SZRIF v Minister for Immigration and Border Protection

SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Second Respondent

JUDGE: BROMWICH J DATE OF ORDER: 29 September 2017

1. The appeal be dismissed.
2. The first appellant pay the respondents' costs of and incidental to the appeal as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 31 March 2017. His Honour dismissed with costs an application for judicial review of a decision of an officer of the Department of Immigration and Border Protection made on 2 September 2015. The officer conducted an International Treaties Obligations Assessment (ITOA) in respect of the first appellant and reached an adverse conclusion as to those obligations being engaged. For convenience, the officer will be referred to as the assessor. The first respondent is the Minister for Immigration and Border Protection and the second respondent is the Secretary of the Department of Immigration and Border Protection. 2 The second and third appellants are the first appellant's wife and infant child, who are affected by the assessor's decision. That is the full extent of their practical involvement in the Court below and in the appeal to this Court, although submissions were made on behalf of all three appellants. For convenience and ease of reference, the first appellant will therefore be referred to in these reasons as the appellant. 3 The ITOA process which is central to this appeal was summarised in a judgment delivered at the same time as these reasons in APH15 v Minister for Immigration and Border Protection [2017] FCA 1160. It is convenient to reproduce that summary as follows: The ITOA process 3 The ITOA was conducted in order to assess whether the circumstances of the appellant engaged Australia's non-refoulement obligations (that is, the obligation not to forcibly return, deport or expel a person to a place where that person would be at risk of a specific type of harm) under three international treaties to which Australia is a signatory, namely: (1) the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, in force from 22 April 1954 and 4 October 1967 respectively (Refugees Convention); (2) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in force from 26 June 1987 (Convention against Torture); and (3) the International Covenant on Civil and Political Rights, in force from 23 March 1976, including its Second Optional Protocol aimed at the abolition of the death penalty, in force from 11 July 1991 (ICCPR). 4 The obligation is engaged if the level of risk referred to meets any of the following treaty-specified thresholds: (1) that there is a risk that the life or freedom of a person would be threatened, if expelled or returned, on account of one of the five convention reasons of race, religion, nationality, membership of a particular social group or political opinion under Article 33(1) of the Refugees Convention; (2) that there are substantial grounds for believing that the person would be in danger of being subjected to torture, under Article 3 of the Convention against Torture, as torture is defined in Article 1(1); or (3) it is necessary that a person not be refouled to protect that person's right to life, or to prevent that person from being subjected to torture or to cruel, inhuman or degrading treatment or punishment, under Article 6(1) or Article 7 respectively of the ICCPR. 5 The need for the assessment arose from the illegal, but inadvertent, publication on the Department's website of information that disclosed the identities of 9,258 applicants for protection visas pursuant to the Refugees Convention, including the appellant, all of whom were in immigration detention at the time (Data Breach). The Data Breach took place over 14 days between 10 and 24 February 2014. Questions of what happened, why and how, including the process which was adopted by the Department to address the impact on those affected, were considered in some detail by the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 333 ALR 653. 6 What is most important for present purposes is that the ITOA process effectively approved of by the High Court: (1) as described in SZSSJ at [90], entailed a letter being sent by the then Secretary of the Department to all affected persons - such a letter was sent to the appellant on 12 March 2014 - notifying affected persons of the Data Breach, expressing regret, stating that the Department would assess any personal implications arising as part of its normal processes, and, as to the contents of the personal information involved and able to be accessed, confirming that: (a) the scope of this information was limited to the name, date of birth, nationality, gender, details about detention (when and where the person was in detention, and the reason for that person's detention) and whether other family members were in detention (none in the case of the appellant); and (b) the information did not include any current or former address, phone numbers, other contact information, health information or any information about protection claims made; (2) operates upon the assumption required by the respondents to be made by each assessor that the personal information published on the Department's website as a result of the Data Breach has been accessed by "all of the persons or entities" from whom each detainee being assessed asserted a fear of "persecution or other relevant harm": SZSSJ at [91]; (3) entails, by reason of that assumption, no obligation on the respondents or their officials to make any further disclosure of the extent of the actual access known to have taken place: SZSSJ at [90]; (4) is required to be conducted in a way that affords each person being assessed procedural fairness: SZSSJ at [91]; and (5) does not give rise to any issue of conflict of interest where the ITOA is carried out by an officer of the Department: SZSSJ at [84]. 7 It follows that the live issue in any judicial review challenge to an ITOA is likely to concern an asserted denial of procedural fairness. It may also extend to reasons why the process described and effectively approved in SZSSJ was not followed, such that the reasoning of the High Court is inapplicable for some reason or otherwise does not limit the challenge being advanced. It is always possible that some aspect of the case advanced in support of a positive ITOA outcome will be overlooked or not considered as required. However, as a practical matter, the ambit of challenge is always likely to be quite limited, given the confined scope of the process. That is particularly so if the non-refoulement claims made have already been unsuccessful and there has been no material change in circumstances.

Prior protection visa claims 4 The appellant and his wife arrived in Australia on 27 January 1999, each having valid three-month tourist visas that were issued on 16 January 1999 and were therefore valid until 27 April 1999. Both the appellant and his wife remained in Australia well past the expiry of those visas. On 5 July 2008, their son was born. On 2 August 2011, the appellant lodged a valid protection visa application, including his wife and son as dependents. All three were granted bridging visas. 5 The protection visa application was refused by a delegate of the Minister on 25 October 2011. On 9 March 2012, the then Refugee Review Tribunal (now Administrative Appeals Tribunal) affirmed the delegate's decision. A judicial review challenge to the then Federal Magistrate's Court (now Federal Circuit Court of Australia) was unsuccessful, being dismissed on 16 November 2012. On 14 December 2012, the bridging visas ceased. 6 On 3 July 2013, in another case, the Federal Magistrate's Court found that s 48A of the Migration Act 1958 (Cth) did not preclude a person from making another protection visa application on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012: SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215. The appellant fell into that category of being an unsuccessful protection visa applicant who sought to make another protection visa application on complementary protection grounds. 7 On 26 November 2013, the appellant was detained under s 189 of the Migration Act and placed in immigration detention. On 28 November 2013, the appellant lodged a valid application for a protection visa, relying upon the ruling in SZGIZ. The appellant's wife and child were not detained, and on 28 November 2013 they were granted bridging visas. The appellant's application for a bridging visa was refused and multiple attempts to overturn that decision by way of merits review applications to the Migration Review Tribunal were unsuccessful. The appellant has since been released from immigration detention and is living in the community. 8 The appellant's second protection visa application was refused by a delegate of the Minister on 12 June 2014. On 30 July 2014, the delegate's decision was affirmed by the Refugee Review Tribunal. The Data Breach took place between the appellant being detained and his second protection visa application being refused. As detailed below, the ITOA process commenced and concluded after that second visa refusal was affirmed by the Tribunal. A judicial review challenge to the Tribunal's decision failed in the Federal Circuit Court: SZRIF v Minister for Immigration and Border Protection [2015] FCCA 493. An appeal to this court also failed before Rares J: SZRIF v Minister for Immigration and Border Protection [2015] FCA 680.

Before the assessor 9 On 20 January 2015, an officer of the Department wrote to the appellant inviting him to express any concerns regarding the impact of the Data Breach in his case. On 26 May 2015, another officer of the Department wrote to the appellant advising that the Department had that day commenced an ITOA, and noting that this had taken place because, on 20 May 2015, the appellant had appeared before this Court and indicated that he had claims arising from the Data Breach. The letter advised that any claims he may have in relation to the Data Breach would be considered through the ITOA process. The letter provided further information about the process and invited the appellant to provide any further information he deemed relevant to the process to the Department within 14 days. He was advised that he would not be removed from Australia until the Department had assessed his claims for protection in the ITOA process and he had been provided reasons for any decision reached. 10 On 9 June 2015, the appellant responded in writing to the Department's 26 May 2015 letter about the ITOA. In essence, the appellant complained in his letter about the Data Breach, including an assertion that it had been hidden from him. He asserted that he and his family were going to be persecuted if they were sent back to Malaysia, by reason of the Data Breach and the publication of Refugee Review Tribunal decision records and judgments arising from his prior court proceedings. 11 On 28 July 2015, the assessor sent a further letter to the appellant, as well as a copy to his solicitors, enclosing information said to be relevant to the ITOA and inviting comment. The attachment addressed in some detail the claim made by the appellant that the Data Breach had been hidden from him, and addressed the issue of the risk of persecution the appellant faced were he to be returned to Malaysia as a consequence of the Data Breach and the publication of the Tribunal and court decisions. 12 On 5 August 2015, a letter from the appellant and his wife dated 4 August 2015 was faxed to the assessor. That letter asserted a need to be provided with more information about how the data involved in the Data Breach could have been accessed, and made other assertions of the kind that cannot be sustained following the High Court's subsequent decision in SZSSJ. Nothing was furnished that addressed Australia's non-refoulement obligations under any of the three treaties. 13 On 2 September 2015, the assessor found that the appellant was not a person in respect of whom Australia had non-refoulement obligations. That assessment was agreed with by the assessor's manager on the same day. That finding was also communicated to the appellant on the same day by a letter that enclosed the assessor's reasons. In short, that conclusion was reached because of an absence of anything to indicate that the appellant was at risk of any of the threshold outcomes provided for by the treaties. Reliance was placed on country information in support of that conclusion.

Before the primary judge 14 The appellant commenced proceedings in the Federal Circuit Court by way of an application for an order that the respondents show cause as to why a constitutional writ should not issue based on the Data Breach. The only ground pressed at the hearing before the primary judge was that the ITOA was unlawful due to a denial of procedural fairness. It was also asserted that Australia owed protection obligations to the appellants. The existence of such obligations was a matter to be determined on the merits in the event of the assessment being set aside and remitted for a fresh ITOA process. 15 The primary judge rejected an argument that SZSSJ could be distinguished upon the basis asserted. The asserted difference was that in the two cases under consideration in SZSSJ, the Data Breach occurred after the Tribunal proceedings had been concluded, whereas that was not the situation in this case. His Honour noted that it was not apparent to him that the Tribunal was even aware that the appellants were affected by the Data Breach. His Honour also relied upon reasons given by Rares J for dismissing an appeal to this Court from unsuccessful judicial review proceedings brought by the appellant in relation to his second unsuccessful protection visa application. 16 The primary judge held that the application before him had to fail for the same reasons given by the High Court in SZSSJ. That was because the appellants had provided no particulars of the asserted breach of procedural fairness and no breach was apparent to his Honour. The claim of a Departmental conflict of interest in conducting the ITOA failed for the reasons given by the High Court in SZSSJ at [84]. 17 One further point worth noting is that, over objection, the primary judge permitted the appellant to be assisted by what was described as a McKenzie friend, including, somewhat unusually, by way of addressing his Honour by way of oral submissions. His Honour's reason for doing so was that this person had prepared the appellant's amended application in that Court, had prepared written submissions, and was thus best placed to make oral submissions in relation to those documents. The same process was sought to be availed of in this Court, although it was watered down ultimately to seeking a more traditional McKenzie friend arrangement, being one that excluded advocacy. The determination of that issue is addressed below.

The grounds of appeal 18 The notice of appeal dated 20 April 2017 and electronically filed on 21 April 2017 contains the following grounds, adjusted for grammar and spelling, asserting that the primary judge erred by: (1) failing to distinguish between his case and SZSSJ; (2) failing to find that he had not been afforded procedural fairness; and (3) failing to consider "many vital integers" of his case. 19 No particulars were provided in the notice of appeal or subsequently. That is perhaps not surprising given that, as noted below, this case was indistinguishable from SZSSJ on any relevant point, there was no apparent denial of procedural fairness and no other "integers" of the appellant's case are apparent, let alone "vital integers".

McKenzie friend issue 20 Soon after the matter was called on for the hearing of the appeal, the appellant arrived in court. He asked that the commencement of the hearing of the appeal be further delayed by a short time until a "friend" of his arrived to assist him, as had happened before the primary judge. A short time later, the appellant's purported "friend" arrived in court. I ascertained from both the appellant and the purported friend that the latter was not a migration agent, was not a lawyer and had no training in migration law. It was also apparent that nothing else would be of assistance to the appellant, given the very limited scope for these appeal proceedings in respect of showing relevant error, including any denial of procedural fairness, even though that is a not a formal requirement of a McKenzie friend: McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034. The effect of that decision was summarised succinctly by Edelman J in Nepal v Minister for Immigration and Border Protection [2015] FCA 366; 327 ALR 89 at [14] as follows: The label 'McKenzie friend' comes from the decision of the Court of Appeal in England in McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472, although the principle is much older. At first instance, in McKenzie v McKenzie, Lloyd-Jones J had refused to allow an Australian barrister to assist a party in family law proceedings by sitting at the bar table and prompting the party. The Court of Appeal quoted from Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292 that "[a]ny person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice." Sachs LJ explained that litigants "should be seen to have all available aid on conducting cases in court surroundings, which must of their nature to them seem both difficult and strange": McKenzie v McKenzie [1970] 3 WLR 472, 479. 21 To be of any assistance at all in this appeal, the putative McKenzie friend would need to be able to speak directly to the Court and be able to advance coherent arguments in aid of the appellant's case. It was not a case in which sitting with the appellant and even speaking with him could have achieved anything useful. Counsel for the respondents opposed the Court permitting the purported friend to act as a McKenzie friend upon the basis that it was not apparent that he could add anything useful to the process. I considered that submission to be sound to the point of being unassailable. Upon that basis, I declined to permit that to occur. The circumstances were quite unlike McKenzie v McKenzie itself, or any other case I have examined in which the McKenzie friend process has been deployed. 22 I am fortified in the conclusion I reached by the observations of Mortimer J in Dauguet v Centrelink [2015] FCA 395, in which her Honour considered whether a McKenzie friend should be permitted to take the additional step of addressing a court as a kind of advocate, as follows: 115 The limited privileges given to a "McKenzie friend" also recognise the need for an individual to conduct her or his own litigation, and to be personally and legally responsible for it. That is why a McKenzie friend generally cannot speak in court. The term "McKenzie friend" arose from the decision of the UK Court of Appeal in McKenzie v McKenzie [1971] P 33. In that case, Davies LJ cited with approval (at 38) the following dictum by Lord Tenterden CJ in Collier v Hicks (1831) 2 B. & Ad. 663 at 669: Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices. (Emphasis added.) 116 Superior courts in particular continue to be wary of permitting one person to act as advocate for another, relying substantially on the professional duties owed by lawyers to their clients, to their opponents and to the court, all of those duties contributing to the administration of justice according to law: see for example Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 at [74]-[83] per Stein JA, Mason P and Sheller JA agreeing; Cristovao v Registrar Caporale [2012] FCA 1329 at [28]-[29] per Murphy J. Although there may be a discretion, perhaps appropriately seen as implied from the Court's function in s 23 of the Federal Court of Australia Act, to permit a person who is acting as a McKenzie friend to make submissions, the circumstances would in my respectful opinion need to involve something such as an otherwise incurable denial of procedural fairness for such a step to be taken. 117 When the rare step is taken of exercising discretion to permit a "McKenzie friend" or another support person to speak on behalf of a party, it may be important to only allow the making of oral submissions in support of a party "in circumstances in which the judge can observe the demeanour, response, and comprehension of the party": see Nepal v Minister for Immigration and Border Protection [2015] FCA 366 per Edelman J at [17]. These sorts of restrictions recognize the need for great caution in such circumstances. Although Edelman J did foreshadow allowing a person who lived with the applicant before his Honour to make oral submissions on the applicant's behalf, the circumstances of that case had added complexity. Provisions in the Migration Act 1958 (Cth) might be said to have allowed that course to occur, and the person had previously been allowed to speak on behalf of the applicant, having, Edelman J noted (at [2]), "a strong command of English" and "an understanding of law and legal principle although he is not a lawyer." In any event, Edelman J foreshadowed permission to make oral submissions, not to conduct the entire proceeding: there was no suggestion the applicant would be relieved entirely from conducting the proceeding himself. Nor was the person joined as a party. 23 In this case, refusing to permit the assistance of a McKenzie friend could not result in any denial of procedural fairness or any other injustice. That is especially so when the purported friend was apparently responsible for the notice of appeal that suffers from the defect identified below of disclosing no error at all on the part of the primary judge. Further, whilst supposedly helping the appellant, he had not apparently done anything to assist in the provision of written submissions. 24 While the purported friend denied, from the bar table, receiving any remuneration for his prior assistance (which would likely be illegal), a position also asserted by the appellant, I have grave concerns as to whether those assertions were true. It was not appropriate to seek or encourage sworn evidence to that effect as it may constitute a form of judicial entrapment to perjury and, in any event, no suggestion was made of giving such evidence. 25 Unless there is some basis to suggest that a McKenzie friend could provide any degree of meaningful assistance to a litigant or to the Court, or both - neither was possible in this case - the risk is that allowing that to occur in cases such as this is likely to encourage behaviour that may give false hope of success to persons who desperately wish to succeed in their case. It also facilitates behaviour that is unconstrained by the ethical obligations imposed on lawyers. False hope does not assist litigants. It merely prolongs the process to their ultimate detriment, including by the imposition of adverse costs orders. It does not advance the objectives standing behind the decision in McKenzie v McKenzie.

Submissions for the appellant 26 No submissions were made by or on behalf of the appellant either orally or in writing. By reason of what follows, it is difficult to see what scope there was for any useful submissions to be made at all. Repeated opportunities were given to the appellant to make any comment in support of his appeal, but it was clear that the appellant had nothing to say. It would seem that the real substance of his appeal, and indeed of the proceedings in the Court below, did not rise higher than wanting a different outcome. While that is understandable given what is otherwise likely to happen by way of the appellant's removal from Australia, that is not the purpose of judicial review proceedings or appeals in such proceedings.

Submissions for the Minister 27 Counsel for the respondents did not seek to add to her written submissions. Nothing more was sought as those written submissions, while concise, were comprehensive. They outline the history of the ITOA process, including the background leading up to it, the hearing below and the decision of the primary judge. They also include the following paragraphs of the Minister's written submissions as to the ground of appeal in this Court (which I read out to the appellant via the interpreter as his comments were ambiguous as to whether he had only received the respondents' written submissions but had not read them, or had read them but not understood them): 23. Grounds 1 and 2 of the notice of appeal simply assert error by the primary judge for failing to find a breach of procedural fairness by not distinguishing the appellants' matter from that of respondent SZTZI in the High Court judgment in SZSSJ. 24. No particulars of the grounds of appeal are set out and nor have any submissions been filed on behalf of the appellants to otherwise explain the asserted error by the primary judge or why the conclusion that the circumstances of the appellants' matter were relevantly the same as those of SZTZI and there was no reason to reach a different conclusion to that which the High Court had come in SZSSJ was in error. 25. The third ground in the notice of appeal asserts a failure by the primary judge to consider "many vital integers of my case". It is not clear what matters raised in the court below were not considered by the primary judge nor how any such matters could give rise to legal error by his Honour. It is submitted that no appellable error arises.

Consideration 28 I am unable to improve upon the comments and conclusions of the primary judge or the submissions for the respondents as to the grounds of appeal. The ITOA process in this case appears to have closely followed the procedure considered and approved by the High Court in SZSSJ. The appellant was given ample opportunity to comment for the purposes of that process, having been given a clear statement of the material being considered by the assessor. Despite this, no comment was provided by the appellant in aid of that process. It may be this was because there was nothing useful that could be said. It is difficult to see what more could have been done by way of affording procedural fairness. 29 There are no claims that were made by the appellant that were not considered by the respondents, leaving no scope for the assertion that "vital integers" were overlooked. 30 The case in the Court below was devoid of merit. So too was this appeal.

Conclusion 31 The appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.