Kumar (formerly CWRG) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2022] FCA 1586

FEDERAL COURT OF AUSTRALIA

Kumar (formerly CWRG) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 1586

Appeal from:

CWRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2408

File number:

QUD 275 of 2021

Judgment of:

COLVIN J

Date of judgment:

22 December 2022

Legislation:

Migration Act 1958 (Cth) s 91X

Cases cited:

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6

CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382

Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

5

Date of hearing:

Determined on the papers

Counsel for the Applicant:

The Applicant did not appear

Counsel for the First Respondent:

The Respondent did not appear

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

QUD 275 of 2021

BETWEEN:

SUNITA KUMAR (FORMERLY CWRG)

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	22 DECEMBER 2022

THE COURT ORDERS THAT:

1.The name Sunita Kumar be substituted as the name of the applicant.

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

REASONS FOR JUDGMENT

COLVIN J:

1. The applicant brought proceedings in this Court seeking review of a decision of the Administrative Appeals Tribunal concerning the refusal of an application for a resident return visa by her son.  In the Tribunal pseudonyms were adopted for the applicant, her son and the applicant's father.  The use of those pseudonyms was continued in the course of proceedings in this Court.  On 21 November 2022, I delivered reasons refusing the application for review:  CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382. At the time, I indicated that the continuation of the use of the pseudonyms in those reasons was adopted as an interim measure only: at [109]. I said that I would provide for the parties to be afforded an opportunity to make written submissions as to whether there should be a continuation of their use.

2. At the time of delivery of my reasons I made the following orders as to the use of the pseudonyms:

   Within 21 days, each party do file any submissions of no more than 3 pages as to whether there should be a confidentiality order made in these proceedings and if so, in what terms, together with any affidavit in support.  If a party seeks to be heard orally on that question then the party shall so indicate in the submissions.

   Unless otherwise ordered, the question whether there should be any confidentiality order shall be determined on the papers.

3. No party has sought to file submissions. I note that the applicant has filed an appeal in respect of my decision in which the applicant is named. Section 91X of the Migration Act 1958 (Cth), which provides that the Court must not publish the name of a person in a proceeding which concerns protection visa claims, does not apply in the present case. There is no suggestion that the pseudonym is necessary to protect harm to any person: as to which, see the consideration of equivalent provisions by Nettle J in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 at [14]‑[15].

4. The power of the Court to permit the use of a pseudonym is based on the public interest in the administration of justice.  It is exercised on the basis that court proceedings are to be conducted openly and that courts will only depart from practices that give effect to principles of open justice where it is necessary to do so in the interests of justice:  Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Rares, Perry and Hespe JJ).

5. In the circumstances, as no basis for the continuation of the use of the pseudonyms has been demonstrated, I will make an order to bring the use of the pseudonym for the applicant in these proceedings to an end.  There being no order in place as to the use of the other pseudonyms in the proceedings and no reference to them in my earlier reasons it is simply sufficient to note that they should no longer be used.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:       22 December 2022