BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 742
Federal Circuit and Family Court of Australia
(DIVISION 2)
BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 742
File number(s): BRG 328 of 2018 Judgment of: JUDGE EGAN Date of judgment: 5 September 2022 Catchwords: MIGRATION – Application in a Case for suppression orders – where application made more than three years and three months after the filing in this Court of an application for review of a decision of the Immigration Assessment Authority – where application filed after the dismissal by the Full Court of the Federal Court of an appeal from a decision of this Court dismissing an application for review of the Authority’s decision – where delay on the part of the applicant was inexcusable – application dismissed. Legislation: Privacy Act 1988 (Cth) Cases cited: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74.
ELA18 v Minister for Home Affairs [2019] FCA 1482; ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782;
ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230;
ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA 1179
ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 882;
ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA 1179.Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 31 August 2022 Date of hearing: 15 and 26 August 2022 Solicitor for the Applicant: Mr Taylor of Sydney West Legal Migration Lawyers Solicitor for the First Respondent: Ms Helsdon of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
BRG 328 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRH18
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:
5 September 2022
THE COURT ORDERS THAT:
1.The Amended Application in a Case being Annexure A to the orders of the Court made on 26 August 2022, as amended by orders of the Court made that day, (the filing of such proposed amended application having been dispensed with pursuant to varied orders of the Court made on 5 September 2022) be dismissed.
2.The Applicant pay the First Respondent’s costs to be agreed, or failing agreement, to be taxed pursuant to r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
Introduction
The Application in a Case filed in this proceeding on 6 August 2021(as amended with the leave of the Court on 26 August 2022) was almost identical to Applications in a Case each respectively filed in BQU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and BRG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural on 26 June 2021 and 6 August 2021. All three applications were heard together. Oral arguments at the hearing of each matter were, in all respects, the same. The applicants in each application were represented by the same lawyers. The applicants in each matter had a familial connection. To the extent that largely similar issues were dealt with and addressed in each matter, identical, or almost identical reasons are to be handed down on the issues which were common to all. The Court makes no apology for taking that course of action in the light of the Court having a very heavy hearing list.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 18 June 2010. The applicant applied for a Safe Haven Enterprise Visas (SHEV) on their own behalf.
The visa application was refused by a delegate of the Minister on 5 December 2017. That refusal decision was referred to the Immigration Assessment Authority (the Authority) for review on 8 December 2017. On 8 March 2018, the Authority affirmed the delegate’s decision to refuse to grant the visa.
On 4 April 2018, the applicant filed an Originating Application for Review of the decision of the Authority. On 9 April 2020, this Court dismissed the Application for Review. The applicant was represented by lawyers who instructed two Counsel at the time of the hearing of the Application for Review.
The applicant then filed a Notice of Appeal from the judgment of this Court. On 20 May 2021, the Full Court of the Federal Court (Allsop CJ, Kerr and Mortimer JJ) dismissed the appeal. [1] The applicant was represented on appeal by the same lawyers and the same Counsel who were instructed to appear on their behalf before this Court.
[1] BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
Consideration of History of Proceeding
The Proposed Amended Application in a Case relied upon at the hearing (namely the Proposed Amended Application the subject of the grant of leave on 26 August 2022) sought the following orders:
1.“That pursuant to s.230, 231, and 232 of the Federal Circuit and Family Court of Australia Act 2021, that the judgements in this and two related proceedings BRH18 v Minister for Immigration & Anor [2020] FCCA 805 and BRG18 v Minister for Immigration & Anor [2020] FCCA 806, be recalled, and a non-publication order issue redacting:
• the date of death of the first applicants’ mother,
• the initials of the family members,
• the prospective date of birth of the child.
2.That pursuant to s.230, 231, and 232 of the Federal Circuit and Family Court of Australia Act 2021, that the judgements in this and two related proceedings BRH18 v Minister for Immigration & Anor [2020] FCCA 805 and BRG18 v Minister for Immigration & Anor [2020] FCCA 806, be recalled, and a suppression order issue suppressing:
a. the date of death of the first applicants’ mother,
b. the initials of the family members,
c. the prospective date of birth of the child.
3.That the order remain in place until such time as this or another Court orders otherwise.
4.In the alternative that the orders remain in place until such time as the Court thinks fit.
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. 2.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.”
The applicant was represented by Sydney West Legal and Migration Lawyers. The matter was handled by Mr Taylor of that firm, who, it was noted, has much experience in the filing of similar applications in other matters. [2] As was the case in the footnoted matters in which Mr Taylor was involved, the application for the making of suppression orders was in each respect not made until after the Full Court of the Federal Court had dismissed appeals against orders of this Court dismissing applications for review of adverse visa decisions of the Immigration Assessment Authority.
[2] ELA18 v Minister for Home Affairs [2019] FCA 1482; ELA18 v Minister for Home Affairs (No 2) [2020]
In ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA 1179, Markovic J at [37] – [40], held as follows:
“[37]ELA18 and EEZ18 related to decisions of the Authority refusing the grant of a Safe Haven Enterprise Visa to the respective appellants. In each proceeding an application for review of the Authority’s decision to the Circuit Court, and subsequent appeal to this Court, were dismissed. Following the unsuccessful appeal, the appellant in each proceeding filed interlocutory applications in this Court seeking suppression orders over parts of the judgments in this Court, which were dismissed. The appellant sought leave to appeal from those decisions to the Full Court.
[38]Justice Flick concluded that the Full Court lacked jurisdiction to entertain the appeal in either proceeding but went on to consider how the applications would have been determined if the occasion to determine whether leave to appeal should be granted had arisen. In relation to ELA18, his Honour said at [108]-[109]:
[108]Given the serious consequences that could potentially be visited upon the Appellant by reason of “identifying information” being disclosed, it is respectfully considered that had the occasion arisen for an exercise of the judicial discretion to grant leave to appeal, that discretion would have been granted but for the following considerations:
•no submission had been advanced to the Federal Circuit Court as to the need for care to be exercised in publishing reasons for decision which disclosed “identifying information” contained within the materials available to that Court when undertaking its judicial review functions;
•the reasons for decision of the Federal Circuit Court which itself disclosed “identifying information” had been available and accessible to the public from about 4 February 2019;
•the reasons for decision of her Honour Justice Abraham which again disclosed much the same “identifying information” had been available from about 10 September 2019; and
•the Appellant took no real step to have the “identifying information” withheld – even on an interim basis – until (at the earliest) February 2020 when submissions were advanced to the High Court on the special leave application challenging the extent of the information that had been disclosed or (more formally) 17 June 2020 when the present Application for leave to appeal was filed annexing a proposed Notice of Appeal directed in part to the disclosure of “identifying information”.
In short:
•any prejudice suffered by the Appellant in having “identifying information” publicly available was a prejudice brought upon himself by reason of his failure to act more promptly.
[109] Furthermore, and even if it be the case – as it most probably is – that this Court could make an “appropriate” order under s 37AF(2) with respect to identified statements in the reasons for decision of a Judge of this Court, free of any consideration as to whether that Judge was exercising either original or appellate jurisdiction, it would not have done so in the present proceeding because:
•the making of such an order would not be “necessary to prevent prejudice to the administration of justice” or “necessary” to protect his “safety” (s 37AG(1)(a) and (c)) (cf. The Country Care Group Pty Ltd v Director of Public Prosecutions [2020] FCAFC 44 at [7]- [9], (2020) 376 ALR 652 at 656 per Allsop CJ, Wigney and Abraham JJ (“The Country Care Group”)) so long as the very same information as was sought to be suppressed remained publicly available by reason of the decision of the Federal Circuit Court.
[39] His Honour made similar remarks at [122] in relation to EEZ18.
[40]Justices Besanko and Perry generally agreed with Flick J and, in particular, agreed with his Honour’s remarks referred to above. However, at [1] their Honours cautioned:
... whilst we have no difficulty with the proposition that judges should avoid, as far as possible, needlessly disclosing personal information that may identify the appellant in a case to which s 91X of the Migration Act 1958(Cth) applies, it seems to us far more contestable to say (if it is being said) that a judge should avoid referring to information that is part of his or her reasoning in the normal course. Secondly, we are not presently convinced that there is any obligation on a judge (in many cases unassisted by the parties) with respect to information which “falls short” of, in the sense of does not satisfy, the ground in s 37AF(1)(a) of the Federal Court of Australia Act 1976(Cth) of “information tending to reveal the identity of or otherwise concerning any party to ... a proceeding”. Finally, and relatedly, whilst judges should be mindful of the possibility of information being collated in a way that identifies the appellant, it should at the same time be recognised that there are endless ways information might be collated and the vital piece of the puzzle might differ from one case to another. For example, the vital piece in one case might be the precise date of arrival in Australia, whilst in another because of other information, the year of arrival might be enough. A fear that information may be collated in a particular way (unknown to the Judge) should not inhibit the provision of reasons which clearly expose the essence of the judge’s reasoning process.”
The Application in a Case was filed more than 3 years and 3 months after the filing in this Court of the application for review of the decision of the Authority. Throughout that whole period of time, and indeed up until the present time, the applicant was legally represented. The Court finds it implausible that had the applicant held grave fears for their safety should any material identifying them be disclosed should their visa applications be unsuccessful, they would not have, at the earliest opportunity, sought to have any such identifying material suppressed. That they did not do so is telling. The delay was inexcusable.
For the same reasons as held by the Full Court in ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230, and by Markovic J in ETV17, this Court dismisses the application for suppression orders on the basis that any prejudice suffered by the applicant in having such identifying information publicly available was a prejudice brought upon themselves by reason of their failure to act earlier to protect their interests.
The Court further finds that it is usually contrary to public policy for applications such as the present to be allowed in circumstances where an earlier application for suppression could have been made either at the time of the filing of the application for review, or at the time of the substantive hearing of the Application for Review.
Further, the additional reliance by Mr Taylor for the applicant upon provisions of the Privacy Act 1988 (Cth) in support of the application was abandoned by him at the time of the hearing, although it was obliquely submitted that the principles underlying the Act supported the making of the orders sought. In light of the reasons of the Court, the Court was not persuaded that any such submission was of any merit.
The Application in a Case is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 September 2022
FCAFC 74.
FCA 782; ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCAFC 230; ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019]
FCA 882; ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA
1179.
0
6
0