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[2018] FCA 1811
Federal Court of Australia
2018-10-31
Lee J
Original judgment source is linked above.
A Introduction 1 This is a matter with a long procedural history. The appellant migrated to Australia with his parents when he was aged four and, in 1994, was granted a Transitional (Permanent) Visa allowing him to remain in Australia indefinitely. 2 In 2004, the appellant was convicted of two counts of attempted incest against his stepdaughter, and later in 2005, he was convicted of the rape of his ex-de facto partner. He was sentenced to nine years and three months in gaol, which was reduced, on appeal, to seven years and six months, with a non-parole period of five years. 3 In May 2010, the appellant's visa was cancelled on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) (Act) by a decision of a delegate of the Minister for Immigration of Citizenship (subsequently, the Minister for Immigration and Border Protection) (Minister). However, that decision was subsequently set aside by the Administrative Appeals Tribunal in August 2010. That decision was later affirmed by this Court in July 2011. 4 In February 2012, the Minister personally cancelled the appellant's visa pursuant to s 501A(2) of the Act on character grounds. As a consequence, the appellant was taken into immigration detention, where he presently remains. 5 On 12 March 2014, the appellant received a letter from Mr Martin Bowles, the then Secretary of the Department of Immigration and Border Protection, which dealt with unauthorised access to personal information. This letter was in similar terms as referred to in a number of cases, including the decision of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 188 [8]. It is convenient to set out the description of the letter from the High Court's reasons in SZSSJ at [8]: In early March 2014, the Secretary of the Department sent a standard form letter to each of the affected applicants. The letter informed those applicants of the Data Breach and expressed deep regret. The letter continued: "The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention. The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information. 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." 6 On 24 November 2016, the appellant wrote to the Minister in response to the letter of Mr Bowles sent over two and a half years earlier. I will come back to this responsive letter shortly, but it is necessary to outline first what occurred in the interim. In November 2014, while in immigration detention, the appellant applied for a Protection (Class XA) visa. As the primary judge records at [11], this application was based on the grounds that the appellant: (a) was a convicted child sex offender and would be "attacked and seriously harmed" if he was returned to Malta; and (b) suffered from diabetes and depression and that he would be homeless if he was returned to Malta. 7 This application for a protection visa was refused by a delegate of the Minister in January 2015. The appellant then applied to the Refugee Review Tribunal (RRT) for a review of the delegate's decision and in May 2015, the RRT affirmed the decision of the delegate. The appellant then applied to the Federal Circuit Court for judicial review of the decision of the RRT. This application was determined adversely to the appellant in July 2016. 8 It was against this background that the appellant commenced proceedings in July 2016 in this Court, appealing the decision of the Federal Circuit Court. This was dismissed in March 2017 by Siopis J. Importantly, in both the reasons of the primary judge that were on appeal before Siopis J, and in his Honour's judgment, the issue of data breach was addressed: see AZT15 v Minister for Immigration [2016] FCCA 1786 at [15(i)], [21] and [29]; AZT15 v Minister for Immigration and Border Protection [2017] FCA 191 at [99] to [105]. 9 It is worth setting out what Siopis J said about the data breach at [99]-[105] in full: The fourth ground of appeal alleged that the Tribunal committed a jurisdictional error as it failed to acknowledge that a data breach by the department, which occurred in respect of information about the appellant in late January 2014, constituted a breach of s 14 of the Privacy Act 1988 (Cth). In support of ground four, the appellant referred to the decision of the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1 (SZSSJ). In SZSSJ, the jurisdictional error which the Full Court found was not by reason of a breach of the Privacy Act, but rather that the department's data breach, and associated actions of the department, had constituted a failure to provide procedural fairness. I observe, in passing, that the Full Court's decision in SZSSJ was set aside by the High Court of Australia (Minister for Immigration and Border Protection v SZSSJ (2016) 334 ALR 653). The facts in SZSSJ are distinguishable, however, from the appellant's case. In SZSSJ, the applicant was at the time of the data breach, an applicant for a protection visa. After the data breach had occurred, the department had written to the applicant on 1 October 2014 informing him that an assessment process had commenced (called the "International Treaties Obligations Assessment" (ITOA) process) as a precursor to the Minister considering whether or not to exercise his dispensing powers under the Migration Act. The question in SZSSJ was whether the applicant had been accorded procedural fairness in the course of the ITOA process. However, the appellant in this case, unlike SZSSJ, was not an applicant for a protection visa at the time of the data breach and he did not allege he had received a letter about the initiation of an ITOA process. Accordingly, this was not a case, such as SZSSJ, in respect of which the process initiated after the data breach could found a possible finding of procedural unfairness. The Tribunal concluded that, while the appellant's data had been disclosed on the department's website, that data was of such a limited level of detail that it would be unlikely to expose the appellant to adverse attention from the Maltese public so as to give rise to a real risk of harm if he were to be returned to Malta. The Tribunal did not fall into jurisdictional error in its treatment of the data breach incident as it applied to the appellant. The primary judge did not err in so concluding. Accordingly, ground four of the appellant's grounds of appeal is dismissed. 10 The next event, which is really the point of departure for the current appeal, was that in the response letter sent on 24 November 2016, the appellant referred to the letter received in March 2014 and said: I Hereby Request to start an assessment under the International Treaties Obligations Assessments ("ITOA") in accordance with the Procedures Advice Manual ("PAM") 11 A response was sent to the appellant to this letter above the signature of the Assistant Secretary (A/g) Visa and Citizenship Services Group, dated 20 December 2016. The writer referred to the letter received from the appellant, thanked him for it, and said: The Minister appreciates the time you have taken to bring the matter to his attention and he asked that I reply on his behalf. 12 The letter went on to provide a summary of the procedural background that I have referred to above, and then went on: As you are able to raise any claims you may have in relation to the data breach through this process [that is, the appellant's application for a Permanent Protection (subclass 866) Visa (PPV) and subsequent application for judicial review of the RRT's decision], an International Treaties Obligations Assessment (ITOA) is not available to you. As advised in the letter you attach from the former Secretary of the Department, Mr Martin Bowles, you have had the implications of the data breach assessed through the normal process, which in your circumstances was a PPV Application. 13 The letter then went on to note the writer's understanding that at the time the letter was sent, the appellant was seeking judicial review of the RRT decision in the Full Court of this Court. Indeed, the letter was sent a few weeks after Siopis J had reserved, in late November 2016, but before the delivery of his Honour's judgment in March 2017. 14 In January 2017, the appellant sought judicial review in the Federal Circuit Court in relation to the decision made on 20 December 2016 to refuse to conduct an International Treaties Obligations Assessment (ITOA). This application was dismissed by the Federal Circuit Court and the orders made by the primary judge in dismissing the application are the subject of this appeal.
B Grounds of appeal 15 The appellant is self-represented and the matter has been before me a number of times for the purposes of case management. 16 In February 2018, directions were made by a Registrar of this Court for the progression of what was then an application for leave to appeal. The matter first came before me on 27 April 2018 where I vacated several directions following complaints by the appellant that he had not had access to material necessary for him to prepare what then was his application for leave to appeal. He made a number of complaints, which for present purposes are unnecessary to recount, relating to the confiscation of various items of property, including a USB and MP3 player, which were removed from his possession. Prior to the first case management hearing, the appellant had filed an interlocutory application seeking a number of orders relating to these complaints. In the circumstances, I thought it appropriate that orders be made requiring the Minister to file and serve by email on the appellant, any affidavit material upon which the Minister proposed to rely in relation to the interlocutory application together with submissions as to the statutory or other basis upon which the USB and MP3 player were removed from the possession of the appellant. 17 The matter next came before me on 8 May 2018, at which time I made an order that the time for the filing of the notice of appeal from the order of the primary judge be extended until 12 January 2018, the date on which the application for leave to appeal was made by the appellant. I further ordered that the grounds of application referred to in the application for leave to appeal were to stand as the grounds of appeal advanced by the appellant. 18 The matter then came before me on 22 May 2018 when I made certain directions about filing and serving written submissions by the parties. There were still alleged difficulties with the appellant gaining access to relevant material and hence, rather than setting the matter down for hearing, I listed it for a further case management hearing on 17 August 2018. At that time I fixed the matter for hearing in September 2018 and gave further time for the appellant to file and serve submissions. 19 The matter then came before me for hearing on 24 September 2018, at which time I sought further assistance in relation to the somewhat discursive submissions made on behalf of the appellant. The matter was then adjourned part-heard until today. Further submissions were filed on behalf of both the Minister and the appellant. 20 At the recommencement of the hearing today, the Minister sought leave to rely on submissions, notwithstanding a failure to comply with the timetable I had set on 24 September 2018. The extension sought was for one day. The Minister's application for leave was initially opposed by the appellant. Given that upon the late service of the Minister's submissions, I had already extended the date by which the appellant was to file and serve any responsive material by five days, I was satisfied that there was no prejudice caused by the extension sought by the Minister, and leave was granted. 21 The grounds of appeal are set out in a document filed on 12 January 2018. One ground was identified. It was as follows: [The primary judge] erred in law for not finding that the Purported Decision of the Minister for Immigration and Border Protection (Respondent) and his Department on 20 December 2016 is Legally unreasonable in that it is Vitiated by Judicial Error and has Denied Me Procedural Fairness.
C The primary judge's reasons 22 It is convenient to commence with the primary judge's reasons. After setting out the background and the circumstances of the data breach, the primary judge turned to the request for, and the refusal to conduct, the ITOA. The primary judge then found as follows, at [27]-[36]: The ITOA The Court accepts the submissions of the Respondent that the Court does not have jurisdiction to undertake judicial review of the officer's decision to refuse a request for an ITOA. There is no evidence before the Court that there has been any substantive decision or personal procedural decision made by the Respondent concerning whether to process the Applicant's ITOA request. Thus, the Respondent's statutory non-compellable powers were not engaged and the decision had no statutory basis. It therefore did not attract procedural fairness. Accordingly, the Court does not have jurisdiction to undertake judicial review of the decision made by the officer on 20 December 2016. The Applicant had the opportunity to make submissions as to the implications upon his personal circumstances of the data breach when he participated in a hearing before the then Refugee Review Tribunal. There is no independent obligation on the part of the Respondent to carry out an ITOA assessment where the Tribunal has fully considered all of the matters in relation to the Applicant, including the consequences of the data breach. The Applicant cannot succeed in an argument that he was denied procedural fairness by the officer refusing his request for an ITOA. Even if procedural fairness was owed to the Applicant, there is no arguable basis upon which it can be said that procedural fairness was denied in relation to the impact of the data breach on the Applicant's circumstances. As submitted by the First Respondent, the Applicant was able to give evidence and present arguments to a delegate of the Respondent and to the then Refugee Review Tribunal about his protection claims, including his claim that the data breach meant that he faced a real chance of serious harm or a real risk of significant harm should he return to Malta. The Applicant was afforded the opportunity to raise any concerns he had about the implications of the data breach for him personally as part of the protection visa application review process, and they were taken into account in considering whether the Applicant met the criteria for the grant of a protection visa. Furthermore, this is a matter which has already been dealt with by the Court and by Justice Siopis in the Applicant's appeal of the decision of the Court to the Federal Court of Australia in his Honour's decision handed down on 3 March 2017. No conduct preparatory to the making of the decision to remove under s.198(6) of the Act The Court is satisfied that the decision to refuse the ITOA request was not conduct preparatory to making a decision in relation to the removal of the Applicant under s.198(6) of the Act. The officer's refusal to conduct a non-statutory process is qualitatively different from a decision by the Department to inform an applicant by letter that no further consideration would be given to Australia's protection obligations toward him. The Court refers to the decision of Judge McNab made 14 February 2017 in AAG15 v Minister for Immigration [2017] FCCA 328 wherein his Honour had before him the same issue, namely, an application involving the officer's refusal to consider an applicant's request for an ITOA and in similar factual circumstances. As in these proceedings, the Court was therein referred to the High Court decision of Minister for Immigration and Border Protection and SZSSJ; Minister for Immigration and Border Protection and SZTZI [2016] HCA 29. His Honour said in paragraph 11 of that decision:- "In this case there is no evidence before the court that there has been any substantive decision made by the Minister and there has been no personal procedure decision made by the Minister whether to process an ITOA request. That is contradistinction to the situation referred to in paragraph 56 of the High Court decision." And, further, in paragraph 12:- "I am not persuaded that the decision to refuse the ITOA request was conduct preparatory to making a decision as to the applicant's removal under section 198(6) of the Act." His Honour concluded that no arguable case for the relief claimed had been raised. For reasons of judicial comity, I am obliged to follow AAG15 v Minister for Immigration [2017] FCCA 328, unless I am satisfied that it is plainly wrong. I am not satisfied that it is plainly wrong, so I do follow it. The Court has determined in respect of these proceedings that the interlocutory application should be dismissed and that the substantive application does not raise an arguable case for a grant of the final relief sought, and thus should also be dismissed. A costs order shall follow the dismissal. (footnotes omitted) 23 Notwithstanding the way in which the ground of appeal was formulated, oral submissions were directed to the contention that her Honour erred in concluding that the Federal Circuit Court did not have jurisdiction to undertake judicial review of the decision to refuse the ITOA. A range of other submissions were made, to which I will return, but the primary issue for determination is whether the primary judge fell into error in reaching this conclusion.
D The Federal circuit court's jurisdiction 24 The Federal Circuit Court's jurisdiction under the Act is set out in s 476 in the following terms: (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. (2) The Federal Circuit Court has no jurisdiction in relation to the following decisions: (a) a primary decision; (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; (c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; (d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7). 25 In my view, the primary judge was correct in reaching the ultimate conclusion that the Federal Circuit Court did not have jurisdiction to review the decision. The process of reasoning proceeds as follows: the refusal was not a "migration decision" and the application for review was not "in relation to a migration decision" within the meaning of the Act. More specifically, the refusal was not a "privative clause decision" under s 474(2) and (3), nor a "purported privative clause decision" under s 5E of the Act; it was not a decision of an administrative character made, proposed to be made, or required to be made under the Act and was not conduct preparatory to the making of such a decision under the Act; and there was no evidence of any substantive decision or personal procedural decision made by the Minister that engaged the Minister's statutory non-compellable powers, and, therefore, the refusal had no statutory basis. 26 Consistently with this, the contention of the Minister below, accepted by the primary judge, was that the appellant's claim did not engage the jurisdiction of the Court under s 476(1). It is appropriate I set out these submissions in a little detail. 27 To understand the Minister's contentions in relation to s 476(2), it is important to consider a number of definitions. A "primary decision" is defined in s 476(4) to mean a "privative clause decision" or a "purported privative clause decision". A "privative clause decision" is defined in s 474(2) to mean: … a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). 28 By s 474(3) a reference to such a decision includes: conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation (s 474(3)(h)); or, a failure or refusal to make a decision (s 474(3)(j)). 29 The Minister submits that the Minister had not made a procedural decision to consider whether to grant a visa or lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A or 417 of the Act. The refusal by an officer of the Department to conduct an ITOA (irrespective of the question of whether or not it was made on behalf of the Minister) does not meet the definition of a "privative clause decision" in s 474(2), because it was not a decision made under the Act and, accordingly, such a refusal does not have a statutory basis. 30 Similarly, the Minister contended that the conduct of the officer in refusing to commence an ITOA does not fall within the extended definition of a "decision" and was not preparatory to any decision under the Act. There was no further investigation or inquiry to be made after the refusal. This is in contradistinction to the actual conduct of an ITOA by an officer of the Department which has been held to be conduct under the Act preparatory to the making of a substantive decision by the Minister.
E OTHER ISSUES 31 The other issues raised by the appellant can be addressed relatively briefly and, at least in part, have been addressed in other decisions of this Court.
E.1 Obligation to Conduct an ITOA 32 The first was a contention that the Minister had an obligation to conduct an ITOA to allow the appellant an opportunity to say whatever he wished to say concerning the implications of the data breach. This contention is misconceived. In SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173, Griffiths J dealt with an application seeking to enjoin the appellant's removal from Australia arguing that the Department had made a representation that it would assess the consequences of the data breach for the appellant individually. His Honour dismissed the appeal concluding at [26] that the High Court's decision in SZSSJ could be distinguished on the facts: It is critical to note that, in the proceeding here, the Data Breach occurred prior to the appellant applying for a protection visa. The processes which then ensued before both the Minister's delegate and the Tribunal provided the appellant with an opportunity to say whatever she wished to say concerning the implications of the Data Breach for her entitlement to protection. Subject to relevant provisions in the [Act] the statutory processes of considering and determining her application for a protection visa, both by the delegate and on review by the Tribunal, attracted procedural fairness obligations. The appellant did not point to any aspect of those processes which involved procedural unfairness to her. Nor is her case strengthened by her reliance on SZSSJ High Court because of the findings made there concerning the different process which had commenced in respect of the aggrieved persons in those proceedings. 33 In the present case, like in the proceeding with which Griffiths J was concerned, the data breach occurred prior to the appellant applying for a protection visa. 34 Similarly, in SZVEY v Minister for Immigration and Border Protection [2015] FCA 394; (2015) 146 ALD 168, Bennett J rejected an argument that the Minister had an independent obligation to carry out an ITOA, in circumstances where the appellant had made a protection visa application and the Tribunal had fully considered the consequences of the data breach.
E.2 The Nature of the Decision 35 Secondly, the appellant contended that the Minister had made a personal procedural decision amenable to review. Again, this has no merit. Flick J in SZWCH v Minister for Immigration and Border Protection [2016] FCA 1551 noted, consistently with the High Court's observations in SZSSJ, that the question of whether or not the Minister had made a personal procedural decision to consider the exercise of statutory non-compellable powers was a "fact specific inquiry". In SZWCH, a letter, in the same terms as the letter received by the appellant in the present case, did not of itself demonstrate that a personal procedural decision had been made by the Minister. Likewise, in SZWCH, the appellant had an opportunity to make submissions as to the implications upon his personal circumstances of the data breach when he participated in the hearing before the RRT after the date of the breach. 36 The appellant contends in the present case that the letter should be characterised as a refusal on behalf of the Minister of the appellant's request for an ITOA and, hence, the appellant's request for an ITOA has been refused by the Minister. Even if this argument were to be accepted, at best, this would amount to a refusal by the Minister to consider the exercise of his statutory non-compellable powers. While such a decision may be a "migration decision" as defined, the Federal Circuit Court has no jurisdiction in relation to any such decision as is made clear by ss 474(7)(a) and 476(2)(d). 37 No error has been demonstrated in the primary judge concluding that the decision to refuse the appellant's request for an ITOA was not conduct preparatory to the making of a decision in relation to the removal of an applicant under s 198(6) of the Act. Of course, s 198(6) relevantly provides that an officer must remove, as soon as reasonably practicable, an unlawful non-citizen if, such as here, the non-citizen is a detainee and an application for a visa has been determined. 38 At the time the purported decision was made, however, the appellant was not subject to removal under s 198 in the sense, as I have explained, that he was still taking steps to obtain judicial review in relation to the refusal of his visa and there is nothing about the decision communicated in the letter which would suggest that it was made in the context of a decision being made in relation to the removal of the appellant. Indeed, the text of the letter expressly refers to the proceedings in front of Siopis J, which had not yet been concluded. This points in the opposite direction to the decision being made in relation to the removal of the appellant.
E.3 Procedural Fairness 39 Dealing with a further point raised by the appellant, it follows from the above, that the primary judge was also correct to find the decision did not attract any procedural fairness obligations. The refusal was not a process undertaken by an officer of the Department under and for the purposes of a statutory non-compellable power and, as explained in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, such a decision does not attract procedural fairness obligations.
E.4 Final Matters 40 No appealable error has been identified in the decision of the primary judge for the reasons alleged by the appellant. 41 Before leaving the matter I should refer briefly to a number of miscellaneous subsidiary arguments advanced during the course of written and oral submissions on behalf of the appellant. The appellant feels, obviously with some intensity, that he has been occasioned an injustice in circumstances where he had previously had his visa cancelled in 2010 which was reinstated following a decision of the Tribunal (being a decision later vindicated by a judgment of this Court). The subsequent decision in February 2012 to cancel his visa on character grounds has meant that he has been in immigration detention for a period in excess of six years with no endpoint in sight. 42 He has also pointed to various publications of his personal details (including his name and his convictions), that have become widely known through media coverage and by the tabling of a report by the Commonwealth and Immigration Ombudsman to the Minister for Immigration and Border Protection. He says that this publication has compounded the difficulties that he now encounters in that it is highly unlikely that Malta will accept him following any forced removal. As I have sought to explain to the appellant, whatever the underlying factual merit of his contentions, they are not material to the determination I am required to make. 43 In these circumstances the application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.
AZT15
Minister for Immigration and Border Protection
(2017) 327 FLR 434
(2016) 259 CLR 180
(2012) 246 CLR 636
(2015) 234 FCR 1
(2016) 334 ALR 653