FEDERAL CIRCUIT COURT OF AUSTRALIA
SZUAN v MINISTER FOR IMMIGRATION & ORS	[2015] FCCA 975	

Catchwords: 
MIGRATION – Future decision or other action by the Minister – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.	

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.476, 477
Judiciary Ac 1903,  s.78B	

ACCC v CG Berbatis Holdings Pty Ltd and Others [1999] 95 FCR 292
Spencer v the Commonwealth of Australia (2010) 241 CLR 118	

Applicant:	SZUAN	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION	

Third Respondent:	IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
AUDREY FERNANDES	

File Number:	SYG 785 of 2015	

Judgment of:	Judge Street 	

Hearing date:	16 April 2015	

Date of Last Submission:	16 April 2015	

Delivered at:	Sydney	

Delivered on:	16 April 2015	

REPRESENTATION
Solicitors for the Applicant:	Mr F. Nikjoo
Michaela Byers, Solicitor	

Solicitors the Respondent:	Ms D. Watson
Australian Government Solicitor	

ORDERS
(1)	The proceedings be summarily dismissed.
(2)	The Applicant to pay the First Respondent’s costs fixed in the sum of $1000.
(3)	The notice to produce and the subpoena be set aside.

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT SYDNEY	
SYG 785 of 2015
SZUAN	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION 	
First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION	
Second Respondent

IMA PROTEction nsw, department of immigration and border protection
Audrey fernandes	
Third Respondent

REASONS FOR JUDGMENT
1.	This is an application for a Constitutional writ purportedly within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of what is described as a future decision or other action by the Minister.  
2.	The application identifies the following grounds:
	1. The applicant is a citizen of Thailand.
2. On 6 May 2013 the applicant claimed that Australia owed protection obligations in respect of him.
	3. On 8 October 2013 the process by which the claims of the applicant that Australia owed protection obligations in respect of her was completed.
	4. The applicant is a person in respect of whom the Second Respondent, his servants or agents held personal information within the meaning of the Privacy Act 1988;
	5. The First Respondent is an APP entity and the Second Respondent was at all material times responsible for the direction and control of the Department of Immigration and Border Protection which is an APP entity for the purposes of the Privacy Act 1988.
	6. In or about 11 February 2014, the First and or Second Respondent by their servants or agents released the applicant's personal information by publishing it on the world wide web.
	7. The applicant's personal information so released included her name, date of birth, nationality, gender, details about the applicant's detention (when detained, the reason for the detention and where) and also the details of the identity of any family members in detention.
	8. The release of the applicant’s personal information by the First or Second Respondents, their servants or agents, was contrary to law. 
	Particulars
	a. The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act 1988;
	b. Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier, is contrary to s336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.
	9. The release of the applicant's personal information has caused the applicant to have a well-founded fear that his removal from Australia and return to Thailand will involve a breach of Australia's non-refoulment obligations under the Refugee Convention; or the Convention Against Torture; or the International Covenant on Civil and Political Rights.
	10. On 12 March 2014, the applicant received a letter from the Second Respondent ("the 12 March 2014 letter").
	Particulars
	a. The document was in writing and handed to the applicant and the applicant relies on the entirety of the letter as though it were pleaded herein.
11. The 12 March 2014 letter contained a representation as follows ("the 12 March 2014 Representation"):
	"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."

	12. The department, to which reference is made in the 12 March 2014 Representation, and the Secretary, are and have at all material times been emanations of the Executive for the purposes of s61 of the Constitution of the Commonwealth and authorised to make the representation.
13. The exercise or refusal to exercise a power in relation to an individual adversely to his interests and based on his personal characteristics and circumstances pursuant to s61 of the Constitution is conditioned by an obligation to accord procedural fairness to the person. 
	14. On 12 January 2015 the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia’s non-refoulement obligations. This process was instigated as the applicant was a victim of the data breach.
	15. On 11 March 2015 the delegate made a finding that non-refoulement obligations are not engaged in the applicant’s case.
	16. In the ITOA assessment dated 11 March 2015 the delegate erred by not affording the applicant procedural fairness.

Particulars
	a. The delegate did not disclose any of the information held by the Department to the applicant in relation to the data breach for comment;
	b. Department case officer were instructed to assume that the authorities in the claimant's receiving country may have accessed personal information released on the department's website and that case officers will refer to the claimant's personal circumstances and available country information to determine whether the website disclosure will affect the claimant if he/she is returned to his/her country of origin; and
	c. The ITOA process is not an appropriate and fair process for determining the applicant's data breach claim and the premise of limiting assessment of harm to the applicant's country of origin was flawed.
	17. The Assessor erred by considering wrong issues.
	Particulars
	a. The Assessor found that the applicant was fully aware of the details of the website disclosure and has been afforded procedural fairness;
	b. The Office of the Australian Information Commission did not find that the department is unable to assess protection claims arising from the website disclosure due to a conflict of interest. Consequently, I consider there is no conflict of interest in a departmental officer conducting this ITOA assessment;
	c. The applicant has no formal qualifications; and
	d. The information was removed from the department’s website.
	18. The Federal Court of Australia in the matter of SZWAJ v Minister for Immigration and Border Protection [2015] FCA 26 Justice Greenwood considered the Secretary's letter dated 12 March 2014 and stated as follows:
	9. It may well be that the things I have just described define the scope of the debate about the construction to be attributed to the second-last paragraph of the Department’s letter and whether it, on one construction, fairly gives rise to the suggestion that there is a departmental process, whether it be an ITOA process or otherwise, which would apply to the particular addressee as an individual as part of a normal process of Department of dealing with the circumstances affecting that individual by reason of the data disclosures (that is, dealing quite specifically with the implications for the individual of the data disclosures) rather than general processes such as a protection visa application.
	10. It is not clear to me ·whether the proper balance in the construction of the paragraph in issue lies but even if one assumes or accepts that the ITOA process has a reasonably well defined methodology which renders it not susceptible of application in this particular case, nevertheless, there seems to me to be at least an arguable question that the paragraph in the letter gives rise to a possible process other than simply subsuming the data disclosure questions within what would normally be a protection visa application."
	19. There is utility for the applicant in being granted the declarations in the orders sought in these proceedings for the purposes of any statutory process to be undertaken by the First Respondent pursuant to s48B or s417 arising from the disclosure of the applicant's personal information.
	20. There is a likelihood that the Respondents will purport that it is reasonably practicable to remove the applicant pursuant to s198 of the Act irrespective of whether an assessment of Australia's non-refoulment obligations in relation to the February 2014 disclosure of the applicant's personal information has been carried out in a way which the applicant is accorded procedural fairness.
3.	There is no real or substantial question arising under the Constitution and, therefore, it is not necessary to address s.78B of the Judiciary Act.  See ACCC v CG Berbatis Holdings Pty Ltd and Others [1999] 95 FCR 292 at [14], [20] and [22].
4.	The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.  
5.	The Court raised with solicitor Mr Nikjoo the concern that the matter appeared not to disclose an arguable jurisdictional error, and Mr Nikjoo handed up written submissions seeking to assert that there was a denial of procedural fairness in relation to the determining of data breach claims and identifying that there was a process in place where the applicant was seeking to pursue a notice to produce and a subpoena to obtain a KPMG report.  Mr Nikjoo did not identify any decision that would enliven the Court’s jurisdiction under s.476 of the Migration Act., taking into account the definition of migration decision in s.5 as well as s.5E and s.474.  I take into consideration in respect of  the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. 
6.	The application did not assert a decision-making process referable to the letter dated 12 March 2014, as that would clearly have given rise to an issue under s.477.  The application refers to an ITOA assessment made on 11 March 2015 in which it’s alleged that the assessor addressed the wrong issues. The Court’s jurisdiction under s.476 is confined to migration decisions.  I am not satisfied that the ITOA assessment is a migration decision within s.476, and on that basis alone, the application is doomed to failure.  Further, even if within that jurisdiction, I am clearly satisfied in respect of the decision of the ITOA assessment that there is no substance in the contention of a jurisdictional error in respect of the assessment or the Minister acting on the assessment in a future decision.  In this case the RRT affirmed the decision refusing to grant a protection visa on 8 October 2013 from which an appeal was lodged with the Federal Circuit Court on 24 October 2013 and the appeal was withdrawn on 8 January 2014. 
7.	It is relevant that the assessor in that regard specifically addressed the issue of the limited website disclosure that occurred.  That disclosure is not one in respect of which it is apparent that there was any response by the applicant to the letter dated 12 March 2014 raising at the time an identified concern. Given the limited nature of the disclosure that occurred, there is no substance in relation to the alleged errors in respect of the finding of an absence of a well-founded fear of persecution based on the limited disclosure that occurred (page 12 of the letter) or the finding of no significant harm (page 13 of the letter). There is no denial of procedural fairness by refusing a fishing exercise in the investigation of the data breach when the information disclosed is not disputed. The assumptions do not disclose any denial of procedural fairness. The assessment of harm was for the assessor. There is no substance in the wrong issues allegation and none of the matters identified support either a denial of procedural fairness or a misconstruction of the issues being decided.
8.	Given that the proceedings are doomed to failure the subpoena and notice to produce are in the circumstances an abuse of process.
9.	There is no principle identified in SZWAJ that binds this Court.  In the present case there is no utility in adjourning the proceedings that are doomed to failure, as that will only unnecessarily add to the costs to the parties and utilise limited Court time.  
10.	I am not satisfied that this matter falls within the Court’s jurisdiction under s.476.  Further I am satisfied that even if within the Court’s jurisdiction, the application is clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.  The notice to produce is set aside.  The subpoena is set aside.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  17 April 2015