FEDERAL COURT OF AUSTRALIA Minister for Home Affairs v CLR15 [2019] FCAFC 45 Appeal from: CLR15 v Minister for Immigration & Anor [2018] FCCA 989 File number: VID 612 of 2018 Judges: MOSHINSKY, CHARLESWORTH AND LEE JJ Date of judgment: 15 March 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where primary judge held that the Tribunal erred in concluding that it did not have jurisdiction to deal with a child's application – whether the primary judge erred in so concluding – appeal allowed Legislation: Migration Act 1958 (Cth), ss 411, 414, 415, 422B, 427 Migration Regulations 1994 (Cth), regs 2.08, 2.08F Cases cited: ALO16 v Minister for Immigration and Border Protection [2017] FCA 270 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Date of hearing: 28 November 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 50 Counsel for the Appellant: Mr A Yuile Solicitor for the Appellant: Clayton Utz Counsel for the First and Second Respondents: Mr J Williams Solicitor for the First and Second Respondents: AKN & Associates Solicitor for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs ORDERS VID 612 of 2018 BETWEEN: MINISTER FOR HOME AFFAIRS Appellant AND: CLR15 First Respondent CLR15.1 Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent JUDGES: MOSHINSKY, CHARLESWORTH AND LEE JJ DATE OF ORDER: 15 MARCH 2019 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Paragraphs 4 to 7 of the orders of the primary judge dated 4 May 2018 be set aside and in lieu thereof it be ordered that: (a) the application be dismissed; and (b) the applicants pay the first respondent's costs of the proceeding in the Federal Circuit Court of Australia, to be taxed if not agreed. 3. The first and second respondents pay the appellant's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 The appellant (the Minister) appeals from a judgment of the Federal Circuit Court of Australia. 2 The background to the appeal may be briefly outlined as follows: (a) The first respondent, referred to as CLR15 in the proceeding below and in this Court, arrived in Australia by boat in April 2013. Her husband arrived in Australia earlier, also by boat. (b) In June 2014, CLR15 applied for a protection visa. (c) In April 2015, CLR15 gave birth to a son, who is the second respondent to this appeal. He was referred to as CLR15.1 in the proceeding below and that description has also been adopted in the appeal to this Court. (d) On 14 August 2015, a delegate of the then Minister for Immigration and Border Protection (the Delegate) refused CLR15's application for a protection visa but did not make a decision with respect to CLR15.1. (e) CLR15 and CLR15.1 applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Delegate's decision. (f) The Tribunal dismissed CLR15's application for review and decided that it did not have jurisdiction with respect to CLR15.1. (g) CLR15 applied to the Federal Circuit Court for judicial review of the Tribunal's decision. CLR15.1 was later added as an applicant to the proceeding. 3 The primary judge decided that the Tribunal should have considered CLR15.1's application for a protection visa and erred in failing to do so. The primary judge also decided that the Tribunal denied CLR15 procedural fairness by failing to provide CLR15 with an unabridged copy of a report prepared by KPMG concerning a data breach incident. 4 By this appeal, the Minister challenges each of those conclusions of the primary judge. 5 For the reasons that follow, we have concluded that each of these appeal grounds is made out. Background facts 6 On 8 April 2013, CLR15, a citizen of Vietnam, arrived in Australia by boat. She arrived at Darwin. 7 On 16 June 2014, CLR15 applied for a Protection (Class XA) visa. By virtue of legislative changes, this application was treated, from 16 December 2014, as an application for a Protection (Class XD) visa. 8 On 7 April 2015, CLR15 gave birth to a son (CLR15.1). 9 On 13 July 2015, CLR15's migration agent provided forms 866B and 866D to the Department of Immigration and Citizenship (the Department). Form 866D was an application by CLR15.1, as a member of a family unit, for a protection visa. Form 866B provided details of the persons included in the application for a protection visa – CLR15 and CLR15.1 were listed as the persons included in the application. 10 On 14 August 2015, the Delegate refused CLR15's application for a protection visa. The Delegate was not satisfied that CLR15 was a person in respect of whom Australia had protection obligations under the relevant provisions. The Delegate's decision record did not, however, refer to CLR15.1's application for a protection visa. Further, the Delegate's letter notifying refusal of the application for a protection visa (dated 14 August 2015) did not refer to CLR15.1's application for a protection visa. As the primary judge found at [2] of his reasons for judgment (the Reasons), the Delegate did not make a decision in respect of CLR15.1. 11 On 25 August 2015, an application was made to the Tribunal for review of the Delegate's decision. The application form was completed in the names of both CLR15 and CLR15.1. 12 On 22 October 2015, the Tribunal decided: (a) to affirm the Delegate's decision not to grant CLR15 a protection visa; and (b) that it had no jurisdiction in relation to CLR15.1. 13 In [1] of its reasons, the Tribunal stated: The delegate found that the application by [CLR15.1] was not a valid application and did not make a decision in relation to [CLR15.1]. Accordingly, the Tribunal has no jurisdiction in relation to [CLR15.1]. 14 Insofar as the Tribunal stated, in the extract set out above, that the Delegate had found that CLR15.1's application "was not a valid application", this was an error. In fact, the Delegate had not referred to CLR15.1's application. The Tribunal was, however, correct to state that the Delegate had not made a decision in relation to CLR15.1. 15 For the purposes of the issues raised by the appeal, the part of the Tribunal's reasons dealing with the data breach is also relevant. The Tribunal dealt with CLR15's claims relating to the data breach at [48]-[66] of its reasons. The Tribunal outlined the circumstances of the data breach at [49]. The Tribunal noted that, following the data breach, the Department commissioned KPMG to conduct an assessment of the "events leading up to the disclosure of personal information of detainees, in connection with a document uploaded to its website on 10 February 2014". At [50], the Tribunal summarised CLR15's claims relating to the data breach. At [51], the Tribunal stated that CLR15's representative had submitted in a pre-hearing submission that: without access to the full KPMG report, CLR15 would be unable to put her claims in a "full and fair way"; and the Tribunal should obtain the unabridged KPMG report from the Department pursuant to s 427 of the Migration Act 1958 (Cth) and provide it to CLR15. The Tribunal noted that it had refused this request. 16 At [54] and [55] of its reasons, the Tribunal noted that, at the hearing, CLR15's representative had reiterated the concerns regarding not having access to the unabridged KPMG report. The Tribunal also noted that it (the Tribunal) had commented that: it was unlikely that the report would be released in full to either the Tribunal or the persons affected; and the version of the KPMG report that had been released appeared to indicate that there was no way of knowing who accessed the information and how often it was downloaded. 17 In the course of its reasoning in relation to the data breach issue, the Tribunal stated at [56] that, in its view, it was highly unlikely that the Vietnamese authorities had become aware of CLR15's details or that she was in a detention centre as a result of the data breach. The Tribunal also stated, at [57], that it considered that, notwithstanding the data breach, it was likely that CLR15's detention in Australia would become known upon her return to Vietnam and that it would be assumed that she had lodged an application for asylum in Australia. The Tribunal therefore considered whether CLR15's application for asylum, combined with the other matters upon which she relied, would result in her being harmed upon her return to Vietnam. At [61], the Tribunal stated that: it was satisfied that ordinary citizens who are returned to Vietnam after lodging an unsuccessful application for asylum in Australia were not harmed upon their return; it did not accept that CLR15 was other than an ordinary citizen who would return to Vietnam after an extended period without a visa in Australia; it would be known that she had applied for asylum in Australia; even if it was known that she was on a list of persons who were in Australia at a specific time, the Tribunal did not accept that this would result in a heightened risk; and the Tribunal was not, therefore, satisfied that there was a real chance that CLR15 would be harmed for these reasons upon her return to Vietnam. 18 At [62], the Tribunal noted that it had not obtained the full KPMG report as requested by CLR15's representative. The Tribunal stated that an abridged report, dated 20 May 2014, had been released and was publicly available. In [63] of its reasons, the Tribunal referred in several places to the "unabridged" report, but it is apparent from the context that it intended to refer to the "abridged" report. In relation to the request that the Tribunal obtain and provide a copy of the full report, the Tribunal stated at [64]: Importantly, the Tribunal considers that there is no unfairness to the applicant in [not] obtaining the report because, even taking [CLR15's] claims at their highest and accepting that the report was accessed by intelligence or security agencies within the Vietnamese government who are monitoring their [nationals'] conduct overseas, the Tribunal does not accept that this will have any adverse consequences for [CLR15] given her lack of an adverse profile and no evidence indicating that ordinary citizens such as her who have applied for asylum overseas are subject to harm upon their return to Vietnam. We have inserted the word "not" before the word "obtaining". The omission of the word "not" is evidently a typographical error. The proceeding in the Federal Circuit Court 19 CLR15 applied to the Federal Circuit Court for judicial review of the Tribunal's decision. CLR15.1 was subsequently added as an applicant in the proceeding. CLR15 and CLR15.1 were legally represented at the hearing before the primary judge. The amended application in the Federal Circuit Court contained three grounds. For present purposes it is sufficient to refer to the first two grounds: (a) the Tribunal misapplied the applicable law regarding whether CLR15.1 made a valid application and whether the Tribunal was therefore seized of jurisdiction regarding CLR15.1; and (b) the Tribunal failed to apply the "assumption" regarding the data breach. 20 The reference to an "assumption" in the second ground was to the assumption that had been made in the course of the decision-making process considered by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ), namely an assumption that "all of [the applicants'] personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm" (see SZSSJ at [91]). 21 On 4 May 2018, the primary judge delivered the Reasons. After dealing with introductory matters, his Honour summarised CLR15's claims for protection at [14] of the Reasons. The primary judge set out the background facts relating to the Delegate's decision and the Tribunal decision at [15]-[51]. The primary judge was critical of the Delegate's failure to consider CLR15.1's application for a protection visa in circumstances where the relevant forms had been provided to the Department one month before the Delegate's decision. After referring to the statement in [1] of the Tribunal's reasons that the Delegate had found that the application by CLR15.1 was not a valid application, the primary judge stated at [49]-[50]: 49. That was not true. The delegate said no such thing. At no point did the delegate mention CLR15.1. At no stage did the delegate state, still less find, that CLR15.1's application was not a valid application. The simple fact of the matter was that the delegate failed to pass upon it or adjudicate in any way, shape or form in respect of the child's application. That was a major failure, it seemed to me. It was an equally major failure for the tribunal to state, as the tribunal did in paragraph 1 of its reasons, that the delegate found that CLR15.1's application was not a valid application and that the delegate therefore did not make a decision in relation of the child. 50. The delegate failed to determine CLR15.1's application. The tribunal should have been cognisant of CLR15.1's application. The tribunal should have passed upon the matter for itself. The tribunal should not have merely said what it said in the last two sentences of paragraph 1 of its reasons. In my view, on that basis alone (there were more) the tribunal fell into jurisdictional error in this case such that the tribunal's decision must be set aside. 22 The primary judge considered ground one at [52]-[63] of the Reasons. The primary judge expressed the view that this ground succeeded. His Honour reiterated his view that the Tribunal should have, but failed to, consider CLR15.1's application and that, by reason of its failure to do so, the Tribunal fell into jurisdictional error. 23 At [56] of the Reasons, the primary judge recorded a submission on behalf of the Minister that CLR15 was an unauthorised maritime arrival. That submission was incorrect; it is common ground on the appeal that CLR15 was not an unauthorised maritime arrival. 24 In the course of considering ground two, the primary judge referred to the judgment of Logan J in ALO16 v Minister for Immigration and Border Protection [2017] FCA 270. One of the matters referred to by Logan J was whether the appellant in that case had the unabridged KPMG report or only an abridged version. Justice Logan stated at [26] that it was "immaterial" whether the appellant did or did not have access to the unabridged version of the KPMG report, and continued that the Tribunal "dealt with the evidence before it, which included the abridged version. It made an assumption … in the appellant's favour and it reached a conclusion reasonably open on the material before it as to an absence of a well-founded fear of persecution on the part of the appellant". After quoting the passage, the primary judge in the present case stated at [85]: As is readily apparent, the facts of that case were quite different to the facts of this case. In that case the abridged KPMG report was available and the tribunal quoted from it, unlike the circumstances of this case. In that case, the tribunal made an assumption in the applicant's favour yet in this case the tribunal merely accepted the existence of the data breach but no more, quite differently to the acceptance of the assumption to which Logan J referred. 25 The above paragraph may be taken to suggest that, in the present case, the abridged KPMG report was not available to the visa applicants. However, it is clear that the abridged KPMG report was publicly available and thus available to CLR15. This was stated in the Tribunal's reasons at [62]. Indeed, it was noted at [87] of the Reasons. Further, in the above passage, the primary judge stated that in the case before Logan J the Tribunal made an assumption in the applicant's favour "yet in this case the tribunal merely accepted the existence of the data breach but no more". That statement does not accurately reflect the reasons of the Tribunal. It appears to have been based on [24] of the Tribunal's reasons. It overlooks the section of the reasons at [48]-[64]. As summarised above, that section contains additional findings and assumptions concerning the data breach. In particular, at [57], the Tribunal made the findings and assumptions set out in [17] above. 26 At [86], the primary judge set out a series of factual and legal propositions, including that "despite many repeated requests, CLR15 was not provided with the abridged or an unabridged KPMG report" and that "the tribunal hearing proceeded without CLR15 having any version of the KPMG report". On the appeal, counsel for CLR15 and CLR15.1 conceded that the abridged version of the KPMG report was available to them and that it was to be inferred from the material that their representative had the abridged report. 27 The primary judge concluded his consideration of ground two by stating, at [89], that "by the tribunal proceeding without providing CLR15 with a copy of the unabridged KPMG report, the tribunal failed to accord CLR15 procedural fairness. Section 422B of the Act has not wholly codified the procedural fairness to which CLR15 was entitled". It is to be observed that the focus of this paragraph of the Reasons was a denial of procedural fairness rather than the question whether the tribunal fell into jurisdictional error by not making an assumption to the same effect as that described in SZSSJ at [91], which was the focus of ground two of the amended application. 28 The primary judge rejected ground three of the amended application. The appeal to this Court 29 The Minister's notice of appeal contains two grounds, which are set out at [34] and [42] below. 30 At the hearing of the appeal, both sides sought to adduce additional evidence relating to the status of CLR15 and her husband. The additional evidence comprised: (a) on behalf of the Minister: an affidavit of Natasha Bosnjak dated 13 November 2018; and (b) on behalf of CLR15 and CLR15.1: an affidavit of Mai Pham dated 25 November 2018 and an affidavit of Phillip Vo dated 26 November 2018. 31 Reception of the affidavit of Ms Bosnjak was not opposed and we admit this evidence. The effect of this affidavit was to correct a mistaken submission put to the primary judge regarding CLR15's status. 32 In relation to the affidavits sought to be relied upon by CLR15 and CLR15.1, we deferred ruling on the receipt of these affidavits in circumstances where their receipt was opposed on the ground of relevance. We are not satisfied that this material, which broadly relates to the status of CLR15.1's father, is relevant to the issues to be determined on the appeal. Accordingly, we do not receive this evidence. 33 We note for completeness that we were also provided in the course of the hearing with an affidavit of Ms Bosnjak dated 27 November 2018. This affidavit annexed a document in response to a call for documents. CLR15 and CLR15.1 sought to rely on the document annexed to the affidavit. We are not satisfied that this document is relevant to the issues that need to be determined on the appeal. As with the material referred to in the preceding paragraph, it relates to the status of CLR15.1's father. Consideration Ground one 34 The first ground is to the effect that the primary judge erred in concluding that the Tribunal should have, but failed to, consider CLR15.1's application for a protection visa. 35 As noted above, the Delegate did not make a decision in respect of CLR15.1's application for a protection visa. The issue that arises is whether, in the absence of a decision by the Delegate with respect to CLR15.1, the Tribunal had jurisdiction to deal with his application for a protection visa. 36 The Tribunal only has the jurisdiction that is conferred on it by the Migration Act. In respect of applicants for protection visas, that jurisdiction is conferred by Pt 7 of the Act. Section 414 provides that if a valid application is made for review of a "Part 7-reviewable decision", the Tribunal must review the decision. Section 415 confers on the Tribunal powers in respect of review of such decisions. "Part 7-reviewable decision" is defined in s 411. Critically, the Tribunal only has jurisdiction in relation to certain decisions to refuse to grant or to cancel protection visas. Without a decision of that kind, the Tribunal has no jurisdiction. 37 As indicated above, the Tribunal was incorrect to state that the Delegate found that CLR15.1's application was not valid. However, the Tribunal also said, correctly, that the Delegate had "not made a decision in relation to [CLR15.1]". The primary judge made the same point on a number of occasions: see the Reasons at [49], [59] and [60]. 38 In circumstances where the Delegate did not consider or determine CLR15.1's application, the Tribunal did not have jurisdiction to conduct merits review in respect of CLR15.1's application. The Tribunal had no jurisdiction to do so, because there was no Part 7-reviewable decision in relation to CLR15.1 for it to review. In our respectful view, the primary judge erred in holding to the contrary. 39 Further, although the Tribunal was incorrect to say that the Delegate made a finding that CLR15.1's application was not valid, that statement in itself could not make out jurisdictional error in the Tribunal's decision. The error did not go to jurisdiction, because it could have made no difference to the outcome of the matter. No Part 7-reviewable decision had been made. Without a decision of the Delegate to refuse to grant a visa, the only outcome in respect of CLR15.1's application was that the Tribunal had no jurisdiction to hear it. The same result would follow even if the Delegate had decided that a visa application made by or on behalf of CLR15.1 was not a valid visa application. Subsection 47(4) of the Migration Act makes it plain that such a decision is not a decision to refuse a visa and, accordingly, such a decision could not be a Part 7-reviewable decision. 40 In light of the above conclusions, it is unnecessary to consider a further argument put on behalf of the Minister, namely that there was no valid application (on behalf of CLR15.1) before the Delegate in any event. 41 In the outline of submissions on behalf of CLR15 and CLR15.1 it is submitted that the application by CLR15.1 "was a valid application by virtue of the conversion regulation under regulation 2.08F and regulation 2.08" of the Migration Regulations 1994 (Cth). Therefore, it is submitted, the Tribunal was "properly seized of jurisdiction regarding CLR15.1, but elected not [to] exercise it". These submissions fail to grapple with the fact that the Delegate did not make a decision with respect to CLR15.1's application. For the reasons given above, in the absence of such a decision there was no Part 7-reviewable decision and the Tribunal therefore lacked jurisdiction. Ground two 42 The second ground of the appeal is to the effect that the primary judge erred in concluding that the Tribunal made a jurisdictional error in the nature of a failure to accord CLR15 procedural fairness when it failed to provide to CLR15 an unabridged copy of the KPMG report concerning the data breach incident. 43 In their written submissions, CLR15 and CLR15.1 concede that the primary judge was incorrect to find that the Tribunal erred by failing to provide the unabridged KPMG report to the respondents. In our view, this concession was correctly made. 44 First, the primary judge stated at [86] of the Reasons that CLR15 did not have any version of the report. However, as the Tribunal noted at [62], the abridged report was publicly available and therefore available to CLR15. On the hearing of the appeal, it was conceded by counsel for CLR15 and CLR15.1 that their representative had the abridged report. It should be noted that it is apparent from the Tribunal's reasons that the Tribunal had only the abridged version of the KPMG report; it did not have the unabridged report. 45 Secondly, s 422B applies in respect of a Pt 7 review and provides that Div 4 of Pt 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. That section therefore restricts the application of common law principles of procedural fairness in relation to a Pt 7 review. (In contrast, those principles can apply to the International Treaty Obligations Assessment process (considered in SZSSJ), which sits outside of Pt 7 and sufficiently affects the interests of individuals for procedural fairness to apply: see SZSSJ at [74]-[76]). In order to determine whether the non-provision of the unabridged KPMG report constituted a jurisdictional error, it was necessary to consider whether the non-provision was contrary to one of the provisions of Div 4 of Pt 7. However, this matter was not examined in the submissions to, or the reasons of, the primary judge. 46 Thirdly, and in any event, the Tribunal made findings and assumptions that had the effect that there was no unfairness to CLR15 in not obtaining the unabridged KPMG report. At [57] of its reasons, the Tribunal stated that it considered that, notwithstanding the data breach, "it is likely that [CLR15's] detention in Australia would become known upon the applicant's return to Vietnam and it would be assumed on that basis that she had lodged an application for asylum in Australia". Further, the Tribunal found that, one way or another, the authorities would know that CLR15 had "made an unsuccessful application for asylum in Australia" and had "made claims to fear harm in Vietnam". In light of these statements and those at [64] of the Tribunal's reasons, to proceed without CLR15 having access to the unabridged KPMG report was not a breach of common law principles of procedural fairness (even if they were applicable), notwithstanding that it was not known precisely who may have accessed CLR15's personal information: see SZSSJ at [91]-[92]. 47 CLR15 and CLR15.1 make a submission (in their outline of submissions) that the primary judge was correct to find that the Tribunal erred by failing to apply the "assumption" regarding the data breach as per SZSSJ at [91] and ALO16 at [26]. No reference is provided as to where in the Reasons the primary judge made such a finding. This submission perhaps relies on [85] of the Reasons, which has been set out above. However, it is not clear that the primary judge made any such finding in that paragraph or elsewhere in the Reasons. CLR15 and CLR15.1 have not filed a notice of contention to the effect that the decision of the primary judge should be affirmed on the basis that he ought to have found that the Tribunal failed to apply the "assumption" regarding data breach that was referred to in SZSSJ at [91] (reflecting ground two below). In any event, such a contention would be without merit. The assumption referred to in SZSSJ at [91] was an assumption that "all of [the applicants'] personal information had been accessed by all of the persons or entities from whom they feared persecution or other relevant harm". It was not incumbent on the Tribunal in the present case to make an assumption in these terms or to this effect. As described above, the Tribunal made findings and assumptions in the course of dealing with the data breach issue. In particular, the Tribunal made findings and assumptions at [57] of its reasons as described above. It was open to the Tribunal to deal with the data breach incident in the way that it did. No error is shown by the Tribunal dealing with the matter in this way rather than by making an assumption in the same terms as described in SZSSJ at [91]. Conclusions 48 For these reasons, the appeal is to be allowed. 49 Paragraphs 1 to 3 of the orders of the primary judge dated 4 May 2018 deal with procedural matters and need not be set aside. Paragraphs 4, 5 and 6 of the primary judge's orders concern the issue of writs of certiorari, prohibition and mandamus. Paragraph 7 is an order that the Minister pay CLR15's costs. It follows from the above that paragraphs 4 to 7 of the primary judge's reasons should be set aside. In lieu thereof, there should be an order that the application be dismissed. 50 In relation to costs, there is no apparent reason why costs should not follow the event, both in the proceeding in the Federal Circuit Court and in respect of the appeal. Accordingly, we will make orders to this effect. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moshinsky, Charlesworth and Lee. Associate: Dated: 15 March 2019