LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2419
•22 July 2020
LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2419 (22 July 2020)
Division:GENERAL DIVISION
File Number(s):2020/0544
Re:LSNZ
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:22 July 2020
Place:Brisbane
Pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal DIRECTS, until further Order that:
1.the Applicant’s name is to be replaced with the pseudonym “LSNZ”;
2.the Hearing shall take place in private and only the following persons may be present:
(i)the parties and their representatives;
(ii)any person whom either party proposes to call as a witness at the Hearing;
(iii)Members and staff of the Tribunal; and
(iv)the staff of the Tribunal’s recording and transcription provider.
3.the publication of the names and addresses of the Applicant and any witnesses appearing before the Tribunal is prohibited.
............................[SGD]............................................
Member D K Grigg
CATCHWORDS
PRACTICE AND PROCEDURE – Confidentiality Order – potential impact on Applicant’s family –– Confidentiality Order Granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)Criminal Code Act 1899 (Qld)
CASES
Le and Secretary, Department of Education, Science and Training [2006] AATA 208
Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247
PZJK and Department of Immigration and Citizenship [2012] AATA 367
R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766
The applicant (PMYL) and Anor and Minister for Immigration and Border Protection [2014] AATA 148
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690WVKC and Minister for Immigration and Citizenship [2013] AATA 393
SECONDARY MATERIALS
International Covenant on Civil and Political Rights (ICCPR) 16 December 1966
REASONS FOR DECISION
Member D K Grigg
22 July 2020
INTRODUCTION
The Applicant seeks an order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) restricting the publication of the Applicant’s name and details.
BACKGROUND
The Applicant is seeking a review of the decision of a delegate of the Respondent made on 16 January 2020 to refuse the grant of Australian citizenship by conferral, pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The basis for the refusal was that the Respondent considers the Applicant to be not of good character for the purposes of Section 21(2)(h) of the Citizenship Act. The primary concern of the Respondent centres around a conviction dated 23 September 2005. The Applicant was charged with crimes under sections 218A(1)(a) and 218A(1)(b) of the Criminal Code (Qld). Pursuant to section 218A(1)(a) and 218A(1)(b) of the Criminal Code, a person who:
(a) by threats or intimidation of any kind, procures a person to engage in a sexual act, either in Queensland or elsewhere; or
(b) by a false pretence, procures a person to engage in asexual act, either in Queensland or elsewhere;
commits a crime.
Maximum penalty—imprisonment for 14 years
The crime committed by the Applicant was in relation to a purported minor of 14 years of age. The minor turned out to be an undercover police officer.
The Applicant pled guilty to the charges and was sentenced in September 2005 in the Brisbane District Court to:[1]
(b)18 months imprisonment wholly suspended for four years for using the internet to expose indecent matter to a child under 16; and
(c)240 hours of community service for using the internet to procure children under 16.
[1] T Documents, T8, pages 55-64, Notification of refusal of an application for Australian citizenship by conferral dated 16 January 2020.
That conviction is now a “spent conviction” in that the Applicant was not sentenced to imprisonment for the offence and the waiting period (being the period of 10 years beginning on the day on which he was convicted) for the offence has ended (section 85ZM, Crimes Act 1914 (Cth) (“Crimes Act”)). Although spent, the conviction was disclosable to the Respondent and to the Tribunal pursuant to section 85ZZH of the Crimes Act which provides relevantly that the offence must be disclosed to:
(c) a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;
(d) a person who makes a decision under the Migration Act 1958 , the Australian Citizenship Act 2007 , or the Immigration Act 1980 of the Territory of Norfolk Island, for the purpose of making that decision
The Applicant seeks orders which would keep the Applicant’s identity confidential.
The Respondent opposes the Applicant’s request for a confidentiality order.
Prior to the interlocutory hearing held on 26 June 2020, the parties exchanged respective outlines of submissions.
LEGAL PRINCIPLES – CONFIDENTIALITY ORDERS
The power of the Tribunal to make an order restricting the publication or disclosure of a document derives from section 35 of the AAT Act. Section 35(4) of the AAT Act provides:
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
Relevance of procedural fairness
In considering whether to make a confidentiality order under section 35 of the AAT Act, the Tribunal is, pursuant to section 35(5), to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
Further, “the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information”: section 35(5), AAT Act.
Section 39 of the AAT Act enshrines the general principles of procedural fairness and natural justice that all parties are entitled to have a reasonable opportunity to present their case and inspect documents. It is important to note however, that section 39 is subject to, among other things, any order that is made under section 35.
Despite the public interest in maintaining procedural fairness, “a public interest in confidentiality”[2] may also arise. Brennan J in Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (“Pochi”), at 273, referred to Lord Denning MR’s decision in R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 where he said (at 782):
When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice
[2] Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 (“Pochi”), at 273, per Brennan J.
CONTENTIONS AND CONSIDERATION
The procedure to be followed and the conduct of a hearing is a matter for the Tribunal: section 33(1), AAT Act.
The starting point for the conduct of hearings, is that “it is desirable that hearings of proceedings before the Tribunal should be held in public” section 35(5)(a), AAT Act.
Justice needs to be transparent and each party is entitled to procedural fairness. Despite this principle, the Act also makes provision for a hearing to be conducted in private or a party’s identity to be kept confidential, if there are sufficient reasons for doing so. Section 35 of the AAT Act specifically provides that the Tribunal may, relevantly:
·give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal;
·give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
·give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
In deciding whether an order is desirable under section 35, the Tribunal must have regard to the matters set out in section 35(3):
"In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."
The Applicant raised four grounds in support of his application for confidentiality:
(a)The application of Division 3 of Part VIIC of the Crimes Act to spent convictions and the contention that the Crimes Act, because of its nature and what it is trying to achieve with respect to spent convictions, requires that the Applicant’s name should not be identified. The Applicant contended that he “has disclosed his spent conviction for the purposes of Section 85ZZH (c) and (d) of the Act. Thereafter though, he is entitled to the privacy afforded to him as intended under the spent convictions regime”;
(b)Article 14 of the International Covenant on Civil and Political Rights (ICCPR) 16 December 1966, ratified by the Australian Government, which provides that, among other things:
The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children
(c)the impact on the Applicant if he is identified in the decision; and
(d)the impact on the Applicant’s family if the Applicant is identified in the decision.
The Tribunal considers the fourth argument to be the most compelling. The Applicant has two children, aged 12 and 7, who are not aware of their father’s conviction.
The Respondent argued that any damage to the Applicant’s family was speculative. In written submissions the Respondent contended that the Applicant has “not identified any specific prejudice to … his family, other than a speculation that there would be harm to their reputation”.
The Tribunal agrees with the Counsel for the Applicant, Mr See, that an ordinary person would appreciate “how devastating it would be, particularly to the two daughters of the applicant…should they become aware” of their father’s conviction. In addition, it does not take much of an imagination to know that if other children at the daughters’ school became aware, that this may also impact on the children negatively.
In Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217; (2005) 147 FCR 243 (“X”) the Full Court of the Federal Court suppressed publication of X’s name in circumstances in which he had been refused a visa on the basis that he had not met the criterion that he not be a person who had a disease or condition likely to require healthcare or community services. X, who was HIV positive, had a surname that was unusual in Australia and would be readily identifiable at least in the expatriate community of his fellow nationals. Stigma would attach to his wife and children. Heerey and Weinberg JJ said:
“[21] Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice. The importance of justice being done in public has been affirmed time and again ... Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often more hurtful and embarrassing the proceeding the more newsworthy the report of it.
[22] But there is a feature of the present case which takes it out of the ordinary run. There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma. An analogy might be found in the prohibition of the names of blackmail victims. If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.”
As in X, the Applicant here has a surname that is unusual in Australia and would be easily recognisable and identifiable in the community. The Tribunal is concerned about the stigma which would attach to the Applicant’s wife and young children, particularly in circumstances where the children are very young and are not aware of the Applicant’s past conduct. The Tribunal’s decisions “are now readily available from any computer connected to the internet.”[3]
[3] Le and Secretary, Department of Education, Science and Training [2006] AATA 208 at [32].
There will be no impact on the principle of open justice by making the proposed order. The decision will be available for the public to consider, it is only the name of the Applicant that will not be identified.
In Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 which concerned the cancellation of the applicant’s visa on character grounds, Justice Downes, President and Senior Member McCabe (as they then were) ordered that a transcript of the hearing was not to be published to any person apart from the respondent and its legal advisers and the applicant’s representative; and documents in the applicant’s file (including any documents provided under summons) must not be published to any person apart from the respondent and its legal advisers and the applicant’s representative. The Applicant was not identified because some of the evidence was sensitive and concerned children. The Tribunal noted that “matters that involve allegations in relation to children raise special concerns. The sensitivity of those matters is underlined by the fact legislation in each state and territory places limits on the disclosure of certain allegations. The Tribunal must be conscious of its responsibility to children in cases where their interests might be affected. We are satisfied it is appropriate to make the orders set out above under s 35(2) given the confidential nature of the material relating to the children that was discussed at the hearing and which is spread throughout the Tribunal’s file.” (at [45])
In PZJK and Department of Immigration and Citizenship [2012] AATA 367, Deputy President S A Forgie decided to grant a confidentiality similar to that applied for here on the basis that undue damage and distress might be placed on the applicant’s family. Deputy President S A Forgie explained:
159. Public hearings of migration applications are no less important than any other. The public is entitled to know the basis on which decision are made and to make its own assessment of consistency of administrative decision-making. It is true that the parties may suffer embarrassment from time to time as a result but that does not justify an order restricting access to evidentiary material under s 35. This is not a case in which I consider any embarrassment to PZJK to have any relevance. What is relevant and what has persuaded me to make a confidentiality order restricting access to the names and other identifying material relating to PZJK, her family and those with whom she has associated to the parties, members and officers of the Tribunal and staff of Auscript is the damage that will be caused to her family and associates. They are not the persons who have made the application but their relationships are likely to suffer. I refer, for example, to P’s relationship with his family who know nothing of PZJK’s background and who are not likely to respond to it well were they to know. That will harm PZJK but, more importantly in this context, it is likely to cause P great distress and to place him at odds with his family. That is collateral damage that is not intended by the system of merits review.
160. It seems to me that I can limit the unintended damage to PZJK’s partner and family and those with whom she has associated and yet ensure that the public can see the merits review process and its outcome by restricting disclosure of the relevant names and identifying material. Although it is always a challenge to write reasons in that way, that seems to me to be a better course than writing my reasons with identifying material and simply making an order restricting access to them.
In WVKC and Minister for Immigration and Citizenship [2013] AATA 393 the Tribunal also made an order protecting the identity of the applicant in order to protect the identity of children. That case concerned a visa cancellation and refusal on the grounds that the applicant was not of good character considering his conviction of nine sex offences against children.
It should be noted, and as can be seen in the examples given above, it is not uncommon for this Tribunal to consider the interests of children in determining whether to grant confidentiality orders.[4]
[4] See The applicant (PMYL) and Anor and Minister for Immigration and Border Protection [2014] AATA 148.
The Tribunal finds it appropriate to make an order to prevent the publication of the name of the applicant to protect the identity of his children. As in the cases referred to above, the two daughters of the Applicant ought not to be collateral damage of the Applicant’s past conviction.
DECISION
The Tribunal directs, pursuant to section 35(3) the Administrative Appeals Tribunal Act 1975 (Cth) that:
1. the Applicant’s name is to be replaced with the pseudonym “LSNZ”;
2. the Hearing shall take place in private and only the following persons may be present:
(i)the parties and their representatives;
(ii)any person whom either party proposes to call as a witness at the Hearing;
(iii)Members and staff of the Tribunal; and
(iv)the staff of the Tribunal’s recording and transcription provider
3. the publication of the names and addresses of the Applicant and any witnesses appearing before the Tribunal is prohibited.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
................................[SGD]........................................
Associate
Dated: 22 July 2020
Date(s) of hearing: 26 June 2020 Counsel for the Applicant: Mr Andrew See, by telephone Counsel for the Respondent: Mr Ashley Burgess, Sparke Helmore Lawyers, by telephone
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