Re Dipangkear Paul and Minister for Immigration and Citizenship

[2011] AATA 831

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2693

GENERAL ADMINISTRATIVE DIVISION		)
Re		Dipangkear Paul

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date24 November 2011

PlaceSydney

Decision

1. The order made on 30 September 2011 prohibiting any further publication of the decision in Re Dipangkear Paul and Minister for Immigration and Citizenship [2011] AATA 663 is discharged.

2. Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) the following orders are made:

(i) The applicant’s wife is to be identified by the pseudonym “Ms X” in published reports of the decision in Re Dipangkear Paul and Minister for Immigration and Citizenship [2011] AATA 663.

(ii) The reference to the applicant’s sister-in-law’s town of residence is to be deleted from par [65] of published reports of the decision in Re Dipangkear Paul and Minister for Immigration and Citizenship [2011] AATA 663.

3. The above orders are not to come into effect until 10 days from the date of this Decision.

.....................[sgd].........................

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE – publication of reasons for decision - suppression order – suppression of name of applicant – suppression of name of witnesses – norm of publication established by s 35 of AAT Act - protection of privacy of family members – application granted in part

Administrative Appeals Tribunal Act 1975 (Cth) – ss 35, 43(2B), 43(3)

Migration Act 1958 (Cth) – ss 499, 501

Direction [no. 41] – Visa refusal and cancellation under s 501

Re Dipangkear Paul and Minister for Immigration and Citizenship [2011] AATA 663

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185

DNCW and Minister for Immigration and Citizenship (2010) 117 ALD 192; [2010] AATA 610

QX06/15 and Minister for Immigration and Multicultural Affairs [2006] AATA 927

SRMMMM and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 798

Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690

Re C and Australian Federal Police (1985) 8 ALD 587

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482

REASONS FOR DECISION

24 November 2011                 Senior Member A K Britton

1.      The Minister for Immigration and Citizenship has decided to cancel the applicant’s Australian visa.  On review by the Administrative Appeals Tribunal that decision was set aside and remitted to the Minister for re-consideration when the applicant has either completed a nominated rehabilitation program or prior to his release from custody, whichever comes first. Written reasons for that decision (the earlier decision) have been provided to the parties: Re Dipangkear Paul and Minister for Immigration and Citizenship [2011] AATA 663.

2. The applicant now applies for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), that his name and the names of two relatives be anonymised in any published reports of the earlier decision. Orders have been made restricting further publication of the earlier decision until this application has been determined.

3.      Apart from the experts, the only people identified by name in the earlier decision are the applicant, his wife and sister-in-law.

4. The applicant contends that the earlier decision contains information of a personal nature that if disclosed is potentially damaging to him and members of his family and for that reason an order under s 35 should be made. The Minister opposes that application and contends that the public interest in open justice should prevail over the applicant’s interests.

Applicable law

5. There is no argument that s 35 of the AAT Act confers on the Tribunal the power to make the order sought. The only issue is whether that power should be exercised. The relevant provisions of s 35 are as follows:

Hearings to be in public except in special circumstances

…

Public hearing

(1)  Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

…

Private hearing etc.

(2)  Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

…

(aa)  give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b)  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

…

(3)  In considering:

…

(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.

6.      In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, the Full Court set out the approach to be taken to the exercise of the power conferred by s 35 (at 148):

[W]e] think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised "sparingly". It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be "the basis" of the AAT’s consideration of adopting a different approach (in contrast, for example, to "a basis" for that consideration).

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.

The earlier decision

7.      To put the submissions made by the parties in context, it is necessary to sketch in some of the details of the earlier decision.

8. The trigger for the initiating application to the AAT was the decision made by the Minister under s 501 of the Migration Act 1958 (Cth) (the Act) to cancel the applicant’s visa. Where a visa holder does not pass the “character test” on account of, among other things, having a “substantial criminal record” the power to cancel his or her visa is enlivened. The applicant has a “substantial criminal record” on account of the custodial sentences imposed for his convictions for “Aggravated Sexual Assault” and “Aggravated Sexual Intercourse Without Consent”.

9. In determining whether the power to cancel a visa should be exercised, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied. The Direction lists four primary considerations and a number of other considerations that must be taken into account. The primary considerations are:

·the protection of the Australian community having regard to the seriousness and nature of the offending conduct and the risk that the conduct may be repeated;

·whether the visa holder was a minor when they began living in Australia;

·the length of time that the visa holder has been ordinarily resident in Australia; and

·the best interests of the child, assessed against  a non-exhaustive list of  factors.

10.Other considerations which must be taken into account, if relevant, include:

·the extent to which deportation would disrupt the visa holder’s family, business or other ties to the Australian community;

·the existence of any genuine marital relationship between the visa holder and an Australian citizen;

·the visa holder’s age and health including any special care or treatment needs;

·any links the visa holder might have to the country where they would be deported;

·the hardship likely to be caused to members of the visa holder’s family if they were to be deported, including whether immediate family members would be able to travel overseas to visit the visa holder and/or are in some way dependent on the visa holder for support; and

·the visa holder’s level of education and ability to advocate on their own behalf.

11.The earlier decision discussed in detail:

·the nature of the offences committed by the applicant;

·the opinion of expert witnesses who stated that the applicant had “problems with self-awareness” and minimised his involvement in the offences;

·the nature of the applicant’s relationship with his wife and son;

·the impact a return to Bangladesh would have on his wife’s mental and physical health;

·the impact migrating to Bangladesh would have on his young son;

·views held by the applicant’s wife about whether she would return to Bangladesh if he were to be deported.

Applicant’s reasons for seeking a suppression order 

12. The applicant contends that publication of the earlier decision will likely lead to prejudice against him and his family. He points out that it contains extensive information of a personal and sensitive nature about him and members of his family. He does not suggest that it was inappropriate for this information to be included in the earlier decision and acknowledges that the Direction instructs the Tribunal to address a number of matters of an intimate and personal nature. Furthermore, he accepts that the Tribunal is required to include in its written reasons for decision, findings on material questions of fact and references to the evidence or other material on which the findings are based (ss 43(2B) and 43(3) of the AAT Act).

13.     He contends that publication of the earlier decision will, or is likely to:

·jeopardise his ability to secure employment after his release from custody by disclosing the details of his criminal history;

·result in him being shunned by his family in Bangladesh by disclosing his criminal history;

·cause his wife significant personal embarrassment by disclosing information about her mental and physical health;

·cause his wife to be shunned by her family in Bangladesh because of her admission that she may not accompany him if he were to be deported; and

·put at risk the efforts of his sister-in-law, who gave character evidence in support of his substantive application, to assimilate into the Australian community. 

14.     The applicant contends that he will be especially affected by disclosure, because he is a member of an ethnic and religious minority, and as such is conspicuous within Australia.

15.     Finally, he asserts that despite not being named, the identity of his son could be ascertained from the earlier decision. He asserts that as a consequence, the child is likely to be bullied and ridiculed by his peers.

Electronic publication

16.     While the orders sought extend to all forms of publication, the applicant’s primary concern is with the electronic publication of the earlier decision.  As he points out, decisions of the AAT are routinely published on the Australasian Legal Information Institute website, which provides free internet access to judgements and decisions of most courts and tribunals in Australia.

17.     He contends that while the criminal proceedings that ultimately gave rise to the deportation order were conducted in open court, limited details about those proceedings are at present readily available in the public domain.  He points out that the judgements of the District Court and the Local Court of NSW, which resulted in his convictions, do not appear on either or NSW Caselaw — a database operated by the NSW Department of Attorney General and Justice that, like provides free internet access to judgements and decisions, but only those of NSW courts and tribunals. In addition, he points out that the judgement of the Local Court, which is not available electronically, provides scant information about the second offence.

18.     Whether a particular decision or judgement is published on or NSW Caselaw is determined by the court or tribunal that made the decision. The AAT makes all decisions where written reasons are given available to for publication unless otherwise ordered.  In contrast, only some decisions of the NSW District and Local Court are made available to NSW Caselaw or see “Policy and Procedures: Release Schedule” at the applicant is correct that the judgements of the District and Local Court of NSW relating to his convictions are not published on NSW Caselaw or apparently any other database, he is mistaken that the details of his offences are not otherwise available through the internet. The judgement of the NSW Court of Criminal Appeal, which contains a detailed description of the first and more serious of the offences committed by the applicant — “Aggravated Sexual Intercourse Without Consent” — is available on NSW Caselaw and In addition, it contains the name of and detailed information about the applicant’s wife: Dipangkear v Regina [2010] NSWCCA 156.

Should a suppression order be made?

20. Before making an order under s 35 of the AAT Act the Tribunal must satisfy itself that it is desirable to do so by reason of:

·the confidential nature of any evidence, or

·the confidential nature of any matter, or

·any other reason.

21. Section 35 requires the Tribunal to take as the “basis of its consideration” the principle that it is desirable that:

·hearings of proceedings should be held in public, and;

·the public and the parties should have access to:

oevidence given before the Tribunal

othe contents of documents lodged with the Tribunal or received in evidence by the Tribunal. 

22.     The Tribunal must nonetheless pay “due regard” to any reason why publication or disclosure of the evidence or matter contained in the document should be prohibited or restricted.

23.     The concerns raised by the applicant are made in the context of an environment where decisions of the AAT are freely and readily accessible through the internet. In addition, many decisions (including the judgement of the NSW Court of Criminal Appeal in the applicant’s appeal) are available on a subscription basis through commercial databases such as Thomson Reuters’ “FirstPoint” and LexisNexis AU’s “CaseBase”. While and NSW Caselaw use a filter to prevent a decision being accessed through the use of a general search engine such as Google, each provide a search function, enabling a decision to be located on their respective sites by entering the name of a party. As a consequence, judgements and reasons for decision are no longer consigned to law reports and libraries but are freely accessible by the general public via the internet.  

24.     The privacy implications of the ready accessibility of decisions and judgements through electronic publication have been extensively discussed in Australia and overseas[2]. These reasons do not canvass the broader issue of whether, in the era of electronic publication, the principle of open justice should be revisited, at least in respect of the publication of decisions. Rather, these reasons are confined to the issue of whether in this case the power to make the orders sought should be exercised. As the applicant points out, the AAT has, on occasion, made orders suppressing the name of an applicant and witnesses in reviewing decisions made under s 501 of the Migration Act. See for example: DNCW and Minister for Immigration and Citizenship (2010) 117 ALD 192; QX06/15 and Minister for Immigration and Multicultural Affairs [2006] AATA 927; SRMMMM and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 798; Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690. A review of those and other decisions where s 35 orders have been granted suggests a greater preparedness on the part of the Tribunal to accede to applications for an order to suppress the name of the visa-holder where not to do so may allow the victim of, or a witness to, the visa holder’s crime(s) to be identified. That consideration does not apply in this case — there is no suggestion that the identity of the victims of, or any witness to, the applicant’s crimes can be identified from the earlier decision.

[2] see for example “The implications of privacy for the work of tribunals” Judith Bellis (General Counsel and Director, Judicial Affairs, Courts and Tribunals, Dept Justice, Canada) 2009 AIJA Annual Tribunals Conference (5 June 2009); and “Update on Judicial Writing in an Electronic Age – Five Years On” South Australian Judicial Development Day, 3 December 2009, Justice Debra Mullins.

25.     The applicant contends that while there is a public interest in decisions of the Tribunal being available to the public, there is no corresponding interest in the identity of the applicant being disclosed, citing in support Re C and Australian Federal Police (1985) 8 ALD 587, where the Tribunal stated that:

The public interest in having information about the identity of an applicant in proceedings before the Tribunal is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny.

26. While a suppression order of the type sought by the applicant is arguably less offensive to the principles of open justice than an order prohibiting publication of the reasons for decision, I do not accept the proposition there is no public interest in disclosing the identity of a party to proceedings. Identification of parties and witnesses discourages perjury, allows unrestricted reporting by the media and, in respect of decisions made under s 501 of the Migration Act removes the risk that other people might be suspected of the crimes for which the visa holder has been convicted. Furthermore, it 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.

27. The arguments advanced by the applicant about how he is likely to be prejudiced if the earlier decision were to be published in its current form relate primarily to the adverse consequences that might flow from the disclosure of the details of his criminal history. As discussed, apart from his most recent and less serious offence, details about the applicant’s criminal history are already accessible through and NSW Caselaw. But even were that not the case, the fact that he has a criminal history is unremarkable and places him in the same position as any applicant seeking to challenge the decision to cancel their visa, as the cancellation power under s 501 of the Act can only be invoked if the visa holder does not pass the “character test”, which is defined to include a “substantial criminal record”. Nor do I accept the argument that the applicant is especially conspicuous on account of his ethno-religious origin and colour. That might have been the case 30 years ago, but is not the case in 21st century Australia.

28. While I accept that the concerns raised by the applicant are real, I am not persuaded that of themselves they provide a proper basis to depart from the “norm” established by s 35.

29.     The arguments advanced in relation to the applicant’s wife are somewhat different. She is merely a witness in and did not initiate these proceedings. The earlier decision canvasses in some detail various issues about her mental and physical health. While there is no firm evidence confirming that her mental health may deteriorate if her name were to be published in the earlier decision, it seems to me to be a possibility. I am satisfied that because of her fragile health it is desirable that she not be identified by name in the published reasons for decision.

30. The personal information relating to the applicant’s sister-in-law contained in the earlier decision is of a different nature again. It is unremarkable and narrow in compass. It consists of the nature of her relationship to the applicant and his wife, her marital status, limited family details and her town of residence. Any detriment she would suffer would be as a result of the disclosure that she is related through marriage to a person who has committed a number of serious offences in which she had no involvement. I do not consider this to be a sufficient reason to depart from the norm established by s 35. However, I have decided to delete from the reasons the reference to the name of the town where she lives because that information is unnecessary and may go some way to addressing her concerns.

31.     The applicant contends that suppressing the publication of his wife’s name is not sufficient to protect the privacy interests of his family. As he correctly points out, the disclosure of his identity could indirectly allow the identity of his wife and son to be ascertained, even if the reasons for decision do not carry their names.  However I do not agree that unless, as I understand the applicant to suggest, his name is also suppressed, the decision not to name his wife and son would be of little utility. The latter would restrict the class of persons who would be able to identify them from the reasons for decision. It would also prevent a search of or some other database using their names — as the applicant fears might happen in relation to him.

32.     While the privacy of the applicant’s wife and son could be bolstered by an order suppressing his name, I am not satisfied that it is desirable to do so.  As Brennan J emphasised in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510, the power conferred by s 35 is to be exercised "sparingly". In my opinion, the potential for the applicant’s wife and son to be identified, should the applicant’s name appear in the published reasons for decision, is not sufficient grounds to depart from the norm established by s 35 of the AAT Act. For these Reasons I have decided to: refuse an order under s 35 of the AAT Act to suppress the applicant’s name in the reasons for the earlier decision; make an order to suppress the name of the applicant’s wife and to remove the reference to the town where the applicant’s sister-in-law resides in the reasons for the earlier decision.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         ...........................[sgd]......................................
  Associate to Senior Member A K Britton

Date of Hearing  30 September 2011
Date of Final Submissions       13 October 2011
Date of Decision  24 November 2011
Counsel for the Applicant         Ms M Tibbey
Solicitor for the Applicant          Mr P Ambrose, Legal Aid NSW
Solicitor for the Respondent     Ms L Weston, Minter Ellison