SZWAJ v Minister for Immigration
[2016] FCCA 3096
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAJ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3096 |
| Catchwords: MIGRATION – Whether there was a decision made by the Minister in relation to his dispensing powers under ss.48B, 195A and 417 of the Migration Act 1958 (Cth) – whether there was an International Treaties Obligation Assessment (“ITOA”) process initiated by the Department of Immigration – no decision made by the Minister – Court has no jurisdiction to make orders sought by the applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 195A, 417 |
| Cases cited: Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 SZWAJ v Minister for Immigration & Border Protection [2015] FCCA 164 SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 |
| Applicant: | SZWAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2662 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 November 2016 |
| Date of Last Submission: | 28 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the First Respondent: | Mr C Lenehan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2662 of 2016
| SZWAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings seeks constitutional relief in respect of what she describes as a future decision to be made under the Migration Act 1958 (Cth). At the centre of her claims is the fact that, while she was in immigration detention in early 2014, some of her personal details were made available for a brief period on the website maintained by the Department of Immigration. That has come to be known as the “data breach”.
The applicant has already applied unsuccessfully for interlocutory injunctive relief in respect of the circumstances she relies on in these proceedings: SZWAJ v Minister for Immigration & Border Protection [2015] FCCA 164 (Judge Manousaridis) and on appeal SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 (Griffiths J) (“SZWAJ”). I gratefully adopt Griffith J’s summary of the relevant facts.
…
[5]The [applicant] is an Indian national, who arrived in Australia in December 2007 on a student dependent visa. After her bridging visa expired on 30 August 2013, she was detained on 18 January 2014 under s 189 of the Migration Act. Significantly, as at the date of the Data Breach, the [applicant] had not lodged an application for a protection visa (or, indeed, for any other visa).
[6]On 12 March 2014, the Secretary of the Department wrote a pro forma letter to the [applicant] and to other detainees who were affected by the Data Breach. After expressing deep regret for the incident and outlining the broad nature of the breach, the recipients of the pro forma letter, including the [applicant], were informed that the Department would assess any implications for the individual recipient personally as part of “the Department’s normal processes” and that the recipient could “raise any concerns you have during those processes”.
[7]On 19 June 2014, the [applicant] received another letter from the Department. She was invited to put in writing any concerns she had about the effect of the Data Breach on her personally, including any specific concerns about the effect of the incident on her safe return to India.
[8]By an email dated 27 June 2014, the [applicant’s] migration agent responded to the 19 June 2014 letter and set out the [applicant’s] concerns about the Data Breach and her ability to return to India. The email advised the Department that the migration agent had submitted a protection visa application for the [applicant]. That was incorrect. Such an application was not made until 1 July 2014.
[9]The protection visa application was refused by the Minister’s delegate on 11 August 2014. The delegate did not accept the claim that the [applicant] would be of interest to Indian authorities as a result of the Data Breach, nor that members of her husband’s family or the community in her home district would be aware of the Data Breach and harm her because of it.
[10]The delegate’s decision was affirmed by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal) on 17 October 2014. The Tribunal made reference to the migration agent’s email dated 27 June 2014 but it did not accept that the [applicant] faced any real chance of serious harm or a real risk of significant harm resulting from the Data Breach. The Tribunal made reference to the [applicant’s] claim made at the Tribunal hearing that, because of the Data Breach, she could not apply to go to 25 countries and that people in India might treat her differently as a result of having been in detention. The Tribunal noted that it put to the [applicant] that her evidence did not indicate that she would suffer serious or significant harm as a result of the Data Breach and that she responded by saying that she understood and did not wish to say anything further.
[11]The [applicant] did not seek judicial review of the Tribunal’s decision.
[12]On 20 January 2015, the [applicant] was notified by the Department that she was liable for removal from Australia under s 198(5) of the Migration Act and that this could occur on 27 January 2015. The [applicant] promptly commenced proceedings in the FCCA. Her application for interlocutory relief was heard and determined by the primary judge on 23 January 2015. His Honour concluded that there was no reasonably arguable case for relief and the interlocutory application was dismissed. In particular, although the primary judge accepted that there was a reasonably arguable case that the Department had made a representation to the [applicant], his Honour concluded that there was no arguable case that the Department undertook to do anything more than give the appellant an opportunity to make submissions about the consequences to her of the Data Breach. His Honour found that there was no reasonably arguable case that the Department did not provide the [applicant] with that opportunity. Indeed, he found that the [applicant] had taken advantage of the opportunity by raising the matters that were of concern to her through her migration agent in the email dated 27 June 2014 and by the evidence she gave at the Tribunal hearing.
…
(Emphasis in original)
In addition to those matters, there was a file note in evidence in these proceedings that was not before either Judge Manousaridis or Griffiths J. It was dated 29 October 2014 and apparently came from the Department’s file. It relevantly stated:
On the 17 th October 2014, the Refugee Review Tribunal affirmed a decision of the Minister’s delegate refusing refugee status to the above applicant.
The applicant’s case has been considered under the Ministerial guidelines for stay in Australia under Public Interest Guidelines assessment.
The case does not satisfy the requirements for consideration of the exercise of the Minister’s discretion under Section 417(1) of the Act.
The applicant raises the following ground:
1.The applicant has been denied procedural fairness in that the consideration of the Minister's exercise of his personal power under s458B (sic), 195A or 417 has not proceeded notwithstanding the commencement of consideration of that process by the Secretary's letter dated 12 March 2014 and as detailed in the High Court of Australia's judgment in the matters of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [52] to [55].
The applicant relies on the following passage in the judgment of the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 (“SZSSJ”):
…
[52]Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.
[53]First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[54]Second, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
[55]Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.
…
The insuperable difficulty for the applicant is that her case relies on the application of facts in SZSSJ that do not arise in this case. In SZWAJ Griffiths J explained the differences between this case and SZSSJ at [22] – [26]:
[22]In SZSSJ Full Court, when the pro forma 12 March 2014 letter was received, SZSSJ had had his protection visa application refused and he had exhausted all possibilities of merits and judicial review in respect of that decision. The only prospect he had of remaining lawfully in Australia was if the Minister exercised one of his non-compellable powers under ss 48B, 195A or 417 of the Migration Act.
[23]In the case of SZTZI, her visitor’s visa had expired and she was taken into immigration detention in September 2013. In October 2013 she applied for a protection visa. That application was refused in November 2013 by the Minister’s delegate, which decision was then affirmed by the Tribunal in January 2014. Like SZSSJ, SZTZI was in immigration detention at the time of the Data Breach and was subsequently told that an ITOA was being conducted in relation to her case. She was invited to make submissions in that process.
[24]I accept the Minister’s central submission that, at the time of the Data Breach, the appellant was in a very different and earlier stage in the consideration of any non-refoulement obligation Australia owed to her. In contrast with the position in the other proceedings, there was no evidence that the Minister had commenced considering the exercise of his dispensing powers under any of the non-compellable powers identified above. Significantly, apart from the two letters dated 12 March 2014 and 19 June 2014 which did not in terms refer to those powers, there was no evidence before the primary judge which indicated that the Minister had made “a personal procedural decision” to consider whether or not to exercise any of those dispensing powers (see SZSSJ High Court at [83]). That is to be contrasted with the evidence which supported the finding in SZSSJ Full Court at [75] relating to the commencement of the ITOA process.
[25]I accept the Minister’s submission that the findings as to the lack of procedural unfairness in SZSSJ High Court were all directed to the ITOA process in circumstances where a factual finding had been made by the Full Court, which was not challenged on appeal, to the effect that consideration of the exercise of those dispensing powers had commenced.
[26]It is critical to note that, in the proceeding here, the Data Breach occurred prior to the [applicant] applying for a protection visa. The processes which then ensued before both the Minister’s delegate and the Tribunal provided the [applicant] with an opportunity to say whatever she wished to say concerning the implications of the Data Breach for her entitlement to protection. Subject to relevant provisions in the Migration Act the statutory processes of considering and determining her application for a protection visa, both by the delegate and on review by the Tribunal, attracted procedural fairness obligations. The [applicant] did not point to any aspect of those processes which involved procedural unfairness to her. Nor is her case strengthened by her reliance on SZSSJ High Court because of the findings made there concerning the different process which had commenced in respect of the aggrieved persons in those proceedings.
(Emphasis in original)
The applicant relied on three matters as the factual foundation for her argument: first, the two letters from the Department which referred to “normal processes”; secondly, the fact that the findings of the Full Court in SZSSJ were not challenged in the High Court; and thirdly, the Department file note dated 29 October 2014.
The relevant fact asserted by the applicant is that there had been a personal decision made by the Minister to consider whether to exercise one of his dispensing powers (see SZSSJ at [53]).
None of the matters relied on by the applicant support the existence of that fact. First, the two letters do not mention any dispensing powers and must be understood in the context of the applicant’s own personal circumstances. Those circumstances were, importantly, that the applicant had, at the time of the letters, made no application for a visa and there had been no consideration or determination of any such application. It is for that reason that the “normal processes” referred to in the letters, concerned the determination of the applicant’s application for a protection visa made on 1 July 2014. Unlike in SZSSJ, there was no later letter from the Department indicating that an ITOA process had commenced and that the purpose of it was to “to assess whether the circumstances of your case engage Australia’s non-refoulement obligations” (cf. SZSSJ at [75]).
The factual findings made by the Full Court in SZSSJ were not, as the applicant submitted, challenged on appeal to the High Court. The applicant asserted that this meant that this Court had to adopt those findings. Counsel for the applicant could not cite any authority for that proposition. The argument seeks to elevate findings of fact to propositions of law (cf. Teubner v Humble (1963) 108 CLR 491 at 503-504; [1963] HCA 11 per Windeyer J) and is rejected. Subject to a number of exceptions (such as formal admissions, estoppel and matters of which judicial notice may be taken), the general rule is that a court must make findings of fact based only on the evidence before it. The findings of fact made in SZSSJ do not fall within any of the exceptions to that rule.
The third matter relied on was the file note of 29 October 2014. However, that file note does not support the conclusion that the Minister had made any decision at all. Rather, it suggests only that an officer of the Department had undertaken some analysis of the applicant’s circumstances by references to guidelines intended to assist in determining whether a matter might be referred to the Minister for consideration. A similar issue was considered by the High Court in Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 246 CLR 636; [2012] HCA 31. The reasoning in respect of it was summarised by the Court in SZSSJ:
[46]Plaintiff S10/2011 raised questions as to the characterisation of processes undertaken by the Department by reference to guidelines issued by the Minister setting out circumstances in which cases were in the ordinary course to be referred to the Minister for consideration of the possible exercise of one or more of the non-compellable powers conferred by ss 48B, 195A, 351 and 417. Two of the four plaintiffs were in immigration detention. The Department had not referred the cases of some plaintiffs to the Minister. The Department had referred the cases of other plaintiffs to the Minister following which the Minister had indicated that he would “not intervene.”
[47]Members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would “not intervene”, the Minister had made a personal decision that he would not consider exercising any of the non-compellable powers.
(Citation omitted)
Applying that reasoning, I conclude that the file note does not suggest that any personal decision had been made by the Minister but, to the contrary, that none had been made.
I find that there was no decision made by the Minister in connection with any of his dispensing powers and, in particular, that there was no ITOA process initiated by the Department in respect of the applicant preparatory to the consideration of those powers. Rather, in this case, as Griffiths J found at [32], the “normal processes” involved consideration of the applicant’s visa application. The applicant had the opportunity in the course of that process (and the subsequent review by the Tribunal) of making submissions about the possible consequence of the data breach and so was not denied procedural fairness in that respect.
Given that no decision had been made by the Minister, there was no “decision” (including conduct preparatory to a decision) that was proposed to be made under the Act. This has two consequences: first, this Court has no jurisdiction to make the orders sought by the applicant; and secondly, even if it did have jurisdiction, the application would fail because there was no obligation to afford procedural fairness outside the scope of consideration of the applicant’s protection visa application.
Those conclusions make it unnecessary to consider the further argument developed orally at the hearing, namely, that the process of considering the visa application and the review by the Tribunal was different to the process envisaged by an ITOA and so did not make up for the failure to conduct an ITOA.
The application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 9 December 2016
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