CCE16 v Minister for Immigration and Border Protection

1. The Respondent's Notice of Objection to Competency is allowed.
2. The Applicant's Originating Application dated 24 June 2016 is dismissed.
3. The Applicant pay the Respondent's costs of the application, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The applicant is a citizen of the People's Republic of China who first arrived in Australia on 8 May 1996 as the holder of a Subclass 676 (Tourist) visa. It is not necessary to set out the entire history of the applicant's dealings with the Department of Immigration and Border Protection ("Department"). It is sufficient to record that on 20 December 2013 the applicant made an application for a protection visa. In February 2014, the Department inadvertently published on its website personal information about the applicant and thousands of other asylum seekers who were in immigration detention as at 31 January 2014 ("data breach"). By letter dated 12 March 2014, the Secretary of the Department ("Secretary") wrote to the applicant advising him of the data breach. The letter informed the applicant that as a result of the data breach it had been possible to access his name, date of birth, nationality, gender and details about his detention and whether he had any other family members in detention ("letter"). The Secretary then stated: 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. 2 Thereafter, on 3 October 2014, a delegate of the Minister rejected the applicant's application for a protection visa. The delegate took into account the data breach and the applicant's statement that he and his family had not experienced any adverse interest from the Chinese government since the breach had occurred some five months earlier, and found that the applicant's profile had not been elevated by the data breach. 3 On 21 January 2015, the Refugee Review Tribunal ("Tribunal") affirmed the decision not to grant the applicant a protection visa. The data breach and the applicant's claim of fear of returning to China on the basis of being a failed asylum seeker were also taken into account by the Tribunal. The Tribunal considered the consequences of the data breach and found that there was no evidence to suggest that details of the applicant's claim had been leaked to the Chinese authorities and, as the applicant had no profile in China, he would be of no interest to the authorities or seen as anti-government on his return to China. 4 An application for judicial review from the Tribunal's decision was rejected by the Federal Circuit Court of Australia on 23 November 2015. An appeal from that judgment was dismissed by a judge of this Court on 29 June 2016. 5 On 10 August 2016, the applicant filed this proceeding which seeks judicial review and relief under s 39B of the Judiciary Act 1903 (Cth). Under the heading "Details of claim" the Originating Application states: 1. The Minister for Immigration and Border Protection denied me procedural fairness in respect of giving consideration as to whether to make a decision to exercise the power under ss 417(1), 48B(1) and/or s195A of the Migration Act ('the Ministerial Intervention power') regarding to the "Privacy Breach" incident which consideration began on or about 12 March 2014 ("the Process"). This application is brought pursuant to section 39B of the Judiciary Act 1903 and the Constitution of Australia. 6 The Originating Application goes on to provide some particulars which suggest that the claim is predicated on an assertion that the respondent ("Minister") had on or about 12 March 2014 commenced to consider whether to exercise his "Ministerial Intervention powers" (defined to be the ss 417(1), 48B(1) and 195A powers of the Minister under the Migration Act 1958 (Cth) ("Migration Act")) in relation to persons who had received the letter. The particulars, in essence, assert that the Minister had determined to embark upon a process by which the Department would assess any implications of the data breach. The particulars then assert that the applicant was denied procedural fairness in relation to that process. 7 On 25 August 2016, the Minister filed a Notice of Objection to Competency which contended that this Court had no jurisdiction in relation to the proceeding by reason of s 476A of the Migration Act. When the proceeding was first listed for a case management hearing on 30 August 2016, the applicant appeared unrepresented. Ms Siobhan Kelly of counsel, who happened to be in Court, came to assist the applicant in circumstances where it had become obvious that the applicant was unable to comprehend the challenge being made to the Court's jurisdiction to deal with his application. On the basis of Ms Kelly's offer to assist the applicant, the case management hearing was adjourned. With the assistance of Ms Kelly, steps to bring the proceeding to trial were taken, including the filing of a written outline of submissions prepared by Ms Kelly and filed on behalf of the applicant. 8 When the matter came on for final hearing, the applicant was unrepresented. It seems that Ms Kelly was unable to obtain instructions from the applicant, and in the result, the applicant was no longer legally assisted. With the aid of an interpreter, the applicant made some submissions although none that addressed the issues that I need to determine. The applicant acknowledged that he relied on the written submissions prepared by Ms Kelly. The Minister relied on written submissions earlier filed and oral submissions made at the hearing. At the outset of the hearing, I determined that I would first deal with the Minister's objection to the Court's jurisdiction and leave for later hearing and determination any other issues should the Minister fail on its Notice of Objection to Competency.