BBE15 v Federal Circuit Court of Australia
[2020] FCA 965
•10 July 2020
FEDERAL COURT OF AUSTRALIA
BBE15 v Federal Circuit Court of Australia [2020] FCA 965
File number: NSD 2080 of 2019 Judge: GRIFFITHS J Date of judgment: 10 July 2020 Catchwords: MIGRATION – application for judicial review arising from alleged breach of s 91X of the Migration Act 1958 (Cth) – whether alleged breach amounted to procedural unfairness –whether injunction, declarations or a suppression order should be made – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 21, 37AF
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth) ss 5A, 46A, 48B, 91X, 195A, 336, 417, 431, 473GC
Cases cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
AVN20 v Federal Circuit Court of Australia [2020] FCA 584
AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132
BBE15 v Minister for Immigration and Border Protection [2016] FCCA 2281
BBE15 v Minister for Immigration and Border Protection [2017] FCA 111
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
CVG20 v Minister for Home Affairs (No 2) [2020] FCA 690
DSO18 v Minister for Home Affairs [2020] FCA 286
EAU17v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086
ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782
Forster v Jododex Australia Pty Ltd [1972[ HCA 61; 127 CLR 421
Kioa v West [1985] HCA 81; 159 CLR 550
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636
WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116
Date of hearing: 3 July 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 73 Counsel for the Applicant: Mr J Gormly Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the First Respondent: The first respondent filed a submitting notice, save as to costs Counsel for the Second Respondent: Mr P Knowles Solicitor for the Second Respondent: Sparke Helmore ORDERS
NSD 2080 of 2019 BETWEEN: BBE15
Applicant
AND: FEDERAL CIRCUIT COURT OF AUSTRALIA
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICE AND MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
10 JULY 2020
THE COURT ORDERS THAT:
1.The further amended originating application be dismissed.
2.The applicant pay the costs of the second respondent, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This is another in a series of recent cases in which an applicant has sought judicial review (and other) relief from the Court arising from an alleged breach of s 91X of the Migration Act 1958 (Cth) (Act). Each case necessarily turns upon its own particular facts. Suppression orders have been made in some matters (such as in BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586; CVG20 v Minister for Home Affairs (No 2) [2020] FCA 690 and by the Full Court in C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70). But it appears that none of the cases has resulted in the grant of substantive relief, such as an injunction or a declaration.
For the reasons that follow, the applicant’s further amended originating application will be dismissed, with costs.
Background facts summarised
The applicant claims that the publication of identifying information concerning him in the reasons for judgment of the Federal Circuit Court of Australia (FCCA) in BBE15 v Minister for Immigration and Border Protection [2016] FCCA 2281 and on the Commonwealth Courts Portal (CCP) website reveals his identity to authorities in his country of origin, including the fact that he is the subject of the pseudonym BBE15.
The applicant claims that publication of this identifying information provides a basis for a sur place claim by him for protection from those authorities. The applicant’s earlier claims for a protection visa were rejected by the Minister’s delegate, then by the Refugee Review Tribunal and his subsequent proceedings in the Courts (in the FCCA, this Court and two applications for special leave to appeal to the High Court of Australia – see BBE15 v Minister for Immigration and Border Protection [2017] HCASL 260 and [2019] HCASL 23) all failed.
The identifying information to which the applicant refers is:
(a)his date of birth and arrival in Australia which were published in the FCCA’s reasons for judgment; and
(b)his name which appeared on the CCP website as at 24 February 2020, together with information that he was the subject of the pseudonym BBE15.
The applicant contended that his concerns are exacerbated by other identifying information published in the reasons for judgment of this Court in BBE15 v Minister for Immigration and Border Protection [2017] FCA 111, which dismissed the applicant’s appeal from the FCCA judgment referred to in [3] above. That other identifying information is said to be the name of the applicant’s employer in his country of origin.
The applicant also alleged that the Australian Border Force (ABF) provided information to authorities in the applicant’s country of origin which could be matched by those authorities with information published in the two reasons for judgment referred to above so as to identify him. This other information comprised:
(a)the name of the applicant’s employer in his country of origin which was published in the earlier judgment of this Court;
(b)information in the applicant’s luggage which identified the applicant and his claims for protection in Australia and which was left on board a plane bound for his country of origin on which the ABF intended the applicant be removed from Australia until enjoined from doing so by the FCCA (it is unclear why the applicant’s luggage was able to be sent to his country of origin notwithstanding that he personally had been removed from the plane); and
(c)the applicant’s name, date of birth, his arrival in Australia and his status as an asylum seeker which information was provided by the ABF to authorities in the applicant’s country of origin in order to obtain travel documentation for his removal from Australia.
In late 2019, following a request by the applicant’s solicitor, the identifying information about which the applicant complains in the reasons for judgment of the FCCA was redacted after a request by the applicant’s representative. Although it is evident that a similar request was made to this Court around the same time, it is evident from the Court file that no such redaction was ever made (contrary to the applicant’s written submission in the present proceeding). The applicant’s counsel, Mr Gormly, accepted in the course of oral argument that the submission that the judgment in this Court had been redacted was in error. It may be inferred that the primary judge in this Court did not consider that it was appropriate to make the requested redaction.
Before the identifying information referred to above was redacted, the applicant sought Ministerial intervention or an outcome under ss 48B, 195A and 197AB of the Act. But he subsequently withdrew his requests concerning ss 48B and 195A pending the determination of the present proceeding.
The CCP website which published the applicant’s name and revealed that he was the subject of the pseudonym BBE15 was accessible to the public until earlier this year, when it too was removed.
The applicant’s case summarised
By his further amended originating application the applicant seeks injunctive and declaratory relief and a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The applicant said that he was invoking the Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). He seeks an injunction against the Minister to restrain the publication of the reasons for judgment of the FCCA and this Court in the matters referred to above and in the form in which they were first published containing information of the applicant’s date of birth and arrival in Australia and the name of his employer in his country of origin. As noted above, the judgment of this Court was not redacted and remains in its original form. The following two declarations are also sought:
(a)a declaration that the FCCA made an error of law and failed to provide the applicant with procedural fairness by publishing in the original reasons for judgment information of the applicant’s date of birth and arrival in Australia; and
(b)a declaration that the FCCA’s publication of the applicant’s name on the CCP was in breach of s 91X of the Act.
The applicant claimed that the Court had power under s 21 of the FCA Act to grant the declaratory relief sought. The applicant submitted that such relief was sought to resolve whether s 91X of the Act had been breached by the FCCA. This is in circumstances where the Minister’s position did not involve any concession that there had been any relevant publication contrary to s 91X as there was no evidence that the applicant’s name was disclosed to any person other than his legal representative. The applicant also emphasised the Minister’s position that a breach of s 91X did not sound in any judicial remedy.
The applicant added that declaratory relief was also sought to resolve whether the FCCA made an error of law and failed to afford him procedural fairness by publishing the identifying information in its reasons for judgment. Mr Gormly of counsel, who appeared for the applicant, clarified in oral address that the alleged error of law was the procedural unfairness. No other error of law was identified apart from the alleged procedural unfairness.
The applicant contended that the Court’s power under s 21 of the FCA Act to make binding declarations of right is not abrogated merely because the Minister’s power under s 48B is non-compellable. This was because, so he submitted, the “right” referred to in s 21 is the very right to make a declaration and does not mean an antecedent right, interest or expectation.
The applicant clarified that he did not contend that:
(a)the publication of the identifying information by the FCCA amounted to a jurisdictional error; or
(b)the breach of s 91X vitiated the judgments of either that Court or this Court; or
(c)the Court has power to grant declaratory relief in a form which would compel the Minister to provide the consequential relief implicit in the exercise of the Minister’s power of intervention under s 48B.
Notwithstanding these clarifications, the applicant contended that the declaratory relief he sought “would be of foreseeable consequence to the administration by the Minister’s department of the Guidelines decided by the Minister by which the Department is to refer to the Minister for his consideration requests or cases for Ministerial Intervention under s 48B of the Act” (s 48B Guidelines). The s 48B Guidelines require there to be exceptional circumstances before matters are referred to the Minister, including the existence of any “new information” which is likely to engage Australia’s protection obligations. The applicant submitted that a declaration of judicial error on the face of reasons for judgment or a declaration of a breach of s 91X, where the error or breach gives rights to a sur place claim, could amount to “new information” for the purposes of warranting a referral under the s 48B Guidelines. The applicant sought to distinguish earlier s 91X cases, such as AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [2] and WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116 at [22]. He contended that the declaration he sought was narrower than the declaration which was discussed in WZAUP at [24].
As to his claim for injunctive relief, the applicant explained that the purpose was to prevent the further publication of the identifying information and thereby protect his safety by ensuring the confidentiality of:
(a)the applicant’s identity as a protection visa applicant and his protection claims; and
(b)his identity as the subject of the same pseudonym in judicial proceedings brought by him.
The applicant contended that other provisions in the Act afforded “statutory guarantees of confidentiality for protection visa applicants”, namely ss 431 and 473GC. He contended that the subject information disclosed in the relevant reasons for judgment also fell within the meaning of “identifying information” in s 336A of the Act.
The applicant sought to explain the delay in bringing the present proceeding on the basis that the alleged breach of s 91X by the FCCA was only discovered in late February 2020. Moreover, he contended that his solicitor only became aware of the ABF’s actions in providing information relating to the applicant to authorities in his country of origin following a freedom of information (FOI) request which was finalised in October 2019.
In support of the order sought under s 37AF of the FCA Act, the applicant contended that such an order was necessary to protect his safety.
It is unnecessary to summarise the Minister’s contentions. They are substantially reflected in my reasons for dismissing the proceeding.
For completeness, however, I will now summarise the applicant’s primary submissions in reply.
In response to the Minister’s contention that no injunctive relief should be granted because the applicant did not identify an established cause of action, as required by the Court’s auxiliary equity jurisdiction and the need for the applicant to show that the injunction is necessary to protect or enforce some recognised legal right (see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [9]-[15]), the applicant said that he was not relying upon that jurisdiction. Rather, he relied on the Court’s jurisdiction under s 39B(1) of the Judiciary Act. He added that the threat to his interest, of the kind described in WZAUP at [18], by the further publication of the identifying information was sufficient to warrant injunctive relief protecting that interest.
As to the Minister’s claim that the declaratory relief sought amounted to an abuse of process because the applicant could have sought that relief in the appeal to this Court from the FCCA’s decision, the applicant sought to distinguish between the Court’s jurisdiction under s 39B of the Judiciary Act and statutory appellate processes. He submitted that the two were not co-extensive, citing AVN20 at [85].The applicant contended that he did not claim that the FCCA decision was vitiated because of a breach of s 91X. Accordingly, he said that he did not need to raise the matter in his earlier appeal. In oral address, Mr Gormly also emphasised that there had been no unreasonable delay by the applicant in bringing these proceedings because the applicant only became aware of the information disclosed by the ABF in early October 2019 as a result of a FOI request.
As to the Minister’s contention that there was no real or genuine controversy between the parties concerning procedural fairness owed by courts to a litigant, the applicant contended that procedural fairness was an immutable and defining characteristic of a court (citing, inter alia, Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[55]). He also contended that “the giving of reasons is subject to the requirements of procedural fairness” and that those requirements are “flexible”. He submitted (footnote omitted):
11.The requirement of judicial fairness in the giving of reasons to maintain the secrecy of the identities of protection visa applicants and their claims for protection is analogous to the qualification of the open court principle which gives way to confidentiality in cases in which publicity would destroy the subject matter of the litigation. The giving of reasons which exposes unsuccessful protection visa applicants to a further need for protection is an example of this kind of destruction.
In further support of his claim for declaratory relief, the applicant cited Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [103] as identifying the applicant’s “real interest” in the FCCA’s error which gives rise to the sur place claim. He added that a declaration would “complete the conditions for the referral of the matter to the Minister for his consideration under s 48B of the Act”.
As to the declaratory relief sought in relation to s 91X, while acknowledging that the duty created by that provision is one of imperfect obligation, the applicant contended that this did not mean that a contested allegation of breach should not attract declaratory relief which would determine a legal controversy in which the applicant has a “real interest”.
Finally, as to the order sought regarding s 37AF, the applicant repeated that such an order can be made at any stage and that he should not be required to bring additional proceedings for such an order to be made.
Relevant legislation
It is convenient to set out the relevant provisions in the Act.
Section 48B provides the Minister’s with a non-compellable power of intervention:
48B Minister may determine that section 48A does not apply to non citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
(3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a)sets out the determination; and
(b)sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a)the name of the non-citizen; or
(b)any information that may identify the non-citizen; or
(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5)A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b)if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
Section 91X provides:
91XNames of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court
(1)This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person’s capacity as:
(a)a person who applied for a protection visa; or
(b)a person who applied for a protection-related bridging visa; or
(c)a person whose protection visa has been cancelled; or
(d)a person whose protection related bridging visa has been cancelled.
(2)The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
(3)In this section:
application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection related bridging visa means a bridging visa granted as a result of an application for a protection related bridging visa.
The phrase “identifying information” is defined in s 336A:
336A Definitions
In this Part:
…
identifying information means the following:
(a)any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);
(b)any meaningful identifier derived from any such personal identifier;
(c)any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d)any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
…
“Personal identifier”, as referred to in s 336A(a) is defined in s 5A:
5A Meaning of personal identifier
(1) In this Act:
personal identifier means any of the following (including any of the following in digital form):
(a)fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b)a measurement of a person’s height and weight;
(c)a photograph or other image of a person’s face and shoulders;
(d)an audio or a video recording of a person (other than a video recording under section 261AJ);
(e)an iris scan;
(f)a person’s signature;
(g)any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
(2)Before the Governor General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a)obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b)the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c)obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
(3) The purposes are:
(a)to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
(b)to assist in identifying, in the future, any such person; and
(c)to improve the integrity of entry programs; and
(ca)to improve passenger processing at Australia’s border; and
(d)to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and
(e)to improve the procedures for determining visa applications; and
(f)to improve the procedures for determining claims from people seeking protection as refugees; and
(fa)to assist in determining whether a person is an unlawful non-citizen or a lawful non-citizen; and
(g)to enhance the Department’s ability to identify non citizens who have a criminal history or who are of character concern; and
(ga)to assist in identifying persons who may be a security concern to Australia or a foreign country; and
(h)to combat document and identity fraud in immigration matters; and
(i)to detect forum shopping by applicants for visas; and
(j)to ascertain whether:
(i)an applicant for a protection visa; or
(ii)an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii)an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
(k)to complement anti-people smuggling measures; and
(l)to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.
Finally, ss 431 and 473GC provide:
431 Identifying information not to be published
The Tribunal must not publish a statement made under subsection 430(1) which may identify an applicant or any relative or other dependant of an applicant.
Note:Section 66B of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to publish decisions and the reasons for them. However, section 66B does not authorise the publication of information if its disclosure would be prohibited or restricted by another enactment (such as this) conferring jurisdiction on the Tribunal.
473GCDisclosure of confidential information
(1) This section applies to a person who is or has been:
(a)a Reviewer; or
(b)a person acting as a Reviewer; or
(c)a person mentioned in subsection 473JE(2) who is assisting the Immigration Assessment Authority; or
(d)a person providing interpreting services in connection with a review by the Authority.
(2)This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act.
(3)A person to whom this section applies must not:
(a)make a record of any information to which this section applies; or
(b)divulge or communicate to any person any information to which this section applies;
unless the record is made or the information is divulged or communicated:
(c)for the purposes of this Act; or
(d)for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act.
Penalty: Imprisonment for 2 years.
(4)Subsection (3) applies to the divulging or communication of information whether directly or indirectly.
(5)A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:
(a)a court; or
(b)a tribunal; or
(c)a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(d)a committee of a House, or the Houses, of the Parliament of the Commonwealth, of a State or of a Territory; or
(e)any other authority or person having power to require the production of documents or the answering of questions;
except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
(6)Nothing in this section affects a right that a person has under the Freedom of Information Act 1982.
(7)For the purposes of this section, a person who is providing interpreting services in connection with a review by the Immigration Assessment Authority is taken to be performing a function under this Act.
(8)In this section:
produce includes permit access to.
Relevant case law
It is desirable to summarise Kenny J’s reasons for judgment in AVN20 because, with respect, they provide considerable helpful guidance in determining some aspects of the applicant’s claims here.
In AVN20, the applicants sought relief in the form of certiorari and mandamus under s 39B(1) of the Judiciary Act to quash the decision and orders of the FCCA. They also sought an injunction preventing the Minister from relying upon a decision of the then Refugee Review Tribunal not to grant protection visas to the applicants, by reason of an alleged breach of s 91X by the FCCA. Declaratory relief was also sought that, because of the s 91X breach, the applicants satisfied the criteria in s 36(2)(a) of the Act.
Justice Kenny rejected the Minister’s contention that the proceedings should be stayed or dismissed as an abuse of process because the claims could have been raised in earlier proceedings. The judicial review proceeding was dismissed, however, because her Honour upheld the Minister’s contention that the applicant’s legal case was without merit.
It is unnecessary to summarise her Honour’s comprehensive reasons for rejecting the abuse of process claim (see at [58]-[92]). It is desirable, however, to focus on Kenny J’s reasons for rejecting the applicants’ claims concerning breach of s 91X. Those reasons may be summarised as follows:
(a)One purpose of s 91X is to protect certain litigants, especially those who engage the statutory judicial review and appeal processes relating to their asylum claims. Another possible purpose may be to restrict the possibility of claims of a need to remain in Australia based on the public exposure of the facts and alleged facts of the cases of those who apply unsuccessful for protection visas. There is little in the text and history of s 91X to support the applicants’ contention that s 91X was intended to differentiate sur place claims arising from participation in relevant court proceedings from other sur place claims (at [97]).
(b)Previous cases concerning s 91X did not support the applicants’ contention that the FCCA’s judgment was vitiated by the disclosure of their names in the online versions of the FCCA’s reasons for judgment (referring to EAU17v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086 and DSO18 v Minister for Home Affairs [2020] FCA 286) (at [98]-[101]).
(c)Having regard to these authorities, Kenny J found that breach of s 91X did not give rise to jurisdictional error, with the consequence that a Court’s judgment was not rendered invalid merely because of an inadvertent breach of s 91X (at [107]).
(d)Her Honour noted that in C7A/2017, the Full Court dismissed an interlocutory application seeking a suppression order under s 37AF to suppress several names. However, as noted further below, at [18] the Full Court made an order under s 37AF to suppress the name of the first appellant, which appeared in the reasons for decision of the Administrative Appeals Tribunal (AAT) and also in part of the Full Court’s earlier reasons for judgment reported at [2020] FCAFC 63.
(e)At [109] her Honour made the following observations concerning the duty of imperfect perfection created by s 91X (emphasis in original):
This is not the occasion to examine in detail the complexities of a duty of imperfect obligation. It suffices to say the concept of a duty of imperfect obligation is known in diverse areas of the law. It is, for example, not uncommon for Commonwealth and State legislatures to impose a “duty” on a public office holder or corporation to take or not to take certain action, even though the duty is not enforceable in the courts: compare Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 749-750 and Environment East Gippsland Inc v VicForests [2010] VSC 335; 30 VR 1 at [304]-[311]. Such a duty has been described as a duty of imperfect obligation: see, for example, Environment East Gippsland at [305]. A duty of imperfect obligation is recognised in many other contexts: see, for example, Re New World Alliance Pty Limited; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 at 445; Glennan v Commissioner of Taxation [2003] HCA 31; 198 ALR 250 at [13]; Bromby v Offenders’ Review Board (1990) 51 A Crim R 249 at 255-256; Adler v District Court of New South Wales (1990) 19 NSWLR 317 at 330-332 (Kirby A-CJ, Mahoney JA agreeing at 340-344); Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane [1977] HCA 15; 136 CLR 353 at 371; and HAJ Ford and WA Lee, Principles of the Law of Trusts (Thomson Reuters, 2016) at [5.12110]; cf. The King v The Governor of the State of South Australia [1907] HCA 31; 4 CLR 1497 at 1511; Werrin v Commonwealth [1938] HCA 3; 59 CLR 150 at 168 (Dixon J).
(f)Where s 91X has been breached, an aggrieved person may request the Minister to allow him or her to make a further protection visa application under s 48B of the Act and the Minister also has a power of intervention under s 417 (at [111]).
(g)The applicants’ complaint of procedural unfairness relating to the s 91X breach was rejected on the basis that no issue of procedural fairness could arise in the face of the unqualified prohibition in s 91X (at [113]).
(h)Her Honour made the following important observations at [117] concerning the declaratory relief sought by the applicants:
The authorities establish that the declaration sought by the applicants at the hearing should not be made. There is no dispute between the parties that the FCCA breached the prohibition in s 91X in the manner set out above. A declaration of the kind contemplated in WZAUP would not have utility, in that it would not serve to resolve matters in controversy between the parties. The possible effect of the undisputed breaches of s 91X on the applicants as asylum seekers is a matter for the Minister to consider in relation to any future exercise of statutory power under the Migration Act.
Turning now to the applicant’s claim for a suppression or non-publication order under s 37AF of the FCA Act in the present proceeding, it is desirable to say something more concerning the Full Court’s decision in C7A/2017, to which Kenny J referred in AVN20 (I note that, only very recently, the appellants in C7A/2017 have sought special leave to appeal). The appellants in C7A/2017 sought, by way of an interlocutory application, a suppression order after the Full Court had published reasons for decision for dismissing their appeal from a decision of the FCCA. They sought suppression of several names mentioned in the reasons for judgment.
Section 37AF(a) of FCA Act relevantly provides:
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
…
The Full Court also drew attention at [7] to the fact that s 37AE of the FCA Act provides that in “deciding whether to make a suppression order or non-publication, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
The names which the appellants sought to have suppressed included the names given to the mother and father of the first appellant in various documents that were before the delegate and the AAT. In the case of the father, the name sought to be suppressed was not the name recorded in the visa application. Both the delegate and the AAT said that country information demonstrated that the name given to the father which was then sought to be suppressed was a very common Javanese name. The other names sought to be suppressed were described as allegedly common Burmese names which the appellants submitted were obvious transliterations of the very common Javanese name and the Arabic word from which the appellants claimed the very common Javanese name was derived.
The Full Court noted that the appellants claimed that the basis for the suppression order was that the information to which it related “might tend to identify them, and may therefore tend to expose them to risk”. The Full Court emphasised at [11], however, that s 37AF(1)(a) refers to “information tending to reveal [their] identity”, not information that might tend to do so.
The Full Court stated at [12] that no “balancing exercise” of competing considerations is involved in applying s 37AF(1)(a). Rather, the balance is struck by the legislation itself.
The Full Court stated at [13] that an order could not be made under s 37AF(1) unless it is “necessary” for one of the purposes specified in s 37AG and that the onus, which is “a very heavy one” is borne by the appellants.
The Full Court held that the onus had not been discharged in C7A/2017, after noting that no evidence had been adduced to demonstrate that the order was necessary. The Full Court highlighted at [15] that the appellants’ sole argument was that the “risk that might arise from identification is somewhat speculative”. This was insufficient in circumstances where at [16] the Full Court said that there must be at least a demonstrable or real risk to the appellants’ safety for the order to be made. In the circumstances there, however, on the appellants’ own case, that alleged risk was found to be “somewhat speculative”. Accordingly, the interlocutory application was dismissed. As mentioned above, however, because s 91X prohibited the publication of the name of a person “who applied for a protection visa in a proceeding before the Court”, the Full Court made an order suppressing the name of a person identified in the published judgment.
I do not understand the Full Court’s reference at [18] of C7A/2017 to s 91X prohibiting “the publication of the name of a person who applied for a protection visa in a proceeding before the Court” to suggest that, contrary to the terms of that provision, the prohibition applies to any proceeding before the Court where, relevantly, the person has applied for a protection visa. Rather, as those statutory terms make clear the prohibition arises in any proceeding in the High Court, the Federal Court or the FCCA “if the proceeding relates to a person in the person’s capacity” as, inter alia, a person who applied for a protection visa. The phrase “proceeding relates to a person in the person’s capacity” narrows the ambit of the provision and the prohibition it contains.
C7A/2017 was recently applied by Abraham J in ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782, where her Honour dismissed an application for a suppression and non-publication order in broadly similar circumstances to those here. It is understood that an appeal has been lodged from that decision.
With these general principles in mind, I shall now explain why I consider that the applicant is not entitled to any of the relief he seeks.
Consideration and determination
(a) The claimed injunction against the Minister
The further amended originating application seeks an injunction restraining the Minister from “causing to be published” unredacted versions of the original decisions of the FCCA and this Court.
The applicant affirmed in his reply submissions that the claimed injunction was not sought in the exercise of an auxiliary equitable jurisdiction but rather in the Court’s original jurisdiction under s 39B(1) of the Judiciary Act. He submitted that the threat to his interest, of the kind described in WZAUP at [18] by the further publication of the identifying information provided a sufficient basis for the injunctive relief he sought, which would protect that interest.
The Minister did not contest that an injunction may issue to restrain a public official from acting in manner that is contrary to a statute (Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [56]). The Minister contended, however, that the applicant had not demonstrated that publication of the unredacted judgments would breach any statute. That submission should be accepted having regard to the following matters:
(a)Part 4A of the Act does not prevent publication of a protection visa applicant’s date of birth, date of arrival in Australia or details of their former employer. Part 4A regulates access to, and disclosure of, “identifying information”. “Identifying information” is defined in s 336A of the Act in terms which are confined to “personal identifiers” or material derived, directly or indirectly, from “personal identifiers”. A “personal identifier” is defined in s 5A of the Act by reference to certain specific types of information such as a fingerprint or signature. It does not include details of a person’s date of birth or any other material published in the original reasons for judgment of the FCCA or this Court.
(b)Section 91X prohibits the publication by any of the three specified courts of a person’s name if the person falls within any of the four specified categories involving protection visas and the particular court proceeding relates to that person in the person’s capacity as a person who falls within any of those four categories. It does not prevent publication of the matters that were published in the reasons of the FCCA or this Court about which the applicant complains. As Besanko J stated in EAU17 at [26]-[27], it is the publication of a person’s name which is the subject of the statutory prohibition and it is insufficient that matters set out in the Court’s reasons for judgment, falling short of identifying the relevant person’s name, would allow a person in the relevant country of origin knowledge of the relevant circumstances to identify the person.
(c)Sections 431 and 473GC operate as a prohibition on, respectively, the AAT and the Immigration Assessment Authority. Those provisions do not operate to limit material that may published by the Court or, more relevantly, the Minister.
In any event, there is no evidence (or even any serious allegation) that the Minister proposes to publish the unredacted earlier reasons for judgment of the FCCA or the previous published reasons for judgment of this Court (which, as noted above, remain unredacted). In the absence of any threatened publication of those reasons by the Minister, there is no basis to issue an injunction against the Minister, noting that the proposed injunction is directed only to the Minister.
For these reasons, the application for injunctive relief is dismissed.
(b) Declaratory relief in relation to the FCCA’s reasons for judgment
As noted, the applicant seeks a declaration that the FCCA made an error of law and denied him procedural fairness by publishing in its reasons for judgment his date of birth and date of arrival in Australia.
The Minister contended that this claim amounted to an abuse of process because it could, and should, have been raised in the appeal to this Court or in either of the two applications for special leave to appeal. It is unnecessary to determine this claim because, for the reasons which will now be given, there is no basis for the substantive relief sought.
The applicant has not demonstrated any error of law or denial of procedural fairness (noting Mr Gormly’s clarification as referred to at [13] above). The FCCA’s references to the applicant’s date of birth and the date of his arrival in Australia did not contravene any statutory provision. More particularly, publication of such material does not contravene s 91X, which is confined in its terms to publishing a person’s name (see [52(b)] above).
Whilst procedural fairness may require that a person be put on notice of any adverse finding to be made in the judgment of a Court, statements of fact such as those contained in the original judgments, cannot be considered adverse in the relevant sense. Those factual matters do not relevantly affect any right or interest of the applicant (Kioa v West [1985] HCA 81; 159 CLR 550 at 616-617; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [66] per Gummow, Hayne, Crennan and Bell JJ). Moreover, as Kenny J concluded in AVN20 at [113], no issue of procedural fairness arises given the unqualified nature of the prohibition in s 91X.
When pressed by the Court to identify the procedural unfairness of which the applicant complains, Mr Gormly said that it was “unfair” of the FCCA to publish the identifying information and to put the applicant at risk of harm. He said that the applicant did not contend that he was entitled by procedural fairness requirements to see and comment on a draft of the FCCA’s reasons for judgment. It is evident that the applicant’s complaint is not truly characterised as one of procedural unfairness but rather as one of substantive unfairness. For this additional reason, his procedural fairness cause of action must fail.
Absent any established legal error, there is no basis for the grant of declaratory relief. The applicant’s contention that the Court’s power to make “binding declarations of right” does not require the identification of any antecedent right is rejected. The purpose of a declaration is to resolve a real controversy regarding the legal rights and liabilities of the parties (Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 436-438); Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-582.
I do not consider that the applicant’s claim for declaratory relief is assisted by Plaintiff M61/2010E. There, the High Court held at [76] that the decision to consider whether non-compellable powers under ss 46A and 195A should be exercised directly affected the rights and interests of those who are the subject of the assessment or any review because it prolonged their detention for so long as the assessment and any review took to complete. Furthermore, it held at [78] that consideration of the exercise of those non-compellable powers included steps taken to inform that consideration, which steps had to be procedurally fair and in accordance with legal principle. The High Court concluded that the applicant had been denied procedural fairness by the reviewer whose task was to determine whether Australia had protection obligations to a person. If the reviewer concluded that it did, the Department prepared a submission to the Minister for consideration of the exercise of his or her non-compellable powers under ss 46A or 195A. No such submission was made if the reviewer concluded that protection obligations were not owed.
Although concluding that mandamus was not available because the Minister’s powers under ss 46A and 195A were non-compellable and there was no utility in granting certiorari to quash the reviewer’s recommendation, the High Court concluded that declaratory relief should be granted because the reviewer had made an error of law and denied procedural fairness. The Court said at [103] (footnotes omitted):
103.In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a "real interest" in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.
As Mr Knowles, who appeared for the Minister, correctly pointed out the circumstances in Plaintiff M61/2010E are very different from those here. That is because there was a finding in that case that the Minister had commenced to consider whether or not to exercise the relevant non-compellable powers (see [70]). That is not the position here. The circumstances here are similar to those in Plaintiff S10/2011 v Minister for Immigration and Citizenship, where again no such consideration had commenced (see [66] per Gummow, Hayne, Crennan and Bell JJ). I do not consider that Plaintiff M61/2010E provides any support for the applicant’s complaint of procedural unfairness.
Nor is there present in this case the kinds of matters which were identified by Heydon J in Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [38] as warranting the grant of declaratory relief.
Moreover, the declaratory relief sought is inappropriate. The applicant acknowledged that the purpose of the declaratory relief sought is to attempt to influence the outcome of a future application to the Minister in respect of the non-compellable power in s 48B of the Act. The object of the grant of declaratory relief is to determine matters in controversy between the parties. Declaratory relief is inappropriate in circumstances where the relief would have no foreseeable consequence other than “some ill-defined prospect that the Minister might be moved to consider it” in relation to some separate decision-making process that may or may not occur (Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; 71 FCR 1 at 32-33 per Kiefel J (with whom Sackville J agreed) and AVN20 at [115]-[117] per Kenny J).
(c) Declaration in relation to s 91X
The Minister contended that the applicant failed to establish that there had been any relevant publication contrary to s 91X of the Act and that it was insufficient that the applicant’s solicitor, by performing certain specific searches, was able to access information from the CCP which included the applicant’s name.
It is unnecessary to determine that particular contention because, even if the applicant had established that there had been a breach of s 91X of the Act, this would not be sufficient to warrant declaratory relief. That is because, as Kenny J found in AVN20, s 91X of the Act gives rise to a duty of imperfect obligation, breach of which neither invalidates the FCCA’s earlier decision, nor sounds in a judicial remedy, including declaratory relief: see AVN20 at [108]-[111]. As her Honour noted at [111] and [117], which is set out at [38(h)] above, even though no judicial remedy is available, a person whose name is published in breach of s 91X could request the Minister to exercise his or her non-compellable power under s 48B and there are other statutory powers vested in the Executive Branch which could be exercised by the Minister in those circumstances. As Kenny J emphasised, however, that is a matter for the Executive Branch, not this Court. I respectfully agree with her Honour’s observations and findings regarding s 91X.
For completeness, it might also be noted that the applicant relied on the fact that in WZAUP Rares J raised the possibility of granting some form of declaratory relief so as to suggest or raise for consideration that the Minister should exercise his powers under s 48B or other similar provisions in circumstances where the FCCA had published the appellant’s date of birth, together with details of his claims for protection. WZAUP was an unusual case and I do not consider that it assists the applicant here. Justice Rares did not find that publication of the appellant’s birth date was in breach of s 91X. Rather, his Honour’s concerns in relation to that publication as expressed in his ex tempore reasons for judgment, seem to have been affected by the fact that other personal information relating to the appellant had previously been disclosed in an unauthorised “data breach” by the Department. The Refugee Review Tribunal had found in that case that the data breach had disclosed some of the appellant’s personal information and that this information might have been accessed in his country of origin. It was in those circumstances that Rares J stood over the making of final orders.
In the events that occurred, no declaratory relief was granted in WZAUP and the appeal was ultimately dismissed. The decision does not support the applicant’s claim for declaratory relief.
(d) Suppression or non-publication order
The Minister contended that it is not appropriate to commence a fresh proceeding to seek suppression or non-publication orders in relation to material in concluded proceedings, as the applicant has done here. He submitted that the appropriate course would be to make an interlocutory application in the concluded proceeding, as occurred in C7A/2017.
There is some force in that contention, but it is unnecessary to determine the matter. That is because the applicant has not demonstrated a sufficient basis upon which such an order should be made, having regard to the observations of the Full Court in C7A/2017 referred to at [39] to [47] above. In particular, even if it be assumed that publication of the applicant’s dates of birth and arrival in Australia, as well as publication of the name of the applicant’s employer in his country of origin (which information has not been redacted from this Court’s previous reasons for judgment even though the applicant claimed that it had), is information tending to reveal his identity (which is far from clear), the applicant has not provided any evidence to support his claim that a suppression order should now be made under s 37AG(1)(c) on the ground that it is “necessary to protect [his] safety” (emphasis added).
The information which is sought to be suppressed was published on 2 September 2016 and 16 February 2017 respectively and, in the case of the FCCA material, it was accessible until it was redacted in late 2019 as referred to at [8] above. The material of which the applicant complains in this Court’s reasons for judgment published on 16 February 2017 was never redacted and have been accessible for over three years. Having regard to those circumstances and chronology of events, the applicant (who bears the onus) has not demonstrated to my satisfaction why a suppression order is now necessary to protect his safety. Having regard to the length of time that the relevant unredacted information was available before it was redacted in late 2019 (in the case of the FCCA), it would be an exercise in futility to make the suppression order sought by the applicant now (see AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132 at [41] per Kerr J).
Conclusion
For these reasons, the further amended originating application will be dismissed. There is no reason why costs should not follow the event. In particular, I reject the applicant’s submission that the question of costs should take into account that declaratory relief was sought against the FCCA, who made a submitting appearance. It was entirely appropriate for the Minister to assist the Court as he did by his counsel making submissions on all parts of the relief sought by the applicant.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 10 July 2020
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