C7A/2017 v Minister for Immigration and Border Protection (No 2)
[2020] FCAFC 70
•21 April 2020
FEDERAL COURT OF AUSTRALIA
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
Appeal from: C7A/2017 & Ors v Minister for Immigration & Anor [2019] FCCA 1440 File number(s): ACD 47 of 2019 Judge(s): KATZMANN, WIGNEY AND ABRAHAM JJ Date of judgment: 21 April 2020 Catchwords: PRACTICE AND PROCEDURE — application for suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) over various names mentioned in judgment — where alleged that publication or other disclosure “might tend to expose” appellants to “risk” — whether order necessary to protect their safety Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG
Migration Act 1958 (Cth) s 91X
Cases cited: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438
Di v Pi [2012] NSWCA 314
Hogan v Australian Crime Commission (2010) 240 CLR 651
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36
Date of hearing: Determined on the papers Date of last submissions: 16 April 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellants: Mr S Prince with Mr S Lawrence Solicitor for the Appellants: Hearn Legal Counsel for the First Respondent: Mr D Hume Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
ACD 47 of 2019 BETWEEN: C7A/2017
First Appellant
C7B/2017
Second Appellant
C7C/2017
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
KATZMANN, WIGNEY AND ABRAHAM JJ
DATE OF ORDER:
21 APRIL 2020
THE COURT ORDERS THAT:
1.The appellants’ interlocutory application for a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the application) be dismissed.
2.Pursuant to s 91X of the Migration Act 1958 (Cth), the name appearing in the fifth line of para 22, in para 100, and in the second line of para 110 of the judgment in C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63 not be published in electronic form or otherwise.
3.The costs of the application be costs in the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The appellants are unsuccessful applicants for protection visas. The first appellant is the mother of the second and third appellants. Before coming to Australia, she lived in Malaysia with her two children. Their father came to Australia some years earlier. Before they arrived, he was found to be a stateless Rohingyan refugee and granted a permanent protection visa. The first appellant also claimed to be a stateless Rohingyan, the daughter of a stateless Rohingyan father, who died before she was born, and an Indonesian mother, who had abandoned her when she was very young. Neither the Minister’s delegate nor the Administrative Appeals Tribunal on review considered her claims to be credible. The Tribunal did not accept that she was the person she claimed to be. In particular, it did not accept that she was Rohingyan or stateless. In fact, it was satisfied that both her parents were Indonesian nationals, that she either already had, or was able to obtain, Indonesian citizenship, and that so were her children. It found that she had fabricated her claim in order to be granted a protection visa.
The appellants applied to the Federal Circuit Court for judicial review but failed to persuade the primary judge that the Tribunal’s decision was affected by jurisdictional error. Their appeal was also unsuccessful.
After judgment was pronounced, the appellants applied for an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) to suppress a number of names mentioned in the judgment.
The Court’s power to make such an order is covered by Pt VAA of the Act in which s 37AF appears. A “suppression order” is defined in s 37AA as “an order that prohibits or restricts the disclosure of information (by publication or otherwise)” and is therefore broader in scope than a “non-publication order”.
Section 37AF relevantly provides:
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 …
The grounds upon which the court is permitted to make such an order are set out in s 37AG. They are limited to circumstances in which the order is “necessary to prevent prejudice to the proper administration of justice”; “necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security”; “necessary to protect the safety of any person”; and “necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature…”.
Section 37AE provides that “[i]n deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
Neither in the interlocutory application nor in the written submissions made in support of the application did the appellants identify the ground upon which the order was sought. It is reasonable to infer, however, from their submissions that they rely on para 37AG(1)(c).
The information in question consists of several names. The names include those given to the mother and father of the first appellant in various documents that were before the delegate and the Tribunal. In the case of the father, the name sought to be suppressed is not the name recorded for him in her visa application. Both the delegate and the Tribunal said that country information showed that the name given of the father which the appellants now seek to suppress is a very common Javanese name. The other names sought to be suppressed are allegedly common Burmese names which the appellant 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 Minister does not oppose the application but does not concede “the factual matters set out in the submissions”. For the reasons that follow, the application must be refused.
First, in their submissions the appellants state that “the basis” for the order they seek is that “the [a]ppellants are asylum seekers and the information sought to be suppressed is information that might tend to identify them, and may therefore tend to expose them to risk”. Yet, para 37AF(1)(a) refers to “information tending to reveal [their] identity”, not information that might tend do so.
Second, contrary to the appellants’ submission, the Court is not permitted to engage in “some ‘balancing exercise’” in which it weighs the competing considerations: Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [109] (Lee J). The balance is struck by the legislation itself: see Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] (Allsop CJ).
Third, a suppression order cannot be made unless it is “necessary” for one or more of the purposes specified in s 37AG. The appellants bear the onus of persuading the Court to make the order and the onus has been described as “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (Edelman J) at [8], citing Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438 at 438 (Madgwick J). The onus has not been discharged.
It is trite to observe that “necessary” is “a strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]. It is not enough that suppression be considered desirable. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, where a non-publication order was sought, McHugh JA, with whom Glass JA agreed, said at 477 that, “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” and “[m]ere belief that the order is necessary is insufficient.”
Here, however, no evidence was adduced to demonstrate that the order was necessary. Nor was the Court’s attention directed to any material in the appeal book that would suffice for this purpose. Indeed, in their submissions, the appellants did not even argue that the order they sought is necessary. Their sole argument was that “[t]he risk that might arise from identification is somewhat speculative; however there is little counter balancing (sic) public interest in the publication of the information given it is personal identifying information, and the reasons are still able to be understood if the identifying particulars are suppressed”.
It may be accepted that that the appellants need not prove that, absent the order, they will probably come to harm. But there must at least be a demonstrable or real risk to their safety if the order is not made. In Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36, Besanko J, drawing on two alternative constructions of the analogous provision in the Court Suppression and Non-publication Orders Act 2010 (NSW), canvassed but not resolved by Bathurst CJ in Di v Pi [2012] NSWCA 314 at [51], adopted the following construction (at [17]):
On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.
It is, however, impossible to see how a suppression order can be necessary to protect the safety of a person if the risk to which he or she is allegedly exposed is “somewhat speculative”.
Nevertheless, s 91X of the Migration Act 1958 (Cth) prohibits the publication of the name of a person who applied for a protection visa in a proceeding before the Court. Having regard to the conclusion reached by the Tribunal, the name appearing in the fifth line of para 22, in para 100, and in the second line of para 110 of our reasons for judgment should be suppressed on this basis, notwithstanding the fact that it is not the name the first appellant professed to have or by which the first appellant claimed to be known. We will therefore make an order to this effect under that section.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Katzmann, Wigney and Abraham. Associate:
Dated: 21 April 2020
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