DNZ18 v Minister for Home Affairs
[2018] FCCA 2940
•17 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2940 |
| Catchwords: MIGRATION – Application for judicial review – application for extension of time – consideration of merits – failure to consider data breach – whether failure to consider integer of claim – procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 |
| Applicant: | DNZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 270 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 17 September 2018 |
| Date of Last Submission: | 17 September 2018 |
| Delivered at: | Darwin |
| Delivered on: | 17 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barnes of Counsel |
| Solicitors for the Applicant: | Cifuentes Lawyers |
| Counsel for the Respondent: | Ms Wells |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 11 July 2018 be dismissed.
The application for extension of time is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
No. ADG 270 of 2018
| DNZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Tribunal made on 3 October 2014. The application was filed on 11 July 2018 and is thus more than three years out of time. The parties, and, in particular the applicant, appeared to agree that I should consider the merits of the matter and if I was satisfied the application had merits, then that would be a significant factor militating in favour of an extension of time. On the other hand, if I was not satisfied that the matter had merits, it seemed to be conceded, though perhaps not formally by the applicant, that the extension of time would not be granted or should not be granted.
So turning to the merits of the matter first, the applicant raises, in substance, two grounds of review and rather than reading the application I will summarise their effect. The first ground is that the Tribunal failed to consider an integer of the applicant’s claim, namely, it failed to consider that the applicant was affected by the notorious data breach in February 2014.
The second ground alleged that there was an absence of procedural fairness, or a breach of the rules of procedural fairness, by the Secretary of the department in performing his or her functions under section 418 of the Migration Act, which requires the Secretary to give the Registrar of the Tribunal each document relevant to the review of the decision before the Tribunal considers the matter. It was said that the Secretary failed to comply with the requirements of that section by failing to provide the Tribunal with a relevant document which was said to be the Minister’s letter to each of the people affected by the data breach advising of the data breach and various other matters. This was sent to the applicant in this case on 13 March 2014, that is, about a month after the data breach.
The timeline is also relevant. The data breach occurred in February 2014. On 13 March 2014 there was a letter from the Minister advising the applicant that he was affected by the data breach. On 31 March 2014 there was a decision of the delegate. It is significant that the delegate did not consider the fact of the data breach or its effect on the applicant and the fact of the data breach was not raised by the applicant.
The applicant sent submissions to the Tribunal dated 29 August 2014. There was another set of submissions that followed that. It is the agreed position that neither set of submissions provided by the applicant raised the data breach. On 3 October 2014 the Tribunal made its decision. The data breach was not mentioned or considered.
Ground 1, which alleges a failure to consider an integer of the applicant’s claim, in my view, falls to be determined by the requirements of what a Tribunal actually needs to do in considering an integer of a claim. The decision of NABE v the Minister (No. 2) (2004) 144 FCR 1 and a number of other cases say the same thing, that the obligation is to consider claims that are clearly articulated or fairly arise on the materials.
In my view, those formulations have little application in this case. They clearly contemplate that the duty to consider arises when an applicant articulates a claim or, if a claim is not articulated, then the material before the Tribunal, either put before the Tribunal by the applicant or by the Minister, fairly gives rise to the need to consider a claim. In my view, given the background to this matter, those considerations appear to have very little application and the context in this case is quite different. For that reason I would dismiss ground 1.
Ground 2 alleges a breach of the rules of procedural fairness flowing from the Secretary’s failure to place a relevant document before the Tribunal pursuant to the Secretary’s obligation under section 418 of the Migration Act. As I mentioned, the relevant document was said to be the letter from the Minister sent to the applicant dated 13 March 2014 notifying the applicant that he was affected by the data breach. I am satisfied that that would be a relevant document and should have gone to the Tribunal in the Secretary’s discharge of the duty arising under section 418.
The question is whether that failure constitutes a breach of the rules of procedural fairness. The Full Court of the Federal Court has considered the consequences of a failure to comply with the requirements of section 418 in a number of cases. In SZOIN v Minister (2011) 191 FCR 123 the Full Court considered an earlier decision in WAGP v (2006) 151 FCR 413. The reasoning in SZOIN has been more recently adopted by the Full Court in BBS15 v Minister (2017) 248 FCR 159.
SZOIN, which I consider is factually close to this case, concerned an applicant for a protection visa who was suffering from some mental health problems or at least he was assessed by a psychologist around about the time of the consideration of his claim by a delegate. Eventually a medical report was produced, it would appear after the consideration by the delegate but before the consideration by the Tribunal, and that medical report referred to aspects of his mental health that were relevant to his protection claims.
The Full Court acknowledged that the material was relevant. The Full Court found that the material ought to have been sent to the Tribunal by the Secretary pursuant to section 418, however it was not, and the Full Court considered the consequences of that failure. The Full Court found that the documents, particularly the medical report, were within the control of the Secretary at all relevant times. The Full Court found that a breach of the requirements of section 418 did not constitute jurisdictional error by the Tribunal in broad terms, subject to some exceptions. At paragraph 64 of the judgment, the Court said as follows:
More recently in SZNZK v Minister [2010] FCA 615 (at paragraph 20) Perram J followed French J in Applicant S1693 of 2003 [2004] FCA 1512, noting that an error in the performance of a function under section 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal. His Honour observed that this follows from the fact that it has been held that a breach of section 418 does not constitute jurisdictional error.
That is a reference to the earlier decision of the Full Court in WAGP v Minister, to which I have already referred.
The Full Court in SZOIN held that WAGP was correctly decided. It gave some examples of situations where nevertheless a failure to comply with section 418 by the Secretary might be an exception to that general rule. At paragraph 60 of the decision the Full Court referred to an earlier decision of the High Court in SZFDE v Minister (2007) 232 CLR 189, where a migration agent or, really, a fraudster purporting to be a migration agent, represented a person before the Tribunal. It was held that that was an example where third party fraud, that is, conduct of a third party, vitiated the decision of the Tribunal in a way that meant the decision could not stand. That is the only example given in SZOIN of the “something more” referred to at paragraph 64.
In BBS15 the Full Court referred to WAGP and SZOIN and also SZNZK and generally followed the reasoning in those decisions. The Court there gave an example of when a failure to provide information under section 418 might vitiate a decision where, for example, that resulted in the applicant being misled in some way. In my view, the general rule that the conduct of a third party or the conduct of the Secretary of the department in failing to provide a document under section 418 does not constitute jurisdictional error is the general rule that ought to be applied here.
The failure of the Secretary to provide the relevant document, that is, the letter regarding the data breach, in my view, was not the “something more” that would vitiate the Tribunal’s decision. It is, it would appear from those decisions, not enough simply that a relevant document was not provided. The “something more” would appear from those decisions to require some very significant factor, such as a fraud by a migration agent or the actual misleading of an applicant. Here, in this case, I should note that the applicant, even though he was represented by a migration agent, did not raise the data breach before the Tribunal decision. I note that. I do not suggest that that obviates or removes the obligation of the Secretary pursuant to section 418 but I do note it as a significant factor.
In relation to the extension of time, as I say, the application is some three and a half years late. The applicant has put on some affidavit material which essentially says that after the Tribunal decision he was in the community, he entered into a relationship, there were troubles between him and his partner. It is said that his partner became pregnant. They separated and, as I understand it, remain separated. He suffered from some mental health problems for a relatively short period. He also referred to the fact that he did not have funds and was unable to afford a lawyer and he could not get Legal Aid or any other pro bono assistance during the period.
The application was made once the applicant was taken into detention. It might be inferred that the fact that he was taken into detention was a factor in precipitating the application. I do not know if that is the case or not but I am not satisfied that there is a valid explanation for a more than three-year delay. Of course, the Act itself does not require a valid explanation but simply that an extension of time is required in the interests of the administration of justice. But very often a valid explanation is one of the factors that is taken into account.
The factor that I do take into account is that I am satisfied that if time was extended I would not find either of the grounds had merit. Indeed, I would consider myself bound by the decision in SZOIN to dismiss the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young.
Date: 16 October 2018
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