Minister for Immigration and Border Protection v SZSSJ; SZTZI [2016] HCA 29

The High Court has today (27 July 2016) unanimously allowed an appeal from the Full Court of the Federal Court of Australia by the Department of Immigration and Border Protection in the case of Minister for Immigration and Border Protection v SZSSJ; SZTZI [2016] HCA 29. The matter concerned the Department’s processes and response to an unauthorised release of an electronic document containing embedded information disclosing the identities of 9,258 applicants for protection visas who were in immigration detention at the time. It was alleged by the two applicants that the process had denied them procedural fairness.

Background to the Case

The data breach that resulted in the unauthorised disclosure of personal information regarding the applicants continued for weeks after the initial breach. The Department retained external consultants KPMG to investigate the breach. The investigation by KPMG and its subsequent report identified 104 unique IP addresses from which the electronic document had been accessed. Next, the Department conducted “International Treaties Obligations Assessments” (ITOAs) through standardised procedures available in the Procedures Advice Manual (a publicly available document) to assess the breach’s effect on Australia’s non-refoulement obligations to those disclosed applicants. In the course of the ITOAs, officers were instructed to assume that an affected applicant’s personal information may have been accessed by authorities in the country in which the applicant feared persecution or harm.

An abridged version of the KPMG report was made publicly available and all applicants were advised of the process being conducted. The two applicants to this matter, SZSSJ and SZTZI requested unabridged copies of the report but where denied. They both took the matter to the Federal Circuit Court seeking relief for the data breach prior to the completion of the ITOA. Their initial claims were dismissed but on appeal to the Federal Court of Australia, their appeals were allowed on the grounds that they were denied procedural fairness by the Department’s failure to adequately explain the ITOA processes.

Appeal to the High Court

The Department appealed the matter to the High Court where it was unanimously allowed. The High Court did not deny that the two applicants were owed a duty to be afforded procedural fairness in the ITOA process but ultimately they were afforded it. The High Court found that the applicants had been adequately notified and briefed on the nature of the ITOA process. Furthermore, the instruction to the officers in charge to assume that the disclosed information may have been accessed by authorities in the countries where the applicants feared persecution meant that not providing an unabridged report did not constitute a denial of procedural fairness. 

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Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Anor v SZTZI [2016] HCA 29 and associated judgment documents