NAKH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 440

FEDERAL COURT OF AUSTRALIA

NAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 440

NAKH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1557 of 2003

ALLSOP J
6 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1557 of 2003

BETWEEN:	NAKH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	6 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.all persons who are not legal representatives of the Minister, court officials or the mother of the appellant, leave this courtroom and remain outside the court until the mother of the appellant has finished her evidence.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1557 of 2003

BETWEEN:	NAKH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	6 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Parliament of the Commonwealth passed amendments to the Migration Act 1958 (Cth), including section 91X of that Act.  This section deals with persons in the position of the appellant and the appellant's mother and father.  It forbids the High Court of Australia, the Federal Court of Australia or the Federal Magistrates Court from publishing, in electronic form or otherwise in relation to proceedings, the name of persons in the position of the appellant mother.  It does not prohibit or forbid any other person within the Commonwealth of Australia from doing that.  “Publish” is a word of wide content of meaning. 

2. This is a public courtroom; there are interested members of the public present.  I understand what may have lain behind the idea of the section, which was to prevent the possibility of unnecessary or inappropriate sur place claims being made by persons who had their applications refused but who then claimed that they had become publicly known.

3. That, no doubt, could have been dealt with by an appropriate provision requiring, in certain circumstances, confidentiality to be maintained in some respects should the relevant facts and circumstances such as the country of nationality require it.  Parliament however, has chosen to forbid courts exercising the judicial power of the Commonwealth from making any publication whatsoever of the name of these people. 

4. This prevents, in my view, my being able to identify the person in the witness box as the mother of the appellant without closing this Court and asking members of the public to leave.  I could suppress the transcript; but without the members of the public being excluded, the very acts of my asking the questions and obtaining answers would publish the name, not only of this person who is an applicant and appellant in her own right in other proceedings, but of her child who is the appellant.

5. It also makes calling the matter outside the Court a hollow exercise in many cases.  It leads to the identification of applicants in the Court by a court process using anonymous letters, which in relation to some applicants from some countries might lead them reasonably to question why an independent Court dealing with their matters so principally concerned with their individual characteristics is treating them in this fashion. 

6. I am bound to treat the provision as Constitutionally valid in the absence of argument so I order that all persons who are not legal representatives of the Minister, court officials or the mother of the appellant, leave this courtroom and I will have the Court closed until this lady has finished her evidence.  My purpose for giving these reasons is to explain to those members of the public who are present why they are being ordered to leave the courtroom of a Court exercising the judicial power of the Commonwealth.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            16 April 2004

The appellant appeared by her next friend who was assisted by an interpreter.
Counsel for the Respondent:	Ms R François
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 April 2004
Date of Judgment:	6 April 2004