EHA19 v Minister for Immigration and Anor (No.2)

[2020] FCCA 1648

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHA19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1648

Catchwords:
PRACTICE AND PROCEDURE – Application in a case for suppression orders in respect of a judgement delivered in open Court – where application sought non-publication at a high level – where judgement does not identify the name of the applicant or publish the applicant’s name contrary to s 91X of the Migration Act 1958 (Cth) – where proposed consent orders sent to Court without identifying statutory basis for orders – significance of the term ‘publish’ – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), s. 91X

Federal Circuit Court of Australia Act 1999 (Cth) s. 75

Cases cited:

ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782

Applicant: EHA19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2813 of 2019

Judgment of: Judge Street

Hearing date: 19 June 2020

Date of Last Submission: 19 June 2020

Delivered at: Sydney

Delivered on: 19 June 2020

REPRESENTATION

Counsel for the Applicant: Mr G Schipp of counsel

Solicitors for the Applicant: Sydney West Legal and Migration

Solicitors for the Respondents: Ms S Sangha, Mills Oakley

ORDERS

1. The application in a case filed on 9 June 2020 is dismissed.

DATE OF ORDER: 19 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2813 of 2019

EHA19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for suppression orders under Pt 6A of the Federal Circuit Court of Australia Act 1976 (Cth) in respect of a judgment that has been delivered by this Court on 13 February 2020. 

2. The application in a case identified the seeking, at a high level, of the judgment being the subject of non-publication orders. That high level was not an appropriate formulation as would be required in respect of the making of suppression orders, and should have been identified with sufficient particularity and precision to permit the Court to apply the statutory considerations that the Court must take into account in determining whether or not that criteria is met. The criteria has been usefully analysed in the recent decision of the learned Abraham J in ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782.

3. Following the filing of that application, there were sent up to the Court proposed consent orders. Those proposed consent orders included a proposition to the following effect:

   The substantive judgment handed down on 13 February 2020 and published on 23 April 2020 be recalled and the judgment be re-published using the applicant’s new pseudonym and the new proceeding number.

4. The basis, in terms of a statutory power to do so, has not been identified. Mr Schipp, counsel on behalf of the applicant, has candidly acknowledged that the judgement does not identify the name of the applicant or publish the applicant’s name contrary to s 91X of the Migration Act 1958 (Cth) (“the Act”). In those circumstances, it is difficult to comprehend why it was advanced, particularly, on behalf of the model litigant, that it was appropriate to make an order for the judgment to be recalled, whatever that means, and the judgment be republished. 

5. It is the case that there are broad powers in relation to a suppression application that may be exercised after the judgment has been delivered, but the notion of recalling and republishing a judgment involves a number of fundamental misconceptions about the Court’s powers. 

6. There is a specific statutory provision that identifies the power of this Court in relation to the publication of reasons and a number of principles to be derived from s 75 of the Federal Circuit of Australia Act 1999 (Cth) which is set out as follows:

   75  Reserved judgments etc.

   (1)  If:

   (a)  the Federal Circuit Court of Australia reserves judgment in a proceeding; and

   (b)  the Judge who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons;

   those orders and reasons may be made public by another Judge on behalf of the Judge who heard the proceeding.

   (2)  If:

   (a)  the Federal Circuit Court of Australia reserves reasons for its decision in a proceeding; and

   (b)  the Judge who heard the proceeding has prepared reasons, but is not available to publish those reasons;

   those reasons may be made public by another Judge on behalf of the Judge who heard the proceeding.

7. The first principle is that there must be reasons and orders that are made public for quelling a controversy contested in proceedings. The second principle is that there is a statutory power to publish oral reasons by pronouncing those oral reasons in open Court. The third principle is that there is a statutory power to publish written reasons in open Court. The fourth principle is that provision makes clear that the Court does not have a power to publish oral reasons and then publish written reasons. The fifth principle is that once reasons have been published, be it oral reasons or written reasons, there is no power to republish oral reasons or to republish written reasons. The sixth principle is that there is a difference between publishing orders and publishing reasons. The seventh principle is that a judge may make orders and reserve reasons to be published at a later date in writing. The eighth principle is that a judge may reserve and then publish oral reasons in open Court. There is of course also a difference between these powers to publish oral or written reasons and the entry of the orders made by the Court.

8. It is evident that the provision recognises the public interest in the efficient administration of justice in the exercise of this Court’s jurisdiction by the publishing of oral reasons in open Court. This is a statutory encouragement for the Court to be efficient given the volume of matters filed in the Court and, where consistent with the interests of the administration of justice, to publish oral reasons in open Court. The publishing of oral reasons will often occur on the same day as the hearing or may occur on another listed date. There is a public interest evident in the alternate statutory powers in the ability to avoid or reduce the need for the additional time, listing and judicial resources involved in preparing and publishing written reasons. The benefit of that public interest to permit the efficient use of judicial resources is not advanced if judicial resources are always deployed to settle the transcript of all oral published reasons.

9. Once there has been a publishing of oral reasons in open Court, the settling of those oral reasons is not the publishing of written reasons. It is the settling of the oral transcript of the oral published reasons. That settling process of the transcript permits correction of errors and insertion of references omitted in the publishing of the oral reasons, albeit not corrections that materially alter the pronounced oral reasons for the orders.

10. On the proper construction of the provision, there is no power, once there has been published oral reasons, to publish written reasons. The settling of the transcript of the oral published reasons is not a statutory obligation. Whilst that settling process, if undertaken, may overcome automatic transcription errors, there is no power to compel the Court to settle the transcript of oral published reasons even if an appeal is pursued. That is because the oral reasons have been published by being pronounced in open Court. Whilst it is open to the Court to release the unsettled transcript of the published oral reasons, the settling of the transcript of the oral published reasons is obviously a helpful step if an appeal is pursued. Further, the settling of that transcript of oral published reasons does not require any further listing or step in an open Court, as that step has already occurred.

11. The term, “publish” in s 75 of the Federal Circuit of Australia Act 1999 (Cth) must be given its natural ordinary meaning in the context of the important task of the Court  the controversy being the matter contested in the proceedings by reasoned orders. The term “publish” means to put out or issue. In its context, the term “publish” means that reasons which are oral reasons are published when put out by being pronounced by the Court in open Court. In its context, the term “publish” means that written reasons are published when issued by delivery of the writing in open Court. The reasoned orders in this Court can be made either orally or in writing. 

12. The suggestion that there is some power to republish has no foundation in s 75 of the Federal Circuit of Australia Act 1999 (Cth) and the consent orders that were sent to the Court were not appropriate, and they should have been identified as not being appropriate before being sent to the Court. 

13. In support of the orders being sought, Mr Schipp has relied upon the evidence of Mr Taylor– amongst other material before the Court – identifying the search function that may have permitted disclosure of the applicant’s name on the Commonwealth Court Portal accessible. That access to the Commonwealth Court Portal is not the publication or the publishing of anything by the Court. The Court comprises the judges of the Court. The judges of the Court publish reasons either orally or in writing.  The judges do put out or issue the Commonwealth Court Portal.

14. The ability to search the Commonwealth Court Portal site related to the court does not reflect any publishing of the applicant’s name, contrary to s 91X of the Act. The meaning of “publish” in s 91X of the Act also has its ordinary and natural meaning being to put out or issue. There has been no publishing of the applicant’s name by the Court. That section provides no basis in the circumstance of the present case whereby this Court could be satisfied that orders of the kind being advanced in terms of pseudonyms and suppression of published material are necessary to prevent prejudice to the proper administration of justice. 

15. Taking into account the statutory provisions in respect of suppression orders, as identified by the learned Abraham J in ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782, and the importance of the openness of justice and the limited language of the provision of s 91X of the Act in so far as concerns the Court, this is not a case where the Court is satisfied that it is necessary, to prevent prejudice to the proper administration of justice, for there to be any suppression order either as sought in the substantive interim application in its generalised form or as identified in the proposed consent orders. Further, the Court is not satisfied that the proposed consent orders were appropriate. The Court is not satisfied that any proper basis has been made out to support the making of any order under Pt 6A of the Federal Circuit Court of Australia Act 1999 (Cth).

16. For the reasons the Court has given, this is not a matter in respect of which the Court is satisfied that it is appropriate to make any further order other than dismissal of the application in a case. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 31 July 2020