CVG20 v Minster for Home Affairs (No 2)
[2020] FCA 690
•18 May 2020
FEDERAL COURT OF AUSTRALIA
CVG20 v Minster for Home Affairs (No 2) [2020] FCA 690
File number(s): QUD 144 of 2020 Judge(s): DERRINGTON J Date of judgment: 18 May 2020 Catchwords: PRACTICE AND PROCEDURE – contravention of s 91X of the Migration Act 1958 (Cth) – application for non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) – importance of open justice – appellant assigned a new pseudonym – proceeding assigned a new proceeding number – order necessary to protect appellant’s safety Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AI
Migration Act 1958 (Cth) s 91X
Cases cited: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
Deputy Commissioner of Taxation v Hawkins [2016] FCA 164
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
Date of hearing: 18 May 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr J Byrnes Solicitor for the Respondents: MinterEllison ORDERS
QUD 144 of 2020 BETWEEN: CVG20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
18 MAY 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 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).
7.Each party bear their own costs of the interlocutory application filed on 15 April 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This was an application for orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) to prevent the publication of the Court’s judgment in this matter which dismissed the applicant’s appeal. In those reasons, the applicant was referred to only by his court-assigned, alpha-numeric, pseudonym. However, prior to the hearing of the appeal, the applicant’s actual name was inexplicably revealed in a publically accessible manner on the Commonwealth Court’s Portal in connection with his pseudonym. Broadly speaking, the applicant alleges the suppression of the Court’s judgment is necessary to protect his safety as the applicant fears that he may face persecution in his home country on the basis of his claims for protection set out in that judgment.
Background
The applicant made an application for a protection visa in 2016, having arrived in Australia in 2012 as an unauthorised maritime arrival. His application was refused by the Minister for Immigration and Border Protection and, pursuant to Part 7AA of the Migration Act 1958 (Cth) (Migration Act), it was automatically referred to the Immigration Assessment Authority. The Immigration Assessment Authority affirmed the decision of the delegate, and the applicant sought review of that decision in the Federal Circuit Court of Australia. His application there was refused by decision in 2019, and he then appealed to this Court.
Prior to the hearing, the legal representative of the applicant alerted the Court to the fact that the applicant’s name had been revealed on the Commonwealth Courts Portal. This was immediately remedied. When the appeal was called on for hearing, the applicant sought an adjournment and applied for declaratory relief on the basis that of s 91X of the Migration Act had been contravened. The application was dismissed, and there is no need to consider the basis of that refusal in these reasons.
The appeal was heard and subsequently dismissed. In the reasons of the Court, a recitation was made of the claims which had been advanced by the applicant in support of a protection visa.
Following the publication of the Court’s reasons for judgment, the applicant applied for interim suppression orders pursuant to s 37AI of the Federal Court of Australia Act. That application succeeded and orders were made accordingly suppressing further publication of the judgment until the hearing of this matter. These interim orders were made to preserve the status quo pending the full hearing of the application and were made without any determination of the merits of the application.
Relevant legislation
The application before the Court is for orders pursuant to s 37AF of the Federal Court of Australia Act, which is supplemented by s 37AG. Those provisions provide:
37AF Power to make orders
(1)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; or
(b) information that relates to a proceeding before the Court 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 Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1)The Court 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;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is 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 (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
Also relevant to the operation of s 37AF is s 37AE which provides:
37AE Safeguarding public interest in open justice
In 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.
Principles to be applied
As s 37AE emphasises, the concept of open justice is one of the overarching principles in the administration of justice in Australian courts: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] per Allsop CJ; it being a fundamental aspect of the rule of law: Deputy Commissioner of Taxation v Hawkins [2016] FCA 164 at [7]. It follows that, when a court is asked to make non-publication or suppression orders, it necessarily commences from a position that the interests of justice favour the conducting of the entirety of court proceedings, including the giving of judgment, in publicly open way. Confidence in the administration of justice can only be achieved if every step is, as far as is possible, open to scrutiny and criticism.
As s 37AG(1) makes clear, a court can only make a suppression order or a non-publication order if it is “necessary” to achieve one of the objectives enumerated in sub-paragraphs (a) to (d). The consequence of that requirement is that the nature of the Court’s deliberative process is quite different to that which might exist where an injunction is sought in ordinary litigation. The statutory test eschews the suggestion that the Court might engage in a “balancing exercise” of the parties’ respective interests in which competing considerations are weighed: Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [109]; C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 (C7A/2017) at [12].
A further consequence of that requirement is that the applicant bears the onus of persuading the Court that the order should be made. On numerous occasions in this Court it has been observed that the onus is “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] and C7A/2017 at [13]. In the latter case it was observed that the word “necessary” is “a strong word” (citing Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]). That being so, it is not sufficient that the making of an order is considered desirable; there must be some material before the Court to reasonably suggest it is necessary to make the non-publication order: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477 per McHugh JA (with whom Glass JA agreed).
In this respect and, in particular, in relation to applications for the non-publication or suppression of judgments concerning failed protection visa applications, the Court in C7A/2017 said at [16]:
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.
The publication of the applicant’s name
It was not disputed that the name of the applicant became publicly available on the Commonwealth Courts Portal in connection with his pseudonym. It is not clear how this occurred, and the precise manner in which a member of the public might access this information was not explained in the course of the hearing. However, there does not appear to be any dispute that a person familiar with the website might have been able to locate the information during the period in which it was available.
As a consequence, it would appear that s 91X(2) of the Migration Act was contravened. That section:
(2)The Court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
The proceeding there referred to includes an application for a protection visa.
The applicant is concerned that as a result of his name being published in connection with his pseudonym, interested parties may be able to link him to the claims in his protection visa, which were enumerated in the judgment of this Court. Prima facie, it would appear that this concern is warranted. It follows that some risk may exist for the applicant were he to return to his home country. That risk can be minimised or negated by preventing publication of the reasons of this Court in a way which will identify the applicant.
In the circumstances of this case, the parties have identified orders which will allow for the publication of the Court’s judgment, while maintaining the anonymity of the applicant. They have agreed that the Court should assign a new pseudonym to the proceedings, and that the substantive judgment should be published using that pseudonym. They have also requested that the name and citation of the Federal Circuit Court be redacted from the first page of the copied version of the substantive judgment. Again, these orders are designed to ensure that any publication of the Court’s reasons for judgment protects the position of the applicant with the least disruption to the administration of open justice. The parties also ask for what is, in effect, a declaration that the orders made are necessary to protect the applicant.
In the circumstances of this case, where there has been a contravention of s 91X, I am prepared to make those orders, and particularly because the Minister has very properly, in the exercise of his powers, agreed to them. I note that the orders so made reflect those recently made by Wigney J in BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586 and I am comforted by the fact that his Honour in that case also saw fit to make such orders on the basis of a similar incident having occurred on the Court’s Portal.
In these circumstances, the applicant has satisfied the Court of the matters required in s 37AG of the Federal Court of Australia Act, and I make the orders substantially in terms of the draft.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 18 May 2020
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