SZTZI v Secretary of the Department of Immigration & Anor

[2015] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZI v SECRETARY OF THE DEPARTMENT OF IMMIGRATION & ANOR [2015] FCCA 1271

Catchwords:
MIGRATION – International Treaties Obligations Assessment – Protection (class XA) visa – information – procedural fairness – whether the ITOA was a decision under the Migration Act 1958 – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 ss.197C, 198, 336E, 476
Privacy Act1988

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
R v Cook;  ex parte Twigg (1980) 147 CLR 126
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
SZQDZ v Minister for Immigration and Border Protection [2014] FCAFC 12

Applicant: SZTZI

First Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 875 of 2015

Judgment of: Judge Street

Hearing date: 12 May 2015

Date of Last Submission: 12 May 2015

Delivered at: Sydney

Delivered on: 12 May 2015

REPRESENTATION

Counsel for the Applicant: Mr F. Nikjoo

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the First Respondent: Mr S. Lloyd

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The amended application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.   

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 875 of 2015

SZTZI

Applicant

And

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. On 30 March 2015 the applicant filed an application against the three respondents allegedly seeking a remedy under this Court’s jurisdiction and s.476 of the Migration Act 1958.  That application identified:

   A future decision or other action by the Minister or an officer under the Migration Act concerning an unauthorised maritime arrival, following the making a recommendation by case officer of IMA Protection NSW, Department of Immigration and Border Protection.

   Name of IMA Protection NSW case officer: Kathy Backhouse

   Date of recommendation: 23/3/2015

2. The original application also sought injunctive relief restraining the respondents from moving the applicant from Australia pending determination of final relief in the proceedings.  An amended application was filed on 8 May 2015 seeking to raise the following grounds:

   1. The release of the applicant's personal information by the First and Second Respondents and 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; and

   b. Further in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional is reckless and the disclosure was not a pe1mitted disclosure.

   2. In the ITOA assessment dated 23 March 2015 the delegate denied the applicant procedural fairness.

   PARTICULARS

   a. The Third Respondent accepted that the applicant was in detention on 31 January 2014 and her personal details may have been unintentionally disclosed online;

   b. The Third Respondent disclosed that she had accessed the applicant's personal details by telling the applicant that it stated that the reason for her unlawful status was "over-stayer" and this was listed as the reason for her unlawful status and immigration detention. The Third Respondent did not disclosed any to her information held by the Department to the applicant in relation to the data breach for comment;

   c. The Third Respondent as the employee of the Department that disclosed the applicant’s name and person details on the internet did not bring an impartial mind to the decision-making process; and

   d. For the above reasons, the ITOA process is not an appropriate and fair process for determining the applicant's data breach claim.

   3. In the ITOA assessment dated 23 March 2015 the delegate made a legal error in considering wrong issues/irrelevant considerations in relation to the data breach.

   PARTICULARS

   a. The data breach information had been removed from the website.

   4. The Third Respondent erred in failing to consider all of the integers of the applicant's claim.

   PARTICULARS

   a. The applicant's information was accessed in countries other than China.

3. That application identified the following final relief:

   A declaration that the recommendation of the third Respondent was not made in accordance with law, by reason of the ground/s of this application.

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the third Respondent.

   Costs.

4. That amended application abandoned the request for injunctive relief against removal, and that abandonment of injunctive relief against removal was confirmed by Mr Nikjoo, solicitor for the applicant. 

5. The amended application identified the same alleged future decision referable to the ITOA assessment dated 23 March 2015.  Mr Nikjoo, solicitor, confirmed that ground 1 was interdependent with the ITOA decision and was not an independent separate ground.  All four grounds in the amended application seek to agitate whether the ITOA assessment was one made according to law.  Mr Nikjoo identified that his prayer for declaratory relief in respect of that decision was one, he said, was supported by SZQDZ v Minister for Immigration and Border Protection [2014] FCAFC 12 at [37].

6. Picking up what was said by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at [580]-[581], it is clear that the ITOA report is not a decision under the Migration Act and is not a report that has any legal affect under the Migration Act, and it is not a report that of itself can found jurisdiction under s.476. Mr Nikjoo sought to argue that the report operated as a precondition to a step in a process capable of altering the rights of the applicant and, therefore, was something in respect of which declaratory relief might be granted.

7. The problem confronting Mr Nikjoo in that regard is s.197C of the Migration Act, which commenced operation on 16 December 2014.  That provision provides:

   Section 197C – Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

   (1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (2)  An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

8. It is clear from the language of s.197C(2) that the ITOA decision is not a matter that can be raised to prevent removal of an unlawful non-citizen under s.198. I accept the first respondent’s submission, consistent with the explanatory memorandum, was to make clear Parliament’s intention that it is not the law that a person cannot be removed from Australia under s.198 until his or her claims for protection under Australia’s international law obligations have been assessed according to law.

9. Relevantly, the explanatory memorandum provides:

   The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the government.   

10. I accept that this Court has power to grant an injunction to prevent a removal under s.16 but not in a case such as the present where the originating application of relief has been abandoned and where what is sought is a declaration in respect of a process that is precluded under s.197C from impeding an officer’s duty to remove, as soon as reasonably practicable, an unlawful non-citizen under s.198. I take into account, in that regard, that under s.197C(1) for the purpose of s.198 it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

11. The ordinary meaning and effect of s.197C is that the ITOA process, the subject of the identified alleged decision in this case, is irrelevant to the duty imposed under s.198. It is in these circumstances that it is clear that there is no decision within s.476 of the Migration Act invoking this Court’s jurisdiction. I accept that, in light of s.197C, the attempt to obtain injunctive relief against removal can properly be regarded as not a bona fide invocation of this Court’s jurisdiction, as the application is hopeless.

12. Being merely a colourable invocation of alleged injunctive jurisdiction, I am satisfied this case falls within the principle identified by Gibbs J in R v Cook;  ex parte Twigg (1980) 147 CLR 126 and that this Court has no jurisdiction in respect of the amended application. Even if I were persuaded that there was something other than colourable jurisdiction or merely colourable jurisdiction, there is no substance in any of the grounds identified in the application. The alleged breach of the Privacy Act1988 does not give rise to the migration decision or any entitlement to relief under the Migration Act. 

13. The alleged contravention of s.336E is without substance and, on the material before this Court, it is clear that it was an accidental disclosure that occurred of limited information. There is no substance in the allegation of contravention of s.336E nor, in any event, does a contravention of s.336E give rise to any consequence for the applicant in the present case. It is clear that only very limited information was the subject of release. In this case, the Court has the benefit of the abridged KPMG report which makes clear that the letter dated 12 March 2014 accurately identified the very limited nature of the disclosure that occurred.

14. There is no substance in relation to ground 1 of the application. In relation to ground 2 there is a potential issue as to the nature and the extent of any obligation to accord procedural fairness to the applicant. In light of s.197C it is not apparent how that decision can be said to adversely affect the rights or interests of the applicant within Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11]-[15] and Plaintiff S10/2011 at 66. In any event, it is apparent from the content of the report that there was no breach of procedural fairness in the process undertaken.

15. The applicant was clearly informed of the nature of the material that was disclosed and had an opportunity of being able to articulate how that limited disclosure could impact on alleged fears of persecution or alleged fears of serious or alleged fears of serious harm.  The claimant was provided with the opportunity to comment on the information and did so by response dated 11 February 2015, and it is clear that the applicant was in a position to address any concern by reason of the applicant being an over stayer.  There is no conduct identified in respect of the allegation of alleged bias other than the adverse decision itself. 

16. The adverse decision is not a basis upon which a reasonable person might believe that an impartial and independent mind had not been brought to the determination of the matter on its merits, and there is no substance in this allegation. There any substance in suggestion that the process was not a fair process in relation to the assessment. That assessment  expressed the following conclusions:

    (CB109) In conclusion, based on the country information cited above and taking into account the claimant’s personal situation, I find that the claimant does not have a profile which would expose her to a real chance of serious harm or a real risk of significant harm by the Chinese authorities and/or any individual(s) or groups(s) on return to China.

    …

    In light of my assessment at Part A: Findings of Fact (Credibility) of this decision record, I am satisfied that [the applicant] is not a refugee within the meaning of Article 1A and that Australia does not have a non-refoulement obligation to [the applicant] under the Refugees Convention.

17. There is no substance in relation to ground 3, and there is no mandatory consideration to which the decision-maker had to have regard.  To the extent relevant, I am satisfied that the assessment was made without legal error and consistently with the principles identified in the Migration Act and under Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees as well as taking into account The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. 

18. Ground 4 is also of no substance, as it is clear that the essential integer of the claim here addressed was the consequences and fear advanced in respect of the data breach, the limited data breach disclosure.  There was no failure by the assessor to address that integer. The amended application is dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2015