SZTYO v Minister for Immigration
[2014] FCCA 1180
•13 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTYO v MINISTER FOR IMMIGRATION | [2014] FCCA 1180 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal of proceeding for want of an arguable cause of action. |
| Legislation: Constitution, s.75 Migration Act 1958, ss.5, 5AA, 46A, 198, 474, 476 Migration Regulations 1994, reg.5.35AA, cl.866.222 of sch.2 |
| 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: | SZTYO |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 504 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 30 May 2014 |
| Date of Last Submission: | 30 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 504 of 2014
| SZTYO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background facts
The applicant arrived in Australia on 5 October 2012 as the holder of a Transit (Class TX) visa. He was refused immigration clearance and placed in immigration detention and applied for a protection visa on 15 October 2012. The applicant’s application was refused by a delegate of the respondent (“Minister”) and that decision was affirmed by the Refugee Review Tribunal (“RRT”) on 30 August 2013. The applicant then sought judicial review of the RRT’s decision and that proceeding is listed for hearing before me on 3 July 2014.
In February 2014 the applicant’s name and other personal details, along with the personal details of other immigration detainees, were disclosed on the public website of the Department of Immigration and Border Protection (“Department”). Following that breach 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.
The above background information was set out in the affidavit of Dale Jennifer Watson affirmed on 26 May 2014.
This proceeding
On 4 March 2014 the applicant commenced this proceeding, separate from his protection visa judicial review proceeding, seeking a “declaration” that what he described as the bar imposed on him filing a protection visa application by s.46A of the Migration Act 1958 (“Act”) be lifted and that cl.866.222 of sch.2 to the Migration Regulations 1994 (“Regulations”) be waived. In his application the applicant specified the following grounds.
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 a 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 the privacy of information has rendered the applicant a refugee “sur place” under the UN Refugee Convention and rendered the decision of the second respondent redundant.
The applicant also sought an injunction restraining the Minister from removing him from Australia.
The Minister opposed the applicant’s application and challenged the Court’s jurisdiction under s.476 of the 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 additional 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 (“Rules”). 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).
For the reasons which follow, the application will be dismissed.
Consideration
The applicant’s submissions turned on his concern that the release of his personal information increased the risk he claimed to face from the authorities in his home country. His arguments did not go further and engage with the legal issues raised by his application or address the matters raised by the Minister which form the foundation of the following discussion.
Was there a migration decision?
Section 476 of the Act 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.
(2)The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4)In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period.
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.
Section 474 of the Act relevantly provides:
474 Decisions under Act are final
(1)A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(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) …
There was no evidence before the Court to suggest that the release of information concerning the applicant was a “decision of an administrative character made … under” the Act, as referred to in s.474(2). I find that it has not been proved that the release of the information in question was a privative clause decision or the product of a privative clause decision. Without that quality it did not satisfy the first two paragraphs of the definition of “migration decision” set out in s.5 of the Act.
No argument was addressed to the question whether the release of information was a non-privative clause decision or the product of a non-privative clause decision. I note that it does not fall within any of the specific examples of “non-privative clause” decisions set out in s.474(4) of the Act or reg.5.35AA of the Regulations. On the basis that the information was released because someone published a “routine report” (as it was described in the letter from the Secretary of the Department) on the Department’s website, even if inadvertently (as the Secretary stated in his letter), I am prepared to assume for present purposes that the decision to publish the report was a non-privative clause decision and one which falls within the third paragraph of the definition of “migration decision”. Such decisions are not affected by s.474 of the Act.
Consequently, the Minister did not make out his argument that this case did not concern a “migration decision” as required by s.476(1) or that for that reason the Court did not have jurisdiction to consider it.
Claim for declaratory relief – s.46A and cl.866.222
Section 46A
Section 46A of the Act bars a person who arrives in Australia at an “excised offshore place” from applying for a visa. It presently provides:
46AVisa applications by unauthorised maritime arrivals
(1)An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a)is in Australia; and
(b)is an unlawful non‑citizen.
Section 5AA relevantly provides:
5AA Meaning of unauthorised maritime arrival
(1)For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a)the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b)the person became an unlawful non-citizen because of that entry …
Entered Australia by sea
(2)A person entered Australia by sea if:
(a)the person entered the migration zone except on an aircraft that landed in the migration zone …
The evidence indicates, and I accept, that the applicant arrived in Australia by air. Consequently, he is not an unauthorised maritime arrival and s.46A in its present form would not prevent him from lodging an application for a protection visa. He also did not suggest that he had been prevented from lodging a protection visa at any point before 1 June 2013 by reason of s.46A as it stood then.
For these reasons, s.46A has no application to the applicant’s case and provides no basis to make the declaration sought by the applicant.
Clause 866.222
Clause 866.222 was added to sch.2 of the Regulations on 14 December 2013 by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013. The clause provided that a person would not qualify for the grant of a protection visa unless, on his or her last entry into Australia, he or she had a valid visa, was not an unauthorised maritime arrival and was immigration cleared. The clause was disallowed by the Senate on 27 March 2014. Because of that disallowance, the clause has no application to the applicant and thus cannot be a basis for granting him the declaration he sought.
Injunction
The applicant did not suggest that any decision had been made to remove him from Australia or that any action had been taken to commence a process of removal. In the circumstances, that part of the application which seeks an injunction to prevent his removal from Australia discloses no relevant subject matter. Moreover, Ms Watson deposed that she had been instructed that there were no plans current at the time she affirmed her affidavit to remove the applicant from Australia. I accept that to be the case. There is therefore no basis for the grant of the injunction the applicant sought.
At the hearing the Minister also suggested that the application for an injunction was colourable. That submission was not developed but it may be assumed that the Minister was suggesting that the Court lacked authority to hear the claim because the jurisdiction relevantly conferred on it is limited to matters:
(v)in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth … (s.75 of the Constitution),
and that as neither mandamus nor prohibition was sought and a claim for declaratory relief does not attract s.75 jurisdiction, the claim for an injunction was no more than a device to attract what jurisdiction the Court might have in the circumstances.
That argument appears to have some merit but as it was not really pressed at the hearing and the applicant was therefore not made aware of its significance and put in a position to address it, and as the case will be determined on other bases, it is not necessary to express a concluded view on it.
Conclusion
No arguable basis for the relief sought by the applicant has been made out.
Consequently, the application will be dismissed pursuant to Rule 44.12 of the Court’s Rules.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 13 June 2014