FNT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 217

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FNT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 217   

File number(s):

MLG 2764 of 2017

Judgment of:

JUDGE EGAN

Date of judgment:

29 March 2022

Catchwords:

 MIGRATION – requirement that matter be heard by a different Judge after Presiding Judge viewed contents of confidential exhibit – order accordingly  

Legislation:

Federal Circuit and Family Court of Australia Act 2021

(Cth) ss. 231 and 232.   

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

Division:

Division 2 General Federal Law

Number of paragraphs:

11

Date of last submission/s:

25 March 2022

Date of hearing:

25 March 2022

Place:

Brisbane

Counsel for the Applicant:

Mr A Krohn

Solicitor for the Applicant:

AUM Lawyers

Counsel for the First Respondent:

Mr J Byrnes

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 2764 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FNT17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	29 MARCH 2022

IT IS ORDERED THAT

1.The matter be heard and determined by a different Judge.

2.The confidential annexure marked TAY-3 sealed in an envelope remain confidential and not be removed from its envelope unless by order of a Judge of this Court.

3.The costs of and incidental to the hearing before the Court on 25 March 2022 be reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Egan

Introduction

1. The applicant is a citizen of the Independent State of Papua New Guinea whose application for a Protection Visa was refused by a delegate of the Minister on 3 July 2015.

2. The applicant appeared before the Administrative Appeals Tribunal (‘the Tribunal’) on 25 May 2017, to give evidence and present arguments, in respect of the review of the decision of the delegate. The applicant was represented by his registered migration agent at the time of the Tribunal hearing.

3. Before the Court was an Amended Application for Review filed on 11 February 2022, which application sought review of the decision of the Tribunal made on 13 November 2017 affirming the decision of the delegate.

4. Ancillary to considerations relating to that Amended Application for Review was the question as to whether a confidential exhibit marked TAY-3 to the affidavit of one Taylor Anthony Young filed on 1 March 2022 ought to be the subject of a suppression and non-publication order. That matter had been first raised orally with the Court by Counsel for the first respondent on 9 March 2022 in circumstances where no application in a case, or any supporting affidavit material, had been filed on behalf of the first respondent in support of such application. The Court was unprepared to consider making any suppression order in the absence of such application in a case and supporting affidavit material being filed. The Court expressed the view that principles of open justice ought not to be circumvented absent good reason being established, by persuasive evidence, for doing so. The matter was accordingly adjourned.

5. On 11 March 2022, the first respondent filed an application in a case asking for the making of a suppression and non-publication order in respect of TAY-3 pursuant to the provisions of s. 231(1)(a) and (c) and s. 232 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Those sections respectively provided as follows:

   “231 Grounds for Making an order

   (1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:

   (a)    the order is necessary to prevent prejudice to the proper administration of justice;

   (b)    the order is necessary to protect the safety of any person

   …

   232 Procedure for making an order

   (1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on its own initiative or on the application of:

   (a)    a party to the proceeding concerned; or

   (b)    any other person considered by the Court to have a sufficient interest in the making of the order.

   (2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non-publication order:

   (a)    the applicant for the order;

   (b)    a party to the proceeding concerned;

   (c)    the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

   (d)    a news publisher;

   (e)    any other person who, in the Court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

   (3)A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.

   (4)A suppression order or non-publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.

   (5)A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.”

6. At the commencement of the hearing, Counsel for each of the applicant and the first respondent indicated that Counsel for the applicant had been provided with a copy of TAY-3 on “an undertaking” – presumably an undertaking to the effect that the contents of TAY-3 would not be disclosed. It was then indicated by Counsel that they had conferred, and that Counsel for the applicant had intended to make submissions about TAY-3 without disclosing its content. After some discussion with Counsel, Counsel were asked by the Court whether it was appropriate for the Court to look at TAY-3 so as to satisfy itself that it was appropriate for any suppression order to be made. There was no dissent to that course of conduct being undertaken by the Court.

7. Prior to examining TAY-3, it had been brought to the attention of both Counsel that I had practiced as Overseas Counsel in Papua New Guinea prior to my appointment as a Judge, and that though I did not remember meeting the applicant, or being privy to any of his particular circumstances, it was possible that I had done so. Upon examining the contents of TAY-3, the Court recognised that there was a part of such document about which the Court may have had some earlier third-party knowledge by reason of prior PNG practice. In such circumstances, it was indicated to both Counsel that the Court was of the view that it would be improper for the Court to continue to be seized of the matter.

8. The Court is of the view that it ought not to continue to hear the matter, either on the basis that it could be that a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question before the Court by reason of some prior possible knowledge of, and about, the applicant, or alternatively, that the Court could in some way be perceived to be conflicted by reason of such possible knowledge. [1]

   [1]           Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow

9. The matter will be adjourned for hearing before another Judge. It is recommended that Counsel carefully formulate the basis upon which any future submissions about the contents of TAY-3 will be made by each of them.

10. The parties are advised that the Court has ensured that the envelope in which TAY-3 has been replaced has been stapled and taped such that it will remain unopened unless by another Judge of this Court, or otherwise by an order of a Court.

11. It is so ordered

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       29 March 2022

            and Hayne JJ.