SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 585

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 585

File number(s):

SYG 1946 of 2016

Judgment of:

JUDGE TAGLIERI

Date of judgment:

22 July 2022

Catchwords:

MIGRATION – suppression and non-publication – where applicant seek suppression of date of birth in previous judgment of the Court – finding that date of birth capable of identifying applicant in country of origin – finding that suppression of date of birth necessary to protect the safety of the applicant –  suppression and non-publication order made in limited terms

Legislation:

Evidence Act 1995 (Cth) s 144

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 231

Federal Court of Australia Act 1976 (Cth) s 37AE

Migration Act 1958 (Cth) s 91X

Cases cited:

AB v CD [2019] HCA 6

Australian Broadcasting Commission v Parish (1980) 29 ALR 228

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607

AWU15 v Minister for Immigration and Border Protection (No.2) [2019] FCA 2132

Hogan v Australian Crime Commission [2010] HCA 21

KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 0130 (IAC)

Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36

WZAUP v Minister for Immigration & Anor [2019] FCCA 2310

Division:

Division 2 General Federal Law

Number of paragraphs:

55

Date of last submission/s:

10 June 2022

Date of hearing:

1 and 6 June 2022

Place:

Hobart

Counsel for the Applicant:

Mr Taylor

Solicitor for the Applicant:

Sydney West Legal and Migration

Counsel for the First Respondent:

Mr Johnson

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

SYG 1946 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SZTKE

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	22 JULY 2022

UNLESS ANY PARTY SEEKS TO BE HEARD TO THE CONTRARY BEFORE 29 JULY AT 4:00PM, THE COURT ORDERS AS FOLLOWS:

1.Publication or other disclosure of any copy/version of the original judgment or part thereof, containing the date of birth of the applicant, other than to the parties and the Court, is prohibited pursuant to s 230 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).

2.Documents in the proceeding which display the applicant’s date of birth, original pseudonym and the original proceeding number are deemed to be confidential for the purposes of r 2.11(1)(b) of the Federal Circuit Court and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth).

3.To give effect to Order 1, the date of birth of the applicant is to be redacted from paragraph 1 of the reasons for judgment published on 25th November 2019, pursuant to s 230(2) of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).

4.A copy of this order together with a take-down request is to be provided to and relevant commercial publishers including, CCH (Wolters Kluwer), Lexis, Thomson, Jade & Timebase, by the Court’s Principal Registrar or Publications team.

5.That these orders will remain in force until 31 December 2025.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to

REASONS FOR JUDGMENT

Judge Taglieri

1. This judgment concerns an Application in a Proceeding filed 13 January 2022 (“the application”) seeking non-publication and suppression orders, confidentiality and redaction orders in respect of the Applicant’s date of birth recorded in an earlier judgment and documents in proceedings in this Court.

2. The earlier judgment related to review of a decision of the Migration and Refugee Division of the Administrative Appeals Tribunal to refuse a Protection Visa and the application was dismissed. It was then subject to an appeal in the Federal Court which was dismissed.

3. The application was filed some 25 months after delivery of the judgment.  It seeks three orders, being:

   1.The date of birth of the applicant be redacted from paragraph 1 of the decision published on 25th November 2019, pursuant to the Federal Circuit Court Rules 2011 Rule 16.05(2)

   2.The publication or disclosure of the original judgment or part thereof, containing the date of birth of the applicant, other than to the parties and the Court, is prohibited pursuant to s 230 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth) on the ground that such an order is necessary to protect the safety of the applicant, and to prevent prejudice to the administration of justice.

   3.Documents in the proceeding which display the original pseudonym and the original proceeding number are deemed to be confidential for the purposes of r 2.08B of the Federal Circuit Court Rules 2001 (Cth).

4. On 1 and 6 June 2022, the application came before me for hearing.  The Applicant was represented by a solicitor-advocate and the First Respondent by counsel.

   APPLICANT’S CONTENTIONS AND EVIDENCE

5. The Applicant submits that a non-publication and suppression order are required in respect of the Applicant’s date of birth.  The ground relied upon for making such orders is that publication of the date of birth provides a means of identifying the Applicant to the Sri Lankan authorities, which puts his safety at risk and that there is a need to protect him. 

6. The Applicant relies on the ground in section 231(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), that the order is “necessary to protect the safety of any person”.

7. The written submissions filed by the Applicant are lengthy and consist of submissions dated 6 March 2022 and submissions in response to those of the Respondent dated 18 March 2022.  I note the application included the Administrative Appeals Tribunal as a party, but it had not participated in the proceedings.

8. Lengthy oral submissions expanding upon the Applicant’s written submissions were also made at the hearing. These disputed much of the written submissions of the Respondent. The Applicant also sought to tender and rely on three documents at the hearing, being:

   (a)an explanatory memorandum concerning the introduction of s 91X of the Migration Act 1958 (Cth);

   (b)a Sri Lankan national identity card marked as MFI-1; and

   (c)A 2019 Department of Foreign Affairs and Trade (“DFAT”) report annexed to the Applicant’s solicitor’s affidavit filed 6 June 2022.

9. I gave leave to the Respondent to make written submissions about the documents referred to at [8], which submissions were received and dated 10 June 2022. After these written submissions were received, the Applicant purported to make further submissions by way of reply in an email sent to my Associate on 10 June 2022.  I decline to consider the Applicant’s submissions of 10 June 2022 on the basis that I did not give leave for that purpose, the Applicant’s case was closed at the hearing and I consider it unnecessary to consider the submissions to determine whether the orders sought should be made. 

10. Various affidavits were read into evidence by the Applicant being:

    (a)Affidavit of the Applicant filed 23 December 2021;

    (b)Affidavit of the Applicant’s solicitor filed 24 December 2021;

    (c)Affidavit of the Applicant’s solicitor filed 18 March 2022;

    (d)Affidavit of the Applicant’s solicitor filed 1 June 2022 but served on 11 April 2022; and

    (e)Affidavit of the Applicant’s solicitor filed 6 June 2022, annexing the 2019 DFAT report.

11. The Applicant’s contentions distil to a simple proposition, namely: that although the Applicant’s claims for protection and the evidence upon which those claims were made were not accepted by the Federal Circuit Court and no jurisdictional error was found by the Federal Court of Australia, the existence of the evidence he relied upon and his claims, which are detailed in the Court’s reasons for judgment, put the Applicant’s personal safety at risk.[1] 

    [1] See especially the Applicant’s written submissions filed 6 March 2022 at [11] to [20].

12. It is argued that the basis upon which the Applicant’s personal safety is at risk is real and likely to occur.  In making these submissions, considerable reliance was placed on DFAT country information report for Sri Lanka dated 22 December 2021 (“the 2021 report”) and this document’s predecessor or prior version dated 4 November 2019[2] (“the 2019 report”).  As noted at [9] above, the latter was received in evidence as an annexure to an affidavit on the basis that I gave the Respondent leave to make submissions in respect of them.

    [2] As attached to the affidavit of the Applicant’s solicitor filed 6 June 2022 pursuant to leave.

    FIRST RESPONDENT’S CONTENTIONS

13. The First Respondent opposed all orders sought by the Applicant and relied on written submissions filed 17 March 2022, oral submissions during the hearing, and a written submission received with the Court’s leave on 10 June 2022.

14. In summary, opposition was on the following basis:

    (a)First, that the Applicant had not satisfied the requirements in section 231 of the FCFCOA Act for making the orders; specifically, the Applicant had not provided sufficient evidence to satisfy the Court that the orders were necessary to protect the safety of the Applicant;  and

    (b)Second, but connected to a) above, a person’s date of birth is not ordinarily considered to be sensitive or confidential, nor does its appearance in the judgement establish that the Sri Lankan authorities are likely to connect the claims/evidence described in the judgement to the Applicant and put his personal safety at risk; and

    (c)Third, the delay in bringing the application weighs against making the orders. 

15. The relevance and admissibility of the 2019 DFAT country information document was opposed in the submission from the Respondent of 10 June 2022.  I determine that the earlier version should be accepted in evidence and is relevant for the reasons that appear below.

16. The 2019 version contains similar but historical information to the 2021 DFAT document about the circumstances in Sri Lanka and together with the 2021 information informs the issue of the possibility and nature of harm to the Applicant upon re-entering Sri Lanka. The Respondent contends it is “old content” and not current, but the collective reading of the 2019 and 2021 documents show that the Sri Lankan authorities have persevered in maintaining policy and systems concerning members or former members of LTTE.

17. There does not appear to be specific prejudice to the First Respondent in receiving the earlier versions and the information is similar between versions.  It can also be inferred that the earlier versions and their contents are known and likely to be in the possession of the First Respondent given that office’s specific functions.  The First Respondent does not dispute the authenticity of the documents sought to be tendered or the general reliability of the information in the documents.

18. The Respondent’s written submissions concerning the Explanatory memorandum referred to at [8(a)] of these reasons[3], have been considered. It is unnecessary for me to receive the explanatory memorandum and agree that it is not particularly relevant to the issues I need to decide.

    [3] [2] – [3] of the Respondent’s submission 10 June 2022

19. The First Respondent ultimately did not object to the court receiving in evidence the National Identity card referred to at ]8(b)] above,[4] but submitted it had no evidentiary value.

    [4] [4] of the Respondent’s submission 10 June 2022

20. The First Respondent did not concede that a date of birth was in the nature of personally identifying information in this case or capable of being such in general. 

21. The First Respondent also highlighted that section 229 of the FCFCOA Act which provides:

    In deciding whether to make a suppression order or non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

22. Section 229 of the FCFCOA Act is essentially in the same terms as section 37AE of the Federal Court Act 1976 (Cth) and Counsel for the First Respondent referred me to C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70. It was said that this authority stood for the principle that suppression and non-publication orders should only made in exceptional circumstances and the Applicant carried a heavy onus of persuasion which it had not satisfied.

    ISSUES AND APPLICABLE PRINCIPLES

23. In my view, whether the Court should make any of the orders sought by the Applicant condenses into answering two propositions.  First, whether the Applicant’s date of birth is a fact or information that is capable of personally identifying the Applicant; second, if so, has the Applicant persuaded the Court that the orders are necessary to protect his safety in circumstances where his claims for a protection visa and much of the evidence he gave in support of those claims were rejected.

24. Both parties referred to many authorities, all of which necessarily turned on the particular facts of each case and determination of the question of whether, in the circumstances, the orders were necessary to protect the safety of the Applicant.

25. To my mind, the most instructive of the authorities are those of superior courts, which deal with the corresponding statutory provision that appears in the Federal Court of Australia Act 1976 (Cth).

26. Regarding the first proposition referred to at [20], I need go no further than the decision of Rares J in WZAUP v Minister for Immigration & Anor [2020] FCA 116 at [11] to [12]. The statements are of general application, relevant in this case and instructive. His Honour stated:

    11.In recent years, since the advent of the internet, Courts ordinarily have become very cautious about including in reasons for judgment details of matter that may identify a person or enable others with malicious intent either to impersonate that person or be in a position to otherwise cause him or her harm or distress.  Therefore, most Courts have adopted a practice of not including in reasons for judgment published on the internet or in open Court material such as a person’s full name, date of birth or actual address.  That is because, first, that information is, in ordinary circumstances, not necessary, relevant or material to the determination of the proceeding, secondly, it could be used by third parties to the detriment of those persons or the administration of justice and thirdly, revelation of such material might make it more difficult for persons to feel confident that they would not be inadvertently exposed to harassment or to being impersonated by third parties who are able to use search engines or other means to download or aggregate material from the internet for their own purposes, contrary to the best interests of the persons concerned.  This applies to reasons for judgment generally, including in respect of persons being sentenced for criminal conduct or otherwise caught up in civil or other litigation.

    12.His Honour should not have included the appellant’s date of birth in his reasons for judgment.  That date had no materiality to the issues before him.  Had it been necessary to refer to the appellant’s age or birth year, his Honour should have done so in a generic way by stating his age or that he had been born in a particular year.

    [emphasis added]

27. The above bolded statements, in my view reflect common acceptance that a date of birth is a means of personal identification and should only be included in a judgement if the date of birth is relevant to the issue to be decided. The Respondent’s unwillingness to make the concession I invited during the hearing about this is unreasonable in my view.

28. As to the second proposition referred to at [23] above, Section 231 of the FCFCOA Act provides for the grounds upon which a suppression or non-publication order may be made. It is essentially in the same terms as s 37AG of the Federal Court of Australia Act 1976 (Cth). Accordingly, in my view the authorities addressing s 37AG are instructive in how the second proposition should be answered.

29. I was referred to AWU15 v Minister for Immigration and Border Protection (No.2) [2019] FCA 2132. Kerr J referred to a number of statements of judges of the Federal Court, the High Court and New South Wales Supreme Court on legal principles that apply when suppression and non-publication orders are sought. Drawing on the authorities cited, I consider the following summary of principles apply in determining whether suppression or non-publication orders should be made under the FCFCOA Act:

    (a)There are two alternate constructions to the relevant statutory provisions. To obtain an order it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all that is required is satisfaction that that on the balance of probabilities the order sought is necessary to protect the person’s safety.[5] 

    (b)The preferred resolution of the alternative constructions referred to at a) is the latter and proof of the probability of harm as a precondition to making an order is not required. Instead, necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.[6]

    (c)A party seeking a suppression or non-publication order needs to show more than embarrassment, inconvenience, annoyance or unreasonable or groundless fears.[7] 

    (d)“Necessary” is a word which denotes more than what is merely convenient, reasonable, desirable or sensible.[8]

    (e)As a constituent of the collocation “necessary to protect the safety of any person”, “necessary” connotes that the Parliament is not concerned with trivialities.[9]

    (f)Such orders should only be made in exceptional circumstances;[10]

    (g)The onus borne by an applicant seeking such an order is a heavy one.[11]

    [5] Per Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 at [16].

    [6] Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 at [17] and [18]; per Nettle J in AB v CD [2019] HCA 6 at [15].

    [7]  Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607.

    [8] AB v CD [2019] HCA 6 at [14] citing Hogan v Australian Crime Commission [2010] HCA 21.

    [9] AB v CD [2019] HCA 6 at [14] citing Hogan v Australian Crime Commission [2010] HCA 21 and Australian Broadcasting Commission v Parish (1980) 29 ALR 228.

    [10] Per Allsop CH, Wigney and Abraham JJ in The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377 at [379].

    [11] Per Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8], citing Madgwick J in Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438 at [438].

    The evidence as to identification

30. The Applicant relied upon a number of documents in support of his submission that the inclusion of his date of birth in the judgment would be capable of identifying him to the Sri Lankan authorities.  Those documents were contained in the Court Book previously filed by the Respondent and are:

    (a)The Irregular Maritime Arrival Entry Interview Form (“the Entry Interview Form”) in respect of the Applicant’s arrival in Australia at pages 1 to 18 of the Court Book, received into evidence by the Court and marked A-2;

    (b)A United Nations High Commissioner for Refugees (“UNHCR”) document entitled ‘Consent to Share and Release Information’ (“the UNHCR document”) at page 80 of the Court Book, received into evidence by the Court and marked A-3;

    (c)A copy of the Applicant’s Sri Lankan passport at page 84 of the Court Book, received into evidence by the Court and marked A-4;

    (d)A translation of Applicant’s Sri Lankan birth certificate at pages 85 to 86 of the Court Book, received into evidence by the Court and marked A-5; and

    (e)A Sri Lankan National Identity Card of the Applicant at page 87 of the Court Book, marked MFI-1.

1. The documents referred to at (a) to (d) were received in evidence unopposed. The document described at (e) was subject to objection during oral submissions because the First Respondent contended the document was not in English and did not concede its authenticity. However, the objection was not maintained.

2. The National Identity Card was a document provided during the process of applying for the protection visa and was received by the First Respondent for that purpose.  It has been included in the Court Book filed by the Respondent and was before the Tribunal and the Court. It does have some evidentiary value as it includes reference to the Applicant’s date of birth.  Although it is not in English, the numerals identifying the Applicant’s date of birth are apparent, comprehendible and relatable to the name and place of birth.  The document was also issued by the Sri Lankan authorities.

3. The Applicant relied specifically on page 2 of the Entry Interview Form titled ‘In Confidence’ and states:

   [DFAT] is careful to protect the privacy of all information given by you during this interview.  The information will not be made available to authorities in the country of your habitual residence …

4. The UNHCR document provides consent for the UNHCR to share information held by them concerning the Applicant with the Australian Government.  It is signed by the Applicant.  Similarly to the Entry Interview Form, it states that the Australian Government is restricted in providing the Applicant’s information to a country in respect of which he has made a claim for refugee status.

5. The Applicant’s Sri Lankan passport and birth certificate both state the Applicant’s date of birth along with other personal particulars, such as name and place of birth.  The passport includes photo identification.  Relevantly, both of these documents were issued by the Sri Lankan authorities.

   The evidence as to necessity for the orders to protect safety of the Applicant

6. As discussed at [18] and [12], the Applicant relies upon two DFAT country reports concerning Sri Lanka.  The Applicant’s contention is that while the 2021 report is the most current, the information in it concerning rehabilitation centres and their detentive nature is supported and reinforced by the 2015 and 2019 reports.  In the written submissions filed 6 March 2022 at [13], the Applicant relies on the following sections of the 2021 report in particular:

   3.49… DFAT assesses that … any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation …

   3.54… The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state …

   3.57… DFAT assesses that the following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles …

   4.17     DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common …

7. The DFAT documents refer to the findings of the UK Upper Tribunal in KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 0130 (IAC), and a copy of the written reasons for judgment in that matter were annexed to the affidavit of the Applicant’s solicitor filed 18 March 2022. The UK Upper Tribunal found, in summary, that the Sri Lankan authorities “maintain a sophisticated network of intelligence gathering overseas”,[12] and operate “sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora”.[13]  It concluded that:

   426.It is reasonably likely that there is a single comprehensive electronic database on which is stored all information passed back from the United Kingdom and any other pre-existing information gathered within Sri Lanka relating to, for example, previous links (known or suspected) to the LTTE (personal or familial) and detentions. It is reasonably likely that this database is accessible by any of the agencies referred to above, and that such access is possible by officials at the [Sri Lanka High Commission in London], [Bandaranaike International Airport in Sri Lanka], and anywhere else within Sri Lanka.

   [12] At [242].

   [13] At [17].

8. The Applicant relied upon the Gazette of the Democratic Socialist Republic of Sri Lanka dated 25 February 2021, which was attached to the affidavit of his solicitor filed 1 July 2022. This document contains a list of Sri Lankan individuals and organisations outside Sri Lanka which have been identified by authorities as conducting terrorist activities.  The document includes entries where the organisation or individual is identified as being located in Australia.  The submission of this Applicant is that the Gazette evidences ongoing surveillance of Sri Lankan citizens in foreign jurisdictions.

   EVALUATION AND DISPOSITION

9. As to the first proposition at [23], I am satisfied that the Applicant’s date of birth in the circumstances of his claims and evidence set out in the earlier judgment of the FCCA are a means of identifying the applicant. The sentiments expressed by Rares J are pertinent in informing this conclusion.  However, so too is the fact that the Sri Lankan authorities produced and likely still hold records that bear the Applicant’s date of birth which, together with other information held or able to be obtained from the judgement, is a means of identifying him.

10. I accept the submission that the date of birth provides the means of correlation with findings and rejected evidence referred to in the judgment, which enables identification of the Applicant to Sri Lankan authorities.

11. The second proposition at [23] is more difficult to resolve on the evidence before the Court. However, I have been persuaded that it is necessary to make some of the orders sought.

12. I accept that the Applicant has not established that he is likely to be harmed by the Sri Lankan authorities if the orders sought are not made.  However, that is not the ultimate test, as is evident from the legal principles summarised above.  I am persuaded that that possibility of harm exists for the reasons submitted by the Applicant.

13. The First Respondent contends that the evidence and claims by the Applicant referred to in the judgment (including his date of birth) together with the evidence referred to at [30] to [38] of these reasons does not rise to satisfying the relevant test. It says that the claim that collectively, they permit possible identification of the Applicant to be dealt with as described amounts to mere speculation and conjecture.

14. There is no direct evidence of the chance that the contents of the judgment may come to the attention of Sri Lankan authorities. But pursuant to s 144 of the Evidence Act 1995 (Cth) I am permitted to be satisfied of proof of matters that are capable of verification by reference to a document the authority of which cannot reasonably be questioned.

15. I conclude that the chance the Applicant’s evidence and claims referred to in the judgment coming to the Sri Lankan’s authorities attention is a reasonable possibility based on:

    ·common knowledge of the international use and effectiveness of the internet as a means of dissemination, searching and use of information on it for all sorts of purposes, which common knowledge is confirmed by the sentiments expressed by Rares J and referred to at [26] of these reasons; and

    ·the existence and content of the matters in the DFAT documents together with that contained in the written reasons of the UK Upper Tribunal, both which are documents the authority of which cannot reasonably be questioned.

16. The policies and processes described in the DFAT documents and UK Upper Tribunal findings, demonstrate that Sri Lankan authorities have policy, procedure and systems, in the past and as recently as 2021 which monitor and survey to some extent in order to seek to identify former LTTE members and subject them to potential arrest, non-consensual education and possibly torture, considered to be common by domestic and international sources or detention in “rehabilitation facilities.”  I readily accept that detention, torture and education contrary to one’s free will is harmful to one’s personal safety, either physically or emotionally/psychologically.

17. Although the Applicant’s claims were rejected by the Tribunal and Court, they remain available to the Sri Lankan authorities who may suspect him or regard him as a former LTTE member. The date of birth within the judgment assist in identification of the Applicant and connecting him personally to the claims he has made.

18. The nature and degree of possible harm described at [46] in my view impinge on the personal safety of a person.  Applying the construction required as informed by the legal principles set out elsewhere in these reasons, I have been persuaded to make some of the orders sought.

19. I do not accept the First Respondent’s submission that to make the orders would infringe on the principles of open justice or principles mentioned at [29(f) and (g)] of these reasons. Suppression and non-publication of the date of birth will not offend the general requirement of open justice.  The date of birth itself is not relevant to the issues or reasoning for refusal of the protection visa and the basis for the Court’s judgment will be fully evident despite the order.

20. Further, I consider that the principles at [29(f) and (g)] do not rigorously apply as a formula necessarily resulting in a particular conclusion.  The question of application of the principles in any given case will always depend on the facts and circumstances and also involves discretion on the part of the decision maker as to what weight should be given to the relevant principles.

21. To my mind, the principle referred to at [29(f)] also needs to be understood in the context of the nature of the proceedings in which the earlier judgement was given.  In proceedings concerning protection visas, information is often sensitive and confidentiality as referred to in the Applicant’s submissions warrants greater weight being afforded to the other principles.

22. The delay in making the application, on which the First Respondent relies, is a factor to consider.  However in my view, if no prejudice by that delay is demonstrated by the party opposing the order, it has less importance or weight in the overall deliberations of the Court.  This is particularly so if the suppression or non-publication relates to a fact or evidence that is not relevant to the issue being determined and if the scope of the order sought is narrow, as it is here.

23. The Applicant’s submissions involved criticism of the First Respondent for opposing the orders sought and asserted that there had been improper failure to abide by the model litigant guidelines that have been adopted by the First Respondent.

24. I consider it unnecessary to draw any conclusion about the submissions referred to at [53]. In general, it would have been preferable to avoid the need for a hearing of the application as I observed during the hearing, but the First Respondent adopted what was an arguable position.

25. The orders sought in the application are somewhat imprecisely expressed, so I intend to make orders in the following terms unless either party seeks to be heard within 7 days of delivery of this judgment:

    (1)Publication or other disclosure of any copy/version of the original judgment or part thereof, containing the date of birth of the applicant, other than to the parties and the Court, is prohibited pursuant to s 230 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).

    (2)Documents in the proceeding which display the applicant’s date of birth, original pseudonym and the original proceeding number are deemed to be confidential for the purposes of r 2.08B of the Federal Circuit Court Rules 2001 (Cth).

    (3)To give effect to Order 1, the date of birth of the applicant is to be redacted from paragraph 1 of the reasons for judgment published on 25th November 2019, pursuant to s 230(2) of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).

    (4)A copy of this order together with a take-down request is to be provided to and relevant commercial publishers including, CCH (Wolters Kluwer), Lexis, Thomson, Jade & Timebase, by the Court’s Principal Registrar or Publications team.

    (5)That these orders will remain in force until 31 December 2025.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       22 July 2022