FEDERAL COURT OF AUSTRALIA

SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time and leave to appeal the decision in SZSSJ v Minister for Immigration & Anor [2014] FCCA 1379.

2.    The appeal be allowed.

3.    The orders made by the primary judge on 20 June 2014 be set aside.

4.    The matter be remitted to the Federal Circuit Court of Australia for determination of the applicant’s amended application dated 13 June 2014.

5.    The first respondent is to pay the applicant’s costs of the application and the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicant seeks an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) which was delivered on 20 June 2014 (SZSSJ v Minister for Immigration & Anor [2014] FCCA 1379). The FCCA upheld the Minister’s submission that it lacked jurisdiction to entertain the applicant’s judicial review application on the ground that the applicant had failed to identify “a migration decision” which enlivened the FCCA’s jurisdiction.

2    Before summarising the FCCA’s reasons for making that decision, it is convenient to outline the background facts.

Summary of background facts

3    The applicant is a citizen of Bangladesh. He arrived in Australia on a student visa on 27 May 2005. He remained in Australia after his student visa expired. He was placed in immigration detention on 3 October 2012 and, shortly thereafter, applied for a protection visa. His application was refused by the Minister’s delegate and that decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 19 February 2013. His application for judicial review of that decision was unsuccessful and the High Court refused special leave to appeal.

4    In February 2014, forms of personal information relating to the applicant (and approximately 10,000 other persons who were in immigration detention as at 31 January 2014) were inadvertently disclosed on the Department of Immigration and Border Protection’s (the Department’s) public website (the Data Breach). In an affidavit sworn by the applicant in support of his application before us, the applicant deposed that he became aware of the Data Breach from newspaper reports. He commenced his judicial review proceedings on 7 March 2014, presumably because he feared being removed from Australia before the full ramifications of the Data Breach were known and acted upon.

5    It is evident that on 12 March 2014 the Department wrote in substantially similar terms to all detainees who were affected by the Data Breach. The applicant denies ever being provided with a copy of the pro forma letter. His Departmental Case Manager swore an affidavit in the proceedings before us in which she said that she recalled a copy of the 12 March 2014 letter being handed to the applicant in the period between 12 and 27 March 2014. She also recalled the applicant taking a copy but then refusing to sign a letter acknowledging that he had received the same.

6    The letter dated 12 March 2014 was 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

###
Secretary
Department of Immigration & Border Protection

7    It is to be noted that the applicant was informed that personal information relating to him (and other detainees) “was accessible online for a short period of time” and that some of his personal information “may have been accessed through the report for that short time”. He was also advised that the Department “will assess any implications for you personally as part of its normal processes” (emphasis added) and he was told that he could raise any concerns he had during those processes.

8    In his affidavit below, the applicant said that towards the end of 2013, his Case Manager “forced” him to sign documents which authorised the Department to contact the Bangladeshi High Commission in Canberra to have his passport renewed. It is evident that this gave rise to an apprehension on his part that he was going to be removed from Australia to his country of origin. The applicant also claimed that from February 2013 to March 2014, the Tribunal had published its decision which rejected his application for review of the decision to refuse him a protection visa.

9    The applicant deposed before us that around 27 June 2014 he received a letter from the Department. The letter referred to the notification given in March 2014 relating to the Data Breach and confirmed that the implications for the applicant personally were being assessed as part of “the department’s normal processes”. Reference was also made to the judicial review proceedings which the applicant had commenced in the FCCA. He was invited to put in writing any information relating to the impact of the Data Breach on him personally. He was also told that if he had any particular concerns about the impact of the Data Breach on him being returned to his home country he should provide specific reasons and details for those concerns. He was told that if no response was given to that invitation within 14 days, the Department would proceed on the basis of the information provided in support of his judicial review application. He was told that he would be advised of the outcome of the assessment of his claims relating to the Data Breach in due course and that if the assessment was adverse and there were no ongoing matters before the courts or the Department, he would be expected to leave Australia. That information is consistent with there being a clear prospect that the applicant might be involuntarily removed from Australia if he elected not to go voluntarily.

10    The applicant responded to that invitation by a letter dated 4 July 2014 in which he claimed that the 14 day period was unreasonable. He asked that a lawyer be made available to assist him in what he described as “a quite complicated task to put my case on the issue”. He referred to the fact that he had complained to the Privacy Commissioner about the Data Breach and that he feared a real risk of harm because of the Data Breach were he to be returned to his home country. He alleged that the Department had breached s 336E of the Migration Act 1958 (Cth) (the Act) by revealing his name and personal details on the internet and that the Department had a conflict of interest because of this breach. He also said that “there is no possible way of determining who has accessed and/or saved my personal information” and that there was no way of knowing from whom he faced a real risk of harm as the information “may go well beyond the authorities, insurgents and paramilitaries in my home country, including foreign security and intelligence agencies”.

11    The applicant deposed that he wrote a letter dated 11 July 2014 to the Minister. He said that he needed further information before he could respond to the Department’s letter referred to in [9] above. He asked the Minister to explain how such a serious breach of privacy had occurred and what measures had been taken to prevent a recurrence.

12    He received a reply to that letter from a Departmental officer, writing on the Minister’s behalf. He was told that the Data Breach had been rectified and that a number of steps had been taken to avoid a recurrence but that, as “these steps are now part of the data security process, I am not able to comment further on this matter”. He was told that the responses he had provided in his letters dated 4 and 11 July 2014, together with this response, “will also be placed on your client file for consideration” and that the Department “will assess any implications for you personally as part of its normal processes”. He was again invited to raise any concerns he had during those processes.

13    The applicant also deposed that he had received a further letter dated 1 October 2014 from the Department. It advised him that:

(1)    on 30 September 2014 the Department had commenced what was described as “an International Treaties Obligations Assessment” (ITOA), “in order to assess whether the circumstances of your case engage Australia’s non-refoulement obligations”;

(2)    any “protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA”; and

(3)    the ITOA would consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

14    The letter also made general reference to “various provisions” of the Act which were said to contain “concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s Interpretation [sic] of those obligations” and that, accordingly, “this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application”. (Emphasis added)

15    The applicant was advised by the letter that his earlier protection claims would be considered as part of the overall ITOA and that he could submit further information within 14 days as part of that assessment if he wished.

16    The applicant deposed that, apart from the communications described above, he had not had any further communication from the Minister or the Department about the Data Breach.

17    In his affidavit before us, the applicant deposed that in late September 2014 his new Case Manager asked him whether he was willing to leave Australia voluntarily. He says that he was also told that once his court case was finished, the Minister would be making a decision regarding the matters raised in the Department’s letter dated 1 October 2014. He says that he was told that, despite his complaint to the Privacy Commissioner regarding the Data Breach, the Minister could still decide to remove him.

18    The applicant attached to his affidavit before us a copy of an abridged report dated 20 May 2014, which had been prepared by KPMG on the Data Breach at the Department’s request. An earlier and fuller report had been prepared by KPMG and provided to the Department on 5 April 2014. The abridged report was apparently prepared at the Department’s request for “an abridged factual report which may be appropriate for public release”. Key relevant statements in the abridged report include:

    “the potential data access and distribution is widespread, with 123 ‘hits’ on the document from 104 unique IP addresses. Analysis of available data has provided the DIBP with some indication of the likelihood of each IP address having access to the personal information of detainees” (p 4);

    The material which had inadvertently been uploaded to the Department’s website was accessible for nine days (from 10 – 19 February 2014) until it was removed after the Department was told by the Guardian newspaper of the disclosure (pp 6 and 8); and

    “It is not in the interests of detainees affected by this incident to disclose further information in respect of entities to [sic] have accessed the Document, other than to acknowledge that access originated from a range of sources, including media organisations, various Australian Government agencies, internet proxies, TOR network and web crawlers” (p 10).

The FCCA proceeding

19    In his amended application dated 13 June 2014 under s 476 of the Act, the applicant applied for an order that the Minister and Tribunal show cause why a remedy should not be granted in respect of a “migration decision”. Although the form required the relevant “migration decision” to be identified at page 2 of the form, no such decision was identified.

20    The applicant, who was unrepresented, sought the following final orders (without correction):

1.    A declaration that Australia has legal obligation to provide protection to the applicant.

2.    An order that the decision/ intention of the Minister be quashed.

3.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from acting upon the current intention. (i.e., the unjust decision to assess cases individually through ignoring and violating relevant laws.)

4.    A declaration that the Minister, by himself or by his Department, officers, delegates or agents, is unfit and/or unsuitable and/or unreliable to assess the applicant’s (affected by data breach) case.

5.    A writ of mandamus directed to the Minister, requiring him to issue the applicant an Australian passport according to law.

6.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant from Australia.

7.    Declaration that the applicant’s detention is arbitrary.

8.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from detaining the applicant arbitrarily.

9.    Costs.

21    The grounds of the amended application were stated as follows (without correction):

1.    The First Respondent breached the applicant’s privacy to information by releasing his name and other details on the departmental website as per of the January 2014 Detention Statistics for the period of several days before 19 February 2014.

PARTICULARS

a)    It is fundamental principle of refugee law that a person seeking asylum should be free to make their protection claims free of disclosure of their identity and other details to the authorities in the applicant’s home country;

b)    To return the applicant to his home country would be in breach of the non-refoulement principle contained in Article 33 of the UN Refugee Convention and incorporated into sections 36(2)(a) and (aa) of the Migration Act 1958 (Cth); and

c)    The breach of privacy of the information has rendered the applicant a refugee “sur place” under the UN Refugee Convention and rendered the decision of the second respondent redundant.

2.    As the Applicant is already a “sur place” refugee, failing to recognise that constitutes a violation of “procedural fairness”.

3.    Persecuting the applicant because of his race (i.e., a Non-Australian) and breaking the law by refusing Australia’s legal obligation to protect the applicant’s life and liberty is and should be considered as a criminal act.

d)    ICCPR articles 2(1,3), 6, 7, 17, 18, 26;

e)    ICESCR article 2(2);

f)    ICERD articles 2(1,2), 3, 5, 6;

g)    CAT articles 1, 16.

4.    Publishing the applicant’s sensitive personal information and the whole case without his consent was a criminal act.

PARTICULARS

h)    ICCPR article 17;

i)    Migration Act 1958;

j)    Crimes Act 1914;

k)    Public Service Act 1999;

l)    Public Service Regulations 1999.

5.    The applicant’s detention is arbitrary.

22    By an affidavit affirmed on 27 May 2014, the respondent’s solicitor deposed that she was instructed that there were no current plans to remove the applicant from Australia pending consideration of claims which have been or may be raised by him as a consequence of the Data Breach.

The FCCA decision

23    The respondent opposed the applicant’s amended application and challenged the FCCA’s jurisdiction under s 476 of the Act on the grounds that the amended application did not identify any migration decision in relation to which relief was sought and no decision had been made pursuant to s 198 of the Act to remove the applicant from Australia. The matter came before the FCCA for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCA rules). The original show cause hearing was adjourned to enable the applicant to prepare an amended application dated 13 June 2014 (which is summarised above).

24    The primary judge set out various relevant provisions of the Act, including the jurisdiction of the FCCA (s 476); relevant definitions in s 5 (concerning such concepts as “migration decision”) as well as in s 474 (including the definition in s 474(2) of a “privative clause decision” as meaning “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act” (apart from decisions identified in ss 474(4) or (5)). The primary judge also set out in its entirety s 474(3), which provides that a reference in s 474 to “a decision” includes a reference to the following:

(4)    (a)-(g)    … ;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (emphasis added).

(5)    (i)-(j) …”

25    The primary judge upheld the respondent’s principal opposition to the amended application, namely, that the applicant had not identified a migration decision which enlivened the FCCA’s jurisdiction. His Honour found (at [17]) that the applicant had merely “referred to decisions which he speculated, inferred or suggested had been made but pointed to no actual decision, or future decision which was in prospect, which could be characterised as a migration decision”.

26    The primary judge added at [18] that while it “might be argued” that the Data Breach flowed from a decision made by a Departmental officer, the combined effect of ss 5, 5E and 474 of the Act and reg 5.35AA of the Migration Regulations 1994 (Cth) demonstrated that any such decision was not a migration decision. Accordingly, he dismissed the amended application on the basis that the Court lacked jurisdiction to consider it.

Amended application for extension of time and leave to appeal

27    In an amended application dated 9 October 2014, the applicant identified various grounds in support of his application to have time extended to enable him to seek leave to appeal. It was acknowledged in the amended application that the applicant had no right while he is in the migration zone to apply for a further protection visa because of the operation of s 48A of the Act, subject to the Minister exercising his discretion under s 48B. Accordingly, the applicant claimed that, apart from the ITOA process described above, there was no process for assessing the impact of the Data Breach on his claims for protection.

28    The applicant’s proposed draft notice of appeal identifies the following grounds of appeal:

Grounds of appeal

1.    The Federal Circuit Court erred in dismissing the proceedings on the basis that the Appellant’s application did not disclose an arguable case for the relief claimed, because the Appellant had not identified a “migration decision” within the meaning of s 476 of the Migration Act 1958 (Cth) (the Act) in respect of which relief was sought.

2.    The Court should have found that the Appellant sought relief in respect of the following migration decisions:

a.    the future decision of the First Respondent (the Minister) and/or the Department of Immigration and Border Protection (the Department) to remove the Appellant from Australia pursuant to s 198 of the Act;

b.    the decision of the Minister and/or Department to afford “normal processes” to assess the implications for the Appellant personally of the release of his personal information on the internet in February 2014 (the Data Breach) whilst failing to provide fairness or transparency in those processes;

c.    the decision of the Minister and/or Department to publish a report entitled “Immigration Detention and Community Statistics Summary” dated 31 January 2014 in about February 2014 which decision resulted in the Data Breach; and/or

d.    the decision of the Second Respondent (the Tribunal) to publish a record of its decision affirming the Minister’s decision to refuse the Appellant’s application for a protection visa dated 12 February 2013, which record remained published until about March 2014.

3.    The Court should have found that the Appellant had an arguable case for at least the injunctive relief sought by the Appellant on the basis of one or more of the migration decisions identified above.

4.    The Court erred in accepting and relying upon, on a summary dismissal basis, untested evidence of the Minister that there were no plans to remove the Appellant from Australia pending claims that he had raised or might raise as a consequence of the Data Breach.

29    In his outline of written submissions in support of the applicant’s application, Mr Hochroth, who appeared pro bono for the applicant, identified the following four migration decisions in respect of which he said the applicant sought relief:

(a)    the anticipated decision of the Minister and/or the Department to remove the applicant from Australia pursuant s 198 of the Act (the Removal Decision);

(b)    the decision of the Minister and/or the Department to afford “normal processes” to assess the implications for the applicant personally of the Data Breach, whilst failing to provide fairness or transparency in those processes (the Process Decision);

(c)    the publication of a report entitled “Immigration Detention and Community Statistics Summary” dated 31 January 2014, which publication resulted in the Data Breach (the Data Breach Decision); and

(d)    the publication of the record of decision of the Tribunal dated 19 February 2013, affirming the decision of the Minister’s delegate to refuse to grant a protection visa to the applicant (the Tribunal Record Decision).

30    Mr Hochroth submitted that, insofar as the possible removal of his client from Australia is concerned, s 198(6) of the Act is the relevant provision. He emphasised that this provision, which imposes a duty to remove a relevant person, requires a decision to be made as to whether the duty must be exercised. He further submitted that the steps which the Department was currently taking in respect of the applicant constituted conduct preparatory to the making of such a decision under that provision or, alternatively, under one of several statutory provisions in the Act permitting ministerial intervention which would preclude the operation of s 198(6). Mr Hochroth also submitted that the Tribunal Record Decision was a decision made under s 431 of the Act and that that was also a “migration decision”.

31    He further submitted that prayers 2, 3 and 6 of the final orders and grounds 1 and 4 in the amended application (which he emphasised had been drafted by the applicant without legal assistance) were adequate to enliven the FCCA’s jurisdiction in respect of the four decisions identified above.

32    The respondent’s contentions in opposing the applicant’s amended application may be summarised as follows:

(a)    the primary judge’s finding at [17] is best interpreted as a finding that the applicant had failed to place material before the FCCA that raised an arguable case that any “migration decision” had been made or was in prospect and that the applicant’s affidavits had not raised any arguable case that there existed a “migration decision” to which jurisdiction attached;

(b)    the applicant should not be permitted to rely on fresh evidence on what was described as “the appeal”, because the evidence did not meet the requirements set out in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43];

(c)    none of the four alleged “migration decisions” advanced by the applicant in his written submissions is a “migration decision” and not all of the relief sought in the amended application is connected to those alleged decisions; and

(d)    furthermore, the relief sought in the FCCA was not relief in respect of a “migration decision” within the meaning of s 476 of the Act.

33    The respondent also submitted that an undertaking had been given that the applicant would not be removed from Australia until the determination of these proceedings and also that the evidence made clear “that the applicant will not be removed until his claims for protection have been evaluated”. Accordingly, the respondent submitted that the Court should be satisfied that there is no real or present risk that the applicant will be removed and no injunction is warranted.

34    In opposing the applicant’s amended application, the respondent relied on several affidavits sworn by Departmental officers. Mr David Read, who was employed between November 2013 and September 2014 as the Team Leader of the Publications Team of the Tribunal, and who was involved in publishing selected Tribunal decisions on the website of the Australasian Legal Information Institute (AustLII) deposed that, based on his review of the relevant records, there was no record of the Tribunal’s decision in respect of the applicant ever being selected as suitable for publication in any form on AustLII.

35    An affidavit was also sworn by a Ms Deirdre Russack, who is currently employed as the Director of the Onshore Protection Programme Support Section of the Department’s Onshore Protection Branch. In that position she has responsibility for providing procedural advice relating to the management of the onshore protection visa and residual non-statutory protection obligation assessment processes. She deposed that, as at 23 October 2014 (when she affirmed her affidavit), the ITOA process in respect of the applicant had not been completed and that, until that occurred, the applicant would not be considered available for involuntary removal from Australia. She further deposed that if the applicant is found to be a person in respect of whom Australia owes protection obligations after the completion of the ITOA assessment process, his case would be referred to the Minister for consideration under the Minister’s intervention powers under the Act. If he is found not to be such a person, subject to any other proceedings challenging that assessment or any other impediment to his removal, she stated that “removal planning would commence in relation to the applicant”.

36    Ms Russack annexed to her affidavit a copy of the Department’s policy dated 25 September 2014 in relation to the removal of persons from Australia. The policy, which is entitled ‘PAM3: Act – Compliance and Case Resolution, Case resolution, Returns and removals, Removal from Australia’, contains a section dealing with “Unfinalised judicial review” (section 38):

38    Unfinalised judicial review

38.1    General policy

The Act does not preclude involuntary removal of unlawful non-citizens who are entitled to seek judicial review or who are seeking judicial review of a decision in relation to a substantive visa. However, as a matter of policy, persons in this cohort should not be removed because:

•    the person should be given adequate time after a negative tribunal decision to consider their legal options to seek judicial review

•    the court may ultimately overturn the substantive visa decision and

•    the court may grant an injunction to prevent removal of the person.

This policy can be bypassed if a removee requires voluntary removal under s 198(1).

38.2    Policy exceptions

In some instances it may be appropriate to progress removal of an unlawful non-citizen outside this policy setting. For example:

•    the person presents extreme risk of harm to themselves or others in immigration detention or the community such that the risk cannot be adequately or safely managed in the immigration detention environment. This must be evidenced by past or present conduct, the views of correctional authorities, the DSP or security agencies or a psychologist or

•    the person has a history of serial and vexatious litigation and is considered unlikely to succeed in judicial review. This may be evidenced by attempts to repeat or reopen judicial appeal after review options have been exhausted, failed attempts to seek court injunctions to stay removal or

•    Litigation Branch has advised that the department has reasonable prospects of defending an injunction application (to prevent removal) having regard to the particular set of facts and circumstances surrounding judicial review.

Removal in these situations could assist in not unnecessarily prolonging a person’s stay in immigration detention.

Before progressing any removal outside this policy the removal officer must escalate the case to the removals helpdesk (removals.helpdesk@immi.gov.au) and Litigation Branch.

When escalating a case, the removal officer should provide all relevant evidence supporting the proposal that the person should be considered for removal outside usual policy settings. Such evidence may include:

•    assessments from law enforcement, security correctional authorities, Detention Service Provider (DSP) or medical specialists

•    details of previous litigation, including judicial appeals and reviews and relevant correspondence.

The removals help desk will then seek from Litigation Branch, Detention Operations Branch, Character and Case Management Branch and other stakeholders, necessary advice about effecting the removal.

Consideration

37    For the following reasons, we consider that the applicant should be granted an extension of time and leave to appeal. The respondent did not oppose the appeal being heard at the same time as the amended application for an extension of time and leave to appeal. We also consider that the appeal should be allowed and the matter remitted to the FCCA.

38    In our view, the primary judge erred in finding that he did not have jurisdiction. In particular, we consider that the Removal Decision, Process Decision and the Tribunal Record Decision were adequately pleaded in the amended application so as to engage the FCCA’s jurisdiction under s 476 of the Act.

39    In respect of the Removal Decision and Process Decision, Ms Russack’s evidence establishes that the Department is currently considering the applicant’s claims under the auspices of the ITOA assessment process and that the outcome of that process will produce one of two courses. The first is that, if the applicant is found to be a person in respect of whom Australia owes protection obligations, his case will be referred to the Minister for consideration under the Minister’s intervention powers under the Act which, having regard to the applicant’s status, would appear to include ss 48B, 195A and 417. Alternatively, if the assessment is negative, subject to any other proceedings challenging that assessment or any other impediment to removal, removal planning will commence in relation to the applicant, presumably under s 198(6) of the Act. Although this process seems to be carried out as part of the ITOA process which is referred to in the 1 October letter, it may also be inferred that similar outcomes were envisaged under the “normal processes” applicable to the applicant as referred to in the earlier correspondence dating back to the letter of 12 March 2014.

40    In our view, the Department has, since at least 12 March 2014, been engaged in conduct that is preparatory to a decision which is required to be made under the Act, namely whether or not the applicant is to be removed from Australia under s 198(6) of the Act. Having regard to the extended definition of “decision” in s 474(3)(h) (which defines a decision as including a reference to “conduct preparatory to the making of a decision”), and the definition in s 474(2) of a “privative clause decision”, the FCCA had jurisdiction in respect of the applicant’s proceedings. The Department’s current conduct in respect of the ITOA process and its earlier conduct since at least 12 March 2014 (if not earlier from the time the applicant was taken into detention) are properly to be viewed as conduct which is preparatory to the making of the decision which is required under s 198(6). That is evident from the Department’s correspondence with the applicant and from the applicant’s evidence of what he was told by his new Case Manager in late September 2014. Even though the Minister’s statutory powers of intervention are not expressed in a way which requires him to make a decision under those provisions, any decision which is made under those provisions must necessarily be relevant to the decision which ultimately has to be made under s 198(6).

41    We accept the applicant’s submission that his amended application adequately pleaded the Removal Decision and the Process Decision, and that the matters raised were sufficiently arguable so as to attract the FCCA’s jurisdiction under s 476 of the Act. We also consider that there was sufficient evidence, on an arguable basis, to support the applicant’s claim for injunctive relief to prevent his removal from Australia.

42    We also consider that that jurisdiction was engaged by the pleading in respect of the Tribunal Record Decision. The respondent did not dispute that a decision made under s 431 of the Act was a “migration decision” for the purposes of the Act. There is, of course, a dispute as to whether or not there has been a breach of that provision but that is a matter to be resolved at trial. The dispute does not displace the FCCA’s jurisdiction to hear this aspect of the applicant’s amended application.

43    We do not consider that a passage cited by the respondent in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 assists his case. The passage ([195]) is directed to the terms of s 198A and, in particular, to s 198A(3)(a)(i), which terms are not reflected in s 198(6). It might also be noted that s 198A has since been repealed and does not apply to the applicant.

44    We also reject the respondent’s objection to the applicant adducing fresh evidence. The correspondence between the Department and the applicant post the hearing below plainly could not have been adduced at that hearing. The correspondence is plainly relevant to the conduct which is the subject of the amended application and appeal before us. We consider that the evidence satisfies the requirements identified in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43] per Beaumont, Lindgren and Tamberlin JJ.

45    The appeal should be allowed. The orders made by the primary judge on 20 June 2014 should be set aside. The matter should be remitted to the FCCA for determination of the applicant’s amended application dated 13 June 2014 (noting that Mr Hochroth foreshadowed that if the appeal was successful and the matter was remitted to the FCCA, he proposed to seek leave to further amend the amended application so as to clarify the applicant’s existing pleading). The respondent should pay his costs. Orders will be made accordingly.

46    The Court also wishes to express its gratitude to Mr Hochroth of counsel who appeared for the applicant on a pro bono basis. His appearance greatly assisted the due and efficient administration of justice.

Associate:

Dated:    29 October 2014