CWW18 & Ors v Minister for Immigration & Anor
[2020] FCCA 26
•24 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWW18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 26 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decisions – refusal of protection visas – applicants claiming a fear of harm in Iran – principal applicant disbelieved in critical respects and other fears found not to be well-founded – whether the principal applicant is an unauthorised maritime arrival considered – whether the Authority erred in considering whether to accept new information or in considering the applicant’s data breach claims considered – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.4 |
| Cases cited: Aban v MILGEA (1991) 31 FCR 93 |
| First Applicant: | CWW18 |
| Second Applicant: | CXE18 |
| Third Applicant: | CXF18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1570 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Barriston Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended by leave granted on 26 March 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1570 of 2018
| CWW18 |
First Applicant
CXE18
Second Applicant
CXF18
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 19 November 2019.
The first applicant (applicant) is a citizen of Iran. He arrived with the second and third applicants in Australia on 31 October 2012 and they applied for temporary protection visas on 11 July 2015. The applicants claimed initially to be stateless Faili Kurds, however later rescinded that claim and accepted they were Iranian. The applicant claimed to fear harm if returned to Iran on the basis of his ethnicity as a Faili Kurd and claimed that 15 years before he came to Australia he was arrested and imprisoned by the Ettela’at after making comments about the rights of Faili Kurds in Iran. He also claimed to have been imprisoned for five months in 2007 for working illegally. The applicant was also taken to have made a claim to fear harm for reason of the publication of his and his family’s details in a data breach from a Government website.
On 14 August 2017 a delegate of the Minister refused to grant the applicants the visas.[1] The matters were referred to the Authority for review.[2] The applicant through his representative provided submissions and new information to the Authority.[3]
[1] CB 254
[2] CB 291
[3] CB 302-310
On 24 January 2018 a delegate of the Minister issued a certificate pursuant to s.473GB of the Migration Act 1958 (Cth) (Migration Act).
Authority’s decision
On 30 April 2018 the Authority affirmed the decision under review.[4]
[4] CB 321
The Authority took into account the new information provided to it. It took the form of two new claims. These were, first, that the applicant had, since his arrival in Australia, converted to Christianity; and secondly, that he had been using social media since being in Australia to express his religious beliefs and that activity had exposed him to charges of apostasy and significant harm from Iranian authorities. The Authority did not consider that exceptional circumstances existed to justify consideration of the new information as the applicant appeared to have been baptised prior to the delegate’s decision, but made no mention of this claim prior to the delegate’s decision. The Authority at [9] questioned the believability of the conversion in light of the circumstances and was not satisfied of the matters in s.473DD(b). Additional new country information was also found not to overcome the bar set by s.473DD.[5]
[5] CB 324 at [10]
The Authority went on at [22] to address the applicant’s claims. It found, contrary to the applicant’s initial claims, that he and his family had obtained Iranian citizenship prior to 1997. It accepted he and his family were Faili Kurds. The applicant in his delegate’s interview ultimately accepted that he was an Iranian citizen when he made his protection visa application and that a people smuggler had encouraged him to provide fraudulent information.[6] The delegate sought to confirm with the applicant what his claims then were in light of this retraction. The applicant stated that he feared being sent to prison and that he cannot return to Iran because of its government, and that he had been arrested and imprisoned for a year in about 1997.[7]
[6] CB 327 at [21]
[7] CB 327 at [24]
The Authority considered at [25] the applicant’s oral account given to the delegate about his alleged arrest and imprisonment. It found the account of his experience of being arrested and imprisoned due to his pro-Kurdish views to have been vague and lacking credibility. It found the applicant did not express any specific anti-Iranian government or pro-Kurdish views, and the Authority did not accept that he held any such views or that he was ever imprisoned for these reasons.
The Authority did accept that, prior to obtaining Iranian citizenship, the applicant was required to renew his green card and work illegally and was unable to purchase a house or a car. However it did not accept, at [26] for instance, that the applicant’s wife would have lost her rights as an Iranian citizen upon marrying the applicant, even if he was stateless when they married. It found that as the holder of a green card the applicant would have been entitled to healthcare, education and state benefits. It rejected the applicant’s claim that he and his children were rejected from a hotel. The Authority had regard to DFAT[8] information concerning the rights of Faili Kurds in Iran and their ability to access services and be provided protection like other Iranian citizens.[9] The Authority accepted that some country information indicated that Faili Kurds in Iran experienced day-to-day societal discrimination, but it noted there was a distinction drawn in some of the information between the treatment received by Faili Kurds and the predominantly Sunni Iranian Kurds. At [29], the Authority found the applicant would not be at risk for reason of his ethnicity in circumstances where he did not hold any specific anti-Iranian government views and had not been politically active on behalf of any group in this respect.
[8] Department of Foreign Affairs and Trade
[9] CB 328 at [28]
The Authority then went on to consider the applicant’s risk of harm for being a returning asylum seeker from a western country. The Authority found, at [31]-[34], that a person who had departed Iran illegally would not as a voluntary returnee encounter adverse attention upon return. Further, the Authority accepted that the applicant’s and his family’s personal details had been made publically available by an inadvertent data breach, but that the applicant’s protection claims were not part of the publication. On that basis, and observing that the authorities in Iran would become aware of the fact that the applicant was a returning failed asylum seeker when he returned to Iran, it found at [35]-[37], the data breach did not give rise to a relevant risk of harm.
The Authority was not satisfied the applicant had the benefit of protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The present proceedings
These proceedings began with a show cause application filed on 5 June 2018. The applicants now rely upon a proposed amended application annexed to the affidavit of their solicitor, Behrooz Ehsani, made on 22 March 2019. By order 1 made by me on 26 March 2019, I granted the applicants leave to file that application.[10]
[10] The application was not filed
The grounds in the application as amended are:
Ground 1: The respondents failed to follow procedures required by law
1. The decision by the IAA is vitiated by jurisdictional error as the applicants were not an "unauthorised maritime arrival" (UMA) as defined by section SAA of the Migration Act 1958 (Cth) and therefore were not "fast track applicants" as defined by section 5 of the Migration Act 1958 (Cth). As a consequence, the applicants were not notified of the decision made by the delegate to Minister on 14 August 2017 pursuant to section 66 of the Migration Act 1958 (Cth).
Particulars
a)In October 2012, the applicants departed Iran by plane for Indonesia. Shortly after, the applicants left Indonesia for Australia by boat and were intercepted by the Australian Navy.
b)The applicants was first detained on board a vessel belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, as the Australian Capital Territory (ACT) of the Commonwealth of Australia.
c)At the relevant time that the boat was intercepted, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
d)On 30 November 2012, the applicants were taken to Christmas Island.
e)The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No.2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, is invalid.
f)At [1], the IAA observed that "[o]n 14 August 2015 the applicant husband ('the applicant'), his wife ('the applicant wife'), [their] daughter ('the applicant daughter') and their son ('the applicant son') lodged a combined application for Temporary Protection Visas (TPVs)." The IAA observed at [2] that the "applicant daughter (IAA18/04228). who lives with her husband, withdrew from the family unit's TPV application prior to the delegate's decision and lodged her own application. The applicant daughter is the subject of a separate IAA review" At [3], the IAA observed that "[o]n 14 August 2017; delegate of the Minister for Immigration [and] Border Protection (the delegate) refused to grant TPVs to the applicant, [applicant] wife and applicant son.”
g) The applicants were not “UMA’s” and were not a fast track reviewable people. As a consequence, the applicant was not notified of the decision by the delegate to the Minister made on 23 May 2018 pursuant to section 66 of the Migration Act 1958 (Cth).
Ground 2: The IAA erred by finding that there were not exceptional circumstances to justify consideration of new information regarding the submission dated 25 September 2017, pursuant to section 473DD(a) and (b) of the Migration Act 1958 (Cth)
2. The finding by the IAA that there were not "exceptional circumstances" to justify consideration of the "new information" regarding the submission dated 25 September 2017, at [5], which were not before the delegate to the Minister, was affected by jurisdictional error for the following reasons.
a)The IAA failed to consider the requirements pursuant to section 473DD(a) of the Migration Act 1958 (Cth) in conjunction with the requirement pursuant to section 473DD(b)(i)(ii) of the Migration Act 1958 (Cth); and/or
b)There were exceptional circumstances to justify consideration of the "new information" pursuant to section 473DD(a) of the Migration Act 1958 (Cth); and/or
c)The "new information", which was not before the delegate to the Minister, was not and could not have been provided to the Minister before the Minister made the decision under section 65 pursuant to section 473DD(b)(i) of the Migration Act 1958 (Cth); and/or
d)The IAA misapplied principle with regard to whether the "new information", was "credible personal information" pursuant to section 473DD(b )(ii) of the Migration Act 1958 (Cth); and /or
e)The IAA failed to consider whether the "new information, which was not previously known to the delegate and if it was known by the delegate, whether it would have affected the consideration of the applicant's claims, pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth).
f)In the premises, the IAA took an inappropriately narrow view of the breadth of the expression "exceptional circumstances" in section 4 73DD of the Migration Act 1958 (Cth). As a consequence, the review by the IAA pursuant to section 473CC of the Migration Act 1958 (Cth) miscarried by way of jurisdictional error.
Particulars
The “new information”
a) At [5], the IAA observed that “[o]n 25 September 2017 the IAA received a submission on behalf of the applicant (‘the IAA submission’). The IAA submission reiterates claims made to the delegate that are contained in the review material. It also contains arguments in relation to issues before the delegate, which I have noted.”
b)At [6], the IAA observed that "IAA submission raises two new claims on behalf of the applicant, namely:
• Since the applicant's arrival in Australia he has converted to Christianity and has been actively participating in his church.
• During the applicant's time in Australia he has been using social media such as Facebook to express his beliefs about Christianity to his friends and family. The applicant's Facebook activity has exposed him to charges of apostasy and significant harm from the Iranian authorities."
The baptism certificates
c)At [7], the IAA observed that "[a]ttached to the IAA submission are baptism certificates for the applicant and applicant wife from Liberty Baptist Church, North Rocks, NSW. The certificates attest that the applicant and applicant wife were baptised as Christians on 16 July 2017."
d)At [8], the IAA observed that "[d]uring the applicant's TPV interview, at which the applicant was represented, the delegate spent some time exploring how his protection obligations would be assessed and the importance of providing all relevant information in the first instance, which the applicant indicated he understood. At the end of the TPV interview the delegate reminded the applicant he could provide further information after the interview if he wished. At no point during the TPV interview the applicant indicate that he had become a Christian, or was actively participating in a church.”
e) At [9], the IAA observed that the “baptism certificates indicate the applicant [and] applicant wife were baptised on 16 July 2017; however the IAA submission does not explain why their certificates, or indeed any information about their claimed religious activity, were not provided to the delegate before he made his decision, more than one month later. If the applicant and applicant wife had in fact converted to Christianity, and are now claiming it [is] a [basis] for fearing return to Iron, one would expect that this would have been mentioned earlier. The fact that it was not, and in the absence of any explanation, raises real questions as to whether this new information is at all believable. Overall, I am not satisfied exceptional circumstances exist to justify consideration of this new information; nor has the applicant satisfied me as to either of the matters in s.473DD(b)."
The country information
f) At [10], the IAA observed that the “IAA submission also refers to several sources of country information which were not before the delegate, and which either pre-date the delegate's decision or are undated. The IAA submission does not explain why these sources could not have been provided before the delegate's decision; nor does it explain how, as general country information, they constitute personal information. Overall I am not satisfied exceptional circumstances [exist] to justify consideration of these new sources, nor has the applicant satisfied me as to either of the matters in s.473DD(b).”
Ground 3: The Tribunal failed to apply the “assumption” regarding the data breach
The IAA fell into jurisdictional error at [24] and [56] of the decision record by failing to apply the assumption that all of the applicant’s personal information had been accessed by “all of the persons or entities” from whom he “feared persecution or other relevant harm.” Such a failure impaired the applicant’s opportunity to appear, give evidence and present arguments in violation of section 425 of the Migration Act 1958 (Cth) or resulted in an actual or constructive failure to properly review the applicants’ claims in violation of section 414 of the Migration Act 1958 (cth), thereby denying the applicants substantial justice, in violation of section 420 of the Migration Act 1958 (Cth).
Particulars
The data breach
a)The IAA observed at [11], bullet point 12, that" In February 2014 the [personal] details of the applicant husband and his family were inadvertently published on the Department of Immigration and Border Protection's ('the Department') website ('the data breach'), and the Iranian authorities will know he has sought asylum in Australia."
b)The IAA observed at [35] that "[d]uring the TPV interview the delegate put to the applicant that in February 2014 a routine report released on the Department's website unintentionally enabled access to the personal information of people who were in immigration detention on 31 January 2014, and that this included the applicant and his family. The information which was accessible included the names, date of birth, citizenship, gender and detention details (including the reason for detention) of those people in immigration detention. The delegate advised the applicant that he accepted the Iranian government may have accessed the information, and invited the applicant to provide comment; however he did not do so. A written submission from the applicant's then representative provided after the TPV interview also did not directly address the matter."
c)The IAA observed at [36] that "I also accept the personal details of the applicant and his family were included in that report which the Iranian authorities may have accessed, and they may know the applicants sought asylum in Australia. However, as no protection claims were published, I am satisfied the Iranian authorities would not be aware of the contents of the applicants' TPV application."
d)The IAA observed at [41], that "I accept that the applicants are of Kurdish ethnicity. I also accept the personal details of the applicants were included in the data breach. However I have not accepted that the applicants would face a real chance of harm in relation to any of these reasons upon return. For the same reasons I also find there is not a real risk they will suffer significant harm."
Jurisdictional error
e) The IAA erred at [41] by failing to apply the assumption that all of the applicant’s personal information had been accessed by “all of the persons or entities” when finding the applicant’s claim to be “that the Iranian authorities would be aware of the applicant’s claims for protection as a result of the data breach itself.”
In addition to the book of relevant documents filed on 23 July 2018, I have before me as evidence two affidavits filed on behalf of the Minister. The first is the affidavit of Paul Wickham made on 15 April 2019. Mr Wickham deposes as to the circumstances of the arrival of the first applicant at Christmas Island on 31 October 2012. The second is the affidavit of Carly Selby-James made on 26 November 2019. Ms Selby-James provides additional evidence concerning the circumstances of the arrival of the remaining applicants.[11]
[11] the applicants having arrived together, but the first affidavit of Mr Wickham only dealing with the first applicant
This matter came before me for a final hearing on 26 November 2019. On that day, the applicants filed an Application in a Case seeking an adjournment of the hearing pending the outcome of other proceedings impacting upon Ground 1 in the amended application. I declined that application, noting that I had already reserved judgment in another matter raising the same issue[12] but I provided the parties with the opportunity to make further submissions on the issue after delivery of judgment in that matter. I also took into account that on 24 July 2019 I had adjourned the proceedings pending the outcome of the delivery of judgment by the High Court in BVD17 v Minister for Immigration[13] and the Full Federal Court in GGD18 & Ors v Minister for Immigration[14] but in the end result, those decisions did not impact upon this proceeding.
Consideration
[12] FFZ18 v Minister for Immigration [2020] FCCA 1. Nothing further was filed in response to that decision
[13] [2019] HCA 34
[14] [2019] FCA 1463
Ground 1 – did the Authority fail to follow procedures required by law?
The applicants contend that the decision of the Authority is vitiated by jurisdictional error as they were not “unauthorised maritime arrivals” as defined by s.5AA of the Migration Act and therefore were not “fast tracked applicants” as defined by s.5 of the Migration Act. They contend, as a consequence, that they were not properly notified of the decision made by the delegate of the Minister on 14 August 2017 in accordance with s.66 of the Migration Act.
In FFZ18 I relevantly stated as follows at [28]-[34]:
First, the issue is irrelevant given that the applicant disembarked onto land on Christmas Island on 17 September 2012. The Territory of Christmas Island was at that date an “excised offshore place” within s.5AA(1)(a)(i) of the Migration Act. The applicant thereby met the definition of “unauthorised maritime arrival” in s.5AA(1)(a) and (2)(a) of the Act. He was thus a “fast track applicant” within the definition in s.5(1) of the Migration Act, and the delegate’s decision was thus a “fast track decision” within s.5(1) and thus a “fast track reviewable decision” within s.473BB, which the Authority had jurisdiction to review under s.473CC(1).
Secondly, the port was in any case validly appointed. The only argument for invalidity relied upon by the applicant is that the appointment of a port at Christmas Island on 22 January 1981 was made the day before the commencement of the empowering provision in s.3 of the Migration Amendment Act (No.2) 1980 (Cth) (the 1980 Amendment Act). However this does not mean that the appointment was invalid, as the then s.4 of the Acts Interpretation Act 1901 (Cth) has the effect that the appointment was permitted and came into effect on the same day as the empowering provision ie 23 January 1981.
At the time of publication of the appointment of a port at Christmas Island in the Commonwealth Gazette No S9 on 22 January 1981 (the Appointment), s.4 of the Acts Interpretation Act, which had then been inserted by s.3(1) of the Acts Interpretation Amendment Act 1976, relevantly provided as follows:
(1) Where an Act (in this section referred to as the Act concerned), being -
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-
(a) on the day on which the Act concerned comes into operation; or
(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.
It was necessary for the Appointment to be in place at least when s.13 of the 1980 Amendment Act commenced operation (i.e. 23 January 1981). That was because s.4 of the 1980 Amendment Act extended the operation of the Act to the Territory of Christmas Island, and s.13 contemplated the possibility of an overseas vessel (within the meaning of s.12) being in port in the Territory of Christmas Island immediately before the commencement of that provision.
In the present case, the relevant empowering provision, in 1981 being s.5(1A)(a) of the Migration Act (as inserted by s.3(2) of the 1980 Amendment Act) did not come into operation immediately upon its enactment, and was expressed to confer power to appoint a port in the Territory of Christmas Island, and, thus, was an enactment of the type contemplated by the then s.4(1)(a) of the Acts Interpretation Act.
By reason of s.4(2) of the Acts Interpretation Act, the Appointment took effect on the day on which s.3(2) of the 1980 Amendment Act came into operation. That is to say, the Appointment took effect on and from 23 January 1981, not 22 January 1981.
It is apparent that the Full Federal Court in DBB16 had not been referred to s.4 of the Acts Interpretation Act or Aban, and in any event their Honours do not state that the appointment of a port at Christmas Island was invalid. For the reasons already given, the Appointment was not invalid, as held in GGD18 v Minister for Home Affairs & Anor (No 3). GGD18 is not clearly wrong and so should be followed as a matter of comity. An appeal from GGD18 was dismissed, but the appellant abandoned the arguments put below.
(footnotes omitted)
I reach the same conclusions in this matter, by reference to the factual information available and the submissions of the Minister.
The applicant entered the migration zone at Christmas Island
Section 473CA of the Migration Act provides that the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made. As defined in s.473BB of the Migration Act, a “fast track reviewable decision” is a “fast track decision” in relation to a “fast track review applicant” or a “fast track decision” determined under s.473BC. Under s.5 of the Migration Act a “fast track decision” is a decision to refuse protection (subject to exceptions that are irrelevant here) to a “fast track applicant”. A “fast track applicant” is defined as:
(a) a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
Relevantly s.5AA(1) of the Migration Act provides that a person is an “unauthorised maritime arrival” if the person entered Australia by sea:
a)at an excised offshore place at any time after the excision time for that place; or
b)at any other place at any time on or after the commencement of this section; and
c)the person became an unlawful non-citizen because of that entry; and
d)the person is not an excluded maritime arrival.
An “excised offshore place” is defined in s.5AA to mean:
a)the Territory of Christmas Island;
b)the Territory of Ashmore and Cartier Islands;
c)the Territory of Cocos (Keeling) Islands;
d)any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
e)any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
f)an Australian sea installation;
g)an Australian resources installation.
Relevantly, a person “entered Australia by sea” under s.5AA(2) if the person entered the migration zone except on an aircraft that landed in the migration zone.
The migration zone is defined in s.5 as:
the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
Having regard to the above definitions, whether a person is an unauthorised maritime arrival will depend upon the location at which the person purported to enter the “migration zone”, and by what means the person entered that location. A person enters Australia by sea by entering land that is part of a State or Territory (which includes Christmas Island) at mean low water, except on an aircraft that landed in the migration zone. The territory of Christmas Island is an excised offshore place. That means that a person will be an unauthorised maritime arrival if the person arrived at Christmas Island, other than by aircraft, and entered the Island by stepping onto land that is part of the Island.
The evidence before the Court (see the affidavit of Mr Wickham affirmed on 15 April 2019) indicates that on 31 October 2012 the applicant arrived at Flying Fish Cove, Christmas Island on a vessel named Oldsmobile (SIEV 510). Upon arrival at Christmas Island the applicant, and other passengers aboard the Oldsmobile, were detained by the Australian Government. The applicant was taken into immigration detention on Christmas Island pursuant to s.189(3) of the Migration Act. On 7 January 2013 the applicant was transferred from the Christmas Island detention centre to Christmas Island airport for the purposes of boarding a flight to Adelaide.
Accordingly, the applicant entered the migration zone by stepping onto land at Christmas Island, being an excised offshore place.[15]
[15] see also Sadiqi at [168]
In circumstances where the applicant became an unlawful non-citizen because of his entry into the migration zone at Christmas Island (because he did not hold a valid visa;[16] and as the applicant was not an excluded maritime arrival,[17] he was therefore an unauthorised maritime arrival, as defined.
[16] section 5AA(1)(b)
[17] Migration Act, s.5AA(3)
For these reasons this matter is distinguishable from the circumstances in DBB16 v Minister for Immigration.[18] In that matter, attention was directed towards the definition of “migration zone” in s.5 of the Migration Act in particular to “(b) sea within the limits of both a State or a Territory and a port”. The applicant in that matter never disembarked the vessel that transported him to Ashmore Reef, requiring the Court to consider whether the port at Ashmore Reef, by which the applicant had purported to enter the migration zone at Ashmore Reef, was a “proclaimed port”. Such issues do not arise in the present matter because the applicant purported to enter the migration zone at Christmas Island by stepping foot on land that is part of the Island. Christmas Island is, relevantly, a “Territory” of Australia.[19]
[18] [2018] FCAFC 178
[19] see the definition of “territory” in s.5 of the Migration Act, read with s.7 of the Migration Act
The applicant does not otherwise challenge the basis upon which he was taken by the Authority to be a “fast track applicant” for the purposes of its jurisdiction to conduct the review. For these reasons, Ground 1 of the amended application must fail. The ground must fail regardless of any suggestion that the applicant might have travelled to other locations prior to his disembarkation at Christmas Island.
In the circumstances, there is no occasion for the Court to consider in this matter the question of the validity of the proclamation of the port at Christmas Island.
Validity of the proclamation of the port on Christmas Island
For completeness, even if it was necessary for the Court to consider the issue, the Minister submits that the port at Christmas Island was validly proclaimed. I agree, consistently with my reasons in FFZ18.
There are two ports on Christmas Island that were by notice published in the Commonwealth Gazette on 22 January 1981 (Notice) proclaimed as ports for the purposes of the Migration Act. On the evidence the applicant entered Christmas Island through the port at Flying Fish Cove. In respect of the port at Flying Fish Cove, the Notice stated:
Firstly - the area of sea in and adjacent to Flying Fish Cove in the Territory of Christmas Island enclosed by a line commencing at a point where a line bearing 270 degrees true from the flagstaff at Government House intersects the coastline of Christmas Island at mean high water thence bearing 270 degrees true for a distance of two kilometres thence bearing 360 degrees true for a distance of two kilometres thence south-easterly by a straight line to Rocky Point thence generally south-westerly along the coastline of Christmas Island at mean high water to the point of commencement.
The Minister’s power to proclaim ports as he purported to do in the Notice arose from s.3(2) of the Migration Amendment Act (No.2) 1980 (Cth) (Amendment Act). Section 3(2) of the Amendment Act commenced on 23 January 1981, being a date fixed by Proclamation.[20] The Amendment Act received Royal Assent on 17 December 1980. Section 3(2) inserted into the Migration Act a definition of “proclaimed port” as meaning:
[20] Migration Act, s.2(2)
(b) a port appointed by the Minister under sub-section (1A).
Subsection (1A) was also inserted in the following terms:
(1A) The Minister may, by notice published in the Gazette-
(a) appoint ports in the Territory of Christmas Island as proclaimed ports for the purposes of this Act and fix the limits of those ports…
The applicant appears to contend that the appointment by the Minister of the proclaimed ports in the Notice was invalid because the Notice was issued one day prior to the commencement of s.3(2) of the Amendment Act. However, whilst accepting it to be the case that s.3(2) of the Amendment Act did come into operation the day after the issue of the Notice, this does not mean that the appointment of the proclaimed ports was invalid.
The reason for this comes from s.4 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) (inserted by s.3(1) of the Acts Interpretation Amendment Act 1976 (Cth)) which provided relevantly as follows:
(1) Where an Act (in this section referred to as the Act concerned), being--
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment …
…
is expressed to confer power ..., to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect—
(a) on the day on which the Act concerned comes into operation; or
(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made,
whichever is the later.
As observed by Pearce and Geddes (Statutory Interpretation in Australia (8th ed, 2014) at [6.6]) in respect of this provision:
[w]ere it not for this provision, it would be necessary to include in each Act specific power, for example, to make regulations or appointments that have to be in place when the Act commences operation. The sections prevent the result of the exercise of the power having effect prior to the Act’s commencement, but the instrument can be in place to operate on that day.
Section 4 of the Amendment Act extended the operation of the Migration Act to the Territory of Christmas Island. Section 13 contemplated the possibility of an overseas vessel (within the meaning of s.12) being in port in the Territory of Christmas Island immediately before the commencement of that provision. Therefore the Migration Act applied in relation to the vessel and members of its crew as if it had arrived at a port in Australia immediately after the commencement of the section. I accept that it was thus necessary for the proclamation to have occurred at least when s.13 of the Amendment Act commenced operation (i.e. 23 January 1981).
In the present case, s.5(1A)(a) of the Migration Act (as inserted by s.3(2) of the Amendment Act):
a)did not come into operation immediately upon its enactment; and
b)was expressed to confer power to appoint a port in the Territory of Christmas Island,
c)and, thus, was an enactment of the type contemplated by s.4(1)(a) of the Acts Interpretation Act.
By reason of s.4(2) of the Acts Interpretation Act, the Appointment took effect on the day on which s.3(2) of the Amendment Act came into operation. That is to say, the proclamation in the Notice took effect on and from 23 January 1981, not 22 January 1981 (when it was published in the Commonwealth Gazette) as asserted by the applicant.
For these reasons, the Minister’s proclamation of the relevant port at Christmas Island was valid. Nothing in [78] of the reasons for judgment of the Full Federal Court in DBB16 suggests otherwise. Their Honours were not there dealing with the validity of the Appointment in issue in the present case. Nor was their Honours’ attention drawn to s.4 of the Acts Interpretation Act.
Ground 2 – did the Authority err in considering new information under ss.473DD(a) and (b) of the Migration Act?
I accept the Minister’s submissions concerning the second ground.
The applicant takes issue with the Authority’s approach to determining that it could not take into account new information advanced by the applicant. The Authority’s reasons for its conclusions with respect to s.473DD appear at [8]-[10].
First, there was no error by the Authority in taking too narrow an approach to its consideration of exceptional circumstances.[21] The Authority made express findings with respect both to paragraphs (a) and (b) of s.473DD. Paragraph [9] of the Authority’s reasons demonstrates a clear engagement with the issue of the timing of the provision of the new information and the lack of any explanation as to why the new information was not provided to the delegate before the delegate’s decision. The Authority noted that the documentation it received suggested the applicant and his wife were baptised prior to the delegate’s decision. The Authority at [9] also engaged with the question of the believability of the conversion claim which is a clear reference to s.473DD(b)(ii). The Authority in addressing whether the information was believable (as opposed to whether it accepted the information to be true or not) avoided the kind of statutory misunderstanding that was the subject of CSR16 v Minister for Immigration.[22]
[21] cf, BVZ16 v Minister for Immigration [2017] FCA 958
[22] [2018] FCA 474
It was in those circumstances, and absent the identification by the applicants of any other circumstances that might be considered “exceptional”, that the Authority also found that the requirements of s.473DD(a) were not met.
It is further noted that the applicants do not now seek to identify what it was about the circumstances that made them exceptional such that the Authority fell into error in its approach to s.473DD. As stated by White J in BVZ16, after reference to R v Kelly[23] at [51] and other authorities, “exceptional circumstances” will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the Minister at the time of the s.65 decision. As stated by the Full Federal Court in AQU17 v Minister for Immigration[24] at [15]:
the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information.
[23] [1999] UKHL 4
[24] [2018] FCAFC 111
The applicants’ failure now to identify what was exceptional about the circumstances is another factor that tells against a misconstruction of the provision by the Authority.[25]
[25] see AQU17 at [17]
To the extent the applicants also challenge the Authority’s findings at [10] addressing new country information, no error is evident from that paragraph. The applicants did not before the Authority, and do not before this Court, seek to explain how country information as provided could be “personal” information for the purposes of s.473DD(b)(ii). The applicants also did not explain why the country information could not earlier have been provided to the delegate. The Authority approached the consideration of the new information in the appropriate way. No error is made out.
Ground 3 – did the Authority err in dealing with the applicants’ data breach claim?
I also accept the Minister’s submissions concerning this ground.
The basis of the ground is that the Authority at [41] of its decision erred by failing to apply the assumption that all of the applicant’s personal information had been accessed by all of the claimed persons or entities when finding the applicant’s claim to be “that the Iranian authorities would be aware of the applicant’s claims for protection as a result of the data breach itself”. The applicant in support of his argument cites Minister for Immigration v SZSSJ; Minister for Immigration v SZTZI[26] at [91]. That case does not support the applicant’s argument. That is because the Authority in this case noted that the delegate put to the applicant for comment at the protection visa interview the fact that his personal information had been inadvertently made public. The Authority accepted that the personal details of the applicant, described by the delegate as including the “names, date of birth, citizenship, gender and detention details (including the reason for detention)” and of his family were included in the report, and that the Iranian authorities may have accessed it, and that they may know the applicants had sought asylum in Australia.[27] The Authority having made those findings did not accept that the data breach would result in a risk of harm because it would be evident to the authorities in any event when the applicant and his family returned to Iran that they had sought asylum in Australia. The Authority noted at [36] that the applicant’s protection claims were not revealed as part of the data breach. Further, country information did not support a finding that persons who had sought asylum in a western country such as Australia would be imputed to hold an anti-Iranian government political opinion.
[26] [2016] HCA 29
[27] CB 329-330 at [36]
In short, the Authority accepted (or “assumed”) that the applicant’s personal information had been accessed (or at least that it may have been accessed) by the persons or entities the applicant claimed to fear. No error is made out in the Authority’s approach.
Conclusion
The applicants have failed to establish that the decision of the Authority in this case is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 March 2020
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