Kadeh v Administrative Appeals Tribunal (No 2)

[2021] FCA 132

FEDERAL COURT OF AUSTRALIA

Kadeh v Administrative Appeals Tribunal (No 2) [2021] FCA 132

File number:

SAD 99 of 2020

Judgment of:

BESANKO J

Date of judgment:

26 February 2021

Catchwords:

PRACTICE AND PROCEDURE — application for suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) — whether suppression order should be made to avoid possible reputational damage to applicant — where potentially damaging information has been publically available online for over two years — suppression of applicant’s name is not necessary to prevent prejudice to the proper administration of justice — application refused

PRACTICE AND PROCEDURE — application for stay of decisions made by the respondents — where stay sought some two and a half years after the decision sought to be stayed — where the applicant has not put forward evidence demonstrating that he has an arguable case with respect to the two decisions that he challenges — application refused

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 44, 44A

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 45

Migration Act 1958 (Cth) s 303

Federal Court Rules 2011 (Cth) Div 33.2, r 33.13

Cases cited:

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68

Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164

C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70

Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438

CZP20 v Administrative Appeals Tribunal [2021] FCA 61

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

Minister for Home Affairs v Zadeh [2018] FCA 1452

Division:

General Division

Registry:

South Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

35

Date of hearing:

4 February 2021

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

The First Respondent entered a submitting notice, save as to costs

Counsel for the Third Respondent:

Mr N Swan

Solicitor for the Third Respondent:

Sparke Helmore Lawyers

ORDERS

SAD 99 of 2020

BETWEEN:

IMAD KADEH

Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MIGRATION AGENTS REGISTRATION AUTHORITY

Third Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The applicant’s application for a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) with respect to the use of his name in this proceeding be refused.

2.The name of the applicant in this proceeding be amended from CZP20 to Imad Kadeh and this proceeding be conducted by the applicant under his name.

3.The applicant’s Interlocutory application filed on 27 November 2020 for a stay of the decision made by the Migration Agents Registration Authority on 25 October 2018 be refused.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1. The applicant has made two interlocutory applications in this proceeding. First, he seeks an order that he be referred to in this proceeding as CZP20 and that his name not be published or disclosed to third parties unless authorised by the Court. Although the applicant did not identify the power he relies on, it seems that he is seeking an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act). Secondly, the applicant seeks an order from this Court staying the decision of the Migration Agents Registration Authority (MARA) on 25 October 2018 cancelling the applicant’s registration as a registered migration agent. That order is sought under s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). 

2. The substantive proceeding is an appeal on a question of law under s 44(1) of the AAT Act from two decisions made by the Administrative Appeals Tribunal (the Tribunal), being first, a decision under s 42A(2) to dismiss the applicant’s application for review by reason of his failure to appear and then second, a decision under s 42A(9) not to reinstate the applicant’s application for review upon an application for reinstatement made by him.

3. On 4 February 2021, I made the following orders, relevantly

   2The applicant has leave to file and serve within seven days such documents as are necessary under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth) (see Division 33.2 in particular) to apply for an extension of time within which to start an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) against decisions made by the Tribunal on 9 July 2020 and 28 October 2020 respectively.

   …

   4.The applicant file and serve, within 28 days, any further affidavit evidence with respect to the two decisions referred to in the Order 2.

   5.The third respondent file and serve, within 35 days, any affidavit evidence upon which it proposes to rely in relation to the two decisions in the Order 2.

   6Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), the Minister for Home Affairs be removed as a party to this proceeding.

   7Decision on the applicant’s application to use a pseudonym pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) be reserved.

   8Decision on the applicant’s Interlocutory application filed on 10 November 2020 be reserved.

4. Those orders followed my decision on that day that this Court did not have jurisdiction to consider a purported challenge by the applicant to the decision of MARA under s 303(1) of the Migration Act 1958 (Cth) to cancel his registration as a migration agent (CZP20 v Administrative Appeals Tribunal [2021] FCA 61).

5. In purported compliance with the order set out in paragraph 2 of the orders I made on 4 February 2021, the applicant filed an Amended Originating application for judicial review in which he challenges decisions of the Tribunal, but seeks prerogative relief by way of remedy. The applicant’s application does not comply with the order I made. The order I made gave the applicant leave to apply for an extension of time to start an appeal under s 44(2A) of the AAT Act against decisions made by the Tribunal on 9 July 2020 and 28 October 2020 respectively. The order I made refers to Div 33.2 of the Federal Court Rules 2011 (Cth) (the Rules). Rule 33.13 of the Rules addresses the requirements in relation to a person who wants to apply for an extension of time within which to start an appeal mentioned in s 44(2A) of the AAT Act.

6. The applicant will need leave to remedy this non-compliance, but, in my opinion, that should not delay consideration of his two interlocutory applications. 

   The use of a pseudonym

7. The applicant commenced this proceeding using a pseudonym.  In his Originating application for judicial review, he sought by way of interlocutory relief an order that he be referred to for all purposes connected with this proceeding as CZP20, and an order that his name not be published or disclosed to third parties unless authorised by the Court.

8. At case management hearings held on 11 September 2020, 10 November 2020, 14 December 2020 and 22 December 2020, I explained to the applicant, who appears in person, that he needed to put forward evidence in support of his application that his name be suppressed.  At a case management hearing I held on 27 January 2021, the applicant submitted that a suppression order should be made because the use of his name will result in reputational damage that would be detrimental to his potential future employment and his ability to support his family.  I granted the applicant leave to file any evidence he proposed to rely on in support of his application.

9. Prior to the case management hearing in this matter on 4 February 2021, the applicant purported to lodge an affidavit setting out evidence in support of his application for an order that he be permitted to use a pseudonym. It was not clear to me that the affidavit had been executed in accordance with s 45 of the Act and, at the case management hearing on 4 February 2021, I indicated to the applicant that I was prepared to accept the contents of the affidavit as submissions in support of his application for the use of a pseudonym or to adjourn the Court for a short time to allow the applicant to clarify the point if he is able. The applicant indicated that the option of relying on the contents of the affidavit as submissions in support of his application “should be fine” and that there was no need to adjourn to allow him time to clarify the position with respect to his affidavit.

10. After I accepted the contents of the affidavit as submissions in support of the applicant’s application for an order that he be permitted to use a pseudonym at the case management hearing, the applicant had the affidavit witnessed by a police officer and sent a copy of the affidavit directly to my chambers.  The applicant had not been granted leave to file the affidavit once properly executed as, at the case management hearing, he chose the option of having the contents of the document relied on as submissions.  This proceeding must proceed in an orderly fashion and in accordance with the orders of the Court.  Insofar as leave is sought to rely on the second affidavit, it is refused.

11. One week after the hearing, the applicant purported to file a further affidavit which deals with, in part at least, his application for an order that this proceeding proceed under a pseudonym.  The applicant has leave under paragraph 4 of the orders made on 4 February 2021 to file and serve within 28 days any further affidavit with respect to the two decisions referred to in the order in the second paragraph.  The affidavit may be received pursuant to that order, but not insofar as it addresses the present issue.

12. Having said this, and in order to avoid further costs being expended, I am prepared to proceed on the basis that, if necessary, the applicant will swear an affidavit deposing to the matters in his three “affidavits” relevant to the order the applicant seeks with respect to the use of a pseudonym.

13. The applicant’s case in support of a suppression order is that he works, and has worked since 2005, as an educational consultant in the education export industry and that that involves providing direct assistance to overseas students and their families to manage their student in Australia.  He believes that the publication of his name in this proceeding will destroy his business reputation and any potential employment, business contract or income and that he and his family will be seriously distressed if his name is published.  Furthermore, the use of a pseudonym will prevent humiliation to his family.  Finally, the applicant believes that his name should be suppressed to preserve his anonymity with respect to a freedom of information application.  He submits that the publication of his name will affect his family and “deter others from making use of the freedom of information Act 1982 (Cth)”.

14. In order to obtain the order he seeks, the applicant must satisfy the requirements of ss 37AE, 37AF and 37AG of the Act. Those sections are as follows:

    37AE  Safeguarding public interest in open justice

    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.

    37AFPower to make orders

    (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

    (b)       information that relates to a proceeding before the Court and is:

    (i)information that comprises evidence or information about evidence; or

    (ii)       information obtained by the process of discovery; or

    (iii)      information produced under a subpoena; or

    (iv)      information lodged with or filed in the Court.

    (2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

    37AGGrounds for making an order

    (1)The Court 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 prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

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

    (d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

15. As far as I can see, the order sought by the applicant is sought on the basis that it is necessary to prevent the publication of his name “to prevent prejudice to the proper administration of justice” (s 37AG(1)(a)).

16. In Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, the High Court considered the construction of the predecessor to s 37AG of the Act and made the following observations with respect to the word “necessary” (at [30]–[31]):

    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. [...]

    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

    (Citations omitted).

17. In oral submissions, MARA referred to C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 in which case the Full Court held that the onus of persuading the Court to make a suppression order is “a very heavy one” (Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 per Edelman J at [8]; Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 per Madgwick J at 442). In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 (at [30]), Foster J held that “[m]ere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice”.

18. The applicant refers to the approach of the Full Court in Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 in which case the Full Court dismissed a challenge to confidentiality orders made by the Tribunal. I am unable to see how the Full Court’s reasoning in that case supports the applicant’s application for a suppression order.

19. In oral submissions, the applicant said that, as a result of MARA’s decision, his “business has been blocked for two years” and he has been without income since 2018.

20. MARA relied on an affidavit of its solicitor, Samuel Mark Cummings, affirmed on 2 February 2021 (Mr Cummings’ affidavit).  Mr Cummings’ affidavit annexes screenshots of material that is available online via MARA’s website, and the website,

21. Annexure SMC1 is a screenshot of the webpage produced when a member of the public types the applicant’s name into the disciplinary decisions search box on MARA’s website. The screenshot shows that such a search provides one result, being MARA’s decision on 25 October 2018 to cancel the applicant’s registration as a migration agent.

22. Annexure SMC2 is a screenshot of a webpage providing the “Sanctioned agent detail” in relation to the applicant.

23. Annexure SMC3 is a copy of the PDF document of the decision record of MARA’s decision to cancel the applicant’s registration as a migration agent on 25 October 2018.  Mr Cummings deposes to the fact that annexure SMC3 is able to be accessed by clicking a link on the webpage that provides the “Sanctioned agent detail” (SMC2).

24. Annexure SMC4 is a screenshot of the webpage that can be accessed by searching the applicant’s name on the website.  The webpage shows two links to webpages that result from a search of the applicant’s name.

25. Annexure SMC5 is a copy of the Microsoft Word document of the Tribunal’s decision and reasons for decision dated 30 November 2018 with respect to the applicant’s applications for a stay order and a confidentiality order. Mr Cummings deposes to the fact that the SMC5 can be accessed via the link on the webpage at SMC4, “Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461 (30 November 2018)”.

26. MARA submits that, as evidenced by Mr Cummings’ affidavit, the applicant’s name and the details of findings made against him by MARA and the Tribunal are publically available information, “such that, in effect, the damage is already done”.

27. MARA’s submission that the submissions and material put forward by the applicant do not demonstrate that an order is “necessary” to prevent prejudice to the proper administration of justice is correct. The applicant’s interest in avoiding possible reputational damage, in circumstances where the potentially damaging information has been publically accessible for over two years, does not establish a case for an order under s 37AF of the Act.

28. The applicant’s application for a suppression order under s 37AF of the Act is refused. The name of the applicant in this proceeding is to be amended from CZP20 to Imad Kadeh and the proceeding is to be conducted under the applicant’s name.

    The application for a stay

29. The applicant’s Interlocutory application filed on 27 November 2020 seeks the following orders:

    1.Stay of the orders and or the decisions of the respondents until the appeal is heard and determined by the Court.

    2.Other orders that the Court might think fit and proper in the public interest.

30. At the case management hearing on 4 February 2021, I asked the applicant to identify the orders or decisions he was asking the Court to stay.  In response, the applicant identified the delegate’s decision of 25 October 2018 and “the AAT decision”.  When asked which of the Tribunal’s decisions he is asking the Court to stay, the applicant said he does not think the Tribunal “can do anything further” so he should focus on MARA’s decision.  The stay is sought with respect to MARA’s decision made on 25 October 2018.

31. Although, as I held in my previous reasons this Court does not have jurisdiction to grant constitutional writs with respect to MARA’s decision, MARA quite properly pointed out that I appear to have power to grant a stay pursuant to s 44A(2) of the AAT Act. That subsection provides as follows:

    (2)Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

    (a)       the decision of the Tribunal or a part of that decision; and

    (b)the decision to which the proceeding before the Tribunal related or a part of that decision;

    as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

1. MARA referred to the words at the end of s 44A(2), “as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal” and submits that a stay of its decision some two and a half years later, while its decision to cancel the applicant’s registration has been on foot, does not aid in securing the effectiveness of the hearing in this proceeding. Finally, MARA relies on the requirement that the applicant demonstrate an arguable case in relation to an appeal of the decisions in respect of which he seeks stay orders (Minister for Home Affairs v Zadeh [2018] FCA 1452 per Thawley J at [31]). The applicant has not put forward any evidence to this point that suggests that he has an arguable case with respect to the two decisions of the Tribunal which he challenges.

2. The reasons advanced by MARA are sufficient to support a conclusion that a stay should be refused. An additional reason would be, following the reasoning of the Tribunal on the application for a stay made to it, a lack of utility in that by reason of the operation of s 300(3) of the Migration Act, the applicant’s registration did not continue pursuant to s 300(4) of the Migration Act.

3. I am not satisfied that I should make an order for a stay and I dismiss the application.

   Conclusion

4. I will make the orders set out in paragraphs 28 and 34 above.  I will hear the parties as to the costs of the applications.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate:       

Dated:       26 February 2021