The latest from the High Court: October 2016

Administrative law

Migration – procedural fairness – data breach

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 (27 July 2016) concerned judicial review of decisions and processes of the Department of Immigration following a data breach in 2014.

The Department accidentally published a document that contained embedded information disclosing the identities and personal information for 9258 applicants for protection visas who were in detention at the time.

There was a risk that the information might be disclosed to entities seeking to harm the applicants.

The Department notified affected individuals and created an ‘International Treaties Obligation Assessment’ (ITOA) process, which assessed the effect of the data breach on individual applicants against non-refoulement and other obligations.

In an ITOA, the department was to assume that the information had been accessed by authorities in the country in relation to which the applicant feared persecution.

Depending on the ITOA result, the case might be referred to the Minister to consider exercising certain non-compellable powers under the Migration Act 1958 (Cth).

Those factual circumstances were interpreted by the Court as incorporating a decision by the Minister to consider exercising his personal powers; the ITOA represented an inquiry by the Department to assist the Minister in that consideration.

The respondent argued they had not been conferred procedural fairness in the ITOA process, in that they were not provided with the full details of who might have accessed the information and the full contents of a report on the data breach.

Also at issue was the jurisdiction of the Federal Circuit Court of Australia (FCCA). The Court held that the ITOA formed part of a statutory process as it was an enquiry to assist the Minister in the exercise of his powers. That meant that the FCCA had jurisdiction.

It also followed that there was an obligation to provide procedural fairness as the statutory scheme did not suggest otherwise.

However, the Court held that the respondents in this case had, in fact, been provided with procedural fairness given that the Department assumed the worst case disclosure scenario, and the respondent had been given a chance to comment. French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ jointly. Appeal from the Full Federal Court allowed.