SZWCP v Minister for Immigration & Anor
[2015] FCCA 802
•1 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCP v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 802 |
| Catchwords: MIGRATION – Protection (class XA) visa – injunctive relief – publication of personal information – refusal to exercise power – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958, ss.46A(2), 198AD, 424A, 424AA, .425(1), 476 |
| Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292. |
| Applicant: | SZWCP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 356 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Mr G. Kennett SC Mr D. Hughes |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant to pay First Respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 356 of 2015
| SZWCP |
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 a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 allegedly in respect of a future decision or other action by the Minister or officer under the Migration Act concerning offshore entry person in respect of which it is alleged no extension of time is necessary under s.477.
The grounds of the application are as follows:
1. The applicant is a citizen of Iran.
2. The applicant is an Unauthorised Maritime Arrival and currently held at immigration detention.
3. 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;
4. 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.
5. In or about February 2014, the First and or Second Respondent by their servants or agents released the applicant's personal info1mation by publishing it on the world wide web.
6. 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.
7. The release of the applicant's personal information by the First and 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 info1mation, 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.
8. 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 Iran 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.
9. The applicant's well-founded fear that his removal from Australia to Iran 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.
10. 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.
11. 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."
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 unde1taken by the First Respondent pursuant to s46A or s 19 5 A arising from the disclosure of the applicant's personal information.
18. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s 198 and s 198AD 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.
The grounds refer to s.61 of the Constitution of the Commonwealth of Australia, however I am satisfied that the application does not give rise to any live Constitutional question and the application is, in fact, doomed to failure.
There is no requirement in those circumstances for the giving of any s.78B notice, see French J (as he then was) in Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at [14], [20] and [22].
The only evidence before the Court on behalf of the applicant is an affidavit of Mr Nikjoo which annexes a letter dated 14 March 2014 relating to a limited release of information that occurred in respect of persons in detention. That limited release of information, relevantly, did not identify any grounds or fears of persecution and it identified that the recipients may raise any concerns they have in relation to the events that occurred.
This is not a case where there is any evidence put before this Court that the applicant raised some concern in response to the letter dated 12 March 2014, nor in light of the form of the application, is this a case where the Court’s jurisdiction can be said to be enlivened, subject to the grant of an extension of time under s.477, relating to an alleged decision concerning the letter 12 March 2014.
The applicant, being an unauthorised maritime arrival, has not at this stage been entitled to lodge any protection visa application and has not had an assessment of whether or not he is a person to whom Australia owes any obligation under the Refugee Convention.
The applicant has been in detention since 10 September 2012. I am informed by counsel for the applicant that no application has been made or invitation to the Minister to exercise his power under s.46A(2) and in those circumstances looking at the issues of the kind sought to be raised by Mr Bodisco of counsel on behalf of the applicant are at best premature.
There is no migration decision which appears to fall within s.476 on the face of the current application that would enliven this Court’s jurisdiction. Mr Bodisco sought an adjournment of the proceedings initially on the grounds of the alleged Constitutional issue which I rejected on the basis that it was not a live issue and that there was no real and sufficient constitutional issue before the Court. Mr Bodisco sought an adjournment on the basis of a desire to issue a subpoena or notice to produce to obtain information that Mr Bodisco conceded was not relevant to any of the grounds in the current application.
Application was made to amend the application before the Court and the matter has been fixed for hearing as a result of directions made on 5 March which, relevantly, provided:
1. The matter be fixed for hearing on 1 April 2015 at 2:15pm.
2. The Applicant file and serve any affidavit material he seeks to rely upon by 19 March 2015.
3. The Applicant file and serve any amended application by 19 March 2015.
4. The Applicant file and serve any written submissions by 19 March 2015.
5. The First Respondent file any affidavit material upon which is seeks to rely by 26 March 2015.
6. The First Respondent file any submissions in reply by 26 March 2015.
7. There be liberty to apply on 3 days’ notice
In circumstances where the application is doomed to failure, a Court would not ordinarily grant an adjournment as to do so will only add to the costs of the parties and utilise limited Court time. I am clearly satisfied that the proceedings as currently framed are doomed to failure.
I accept the submission advanced by Mr Kennett SC that the bare claim for injunctive relief in the present case is not attached to a matter arising under s.75(v) within this Court’s jurisdiction. This Court can grant injunctive relief in aid of its s.75(v) jurisdiction, but it does not have an independent jurisdiction to simply grant injunctions where there is no matter arising under s.75(v).
The issues concerning the release of information do not of themselves enliven any jurisdiction referable to a decision under the Migration Act within s.476. Whether the limited information that was the subject of release has an impact on a particular applicant in respect of an alleged fear under the provisions that apply to the grant of a protection visa is not a matter with which this Court is currently seized.
Ordinarily, that is a matter upon which the department or the Tribunal would make findings referable to the impact on whether there is a genuine fear or whether the relevant person is the subject of a real risk that they will suffer significant harm.
As I indicated earlier the limited nature of that information would obviously then be the matter for evaluation by the delegate or Tribunal engaged on an assessment of any claim advanced. Accordingly, there is no substance in the existing application. I note so far as there is a reference to powers under s.198AD, this Court has no jurisdiction to entertain that part of the subject matter if the matter was otherwise arguable. I do not accept at this stage that there is any arguable issue arising under the provisions which are referred to in the application and for the reasons I have identified I can see no utility in granting any adjournment.
I would, however, note that in this matter senior counsel for the first respondent has identified that there will be implemented by mid-June at the latest a process that permits a recommendation by the department to the Minister for an assessment of whether the applicant is a person in respect of whom Australia owes an obligation under the Refugee Convention. I am informed that a positive recommendation will be made to the Minister to exercise that power to permit that assessment and this may enliven the breadth of this court’s jurisdiction in respect of a decision.
The scope of the power of executive detention is limited to the return of a person who is an unlawful arrival or for the purpose of assessing that person’s entitlements under the Refugee Convention and dealing with the person in accordance with the provisions of the Migration Act. It is not appropriate in circumstances where the applicant has not sought to ask for an exercise of a power under s.46A(2) to adjourn these proceedings.
It will, of course, be open to the applicant if by the end of June no process has commenced to seek to further explore his rights under the Migration Act. It is not, however, appropriate to stand proceedings over for the purpose of creating a wholly new potential claim that does not arise on the material currently before the Court and which in the application before the Court for the reasons I have identified is premature. In these circumstances 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: 9 April 2015
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