A v Minister for Immigration & Ethnic Affairs

[1995] FCA 400

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )  No. NG 327 of 1994
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
  OF AUSTRALIA

BETWEEN:APPELLANT A

First appellant

APPELLANT B

Second appellant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First respondent

JANET WOOD, MEMBER, REFUGEE REVIEW TRIBUNAL

Second respondent

CORAM:    BEAUMONT, HILL AND HEEREY JJ.

DATE:     16 MAY 1995

REASONS FOR JUDGMENT

BEAUMONT J.       
         This is an application for leave to appeal from an interlocutory judgment of Sackville J. given on 16 December 1994.  On 6 December 1994, his Honour delivered the judgment in the principal proceedings, dismissing an application by the Commonwealth which had sought a review of decisions by the Refugee Review Tribunal.

At the time the judgment was published in open court, an application was made on behalf of the present

respondents for orders under s. 50 of the Federal Court of Australia Act 1976, (1) that the respondents be referred to by the letters A and B respectively and (2) that there be no publication of their identity, nor of anything which would tend to identify them. For the reasons his Honour gave on 16 December, he discharged temporary orders to that effect made on 6 December which had been extended until further order on 13 December.

The matter came before me for an application for further and urgent relief on 21 December 1994.  On that occasion, orders were made without objection by the Minister, or any other party, to the effect that publication of the reasons for judgment, or any other matter which identified it, or tended to identify either of the present applicants, not take place until the hearing of the appeal. 

Upon the commencement of the hearing of the appeal yesterday, an application was made on behalf of the present applicants to vary the orders made on 21 December by inserting a reference to the determination of the appeal in the principal proceedings, rather than the hearing of the appeal, as the period up until which the prohibition upon publication should operate.  Again, there is no objection to that variation, and it is now in place by virtue of orders made yesterday. 
         In his reasons discharging the orders prohibiting publication, Sackville J referred to a number of discretionary circumstances which, in his Honour's view, tended against the grant of the relief sought.  Without being exhaustive, it will suffice for present purposes to mention two considerations which his Honour took into account. 

First was the circumstance that at the time of commencement of the proceedings, an application had been made to Whitlam J on 8 July 1994 for an order along the lines now sought.  But Whitlam J, for the reasons he then gave, refused,  in the exercise of his discretion, to make the order sought.

A second matter adverted to by Sackville J was the difficulty that would inevitably arise in seeking to frame an order that would effectively bind persons, other than the parties themselves, or perhaps persons in court, from divulging the names of parties to a proceedings.  His Honour refers to some of the authorities in this area at page 9 of his reasons for judgment. 

In my opinion, both those circumstances are matters which are material as considerations to be taken into account in deciding whether leave to appeal should now be granted. 

There are, however, some further matters which should be mentioned.  In the first place, during the course of submissions on the present application, an undertaking to the court was proffered on behalf of the Minister that he would not, without the leave of the court, publish the names of either of the present applicants, without first giving them or their solicitor 28 days' notice of the intention to do so.

A further matter which should be mentioned is the circumstance that the rules of court, specifically order 46 rule 6, make provision for limits to be imposed upon a party seeking to inspect documents lodged with the registrar which the court or a judge or (in certain circumstances) the registrar, considers ought to remain confidential to the parties.  There is no reason in my view why, given the confidential nature of certain of the material in this matter, that the solicitors for the present applicants could not make an appropriate application to the registrar in this connection.

In my view, there are two principal reasons why leave to appeal should be refused in the present case. 

The first is that given the rather special nature of the circumstances which I have outlined, it  does not appear to me that the present matter would form an appropriate vehicle for the determination of any point of principle of any general application.

The second matter which, in my view, weighs against the grant of leave, is that having regard, in particular, to the undertaking now proffered by the Minister and to the safeguards built into the rules of court with reference to material on the register, the applicants have not, in my view, demonstrated that the grant of leave, and the hope (or even expectation) that the appeal might be allowed, would result in any particular utility being achieved.  For those reasons, I would refuse the application for leave to appeal.

HILL J:   I too am of the view that leave should be refused.  Had leave been sought to appeal the decision of Justice Whitlam, the result could perhaps have been different but the case is one where in light of the subsequent orders of this Court and the undertaking given by the Minister, there is no practical utility in leave being given, even if the appeal were then allowed. 

I would add that had the matter come for decision before the trial as an initial application, weight would then need to be given to the impact of the policy given legislative expression in the Migration Act 1958, ss.431, 439 and 440 and the provisions of s.166E of that Act binding the Tribunal; the possibility that knowledge of the identity of the applicants might expose them to even greater danger to persecution should they be deported to China and the public interest in ensuring that litigants are not discouraged from applying to the Court for judicial review of the Tribunal's decision for fear of that danger. But that is not the way the matter comes before us. I would dismiss the application for leave.

HEEREY J:   I agree.

BEAUMONT J:   We note the Minister's undertaking to the Court and we order that the application for leave to appeal be refused.

We note that no order for costs was sought on behalf of the Minister. 

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of their Honours  Justices Beaumont, Hill and Heerey JJ.

Associate

Dated:     16 May 1995