EQM18 v Minister for Home Affairs
[2018] FCCA 3440
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQM18 & ORS v MINISTER FOR HOME AFFAIRS | [2018] FCCA 3440 |
| Catchwords: MIGRATION – Invalid visa application – previous protection visa application – allegation that the Department disclosed sensitive information – no evidence that Department disclosed sensitive information – no error established – no reasonable prosects of success – dismissed with costs. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.10, 44.12 Migration Act 1958 (Cth), ss.48A, 48B |
| Cases cited: BNG15 v The Minister for Immigration [2016] FCCA 2600 SZRXA & Ors v Minister for Immigration & Anor [2013] FCCA 265 SZGIZ v The Minister for Immigration [2013] FCAFC 71; (2013) 212 FCR 235 |
| First Applicant: | EQM18 |
| Second Applicant: | EQN18 |
| Third Applicant: | EQO18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 2519 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 21 November 2018 |
| Date of Last Submission: | 21 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| The First and Second Applicants appeared in person |
| Solicitors for the Respondent: | Ms K Morris of Clayton Utz |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
The First and Second Applicants pay the Respondent’s costs fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2519 of 2018
| EQM18 |
First Applicant
| EQN18 |
Second Applicant
| EQO18 |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
This is an interlocutory application brought by the Respondent, the Minister for Home Affairs, filed 19 September 2018. The application seeks that the proceeding be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth), on the ground that the Applicants have no reasonable prospect of success. In the alternative, the Minister seeks that the proceeding be dismissed pursuant to r.44.12(a) of the Rules on the ground that the application in the substantive proceeding (filed 6 September 2018), does not raise an arguable case for the relief claimed.
For the reasons that follow, I agree and will order that the application be dismissed.
In the substantive application filed 6 September 2018, the First Applicant, her husband, the Second Applicant, and their child, the Third Applicant, sought judicial review of the decision of the Department of Home Affairs made by letter dated 4 September 2018, to the effect that their applications for a protection (subclass 866) Visa (which was made on 3 September 2018 – 2018 Visa application) was invalid as s.48A of the Migration Act 1958 (Cth) applied. That was because the Applicants had previously applied for a protection visa in 2011 which had been refused, and the Applicants, having remained in Australia since before the making of their first visa application, the 2018 Visa application they made this year is barred by s.48A of the Act.
Background
The Applicants are citizens of China. The First Applicant arrived in Australia on 9 December 2006. The Second Applicant arrived in Australia on 25 September 2005. The Third Applicant is their child, and was born in Australia in 2010. I note that the First Applicant has indicated that she and her husband, the Second Applicant, have more children. I have been informed three in all. However, those additional two children are not part of this Visa application, and their status is unknown.
On 17 August 2011, the First Applicant applied for a protection (Class XA) visa, with the Second and Third Applicants being listed as members of the First Applicant’s family unit (2011 visa application).
On 24 November 2011, a Delegate of the Minister refused to grant the 2011 visa application. The Applicants sought review by the Refugee Review Tribunal, and on 14 September 2012, the Tribunal affirmed that decision.
The Applicants sought judicial review of the Tribunal’s decision and that proceeding (SYG2205/2012) was dismissed on 17 May 2013 by his Honour Judge Lloyd-Jones on the basis that there was no apparent jurisdictional error: SZRXA & Ors v Minister for Immigration & Anor [2013] FCCA 265.
I note that his Honour considered, as did the Tribunal, the Applicants’ claims under the provisions of ss.36(2)(a) and 36(2)(aa) of the Act, and that the effect of the Tribunal’s decision, and the dismissal of the judicial review application by his Honour, was that the Applicants did not satisfy the criteria for grant of a protection visa.
Subsequently, on 3 September 2018, the First Applicant made a second application for a protection (subclass 866) visa (that is, the 2018 Visa application). The Second and Third Applicants are listed in the 2018 visa application as members of the First Applicant’s family unit, as they had been in the case of the 2011 visa application.
On 4 September 2018, an officer of the Department notified the Applicants that their 2018 Visa application was invalid, as I have said, on the basis that s.48A of the Act applied. Whilst the Department referred, in the letter, to the provisions of s.48B of the Act, there was no indication that any of the steps for the exercise of the discretion by the Minister had been taken.
Grounds of review
The application in this Court seeks 6 grounds of review, 3 under the heading of “orders sought”, and 3 under the heading of “grounds of application”. They are as follows:
“orders sought”:
1. Department of Home Affairs treated our application as invalid application. This is not fair to us.
2. Department of Home Affairs has mistakenly released· our personal information and many other people in the public which made us feeling strong fears of return to our home town. We will definitely be persecuted by Chinese government if we return.
3. Department of Home Affairs should accept our protection application and protect us to stay in Australia permanently since it is their big mistake and they should be responsible for it.
“grounds of application”
1. We are convert Christian. We cannot return to China because we are afraid of Chinese Government persecution.
2. The Immigration Department did not keep our personal information safe and released our information. This is not acceptable.
3.Our protection visa application should not be considered as an invalid application and we hope the court can look through our case and could give us a fair decision please.
The Applicants’ grounds for judicial review are, in substance, as follows:
(a)that the treatment of the 2018 visa application was unfair;
(b)that the Department did not keep the personal information safe, and released the information which has given rise to strong fears by the Applicants of return to their home town, and that they would be definitely persecuted by the Chinese government if they return, and I note that, in oral submissions to me, before me today, Madam Applicant has indicated that she is concerned because she and her husband have three children; and
(c)that the Applicants are convert Christian and cannot return to China because they are afraid of Chinese Government persecution.
The claimed release of personal information
Before me, it became apparent that by the mistaken release by the Department of personal information, The First Applicant is referring to a data breach of details of detainees in immigration detention which occurred in 2014, the factual circumstances of which have been described by the High Court in Minister for Immigration v SZSSJ; Minister for Immigration v SZTZI [2016] HCA 29; (2016) 259 CLR 180.
In SZSSJ, the High Court, particularly at [3]-[12], set out the facts and circumstances of the data breach. It is apparent from the consideration by the High Court in that decision that the data breach by the Department (or its predecessor) was of embedded information which disclosed the identities of 9,258 applicants for protection visas who were then in immigration detention. The data breach occurred on 10 February 2014, and the embedded information remained on the website of the Department until 24 February 2014. I note that there is no suggestion that any of the Applicants have, at any time, been in immigration detention.
Before me today the First and Second Applicants did not contend that they had been in immigration detention in Australia. This should give some comfort to the Applicants that any consequences of the data breach will not adversely extend to them, as will be apparent from my consideration below. However, even if the data breach had any relevance to them, that is not a matter which would change the application of s.48A of the Act to the Applicants’ 2018 Visa application. That is because there is no discretion open to the Department, or on review to this Court, where an application for visa comes within the terms encompassed by s.48A of the Act.
The hearing today
Before me today, the Applicants have appeared unrepresented but with the assistance of a Mandarin speaking interpreter. I have explained to the Applicants the costs consequences of this interlocutory application should they be unsuccessful, and I have also indicated that it was likely because of the operation of s.48A of the Act, that the application that they have brought in this Court will be unsuccessful.
The First Applicant, speaking on her own behalf, and that of her family, submitted that she was concerned about the data breach, and that she was fearful of going back to China especially because she and her husband have three children. She submitted that the Court should be able to consider that fact. She submitted that when the Applicants lodged the 2011 visa application she submitted a lot of documents with it, and those included in relation to being Christian, and that she felt that she would be persecuted if returned to China. She said, although she was not in detention at the time, if the information was leaked she didn’t know what would happen to her, and that the Department was very careless in their work, and also unfair to her and her husband, and the only option she had left is to seek help from this Court.
Material before the Court
In evidence before me is the letter from the Department dated 4 September 2018, documents relating to the judicial review proceeding commenced on 8 October 2012 in this Court, being the Applicants’ application, the First Applicant’s affidavit in support, the decision record of the Tribunal, and the decision of his Honour Judge Lloyd Jones in SZRXA. Additionally, before me is the documentation comprising the 2018 Visa application, which includes a statement from the First Applicant stamped received 4 September 2018. The statement says (identifying codes redacted, otherwise without alteration):
Dear immigration officer,
I am a Christian. I lodged an application for protection visa in 201I with file reference number: [redacted] to the department, however all my application proceeding was unsuccessfully.
Having stressed in such result, I am eager to have your kind and thorough reconsideration for my new application submitted today since I still stick to my faith in Australia. Therefore I have strong fears to be persecuted if I am forced to return to my home country. Please refer to the important reference available from the Immigration Department below.
Background:
1.On 10 February 2014, the Department of Immigration and Boarder Projection published a detention report on its website in error. The report contained the personal information of persons who, as at 31 January 2014, were in immigration detention facilities or in the community under residence determination, or alternative places of detention (Date Breach).
2.The personal information was removed from the Department’s website on 19 February 2014 and from The Internet Archive on 27 February 2014.
3.On 30 August 2015, a representative complaint was made to the Commissioner on behalf of all persons whose information was published by the Department in error (Representative Complaint).
4.A representative complaint is a complaint made by an individual under the Privacy Act 1988 (Cth) on behalf of other individuals who have similar complaints about an act or practice that may be an interference with their privacy. The Commissioner may make a declaration that class members are entitled to compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint.
In view of the above information by the department, I firmly believe that my situation is relevant to the mentioned above as I was affected by the Data Breach, and I have reason to believe that my personal information was published in the Data Breach and I should be entitled for a reconsideration and a compensation for a loss or damage suffered as a result of the Data Breach.
[signed by the First Applicant]
I note that at item 43 of part C of the 2018 Visa application, the First Applicant has indicated that she arrived in Australia on 9 December 2006, and that the Second Applicant arrived on 25 September 2005. In the case of the Third Applicant, there is no arrival date because the child was born here. At item 67, the Applicants indicate that they have not travelled overseas since they arrived in Australia.
Also in evidence from Ms Morris on behalf of the Minister is a copy of the movement records of the Department relating to the First Applicant which reveal that the First Applicant has not left Australia since her first arrival in December 2006.
As the Second and Third Applicants are members of the First Applicant’s family unit, that movement record suffices to satisfy me that there is evidence, consistent with the Applicants’ 2011 visa application, that they have not left Australia since first arriving in 2005 and 2006 respectively, and, of course, in the case of their child, that their child has not left Australia since birth.
The law
I turn now to the legislative framework. Section 48A(1) of the Act provides:
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.
Consideration
Section 48A(1) of the Act prevents any person who has not left Australia since their first protection visa application was refused from making a subsequent protection visa application while they remain in the migration zone (that is, Australia). Section 48A of the Act applies unless the Minister personally exercises his discretion under s.48B of the Act to dispense with the requirements of s.48A. There is no evidence that the Applicants have sought, or that the Minister has ever considered their case for, s.48B Ministerial intervention.
As I have noted, the decision of the Department was made on the basis that s.48A of the Act applied, and, therefore, that the 2018 Visa application was invalid. It is not in dispute, and it cannot be disputed, that the Applicants have, while in the migration zone, made a previous application for a protection visa. The Court’s decision in SZRXA shows as much. It is also the case that the Applicants have filed a further application, namely, the 2018 Visa application. Both part C of the 2018 Visa application, and the Departmental records show that the First Applicant has not, and satisfies me that the Second and Third Applicants have not, left the migration zone since their arrival in Australia, or in the case of the Third Applicant, since their birth.
As the Minister has submitted, and I accept, there is no discretion vested in the Department, the Minister, or the Court to accept or make valid the 2018 Visa application, even if there is a change in circumstances. This is well established by a number of decisions, and it is enough to refer to ENQ17 v Minister for Immigration [2017] FCCA 3327 at [26]-[29].
Whether or not s48A of the Act applies in any given circumstance is a matter of objective fact: see among other decisions, BNG15 v The Minister for Immigration [2016] FCCA 2600; Minister for Immigration v Kim [2014] FCAFC 47; (2014) 221 FCR 523. There is, therefore, no scope for the Department’s decision to be set aside on the asserted basis of unfairness, which is one of the grounds raised in the substantive application for judicial review.
There is also no other basis upon which the Department’s decision could be set aside. I adopt the Minister’s characterisation of the circumstances as follows.
First, as at the date the 2018 Visa application was made, s.48A(1C) of the Act was in operation. This provision supersedes the exception to s.48A of the Act considered by the Full Court of the Federal Court in SZGIZ v The Minister for Immigration [2013] FCAFC 71; (2013) 212 FCR 235, and bars the lodgment of a second protection visa application irrespective of whether both criterion for protection under s.36(2)(a) and (aa) of the Act were considered by the Tribunal. In any case, the Applicants’ 2011 visa application was considered and determined by the Tribunal by reference to both subparagraphs.
Second, so far as the Applicants seek to rely on the data breach events in 2014, as I have said, there is no discretion vested in any of the Department, the Minister, or the Court to accept or make valid the 2018 Visa application on the basis of any change in circumstances. As I have noted, there is no evidence that the Applicants were, in fact, one of the persons affected by that data breach.
Third, so far as the Applicants might otherwise submit that the power under s.48B of the Act should have been exercised, or whether there should have been consideration as to whether it should have been exercised, that power is a non-compellable power, as the High Court stated in SZSSJ at [11]-[12]. It is a power that the Minister may exercise if the Minister thinks that it is in the public interest to do so, which can only be exercised by the Minister personally, and not by the Department, and not by this Court. Such a power involves two distinct statutory steps. First, a procedural decision to consider whether to make a substantive decision; and secondly, a substantive decision to grant a visa or lift the bar (in the present case under s.48A of the Act). The Minister has no obligation to make either decision. Nor is a decision of the Minister in such circumstances conditioned by any requirement that the Minister afford procedural fairness. There is no evidence before the Court that the Minister had embarked on the first step. That is a procedural decision to consider whether to make a substantive decision for exercise of the Minister’s discretion. In these circumstances, no obligation arose of procedural fairness. Thus, the ground of unfairness that the Applicants seek to raise in the judicial review application before me must fail.
Finally, at the date of the 2018 Visa application, s.48A(1AA) of the Act was in operation, which has the effect that the prohibition on making a further application for a protection visa applies to all three Applicants, regardless of the circumstance that the Third Applicant was a minor at the time.
Conclusion
I respectfully adopt what his Honour Judge Dowdy said recently in CVA18 v The Minister for Home Affairs [2018] FCCA 2512 at paragraphs [18]-[20], and conclude that the simple fact of the matter is that s.48A(1) of the Act precluded in this case the Applicants from making their present protection Visa application (the 2018 Visa application), and the application to this Court for judicial review must be dismissed.
It follows that the Minister’s application under r.13.10(a) of the Rules must be allowed. I have concluded that the application made by the Applicants for judicial review of the 2018 visa application has no reasonable prospects. In the words of r.44.12(1)(a) of the Rules, I am not satisfied that the application for judicial review raises an arguable case for the relief claimed.
The Departmental officer did not have a discretionary power to consider other circumstances. The 2018 Visa application was invalid, and the Applicants’ grounds cannot be not made out. I grant the relief sought by the Minister and award him costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 19 December 2018
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