BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2020] FCA 586
•30 April 2020
FEDERAL COURT OF AUSTRALIA
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586
File number: NSD 480 of 2020 Judge: WIGNEY J Date of judgment: 30 April 2020 Catchwords: PRACTICE AND PROCEDURE – application for non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) – whether order necessary to protect appellant’s safety Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(c) Date of hearing: 30 April 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Solicitor for the Appellant: Mr D Taylor of Sydney West Legal and Migration Solicitor for the Respondent: Ms H Anderson of Clayton Utz ORDERS
NSD 480 of 2020 BETWEEN: BVC20
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
30 APRIL 2020
THE COURT ORDERS THAT:
1.The appellant be assigned a new pseudonym.
2.This proceeding be assigned a new proceeding number.
3.The substantive judgment in respect of the appeal which was handed down on 30 April 2020 be published using the appellant’s new pseudonym and the new proceeding number.
4.The name and citation of the judgment of the Federal Circuit Court of Australia appealed from be redacted from the first page of the published version of the substantive judgment.
5.The publication or disclosure of the appellant’s original pseudonym and the original proceeding number of this proceeding, other than to the parties and the Court, be prohibited pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground that this order is necessary to protect the safety of the appellant.
6.Documents in the proceeding which display the appellant’s original pseudonym and the original proceeding number are confidential for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
Immediately after I handed down my judgment in relation to this appeal this morning, the appellant’s solicitor applied for a non-publication order in relation to the judgment. The scope, grounds and basis of that application were initially somewhat unclear. It was made orally and was unsupported by any evidence. It eventually became apparent, however, that the non-publication order was sought because some time ago, the appellant’s name was mistakenly disclosed on the Commonwealth Courts Portal. The appellant’s name was disclosed along with the proceeding number and the pseudonym that had been assigned to the appellant for the proceeding. That situation has since been remedied and all information which might tend to identify the appellant’s name and link him to this proceeding has been removed from the Portal.
The appellant’s solicitor failed to give the first respondent’s solicitor and the Court any notice of his intention to apply for a non-publication order in relation to the judgment. He also did not give any explanation for why the application was made without notice. Nor, as I have already mentioned, did the appellant file any interlocutory application, or file any evidence in support of his oral application. I stood the matter down to 2.15 pm to allow the first respondent’s solicitor to obtain instructions.
The appellant’s solicitor renewed his application at 2.15 pm. He clarified that his application was to redact certain paragraphs from the published judgment. Those paragraphs, in general terms, identified the claims that the appellant had made in support of his protection visa application. It was submitted that the disclosure of those details would cause embarrassment to the relevant authorities in Iran, even though the claims for the most part were not accepted by either the delegate of the first respondent or the Immigration Assessment Authority on review. The suggestion appeared to be that the effect of the disclosure on the Portal was that the appellant could be identified with this judgment and therefore the disclosure of this information in the judgment put him at risk if and when he is eventually returned to Iran.
The first respondent’s solicitor indicated that the first respondent did not consent to the non-publication order and wanted to be given the opportunity to consider the judgment and reasons. It was submitted, in effect, that the basis of the application for the non-publication order was speculative at best.
I proposed to the parties that the simplest and most efficient way in which to deal with any issues which may arise from the unfortunate disclosure on the Portal was to order that: the appellant be assigned a new pseudonym; the proceeding be assigned a new proceeding number; the judgment use the new pseudonym and new proceeding number; and a non-publication order be made in relation to the old pseudonym and old proceeding number. The judgment could then be published in full without redaction with no real or appreciable risk that the appellant would be able to be linked to it. Neither party opposed the making of those orders, or made any submission as to why they were not appropriate or would not resolve any issue that may arise from the disclosure on the Portal.
In all the circumstances, I considered that it was necessary to make those orders to protect the safety of the appellant: subs 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth). The power to make the orders is to be found in s 37AF of that Act. This judgment and the appeal judgment use the new pseudonym and new proceeding number.
It subsequently became apparent to me that it was necessary to make an additional order. The first page of the appeal judgment identified the name and citation of the judgment of the Federal Circuit Court of Australia which was the subject of the appeal. The appellant’s original pseudonym is referred to in the name of the judgment. I was informed by the appellant’s solicitor that no action has been taken to have that judgment removed from the internet or to have any non-publication order made in relation to it. The easiest way to resolve this issue is to redact the name and citation of the Circuit Court judgment from the front page of the appeal judgment. It is a matter for the appellant to make any application he wishes to make in the Circuit Court concerning the publication of the Circuit Court judgment.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 30 April 2020
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