SZRIF v Minister for Immigration
[2017] FCCA 483
•31 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRIF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 483 |
| Catchwords: MIGRATION – Review of International Treaties Obligation Assessment – applicant affected by the 2014 data breach – no consideration of the data breach by the Refugee Review Tribunal in 2014 – whether the ITOA was unfair because of that lack of consideration or for other reasons considered – no jurisdictional error. PRACTICE AND PROCEDURE – Rejoinder of parties incorrectly removed as applicants. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Coulton v Holcombe [1986] HCA 33 Minister for Immigration v SZVCH [2016] FCAFC 127 SZGIZ vMinister for Immigration (2013) 212 FCR 235 |
| First Applicant: | SZRIF |
| Second Applicant: | SZRIH |
| Third Applicant: | SZRIG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2558 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2017 |
REPRESENTATION
Mr Hossain, appearing with leave, on behalf of the Applicants
| Counsel for the Respondents: | Mr C Lenehan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended in court on 15 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2558 of 2015
| SZRIF |
First Applicant
| SZRIH |
Second Applicant
| SZRIG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of an International Treaties Obligations Assessment (ITOA) made on 2 September 2015. The Assessor found that Australia does not have non refoulement obligations to the first applicant in relation to Malaysia. The following statement of background facts is derived from the submissions of the Minister filed on 8 March 2017.
On 2 August 2011, the first applicant made an application for a protection (class XA) visa with the second and third applicants being included as dependent applicants[1]. The application was refused on 25 October 2011[2] and affirmed on review by the then Refugee Review Tribunal (Tribunal) on 9 March 2012[3].
[1] see the Court Book (CB) 1-45
[2] CB 46-56
[3] CB 57-64
On 26 November 2013, the first applicant was detained pursuant to s.189 of the Migration Act 1958 (Cth) (Migration Act) (the second and third applicants were not detained and, in fact, remain in the community)[4].
[4] CB 122
On 29 November 2013, the applicants made a further application for a protection (class XA) visa, which was accepted as a valid application in light of SZGIZ vMinister for Immigration[5].
[5] CB 65-116 ; (2013) 212 FCR 235
In February 2014, a report was published on the internet by the Minister’s Department (Department) which enabled personal information about the first applicant (and other persons held in immigration detention as at 31 January 2014) to be accessible online. The circumstances of that disclosure are usefully summarized by the High Court in Minister for Immigration v SZSSJ Minister for Immigration v SZSSJ (SZSSJ) [6] and Minister for Immigration v SZTZI (SZTZI)[7]. It is convenient to refer to that disclosure as the “data breach”[8].
[6] [2016] HCA 29; (2016) 333 ALR 653
[7] [2016] HCA 29; (2016) 90 ALJR 901 at [3]-[7]
[8] see data disclosed in relation to the first applicant at CB 116-118
The applicant was then informed that some of his personal information may have been available online for a short period of time[9]. Similar correspondence was sent to other persons whose personal information may have been disclosed in that fashion – described by the High Court in SZSSJ at [8] as a “standard form letter”. It was noted in that letter that:
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.
[9] see the letter of 12 March 2014 at CB 119
Meanwhile, the applicants’ second protection visa application was refused by the Minister’s delegate on 12 June 2014[10] and affirmed on review by the Tribunal on 30 July 2014, having considered only the first applicant’s claims relating to complementary protection[11].
[10] CB 117-132
[11] CB 133-139
On 20 January 2015, the Department invited the first applicant to provide any information he wished to have considered arising from the data breach[12].
[12] see CB 140-3
On 26 May 2015, an officer of the Department wrote to the first applicant[13]. The letter informed the applicant that an ITOA had been commenced to assess the effect of the data breach on Australia's non-refoulement obligations with respect to him. After referring to previous correspondence, the letter went on to invite the first applicant to provide any further information which he wished to have taken into account in the assessment within 14 days of receiving the letter.
[13] see CB 144-147
The applicant responded to that letter on 9 June 2015[14].
[14] CB 148
On 28 July 2015, the Department wrote to the first applicant[15]. That letter contained similar material to that sent to SZTZI[16] on 5 February 2015, to which the High Court referred in SZSSJ at [26]. In particular:
a)the letter responded to a claim by the applicant in his letter of 9 June 2015 that he could not respond meaningfully unless the Department disclosed “all of the relevant information” (apparently referring to all relevant information concerning the data breach). On that matter, consistent with the response provided in answer to the similar assertion advanced by SZTZI, the first applicant was advised that officers conducting ITOAs in relation to the data breach had been instructed to assume that an applicant's personal information may have been accessed by authorities in the country in which the applicant feared persecution or other relevant harm;
b)the letter went on to refer in detail to the first applicant’s personal circumstances, the information disclosed in relation to him and to country information from which the letter suggested, among other things, that an inference was available to be drawn that the first applicant would not be exposed to a real chance of serious harm or real risk of significant harm on returning to Malaysia, even assuming that it was known that he had applied for a protection visa in Australia.
[15] CB 151-5
[16] SZTZI was the respondent in the second appeal heard with SZSSJ
A response was sent to the Department on 5 August 2015[17]. On 2 September 2015, the ITOA found that Australia did not have non-refoulement obligations to the first applicant[18].
[17] CB 157-8
[18] for reasons set out in some detail at CB 161-171
The present proceedings
These proceedings began with a show cause application filed on 16 September 2015. The procedural history of that application is somewhat complex. A registrar initially made orders in relation to the application on 1 October 2015. Further orders were made by a registrar on 25 February 2016. The matter was listed for a final hearing before me on 16 March 2016. On 15 March 2016 I vacated the hearing, noting that the proceedings were affected by proceedings in the High Court arising out of the judgment in the Full Federal Court in SZSSJ v Minister for Immigration.[19] Following the outcome of the High Court proceedings, I made further orders on 16 December 2016 listing the matter for hearing on 15 March 2017.
[19] [2015] FCAFC 125
At the outset of the hearing on 15 March 2017, a Mr Hossain sought leave to assist the applicant as a McKenzie friend. It was apparent, however, that Mr Hossain had prepared an amended application and written submissions and was best placed to make oral submissions in relation to those documents. Accordingly, I gave leave for Mr Hossain to appear on behalf of the applicant, notwithstanding that he is not a legal practitioner. Mr Hossain undertook to file the amended application and his submissions electronically.
The amended application sought the same relief as in the original application, including interlocutory relief, but the grounds are different. Ground 1 asserted that the ITOA was unlawful by reason of fraud and misconduct on the part of the Minister and the Assessor and also procedural unfairness. I struck out the first and second particulars but otherwise gave leave for the applicants to rely upon the amended application.
There were three applicants in the original application and three applicants in the amended application. The principal applicant is the first applicant and the second and third applicants are his wife and child. Order 1 made by the registrar on 25 February 2016 removed the second and third applicants from the proceedings. The effect of my acceptance of the amended application was to restore those applicants as parties. I was satisfied that this was appropriate because they had sought protection as members of the first applicant’s family group and all three applicants were the subject of the ITOA. This was confirmed in correspondence from the Minister’s Department to the first applicant by letter dated 28 July 2015[20]. Although the ITOA found at [2][21] that the second and third applicants were unaffected by the data breach and no claims were raised on their behalf, and hence they were not included in the Assessment, they retained an interest in the ITOA because of their protection visa claims through the first applicant. They were therefore proper parties to the present proceedings.[22]
[20] CB 151
[21] CB 162
[22] See rule 11.02 of the Federal Circuit Court Rules 2001 (Cth)
The original application also joined the Tribunal as the third respondent. Order 1 made by a registrar on 1 October 2015 removed the Tribunal as a respondent. I declined to rejoin the Tribunal as the third respondent on the amended application because the decision in issue is the ITOA and two decisions had previously been made by the Tribunal which had previously been the subject of judicial review. I nevertheless permitted Mr Hossain, on behalf of the applicants, to make submissions on whether the data breach issue should have been dealt with by the Tribunal in its decision made on 30 July 2014[23], and, if so, whether the error was cured by the ITOA.
[23] CB 133
I received as evidence the book of relevant documents filed on 4 March 2016. The applicants also tendered two documents which I received. The first[24] is the reported decision of the Tribunal made on 30 July 2014[25]. The second[26] is a paragraph from a letter from the Department to a different applicant concerning what would constitute the Department’s “normal processes” in that case.
[24] Exhibit A1
[25] Case number 1410541[2014] RRTA 596
[26] Exhibit A2
Both the applicants and the Minister made written and oral submissions.
Consideration
The applicants contend that the present case can be distinguished from SZSSJ and SZTZI on the basis that in those cases the data breach occurred after Tribunal proceedings had been completed. They contend that as they had protection claims before the Department, and later the Tribunal, after the data breach the consequences should have been considered by the Minister’s delegate (Delegate) and the Tribunal. They contend that the ITOA did not cure the defect in the decisions of the Delegate and the Tribunal because the ITOA was procedurally unfair and the ITOA could not have been conducted by the Department, because of its responsibility for the data breach, giving rise to a conflict of interest.
The Minister contends that the application must fail on the basis of the High Court’s decisions in SZSSJ and SZTZI.
I accept from Exhibit A2 that the “normal processes” of the Department in the case of these applicants included the outstanding protection visa application they had made which remained under consideration at the time of the data breach. However, it does not follow that the Delegate and the Tribunal which reviewed his decision were bound to consider the implications of the data breach. The applicants did not respond to correspondence from the Department inviting them to raise issues of concern in relation to the data breach for the purposes of the decision of the Delegate or the Tribunal. As to the Tribunal, it is not apparent to me that the Tribunal was even aware that the applicants were affected by the data breach. Certainly, they made no claim before the Tribunal in relation to the data breach and I do not accept that any claim arose squarely from the material that was available to the Tribunal.
The Tribunal’s decision on 30 July 2014 was the subject of challenge before this Court but the data breach issue was not raised[27]. The issue was, however, raised expressly in the appeal to the Federal Court from that decision[28]. Rares J dealt with the issue in his reasons from [4]-[11] as follows:
[27] see SZRIF & Ors v Minister for Immigration & Anor [2015] FCCA 493
[28] SZRIF v Minister for Immigration [2015] FCA 680
The McKenzie friend appears to have suggested to the first applicant that he should concentrate his efforts on challenging the decisions of both her Honour and the Tribunal on the basis of what has become colloquially known as the “data breach” issue. That issue was first raised with the applicant on 12 March 2014, in a letter written by the Secretary of the Minister’s Department to a large number of persons who were in immigration detention as at 31 January 2014, informing them that there had been a revelation of personal information on the internet concerning many persons in immigration detention for a brief period. This had occurred when information embedded in a Departmental report published on the internet was accessible by an indirect means if a person reviewed the report. It is not necessary to describe the details of that matter.
Importantly, the applicants did not raise any concerns relating to themselves about the data breach, to the extent that it may have affected them, whatever level of information they may have had about it beyond the terms of the 12 March 2014 letter, at their interview before the delegate between the date of their receipt of the Secretary’s letter and the delegate’s decision of 12 June 2014, or at the hearing before the Tribunal or before her Honour.
Ordinarily, a proceeding by way of appeal on a rehearing requires the appellant to identify error on the part of the primary decision-maker, and the appellate court cannot exercise its appellate functions unless that is done: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203-204 per Gleeson CJ, Gaudron and Hayne JJ.
Moreover, an appeal court must ensure that the proper appellate processes are respected in the ordinary course of litigation. An appeal by way of rehearing, such as would occur had the applicants filed a notice of appeal in time or if they were to be granted leave to appeal, ordinarily does not enable parties to raise completely new issues that were not agitated in the Court below. In University of Wollongong v Metwally [No 2] (1985) 49 ALJR 481 at 483, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said that:
a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8, Gibbs CJ, Brennan, Wilson and Dawson JJ cited that passage with approval and also held that there is an important public interest in finality of litigation, and in ensuring that new facts are not sought to be introduced on appeal. The trial, ordinarily, is where the issues and the facts are settled and decided.
This morning the first applicant appeared before me in person with the assistance of his McKenzie friend and sought to rely on a vastly expanded draft notice of appeal that particularly concentrated on the data breach issue. The applicants’ original draft notice of appeal, attached to the first applicant’s affidavit in support of the application for leave to appeal dated 11 March 2015, raised only two grounds, being:
(1) The Court did not consider claims that the first applicant might raise as a consequence of the release of his personal information on the internet (the data breach) in February 2014.
(2) Natural justice was denied because the first applicant had no legal advice or representation.
The Minister relied on a letter written by an officer of the Department to the first applicant on 20 January 2015, referring to the March 2014 letter and offering the first applicant the opportunity of a review if he provided information within 14 days. The first applicant told me today that he had sought to obtain advice from a human rights organisation within Villawood Detention Centre and had been informed that he should await some unspecified decision about the data breach matters raised in the 20 January 2015 letter. Because it appeared that there may have been some misunderstanding on the first applicant’s part if, as the Minister informed me, the applicants had not sought a review as provided in that letter, the Minister’s solicitor indicated that the applicants could now avail themselves of the opportunity to have that review take place, notwithstanding the delay that has occurred. The first applicant said that he wished to take that opportunity up.
Accordingly, it is unnecessary for me to deal with the issues that would have arisen had I had to consider the data breach issue.
There is no basis in these proceedings for me to take a different view to that of the Federal Court in relation to the Tribunal decision. In short, the applicants, having raised nothing before the Tribunal, lost the opportunity to deal with the data breach at that stage. Even if they had, it is now clear that the Tribunal would have been unable to address the issue by reference to the Refugees Convention. That is because the Tribunal was limited to dealing with the applicants’ claim for complementary protection.[29]
[29] Minister for Immigration v SZVCH [2016] FCAFC 127
As to the ITOA, in my view, the application must fail for the same reasons as those given by the High Court in SZSSJ and SZTZI.
In the present case, as in SZSSJ, it is open to the Court to infer that the Minister had personally decided to consider whether to exercise the powers conferred by ss.48B, 195A and 417 of the Migration Act in respect of the first applicant[30].
[30] see SZSSJ at [33], referring to the unchallenged findings of the Full Federal Court in SZSSJ v Minister for Immigration (No 2) (2015) 234 FCR 1 (SZSSJ No 2) at [77]-[82] and [98]
As I have drawn a similar inference here, it follows that:
a)the ITOA was a process undertaken by an officer of the Department under and for the purposes of ss.48B, 195A and 417 of the Migration Act; and
b)procedural fairness is required in the undertaking of that process.
The applicants provide no particulars of the asserted breach of procedural fairness and nor is any such breach apparent.
As the High Court noted in SZSSJ, the circumstances of the data breach (“extraordinary as they are”) do not warrant a departure from the ordinary requirement that the repository of a statutory power adopt a procedure that is reasonable to afford a person whose interests are affected an opportunity to be heard and the central question is whether the procedure adopted is one that so constrains the opportunity of the person to propound his case for a favourable exercise of the power as to amount to a "practical injustice"[31]. Nothing in the reasons of the High Court at [84]-[92] suggest that any such “practical injustice” arose from the procedure that was adopted in the cases of SZTZI and SZSSJ. Nor is there anything to suggest that I could reach a different conclusion in the current matter (given that essentially the same procedure was applied in the case of the first applicant).
[31] at [82]-[83]
Further, the claim of a departmental conflict of interest in the ITOA must fail for the reasons given by the High Court in SZSSJ at [84].
The applicants also contend that the ITOA was flawed because it failed to take account of the particulars that were published on the internet in the reported decision of the Tribunal[32]. That contention, however, is simply a disagreement with the Assessor’s reasoning in the ITOA at [33]-[35][33]. The conclusion reached by the Assessor was open to her on the material before her.
[32] Exhibit A1
[33] CB 167
I conclude that there was no lack of procedural fairness in the ITOA.
Conclusion
The applicants have failed to establish that the ITOA is affected by any reviewable legal error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 March 2017
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