SZTXY v Minister for Immigration & Anor; SZTXZ v Minister for Immigration & Anor; SZTZJ v Minister v Minister for Immigration
[2014] FCCA 841
•15 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTXY v MINISTER FOR IMMIGRATION & ANOR SZTXZ v MINISTER FOR IMMIGRATION & ANOR SZTZJ v MINISTER v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 841 |
| Catchwords: PRIVACY – Consideration of an alternative remedy under the Privacy Act 1988 (Cth). |
Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5AA, 46A, 48B, 195A, 198, 417, 474, 476
Privacy Act 1988 (Cth), ss.14, 36, 40, 52, 55A
| Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1988) 76 ALR 173 |
| Applicant: | SZTXY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 485 of 2014 |
| Applicant: | SZTXZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 490 of 2014 |
| Applicant: | SZTZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 586 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Prince, with Mr P Bodisco |
| Solicitors for the Applicants: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr G Kennett SC, with Ms B Tronson |
| Solicitors for the Respondents: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
All subpoenas issued in the proceedings are set aside.
The applications are dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 485 of 2014
| SZTXY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
Second Respondent
SYG 490 of 2014
| SZTXZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
Second Respondent
SYG586 of 2014
| SZTZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
In February this year, it emerged that personal information concerning some 10,000 people held in immigration detention in Australia had inadvertently been made available on the internet. The revelation caused understandable concern and those affected received letters from the Secretary of the Minister’s Department about the circumstances. The Secretary’s letter contained what purports to be an undertaking that the Department would assess any implications for each affected person personally as part of its “normal processes”. Those affected were also invited by the letter to raise any concerns they might have during “those processes”.
A group of immigration detainees at Villawood were sufficiently concerned about the circumstances and the implications for them, which concerns were not allayed by the Secretary’s letter, that they instituted proceedings in this Court on 4 March 2014. Other applications followed. The initial applications were not prepared with the assistance of legal advice and it was difficult to discern what the applicants were seeking from the Court. Subsequently, a group of applicants, whose applications had been allocated to my docket, obtained legal representation. Amended applications were filed between 28 March 2014 and 7 April 2014 which sought interlocutory relief in the form of an injunction restraining the Minister from removing the applicants from Australia pending the determination of final relief in the proceedings, and final relief in the following terms:
1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s.198 of the Act other than according to law and consistently with the declarations in orders 2-5.
2. A declaration that it is not reasonably practicable for the First or Second Respondents, their officers or agents, to remove the applicant from Australia within the meaning of s.198 of the Migration Act unless and until consideration has been given by the Minister of Australia’s non-refoulment obligations (under the Refugee Convention; the Convention Against Torture; and the International Covenant on Civil and Political Rights) arising from the release of the applicant’s personal information in or about February 2014 in respect of the applicant, according to law.
3. A declaration that the representation that an assessment of any implications for the applicant personally by the Second Respondent as part of the Department’s normal processes made on 12 March 2014 (“the 12 March 2014 representation”) involves a representation that the power vested in the Second Respondent by s.61 of the Constitution will be used in favour of the applicant.
4.A declaration that the Second Respondent, his officers and agents, in undertaking the assessment identified in the 12 March 2014 representation is required to accord to the applicant procedural fairness according to law.
The Minister filed amended responses between 3 and 14 April 2014 which challenged the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (Migration Act) in the following terms:
The Court lacks jurisdiction to hear the application [Rule 44.06(2)(a)]:
Particulars
a) The amended application purports to invoke the Court’s jurisdiction under s.476 of the Migration Act 1958 (the Act), but does not identify a migration decision, as that term is defined in the Act, in relation to which relief is sought.
b) The so-called ‘future decision’ or ‘other action’ by the Minister or an officer under s.198 of the Act is not a ‘migration decision’ as that term is defined at s.5 of the Act as, at this stage, it is not a decision that is ‘proposed to be made’ or that is ‘required to be made’ under the Act or under a regulation or other instrument made under the Act and, therefore, it is not:
i) a privative clause decision: see s.474(2);
ii) a purported privative clause decision: see s.5E; or
ii) a non-privative clause decision: see s.474(4) and (6).
The amended response states that, in any event, the applicants have not raised an arguable case for the relief claimed[1].
[1] see rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules)
I gave directions in these matters on 4 April 2014 listing them for a hearing on the issue of jurisdiction on 23 April 2014. I gave the parties the opportunity to file and serve affidavit evidence and written submissions. It was agreed that, for the purposes of the preliminary hearing, the Court would deal with the applications by SZTXY, SZTZJ and SZTXZ.
In each of those cases, affidavits were made by Louise Buchanan (the Minister’s solicitor) which annexed the letter from the Secretary to the affected detainees. That affidavit was relied upon by the applicants. Affidavits were also prepared by Peter Desmond Richards (a senior officer of the Minister’s Department) and by Lynne Gillam (another Departmental officer) which were relied upon by the respondents. Subpoenas had been issued at the request of the applicants seeking documents from the Minister’s Department but I stood over those subpoenas pending resolution of the jurisdictional issue (and as it transpired, the issue of whether an arguable case had been demonstrated).
The parties both made written and oral submissions.
Consideration
The jurisdictional issue
I ruled against the Minister’s jurisdictional challenge, which was common to each application. The Minister conceded that the removal of the applicants from Australia pursuant to s.198 of the Migration Act would involve a “migration decision” for the purposes of s.476. The Minister also conceded that, if jurisdiction were established, that jurisdiction would extend to making appropriate ancillary declarations, even if injunctive relief were ultimately denied[2]. That concession was properly made having regard not only to the High Court authority referred to but also to authority of the Full Federal Court bearing upon this Court’s jurisdiction in circumstances such as the present[3].
[2] see Plaintiff M61/2010E & Anor v Commonwealth of Australia (2010) 243 CLR 319 at [101]-[103]
[3] see SZQDZ v Minister for Immigration [2012] FCAFC 26 at [45]
Counsel for the Minister, however, sought to argue that the Court should find that it lacked jurisdiction because each claim was “colourable”. I took the view that that submission, while it might properly be made in relation to the accrued jurisdiction of the Court[4] was a difficult submission to sustain in relation to an express statutory jurisdiction, especially without regard to the available evidence.
[4] Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1988) 76 ALR 173
The Minister’s legal advisors, perhaps anticipating such a response, had in the alternative prepared an Application in a Case seeking the summary dismissal of each application. The Applications in a Case have not been filed and I declined to deal with them on the basis that the appropriate approach in the circumstances (consistently with the Federal Circuit Court Rules) was to conduct an immediate show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules.
I will now deal with the issue of whether any of the three applicants the subject of the show cause hearing has established an arguable case for the relief they seek.
SZTXY
Applicant SZTXY sets out the following grounds in his amended application:
1. The applicant is a citizen of Sri Lanka.
2. On 22 October 2012, [he] arrived in Australia by boat without immigration clearance and claimed that Australia owed protection obligations in respect of him.
3. At no time has the applicant been made aware of any assessment of the protection claims made by him.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In or about February 2014, the First and or Second Respondent by their servants or agents released the applicant’s personal information by publishing it on the world wide web.
7. The applicant’s personal information so released included his name, date of birth, nationality, gender, details about the applicant’s detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8. The release of the applicant’s personal information by the First and or Second Respondents, their servants or agents, was contrary to law.
Particulars
a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s.336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
9. The release of the applicant’s personal information has caused the applicant to have a well founded fear that his removal from Australia and his return to Sri Lanka will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10. The applicant’s well founded fear that his removal from Australia to Sri Lanka will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International covenant on Civil and Political Rights by reason of the release of his personal information in or about February 2014 has not been the subject of any consideration or assessment by the First or Second Respondent so far as the applicant is aware.
11. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein
12. The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):
“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.”
13. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s.61 of the Constitution of the Commonwealth and authorised to make the representation.
14. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s.61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
15. At no stage has the applicant been advised of the scope, purpose or nature of the assessment process identified in the 12 March 2014 Representation and the applicant is not able to make any representations addressing any criteria or circumstances to be considered in the proposed assessment.
16. At no time has the applicant been invited to make submissions or representations by reference to any particular fact matter or circumstances that may be used adversely to his interests in the assessment processes identified in the 12 March 2014 Representation.
17. At no time has the First or Second Respondent indicated to the applicant that the assessment process identified in the 12 March 2014 [R]epresentation will be considered according to the requirements to accord procedural fairness to the applicant.
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s.46A or s.195A arising from the disclosure of the applicant’s personal information.
19. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s.198 of the Act irrespective of whether an assessment of Australia’s non-refoulment obligations in relation to the February 2014 disclosure of the applicant’s personal information has been carried out in a way which the applicant is accorded procedural fairness.
The Secretary wrote to SZTXY (and to the other affected detainees) in the following terms:
Unauthorised Access to personal information
In February 2014 a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.
We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again.
The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
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.
If you would like to seek more information about the incident, talk to your case manager. (emphasis added)
The circumstances of the unauthorised disclosure of information by the Minister’s Department are dealt with in more detail in the affidavit by Lynne Gillam. She is the Assistant Secretary, Onshore Protection Branch of the Minister’s Department and is responsible for the programme management and operational procedures for the Department’s onshore protection programme. She states relevantly as follows:
I am aware that on 10 February 2014, the regular monthly Immigration Detention and Community Statistics Report for January 2014 was published on the Department’s website and that this report contained a link to the details of individuals in detention facilities as at 31 January 2013 (the disclosure).
I am further aware that of the individuals affected by the disclosure, approximately 2,000 out of 10,000 are people at various stages of processing of protection claims by the Department. The vast majority, approximately 8000 out of around 10,000, have been identified as Illegal Maritime Arrivals who are currently awaiting processing or transfer to an offshore processing country. The total figure also includes individuals who have made no protection claims but who were in detention for a variety of reasons.
I am aware that all individuals affected by the disclosure were notified by a letter from the Secretary of the Department dated 12 March 2014. Annexed hereto and marked ‘A’ is a copy of the letter from the Secretary to the applicant in these proceedings dated 12 March 2014. That letter advised the individuals that the Department will assess any implications for them as part of its normal processes. The ‘normal processes’ applicable to an individual who is raising protection claims depends upon the processes that have already been completed.
I am informed and verily believe that the Departmental records kept in relation to this applicant show as follows:
a. The applicant was affected by the disclosure;
b. The applicant arrived in Australia as an Illegal Maritime Arrival on 23 October 2012;
c. The applicant has not been the subject of any processes regarding any protection claims he may wish to raise.
Therefore, in relation to this applicant, as he has not yet had any protection claims processed, any concerns that he wishes to raise as a result of the disclosure will be examined through the Protection Status Determination process and consideration of any such claims if made will be documented in the decision record.
Until that process is concluded, the applicant will not be considered for removal. (emphasis added)
In addition, Mr Richards relevantly deposes as follows:
On 10 February 2014, an eleven page ‘Immigration Detention and Community Statistics Summary’ report of statistics on persons in immigration detention, including community detention, as at 31 January 2014 was published on the Department’s website. This statistical report has been published monthly by the Department since August 2013.
On 19 February 2014, at approximately 9.15am, the Department was informed by two journalists from the Guardian Australia that the report that had been published on the Department’s website retained underlying data which could be accessed if the report was downloaded. This underlying data was inadvertently embedded within a graph in the report. This underlying data would not have been immediately apparent to a person accessing the report online. A person accessing the report online had to take additional steps to view the underlying data, such as by clicking on the specific graph within the report to then view it.
The underlying data which could be accessed if the report was downloaded was the name, date of birth, nationality and gender of each detainee as well as the date, place and reason for each person’s detention and whether the person had any family members in detention. The reason for detention describes the reason the person is in detention and the part of the Migration Act they have been detained under, for example, illegal maritime arrival, cancellation or overstayed, 189(1) or 189(3).
The report was removed from the Department’s website by 10.00am on 19 February 2014.
As is noted by Ms Gillam in her affidavit, applicant SZTXY arrived in Australia as an unauthorised maritime arrival (UMA) (as that term is defined in s.5AA of the Migration Act) on 23 October 2012. It is a notorious fact that at that time (and thereafter) no process existed in Australia for the determination of refugee claims by UMAs. Former schemes directed to assisting the Minister to consider the exercise of his discretion pursuant to s.46A of the Migration Act[5] had been overtaken by a decision of the then Minister in March 2012 to permit UMAs to make protection visa applications which were assessed in the usual way by the Minister’s Department and on review by the Refugee Review Tribunal. That process was, however, suspended in August 2012 and no Australian onshore process replaced it[6]. I twice asked counsel for the Minister what was the “protection status determination process” referred to by Ms Gillam in [8] of her affidavit. He was unable to tell me and, on instructions, said that he understood that the process was in the course of development. It follows that the nature and the purpose of the process to which SZTXY might be subjected is unknown to the Court. What can be established is that whatever that process may be and whatever it may involve, it has not yet commenced.
[5] the subject of the High Court proceedings in Plaintiff M61/2010E & Anor v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133
[6] The Refugee Council of Australia refers to a Government announcement made on 3 July 2013 of the resumption of processing but I do not know what this meant in a practical sense: >
At [8] of his written submissions, counsel for the Minister puts the following proposition:
The proposed injunctive relief would serve no proper purpose in the present case because:
a)The respondents accept that the power to remove a non-citizen from Australia under s 198 does not arise unless and until any claims for protection that the non-citizen makes have been assessed and that that assessment must be made according to law (including the principles of procedural fairness). Any claim articulated by a non-citizen that he or she faced a risk of harm as a consequence of the disclosure of personal information would need to be dealt with in that assessment.
b)There is no evidence that either of the respondents (or their delegates, servants or agents) has any intention of removing any of the applicants otherwise than in accordance with law. In particular, there is no evidence of any intention to remove any of the applicants without such protection claims as he or she may advance being assessed. Indeed the evidence is to the contrary.
Counsel for the applicants submitted that the Secretary’s letter amounted to a representation that some new process common to all of the detainees affected by the information disclosure would be applied to them separately from any other process that might be applicable to them should they make (or have made) a claim for protection in Australia. I cannot accept that submission in the light of the available evidence. That evidence establishes to my satisfaction that what the Secretary intended to convey was an undertaking that the circumstances of the release of information would be taken into account in relation to any assessment of protection claims by the affected detainees or any assessment that the Minister might undertake of his own volition, for example for the purposes of s.195A. In the case of SZTXY, the representation was misleading in its reference to the “usual processes” of the Department. It was misleading because since August 2012 there has been no process in place for the assessment of protection claims by UMAs in Australia. It appears from the affidavit of Ms Gillam that a process is being developed to consider claims in that class. The Minister, through his counsel, has represented to the Court that the process will be subject to the requirements of procedural fairness and that it will be conducted according to law. The rule of law of course depends upon the supervisory jurisdiction of the courts. I proceed on the basis that the protection status determination process referred to by Ms Gillam at [8] of her affidavit will be subject to the supervisory jurisdiction of this Court under s.476 of the Migration Act, consistently with the decisions of the High Court in M61 and the Full Federal Court in SZQDZ.
I conclude that the concerns of SZTXY are unfounded. He will not be removed from Australia until any claims for protection he wishes to make are considered pursuant to an assessment process conducted lawfully. The implications of the release of his personal information will be taken into account in that process. In the circumstances, an arguable case for the relief currently sought by him has not been established.
SZTZJ
The grounds in the amended application by SZTZJ are as follows:
1.The applicant is a citizen of Iran.
2. On 1 November 2011 the applicant arrived in Australia by boat and claimed that Australia owed protection obligations in respect of her.
3. On 5 September 2012, the process by which the claims of the applicant that Australia owed protection obligations in respect of her was completed.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In or about February 2014, the First and or Second Respondent by their servants or agents released the applicant’s personal information by publishing it on the world wide web.
7. The applicant’s personal information so released included [her] name, date of birth, nationality, gender, details about the applicant’s detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8. The release of the applicant’s personal information by the First and or Second Respondents, their servants or agents, was contrary to law.
Particulars
a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s.336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
9. The release of the applicant’s personal information has caused the applicant to have a well founded fear that [her] removal from Australia and [her] return to Iran will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10. The applicant’s well founded fear that [her] removal from Australia to Iran will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International covenant on Civil and Political Rights by reason of the release of [her] personal information in or about February 2014 has not been the subject of any consideration or assessment by the First or Second Respondent so far as the applicant is aware.
11. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein
12. The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):
“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.”
13. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s.61 of the Constitution of the Commonwealth and authorised to make the representation.
14. The exercise or refusal to exercise a power in relation to an individual adversely to her interests and based on [her] personal characteristics and circumstances pursuant to s.61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
15. At no stage has the applicant been advised of the scope, purpose or nature of the assessment process identified in the 12 March 2014 Representation and the applicant is not able to make any representations addressing any criteria or circumstances to be considered in the proposed assessment.
16. At no time has the applicant been invited to make submissions or representations by reference to any particular fact matter or circumstances that may be used adversely to [her] interests in the assessment processes identified in the 12 March 2014 Representation.
17. At no time has the First or Second Respondent indicated to the applicant that the assessment process identified in the 12 March 2014 [R]epresentation will be considered according to the requirements to accord procedural fairness to the applicant.
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s.46A or s.195A arising from the disclosure of the applicant’s personal information.
19. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s.198 of the Act irrespective of whether an assessment of Australia’s non-refoulment obligations in relation to the February 2014 disclosure of the applicant’s personal information has been carried out in a way which the applicant is accorded procedural fairness.
Ms Gillam says in relation to SZTZJ:
From the Departmental records kept in relation to this applicant I can say as follows:
a) The applicant is affected by the disclosure.
b) The applicant arrived in Australia as an illegal maritime arrival.
c) The applicant made protection claims which were assessed through a non-statutory process for the purpose of informing any consideration of the exercise of the Minister’s powers under s.46A of the Migration Act 1958.
d) These processes ultimately resulted in the applicant not being referred to the Minister for consideration of the exercise of his powers under s.46A.
Therefore, in relation to this applicant, she has been the subject of processes in which her protection claims were considered but has now been affected by the disclosure. In such a circumstance, the Department will be writing to her inviting her to provide information that she would like to have considered by the Department regarding the disclosure. Should the applicant provide such information in accordance with the invitation, this will be considered as to whether the information raises any new, substantive and credible information relevant to Australia’s non-refoulement obligations. In the event that new and credible protection related information is raised, the applicant’s case will be referred for the Minister’s consideration under the Minister’s intervention powers under the Migration Act.
If the applicant provides information in accordance with this invitation the applicant will not be considered available for removal until this consideration occurs.
I accept in the case of SZTZJ that there are established processes in place in the Minister’s Department for dealing with any fresh claim for protection that she may wish to make. I also accept that that further assessment process would have to be conducted lawfully before she could be removed from Australia consistently with s.198 of the Migration Act. Any fresh claim made by her on the basis on the release of her personal information would be a sur place claim not previously made and the circumstances would warrant a fresh consideration of her situation. SZTZJ could if necessary seek relief in this Court in relation to that process, consistently with the decision in M61. I conclude that the concerns of SZTZJ are unfounded and she has not established an arguable case for the relief she seeks.
SZTXZ
The amended application by SZTXZ contains the following grounds:
1.The applicant is a citizen of Nepal.
2. On December 2005 the applicant arrived in Australia by plane and claimed that Australia owed protection obligations in respect of him.
3. On 18 March 2013, the process by which the claims of the applicant that Australia owed protection obligations in respect of him was completed.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In or about February 2014, the First and or Second Respondent by their servants or agents released the applicant’s personal information by publishing it on the world wide web.
7. The applicant’s personal information so released included his name, date of birth, nationality, gender, details about the applicant’s detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8. The release of the applicant’s personal information by the First and or Second Respondents, their servants or agents, was contrary to law.
Particulars
a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s.336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
9. The release of the applicant’s personal information has caused the applicant to have a well founded fear that his removal from Australia and his return to Nepal will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10. The applicant’s well founded fear that his removal from Australia to Nepal will involve a breach of Australia’s non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International covenant on Civil and Political Rights by reason of the release of his personal information in or about February 2014 has not been the subject of any consideration or assessment by the First or Second Respondent so far as the applicant is aware.
11. On 12 March 2014, the applicant received a letter from the Second Respondent (“the 12 March 2014 letter”).
Particulars
a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein
12. The 12 March 2014 letter contained a representation as follows (“the 12 March 2014 Representation”):
“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.”
13. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s.61 of the Constitution of the Commonwealth and authorised to make the representation.
14. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s.61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
15. At no stage has the applicant been advised of the scope, purpose or nature of the assessment process identified in the 12 March 2014 Representation and the applicant is not able to make any representations addressing any criteria or circumstances to be considered in the proposed assessment.
16. At no time has the applicant been invited to make submissions or representations by reference to any particular fact matter or circumstances that may be used adversely to his interests in the assessment processes identified in the 12 March 2014 Representation.
17. At no time has the First or Second Respondent indicated to the applicant that the assessment process identified in the 12 March 2014 [R]epresentation will be considered according to the requirements to accord procedural fairness to the applicant.
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s.48B or s.417 arising from the disclosure of the applicant’s personal information.
19. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s.198 of the Act irrespective of whether an assessment of Australia’s non-refoulment obligations in relation to the February 2014 disclosure of the applicant’s personal information has been carried out in a way which the applicant is accorded procedural fairness.
Ms Gillam in her affidavit says in relation to SZTXZ:
I am informed and verily believe that the Departmental records kept in relation to this applicant show as follows:
a) The applicant is affected by the disclosure.
b) The applicant last arrived in Australia on 18 April 2007 holding a temporary visa.
c) The applicant lodged an application for a protection visa on 16 July 2010. This application was refused on 28 April 2011.
d) The applicant sought to review the refusal decision in the Refugee Review Tribunal (RRT), but the decision was affirmed on 19 March 2013.
e) The applicant sought judicial review in relation to the RRT decision and this was recently determined by a refusal of special leave by the High Court on 2 April 2014.
f) The applicant lodged a further protection visa application on 17 December 2013 but it was considered to be subject to s.48A and therefore invalid.
g) The applicant has also recently been the subject of processed under s.417 and s.48B of the Migration Act which have not resulted in the Minister considering the exercise of his personal powers under those provisions.
Therefore, in relation to this applicant, he has been the subject of processes in which his protection claims were considered but has now been affected by the disclosure. In such a circumstance, the Department will be writing to him inviting him to provide information that he would like to have considered by the Department regarding the disclosure. Should the applicant provide such information in accordance with the invitation, this will be considered as to whether the information raises any new, substantive and credible information relevant to Australia’s non-refoulement obligations. In the event that new and credible protection related information is raise, the applicant’s case will be referred for the Minister’s consideration under the Minister’s intervention powers under the Migration Act.
If the applicant provides information in accordance with this invitation the applicant will not be considered available for removal until this consideration occurs.
But for the new circumstances resulting from the unauthorised release of his personal information, SZTXZ would have exhausted the statutory processes for the consideration of his protection claims. However, as is conceded by Ms Gillam, the disclosure of his personal information is a new circumstance supporting a further consideration of his claims. The Minister could consider his circumstances either pursuant to s.417 of s.48B of the Migration Act. The Minister’s powers under those sections are personal and non compellable and are excluded from the jurisdiction of this Court[7]. He could, however, if necessary seek relief in relation to those processes in the High Court of Australia in its original jurisdiction.
[7] see ss.474(7)(a) and 476(2)(d) of the Migration Act
I conclude that the concerns of SZTXZ are unfounded and that he has not established an arguable case for the relief he seeks. That is sufficient to dispose of these proceedings, but for completeness, I will consider alternative relief available to the applicants.
An alternative remedy
If the applicants are for some reason mistrustful of the processes discussed above, they have an alternative remedy available to them. The circumstances of the release of personal information of these applicants points to a possible breach of information privacy principle 11 of the information privacy principles set out at s.14 of the Privacy Act 1988 (Cth) (Privacy Act)[8]. Under s.36 of the Privacy Act, they are entitled to complain to the Privacy Commissioner (Commissioner) about the apparent breach. Section 40 of the Privacy Act provides:
[8] From 12 March 2014 the relevant principle is Australian Privacy Principle 6 in Schedule 1 to the Privacy Act
(1)Subject to subsection (1A), the Commissioner shall investigate an act or practice if:
(a) the act or practice may be an interference with the privacy of an individual; and
(b) a complaint about the act or practice has been made under section 36.
(1A)The Commissioner must not investigate a complaint if the complainant did not complain to the respondent before making the complaint to the Commissioner under section 36. However, the Commissioner may decide to investigate the complaint if he or she considers that it was not appropriate for the complainant to complain to the respondent.
(1B)Subsection (1A) does not apply if the complaint is about an act or practice that may breach:
(a) section 20R, 20T, 21T or 21V (which are about access to, and correction of, credit reporting information etc.); or
(b) a provision of the registered CR code that relates to that section.
(2)The Commissioner may, on the Commissioner's own initiative, investigate an act or practice if:
(a) the act or practice may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1; and
(b) the Commissioner thinks it is desirable that the act or practice be investigated.
(3) This section has effect subject to section 41.
Section 52 of the Privacy Act provides:
(1) After investigating a complaint, the Commissioner may:
(a) make a determination dismissing the complaint; or
(b)find the complaint substantiated and make a determination that includes one or more of the following:
(i) a declaration:
(A) where the principal executive of an agency is the respondent--that the agency has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct; or
(B) in any other case--that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat or continue such conduct;
(ia)a declaration that the respondent must take specified steps within a specified period to ensure that such conduct is not repeated or continued;
(ii)a declaration that the respondent must perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;
(iv) a declaration that it would be inappropriate for any further action to be taken in the matter.
(1A)After investigating an act or practice of a person or entity under subsection 40(2), the Commissioner may make a determination that includes one or more of the following:
(a) a declaration that:
(i) the act or practice is an interference with the privacy of one or more individuals; and
(ii) the person or entity must not repeat or continue the act or practice;
(b) a declaration that the person or entity must take specified steps within a specified period to ensure that the act or practice is not repeated or continued;
(c)a declaration that the person or entity must perform any reasonable act or course of conduct to redress any loss or damage suffered by one or more of those individuals;
(d) a declaration that one or more of those individuals are entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice;
(e) a declaration that it would be inappropriate for any further action to be taken in the matter.
(1AA)The steps specified by the Commissioner under subparagraph (1)(b)(ia) or paragraph (1A)(b) must be reasonable and appropriate.
(1AB) The loss or damage referred to in paragraph (1)(b) or subsection (1A) includes:
(a)injury to the feelings of the complainant or individual; and
(b) humiliation suffered by the complainant or individual.
(1B) A determination of the Commissioner under subsection (1) or (1A) is not binding or conclusive between any of the parties to the determination.
(2) The Commissioner shall, in a determination, state any findings of fact upon which the determination is based.
(3) In a determination under paragraph (1)(a) or (b) (other than a determination made on a representative complaint), the Commissioner may include a declaration that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.
(3A) A determination under paragraph (1)(b) or subsection (1A) may include any order that the Commissioner considers necessary or appropriate.
(4) A determination by the Commissioner under subparagraph (1)(b)(iii) on a representative complaint:
(a) may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commissioner; and
(b)if the Commissioner provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.
(5) If the Commissioner makes a determination under subparagraph (1)(b)(iii) on a representative complaint, the Commissioner may give such directions (if any) as he or she thinks just in relation to:
(a) the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and
(b) the manner for determining any dispute regarding the entitlement of a class member to the payment.
(6) In this section:
“complainant” , in relation to a representative complaint, means the class members. (emphasis added)
This Court has jurisdiction under s.55A of the Privacy Act to enforce a determination made by the Commissioner. If any of these applicants wished to make a complaint to the Commissioner about the release of their personal information I see no reason in principle why such a complaint, and the investigation of it by the Commissioner, could not extend to the consequences of the release for the personal safety of the applicants in their countries of origin.
Conclusion
None of these three applicants has established an arguable case for the relief sought in their amended applications. I will order that the applications be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules. The subpoenas issued will be set aside.
The remaining applications the subject of these proceedings should be dealt with consistently with this judgment.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 May 2014
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