Asylum seeker in data breach case wins leave to appeal injunction rejection
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Version 0 of 1. A federal court judge has granted an asylum seeker who had their personal details exposed online leave to appeal to the federal court. In a hearing in the federal court on Thursday, Justice Anna Katzmann heard an appeal from the federal circuit court from an asylum seeker who had their personal details released in a major data breach that was reported by Guardian Australia in February. In the federal court appeal on Thursday the asylum seeker, represented by Shane Prince, argued the initial decision by the federal circuit court to refuse an application for an injunction preventing their removal from Australia was made in error. Counsel for the immigration minister rejected these submissions. Katzmann granted the asylum seeker leave to appeal, but added that “whether or not this case is heard by the full court or a single judge remains to be seen”. She gave the applicant one week to file their notice of appeal. The federal court judge also criticised the immigration minister, Scott Morrison, for failing to advise the court that other asylum seeker data breach cases were also beginning to make their way into the court. “It’s very unfortunate to say the least the court wasn’t apprised by the minister that they arose out of the same circumstances,” she said. Counsel for the immigration minister responded and said “with a slight hint of embarrassment” that he had been briefed about them. There are now five separate matters before the federal court relating to the data breach, and there may be others still in the federal circuit court. Given the number of asylum seekers affected, Katzmann said she suspected it would be likely there would be more cases emerging. She asked the minister to provide details of all the current matters before the federal court and circuit court. A key issue to be determined in the case is whether the department had established an adequate process to resolve the impact of the data breach on asylum seekers and others affected by the breach. The asylum seekers had initially received a letter from the secretary of the immigration department, Martin Bowles, outlining that a process would be put in place to deal with the effects of the breach. But a later letter to asylum seekers gave them 14 days to respond to amend their claims, which Prince said showed there been a change in the process. He argued the trial judge findings about the process should have been heard in a trial. “We wanted a trial at which these matters could be vented in an orderly way,” he said. “What his honour had done is to shortcut that process in a way that leaves all these unsatisfactory matters unanswered.” He also argued the judge’s interpretation of the federal court’s rules, if accepted, would allow non-citizens to be treated by the courts in a different way. “I don’t think there’s any question that this case has an impact on a very larger number of people,” he said. “In the shadow of [the earlier decision] then those matters … would have to be doomed to fail.” Counsel for the minister said there was no unfairness in the way the case was dealt with. He argued that the asylum seekers’ challenge was still premature and that the federal circuit judges decision will still leave the applicant with avenues of appeal in relation to any decisions that may be made relating to his claim. “The time to make the complaint isn’t at this advance, when even the decision makers don’t know what is going to happen.” A date for a subsequent hearing has not yet been set. |