CRQ17 v Minister for Immigration
[2019] FCCA 1332
•23 May 2019
EDERAL CIRCUIT COURT OF AUSTRALIA
| CRQ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1332 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to file originating application – application for an extension of time in which to file amended originating application – factors for consideration – whether time ought to be extended – long delay – whether explanation for delay – whether originating application competent – where failure to disclose prior judicial review proceedings – whether res judicata, issue estoppel or abuse of process apply – whether originating application arguable. PRACTICE AND PROCEDURE – Whether originating application competent – where failure to disclose prior judicial review proceedings. |
| Legislation: Fair Work Act 2009 (Cth), ss.365, 723, 779 Migration Act 1958 (Cth), ss.48B, 189, 195A, 198, 256, 417, 476, 477, 486D Privacy Act 1988 (Cth) |
| Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 DZAFB & Ors v Minister for Immigration & Anor [2016] FCCA 6 DZAFB v Minister for Immigration & Border Protection [2016] FCA 827 |
| Applicant: | CRQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 328 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 September 2017 |
| Date of Last Submission: | 26 September 2017 |
| Delivered at: | Perth |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| For the Applicant: | In person (by video-link from Christmas Island and with the assistance of an interpreter) |
| Counsel for the First Respondent : | Mr PJ Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitor for the Respondents: | Australian Government Solicitor |
DECLARATION
The Court declares pursuant to s.486D(1) of the Migration Act 1958 (Cth) that the originating application is incompetent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 328 of 2017
| CRQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Factual background
In these proceedings it is convenient to begin by setting out, briefly, some of the factual background to the various applications before the Court. The background is largely taken from the affidavit of Peter John Corbould affirmed 2 August 2017 (“Corbould Affidavit”). That background is as follows:
a)the applicant is a citizen of Vietnam who arrived in Australia as an unauthorised maritime arrival on 14 April 2013, and who was detained under s.189(3) of the Migration Act: Corbould Affidavit at [2];
b)in September 2013 the applicant lodged an application for a Protection (Class XA) Visa (“Protection Visa”): Corbould Affidavit at [3];
c)in February 2014 personal information about persons in detention, including the applicant, was inadvertently disclosed on the website (“Data Breach”) of the Department of Immigration & Border Protection (“Department”): Corbould Affidavit at [4];
d)on 12 March 2014, the Secretary of the Department wrote to the applicant about the Data Breach (“Breach Letter”): Corbould Affidavit at [5] and Annexure PJC1 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.
…
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.
e)on 10 October 2014 a delegate of the Department (“Delegate” and “Delegate’s Decision” respectively) refused to grant the applicant (and his family) a Protection Visa: Corbould Affidavit at [6];
f)the applicant appealed the Delegate’s Decision to the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively), and on 10 December 2014 the Tribunal Decision affirmed the Delegate’s Decision: Corbould Affidavit at [7]-[8];
g)proceedings were commenced in this Court seeking judicial review of the Tribunal Decision (“Judicial Review Application”), and on 11 January 2016, following a hearing, the Court dismissed the Judicial Review Application with costs: DZAFB & Ors v Minister for Immigration & Anor [2016] FCCA 6 (“DZAFB”): Corbould Affidavit at [9]-[10];
h)the applicant appealed DZAFB to the Federal Court. The Federal Court dismissed the appeal on 21 July 2016: DZAFB v Minister for Immigration & Border Protection [2016] FCA 827 (“DZAFB Appeal”): Corbould Affidavit at [11]-[12];
i)on 29 September 2016 the Department received a request from a third party for a Temporary Humanitarian Concern visa on behalf of the applicant, which it treated as a request for Ministerial Intervention pursuant to s.417 of the Migration Act, and in a response dated 4 October 2016, advised the request had been assessed against the relevant guidelines and finalised without referral to the first respondent, the Minister for Immigration & Border Protection (“Minister”): Corbould Affidavit at [13]-[14]; and
j)the applicant’s wife subsequently sought Ministerial Intervention under s.48B of the Migration Act on behalf of the applicant and his family, however, the Department advised on 13 June 2017 the request had been finalised without referral to the Minister: Corbould Affidavit at [15].
The various applications
There are a number of applications, or purported applications, presently before the Court, namely:
a)the applicant’s originating application, together with an extension of time application;
b)the applicant’s amended originating application, together with an extension of time application; and
c)an application by the Minister for summary dismissal of the originating application (extended in submissions to an argument for summary dismissal of the purported amended originating application).
On 26 September 2017 the Court sat to hear:
a)the Minister’s application for summary dismissal; and
b)the applicant’s requests for extensions of time.
Originating application
The originating application in these proceedings was filed on 15 June 2017.
The originating application sought review of the Tribunal Decision on the following grounds:
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 AAT reviewer erred in making a finding based on no material evidence.
Particulars
a) The AAT 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 AAT reviewer made a finding based on no evidence.
5. The AAT reviewer erred in its determination as to whether the applicant faced a real chance of persecution because it failed to consider the possibility of error in its evaluation of the applicant claims and the Data Breach. In particular, The AAT reviewer failed to ask itself the question "What if I am wrong" in its assessment of the applicant's claims and credibility.
6. The AAT reviewer failed to apply the test for complementary protection under section 36(2A) of the Migration Act, by failing to properly consider and apply the applicable Law defining "Significant Harm" to the facts as raised by the Applicant's claims and the Data Breach itself.
The final orders sought by the applicant in the originating application were 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 s198 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.
The applicant also requested injunctive relief restraining the Minister or Department from removing him from Australia pending determination of final relief in these proceedings, but indicated that an injunction would not be sought unless and until there was a current threat of removal.
The applicant has included within the originating application an application for an extension of time under s.477(2) of the Migration Act, the grounds of which are set out at [10] below.
The Court notes that the applicant failed to complete that part of the originating application concerning other court proceedings where an applicant had made a previous application or applications to a court to review the decision sought to be reviewed: see Migration Act, s.486D.
Extension of time application – originating application
The grounds for the application for an extension of time in which to file the originating application, sought pursuant to s.477 of the Migration Act, are as follows (copied verbatim):
1. I was detained and still being detain in Immigration detention centres it was more than 4 years, I did not know much about the Laws and lacked ability to filled out the application forms on time.
2. I was detained and still being detain in Immigration detention centres it was more than 4 years, I did not know much about the Laws and I could not found a Legal Representative to help.
Section 477(1) and (2) of the Migration Act provides as follows:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05(2) of the FCC Rules provides as follows:
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The Court notes that there is an application in writing for an order for an extension of time specifying grounds upon which the applicant considers that it is necessary in the interests of the administration of justice to make an order extending time which meets the requirements of s.477(2)(a) of the Migration Act.
It is a mandatory requirement under r.44.05(2)(c) of the FCC Rules that an affidavit be filed explaining the delay and showing why it is in the interests of the administration of justice for the Court to grant an extension of time, but the Court can dispense with the requirement for an affidavit: FCC Rules, r.1.06(1), if it is in the interests of the administration of justice to do so: Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [24] per Judge Lucev.
The applicant failed to provide an affidavit in support of his application for an extension of time, and his explanation was limited to the two grounds in the originating application. Furthermore, at the hearing no oral submissions were made by the applicant asking the Court to dispense with compliance with the FCC Rules, nor to otherwise advance his request for an extension of time. The failure of the applicant to file an affidavit pursuant to r.44.05(2)(c) of the Migration Regulations means that there is no evidence explaining the delay or showing why it is necessary in the interests of the administration of justice for the Court to grant the extension of time sought by the applicant.
Factors for consideration
Having regard to the Federal Court judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), FCR at 348-349 per Wilcox J the relevant factors the Court ordinarily takes into account in its exercise of the discretionary power to extend time under s.477(2) of the Migration Act include:
a)the length of the delay;
b)the explanation for the delay;
c)whether there is any prejudice to the other party in granting the extension; and
d)whether there is any arguable merit in the application for which an extension is sought.
Length of and explanation for delay
The law with respect to the delay in making an application seeking prerogative relief can be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”), CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority, CLR at 553 per McHugh J.
In Marks at [16] per McHugh J the High Court said:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay … In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
In the present case, the delay in seeking review of the Tribunal Decision is 30 months. Even if the delay is measured from the time at which this Court delivered judgment in DZAFB the delay is 17 months, or if it is calculated from the time at which the Federal Court dismissed the appeal in DZAFB Appeal the delay is 11 months. Delay of those lengths weighs significantly against the grant of an extension of time to the applicant.
The explanation for the delay which can be discerned from the grounds of the extension of time application are that the applicant:
a)has been in detention for some years;
b)did not know about the relevant laws;
c)lacked the ability to fill out the application forms on time; and
d)could not find a legal representative to help him.
The brief explanations provided by the applicant for the delay comprise matters which must be weighed when assessing whether leave ought to be granted to extend time: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J; Kaur v Minister for Immigration & Border Protection & Anor [2015] FCA 584; (2015) 233 FCR 507 (“Kaur”) at [22] per Mortimer J, but which are difficult to consider much further in this case because of the want of evidence from the applicant. The Court should, however, be cautious in placing too much reliance on such matters, particularly where they are not explained by any evidence. Too ready an acceptance of them makes an extension of time the rule and not the exception, contrary to what was said by the High Court in Brisbane South Regional Health Authority, CLR at 553 per McHugh J. Further, upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of the Tribunal Decision: Marks at [17] per McHugh J.
The fact that the applicant is in immigration detention is a difficulty for a self-represented litigant to which the Court ought, at the very least, pay some regard: ADN15 at [29] per Charlesworth J; Kaur at [22] per Mortimer J. In SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J, the Federal Court observed that the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for a court not to make an order to extend time. In this case, there is no explanation of what steps or actions, if any, the applicant took whilst in immigration detention to obtain any assistance, either from those detaining him or from outside sources. The Court infers that the applicant would have been aware that some assistance from outside sources might be available, because he was represented by a registered migration agent at the hearing before the Tribunal leading to the Tribunal Decision: see Tribunal Decision at [4] and Annexure PJC3 to the Corbould Affidavit, and before this Court by Counsel directly instructed in DZAFB. In this case, therefore, the fact that the applicant is in immigration detention is, in itself, not an adequate explanation for the delay: WZAUG v Minister for Immigration & Anor [2017] FCCA 771 at [28] per Judge Lucev; SZVCP v Minister for Immigration & Ors(No 3) [2016] FCCA 3328 at [122] per Judge Street.
In relation to the provision of assistance whilst in immigration detention the provisions of s.256 of the Migration Act are relevant. Section 256 of the Migration Act provides as follows:
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
In Le v Minister for Immigration & Ethnic Affairs & Ors (1994) 53 FCR 27 (“Le”) the Federal Court had before it an application to direct the Minister to bring two children in custody at the Port Hedland Immigration Detention Centre to a suitable place in Sydney and provide them with reasonable facilities to enable them to meet their next friend and legal advisers and prepare for a hearing in the Federal Court in relation to a review of the Minister’s decision to refuse to accord them refugee status. In the course of delivering a judgment which directed the transfer of the two children concerned, the Federal Court, having referred to the relevant Second Reading Speech, went on to observe: Le at 33 per Sheppard J, that:
Those remarks establish that the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. That is how the section should be construed.
In NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99; (2002) 72 ALD 405 (“NAFC”) the Federal Court observed at [53] per Beaumont J that s.256 of the Migration Act “is a free-standing guarantee which must be given its own effect, wherever the detainee is held”. NAFC was appealed: see NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 22, but nothing said on the appeal affects the view expressed in NAFC at first instance on this issue.
In SZSPI v Minister for Immigration & Border Protection & Anor [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 (“SZSPI”) the Full Court of the Federal Court dealt with a question of whether an applicant had reasonable time and reasonable access to obtain legal advice prior to his removal from Australia. In SZSPI at [16] per Allsop CJ, Mansfield and Besanko JJ, the Full Court of the Federal Court observed that:
16 It was accepted by the Minister, correctly in our view, that the affording of “all reasonable facilities” in s 256 incorporated having a reasonable time for doing the things referred to in that section. The statutory duty in s 256 thus effectively amounts to an entitlement of a detainee such as the applicant to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation.
and later observed that what is a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal from Australia will always depend on the circumstances: SZSPI at [49] per Allsop CJ, Mansfield and Besanko JJ.
The difficulty for the applicant in these circumstances in relation to delay is that there is no evidence that he took any steps to obtain any assistance from anyone whilst he was in immigration detention, and the length of the delay is so long that in the particular circumstances it can be inferred that he has had more than adequate opportunity to obtain any assistance required, bearing in mind that he would have been aware that assistance might be available from his previous experience before the Tribunal and this Court in DZAFB.
The delay here is excessive, and generally, the longer the delay, the more persuasive the explanation needs to be: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185 at 195 per Lockhart, Sheppard and Burchett JJ; Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J. The absence of any satisfactory, let alone persuasive, explanation for the delay is itself a sufficient basis to refuse the application for an extension of time in which to file the originating application: Tran at [38] per Wigney J.
In the above circumstances, the fact that the applicant was in immigration detention does not assist him in explaining the extraordinarily long delay in seeking to bring the Judicial Review Application.
The applicant’s assertion that he did not know about the relevant laws does not assist him in relation to his extension of time application for the following reasons:
a)first, ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J where the Federal Court observed that:
38 In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. …
b)second, in general terms, the applicant must have had some awareness of the relevant laws as he had been through the entire judicial review process culminating in DZAFB Appeal, and in the course of that process had been represented by a registered migration agent before the Tribunal, by Counsel directly instructed in DZAFB and was self-represented in DZAFB Appeal; and
c)third, the grounds of the originating application indicate some familiarity with some of the arguably relevant legislation and case law.
It is well accepted that an applicant ultimately has no right to legal representation or assistance in migration proceedings in the federal courts: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTIv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [86]-[90] per Judge Lucev, and that the applicant could not find a lawyer is not, of itself, sufficient to explain the delay.
The fact that the applicant did not have the services of a lawyer is a matter which requires some consideration: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J, but is again, of itself, insufficient to explain the delay. In MZZIV there was both a short delay and a good case: in this case there is neither a short delay, nor, as will become apparent later in these Reasons for Judgment, is there a good case, or indeed a case at all. Further, there is no evidence of what steps, if any, the applicant took to obtain a lawyer, and if steps were taken what, if any, difficulties were encountered in obtaining the services of a lawyer. The applicant had used Counsel in DZAFB by way of direct instruction, and so was aware that the services of a lawyer could be used in this Court. In the absence of evidence of the type just outlined, and having regard to the length of the delay, the fact that the applicant did not have a lawyer is not, of itself, sufficient to explain the delay. In the circumstances, and given the lack of evidence from the applicant, the Court is not prepared to find that the applicant “could not find” a lawyer to assist him.
In all of the above circumstances, both the length of and the failure to explain the delay are factors which weigh significantly against the grant of an extension of time to file the originating application.
Prejudice
The Minister made no submission on prejudice suffered if the extension of time were to be granted, however absence of prejudice does not justify the exercise of the Court’s discretion to extend time: Hunter Valley Developments at 349 per Wilcox J. Albeit that the Minister made no submissions as to prejudice there must be some prejudice to the Minister in circumstances where:
a)the applicant has already brought the Judicial Review Application and an appeal from the Judicial Review Application, both determined, adversely to the applicant, in DZAFB and DZAFB Appeal;
b)there have been two requests for Ministerial intervention, both rejected;
c)the applicant now makes a further application for judicial review of the same Tribunal Decision judicially reviewed in DZAFB, which was appealed in DZAFB Appeal, and in relation to matters dealt with in DZAFB: see [50]-[55] below; and
d)albeit unquantified, there must be an ongoing and increasing cost to the Minister (and hence to the taxpayer) in dealing with a further application for judicial review in relation to matters which have already been determined.
In the above circumstances, the Court is of the view that there is sufficient prejudice to the Minister to weigh against the grant of an extension of time in which to file the originating application.
Merit of originating application
On an application for extension of time in which to file an originating application it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, bearing in mind also that the applicant bears the onus of proof in any final hearing to establish jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ. Success is not measured by reference to merits review, as this Court does not have jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: 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, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Before dealing with the specific grounds of the originating application it is necessary to set out and note the effect of s.486D of the Migration Act, and to set out a summary of the judgments in DZAFB and DZAFB Appeal, and in relation thereto deal with the issues of res judicata and issue estoppel.
Section 486D of the Migration Act provides as follows:
(1) A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(2) …
(3) …
(4) ...
(5) In this section:
"judicial review proceeding" , in relation to a tribunal decision, means:
(a) a proceeding in the Federal Circuit Court in relation to the tribunal decision; or
(b) …
(c) …
"tribunal decision" means a privative clause decision, or purported privative clause decision, made on review:
(a) by the Tribunal under Part 5 or 7 or section 500; or
(b) ...
The meaning and effect of s.486D of the Migration Act has been comprehensively dealt with by this Court in Singh & Anor v Minister for Immigration & Anor [2017] FCCA 223 (“Singh”) at [26]-[33] per Judge Dowdy, where the Court said as follows:
26 The meaning and effect of s 486D does not seem to have been the subject of any decision in the Federal Court or the High Court of Australia.
27 However, there is a uniform body of authority in this Court (and its predecessor, the Federal Magistrates Court) to the effect that the disclosure required by s 486D(1) is a valid statutory requirement which conditions jurisdiction and that a failure to make the required disclosure means that this Court does not have jurisdiction and the relevant application is therefore incompetent. Those authorities include S354 of 2003 v Minister for Immigration and Multicultural Affairs (No. 2)[2006] FMCA 1929; SZLHJ v Minister for Immigration and Citizenship[2007] FMCA 1947; SZKUT v Minister for Immigration and Citizenship[2008] FMCA 241; MZXPI v Minister for Immigration and Citizenship[2008] FMCA 1296; Avaiya v Minister for Immigration and Border Protection[2014] FCCA 268; Joshi v Minister for Immigration and Border Protection(2016) 311 FLR 505 and AQQ16 v Minister for Immigration and Border Protection[2016] FCCA 2736.
28 I should follow this uniform stream of decisions. Rather than considering them plainly wrong, I consider them to be correct.
29 The prefatory words of sub-sections (1), (2) and (3) of s 486D, being “a person must not commence a proceeding”, are in emphatic and imperative terms. In Wang v Minister for Immigration and Multicultural Affairs(1997) 71 FCR 386 Merkel J said, in connection with the time provision then appearing in s 478 of the Act, under a different time regime which required that applications under the then operative s 476 and s 477, “must … be lodged with the Registry of the Federal Court within 28 days”, that such a time limit had to be given a literal construction. His Honour said at 391:
“In my view the use of the word ‘must’ in s 478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but ‘is a word of absolute obligation’: see Posner v Collector for Inter- State Destitute Persons (Vic)(1947) 74 CLR 461 at 490 per Williams J and Kosovich v Mancini(1982) 31 SASR 272 at 275- 276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) p 278 and Public Prosecutor v Oie Hee Koi[1968] AC 829 at 852. Long and the unreported decisions of the Court, to which I have referred to in relation to ss 412 and 478 have all regarded the time limit as mandatory.
Accordingly, the Court has no jurisdiction to review a decision which is reviewable under ss 475 and 476 unless the application for review is lodged within 28 days of the applicant being ‘notified’ of the decision as enunciated in Long.”
30 Further support for the view that disclosure under s 486D is strictly required can be found in the decision of the Full Court of the Federal Court in SZICV v Minister for Immigration and Citizenship(2007) 158 FCR 260. That case established that the time limit mandated by s 477(1) restricted this Court's jurisdiction in migration matters under s 476 and was strict, effective and an essential part of the grant of jurisdiction to this Court. Section 486D of the Act has a similar restrictive effect.
31 By way of final analogous example, the prefatory language of s 486D(1) is similar to that of s 34(2) of the Judiciary Act 1903 (Cth) which provides that:
“(2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers.”
32 In Re Luck(2003) 203 ALR 1 the High Court comprised of McHugh ACJ, Gummow and Heydon JJ took it as self-evident that a purported “appeal” from a single justice of the High Court which was brought without leave was incompetent.
33 In my view, compliance with the disclosure requirements of s 486D(1) is a condition and prerequisite to the valid filing and legal effectiveness of an application to this Court under s 476.
In addition to the analogy cited in Singh the Court notes that in Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563 the then Federal Magistrates Court found that s.723 of the Fair Work Act 2009 (Cth) (“FW Act”), by reason of the use of the words “must not make” imposed a personal prohibition on a person making an unlawful termination application under s.779 of the FW Act in relation to conduct if the person was entitled to make a general protections court application under s.365 of the FW Act in relation to that conduct.
The Court further notes that subsequent to Singh, and to this matter being argued in this Court, the Federal Court in TCWY v Minister for Immigration & Border Protection [2018] FCA 804 (“TCWY”) held that the construction of s.486D of the Migration Act adopted by this Court (and before it the Federal Magistrates Court), and referred to in the extract from Singh at [39] above, was correct: TCWY at [34] per Perry J. The Federal Court in TCWY in so doing, observed at [30] per Perry J that:
… in expressing the requirement in s 486D as a prohibition on a person commencing a proceeding, it is plain that the Parliament did not intend that the courts to which the section applies would entertain proceedings commenced in violation of the disclosure requirement. To construe the provision otherwise would be to undermine the prohibition. As such the requirement can be described as a jurisdictional precondition with the consequence that a failure to comply with the requirement renders the proceeding incompetent.
The Full Court of the Federal Court has subsequently held, albeit on an application for leave to appeal, that this Court was correct to apply the reasoning in TCWY: DZY17 v Minister for Home Affairs [2018] FCAFC 196 at [41] per Besanko, Griffiths and White JJ, on appeal from DZY17 v Minister for Immigration & Anor [2018] FCCA 1987.
The applicant made no disclosure of the prior proceedings in DZAFB and DZAFB Appeal when making the originating application. Nor is there any affidavit evidence revealing the prior proceedings in DZAFB and DZAFB Appeal. The applicant’s affidavit filed with the originating application annexes the Tribunal Decision and the Breach Letter, but does not annex, mention nor advert to, the judgments in DZAFB and DZAFB Appeal. Both the grounds of the originating application and the applicant’s affidavit appear to avoid reference to DZAFB and DZAFB Appeal, whilst making reference to the underlying review by the Tribunal in the Tribunal Decision. The applicant’s oral submissions at hearing, whilst referring to the Data Breach, made no reference to DZAFB or DZAFB Appeal. Had it not been for the disclosure of DZAFB and DZAFB Appeal in the Corbould Affidavit the Court may not have ever been aware of those judgments.
In all of the above circumstances, the Court is satisfied that there was no disclosure of the prior proceedings in DZAFB as required by s.486D(1) of the Migration Act, or the proceedings in DZAFB Appeal from which it might have been deduced that there were the prior proceedings in DZAFB, and the effect of that failure is to render the originating application incompetent: Singh at [26]-[33] per Dowdy J, and as such this Court cannot extend time to file an otherwise incompetent originating application.
Res judicata, issue estoppel and abuse of process
The nature of the grounds of the originating application, together with the issues considered in DZAFB and DZAFB Appeal, raise for consideration the issues of res judicata, issue estoppel and abuse of process in relation to the originating application.
The doctrines of res judicata and issue estoppel were described by the majority in D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; (2005) 79 ALJR 755; (2005) 214 ALR 92; [2005] Aust Torts Reports 81-784 at [34] per Gleeson CJ, Gummow, Hayne and Heydon JJ:
The tenet ... finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
Issue estoppel is a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot thereafter be raised by the same parties: Blair v Curran (1939) 62 CLR 464; (1939) 35 Tas LR 1; (1939) 13 ALJ 131. Issue estoppel differs from res judicata in that res judicata relates to the entire claim, rather than just one issue: Hoystead & Ors v Federal Commissioner of Taxation (1925) 37 CLR 290; (1925) 32 ALR 33. Three requirements need to be satisfied before an issue estoppel arises:
a)the same question has been decided;
b)the judicial decision which is said to create the estoppel was final; and
c)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Carl-Zeiss-Stiftung v Rayner & Keeler Ltd & Ors (No 2) [1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536 at 565 per Lord Guest.
The Federal Court dealt with the issue of abuse of process in Spalla v St George Motor Finance Ltd (No.6) [2004] FCA 1699 (“Spalla”) at [69] per French J where it was said that:
69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts - Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J).
In DZAFB the Court considered the Judicial Review Application which sought to review the Tribunal Decision. In DZAFB the Court set out the applicant’s claims and the Tribunal Decision, noting that the applicant claimed that:
a)he feared harassment and arrest because he had lodged a complaint against the police in Vietnam, and because he had departed Vietnam illegally: DZAFB at [21] per Judge Jarrett; and
b)the Data Breach disclosed his identify as an asylum seeker and created a real chance that he would be perceived as publicly critical of the Vietnamese Government upon return to Vietnam: DZAFB at [22] per Judge Jarrett.
In DZAFB the Court noted that the Tribunal Decision was that the Tribunal:
a)was not satisfied that any events in the applicant’s past gave rise to a real chance of serious harm;
b)for purposes of complementary protection, noted that the applicant’s claims to complementary protection were the same as his claims for refugee status, and found that the applicant would not face significant harm if returned to Vietnam; and
c)was not satisfied that the Data Breach affected the applicant’s claims, and rejected the applicant’s assertion that his claims might have been published, and referred to its findings regarding failed asylum seekers generally, namely that they would not be at any risk of harm upon return to Vietnam: DZAFB at [28] per Judge Jarrett,
and the Court found that the Tribunal had properly understood the claims made by the applicant, considered all of the evidence, and made findings of fact upon that evidence: DZAFB at [36] per Judge Jarrett, and concluded that the Tribunal had not erred in its findings with respect to police harassment: DZAFB at [46] per Judge Jarrett (the Court having extensively reviewed the applicant’s claims concerning the Tribunal Decision with respect to police harassment: DZAFB at [37]-[45] per Judge Jarrett).
The Court also found in DZAFB that the Tribunal had not erred, in failing to consider whether the applicant faced serious harm on return to Vietnam by reason of a denial of capacity to earn a livelihood or a threatening of the applicant’s capacity to subsist, and found no jurisdictional error evident from the Tribunal Decision in that regard: DZAFB at [47]-[53] per Judge Jarrett.
In DZAFB the Court also found that the Tribunal had properly considered the issue of complementary protection and applied the applicable law concerning whether or not the applicant would suffer “significant harm” if returned to Vietnam: DZAFB at [54]-[60].
With respect to the Data Breach in DZAFB the applicant challenged the Tribunal’s determination that it was not satisfied on the evidence that there was a real chance of serious harm to the applicant by reason of the Data Breach: DZAFB at [62] per Judge Jarrett. In relation to the Data Breach the Court referred to:
a)the fact of the Data Breach, and the Privacy Commissioner’s report concerning the Data Breach: DZAFB at [63]-[65] per Judge Jarrett; and
b)the setting out of the Tribunal’s recording of the fact of the Data Breach, and the extent of the Data Breach, and set out a lengthy account of the Data Breach, seemingly taken from a report in The Guardian newspaper, and invited the applicant to comment on how the applicant might be affected by the Data Breach, and set out the applicant’s response that the Data Breach might “tip off the authorities that he had sought asylum in Australia”: DZAFB at [67] per Judge Jarrett.
In DZAFB the Court dealt extensively with the arguments in relation to the Data Breach at [69]-[90] per Judge Jarrett as follows:
69 However, in my view none of these matters address the issues that properly concerned the tribunal, namely whether there was a real chance of serious harm for a Convention reason to the applicants, or a real chance of significant harm, should they be returned to Vietnam. The release of data about the applicant could affect those considerations in at least two ways. First, the release of the data had the potential to identify the applicants as asylum seekers in Australia. That would necessarily be relevant to the applicant's claim that known failed asylum seekers would be exposed to the relevant types of harm upon return. But the critical issue here is knowledge of the failed asylum claim. Second, the release of the data might be relevant to the nature of the claims made by the aspiring refugee. Knowledge of the claims made by the applicant might affect the applicant's home State's attitude towards an individual returning failed asylum seeker. That is to say, the claims made by the applicant might inform the relevant authorities of matters that might lead to persecution should the applicant be returned.
70 As to the first matter, to the extent that the applicant was concerned that the publication of his data “might tip off the authorities that he had sought asylum in Australia”, the tribunal considered separately, the risks for the applicants as unsuccessful asylum seekers returning to Vietnam. Insofar as the applicant's fears of harm arose out of his status as a failed asylum seeker returning to Vietnam, that it was known that he was a failed asylum seeker was what was important, not how that knowledge came to be known.
71 As to the second matter, the tribunal was required to assess the applicant's claims against the evidence before it. The tribunal accurately recorded the evidence before it. The applicant was asked at the tribunal hearing, to comment about the data breach. His concern focussed upon whether his statement of claims had been released. None of the material before the tribunal suggested that the applicant's statement of claims had been released. Despite the applicants' submissions to the contrary, there was evidence before the tribunal upon which it could find that the applicants statements and claims to protection had not been released:
“The information did not include your address (or any former address), phone numbers, or any other contact details. It also did not include to any information about protection claims that you or any other person may have made, and did not include any in any other information such as health information.”
(Letter from the first respondent's department to the applicant dated 12 March, 2014)
72 The same letter set out the information that had been released namely, the applicants' names, dates of birth, nationality, gender, details of their detention and if they had other family members in detention.
73 In my view, the tribunal undertook the task that it was required to undertake in respect of the applicant's claims that arose out of the “data breach”.
74 The applicants further argue that even if and when the first respondent's department provides all the necessary information to the applicants to enable them to fully understand what was disclosed, the applicants will not know who accessed the information and what has been done with it. As the applicant's point out, the data, once accessed after it was made available to the world, could be saved, modified and passed on further without the first respondent's department's knowledge. The applicant's argue that it is possible that if the Vietnamese State were concerned or interested in Vietnamese asylum seekers in Australia, it could monitor the monthly statistics published by the first respondent's department, taking note of information of interest. It is possible that having done this, it could have “saved” the data which was freely available on line between at least 10-19 February 2015.
75 The applicant's conclude by submitting that the tribunal's conclusions about failed asylum seekers being safe to return to Vietnam is incorrect at law because the tribunal could not have properly decided on the effect of the “data breach” without knowing the exact content of the data that was published. For this reason the tribunal was not in a position to properly evaluate the claim.
76 But in my view, these arguments do not assist the applicants because the tribunal found that the details of the applicants' protection claims were not revealed in the “data breach” and the applicant's claims were assessed against information available to the tribunal about how the Vietnamese authorities dealt with known failed asylum seekers.
77 To the extent that the applicants argue that the tribunal ought to have obtained the “exact” information that had been disclosed by the first respondent's department in the “data breach”, in my view, there was no obligation upon the tribunal to seek out that “exact” information will stop that is so because the tribunal had before it, evidence of the information that had been disclosed. That evidence was in the letter of 12 March, 2014. That letter provides particulars of the information that was disclosed and the information that was not disclosed. The tribunal needed to look no further. There was no failure to accord the applicant's natural justice or procedural fairness by proceeding in the way in which it did.
78 In my view, this ground of review reveals no jurisdictional error in the tribunal's decision
79 The next ground is that specified in paragraph 10 of the amended application as follows:
“The Tribunal denied the applicant procedural fairness in deciding on the effect of the DIBP's unlawful disclosure of the applicant's personal information (data breach) when there are multiple ongoing and unresolved litigation directly affecting the applicant's interests, specifically the applicant's interests concerning DIBP ‘normal processes’ for assessment of implications for individuals personally, as described in the DIBP's letter to the applicant about the data breach, dated 12 March 2014.”
80 The applicants submit that the first respondent's “breach of privacy of individual asylum seekers has significant and far-reaching implications for the individuals whose privacy was breached and a number of individual complaints have been lodged and are being investigated by the Australian Privacy Commissioner. Amongst these, are the applicants' complaints (the applicant's complaint number CP14/03756; his wife's complaint number CP14/03739 and his daughter's, CP14/03755)”. They further argue that given that there are “ongoing privacy complaints” which are currently under investigation, it is inappropriate for both the first respondent's delegate and the tribunal to determine conclusively that the first respondent's data breach would not render the applicant a refugee sur place, or invoke complementary protection.
81 They further submit that “there is other unresolved litigation on foot which have direct import to the applicant in respect of questions concerning the processes by which his and his family's Protection Visa applications must be dealt”. They point out that in the letter of 12 March, 2014 from the first respondent's department about the “data breach”, the penultimate paragraph of the letter said:
“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes”
(emphasis added).
82 Drawing upon the decision in SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 the applicants argue that the tribunal ought not to have rejected their applications.
83 The application in SZWAJ was for an injunction pending appeal from a decision of the Federal Circuit Court of Australia refusing the grant of an injunction restraining the Minister for Immigration from removing the applicant in that case from Australia. The applicant had received a letter in similar terms to the one received by the applicants in the case now before me. She had been unsuccessful in an application for a protection visa. She had not sought judicial review of the tribunal's decision that, in effect, refused her application for that visa. She did, however, receive notice that she was to be removed from Australia.
84 SZWAJ claimed that the statement in the letter that the department would assess any implications arising from the data breach “as part of its normal processes” is apt to give rise to an expectation that the Department would conduct some other process to assess the impact of the data breach for her in addition to the protection visa application process that she had already exhausted. On the basis that such additional process has not yet occurred, that applicant sought an injunction restraining her removal from Australia.
85 After describing the competing constructions that might be placed on the relevant paragraph of the letter, at [9] - [10] Greenwood J said:
“9. 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.
10. It is not clear to me where 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.”
86 The first respondent submits that the arguments raised in SZWAJ have no relevance to this proceeding because the applicant in SZWAJ sought a finding that the Department must carry out some assessment of the impact of the data breach on her which was in addition to the protection visa application and review process that she had already exhausted.
87 I agree. Irrespective of which of the two competing constructions of the relevant paragraph in the letter identified in SZWAJ is correct, the fact that is litigation on foot such as SZWAJ is irrelevant to the present proceedings. That is so because:
“a. if the first construction is adopted (that there is a separate process to be undertaken in addition to the application for the protection visa) the necessity for that process cannot have an effect on the outcome protection visa application; and
b. if the second construction is adopted (that the question is to be taken up in the protection visa application process) the tribunal has undertaken what is required of it in that regard.”
88 I accept the first respondent's submission that the question of whether the present applicants are entitled to the benefit of some further process is irrelevant to this Court's judicial review of the tribunal's decision. The tribunal was not required to consider whether some additional process was required or had taken place in relation to the applicants.
89 Moreover, I accept the first respondent's submissions that there is no apparent reason why the existence of ongoing privacy complaints by the applicant or his family are relevant to the tribunal's review of the first applicant's claims for protection.
90 This ground reveals no jurisdictional error.
The applicant appealed DZAFB, but in DZAFB Appeal that appeal was dismissed by the Federal Court.
The first ground of the appeal related to whether the Tribunal had jurisdiction over breaches of the Privacy Act 1988 (Cth) (“Privacy Act”), and in that regard the Federal Court observed that it was not a matter that was argued before this Court, and that leave would not be granted to raise it before the Federal Court because the Tribunal was not exercising jurisdiction conferred by the Privacy Act, and went on to agree with the judgment in DZAFB at [89] per Judge Jarrett that the existence of ongoing privacy complaints by the applicant was not relevant to the Tribunal’s review of the applicant’s claims for protection: DZAFBAppeal at [15] per White J. The second ground of appeal related to pending proceedings in the High Court in what would become Minister for Immigration & Border Protection & Anor v SZSSJ & Anor [2016] HCA 29; (2016) 259 CLR 180; (2016) 90 ALJR 901; (2016) 334 ALR 653 (“SZSSJ-High Court”), and in relation to those pending proceedings (“Pending High Court Proceedings”) the Federal Court found in DZAFB Appeal that:
a)the applicant had not identified any particular aspect DZAFB that would be called into question in the High Court in the Pending High Court Proceedings: at [21] per White J;
b)the applicant’s claim was distinguishable from the circumstances in the Pending High Court Proceedings because it did not involve an independent treaties obligation assessment (“ITOA”) at all, and specifically noted that:
… the applications for protection visas was determined by the Minister’s delegate and later affirmed by the RRT. Both decisions were made after the Data Breach had occurred and after its occurrence had been made known to the … [applicant]. Further, account was taken of the Data Breach in the determinations of the applications and the … [applicant] made submissions concerning it.
at [22] per White J; and
c)the issues in the Pending High Court Proceedings were different from those arising in DZAFB in that the Pending High Court Proceedings related to a non-statutory process conducted by officers of the Department, and not the statutory process undertaken by the Tribunal (then the Refugee Review Tribunal): at [23] per White J, and that that distinction had been recognised in various cases before the Federal Court: at [24] per White J.
The essential question which now arises is whether the applicant has sought in the originating application to agitate issues which have already been considered by this Court in DZAFB, from which an appeal was dismissed in DZAFB Appeal, or whether the grounds are reasonably arguable or have a reasonable prospect of success: SZTES at [48] per Wigney J.
Grounds 1-2 of the originating application
Ground 1 of the originating application asserts that the Minister has not undertaken the normal Departmental process promised in the Breach Letter, while ground 2 asserts a denial of procedural fairness because consideration of the exercise of the Minister’s personal powers under ss.48B, 195A or 417 of the Migration Act has not proceeded, presumably to an ITOA. Before considering DZAFB and DZAFB Appeal further, it is necessary to say something about SZSSJ-High Court and the “normal Departmental process”.
Ground 1 does not identify the “normal departmental process” alleged to have been promised in the Breach Letter.
The applicant refers to SZSSJ-High Court at [52]-[55] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, where the High Court considered the ITOA process. Those paragraphs must be read in context with the surrounding paragraphs: see: BNW15 v Minister for Immigration & Anor [2017] FCCA 1737 at [7] per Judge Lucev. In SZSSJ-High Court at [56]-[57] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court said:
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.
Every person detained in an immigration detention centre at the date of the Data Breach received a letter in the same terms as the Breach Letter. The Breach Letter made no representation or reference to the ITOA as a specific process to be undertaken when assessing the impact of the Data Breach.
In SZVEY v Minister for Immigration & Border Protection [2015] FCA 394; (2015) 146 ALD 168 (“SZVEY”) the Tribunal had considered the applicant’s claims arising from the Data Breach in relation to the applicant’s Protection Visa application and determined that no information about any of the applicants’ protection claims had been released, and it was not satisfied that the information had been accessed by the applicant’s home country authorities or would be of any interest to them: SZVEY at [6] per Bennett J. The Tribunal Decision was judicially reviewed by this Court, and it was held that there was no jurisdictional error made by the Tribunal: SZVEY at [7] per Bennett J. Subsequently, upon the Minister seeking to remove the applicant in SZVEY from Australia, the applicant made an urgent application for injunctive relief to prevent the removal which was refused in this Court, and which was the subject of an urgent application for leave to appeal in SZVEY: SZVEY at [7]-[8] per Bennett J. In SZVEY it was asserted that the applicant there was entitled to the benefit of the ITOA procedure: SZVEY at [9] per Bennett J. In SZVEY at [11] per Bennett J the Federal Court observed that:
The difficulty for the applicant is that the consequences of the data breach in her case were fully considered by the Tribunal. Accordingly, it is hard to see what additional processes the Department should have implemented in the present case if, in fact, the concern of the Department was to consider the consequences of the data breach for the particular applicant.
The Federal Court ultimately held that the applicant had not established any arguable basis for the orders sought: SZVEY at [17] per Bennett J.
In SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 (“SZWAJ”) the applicant’s case was predicated on an assumption that the normal processes referred to in the Breach Letter were the ITOA processes referred to in SZSSJ-High Court: SZWAJ at [21] per Griffiths J. Having distinguished the factual circumstances as relating to a very different and earlier stage in the consideration of the applicant’s position: SZWAJ at [24] per Griffiths J, the Federal Court went on in SZWAJ at [26]-[27] per Griffiths J as follows:
26 It is critical to note that, in the proceeding here, the Data Breach occurred prior to the appellant applying for a protection visa. The processes which then ensued before both the Minister's delegate and the Tribunal provided the appellant with an opportunity to say whatever she wished to say concerning the implications of the Data Breach for her entitlement to protection. Subject to relevant provisions in the Migration Act the statutory processes of considering and determining her application for a protection visa, both by the delegate and on review by the Tribunal, attracted procedural fairness obligations. The appellant did not point to any aspect of those processes which involved procedural unfairness to her. Nor is her case strengthened by her reliance on SZSSJ High Court because of the findings made there concerning the different process which had commenced in respect of the aggrieved persons in those proceedings.
27 The significance of the fact that a person affected by the Data Breach has had an opportunity to make submissions and adduce evidence as to its significance to the particular person through the processes for considering and determining a visa application is highlighted in other decisions of this Court in SZVEY v Minister for Immigration and Border Protection[2015] FCA 394 at [14] per Bennett J and DZAEH v Minister for Immigration and Border Protection[2016] FCA 54 at [31]-[33] per Barker J, both of which support the approach taken by the primary judge here.
In this case no ITOA process had commenced, nor did one occur, and nor was the Department obliged to undertake the ITOA process in the applicant’s circumstances. The ITOA process was normally commenced in circumstances where a protection visa application had already been finally determined, and the Department was obliged to consider if the Data Breach had caused any significant change or heightened possible adverse consequences for an individual. The applicant in this case had such an assessment afforded to him in the “normal processes” of the Protection Visa application process as follows:
a)the Delegate’s Decision finding of no real risk of harm from the Data Breach as the information released revealed no anti-government views as the applicant claimed: Corbould Affidavit, Annexure PJC2;
b)the Tribunal Decision considered the applicant’s claims of fear and persecution as a result of the Data Breach against the identified limits of the information which was available for access. Namely, the applicant feared harm from his “imputed political opinion” and seeking asylum in Australia. Evidence and information before the Tribunal, and provided to the applicant, stated no information about protection claims or health information was revealed: Corbould Affidavit, Annexure PJC3, Tribunal Decision at [6];
c)the Tribunal in considering country information stated "it is unlikely that a person who departed illegally would suffer punitive action from Vietnamese authorities if deported back to Vietnam" and the Vietnamese policy on returnees "is that they have a right to return to Vietnam and that they will not face further punishment for offences committed outside Vietnam": Corbould Affidavit, Annexure PJC3, Tribunal Decision at [30]; and
d)the Tribunal asking the applicant to provide any comment on the effect of the Data Breach, and his response claiming the breach may have tipped off authorities that he had sought asylum in Australia by publishing his statement of claim. The Tribunal found no evidence the release of any information beyond that stated in the Breach Letter had been made available and dismissed these claims: Corbould Affidavit, Annexure PJC3, Tribunal Decision at [39].
As to the processes to be followed in relation to the applicant this was a matter expressly dealt with by this Court in DZAFB, it being specifically asserted in the amended application under consideration in DZAFB that the applicant had been denied procedural fairness in relation to ongoing and unresolved litigation affecting the applicant’s interests and specifically his interest concerning the Department’s normal processes for assessment of implications for the applicant personally arising from the Data Breach as set out in the Breach Letter: DZAFB at [79] per Judge Jarrett. The Court found that the question of whether or not the applicant was entitled to the benefit of some further process was irrelevant to the Judicial Review Application of the Tribunal Decision: DZAFB at [88] per Judge Jarrett. In that regard, ground 1 of the originating application is a matter which has been specifically determined by this Court, and must therefore be the subject of, at least, an issue estoppel. Further, and in any event, for reasons otherwise set out above, the normal process in a case such as this was that followed by the applicant, resulting in the Delegate’s Decision and the Tribunal Decision: see [62]-[64] above. In those circumstances ground 1 has no arguable merit. It follows from what has just been said that ground 2 would also be the subject of an issue estoppel, and would also have no arguable merit.
Ground 3 of the originating application
Ground 3 is an assertion of a denial of procedural fairness because of an alleged failure to warn the applicant that the Tribunal would not apply an assumption that all of the applicant’s personal information had been accessed by all the persons or entities from whom persecution or harm was feared.
The Court expressly dealt with this issue in relation to the disclosure of personal information in DZAFB at [74]-[77] per Judge Jarrett, and the Court found that arguments about the nature of access to the applicants’ personal information by the Vietnamese Government did not assist the applicant because the Tribunal found that the details of the applicant’s protection claims were not revealed in the Data Breach and the applicant’s claims were assessed against information available to the Tribunal about how the Vietnamese authorities dealt with known failed asylum seekers: DZAFB at [74]-[76] per Judge Jarrett. In DZAFB it was also found that an assertion that the exact information that had been disclosed ought to have been obtained by the Tribunal, and was not something that the Tribunal was obliged to do because the Tribunal had before it evidence and information as to what was disclosed as set out in the Breach Letter and that the Tribunal did not need to look any further, and there was therefore no failure to accord the applicant procedural fairness: DZAFB at [77] per Judge Jarrett. In the circumstances, ground 3 is also issue estopped because the Court in DZAFB dealt with the question of the nature of access to and use of the applicant’s personal information.
The Court also observes that ground 3 would have no reasonable prospect of success because it was not a claim made before the Tribunal, as the applicant limited his comments on the Data Breach to the assertion that “maybe the Department had published his statement of claims”, which on the evidence before the Tribunal, did not happen, and further the applicant’s claim that the breach might tip off authorities that he had sought asylum in Australia was dealt with by the Tribunal on the basis that failed asylum seekers returning to Vietnam would not be likely to suffer punitive action from the Vietnamese Government or face further punishment: Corbould Affidavit, Annexure PJC3, Tribunal Decision at [30] and [39]. In those circumstances, ground 3 is not reasonably arguable.
Ground 4 of the originating application
In relation to ground 4 it is alleged that the Tribunal Decision made findings in relation to the Tribunal’s access to the applicant’s personal information disclosed in the Data Breach, and the applicant’s opportunity to access that information, and made a finding based on no evidence.
It is well accepted that a no evidence ground cannot succeed unless there is no evidence, or other material, to justify the findings of fact made, so that a skerrick of evidence supporting the findings is sufficient to defeat a no evidence ground: MZZYE v Minister for Immigration & Border Protection [2015] FCA 1378 at [54] per Murphy J; Federal Commissioner of Taxation v Pham & Ors [2013] FCA 579; (2013) 94 ATR 528; (2013) 60 AAR 264; (2013) 134 ALD 534 at [46] per Katzmann J.
The difficulty with ground 4 is that it does not identify the finding or findings which it is said are based “on no material evidence”, and although the particulars refer to access to personal information in relation to the Data Breach, there is no particular finding or findings identified as being based “on no material evidence” or “no evidence”.
As is evident from the discussion in relation to grounds 1-3 above there was evidence before the Tribunal in relation to the information the subject of the Data Breach which justified the findings actually made by the Tribunal in relation thereto. Having regard to that evidence, and to the fact that no particular finding is identified by ground 4, ground 4 cannot succeed either because it lacks particularity, or because there was evidence to justify the findings actually made by the Tribunal in relation to the Data Breach.
In all of the above circumstances, there is no reasonably arguable basis upon which ground 4 could succeed.
Ground 5 of the originating application
Ground 5 complains that the Tribunal failed to ask itself the question “what if I am wrong” in relation to its assessment of the applicant’s claims and credibility, and the possibility of error in its evaluation of the applicant’s claims and the Data Breach.
It suffices to observe that the Tribunal only needed to ask itself the question “what if I am wrong” if it had any real doubt as to its findings, otherwise there is no such obligation to consider the “what if I am wrong” test: Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 221 at [12] per Sundberg, Katz and Healy JJ; AXG15 v Minister for Immigration & Anor [2015] FCCA 3259 at [25]-[28] per Judge Jarrett. In circumstances where there is no indication that the Tribunal had any real doubt as to its findings, and where no particular finding is particularised by the applicant as properly being the subject of the “what if I am wrong” test, ground 5 is not a ground which is reasonably arguable.
Ground 6 of the originating application
Ground 6 asserts that the Tribunal failed to apply the test for complementary protection by failing to properly consider and apply the applicable law in relation to what constituted significant harm to the facts as raised by the applicant’s claims and the Data Breach.
Ground 6 cannot succeed: in its findings with respect to complementary protection the Tribunal dealt expressly with the issue of the Data Breach, albeit briefly, but appropriately given that for the purposes of complementary protection the factual scenario with respect to the Data Breach was the same as it was with respect to the alleged Convention breaches: MZYXS v Minister for Immigration & Citizenship [2013] FCA 614 at [31] per Marshall J. The Tribunal expressly found that it was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm upon return to Vietnam: Corbould Affidavit, Annexure PJC3 at [49] in Tribunal Decision. It follows that ground 6 has no prospect of success, or at the very least, is not reasonably arguable.
Conclusions with respect to the extension of time application in the originating application
Arising from its consideration of the extension of time application in the originating application the Court has reached the primary conclusion that by reason of s.486D(1) of the Migration Act the originating application is itself incompetent, and it is therefore strictly unnecessary to consider the extension of time application. In any event, the extension of time application cannot succeed. The delay is too long, and it is not explained, either at all or adequately, by the applicant, and the length of delay and failure to explain are of themselves sufficient not to grant an extension of time. Further, the issue of prejudice weighs against the grant of an extension of time, and the originating application has no merit whatsoever: grounds 1 and 2 are issue estopped, and grounds 1-6 are not reasonably arguable. Finally, having regard to the fact that the applicant has already undertaken judicial review in relation to the Tribunal Decision, and appealed, unsuccessfully, his unsuccessful judicial review application in DZAFB, the Court considers that the originating application is an abuse of process, and no further Commonwealth judicial resources should be wasted on this case: Spalla at [69] per French J, particularly in a Registry where the case load was, just two months after this case was argued, characterised as “extreme” by the Federal Court: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J.
It follows from the above, that even if the originating application was not incompetent, the Court would not, on a consideration of the usual factors, grant the extension of time sought by the applicant.
The purported amended originating application
The applicant, by a purported amended originating application filed on 5 September 2017, seeks an extension of time under s.477(2) of the Migration Act to bring proceedings against the Minister seeking declarations in respect of a potential future decision or action to remove the applicant from Australia pursuant to s.198 of the Migration Act and injunctive relief to prevent his removal from Australia.
The grounds of the purported amended originating application (which is styled as a “Further Amended Application”) are as follows (transcribed verbatim):
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 ITOA reviewer erred in failing to provide me with procedural fairness.
Particulars
a) The ITOA reviewer found that my testimony came across as rehearsed and the quality and manner of my testimony provided did not appear to be consistent with the recollection of a lived experience;
b) The ITOA reviewer found that I deliberately fabricated my claims in order to apply for asylum in Australia;
c) The ITOA reviewer found that the documentary evidence I provided contained no security features and is not verifiable and noted the ease in which a person with a printer and a pen could have produced a document of this nature; and
d) The ITOA reviewer failed to put any of these findings to me for comment and denied me procedural fairness.
3. 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.
It is unnecessary to consider the grounds of the purported amended originating application and the application for an extension of time in which to file that purported amended originating application in circumstances where there is no competent originating application both by reason of s.486D of the Migration Act, and because, in any event, time would not have been extended in which to file an originating application. It suffices to observe however that:
a)insofar as ground 1 of the purported amended originating application refers to an alleged failure by the Minister to undertake the normal Departmental processes allegedly referred to in the Breach Letter, that ground would fail for the reasons set out at [58]-[65] above; and
b)grounds 2 and 3 of the purported amended originating application would fail because the references therein to an ITOA review and what was found by the ITOA Reviewer are wholly fallacious, there never having been an ITOA review for this applicant, and there not needing to be an ITOA review for the reasons set out at [58]-[65] above.
As the grounds of the purported amended originating application are therefore without merit, no extension of time under s.477(2) of the Migration Act would have been granted in any event.
The summary dismissal application
The Minister sought orders that the originating application be dismissed pursuant to s.17A(2) of the FCCA Act and r.13.10 of the FCC Rules on the grounds that:
a)the applicant has no reasonable prospect of success in this proceeding, to be determined with reference to the criterion of s.17A(3) of the FCCA Act;
b)the proceeding is frivolous or vexatious; and
c)the proceeding is an abuse of process of the Court,
and in its outline of submissions extended the summary dismissal application to the purported amended originating application.
In circumstances where the originating application is incompetent by reason of s.486D of the Migration Act, or, alternatively, would not have been the subject of a grant of extension of time under s.477(2) of the Migration Act, it is unnecessary to give detailed consideration to the summary dismissal application as the issue of summary dismissal does not strictly arise. Further, in relation to the purported amended originating application, it suffices to observe that it has no reasonable prospect of success in circumstances where:
a)there is no originating application; and
b)even if there was a valid amended originating application it would have no prospects of success for the reasons set out at [80]-[83] above.
Conclusion
The Court’s primary conclusion is that the originating application is incompetent pursuant to s.486D(1) of the Migration Act. There will be a declaration to that effect. The Court will hear the parties as to costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 23 May 2019
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