SZSSJ v Minister for Immigration & Anor
[2014] FCCA 1379
•20 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSJ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1379 |
| Catchwords: MIGRATION – Jurisdiction of Federal Circuit Court – “migration decision” under the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.5, 5E, 198, 474, 476 Migration Regulations 1994, reg.5.35AA Federal Circuit Court Rules 2001, r.44.12 |
| Cases Cited: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 |
| Applicant: | SZSSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 557 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 30 May and 20 June 2014 |
| Date of Last Submission: | 20 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 557 of 2014
| SZSSJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Background information relevant to the applicant’s case was set out in his affidavits affirmed on 6 March 2014 and 19 June 2014 and in the affidavits of Dale Jennifer Watson and Rebecca Susan Jones affirmed on 27 May 2014 and 19 June 2014 respectively.
The applicant arrived in Australia on a student visa on 27 May 2005. He was placed in immigration detention on 3 October 2012 and has not held any Australian visa since then. On 16 October 2012 he applied for a protection visa. His application was refused by a delegate of the first respondent (“Minister”) and that decision was affirmed by the second respondent (“Tribunal”) on 19 February 2013. The applicant’s applications for judicial review of the Tribunal’s decision were unsuccessful.
In February 2014 the applicant’s name and other personal details, together with the personal details of other immigration detainees, were disclosed on the Department of Immigration and Border Protection’s (“Department”) public website. Following that event the Secretary of the Department wrote to the applicant on 12 March 2014 relevantly stating:
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.
Ms Watson deposed that there were, at the time she affirmed her affidavit, no plans to remove the applicant from Australia pending consideration of claims that he had raised or might raise as a consequence of the information disclosure. Nothing was advanced to contradict that statement or to suggest that circumstances had relevantly changed.
This proceeding
The applicant commenced this proceeding on 7 March 2014. In his amended application filed on 13 June 2014 he sought:
a)declarations that:
i)Australia has legal obligations to provide protection to him;
ii)the Minister, by himself or by his officers, delegates or agents, was “unfit and/or unsuitable and/or unreliable to assess [his] (affected by data breach) case”; and
iii)his detention was arbitrary;
b)injunctions to restrain the Minister, by himself or by his officers, delegates or agents, from:
i)acting “upon the current intention. (i.e., the unjust decision to asses [sic] cases individually through ignoring and violating relevant laws)”;
ii)removing him from Australia; and
iii)detaining him arbitrarily;
c)a writ of mandamus directing the Minister to issue him with an Australian passport; and
d)an order that the “decision/intention” of the Minister be quashed.
The applicant specified the following grounds for his application:
1.The First Respondent breached the applicant’s privacy to information by releasing his name and other details on the departmental website as part of the January 2014 Detention Statistics for the period of several days before 19 February 2014.
Particulars
a)It is a fundamental principle of refugee law that a person seeking asylum should be free to make their protection claims free of disclosure of their identity and other details to the authorities in the applicant’s home country.
b)To return the applicant to his home country would be in breach of the non-refoulement principle contained in Article 33 of the UN Refugee Convention and incorporated into sections 36(2)(a) and (aa) of the Migration Act 1958 (Cth); and
c)The breach of privacy of the information has rendered the applicant a refugee “sur place” under the UN Refugee Convention and rendered the decision of the second respondent redundant.
2.As the Applicant is already a “sur place” refugee, failing to recognise that constitutes a violation of “procedural fairness”.
3.Persecuting the applicant because of his race (i.e., a Non-Australian) and breaking the law by refusing Australia’s legal obligation to protect the applicant’s life and liberty is and should be considered as a criminal act.
Particulars
d) ICCPR articles 2(1,3), 6, 7, 17, 18, 26;
e) ICESCR article 2(2);
f) ICERD articles 2(1,2), 3, 5, 6;
g) CAT articles 1, 16.
4.Publishing the applicant’s sensitive personal information and the whole case without his consent was a criminal act.
Particulars
h) ICCPR article 17;
i) Migration Act 1958;
j) Crimes Act 1914;
k) Public Service Act 1999;
l) Public Service Regulations 1999.
5. The applicant’s detention is arbitrary.
The Minister opposed the applicant’s application and challenged the Court’s jurisdiction under s.476 of the Migration Act 1958 (“Act”) on the bases that the applicant’s application did not identify any migration decision in relation to which relief was sought and no decision had been made pursuant to s.198 of the Act to remove him from Australia. The Minister also opposed the application on the basis that it did not raise any arguable case for the relief claimed.
The matter came before the Court for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed if the applicant does not have an arguable case against the respondent. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
The show cause hearing commenced on 30 May 2014 but was adjourned until today in order that the applicant could prepare his amended application.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Section 476 of the Act relevantly provides:
476 Jurisdiction of the Federal Circuit Court
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. …
Section 5 of the Act relevantly provides:
migration decision means:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non‑privative clause decision.
…
non‑privative clause decision has the meaning given by subsection 474(6).
…
privative clause decision has the meaning given by subsection 474(2).
…
purported privative clause decision has the meaning given by section 5E.
…
Section 474 of the Act relevantly provides:
474 Decisions under Act are final
…
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non‑citizens from disposing of property 5 section 223 Valuables of detained non‑citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 section 353A Directions by Principal Member 18 section 354 Constitution of Migration Review Tribunal 19 section 355 Reconstitution of Migration Review Tribunal 20 section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 section 356 Exercise of powers of Migration Review Tribunal 22 section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 section 421 Constitution of Refugee Review Tribunal 26 section 422 Reconstitution of Refugee Review Tribunal 27 section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers 31 regulation 5.35 Medical treatment of persons in detention (5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision. …
Regulation 5.35AA of the Migration Regulations 1994 (“Regulations”) provides:
5.35AA Decisions that are not privative clause decisions
For subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the following table is not a privative clause decision.
Item Provision Subject matter of provision 1 section 252AA Power to conduct a screening procedure 2 section 252A Power to conduct a strip search 3 section 252B Rules for conducting a strip search 4 section 252C Possession and retention of certain things obtained during a screening procedure or strip search 5 section 252D Authorised officer may apply for a thing to be retained for a further period 6 section 252E Magistrate may order that thing be retained 7 section 252G Powers concerning entry to a detention centre 8 Division 13A of Part 2 Automatic forfeiture of things used in certain offences
Section 5E of the Act provides:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
Consideration
The orders sought by the applicant in his amended application were dealt with in some detail in paras.13 to 22 of the Minister’s written submissions dated 19 June 2014. While I agree with the submissions made by the Minister in relation to the orders sought by the applicant, it is not necessary to discuss those issues in any detail because the matter can be determined on another basis.
The Minister’s principal opposition to this application and the ground on which he will be successful is that the applicant has not identified a migration decision which enlivens this Court’s jurisdiction. In his address to the Court the applicant referred to decisions which he speculated, inferred or suggested had been made but pointed to no actual decision, or future decision which was in prospect, which could be characterised as a migration decision.
The foundation of the application before the Court was the release of information referred to earlier in these reasons and it might be argued that the release of that information flowed from a decision made by an officer in the Minister’s department and thus amounted to a migration decision. However, the combined effect of the passages from ss.5, 5E and 474 of the Act and reg.5.35AA of the Regulations set out earlier in these reasons demonstrates that any such decision was not a migration decision.
As the Court only has jurisdiction under s.476(1) of the Act in relation to migration decisions as defined by the Act, it therefore has no jurisdiction to consider the applicant’s application. That being so, the applicant’s application does not disclose an arguable case for the relief claimed. Consequently, it will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 1 July 2014
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