Lee and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 84

Lee and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 84 (5 February 2019)

Division:                  GENERAL DIVISION

File Number:           2018/3984

Re:Poh Kait Lee  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:05 February 2019

Place:Sydney

The Tribunal declines to make a confidentiality order under section 35 of the AdministrativeAppeals Tribunal Act (Cth).

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Senior Member Linda Kirk

CATCHWORDS

PRACTICE AND PROCEDURE – application for confidentiality order by applicant – suppression of name of applicant – applicant concerned about personal and professional reputation – the Tribunal is not satisfied that there are cogent reasons to depart from the norm of the publicity of Tribunal proceedings in the circumstances of this case –request for proposed confidentiality order declined by the Tribunal.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)
Corporations Act (Cth)

CASES

Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185

Australian Securities & Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130

Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397

JWTT and Commissioner of Taxation [2017] AATA 1612

Panganiban v Australian Securities & Investments Commission [2016] AATA 703

Paul and Minister for Immigration and Citizenship [2011] AATA 831

Poidevin and Australian Securities and Investments Commission [2018] AATA 124

REASONS FOR DECISION

Senior Member Linda Kirk

5 February 2019

BACKGROUND AND REVIEW APPLICATION

1. On 17 July 2018, Mr Poh Kait Lee (‘the Applicant’) lodged an application for review of the Respondent’s decision of the same date to refuse to grant him citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (‘the Reviewable Decision’).

2. In an email dated 10 September 2018 the Applicant requested that a confidentiality order be made pursuant to section 35 Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) so that his name appear only as Lee in hearing listings and in the Tribunal’s decision. In an email to the Tribunal dated 21 September 2018 the Respondent notified its opposition to the confidentiality order.

3. The Tribunal held an interlocutory hearing on 25 October 2018 to hear arguments in relation to the application for a confidentiality order. Both parties appeared by teleconference.

   SUBMISSIONS

   Applicant

4. In emails to the Tribunal received on 7 and 10 September 2018 the Applicant provided reasons for his request for a confidentiality order.  He wishes for his name to appear as Lee in hearing listings and in the Tribunal’s decision due to his role as the public face of Malaysian Airlines and Air Canada in Australia, and the significant commercial dealings of these companies locally.  His review application before the Tribunal may potentially affect his current and future business.

5. In an email received by the Tribunal on 21 September 2018 the Applicant provided further reasons for his application for a confidentiality order.  He stated that in the aftermath following MH370, the company was defamed but legal action was not pursued for fear of commercial backlash from consumers and business partners.  He fears that a similar backlash will result from his review application before the Tribunal.  He currently holds a power of attorney and executes legally binding contracts for the companies worth tens of millions of dollars.  His perceived reputation is crucial in commercial dealings.  Any information about his legal actions or hearings will potentially impact his commercial dealings.

6. At the hearing, the Applicant told the Tribunal that he is the ‘public face and the voice’ of both Malaysian Airlines and Air Canada.  He represents these companies publicly and is regularly interviewed by the media in relation to their activities in the region.  He holds the power of attorney for the companies when he represents them commercially in Australia and the Asia Pacific. Some of these contracts are worth more than $200 million. In addition, the University of South Australia of which he is a MBA, International Business graduate, see him as a role model for their undergraduates.  The credibility and reputation that he has built over the years will be negatively impacted if it is known that he is involved in legal proceedings.  His belief that there will be commercial repercussions is based on his past experiences handling the tragic incidents surrounding flights MH370 and MH17.  The company instructed him to take legal action for defamation against some individuals and organisations. After receiving legal advice, it was decided not to pursue this action due to concerns about possible commercial backlash from consumers and business partners which he has built so successfully.  He is concerned about the impact of the review on his reputation and credibility in Australia and where the businesses operate, commercial losses for the companies, as well as economic losses to the country if there are any repercussions from public knowledge of him having a legal case with the Department.

   Respondent

7. In an email received by the Tribunal on 21 September 2018 the Respondent outlined its opposition to the confidentiality order on the grounds that the Applicant had not particularised how his ‘current and future business’ may be affected should his full name be publicised.  It argued that the evidence as presented did not justify a departure from the presumption that proceedings before the Tribunal be held in public.

8. In its submissions at the hearing, the Respondent argued that the starting point in section 35 is that hearings are held in public and that evidence in the matter is open to the public. The Respondent referred to relevant authorities in relation to the making of confidentiality orders and argued that apprehended reputational harm generally will not suffice to provide an appropriate basis for the exercise by the Tribunal of its section 35 powers. The Respondent further argued that public confidence in the system and the discouragement of perjury are important considerations in determining requests for the suppression of identity.

9. The Respondent submitted that in the Applicant’s review application, the issues for consideration by the Tribunal do not involve any character or prejudicial information being revealed about the Applicant.  Further, the Applicant’s arguments in relation to prejudice to him from publicity are far weaker than those that have been rejected in similar circumstances.  His arguments in relation to reputational harm are not apparent in a review that involves whether or not he is engaged in the type of activity that requires regular travel abroad, and in so far as relevant, it is weak as a consideration.  The transparency element and discouragement of perjury are important considerations in a review such as this that involves representations as to the Applicant’s role and responsibilities with the airlines, and this weighs against the making of a confidentiality order.

   RELEVANT LAW AND PRINCIPLES

10. The Tribunal’s review function generally involves a public hearing, the public availability of evidence, and the publication of Tribunal decisions and reasons: section 35(5) AAT Act. As the Tribunal observed in Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397 at [51], section 35 ‘gives effect to the basic principle that proceedings before [the] Tribunal are to be open and documents and other material lodged with the Tribunal in the course of a proceeding should also be available to the public.’ This principle is ‘the starting point in any analysis as to whether confidentiality or suppression orders should be made.’ at [51].

11. Despite this overriding principle, the Tribunal is empowered to make an order prohibiting or restricting the publication of the identity of a party or witness in a proceeding before the Tribunal: s 35(3) AAT Act. Whereas the Tribunal may make a confidentiality order under section 35(3), ‘the desirability of the publicity of Tribunal proceedings must be taken as the basis of the Tribunal’s consideration in determining any application to depart from the general statutory obligation requiring a public hearing (refer ss 35(1) & (5) of the AAT Act)’: Poidevin and Australian Securities and Investments Commission [2018] AATA 124 (‘Poidevin’) at [15].

12. In Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 (‘ASIC v AAT’), Downes and Jagot JJ emphasised (at [74]) that s 35(1) of the AAT Act establishes a ‘norm’ that proceedings before the Tribunal will be in public and when the Tribunal is considering the exercise of its powers to make a confidentiality order it is ‘required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect’. As they observed at [75] and [76]:

    75. Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.

    76. When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

13. As Deputy President McCabe emphasised in JWTT and Commissioner of Taxation [2017] AATA 1612 (‘JWTT’) at [16], section 35(5) makes clear ‘the importance which the Tribunal must attach to transparency in its processes.’ Such transparency ‘can come as an uncomfortable surprise to applicants and witnesses who assume they could deal with the Tribunal in the same way they dealt with the original decision-maker where privacy is the order of the day.’ [1] Confidentiality orders not only ‘force justice behind closed doors, which can undermine public confidence,’[2] they also undermine the normative role of the Tribunal. Tribunal decisions in individual cases are designed ‘to model behaviour that promotes the integrity and quality of government decision-making more generally.’[3] If the reasons for decision are not accessible, ‘[i]t is difficult to communicate lessons for future decision-makers.’ [4]

    [1] JWTT and Commissioner of Taxation [2017] AATA 1612 at [16] DP BJ McCabe.

    [2] Ibid at [16].

    [3] Ibid at [16].

    [4] Ibid at [16].

14. Sub-section 35(5) of the AAT Act requires the Tribunal to ‘pay due regard to any reasons in favour of giving such a direction, including ... the confidential nature (if applicable) of the information’. The sub-section does not specify what other considerations may be relevant to making a section 35 order. It is left to the Tribunal ‘to identify what is relevant in each case with the assistance of the parties. [The Tribunal] must then perform the balancing exercise required by the sub-section’: JWTT at [19].

15. As Senior Member Taylor observed in Panganiban v Australian Securities & Investments Commission [2016] AATA 703 (‘Panganiban’) at [12], reputational damage will rarely provide a persuasive ground for a confidentiality order:

    … mere apprehension about the potential for reputational harm directly resulting from the reviewable decision will usually not provide a persuasive basis for restricting the publicity of review proceedings.[5]

    [5] See further Dimitropoulos and Australian Securities and Investment Commission [2017] AATA 1513 at [75] and [78] SM Taylor.

16. This approach was endorsed by Deputy President Redfern in Poidevin at [17]:

    … Tribunal proceedings should be conducted openly and in public unless there are ‘sufficiently cogent reasons’ why this should not be the case. Reputational damage will generally not be enough and it is for the applicant to satisfy the Tribunal that there should be a departure from the ‘norm.’

    CONSIDERATION AND REASONS

17. The Tribunal has had regard to the principles outlined above in relation to the making of confidentiality orders and finds that there is no cogent reason in this case to depart from the norm of the publicity of Tribunal proceedings, including the names of parties to review applications. The Tribunal finds that the existence of the norm and the values it is intended to protect are factors that outweigh the considerations identified by the Applicant, namely the potential damage to his personal and professional reputation and possible commercial repercussions for the airlines by which he is employed arising from the publication of his name in the review proceedings.

18. In making this finding the Tribunal has had regard to the relevant authorities and finds that the potential for reputational or commercial damage to the Applicant or his employers from the disclosure of his name as a party to a review of a decision to refuse to grant him citizenship does not warrant the making of a confidentiality order.  The Tribunal notes that the significant risk of reputational harm to an individual of a banning order by ASIC has not provided grounds for the making of confidentiality orders by the Tribunal in Poidevin and Panganiban. It finds that the refusal of a citizenship application does not carry the same risk of reputational harm and therefore there is no persuasive ground for restricting the publication of the Applicant’s name in review proceedings.

19. The Tribunal further finds that the disclosure of the names of parties to Tribunal proceedings ‘enhances public confidence in the system of Commonwealth merits review by ensuring that it is conducted and seen to be conducted in a transparent and open manner.’ Paul and Minister for Immigration and Citizenship [2011] AATA 831 at [26]. This ‘openness principle is not generally trumped by personal privacy interests’ and accordingly the Tribunal is not satisfied that there are cogent reasons to depart from the norm of the publicity of Tribunal proceedings in the circumstances of this case.

20. The Tribunal, therefore, declines to make a confidentiality order under s 35 of the AAT Act.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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Associate

Dated: 5 February 2019

Date of hearing:	25 October 2018
Applicant:	In person
Solicitors for the Respondent:	Mr S Agnello