DZAEH v Minister for Immigration and Border Protection [2016] FCA 552

FEDERAL COURT OF AUSTRALIA

DZAEH v Minister for Immigration and Border Protection [2016] FCA 552 File number(s): WAD 39 of 2016

Judge(s): SIOPIS J

Date of judgment: 21 March 2016

Catchwords: APPEAL – application for leave to appeal – subsequent developments render the appeal inutile – discretionary considerations.

Legislation: Migration Act 1958 (Cth) ss 198, 476A

Cases cited: SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1

Date of hearing: 21 March 2016

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: Mr S Price and Ms Y Zhang

Solicitor for the Applicant: Ren Zhou Lawyers

Counsel for the First Respondent: Mr P Macliver

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS WAD 39 of 2016

BETWEEN: DZAEH Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 21 MARCH 2016

THE COURT ORDERS THAT:

1. The application for leave to appeal filed 28 January 2016 be dismissed. 2. Order 1 of the orders of McKerracher J dated 23 February 2016 is set aside. 3. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 There are three matters before the Court today which arise from an originating application (WAD 26 of 2016) filed by the applicant on 18 January 2016. 2 It is necessary first to say something of the background to this matter. 3 In her originating application of 18 January 2016, the applicant seeks what appears to be a declaration that the Minister for Immigration and Border Protection (the Minister) owed her procedural fairness regarding what the applicant refers to as a "privacy breach incident". 4 At the same time, the applicant also sought an urgent interlocutory injunction to restrain the Minister from removing her from Australia until the finalisation of the proceeding. At the time the applicant was in immigration detention and was about to be removed from Australia, consequent upon her application for a protection visa having failed. 5 The application for interlocutory relief was heard by Barker J on 19 January 2016. 6 The "privacy breach incident" to which the applicant referred in the originating application was a data security breach by the Department for Immigration and Border Protection (the department) whereby the names of almost 10,000 asylum seekers were published inadvertently on the department's website. 7 After that, letters were sent by the department to all those affected by the data security breach. 8 The applicant received a letter from the department dated 12 March 2014. The letter said that the department would assess any implications of the data security breach for the applicant personally, but gave no details as to how that assessment was to be conducted. 9 Sometime thereafter, the department instituted a process for the assessment of the impact of the data security breach on the persons affected, which was referred to as the International Treaties Obligation Assessment (ITOA) process. Most of the persons affected by the data security breach received a letter from the department advising of the ITOA process, providing details as to how the process was to operate and inviting the person to participate in the process. 10 However, the applicant did not receive such a letter. The applicant's complaint is, essentially, that the proposed assessment process of which she was advised in the department's letter of 12 March 2014 was never taken any further and there was an outstanding obligation on the department to the applicant to complete the process and that, in the course of that process, accord procedural fairness in the assessment of the risk of harm caused by the data security breach. 11 Before Barker J, the applicant relied on the case of SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 (SZSSJ). Barker J distinguished the circumstances of the applicant from those of SZSSJ. This is because, in her case, the applicant had the opportunity to raise the risk of harm to her associated with the data security breach before the Refugee Review Tribunal (the Tribunal) in the course of her application for a protection visa and she had in fact done this. Accordingly, her claims regarding the impact on her of the data security breach had been assessed by the Tribunal. 12 In any event, Barker J also found that the applicant's originating application may, in any event, be flawed on the grounds that the Court may not, by reason of the restrictions on the review of "migration decisions" imposed by s 476A of the Migration Act 1958 (Cth), have jurisdiction to conduct the review and grant the relief sought by the applicant. 13 Barker J dismissed the applicant's application for the interlocutory injunction. 14 The applicant applied by WAD 39 of 2016 for leave to appeal from the order of Barker J dismissing her application for the interlocutory injunction. On 23 February 2016, McKerracher J made an order staying the removal of the applicant from Australia pursuant to s 198 of the Migration Act until further order. That order remains on foot. 15 I deal now with the application for leave to appeal from the order of Barker J dismissing the applicant's application for an injunction restraining the Minister from removing the applicant from Australia. 16 Importantly, for the purposes of this application, an affidavit was filed by the applicant's solicitor which advised of significant developments since the making of the orders by Barker J and McKerracher J. The developments were that the applicant had been released from migration detention, and that she had been granted a bridging visa, on the basis that she has married a fellow former detainee. The applicant's husband was also affected by the data security breach and his claim for judicial review in relation to that data security breach is before the Federal Circuit Court of Australia and has been adjourned until the determination of the High Court appeal in SZSSJ. 17 Accordingly, there is now no longer any immediate threat posed to the applicant in relation to her potential removal from Australia. The fact that the applicant is no longer facing the threat of immediate removal from Australia means that the utility of the grant of the injunction sought before Barker J is no longer apparent. This is an important discretionary consideration in refusing to grant leave to appeal from Barker J's orders. The parties appear to agree that, in light of these recent developments, there is no continuing utility in seeking to pursue an application for leave to appeal from the orders of Barker J. 18 The applicant's position can be protected by the making of an order precluding the Minister from removing the applicant from Australia before the final hearing of the originating application without first giving her seven days written notice of his intention to do so. When I make the orders, I will also include a liberty for parties to apply to vary that order. 19 Accordingly, I will dismiss the application for leave to appeal, but I will reserve the question of costs in light of the circumstances which have emerged today. 20 The next application is an application by the Minister to set aside order 1 made by McKerracher J on 23 February 2016, namely, the order preventing the applicant's removal from Australia. For the reasons which I have given, that order will be set aside and the question of costs before McKerracher J will be reserved. 21 In relation to the directions for the further hearing of the originating application WAD 26 of 2016, counsel for the applicant has helpfully identified the basis upon which the applicant could potentially bring a claim for the declaration which she apparently seeks, and has also raised arguments in support of this Court having jurisdiction to entertain the kind of application which counsel has identified. 22 Accordingly, I will give the applicant leave to amend her originating application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.