SZWCH v Minister for Immigration & Anor (No 3)
[2015] FCCA 1128
•1 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCH v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2015] FCCA 1128 |
| Catchwords: MIGRATION – Application to restrain the first respondent from removing the applicant from Australia – data breach – application dismissed. |
| Legislation: Migration Act 1958, ss.61, 78B, 198, 476, 477 |
| Cases cited: Attorney General (NSW) v Quin (1990) 170 CLR 1 |
| Applicant: | SZWCH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 342 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 1 May 2015 |
| Date of Last Submission: | 1 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the First Respondent: | Mr Lloyd SC Ms Davidson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT 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
This is an application for alleged Constitutional relief purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958. The application identifies so far as a migration decision is concerned that the application concerns a future decision or other action by the Minister or an office under the Migration Act concerning an offshore entry person.
It is accepted by the first respondent that there is a decision that has been made or is likely to be made to remove the applicant consistent with the notice of intention to remove from Australia that was provided to the applicant in February 2015 foreshadowing his removal on 18 February 2015. That removal would have taken place but for an interlocutory injunction granted by this Court pending final determination of these proceedings. The Court proceeds on the basis that that notice of intention to remove is one but for the injunction will be acted upon by the first respondent and in the absence of argument to the contrary that there is a migration decision within this Court’s jurisdiction under s.476.
It is in those circumstances that the application identifies the following relief :
1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 and s198AD of the Act other than according to law and consistently with the declarations in order 2-4.
2. A declaration that it is not reasonably practicable for the First or Second Respondents, their officers or agents, to remove the applicant from Australia within the meaning of s 198 and s198AD of the Migration Act unless and until consideration has been given by the Minister of Australia's non-refoulment obligations (under the Refugee Convention; the Convention Against Torture; and the International Covenant on Civil and Political Rights) arising from the release of the applicant's personal information in or about February 2014 in respect of the applicant, according to law.
3. Declaration that the representation that an assessment of any implications for the applicant personally by the Second Respondent as part of the Department’s normal processes made on 12 March2014 (“the 12 March 2014 representation”) involves a representation that the power vested in the Second Respondent by s61 of the Constitution will be used in favour of the applicant.
4. Costs.
It is conceded that this Court has no jurisdiction under s.198AD and, to the extent relief was sought in that regard, it is not pressed. The grounds in support of the application are as follows:
1. The applicant is a citizen of China.
2. The applicant claimed that Australia owed protection obligations in respect of him.
3. The process by which the claims of the applicant that Australia owed protection obligations in respect of him was completed.
4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
6. In 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.
7. The applicant's personal information so released included his name, date of birth, nationality, gender, details about the applicant's detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
8. The release of the applicant’s personal information by the First or Second Respondents their 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;
b. Further and 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 or reckless and the disclosure was not a permitted disclosure.
9. The release of the applicant's personal info1mation 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-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
10. The applicant's well founded fear that his removal from Australia to China will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights by reason of the release of his personal information in or about February 2014 has not been the subject of any consideration or assessment by the First or Second Respondent so far as the applicant is aware.
11. On 12 March 2014, the applicant received a letter from the Second Respondent ("the 12 March 2014 letter").
Particulars
a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
12. The 12 March 2014 letter contained a representation as follows ("the 12 March 2014 Representation"):
"The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes."
13. The department, to which reference is made in the 12 March 2014 Representation, and the Second Respondent, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
14. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person.
15. At no stage has the applicant been advised of the scope, purpose or nature of the assessment process identified in the 12 March 2014 Representation and the applicant is not able to make any representations addressing any criteria or circumstances to be considered in the proposed assessment.
16. At no time has the applicant been invited to make submissions or representations by reference to any particular fact matter or circumstances that may be used adversely to his interests in the assessment processes identified in the 12 March 2014 Representation.
17. At no time has the First or Second Respondent indicated to the applicant that the assessment process identified in the 12 March 2014 representation will be considered according to the requirements to accord procedural fairness to the applicant.
18. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s48B or s417 arising from the disclosure of the applicant's personal information.
19. There is a likelihood that the Respondents will purp01t that it is reasonably practicable to remove the applicant pursuant to s198 and s198AD of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.
20. The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 march 2014 and stated as follows:
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 whether 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 that would normally be a protection visa application.”
There is no substance in relation to the issue raised under s.61 of the Constitution. It is not a real issue and has no substance.
It is in those circumstances that a s.78B notice was not necessary. In this case, it is clear that the applicant received the letter dated 12 March 2014 relating to an unintended data-breach disclosure of limited information, which occurred prior to the hearing of the applicant’s claims before the Tribunal. There was no response by the applicant to the invitation in the letter, which relevantly provided:
You may also raise any concerns you have.
It is clear that the applicant had the benefit of the letter at the time of the hearing and was in a position where any concern in respect of the limited disclosure that occurred could have been raised by the applicant. The applicant did not do so. It is also clear that the limited nature of the disclosure was not one that identified grounds or fears of persecution but, rather, was limited to information as to the name, date of birth, nationality, gender, when, why and where detained, and whether there were other family members in detention.
That limited information is one which, if the applicant had had any genuine fear or concern, there was ample opportunity for the applicant to raise it before the Tribunal and the applicant failed to do so. The Tribunal’s decision was delivered on 27 May 2014, and this is not an application which seeks any extension of time under s.477 in respect of that decision and, accordingly, it is not necessary to summarise the applicant’s clams and evidence or the adverse findings decided in that review by the Tribunal.
It is, however, relevant to record in this case that the applicant arrived in Australia under a tourist visa, which was valid for three months, in 2002 and that he thereafter remained unlawfully in Australia until the time that he was detained, which was a period of almost 12 years. It is also apparent from the evidence before the Court that the applicant provided to the first respondent in respect of his protection visa application that he made in the beginning of 2014 a deliberately false identity.
A submission was lodged before the Tribunal on behalf of the applicant through the applicant’s legal representative in which he identified that he provided a false name and asserted what his real name was. The applicant’s bad-faith conduct in lying to the first respondent and to the Tribunal in relation to his true identity and his unlawful conduct in evading authorities for almost 12 years after arriving on a lawful visa is bad-faith conduct of a kind that would be relevant to any discretionary relief if there was any substance in the alleged excess of jurisdiction by the first respondent. There is no substance in that allegation.
The data-breach letter dated 12 March 2014 does not give rise to any estoppel, right or obligation in respect of the applicant. In this case, where the applicant has had the opportunity to raise any alleged fears before the Tribunal, the letter does not give rise to any basis upon which it can be alleged that the a decision to remove or the removal of the applicant in some way exceeds the first respondent’s jurisdiction under s.198.
Moreover, this is a case in which, because the applicant concealed whatever his true name might be, there can be no substance in the assertion that the letter dated 12 March 2014 gave rise to any entitlement, right or obligation relating to any alleged fear by the applicant. The disclosure of a false name could not found any such claim.
Accordingly, the facts in this case are very different from that considered by the Full Court in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143, as it is clear the applicant has both had an opportunity to raise any concern in respect of the data breach before the Tribunal and accordingly any significance of the letter dated 12 March 2014 is clearly one which has been exhausted in respect of this applicant. Further, given the use of the false identity, this is not a case of a kind that could fall within the potential concerns that were expressed by the Full Court in SZSSJ.
Further, I accept the submission of the first respondent that the letter of 12 March 2014 is in no way relevant to the migration decision to remove the applicant. I am satisfied that the letter dated 12 March 2014 does not give rise in this case to any excess of jurisdiction by the first respondent in proceeding with the removal of the applicant under s.198. There is no principle identified in SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 that binds this Court in respect of the removal of the applicant in this case. I am satisfied that the removal of the applicant is valid and lawful.
I am satisfied that it is not a jurisdictional requirement in this case for the first respondent to undertake any further process in respect of the valid and lawful removal of the applicant under s.198 in light of the decision of the Tribunal. To the extent relevant, the notice of intention to remove was a valid and lawful document, and there is no substance in the applicant’s application. The applicant has failed to identify any excess of jurisdiction. Further, to the extent relevant, I find that the letter dated 12 March 2014 does not convey any representation.
Moreover, on the evidence before this Court, it is clear that there is no proper basis upon which there could be any finding that the applicant in any way relied upon the letter dated 12 March 2014. I agree with the first respondent’s submissions that grounds 1 to 8 fail to identify any matter that enlivens this Court’s jurisdiction, and, relevantly, I refer to SZWCP v Minister for Immigration & Anor [2015] FCCA 802 at [13]. To be clear, the Privacy Act allegations do not give rise to any right or obligation under the Migration Act and are, in my opinion, without substance.
Further, for the reasons given in this case, the alleged release of information is not information which could have caused this applicant to have any fear whatsoever within the Convention, and there is no basis upon which that release could enliven any obligation in respect of non-refoulment under the Refugee Convention. I accept the respondent’s submission that the applicant did not raise the 12 March 2014 letter before the Tribunal. It is clear that the applicant did assert issues concerning his personal identity at 42, 43, 81 to 83, 85 and 87, and relevantly, in that regard, that the applicant’s credit was not accepted.
There is, accordingly, no substance in grounds 9 to 20. Accordingly, there is no basis for any of the relief claimed. Further, I note that the letter was not capable of creating any estoppel, Attorney General (NSW) v Quin (1990) 170 CLR 1 at [17]- [18]. There is no basis for any injunctive relief, and there is no basis for any declaratory relief. Further, I should add that even if I was satisfied that there was substance in the alleged excess of jurisdiction in the removal of the applicant, this is a case in which the bad faith conduct of the applicant would, in my opinion, disentitle the applicant to any relief from this Court. The 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: 5 May 2015
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