BTJ17 & Ors v Minister for Immigration & Anor (No.2)
[2021] FCCA 1491
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTJ17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2021] FCCA 1491 |
| Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application for non-publication order under s.88F of the Federal Circuit Court of Australia Act 1999 (Cth) – relevant considerations – importance of open justice – order necessary to protect applicants’ safety. |
| Legislation: Federal Circuit Court of Australia Act 1999, ss.88E, 88F, 88G |
| Cases cited: BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2) [2020] FCA 586 CVG20 v Minster for Home Affairs (No.2) [2020] FCA 690 WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116 ELA18 v Minister for Home Affairs (No.2) [2020] FCA 782 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 C7A/2017 v Minister for Immigration and Border Protection (No.2) [2020] FCAFC 70 Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2) [2021] FCAFC 81 |
| First Applicant: | BTJ17 |
| Second Applicant: | BTK17 |
| Third Applicant: | BTL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1242 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 8 June 2021 |
| Date of Last Submission: | 8 June 2021 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2021 |
REPRESENTATION
| Solicitor for the Applicants: | Mr D. Taylor (Sydney West Legal and Migration) |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The reasons for judgment in this case published only to the parties on 10 May 2021:
(a)be amended by the correction of drafting errors and by the redaction of certain matters that might tend to identify the applicants; and
(b)be made public in that corrected and redacted form.
The reasons for judgment document published to the parties on 10 May 2021 remain confidential to the parties and to the Court until further order in relation to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1242 of 2017
| BTJ17 |
First Applicant
| BTK17 |
Second Applicant
| BTL17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In this proceeding the applicants applied for constitutional writs against the second respondent on the basis that its decision on the review of their unsuccessful visa application had been affected by jurisdictional error. The applicants are Hindu Tamil citizens of Sri Lanka and have claimed to fear persecution there.
Judgment in this matter was pronounced on 10 May 2021 and the Court’s reasons for judgment (“Reasons”) were published to the parties that day. On that occasion the applicants’ solicitor, Mr Taylor, foreshadowed the possibility of an application to suppress portions of the Reasons and, as a consequence, they have not yet been published more widely.
The first applicant has now made an informal application for a suppression order, in the sense that he has not filed an application in a case and paid the associated filing fee but has instead filed written submissions in which the application is made.
RELEVANT LEGISLATION
Sections 88E, 88F and 88G of the Federal Circuit Court of Australia Act 1999 relevantly provide:
88E Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Federal Circuit Court of Australia must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
88F Power to make orders
(1)The Federal Circuit Court of Australia 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 Federal Circuit Court of Australia or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Federal Circuit Court of Australia; or
(b)information that relates to a proceeding before the Federal Circuit Court of Australia 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 Federal Circuit Court of Australia.
(2)The Federal Circuit Court of Australia may make such orders as it thinks appropriate to give effect to an order under subsection (1).
88G Grounds for making an order
(1)The Federal Circuit Court of Australia 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;
…
(c)the order is necessary to protect the safety of any person;
…
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
SUBMISSIONS
The first applicant’s approach, by filing submissions seeking relief rather than by filing an application in a case, is not to be encouraged because he has not identified with any precision the order he seeks. He has referred to three cases in the Federal Court where orders that tended to maintain an applicant’s anonymity were made, BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586, CVG20 v Minster for Home Affairs (No 2) [2020] FCA 690 and WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116, but the circumstances of those cases were materially different from those in this case and the orders made are of no useful application to the present case. Otherwise, the most he has said in his written submission as to how an order might be drawn is that information that might tend to identify him should not be made public.
In support of his suppression application the first applicant has referred to portions of the Reasons that recount his claims to have been present when bodies of dead or injured living persons were taken from buses parked in an army camp and, he contends, buried. He submits that disclosure of such conduct to an Australian court, which might lead to a war crimes investigation in Sri Lanka, was of great seriousness and significance and “would likely be subject to greater scrutiny by the Sri Lankan armed forces and their CID branch in order to identify the applicant as BTJ17”. The applicant submitted:
2.The seriousness of the applicant’s claims gives rise to a greater and unquantifiable risk of adverse attention of the Sri Lankan authorities to match the details in the judgement [sic] with their own information and records to identify the applicant.
The first applicant submits that those passages in the Reasons contain information that might tend to identify him were the Sri Lankan authorities minded to try to.
The first applicant’s concerns were not limited to the potential to be identified from his evidence as to what occurred in the army camp. He also led in evidence a document which he contended was an application for a Sri Lankan travel document that is completed when asylum seekers are returned to Sri Lanka. Amongst the matters that it addresses are:
…
18
Date of departure
19
Date of entry
20
Means of entry
…
23
Relative information (If any)
Relative name
Type of relation
…
He submitted that were such a document to be completed in relation to him and provided to the Sri Lankan authorities, it would be possible to cross reference the information it contained with that found in the Reasons and by that means identify him as applicant BTJ17. He referred specifically to information in the Reasons concerning:
a)when he left Sri Lanka;
b)when he arrived in Australia;
c)how he arrived in Australia; and
d)with whom he arrived in Australia.
The Applicant also referred to Report of a Home Office fact-finding mission to Sri Lanka published on 20 January 2020. In that British report it was recorded that:
Several sources acknowledged that they were aware or believed that there was some monitoring of the diaspora by the Sri Lankan authorities. Journalist 1 stated that this was common practice as the government and military are fearful of an uprising and so place officers amongst protestors in the UK to monitor them. Journalist 2 was aware of protesters having their photos taken by those inside the Sri Lankan High Commission.
The representative from the northern province community stated that activists were probably monitored, and he had heard reports of members of the diaspora facing intimidation when they return to Sri Lanka although he noted this was not the case for everyone and was more likely to be prominent activists.
…
Monitoring on return to Sri Lanka is also a possibility if you are deemed to have done something against the government and monitoring of social media also occurs.
The Minister did not oppose the making of non-publication orders but his submissions did not indicate support for them either. In his written submissions the Minister referred to the following passage from Abraham J’s Reasons in ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782:
The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the Federal Court Act are well settled. While the appellant has not identified which limb of s 37AG is relied on in support of his application, it is presumed it is s 37AG(1)(c). The question therefore in this instance is whether the making of a suppression or non-publication order is “necessary to protect the safety of any person”: s 37AG(1)(c). The word “necessary” in that context is a “strong word”… although it is not to be given an unduly narrow construction … . The threshold which an appellant must satisfy is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice to found a suppression or non-publication order … . Although an appellant is not required to prove that the harm which he or she fears would be an inevitable consequence in the absence of such an order … . Once the court is satisfied that an order is necessary, it would be an error not to make it … . The onus is on the appellant to persuade the Court to make the order has been described as “a very heavy one” … . (at [17]) (references omitted)
The Minister also referred to John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477.
DISCUSSION
John Fairfax & Sons Ltd v Police Tribunal of New South Wales concerned an order made by the NSW Police Tribunal that:
… the name of a specified person “is not to be published in reports of these proceedings nor in any material which would serve to identify him or his place of abode”. (at 474)
In a passage that, with respect, may be applied by analogy to the present case, McHugh JA said, Glass JA agreeing:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. (at 476-477)
No less than the conduct of proceedings in court, the outcome of proceedings, including the reasons for that outcome, are public matters and a court can only depart from the open justice rule:
… where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule.
It can be accepted that if the safety of an applicant in a proceeding requires his or her anonymity to be maintained, and that that necessitates something in the nature of a non-publication order, the Court should make such an order. However, there must at least be a demonstrable or real risk to the applicant’s safety were the order not to be made: C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [16]. Further, except in cases of necessity, the administration of justice would not be served if the reasons for judgment in a case were so redacted that a court’s reasoning was obscured by the removal of references to material facts, arguments or trains of thought.
The cases cited by the applicants and to which I have referred were ones in which an applicant’s identity was made public by administrative errors such that the applicant could be linked to proceedings involving them even though, by reason of s.91X of the Migration Act 1958, their name was not used in the court record or in the judgment. That is not this case. The applicants also cited other cases in which non-publication orders were made but written reasons for the decisions to prevent publication were not supplied to the Court and were not located by research. After judgment was reserved, the applicants referred the Court to EWR18 v Minister for Home Affairs [2018] FCA 1460 but that case does not shed any particular light on the issue presently under consideration.
The applicants’ argument is in two parts. The first is that if they could identify the first applicant, actors in Sri Lanka would be concerned to retaliate against him for having given evidence to the Court regarding what he has alleged was the secret burial in a Sri Lankan army camp of many dead and injured people. The second part of the applicants’ argument was that with sufficient effort, persons with access to records in Sri Lanka could, using those records including the travel document form, and the information contained in the Reasons as published to the parties on 10 May 2021, identify the first applicant in this proceeding as such.
As to the first part of the argument, because the first applicant had not alleged that he had witnessed the removal for burial of individuals who were still alive, the IAA did not express a view on whether he had a well-founded fear of persecution in Sri Lanka by reason of having seen such things. Absent any factual determination of this issue by the IAA, I am prepared to accept for present purposes that it is not unreasonable to suspect the risk of such harm were the first applicant to have witnessed the removal for burial of individuals who were still alive. However, the contention that the first applicant might be identified by the synthesis of information from different sources by various actors in Sri Lanka involves an unlikely aggregation of co-incidence, associations, mutual support, information sharing and criminal intent. The argument is very speculative. It should also be noted that no particular evidence supportive of the applicants’ argument was led. The British Home Office report is of no assistance in this connection because, to the extent that it was not limited to surveillance in the United Kingdom, it referred to activists and, based on the evidence, the first applicant has not been an activist. For those reasons, I am not persuaded by the material and arguments relied on by the applicants that the first applicant’s safety requires the redaction of those parts of the Reasons that deal with those allegations: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 at [15]. As McHugh JA said in John Fairfax & Sons Ltd v Police Tribunal at [477]:
The making of the order must … be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.
CONCLUSION
I reject the suggestion that the first applicant’s allegations concerning what happened in the army camp should be redacted from the Reasons.
Even so, it is always prudent in cases such as the present to avoid unimportant detail which may serve to identify an applicant who claims to be entitled to protection. The present application has caused me to review the reasons for judgment of 10 May 2021 and to decide to remove some detail of that sort. The Reasons will be amended to deal with those matters of detail, as well as some drafting mistakes that survived proof reading. For their assistance, the parties will also be provided with a marked-up copy of the Reasons that identifies the changes that have been made.
I certify that the preceding twenty (20) paragraphs are a true copy of the Reasons of Judge Cameron
Associate:
Date: 2 July 2021
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