DSO18 v Minister for Home Affairs (No 3)
[2020] FCA 640
•1 May 2020
FEDERAL COURT OF AUSTRALIA
DSO18 v Minister for Home Affairs (No 3) [2020] FCA 640
File number: QUD 384 of 2019 Judge: DERRINGTON J Date of judgment: 1 May 2020 Catchwords: MIGRATION – suppression orders – application for interim orders – consideration of merits not required – orders made Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AI
Migration Act 1958 (Cth), s 91X
Cases cited: C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 Date of hearing: 1 May 2020 Date of last submissions: 1 May 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Solicitor for the Appellant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr J Byrnes Solicitor for the Respondents: MinterEllison ORDERS
QUD 384 of 2019 BETWEEN: DSO18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
1 MAY 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), the reasons for judgment in this appeal are to be supressed and the judgment is not to be further published until the further hearing of this matter on 18 May 2020.
2.By 4.00 pm on 7 May 2020 the appellant is to file and serve any further affidavit material on which it intends to rely and written submissions in relation to the hearing of the interlocutory application on 18 May 2020.
3.By 4.00 pm 14 May 2020 the respondent is to file and serve any further affidavit material on which they intend to rely and written submissions in relation to the hearing of the interlocutory application on 18 May 2020.
4.Costs of and incidental to this interim application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
On 15 April 2020, the appellant filed an application seeking an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) for the non-publication of the judgment dismissing his appeal, which was delivered on 18 March 2020. The appellant’s underlying grievance is that prior to the publication of the judgment, his name appeared on the Commonwealth Courts’ website in connection with the pseudonym which had been assigned to him. The assignment of such pseudonyms is necessary for the purposes of s 91X of the Migration Act 1958 (Cth), which provides that in relation to proceedings concerning, inter alia, applications for protection visas, the Court must not publish (in electronic form or otherwise) a person’s name.
The evidence presently before the Court discloses that s 91X may have been breached such that if a person knew where to look on the Commonwealth Courts’ website and particularly identified the appellant’s matter, they could associate the pseudonym with the appellant’s actual name. The appellant, therefore, claims that his actual identity is ascertainable. For present purposes, his concern is that the judgment delivered in his appeal (the Decision), when taken together with the disclosure of his pseudonym in association with his name, will enable persons who he claims might persecute him in Sri Lanka to ascertain the nature of the claims which he made. Those claims are referred to in that earlier judgment and there is no need to repeat them here.
The solicitor for the appellant contacted Chambers on 23 April 2020 requesting interim relief under s 37AI of the Act, which provides:
37AIInterim orders
(1)If an application is made to the Court for a suppression order or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.
(2) If an order is made as an interim order, the Court must determine the application as a matter of urgency.
That request was opposed by the Minister.
Consideration
As s 37AI of the Act makes clear, the Court may make an interim order for the non-publication of a judgment without any determination of the merits of the application. In other words, in order to preserve the status quo or to lessen the potential damage suffered by the appellant pending the final determination of the application for a non-publication order, the court is entitled to make a form of interim order which will result in temporary removal of the Court’s judgment from public access.
In this way, the Act authorises the Court to make an order without determining whether, ultimately, the interlocutory application for non-publication will or will not succeed. It is a sensible and pragmatic provision which may both prevent damage to the applicant, if the relief sought is ultimately given, and preserve the applicant’s claim for relief by ensuring that any subsequent suppression or non-publication order is not rendered inutile.
Relevantly for present purposes, the application for effective relief, that is, final orders for supressing the reasons in the Decision, has been set down for hearing three weeks hence.
The Minister, by Mr Byrnes, opposed the application for interim relief and did so on the basis that the grounds on which the appellant relied were not strong. In other words, the Minister invited the Court to examine the merits of the application, so as to reach a conclusion that any order for interim relief would be useless because the application will not ultimately succeed.
Mr Byrnes referred to the recent decision of the Full Court of this Court in C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 (C7A/2017) which identified at [13] and [14] that, on an application for final relief under s 37AF, the appellant bears the onus of persuading the court to make a non-publication order, that the onus has been described as a “very heavy one”, and that the obligation of the court to consider non-publication requires it to determine that such an order is “necessary”. The decision also makes it clear that the word “necessary” is a “strong word” such that on an application for final relief the applicant will have a not insubstantial persuasive onus to discharge. This indicates that on applications for orders under s 37AF the issue is one of ascertaining whether the material satisfies the legislative benchmark rather than balancing the respective interests of the parties.
In this matter, setting aside the criteria referred to in C7A/2017, there is a degree of force in the Minister’s submission. However, whilst it is possible that the Minister’s submission as to the lack of veracity in the application for a non-publication order may ultimately succeed, it is not certain that such will be the case. That lack of certainty that the application will fail remains despite the fact that the appellant has failed to file evidence and submissions in support of the application, as he had been directed to, by this Court on 22 April 2020.
If it were assumed that no further submissions or material will be forthcoming, it might be thought that the case for the appellant has been put at its highest. However, despite non-compliance with the Court’s directions as to the filing and service of material, given the necessary haste with which the application has been brought on, it is unlikely that the appellant will not provide further material for the purposes of the final hearing. That possibility exists although it is far from clear what additional evidence will be produced.
The issue of the appellant’s safety following the alleged contravention of s 91X and the publication of the reasons of this Court in the Decision is not something which ought be dismissed lightly and fuller consideration is required. That is not possible on today’s application; it being for urgent interim relief and it having been interposed before other applications which had been previously listed. The final hearing of this matter has been listed urgently and will be heard in three weeks’ time.
In those circumstances and it being expressly observed that no decision as to the merits of the ultimate application is being made, the appellant has satisfied the Court that an interim order ought be made for the non-publication of the Decision.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 1 May 2020
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