AWU15 v Minister for Immigration and Border Protection (No 2)
[2019] FCA 2132
•19 December 2019
FEDERAL COURT OF AUSTRALIA
AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132
Appeal from: AWU15 v Minister for Immigration & Anor [2019] FCCA 496 File number: WAD 160 of 2019 Judge: KERR J Date of judgment: 19 December 2019 Catchwords: PRACTICE AND PROCEDURE – application for suppression of reasons in their entirety or extensive redactions – protection visa – Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(c) – Appellant’s claim based on premise that he would be arrested and imprisoned if returned to home country – premise presumes authorities already aware of Appellant’s identity and circumstances – application granted only in part – limited redactions made – some documents prohibited from inspection save with leave of the Court Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AH
Migration Act 1958 (Cth) s 91X
Cases cited: AB (a pseudonym) v CD(a pseudonym) [2019] HCA 6; 364 ALR 202
Australian Competition and Consumer Commission v Cascade Coal PtyLtd (No 1) [2015] FCA 607; 331 ALR 68
EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Date of hearing: 2 December 2019 Date of last submissions: 18 December 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 47 Counsel for the Appellant: Mr Fuller Solicitor for the Appellant: Human Rights For All Solicitor for the First Respondent: Ms Ward of Sparke Helmore ORDERS
WAD 160 of 2019 BETWEEN: AWU15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KERR J
DATE OF ORDER:
19 DECEMBER 2019
THE COURT ORDERS THAT:
1.Save as expressly provided for by Orders 2 and 3 below, the Appellant’s interlocutory application pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) dated 3 October 2019 be dismissed.
2.In the reasons of the Court to be published beyond the parties, the following passages be redacted:
(a)Paragraph 8, save for the first two sentences; and
(b)Paragraph 11: second sentence of point 24 and point 25 in its entirety.
3.Save by leave of the Court, the following documents not be available for inspection:
(a)Appeal Book filed on 25 July 2019;
(b)Outline of submissions filed by the Respondent on 9 August 2019;
(c)Chronology filed by the Appellant on 19 August 2019;
(d)Affidavit filed by the Appellant on 13 September 2019;
(e)Outline of submissions filed by the Appellant on 16 September 2019;
(f)Outline of Submissions filed by the Respondent on 26 September 2019;
(g)Amended Notice of Appeal filed by the Appellant on 4 October 2019; and
(h)Submissions filed by the Appellant on 29 November 2019.
4.The costs of the application be the Appellant’s costs in the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
BACKGROUND
On 2 December 2019, the Court delivered reasons for allowing AWU15’s appeal: AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008.
These reasons are to be read in conjunction with the Court’s reasons in the appeal.
The Court at that time published its reasons only to the parties, having regard to an interlocutory application filed on 3 October 2019 in which the Appellant sought the following orders:
1.Pursuant to s.37AF of the Federal Court of Australia Act 1976 (Cth) (Act), on the grounds set out in s 37AG(1)(c) of the Act all evidence and information tending to reveal the identity of the appellant be suppressed for a period of 70 years from the date of these Orders.
2.For the avoidance of doubt, the effect of paragraph 1 herein is to include publication by the Court of any and all judgments in this proceeding.
The Court had been earlier advised that the Minister consented to orders in those terms being made.
Such orders can be made at any time during a proceeding or after a proceeding has concluded: Federal Court of Australia Act 1976 (Cth) (FCA Act) ss 37AF(1), 37AH(3). The critical question is, having regard to other relevant provisions of the FCA Act which govern the exercise of that power, whether the making of such an order is warranted.
Sections 37AE, 37AF and 37AG of the FCA Act provide:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
37AF Power to make orders
(1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1)The Court may make a suppression order or non‑publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
The basis relied upon by AWU15 is that provided for in s 37AG(1)(c) of the FCA Act, namely that the orders sought are necessary to protect his safety.
To provide an opportunity for the parties to make submissions on AWU15’s interlocutory application, the Court listed it to be heard on 2 December 2019 immediately following the Court’s delivery of reasons in the appeal.
Prior to that hearing, the parties were advised by my associate that they should not assume that the application would be granted by reason that it was not opposed. The parties were advised that the Court required submissions as to whether a suppression order should be made, and if so what should be its scope.
Mr Fuller, counsel for AWU15, filed written submissions on AWU15’s behalf. He submitted:
7.As submitted to the Court during oral submissions in this matter on 4 October 2019, for the purposes of s.37AG, the Appellant is concerned his physical and mental safety is in jeopardy should he return to Pakistan. The risk to his safety arises as a result of the potential for reprisals or mistreatment by the Pakistani Navy because of his desertion. More specifically, the concern is that because of the public nature of the Appellant’s desertion and the XX XXXXX XXXXX XXXXX X he may be made an example of and subject to mistreatment. If the Appellant is unsuccessful in the judicial review process, it is apparent that a forced return by the Australian government to Pakistani is highly likely.
Mr Fuller then drew the Court’s attention to certain specific claims that had been made by the Appellant, which were referred to in the judgment and contained in documents in evidence before the Court.
Mr Fuller accepted that it might be said that a difficulty for the Appellant (in seeking a suppression order and demonstrating to the Court that there was a risk to his safety) was the fact that neither the Minister nor the Tribunal accepted, inter alia, that AWU15 would not be subject to adverse actions at the hands of the authorities should he return to Pakistan. He submitted however:
10.The difficulty is overcome, firstly, by the existence of this appeal. The findings of facts made by the Tribunal were put in issue by the application for judicial review to the Federal Circuit Court. The Appellant has sought to appeal the decision of that Court.
11.The threshold test of ‘necessity’ in s.37AG(1) was considered recently in Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 by Besanko J:
[16]There is an issue in this application concerning the proper construction of s 37AG(1)(c) of the Act. The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety. As Bathurst CJ (with whom McColl JA and McClellan CJ at CL agreed) noted in D1 v P1 [2012] NSWCA 314 (at [49]), the first construction may be put in this way:
… is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?
The alternative construction may be put in this way (at [51]):
… On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.
[17]In my opinion, the second construction is the correct one. It enables the Court to apply the criteria in a way which will achieve its purpose and is consistent with the law’s general approach to risk of considering not only the possibility or probability of an event occurring, but also the likely extent of the consequences if it does. It would seem incongruous to have a test which founds an order where it is probable an assault will occur, but not in a case where there is a 49% risk of a death occurring.
12.It cannot be said that there is not a possibility of the Appellant suffering harm at the hands of the Pakistani authorities should he be forced to return home. The necessity of an order is further informed by:
a.The facts not in dispute. It was accepted by the Tribunal that the Appellant jumped off his vessel. It appears to be implicitly accepted by the Tribunal that he swam through crocodile infested waters and that he deserted the Navy. It was accepted that an arrest warrant had been issued and that the Appellant was subject to public media attention.
b.The public nature of the Appellant’s desertion may embarrass the Pakistani authorities and, as such, provide a desire to make an example of the him by subjecting him to mistreatment of punishments [sic]. The possibility of this occurring cannot be discounted.
c.A decision of this Court which reveals the Appellant’s identity or even facts sufficient to allow Pakistani authorities to determine the Appellant’s identity, XXXXX XXXXX XXXXX XXXXX XXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX. The possibility of this occurring cannot be discounted.
d.The potential for the prospective harm to be severe. In both oral and written submissions the Court was taken to independent country information regarding the ‘widespread’ nature of torture and ill-treatment by police, security forces, and armed forces. Torture, or indeed any form of ill-treatment, by state forces is severe and is particularly concerning given the evidence that it occurs with a degree of impunity. Adopting Bathurst CJ’s language in D1 v P1, given the prospective harm is severe, the Court should more readily conclude that the order is necessary even though if it can be said the risk of harm is a possibility as opposed to a probability.
13.Ultimately the decision is a balancing exercise for the Court. The order sought in the Appellant’s interlocutory application is a complete suppression order of all evidence and information tending to reveal the identity of the Appellant. The term is the order sought is 70 years which is designed to outlast his life expectancy (nothing the Appellant is currently 28 years old). Such an order ameliorates the risk of:
a.The Pakistani authorities being able to read the Court’s judgment and identify the Appellant, noting that such a decision would ordinarily be publicly available; and
b.Any person being able to publish any information (including the judgment) about the proceeding; and
c. Any provision being able [sic] to provide any information (including the judgment and any documents filed in the proceeding) to the Pakistani authorities, noting particularly the bilateral state relationship between Australia and Pakistan.
14.The Court may be minded to make a more limited non-publication order ensuring that the Appellant is not identified or able to be identified in any way in its decision. In providing its judgment, this would necessarily entail redaction or alteration of any reference to Pakistan, its Navy, the Appellant’s status as a navy member of any country, the use of the word ‘desertion’, and any references to the peculiar nature of the Appellant’s desertion. The redactions or alternations are likely to be onerous. A non-publication order does not however prevent the Australian government (or any other person) from providing a copy of a redacted judgment upon request by the Pakistani authorities and confirming the actual identity of the individual referred to in the judgment.
15.Whilst the principle of open justice is a significant consideration, the proceeding is not a matter of public interest, nor does it deal with legal issues that are worthy of public consumption. In those circumstances, when faced with a situation of potential harm to a litigant, and notably potentially serious harm, the Court must give greater weight to the consideration of safety.
(Footnotes omitted except where expressly set out).
In oral submissions during the hearing of the interlocutory application, Mr Fuller however frankly conceded that the terms of the orders applied for went beyond those which could be advanced as necessary to protect AWU15’s safety.
Mr Fuller accepted that AWU15’s concerns regarding the publication of the Court’s reasons were relevant only to the prospect that he might be returned to Pakistan if his remitted review was ultimately unsuccessful. He acknowledged that in those circumstances, Pakistan would already know that AWU15:
(a)had deserted his ship in Darwin; and
(b)had effected that desertion by swimming ashore; and
(c)had sought a protection visa after arriving in Australia.
Mr Fuller further accepted that AWU15 could not return to Pakistan, by compulsion or otherwise, without possessing a passport or equivalent proof of his nationality sufficient to satisfy the government of Pakistan that he was a citizen or otherwise entitled to entry. Neither AWU15 nor the Minister suggested that he could be returned to Pakistan by subterfuge under a false name.
Pakistan had already issued a non-bailable warrant for AWU15’s apprehension. That warrant could be expected to be executed should he return to that country, quite apart from the publication or otherwise of the Court’s reasons. Mr Fuller therefore conceded that publication of those reasons insofar as they simply refer generally to the relevant events could not aggravate such risk to his safety as AWU15 might face on return.
Properly therefore, Mr Fuller did not press the submission that the Court’s reasons with respect to the appeal should be suppressed in their entirety to prevent AWU15’s identity and the generality of his present circumstances becoming known to the Pakistani authorities.
Notwithstanding those concessions, Mr Fuller submitted however that there were certain limited matters of specific evidence that had been referred to in the Court’s reasons which warranted redaction. On that basis, AWU15 was granted leave to file and serve more limited submissions identifying such passages as might properly be contended to require redaction. The Minister was granted leave to file responsive submissions.
Each took advantage of that opportunity.
THE APPELLANT’S SUBMISSIONS
Mr Fuller submitted:
3.The fact that the appellant deserted the Pakistani Navy whilst on service in Australia is a matter known to the Pakistani Navy, particularly in light of the arrest warrant it has issued. The appellant’s concern is however more specific. During the proceedings, the appellant made allegations of poor conditions in Pakistani prisons and human rights abuses committed by the Pakistani military and, more generally its government and security forces. Now that the matter is remitted to the Tribunal, in the event the appellant is ultimately unsuccessful in securing a protection visa and ordered to return to Pakistan, he is concerned that he will face retribution by the authorities if they are made aware of his criticism.
4.To address the risk, the appellant seeks:
a.If the Court publishes its decision of 2 December 2019, the appellant seeks that a redacted or revised version be published pursuant to s.37AF. The proposed revisions or redactions are highlighted in the document accompanying these submissions. The highlighted sections are intended to be confined to those relating to or suggestive of the criticisms referred to in paragraph 3; and
b.The Court restrict the ability of third parties to view the court file. Pursuant to r.2.32, non-parties to litigation may inspect a wide variety of documents on the court file. There are a number of documents which have been filed by the parties which contain the criticisms including:
i. Appeal Book filed on 25 July 2019;
ii.Outline of submissions filed by the respondent on 9 August 2019;
iii. Chronology filed by the appellant on 19 August 2019;
iv. Affidavit filed by the appellant on 13 September 2019;
v.Outline of submissions filed by the appellant on 16 September 2019;
vi.Outline of Submissions filed by the respondent on 26 September 2019;
vii.Amended Notice of Appeal filed by the appellant on 4 October 2019; and
viii. Submissions filed by the appellant on 29 November 2019;
Given the number of documents on the court file, it is not feasible or practical to redact all documents in this matter to remove all references to the criticisms made by the appellant. It is accordingly proposed an order be made pursuant to s.37AF(1)(b) that viewing and inspection of the court file be restricted to the appellant and first respondent only.
5.It is submitted the above approach is an appropriate balance between the risk to the appellant’s safety in the event he is forced to return to Pakistan and the principle of open justice.
The redactions Mr Fuller proposed on AWU15’s behalf were identified by yellow highlighter in an electronic copy of the Court’s reasons in the appeal. These reasons refer to those redactions by paragraph numbers. They address all of the material sought to be redacted.
The redactions proposed are extensive. They are not limited to references to specific items of evidence relied upon by AWU15. They extend more broadly to the proposed redaction of the Court’s identification of the nature of AWU15’s claims regarding what he fears he might suffer by reason of his prospective imprisonment awaiting trial or in consequence of a conviction for desertion, and to various materials to which either he or the Tribunal referred in those regards.
THE MINISTER’S SUBMISSIONS
The Minister submits:
3. The principles to be considered regarding the redaction of material are:
3.1 to ensure that the redaction of the irrelevant parts of the document does not create gaps affecting the intelligibility or meaning of the remaining portions of the document; and
3.2 to ensure the attainment of justice between the parties.
4.The onus lies on the party resisting the production of the whole document to establish an appropriate basis for doing so. The appellant contends that redactions to the judgment should be made to the parts that reference his criticism of the Pakistani military and government on the basis that he will face retribution by the authorities if they are made aware of these criticisms. The appellant has not referred to any legal principle justifying the proposed redactions.
5.The first respondent submits that the below paragraphs should not be redacted in order to ensure that there are not gaps affecting the intelligibility of the remaining portions of the judgment; to ensure the attainment of justice; and as the appellant has not established a proper basis for the redactions.
6. The first respondent does not consent to the redactions made to the following:
6.1The title page including catchwords for judgment noting that these a generic catchwords which would apply to a number of different appellants and it is unlikely the appellant could be identified through their release.
6.2Paragraphs [2]; paragraph [11], subparagraph [23]; paragraph [16]; paragraphs [49]-[56]; paragraph [60]; paragraphs [62]-[63]; paragraph [67]; and paragraph [73]; noting that there is no specific reference to criticisms of the Pakistani government or military in these sentences.
6.3Paragraph [11], subparagraphs [26] and [27] noting that these refer to information already known by the Pakistani government (i.e. that the applicant had fled from the ship and would be penalised) and make no reference to his criticisms of the government.
6.4Paragraph [21], subparagraph [66]; and paragraph [33] noting that these reference correspondence between the Navy and the appellant’s parents and accordingly, would already be known to the authorities.
7.The first respondent otherwise consents to the remainder of the proposed redactions suggested by the appellant.
8.The first respondent does not oppose the appellant’s request for the Court to restrict the ability of third parties to view the Court file.
(Footnotes omitted).
CONSIDERATION
Section 91X of the Migration Act 1958 (Cth) (Migration Act) prohibits the publication by this Court (and the High Court and Federal Circuit Court) of the name of any person who has applied for a protection visa, if the proceeding relates to that visa.
Section 91X(2) provides that in those circumstances:
(2)The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
In Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 the plurality (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) observed in a footnote to [44] that “[i]n the absence of any direct challenge, it will be assumed that s 91X is constitutionally valid”.
No occasion to reconsider that observation has arisen in that Court since 2003. I proceed on the footing that the constitutionality of s 91X is not relevantly in issue, such as would require me to give notice to the Commonwealth and State Attorneys-General of a matter arising under the Constitution pursuant to s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).
Section 91X is to be contrasted with s 431 of the Migration Act. The latter prohibits in wider and more general terms the Administrative Appeals Tribunal from publishing anything which may identify an applicant for a protection visa in its written statement of decision.
Having regard to those two quite differently expressed legislative provisions, I am satisfied that Parliament has not sought (I infer having regard to the quite different underlying constitutional principles) to constrain the duty of this Court to publish reasons explaining its decisions in protection visa cases beyond those constraints which apply directly in consequence of s 91X, together with those which apply to all litigants having regard to the terms of ss 37AE, 37AF and 37AG of the FCA Act. I note that Besanko J recently came to the same conclusion in EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086.
The critical question, therefore, is how those provisions of the FCA Act apply to the present circumstances.
In Australian Competition and Consumer Commission v Cascade Coal PtyLtd (No 1) [2015] FCA 607; 331 ALR 68 the Messrs Obeid sought a suppression order on the basis that such an order was necessary, inter-alia, to protect their safety. In refusing to make that order Foster J explained, in terms that I respectfully adopt, that the word “necessary” in s 37AG(1)(c) is a strong word:
28.In Hogan v Australian Crime Commission (2010) 240 CLR 652 at 664 [30], the High Court said, in respect of the use of the word “necessary” in s 50 of the FCA Act, the predecessor to Pt VAA that it is “a strong word”. The Court observed that the collocation of necessity to prevent prejudice to the administration of justice and the necessity to prevent prejudice to the security of the Commonwealth suggests that the Parliament is not dealing with trivialities. The Court went on to hold that:
“the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
29. The Court continued at [31]–[33] as follows:
[31]It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics (A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 641).
[32]If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
[33]It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50 (Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at 138-139 [40]). Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
30.The threshold which a suppression order applicant must satisfy is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice.
While unreasonable or groundless fears will not suffice to justify the making of a suppression order I accept, as Nettle J observed in AB (a pseudonym) v CD(a pseudonym) [2019] HCA 6; 364 ALR 202 at [15] when referring to an analogous provision of the Judiciary Act, that an applicant is not required to prove that the harm which he or she fears would be the inevitable consequence in the absence of such an order:
… [I]t should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
In allowing AWU’s appeal, the Court dealt with AWU’s claim for protection as relevant to his fear of being detained within Pakistan’s prison system for desertion as follows:
65.Insofar as the Tribunal was addressing itself to the possibility that AWU15 might, in common with many returnees, face a short period of detention for illegally having departed Pakistan that circumstance, subject to the possibility that substantially changed factors as might emerge with respect to his likely treatment, is not available as a basis for setting the Tribunal’s decision aside: SZTAL.
66.However, that was not AWU15’s case. His case was that he would be subject to arrest for a “non-bailable” offence and for that reason would face, at a minimum, a long period of pre-trial imprisonment in circumstances that would be distinctly different from those facing ordinary returnees. His case was that he would face prisoner abuse, including torture, by gaol staff in circumstances where accountability mechanisms for checking prisoner abuse, corruption and other malpractice on the part of prison staff were non-existent or illusory.
67.In that regard, I reject the Minister’s submission that SZTAL is authority for the proposition that in this quite different factual context “no matter how poor the conditions [are] found to be” in Pakistan’s prisons they will be necessarily irrelevant to Australia’s complementary protection obligation with respect to the Appellant. As Mr Fuller submits, that proposition ignores the aspects of the judgment that provide that “evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn” (at [27]) and that in some cases “the degree of foresight may render the inference compelling” (at [29]). Thus an inference of such intent potentially might be drawn if there is evidence before the Tribunal to establish that the authorities of a particular country are aware that torture or degrading treatment is routinely occurring in their prisons by the actions of state officials and there is evidence that that conduct is tolerated by those authorities.
68.In my view it is self-evident that there was material (see as referred to above at [53]) in the country information before the Tribunal which, at least potentially, may have justified such a finding both with respect to prison conditions in Pakistan and the impunity effectively granted by that state to state officials who torture or degrade prisoners. I reject the proposition that because the prime focus of AWU15’s concern when he appeared before the Tribunal was that he was at risk of the imposition of the death penalty, his alternative claims that he would otherwise face (at least) a period of prolonged pre-trial imprisonment were capable of being dismissed or disregarded. They were claims clearly advanced, albeit in the alternative to his primary claim that hemight be executed, which is no longer pressed.
69.In the circumstances I am satisfied that grounds 2 and 3 are made out. It is not for the Court to evaluate the plausibility of the country information to which the Court has referred above at [53] which was before the Tribunal. It is sufficient that the Court accepts that the Tribunal fell into jurisdictional error, given that it was in possession of that country information, when it failed to address a significant claim AWU15 had advanced before it.
AWU15’s fear, as Mr Fuller submits on his behalf, is that he will be imprisoned for a not inconsiderable period while awaiting trial with respect to his desertion, or as punishment for that conduct.
AWU15’s claim for protection was based very significantly, albeit not exclusively, on the proposition that as a result of his having deserted his Navy ship in Darwin a warrant for his arrest was issued on 7 September 2014 for a non-bailable offence. He claimed that the activation of that warrant, if he were ever forced to return to his home country, would result in his being subjected to detention in conditions amounting to significant harm. The Court has remitted that claim to be reheard according to law. Such a claim assumes AWU15 was, and remains the current subject, of interest by the authorities in Pakistan.
It may be accepted that in addressing that claim the Court’s reasons include reference to those circumstances, and cite country information that was before the Tribunal which refers to prison conditions in Pakistan. However, the fact that AWU15 has made a claim for protection is known to Pakistan. The country information cited in those reasons is public information.
I reject the proposition that in order to protect AWU15’s safety, it is necessary to redact large parts of the Court’s reasoning as to the merits of that ground.
I accept that it is arguable that AWU15’s safety may be compromised if he were to return to Pakistan and the warrant for his apprehension executed. Indeed, that hypothesis was the premise of the Court upholding AWU15’s appeal. However, I am entirely unpersuaded that the extensive redactions to the Court’s published reasons sought will, if he returns to Pakistan, shield him from that risk or lessen it. A party that brings proceedings in the Federal Court of Australia must do so on the understanding that the Court has a duty to safeguard the public interest in open justice. While the Appellant in this case brings a proceeding relating to a claim for protection, the public nonetheless must be confident, and the law requires, that that the hearing and determination of his appeal be conducted in an open and transparent manner except where necessity dictates otherwise.
I agree with the Minister that none of the passages as referred to in paragraph 6 of the Minister’s written submissions should be redacted. For the reasons advanced by the Minister, I reject the proposition that a suppression order in respect of those paragraphs is necessary to protect the safety of AWU15.
I will also not order the redaction of the text of [35] of the judgement. That paragraph refers to the Appellant’s submissions in terms of which the public is entitled to be informed, so as to comprehend the Court’s reasons. Further, insofar as it refers to correspondence from the Navy it refers to matters already known by the Pakistan authorities.
I will not redact the reasons of the primary judge in the court below where I have cited them at [21]. It would be an exercise in futility to do so. The reasons of the primary judge in the Federal Circuit Court of Australia (FCCA) were published in unredacted form on 15 March 2019.
I note that the Minister consents to the redaction of [58], [66], [68] and [74] of the Court’s reasons. However, those paragraphs cite and refer to the submissions of the parties considered by the Court. Accepting that a primary objective of the administration of justice is to safeguard the public interest in open justice, those paragraphs should be published unless a clear necessity has been established to the contrary. The rationale for those redactions, although not expressly stated, would appear to relate to the Appellant’s earlier claim that if returned to Pakistan he would be subject to the death penalty. It can be accepted that that submission was not pressed in these proceedings. However, the reference to that subject matter is contextually relevant to the Appellant’s criticisms of the reasons of the primary judge, and as noted above at [41] the FCCA decision which is the subject of this appeal has been in the public domain for more than eight months and contains copious references to that earlier claim. Notwithstanding the Minister’s consent, I would therefore decline to make those redactions.
I will accordingly redact only a very limited selection of the passages AWU15 has requested. They are those which I am satisfied fall within the terms of s 37AG(1)(c) of the FCA Act. I will order that paragraph 8, save for the first two sentences, and paragraph 11, second sentence point 24 and point 25 in its entirety, be redacted.
Apart from the issue of redactions, it is uncontentious that there is some material on the court file which should not be made accessible to the public to protect AWU15’s safety. I accept Mr Fuller’s submission that it would be impractical to make specific orders as to which parts of the documents on the court file as might contain material which should be redacted. A general non-access order in respect of those documents should therefore be made, given that (a) the reasons of the Court will be available to explain its decision and (b) that order will be open to reconsideration should an application for access be made. I note that with respect to this issue, the Minister consents to the order in the terms the Appellant has proposed.
I will accordingly order that the schedule of documents as identified by the Appellant which might contain such materials not be available for inspection, save with leave of the Court. If any requests for access are made, they can be dealt with on a case-by-case basis.
Finally, I note that at an earlier stage of these proceedings the Minister’s position was confirmed to have been that expressed at [4] above. I have generally accepted the Minister’s submissions - subsequently revised - that the Appellant’s application, subject to limited exceptions, should be dismissed. However, in light of that history I would think it appropriate to order that the costs of this application be simply part of the costs of the appeal.
I express appreciation for the submissions by counsel for both parties in this appeal, and in particular for the assistance with which the Court has been provided by the Appellant’s pro bono counsel.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate:
Dated: 19 December 2019
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