SZWAJ v Minister for Immigration and Border Protection

Summary of background facts 5 The appellant is an Indian national, who arrived in Australia in December 2007 on a student dependent visa. After her bridging visa expired on 30 August 2013, she was detained on 18 January 2014 under s 189 of the Migration Act. Significantly, as at the date of the Data Breach, the appellant had not lodged an application for a protection visa (or, indeed, for any other visa). 6 On 12 March 2014, the Secretary of the Department wrote a pro forma letter to the appellant and to other detainees who were affected by the Data Breach. After expressing deep regret for the incident and outlining the broad nature of the breach, the recipients of the pro forma letter, including the appellant, were informed that the Department would assess any implications for the individual recipient personally as part of "the Department's normal processes" and that the recipient could "raise any concerns you have during those processes". 7 On 19 June 2014, the appellant received another letter from the Department. She was invited to put in writing any concerns she had about the effect of the Data Breach on her personally, including any specific concerns about the effect of the incident on her safe return to India. 8 By an email dated 27 June 2014, the appellant's migration agent responded to the 19 June 2014 letter and set out the appellant's concerns about the Data Breach and her ability to return to India. The email advised the Department that the migration agent had submitted a protection visa application for the appellant. That was incorrect. Such an application was not made until 1 July 2014. 9 The protection visa application was refused by the Minister's delegate on 11 August 2014. The delegate did not accept the claim that the appellant would be of interest to Indian authorities as a result of the Data Breach, nor that members of her husband's family or the community in her home district would be aware of the Data Breach and harm her because of it. 10 The delegate's decision was affirmed by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal) on 17 October 2014. The Tribunal made reference to the migration agent's email dated 27 June 2014 but it did not accept that the appellant faced any real chance of serious harm or a real risk of significant harm resulting from the Data Breach. The Tribunal made reference to the appellant's claim made at the Tribunal hearing that, because of the Data Breach, she could not apply to go to 25 countries and that people in India might treat her differently as a result of having been in detention. The Tribunal noted that it put to the appellant that her evidence did not indicate that she would suffer serious or significant harm as a result of the Data Breach and that she responded by saying that she understood and did not wish to say anything further. 11 The appellant did not seek judicial review of the Tribunal's decision. 12 On 20 January 2015, the appellant was notified by the Department that she was liable for removal from Australia under s 198(5) of the Migration Act and that this could occur on 27 January 2015. The appellant promptly commenced proceedings in the FCCA. Her application for interlocutory relief was heard and determined by the primary judge on 23 January 2015. His Honour concluded that there was no reasonably arguable case for relief and the interlocutory application was dismissed. In particular, although the primary judge accepted that there was a reasonably arguable case that the Department had made a representation to the appellant, his Honour concluded that there was no arguable case that the Department undertook to do anything more than give the appellant an opportunity to make submissions about the consequences to her of the Data Breach. His Honour found that there was no reasonably arguable case that the Department did not provide the appellant with that opportunity. Indeed, he found that the appellant had taken advantage of the opportunity by raising the matters that were of concern to her through her migration agent in the email dated 27 June 2014 and by the evidence she gave at the Tribunal hearing. 13 On the same day, the appellant commenced proceedings in this Court. Later that day, Greenwood J granted the appellant leave to appeal on the question of interlocutory relief and also granted an interlocutory injunction pending the hearing and determination of the appeal (see SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26).

The appeal to this Court 14 The following three grounds of appeal are raised in the notice of appeal: 1. That His Honour erred in finding that the Application did not raise a reasonably arguable case in circumstances where an earlier decision of the Federal Circuit Court summarily dismissing the same grounds has been reversed on appeal: SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143; and SZTXY v Minister for Immigration and Border Protection [2014] FCAFC 142. 2. His Honour erred by finding that there was no arguable case that the representation made by the Second Respondent on 12 March 2014 involved a commitment by the Secretary to initiate a Departmental process for ascertaining the impact on the applicant individually of the release of her personal information by the Department and that the commitment went no further than allowing the appellant to raise those issues in any other process already open to her. 3. His Honour erred in refusing to grant an interlocutory injunction restraining respondents [sic] from removing the applicant from Australia pending the resolution of the substantive proceedings before the Federal Circuit Court. 15 The appellant did not seek to amend these grounds of appeal notwithstanding that they predated SZSSJ High Court. 16 The Minister obtained leave to file and rely upon out of time a notice of contention. The notice is to the effect that the appellant's case for an interlocutory injunction was not reasonably arguable in circumstances where an injunction against removal under s 198 of the Migration Act would not lie to require compliance with the declarations sought by the appellant in the FCCA, as a result of s 197C of the Migration Act. 17 In support of her appeal, the appellant filed a written outline of submissions dated 20 September 2016. It was submitted that her case was based on the same matters which were the subject of SZSSJ Full Court and she relied on the finding there that procedural fairness had been denied. It was acknowledged that the Full Court's decision was delivered after the FCCA's rejection of the appellant's application for an interlocutory injunction and that SZSSJ Full Court had subsequently been overturned in part in SZSSJ High Court. Emphasis was placed on the fact that the High Court rejected the Minister's claim that the FCCA lacked jurisdiction to determine a claim of procedural unfairness, as well as the Minister's submission that s 197C of the Migration Act rendered the FCCA proceeding futile. 18 The appellant submitted that the High Court's decision was not contrary to her appeal here because the High Court had upheld the Minister's appeals on the ground that, in the particular circumstances, there was no procedural unfairness. It was emphasised that those findings turned "entirely" on the nature of the ITOA process and that the appellant had not been invited to participate in any such process despite what she described as "the 12 March 2014 representation". It was submitted that the appellant had an arguable case of procedural unfairness because, unlike the aggrieved parties in the SZSSJ Full Court and SZSSJ High Court appeals, she had not had the opportunity to participate in the ITOA process. 19 In oral address, the appellant's counsel submitted that the primary judge erred in not reading the references in both the 12 March 2014 and 19 June 2014 letters to the Department's "normal processes" as references to consideration of the appellant's case under ss 48B, 198A or 417 of the Migration Act, being the dispensing powers of the Minister, which brought the case under the umbrella of SZSSJ High Court. 20 It is unnecessary to summarise the submissions which were made on the Minister's behalf in the appeal. They are substantially reflected in the next section which explains why the appeal must be dismissed.

Determination of the appeal 21 The appellant's case, as presented, was predicated on an assumption that the "normal processes" described in the 12 March 2014 letter were the same in her circumstances as was the case in the SZSSJ and SZTZI litigation in both the Full Court and the High Court. A similar assumption underlay her reliance on another Full Court decision in SZTXY v Minister for Immigration and Border Protection [2014] FCAFC 142 (SZTXY). As the Minister emphasised, these assumptions are incorrect. 22 In SZSSJ Full Court, when the pro forma 12 March 2014 letter was received, SZSSJ had had his protection visa application refused and he had exhausted all possibilities of merits and judicial review in respect of that decision. The only prospect he had of remaining lawfully in Australia was if the Minister exercised one of his non-compellable powers under ss 48B, 195A or 417 of the Migration Act. 23 In the case of SZTZI, her visitor's visa had expired and she was taken into immigration detention in September 2013. In October 2013 she applied for a protection visa. That application was refused in November 2013 by the Minister's delegate, which decision was then affirmed by the Tribunal in January 2014. Like SZSSJ, SZTZI was in immigration detention at the time of the Data Breach and was subsequently told that an ITOA was being conducted in relation to her case. She was invited to make submissions in that process. 24 I accept the Minister's central submission that, at the time of the Data Breach, the appellant was in a very different and earlier stage in the consideration of any non-refoulement obligation Australia owed to her. In contrast with the position in the other proceedings, there was no evidence that the Minister had commenced considering the exercise of his dispensing powers under any of the non-compellable powers identified above. Significantly, apart from the two letters dated 12 March 2014 and 19 June 2014 which did not in terms refer to those powers, there was no evidence before the primary judge which indicated that the Minister had made "a personal procedural decision" to consider whether or not to exercise any of those dispensing powers (see SZSSJ High Court at [83]). That is to be contrasted with the evidence which supported the finding in SZSSJ Full Court at [75] relating to the commencement of the ITOA process. 25 I accept the Minister's submission that the findings as to the lack of procedural unfairness in SZSSJ High Court were all directed to the ITOA process in circumstances where a factual finding had been made by the Full Court, which was not challenged on appeal, to the effect that consideration of the exercise of those dispensing powers had commenced. 26 It is critical to note that, in the proceeding here, the Data Breach occurred prior to the appellant applying for a protection visa. The processes which then ensued before both the Minister's delegate and the Tribunal provided the appellant with an opportunity to say whatever she wished to say concerning the implications of the Data Breach for her entitlement to protection. Subject to relevant provisions in the Migration Act the statutory processes of considering and determining her application for a protection visa, both by the delegate and on review by the Tribunal, attracted procedural fairness obligations. The appellant did not point to any aspect of those processes which involved procedural unfairness to her. Nor is her case strengthened by her reliance on SZSSJ High Court because of the findings made there concerning the different process which had commenced in respect of the aggrieved persons in those proceedings. 27 The significance of the fact that a person affected by the Data Breach has had an opportunity to make submissions and adduce evidence as to its significance to the particular person through the processes for considering and determining a visa application is highlighted in other decisions of this Court in SZVEY v Minister for Immigration and Border Protection [2015] FCA 394 at [14] per Bennett J and DZAEH v Minister for Immigration and Border Protection [2016] FCA 54 at [31]-[33] per Barker J, both of which support the approach taken by the primary judge here. 28 For completeness, it should also be stated that, given the appellant's circumstances, the only potentially relevant dispensing power in relation to her was that contained in s 195A of the Migration Act. In any event, for the reasons given above, no appealable error has been established in respect of the primary judge's findings on this matter. 29 The appellant's reliance upon SZTXY in support of ground 1 is also misdirected. In upholding that appeal, the Full Court made no reference to any representation made in the same pro forma letter. Rather, the appeal was upheld on the basis that the FCCA had not considered s 198 of the Migration Act because the Minister raised the relevance of that provision for the first time at the appeal level. The decision does not assist the appellant here. 30 Ground 2 of the notice of appeal claims that the primary judge erred in finding that there was no arguable case that the 12 March 2014 letter involved a commitment by the Secretary to initiate a Departmental process to ascertain the effect on the appellant individually of the Data Breach and that this commitment went no further than permitting the appellant to raise those issues in any other process already open to her. 31 There are several reasons why this ground must also be rejected. First, the primary judge did not find that there was no arguable case that the Department would assess the impact of the Data Breach on the appellant as an individual. Rather his Honour found at [25] that there was no arguable case that the Department would "undertake anything more than giving the applicant an opportunity to make submissions about the consequences to her" of the Data Breach (emphasis added). In circumstances where that particular opportunity had been given to the appellant, and which she took advantage of, there was no reasonably arguable case that the appellant had been denied procedural fairness so as to warrant the grant of an interlocutory injunction to prevent her removal. 32 Secondly, as the Minister pointed out, there was no evidence below to support any claim that the Department's "normal processes" as they applied to the appellant involved something other than, for example, the processes associated with the making of a valid application in Australia for a visa, including a protection visa. In the appellant's case, for her to remain lawfully in Australia she had to obtain a visa. It was only after receipt of the 12 March 2014 letter that the appellant applied for a protection visa and, in the context of the process relating to the consideration and determination of that application (together with the subsequent review by the Tribunal under Pt 7 of the Migration Act), the appellant had the opportunity to make submissions and adduce evidence as to the effect of the Data Breach on her claims for protection. The former process is appropriately regarded as a "normal process" of the Department and the appellant availed herself of the opportunity presented by it. She also availed herself of the opportunity to have the Tribunal review the delegate's decision. In the particular circumstances appertaining to the appellant, the primary judge did not err in finding that the appellant's case in this respect was not reasonably arguable. Different considerations could arise in respect of other detainees who were affected by the Data Breach, as is demonstrated by the proceedings relating to SZSSJ and SZTZI and the relevance to them of the ITOA process, which is another "normal process" of the Department for a person in their particular circumstances. It is possible that the particular circumstances of other persons who are affected by the Data Breach may well be different from those here or in those other cases. Accordingly, it will be important to pay close attention to the relevant circumstances in any particular case. 33 For completeness, it might be noted that senior counsel for the respondents acknowledged that there is evidently a factual error in SZSSJ High Court at [3] and [4] where it is suggested that the Data Breach affected only applicants for a protection visa. The Data Breach involved the disclosure of information of 9,258 persons who were in immigration detention, including but not limited to persons who were applicants for protection visas. This point is demonstrated by the appellant's own circumstances because the Data Breach affected her as a person who was in immigration detention even though, at that time, she was not an applicant for a protection visa. 34 On its face, ground 3 of the notice of appeal adds nothing to the earlier two grounds. It is singularly uninformative and nothing was said on the appellant's behalf in either written or oral submissions which gave it meaningful content. It too is rejected.

Conclusion 35 For these reasons, the appeal should be dismissed. In these circumstances, it is unnecessary to determine the notice of contention, which raises some complex and important issues concerning the meaning and operation of s 197C of the Migration Act. Those issues are better considered in a proceeding which requires their consideration and resolution and with the advantage of detailed submissions from all parties and not merely the Minister. 36 The appellant should pay the respondents' costs of the appeal and of the proceedings before Greenwood J. The interlocutory injunction granted by his Honour on 23 January 2015 is discharged. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.