SZUBJ v Minister for Immigration

[2015] FCCA 1459

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1459

Catchwords:
MIGRATION – Protection (class XA) visa – breach of privacy – whether refugee sur place – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 ss.366E, 476
Privacy Act 1988

SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143

First Applicant: SZUBJ

Second Applicant: SZUBK

Third Applicant: SZUBL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number: SYG 699 of 2014

Judgment of: Judge Street

Hearing date: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Sydney

Delivered on: 28 May 2015

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondent: Mr D. Hughes

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. First and second applicants pay the first respondent’s costs fixed in the sum of $4000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 699 of 2014

SZUBJ

First Applicant

SZUBK

Second Applicant

SZUBL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an injunction within the Court’s jurisdiction under s.476 of the Migration Act 1958, taken together with s.16 of the Federal Circuit Court Act.  The application was filed at a time that the applicants were in detention, and relevantly seeks the following relief: 

   A declaration that the First and Second Respondents have breached section 14 of the Privacy Act 1988 (Cth) Information Privacy Principle 4 and Section 336E of the Migration Act 1958 (Cth) and the operation of section 198 of the Migration Act 1958 (Cth) is suspended until the First and Second Respondents have discharged their duties under the privacy regime of notification and processing of claims relating to the real risk of harm from the said data breach.

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicants from Australia and it territories and/or relocating the applicants offshore to Nauru or Manus Island until this matter is finally determined.

   Costs

2. The application identified 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 to the authorities in the applicant's home country;

   b. To now 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 section 36(2)(a) of the Migration Act 1958 (Cth);

   c. The breach of the privacy of information has rendered the applicant a refugee "sur place" under the UN Refugee Convention.

   i. The United Nations High Commission on Refugees Representation in Japan's Advisory Opinion on the rules of confidentiality regarding asylum information dated 31 March 2005 stated that "sharing with the country of origin, information about the asylum seeker, including the fact itself that the person applied for asylum, may constitute an aggravation of the person's position vis-a-vis the Government alleged to be responsible for his persecution. In a situation where the initial elements of the claim presented by the asylum-seeker would not lead to inclusion, sharing of confidential information with the country of origin, could well lead to the asylum seeker becoming refugee sur place.

   d. The Department of Immigration and Border Protection has breached section 14 of the Privacy Act 1988 (Cth), IPP 4, section 336E of the Migration Act 1958 (Cth) and its own service standards in disclosing personal information in breach of relevant Australian law.

3. Since the filing of the application, the applicants were actually granted a class WE subclass 050 bridging E visa, valid until 15 January 2016.  The first respondent accepted, in light of the decision in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 together with the nature of the relief and the grounds identified in this case, that there was jurisdiction in respect of the application. The first respondent submitted that there was no basis for the declaratory relief, and there has been no evidence adduced to support any breach of the Privacy Act, and, further, a breach of the Privacy Act 1988 does not give rise to any entitlement under the Migration Act 1958.  I accept the respondent’s submissions that there is no basis for providing relief of in the nature of  the  declaration sought.

4. The limited disclosure of information has not been the subject of any evidence to identify a basis upon which it could be said that there was a breach of the privacy principles, and no basis upon which it could be alleged there was a contravention of s.366E. Accordingly, the prayer for declaratory relief is without substance. The grant of injunctive relief requires both a real or imminent threat to relocate or deport the applicants, as well as a statutory entitlement or right to support the injunctive relief. In light of the grant of the bridging visas, there is no imminent or immediate threat that could support any injunctive relief. Further, there is no basis to assert a breach of any statutory provision or other right that could support the grant of injunctive relief.

5. The applicants expressed concern that they could be taken back into detention, and/or possibly deported.  I accept that the bridging visa is only up to 15 January 2016.  There is no statutory basis or other right that is identified or supported by any evidence that could justify the grant of any injunctive relief.  The application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 June 2015