WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be stood over for the making of final orders to 27 February 2020 at 12:45pm (AEDT). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 At the commencement of the hearing of this appeal, the appellant applied to rely on a further amended notice of appeal from the decision of the Federal Circuit Court refusing him Constitutional writ relief in respect of the decision of the Refugee Review Tribunal made on 31 July 2014 to affirm the Minister's delegate's decision not to grant him a protection visa: WZAUP v Minister for Immigration [2019] FCCA 2310. The appellant is represented today by a lawyer different to the lawyer who represented him before the trial judge. Background 2 This is a very unfortunate proceeding. First, the reasons of the trial judge on the sole ground of review argued before him were delayed by four and a quarter years. It is well known that the case load in the Perth Registry of the Federal Circuit Court during that period has been very considerable. Indeed, McKerracher J described that case load in WZASX v Minister for Immigration and Border Protection [2017] FCA 1415 at [32] as "extreme" as a result of the lack of judicial resourcing for that Court in Western Australia. 3 The only ground argued before the trial judge, with the benefit of prehearing written submissions and the appearance of counsel for both sides, was that the Tribunal had fallen into jurisdictional error because it had failed to make an audio recording of the hearing at which the appellant gave evidence and made submissions, due to the fact that the recording equipment appears not to have recorded or fully recorded the hearing. 4 That claim had to fail on the material in the submissions made to his Honour because of the decisions of this Court on this point that bound the Federal Circuit Court. In SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12] - [14] Flick J had held that a failure to provide a transcript or recording of the hearing did not go to the exercise of the Tribunal's jurisdiction so as to give rise to jurisdictional error if a recording was not or, for circumstances not within its control, could not be made. That decision had been followed by other judges of this Court, as the trial judge set out in his reasons: SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 at 550 [51] - [52] per Middleton J and SZMOO v Minister for Immigration and Citizenship [2009] FCA 211 at [39] per Reeves J. 5 In those circumstances, given the fact that the sole ground of review related to that issue, his Honour was bound, as a matter of precedent, by the decisions in this Court and, therefore, had no option but to find the facts and dismiss the application on the law that was before him. In light of the pressures on the Federal Circuit Court at the time it would have been appropriate for his Honour to have given reasons either ex tempore, at the conclusion of the argument, or very shortly afterwards, that simply reflected these essential and simple propositions of fact and law. Judges of the Federal Circuit Court are entitled to, and should, give ex tempore reasons when the facts and the law are clear, as they were in this case. Had his Honour done that, he would have avoided the burden of preparing, adding to the stress of having to write, yet another reserved judgment. The trial judge's reasons 6 In the course, in his reasons, when ultimately delivered, the trial judge revealed the birth date of the appellant. That fact had nothing whatever to do with his claims for protection, which in turn had nothing to do with his determination of the one legal issue raised by the failure of the recording equipment. 7 His Honour set out, at considerable length, a summary of the Tribunal's decision that canvassed all of the appellant's claims for protection that it considered. One of the issues before the Tribunal was the effect on the appellant's claims for asylum in Australia of what is known as the "data breach". Before the Tribunal and his Honour in the court book was a letter dated 12 March 2014 that the Secretary of the Department of Immigration and Border Protection wrote to the appellant, who was in immigration detention at the time. The letter informed him that some of his personal information may have been accessed when a report, that the Department had posted on its website, allowed anyone who accessed it to ascertain personal identifying information about him as a person in immigration detention as at 31 January 2014. 8 The appellant, who was a citizen of Egypt, gave the Tribunal a newspaper article from The Guardian dated 19 June 2014 headlined "File Containing Asylum Seekers' Data Downloaded in China, Russia and Egypt". The article said that the report the subject of the data breach had been accessed in, among other countries, Egypt. The Tribunal accepted that the data breach had occurred and that it had disclosed some of the appellant's personal information. It also accepted that that information might have been accessed in Egypt, and identified him as a person who had sought protection in Australia. But, it found that, on the material then before it, there was no evidence to suggest that any information in relation to the appellant's claims had been published or accessed by the Egyptian authorities or anyone else in Egypt. 9 Subsequently to his Honour reserving his decision in March 2015, the position clarified in relation to persons in the appellant's position affected by the data breach. In Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ discussed the position that the Minister and his Department had indicated to all persons (numbering over 9,000) affected by the data breach, who had received letters in the same terms as that addressed to the appellant dated 12 March 2014. That was that each would have his or her position individually assessed in an International Treaties Obligation Assessment, or ITOA, in respect of Australia's non-refoulement obligations with respect to each such person on the assumption identified by their Honours at 259 CLR at 209 [91], namely: Sensibly interpreted and applied in the context of making an assessment of whether the Data Breach engaged Australia's non-refoulement obligations with respect to them, the assumption was not simply that some of their personal information might have been accessed by some authorities. The assumption was rather that all of their personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm. (emphasis added) 10 A potential consequence of his Honour's revelation of the appellant's date of birth in his reasons is clear, namely, anyone who had access to the personal information, including the name and date of birth of persons in immigration detention on 31 January 2014, such as the appellant, could link that information to a date of birth unnecessarily included in reasons for judgment, such as those given by his Honour. 11 In recent years, since the advent of the internet, Courts ordinarily have become very cautious about including in reasons for judgment details of matter that may identify a person or enable others with malicious intent either to impersonate that person or be in a position to otherwise cause him or her harm or distress. Therefore, most Courts have adopted a practice of not including in reasons for judgment published on the internet or in open Court material such as a person's full name, date of birth or actual address. That is because, first, that information is, in ordinary circumstances, not necessary, relevant or material to the determination of the proceeding, secondly, it could be used by third parties to the detriment of those persons or the administration of justice and thirdly, revelation of such material might make it more difficult for persons to feel confident that they would not be inadvertently exposed to harassment or to being impersonated by third parties who are able to use search engines or other means to download or aggregate material from the internet for their own purposes, contrary to the best interests of the persons concerned. This applies to reasons for judgment generally, including in respect of persons being sentenced for criminal conduct or otherwise caught up in civil or other litigation. 12 His Honour should not have included the appellant's date of birth in his reasons for judgment. That date had no materiality to the issues before him. Had it been necessary to refer to the appellant's age or birth year, his Honour should have done so in a generic way by stating his age or that he had been born in a particular year. This appeal 13 The proposed further amended notice of appeal comprised three grounds. However, during the course of argument the appellant withdrew the third ground. The first and second grounds, as explained by the appellant's lawyer, were intended to be directed to the same issue and, indeed, his written submissions treated them as such. Ground 1 asserted that the Federal Circuit Court had exceeded its jurisdiction under s 476 of the Migration Act 1958 (Cth) by publishing information together with elements of the appellant's claims for protection sufficient, relevantly for persons from whom the appellant feared harm, to identify him and his claims, thus, the ground asserted, in effect, breaching his right to procedural fairness in respect of the publication, and so rendering his application for judicial review nugatory. Alternatively, ground 2 sought to argue that the Tribunal, somehow, had made an error in failing to consider whether the appellant would suffer serious harm as a member of a particular social group of failed asylum seekers who would seek judicial review in circumstances where identifying material might be revealed in the course of the subsequent court proceedings. 14 In my opinion, to the extent that it is not comprised within ground 1, ground 2 should not be the subject of any grant of leave to amend. Courts have consistently made clear, particularly where, as here, a party has been represented in the court below, that they are bound by the conduct of their case and, as Gibbs CJ and Wilson, Brennan and Dawson JJ said in Coulton v Holcombe (1986) 162 CLR 1 at 7 (see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 - 599 [46] - [48] per Kiefel, Weinberg and Stone JJ): It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. 15 In my opinion, ground 2 has no merit. The Tribunal could not proceed on some assumption that courts would in some way do something to identify a person whose identity ought not be revealed. The Tribunal could not have made any jurisdictional error of the kind alleged. 16 I am also of the opinion that the issue raised by ground 1 does not raise in substance the real point which the appellant wished to argue. The jurisdiction of the Federal Circuit Court under s 476(1) of the Act in relation to a migration decision such as the present, is the same as that of the High Court under s 75(5) of the Constitution. 17 The Act contains an express restriction, in s 91X(2), on the publication by any court exercising jurisdiction under the Act in relation to persons, such as the appellant, who have applied for a protection visa, namely, that the court is prohibited from publishing the person's name in electronic form or otherwise, in relation to the proceeding. Moreover, s 336E creates a series of criminal offences where a person's conduct causes the disclosure of certain identifying information, as defined in s 5A of the Act, such as any identifier described in the Regulations, the disclosure of which is not otherwise permitted under the Act. 18 Whether the publication of a person's birthdate is prohibited is not necessarily relevant. Suffice to say that the Act recognises that, ordinarily, if the basis of a person's claims for a protection visa could be connected to him or her by publication of a court's reasons or otherwise, the ability of the Commonwealth to refoule failed asylum seekers would be inhibited and those persons would be placed at risk by such disclosures. 19 What has happened in this matter is most unfortunate. The appellant's claims, as they were made to the Tribunal, failed on their merits and his claim for judicial review of that decision, based on the sole ground argued before his Honour, also failed on its merits. However, the trial judge's inadvertent inclusion of the appellant's date of birth in his reasons in the circumstances where personal identifiers of the appellant had been revealed in the data breach (as was in evidence before his Honour), have now put the appellant in a situation where, potentially, the persons from whom he feared harm, as explained in SZSSJ 259 CLR at 209 [91], may be, or be in a position to be, aware of what he claimed. That was not the case simply because of the effect of the data breach taken by itself, before his Honour published his reasons. 20 The appellant initially sought to argue that I could grant relief in the form of an injunction preventing the Minister from relying on the Tribunal's decision or somehow setting the decision of the Federal Circuit Court aside. 21 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. 22 As a matter of principle, the Court (meaning the judiciary as an institution) must take care to ensure that it (or a lower court) does no injury to any litigant: Heavener v Looomes (1924) 34 CLR 306 at 323 - 324 per Isaacs and Rich JJ as applied in The Commonwealth v McCormack (1984) 155 CLR 273 at 276 - 277 per Murphy, Wilson, Brennan, Deane and Dawson JJ. In McCormack 155 CLR at 276 - 277 the Court said that the following passage in the opinion of the Privy Council delivered by Lord Cairns in Rodger v The Comptoir d'Escompte de Paris (1871) LR 3 PC 465 at 475 expressed the general principle: one of the first and highest duties of all Courts is to take care that the act of the court does no injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. (emphasis added) 23 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582, Mason CJ, Dawson, Toohey and Gaudron JJ discussed the position where a statutory commission had made adverse findings in the report that the Commission published in breach of the rules of natural justice (or, as it is called now, procedural fairness). They found that because no legal effect or consequence attached to the adverse findings against Mr Ainsworth and his group of companies, certiorari would not lie to quash the report and so remedy the Commission's failure to proceed in a way that was fair to the parties affected. Nor was mandamus available to correct that failure. However, their Honours said (and see too: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 359 - 360 [101] - [104] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ): It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy. The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs. …. It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." (Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421, per Gibbs J at 437). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (See In re Judiciary and Navigation Acts (1921) 29 CLR 257). The person seeking relief must have "a real interest"(Forster 127 CLR at 437, per Gibbs J; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd. [1921] 2 AC 438, per Lord Dunedin at 448) and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" (University of New South Wales v. Moorhouse (1975) 133 CLR 1, per Gibbs J. at 10) or if "the Court's declaration will produce no foreseeable consequences for the parties"(Gardner v. Dairy Industry Authority (N.S.W.) (1977) 52 ALJR 180, per Mason J. at 188; see also per Aickin J. at 189) The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under s.2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done. (emphasis added) 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. Conclusion 25 However, before proceeding to that step, it seemed to me desirable to allow counsel for the Minister to seek instructions from his client, acting in accordance with his constitutional duty that Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ explained in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 30 [57] in respect of whether he would exercise his non-compellable powers to allow the appellant to make a further application for a protection visa or otherwise deal with his situation in a way that would give a substantive administrative remedy in light of what has happened. 26 For that reason, I will adjourn making final orders in the proceeding. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.