Bqu18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FedCFamC2G 216
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 216
File number(s): SYG 901 of 2018 Judgment of: JUDGE EGAN Date of judgment: 2 November 2021 Catchwords: PRACTICE AND PROCEDURE – Application in a case for suppression orders – objections to evidence – discretion to allow admission of evidence – objections overruled. Legislation: Evidence Act 1995 (Cth), ss 55, 135.
Electronic Transactions Act 2000 (NSW).
Federal Circuit Court of Australia Act 1999 (Cth), s 88F.
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 230.
Cases cited: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 28 October 2021 Date of hearing: 28 October 2021 Solicitor for the Applicants: Mr D. Taylor of SWL Migration Solicitor for the First Respondent: Ms L. Helsdon of Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 901 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQU18
First Applicant
BRK18
Second Applicant
BRL18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
2 NOVEMBER 2021
IT IS ORDERED THAT:
1.The oral objections to evidence made on behalf of First Respondent are overruled.
2.The Applicant’s Application in a Case filed on 26 June 2021 be listed for final hearing at 9:45am AEST on 7 April 2022.
3.The costs of and incidental to the hearing on 28 October 2021 be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
On 9 April 2020, this Court handed down judgment dismissing a review application in this proceeding which sought the quashing of a decision of the Immigration Assessment Authority (‘the Authority’). The Authority had affirmed a decision of a delegate of the Minister to refuse to grant protection visas to the applicants. An appeal against the decision of this Court was dismissed by the Full Court of the Federal Court of Australia on 20 May 2021.
In the Application in a Case filed on behalf of the applicants on 26 June 2021, the following orders were sought:
“1.The whole of the judgement be suppressed and prohibited pursuant to s 88F(1)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) on the grounds that:
a. The order is necessary to protect the safety of the applicant.
b. The order is necessary to prevent prejudice to the administration of justice.
2.That pursuant to s.88F(1)(b) and s.88F(2), the whole of the following judgements be suppressed:
BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74
BRH18 v Minister for Immigration & Anor [2020] FCCA 805
BRG18 v Minister for Immigration & Anor [2020] FCCA 806
3.In the alternative to the above, identifying information and specific information relating to the applicant’s sea tigers claim in the above judgements be suppressed; the applicants in this and the related proceedings be assigned a new pseudonym; the proceedings are to be assigned a new proceeding number; the substantive judgment be published using the applicant’s new pseudonym and the new proceeding number.
4.The publication or disclosure of the original pseudonym and the original proceeding number of the proceeding, other than to the parties and the Court, is prohibited pursuant to s 88F of the Federal Circuit Court of Australia Act 1999 (Cth) on the grounds that:
a. The order is necessary to protect the safety of the applicant.
b. The order is necessary to prevent prejudice to the administration of justice.
5.Documents in the proceeding which display the original pseudonym and the original proceeding number are deemed to be confidential for the purposes of r 2.08B of the Federal Circuit Court Rules 2001 (Cth).
6.In the alternative to Order 2 above so far as the matter relates to the Federal Court proceeding, the application for suppression orders in relation to that judgement be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court of Australia Act 1999.
In support of the application, the applicants have sought to rely upon a number of affidavits. Of that number, the first respondent has objected to the whole of those affidavits of the applicants’ solicitor named Mr Taylor respectively filed on:
(a)26 June 2021;
(b)28 July 2021 at 2.08pm;
(c)28 July 2021 at 4.30pm;
(d)4 August 2021 at 8.20am;
(e)4 August 2021 at 5.56pm;
The first respondent further objected to the admissibility of the whole of paragraph [2] of the affidavit of Mr Taylor filed on 5 August 2021 at 10.33am.
Exhibit 4 and Exhibit 5 each set out the bases of objection raised by the first respondent to such affidavit material, and the applicants’ responses thereto. It was noted that the first respondent withdrew as a ground of objection that which was based upon the submission that the respective affidavits had not been witnessed in accordance with the provisions of the Electronic Transactions Act 2000 (NSW).
At the time of the filing of the application in a case, the Federal Circuit Court of Australia Act 1999 (Cth) had not been repealed. Upon the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’), the power to make suppression and non-publication orders under s. 88F of the Federal Circuit Court of Australia Act 1999 (Cth) was replaced with by s. 230 of the Act, which section relevantly provided as follows:
(1) The Federal Circuit and Family Court of Australia (Division 2) 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 Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).”
The Court will treat the application before it as one having been filed in reliance upon the provisions of s. 230 of the Act.
The four (4) grounds of objection were those of relevance, unqualified opinion evidence, speculation, and the making of submissions rather than the giving of evidence.
This matter has had a long and protracted history. A large number of affidavits have been filed on behalf of the applicants since the dismissal of their appeal by the Full Court of the Federal Court. The affidavits, which in whole or in part have been objected to by the first respondent, are not only relied upon by the applicants in this matter, but also by the applicants in two related proceedings, namely BRG328/2018 and BRG329/2018. Similar orders to those sought in the subject application in a case have been sought in applications in a case filed in each of those proceedings. It is noted that in those applications in a case, orders have also been sought that this Court make a suppression order in respect of the decision of the Full Court of the Federal Court in BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74, whereby all appeals were dismissed in respect of the three proceedings. The utility of the bringing of such applications in this Court will be the subject of consideration upon the final hearing of the application in a case.
Much of the material contained in the affidavits objected to is non-contentious. For example, to the extent that the affidavit of Mr Taylor filed on 28 July 2021 at 4.30pm has annexed to it a number of judgments of this Court, and of the Full Court of the Federal Court of Australia, the Court infers that the applicants have done so for the purpose of assisting the Court in its practical consideration of the issues before it. The Court similarly infers that that was the applicants’ intention when annexing DFAT and other Country information reports which are said by the applicants to be relevant to the question as to whether or not there has relevantly been disclosure of information, in judgments of either this Court or the Full Court of the Federal Court, which would enable the authorities in Sri Lanka to identify, and later persecute, the applicants upon their return to that Country. In that regard, it was asserted that the report of a Home Office Fact Finding Mission to Sri Lanka conducted between 28 September 2019 and 5 October 2019 published on 20 January 2020 supported the proposition that Sri Lankan intelligence agencies monitored Sri Lankan refugee diaspora, in part for the purpose of intimidation, presumably in the event of any such return.
Whether this Court does or does not find that the application filed in this proceeding, or in the other two (2) proceedings, is of substance or not, will be a matter to be considered upon the hearing of the application. Questions of the weight to be attached to any such evidence will be a matter for the Court’s determination.
On balance, and in the exercise of its discretion, the Court considers that evidence sought to be relied upon by the applicant would not be:
(a)unfairly prejudicial;
(b)misleading or confusing;
(c)or cause or result in undue waste of time
to the first respondent. [1]
Indeed, the making of the objections has resulted in delay to the hearing of the application in a case.
[1] s. 135 of the Evidence Act 1995 (Cth).
Further, until full argument is advanced as to the probative value of the evidence sought to be relied upon by the applicant, the Court will not be in a position to assess whether the assertions of the applicants are valid or not. Section 55(1) of the Evidence Act 1995 (Cth) relevantly provided as follows:
“(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
Whether or not the affidavits will ultimately be persuasive or not will depend upon a consideration by the Court of all arguments advanced at the time of the hearing of the applications in a case in each proceeding. The Court is also mindful of the desirability of all matters in issue in the applications in a case being the subject of final binding decisions, rather than the hearing being delayed by the filing of applications for leave to appeal.
The objections to evidence are overruled. And it is so ordered.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 2 November 2021
SCHEDULE OF PARTIES
SYG 901 of 2018 Applicants
Fourth Applicant:
BRM18
0
2
4