FEDERAL COURT OF AUSTRALIA DZAEH v Minister for Immigration and Border Protection [2016] FCA 54 File number: WAD 26 of 2016 Judge: BARKER J Date of judgment: 19 January 2016 Catchwords: MIGRATION – urgent application for interlocutory injunction to restrain the Minister for Immigration and Border Protection from removing the applicant from Australia – whether matters within jurisdiction of the Federal Court – whether serious issue to be tried – whether the processes adopted by the Department of Immigration and Border Protection for considering consequences of release of personal information of protection visa applicant in immigration detention procedurally fair – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 32AB Migration Act 1958 (Cth) s 36(2)(a), s 36(2)(aa), s 197C, s 198, s 422B, s 422B(3), s 425, s 476A Judiciary Act 1903 (Cth) s 39B, s 44 Cases cited: DZAEH v Minister for Immigration & Anor [2015] FCCA 1155 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 SZTPE v Minister for Immigration and Border Protection [2015] FCA 1523 Date of hearing: 19 January 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr A Gerrard Solicitor for the First Respondent: Australian Government Solicitor ORDERS WAD 26 of 2016 BETWEEN: DZAEH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMNISTRATIVE APPEALS TRIBUNAL Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent JUDGE: BARKER J DATE OF ORDER: 19 JANUARY 2016 THE COURT ORDERS THAT: 1. The interlocutory application for an injunction restraining the first respondent from removing the applicant under ss 197C and 198 of the Migration Act 1958 (Cth), filed 19 January 2016, is dismissed. 2. The applicant pay the first respondent's costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 On 19 January 2016, the Court dismissed the application of the applicant for an urgent interlocutory injunction to restrain the Minister for Immigration and Border Protection from removing her from Australia. She was being held in immigration detention in Perth when she was advised that she was likely to be removed on a flight out of Australia just after midnight on 19 January 2016. These are an elaboration of the brief oral reasons for decision given at the time. 2 The applicant seeks an urgent interlocutory injunction restraining the Minister from removing her from Australia. 3 On 19 January 2016, the applicant filed an originating application in the Western Australian Registry of the Court, which was listed for a first case management hearing on 8 March 2016, which claims as follows: The Minister for Immigration and border protection and the Administrative Appeals Tribunal owes us procedural fairness regrading to the 'Privacy Breach' incident. This application is brought pursuant to section 39B and 44 of the judiciary Act 1903 and section 32AB of the Federal Court of Australia Act 1976 and the Constitution of Australia. 4 The claim for interlocutory relief made by the applicant is in the following terms: The Applicant also claims interlocutory relief. 1. Orders for further amended application with particulars to be filed at a later date. 2. An order for full disclosure by the Respondents and to release and produce every documentation in relation and regards to the effective conduct of this proceedings within 6 weeks of the date of this application. 3. And order for interlocutory injunction to restrain the respondent and its officer to remove us under the s198 and s197C of Migration Act 1958, until the finalisation of this particular proceeding. 5 The originating and interlocutory applications are supported by an affidavit sworn by the applicant on 16 January 2016, and filed 19 January 2016, in the following relevant terms: 1. … 2. All the statement in this affidavit is based on my best knowledge. Statement 3. The Tribunal denied me natural justice and procedural fairness as required by s422B of the ACT and there by failed to give me an opportunity for a fair hearing as required by s425 of the ACT. Particulars a) I was held in immigration detention centre on 31st January 2014; b) My name, personal details and reason for detention was disclosed on the Department's website from 10 to 19 February 2014; c) The Department told me in the 14th March 2014 letter that it would assess any implication of the data breach for me personally. This implied the scope of the Department's obligation to afford me procedural fairness; d) The Tribunal did not disclose any information in relation tot he data breach to me and the only information the Tribunal had was supplied by my representative; d) The unabridged version of the KPMG report would reveal who has accessed my information and failure to disclose this information to me for comment is unfair and unjust and in violation of natural justice as required by s422B(3) and failure to provide a fair hearing as required by s425 of the Act, and 4. Around end of the 2014, most of the fellow detainees who are also in the 'Data Breach' received an so called 'ITOA'. 5. At that time we believed we would be getting the 'ITOA' letter as well. 6. I subsequently, appealed to the FCCA and the appeal was dismissed. 7. However, in this particular proceeding, the issues which we are going to raise is that, neither the Minister or the Tribunal ever informed me that I will not be getting an ITOA letter. 8. When the time I saw all the other detainees who got ITOA, I had a legitimate expectation that I would have one eventually. 9. None of the respondent ever informed us we will not be able to have ITOA. 10. I strongly believe it is not fair. 11. I have my rights as a result of the breach of privacy that I have endured at the hands of the department. As ITOA has the rights to review my personal case including data breach, I should be reviewed by ITOA as the other detainees. 12. Therefore, the respondents owe me procedural fairness. 6 The affidavit attaches a letter to the applicant from the Department of Immigration and Border Protection, dated 12 March 2014, which is in the following terms: 12 March 2014 Unauthorised access to personal information In February 2014 a routine report released on the department's website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department's website. The information was not visible as part of the report, and was not easily accessible. As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time. We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again. The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention. The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information. 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. If you would like to seek more information about the incident, talk to your case manager. Yours sincerely Martin Bowles PSM Secretary Department of Immigration and Border Protection 7 In short, at the hearing before the Court, the applicant (who was self-represented) said that she had not been offered the opportunity to participate in the International Treaties Obligations Assessment (ITOA) process which was later offered to many other detainees who also received the same 12 March 2014 letter. She referred to the recent decision of the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 as apparently providing a basis for her procedural unfairness claim. 8 In SZSSJ, for present purposes, the Full Court, at [87], concluded that the rules of procedural fairness applied to the subsequent ITOA process adopted by the Minister in respect of some detainees. 9 Further, the Full Court, at [96], concluded that the conduct of the Department described in relation to its ITOA dealings with the person SZSSJ itself triggered an obligation of procedural fairness. 10 At [125], the Full Court concluded that the procedure contemplated in respect of the person SZSSJ was procedurally unfair. 11 However, in this case, the applicant was not provided with the opportunity to engage in the ITOA process provided to SZSSJ and other detainees. This is the source of the applicant's complaint. 12 The Minister, in opposing the application for an interlocutory injunction, contends that the factual circumstances concerning SZSSJ and this applicant are quite different, such that the decision of the Full Court concerning denial of procedural fairness in SZSSJ is not relevant in the case of this applicant. 13 The Minister submits that in this case, the applicant was not offered the ITOA process as she in fact had the opportunity to ventilate her concerns about the data breach issue in the former Refugee Review Tribunal (now the Administrative Appeals Tribunal (AAT)), which she took advantage of. Thus, it is said, the applicant was not invited to engage in the ITOA process; SZSSJ is irrelevant; and no question of a duty of procedural fairness arises now as a result of the sending of the 12 March 2014 letter. 14 In SZSSJ, the Full Court touched on how the ITOA process came to be adopted in respect of SZSSJ and certain other detainees. At [75], it noted that the 12 March 2014 letter had been written by the Secretary of the Department to relevant persons affected by the data breach, stating that claims arising from the breach would be considered as part of the Department's "normal processes"; that, whatever those processes were, they were supervened on 30 September 2014 by the ITOA process; in the case of SZSSJ (and no doubt others), the affected person was informed, by letter dated 1 October 2014, that the purpose of the ITOA was to assess whether the circumstances "of your case engage Australia's non-refoulement obligations"; and the ITOA process was governed by a detailed instructional guide, called Procedures Advice Manual 3. 15 At [76], the Full Court said there were two possible characterisations of these facts disclosed by the evidence: (a) the Minister had decided to consider whether to exercise the powers in ss 48B, 195A and 417 in relation to SZSSJ and the ITOA was being conducted by the Department to assist him in that process (M61 at 349 [66]); or (b) the Minister had not decided to consider, at that stage, whether to exercise the dispensing powers or not. On this view, it is not clear why the ITOA process is being conducted or on whose instructions or how the continued immigration detention of persons involved in that process is lawful. 16 It is apparent on the information before this Court that, in this case, the applicant was not offered the ITOA process at all. As the applicant says in her affidavit, she sought review of the decision not to grant her a protection visa in the Tribunal, which refused her protection application. She then sought judicial review in the Federal Circuit Court of Australia. See DZAEH v Minister for Immigration & Anor [2015] FCCA 1155. As that decision of the Federal Circuit Court discloses, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) on 13 June 2014. This was three months after the 12 March 2014 letter. It seems that a letter requesting submissions was sent to SZSSJ and others on 27 June 2014, and this later became the ITOA process. See SZSSJ at [102]. No such letter was sent to the applicant. 17 The decision of the Federal Circuit Court recounts the following factual matters: The applicant is a citizen of the People's Republic of China who arrived in Australia in May 2003 on a student visa. She was granted several other student visas until December 2007, when she was refused the grant of a further visa. She sought a review of that decision but it was affirmed in 2009. It seems that the applicant has been in immigration detention since about 2013. She applied for a protection visa in December 2013, which was refused by the delegate. The delegate concluded that the applicant did not meet the criteria specified in s 36(2)(a) of the Act for the grant of a visa, or the complementary protection provisions in s 36(2)(aa) for the grant of a protection visa. In February 2014, she sought an application for review in the Tribunal. The applicant attended a hearing on 31 March 2014 by video conference. On 13 June 2014, the Tribunal affirmed the delegate's decision. The Tribunal summarised the applicant's claim as follows: 14. The applicant claims to fear returning to China because she fears harm from underworld figures who are connected to the government. 15. She also fears returning to China because they will know she has been unlawful in Australia as her details were leaked and they, authorities, will accuse her father of sending money overseas. She provided a copy of a letter she claimed was evidence that her details had been leaked. 16. At hearing, the applicant reiterated her claim to be fearful of gangsters who are connected to the authorities if she returns to China. Therefore, the authorities will not be able to protect her. 18 The Federal Circuit Court said that it was not suggested in the application for review of the Tribunal's decision, that the Tribunal misapprehended any of the grounds upon which the applicant claimed to be entitled to a protection visa or the basis upon which she was advancing her visa application. 19 The Court said that while the applicant did not seem to have a full appreciation of the grounds of her application for review, due to the application having been prepared by an agent, the Court nonetheless noted that the applicant did not contend that the Tribunal had misapprehended the basis upon which she claimed protection. 20 The Court particularly noted that the Tribunal did not accept the applicant's claim to fear "gangsters" if she returned to China. 21 The Court further noted that the Tribunal explained why it did not accept the applicant's claims, including that it considered the applicant's evidence to be vague, inconsistent, general in substance and lacking in persuasive detail. In short, the Tribunal, by and large, did not accept the applicant as a credible witness. 22 The Court also noted that the Tribunal expressly dealt with the applicant's claim concerning the leaking of her details in the data breach. The Court said that the Tribunal accepted for the purposes of the application before it, that her details had been revealed and that authorities in China were probably aware that she had been named by the Department as a person who had claimed protection in Australia. 23 However, the Court noted, the Tribunal did not consider that by reason of those matters the applicant had established her claim to the visa. The Tribunal explained that, in its view at least, the Chinese authorities would know that the applicant had been detained in Australia because the Department would approach the Chinese Consulate or Embassy about her identity and documents for her return to China. The Tribunal also accepted that the Chinese authorities would know that the applicant had left China in May 2003 to travel to Australia to study. The Tribunal accepted that the Chinese authorities would know, irrespective of the privacy breach, that she had been detained in immigration detention in Australia: "because she did not have a visa to continue to stay in Australia". 24 The Tribunal further accepted, the Court noted, that authorities in China could well assume that the applicant claimed asylum in Australia so that she could remain permanently in Australia, as many Chinese citizens detained in Australia for overstaying their visas in Australia have done. 25 The Court also noted that the Tribunal referred to country information which demonstrated, according to the Tribunal, that the applicant would be questioned and interviewed after her return to China as a failed asylum seeker. However, the Tribunal did not accept that the applicant's lodging of a protection visa application or being in Australia unlawfully, of itself, gave rise to a real chance that the applicant faced serious harm on return to China by reason of her membership of a particular social group, such as failed asylum seekers or people in Australia unlawfully. 26 Thus, the Tribunal concluded it was not satisfied there was a real chance that the applicant would face persecution for the reasons expressed by her on her return to China now or in the reasonably foreseeable future, and so the claim to a visa failed. 27 In the Federal Circuit Court, the first ground of review was rejected. The second ground expressly raised the alleged data breach issue and stated, in substance, that the Tribunal refused to take into account that her name was published on the official websites, which had been accessed by many countries, and that the Tribunal's decision was made without advising her of the need to provide third party evidence of the publication of her name or that, in the absence of such evidence, the Tribunal would not believe that her claim was in fact genuine. 28 A further ground of review alleged that the Tribunal fell into jurisdictional error by breaching common law rules of procedural fairness in that the Tribunal did not believe the factual claim that her name had been published to the world and that this was a "live issue" in the proceedings. 29 As a matter of substance, the Federal Circuit Court held that the Tribunal had in fact accepted those facts at [48] of its reasons, which indeed appears to be the case. 30 At [28] and [29] of the Federal Circuit Court said: 28. Whilst it may be true that the tribunal did not make a finding of fact that the Chinese authorities had seen the applicant's name on the list, the tribunal accepted the proposition and thereafter, in paragraph 49 of the reasons for decision, went on to explain why the data breach, in the circumstances of this case, did not matter. As I have already indicated, the tribunal thought that, even without the data breach, the Chinese authorities would have known about the applicant. 29. In oral submissions before me, the applicant suggested that a crime had been committed by the Department, and that she had rights as a result of the breach of privacy that she has endured at the hands of the Department. She may be right on both of those counts, but it does not matter to this proceeding. Whether a crime has been committed by the Department and whether her rights have been intruded upon in the way in which she claims is, for the purposes of determining whether there has been a jurisdictional error committed by the tribunal, irrelevant. In my view, ground 2 of the application must fail. 31 The Minister submits that the case of the present applicant is therefore quite different from that of the applicant in SZSSJ, in that the applicant here had the opportunity to have her data privacy concerns aired in the Tribunal hearing on 31 March 2014 and determined on their merits in the context of her protection visa review application. Accordingly, the Minister submits that the need for an ITOA process was redundant. 32 In the circumstances outlined above, there appears to be a considerable difference between the way in which an applicant such as SZSSJ has been treated and the way the applicant here has been treated. The reason for the different treatment, as submitted by the Minister, is that the applicant had her data privacy concerns considered, at her insistence, in the Tribunal hearing; whereas persons such as SZSSJ who did not have the opportunity to raise concerns in such a merits review context, were eventually offered what became the ITOA process which was apparently designed to ensure the data breach concerns of such persons were regarded before their possible removal from Australia. 33 In all of those circumstances, I accept the Minister's submissions that the claims of procedural unfairness advanced by the applicant on the basis of SZSSJ do not raise a serious issue to be tried. Moreover, in the circumstances, any contention that the 12 March 2014 letter could support a claim of breach of a duty of procedural fairness must be considered very weak. 34 There is also a serious question concerning the jurisdiction or power of this Court to grant an injunction, as a primary form of relief for breach of the rules of procedural fairness in the light of the Court's limited jurisdiction under s 476A of the Act. See the recent decision in SZTPE v Minister for Immigration and Border Protection [2015] FCA 1523. This is a case where the primary form of relief sought is a constitutional writ alleging breach of procedural fairness by a Commonwealth tribunal. It is not a case, for example, where the applicant seeks to appeal from the decision of the Federal Circuit Court referred to above and seeks allied interlocutory relief. (Indeed, at the very end of the hearing, the applicant intimated she had instituted another proceeding in the Court, to be heard later by another judge of the Court.) 35 For those reasons, there is serious doubt concerning the jurisdiction of the Court to entertain the originating application before it, and no serious issue to be tried on the substantive procedural fairness issue advanced by the applicant. 36 Consequently, on 19 January 2016, the Court ordered that the application for interlocutory injunction be dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 19 January 2016