FEDERAL COURT OF AUSTRALIA

SZVEY v Minister for Immigration and Border Protection [2015] FCA 394

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

1    Prior to immediate removal from Australia, the applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (Street J) and the orders made in that court this morning. By those orders, an application for extension of time in which to seek review of a decision of the Tribunal and an order precluding the applicant’s removal were refused and the proceeding was summarily dismissed, with costs.

2    I do not have before me the reasons of Street J. I do have before me a copy of the application before his Honour and an application filed in this court for leave to appeal, which sets out the following grounds:

1.    That His Honour erred in finding that the Application did not raise a reasonably arguable case in circumstances where an earlier decision of the Federal Circuit court summarily dismissing the same grounds has been reversed on appeal: SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 and SZTXY v Minister for Immigration and border Protection [2014] FCAFC 142.

2.    His Honour erred by finding that there was no arguable case that the representation made by the Second Respondent on 12 March 2014 involved a commitment by the Secretary to initiate a Departmental process for ascertaining the impact on the applicant individually of the release of her personal information by the Department and that the commitment went no further than allowing the appellant to raise those issues in any other process already open to her, such as a review application to the Refugee Review Tribunal.

3.    His Honour erred in refusing to grant an interlocutory injunction restraining respondents from removing the applicant from Australia pending the resolution of the substantive proceedings before the Federal Circuit Court.

[Errors in the original.]

3    The application before Street J set out a number of proposed orders:

1.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 and s198AD of the Act other than according to law and consistently with the declaration in orders 2-4.

2.    A declaration that it is not reasonably practicable for the First or Second Respondents, their officers or agents, to remove the applicant from Australia within the meaning of s198 and s198AD of the Migration Act unless and until consideration has been given by the Minister of Australia’s non-refoulment obligations (under the Refugee Convention; the Convention Against Torture; and the International Covenant on Civil and Political Rights) arising from the release of the applicant’s personal information in or about February 2014 in respect of the applicant, according to law.

3.    A declaration that the representation that an assessment of any implications for the applicant personally by the Second Respondent as part of the Department’s normal processes made on 12 March 2014 (“the 12 March 2014 representation”) involves a representation that the power vested in the Second Respondent by s61 of the Constitution will be used in favour of the applicant.

4.    Costs.

4    The application in the Federal Circuit Court also contained some 20 different paragraphs under the heading “Grounds of Application”, which could be said to be a recitation of the matters relied upon by the applicant. In this application, the applicant relies upon the consequences of what she terms a “data breach”. The data breach was in relation to confidential details in respect of the applicant that had apparently been released inadvertently by the Department of Immigration and Border Protection (the Department) on its website.

5    In essence, the Tribunal made a decision on 1 September 2014 in respect of the claims made by the applicant for a protection visa. The reasons of the Tribunal included a consideration of the data breach, under the heading “Release of Confidential Information”.

6    The Tribunal considered the applicant’s claim that those confidential details would mean that she would be targeted as a result of that release of information if she returns to China. The Tribunal considered the consequences of the data breach, in addition to the other claims by the applicant as to her fear of persecution. It concluded that no information about any of the applicant’s protection claims had been released and it was not satisfied that the information, which may have been accessed by the Chinese authorities, would make the applicant of adverse interest to them. The Tribunal, therefore, was not satisfied that there was a real risk of significant harm to the applicant arising out of the Chinese authorities’ awareness that she was or had been in immigration detention in Australia.

7    The decision of the Tribunal was the subject of an application for judicial review to the Federal Circuit Court. It was heard by Cameron J. An order was also apparently sought before Cameron J, that the applicant not be removed from the jurisdiction. I do not have his Honour’s reasons but I understand that, on 4 February 2015, his Honour concluded that there was no jurisdictional error by the Tribunal. His Honour dismissed the application for judicial review and gave ex tempore reasons. There was no appeal in respect of that decision.

8    The urgency of this application is that the Minister has advised the applicant that she will be removed from Australia tomorrow morning. Accordingly, it is necessary to consider this application in the absence of the reasons of Cameron J and of Street J and also in the absence of a complete understanding of the matters canvassed by Street J. It is the case, however, that the applicant has had the benefit of the consideration of her claims by the Tribunal and of an application for judicial review of that decision determined by Cameron J. From the orders made by Street J, his Honour concluded that there had been an abuse of process with respect to the application before him.

9    The applicant has elaborated a further ground in respect of the application for leave to appeal. That is an assertion that she is entitled to the benefit of a procedure known as International Treaties Obligation Assessment (ITOA), a procedure that is apparently carried out by the Department. In that regard, the applicant relies upon a letter sent on 9 February 2015 to another person for whom the present applicant’s solicitor apparently also acts (the letter). I note that the respondent objected to the tender of the letter before Street J and I am not aware of his Honour’s decision as to admissibility.

10    In any event, what the applicant specifically relies upon is a statement in the letter that the ITOA procedure would be implemented. The applicant relies upon the Department’s acceptance in the letter that it would consider any protection claims that the recipient may have had arising from the disclosure of personal information that apparently had been the subject of the same data breach as occurred in the present case.

11    The difficulty for the applicant is that the consequences of the data breach in her case were fully considered by the Tribunal. Accordingly, it is hard to see what additional processes the Department should have implemented in the present case if, in fact, the concern of the Department was to consider the consequences of the data breach for the particular applicant.

12    The applicant relies upon SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26, being an application to Greenwood J for an injunction pending an appeal in which that applicant relied upon a letter sent to that applicant referring to “normal processes” to be initiated on the part of the Department. In particular, the letter stated:

The Department will assess any implications for you personally as part of its normal processes. You may also raise concerns you have during those processes.

13    Justice Greenwood did grant the injunction sought, on the basis that his Honour concluded that it was an arguable question that there would be a possible process ‘other than simply subsuming the data disclosure questions within what would normally be a protection visa application’.

14    While it is not stated in SZWAJ, the Minister has said that there had been a Tribunal decision prior to the application being made to Greenwood J. However, it is noteworthy that there is no reference in his Honour’s reasons to the content of that Tribunal decision. In particular, there is no reference as to whether the Tribunal in that case had given a detailed consideration to the consequences to the applicant of the disclosure and the effect of that disclosure on the applicant’s claims under the Convention. In the present case, the Tribunal did give consideration to the consequences to the applicant of the data breach and, in particular, noted as part of its reasons that it also considered matters raised under the complementary provisions of the Migration Act 1958 (Cth).

15    The applicant submits that there is an independent obligation on the part of the Minister to carry out an ITOA assessment, even where the Tribunal has fully considered all of the matters in relation to the applicant including, as here, the consequences of the data breach. The applicant has not provided a basis for that contention other than a reference to the ITOA protocol itself.

16    The applicant contends that the Tribunal has not expressly or implicitly considered Australia’s non-refoulement obligations. The applicant has not established, and I do not accept, that contention. It is quite clear from the Tribunal decision that the Tribunal considered whether or not the applicant had established the basis for a protection visa and the consequences if the applicant were to be returned to China.

17    In circumstances where Street J accepted that the applicant was seeking to re-litigate the decision of the Tribunal and the decision of Cameron J, and held that there had been an abuse of process, I am not satisfied that the applicant has established that Street J was in error in making the orders that his Honour made. While the applicant has raised a number of different matters in seeking to support her application, she has failed to establish that she has not had adequate consideration of her claims, including as to the consequences of the data breach. The applicant has not established any arguable basis for the orders sought.

18    It follows that the application should be refused and that the application be dismissed. The Minister did not seek costs.

Associate:

Dated:    27 April 2015