Issues on the Application
25 The factors which the Court takes into account in determining whether to grant an extension of time are well-known. They are:
(1) the length of the delay;
(2) the explanation for the delay;
(3) whether the appeal has a real or realistic prospect of success;
(4) the prejudice to the applicant if the extension of time is not granted;
(5) any prejudice to the respondent if the extension of time is granted; and
(6) any relevant public interest considerations.
The factor referred to in (3) has been described in various ways in the authorities. However, I do not need to pause on that issue in this case because I have reached the clear view that the appeal does not have a real or realistic prospect of success.
26 The first consideration is the period of the delay. As I have said, the Federal Circuit Court judge delivered reasons and made orders on 4 March 2015. He published written reasons on 5 May 2015. The applicant made her application for an extension of time on 19 January 2016. The applicant had 21 days within which to appeal from the orders of the Federal Circuit Court and the extension of time required is almost 10 months from the date of the orders and almost eight months from the date the written reasons were published.
27 The second consideration is the explanation for the delay. The delegate's decision was made on 31 January 2014. On a date in March 2014, the applicant received a letter from the Department of Immigration and Border Protection dated 12 March 2014 which was in the following terms:
Unauthorised access to personal information
In February 2014 a routine report released on the department's website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department's website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.
We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again.
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.
If you would like to seek more information about the incident, talk to your case manager.
28 The Tribunal conducted a hearing of the applicant's application for review on 31 March 2014 and it appears, although it is not entirely clear, that the applicant provided a copy of the Department's letter to the Tribunal.
29 The applicant's evidence explaining the delay is set out above. To recapitulate, the applicant believed that she would receive a letter from the Department advising her that, as a result of the data breach, any claim she might have because of the breach would be the subject of an ITOA. Although her evidence is fairly general, it appears she formed this belief as a result of discussions she had with other detainees who had also been the subject of the data breach. She said that other detainees who had been the subject of the data breach and whose cases had otherwise been finalised, had received such a letter by "around end of the 2014", and she believed that she would also receive such a letter. She did nothing in terms of an appeal from the date of the orders of the Federal Circuit Court in March 2015 and January 2016 because she believed she would be the subject of an ITOA. She said that she was not advised to the contrary. The first respondent did not apply to cross-examine the applicant.
30 The third consideration relates to the merits of the proposed appeal. An extension of time may be refused if the proposed appeal has no real or realistic prospects of success and that conclusion can be reached on the application for an extension of time. The proposed grounds of appeal are set out in the draft notice of appeal (see [20] above). The first respondent submitted that it is not necessary to consider this issue and the other considerations I will mention below because the delay is so substantial and the applicant's explanation for the delay so inadequate that the extension should be refused on these grounds alone (In Re Commonwealth of Australia and Another; Ex parte Marks (2000) 177 ALR 491; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tran v Minister for Immigration and Border Protection [2014] FCA 533). It is true that the delay is very substantial. It is also true that one may question the applicant's explanation for the delay in view of the fact that the Tribunal addressed the consequences of the data breach and the applicant's inactivity between March 2015 and January 2016. On the other hand, there is no evidence as to the reason there was no attempt to remove the applicant from Australia between late March 2015 and January 2016.
31 I have reached the conclusion that the proposed grounds of appeal have no real or realistic prospects of success, and I base my decision on that as the decisive consideration rather than the delay and the explanation for the delay alone. Before explaining my reasons for reaching that conclusion, I will briefly address the other considerations.
32 The fourth consideration is the prejudice that the applicant will suffer if an extension of time is not granted. Leaving aside any consideration of the merits of the proposed appeal, the prejudice to the applicant if an extension of time is not granted is substantial. She will not be able to pursue an appeal and she will be removed from Australia.
33 The fifth consideration is the prejudice to the first respondent if an extension of time is granted. Again, leaving aside the merits of the proposed appeal, although it may be said that there appears to be little prejudice to the first respondent if an extension of time is granted, there is an important public interest in adherence to time limits and the final disposition of matters in an orderly and expeditious fashion.
34 I return to the merits of the proposed appeal. As framed, there is no merit in the first ground of the proposed appeal. Indeed, it is difficult to understand the point being made in the first ground of appeal. The matter before me is an extension of time within which to appeal from orders made by the Federal Circuit Court. I am not considering whether, absent an appeal, the applicant should be permitted to remain in Australia whilst the data breach is investigated by the "proper" authority. It was the applicant who raised the issue of the data breach before the Tribunal and advanced it in support of her claims. Furthermore, the Tribunal's consideration of the topic made no difference to the result. In other words, notionally excluding it does not alter the result. Leaving these points to one side, the argument has no merit in any event. The Tribunal hears an application for review de novo and is required to make the correct and preferable decision. The effect of the data breach was relevant to the issues before the Tribunal and it was appropriate for the Tribunal to consider it.
35 The applicant recognised the difficulties with the terms of the first ground of the proposed appeal as framed and she refashioned it during her submissions. She claimed, as I understood it, that the Tribunal did not have sufficient information about the data breach and, therefore, did not properly consider its effect. I do not think that there is any merit in this argument. It appears that the Tribunal had the Department's letter of 12 March 2014, but even if it did not, the approach of the Tribunal to the data breach proceeded on the basis of the material part of the information which the letter states was disclosed.
36 The applicant was not represented before this Court and for that reason I have considered whether she can complain of the Tribunal's approach to the effect of the data breach on more general grounds.
37 The Tribunal considered whether the applicant faced serious harm on being returned to China by reason of her membership of a particular social group such as failed asylum seekers or persons unlawfully in Australia. That is the information which might have come to the attention of the Chinese authorities as a result of the data breach, although the Tribunal considered that certain information would come to the attention of the Chinese authorities in any event. I do not need to address that latter matter. The Tribunal had regard to country information about the attitude of the Chinese authorities to nationals who make refugee applications in Australia or other countries. It attached its summary of that information to its reasons as "Attachment B". It reached the conclusion that, although the applicant will be questioned and interviewed after her return to her country as a failed asylum seeker from Australia, it did not think the fact that the applicant lodged an application for a Protection visa or was unlawfully in Australia, gave rise to a real chance that the applicant faced a serious risk of harm on return to China by reason of her membership of a particular social group such as failed asylum seekers or persons who had been unlawfully in Australia. I do not think that there is a jurisdictional error in that conclusion or the reasoning which led to it.
38 The second ground of appeal in the draft notice of appeal is that the present matter is affected by applications for special leave before the High Court and should be adjourned pending the finalisation of those applications. This is not a proper ground of appeal because it does not identify an error allegedly made by the Federal Circuit Court. Nevertheless, I have considered the decision of the Full Court of this Court in SZSSJ and the amended application for special leave. The matters there raised relate to non-statutory processes being conducted by officers of the Department, and I do not think they bear on the matters before me (see ABC15 at [29] per Robertson J). I do not think that there is any merit on the second ground of the proposed appeal.
39 During the hearing, the applicant applied to tender documents which she submitted were relevant. Those documents related to two unrelated applicants for a Protection visa. In each case I was given a Tribunal decision and a letter from the Department after the Tribunal decision advising the applicant that he or she would be the subject of an ITOA because of the data breach. In each case it appears that the Tribunal had given some consideration to the consequences of the data breach. The applicant suggested that she was not being treated as others were being treated. She suggested that it could not be said that she was not the subject of an ITOA because the Tribunal had addressed the issue of the effect of the data breach. I should add that other than the fact that the Tribunal addressed the issue in the way in which it did, and the fact that the applicant has not been made the subject of an ITOA, I have no evidence of the decisions made in the applicant's case.
40 I will receive the documents because, although not directly linked by evidence, they are potentially relevant to the explanation for the delay in this case. However, I cannot see that they are relevant beyond that. The question for me is whether the grounds of the proposed appeal have any real or realistic prospects of success. That in turn raises an issue, and only raises an issue, as to whether the Federal Circuit Court judge erred in failing to conclude that the Tribunal committed a jurisdictional error. I do not think that there is any real or realistic prospect of successfully contending that he did.
41 The applicant's real complaint is that she should be or should have been the subject of an ITOA. She complains that she has been treated less favourably than other detainees in a similar position to her. She claims that she should have an ITOA which is made in light of further information as to the circumstances of the data breach. These matters appear to have been and to be the subject of the application before Justice Barker. Since writing these reasons in draft, I have had the advantage of reading his Honour's reasons in relation to the applicant's interlocutory application for an injunction (DZAEH v Minister for Immigration and Border Protection [2016] FCA 54).
42 The difficulty for the applicant is that I do not think any of these matters bear on the question of whether the Tribunal committed a jurisdictional error. The Tribunal considered the claims the applicant raised before it and it proceeded on the basis that the applicant's details could have become known to Chinese authorities. The Tribunal's reasoning thereafter did not involve jurisdictional error.