidence before it was to the effect that 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 applicants for visas affected by the data breach.[16]
[16] SZSSJ at [33].
That factual finding does not bind this Court. As in SZWAJ at [24], this Court should not infer that the Minister had decided to consider the exercise of his dispensing powers in relation to the applicant.[17]
[17] See also AFH15 v Minister for Immigration [2016] FCCA 99 at [39]-[40] per Judge Smith who declined to infer that the Minister had decided to consider exercising one of his dispensing powers in a case where the Tribunal had reviewed the applicant’s protection claims arising out of the data breach.
The applicant had not applied for a protection visa, either at the time of the data breach or when the 12 March 2014 letter was sent. No ‘personal procedural decision’ in relation to the exercise of the Minister’s powers under ss.46A, 48B or 417 could have crystallised in respect of the applicant on or before 12 March 2014, because his circumstances simply did not engage those powers prior to him making an application for a protection visa.
Accordingly, this ground provides no support for the declarations sought.
Grounds 16-17
The applicant asserts in ground 16 that the respondents may contend that it is reasonably practicable to remove the applicant under s.198 of the Migration Act due to the operation of s.197C of Migration Act. Section 197C provides that for the purposes of s.198, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’[18] and that an officer’s duty to remove an unlawful non-citizen as soon as reasonably practicable under s 198 ‘arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen’.[19]
[18] Migration Act s.197C(1)
[19] Migration Act s.197C(2)
The applicant’s assertion provides no basis for the relief sought by the applicant. It is based on the premise that an assessment of Australia’s non-refoulement obligations to the applicant arising from the data breach has not been carried out in a way in which the applicant is accorded procedural fairness. As previously noted, the applicant’s claims based on the data breach were considered by the Minister’s delegate and, on review by the Tribunal, in processes which attracted procedural fairness obligations.
In ground 17 the applicant states that s.197C has the effect of removing the ITOA process from the Department’s ‘normal process’ leaving the Secretary’s undertaking in the 12 March 2014 letter unfulfilled. This ground has no merit. No ITOA process was followed in the applicant’s case and the Secretary’s statement that the Department would assess any implications for the applicant arising out of the data breach as part of its ‘normal processes’ was fulfilled. That process was the consideration and determination of the applicant’s application for a protection visa.
Relief
There is no basis for granting any of the relief sought by the applicant.
Prayer 1
The applicant firstly seeks an injunction restraining the Minister from removing him pursuant to s.198 of the Migration Act ‘other than according to law and consistently with the declarations in orders 2-4’. As it is not appropriate to make those declarations for the reasons set out below, it is not appropriate for the Court to grant the injunction in the terms sought in prayer 1.
In addition, without 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 that some illegal act will be done in the future.[20]
[20] see Proctor v Bayley (1889) 42 Ch D 390 at 399-401; Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 at [13].
The Court would require strong evidence of a real threat of violation of the law before granting such an injunction against officers of the Commonwealth.[21] There is no evidence in the present case to indicate that an order of this character is warranted.
[21] see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [8].
Prayer 2
The applicant 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 2016 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 under s.198, without regard to the requirements of s.197C. Prayer 2 is also impermissibly vague and so is not a declaration that any court ought to make.[22]
[22] see Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89]-[90].
The applicant’s application for a protection visa application having been finally determined, the applicant is liable for removal under s.198 of the Act ‘as soon as reasonably practicable’.
Prayer 3
Prayer 3 seeks a declaration that the 12 March 2014 letter involved a representation that the power vested in the Minister by s.61 of the Constitution will be used in favour of the applicant.
This prayer for relief should be refused because the letter does not convey what it is said to represent. The 12 March 2014 letter does not represent that executive power pursuant to s.61 of the Australian Constitution will be exercised in relation to the applicant, let alone that it will be exercised in his favour.
Further, even if the letter of 12 March 2014 did convey the representation alleged, there would be no utility to the declaratory relief sought in prayer 3. A declaration in those terms would have no legal significance, because ordinarily no estoppel could alter the scope, content or criteria for the exercise of the respondents’ public powers and functions.[23]
[23] see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17-18 per Mason CJ.
Prayer 4
Prayer 4 seeks a declaration that the Minister, in undertaking the assessment identified in the 12 March 2014 letter, is required to accord procedural fairness to the applicant according to law.
The assessment of any implications for the applicant as a result of the data breach was undertaken in processes by the Department and the Tribunal which accorded procedural fairness to the applicant. There is no basis for the declaration sought in prayer 4 which is also impermissibly vague and lacks utility.
Accordingly, I will order that the application filed on 3 August 2016 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7, 206.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 October 2016
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