ALG15 v Minister for Immigration and Border Protection

1. The appeal be dismissed pursuant to FCR 36.75(1)(a)(i).
2. The appellant is to pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This matter has a lengthy history. I will come back to that history below, but relevantly for present purposes, the appeal was listed for hearing this morning at 11.15 am. In the absence of an appearance by the appellant, the solicitor for the first respondent seeks an order, pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), that in the absence of the appellant, the appeal be dismissed. The solicitor for the first respondent also submits that the appeal is, in any event, without merit and ought be dismissed on that basis. 2 I do propose to make an order dismissing the appeal, in the absence of the appellant, pursuant to rule 36.75(1)(a)(i) and set out below my reasons for adopting that course. 3 It was as long ago as 10 October 2012 that a delegate of the first respondent (Minister) refused to grant a Protection (Class XA) visa to the appellant under s 65 of the Migration Act 1958 (Cth). The appellant, who was born in the People's Republic of China and apparently moved to Hong Kong as a child, was placed in immigration detention in 2012. The appellant was unsuccessful in judicial review proceedings in the Federal Circuit Court which were commenced at the beginning of 2013, but on 5 August 2014, Rangiah J, in SZSMG v Minister for Immigration and Border Protection & Anor (2014) 146 ALD 518; [2014] FCA 877, found that the appellant had identified jurisdictional error (albeit not in relation to a ground argued before the Federal Circuit Court) and remitted the appellant's application to the second respondent (Tribunal). 4 In December 2014, the appellant provided additional evidence and submissions to the Tribunal, including written submissions. Ultimately, on 10 March 2015, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. 5 As a consequence, the appellant commenced judicial review proceedings in the Federal Circuit Court, which were dismissed on 30 November 2016. It is from the orders made by the Federal Circuit Court in ALG15 v Minister for Immigration & Anor [2016] FCCA 2963 that the appellant has brought this appeal. 6 The appeal was originally listed for hearing on 11 May 2017 at 10.15 am. The previous day, at 11.43 am, the Registry contacted the active parties and noted it was necessary for the commencement time of the appeal to be put back to 11.45 am. In response to that communication from the Registry, the appellant communicated with the Registry, indicating that he was previously unaware that the matter had been listed for hearing the following day. Notwithstanding that, the appellant appeared in person at 11.45 am on 11 May 2017. 7 At the time the appeal was called on for hearing, I raised with the appellant whether, in the light of the communication that he had made with the Court, he was in a position to proceed with the appeal. The appellant was somewhat equivocal as to whether he was in a position to proceed. Ms Musgrove, who appeared for the Minister, provided materials to me (which were admitted into evidence) which demonstrated that the solicitors for the Minister had sent various communications concerning the appeal to the home address of the appellant by express post. When I asked the appellant whether he had received such communications, his response, in effect, was not to deny receipt of the communications - which referred to the fact that the appeal was proceeding on 11 May 2017 - but rather to submit, on a number of occasions, that because of the pregnancy of his wife, he had been too distracted to attend to such matters. Despite the fact that I formed the view that the appellant had had sufficient notice of the hearing date, I decided, in all the circumstances, that I would give to the appellant an opportunity to have further preparation time for the appeal or to obtain legal representation. I will return to the indication I gave to the appellant as to what would occur today below. 8 At 10.43 am today, the New South Wales Appeals Unit of the court received a communication from the appellant in the following terms: Dear registrar, My wife falls down (sic) and her injured left leg, I might not be able to attend today's hearing, however I maintain my position that my case should be reserved pending on the determination of HCA S20/2017 SZWCH v Minister. Sorry for the inconvenience, please understand there is nothing more important to me than my family. Regards [the appellant]. 9 I am informed by Ms Musgrove that a communication in a similar form had been received by the solicitors for the Minister shortly beforehand. In any event, as soon as the communication quoted above came to the attention of my Associate, the Registry responded to the appellant in the following terms: Dear [appellant] The matter is listed today at 11:15 am and if you do not appear (either in person or by your representative) the matter may be determined in your absence. 10 When the matter was called on for hearing this morning, I asked that the matter be called three times outside of Court and, as indicated above, there was no appearance. It is against this background that an order for dismissal is sought. 11 It is a feature of FCR 36 that in circumstances where the hearing proceeds in the absence of a party, the party who was absent may apply to the court for an order setting aside or varying the order, or for orders for the further conduct of the hearing: FCR 36.75(2). 12 In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. At [7], his Honour recognised that where reinstatement is sought, a discretion falls to be exercised by the court which requires consideration of three factors, being: first, whether there is a reasonable excuse for the party's absence; secondly, the existence and nature of any prejudice that might flow and how any such prejudice may be alleviated; and thirdly, whether the applicant for reinstatement has a reasonably arguable prospect of success on the substantive application. 13 Against the possibility that an application may, at some future time, be made to me pursuant to FCR 36.75(2), I do not believe it is either necessary or appropriate that, on the hearing of the application that the appeal be dismissed, I should descend to forming a concluded and final view as to the underlying merits of the appeal. 14 Notwithstanding the above, I do think it is relevant for the purposes of considering what amounts to an application for an adjournment (and the separate question as to whether or not the appeal ought be dismissed), that I give some consideration to whether or not it is evident that the appeal has, on a preliminary view, real prospects of success. 15 The grounds of appeal relied on by the appellant are as follows: 1. The Federal Circuit Court erred at paragraph 12 in failing to follow findings of the High Court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at paragraph 56. Particulars: (a) I am an applicant for a protection visa affected by the data breach; (b) The Minister has made a personal procedural decision to consider whether to grant a visa under sections 195A or 417 or to lift the bar under section 48B; (c) The Tribunal powers are constituted under Part 7, Division 4 of the Act, and does not (sic) exercise any powers under sections 195A, 417 or 48B. 2. The Federal Court erred at paragraph 12 in failing to apply the assumption in paragraph 91 of the High Court of Australia judgment in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29. Particulars: (a) At paragraph 91, the High Court of Australia held: The assumption was rather that all of their personal information had been accessed by all of the persons or entities form (sic) whom they feared persecution or other relevant harm. 16 As can be seen from the above, the appellant alleges that the primary judge failed to follow "findings" of the High Court in Minister for Immigration and Border Protection & Anor v SZSSJ; Minister for Immigration and Border Protection & Ors v SZTZI (2016) 333 ALR 653; [2016] HCA 29. As is, by now, well known, SZSSJ related to the administrative response to a "data breach" of some magnitude which occurred in early 2014 whereby the identities of more than 9000 people who were in immigration detention were disclosed, including details of personal information, details as to their detention and whether members of their family were in detention. 17 Departmental officers conducting "International Treaties Obligations Assessments" (ITOAs) were instructed to assess the effect of the data breach, adopting the assumption that an applicant's personal information may have been accessed by authorities in the receiving country: SZSSJ at [10]. The High Court held (at [91]) that, sensibly interpreted and applied, the assumption was that that all of an applicant's personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm. 18 As Flick J noted in SZWCH v Minister for Immigration and Border Protection [2016] FCA 1551 at [12], the High Court in SZSSJ concluded that whether the Minister had made a "personal procedural decision" as to whether to grant a visa or lift a bar in a particular case or classes of case is a question of fact. In SZSSJ, there were unchallenged findings in the Full Court that the Minister made a personal procedural decision to consider whether to grant a visa under ss 195A and 417 of the Migration Act 1958 (Cth), or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the data breach. 19 As Flick J observed at [14], if the Minister had made a "personal procedural decision" to intervene, it attracted a duty to afford procedural fairness. His Honour went on to distinguish SZSSJ on the basis that there was no evidence in the case determined by his Honour, that the Minister had made any such "personal procedural decision" (there was no ITOA process and the delegate did not "assist the Minister", unlike the delegate in SZSSJ). Separate from any finding as to whether the Minister had made a personal procedural decision, was his Honour's observations at [27] that SZSSJ: ... is not to be understood as laying down any general principle or finding that the Minister has made a personal procedural decision in all cases or in those cases where a person has applied (or may later apply) for a protection visa … 20 In short, as Flick J explained, the concern of the High Court was to ensure that a person who had been affected by the data breach was given an opportunity to make submissions as to the implications of that breach upon his own circumstances and, as in the case before Flick J, the present appellant did have such an opportunity. 21 In the Tribunal proceedings the subject of the present appeal, the appellant claimed that his information was published in the data breach and that he would face harm as a result. The Tribunal accepted that the appellant was affected by the data breach, but found that there was not a real chance the appellant would suffer serious harm in Hong Kong or the People's Republic of China because of his imputed political opinion or membership of a particular social group comprising asylum seekers whose personal details had been published on the internet. 22 This decision was made in circumstances where the Tribunal held that there was no suggestion that the appellant's personal information had been used by others, or that anyone who was in immigration detention whose data had been released and had since returned to Hong Kong or the People's Republic of China had come to the adverse attention of the Hong Kong or Chinese authorities as a result. As a consequence, the primary judge held that what was described as a "data breach claim" was advanced and clearly articulated on behalf of the appellant. 23 It should be noted in this context that as the appeal was articulated before the primary judge, Grounds 1 and 4 contended: ...that the Tribunal was either wrong, or did not have jurisdiction, to deal with the Data Breach Claim. 24 As the primary judge explained, the Tribunal had jurisdiction and was plainly obliged to deal with the claim and no jurisdictional error was established. 25 In these circumstances, my preliminary view is that the applicant's reliance on SZSSJ appears to be misconceived. It was partly for this reason that on 11 May 2017, as noted above, I asked whether the applicant would obtain legal advice if I adjourned the matter. On 11 May 2017, the appellant had indicated that he had been in contact with a solicitor, and during a telephone call with the solicitor he had been advised to ask for an adjournment, pending the outcome of the special leave application in relation to SZWCH. 26 On 11 May 2017, I declined the application to adjourn the appeal for any length of time and indicated to the appellant that, although I was going to provide the appellant with the opportunity of obtaining legal representation, he "must work on the assumption that on the date that I'm going to list it next week [that is, today] … that absent quite extraordinary circumstances, [the appeal] will proceed to finality." 27 This appeal, like all other civil litigation in the Court, is subject to the case management provisions contained in Part VB of the Federal Court of Australia Act 1976 (Cth), which provides that the rules of Court and any power conferred or duty imposed by them must be exercised or carried out in a way that best promotes the overarching purpose of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. It would be inimical to the overarching purpose to proceed as the appellant has suggested. 28 Given the previous opportunity I afforded the appellant to prepare his case and what I consider, on a preliminary basis, to be the poor prospects of success in the appeal as articulated by the appellant, it seems to me that the appropriate course is to accede to the application of the Minister for the appeal to be dismissed pursuant to FCR 36.75(1)(a)(i). 29 The Minister has sought an order for costs and there is no reason why costs should not follow the dismissal of the appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.