SZWAJ v Minister for Immigration and Border Protection

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for an injunction pending appeal from a decision of the Federal Circuit Court of Australia refusing the grant of an injunction in the terms sought before that Court on the footing that the applicant for the interlocutory relief had failed to demonstrate a serious question to be tried or a prima facie case on the relevant matters, notwithstanding that there were serious issues in favour of the applicant on the balance of convenience. 2 The circumstances of the matter involve an application by an Indian national who is likely to be removed from Australia on 27 January 2015. 3 An application was made for leave to appeal from the decision of the Federal Circuit Court and that Court granted leave to appeal. However, a question has arisen about whether that order for leave is within the jurisdiction of that Court. To the extent that there is any ambiguity about that question, I grant leave to appeal from the Federal Circuit Court in relation to those matters and the present question then is whether an injunction should go pending the determination of the appeal. The matter has some notoriety about it in the general sense because, unfortunately, there was a reasonably significant data breach on the part of the Department in which information in relation to a number of individuals was unintentionally disclosed through the Department's website. 4 The Department has taken steps extensively to address that problem and on 12 March 2014 a letter was written to a number of people whose information had been disclosed. The information seemed to concern matters relating to the name, date of birth, nationality, gender and details about the detention of particular individuals. The disclosure affected the Indian national the subject of these proceedings. In the letter addressed to the Indian national applicant in these proceedings, like the letter sent to all such people, the Department made this observation in the second-last paragraph of its letter of 12 March 2014: 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. 5 A question arises about the proper construction to be attributed to that paragraph and what would fall properly within the phrase "as part of its normal processes". On one view of that phrase or that paragraph, the Department is suggesting to the individual addressee that the Department will assess the implications of the data disclosure as it affects the addressee individually as part of processes adopted by the Department to address that question, generally. The construction which is pressed by the solicitor for the Minister is that the phrase "as part of its normal processes" in context, both in terms of the paragraph and in the context of the particular facts affecting the applicant, are processes related to an application for a protection visa. In that application, the Indian national would seek to assert that she holds a well-founded fear of persecution for a convention reason on the footing that the data disclosures have contributed to that well-founded fear of persecution. 6 Within that claim, the merits of whether such a concern is a well-founded fear of persecution would be addressed and the implications and reach of the data disclosures as it affects that person individually would be addressed in that process. That process was invoked by the Indian national and the protection visa application, as I understand it, was dismissed and there was no review/appeal from that process. 7 There is also a process which is called an International Treaties Obligation Assessment ("ITOA") process. However, the submissions for the Minister are that the ITOA process is a process which has a particular methodology to it and it applies in circumstances where a statutory process has been invoked such as a refugee protection visa application, the application has been determined adversely to the applicant, circumstances have then emerged which have brought about changes to the circumstances confronting the individual such as data disclosures of this kind, and then, in the context of those changed circumstances, an ITOA process is invoked to determine whether, in fact, Australia owes protection obligations to that individual. 8 In the context of the present applicant's circumstances, the proposition is that the ITOA process has no proper application because the very question about the consequences or implication of the data disclosures is a matter which would have been dealt with in the normal processes applicable to that person when that person made a protection visa application and sought to demonstrate a well-founded fear of persecution or the holding of a well-founded fear of persecution, in part informed by the risk to the individual by reason of the data disclosures. In the course of the protection visa application, that question was addressed. 9 It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second-last paragraph of the Department's letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of the Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application. 10 It is not clear to me where the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application. 11 It seems to me that there may be merit in deciding that question and, in any event, it seems to me to be so properly identified as a triable question of construction. The principles to be applied in determining this matter for the purposes of considering the application for an injunction pending the appeal are not entirely dissimilar from those considerations which would apply in considering interlocutory relief generally. And, so, for that purpose, I apply the principles identified by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. 12 Although those matters are not considered in the context of an application for leave for an injunction pending an appeal, nevertheless, it seems to me that very similar principles apply, and I also have had regard to the Full Court's consideration of those principles in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238. So it follows from what I have said that I am satisfied that there is at least an arguable question and the balance of convenience is such that the consequences for the individual who seeks to ventilate these questions on appeal are highly prejudicial and irreparable if the individual is removed from Australia in the next few days with the result that the balance of convenience favours the applicant for the relief pending appeal. 13 Accordingly, I propose to grant the relief as sought. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.