SZURG v Minister for Immigration and Anor (No.2)
[2017] FCCA 1772
•28 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURG v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1772 |
| Catchwords: MIGRATION – Application to review unidentified decision – no jurisdiction in the absence of a reviewable decision. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.46A, 48B, 195A, 417 |
| Cases cited: ABC15 v Minister for Immigration [2015] FCA 1314 DZAEH v Minister for Immigration [2016] FCA 54 Minister for Immigration v SZSSJ [2016] HCA 29 Plaintiff M64-2015 v Minister for Immigration (2015) 90 ALJR 197 Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636; [2012] HCA 31 SZURG v Minister for Immigration& Anor [2015] FCCA 2604 SZWAJ v Minister forImmigration & Anor [2016] FCCA 3096 SZWCH v Minister for Immigration [2016] FCA 1551 |
| Applicant: | SZURG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 3170 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Buchanan of Australian Government Solicitor |
ORDERS
The application filed on 16 November 2016 is dismissed, for lack of jurisdiction.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3170 of 2016
| SZURG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 16 November 2016, in which the applicant seeks relief similar to that sought in Minister for Immigration v SZSSJ, Minister for Immigration v SZTZI (SZSSJ)[1]. In essence, the applicant is seeking to compel consideration by the Minister or his Department of the implications for him of the so-called data breach which occurred early in 2014. Background to this matter is set out in the Minister’s outline of submissions filed on 21 July 2017.
[1] [2016] HCA 29
The applicant is a national of Sri Lanka who arrived in Australia as a then offshore entry person on 1 August 2012[2]. On 7 November 2012, the Minister exercised his powers under ss.46A and 195A of the Migration Act 1958 (Cth) (Migration Act) to grant the applicant a bridging visa and allow the applicant to lodge an application for a protection visa[3]. The applicant lodged a protection visa application on 14 December 2012[4].
[2] Court Book (CB) 1- 16, 182
[3] CB 17
[4] CB 21 ff
The applicant’s application for a protection visa was refused in December 2013 and in early January 2014 he sought review of that decision with the then Refugee Review Tribunal (Tribunal)[5]. Prior to this, in early 2013, the applicant was charged with offences relating to an attack on a person with four other people. His bridging visa was cancelled and in October 2013 he had been taken back into immigration detention[6]. He was in immigration detention on 31 January 2014.
[5] CB 103-131
[6] CB 82-102
On 13 March 2014, the applicant was given a letter from the Secretary of the Department of Immigration and Border Protection dated 12 March 2014[7]. The applicant was informed in that letter that in February 2014, a report was published on the internet by the Minister’s Department which enabled personal information about the applicant (and other persons held in immigration detention as at 31 January 2014) to be accessible online. The circumstances of that disclosure are summarised by the High Court in SZSSJ at [3]-[7] with a factual clarification explained in SZWAJ v Minister for Immigration[8] (SZWAJ) at [33]. I refer to that disclosure as the “data breach”.
[7] CB 133
[8] [2016] FCA 1173
On 24 March 2014, the applicant’s solicitors made submissions to the Tribunal in support of the applicant’s application for review of the decision to refuse him a protection visa[9]. The applicant attended a hearing of the Tribunal on 4 April 2014[10] and his solicitors provided post hearing submissions to the Tribunal on 10 April 2014[11]. The Tribunal affirmed the decision under review on 6 June 2014[12]. On 11 June 2014, an officer of the Minister’s Department reviewed the applicant’s circumstances by reference to guidelines issued by the Minister in relation to s.417 of the Migration Act and determined that his case did not satisfy the requirements in the guidelines for consideration of the exercise of the Minister’s power under s.417[13].
[9] CB 134ff
[10] CB 186 [32]
[11] CB 171
[12] CB 181-191
[13] CB 192
The applicant sought judicial review of the decision of the Tribunal in the Federal Circuit Court and that application was dismissed on 22 September 2015[14].
[14] CB 193
The applicant was the subject of a criminal justice stay certificate issued on 9 November 2015[15]. That certificate was cancelled on 17 March 2017[16].
[15] CB 201
[16] see Supplementary Court Book 1
I have before me as evidence a book of relevant documents filed on 24 January 2017 and the supplementary book filed on 21 July 2017. I also received an affidavit by the applicant’s former solicitor made on 16 November 2016, which attaches the letter from the secretary of the Minister’s department to the applicant and a large number of other persons affected by the data breach. The letter is also reproduced in the court book at page 133.
Only the Minister prepared written submissions in accordance with procedural orders made by me to prepare the case for hearing today. The applicant’s solicitors withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on 25 July this year. The applicant was obviously in a difficult position in addressing the legal issues arising; nevertheless, I engaged in quite a detailed discussion with him and the Minister’s solicitor about those issues.
The application appears to be based on an assumption that there is or should be an International Treaties Obligation Assessment (ITOA) in process to consider the implications of the data breach for the applicant. The application immediately faces two difficulties. First, there is no evidence nor any concession by the Minister that an ITOA is underway. Secondly, I see no basis upon which the Court could compel the Minister or his Department to commence an ITOA in relation to the data breach. The applicant therefore faces a jurisdictional obstacle.
In that regard, and subject to the additional observations I will make, I agree with and accept the Minister’s submissions.
As noted above at [1], the applicant seeks an injunction preventing the Minister and others from making a future decision “or taking other action the subject of the proceedings” and a declaration in relation to an ITOA not being made in accordance with law. There is no evidence of any ITOA having been undertaken in respect of the applicant similarly to the facts considered SZSSJ. It is also not clear what the future decision is in relation to which the applicant seeks relief. However, it appears from the applicant’s grounds that perhaps the applicant is contending that this case is the same as that considered by the High Court in SZSSJ such that the jurisdiction of this Court is invoked because the Minister has made a personal procedural decision to consider whether to grant a visa to the applicant in the exercise of one or other of the powers conferred by ss.48B, 195A and 417 of the Migration Act and he challenges conduct preparatory to the Minister making a substantive decision under the Migration Act[17]. That contention cannot succeed. In SZSSJ, the Full Court of the Federal Court found (in a finding not challenged in the High Court) that the Minister had in fact personally decided to consider whether to exercise his non-compellable powers under ss.48B, 195A and 417 of the Migration Act. As the High Court confirmed in SZSSJ, the question of whether the Minister has made a “personal procedural decision” to consider the exercise of the dispensing powers in a particular case is a question of fact[18]. There is no evidence of such a decision in this case. Similarly to SZWAJ[19], SZWCH v Minister for Immigration[20] (SZWCH), this Court should not infer that the Minster had made a decision to consider the exercise of his dispending powers in relation to the applicant in the absence of a proper evidentiary foundation for doing so. The applicant bears the onus as regards those matters[21].
[17] see SZSSJ at [66]
[18] SZSSJ at [55]
[19] at [21]-[25]
[20] [2016] FCA 1551 at [18]-[24]; special leave refused on 14 June 2017: [2017] HCASL 130
[21] Plaintiff M64-2015 v Minister for Immigration (2015) 90 ALJR 197 at [24]
In contrast to the facts considered in SZSSJ, the present applicant was at a very different, and earlier, stage in relation to the consideration of his claims to engage Australia’s non-refoulement obligations at the time of the data breach. At the time of the data breach and the 12 March 2014 letter from the Secretary of the Department the applicant was in a process of Tribunal review in relation to his protection visa application. In essence, the applicant is raising a similar argument to that raised (and rejected) in both SZWAJ and SZWCH – that the 12 March 2014 letter from the Secretary of the Department represented that the applicant would be given the process that was the subject of the proceedings in SZSSJ. In the applicant’s case, the “normal processes” are said to have included a review of the refusal of his application for a protection visa by the Tribunal, where he had the opportunity to make submissions and adduce evidence as to the significance of the data breach in his case (though he did not do so)[22]. Further, the file note of 11 June 2014, in relation to the Minister’s guidelines under s.417 of the Migration Act does not support any different conclusion as was also found in SZWAJ[23], citing Plaintiff S10/2011 v Minister for Immigration[24].
[22] and see also DZAEH v Minister for Immigration [2016] FCA 54 at [31]-[33]; ABC15 v Minister for Immigration [2015] FCA 1314 at [29] and SZWAJ v Minister forImmigration & Anor [2016] FCCA 3096
[23] at [11]
[24] (2012) 246 CLR 636; [2012] HCA 31
In the absence of any personal procedural decision having been made by the Minister in respect of the applicant, no duty of procedural fairness arises. Not only is there no issue of a lack of procedural fairness in the present circumstances, there is, in my view, no jurisdiction available to the Court in the absence of a decision-making process to which judicial review could attach. Neither is there any basis for the Court to deal with the allegation of unreasonableness.
In the present case, the facts are somewhat similar to those dealt with by Flick J in SZWCH. The data breach occurred between the decision of the Minister’s delegate on the applicant’s protection claims and the review of that decision by the Tribunal. It was open to the applicant to raise the issue of the data breach before the Tribunal, but he did not do so.
I considered a challenge to the Tribunal’s decision in earlier proceedings[25], but the data breach issue was not raised in that case. It was apparent from submissions made by the Minister’s solicitor that the Minister may consider that his Department is absolved from any further consideration of the data breach issue because of the applicant’s failure to raise that issue before the Tribunal; in my view, that does not necessarily follow.
[25] SZURG v Minister for Immigration& Anor [2015] FCCA 2604
The terms of the Secretary’s letter sent to the applicant state unequivocally that the Department would assess any implications for him personally of the data breach as part of its normal processes. The applicant was informed that he could raise any concerns he had during those processes, but the letter is open to the interpretation that the Department would consider the data breach issue whether or not the applicant raised any concerns.
There was no consideration by the Tribunal because the applicant did not make any claim. Nothing in the Secretary’s letter could compel consideration of the data breach issue by the Tribunal in the absence of a claim. It is unclear whether there has otherwise been any consideration of the data breach issue in relation to the applicant. It appears that following the Tribunal decision, the Minister’s Department, of its own initiative, instigated a review under s.417. It is not known what was included in that review. If the review encompassed the implications of the data breach, that may be the end of the matter. If not, there may be a continuing obligation on the Minister and his Department to consider the implications of the data breach prior to the applicant being removed from Australia.
It remains open to the applicant to seek consideration of the data breach pursuant to either s.48B or s.417 of the Migration Act or in relation to a future ITOA. The applicant is aware of those opportunities. For present purposes, the case can be resolved on the question of jurisdiction in the absence of any procedural decision by the Minister.
I will order that the application filed on 16 November 2016 is dismissed, for lack of jurisdiction.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,200. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of not less than $4,200 have been reasonably and properly incurred on behalf of the Minister when assessed on a party-and-party basis
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 3 August 2017
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