FEDERAL COURT OF AUSTRALIA

AVN20 v Federal Circuit Court of Australia [2020] FCA 584

ORDERS

THE COURT ORDERS THAT:

1.    Henceforth in this proceeding the first respondent be styled The Federal Circuit Court of Australia.

2.    The application made under s 39B of the Judiciary Act 1903 (Cth) be dismissed.

3.    Unless the parties agree on an order as to costs before 11 May 2020, on or before 4.00 pm on 11 May 2020, the parties file short written submissions (no more than 2 pages) on the appropriate order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

Introduction

1    This is an application under s 39B(1) of the Judiciary Act 1903 (Cth) for orders in the nature of writs of certiorari and mandamus to be issued to quash the “decision and orders” of a judge (the primary judge) of the Federal Circuit Court of Australia (FCCA) and to require that another judge of that Court determine the matter according to law.

2    The applicants also seek an injunction preventing the respondent Minister from relying on the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) not to grant protection visas to the applicants, “by reason of the breach of s 91X of the Migration Act 1958 (Cth)” by the FCCA. Further, the applicants seek a declaration that by reason of that breach the first and second applicants satisfy the criteria in s 36(2)(a) of the Migration Act. Under s 36(2)(a), a criterion for a protection visa is that the applicant for the visa is “[a] non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”.

3    The applicants have filed two affidavits in support of their application to this Court. The first is an affidavit made by the second applicant, which was sworn on 28 January 2020 and admitted into evidence at the hearing without objection. The second was an affidavit affirmed by a paralegal in the law firm now acting for the applicants in this proceeding, and filed after the hearing, indicating that the name of the first applicant still was capable of being seen via the Commonwealth Courts Portal in connection with the proceedings in the FCCA. In a subsequent email to Chambers, the Minister’s legal representative stated that the Minister did not oppose the tender of this second affidavit. This affidavit is considered at the end of these reasons.

4    For the reasons that follow, I would dismiss the application.

5    The first and second applicants are a married couple. The third and fourth applicants are their children. They are citizens of a foreign state. They have unsuccessfully applied for protection visas. After a delegate of the Minister refused their applications in 2013, they applied to the Refugee Review Tribunal for review. The Tribunal affirmed the delegate’s decision in the following year. The applicants made an application to the FCCA for judicial review of that decision. The FCCA dismissed this application with costs in mid-2017.

6    This application arises from the fact that the names of one or both of the first and second applicants were published when the primary judge published his reasons for judgment online. The respondent Minister accepted that the publication of the names in this way was in breach of s 91X of the Migration Act.

7    Section 91X of the Migration Act relevantly provides:

Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court

(1)    This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person’s capacity as:

(a)     a person who applied for a protection visa …

…

(2)    The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.

(3)    In this section:

…

    proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

…

Other relevant facts and circumstances

8    The first and second applicants attended the hearing of their judicial review application in the FCCA in mid-2017. There was no interpreter present, since they were represented at the hearing by their former lawyer. The second applicant deposed to the fact that the primary judge gave his reasons for dismissing the application, “orally” “[a]t the conclusion of oral submissions” (the first publication).

9    I interpolate here that, as the parties ultimately accepted, there was no direct evidence before this Court that the applicants’ names were disclosed in whole or in part in the first publication. It is not uncommon in the oral delivery of reasons ex tempore for the presiding judge to indicate that specified parts of a written document known to the parties will be set out in the subsequent written version of the reasons, without specifically reading aloud the relevant parts of the document. No one in court when the primary judge spoke his ex tempore reasons gave evidence as to whether his Honour in fact disclosed any, or any part, of the applicants’ names. There was also no transcript or other record of what his Honour said in evidence before me. It is clear, however, that the names of the applicants were subsequently disclosed in written versions of the primary judge’s reasons displayed online, as explained below.

10    A little over a fortnight after the hearing, the primary judge re-published his reasons in writing (the second publication). The second publication contained the full name of the second applicant, although it did not specify this name as that of the second applicant. The second publication also set out part of the first applicant’s name and the fact that the first and second applicants were married to one another. The disclosure of the names arose from the fact that his Honour set out verbatim the contents of an amended application, which had been prepared by the applicants’ then legal representatives and filed on their behalf. This amended application contained the names in question.

11    A copy of the second publication was sent by email by the primary judge’s associate to the parties’ legal representatives shortly after the second publication was made. The applicants’ lawyer acknowledged its receipt.

12    The applicants appealed from the judgment of the primary judge to the Federal Court of Australia (FCA). A notice of appeal was prepared by their lawyer and filed in the FCA shortly before the applicants’ lawyer received the second publication. The applicants did not refer to the disclosure of their names in their original notice of appeal. Nor did they raise the effect of disclosure in any amended notice of appeal.

13    About a week after the second publication, Ms Elizabeth Warner Knight, a senior lawyer with the Australian Government Solicitor (acting for the respondents in the proceeding) emailed the primary judge’s associate, copying in the applicants’ legal representative, to draw his Honour’s attention to the inadvertent publication of part of the first applicant’s name in the course of quoting part of the applicants’ amended application. This email did not refer to the publication of the name of the second applicant, possibly because it was not identified as such. A little over an hour later, the associate responded to advise the parties’ legal representatives that an amendment would be made to remove the first applicant’s name from the second publication. Some three days after Ms Warner Knight’s email, the primary judge republished his reasons to remove the disclosed part of the first applicant’s name (the third publication) and the judge’s associate emailed a copy of the revised reasons to the parties’ legal representatives. The second applicant deposed that she became aware of the second publication on or about that same date. It is plain enough, however, that her legal representative would have been made aware of the disclosure of part of the first applicant’s name several days earlier when Ms Warner Knight drew the matter to his and the associate’s attention (assuming he was not aware of it earlier).

14    Although no part of the first applicant’s name appeared in the third publication, a note under the heading “Corrections” at the end of these republished reasons identified the correction as “removal of first applicant’s name”, and the page and paragraph where the correction had been made. Anyone with access to the second publication and the third publication could therefore have identified a part of the name of the first applicant, had they so wished. The full name of the second applicant remained in the third publication, although the name was not identified as that of any party to the proceeding. The first and second applicants continued to be described as being married to one another.

15    A judge exercising the appellate jurisdiction of this Court (the appeal judge) heard the appeal from the judgment of the FCCA a little over three months after the third publication. His Honour gave judgment, dismissing the appeal sometime later. In his published reasons for judgment, the appeal judge, like the primary judge in his reasons, included details of the applicants’ claims. There is nothing to indicate that the applicants said anything during the appeal proceeding about the disclosure of part of the first applicant’s name in publications of the primary judge’s reasons. Nor was any reference made to the disclosure of the second applicant’s name. There is nothing to indicate that these matters were drawn to the attention of the appeal judge, and the applicants have not claimed otherwise.

16    Towards the end of that year, the applicants applied, self-represented, for special leave to appeal to the High Court of Australia (HCA) from the judgment of the FCA. They made no mention in their application of the disclosure of part of the first applicant’s name by the primary judge in publishing his reasons. Fairly early in the following year, however, the applicants, by now represented by a different lawyer from another law firm, filed an amended application for special leave to appeal to the HCA.

17    In this amended application, the applicants sought the usual type of orders in such a case as this, namely, orders allowing the appeal, setting aside the judgment of the appellate court and the decision of the Tribunal and requiring the Tribunal to “complete the review according to law”. The amended application did not, however, refer to the disclosure of any, or any part, of the first or second applicants’ names in the primary judge’s published reasons although it claimed that:

The Federal Court, and the Federal Circuit Court fell into jurisdictional error by failing to address the risk of persecution or harm which would arise due to being failed asylum seekers forcibly returned to [a foreign country], whose claims for protection raised against the … Government [of that country] have been published in the AUSTLII website, which would be matched with the biographical data of the applicants, thus exposing the applicants to a real risk of harm and persecution.

Leave to appeal should be granted because the matter is of general importance to the processing of asylum claims, and the risks to the applicants are such that Australia’s international obligations would be breached if the applicants are forcibly returned to [the foreign country] without consideration of the risk of harm from being forcibly returned … as failed asylum seekers.

18    The amended application also affirmed that the matter concerned the correct approach regarding s 36(2)(aa) of the Migration Act, having regard to the applicants’ particular claims, adding that it was to be assumed that “these claims will inevitably come to the attention of the authorities through the removals process”. Although there was a reference to “the data breach”, there was no mention in the amended application of any disclosure in breach of s 91X of the Migration Act.

19    About a month after the filing of the amended special leave application (and four and a half months after the applicants’ appeal had been dismissed by the FCA) the second applicant deposed that she became aware of the third publication. On or about the date she became aware of the third publication, the applicants’ legal representative emailed Ms Warner Knight, saying:

I have noticed this evening that the name of the second applicant is published in the AUSTLII website for the Federal Circuit Court decision. … [A]nd has been published there for almost a year now. …

I have also noticed that the Federal Circuit Court decision was amended … to remove the first applicant’s name from the decision. Do you have a copy of the Federal Circuit Court decision when it was first made, and do you know if it was also published on Austlii with the first applicant’s name on it?

20    Ms Warner Knight replied with information as to when the parties’ solicitors had received the second and the third publications, and referred to her email to the primary judge’s associate about the inadvertent disclosure of part of the first applicant’s name. In his response, the applicants’ legal representative drew Ms Warner Knight’s attention to the fact that the name of the second applicant was contained in the third publication of the primary judge’s reasons and advised that he had written to the FCCA “to request that the second applicant’s name be removed from the published judgment”. Shortly thereafter, the associate to the primary judge advised the parties’ representatives by email that there had been a further correction resulting in the fourth publication of the primary judge’s reasons. The associate also advised the applicants’ legal representative of the dates on which the applicants’ solicitors had been sent copies of the two previous written versions of his Honour’s reasons for judgment.

21    The second applicant deposed that she became aware of the fourth publication on the date it was made. The fourth publication did not contain the names of either the first or second applicants. A note under the heading “Corrections” at the end of the republished reasons identified that a name or names had been removed, together with the relevant page and paragraph numbers at which the corrections had been made.

22    At the hearing of the applicants’ special leave application the following month, the applicants’ legal representative, who appeared for the applicants in the HCA, referred to the fact the applicants’ names had in fact been published, while making a more general submission about the proper test to be applied by the Tribunal. The applicants’ legal representative did not, however, develop his submission that the applicants’ names had been published on the Austlii website. Nor did he make any submission about the consequences of the publication of the whole or part of the first and second applicants’ names in the relevant versions of the reasons for judgment of the primary judge.

23    After hearing the applicants’ legal representative, the HCA dismissed the applicants’ special leave application, with costs.

24    The second applicant deposed that, about ten days after the HCA had refused special leave, her solicitor “suggested that [she] seek a barrister’s opinion as to whether these publications could be subject to a court proceeding”, and that she instructed her solicitor to seek such an opinion the same day.

The present proceedings

25    The applicants filed their present application and a statement of claim in this Court less than a month after receiving counsel’s opinion. In their statement of claim, the applicants contended that:

1.    The decision of the First Respondent [the primary judge] was affected by error, in that the First Respondent:

a.    breached s 91X of the Migration Act 1958 (Cth) by publishing both the First and Second Applicant’s names;

b.    denied the Applicants procedural fairness by publishing the names of the First and Second Applicant in a judgment which also detailed their protection claims relating to their political opinion against their country of origin, without providing any opportunity for them to be heard on the publication of their names.

26    As will be seen, the Minister has contested the application. A submitting notice was filed on behalf of the first respondent, indicating that the first respondent submitted to any order of the Court, although wishing to be heard on the question of costs.

The applicants’ submissions

27    In written submissions, the applicants commenced by saying that their application arose from “the fact that on publication of [the primary judge’s] judgment and for many months thereafter, [the] judgment included the full name of one or both of the adult applicants”. The applicants’ subsequent submissions indicate, however, that this may be to overstate the duration of the publication so far as the first applicant is concerned, because they subsequently contended that:

The name of the First Applicant was published for 28 days and was on numerous free websites for 11 days, while the name of the Second Applicant was published for 287 days and was on numerous free websites for 270 days.

28    The applicants submitted that the FCCA was “in breach of s 91X when it published and re-published its reasons” and that that breach “may have precisely the consequences that s 91X was designed to avert”. In this regard, the applicants referred to the Explanatory Memorandum accompanying the Migration Legislation Amendment Bill (No 6) 2001 (Cth) that introduced s 91X, and the Minister’s submissions in VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243; 122 FCR 270. After referring to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S190 of 2002 [2002] HCA 39; 191 ALR 569, the applicants also submitted that s 91X was designed “to rigidly mandate by statute the existing practice of courts in order to ensure that a court itself did not, by publication, create a real chance of harm for which a protection visa would be granted”.

29    At the hearing, Mr Albert, the applicants’ counsel in this case, argued that s 91X was intended to differentiate sur place claims for asylum that arose from “the very process of seeking asylum” from other sur place claims. Mr Albert submitted that “the emphatic terms of 91X make it clear that Parliament had in mind that that [sur place claim] would be resolved by way of a 39B application”.

30    The applicants submitted that the risk created by publication of the names of the applicants was compounded in this case by the nature of the applicants’ claims to fear harm on the basis of their political views about the government of the foreign state, the identity of the foreign state, and the disclosure of the applicants’ personal details in the reasons for judgment of both the primary judge and the appeal judge. At the hearing Mr Albert submitted that, if the Court were to conclude that “for reasons of utility or materiality” only some breaches of s 91X would amount to jurisdictional error, then, having regard to these matters and to the prolonged nature of the breach in this case, this was an extreme case that must amount to jurisdictional error.

31    Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [93] and DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64 at [58]-[62], the applicants contended that the clear, emphatic and unqualified terms of s 91X(2) demonstrated a legislative intent that a breach of s 91X(2) would amount to jurisdictional error on the part of the FCCA. At the hearing, Mr Albert submitted that the mischief the provision was intended to address was “so significant that it goes to the question of whether a breach of 91X amounts to jurisdictional error”. Mr Albert argued that the comments of Besanko J to the contrary effect in EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086 were obiter dicta since his Honour held that there was no breach of s 91X in that case and, in the alternative, that EAU17 was to be distinguished from this case for the same reason.

32    The applicants further contended that the breach of s 91X could be framed as a denial of procedural fairness, in that their names were published online without them being given an opportunity to be heard on the question “whether [the] statutory protection from [sic] s 91X should be ignored … by the Court”. Mr Albert also relied at the hearing on DWN042 v Republic of Nauru [2017] HCA 56; 92 ALJR 146 in support of his contention (in reply) that the obligation to accord procedural fairness was not foreclosed by reason of the peremptory nature of s 91X.

33    The applicants submitted that there should be orders for writs of certiorari and mandamus and that the FCCA, differently constituted, should be required to decide the matter according to law. The applicants further submitted that this Court could issue these writs even without finding that the relevant error was jurisdictional error, citing DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; 264 FCR 454 at [42] and CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400 at [33].

34    Citing DKX17 at [63] and Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49, the applicants submitted that such orders would have utility because it would be open to the FCCA to find error in the Tribunal’s decision, “consistent with principle to the effect that a blameless decision-maker could be found to have erred by reason of facts directly related to judicial process and not known at the time of their decision”. That is, it would be open, so the applicants submitted, for the FCCA to find error in the Tribunal’s decision “on the basis that it was … legally unreasonable to have failed to consider the risk of harm arising from extended publication of the Applicants’ names, coupled with their … protection claims”.

35    Further or in the alternative, the applicants contended that the Court could grant injunctive relief to prevent the Minister from relying upon the decision of the Tribunal by reason of the error of the FCCA. They also contended that the Court could issue a declaration that, by reason of the breaches of s 91X of the Migration Act, the first and second applicants satisfied the criteria in s 36(2)(a) of that Act. At the hearing, Mr Albert submitted, in the alternative, that the Court should make a declaration of the kind apparently contemplated by Rares J in WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116. As to whether it would be appropriate to make such a declaration, Mr Albert contended (in reply) that the fact that the Minister had done nothing to ameliorate the applicants’ situation since becoming aware of the breach of s 91X in their case meant that such a declaration would have utility.

36    In response to the Minister’s contention that the present application was an abuse of process, Mr Albert contended, first, that there could be no abuse of process when one examined the chronology, which showed that the notice of appeal against the judgment of the primary judge was filed before the second publication in which the breach of s 91X occurred and that, in any case, the breach was continuing after the appeal judge had delivered judgment. Secondly, Mr Albert contended that the appeal was “the wrong procedural vehicle” for raising the s 91X issue because the proceeding was in the appellate jurisdiction, not the original jurisdiction, of the FCA (as is the present proceeding) and the parties were not the same in the two proceedings. Further, the applicants would have required leave (which might not have been given) in order to raise the s 91X issue in the appeal, which, so Mr Albert contended, was focused on the different question whether there was jurisdictional error in the Tribunal’s decision. In the latter regard, Mr Albert referred to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541. While Mr Albert accepted that a s 39B application raising the s 91X issue (such as the present one) could have been brought and determined at the same time as the appeal, he affirmed that “it’s safe for the Court to assume that minds were just not turned to the question … which makes it impossible for it to have been raised with the notice of appeal”.

37    Mr Albert submitted that any attempt by the applicants to raise the s 91X issue in the HCA on an application for special leave would have been “doomed” and was at best “a theoretical possibility”. He conceded that an application might have been instituted under s 75(v) of the Constitution at the same time as the special leave application but contended that, as it had not been, this too was in the realm of theoretical possibilities.

38    Mr Albert submitted that had the applicants succeeded on the appeal before the appeal judge in having the matter remitted to the Tribunal, then there would have been no need to bring the present application. This was because the Tribunal would have been required to consider the effect of the publication of the applicants’ names on their protection claims. Finally, he contended that, having regard to the seriousness of the s 91X issue, the application should be considered on its merits, rather than rejected at a preliminary stage.

The Minister’s submissions

39    The Minister’s position was that the application should be stayed or dismissed as an abuse of process, alternatively, dismissed for want of merit.

40    The Minister contended in writing that the present application was an abuse of process primarily because the applicants had a right of appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to the FCA against the judgment of the primary judge. The Minister referred to the fact that: (1) they had exercised this right; (2) well before the hearing of the appeal their legal representative and, on her affidavit, at least the second applicant were aware of the disclosure of the first applicant’s name in the written version of the reasons for judgment of the primary judge published online; and (3) despite this, the applicants, then legally represented, did not raise the errors now alleged. Counsel for the Minister, Mr Wood, drew attention to the fact that r 36.10 of the Federal Court Rules 2011 (Cth) would have permitted the applicants to amend their notice of appeal as of right within 28 days of the filing of the notice and that the evidence showed that they were aware of the s 91X breach within that time period.

41    The Minister submitted that to permit the applicants to prosecute the present application would subvert the processes of appeal because the claims made by the applicants in this proceeding could and should have been made in the earlier appeal to the FCA or in the special leave application to the HCA. The Minister relied particularly on the reasons for judgment of Gageler J in Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22; 297 ALR 560; 87 ALJR 676 at [11]-[12] and of French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [34].

42    The Minister submitted that the right of appeal allowed a claim for jurisdictional error and for an error of law on the face of the record affecting the judgment under appeal to be raised in the appeal. Thus, so the Minister submitted, in addition to the grounds on which they in fact relied, the applicants could have appealed from the judgment of the primary judge on the basis of the errors alleged in the present proceeding. If the applicants had succeeded, then, so the Minister contended, they could have obtained the same relief under s 28(1)(c) of the FCA Act as they now seek under s 39B of the Judiciary Act. The alleged error was, so Mr Wood submitted, “[a] classic kind of error that doesn’t turn at all [on] the Tribunal’s reasons, but about which complaint can obviously be made”.

43    The Minister agreed that, at the point of the appeal, it would have been open to the applicants to have sought judicial review under s 39B of the Judiciary Act, although he contended that the availability of an appeal under the FCA Act would strongly militate against a grant of relief under that provision (citing CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2013] FCA 152 at [73] and the cases there cited) and Garde-Wilson v Legal Services Board [2008] VSCA 43; 19 VR 398 at [8]. Mr Wood argued that this latter principle operated even more strongly where the right of appeal had been exercised and the relevant issue (here, the effect of the breach of s 91X) was not raised.

44    The Minister also relied on the fact that in their special leave application in the HCA, the applicants had not sought leave to agitate the issues they now advance, notwithstanding that, with legal representation, they filed an amended application and their lawyer appeared for them at the hearing of that application. Mr Wood submitted at the hearing that the applicants’ lawyer was plainly aware of all the disclosures made in breach of s 91X at the time the application was heard and that their lawyer “indirectly, through the prism of a contention of a misapplication of the real chance test, was adverting to the possibility that the Tribunal’s decision might be impeached in some way by reason of what occurred later, being the publication by the Judge of the Federal Circuit Court of the names of two of the applicants”. Mr Wood submitted that, having referred to the disclosures in passing in argument on the special leave application, the applicants’ lawyer elected not to seek leave to amend the special leave application to raise the issue of s 91X. Further, he submitted that, if the point had merit, it was not at all self-evident that “the High Court wouldn’t have allowed the point to be agitated in circumstances where, perhaps, the second, at least of the two limbs of the breach of s 91X … had recently been disclosed”.

45    As to the merits of the application, at the hearing Mr Wood submitted that although writs of certiorari and mandamus might be issued under s 39B of the Judiciary Act on the basis of either jurisdictional error or error of law on the face of the record, there could be no error of law on the face of the record here because the reasons for judgment of the primary judge were not a part of the record, citing SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 at [13]-[16] and DMI16 at [37], [43]-[47].

46    Further, so the Minister submitted, a breach of s 91X did not result in jurisdictional error, relying primarily on the decision of Besanko J in EAU17 at [27], where his Honour held that there had been no breach of s 91X in that case and that, even if there had been a breach, the breach would not amount to jurisdictional error. In the Minister’s submission, both reasons were part of the ratio decidendi of the case (citing Cheater v Cater [1918] 1 KB 247 at 252, London Jewellers Ltd v Attenborough [1934] 2 KB 206 at 222 and Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; 82 NSWLR 665 at [215]). Accepting that whether a breach of s 91X results in jurisdictional error “depends (at least) on a question of statutory interpretation applying the principles in Project Blue Sky”, the Minister submitted that the applicants would need to persuade this Court that EAU17 was plainly wrong in order to succeed, citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [148]. This, so the Minister submitted, was a “conclusion … not readily reached … where the point turns on statutory construction”.

47    In any event, so the Minister submitted, EAU17 was plainly correct. The Minister submitted that to construe s 91X “such that a breach that occurs after an exercise of judicial power (i.e., the making of an order, which is a court’s ‘judgment’ or decision) invalidates what was hitherto a valid exercise of judicial power” would be an “obvious absurdity”. Further, so the Minister submitted, there would be “no purpose served by construing section 91X such that a breach before the exercise of judicial power would preclude the court … from exercising that judicial power”; and “it would be anomalous if the effect of a breach of section 91X (i.e., invalidating an exercise of judicial power or not) would depend on whether it takes [place] before or after an exercise of judicial power”.

48    The Minister contended that:

More generally, there is no necessary nexus (temporal or otherwise) between an exercise of judicial power and a breach of section 91X. While section 91X only applies with respect to publication “in relation to the proceeding” (see subsection (2)), it is plain that the act of publishing a person’s name in contravention of section 91X may not be the same act by which the court exercises judicial power so as to determine an application and thereby quell a justiciable controversy. It is not apparent why one unlawful act (i.e., a publication in contravention of section 91X) should invalidate the other (the making of an order).

There is no discernible purpose that is served by construing section 91X such that the act of a court in publishing a person’s name in contravention of section 91X invalidates the act of the court in exercising judicial power so as to determine an application. … [T]he purpose of section 91X … being to protect individuals with protection claims from exposure says nothing as to the purpose served by construing section 91X such that a breach invalidates an exercise of judicial power (whether anterior or posterior).

Indeed, positively absurd results would flow if the applicants’ construction of section 91X, were to be accepted. For example, if a contravention of section 91X operated to invalidate an exercise of judicial power, it must logically follow that a decision by a court quashing an adverse decision by the Minister or a tribunal (i.e., a decision refusing to grant an applicant a protection visa) would likewise be invalidated. Accordingly, an applicant who apparently succeeded on their application for judicial review of a migration decision might be forced to relitigate by reason that the court contravened section 91X in some manner.

49    At the hearing Mr Wood contrasted the particular nature of the provision at issue in Project Blue Sky with s 91X, which was, he said, “more general” and “universal in its scope”. He submitted that s 91X was best understood as a “duty of imperfect obligation in the well-recognised sense”. He submitted that:

In theory, it could be enforced by mandamus, but it’s perhaps hard to think of circumstances where that would happen in anticipation, unless it was contemplated by a judge that the judge was going to breach it … But there are many examples in the law of duties of imperfect obligations in the sense that they’re not enforceable, certainly by remedies such as certiorari in relation to a disconnected exercise of judicial power.

50    Citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421; 363 ALR 599 at [44]-[45] and CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140; 375 ALR 47 at [47], the Minister contended that it was “impossible to see how the Judge’s breach of section 91X is material here (or ever could be), in the sense that (counterfactually) compliance with section 91X ‘could realistically have resulted in a different decision’”. Mr Wood submitted that the fact that a judge inadvertently breaches s 91X “says nothing whatsoever about the ability or propriety of that judge continuing to discharge the judicial function”. Mr Wood submitted that it would be “quite odd” if it were said that whether a breach of s 91X was intended by Parliament to invalidate a judgment would depend on whether it happened before or after judgment was given.

51    Further, there were numerous mechanisms in the Migration Act (for example, ss 48B, 351, 417 and 195A) that enabled the Executive to address the situation that might arise after a breach of s 91X. Mr Wood submitted, however, that not every breach gave rise to a sur place claim and that the possibility that it might do so, depending on the facts of the case, did not mean that a s 91X breach invalidated the relevant judgment in every case. He accepted, however, that it would be open to the applicants to request that the Minister make a favourable exercise of the powers under s 48B (or perhaps s 417) of the Migration Act.

52    At the hearing, Mr Wood submitted in substance that the decision in Mohammed should be understood as confined to the particular situation that it addressed (where a subsequent judicial decision invalidated a condition precedent to the exercise of power by the decision-maker). He further submitted that, applying a counterfactual materiality analysis, it could not be said that the breach of s 91X in this case could have resulted in a different decision. He referred to the fact that, on the evidence, the first breach (in the second publication) occurred after the orders were made and entered.

53    Mr Wood argued at the hearing that to characterise the s 91X breach as a breach of procedural fairness added nothing to the analysis. Since the prohibition in s 91X was an unqualified prohibition, not providing for an exercise of discretion, no obligation to afford procedural fairness could arise.

54    The Minister submitted that, since the applicants’ case had no merit, the claim for a writ of certiorari was unsustainable, and the claims for an injunction and mandamus must be dismissed. The Minister further submitted that the applicants’ claim for a declaration that the first and second applicants satisfied the criteria in s 36(2)(a) of the Migration Act was, in the absence of a pending application for a protection visa, untenable and that such a question was answerable only by an administrative decision-maker.

55    Further, at the hearing, Mr Wood relied on WZAUP as consistent with EAU17 in several respects and on Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 30-33. He affirmed that Ozmanian showed that it was inappropriate for the Court to make a declaration where the declaration did not bear on the rights of the parties and where it was mere speculation as to whether the Minister might be influenced by that declaration in the possible future exercise of a non-compellable discretionary power.

Consideration

Jurisdiction

56    Section 39B of the Judiciary Act confers jurisdiction on the Court to review the judgment or orders of a judge of the Federal Circuit Court for, relevantly, jurisdictional error or for error of law on the face of the record. This was not in contest between the parties. Indeed, it was the basis upon which the present application for relief in the nature of certiorari and mandamus was sought. These two errors are the principal grounds for the grant of relief in the nature of certiorari: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [56]. In a matter such as this, the Court has the power to confine the FCCA within the limits of its authority, notwithstanding s 476A(1) of the Migration Act: see, for example, Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [9]-[11] and DKX17 at [58].

57    It may be accepted that an error that is identified as jurisdictional if made by an administrative tribunal may not be identified as jurisdictional if made by an inferior court: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179-180 (subject to the observations in Kirk at [70]-[73] and in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24]-[25], [27]). The applicants’ case here turned mostly on whether the error made by the primary judge was to be identified as jurisdictional error. It does not appear to me that the applicants can in this case successfully rely on the other principal ground for relief in the nature of certiorari (i.e., error of law on the face of the record) because the reasons of the primary judge (in which the s 91X breaches occurred) do not form part of the record for these purposes: see Kirk at [82]-[85]; Craig at 180-181; SZTSU at [13]-[16]; and DMI16 at [43]-[47].

Abuse of process

58    As noted earlier, the Minister’s primary submission that the present proceeding was an abuse of process depended primarily on the propositions that the issues the applicants now seek to raise for determination could and should have been raised before the appeal judge on the appeal from the judgment of the primary judge; and that, if not raised on the appeal, then they could and should have been raised in the application for special leave.

59    The applicants instituted their appeal as of right against the judgment of the primary judge under s 24(1)(d) of the FCA Act. The evidence established that both the applicants’ legal representative and the second applicant were aware of the disclosure of the first applicant’s name in the first online version of the reasons of the primary judge (i.e., the second publication) within 28 days after the filing of the notice of appeal and, in any event, well before the hearing of the appeal. Had they thought of the s 91X issues they now raise, the applicants could therefore have amended their notice of appeal as of right under r 36.10 of the Federal Court Rules to raise the s 91X issues and to seek in substance the same kind of relief under s 28(1)(b) and (c) of the FCA Act as they now seek under s 39B of the Judiciary Act.

60    I reject the applicants’ argument that an appeal would have been “the wrong procedural vehicle” by which to raise the present issues. The subject matter of the appeal was the judgment of the primary judge, which under s 28(1)(c) of the FCA Act might be set aside, without the need for the primary judge or the FCCA to be joined as a respondent (as on this judicial review application: see [120] below): see Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd [2010] FCAFC 135; 273 ALR 696 at [74]. In other words, the difference in parties is a product of the process in question, but it does not support the conclusion that there was only one process in which the s 91X issues could have been raised. The issue that the applicants raise on their present application, as to whether a breach of s 91X can give rise to a jurisdictional error that vitiates the judgment of the primary judge, could, it seems to me, have been advanced in the appeal proceeding. Where there is, as in this Court, a statutory right of appeal by way of re-hearing (see SZVFW at [21], [29]; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [75], [176]; Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48 at [28]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]; and MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]), it would have been open to the applicants to have sought to raise their claims regarding the effect of the s 91X breach in the appeal (and to have sought to adduce new evidence on the appeal pursuant to s 27 of the FCA Act in connexion with those claims). As the Full Court affirmed in Fairfax Media at [28], an appeal by way of rehearing is an appeal for the correction of error, and the applicants’ claim is in substance that there has been an error vitiating the judgment of the primary judge: see also Branir at [22] and SZVFW at [30]-[31]. It is well accepted that, for example, a claim of denial of procedural fairness (itself a claim of jurisdictional error) by the court whose judgment is subject to appeal can be raised on the appeal, as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 and the recent case of Fairfax Media at [33] and [73] illustrate. As indicated above, the applicants’ primary claim was made on two closely connected bases: first, on the basis of an argument of statutory construction and, second, on the basis of a claimed denial of procedural fairness. (I would interpolate at this point that, in so saying, I do not intend to accept the applicants’ claims of error, the merits of which are discussed below.) The merits of the applicants’ claims are not to the point in addressing whether the applicants could have raised the s 91X issues in the appeal in the Federal Court or in the special leave application in the High Court.

61    This does not mean that the Minister’s proposition that the applicants should have raised the s 91X issues on the appeal must be accepted. There are other matters to be considered. Had the applicants not sought to amend their notice of appeal within the time allowed by r 36.10 of the Federal Court Rules, then it would also have been open to them to have sought leave to amend their notice of appeal to raise the s 91X issues at a later date. If satisfied that the point was arguable, then the appeal judge would presumably have granted such leave. Bearing in mind that this is not a particularly high threshold; that their knowledge of the breach arose after judgment had been given; and that the determination of the issues might have been thought to have some general importance, there was, so it seems to me, a fair chance that the appeal judge would have granted the requisite leave.

62    Even if they had amended their notice of appeal under r 36.10 of the Federal Court Rules, since this was a fresh issue the applicants would apparently have needed the leave of the appeal judge to raise it on the appeal. The issue of leave in this case would not have been affected by considerations of the kind referred to in Branir at [38]. Had they satisfied the appeal judge that it was expedient in the interests of justice that the s 91X issues should be entertained on the appeal, such leave would presumably have been forthcoming: see, for example, Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [90]. Given the circumstances in which the issues arose and their general importance, it again seems to me that there was a fair chance that such leave would have been granted. It may also be accepted that had the s 91X issues been raised before the appeal judge and determined adversely to the applicants, then, had the applicants’ special leave application been granted, the issues would have fallen for consideration by the High Court on appeal.

63    In summary, had the applicants turned their minds to the s 91X issues prior to, or even at, the hearing of the appeal, it would have been open to them to have sought to raise the issues in the appeal proceeding and, subject to their overcoming any procedural barriers, to have agitated the s 91X issues in the appeal proceeding. They failed to do so because, so it appears, no one thought then to raise the arguments that the applicants now advance on the present application. At the time of the appeal, as Mr Albert put it, “minds were just not turned to” the issues that the applicants now seek to raise.

64    There is, moreover, no direct evidence that prior to the hearing of the appeal the applicants’ then legal representative was aware of the difficulty created by the note of the “Corrections” in the third publication. Nor is there any direct evidence that he was aware by then that the second applicant’s name had also been disclosed in the online publications of the reasons of the primary judge. I accept that, prior to the hearing of the appeal, the contents of the primary judge’s reasons published online at the time were accessible to the applicants’ legal representative and the applicants (although one or other or both of them appears to have had a limited facility with the English language, as indicated by the fact that they were assisted by an interpreter at the hearing before the Refugee Review Tribunal). Although I find it difficult to accept that, in the circumstances known to him, an appropriately qualified legal practitioner would not have perused the online publications of the reasons of the primary judge, including the third publication, in the course of preparing the applicants’ case for the hearing of the appeal, the fact is that the Minister did not contend that, at the time of the appeal, the applicants’ then legal representative knew or ought to have known about the difficulty raised by the note of the “Corrections” in the third publication or the disclosure of the second applicant’s name in any online version of the primary judge’s reasons. I shall therefore put both these possibilities to one side.

65    I would also add at this point, though nothing apparently turns on it, that, contrary to Mr Albert’s submission, SZVFW does not stand for the proposition that the reasons for judgment of a judge of the FCCA deciding an application under s 476 of the Migration Act are immaterial on an appeal to this Court from that judgment. The focus of any appeal from a judgment on an application of this kind will depend, naturally enough, on the issues raised by the appeal, but the fact that in many cases the appellant seeks to impugn the judgment of the primary judge in the FCCA by reference to the reasons of the administrative decision-maker does not mean that the judge’s reasons are unimportant.

66    The fact is that the applicants did not seek to raise the s 91X issues before the appeal judge although, as indicated above, they could have done had they been alive to the issues at the time. For present purposes, however, I accept that they were not alive to these issues, in part because they were not aware of the continuing disclosure of the second applicant’s name and the effect of the note of the “Corrections” in the third publication.

67    As we have seen, the applicants did not raise the s 91X issues either in their amended special leave application or at the hearing of their special leave application even though, by then, their legal representative and, it seems, at least the second applicant were aware that the publications of the primary judge’s reasons for judgment had up until then disclosed both the first and second applicants’ names in whole or part, either directly or indirectly.

68    I accept, as Mr Wood submitted, that had the High Court been persuaded at the hearing of the applicants’ special leave application that the s 91X point had some merit, it is “not at all self-evident” that the Court would not have allowed the point to be agitated before it, granting such leave as necessary to permit this to be done, especially given that, at the time of the special leave application, the applicants’ then legal representative (and, it seems, the second applicant) had only become aware of the disclosure of the second applicant’s name in the online publication of the primary judge’s reasons in the course of the representative’s preparation for the special leave application. There is nothing in the material before the Court to explain why the applicants’ legal representative did not recommend that the applicants consult counsel prior to the hearing of the special leave application, rather than immediately after this application had been refused. This said, one can readily understand the reluctance of the legal representative to seek to advance a new issue not advanced in the appeal; and, of course, it cannot be assumed that an application for leave to advance this new issue would have been granted.

69    The applicable principles as to when an abuse of process will arise fall to be considered in the context of the matters set out above. It may be accepted that the Court can strike out or dismiss a claim which is an abuse of process according to accepted principles. These principles have been set down in many cases. It suffices to begin with Walton v Gardiner [1993] HCA 77; 177 CLR 378, and to touch upon only some of the more pertinent decisions referred to in it and decided thereafter.

70    In Walton v Gardiner, Mason CJ, Deane and Dawson JJ described the inherent jurisdiction of a superior court to prevent an abuse of its processes in the following terms, at 392-393:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

(Citations omitted.)

71    In this passage, their Honours identified one class of abuse of process cases as those in which the plaintiff or applicant sought to litigate anew a case that had already been disposed of in a previous proceeding. In this connexion, they referred to Reichel v Magrath (1889) 14 App Cas 665 and Connelly v Director of Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401.

72    In Australian Mud Pty Ltd v Coretell Pty Ltd (No 2) [2018] FCA 1109; 134 IPR 359, Besanko J described Reichel v Magrath, at [55], in the following terms:

In Reichel v Magrath (1889) 14 App Cas 665, the plaintiff unsuccessfully brought an action for a declaration that he had not resigned as vicar of a benefice. His successor to the benefice, who had not been a party to the first action, brought a claim against the plaintiff for relief in relation to the benefice. The plaintiff sought to defend the action on the same basis he had advanced in the original action. It was held that his defence was frivolous and vexatious and an abuse of process. Lord Halsbury LC said the following:

My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the vicarage is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.

I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.

73    As Besanko J also noted, at [56], Connelly was a case involving criminal offences in which the House of Lords “applied a similar principle saying that the doctrines of autrefois acquit and autrefois convict did not exhaust the powers of the Court to prevent a person from being convicted twice in relation to the same matter”. Neither case is directly on point here. In Reichel v Magrath the plaintiff sought to relitigate a particular issue previously decided against him. In the present case, the applicants did not seek to relitigate a particular issue earlier decided against them, since that issue had never previously been raised.

74    The doctrine of abuse of process is not limited to fixed classes: see Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286 and Aon Risk at [33]-[34]. Nonetheless, as McHugh J observed in Rogers at 286:

[A]buses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

75    The importance of these three considerations was reflected in French CJ’s reasons for judgment in Aon Risk. In Aon Risk the appellant insurance broker challenged the grant of an adjournment to the respondent University as well as the grant of leave to amend the University’s statement of claim (by adding a substantial new claim on the third day of a trial fixed for four weeks). In the course of his reasons (at [33]), French CJ addressed the possibility that if the amendments were not allowed, there would be further proceedings, observing that if the University instituted fresh proceedings, “raising claims which could have been raised against Aon much earlier in the existing proceedings” it would face “the potential barrier of an abuse of process objection and, possibly, that kind of estoppel discussed in Henderson v Henderson [(1843) 3 Hare 100; 67 ER 313] and … Port of Melbourne Authority v Anshun Pty Ltd [(1981) 147 CLR 589]” (citation omitted). His Honour went on to discuss abuse of process principles, saying:

Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. Reichel v Magrath is a long standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied on in Walton v Gardiner and Rogers v The Queen.

(Citations omitted.)

76    At [34], his Honour added:

The House of Lords in Johnson v Gore Wood & Co acknowledged the distinction between “Henderson v Henderson abuse of process” on the one hand, and cause of action estoppel and issue estoppel on the other. Referring to public interest considerations of the kind discussed earlier in these reasons, Lord Bingham of Cornhill said:

“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”

A broad merits-based judgment was required, taking account of public and private interests affected and focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said:

“As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

…

(Citations omitted.)

77    As indicated in the passages set out above, although the doctrines of estoppel and abuse of process may overlap on the facts of a particular case, the authorities make it clear that they are distinct. In this case, although not relied on by the Minister, one type of estoppel, commonly known in Australian jurisdictions as Anshun estoppel, stepped into part of the territory covered by the Minister’s abuse of process argument in this case. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, Gibbs CJ, Mason and Aickin JJ said, at 602-603:

… we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

78    The principles of Anshun estoppel have, furthermore, been held to apply to judicial review of administrative action: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [39], although the Full Court in that case there said that “where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance”.

79    Nonetheless while the doctrines may overlap, there is a recognised difference between estoppel and abuse of process, as the High Court explained in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507, at [24]-[26], in the following way:

The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

(Citations omitted.)

80    In this case, the Minister relies on the “broader and more flexible” doctrine of abuse of process, rather than estoppel. The critical question is whether in the circumstances outlined earlier the applicants are now seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application.

81    It has not been said that this case falls into the first category identified by McHugh J in Rogers at 286-287: the Minister has not argued that the applicants made their present application for any purpose other than the legitimate purpose of being granted appropriate relief in the face of the breaches of s 91X that relate to them. Nor has it been said that this case falls into the second category identified by his Honour: the Minister has not argued that the use of the Court’s procedures is unjustifiably oppressive to the respondents. Rather, the Minister has argued that the applicants’ use of this Court’s procedures to challenge the judgment of the primary judge in this proceeding after that judgment had been upheld on appeal and special leave to appeal has been refused would bring the administration of justice into disrepute, because they could and should have raised their claims about s 91X in those earlier proceedings.

82    As the above discussion illustrates, the basis of this argument is sound enough. Even apart from doctrines of estoppel and abuse of process, the courts have not countenanced applications that in substance seek to re-litigate an issue expressly or impliedly decided against them on an earlier occasion: see University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 at 71 and D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34], both cited by Gageler J in Plaintiff S3/2013, the case upon which the Minister principally relied.

83    At issue in Plaintiff S3/2013 was whether the institution of an application in the original jurisdiction of the High Court for the issue of constitutional writs under s 75(v) of the Constitution to set aside a decision of the Refugee Review Tribunal was an abuse of process. This issue arose because the plaintiff had already unsuccessfully sought judicial review of the Tribunal’s decision under s 476 of the Migration Act in the original jurisdiction of the Federal Magistrates Court (now the FCCA) and had unsuccessfully appealed against that Court’s judgment to this Court. Further, in the appeal, the appeal court had already decided one of the two grounds advanced in the new High Court matter against the plaintiff. Further, the second of the two grounds raised in the High Court proceeding could, plainly enough, have been raised in the Federal Magistrates Court and, if not raised there, it could have been raised, with leave, in the Federal Court on the appeal.

84    In dismissing the application to challenge the decision of the Tribunal again, Gageler J cited Metwally (No 2) at 71, D’Orta-Ekenaike, Walton v Gardiner at 393, and the statement in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 quoted with approval by French CJ in Aon Risk at [34] before stating, at [13]-[14], that:

The jurisdiction statutorily conferred on the Federal Magistrates Court by s 476 of the Migration Act to review a decision of the Refugee Review Tribunal is relevantly co-extensive with the jurisdiction of the High Court to review a decision of that Tribunal under s 75(v) of the Constitution. The exercise of statutorily conferred jurisdiction of that nature is an exercise of the judicial power of the Commonwealth to quell a controversy about existing legal rights and legal duties. To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that Court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution.

The plaintiff’s application in the original jurisdiction of the High Court seeks to re-litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court. Her application is an abuse of the process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules 2004.

85    There are, however, some material differences between Plaintiff S3/2013 and the present case. While the jurisdiction conferred on the Federal Magistrates Court under s 476 of the Migration Act was aptly described as relevantly co-extensive with the jurisdiction conferred on the High Court under s 75(v) of the Constitution, the appellate jurisdiction conferred on the Federal Court under s 24 of the FCA Act is not aptly characterised as co-extensive with the original jurisdiction conferred on the Federal Court under s 39B of the Judiciary Act, notwithstanding that the present applicants could, with leave, have raised the s 91X issues in the appeal proceeding. Because the jurisdictions of the Federal Magistrates Court and the High Court were in Plaintiff S3/2013 relevantly co-extensive, Gageler J held that it would be subversive of the relevant appeal processes for the plaintiff to begin in the High Court for a second time. Since the appellate jurisdiction of the Federal Court under s 24 of the FCA Act is not co-extensive with the Federal Court’s original jurisdiction under s 39B of the Judiciary Act, it cannot be said that the present application is subversive of the appellate processes in the same way, notwithstanding, as I have said, that it would have been open to the applicants to have sought to raise the s 91X issues in the appeal.

86    This difference is highlighted by the fact that in Plaintiff S3/2013 a ground that the plaintiff sought to relitigate as of right in the High Court under s 75(v) of the Constitution was among the very grounds previously determined in the Federal Magistrates Court. In the present case, the specific s 91X issues that the applicants seek to raise in this application have not been previously decided. The previous issues decided by the primary judge on judicial review under s 476 of the Migration Act focussed on the applicants’ claims of jurisdictional error affecting the decision of the Refugee Review Tribunal. The issues on the appeal were directed solely to whether the primary judge had erred in failing to find jurisdictional error in the Tribunal’s decision. No question was raised concerning the effect of actions in the FCCA. Further, even though the applicants could have raised the s 91X issues in the appeal, their ability to raise them to allow full argument and definitive determination depended on the favourable exercise of judicial discretion to overcome procedural obstacles, the outcome of which was not certain. Given that these issues were not raised on the appeal, the favourable exercise of discretion was even more problematic in the special leave application. In these circumstances, it does not seem to me that it can be said that this application is subversive of the relevant appeal processes in the same way as the s 75(v) application in the High Court was held to be in Plaintiff S3/2013.

87    As I have said, the critical question is whether in the circumstances outlined earlier, the applicants are seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application. Put another way, given that they could have sought to raise the s 91X issues, the question is whether they should have done so.

88    Ultimately, the Minister, who bore the onus on this issue, has failed to satisfy me that the application should be properly characterised as an abuse of the process. This is in the main because the applicants, through their legal representatives, not only did not appreciate that there had been a breach of s 91X until after they filed their notice of appeal, they were not aware that, notwithstanding the replacement of the second publication by the third publication, the name of the first applicant continued to be identifiable in the subsequent online version of the primary judge’s reasons (through the “Corrections” note to the third publication, read with the second publication) and that the name of the second applicant (although not specifically identified as her name) was also disclosed from the time the first online version of his Honour’s reasons appeared until replaced by the fourth publication less than a month before the hearing of the special leave application. It is apparent, therefore, that, from the applicants’ perspective, at the time of the appeal, the known breach of s 91X had been brief and had been remedied. It is also relevant in this connexion to recall that one or both of the applicants themselves apparently had no great facility in the English language. As already observed, moreover, their ability to raise the s 91X issue either in the appeal proceeding in the Federal Court or in the special leave application in the High Court depended on the favourable exercises of judicial discretion to overcome procedural obstacles.

89    Another important consideration is, so it seems to me, that, as earlier stated, the appeal proceeding was focussed on what was in fact the conventional question, whether the primary judge had erred in failing to find jurisdictional error in the Tribunal’s decision. Given the applicants’ lack of knowledge of the ongoing disclosures in the third publication of the primary judge’s reasons, their failure to raise the s 91X issues on the appeal was, so it seems to me, reasonably explicable.

90    Even though, by the time of hearing of their special leave application, they can be taken to have been aware of the disclosure of the second applicant’s name in the third publication and the risk associated with the “Corrections” note to the third publication, the special leave application was properly directed to the judgment of the appeal judge and, as already stated, the applicants needed a favourable exercise of judicial discretion to overcome the fact that the issue had not been raised before the appeal judge.

91    In all the circumstances I would not conclude that the applicants are seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application. Put another way, although they could have raised the s 91X issues earlier, I would not conclude that they should have done, such that their failure to do so means that their present application is an abuse of the process of the Court.

92    Although courts are now less cautious than in the past to stay or dismiss a proceeding on the basis of an abuse of process, it still remains important “to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose”: see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 92 (Dixon J). In the circumstances of this case, I would not dismiss the present application, although instituted on reasonable grounds for a proper purpose, on the basis that it was an abuse of the process of the Federal Court because, if the applicants had had more knowledge and if the relevant judicial discretions had been exercised in their favour, they could have brought the issues they raise on the application for determination earlier on the appeal, or even the special leave application, where to do so would deprive them of the judicial determination of issues arising from the admitted breaches of s 91X, the determination of which is clearly important to them and, perhaps more generally, to the administration of justice in cases to which s 91X is directed.

The effect of a breach of s 91X

93    Whether a failure to comply with a statutory direction, such as that in s 91X, will result in an otherwise compliant act (or, as claimed here an associated act of giving judgment) lacking force and effect depends on the construction of the statute. As the joint judgment of the majority of the High Court in Project Blue Sky affirmed at [93], the preferred test for determining this “issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. In relation to a failure to comply with the statutory conditions attaching to administrative decision-making, Kiefel CJ, Gageler and Keane JJ made much the same point in Hossain at [27], saying:

The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

94    In construing a statute, the primary focus is of course the language used in the statutory text, acknowledging that the meaning of the text may, and often will, require consideration of the context, including the purpose and policy of a provision: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]. The ascertainment of purpose and policy may be assisted by reference to the history of a provision and relevant extrinsic materials.

95    Section 91X applies in a proceeding before, relevantly, the FCCA, if the proceeding relates to a person in his or her capacity as, relevantly, a person who applied for a protection visa: see s 91X(1) and (3). The relevant direction is in s 91X(2), which provides that:

The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.

The language is, as Mr Albert observed, clear, emphatic and unqualified, although the provision says nothing about the effect of an inadvertent failure by a relevant court to comply with the direction. One must look elsewhere for an answer to the question whether a failure to comply with s 91X has an invalidating effect on anything done by the court.

96    As already noted, the applicants relied on the Explanatory Memorandum accompanying the Migration Legislation Amendment Bill (No 6) 2001 (Cth) that introduced s 91X. This is, however, of limited, if any, assistance, merely stating the following as regards s 91X:

… 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.

97    It may be accepted that a purpose of the provision is to protect certain litigants, most particularly those who engage the statutory judicial review and appeal processes in an effort to vindicate their claims for asylum. Further, as Gray J said in VHAF at [6] “[a]nother possible, but unstated, purpose of s 91X may well be to restrict the possibility of claims of a need to remain in Australia based on the public exposure of the facts and alleged facts of the cases of those who apply unsuccessfully for protection visas”: see also the Explanatory Memorandum, “Outline” at [1], [5] and SZSSJ v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 125; 234 FCR 1 at [1]. There is, however, little else in the text and history of the provision to support Mr Albert’s submission that s 91X was intended to differentiate sur place claims arising from participation in relevant court proceedings from other sur place claims. There is certainly nothing that might support the proposition that the Parliament was more solicitous for the safety of applicants with sur place claims arising from the proceedings to which s 91X is directed than for applicants with sur place claims deriving from circumstances of a different kind.

98    Furthermore, the previous judicial consideration of s 91X of the Migration Act does not support the argument advanced by the applicants in this case that the judgment of the primary judge is vitiated by the disclosure of their names in the online versions of his Honour’s reasons for judgment.

99    EAU17 was an appeal from a judgment of a judge of the FCCA dismissing the applicants’ judicial review application under s 476 of the Migration Act. There were two grounds of appeal, the first being that the FCCA had “constructively breached s 91X … by publishing information sufficient to identify the [a]ppellant”, and the second alleging jurisdictional error on the basis that the administrative decision-maker had acted “unreasonably, illogically, [and] irrationally …”. Besanko J held, at [20] and [27], that the prohibition in s 91X related to the publication of a person’s name and, since there had been no publication of the appellant’s name, then there had been no breach of the provision. His Honour also accepted, at [26]-[27], that, as the Minister had submitted:

[E]ven if there had been a failure to comply with s 91X, such non-compliance would not demonstrate jurisdictional error in the decision of the [decision-maker]. It follows, that a breach of s 91X would not lead to a remedy involving the grant of certiorari to quash the decision of the [decision-maker].

100    His Honour said, at [27]:

A breach of s 91X does not, in my opinion, give rise to a jurisdictional error. Assume the Court pronounced orders after hearing submissions with reasons for judgment to be delivered later. The order would not move from being within jurisdiction to being beyond jurisdiction upon reasons for judgment which involved a breach of s 91X being published later. As far as the appellant’s claim for a declaration made orally is concerned, aside from the other reasons for refusing such a declaration, this appeal is not constituted as an action for a claim for a declaration involving the reasons for judgment of the Federal Circuit Court.

101    Derrington J followed Besanko J’s approach in DSO18 v Minister for Home Affairs [2020] FCA 286, saying at [12]:

… I am of the opinion that the approach of Besanko J in EAU17 is the correct one. The issue sought to be raised does not impinge upon the validity or the legality of the decision of the [decision-maker] or of the correctness of the decision of the primary judge.

102    More recently, in C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70, a Full Court dismissed the appellants’ interlocutory application seeking a suppression order under s 37AF of the FCA Act to supress a number of names. Having given their reasons for dismissing this application, the Court added, at [18], that:

Nevertheless, s 91X of the Migration Act 1958 (Cth) prohibits the publication of the name of a person who applied for a protection visa in a proceeding before the Court. Having regard to the conclusion reached by the Tribunal, the name appearing in the fifth line of para 22, in para 100, and in the second line of para 110 of our reasons for judgment should be suppressed on this basis, notwithstanding the fact that it is not the name the first appellant professed to have or by which the first appellant claimed to be known. We will therefore make an order to this effect under that section.

103    That, is, the Full Court ordered that:

Pursuant to s 91X of the Migration Act 1958 (Cth), the name appearing in the fifth line of para 22, in para 100, and in the second line of para 110 of the judgment in C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63 not be published in electronic form or otherwise.

The making of this order, though intended to be remedial, is, so it seems to me, inconsistent with the proposition that a breach of the prohibition in s 91X results in jurisdictional error in the relevant judgment of the Court.

104    As a general rule, it is important for the proper administration of justice that single judges of this Court aim for uniformity in the interpretation of Commonwealth legislation. Hence, a judge of this Court should follow an earlier decision of another judge of the Court unless persuaded that it is plainly wrong: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at [83]-[89] (Greenwood J, with whom Sundberg J agreed); BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8; 258 FCR 521 at [43]. Further, as French J noted in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; 133 FCR 190 at [52]:

Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is “clearly wrong” is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

See also BHP Billiton Iron Ore at [89] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; 260 FCR 564 at [84]-[85].

105    For this reason alone, I would follow the decisions of Besanko J in EAU17 and of Derrington J in DSO18, both of which are consistent with the approach of the Full Court in C7A/2017. Whether Besanko J’s two reasons for rejecting the appellant’s s 91X ground in EAU17 were both part of the ratio decidendi need not be decided here.

106    In any event, in my view, the Parliament should not be taken to have intended that, by reason of a breach of s 91X, an order or judgment of the FCCA (or any other court to whom the prohibition is directed) is deprived of force and effect. The proposition that a breach of s 91X would take the exercise of a court’s judicial function outside its jurisdiction would lead to some anomalous results that cannot have been intended. Were a relevant court to pronounce judgment after hearing submissions in a proceeding to which s 91X applied, with reasons for judgment to be delivered thereafter, then, if the applicants’ submissions are correct, the judgment would be invalidated subsequently were these reasons inadvertently to include the name of an applicant for a protection visa. Absent clear words, I would not impute to Parliament an intention that a judgment within jurisdiction when pronounced travels outside jurisdiction because of an inadvertent breach of s 91X after the delivery of reasons. Further, it cannot have been Parliament’s intention that whether a breach of s 91X renders a judgment beyond the relevant court’s jurisdiction depends on whether judgment was delivered before or after the reasons for judgment were given.

107    If the purpose of s 91X is, moreover, to minimise the risk of harm to a protection visa applicant arising from the publication of his or her name by the court in which he or she is seeking to pursue asylum-related claims and to reduce the possibility of sur place claims arising as a consequence, it is difficult to see how this purpose could be served by holding the court’s judgment invalid because of an inadvertent s 91X breach in the court’s reasons for judgment. As the Minister submitted, if, counterfactually, there had been no s 91X breach, this could not have affected the result of the judgment. This is not to deny that the giving of reasons is an exercise of the judicial function: see Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[56]. Rather, it is to focus on the function that the reasons of the primary judge were to fulfil. This was to explain how the court arrived at its judgment on evidence adduced and submissions made by the parties before the breach occurred. I accept that, as Mr Wood submitted, a failure to comply with the s 91X prohibition in these circumstances does not impinge upon the capacity of the court to discharge the function it has been called on to fulfil, which was to hear and decide, for reasons stated, the judicial review application then before the court. The effect of acceding to the applicants’ submissions about the operation of s 91X in this case would be to undermine the administration of justice in proceedings of the kind to which s 91X applies. I would not impute to the legislature such an intention in the absence of clear and unambiguous language.

108    Section 91X creates a duty of imperfect obligation. Courts to which the prohibition is directed are under a duty not to publish the names of certain persons in relation to the proceedings to which the prohibition applies. The statutory obligation in s 91X does not support the conclusion that the Parliament intended that a court’s failure to comply with the prohibition in the provision would invalidate the judgment of the court. Section 91X does not withdraw jurisdiction from the court on account of a breach on its part of the prohibition in s 91X.

109    This is not the occasion to examine in detail the complexities of a duty of imperfect obligation. It suffices to say the concept of a duty of imperfect obligation is known in diverse areas of the law. It is, for example, not uncommon for Commonwealth and State legislatures to impose a “duty” on a public office holder or corporation to take or not to take certain action, even though the duty is not enforceable in the courts: compare Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 749-750 and Environment East Gippsland Inc v VicForests [2010] VSC 335; 30 VR 1 at [304]-[311]. Such a duty has been described as a duty of imperfect obligation: see, for example, Environment East Gippsland at [305]. A duty of imperfect obligation is recognised in many other contexts: see, for example, Re New World Alliance Pty Limited; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 at 445; Glennan v Commissioner of Taxation [2003] HCA 31; 198 ALR 250 at [13]; Bromby v Offenders’ Review Board (1990) 51 A Crim R 249 at 255-256; Adler v District Court of New South Wales (1990) 19 NSWLR 317 at 330-332 (Kirby A-CJ, Mahoney JA agreeing at 340-344); Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane [1977] HCA 15; 136 CLR 353 at 371; and HAJ Ford and WA Lee, Principles of the Law of Trusts (Thomson Reuters, 2016) at [5.12110]; cf. The King v The Governor of the State of South Australia [1907] HCA 31; 4 CLR 1497 at 1511; Werrin v Commonwealth [1938] HCA 3; 59 CLR 150 at 168 (Dixon J).

110    A reference to two instances is illustrative of the way courts have approached statutory provisions relevantly similar to s 91X of the Migration Act. In Glennan, Gummow, Hayne and Callinan JJ held, at [13], that s 78B of the Judiciary Act did not purport to withdraw the continued exercise of jurisdiction in a cause to which it applied where there was a failure by the court to comply with the observance of its direction “not to proceed in the cause unless and until” the court was satisfied that the requisite notice had been given to the Attorneys-General and the relevant time had elapsed. “In that sense”, so their Honour said, “the ‘duty’ which s 78B imposes is one of imperfect obligation”. In Bromby at 256, Kirby P described the statutory obligation in s 34(3) of the Sentencing Act 1989 (NSW) to state reasons for the respondent’s revocation of the appellant’s parole as expressing a duty of imperfect obligation that did not support a conclusion that Parliament intended “that a failure to comply with the subsection would invalidate all that followed”, a conclusion with which Clarke and Handley JJA agreed, at 275-276.

111    It does not follow from the fact that s 91X is a duty of imperfect obligation that a person whose name is published in breach of the prohibition in s 91X can do nothing, though believing that the publication has given rise to a further need for him or her to obtain asylum in Australia. Section 48B of the Migration Act would permit such a person to request the Minister to allow him or her to make a further protection visa application. Further, under s 417 the Minister may substitute a more favourable decision for a Tribunal decision in the circumstances there set out: cf ss 351, 195A. Under provisions such as these, it is, however, for the executive branch of government, not the courts, to decide that the person’s position should be reconsidered and ultimately whether permission to remain in Australia should be given.

112    I reject Mr Albert’s submission that Mohammed supports a general proposition applicable in this case that, by reason of events occurring subsequent to an administrative decision, a blameless administrative decision-maker can be found to have erred. Mohammed concerned a narrow issue. The difficulty in Mr Mohammed’s case stemmed initially from the decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 that it had been an error of law for the Tribunal to have confined its consideration of the criteria for a visa to those applicable at the time of a review applicant’s original application. Following Waensila, it was agreed by the Minister and Mr Mohammed in 2018, in the course of judicial review proceedings, that the then extant decision on Mr Mohammed’s application for a Temporary Partner visa should be set aside and the application remitted to the Tribunal to be determined according to law. Accordingly, when the Tribunal refused Mr Mohammed’s application for a Permanent Partner visa (the circumstance that fell for consideration in Mohammed), as it had done in 2017, the Tribunal could not have known that the decision on his Temporary Partner visa was, in law, no decision at all (because the decision would later be set aside). A determination of his application for a Temporary Partner visa was held to be in the nature of a condition precedent to consideration of his application for a Permanent Partner visa and, in consequence, the Tribunal’s decision on the Permanent Partner visa was made in jurisdictional error. With the above in mind, I conclude that Mohammed addresses a qualitatively different situation from the present case, and clearly does not stand for the general proposition said by Mr Albert to be applicable here.

113    In case it be thought I had overlooked the applicants’ procedural fairness argument, I would expressly reject it. I accept that, as Mr Wood submitted, no issue of procedural fairness could arise in the face of the unqualified prohibition in s 91X. The decision in DWN042, where the High Court held that the failure by a judge of the Supreme Court of Nauru to consider the appellant’s notice of motion attempting to reinstate two grounds erroneously struck out by his Honour, “involved, at least, a failure to accord procedural fairness”, provides no analogy with the present case.

Disposition

114    No basis has been shown to grant the applicants the prerogative and injunctive relief they seek. Their claim for a declaration that the first and second applicants satisfy the criteria in s 36(2)(a) of the Migration Act is untenable, having regard to the fact that within the framework established by the Migration Act this issue falls to be determined by the Executive, not the courts, on a pending application for a relevant visa.

115    Further, I would not make any other declaration of the kind the applicants sought at the hearing. In a much-cited passage in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-582, Mason CJ, Dawson, Toomey and Gaudron JJ cited Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 (Mason J) and 189 (Aickin J) in support of the accepted proposition that declaratory relief would not be granted “if ‘the Court's declaration will produce no foreseeable consequences for the parties’”.

116    This proposition was taken up on appeal in Ozmanian, where Kiefel J, with whom Sackville J agreed, referred to the discussion in Ainsworth and other cases before concluding, at 32, that “[a] declaratory order must be productive of some effect before it could be said to be warranted”. In discussing what effect would suffice, her Honour went on to say (at 32-33):

In the present case Mr Ozmanian’s reputation was not impeached in any way by the conduct or by the decision which followed, although the latter was not relevant to his Honour’s assessment. And, whilst his Honour was correct to observe that the consequences for the applicant “of the processes followed by the Department” were drastic, that is because a decision was made upon them. The declaration could in no way redress it save for some ill-defined prospect that the Minister might be moved to consider it. Indeed his Honour put it no more highly than a possibility that a valid decision might be made at some time in the future. …

Regardless of the source of power for the grant of a declaration of this kind, the object of it, in the context of its effect on other proceedings, must be the determination of matters in controversy between the parties and the limitation of proceedings. This finds expression of course in s 22 of the Federal Court of Australia Act 1976 (Cth). …

This is not a case, such as Ainsworth, where the judicial pronouncement was seen to have some mitigating effect on damage suffered by him personally, in the sense of his reputation or business interests. In the context presently under consideration its use can only be justified if it serves to do justice between the parties to the controversy by playing a part in the resolution of their dispute.

… In my respectful opinion it will be a rare case where a bare declaration will be seen to be justified and the present is not such a case.

117    The authorities establish that the declaration sought by the applicants at the hearing should not be made. There is no dispute between the parties that the FCCA breached the prohibition in s 91X in the manner set out above. A declaration of the kind contemplated in WZAUP would not have utility, in that it would not serve to resolve matters in controversy between the parties. The possible effect of the undisputed breaches of s 91X on the applicants as asylum seekers is a matter for the Minister to consider in relation to any future exercise of statutory power under the Migration Act.

The second affidavit

118    As mentioned at the outset of these reasons, after the hearing, the applicants filed an affidavit affirmed by a paralegal in the law firm presently acting for the applicants. According to the deponent’s account, a lawyer other than the deponent had seen the name of the first applicant on the Commonwealth Courts Portal in connection with the FCCA matter on the date the affidavit was filed. Whether the route taken by the lawyer to access the Portal was open only to the parties and their lawyers, or was a publicly available one is not disclosed. The lawyer did not make an affidavit indicating what route he had taken. Responsibility for the Portal did not lie with the primary judge. It may not lie with the FCCA. It may lie with some other entity. The applicants did not seek to make any submissions about the affidavit and the matters touched on in it. In any event, the affidavit does not concern the breaches of s 91X that occurred in the online publication of the reasons for judgment of the primary judge in the FCCA. These were the breaches with which this application was concerned. Although the Minister did not oppose the tender of the affidavit, it does not seem to me that its contents were directly relevant to the issues that arose on the present application, save perhaps in so far as the affidavit bore on the possibly enhanced risks to the applicants as asylum seekers occasioned by the availability of the information on the Portal. This issue would also likely be a matter for the Minister to consider in relation to any future exercise of statutory power under the Migration Act.

How should the first respondent be styled?

119    Section 8(4) of the Federal Circuit Court of Australia Act 1999 (Cth) provides that “[t]he Federal Circuit Court of Australia consists of … a Chief Judge; [and] such other Judges as from time to time hold office in accordance with this Act”. The Court has no legal personality separate and distinct from its Chief Judge and Judges and, as Perram J said in CQX18 v Minister for Home Affairs [2019] FCA 386 at [3], “[n]o question of whether the Court is an officer of the Commonwealth therefore arises” because all of its constituent parts are officers of the Commonwealth amenable to relief under s 39B of the Judiciary Act.

120    Where relief is sought under s 39B against the FCCA, the respondent has sometimes been styled a “Judge of the Federal Circuit Court of Australia”. In such a case, the respondent is understood to stand for the Court, since the judge has exercised the Court’s jurisdiction or purported to do so in making or doing (or omitting to make or do) the challenged act. In a case such this, however, a preference is emerging for the respondent to be styled “The Federal Circuit Court of Australia”: see CQX18 at [3]-[4] and DFT17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 383 at [2]. In the present case, the first respondent should, it seems to me, be styled “The Federal Circuit Court of Australia” better to reflect the relief sought in the proceeding. The parties are in agreement with this course. Accordingly, I would order that the first respondent be styled “The Federal Circuit Court of Australia”.

Conclusion

121    For the reasons stated, the application should be dismissed, with costs. It will also be ordered that henceforth the first respondent be styled The Federal Circuit Court of Australia.

Associate:

Dated:    4 May 2020

SCHEDULE OF PARTIES