Federal Circuit Court judge’s failure to observe procedural fairness … Departure from binding authority … Arguments not properly grasped … Failure to read tendered document … Emily Meller reports 

THE Full Feds have given Judge Sandy Street of the Federal Circuit Court a good old-fashioned judicial pasting after he erroneously dismissed two more protection visa applications. 

In SZSSJ v Minister for Immigration and Border Protection Justices Rares, Perram and Griffiths heard three appeals from separate applications for protection visas. 

They concerned the embarrassing Border Force data breach, a debacle that saw the personal details of 9,258 asylum seekers made available on the departmental website on February 10, 2014. It has been described as one of the most serious privacy breaches in Australia’s history. 

Street heard two of the applications in the circuit court (SZTZI and AHY15) in the same week. SZJSSJ had been heard by Judge Robert Cameron. 

This is not the first time Street has been hung out to dry over his protection visa decisions (as Justinian reported here and here). Further, as the ABC reports, Street has rejected more than 250 migration appeals in the past six months alone. Applicants have started using these stats to accuse the judge of apprehended bias.

The Full Federal Court said that Street did not “grasp” the arguments being put to him.

Sandy Street’s decision in SZTZI v Secretary of the Department of Immigration & Anor was the first to come under fire.

The applicant’s details had been leaked and she sought an injunction against her deportation to China claiming she might face persecution if Chinese authorities had discovered she applied for asylum in Australia.

SZTZI came to Australia from China in 2013, on a three-month visa. She was taken into immigration detention in September 2013, and her application for a protection visa was refused. One month later, her personal information was leaked on the Border Force website.

Those affected by the leak received letters from the Immigration Department, apologising for the breach and promising to “assess any implications for you personally” and inviting applicants to raise any concerns they had.

SZTZI said that Chinese authorities may have accessed the data and, given the development of anonymous browsing, it was impossible to rule out that this had in fact happened.

A number of legal development and complexities obscured her claim. For one, while her situation was being assessed, the government passed s.197C of the Migration Act. This states that the international legal principle of non-refoulement is “irrelevant” to the power to remove an unlawful non-citizen from Australia under s.198.

Nevertheless, on January 13, 2015, the department informed STZI that it was undertaking an International Treaties Obligation Assessment (ITOA), looking at the consequences of the data breach and whether refusing her protection application would therefore amount to refoulement.

In March 2015, the department refused her a visa, but did not provide evidence of who had accessed her personal information.

She was before Judge Street applying for an injunction against her deportation to China because failing to provide information as to who had accessed her information denied basic procedural fairness.

Street refused the application in an ex tempore judgment. 

The Federal Court summarised Street’s reasons into seven discrete points and found that six of them were erroneous and one was irrelevant. 

The first mistake was that the ITOA is a decision, as the Federal Court very recently and explicitly found in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143.

SZTZI argued she needed full information about the data breach in order to make meaningful submissions about the ITOA, and whether it would find there was a possibility of refoulement. However, Street found that it was not part of the decision making process, and the principle of procedural fairness that would require full disclosure about the data breach did not apply.

The Full Feds observed, rather bluntly, that he had incorrectly departed from “directly binding authority”, and failed to “even identify the complex decision-making process in play”. 

Judge Street’s next mistake was applying s.197C to the case at all, because it does not operate retrospectively. A cursory glance at s.7 of the Acts Interpretations Act reveals, as the Federal Court concluded, that it “simply did not apply”. 

The most damning conclusion, however, was that:

“We are bound here to observe that the trial judge does not appear to have grasped the argument being put to him … [SZTZI] could not meaningfully make any submissions about Australia’s non-refoulement obligations arising from the disclosure of her personal information if she did not know to whom it had been disclosed.” 

Street J dismissed this application without hearing submissions from parties, a move the Federal Court described as “a pity”. Instead, Street cited his decision in SZTZI given three days earlier, though his reasons were not yet available.

A tendered document spelt this fact out, which court could “only infer the trial judge did not read.”

The full court dismissed AHY15’s appeal as being brought “in error”.

However, it quashed Judge Street’s SZTZI decision and made a declaration that the proceedings were procedurally unfair. Given the procedural unfairness, the minister’s decision to deport her is not valid and no injunction is needed.