DVE18 v Minister for Home Affairs
[2019] FCA 1389
•30 August 2019
FEDERAL COURT OF AUSTRALIA
DVE18 v Minister for Home Affairs [2019] FCA 1389
File number: NSD 1318 of 2018 Judge: MARKOVIC J Date of judgment: 30 August 2019 Catchwords: MIGRATION – application for an extension of time to file application for review of a decision of the Minister for Home Affairs (Minister) – whether the application had sufficient prospects of success – application allowed
MIGRATION – application for review of the Minister’s decision to refuse the applicant’s application for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa – where Minister not satisfied that applicant passed character test in s 501(1) of the Migration Act 1958 (Cth) (Act) – whether Minister failed to take into account physical safety of applicant’s wife and child and thereby denied the applicant procedural fairness and failed to undertake his statutory task – whether s 501(6) of the Act, properly construed, extends to conduct committed wholly outside Australia by a group not present in Australia – application dismissed
Legislation: Acts Interpretation Act 1901 (Cth) s 21(1)(b)
Federal Courtof Australia Act 1976 (Cth) ss 37AF, 37AG, 37AI
Migration Act 1958 (Cth) ss 477A, 501(1), 501(6)
Cases cited: Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588; [2017] FCA 929
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Minister for Immigrationand Border Protection v Sabharwal [2018] FCAFC 160
Rere v Minister for Immigration and Border Protection [2018] FCA 846
Sabharwal v Minister for Immigration and Border Protection (2018) 159 ALD 86; [2018] FCA 10
Date of hearing: 5 March 2019 Date of last submissions: 26 March 2019 (applicant) Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 87 Counsel for the Applicant: Mr S Prince SC and Mr S Lawrence Solicitor for the Applicant: Hearn Legal Counsel for the Respondent: Mr G R Kennett SC Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 1318 of 2018 BETWEEN: DVE18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
30 AUGUST 2019
THE COURT ORDERS THAT:
1.Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) the time for the making of an application pursuant to s 477A(1) of the Act in relation to the decision of the respondent made on 24 May 2018 is extended to 17 July 2018.
2.Grant leave to the applicant to file the amended originating application for review of a migration decision dated 26 February 2019 (Amended Application).
3.The Amended Application is dismissed.
4.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the grounds set out in s 37AG(1)(c) of the FCA Act, all evidence and information tending to reveal the identity of the applicant, his wife and child be suppressed for a period of 70 years from the date of these Orders.
5.The applicant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
The applicant is a citizen of Afghanistan who resides in Afghanistan. From 2012 to 2013 he worked as an interpreter with Australian military forces in Afghanistan.
In about December 2012 the Australian government announced that it would offer resettlement to eligible at risk locally engaged Afghan employees and their direct family members considered to be at risk of harm due to their association with Australian government agencies in Afghanistan.
On 29 July 2013 the applicant applied for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa (Visa Application).
On 13 May 2016 the Department of Immigration and Border Protection (Department) issued a notice of intention to consider refusal of the Visa Application under s 501(1) of the Migration Act 1958 (Cth) (Act) (Notice). In the Notice the Department informed the applicant that it held information which suggested that he may not pass the character test by virtue of s 501(6) of the Act and invited the applicant to comment on any factors he believed to be relevant to whether he passes the character test and, if the decision-maker considers that he does not, why the Visa Application should nevertheless not be refused.
On 19 May 2016 the Department sent a letter pointing out that the Notice contained a typographical error and, as a result, extended the time frame for the applicant to provide a response to 28 days from the date of receipt of the amending letter.
On 6 June 2016 the applicant’s migration agent responded to the Notice (June Submission).
On 17 June 2016 the applicant lodged a notification of changes in circumstances form and added his wife, who he married on 10 September 2014, and his child, born 13 June 2016, to his Visa Application.
By letter dated 9 December 2016 (December Letter) the Department referred to the Notice and informed the applicant that it was considering whether he passed the character test because of s 501(6)(b) of the Act; noted that, on the basis of the information before it, it was giving consideration to refusal of the Visa Application “relying on the element of the character test …, that you have had an association with the anti-coalition group, the Taliban, which is involved in criminal conduct”; that it was considering further information, which it listed, which may be taken into account when making the decision whether to refuse the Visa Application under s 501 of the Act; and gave the applicant the opportunity to comment on that further information.
On 16 December 2016 the applicant’s migration agent responded the December Letter.
On 24 May 2018 the respondent (Minister) made his decision under s 501(1) of the Act. The Minister was not satisfied that the applicant passed the character test and decided to exercise his discretion under s 501(1) of the Act to refuse the Visa Application.
On 17 July 2018 the applicant lodged an application for an extension of time to file an application for review of the Minister’s decision with the Court. That application is now before me for determination. The applicant requires an extension of time because he failed to file his application within 35 days of the Minister’s decision. The circumstances in which he failed to do so are explained below.
APPLICATION FOR AN EXTENSION OF TIME
An application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under ss 476A(1)(b) or (c) of the Act in relation to a migration decision must be made within 35 days of the date of the migration decision: s 477A(1). The term the “date of the migration decision” is relevantly defined as the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate: s 477(3) and s 477A(3).
The only evidence before me of the date of the migration decision is the date on which the Minister made that decision, namely 24 May 2018. Taking that as the relevant date, the 35 day period ended on 28 June 2018. As noted above the application for an extension of time was lodged with the Court on 17 July 2018, which was 19 days out of time.
The applicant relies on an affidavit affirmed by his solicitor, Christian Hearn, on 17 July 2018 in which Mr Hearn explains the reason for the delay in filing. In summary, an application was lodged with the Court through its eLodgement system on 28 June 2018, which was within the prescribed 35 day period. At the time of lodgement it was thought that an application for a waiver of the filing fee would be made, because the applicant is essentially indigent and resides in Afghanistan. However, in the days that followed, it became apparent that it was not logistically practicable to collect the documents necessary to submit a fee waiver.
On 12 July 2018 funds were obtained to cover the filing fee from a philanthropic source and on 16 July 2018 the filing fee was paid. The application was submitted for filing for a second time on the Court’s eLodgement system and lodged with the Court on 17 July 2018.
The considerations relevant to the exercise of the discretion to extend time under s 477A(2) of the Act generally include the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: Rere v Minister for Immigration and Border Protection [2018] FCA 846 (Rere) at [16]. Relevantly in Rere at [17] Thawley J went to explain that:
The assessment of the prospects of success of the proposed review arises in the context of an interlocutory application for an extension of time under s 477A(2), and caution is required in assessing the merits at that interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Mentink at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]; see also: MZABP v Minister for Immigration and Border Protection (2014) 242 FCR 585 at [62]-[63], per Mortimer J. In considering the question of merits, the applicant’s proposed grounds of review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: Guo at [27]. If it appears from such an examination that the proposed appeal has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time. …
The Minister does not dispute the applicant’s explanation for the delay. In any event, I am satisfied that the delay has been adequately explained. Nor does the Minister claim that he would suffer any prejudice if an extension was granted. The Minister opposes the extension of time solely on the ground that the substantive proceeding has insufficient merit to justify an extension being granted.
In those circumstances the matter proceeded on the basis that I would hear the application for an extension of time and argument on the substantive application at the same time, such that if I was satisfied that the grounds relied on by the applicant had merit, in the sense described above, I would grant an extension of time within which to file the amended originating application on which the applicant now relies and determine the matter on a final basis.
I am satisfied that the grounds raised by the applicant in his amended originating application for review of a migration decision dated 26 February 2019 (Amended Application) have sufficient merit such that I would allow the extension of time sought by the applicant pursuant to s 477A(2) of the Act. As I address the grounds fully below I do not propose to say more on this issue other than to note that it is not the case that the grounds have no realistic prospect of success, each is sufficiently arguable such that the extension of time should be granted.
LEGISLATIVE FRAMEWORK
The Minister made his decision to refuse the Visa Application under s 501(1) of the Act, which provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.
The character test is defined in s 501(6) of the Act. The Minister relied on s 501(6)(b) of the Act in deciding that the applicant did not satisfy the character test. However, because the applicant in ground 2 raises an issue as to the construction of that subsection, it is necessary to set s 501(6) out in full. It provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)the person has been convicted of an offence that was committed:
(i)while the person was in immigration detention; or
(ii)during an escape by the person from immigration detention; or
(iii)after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab)the person has been convicted of an offence against section 197A; or
(b)the Minister reasonably suspects:
(i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)that the group, organisation or person has been or is involved in criminal conduct; or
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i)an offence under one or more of sections 233A to 234A (people smuggling);
(ii)an offence of trafficking in persons;
(iii)the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f)the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i)the crime of genocide;
(ii)a crime against humanity;
(iii)a war crime;
(iv)a crime involving torture or slavery;
(v)a crime that is otherwise of serious international concern; or
(g)the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h)an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
(emphasis in original.)
THE MINISTER’S DECISION
In making his decision the Minister had regard to material supplied to him that was “non-disclosable information” as defined in s 5(1) of the Act and which was not provided to the applicant. The Minister regarded that information as relevant to considering both the application of the character test in relation to the applicant and the exercise of his residual discretion as to whether to refuse the Visa Application.
The Minister also considered a memorandum for record received from the United States Department of Defence (Memorandum for Record) which stated that the applicant was “associated with members of Anti-Coalition groups and individuals supporting violent action against the United States, Coalition Forces and the Government of the Islamic Republic of Afghanistan”. The Minister considered that the applicant was assessed as a potential threat to the United States or to any partnered nation and considered that the Counterintelligence team strongly advised denial of “any form of citizenship or residency, temporary or permanent, to [the applicant]”.
Based on the non-disclosable information and the Memorandum for Record the Minister reasonably suspected that the applicant had had links with the Taliban.
The Minster considered whether the Taliban has been or is involved in criminal conduct and concluded, having regard to the information before him, that he reasonably suspected that the Taliban is a group that has been and is involved in criminal conduct.
The Minister then turned to consider whether the applicant has had an association with the Taliban that involves some sympathy with, support for, or involvement in, the suspected criminal conduct of the group such that it had some bearing on his character. In considering that issue the Minister took into account the non-disclosable information as well as other information that was before him, but placed greater weight on the non-disclosable information. The Minister concluded that he reasonably suspected that the applicant has had an association of the relevant kind with the Taliban, in that he reasonably suspected that the applicant had an association involving some sympathy with the suspected criminal conduct of the Taliban, and considered that this suspected association had a negative bearing on the applicant’s character.
The Minster concluded that he was satisfied that the applicant did not pass the character test by virtue of s 501(6)(b) of the Act because he reasonably suspected the he has had an association of the kind described in Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 with the Taliban, and that the Taliban has been and is involved in criminal conduct.
Having found that the applicant did not pass the character test, the Minister then considered whether to exercise his discretion to refuse the Visa Application, taking into account factors that he considered weighed against and in favour of its refusal. The Minister considered protection of the Australian community, expectations of the Australian community, impact on family members and risk to safety. He also referred to the best interests of minor children in Australia, international non-refoulement obligations, impact on victims and impact on Australian business interests as factors, but noted that there was no information before him relevant to those matters.
In relation to impact on family members, at [38] of his decision record the Minister said:
I have considered that [the applicant’s] wife and minor child are dependant applicants on his visa application, and that a decision to refuse [the applicant’s] visa would also refuse the grant of a visa to his wife and minor child.
In relation to the risk to the applicant’s safety, should the Visa Application be refused, at [42] -[44] of his decision record the Minister said:
42.I have considered that [the applicant] has made representations that he is at risk of retribution from insurgents in Afghanistan due to his associations with Coalition forces. In doing so, I have also had regard to the non-disclosable information, statements made on behalf of [the applicant] and open source information that references the danger faced by interpreters in Afghanistan.
43.I have considered that the Minister for Defence has assessed [the applicant] as being eligible under the visa policy offering resettlement in Australia, as an ‘at-risk’ locally engaged Afghan employee.
44.I have accepted that, by remaining in Afghanistan, [the applicant] has a legitimate fear for his safety as a direct result of his former employment as an interpreter for the Coalition forces.
At [45] of his decision record the Minister concluded that the applicant did not pass the character test. He added that he had also considered the countervailing considerations, “including the impact on [the applicant’s] family members and the risk to [the applicant’s] safety should his visa application be refused”. The Minister found that the considerations favouring grant of the visa were outweighed by the concerns for the protection of and the expectations of the Australian community. Thus the Minister decided to exercise his discretion to refuse to grant the Visa Application under s 501(1) of the Act.
GROUNDS OF REVIEW
The applicant relies on the Amended Application which includes two grounds of review as follows:
1.The Respondent Minister denied the Applicant procedural fairness, failed to undertake the statutory task and constructively failed to exercise jurisdiction by failing to take into account and consider the physical safety of the wife and child of the Applicant and evidence relevant to that matter, when deciding to refuse the visa application.
Particulars
•The Government of Australian (sic) has been engaged in armed conflict in Afghanistan intermittently since 2001.
•The Applicant worked as an interpreter with Australian military forces in 2012 and 2013.
•On 13 December 2012 the Australia (sic) Government announced it would offer resettlement to eligible at risk Afghan locally engaged employees and their direct family members considered to be at risk of harm due to their association with Australian government agencies in Afghanistan.
•The Applicant and his wife and child lodged a visa application seeking such protection.
•The Applicant stated in his visa application form of his concern that the Taliban would, “kill myself and my family” and stated that there were, “many cases of interpreters working with coalition forces being kidnapped or murdered and their families harmed”.
•On 25 May 2018 the Respondent refused the visa application, on the basis he reasonably suspected the Applicant had a sympathetic association with the Taliban. This conclusion was based on documentary information not disclosed to the Respondent.
•In his reasons for decision [41] to [44] the Minister took into account and considered the threats to the safety of the Applicant, stating, “I have also had regard to the risk to [the applicant] safety should his visa application be refused”.
•The Respondent did purport to take into account and consider the ‘Impact on Family Members’ of refusal, but in respect of the Applicant's wife and child only took into account and considered at [38], “that a decision to refuse [the applicant’s] visa would also refuse the grant of a visa to his wife and minor child”.
•At no point however did the Respondent take into account and consider in the exercise of his discretion that the wife and child of the Applicant could be harmed or killed by the Taliban.
•The physical safety of the wife and child of the Applicant was a matter the Respondent was required to take into account and consider and failure to do so amounted to jurisdictional error.
2.The Respondent Minister failed to undertake the statutory task by misdirecting himself that ‘criminal conduct’ by an organisation or group for the purposes of section 501(6)(b) could include conduct committed wholly outside Australia by a group or association not present within Australia: in the alternative the Minister made a finding in the absence of evidence.
Particulars
•The Taliban is not an organisation engaged in criminal conduct in Australia: and/or there was an absence of evidence that it is;
•The conduct of the Taliban relied upon was not criminal under Australian law;
•The Minister interpreted Section 501(6)(b) to mean that the ‘conduct’ concerned could be that committed wholly outside of Australia by a group or association not present within Australia.
•The Applicant contends section 501(6)(b) in these respects should be interpreted to be referring to a state of affairs or circumstance within the Commonwealth
•The Minister’s finding rested on a misdirection of law; or in the alternative was made in the absence of evidence
(underlining and strikeout omitted.)
Ground 1
Ground 1 is an allegation that the Minister failed to take into account and consider the safety of the applicant’s wife and child and the relevant evidence that was before him in that regard when deciding to refuse the Visa Application.
The applicant relies on the following material which he says was before the Minister and which he says evidences this claim:
(1)his Visa Application where, in answer to the question “why did you leave the country you fear returning to?”, the applicant said:
I have worked as a local national linguist for Coalition Forces since 2010 … I am constantly afraid when I travel to meet my family as there have been many cases of interpreters, working with Coalition Forces, being kidnapped and murdered or their families harmed. For this reason I choose to live on [a base].
…
… When I travel to see my family … I am forced to hide my face and stay inside by house, like a prisoner, for fear of being recognised and my details being passed to insurgents (Taliban). If the Taliban had this information they would surely kill myself and my family.
(2)the following material which was included with the June Submission:
(a)a letter of recommendation dated 8 April 2013 signed by Captain Murch, which states:
[The applicant] has placed his life and that of his family at risk in order to facilitate coalition and Australian success within Afghanistan.
(b)a letter of recommendation dated 20 April 2013 signed by Captain Scanes and Lieutenant Colonel L.J. Sutton (US Army) where the signatories say:
Whilst in the performance of his duties, [the applicant] has placed his life and that of his family at risk in order to facilitate coalition and Australian success within Afghanistan.
(c)a statutory declaration made on 30 May 2015 by Captain Scanes (retired), who was attached to a Coalition Advisory Team in Afghanistan, where Captain Scanes says:
11.I urge you to please consider the following factors in your decision making process. [The applicant] is a young married man who has demonstrated a keen interest in learning the English language and about our Australian culture. He has worked with Australian, British and U.S. Forces already. The service that he has provided to our country helped protect the lives of Australian Forces, myself included. Due to his service, his own life and that of his young family are genuinely at risk. [The applicant] began the application process for a humanitarian Visa in August 2013 and since this time he has continued to live in fear whilst patiently waiting for a decision. I have kept in regular contact with [the applicant] and he is always polite and hopeful of one day realising his dream of a safe and peaceful life for himself and his family in Australia. This in itself is a testament to [the applicant’s] good character.
(emphasis added.)
(d)a statutory declaration made on 31 May 2016 by Lieutenant Colonel Hick (retired), part of the Coalition Advisory Training team to the Afghan Army, where Captain Hick says:
6.What I can say is that [the applicant] was an integral part of the team and as such we genuinely considered him part of ‘Team Australia’. Not only was he responsible for daily interpreting issues such as verbal and written translation but he also played a critical role in our safety, reading what was happening between the various groups and informing us what was and what wasn’t being said (to avoid blue on blue incidents). Our interpreters were partly responsible for keeping us alive each day, that is the value and respect that we placed upon them. They knew they had such responsibility and they not only risked their lives but also that of their family and loved ones – many interpreters and their families were murdered during our time. …
(emphasis added.)
(e)a statutory declaration made on 6 June 2016 by a former colleague of the applicant who worked with him for more than five years as an interpreter in the Coalition Advisory Team for the Australian Defence Force, where he says that the applicant’s “employment as an interpreter for ADF put his and his family’s life at higher risk”.
Parties’ submissions
The applicant submitted that the Minister’s reasons reveal a failure on the part of the Minister to consider that refusal of the Visa Application might risk the safety of his wife and child. By reference to the Minister’s decision record, he submitted that this conclusion would be drawn from:
(1)the various express references to the applicant’s safety;
(2)the lack of any references to the safety of his wife and child;
(3)the fact that under the heading “impact on family members” the Minister’s reasons record only that a decision to refuse the applicant’s visa “would also refuse the grant of a visa to his wife and minor child”;
(4)the fact that under the heading “risk to safety” there is only reference to the applicant’s safety; and
(5)the fact that in his concluding paragraph the Minister said that he had also “considered the countervailing considerations in this case, including the impact on [the applicant’s] family members and the risk to [the applicant’s] safety should his visa application be refused”.
The applicant submitted that a range of mandatory relevant considerations are prescribed by Direction No. 65 titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65) issued pursuant to s 499 of the Act. While the applicant noted that Direction 65 does not apply when the Minister is the personal decision-maker, he said that in this case the Minister’s reasons follow the structure of Pt B of Direction 65 and that in the Notice the applicant was told that Direction 65 “provides a broad indication of the type of issues that he or she may take into account”.
The applicant submitted that jurisdictional error can be present in circumstances where a decision-maker fails to undertake the task of jurisdiction by ignoring significant relevant material including circumstances where the decision-maker has treated the particular matter as relevant and purported to consider it but failed to do so properly.
The applicant referred to the decisions in Minister for Immigration and Indigenous Affairs v Huynh (2004) 139 FCR 505, Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588; [2017] FCA 929 (Coker) and Sabharwal v Minister for Immigration and Border Protection (2018) 159 ALD 86; [2018] FCA 10 (Sabharwal). He then submitted that the risk to his family was integral to his claim and that he had provided cogent evidence in support of it. He contended that the risk flowed from Australia’s involvement in Afghanistan and the applicant’s role in that involvement. The applicant said that the executive made a decision to allow him and his family to seek protection from that risk pursuant to a policy designed to protect interpreters and their immediate family members; he was told the impact on his family was one of the matters the Minister might consider; and the Minister then purported to consider that factor, but did not in fact do so. The applicant submitted that this constituted a failure to undertake the statutory task and was procedurally unfair.
The Minister, in effect, made two submissions in response. First, he submitted that the evidence does not establish a failure by the Minister to have regard to a potential risk to the applicant’s family. In the alternative, the Minister submitted that if he did fail to consider the safety of the applicant’s family, that failure did not amount to a jurisdictional error in the circumstances of this case.
Consideration
The applicant accepts that risk to the safety of his wife and child was not a mandatory relevant consideration in the exercise of the power under s 501(1) of the Act. Rather, as developed in his oral submissions, the applicant contends that the Minister failed to consider his claim that his wife and child were at risk, which he said amounted to a denial of natural justice and a failure by the Minister to undertake his statutory duty.
It is convenient to first consider the material relied on by the applicant, by which he says the claim that his wife and child were at risk was made. That evidence commences with the Visa Application which unsurprisingly, given its date, only related to the applicant. Next are two letters of recommendation which pre-date the Visa Application, the applicant’s marriage and the birth of his child. To the extent that any of those documents refer to the applicant’s family and a risk to their safety as a result of the applicant working as an interpreter, I cannot infer that the “family” so referred to is or included the applicant’s wife and child. Those references may be to other unparticularised members of the family, although it is not apparent, on the material, who they were. What is clear is that given their date those documents cannot be taken to refer to the applicant’s wife and child.
Contrary to the applicant’s submission, those documents speak as at their date and cannot be interpreted to refer to events that occurred subsequently. The applicant also referred to the notification of changes in circumstances form which he lodged on 17 June 2016, by which his wife and child were added to the Visa Application, and which he says should have been taken into account as part of the claims and submissions that he made. However, that the nature of the Visa Application changed in 2016 to include the applicant’s wife and child does not change the nature and effect of the documents brought into existence in 2013.
The balance of the evidence relied on is included in the statutory declarations made by Captain Scanes, Lieutenant Colonel Hick and the applicant’s former colleague. Those statutory declarations were made, in the case of Captain Scanes, after the applicant was married and more than a year before the birth of the child, and in the case of Lieutenant Colonel Hick and the applicant’s former colleague, after the applicant was married and shortly before the birth of the child. The maker of each statutory declaration refers to the risk to the applicant’s life and that of his family as a result of his working as an interpreter.
No further information is provided about the applicant’s wife and child. In the June Submission there is a focus first, on the character test and why the applicant does not fail that test, and secondly, on issues concerning the applicant’s credibility. In the context of the former, the applicant’s advisor refers to three statutory declarations including those of Captain Scanes and Lieutenant Colonel Hick referred to at [34] above and sets out “the points of fact consistently addressed in this material” including, insofar as safety is concerned, that “Afghani interpreters have made considerable sacrifices in personal security to assist ADF personnel”. In the penultimate paragraph of the June Submission the applicant’s advisor refers to the “serious and well-documented continuing risks borne by ‘left behind’ Afghan interpreters and the specific threats experienced by our client”. In a statement made by the applicant which is also enclosed with the June Submission, the applicant refers to the risk to his own safety and the increasing risk for interpreters in his region of Afghanistan.
The applicant submitted that it was not surprising that the June Submission was limited in its scope given it was responding to the Notice and the specific concerns set out therein. But, while the Notice raised a specific concern about the application of the character test vis a vis the applicant and issues about which the applicant may wish to comment, it also included the following:
Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on any factors you believe to be relevant regarding: whether you pass the character test and, if the decision-maker considers that you do not, why your visa application should, nevertheless, not be refused.
…
Timeframe to provide reasons why you should be found to pass the character test
If you wish to provide information to satisfy the decision-maker that you pass the character test, the information must be received by the Department within 28 days after you are taken to have received this notice (as to which please see below under ‘Receiving this notice’). This 28 day timeframe cannot be extended. In addition, the information must be provided in accordance with regulation 2.53 of the Migration Regulations 1994, which is set out in full in Attachment 1.
Timeframe to provide reasons why your visa application should not be refused
Even if you do not pass the character test, this does not mean that your visa application will automatically be refused. The decision-maker will consider your reasons along with all relevant available information before deciding whether or not to refuse your visa application.
If you wish to comment or advance reasons on why your visa should not be refused, you should do so within 28 dlays after you are taken to have received this notice.
…
(Underlining in original.)
That is, the Notice included an express invitation to provide information more generally as to why the Visa Application should not be refused.
The applicant’s subsequent submission dated 16 December 2016 responded to the issues raised in the December Letter and did not refer to the risk to the applicant’s or his family’s safety.
That being so, the extent of the information before the Minister about the applicant’s wife and child and the risk to their safety was, in addition to the notification of their inclusion in the Visa Application, comprised of the statements included in the statutory declarations of Captain Scanes, Lieutenant Colonel Hick and the applicant’s former colleague.
I turn then to the Minister’s reasons. They must be considered in light of the submissions and information that was before the Minister. As is evident from the summary at [22]-[31] above, the Minister first considered whether he was satisfied that the applicant passed the character test but was not so satisfied. The Minister then turned to consider whether he should exercise his discretion to refuse the visa, having regard to those matters referred to under the heading “relevant considerations”. Insofar as the applicant’s wife and child are concerned I make the following observations.
The Minister did not submit that a claim about the safety of the applicant’s wife and child did not arise on the applicant’s materials. This was so despite the time taken in submissions to demonstrate that, in effect, the claim was not clearly made by the applicant in the submissions on which he relied or in his own statutory declaration, and only arose from the statutory declarations referred to at [34] above. I thus proceed on the basis that a claim was made, albeit somewhat faintly, about the risk to the safety of the applicant’s wife and child.
The Minister’s reasons insofar as the wife and child are concerned are succinct. As senior counsel for the Minister pointed out, that, of itself, is not an indicator of a failure to deal with a claim. The Minister was also succinct in addressing and accepting that there was a risk to the applicant’s own safety arising from his association with the Coalition forces in Afghanistan, yet no criticism is or could be made that he did not consider the applicant’s own safety.
It is clear that the Minister was aware of the applicant’s wife and child. Under the heading “impact on family members” the Minister refers to the wife and child as dependent applicants on the Visa Application and notes that a refusal of the Visa Application would mean a refusal of the grant of a visa to the wife and child. However, the Minister’s reasons on this issue do not refer at all to the safety of the applicant’s wife and child. That the Minister’s references to safety were confined to that of the applicant is also evident from the Minister’s conclusion, where he says that he has considered the countervailing considerations “including the impact on [the applicant’s] family members and the risk to [the applicant’s] safety should his visa application be refused”. That being so, I would infer that the Minister did not consider the risk to the safety of the applicant’s wife and child.
The next question that arises is whether, as the applicant contends, that failure amounts to a denial of procedural fairness. The applicant relies on the decision in Coker in support of a submission that the risk to the applicant’s family was integral to his claim and that he provided cogent evidence in support of that risk which was not considered. Coker concerned a decision to refuse to revoke a decision to cancel a visa under s 501CA(4) of the Act. The power under s 501CA(4) differs to that under s 501(1) in that it is triggered by the former visa holder making representations as to why the cancellation decision should be revoked. Justice Moshinsky found that, in considering the risk to the Australian community, the Assistant Minister had focused on sentencing remarks made at the time of Mr Coker’s conviction but had ignored a later report given by the Queensland Parole Board which was the subject of submissions made on behalf of Mr Coker. His Honour held that this failure constituted a constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task: at [57]. In reaching that conclusion, at [55] Moshinsky J said:
Further, in my view, the submission concerning the Parole Board decision was “worthy of serious consideration” and was “seriously advanced” on behalf of the applicant (to pick up the language of Jenkinson J in Dennis Willcox). The submission formed a prominent part of Holding Redlich’s letter dated 27 February 2015, as indicated by the passages set out at [23] above. … it would be assumed that the safety of the community would be a priority, if not the highest priority, in deciding whether or not to grant a parole order. Thus, the decision of the Parole Board and the submissions based on it were worthy of serious consideration (even in the absence of reasons for the Parole Board’s decision). Of course, the weight to be given to the submissions and information about the Parole Board’s decision in the circumstances was a matter for the Assistant Minister.
The applicant also referred to Sabharwal which concerned a decision under s 501(1) of the Act. There Kerr J, relying on Coker, said that in an appropriate case, ignoring significant relevant material can justify a court on review drawing an inference that the decision-maker constructively failed to undertake his or her statutory task. His Honour found that the Minister’s failure to refer to a particular report in his reasons supported the inference that it was overlooked but said that, if he was wrong about that, he was otherwise satisfied that the Minister failed to give the report proper, genuine and realistic consideration: at [165]-[166]. At [167] Kerr J concluded that:
I am satisfied that the Minister’s unexplained or unreasoned failure to take account of a significant factor objectively relevant to his statutory task, while not of itself a jurisdictional error, in the light of the Minister’s statement that he had taken all of the material provided by the Applicant into account, in this case justifies me drawing an inference that the Minister constructively failed to exercise his or her jurisdiction.
On appeal this aspect of Sabharwal was overturned: see Minister for Immigrationand Border Protection v Sabharwal [2018] FCAFC 160 at [75]. The Full Court held that the Minister had engaged with the relevant report but that it was not central to the Minister’s exercise of his discretion: at [77]-[83].
The Minister made submissions on the way in which, in his view, Coker should be interpreted. But, in the circumstances of this case, I do not need to consider those submissions. That is because, as the Minister submitted, here, in contrast to Coker, the issue of the safety of the applicant’s family was only referred to in a summary way in the three statutory declarations referred to above. It was not a matter which was the subject of a particular document or evidence, nor did it form a significant or central part of the submissions and evidence put forward by the applicant in support of his claims to the Minister. In other words, in contrast to the report and submissions thereon in Coker, the issue of safety of the applicant’s wife and child was not “seriously advanced” in the material put forward by the applicant. In those circumstances the failure to consider the safety of the applicant’s wife and child cannot amount to a denial of procedural fairness in the way contended for by the applicant.
In any event, I accept the Minister’s submission that the Minister’s failure to consider the safety of the applicant’s wife and child does not otherwise amount to a jurisdictional error.
First, as noted above, and as the applicant accepts, risk to the safety of the applicant’s wife and child was not a mandatory relevant consideration. Thus overlooking that issue was not, in itself, a failure to “carry out the statutory task”. There is no prescription of the factors which the Minister must take into account in exercising his discretion under s 501(1) of the Act. The applicant said that while the Minister was not bound by Direction 65 he was told that it gave a broad indication of the type of issues that the Minister may take into account; it included the impact on family members as an issue; and the Minister then purported to consider that issue in his statement of reasons but did not in fact do so completely. That is, the criticism levelled at the Minister is, having treated the issue of impact on the family as relevant he has, by omitting reference to the question of their safety, failed to do consider the issue properly. However, the scope of what the Minister was required to consider was entirely a matter for him, including the particular aspects of the facts before him and how they affected the applicant’s claims. To the extent that the safety of the wife and child was raised, it was a matter for the Minister to determine the relevance, if any, of that factor, the extent to which it impacted on the applicant’s claims and the weight to be given to it.
Secondly, it cannot be said that the Minister’s consideration of the effect of a negative decision on the wife and child was illogical or legally unreasonable, and a failure to refer to the risk to the safety of the applicant’s wife and child does not make it so. The Minister’s treatment of the impact on the applicant’s wife and child was brief but his finding that refusal of the Visa Application would lead to a refusal of visas for the wife and child could not be said to lack an evident and intelligible justification. Given that the wife and child’s visas were dependent on that of the applicant, that result would necessarily follow. The Minister’s finding in that regard was supported by the material before him.
Thirdly, this is not a case where it is said that an adverse factual finding was made in circumstances where an identified piece of significant evidence was overlooked or not considered: see Minister for Immigration and Citizenship vSZRKT (2013) 212 FCR 99 at [97]-[98] and [111]-[112]. The references to the risk to the safety of the applicant’s wife and child are as set out at [34] above. Insofar as there was a claim about the risk to safety of the applicant’s wife and child, it was not made in the applicant’s submissions but only emerged from the statutory declarations provided by the witnesses referred to above. There was no single primary document which evidenced or advanced the threats to the safety of the wife and child. In any event, the Minister did not make an adverse finding per se about their safety. Rather, he did not undertake any express consideration of the issue.
For those reasons ground 1 is not made out.
Ground 2
Ground 2 concerns the construction of s 501(6)(b) of the Act. The applicant contends that on a proper construction of that subsection, the “group or organisation” referred to therein that has been or is involved in criminal conduct must be involved in that conduct and operating in Australia.
Parties’ submissions
The applicant submitted that s 501(6)(b), in its reference to criminal conduct and criminal groups and organisations, should be taken to be referring to a state of affairs in Australia and an organisation or group operating in Australia. He submitted that the alternative construction would have the unlikely effect of importing consideration of the criminal law of Afghanistan into the operation of the Act.
In his oral submissions, senior counsel for the applicant developed this submission. He submitted that s 501(6)(b) needs to be read “zealously and carefully” because first, it impacts on fundamental human rights and has a pervasive, devastating effect on the rights of people, particularly in this case, to obtain a visa that might result in saving their lives; and secondly, even on a literal reading of the subsection, the criminal conduct must be criminal conduct in Australia. Senior counsel for the applicant submitted that was so because the section is directed to the protection of the Australian community, not the protection of the Afghan community or some other community outside Australia. It was contended that if it were otherwise the Minister would be able to have regard to conduct which is deemed to be criminal by despotic regimes where Australia could not possibly agree that those organisations should be outlawed.
The applicant further submitted that the idea that the section is designed to pick up any criminality or criminal conduct that might occur in any state throughout the world, as specified by any regime that happened to be in control from time to time, is too broad and does not serve the purpose of the section. The applicant said that from a textual point of view that cannot be so because elsewhere in s 501(6) there are specific references to engaging in criminal conduct in Australia and to convictions for particular offences in a foreign country. The applicant contended that in those subsections Parliament had chosen the laws which might apply in foreign jurisdictions and which would be relevant here to single out a person as not being worthy of meeting the character test. The applicant said that is because it would be “unthinkable” that the Australian Parliament would have in mind that any criminal conduct anywhere in the world of any type would warrant a person being deprived of the ability to obtain an Australian visa.
In the alternative the applicant submitted that there was no evidence that the Taliban was present in Australia or had engaged in the requisite conduct in Australia.
The Minister submitted that he proceeded on the basis that an association with the Taliban was capable of engaging s 501(6)(b) by virtue of the Taliban’s engagement in criminal conduct wherever that conduct occurs but relevantly, for present purposes, in Afghanistan and that there was no error in his approach. The Minister contended that s 501(1) permits the refusal of a visa and plainly applies, in its terms, to applicants both inside and outside Australia and that the provisions of s 501(6) are to be read in that light. As to the applicant’s alternative argument, the Minister submitted that he did not rely on the Taliban having any Australian presence and therefore that issue does not arise.
Consideration
As a starting point, it is useful to examine s 501(6) in some detail. It is definitional and sets out a number of different ways in which a person may be said not to pass the character test. Whether or not a person passes the character test is relevant to the exercise of the discretion to grant or cancel a visa, as the case may be, in subss 501(1), (2) and (3) of the Act. It is also relevant to the mandatory cancellation power in s 501(3A) of the Act. As to the circumstances that will result in a person not passing the character test:
(1)subss 501(6)(aa), (ab), (ba)(i) and (d) specify conduct that would or might occur in Australia or convictions for offences under Commonwealth laws;
(2)subss 501(6)(e) and (f) concern charges or convictions for specified offences, whether in Australia or overseas. The specified offences are sexually based offences against a child or a finding of guilt for such an offence and charges or an indictment for crimes of serious international concern, crimes of genocide, war crimes, crimes involving torture or slavery or crimes against humanity;
(3)subss 501(6)(ba)(ii), (iii) and (h) identify offences, actions or events that in some cases must necessarily have occurred outside Australia, given their nature and/or could have occurred either within or outside Australia;
(4)subs 501(6)(g) concerns an assessment that may occur in Australia but where the conduct the subject of such an assessment may extend to conduct outside Australia; and
(5)subss 501(6)(a) and (b), which are general in their terms and do not specify either expressly or by implication whether the conduct or, for the purposes of subs 501(6)(a), the sentence or finding of the court, must occur in Australia or could occur in or outside Australia.
The Minister relied on s 501(6)(b) to find that the applicant did not pass the character test. As observed above, that subsection is general in its terms and does not expressly specify where the relevant conduct is to take place. The applicant contends that the subsection should be read in a way that confines any relevant conduct to conduct in Australia and the reference to a group or organisation to one that operates in Australia. I disagree. My reasons follow.
The starting point is s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) which sets up a presumption about references to “localities jurisdictions and other matters”. It provides:
(1)In any Act:
…
(b)references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.
The application of that presumption can be displaced by a contrary intention: see s 2(2) of the Acts Interpretation Act. Such a contrary intention can be inferred from the language of the section or from the object, subject matter or history of the legislation: see Schmidt v Government Insurance Office (NSW) [1973] 1 NSWLR 59 at 67-68. It can also be found if treating the provision as referring only to matters in Australia would hamper its operation. In Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 at 123-124, in considering the approach to construction of legislation said to breach international law or principles of international comity, Sackville J said:
Territorial supremacy is an established principle of international law: Oppenheim’s International Law, R Jennings and A Watts (eds) (9th ed, 1992), p 458. Thus, under international law, a sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its territory: R v Jameson [1896] 2 QB 425 at 430. In accordance with the principle of construction to which I have referred, domestic legislation is generally presumed not to be intended to breach this principle: Meyer Heine Pty Ltd v China Navigation Co Ltd (1965) 115 CLR 10 at 23-4, per Kitto J; Attorney-General (NZ) v Ortiz [1984] 1 AC 1 at 19, per Lord Denning MR. However, the presumption is rebuttable and its strength will depend upon the subject matter of the legislation: Air-India v Wiggins [1980] 1 WLR 815 (HL) at 820-1, per Lord Scarman.
It follows that the presumption that legislation operates territorially can be rebutted by explicit language stating that the legislation is to have effect in the territory of another country. It can be rebutted, even without explicit language, as illustrated by Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270 (SC(Vic), Fullagar J), a case concerned with s 261 of the Companies (Vic) Code, the forerunner to the provisions now contained in the Corporations Law Pt 6.8.
Fullagar J held that the word “person”, as used in s 261, applied to a Swiss corporation, neither registered nor carrying on business in Australia. His Honour considered (at 282) that a more restrictive interpretation would “set at nought” the elaborate statutory machinery established by the code, which was designed to promote an informed market for shares in public companies. (The decision was reversed by the Full Court, but on other grounds: Crosley Ltd v North Broken Hill Holdings Ltd [1987] VR 119; (1986) 10 ACLR 656 (SC(Vic), Full Court)). This case should be compared with Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 (SC(NSW), Rogers CJ Comm D) at 550-5. There Rogers CJ Comm D refused to read a general rule of court, which permitted service outside the State of documents other than originating process, as authorising service of a subpoena on a Japanese company in Japan. His Honour took into account that service of the subpoenas would infringe Japanese sovereignty.
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens: s 4(1). Subsection 501(1) of the Act confers a discretion on the Minister to refuse to grant a visa to a person if he or she fails to satisfy the Minister that he or she passes the character test. Subsection 501(1), particularly when considered in the context of the object of the Act, must apply to persons applying for visas who reside both in and outside Australia. I do not understand the applicant to contend otherwise.
It is the precondition to the exercise of that discretion in s 501(1) that is found in s 501(6), where the character test is defined. That is, s 501(6) is not an operative section, in the sense of conferring a power or discretion, but provides, to adopt the Minister’s label, the trigger to exercise the discretion.
By operation of the presumption in s 21(1)(b) of the Acts Interpretation Act the criminal conduct of the group or organisation referred to in s 501(6)(b) would be taken to be conduct in Australia, and the group or organisation itself would be one operating in Australia. However, in my opinion, this is a case where that presumption is displaced by a contrary intention. There are two bases upon which that conclusion is reached.
First, it is evident from the object and purpose of the Act, to regulate, in the national interest, the entry into and presence in Australia of non-citizens, that it would be intended that the subsection would incorporate criminal conduct of the relevant group or person outside Australia. To limit its application to criminal conduct only in Australia would not serve the object of the Act, which necessarily focuses on regulation of the entry into and presence in Australia of non-citizens and thus persons who reside, or at some point did reside, outside Australia. That that is so would make the conduct of a person, or their association with a group, outside Australia relevant to the regulation of their entry into Australia.
Secondly, to limit the criminal conduct of the relevant group or person to conduct in Australia would hamper the operation of s 501(6)(b) and s 501(6) more generally. As I have already observed, s 501(1) is designed to apply to persons who may be in Australia or offshore. It confers a discretion to be exercised in circumstances where a person cannot satisfy the Minister that he or she meets the character test as defined in s 501(6). That definition not only captures conduct both in and outside Australia but different types of conduct. Subsection 501(6)(b) concerns the Minister having a reasonable suspicion that the visa applicant or holder of a visa has been or is a member of a group or has an association with a group, organisation or person and that the group, organisation or person has been involved in criminal conduct. If that conduct were confined to criminal conduct in Australia it would limit the operation of the subsection in a way that would give it little work to do, particularly when considered in the context of the Act’s object and the application of s 501(1) to persons who are living or have lived outside Australia.
No other subsection of s 501(6) concerns the concept of membership of, or association with, a group, organisation or person. To that end, the more prescriptive nature of ss 501(6)(e) and (f) does not mean that s 501(6)(b) is to be read in a confined way, limiting the criminal conduct of the group or person to conduct in Australia. Nor would a broader reading of subs 501(6)(b) render those sections nugatory. Subsections 501(6)(e) and (f) are concerned with convictions and charges for specific offences in Australia or in a foreign country, a quite different subject matter to that of s 501(6)(b). In other words the sections are focused on different conduct and each has work to do. If s 501(6)(b) was confined in the way suggested there would be a gap in the statutory framework – a person who was a member of or had an association with a group or organisation that engaged in criminal conduct in another country may not be captured by s 501(6) of the Act. Given the object of the Act and the comprehensive framework of s 501(6), that outcome could not have been the intention of Parliament.
The applicant’s submission, that to read s 501(6)(b) as applying to involvement in criminal conduct outside Australia would mean that a person would fail the character test if he or she was a member of an organisation that was involved in conduct that was considered to be criminal in that foreign country but that would not be so considered here, should be rejected. The example given by the applicant was of a person who was a member of the Catholic Church in China. That submission ignores that s 501(6) is definitional and not an operative provision. That is, as noted above, it provides the gateway for the exercise of the discretion which resides in the Minister. The Minister must ultimately determine if the visa application should be refused, and he must do so having regard to the object of the Act.
As for the alternative submission made by the applicant, that too should be rejected for the reasons given by the Minister. That is, the Minister did not rely on any presence of or conduct by the Taliban in Australia
ORDER FOR SUPPRESSION
At the hearing, on the application of the applicant, I made an order pursuant to s 37AI of the Federal Courtof Australia Act 1976 (Cth) (FCA Act), pending the determination of the application for a suppression order made by the applicant, that the identity of the applicant, his wife and child included in the agreed bundle of documents which was tendered and relied on at the hearing remain confidential and not be published. I gave leave to the applicant to file and serve submissions in support of his application for an order pursuant to s 37AF of the FCA Act, which he has done, and for the Minister to file any submission in reply. At the hearing senior counsel for the Minster indicated that it would be unlikely that the Minister would take up his right of reply on this issue and in fact he has not.
The applicant seeks an order pursuant to s 37AF of the FCA Act that “all evidence and information relating to evidence tending to reveal the identity of the applicant and his immediate family is suppressed pursuant to section 37AF of the [FCA Act]”. That order is sought on the grounds set out in s 37AG(1)(c) of the FCA Act which permits the Court to make a suppression or non-publication order where it is necessary to protect the safety of any person.
Subsection 37AF(1)(a) of the FCA Act gives the Court the power to make a suppression or non-publication order prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of 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.
In deciding whether to make a 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: s 37AE of the FCA Act. In Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] Allsop CJ said:
The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. This balancing exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act 1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32.
In determining whether an order of the nature sought by the applicant should be made, the question for the Court is whether it is necessary, in this case, to protect the safety of the applicant and his family. Given the applicant’s role as an interpreter for the Australian forces in Afghanistan, that he and his family remain in Afghanistan, and the evidence included in the Visa Application that there is a risk to the safety of persons in that role and their families in Afghanistan, I am satisfied that the order sought is necessary to protect the safety of the applicant and his family.
An order made under s 37AF operates for the period decided by the Court and specified in the order. In deciding on the period, the Court must ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 37AJ of the FCA Act. While not addressed in his original submissions in support of the application for the order pursuant to s 37AF of the FCA Act, the applicant subsequently informed the Court that in his opinion the order should remain for the duration of his natural life and, given his age, should be in place for 70 years. The Minister considered that the issue of duration of any order was a matter for the applicant. In light of the circumstances in which the order is sought, I accept that for it to achieve the purpose for which it is made, it should operate for the duration of the applicant’s life and thus a period of 70 years as submitted by the applicant is appropriate.
CONCLUSION
In light of the matters set out above I will make orders extending the time for the filing of the applicant’s Amended Application and dismissing the Amended Application, and an order pursuant to s 37AF of the FCA Act substantially in the terms sought by the applicant.
The applicant was successful in obtaining an order for an extension of time but has been unsuccessful in obtaining the orders sought in his Amended Application. Given the way in which the proceeding was conducted with a focus by both parties on the grounds of the Amended Application and little or no time spent on the application for an extension of time, the applicant should pay the Minister’s costs. I will also make an order to that effect.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 30 August 2019
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