AFH15 v Minister for Immigration and Border Protection

THE TRIBUNAL 13 On 27 November 2014, consequent upon the remittal by the Federal Circuit Court of his review application to the Tribunal, the applicant attended a hearing of his review application before that differently constituted Tribunal. 14 At the Tribunal hearing, the applicant claimed to fear harm on the basis that he was a Falun Gong practitioner. The applicant also claimed that he feared harm on the basis that the data breach would have resulted in his personal information being made available to the Chinese authorities. The applicant provided to the Tribunal the March letter from the department referring to the data breach. 15 On 4 December 2014, the Tribunal again affirmed the delegate's decision not to grant the applicant a protection visa. 16 In its reasons for decision, the Tribunal considered the applicant's claims in relation to the impact of the data breach on the applicant. 17 The Tribunal observed that in the event of Chinese authorities viewing the personal information published because of the data breach, those authorities would learn no more than the fact that the applicant had been detained as a person unlawfully residing in Australia; no details of the applicant's protection visa claim were published by the data breach. The Tribunal held that the chance of any harm occurring to the applicant by reason of the data breach was "both remote and insubstantial".

THE DEPARTMENT'S LETTER of 22 january 2015 18 On 22 January 2015, the department wrote to the applicant stating that as his claims about the harm feared arising from the data breach had now been assessed by the Tribunal, the department would not be giving further consideration against Australia's protection obligations to the applicant's concerns raised in his letter of 17 July 2014.

THE FEDERAL CIRCUIT COURT 19 On 16 March 2015, the applicant commenced an application under s 476 of the Migration Act 1958 (Cth) for review of the Tribunal's decision. However, the application also referred to setting aside the decision of the Minister. Before the Federal Circuit Court, the applicant argued that he had been denied procedural fairness in respect of the assessment of the impact of the data breach. 20 The primary judge observed that the content of the applicant's application was confusing. This was because the applicant's claim that there had been a denial of procedural fairness could possibly apply to three different decisions. Thus, said the primary judge, the applicant's claim could be a complaint: (a) of a denial of procedural fairness in relation to the Tribunal decision; or (b) arising from the department's letters of 12 March 2014 and 14 July 2014, a denial of procedural fairness in respect of conduct preparatory to a decision by the Minister in relation to the exercise of his personal dispensing powers in ss 48B, 195A and 417 of the Migration Act; or (c) of a denial of procedural fairness in the course of the conduct preparatory to the removal of the applicant from Australia pursuant to s 198(6) of the Migration Act. 21 First, the primary judge considered whether the Tribunal had denied the applicant procedural fairness in his application for review of the delegate's decision not to grant him a protection visa. 22 The primary judge found that the obligations in relation to natural justice were set out in s 424A of the Migration Act and that the applicant had not produced any evidence to suggest that the Tribunal had any more information as to the data breach than had been provided by the applicant's adviser to the Tribunal. 23 The primary judge said that the Tribunal was not obliged to provide the applicant under the process in s 424A with information it did not have. Accordingly, the primary judge dismissed the applicant's application, so far as it comprised a complaint that the Tribunal had failed to accord the applicant procedural fairness. 24 Secondly, the primary judge considered whether the applicant was denied procedural fairness in respect of conduct preparatory to a decision by the Minister whether or not to exercise one of his personal dispensing powers under the Migration Act such as those under ss 48B, 195A and 417 of the Migration Act. 25 The unfairness which the applicant claimed was that the department did not give the applicant a copy of the unabridged final report in respect of the data breach which had been prepared by the consulting firm, KPMG (the KPMG report), on the instructions of the department. The KPMG report identified the details of the extent of the data breach and the extent to which information comprising the data breach had been seen by persons who had accessed the department's website during the period of the data breach. 26 In considering this issue, the primary judge referred to the Full Court decision of the Federal Court in SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 (SZSSJ). In SZSSJ, the Full Court applied the High Court decision in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 and identified a two stage process in relation to the exercise by the Minister of his personal dispensing powers in ss 48B, 195A and 417 of the Migration Act, which would trigger an obligation to provide procedural fairness. The first stage of the process involves the Minister considering whether to exercise the defined personal statutory powers and the second stage involved whether it was in the public interest that the dispensation should be granted in a particular case. 27 The primary judge noted that in SZSSJ, the Full Court found that, on the facts in that case, the second stage of the process referred to above, had commenced and, therefore, there was an obligation to provide procedural fairness in the operation of that process. The primary judge, however, went on to observe that the facts in the present case were distinguishable and he was not bound by the factual findings of the Full Court. The primary judge said that there were two significant ways in which this case was distinguishable from the facts in SZSSJ. 28 The first distinction lay in the fact that the Tribunal in SZSSJ had made its decision to reject SZSSJ's application for review before 12 March 2014, which was the date of the first letter from the department advising of the data breach. In other words, SZSSJ, unlike the applicant in this case, had not had the opportunity to raise his fears arising from the data breach in the review before the Tribunal. 29 The second distinction lay in the fact that in SZSSJ, on 1 October 2014 the department had written to SZSSJ informing him that it had commenced an International Treaties Obligations Assessment process (an ITOA process) on 30 September 2014 to assess whether the circumstances of SZSSJ's case engaged Australia's non-refoulement obligations. The department's letter invited the applicant in SZSSJ to participate in that ITOA process. There had been no such notification and invitation from the department to the applicant in this case. To the contrary, the department had written to the applicant advising that it did not intend to conduct such a process in relation to the applicant's claim to fear harm arising from the data breach because that had been raised and considered before the Tribunal. 30 The primary judge went on to say that there had been vague references in the department's letters to the department's "normal processes". The primary judge, therefore, said that he did not infer on the facts in this case, that the Minister had decided in respect of the applicant that he would consider the exercise of one or other of his dispensing powers. Accordingly, said the primary judge, no obligation on the Minister or his department to afford the applicant procedural fairness, had been triggered. 31 The primary judge went on to consider and dismiss the applicant's claim insofar as it was construed as applying to the third potential decision. However, that aspect of the primary judge's decision is not challenged in the application for an extension of time to appeal and it is unnecessary to refer further to that aspect of the primary judge's reasons for decision.

APPLICATION to this court FOR EXTENSION OF TIME to appeal 32 The orders of the primary judge dismissing the applicant's application for judicial review were made on 4 February 2016. 33 On 11 March 2016, the applicant filed an application for an extension of time to appeal from those orders. 34 In support of the application, the applicant stated that he had made his appeal application on 26 February 2016 but the Registry had emailed him back stating that he had used the wrong form. There was no issue taken in relation to the failure to explain the delay in bringing the application. 35 The issue was whether the proposed grounds of appeal were of sufficient merit to warrant the grant of an extension of time to appeal. 36 The applicant's extension of time application identifies two potential grounds of appeal. However, it is apparent that the proposed grounds of appeal have been copied from another judicial review application, being an application which had been summarily dismissed by the Federal Circuit Court. Indeed, the proposed grounds of appeal are identical in many respects to the grounds of appeal which were relied on by the applicant in SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173 (SZWAJ). I will refer to SZWAJ later in these reasons. 37 However, notwithstanding the foregoing, it is possible to discern the tenor of the applicant's complaints from the proposed grounds of appeal that were filed. 38 The first proposed ground of appeal, in essence, is that the primary judge had erred in finding that the Full Court decision in SZSSJ did not apply to his case. 39 The second proposed ground of appeal was that the primary judge had erred in failing to find that the March letter involved a commitment by the Minister to initiate a process to ascertain the impact on the applicant of the release of his personal information by reason of the data breach, such as would give rise to an obligation on the Minister to accord the applicant procedural fairness.

The first proposed ground of appeal 40 In SZSSJ, the Full Court found that the Minister owed the applicant in SZSSJ a duty of procedural fairness because the Minister had reached the second stage of the process relating to the exercise of his personal dispensing powers. The Full Court also found that as part of that duty to accord procedural fairness, the department was obliged to provide the unabridged KPMG report to SZSSJ. 41 As mentioned, the primary judge drew two relevant distinctions between the facts in SZSSJ and the facts in this case. The distinctions were, first, that the applicant in SZSSJ had not had his claims to fear harm on return to Bangladesh by reason of the data breach considered by a Tribunal; and secondly, that the applicant in SZSSJ had been invited to participate in an ITOA process, whereas the applicant in this case had not been invited to do so. It was on the basis of these factual distinctions that the primary judge did not apply the reasoning of the Full Court in SZSSJ. 42 After this application had been filed, the High Court delivered its judgment on the appeal by the Minister in Minister for Immigration and Border Protection v SZSSJ (2016) 334 ALR 653. 43 It is important to observe that each of the Full Court and the High Court considered whether an obligation of procedural fairness to the applicant in SZSSJ was triggered, and the content of any such procedural fairness obligation, solely by reference to the fact that SZSSJ had received an invitation from the department to participate in the ITOA process. Thus, the High Court observed that the department's response to the data breach was channelled into an ITOA process to be conducted in accordance with departmental manuals in September 2014. The High Court went on to observe that it was on 1 October 2014 that the department advised SZSSJ that an ITOA process had been commenced and invited SZSSJ to provide any further information which he wished to have taken into account; and that, thereafter, a debate had ensued between the solicitors representing SZSSJ and the solicitors representing the Minister about the extent of the disclosure of information by the Minister required as part of the ITOA process. The solicitors for SZSSJ had argued that for SZSSJ to be accorded procedural fairness it was necessary that the full unabridged version of the KPMG report detailing the extent of the data breach, should be provided to SZSSJ. The solicitors for the Minister disagreed. 44 The High Court held, as had the Full Court, that in the particular factual circumstances that prevailed in the case of the applicant, SZSSJ, an obligation to accord procedural fairness had been triggered. The High Court, however, allowing the appeal, found that although the applicant, SZSSJ, was entitled to procedural fairness during the course of the ITOA process, that entitlement did not extend to him being provided with the full unabridged KPMG report. 45 In my view, the first proposed ground of appeal does not have sufficient prospects of success to warrant the extension of time to permit the applicant to file his proposed appeal against the orders of the primary judge. 46 This is because, in my view, the primary judge did not err in distinguishing the Full Court decision in SZSSJ on the basis that the facts in each of the cases were different in the two important respects previously mentioned. As the High Court observed in SZSSJ at [54]-[55], whether the Minister has made a procedural decision is a question of fact. It was open on the facts in this case for the primary judge to have made the finding which he did. 47 As previously mentioned, both the Full Court and the High Court considered whether an obligation to accord procedural fairness had arisen and the content thereof, only in the context of a detainee (namely, SZSSJ), who had been invited by letter of 1 October 2014 specifically to participate in the ITOA process. 48 Neither the Full Court decision, nor the High Court decision is authority for the proposition that a person whose personal information had been disclosed as part of the data breach, is entitled to have his or her claim to fear harm arising from the data breach to be considered and determined by a Tribunal; and for that same claim also to be considered by the Minister in the context of whether to exercise his or her dispensing powers. 49 Contentions to the same effect as were made by the applicant in this case, were considered and rejected by Griffiths J in SZWAJ. The facts in SZWAJ are materially the same as the facts in this case, and, in my view, the reasoning and decision in SZWAJ apply equally in this case. 50 Accordingly, as I have said, the first proposed ground of appeal does not have sufficient merit to warrant the grant of an extension of time to appeal.

The second proposed ground of appeal 51 The second proposed ground of appeal contended that the primary judge erred in relation to his characterisation of the March letter. 52 The reasoning referred to in relation to the first proposed ground of appeal, applies equally to the second proposed ground of appeal. 53 Accordingly, in my view, the second proposed ground of appeal does not have sufficient merit to warrant the grant of an extension of time to appeal. 54 Accordingly, the applicant's application for an extension of time to appeal is dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.