FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Citizenship [2008] FCA 634

MIGRATION LAW – application for non-publication – judgment said to disclose confidential information – prejudice of non-publication.

Held: no identified prejudice of non-publication – application allowed.

AMIT KUMAR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1404 of 2007

TAMBERLIN J

9 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         Subject to Order 2, the judgment and reasons of the Full Court in this matter dated 29 April 2008, the transcript of any hearings in this matter and any written submissions filed in relation to this matter, not be published until whichever of the following first occurs:

1.1       determination by the High Court of any application for special leave to appeal; or

1.2       if no application for special leave to appeal is made, 28 May 2008 (being 29 days after the date of the Full Court’s judgment); or

1.3       a decision by the first respondent before 28 May 2008 not to apply for special leave to appeal the Full Court’s judgment.

2.         Order 1 does not apply to:

2.1       the legal representatives of the appellant and first respondent; and

2.2       an officer of the High Court of Australia or Federal Court of Australia.

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

REASONS FOR JUDGMENT ON CONFIDENTIALITY

1                          The reasons for judgment of the Full Court in this matter were handed down and copies were given to the parties on Tuesday 29 April 2008.  It is not necessary to repeat any of the matters dealt with in that judgment.  It suffices to observe that shortly after the judgment was handed down, counsel for the first respondent (“the Minister”) contacted my chambers to signal that an application for non-publication of the reasons of that judgment would be made.  On Wednesday 30 April 2008, such an application was made.  I heard the application, sitting as a single judge.

2                          By agreement between the parties, the reasons of the Full Court, as well as the transcript and written submission relating to the hearing of that appeal, were kept confidential until the hearing of the non-publication application on 30 April 2008.  At the hearing of this application, I made an interim order that the information remain confidential until the determination of this application. 

3                          The application by the Minister is for an order that the reasons, transcript and written submissions relating to the appeal not be published until after the determination of any special leave application before the High Court.  Such an application must be filed within 28 days from the date of judgment: see Pt 41 r 41.02.1 of the High Court Rules.  The Minister seeks this order on the basis that publication of the Full Court’s reasons (or the transcript or written submissions relating to the proceeding) would adversely impact the Minister’s ability to obtain relevant information and thereby properly discharge his functions under the Migration Act 1958 (Cth).  It is also said that publication may have an adverse impact on any persons giving information to the Minister to enable him to carry out those functions.

4                          Although counsel for the appellant opposes the application, he is unable to identify any significant prejudice his client might suffer if the application is granted.  However, he draws the Court’s attention to the important public interest in transparent justice, and notes that the Full Court, in its reasons for judgment, expressly found that the information should not be treated as confidential.

5                          Notwithstanding the submissions advanced by counsel for the appellant, I consider that, in the absence of any identified prejudice to the appellant, it is appropriate that the information be treated as confidential until the determination by the High Court of any application for special leave to appeal, or until the expiry of 28 days from the date of the judgment, or until any decision is made not to seek a special leave to appeal.  Such orders are made to preserve the subject matter of any appeal.  In making this determination, I record that I consulted with Justice Finn and Justice Besanko, and am grateful to their Honours for their comments in relation to this matter.

6                          I do not consider that any order should be made as to costs of this application by the Minister.

Associate:

Dated:         9 May 2008