YFZN and Secretary, Department of Home Affairs (Migration)
[2025] ARTA 1842
•18 September 2025
YFZN and Secretary, Department of Home Affairs (Migration) [2025] ARTA 1842 (18 September 2025)
Applicant: YFZN
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2024/2669
Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:18 September 2025
Decision:
Noting that s 501K of the Migration Act 1958 (Cth) applies to the Applicant’s review application, the Tribunal by order DIRECTS, that:
1.pursuant to section 70(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act):
(a) the name and any other information tending to reveal the identity of the Applicant in the unredacted written reasons dated 4 August 2025 must not be published;
(b) the Applicant’s name is to be replaced with the pseudonym “YFZN” in the redacted written reasons and any documents relating to the proceeding filed or created after the date of this order;
(c) the information specified in paragraph 1(a) must not be disclosed to any person other than:
i.the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case;
ii.to the extent necessary, any person whom a party approaches for the purpose of providing evidence in relation to the proceeding; and
iii.members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.
2.Pursuant to section 70(2) of the ART Act:
(a) The unredacted written reasons dated 4 August 2025; and
(b) The section 23 T-Documents and Supplementary T-Documents upon lodgement with the Tribunal
are prohibited from disclosure or publication by all persons, other than the persons listed in paragraph 1(c), except to the extent that it is contained in the Tribunal’s redacted written reasons.
......................[SGD]..................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – whether s 501K of the Migration Act 1958 applies to an application for review to amend personal records under s 50 of the Freedom of Information Act 1982 – found that s 501K applies because the review relates to the applicant in their capacity as a person who applied for a protection visa – directions made under s 70 of the Administrative Review Tribunal Act 2024 for the applicant’s name to be replaced by a pseudonym and for the decision and reasons to be anonymised so as to avoid publication of the applicant’s identity
LEGISLATION
Migration Act 1958 (Cth)
Freedom of Information Act 1982 (Cth)Administrative Review Tribunal Act 2024 (Cth)
CASES
AZAFH v Minister for Immigration and Border Protection [2016] FCA 1363
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
HWTV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 554
Nguyen and Minister for Immigration and Citizenship [2013] AATA 272
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356SECONDARY MATERIALS
Explanatory Memorandum, Migration Legislation Amendment Bill (No. 6) 2001 (Cth)
Statement of Reasons
On 4 July 2025, the Tribunal heard an application for review of a decision of the Department of Home Affairs (the Department) made under s 50 of the Freedom of Information Act 1982 (Cth) (FOI Act) to refuse an application to amend personal records held by the Department. I will refer to that application as the FOI review application.
The Tribunal provided to the parties a decision and statement of reasons in the FOI review application on 4 August 2025. The decision and reasons named the Applicant and included information from which the Applicant could be identified.
After delivery of the decision and statement of reasons, the Tribunal considered whether the identity of the Applicant should not be published because of s 501K of the Migration Act 1958 (the Migration Act). The Tribunal contacted both parties who indicated that s 501K applied and that the identity of the Applicant should not be published by the Tribunal. At a further hearing on 13 August 2025 both parties expressed the view that there should be a confidentiality order over the decision and reasons dated 4 August 2025 and that the Applicant should be anonymised and de-identified in any reasons to be published.
For the reasons set out below, the Tribunal considers that s 501K of the Migration Act operates to prohibit the publication of any information that may identify the Applicant and their relatives. Directions will be made under s 70 of the Administrative Review Tribunal Act 2024 (Cth) to ensure the identity of the Applicant is kept confidential.
Section 501K of the Migration Act provides as follows:
Identity of applicants for protection visas not to be published by the ART
(1) This section applies to a review by the ART if the review relates to a person in the person's capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection - related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection - related bridging visa has been cancelled.
(2) The ART must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:
(a) the person; or
(b) any relative or other dependant of the person.
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
(3) In this section:
application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
protection-related bridging visa means a bridging visa granted as a result of an application for a protection - related bridging visa.
The question that arises from s 501K is whether the application for a review of a decision under s 50 of the FOI Act (namely the FOI review application) relates to a person in their capacity as a person who has applied for a protection visa.
It is not in dispute that the Applicant has applied for a protection visa. The application for a protection visa was considered and refused by a delegate of the Minister for Home Affairs on 20 July 2022. Shortly thereafter, the Applicant applied to the Tribunal for review of that decision. The Tribunal has not yet heard that application.
In the decision of Nguyen and Minister for Immigration and Citizenship,[1] the Deputy President found that s 501K did not operate because:[2]
Although Mr Nguyen is an applicant in the RRT seeking review of a decision to refuse to grant his application for a protection visa, he is not in this Tribunal in his “... capacity as ... a person who applied for a protection visa ...”. He is in this Tribunal in his capacity as a person whose Class BF Transitional (Permanent) Visa has been cancelled under s 501.
[1] [2013] AATA 272 (‘Nguyen’).
[2] Ibid [5].
The issue for the Tribunal is whether the same approach, as that above, should be taken with respect to the Applicant in this case who is in the Tribunal in their capacity as a person seeking an amendment under s 50 of the FOI Act to personal records held by the Department as opposed to their capacity as a person who applied for a protection visa. However, the question arising from s 501K is not whether the Applicant brought the application for review in their capacity as a person who applied for a protection visa but rather whether the review relates to a person in their capacity as a person who applied for a protection visa.
The expression “relates to” has been given a very broad meaning and only requires some relationship, whether direct or indirect between two subject matters.[3] The extent of the required relationship or connection is determined by the statutory context and purpose.[4]
[3] O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 and 376.
[4] Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 at 224 – 5.
The purpose of the prohibition of identification is apparent from the Explanatory Memorandum[5] for s 91X of the Migration Act (which is in similar terms to s 501K):
[60] … This provision is required to minimise the risk that publication of court proceedings might identify individuals as having applied for protection in Australia. Such publication can create a need for protection for the litigants and also place their family and colleagues overseas at risk. The new section does not prevent the Minister or other litigants from seeking court orders for further confidentiality in particular cases, for example to suppress any information which may identify the litigants.
[5] Explanatory Memorandum, Migration Legislation Amendment Bill (No. 6) 2001 (Cth).
The purpose of minimising the risk of identifying individuals who have applied for protection in Australia would not be achieved if the Applicant was identified in the FOI review application. The reasons in the FOI review application refer to the application for a protection visa and some of the surrounding circumstances. There is a clear connection between the FOI review application and the Applicant’s application for a protection visa because the personal records held by the Department which are sought to be amended relate to the protection visa application. This connection is sufficient for the purposes of establishing pursuant to s 501K of the Migration Act that the FOI review application relates to the applicant in their capacity as a person who applied for a protection visa. It follows that I would reject and not follow the approach taken by the Deputy President in Nguyen.[6]
[6] Nguyen (n 1).
The approach taken by the Tribunal in recent years has been to anonymise the Applicant for a review application on character grounds under s 501 or s 501CA of the Migration Act where that same Applicant has applied for a protection visa. This is consistent with a broad application of s 501K on the basis that the review application on character grounds relates to a person who has applied for a protection visa. I note that this was the approach taken by Anderson J in HWTV v Minister for Immigration, Citizenship and Multicultural Affairs:[7]
[49] In the Tribunal proceeding in which the 16 January 2023 Directions were made, being the proceeding the subject of the judicial review application before this Court, the applicant sought review of a delegate’s decision concerning a bridging visa which was being sought pending determination of the applicant’s application for a Protection visa. In these circumstances, the Tribunal proceeding and the proceeding before this Court were proceedings relating to the applicant in his capacity as a person who applied for a protection related bridging visa, within the meaning of s 501K(1) and s 91X(1) of the Act respectively. In these circumstances, both the Tribunal and this Court are statutorily barred from publishing the applicant’s name under s 501K(2) and s 91X(2).
[7] [2023] FCA 554.
Further, in an application for review of a decision to refuse to grant a Safe Haven Enterprise Visa under s 501 of the Migration Act, the Tribunal applied s 501K and said:[8]
Section 501K of the Act provides that when a review relates to a person who seeks or has a protection visa, the Tribunal will not publish any information that identifies that person or any relative or other dependents. In order to comply with s 501K, the applicant in these proceedings will be referred to by the pseudonym. Publication or other disclosure of information tending to reveal the identity of the applicant, his relatives or dependents have been omitted from this decision and replaced with generic information to ensure confidentiality.
[8] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [6].
It was understandable that the FOI review application did not attract the immediate attention of the Tribunal as being in need of a pseudonym and de-identification given that it is not an application brought under the Migration Act and therefore it was not readily apparent from the face of the FOI review application that it had a connection to the protection visa application. Further, neither of the parties to the FOI review application requested confidentiality orders anonymising and de-identifying the Applicant. In any event, it is now appropriate to apply s 501K so as to achieve its purpose.
The application of s 501K requires both that the name of the Applicant be replaced by a pseudonym and that any information in the reasons be de-identified so as to avoid identifying the applicant. In regard to de-identification, Perry J said in AZAFH v Minister for Immigration and Border Protection[9] at [4]:
Moreover, it is important to ensure that the recitation of the appellant’s claims does not disclose details that may enable the appellant to be identified and thereby frustrate the apparent purpose of s 91X: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [5] (Mortimer J), upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [5] (Tracey, Perry and Charlesworth JJ).
[9] [2016] FCA 1363.
The Tribunal will today publish the decision and reasons of 4 August 2025 with a revised date and replacing the name of the Applicant with a pseudonym and in a form that anonymises and de-identifies the Applicant. In addition, there will be a confidentiality order preventing the disclosure by the parties of the version of the decision and reasons provided to them on 4 August 2025.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
..................[sgd]......................................................
Associate
Dated: 18 September 2025
Date(s) of hearing: 4 July 2025 Date(s) of receipt of final submissions:
25 July 2025 Applicant’s Representative: Mr Ricardo Balancy (YC & Associates Legal Firm) Respondent’s Counsel Ms Olivia Cameron Respondent’s Representative: Australian Government Solicitor
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