RKYP and Migration Agents Registration Authority - [2021] AATA 5323

RKYP and Migration Agents Registration Authority [2021] AATA 5323 (16 August 2021)
AppID:  RKYP and Migration Agents Registration Authority
CitationNumber:     New
Division:                  GENERAL DIVISION
File Number:          2020/3766
Re:RKYP
APPLICANT

MIGRATION AGENTS REGISTRATION AUTHORITY And
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:16 August 2021
Date of written reasons: 13 September 2021
Place:Brisbane

Pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal ORDERS:
1.The Applicant’s name in these proceedings be replaced with the pseudonym “RKYP”.
2.The publication or other public disclosure of the following information is prohibited:
a.information tending to identify the Applicant; and
b.information identifying the law firm that the Applicant became a partner of in 2016.

...................[SGD].....................................................
Senior Member Katter
Catchwords
PRACTICE AND PROCEDURE – confidentiality – public disclosure of information – section 35 Administrative Appeals Tribunal Act – open justice and Applicant’s interests – use of a pseudonym – pseudonym granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Global Financial Markets Pty Ltd v Australian Securities Investments Commission [2017] AATA 1397
Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169
Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Porter v Australian Broadcasting Corporation [2021] FCA 863
VBW and Australian Prudential Regulation Authority and Anor [2005] AATA 1294
REASONS FOR DECISION
Senior Member Katter
13 September 2021
INTRODUCTION

For the reasons given orally on 16 August 2021, pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”), the Applicant’s name in this proceeding was replaced with a pseudonym and there was a prohibition on public disclosure of information tending to identify the Applicant and information as to the Applicant’s law firms.
On 19 August 2021 the Respondent requested written reasons.
BACKGROUND
The hearing of the Application occurred in public.
On 22 June 2021, prior to any communication of the decision and reasons for decision, the parties were given an opportunity to make submissions as to whether any orders or potential orders as to section 35 of the Act were sought. Further to the submissions made by the parties, the decision and reasons for decision were provided to the parties and it was directed that the Applicant and Respondent had seven days to make any application or submissions as to any orders sought pursuant to section 35 of the Act. The Respondent requested that it have an opportunity to make submissions, if the Applicant made any request for a section 35 order or orders. It was directed that the decision and reasons for decision were not to be published, beyond the parties, within that seven day period after 22 June 2021.
The decision and reasons for decision were provided to the Applicant and Respondent on 22 June 2021 without any pseudonyms, but not otherwise published.
The Applicant applied to the Tribunal on 30 June 2021, with an affidavit and submissions, copied to the Respondent, for the removal of both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 5323
Decision Date: 16 August 2021

CaseChat Overview and Summary

This matter came before Katter SM of the Administrative Appeals Tribunal concerning an application by the Applicant for the removal of their name and the name of a former law firm from the Tribunal's decision and reasons. The dispute arose after the Tribunal affirmed a decision to refuse the Applicant's re-registration as a migration agent. The Applicant sought orders under section 35 of the *Administrative Appeals Tribunal Act 1975* (Cth) to prevent the publication of identifying information, arguing it would significantly impact their future ability to work as a solicitor and their future earnings.

The Tribunal was required to determine whether to grant the Applicant's request for non-publication and non-disclosure of their identity and the identity of a law firm, balancing the principle of open justice against the Applicant's stated interests. Specifically, the court had to consider the provisions of section 35 of the Act, which permits the Tribunal to make orders restricting publication or disclosure of information that tends to reveal the identity of a party or is otherwise concerning such a person, while taking the principle of open justice as the basis for consideration but paying due regard to reasons in favour of such a direction.

In reaching its decision, the Tribunal applied the principle that open justice is not an absolute concept and that due regard must be paid to reasons presented against it. The Tribunal relied on the Applicant's affidavit, which stated that the publication of the decision would affect their ability to obtain a practising certificate at the Queensland Law Society and thus severely impact their future earnings. The Tribunal found that the publication of the Applicant's name would have consequences beyond their reputation as a migration agent, potentially impacting their ability to work in other fields. Consequently, the Tribunal also considered that the names of the law firms with which the Applicant was involved should be removed as they would tend to identify the Applicant.

The Tribunal ordered that the Applicant's name in the decision and reasons be replaced with the pseudonym "RKYP". Furthermore, it prohibited the publication or other public disclosure of information tending to identify the Applicant and information identifying the law firm that the Applicant became a partner of in 2016.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 19 August 2021 the Respondent requested written reasons. BACKGROUND The hearing of the Application occurred in public. On 22 June 2021, prior to any communication of the decision and reasons for decision, the parties were given an opportunity to make submissions as to whether any orders or potential orders as to section 35 of the Act were sought. Further to the submissions made by the parties, the decision and reasons for decision were provided to the parties and it was directed that the Applicant and Respondent had seven days to make any application or submissions as to any orders sought pursuant to section 35 of the Act. The Respondent requested that it have an opportunity to make submissions, if the Applicant made any request for a section 35 order or orders. It was directed that the decision and reasons for decision were not to be published, beyond the parties, within that seven day period after 22 June 2021. The decision and reasons for decision were provided to the Applicant and Respondent on 22 June 2021 without any pseudonyms, but not otherwise published. The Applicant applied to the Tribunal on 30 June 2021, with an affidavit and submissions, copied to the Respondent, for the removal of both the Applicant’s name and the name of the law firm where the Applicant had worked at a previous time. The Respondent did not communicate to the Tribunal on or after 30 June 2021 as to that communication from the Applicant of 30 June 2021. The matter was then listed for a telephone directions’ hearing on 9 July 2021. On 9 July 2021 there was a direction that the Respondent have time to file and serve any submissions as to the section 35 order sought by the Applicant on 30 June 2021. The parties both submitted on 9 July 2021 that the section 35 submissions should be dealt with on the papers by the Tribunal. The Applicant did not seek an opportunity to file any submissions in reply as to any material and/or submissions to be filed by the Respondent and the parties did not seek that an oral hearing occur in this regard. The Respondent filed submissions on 15 July 2021. The Respondent did not file any further affidavit material as to the section 35 orders sought.SECTION 35 Section 35 relevantly states: Public hearings and orders for private hearings, non-publication and non-disclosure … Public hearing1Subject to this section, the hearing of a proceeding before the Tribunal must be in public. …Orders for non-publication or non-disclosure3The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:(a)information tending to reveal the identity of:(i) a party to or witness in a proceeding before the Tribunal; or (ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or(b)information otherwise concerning a person referred to in paragraph (a).4The 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.5In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is 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.However (and without being required to seek the views of the parties), 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In all of those circumstances there will be an order pursuant to section 35 of the Act that the Applicant’s name in the decision and the reasons for the decision will be replaced with a pseudonym. Further, the publication or other public disclosure of the following information is prohibited: (a) information tending to identify the applicant; and (b) information identifying the law firm that the applicant became a partner of in 2016.CONCLUSION Pursuant to section 35(3) of the Act, it is ordered that the Applicant’s name in these proceedings be replaced with the pseudonym “RKYP”. It is also ordered that the publication or other public disclosure of the following information is prohibited: (a)information tending to identify the Applicant; and (b)information identifying the law firm that the Applicant became a partner of in 2016.

Ratio Decidendi

Legal Principle Established

In VBW and Australian Prudential Regulation Authority and Anor [2005] AATA 1294, Deputy President Forgie and Senior Member Pascoe made an order suppressing the Applicant’s name. After considering the Applicant’s affidavit, it was stated at [62]: On the basis of the material in that affidavit, we are satisfied that it is desirable to make such an order. Clearly, a disqualification order of the sort that may be made by APRA may well have an impact not only on a person’s good name but also on their ability to work in their chosen field in the future. On the material that we have, we are satisfied that the industries that are regulated by APRA are industries in which a person’s good name is an essential factor in that person’s career prospects. If there is doubt about that good name, then career prospects can be tarnished.CONSIDERATION As stated in Lawrance, the Tribunal is to take the principle of ‘open justice’ as the basis for its consideration, but is required to pay due regard to reasons put by an Applicant against that principle. ‘Open justice is therefore not an absolute concept unbending in its form’.[1] [1] Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] per Allsop CJ as cited in Porter v Australian Broadcasting Corporation [2021] FCA 863 at [52] per Jagot J. The Applicant in the 30 June 2021 affidavit, filed and served on the Respondent, stated: ‘I confirm I have applied to obtain my practising certificate at the Queensland Law Society and the publication of the AAT decision would affect my ability to work as a solicitor and therefore, severely affect my future earnings’.[2] The decision and reasons for decision of 22 June 2021 affirmed a decision of the Respondent as to refusing the re-registration of the Applicant as a migration agent. That is that the publication of the name of the Applicant beyond the parties would have a consequence beyond the reputation of the Applicant as a migration agent or as to any work related to the Migration Act whatsoever. To paraphrase the reasons in VBW and Australian Prudential Regulation Authority and Anor, the ability of the Applicant to work in a ‘field’ in the future, other than in the ‘field’ of migration related matters, may well be impacted upon if there is the publication of the name of the Applicant beyond the parties. That is to pay due regard to the reasons stated by the Applicant, as required by section 35(5) of the Act. Having regard the reasoning above as to the publication of the name of the Applicant, the name of the law firms, with which the Applicant was involved are also removed in the reasons for decision, in that they would tend to identify the Applicant. [2] Affidavit of RKYP affirmed 30 June 2021, [1]. In all of those circumstances there will be an order pursuant to section 35 of the Act that the Applicant’s name in the decision and the reasons for the decision will be replaced with a pseudonym. Further, the publication or other public disclosure of the following information is prohibited: (a) information tending to identify the applicant; and (b) information identifying the law firm that the applicant became a partner of in 2016.CONCLUSION