SZWCH v Minister for Immigration
[2015] FCCA 325
•17 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 325 |
| Catchwords: MIGRATION – Interlocutory application seeking injunction to restrain against removal of applicant from Australia under s.198 of the Migration Act 1958 (Cth) – whether letter from the Department of Immigration and Border Protection dated 12 March 2014 gives rise to the invocation of a departmental process in respect of which the applicant is entitled to the application of the rules of procedural fairness – where applicant has used a number of names/pseudonyms since his arrival in Australia – whether use of different names obviates any procedural fairness obligations in respect of the alleged release of the applicant’s personal details – injunction granted. |
| Legislation: Migration Act 1958 (Cth), s.198 Privacy Act 1988 (Cth), s.336E |
| SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 |
| Applicant: | SZWCH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 342 of 2015 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 16 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Blount |
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to “Secretary of the Department of Immigration and Border Protection”.
The respondents be restrained from removing the applicant from Australia pending the determination of final relief in these proceedings or by further order of this Court.
The substantive application be listed for directions before a Judge of this Court at a date and time to be administratively advised by the Registry.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 342 of 2015
| SZWCH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed by the application seeking an interlocutory injunction to restrain the first and second respondents, by the first respondent himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s.198 of the Migration Act 1958 (Cth) (the “Migration Act”), other than according to law. The application also seeks final orders, however, it is not necessary for the purposes of these reasons to address those final orders at this time.
It is not controversial that in an application of this type, the onus is on the applicant to establish that he or she has a reasonably arguable case or a prima facie case. If the applicant is successful in persuading the Court that he has a reasonably arguable case, then the Court considers whether on the balance of convenience the circumstances favour the granting of or not granting of an injunction.
Background
The applicant arrived in Australia on a fake Korean passport on 10 January 2002 holding a Tourist visa valid for three months. He said he was Korean by ethnicity and a Chinese citizen. He entered Australia using a name which he later admitted was false, but for the purposes of this decision I have identified as “Name 1”. He was located by Departmental Compliance Officers on 14 January 2014 and detained in Villawood Immigration Detention Centre under s.189 of the Migration Act. He has remained in detention from that date. He was interviewed by a Departmental Officer and indicated that his name was different to that identified on his Tourist visa. I will identify this name as “Name 2”. He further indicated his date of birth was 23 August 1958. He lodged a Protection visa application using the identity of Name 2 on 22 January 2014.
Current Proceedings
The claim before the Court is that the applicant is a person in respect of whom the first respondent, the Minister for Immigration and Border Protection (the “Minister”), his servants or agents held personal information within the meaning of the Privacy Act 1988 (Cth) (the “Privacy Act”). The first respondent is an APP Entity and the Minister was at all material times responsible for direction and control of the Department of Immigration and Border Protection which is also an APP Entity for the purposes of the Privacy Act. On or about 11 February 2014, the first and/or second respondent, by their servants or agents, released the applicant’s personal information by publishing it on the World Wide Web. The applicant’s personal information which was released included his name, date of birth, nationality, gender, details about his detention (where detained, the reason for the detention and where) and also details of the identity of any family members in detention.
In the application before the Court it is claimed that the release of the applicant’s personal information by the first and second respondents, their servants or agents, was contrary to law and that:
a)The release of personal information was an interference with the privacy of an individual for the purposes of the Privacy Act; and
b)Further, and in the alternative, the release of the personal identifying information or information derived from the personal identifier is contrary to s.336E of the Privacy Act in that the conduct (namely, the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
It is claimed that the release of the applicant’s personal information has caused the applicant to have a well-founded fear that his removal from Australia and return to China will involve a breach of Australia’s non-refoulement obligations under the Refugees Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
On 12 March 2014 a letter was sent to the applicant by the second respondent addressed to him under Name 2. The letter contained the following representation:
The Department will assess any implications for you personally as part of its normal process. You may raise any concerns you have during those processes.
The Affidavit of Dale Jennifer Watson (which was read into evidence without objection) affirmed 16 February 2015 and filed on the same day, states the following:
7. I am instructed and variably believe that on or about 20 March 2014, the Department attempted to hand the applicant a letter signed by the second respondent but the applicant refused to take the letter. Annexed hereto and marked “C” is a copy of the letter from the Secretary of the Department to the applicant, dated 12 March 2014.
The Departmental letter dated 12 March 2014 headed “Unauthorised Access to Personal Information” is addressed to the applicant using Name 2.
In the context of the issue as the name used by the applicant, it is important to note that after he had been placed in detention the applicant was interviewed by a departmental officer. He indicated his name was Name 2 and his date of birth was 23 August 1958. He lodged the Protection visa using that identity on 22 January 2014. On 6 February 2014 his Protection visa application was refused. The applicant lodged an application to review the Protection visa refusal decision with the Refugee Review Tribunal (the “Tribunal”) on 13 February 2014. The applicant appeared before the Tribunal via video-link at a hearing on 10 April 2014 and 19 May 2014. The applicant, through a migration agent, provided pre and post hearing submissions. The applicant, in the two sets of submissions to the Tribunal and in the hearing before the Tribunal, claimed that the name and birth details that he had been using and had provided to the Department were false. He claimed that his true identity was Name 3 and his birth date was 28 August 1956. On 27 May 2014 the Tribunal handed down its decision in relation to the applicant affirming the decision under review.
In the application before the Court it is claimed that at no stage has the applicant been advised of the scope, purpose or nature of the assessment process identified in the 12 March 2014 Letter and the applicant is not able to make any representations addressing any criteria or circumstances to be considered in the proposed assessment. At no time has the applicant been invited to make submissions or representations by reference to any particular fact, matter or circumstance that may have been used adversely to his interests in the assessment process identified in the 12 March 2014 Letter. At no time has the first or second respondent identified to the applicant that the assessment process identified in the 12 March 2014 Letter will be considered having regard to the requirements to accord procedural fairness to the applicant.
The Court was referred to the decision of Greenwood J in SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 which is an appeal from an order of this Court refusing an interlocutory injunction in a matter somewhat similar in nature to that currently before this Court. The Court’s attention was directed to the consideration of the Secretary’s letter, dated 12 March 2014 where his Honour Greenwood J stated:
9. It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second last paragraph of the Department’s letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
10. It is not clear to me where the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.
Consideration
The evidence before the Court is that the applicant has used three different identities since entering Australia in 2002. Significantly, the name that appears in the Department’s records is that referred to as Name 2. This was the name that was released by the first and/or second respondent by their servants or agents on or about 31 January 2014 on the World Wide Web, giving his “name”, date of birth, nationality, gender, details of his detention in respect of where he was detained and the reason for his detention. That name was again used in the Department’s letter headed “Notice of Intention to Remove from Australia” which forms Annexure “A” to the Affidavit of John Phillip Sweeney sworn 12 February 2015. The same name appears on the attachment to the Departmental letter which headed “Notice in Respect of Removal Costs”.
At the time of the hearing, there was no evidence before the Court detailing the proposed flight details to be used in relation to the planned removal of the applicant identifying his name. However, that was addressed by submissions from the bar table stating it was Name 2 that was to be used in respect of his removal. Consequently, the name used by the applicant on his arrival in Australia (Name 1) and his subsequent statement as to his real identity before the Tribunal on 10 April 2014 and in the pre and post hearing submissions which is referred to as Name 3 can both be ignored.
I am guided by his Honour Greenwood J in the decision of SZWAJ (supra) at [8]-[12], where he stated:
8. 1n the context of the present applicant’s circumstances, the proposition is that the ITOA process has no proper application because the very question about the consequences or implication of the data disclosures is a matter which would have been dealt with in the normal processes applicable to that person when that person made a protection visa application and sought to demonstrate a well-founded fear of persecution or the holding of a well-founded fear of persecution, in part informed by the risk to the individual by reason of the data disclosures. In the course of the protection visa application, that question was addressed.
9. It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second last paragraph of the Department’s letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
10. It is not clear to me where the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application.
11. It seems to me that there may be merit in deciding that question and, in any event, it seems to me to be so properly identified as a triable question of construction. The principles to be applied in determining this matter for the purposes of considering the application for an injunction pending the appeal are not entirely dissimilar from those considerations which would apply in considering interlocutory relief generally. And, so, for that purpose, I apply the principles identified by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57.
12. Although those matters are not considered in the context of an application for leave for an injunction pending an appeal, nevertheless, it seems to me that very similar principles apply, and I also have had regard to the Full Court’s consideration of those principles in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238. So it follows from what I have said that I am satisfied that there is at least an arguable question and the balance of convenience is such that the consequences for the individual who seeks to ventilate these questions on appeal are highly prejudicial and irreparable if the individual is removed from Australia in the next few days with the result that the balance of convenience favours the applicant for the relief pending appeal.
In the circumstances of the matter before this Court, there is at least an arguable question that the release of the applicant’s personal information has caused the applicant to have a well-founded fear that his removal from Australia and return to China has not been subject to any consideration or assessment by the first or second respondent. The applicant may seek to ventilate these issues and it may be highly prejudicial and irreparable if the applicant is removed from Australia on 18 February 2015 with the result that the balance of convenience favours the applicant being granted an injunction pending the formal notification of the scope, purpose or the nature of the assessment process identified in the 12 March 2014 Letter and the applicant being able to make representations addressing any criteria or circumstances to be considered in that proposed assessment.
An injunction in the nature sought should be granted. Further, the second respondent’s name should be updated to reflect the correct title. I will reserve costs and order the matter go before a judge of this Court for case management.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 17 February 2015
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