FEDERAL COURT OF AUSTRALIA
ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA 1179
File number: NSD 1860 of 2018 Judgment of: MARKOVIC J Date of judgment: 1 October 2021 Catchwords: PRACTICE AND PROCEDURE – application for orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) over reasons for judgment – where matters contained in reasons for judgment insufficient to reveal appellants’ identities – where reasons for judgment published in June 2019 – where appellants took no prior steps to suppress information contained in reasons for judgment – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AI Cases cited: AHV19 v Minister for Home Affairs [2020] FCCA 378
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
ETV17 v Minister for Immigration [2018] FCCA 2643 ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 882
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: 17 August 2021 Counsel for the Appellants Mr D R Taylor of Sydney West Legal and Migration Solicitor for the Appellants Sydney West Legal and Migration Counsel for the First Respondent Mr T Hillyard of Sparke Helmore Lawyers Solicitor for the First Respondent Sparke Helmore Lawyers Counsel for the Second Respondent The Second Respondent filed a submitting notice save as to costs ORDERS
NSD1860 of 2018 BETWEEN: ETV17
First Appellant
ETW17
Second Appellant
ETX17 (and others named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appellants’ amended interlocutory application filed on 14 May 2021 be dismissed.
2.The appellants pay the first 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:
By way of amended interlocutory application filed on 14 May 2021 (Amended Application), the appellants seek a number of orders broadly described as confidentiality or non-publication orders. Among others, they seek orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) restraining the publication of their pseudonyms and the proceeding number allocated to this proceeding as well as orders assigning them with new pseudonyms, assigning the proceeding with a new proceeding number and redacting information contained in a judgment of this Court delivered on 12 June 2019.
HISTORY OF THE PROCEEDING
This proceeding has a lengthy history, having been commenced on 26 October 2017 in the Federal Circuit Court of Australia (as that Court was then known) by way of an application for judicial review of a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the appellants a Safe Haven Enterprise (subclass 790) visa. The Circuit Court made orders dismissing the appellants’ application on 18 September 2018: see ETV17 v Minister for Immigration [2018] FCCA 2643 (FCC Judgment).
On 3 October 2018, the appellants filed a notice of appeal in this Court appealing the orders made by the Circuit Court. On 12 June 2019, I delivered judgment and made orders dismissing that appeal: see ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 882 (Judgment).
On 13 November 2019, the appellants’ application for special leave to appeal from the Judgment was refused: see ETV17 & Ors v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCASL 378.
On 6 October 2020, some 15 months after I delivered the Judgment, the appellants filed an interlocutory application seeking the following orders (Interlocutory Application):
i. The appellant be assigned a new pseudonym.
ii. This proceeding be assigned a new proceeding number.
iii.The substantive judgment in respect of the appeal be published using the new pseudonym and the new proceeding number.
iv.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.
v.Identifying personal details be redacted from the published version of the substantive judgment.
vi.The publication or disclosure of the 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) to protect the safety of the appellants.
vii.Documents in the proceeding which display the original pseudonym and the original proceeding number are confidential for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).
On 13 October 2020, my Associate wrote to the parties referring to three proceedings which, at the time, were before a Full Court of this Court and which raised similar issues to those raised by the Interlocutory Application: an application for leave to appeal from ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782 (ELA18); an application for extension of time and leave to appeal from EEZ18 v Minister for Home Affairs (Federal Court of Australia, NSD 234/2019, Orders dated 30 April 2020) (EEZ18); and an appeal from BBE15 v Federal Circuit Court of Australia [2020] FCA 965 (BBE15). The parties agreed that the resolution of the Interlocutory Application should await the determination of those proceedings.
On 22 December 2020, judgments in those three Full Court proceedings were delivered as a single judgment: see ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230 (ELA18 judgment).
On 28 January 2021 and 21 April 2021, my Associate again wrote to the parties inquiring whether the appellants still pressed the Interlocutory Application in light of the ELA18 judgment. On 21 April 2021, the appellant’s solicitor informed the Court that he intended to amend the interlocutory application.
On 14 May 2021, the appellants filed the Amended Application.
At the hearing of the Amended Application, it was common ground between the parties that the appellants had not made any application in the terms of the Amended Application to the Circuit Court in relation to the FCC Judgment.
On 17 August 2021 at 8.14 pm, after the hearing and while judgment was reserved, Daniel Robert Taylor, the solicitor for the appellants, lodged an affidavit signed by him on the same day with the Court. The affidavit, which annexed an email apparently addressed to the Circuit Court judge’s associate requesting a redaction to aspects of the FCC Judgment, was not accompanied by an application to reopen the appellants’ case or reference to any prior communication with the Minister’s solicitors about it. The affidavit was not accepted for filing.
THE AMENDED APPLICATION
The Amended Application seeks near-identical relief to the Interlocutory Application, save for the following amendment to para 6:
vi.The publication or disclosure of the 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 prevent prejudice to the proper administration of justice; and to protect the safety of the appellants.
(Underlining in original.)
The Amended Application also includes a number of “Grounds for Application”, though they may be better described as submissions, as follows (as written, underlining omitted):
1.The appellants safety has been put at significant and serious risk because of the publication of their claims against Sri Lanka published together with information readily capable of being used to identify them.
2.The first appellant’s claim, which was accepted by the IAA, that he was involved with the LTTE, in combination with the existing suspicion of the Sri Lankan authorities of him as a member of the PSG of deminers suspected of hiding weapons for the LTTE, puts him at risk of very serious and significant harm.
3.There is utility in making the suppression orders in that it would mitigate the risks to the appellants; hence satisfying the criteria under the Federal Court Act s37AG 1 (a) the order is necessary to prevent prejudice to the proper administration of justice; or in the alternative (c) the order is necessary to protect the safety of any person;
4.If on the contrary the Court finds that the risk to the appellants could not be mitigated, in that case, the case is made in extremis for the making of suppression orders on the alternative ground in the Federal Court Act s37AG 1 (a) the order is necessary to prevent prejudice to the proper administration of justice;
5.The Appellant relies on the authorities of NSD702/2020 EOC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor: and WAD33/202 ALF21 & ANOR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [16 February 2021], in each of which case an application for suppression orders was granted on the basis of s.37AG(1)(a) that it was necessary to prevent prejudice to the administration of justice, as a result of a publication of identifying information;
The appellants rely on two affidavits: the first sworn by the first appellant on 30 September 2020; and the second signed by Mr Taylor on 29 April 2021.
In his affidavit the first appellant deposes that:
(1)he and his wife fear for their safety as a result of the publication of his claims in relation to torture by the CID in January 2009, together with their personal details including their town of origin, their caste, problems with their inter-caste marriage, the status of their step-children, date of relocation, family history with the LTTE and his claims;
(2)all of these facts, which were accepted by the Authority, are published by the Court and so are available from the internet for the Sri Lankan authorities;
(3)the Sri Lankan authorities monitor the Sri Lankan refugee diaspora and he believes this would include monitoring judgments of this Court;
(4)his claims of torture by the CID in January 2009, which were accepted by the Australian government and published on the internet, are very serious allegations to have made against the Sri Lankan government because it is a very serious crime; and
(5)he fears retribution by the Sri Lankan authorities and, as a result, requests the Court to remove the Judgment from the internet to reduce the risk of harm to him from this incident.
In his affidavit, Mr Taylor says that the Sri Lankan government publishes detailed statistics on the nine long-term de-mining operations that have been engaged in Sri Lanka. Mr Taylor annexes what he describes as “records published by the Sri Lankan authorities on each of the 9 NGO de-mining agencies continuing to operate long term in Sri Lanka”.
APPELLANTS’ SUBMISSSIONS
The appellants’ submissions are not easy to follow and were unsatisfactory in some respects. They are replete with references to judgments in this Court and the Circuit Court. In many instances, there is no explanation of the relevance of the decisions to the Amended Application. Further it became clear in the course of oral submissions that, despite the inclusion of submissions to the contrary in their written submissions, there had been no breach of s 91X of the Migration Act 1958 (Cth) in relation to the appellants. Submissions relying on a breach of s 91X were made despite the appellants’ solicitor becoming aware in October 2020, some six months prior to the filing of their written submissions, that the appellants had not been the subject of such a breach. The appellants’ solicitor withdrew those submissions but only following my inquiry of him as to the absence of evidence in relation to the alleged breach.
Subject to those matters, I set out below a summary of the appellants’ submissions.
The appellants say that:
(1)the Authority accepted, and the Court republished, the first appellant’s claims to be involved with the Liberation Tigers of Tamil Eelam (LTTE), that he came under suspicion because of his work with a de-mining company and that he was arrested and interrogated by the CID in 2009 for this reason;
(2)the first appellant’s claim that he was tortured by the authorities was included in the Judgment, without indication as to whether it was accepted by the Authority;
(3)the “2019 DFAT country information reports at 3.71-3.72” indicate that those suspected of supplying (or hiding) weapons to the LTTE are considered as being of high profile adverse interest;
(4)the first appellant, “because of his work as a de-miner, claims which were accepted by the Authority came to the adverse attention of the Sri Lankan authorities”;
(5)the Judgment indicates that the first appellant actually had an involvement with the LTTE, although this was considered by the Authority to be low profile.
The appellants submit that the conjoining of this information, together with identifying information, puts them at extreme risk of serious harm. They contend that as a result the severity of the potential harm is extreme, while the magnitude of the risk due to the first appellant’s identification using this information is significant.
The appellants contend that, added to the matters deposed to by the first appellant (see [15] above), is the fact that the first appellant’s work for an international de-mining company places him in an extremely limited particular social group of persons, each of whom had to be documented by the Sri Lankan authorities. They also contend that the first appellant’s role with the de-mining company puts him at suspicion of provision of explosives to the LTTE. They rely on the May 2019 Department of Foreign Affairs and Trade (DFAT) report that was before the Authority which they say indicates that persons who are suspected of providing explosives during the war are considered as high profile former LTTE members. The appellants submit that similar information is repeated in what they describe as the “2019 DFAT report”. I pause to note that neither of these reports, assuming they are different, was before me on this application.
The appellants contend that the 2019 DFAT country information report for Sri Lanka indicates that the first appellant, as an undisclosed former cadre of the LTTE, may be subject to rehabilitation, mandatory reporting and monitoring. They say that monitoring of the diaspora by the Sri Lankan authorities, which would be the task of the intelligence authorities, would be expected to include monitoring of JADE and CCP websites.
The appellants submit that consequently, as the Sri Lankan authorities have the capacity to identify the first appellant, the “precautionary principle” must be applied. They say it must be assumed that the Sri Lankan authorities have identified the first appellant as using the pseudonym ETV17 and hence his association with the claim to have been actually supporting the LTTE including, necessarily, during his time as a de-miner and thus as a person with access to explosives.
The appellants submit that the practical effect of a suppression order is to mitigate the risks of publication of the previous pseudonym in connection with the Judgment. They contend that any person who has previously downloaded the Judgment with their pseudonyms would be able to repost the Judgment at any time and in any manner and there would be no recourse for the appellants to alleviate the risks arising therefrom.
The appellants submit that the primary question for consideration is whether their safety was put at risk by the ongoing publication of details of their claims and whether that risk could be in any way mitigated by a change of pseudonym such that there is utility in making the order.
The appellants rely on AHV19 v Minister for Home Affairs [2020] FCCA 378 in which suppression orders were made by the Circuit Court with a duration of 70 years in circumstances where the appellant’s name had been published in the Sri Lankan Government Gazette as a proscribed terrorist. The appellants contend that their circumstances are “practically identical” to those in AHV19.
The appellants submit that recent changes in the situation in Sri Lanka, with the return of Mahinda Rajapaksa as prime minister and his brother as president, make the situation all the more dangerous for the first appellant because the compromise of his pseudonym enables the linkage of him with his claims for protection.
The appellants also point to examples of decisions in which a suppression order was made some time after the relevant information was published, including EIJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1429 and DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220.
The appellants submit that because there is a real risk to them arising from the ongoing publication it is necessary for the Court to take the available measures to seek to mitigate the risk. They contend that the sole question for the Court is whether the appellants’ safety is put at further risk by the ongoing publication of details of their claims in connection with material that enables their identification in connection with their claim for protection.
STATUTORY FRAMEWORK AND LEGAL PRINCIPLES
Section 37AE of the FCA Act provides that in deciding to make a suppression 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.
Section 37AF of the FCA Act relevantly provides that:
(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
…
Section 37AG of the FCA Act sets out the grounds for making an order under s 37AF which relevantly includes, at subs (1)(a) and (c), where the order is necessary to prevent prejudice to the proper administration of justice and where the order is necessary to protect the safety of any person. A suppression order or non-publication order must specify the ground or grounds on which the order is made: see s 37AG(2) of the FCA Act.
Section 37AJ of the FCA Act relevantly provides that a suppression or a non-publication order operates for the period decided by the Court and specified in the order. In deciding the period for which an order is to operate, the Court is to ensure that it operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
The principles applicable to s 37AF of the FCA Act were not in dispute. They were summarised in C7A/2017 v Minister for Immigration and Border Protection(No 2) [2020] FCAFC 70 at [12]-[14] where a Full Court of this Court (Katzmann, Wigney and Abraham JJ) said:
[12]… the Court is not permitted to engage in “some ‘balancing exercise’” in which it weighs the competing considerations: Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [109] (Lee J). The balance is struck by the legislation itself: see Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] (Allsop CJ).
[13]… a suppression order cannot be made unless it is “necessary” for one or more of the purposes specified in s 37AG. The appellants bear the onus of persuading the Court to make the order and the onus has been described as “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (Edelman J) at [8], citing Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438 at 438 (Madgwick J). …
[14]It is trite to observe that “necessary” is “a strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]. It is not enough that suppression be considered desirable. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, where a non-publication order was sought, McHugh JA, with whom Glass JA agreed, said at 477 that, “there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication” and “[m]ere belief that the order is necessary is insufficient.”
The appellants seek their orders under s 37AF(1) of the FCA Act on the bases specified in s 37AG(1)(a) and (c) of the FCA Act, that is, because the order is necessary to prevent prejudice to the proper administration of justice and to protect their safety. As to the former, in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [21] Edelman J observed:
Any assessment of any prejudice to the administration of justice will require consideration of the interest in transparency and open justice. Section 37AE of the Federal Court of Australia Act provides that 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.
Given the reliance by both parties on the ELA18 judgment it is convenient to set out that decision in more detail. As I have already observed it concerned three applications: ELA18, an application for leave to appeal from a decision of a judge of this Court; EEZ18, an application for an extension of time in which to seek leave to appeal and leave to appeal from an interlocutory decision of a judge of this Court; and BBE15, an appeal from a decision of a single judge of this Court. Of those applications, only ELA18 and EEZ18 are relevant to this proceeding.
ELA18 and EEZ18 related to decisions of the Authority refusing the grant of a Safe Haven Enterprise Visa to the respective appellants. In each proceeding an application for review of the Authority’s decision to the Circuit Court, and subsequent appeal to this Court, were dismissed. Following the unsuccessful appeal, the appellant in each proceeding filed interlocutory applications in this Court seeking suppression orders over parts of the judgments in this Court, which were dismissed. The appellant sought leave to appeal from those decisions to the Full Court.
Justice Flick concluded that the Full Court lacked jurisdiction to entertain the appeal in either proceeding but went on to consider how the applications would have been determined if the occasion to determine whether leave to appeal should be granted had arisen. In relation to ELA18, his Honour said at [108]-[109]:
[108]Given the serious consequences that could potentially be visited upon the Appellant by reason of “identifying information” being disclosed, it is respectfully considered that had the occasion arisen for an exercise of the judicial discretion to grant leave to appeal, that discretion would have been granted but for the following considerations:
•no submission had been advanced to the Federal Circuit Court as to the need for care to be exercised in publishing reasons for decision which disclosed “identifying information” contained within the materials available to that Court when undertaking its judicial review functions;
•the reasons for decision of the Federal Circuit Court which itself disclosed “identifying information” had been available and accessible to the public from about 4 February 2019;
•the reasons for decision of her Honour Justice Abraham which again disclosed much the same “identifying information” had been available from about 10 September 2019; and
•the Appellant took no real step to have the “identifying information” withheld – even on an interim basis – until (at the earliest) February 2020 when submissions were advanced to the High Court on the special leave application challenging the extent of the information that had been disclosed or (more formally) 17 June 2020 when the present Application for leave to appeal was filed annexing a proposed Notice of Appeal directed in part to the disclosure of “identifying information”.
In short:
•any prejudice suffered by the Appellant in having “identifying information” publicly available was a prejudice brought upon himself by reason of his failure to act more promptly.
[109]Furthermore, and even if it be the case – as it most probably is – that this Court could make an “appropriate” order under s 37AF(2) with respect to identified statements in the reasons for decision of a Judge of this Court, free of any consideration as to whether that Judge was exercising either original or appellate jurisdiction, it would not have done so in the present proceeding because:
•the making of such an order would not be “necessary to prevent prejudice to the administration of justice” or “necessary” to protect his “safety” (s 37AG(1)(a) and (c)) (cf. The Country Care Group Pty Ltd v Director of Public Prosecutions [2020] FCAFC 44 at [7]-[9], (2020) 376 ALR 652 at 656 per Allsop CJ, Wigney and Abraham JJ (“The Country Care Group”)) so long as the very same information as was sought to be suppressed remained publicly available by reason of the decision of the Federal Circuit Court.
His Honour made similar remarks at [122] in relation to EEZ18.
Justices Besanko and Perry generally agreed with Flick J and, in particular, agreed with his Honour’s remarks referred to above. However, at [1] their Honours cautioned:
… whilst we have no difficulty with the proposition that judges should avoid, as far as possible, needlessly disclosing personal information that may identify the appellant in a case to which s 91X of the Migration Act 1958 (Cth) applies, it seems to us far more contestable to say (if it is being said) that a judge should avoid referring to information that is part of his or her reasoning in the normal course. Secondly, we are not presently convinced that there is any obligation on a judge (in many cases unassisted by the parties) with respect to information which “falls short” of, in the sense of does not satisfy, the ground in s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) of “information tending to reveal the identity of or otherwise concerning any party to … a proceeding”. Finally, and relatedly, whilst judges should be mindful of the possibility of information being collated in a way that identifies the appellant, it should at the same time be recognised that there are endless ways information might be collated and the vital piece of the puzzle might differ from one case to another. For example, the vital piece in one case might be the precise date of arrival in Australia, whilst in another because of other information, the year of arrival might be enough. A fear that information may be collated in a particular way (unknown to the Judge) should not inhibit the provision of reasons which clearly expose the essence of the judge’s reasoning process.
CONSIDERATION
As a preliminary matter, it is convenient to consider the relief sought in the Amended Application. In my view the relief sought in paras i-iv, vi and vii has no utility given the basis for the application. By those prayers for relief (see [5] above) the appellants seek to be assigned a new pseudonym, for the proceeding to be assigned a new proceeding number, for the Judgment to be published under the new proceeding number and using the new pseudonym and for all material disclosing the current pseudonyms and proceeding number to be suppressed. Orders of that nature have been made where there has been a breach of s 91X of the Migration Act such that the actual name of the appellant or appellant can be traced to his or her pseudonym: see for example BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586 where the appellant made an application on the basis that his name had been mistakenly disclosed on the Commonwealth Courts Portal.
That is not the case here. Despite having made written submissions to the contrary, the solicitor for the appellants informed the Court that there has been no disclosure of the appellants’ names on the Commonwealth Courts Portal and, accordingly, no breach of s 91X of the Migration Act in relation to the appellants. Accordingly, the appellants have no basis on which they can seek the relief sought in paras i-iv, vi and vii of the Amended Application.
As the solicitor for the appellants appeared to accept, the appellants in fact seek an order in the form of para v of the Amended Application. That is, that their identifying personal details be redacted from the published version of the Judgment. The Amended Application does not identify the personal details that the appellants seek to have redacted in the Judgment. When I raised that with the solicitor for the appellants, he indicated that the details which the appellants seek to have redacted are those which the first appellant refers to in his affidavit recorded at [15(1)] above.
In summary, the appellants contend that they are entitled to the relief sought in para v of the Amended Application because it is possible, having regard to the details in the Judgment, to identify the appellants and, in particular, the first appellant. The question for the Court is whether a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice or to protect the safety of, in this case, the appellants. As set out above, the word “necessary” is a strong word and the appellants bear the heavy onus of persuading the Court to make the order. In my view, the appellants have failed to discharge that onus and the order sought by the appellants is not necessary either to prevent prejudice to the proper administration of justice or to protect the appellants’ safety. My reasons follow.
First, upon considering the specific aspects of the Judgment about which the appellants complain, it is not apparent that those matters are capable of revealing the appellants’ identities. The details included in the Judgment which cause the appellants to fear for their safety, set out at [43] above, are, as the Minister submits, general matters and do not reveal facts about any of the appellants with a sufficient degree of specificity to enable anybody to identify them. For example, that the first appellant comes from a particular town in Sri Lanka, of itself, could not enable his identification. Nor could that fact coupled with the fact of his inter-caste marriage do so.
The appellants also submitted that the first appellant could be identified because the Judgment discloses that he worked in an international de-mining company. The appellants submit that the first appellant’s role with the de-mining company puts him at suspicion of provision of explosives to the LTTE. That claim was not made previously by the appellants or considered by the Authority and is not a claim that ought to be considered at this stage of the proceeding. In any event, I do not accept that the first appellant is identifiable because the Authority accepted that he worked for an international de-mining company. Once again, that finding is one of such generality that the appellants could not be identifiable on that basis. The document put into evidence by Mr Taylor (see [16] above) does not persuade me to the contrary.
Secondly, even if that was not so and the appellants were capable of being identified from the matters included in the Judgment, I would not make the order sought in the Amended Application because of the appellants’ disentitling conduct, which is analogous to the conduct of the appellants in ELA18 and EEZ18 (see [37]-[38] above). In particular:
(1)the appellants rested on their rights and took no steps to have the information which is said to identify them withheld between the publication of the Judgment and the filing of the Interlocutory Application on 2 October 2020, some 15 months after publication of the Judgment;
(2)neither at the time of filing of the Interlocutory Application or subsequently have the appellants sought an order suppressing the allegedly identifying material on an interim basis pursuant to s 37AI of the FCA Act;
(3)following the filing of the Interlocutory Application the appellants did not take expedient steps to have it addressed. Putting to one side the two-month period between the filing of the Interlocutory Application and the publication of the ELA18 judgment, the appellants did not take active steps after that time to bring the Interlocutory Application before the Court and have it determined. It was necessary for my Associate to inquire of the appellants in late January 2021, some four weeks after publication of ELA18 judgment, whether they still pressed the Interlocutory Application. The appellants did not respond to that inquiry until 21 April 2021 when my Associate once again wrote to the parties making the same enquiry. The Amended Application was filed some three weeks later; and
(4)finally, as at the time of the hearing, no orders had been sought to suppress material in the FCC Judgment which was published almost three years ago. A review of those reasons shows that it includes information which is said to be the basis for the orders sought in the Amended Application: see for example FCC Judgment at [2], [6], [8], [10], [13]-[14], [17] and [21].
These factors lead me to conclude that “any prejudice suffered by the appellant[s] in having ‘identifying information’ publicly available was a prejudice brought upon [themselves] by reason of [their] failure to act more promptly” such that the making of an order is not “necessary” to protect the administration of justice or the appellants’ safety: see ELA18 judgment at [108]-[109] (per Flick J).
CONCLUSION
For those reasons, the Amended Application should be dismissed. As they have been unsuccessful, the appellants should pay the first respondent’s costs.
I will make orders accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic. Associate:
Dated: 1 October 2021
SCHEDULE OF PARTIES
NSD1860 of 2018 Appellants
Fourth Appellant:
ETY17
Fifth Appellant:
ETZ17
- AGLC
- ETV17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2021] FCA 1179
- Case
- [2021] FCA 1179
- Decision Date
CaseChat Overview and Summary
The court considered whether the appellants' application for suppression orders was timely and whether the reasons for judgment already contained information that could lead to the identification of the appellants. Additionally, the court evaluated whether the appellants had taken sufficient steps to protect their identities before the reasons for judgment were published. The court also examined the risk of prejudice to the administration of justice and the safety of the appellants if their identities were disclosed.
The court found that the appellants' application was not timely and that the reasons for judgment did not contain sufficient information to reveal their identities. The court further determined that the appellants had not taken any steps to suppress the information before the reasons for judgment were published. As a result, the court dismissed the application. The court concluded that the risk of prejudice to the administration of justice and the safety of the appellants was not sufficient to warrant the making of suppression orders in these circumstances.
The court dismissed the appellants’ amended interlocutory application filed on 14 May 2021 and ordered that the appellants pay the first respondent’s costs as agreed or taxed. This decision underscores the importance of timely action to protect personal information and the limitations on making suppression orders after the publication of reasons for judgment.
Orders
Orders of the court
1. The appellants’ amended interlocutory application filed on 14 May 2021 be dismissed.
2. The appellants pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Amended Application seeks near-identical relief to the Interlocutory Application, save for the following amendment to para 6:vi.The publication or disclosure of the 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 prevent prejudice to the proper administration of justice; and to protect the safety of the appellants.(Underlining in original.) The Amended Application also includes a number of “Grounds for Application”, though they may be better described as submissions, as follows (as written, underlining omitted):1.The appellants safety has been put at significant and serious risk because of the publication of their claims against Sri Lanka published together with information readily capable of being used to identify them.2.The first appellant’s claim, which was accepted by the IAA, that he was involved with the LTTE, in combination with the existing suspicion of the Sri Lankan authorities of him as a member of the PSG of deminers suspected of hiding weapons for the LTTE, puts him at risk of very serious and significant harm.3.There is utility in making the suppression orders in that it would mitigate the risks to the appellants; hence satisfying the criteria under the Federal Court Act s37AG 1 (a) the order is necessary to prevent prejudice to the proper administration of justice; or in the alternative (c) the order is necessary to protect the safety of any person;4.If on the contrary the Court finds that the risk to the appellants could not be mitigated, in that case, the case is made in extremis for the making of suppression orders on the alternative ground in the Federal Court Act s37AG 1 (a) the order is necessary to prevent prejudice to the proper administration of justice;5.The Appellant relies on the authorities of NSD702/2020 EOC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor: and WAD33/202 ALF21 & ANOR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [16 February 2021], in each of which case an application for suppression orders was granted on the basis of s.37AG(1)(a) that it was necessary to prevent prejudice to the administration of justice, as a result of a publication of identifying information; The appellants rely on two affidavits: the first sworn by the first appellant on 30 September 2020; and the second signed by Mr Taylor on 29 April 2021. In his affidavit the first appellant deposes that:(1)he and his wife fear for their safety as a result of the publication of his claims in relation to torture by the CID in January 2009, together with their personal details including their town of origin, their caste, problems with their inter-caste marriage, the status of their step-children, date of relocation, family history with the LTTE and his claims;(2)all of these facts, which were accepted by the Authority, are published by the Court and so are available from the internet for the Sri Lankan authorities;(3)the Sri Lankan authorities monitor the Sri Lankan refugee diaspora and he believes this would include monitoring judgments of this Court; (4)his claims of torture by the CID in January 2009, which were accepted by the Australian government and published on the internet, are very serious allegations to have made against the Sri Lankan government because it is a very serious crime; and(5)he fears retribution by the Sri Lankan authorities and, as a result, requests the Court to remove the Judgment from the internet to reduce the risk of harm to him from this incident.