DSO18 v Minister for Home Affairs

1. The application filed 26 February 2020 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DERRINGTON J: 1 This application was made in relation to an appeal from a decision of the Federal Circuit Court of Australia which dismissed an application for review of a decision of the Immigration Assessment Authority. When the appeal was called on, Mr Schipp of Counsel, appearing for the appellant, applied for the hearing to be adjourned to a date to be fixed and for a new timetable be set for the provision of further submissions. Declarations were also sought. 2 As the basis for the application, it was alleged that the appellant's name had been published on the Commonwealth Courts Portal in relation to this appeal in contravention of s 91X of the Migration Act 1958 (Cth) (Migration Act), which states: (2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person's name. 3 The application was supported by an affidavit of Mr Daniel Taylor, the solicitor for the appellant. In it, Mr Taylor deposed that he reviewed the Commonwealth Courts Portal in relation to this appeal and identified the appellant's name was "inadvertently" made available as "open source information" connected to the alphanumeric pseudonym in the case file number. Counsel for the appellant submitted that the reference to the appellant's name being "open source information" was an assertion that the information was published to the world at large. The absence of responsive evidence from the Minister is likely accounted for by the fact that the interlocutory application was made urgently, as is understandable. In any event, the evidence of Mr Taylor was not contradicted, and, for the purposes of this application, it should be accepted. 4 The general concern arising from a "data breach", such as this, is that the applicant for a protection visa will be able to be identified by those whom the applicant claims will cause him harm and indeed, will become aware of the claims made in the proceedings. For that reason, the appellant now says that his claims for protection have not been fully considered as a result of these new matters, and that the Minister ought exercise his power under s 48B(1) of the Migration Act to allow a further application to be made. 5 The High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [12] observed that the Minister's power under s 48B is "non-compellable" because subs (6) provides that: (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. 6 Whether the Minister is able to be compelled to consider exercising the power can be put to one side for the purposes of this application. The ultimate question was whether the hearing ought to be adjourned to allow the parties to present full oral argument as to the inclusion of further grounds of appeal dealing with this issue and, or alternatively, seek relief in the nature of declarations and injunctions. 7 The authorities relied upon by Counsel identified two differing approaches. 8 The first was that of Rares J in WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116. In that matter, a breach of s 91X had alleged occurred as a result of the primary judge identifying in his reasons for decision the birth date of the applicant. It was said that that identification gave rise to the possibility of the applicant's claimed persecutors establishing his identity. His Honour identified the sequelae of this at [21] of his reasons: In my opinion, neither of those remedies is available or appropriate. Yet the position is that the inadvertent act of the trial judge in revealing the date of birth of the appellant, together with the detail of his claims for protection, has created a situation in which, because of the data breach that affected the appellant personally, he may well be now placed in a position where those from whom he fears harm are aware of what he claims and may be able to use that to his detriment if he were to be refouled to Egypt. 9 His Honour did not decide the issue, but rather adjourned the hearing of the appeal to allow the parties to consider whether it would be appropriate for the Court to make declarations in relation to the issues and, in particular, in relation to whether the Minister might be asked or required to exercise his power under s 48B. In this respect his Honour said at [24]: I raised with the parties whether it would be appropriate for me to make a declaration to reflect that, in the new circumstances that occurred because of the trial judge's unfortunate error in revealing the date of birth of the appellant, some form of declaratory relief ought be made so as to suggest or raise for consideration that the Minister should exercise his powers under s 48B or other provisions of the Act to allow the appellant to make a further claim for a protection visa. That is because of the consequence that the previous impact of the data breach on the appellant appears to have been further affected by the public revelation in the reasons for judgment, accessible on the internet, of his date of birth and the substantial detail about his claims for protection. 10 The alternative approach is that adopted by Besanko J in EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086. In that case, it was alleged that a breach of s 91X had occurred because the appellant was identifiable as a result of a number of characteristics identified in the reasons delivered in the Federal Circuit Court. After identifying the purpose of s 91X and considering the explanatory memorandum, his Honour cited two fundamental difficulties with the grounds sought to be raised by the appellant in relation to the alleged breach. The first was that his Honour had reached the conclusion that no breach had occurred. His Honour then said at [26]: …The second fundamental difficulty is that, even if there had been a failure to comply with s 91X, such non‑compliance would not demonstrate jurisdictional error in the decision of the IAA. It follows, that a breach of s 91X would not lead to a remedy involving the grant of certiorari to quash the decision of the IAA. 11 At [27] his Honour said, in effect, that a breach of s 91X did not give rise to a jurisdictional error and therefore did not impact upon the issues to be determined on appeal: …A breach of s 91X does not, in my opinion, give rise to a jurisdictional error. Assume the Court pronounced orders after hearing submissions with reasons for judgment to be delivered later. The order would not move from being within jurisdiction to being beyond jurisdiction upon reasons for judgment which involved a breach of s 91X being published later. As far as the appellant's claim for a declaration made orally is concerned, aside from the other reasons for refusing such a declaration, this appeal is not constituted as an action for a claim for a declaration involving the reasons for judgment of the Federal Circuit Court. 12 In the present circumstances, the appellant sought to make the declaratory relief part of the appeal and the reasons for doing that are apparent. However, I am of the opinion that the approach of Besanko J in EAU17 is the correct one. The issue sought to be raised does not impinge upon the validity or the legality of the decision of the Authority or of the correctness of the decision of the primary judge. Even if the arguments concerning s 91X were ultimately successful, the validity of the Authority's decision would remain unaffected. It may well be that the appellant wishes to commence separate proceedings for the declaratory relief he desires, but that is not a matter which needs to be determined on this appeal. 13 In those circumstances, I dismiss the interlocutory application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.