FNG17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 829

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FNG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 829

File number(s):

SYG 3905 of 2017

Judgment of:

JUDGE GIVEN

Date of judgment:

7 September 2023

Catchwords:

MIGRATION – Whether Immigration Assessment Authority failed to consider necessary factors pertaining to data breach – whether legislative instrument applicable to applicant – additional issue raised by Minister whether Authority erred by not exercising power to invite comment from applicant

Legislation:

Migration Act 1958 (Cth) ss 5, 48B, 473DC, 473DD Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02

Federal Court Rules 2011 (Cth) r 36.03

Cases cited:

EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 259 CLR 180

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

SZTVU v Minister for Home Affairs (2019) 268 FCR 497

Division:

Division 2 General Federal Law

Number of paragraphs:

53

Date of hearing:

7 September 2023

Place: 

Sydney

The Applicant: 

In person

Counsel for the Respondents:

Mr G Johnson

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 3905 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FNG17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	7 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely on the amended application filed on 26 September 2018.

2.The application filed on 15 December 2017, as amended, is dismissed. 

3.The applicant must pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $7,000.

4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE GIVEN:

1. By an application to show cause filed with the Court on 15 December 2017, the applicant seeks review of a decision of the Immigration Assessment Authority (Authority), made on 29 November 2017, affirming a decision of a delegate of a Minister (delegate) to refuse to grant the applicant a Protection visa (visa). 

   BACKGROUND

2. The applicant is a citizen of India.  He first arrived in Australia on 1 October 2007 as the holder of a Student visa.  On 27 September 2013 he applied for a protection visa (first protection visa), following an earlier refusal of a further student visa, during which period the applicant became an unlawful non-citizen. 

3. The Minister refused to grant the applicant the first protection visa, which decision he challenged unsuccessfully in the Refugee Review Tribunal (RRT).  On 10 February 2014, while the applicant was in immigration detention, personal details of persons in detention were unintentionally released on the website of the Minister’s Department (data breach). 

4. The applicant then sought judicial review of the RRT’s decision (with subsequent appeals), again without success. On 5 September 2017 the applicant was notified that the Minister had exercised his power under s 48B of the Migration Act 1958 (Cth) (Act) to permit him to make another application for a protection visa.  On 13 September 2017 the applicant made that application (second protection visa).

5. In his second protection visa application the applicant claimed to fear harm if returned to India on the basis that he was a Sikh from the Ramdasia caste, a lower caste in India.  He claimed that he was in a relationship with a woman from a higher caste, and that he was threatened and assaulted by the woman’s family as a consequence.  The applicant also claimed to fear harm for being bisexual, and claimed to have a number of relationships with both men and women.  He also claimed harm on the basis of the data breach, and because details of his earlier made protection claims had been published by the RRT and the Courts (in decisions/judgments).

6. On 26 October 2017 a delegate of the Minister refused to grant the applicant the second protection visa (Court Book (CB) 116). The applicant’s matter was referred to the Authority for review under Part 7AA of the Act because the applicant was determined to be a “fast track applicant” as defined in s 5 of the Act pursuant to legislative instrument IMMI 17/015.

7. On 29 November 2017 the Authority affirmed the decision under review (CB 209).

   PROCEEDINGS BEFORE THIS COURT

8. The applicant commenced the present proceedings by an application to show cause filed on 15 December 2017.  On 25 January 2018, a Registrar of this Court made orders by consent which included a grant of leave to the applicant to amend his application on or by 28 March 2018.  On 26 September 2018, the applicant filed an Amended Application outside of the time allowed by the Registrar by the grant of leave.  Accordingly, the Amended Application required leave of the Court to be relied upon. 

9. The matter was listed for a callover on 13 August 2019 before a Judge of this Court to whom it was initially docketed (first Primary Judge).  The matter was then placed in the central migration docket, where it remained until 16 March 2023, when it was docketed to me and on which date I made orders listing it for hearing before me on 7 September 2023 and granting the applicant leave to file any further amended application.  The applicant and the Minister were each directed to file and serve written submissions 14 and 7 days before the hearing (respectively). 

10. On 16 March 2023, a listing notice was sent to the parties by email and also by Express Post.  To the applicant, the listing notice was sent to the Yahoo email address for service provided by him in his originating application (which by reference to a Notice of Address for Service) filed by him on 25 May 2023, remains the same).  By his Amended Application, the applicant seeks judicial review of the Authority’s decision.

    Grounds of application

11. The applicant raised two grounds of review accompanied by particulars, which are set out below:

    1.The IAA did not apply the assumption that all of the applicant's personal information had been accessed by all the persons or entities from whom he 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].

    Particulars

    a.        The IAA found as following:

    i.        At paragraph 38 that:

    While there is no definitive information as to whether or not the Indian authorities or any other parties accessed the spread sheet listing 9,250 detainees, I accept that they may have done so;

    ii.        At paragraph 42 that:

    I considered the chance that members of the girl's family or members of the village in which the applicant resided accessed the Department website and the RRT website and/or the FCC website to so extremely remote as to be non-existent.

    iii.       At paragraph 43 that:

    Even if I accept the Indian government was one of the governments that accessed the Department's website at the time of the data breach, there were no details on the Department's website about the applicant's claim for protection, and indeed the reasons for his detention were because he had been discovered to be working unlawfully in Australia;

    b.The abovementioned findings do not apply the High Court assumption and the IAA has fell into jurisdictional error in asking itself the wrong question and/or applied the assessing the applicant's protection claims.

    2.        IMMI 17/015 is invalid in so far as it purports to apply to the applicant.

    Particulars

    a.IMMI 17/015 was purportedly made on 26 July 2017 under s5(AA)(b) of the Migration Act:

    b.The extent of the power to make a Regulation under s5(1AA)(b) of the Act is relevantly limited to the purpose of identifying a person who is a "Fast Track Applicant" for the purposes of sub paragraph (b) of the definition of that term in s5(1) of the Act:

    c.The applicant learnt for the first time on 5 September 2017 that the Minister has exercised his power under s48B of the Act to allow him to make an application for a protection visa under the Act and lodged that application on 13 September 2017:

    d.At the time that IMMI 17/015 was made, the applicant had not made an extant application for a protection visa under the Act and could not be a person that could be identified as a "Fast Track Applicant" for the purposes of the Migration Act at that time;

    e.Accordingly, IMMI17/015 in so far as it purported to identify the applicant as a fast Track Applicant was made beyond power and was not authorised by the Act and is invalid.

12. The applicant appeared before me this morning in person with the assistance of an interpreter in the Punjabi language.  The Minister was represented by Counsel.  Prior to my ascending the Bench, the written submissions of the Minister were interpreted to the applicant by the interpreter.  At the commencement of the hearing, the applicant confirmed that he sought leave to rely upon the Amended Application filed in September 2018.  The Minister, who had addressed those proposed amended grounds by written submissions, did not oppose leave being granted, and accordingly I made orders to that effect. 

13. The Court Book was tendered for the Minister and marked Exhibit “1R”.  The applicant filed an Affidavit in support of his original application, however, the Court did not have regard to it, as the body of the Affidavit served only to identify its Annexures.  Those Annexures were the delegate’s decision and the Authority’s decision, each of which was contained in the Court Book.  As noted, the Minister filed written submissions as ordered in advance of the hearing.  Other than his Amended Application and a Notice of Address for Service, the applicant has not filed any other documents in his case beyond the originating application and Affidavit. 

14. Each of the grounds of review (with their full particulars) was interpreted to the applicant at hearing, and he was given a chance to address them in turn.  The grounds of the Amended Application appear to have been drafted by someone with legal training, however, the Amended Application did not disclose itself by whom.  I asked the applicant if he had assistance in preparing the Amended Application.  He confirmed that he did and named a particular migration agent. 

    Ground 1

15. The first ground of review turns upon the applicant having been affected by the data breach which was the subject of the High Court’s judgment in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 259 CLR 180 (SZSSJ).  When asked to speak to this ground, but specifically to particular 1(a), the applicant said that particular data could be accessed by the Indian authorities, and that his fear of persecution included that information that could be accessed by the Indian authorities.  When asked to direct his submissions to the Authority’s decision in this regard (given that the Court had earlier explained to the applicant its role in the limitations on what the Court could decide) the applicant said he had “no idea”. 

16. In respect of particular (b) to ground 1, which alleges that the Authority erred by asking itself the wrong question and/or applying the wrong test to assessing the applicant’s protection claims, the applicant was also asked what he meant by this, and he again said, “I have no idea.” 

17. It was not in dispute that the applicant was a person who was affected by the data breach.  However, the allegations which are made by ground 1 of the amended application are otherwise unfounded. 

18. The Minister submits that ground 1 fails to identify error in the Authority’s decision.  Contrary to the applicant’s assertions, the Authority expressly accepted that the Indian authorities and other parties might have accessed the spread sheet disclosed in the data breach (CB 217 at [38]).  That is, the Authority’s approach to fact-finding in reference to the data breach was consistent with the decision of SZSSJ (supra) at [91] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and it applied the assumptions required of it.

19. The Authority went on to conclude that, even assuming Indian authorities and others had seen the spread sheet listing detainees’ details, those authorities (or other persons) would only have discovered the applicant’s name, date of birth, nationality, arrival and detention details including that the applicant was in detention because he arrived in Australia illegally by boat (CB 217 at [38]).  

20. The Authority also found that there were limitations on the personal information published by the data breach (CB 217 at [37]).  The data breach did not include any details of detainees’ protection claims.  The Authority also found that the data breach did not identify the applicant as an applicant for a protection visa (CB 217 at [36]).

21. To the extent that the applicant submits that the Authority erred in its reasoning at [40] of its decision in considering his migration agent’s argument that the applicant might be at risk from the data breach because “someone” might use the information disclosed in the data breach along with publicly available information from the applicant’s RRT and Federal Circuit Court decisions, that argument is also without merit (CB 218).

22. The Authority properly observed that the question for it was whether there was a real chance the applicant would be exposed to harm (CB 218 at [41]).  That excluded a “remote or far-fetched possibility”.  The Authority found that even if it had accepted (which it had not) that the applicant was threatened with serious harm by the family of the girl from the higher caste, that the chances of the family or members of the village accessing the Department website and the RRT website or the Federal Circuit Court of Australia website was so extremely remote as to be non-existent (CB 218 at [42]).  

23. The Authority also found it remote that the Indian authorities would have accessed all of these websites in order to collate the material against the applicant, noting that it had found that the applicant did not have an adverse profile when he left India, and the data breach information did not reveal his protection claims (CB 218 at [43]).  

24. The Authority found that even if the authorities became aware of the applicant’s protection claims, homosexuality was not a crime in India and that it was not satisfied that the applicant would be exposed to discrimination or serious harm if his claims were discovered (CB 218 to 219 at [44]).

25. The Authority’s findings at [40] to [44] (CB 218 to 219) of its reasons for decision were open to it.  The Authority was not required to assume that the Indian authorities, or anyone else, had both accessed the data breach information, and also accessed the RRT or Court websites, found the applicant’s published decision records and collated the information to work out that he had made certain protection claims.  It was open to the Authority to reject that prospect as distinctly unlikely and therefore as not giving rise to a real chance of harm.  As noted above, the Authority proceeded on the assumption that the data breach information had been accessed.

26. I agree with the submissions for the Minister that in the present case the Authority applied the presumptions required of it as understood by the High Court’s decision in SZSSJ.  Not only did it do so, but, as Counsel for the Minister submitted at hearing, it went further and considered whether disclosure of material by the data breach, in conjunction with a decision of the RRT, and a decision of the (then) Federal Circuit Court of Australia being available on various websites in redacted form, might otherwise change the exposure to harm that the applicant might have. 

27. Overall, I agree with the Minister’s contentions that ground 1 does not establish jurisdictional error. 

    Ground 2

28. By the second ground of review, the applicant appears to contend that legislative instrument IMMI 17/015 did not validly apply to him at the time his matter was referred to the Authority, because he had not made a protection visa application at the time said legislative instrument came into effect.  When asked to explain this ground or what he wished to say, the applicant said that he had nothing further to add. 

29. There is no dispute, it seems, between the parties as to the chronology of the making of the instrument relative to the applicant’s visa application.  In that regard, the following dates are relevant: 

    (a)26 July 2017: IMMI 17/015 is made;

    (b)5 September 2017: Minister’s decision under s 48B of the Act to enable the applicant to make another visa application; and

    (c)14 September 2017: second visa application made. 

30. The Minister submitted that ground 2 of the Amended Application also cannot be sustained.  

31. The applicant’s contention appears to be that the legislative instrument IMMI 17/015 did not validly apply to him at the time his matter was referred to the Authority, because when it was created, he had yet to make the subject application for a protection visa.  It is unclear, and unexplained, why this would render the legislative instrument inapplicable, or invalid insofar as it purported to apply, to the applicant.

32. There is no dispute that the legislative instrument purported to apply to the applicant because his Person Identification Digit (CB 104) appeared in Schedule 1 of IMMI 17/015.

33. To the extent the argument assumes invalidity in the instrument itself, the validity of IMMI 17/015 was addressed by the Full Court of the Federal Court in the matter of SZTVUv Minister for Home Affairs (2019) 268 FCR 497 (SZTVU). In that case, an argument in similar terms to that advanced in support of the second ground was rejected by the Full Court. The Full Court found at [63] per Derrington and Wheelahan JJ (with whom Perry J agreed at [1]), that on a proper construction of the definition of “fast track applicant” in the Act that:

    [t]here is no express limitation in the definition that would confine the instrument-making power in s 5(1AA) of the Act so that only persons, or classes of persons, who have made a valid application for a protection visa can be specified for the purposes of the definition.

34. Their Honours also held that, at [64]:

    We do not consider that that there is anything about the context of the definition, including the operation of other provisions of the Act that deploy, or which are dependent upon, the definition of “fast track applicant”, that supports the construction advanced by the appellant. The operative provisions of the Act, such as s 473CA affect only persons who have made a valid application for a protection visa. This is a consequence of the content of the definition of “fast track decision” referred to at paragraph [57] above, and of s 47(3) of the Act referred to at paragraph [58] above which mandates that the Minister is not to consider a visa application that is not a valid application. There is therefore no incongruity that arises from the terms of the definition construed without the limitation advanced by the appellant.

1. In light of Full Federal Court authority which is binding on this Court, the second ground must be rejected.  The applicant was a fast track applicant because he came within the definition, and was identified in a legislative instrument made by the Minister.  The ground fails to identify error by the Authority.

2. It is clear, having regard to the decision of the Full Federal Court in SZTVU that, notwithstanding the aforementioned chronology and that the applicant made the visa application after the date on which the instrument was made, this did not relevantly alter his status as a fast track applicant.  Accordingly, the second ground of the application is not made out. 

   Additional Issue

3. In his capacity as a model litigant, the Minister has raised an additional issue which has not been advanced by the applicant, either by his amended application or at all.  No criticism is made of the applicant by the Minister or by the Court in this regard.  In addition to the additional issue having been addressed in the Minister’s written submissions, Counsel for the Minister today carefully took the Court through the issue, in particular for the benefit of the applicant so that it could be understood with the assistance of the interpreter. 

4. The Minister submitted that the issue arises from the Authority’s reasons at [4]. There the Authority noted the applicant’s request that it exercise its power under s 473DC(3) to invite the applicant to comment in an interview or in writing on new information if the Authority makes a finding or findings that are different from the delegate’s findings and if the Authority makes a finding or findings to consider new information in exceptional circumstances.

5. The Authority, in considering this request, held that:

   I have decided in the circumstances of this case not to invite the applicant to provide any response or information as I do not consider there are exceptional circumstances in this matter.

6. Section 473DC of the Act provides:

   473DC Getting new information

   (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)were not before the Minister when the Minister made the decision under section 65; and

   (b)       the Authority considers may be relevant.

   (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:  

   (a)in writing; or

   (b)at an interview, whether conducted in person, by telephone or in any other way.

7. The Authority’s decision says the following at [4]:

   I have noted the request the applicant's representative made a request that the IAA exercise its discretion under s.473DC(3) and invite the applicant to comment in an interview or in writing on new information if the IAA makes a finding or findings that are different from the delegate's findings and if the IAA makes a finding or findings to consider new information in exceptional circumstances. Section 473DC of the Act provides that while the IAA may obtain any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant and, other than in exceptional circumstances, must not consider new information: ss.473DB(1)(b) and 473DD. I have decided in the circumstances of this case not to invite the applicant to provide any response or information as I do not consider there are exceptional circumstances in this matter.

8. The relevant text of the letter to the Authority from the applicant’s (then) solicitor on 2 November 2017 (CB 134) is as follows:

   I kindly request that the IAA exercise its discretion under section 473DC(3) and invite the review applicant to comment in an interview or in writing on new information in the following circumstances:

   1.The IAA makes a finding or findings that are different from the delegate’s findings; and

   2.The IAA makes a finding or findings to consider new information in exceptional circumstances.

9. By reference to the request made to the Authority by the applicant’s (then) solicitor, there remains a possibility that the use of the expression “exceptional circumstances” in the last sentence of [4] of the Authority’s decision was simply an infelicitous use of language and intended by the Authority to be a short form way of saying that the circumstances enumerated by the solicitor in which instances the applicant was specifically requesting that the discretion under s 473DC(3) be exercised had not arisen.

10. However, I accept the submission made by Counsel for the Minister at hearing today that the Authority does properly use the expression “exceptional circumstances” when addressing the question of s 473DC earlier in its decision. Accordingly, while it is an open interpretation of [4] of the Authority’s decision that the Authority did not intend to use the latter use of the expression “exceptional circumstances” as a term of art, I have assumed in the applicant’s favour and as conceded by the Minister, that the statement did reveal an error by conflating the requirements of s 437DD with s 473DC.

11. The Minister is to be commended for raising the issue and for the concession that there is an error of the kind described in [21] of the Minister’s written submissions.

12. However, while I accept the concession that the Authority has asked itself the wrong question, and I agree that it did so, I am not satisfied that the decision of the Authority is affected by a jurisdictional error as a result because I agree that the error is not material.

13. In applying the counterfactual, the statement by the Authority at [4] of its decision does reveal error in its conflation of the requirements in s 473DD as limiting its exercise of power under s 473DC: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [63] to [64] per Thawley J. However, the error was not material to the outcome: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506. The preface to the applicant’s request to be invited to comment was that the Authority might make different findings from the delegate, or might make a finding to consider new information in exceptional circumstances. Neither circumstance eventuated, such that there was nothing for the Authority to invite the applicant to comment on. Thus, even had the Authority applied itself correctly to whether it should exercise its power to invite the applicant to comment, it could not have come to a different conclusion in the circumstances.

14. In relation to the Authority’s findings, the Authority drew essentially the same conclusions on the applicant’s claims as did the delegate, namely they each:

    (a)accepted the applicant’s claims of societal discrimination in his childhood on the basis of his ethnicity (CB 118 and CB 213);

    (b)rejected the applicant’s claim to have been in a relationship with a woman from a higher caste (CB 120 to 121 and CB 214 to 215);

    (c)rejected the applicant’s claim that he was bisexual and that he had had same-sex relationships (CB 123 and CB 215 to 216); and

    (d)were not satisfied that the applicant was at risk as a consequence of the Department’s data breach (CB 125 to 126 and CB 217 to 219).

15. As the Authority did not consider any new information on the basis that it found exceptional circumstances existed, there was no basis upon which the Authority can be found to have erred in not having exercised its power to invite comment from the applicant, particularly considering the basis upon which the applicant had asked to be invited to give new information.  No jurisdictional error arises from the Authority’s misstatement of the law at [4] of the Authority’s decision.

16. I also accept the Minister’s submission that there is no overarching duty to consider the exercise of the s 473DC discretion. It also does not arise in this case that it was unreasonable for the Authority to not consider the discretion because it did in fact go on to do so.

    Conclusion

17. For the forgoing reasons, I am satisfied that the Amended Application does not give rise to or establish any jurisdictional error.  To the extent that the Minister has identified an error in the Authority’s decision, I agree that applying a counterfactual to that error means that it was not material because had the error not been made, this could not realistically have resulted in a different decision. 

18. As such, that error is not jurisdictional and, absent a jurisdictional error, the decision is therefore a privative clause decision and should be dismissed. I will so order.

    COSTS

19. Consequent upon the dismissal, the Minister sought an order that the applicant pay costs fixed in the sum of $7,000.  When invited to make any submissions that he wished in relation to whether or not costs ought follow the event or the amount sought, the applicant said that he had nothing to say.  I am satisfied that costs should follow the event in this matter.  I am also satisfied that the amount sought is reasonable, having regard to the Court scale, being the amount of $8,371.30, and the fact that this matter has been on foot for a considerable period of time in which the applicant also filed an Amended Application, and that the Minister was represented by Counsel at hearing in order to address an issue raised quite properly by the Minister, in his capacity as a model litigant. 

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       18 September 2023