FEDERAL COURT OF AUSTRALIA

SZUVY v Minister for Immigration and Border Protection [2015] FCA 107

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 19 December 2014 be dismissed.

2.    The applicant pay the respondent’s costs of the application as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from an order of the Federal Circuit Court of Australia on 5 December 2014 dismissing the applicant's application for judicial review pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(1)(a) provides that:

At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

…

2    Leave to appeal is required because rule 44.12(2) of the Federal Circuit Court Rules provides that:

To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

3    By section 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal may not be brought from an interlocutory judgment of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, in this case the Migration Act 1958 (Cth), other than with leave.

4    To obtain a grant of leave the applicant must show both that there is sufficient doubt as to the correctness of the primary decision so as to warrant review on appeal and that, if the primary decision is wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. In the present case the first limb is critical because there is no doubt that, if the judgment below is wrong, the applicant would suffer substantial injustice if leave is refused.

5    In reasons for judgment published by the Federal Circuit Court (SZUVY v Minister for Immigration [2014] FCCA 2913) the primary judge concluded in these terms:

7. In his application for review, the applicant raises two grounds. The first is that the Tribunal “deprived me of Natural Justice”. At the hearing before me in response to my invitation whether the applicant wished to say anything in relation to this ground, the applicant submitted that he felt the Tribunal did not believe what he said. He also reiterated what he claimed at the Tribunal: that he feared he will be harmed if he returned to China, but that the Tribunal did not feel the same way. These submissions do not disclose any failure by the Tribunal to accord the applicant natural justice.

8. From the decision of the Tribunal itself, it is clear the applicant was given the opportunity to appear before the Tribunal to give evidence and present arguments, and the applicant took advantage of that opportunity. The Tribunal, as it was entitled to do, questioned the applicant about his claims. There is nothing in the Tribunal’s reasons for decision, and the applicant has put before the Court no other material that suggests the Tribunal did not accord the applicant natural justice or that the Tribunal did not provide the applicant with a hearing as required by s.425 of the Migration Act 1958 (Cth). Accordingly, ground 1 of the application raises no arguable case for the relief the applicant seeks in his application.

9. The second ground is, “the First Respondent breached my privacy to information by releasing my name and other confidential details on the departmental website as part of the January 2014 Detention Statistics for a period of several days before 19 February 2014”.

10. The Minister submits that there is nothing in the Tribunal’s reasons to suggest that the applicant had raised this alleged breach of privacy as a ground for protection. In those circumstances, the Minister submits, it is not arguable that the Tribunal made any jurisdictional error by failing to address any such claim. I agree. There is nothing in the reasons for decision to indicate that the applicant had raised breach of confidentiality as a ground for his claimed fear, and the applicant has put nothing before me to suggest that there was material before the Tribunal which ought to have given rise to an allegation on the part of the Tribunal to consider any such claim.

11. At the hearing before me, the applicant said from the bar table that after the hearing before the Tribunal the applicant informed his migration agent about the breach of his privacy and requested his migration agent to make a telephone call. Whether that is true or not, and for the purposes of these reasons I will assume it is true, there is nothing to indicate that the agent had communicated this issue to the Tribunal. In my opinion, therefore, ground 2 also raises no arguable case for the relief the applicant seeks in his application.

6    In his application for leave to appeal the applicant identified the following grounds:

1.    The decision of the Federal Circuit Court had the effect of finally determining the applicant’s claims for relief.

2.    Natural injustice was denied because the applicant had no legal advice or representation.

3.    In February 2014, the first respondent, by his/its agents, released the applicant’s personal information by publishing it on the world wide web.

(a)    It included his name, date of birth, nationality, gender, details about his detention (when detained, the reason for his detention and where) and also the identity of any family members in detention.

(b)    The Data Breach was not taken into account in the determination of the applicant’s application for a protection visa.

4.    Unless the applicant’s proceedings for judicial review of the refusal to grant him a protection visa are successful, the applicant will have no right to apply for a further protection visa by operation of section 48A of the Migration Act 1958.

7    In the draft notice of appeal two grounds are raised as follows:

1.    The Federal Circuit Court erred in dismissing the proceedings on the basis that the applicant’s application did not disclose an arguable case for the relief claimed.

2.    The Court did not consider claims that the applicant might raise as a consequence of the release of his personal information on the internet (the Data Breach) in February 2014.

8    Insofar as the application for leave is concerned ground 1 is misconceived because rule 44.12(2) of the Federal Circuit Court Rules provides that the dismissal is an interlocutory order with the consequence that leave to appeal is required. Ground 2 is the same as the first ground put before, and rejected by, the Federal Circuit Court. Ground 3 is the same as the second ground put before, and rejected by, the Federal Circuit Court. Ground 4 is not a ground at all but a statement of the consequences for the applicant should leave to appeal be refused.

9    There is no error apparent in the reasoning of the Federal Circuit Court. In support of the application today the applicant said the result reached in his case was unfair. He had told the Tribunal that he had been fooled by his migration agent and employer and that they had taken the money which his parents borrowed from loan sharks in China who, when the money was not repaid, had attacked his parents. The applicant also said that the Department had published his identity last year and this placed him at risk of serious harm. The Department had not yet confirmed what it was going to do about the breach of his privacy but he had now been in detention for a year and a half when he had other things to do.

10    The applicant’s submissions about the borrowed money relate to the merits of his application. The Tribunal dealt with those issues at length and, plainly, disbelieved the applicant. Those findings of fact were reasonably open to the Tribunal and cannot be the subject of review in this appeal. Insofar as the breach of privacy is concerned, a number of matters in this Court have now touched upon the circumstances in which, in 2014, the Department accidentally published on its website personal identifying information about applicants for protection visas (SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 and SZTYO v Minister for Immigration and Border Protection [2015] FCA 30). The applicant’s concern about this issue, and the fact that the consequences of it apparently remain unresolved while he is held in detention, is understandable. The problem for the applicant on this application is that, as the primary judge concluded, there is no suggestion that the data breach (as it has been referred to in the other cases) was raised before the Tribunal. Accordingly, the fact that the issue is not dealt with by the Tribunal cannot constitute a jurisdictional error.

11    It follows that no doubt, let alone sufficient doubt, has been raised about the correctness of the decision of the Federal Circuit Court. Accordingly, leave to appeal must be refused.

Associate:

Dated:    24 February 2015