FEDERAL COURT OF AUSTRALIA

FQL17 v Minister for Immigration and Border Protection [2020] FCA 121

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellant is a citizen of the People’s Republic of China. He arrived in Australia by air on a student visa on 13 February 2007. However, he ceased studying on the basis that he could not pay his tuition fees.

2    In October 2007, the Appellant’s father came to Australia and applied for a protection visa listing the Appellant as a dependent applicant. That application was refused. On 16 December 2014, the then Refugee Review Tribunal (RRT) affirmed that decision. An appeal to the Federal Circuit Court of Australia (FCCA) from that decision was dismissed.

3    In June 2012, the Appellant applied for a protection visa on the basis that he had in 2012 become a member of I-Kuan Tao: a version of Taoism that is outlawed in China. That application was refused. The RRT affirmed that decision.

4    The Appellant’s father then made a further application for a protection visa, again listing the Appellant as a secondary applicant. That application was again refused, and the RRT again affirmed that decision.

5    In June 2014, the Appellant was in immigration detention when the following events (as described in a statement attached to the visa application relevant to these proceedings) occurred:

I was still in detention when the Department released personal details of all people in immigration detention on the last day of January 2014 (the data Breach). My details were also released. I received a letter from the Secretary of the Department to inform me of that and it assured me that the possible consequences of the breach of my privacy would be investigated for my case individually.

6    On 16 August 2017, the Department notified the Appellant by letter that he had been allocated a particular Person Identification Digit (PID) and would shortly be advised as to whether he was eligible to apply for a protection visa.

7    On 5 September 2017, the Department sent the Appellant a further letter notifying him that the Minister had exercised his power under s 48B of the Migration Act 1958 (Cth) (Migration Act) to enable him to make a further protection visa application. That letter again informed the Appellant of his Person Identification Digit, as follows:

Personal identifier

For processing and correspondence purposes, you have been given a Personal Identification Digit (PID), which is recorded at the top of this letter. Please keep a record of your PID.

8    On 12 September 2017, the Appellant made a fresh application for a Subclass 866 Protection Visa (Protection Visa).

9    On 19 December 2017, a delegate of the Minister (the Delegate) refused to grant that Protection Visa.

10    The Immigration Assessment Authority (IAA) reviewed that decision. On 11 December 2017, it affirmed the Delegate’s decision to refuse to grant the Appellant the Protection Visa that he sought.

11    The Appellant sought review of the IAA’s decision in the FCCA. That application was dismissed on 31 July 2019. It is that decision which is the subject of the present appeal.

Regulatory Framework

12    By way of background to the issues that arise in this appeal, it is helpful to first provide some context as to the relevant regulatory framework. That framework was established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seeker Legacy Caseload) Act 2014 (Cth).

13    The definition of “fast track applicant” in s 5(1) of the Migration Act provides that the term refers to:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)     to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)     who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

(Emphasis added).

14    This appeal turns on issues related to the validity and/or effect of a legislative instrument titled: Migration (IMMI17/015: Person who is a Fast Track Applicant) Instrument 2017 (Cth) (IMMI17/015).

15    That instrument was purportedly made under s 5(1AA)(b) of the Migration Act. That section provides, relevantly:

(1AA)    The Minister may make a legislative instrument for the purposes of the following provisions:

…

(b)    paragraph (b) of the definition of fast track applicant in subsection (1).

16    Under the Migration Act, the IAA has jurisdiction to review decisions to refuse protection visas to fast track applicants. It is uncontentious that the Appellant’s circumstances do not fall within the terms of s 5(1)(a) of the Migration Act. Thus, he can only be a “fast track applicant” if he is a person who has been “specified” by IMMI17/015.

17    The text of IMMI17/015 is as follows:

Part 1 – Preliminary

1 Name

This instrument is the Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017. This instrument may also be cited as IMMI 17/015.

2 Commencement

This instrument commences on the day after registration on the Federal Register of Legislation.

3 Authority

This instrument is made under paragraph 5(1AA)(b) of the Migration Act 1958.

4 Definitions

In this instrument:

Act means the Migration Act 1958.

5 Purpose

(1)    This instrument is made for the purpose of paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act.

  (2)     This instrument specifies a person who is a fast track applicant.

Part 2 – Fast track applicants

6 Person who is a fast track applicant

A person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant.

18    Schedule 1 to IMMI17/015 is as follows:

Schedule 1—Person Identification Digit

1    Department of Immigration and Border Protection Person Identification Digits

19    The explanatory statement to IMMI17/015 states that the legislative instrument was intended to operate in the following manner:

Under paragraph 5(1AA)(b), the Instrument specifies persons who have a departmental Person Identification Digit listed in the Instrument to be fast track applicants. The persons whose identification numbers are listed in the Instrument are those unauthorised maritime arrivals (UMAs) and non-UMAs who do not fall within the current definition of fast track applicant and who:

•    have raised claims in relation to an unintentional disclosure of their personal information on the departmental website (data breach) on 11 February 2014.

These persons are currently barred from making a valid application for a Protection visa by either the section 46A bar, because they are UMAs, or by section 48B as they have  previously made a Protection visa application which was refused (in some cases they are barred by both).

The Government wishes to provide access to the Australian Protection visa assessment process for these persons.  The Government considers that the ‘fast track process’ is the appropriate mechanism for the consideration of these persons’ Protection visa applications.

20    A Full Court of the Federal Court of Australia recently considered IMMI17/015 in SZTVU v Minister for Home Affairs [2019] FCAFC 30 (SZTVU).

21    In joint reasons with which Perry J expressed agreement, Derrington and Wheelahan JJ rejected the submission advanced in that case that only protection visa applicants could fall within subparagraph (b) of the statutory definition of the term “fast track applicant”. The plurality commenced their analysis by noting that:

the task of statutory construction must begin with a consideration of the statutory text and “[s]o must the task of statutory construction end”: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at 519 [39], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009): 239 CLR 27 at 46 [47].

22    Their Honours reasoned that “fast track applicant” was a term “given a special meaning by the definition in s 5(1)” and that:

63.    Paragraph (b) of the definition of “fast track applicant” is, relevantly, unambiguous on its face … There is no express limitation in the definition that would confine the instrument-making power in s 5(1AA) of the Act so that only persons, or classes of persons, who have made a valid application for a protection visa can be specified for the purposes of the definition. This may be contrasted with sub-paragraph (a) of the definition of “fast track applicant” which contains three cumulative conditions …

23    Their Honours held that considerations of context or purpose could not support the narrower definition of “fast track applicant” for which the Appellant contended, because the operative provisions of the Migration Act applying to such “fast track applicants” would in any event only affect persons who had made valid applications for protection visas:

58.    A “fast track decision” can be made only in relation to an applicant who has made a valid visa application. This is in consequence of s 47(3) of the Act which, while imposing a duty on the Minister to consider a valid application for a visa, mandates that the Minister is not to consider an application that is not a valid application, and also having regard to s 47(4) of the Act, which provides that a decision by the Minister that an application is not valid, and cannot be considered, is not a decision to refuse to grant the visa.

24    Counsel for the Appellant in the present appeal, Mr Prince SC, formally reserved his position as to whether a single judge exercising the appellate jurisdiction of the Federal Court of Australia is formally bound by a decision of a Full Court exercising identical appellate jurisdiction: against the prospect of an appeal to the High Court. However, he did not press a submission that it is open to me to hold that the decision of their Honours in SZTVU was “plainly incorrect”. He accepted that in comity I am therefore entitled to, and ought to, follow that decision.

25    However, Mr Prince submits that the gravamen of this appeal concerns a question that was not determined in SZTVU. That is because the Full Court in that case refused the appellant leave to rely upon a ground raising that question. Mr Prince drew attention to the circumstance that the appellant in SZTVU had sought leave to file an amended notice of appeal raising an additional ground: proposed ground 7. That proposed ground had been articulated as follows:

The primary judge erred by finding at [17] that the Tribunal was correct to find that the Appellant was “a person specified by an anonymised particular reference” in IMMI17/015 and that the Appellant was a 'fast track applicant' when there was no basis for those findings.

26    In their joint reasons, Derrington and Wheelahan JJ declined to grant the appellant in SZTVU leave to advance that proposed ground for three reasons. First, their Honours rejected the appellant’s argument that the narrow definition of the term “personal identifier” in s 5A of the Migration Act suggested that the relevant part of s 5(1) was not intended to empower the Minster to use PIDs to specify persons as fast track applicants, because:

82.    … the term “personal identifier” has a different purpose, and is defined in terms that relate to the ascertainment of personal attributes, such as fingerprints, height, weight, photographs, recordings, iris scans, and signatures. In general, the Act requires persons to provide personal identifiers (see, for example, s 257A and s 261AA). Furthermore, the Act contains provisions that are directed towards maintaining confidentiality of identifying information, and limiting the purposes for which disclosure of that information may be made: s 336E to s 336FD.

83.    Paragraph (b) of the definition of “fast track applicant” (set out under [26] above) contemplates that a legislative instrument made under s 5(1AA) of the Act may specify a person, or a class of persons for the purposes of that paragraph. Whether a particular person has been specified in an instrument for the purposes of paragraph (b) of the definition of “fast track applicant” either individually, or as a member of a class, is a question of fact. But there is nothing in the legislation which in our view precludes the use of identifying numbers. The use in the Instrument, which must be tabled before the Parliament, of identifiers that do not publicly identify the persons specified in the Instrument, is consistent with other provisions of the Act, such as s 91F(4), s 91L(4), s 91Q(5), s 195A(7), s 197AG(2), s 198AE(5), and s 198AJ(3) which, in the circumstances addressed by those provisions, prohibit the Minister from identifying persons in documents tabled before Parliament.

(Emphasis added).

27    Second, their Honours reasoned that the “evidentiary foundation” for the proposition that the appellant had not been allocated a PID prior to the making of IMMI17/015 was “at best, slim”:

84.    … The appellant’s case rests principally on the letter to the appellant from the Department dated 5 September 2017 as being the first notification he received that a PID had been allocated to him. However, the terms of the letter do not speak to when the PID was allocated, save that the letter gives rise to an inference that the PID was allocated to the appellant at some time before the letter was sent.

28    Their Honours noted in relation to the evidentiary gap:

[i]n our opinion, because the appellant did not raise this issue in the Federal Circuit Court, the Minister was not able to consider adducing direct evidence, which may have resolved the issue one way, or the other.

29    Third, in declining to grant leave their Honours took into account the principles relating to the general reluctance of an appeal court to permit a party to rely on an appeal ground not agitated in the court below.

The Federal Circuit Court of Australia Decision

30    Before the FCCA, the Appellant in the present case pressed the following three review grounds:

Ground 2: IMMI17/015 is invalid in so far as it purports to apply to the Applicant.

Particulars

The IAA failed to consider whether the Applicant was a person specified by an anonymised particular reference in IMMI17/015 and that the Applicant was a “fast track applicant” when there was no basis to do so.

Ground 3: The IAA failed to consider whether the delegate’s decision was a valid decision.

Particulars

The IAA failed to consider whether it had jurisdiction to review the delegate’s decision.

Ground 4: The IAA failed to consider whether it had jurisdiction to review the delegate’s decision.

Particulars

The IAA failed to determine whether the Applicant was a fast track applicant or not.

31    In those proceedings the Appellant ultimately conceded that he had been allocated a PID, and that he was referred to by that PID in Schedule 1 of IMMI17/015. The basis for his making that concession was the following evidence, which the Minister provided to the Court:

9.    In an affidavit of Che-Long Chang of 13 June 2009, the Court has been provided with a screenshot of the first respondent’s “integrated client services environment (ICSE) internal database system in respect to the applicant, which records among other things, the Person Identification Digit (“PID”) allocated to the applicant” on 10 November 2006. In addition, the Court has been provided with a copy of a letter dated 5 September 2017, from the first respondent to the authorised representative of the applicant, confirming the allocation of the personal identification digit to the Applicant.

32    However, the Appellant nonetheless submitted that he was not “a person who is, or who is included in a class of persons who are, specified by” IMMI17/015. The primary judge summarised the Appellant’s submissions in that regard as follows:

18.    It was submitted that the term "Personal Identifier" is a term defined in s 5A of the Act to include, for example, a person's fingerprints, a photograph of a person's face and shoulders and a person's signature. The purpose of a "Personal Identifier" under s 5A (3) of the Act is to assist in the identification of and to authenticate the identity of persons for the purposes of the Act. It was further submitted that unlike "Personal Identifier" the term "Personal Identification Digit" is not defined by the Act (or by IMMI17/015). It was submitted that the Act did not empower a person to give a PID to a particular person or to specify that a particular number is a PID and is referrable to a particular person.

19.    It was submitted that a Court is simply informed by the Minister that a person has been given a PID by the Department and has no means to independently verify that claim within the statutory framework. It was submitted that there was no way for a Court to test whether a mistake has occurred in allocating the PID or whether a Departmental officer has exceeded his or her authority by giving the person a PID or that the Minister proceeded on the understanding that the particular PID corresponded to a particular natural person in the making of the regulation.

20.    During submissions before the Court, Ms Byers submitted that a list of numbers does not specify a class of person. In order for there to be a class of persons there must be shared attributes which are specified by the legislative instrument, informing those persons so they can verify whether or not they in fact meet the legislative requirements for being a "fast track applicant".

33    It is convenient to reproduce in full the dispositive paragraphs of the reasons of the FCCA with respect to those submissions. The FCCA reproduced the definition of “fast track applicant” in s 5(1) of the Migration Act, and then held that:

31.    The wording used above is used in both the singular and plural. That is it may either be a person or it may be a class of persons. There is no requirement that there be a common attribute between any and all of the persons who may be included in a legislative instrument. That is a matter for the Minister’s discretion.

32.    Whilst it is common ground that the applicant was not an unauthorised maritime arrival to which s 5(1)(a) of the Act applied to, he was a person who, as indicated above, had made previous protection visa applications which had been rejected. The Minister, for whatever reason, by referring to the applicant by reference to his PID in schedule 1 of IMMI17/015, provided to him a further mechanism by which he could lodge a further visa application but on the premise that it would be subject to a "fast track" review process should it be refused.

33.    I am satisfied that the reasoning of the Full Court in SZTVU [2019] is applicable in this case. Further, in this case, information has been provided to the Court which indicates that a PID was allocated to the applicant at a much earlier date. No evidence has been put to the Court that a mistake occurred in allocating the PID, or that a departmental officer exceeded his or her authority in giving the applicant a PID. The ground cannot be sustained.

34.    In relation to the submission that the Authority failed to undertake an essential jurisdictional task in establishing whether or not the applicant was a "fast track applicant", the submission must fail. Once it is established that the applicant has been validly specified as a "fast track" applicant and there is a refusal by the delegate, then the decision to refer the matter to the Authority is an obligation that is placed on the Minister. I am not satisfied that there is any requirement for the Authority to conduct a preliminary enquiry into whether the applicant is indeed a "fast track" applicant. That is presumed by the referral. If it was suggested that he was not relevantly a "fast track applicant", that issue should have been relevantly pleaded before the Authority. In the present case however, with the submission having been advanced in this Court that the applicant was not a "fast track" applicant, evidence has now been provided which, as I have found above, indicates he was validly delegated as a "fast track" applicant. I cannot accept that there is a duty of the Authority to enquire into each and every matter, rather it simply has a duty to proceed to review matters that are referred to it by the Minister.

Grounds of Appeal

34    The Appellant filed a notice of appeal from the decision of the FCCA on 28 August 2019. The grounds of appeal are as follows:

1.    The Federal Circuit Court of Australia erred in finding the appellant was validly specified as a Fast Track applicant.

Particulars

   a.    The creation of the Personal Identification Digit (“PID”) in 2006 was for a purpose other than to specify the appellant as a Fast Track applicant;

   b.    The listing of the PID that was created in 2006 did not establish that the appellant was validly specified as a Fast Track applicant;

c.    A PID is not a person, or a class of persons as required by subsection 5(1) of the Migration Act 1958 (Cth); and

d.    The Minister has not identified the appellant as person nor validly specified the appellant as a Fast Track Applicant.

2.    The Federal Circuit Court of Australia erred in finding there was no requirement for the IAA to conduct an enquiry into whether the appellant was a Fast Track applicant.

  a.    The IAA is [an] independent agency;

  b.    No evidence was provided to the IAA that the appellant had been validly specified as a Fast Track applicant; and

  c.    The appellant did not submit that the IAA has a duty to enquire into each and every matter but as part of its review of the appellant’s specific circumstances as a plan [sic] arrival, the IAA needed to be satisfied or consider whether the appellant had been validly specified as a Fast Track applicant and/or the referral to the IAA was valid.

Leave to rely on new grounds

35    The Minister submits that when those grounds are understood in the context of the Appellant’s submissions in the court below, the Appellant requires leave to advance them before this Court. In that regard, the Minister firstly submits that SZTVU presents a significant difficulty for the Appellant. With respect to the Appellant’s submission that the present case is distinguishable because no evidentiary gap with respect to the allocation of a PID arises, the Minister submits that that is not to the point:

This distinction, however, does not alter the correctness of the Full Court's findings as to the operation of the Act, the validity of IMMI17/015, or the legitimacy of using PIDs to specify a person as a "fast track applicant" (SZTVU at (82]-[83]). Neither does it provide a basis for the contention that SZTVU ought not to be followed nor that the Full Court's reasoning is not applicable to the present case (as found by the FCC - DR [33]).

36    The Minister submits that to overcome that difficulty, the Appellant has sought to reframe the argument which he originally advanced before FCCA. Having conceded before the primary judge that he was in fact allocated a PID prior to the making of IMMI17/015, he:

has now sought for the first time on appeal (at AS [15]-[16], [28], [30]-[31]) to reframe that contention as being directed to the sufficiency of evidence that the Minister "was advised of the names and details of the applicant which corresponded to the PID number listed in the Schedule" and that "the linkage between the applicant's identity as a person and the string of numbers was ever before the Minister when making the instrument" (AS [30]; see also AS [28], [31]).

37    The Minister submits that as a result, while superficially similar to the grounds advanced before the primary judge, the grounds that the Appellant seeks to advance before this Court are in fact new. Leave is therefore required to rely upon them.

38    The Minister further submits that such leave should not be granted because had that new evidentiary gap been raised before the FCCA (where the Appellant was represented by the same representatives as have carriage of his appeal), at which time it might have been the subject of evidence by the Minister. Moreover:

(a)    there has been no explanation (let alone an adequate explanation) for the failure of the appellant to raise these points below, in circumstances where the appellant was represented below (by the same solicitor). The Minister further notes that these contentions go beyond the pleaded grounds contained in the notice of appeal;

(b)    the proposed grounds impermissibly seek to invite this Court to "perform the trial court's entire function" and seek to reduce the FCC proceedings to "little more than a preliminary skirmish". Further, the grant of leave would "effectively defeat the statutory scheme in relation to judicial review of decisions of the Tribunal in respect of protection visas", which allocates to this Court appellate jurisdiction only;

(c)    the grant of leave would furthermore be contrary to the timely and effective disposal of litigation which is a matter of significant public interest in this area of law;

(d)    the grant of leave in the circumstances of this case would be prejudicial to the Minister, because (as noted in SZTVU at [85]), the failure to advance this issue before the FCC has deprived the Minister of the opportunity to consider adducing direct evidence; and

(e)    for the reasons set out below, these grounds neither demonstrate that the decision below was attended with sufficient doubt (as is unsurprising, given that they do not cavil with any of the findings made by the primary judge but rather only raise matters which his Honour was not asked to determine) nor do they have sufficient merit to warrant leave.

(Footnotes omitted).

39    Having regard to the terms in which the Appellant’s contentions were summarised by the primary judge (see at [32] above) I am unpersuaded that Ground 1, while perhaps differently nuanced, diverges in substance from that advanced in the court below. I therefore find that the Appellant does not require leave to advance the ground in this appeal.

Ground 1

Appellant’s Submissions

40    The Appellant’s submissions with respect to Ground 1 firstly contextualise the Minister’s power within the relevant statutory scheme, as:

[t]he scope of power under s 5(1AA) to specify a person a “fast track applicant” must be consistent with the statutory scheme in which it was placed (Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [54],[71] (French CJ) and [221] (Hayne J), in this case the power to specify that a sub-class of protection visa applicant under the Migration Act be processed in a particular way.

41    As earlier noted, the Appellant:

    … does not submit that SZTVU was plainly wrong for the purposes of seeking to overturn it as a recent authority of the Full Court, although does make a formal submission that it would not be followed at a higher level of appeal to reserve his rights.

42    However, the Appellant submits that that decision is not dispositive of the present appeal. In his written submissions, Mr Prince submits:

14.    A matter which was before the Court below but which was expressly excluded from consideration by the Full Court in SZTVU was whether there was an evidentiary basis to conclude that the appellant was the person specified in the Instrument, even though the putative PID number appeared in the instrument in circumstances where there is a significant gap in the evidence that the Minister was specifying the appellant in this case by placing the particular PID in in the Schedule. This was the proposed new ground 7 in SZTVU and leave was not granted to rely on the ground as it had not been argued at first instance: see [2019] FCAFC 30 at [73] and [85].

15.     By contrast, the issue of whether the appellant in this case was in fact the person to whom the Minister referred by reference to the PID was squarely in issue at first instance in these proceedings.

16.    The Court below did not make any findings on the use of PIDs; whether the appellant was validly specified in the IMMI17/015 Instrument; and whether the use of the PIDs was valid or permitted by law.

17.    At [34] the Court found that there was no obligation on the Authority to conduct a preliminary inquiry into whether the appellant was a fast track applicant notwithstanding that designation as a ‘fast track applicant’ under the Act was a jurisdictional precondition to the Authority’s statutory jurisdiction.

(Emphasis added).

43    Having thus addressed SZTVU, Mr Prince then submits that although the Appellant accepts that he was allocated a PID on 10 November 2006 there is “no evidence as to how [the 2006 PID] was later used or advised to the Appellant”. The Appellant was only advised that he had a particular PID after the time IMMI17/015 was made. He further submits there is no evidence that the Minister was ever advised that the PID in question was:

… associated with this particular appellant as an individual prior to [the Minister] specifying the number in the Schedule of IMMI17/015.

29.    On 16 August 2017 (after the making of IMMI17/015) the applicant received the letter from the Department of Immigration and Border Protection which advised that he has been given the PID “0074204613” for “processing and correspondence purposes”. However, there was no evidence that the applicant had been given the PID “0074204613” (or any other PID in Schedule 1 to IMMI17/015 at the time IMMI17/015 was made.

…

30.    Importantly the Minister (in whose exclusive knowledge the facts must lie) has lead no evidence to establish that he was advised of the names and details of the applicant which corresponded to the PID number listed in the Schedule. That is no evidence that the linkage between the applicant’s identity as a person and the string of numbers was ever before the Minister when making the instrument.

44    The Appellant thus submits that the Minister’s power to make IMMI17/015 was predicated on him having at that time associated the list of PIDs in Schedule 1 with one or more particular identified individuals. To find otherwise would create scope for “errors and injustice” and would be “truly Orwellian”.

45    In support of that construction of the Migration Act, the Appellant relies upon the approach taken in other legislative instruments:

32.    It may be noted that this serious risk of error was avoided by other Instruments made under the same power have not relied on a “PID” but which rather define a class of “fast track applicant” according to independently verifiable characteristics (i.e. not PIDs):

a.    Migration (IMMI 18/019: Fast Track Applicant Class) Instrument 2018

b.    Migration Act 1958 - Class of Persons Defined as Fast Track Applicants 2016/049

c.    Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/008

d.    Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/010.

46    The Appellant also relies upon the definition of the term “personal identifier” in s 5A of Migration Act, which relevantly provides as follows:

“personal identifier" means any of the following (including any of the following in digital form):

(a)    fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

   (b)    a measurement of a person's height and weight;

   (c)    a photograph or other image of a person's face and shoulders;

(d)    an audio or a video recording of a person (other than a video recording under section 261AJ);

   (e)    an iris scan;

    (f)     a person's signature;

(g)    any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .

…

(2)    Before the Governor-General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:

…

(c)    obtaining the identifier will promote one or more of the purposes referred to in subsection(3).

(3)    The purposes are:

(a)    to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and

   (b)    to assist in identifying, in the future, any such person …

47    The Appellant submits that the fact that the Migration Act does not put in place similar restrictions or protections with respect to the allocation of PIDs supports a narrow interpretation of the Minister’s power to designate persons to be “fast track applicants”:

34.    Unlike “personal identifier”, the term “Person Identification Digit” is not defined by the Act (or by IMMI17/015). The Act does not empower a person to give a PID to a particular person or to specify that a particular number, for example “0074204613” is a PID and is referrable to another person. A Court informed by the Minister that a person has been given a PID by his department has no means to independently verify that claim within the statutory framework. There is no way for a Court to test whether a mistake has occurred in allocating the PID or that the Minister proceeded on the understanding the particular corresponded to a particular natural persons in the making of the Regulation.

48    However, in oral submissions I take Mr Prince to have conceded the following points:

(a)    no question of procedural fairness was engaged as would have required the Minister to notify FQL17 that he was intending to specify him as a fast track applicant; and

(b)    there was nothing in the Migration Act or the Migration Regulations 1994 (Cth) as would prohibit the Minister specifying “a person” by legislative instrument for the purposes of s 5(1)(b) of the Migration Act as a “fast track applicant” by a pseudonym.

49    That accepted, Mr Prince maintained that those concessions did not extend to the present circumstances. That, he submitted, was because the legislative instrument on its face provided no basis on which to link a numeric pseudonym to “a person”. On its true construction, s 5(1)(b) of the Migration Act required that the Minister be aware of FQL17’s actual identity. Section 5(1)(b) authorised the Minister by legislative instrument to specify “a person”. It was not open to the Minister simply to specify a list of numbers which might or might not relate to “a person”.

50    It was a question of (jurisdictional) fact whether FQL17 had been so specified. In that regard Mr Prince submitted that there was no evidence before the primary judge to establish that when the Minister issued IMMI17/015 (with Schedule 1 containing a table of numbers) the Minister was aware that FQL17 as “a person” was the actual subject of his specification as a “fast track applicant”:

I’m not asking your Honour to see this as a floodgates argument because it’s not because, again as the court said in SZTVU, it’s a matter of evidence as to whether or not it refers to a particular person, a matter of fact. And, here, it was clearly in issue that [IMMI17/015] did not refer to my client as a particular person. And the evidence that was led by the Minister as a result of its forensic decisions was inadequate to establish that it was directed to my client as a person. I don’t know whether in a different case the evidence might be different. Who knows? But here the evidence is insufficient.

Minister’s Submissions

51    At the outset, the Minister takes issue with three of the factual premises underlying the Appellant’s submissions. The Minister submits that:

(a)    First, the issue of "whether the appellant in this case was in fact the person to whom the Minister referred by reference to the PID" was not (as the Appellant submits) "squarely in issue at first instance". The issue before the FCCA was solely whether there was evidence that the PID was allocated to the appellant prior to the making of IMMI17/015 (a point that the Appellant conceded) and the permissibility in general terms of the Minister using PIDs as a means of designating people as “fast track applicants”.

(b)    Secondly, there was evidence before the FCCA demonstrating that the Appellant was advised of his PID and showing how it was used: namely the letters from the Department dated 16 August 2017 and 5 September 2017 respectively. The Minister also notes that:

It is apparent also that the appellant was aware of his PID and its purpose, as it was included in the Form 956 prepared by his legal representative on 25 August 2017 which was then included in his Protection Visa application; and

(c)    There was evidence before the FCCA that the Appellant had been allocated a PID prior to IMMI17/015 being made, contrary to paragraph 29 of the Appellant’s outline of submissions.

52    The Minister’s written submissions then identify “four fundamental difficulties” with the Appellant’s submission that the Minister could not validly exercise their power to designate a person as a “fast track applicant” by assigning them a PID because that number cannot be independently verified as specifying a particular person:

(a)    first, as demonstrated by the evidence adduced before the FCC in this case, it is possible for the Court and an applicant to verify that an applicant is a person so designated. Likewise, it is clear that an applicant who has been so designated (as a fast track applicant) is informed of that fact by the Department, prior to the making of any Protection Visa application - as again occurred here. The explanatory statement to IMMI17/015 furthermore provides additional information as to the identity of the persons so designated - namely, that they are persons who (a) were statute barred from making a Protection Visa application; (b) did not fall within the existing definition of a "fast track applicant"; and (c) had raised claims in relation to the 2014 data breach. It is not disputed that the appellant is such a person;

(b)    secondly, and more fundamentally, it is wholly unsurprising that the contents of IMMI17/015 do not, in and of themselves, allow a Court or an applicant to identify the specific individuals designated by that instrument. To the contrary, it would be remarkable if it did allow such identification, given that the Act makes it an offence for any person to disclose identifying information (s 336E) and prohibits the Minister from identifying persons in documents tabled before Parliament (as observed by the Full Court - SZTVU at [83]). Notably, it is apparent from the terms of the explanatory statement to IMMI17/015 that the use of a PID was specifically chosen to 'protec[t] the identity of the relevant people" and to "ensure that their names, and the fact that they are claiming protection, will not become a matter of public record, thus protecting their privacy".

(c)    thirdly, it is likewise wholly unremarkable that the identifier used in IMMI17/015 would differ from that used in other instruments (as referred to at AS [32]). Unlike those other instruments, IMMI17/015 designated persons rather than a "class of persons". The decision to designate specific persons necessarily requires a more precise identifier than that used to designate a broader class of persons. The need to specifically identify such persons must however be balanced against the obligation not to publicly identify such persons. The choice of designator furthermore was required, in this case, to take into account that certain personal information of those persons had already been released publicly through the data breach. For the purposes of IMMI17/015, the PID was chosen as an identifier that struck such a balance. As held by the Full Court in SZTVU, "there is nothing in the legislation which ... precludes the use of identifying numbers" for that purpose (at [83]); and

(d)    fourthly, the Full Court has already determined -in respect of submissions substantively similar to those advanced by AS [33]-[34] -"that there is nothing in the appellant's argument to this Court that, because the term "Personal Identification Digit" is not defined by the Act, the Act does not empower a person to give a PID to a particular person for the purposes on the instrument-making power ins 5(1AA)" (SZTVU at [82]). The Full Court further held that the term "personal identifier" in s 5A had ''a different purpose" to the PID, and (as already noted) that the use of the PID was consistent with the non-publication obligations contained within the Act and was not otherwise precluded by the Act (SZTVU at [83]). Nothing set out in the AS provides a basis for departing from the Full Court's findings on these issues (as the primary judge correctly found at DR [33]).

(Footnotes omitted).

53    While the Minister’ primary submission was that the Appellant required leave to raise that point on appeal, the Minister submitted that the Court in fact could be satisfied from the evidence before it that the Appellant as a particular individual had been allocated the PID in question and that the Minister intended that to be so. That was because:

15.    … (a) the appellant was allocated the relevant PID on 10 November 2006; (b) that PID was included in IMMl17/015 (made on 26 July 2017); (c) the appellant meets the description of the persons so designated in IMMJI 7/015, as set out in the explanatory statement (as noted above at [14(a)]); and (d) an officer of the Minister's department advised the appellant that this was the PIO allocated to him and further advised the appellant that he had been specified "as a fast track applicant in a legislation instrument made by the Minister under subsection 5(1AA)(b)".

(Footnotes omitted).

Consideration

54    In SZTVU, the plurality reasoned at [83] as follows:

Whether a particular person has been specified in an instrument for the purposes of paragraph (b) of the definition of “fast track applicant” either individually, or as a member of a class, is a question of fact. But there is nothing in the legislation which in our view precludes the use of identifying numbers. The use in the Instrument, which must be tabled before the Parliament, of identifiers that do not publicly identify the persons specified in the Instrument, is consistent with other provisions of the Act, such as s 91F(4), s 91L(4), s 91Q(5), s 195A(7), s 197AG(2), s 198AE(5), and s 198AJ(3) which, in the circumstances addressed by those provisions, prohibit the Minister from identifying persons in documents tabled before Parliament.

55    While those observations are strictly obiter, they represent the considered views of the plurality with which Perry J expressed agreement. In any event, I agree with their Honours’ reasoning. Thus, irrespective of whether I am correct to understand Mr Prince to have conceded that there was nothing to prohibit the Minister specifying “a person” by legislative instrument for the purposes of s 5(1)(b) of the Migration Act as a “fast track applicant” by a pseudonym, I accept that to be the true position. However, that does not dispose of the issue raised by Mr Prince as to whether the Appellant was so specified in the present case.

56    I turn therefore to that question. In that regard, I take it to be uncontentious that the evidence to which the Minister refers as being before the primary judge in support of his contention that it is possible to verify that FQL17 was a person specified by the Minister by legislative instrument for the purposes of s 5(1)(b) of the Migration Act as a “fast track applicant” is the annexure marked CCI to the affidavit of Che-Long (Colin) Chung dated 13 June 2019 (CB Tab C).

57    That annexure is a screenshot of the Department’s “Integrated Client Services Environment”. Mr Chung’s evidence was that the screenshot records both the “Person Identification Digit (PID)” that was allocated to the FQL17 by the Department, and the date on which it had been generated.

58    It is not disputed that the screenshot shows FQL17’s photograph. It contains his personal details, including his name and date of birth. It also contains a reference to a “PID” which, having regard to the heading “Information”, I infer is a reference to the number (or digits) “0074204613”. Under a heading “From”, the “PID” is linked to a date: 10/11/2006.

59    Assuming that the term “PID” in that screenshot is properly to be understood as a reference to what is referred to in Schedule I of IMMI17/015 as Department of Immigration and Border Protection Person Identification Digits, I am satisfied that the primary judge would have been entitled to infer that that evidence establishes that those digits had been allocated to FQL17 under the designation “PID” within the Minister’s department in late 2006.

60    I reject Mr Prince’s submission that the signifier "PID” in the screenshot might, in the facts of this proceeding, have an uncertain meaning. It may be recalled that cl 6 of IMMI17/015 is in the following terms:

A person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant.

61    It is not in dispute that the same digits as appear in the relevant screenshot also appear in a cell, third column across and sixth row down in Schedule 1 of IMMI17/015.

62    In my view that is sufficient to dispose of the Appellant’s contention that the primary judge fell into jurisdictional error by failing to have identified that there was an insufficient basis, as a matter of fact, on which to conclude that FQL17 was a person who the Minister had specified by legislative instrument for the purposes of s 5(1)(b) of the Migration Act as a “fast track applicant”: albeit that he was identified by a numerical pseudonym. Sufficient evidence as entitled the primary judge to infer the link between the two was given by Mr Chung. Mr Chung was not challenged on his evidence.

63    As to Mr Prince’s submission that FLQ17’s appeal should be upheld by reason that there was an absence of any evidence that the Minister when making IMMI17/015 knew that the relevant PID listed in Schedule 1 actually referred to FLQ17, such a contention necessarily involves an attack on the validity of the delegated instrument itself by reason of an asserted flaw in its making.

64    In that regard it may be accepted that the legal validity of particular delegated legislation may be challenged on the grounds of legal unreasonableness, albeit that the test involves a high threshold: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 (Attorney-General (SA)) per French CJ at [48]. Other grounds also arguably might be open.

65    However, Ground 1 as advanced on FLQ17’s behalf does not disclose any claim that the learned trial judge erred in failing to find that the Minister’s regulation making power legally miscarried such that the instrument itself was invalid. In any event - as Attorney-General (SA) illustrates - it is well settled that the forensic burden is upon a person making such a claim, and further that such a person must satisfy a high threshold. The mere absence of evidence having been adduced by the Minister to refute such a proposition (even assuming it was advanced by Ground 1, which I reject is the case) could provide no basis for requiring the primary judge to reach such a conclusion.

66    I would therefore dismiss Ground 1 of FLQ17’s appeal.

Ground 2

67    It will be recalled that Ground 2 provides as follows:

2.    The Federal Circuit Court of Australia erred in finding there was no requirement for the IAA to conduct an enquiry into whether the appellant was a Fast Track applicant.

   (a)    The IAA is independent agency;

(b)    No evidence was provided to the IAA that the appellant had been validly specified as a Fast Track applicant; and

(c)    The appellant did not submit that the IAA has a duty to enquire into each and every matter but as part of its review of the appellant’s specific circumstances as a plan [sic] arrival, the IAA needed to be satisfied or consider whether the appellant had been validly specified as a Fast Track applicant and/or the referral to the IAA was valid.

68    The Appellant advanced no written submissions with respect to this ground.

69    In oral argument, Mr Prince accepted that Ground 2 was not independent of Ground 1. Accordingly, if the relevant jurisdictional fact (namely that the IMMI17/015 was effective to designate the Appellant as a “fast track applicant”) existed then any error that the IAA made in considering or failing to consider the scope of its jurisdiction was neither jurisdictional nor realistically capable of giving rise to a different decision. Any such error would be immaterial.

70    I concur with that analysis. Accordingly, I would dismiss the appeal.

DISPOSITION AND ORDERS

71    The appeal is dismissed. The Appellant is to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    14 February 2020