FEDERAL COURT OF AUSTRALIA

CCE16 v Minister for Immigration and Border Protection [2017] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s Notice of Objection to Competency is allowed.

2.    The Applicant’s Originating Application dated 24 June 2016 is dismissed.

3.    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

BROMBERG J:

1    The applicant is a citizen of the People’s Republic of China who first arrived in Australia on 8 May 1996 as the holder of a Subclass 676 (Tourist) visa. It is not necessary to set out the entire history of the applicant’s dealings with the Department of Immigration and Border Protection (“Department”). It is sufficient to record that on 20 December 2013 the applicant made an application for a protection visa. In February 2014, the Department inadvertently published on its website personal information about the applicant and thousands of other asylum seekers who were in immigration detention as at 31 January 2014 (“data breach”). By letter dated 12 March 2014, the Secretary of the Department (“Secretary”) wrote to the applicant advising him of the data breach. The letter informed the applicant that as a result of the data breach it had been possible to access his name, date of birth, nationality, gender and details about his detention and whether he had any other family members in detention (“letter”). The Secretary then stated:

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.

2    Thereafter, on 3 October 2014, a delegate of the Minister rejected the applicant’s application for a protection visa. The delegate took into account the data breach and the applicant’s statement that he and his family had not experienced any adverse interest from the Chinese government since the breach had occurred some five months earlier, and found that the applicant’s profile had not been elevated by the data breach.

3    On 21 January 2015, the Refugee Review Tribunal (“Tribunal”) affirmed the decision not to grant the applicant a protection visa. The data breach and the applicant’s claim of fear of returning to China on the basis of being a failed asylum seeker were also taken into account by the Tribunal. The Tribunal considered the consequences of the data breach and found that there was no evidence to suggest that details of the applicant’s claim had been leaked to the Chinese authorities and, as the applicant had no profile in China, he would be of no interest to the authorities or seen as anti-government on his return to China.

4    An application for judicial review from the Tribunal’s decision was rejected by the Federal Circuit Court of Australia on 23 November 2015. An appeal from that judgment was dismissed by a judge of this Court on 29 June 2016.

5    On 10 August 2016, the applicant filed this proceeding which seeks judicial review and relief under s 39B of the Judiciary Act 1903 (Cth). Under the heading “Details of claim” the Originating Application states:

1.    The Minister for Immigration and Border Protection denied me procedural fairness in respect of giving consideration as to whether to make a decision to exercise the power under ss 417(1), 48B(1) and/or s195A of the Migration Act ('the Ministerial Intervention power') regarding to the "Privacy Breach" incident which consideration began on or about 12 March 2014 ("the Process"). This application is brought pursuant to section 39B of the Judiciary Act 1903 and the Constitution of Australia.

6    The Originating Application goes on to provide some particulars which suggest that the claim is predicated on an assertion that the respondent (“Minister”) had on or about 12 March 2014 commenced to consider whether to exercise his “Ministerial Intervention powers” (defined to be the ss 417(1), 48B(1) and 195A powers of the Minister under the Migration Act 1958 (Cth) (“Migration Act”)) in relation to persons who had received the letter. The particulars, in essence, assert that the Minister had determined to embark upon a process by which the Department would assess any implications of the data breach. The particulars then assert that the applicant was denied procedural fairness in relation to that process.

7    On 25 August 2016, the Minister filed a Notice of Objection to Competency which contended that this Court had no jurisdiction in relation to the proceeding by reason of s 476A of the Migration Act. When the proceeding was first listed for a case management hearing on 30 August 2016, the applicant appeared unrepresented. Ms Siobhan Kelly of counsel, who happened to be in Court, came to assist the applicant in circumstances where it had become obvious that the applicant was unable to comprehend the challenge being made to the Court’s jurisdiction to deal with his application. On the basis of Ms Kelly’s offer to assist the applicant, the case management hearing was adjourned. With the assistance of Ms Kelly, steps to bring the proceeding to trial were taken, including the filing of a written outline of submissions prepared by Ms Kelly and filed on behalf of the applicant.

8    When the matter came on for final hearing, the applicant was unrepresented. It seems that Ms Kelly was unable to obtain instructions from the applicant, and in the result, the applicant was no longer legally assisted. With the aid of an interpreter, the applicant made some submissions although none that addressed the issues that I need to determine. The applicant acknowledged that he relied on the written submissions prepared by Ms Kelly. The Minister relied on written submissions earlier filed and oral submissions made at the hearing. At the outset of the hearing, I determined that I would first deal with the Minister’s objection to the Court’s jurisdiction and leave for later hearing and determination any other issues should the Minister fail on its Notice of Objection to Competency.

Relevant statutory provisions

9    The Minister’s challenge to the Court’s jurisdiction relies principally on the terms of s 476A of the Migration Act. It is necessary to set out s 476A(1) together with other provisions which define terms there utilised. Section 476A(1) provides:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999 ; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 .

Note:    An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a)    a privative clause decision;

(b)    a purported privative clause decision;

(c)    an AAT Act migration decision.

In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.

The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions.

10    The phrase “migration decision” utilised by s 476A(1) is defined in s 5 of the Migration Act as follows:

"migration decision" means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

11    “Privative clause decision” is, in turn, defined as having the meaning given by s 474(2). It is necessary, however, that I set out the whole of s 474, which provides:

(1)    A privative clause decision:

(a)    is final and conclusive; and

(b)     must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)    In this section:

"privative clause decision " means 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 (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)    granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)    imposing, or refusing to remove, a condition or restriction;

(e)    making or revoking, or refusing to make or revoke, a declaration demand or requirement;

(f)    retaining, or refusing to deliver up, an article;

(g)    doing or refusing to do any other act or thing;

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

(i)    a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j)    a failure or refusal to make a decision.

(4)    For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

(5)    The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.

(6)    A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.

(7)    To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):

(a)    a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);

(d)    a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

Does the Court have jurisdiction?

12    As is apparent from the terms of s 476A(1), the Court has limited jurisdiction in relation to decisions made under the Migration Act. In relation to a migration decision, the jurisdiction of the Court is limited to those circumstances specified in paragraphs (a) to (d) of s 476A(1). It is not contended that any of those paragraphs have application. What the applicant contends is that the decision he seeks judicial review of is not a privative clause decision and therefore not a migration decision and therefore not caught by the limitations imposed by s 476A(1) of the Migration Act.

13    It is necessary then to identify what decision the applicant seeks to have judicially reviewed by this Court and determine whether or not the decision sought to be reviewed is or is not a migration decision.

14    The only decision referred to in the Originating Application is that recorded in the details of the claim as set out above, namely “giving considerations as to whether to make a decision to exercise the power under ss 417(1), 48B(1) and/or s 195A of the Migration Act”. The Originating Application suggests that the applicant seeks judicial review of a decision made under one or other of those provisions or, perhaps, a decision made in relation to the exercise of the power conferred upon the Minister under one or more of those provisions.

15    The difficulty for the applicant is that decisions made by the Minister to not exercise or not consider to exercise his power under ss 417(1), 48B(1) or 195A of the Migration Act are privative clause decisions as is made abundantly clear by the terms of s 474(7). Conduct preparatory to the making of a decision under one or other of those provisions would also constitute a privative clause decision by reason of the terms of s 474(3)(h). It follows therefore that any of the decisions identified by the Originating Application are privative clause decisions and therefore migration decisions, and, by reason of s 476A(1), this Court has no jurisdiction to judicially review any decision of that kind.

16    Recognising (at least implicitly) that difficulty, the applicant’s outline of submissions sought to recast the decision complained of by the applicant as follows (at [7]):

The decision about which the applicant is aggrieved is the decision, taken after the letter of 12 March 2014, that:

(a)    there would not be, in relation to the applicant, any assessment of the implications for him personally of the Data Breach using the Department’s ordinary processes; and consequently

(b)    the applicant would not be afforded the opportunity to make submissions in relation to that assessment.

17    No application was made to amend the Originating Application to seek judicial review of the decision as characterised in the applicant’s outline (“the asserted decision”). If such an application to amend had been made it may not have been refused on the basis that the Minister might be prejudiced. However, before I would have granted such an amendment or otherwise proceeded to deal with the proceeding as though the asserted decision was the decision in respect of which judicial review was sought in circumstances where it was disputed, I would need to have been satisfied that a decision of the kind asserted was actually made. There is no evidence before me to that effect. All that there is which arguably touches upon the issue is the letter. It might be suggested that where the letter refers to the Department assessing any implications for the applicant of the data breach “as part of its normal processes”, the Secretary had in mind some particular and specific process for evaluating the effect of the data breach. The asserted decision seems to be predicated on the existence of an earlier decision by the Department to embark upon a particular process to assess any implications for the applicant as a result of the data breach. The particulars given in the Originating Application tend to support that assumption.

18    The Minister denied that any such decision was ever made. The Minister submitted that there is no evidence of the asserted decision being made. The Minister contended that all that was intended to be communicated by the letter was that the Department would assess implications of the data breach as part of its normal processes and that, for the applicant, that was done when the applicant’s application for a protection visa was considered by the Department and reviewed by the Tribunal.

19    The Minister’s characterisation of the statement made in the letter is consistent with observations made by Griffiths J in SZWAJ v Minister for Immigration and Border Protection [2016] FCA 1173. That proceeding also raised the data breach and the pro forma letter of 12 March 2014. It was contended in that case that the 12 March 2014 letter involved a commitment by the Secretary to initiate a Departmental process to ascertain the effect of the data breach on the appellant in that case. Griffiths J rejected that construction of the terms of the letter at [32]:

Secondly, as the Minister pointed out, there was no evidence below to support any claim that the Department’s “normal processes” as they applied to the appellant involved something other than, for example, the processes associated with the making of a valid application in Australia for a visa, including a protection visa. In the appellant’s case, for her to remain lawfully in Australia she had to obtain a visa. It was only after receipt of the 12 March 2014 letter that the appellant applied for a protection visa and, in the context of the process relating to the consideration and determination of that application (together with the subsequent review by the Tribunal under Pt 7 of the Migration Act), the appellant had the opportunity to make submissions and adduce evidence as to the effect of the Data Breach on her claims for protection. The former process is appropriately regarded as a “normal process” of the Department and the appellant availed herself of the opportunity presented by it. She also availed herself of the opportunity to have the Tribunal review the delegate’s decision. In the particular circumstances appertaining to the appellant, the primary judge did not err in finding that the appellant’s case in this respect was not reasonably arguable.

20    I respectfully agree with those observations. I do not construe the reference made in the letter to “normal processes” as indicative of a decision to institute some particular or specific process for addressing the implications for the applicant of the data breach.

21    The content of the letter does not establish that the asserted decision was made and, as I have said, there is no other evidence before me capable of establishing that fact. The establishment of that fact is a necessary precondition for the exercise by this Court of its jurisdiction to conduct a judicial review. In the absence of the applicant establishing the existence of the decision for which judicial review is sought, the proceeding must be dismissed.

22    In any event, even if it had been established that the asserted decision was made, I am not persuaded that such a decision was not a migration decision.

23    The following submission was made at [11] of the applicant’s outline as to why the asserted decision was not a privative clause decision and therefore not a migration decision:

The decision complained of is a decision of an administrative character because it was a decision made anterior to consideration of the exercise of statutory power (being a decision to exclude the applicant from the class of persons in relation to whom the Minister would consider whether to make a substantive decision). It was not, however, a privative clause decision because it was not ‘made, proposed to be made, or required to be made, as the case may be’ under the Act or its subordinate legislation.

24    The submission is predicated on the asserted decision having been “made anterior to consideration of the exercise of statutory power”. Although the statutory power there referred to is not specified, in the circumstances, the reference could only be to the exercise of a statutory power under the Migration Act. Put another way, the submission is predicated on the asserted decision being anterior to the making of a decision under the Migration Act.

25    What constitutes a privative clause decision for the purposes of s 474 is set out in s 474(2). Section 474(3) then provides that a reference in s 474 to a decision includes a reference to “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”: s 474(3)(h).

26    The applicant’s submission seeks to avoid the conclusion that the asserted decision is a privative clause decision for being “conduct preparatory to the making of a decision” in this way:

[12]    In SZSSJ [SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29], the High Court confirmed that an ITOA [International Treaty Obligations Assessment] conducted by an officer of the Department answers the description in s 476(2)(d) of a privative clause decision or purported privative clause: 913 at [66]. That conclusion was reached on the basis that the conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister – specifically, it is the holding of an inquiry or investigation: 913 at [66].

[13]    That circumstance is distinguishable from the present case. Here, there was no ‘process’ applied to the applicant: he was, by administrative decision, excluded from the class in relation to whom a ‘process’ was applied. The decision to remove him from the class was not an act preparatory to the making of a substantive decision by the Minister – it was an act anterior to those preparatory steps and which had the effect of excluding him from them. It is therefore of a different character to an ITOA, which is conducted for the purpose of facilitating the making of a substantive decision by the Minister.

27    I agree that the asserted decision is of a different character to an International Treaty Obligations Assessment (“ITOA”). However, I do not accept that the making of that decision would not constitute “conduct preparatory to the making” of the substantive decision under the Migration Act. Whilst it is true that, unlike the facts of SZSSJ, no ITOA or ITOA-like process was applied to the applicant, the conduct referred to in s 474(3)(h) is not limited to the carrying out of a process. Assuming that the carrying out of a process is “preparatory” to the making of a substantive decision, it seems to me that a decision to apply that process to a particular individual must also be preparatory. If that is so, a decision to reverse that intent, that is, not to apply the process to that individual, is equally preparatory. On the facts as asserted by the applicant’s submission, that is this case. It follows that any such decision would be a privative clause decision and therefore a migration decision.

28    For those reasons, the proceeding must be dismissed. The applicant did not contend that costs should not follow the event and I am unable to discern any basis for concluding that the ordinary rule should not be applied. Accordingly, I will also order that the Minister’s costs of the application be paid by the applicant. Finally, the Court expresses its gratitude to Ms Kelly who, in the best traditions of the Victorian Bar, provided the pro bono assistance to the applicant to which I earlier referred.

Associate:    

Dated:    17 May 2017