Chen v Migration Agents Registration Authority (No 1)

Case [2016] FCA 649

FEDERAL COURT OF AUSTRALIA

Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649

Appeal from: Chen and Migration Agents Registration Authority (Migration) [2016] AATA 188
File number: NSD 590 of 2016
Judge: GRIFFITHS J
Date of judgment: 2 June 2016
Catchwords: PRACTICE AND PROCEDURE – whether applicant’s name should be suppressed pursuant to Pt VAA of the Federal Court of Australia Act 1976 (Cth) or the Court’s inherent power – whether suppression order should be made to protect business reputation and avoid personal embarrassment – no suppression order sought below
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss 42B, 42B(1)(b), 44

Federal Court of Australia Act 1976 (Cth), Pt VAA, ss 37AE, 37AF, 37AG, 37AG(1), 50

Migration Act 1958 (Cth), s 289A

Cases cited:

ASE16 v Australian Securities and Investments Commission [2016] FCA 321

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607

Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651

John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344

Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195

Stanford v DePuy International Ltd [2013] FCA 1304
Date of hearing: 2 June 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 17
Counsel for the Applicant: Dr R Harper SC
Solicitor for the Applicant: SHS Law Pty Ltd
Solicitor for the First Respondent: Mr L Leerdam of DLA Piper
Counsel for the Second Respondent: The Second Respondent submitted to any order the Court may make, save as to costs.

ORDERS

NSD 590 of 2016
BETWEEN:

ZHI CHEN

Applicant
AND:

MIGRATION AGENTS REGISTRATION AUTHORITY

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

2 JUNE 2016

THE COURT ORDERS THAT:

1.The interlocutory application dated 31 May 2016 is dismissed. 

2.The applicant pay the first respondent’s costs, as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

  1. By an interlocutory application filed on 31 May 2016 the applicant seeks a suppression order in respect of his name.  He seeks such an order under either the Court’s inherent jurisdiction or, alternatively, Pt VAA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 

    Summary of background matters

  2. On 27 April 2016, the applicant commenced proceedings in the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).  He challenges the decision dated 30 March 2016 of the Administrative Appeals Tribunal (the AAT) to dismiss his application for review in that Tribunal on the basis that…

Continue reading Chen v Migration Agents Registration Authority (No 1)

Sign in free to access the full text

Details
AGLC
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Case
[2016] FCA 649
Decision Date

CaseChat Overview and Summary

In Chen v Migration Agents Registration Authority (No 1), the applicant sought an order to suppress his name in proceedings relating to the cancellation of his registration as a migration agent. The case was heard by the Federal Court of Australia. The central legal issue was whether the applicant's name should be suppressed under the statutory framework of Part VAA of the Federal Court of Australia Act 1976 (Cth) or the court's inherent jurisdiction. The applicant argued for suppression to protect his business reputation and to avoid personal embarrassment. The court examined the applicant's grounds and found that they did not provide a sufficient basis for granting the requested suppression order. The court emphasised that the applicant had not sought suppression below, which further undermined the case for such an order. The court concluded that the evidence presented did not meet the necessary threshold for invoking either statutory or inherent power for suppression.

The court's analysis delved into the statutory requirements and the principles governing the exercise of the court's inherent jurisdiction. It referenced previous cases to clarify the test for necessity in the context of inherent power, noting that the High Court and other authorities have consistently applied this test. The court ultimately decided that the applicant had not demonstrated the required necessity to warrant a suppression order. The decision highlights the stringent criteria that must be met for such orders to be granted, ensuring that the court's powers are exercised judiciously. The court's ruling underscores the importance of substantial evidence and clear justification when seeking suppression in legal proceedings.

Orders

Orders of the court

1. The interlocutory application dated 31 May 2016 is dismissed.

2. The applicant pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant has also failed to demonstrate any proper basis for making such an order in the Court’s inherent jurisdiction. The evidence relied upon in support of the application falls well short of establishing an appropriate basis for the making of such an order. In these circumstances it is unnecessary to express a final view on whether the Court’s inherent or implied power to make a suppression order has more flexibility than its statutory power. It should be noted, however, that current authorities suggest that a test of necessity is applied in determining whether or not the inherent power should be exercised (see the detailed analysis by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 at [38]-[49] (with whom Handley JA and M W Campbell A-JA agreed, and see also Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [8] per Bathurst CJ and at [45]-[47] per Basten JA)). The High Court’s observations in Hogan at [30] in respect of the word “necessary” in s 50 of the then FCA Act are also apposite concerning the correct test to apply when considering the exercise of the Court’s inherent power. Conclusion For these reasons, the applicant’s interlocutory application dated 31 May 2016 should be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.