Federal Court of Australia

EKJ20 v Federal Circuit Court of Australia [2020] FCA 1461

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the second respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This case was heard immediately after the proceeding which is reported as EKH20 v Federal Circuit Court of Australia [2020] FCA 1460. The cases raise similar issues albeit in a different factual setting.

2    The applicant seeks declaratory relief concerning the publication in a judgment of the Federal Circuit Court of Australia (FCCA) of information which allegedly identifies the applicant. The applicant claims that publication of the identifying information gives rise to a sur place claim for protection. The applicant’s solicitor advocate, Mr Daniel Taylor, confirmed in oral submissions that the balance of the grounds in the amended originating application (grounds 1 and 3) were not pressed.

3    For the following reasons, which are similar to those in both BBE15 v Federal Circuit Court of Australia [2020] FCA 965 and the matter heard immediately before this case, the amended originating application will be dismissed with costs. I appreciate that there is an appeal pending from BBE15 but I am not persuaded that the relevant reasoning should not be applied here.

4    To avoid exacerbating the applicant’s concerns which are raised in this proceeding, in describing the alleged identifying information these reasons will be more circumspect than normal. In addition, and with the parties’ consent, a new pseudonym was allocated in this case. This approach was also adopted in the related earlier case.

Applicant’s case and claims summarised

5    The alleged identifying information which was published by the FCCA in respect of which relief is sought is:

(a)    the applicant’s date of birth and date of arrival in Australia;

(b)    his birth town;

(c)    the name of one of his elder brothers who was an active member of an anti-government military group and was presumed to have been killed;

(d)    the name of another brother whom he claimed had been detained and questioned;

(e)    his severe personal leg injuries which he claimed caused him to be subject to high suspicion and adverse attention from the authorities in his country of origin; and

(f)    the mode of his arrival to Australia.

6    The applicant said that his fears of identification relate to the risk of harm to him arising from the identification of him as associated with a particular pseudonym, in connection with which publication was made of his claims of beating and ill-treatment of him, and his elder brother, on suspicion of involvement with the anti-government military group in his country of origin.

The applicant’s claims for declaratory relief summarised

7    The applicant claimed that the Court has power under s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to grant the declaratory relief sought.

8    Declaratory relief is sought to resolve whether the FCCA made an error of law and failed to afford the applicant procedural fairness by publishing the identifying information in its reasons for judgment.

9    The applicant contended that the Court’s power under s 21 of the FCA Act to make binding declarations of right is not abrogated merely because the Minister’s power under s 48B is non-compellable. This was said to be because the “right” referred to in s 21 is the very right to make a declaration and does not mean an antecedent right, interest or expectation. No claim of jurisdictional error was raised.

10    Rather, the applicant contended that the declaratory relief sought “would be of foreseeable consequence to the administration by the Minister’s department of the Guidelines decided by the Minister by which the Department is to refer to the Minister for his consideration requests or cases for Ministerial Intervention under s 48B of the Act” (s 48B Guidelines). The s 48B Guidelines require there to be exceptional circumstances before matters are referred to the Minister, including the existence of any “new information” which is likely to engage Australia's protection obligations.

11    The applicant submitted that a declaration of judicial error on the face of reasons for judgment, where the error or breach gives rights to a sur place claim, could amount to “new information” for the purposes of warranting a referral under the s 48B Guidelines. The applicant claims that the relief sought is different from that discussed in AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [2] and WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116 at [22].

The Minister’s submissions summarised

12    To avoid duplication, I will not summarise the Minister’s submissions because they are substantially reflected in my reasons for dismissing the amended originating application.

Consideration and determination

(a) Relevant legislation

13    Section 48B provides the Minister with a non-compellable power of intervention:

48B    Minister may determine that section 48A does not apply to non-citizen

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)    The power under subsection (1) may only be exercised by the Minister personally.

(3)    If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

   (a)    sets out the determination; and

  (b)    sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

(4)    A statement under subsection (3) is not to include:

   (a)    the name of the non-citizen; or

   (b)    any information that may identify the non-citizen; or

   (c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

(5)    A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

(b) Declaratory relief

14    The Minister contended that this claim for relief amounted to an abuse of process because it could, and should, have been raised in the appeal to this Court in 2013. It is unnecessary to determine this contention because, for the reasons which will now be given, there is no basis for the substantive relief sought.

15    The applicant has not demonstrated any procedural unfairness. The FCCA’s references to the information complained of by the applicant did not contravene any statutory provision.

16    Whilst procedural fairness may require that a person be put on notice of any adverse finding to be made in the judgment of a Court, statements of fact and detail such as those contained in the judgments, cannot be considered adverse in the relevant sense. Those factual matters do not relevantly affect any right or interest of the applicant (Kioa v West [1985] HCA 81 per Brennan J; 159 CLR 550 at 616-617; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [66] per Gummow, Hayne, Crennan and Bell JJ).

17    The applicant contended that it was unfair of the FCCA to publish the identifying information and to put him at risk of harm. The applicant did not contend that he was entitled by procedural fairness requirements to see and comment on a draft of the FCCA’s reasons for judgment.

18    It is evident that the applicant’s complaint is not truly characterised as one of procedural unfairness, but rather as one of substantive unfairness directed to the content of the FCCA’s reasons for judgment (see BBE15 at [59]). For this additional reason, his procedural fairness claim must fail.

19    Absent any established legal error, there is no basis for the grant of declaratory relief. I reject the applicant’s contention that the Court’s power to make “binding declarations of right” does not require the identification of an antecedent right. The purpose of a declaration is to resolve a real controversy regarding the legal rights and liabilities of the parties (Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 436-438; Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69 per Mason J and at 71 per Aickin J and Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-582).

20    The applicant’s claim for declaratory relief is not assisted by Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319. There, the High Court held at [76] that the decision to consider whether non-compellable powers under ss 46A and 195A should be exercised directly affected the rights and interests of those who are the subject of the assessment or any review because it prolonged their detention for so long as the assessment and any review took to complete. Furthermore, it held at [78] that consideration of the exercise of those non-compellable powers included steps taken to inform that consideration, which steps had to be procedurally fair and in accordance with legal principle. The High Court concluded that the applicant had been denied procedural fairness by the reviewer whose task was to determine whether Australia had protection obligations to a person. If the reviewer concluded that it did, the Department prepared a submission to the Minister for consideration of the exercise of his or her non-compellable powers under ss 46A or 195A. No such submission was made if the reviewer concluded that protection obligations were not owed.

21    Although concluding that mandamus was not available because the Minister’s powers under ss 46A and 195A were non-compellable and there was no utility in granting certiorari to quash the reviewer’s recommendation, the High Court concluded that declaratory relief should be granted because the reviewer had made an error of law and denied procedural fairness. The Court said at [103] (footnotes omitted):

In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a "real interest" in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.

22    The circumstances in Plaintiff M61/2010E are very different from those here. That is because there was a finding in that case that the Minister had commenced to consider whether or not to exercise the relevant non-compellable powers (see at [70]). That is not the position here. The circumstances here are similar to those in Plaintiff S10/2011, where again no such consideration had commenced (see at [66] per Gummow, Hayne, Crennan and Bell JJ). I do not consider that Plaintiff M61/2010E provides any support for the applicant’s complaint of procedural unfairness.

23    Nor is there present in this case the kinds of matters which were identified by Heydon J in Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [38] as warranting the grant of declaratory relief.

24    Finally, the declaratory relief sought is inappropriate. The applicant acknowledged that the purpose of the declaratory relief sought is to attempt to influence the outcome of a future application to the Minister in respect of the non-compellable power in s 48B of the Act. The object of the grant of declaratory relief is to determine matters in controversy between the parties. Declaratory relief is inappropriate in circumstances where the relief would have no foreseeable consequence other than “some ill-defined prospect that the Minister might be moved to consider it” in relation to some separate decision-making process that may or may not occur (Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; 71 FCR 1 at 32-33 per Kiefel J (with whom Sackville J agreed) and AVN20 at [115]-[117] per Kenny J).

25    For completeness, I reject the applicant’s oral submission that the Court should take upon itself the task of rectifying gaps in the legislative regime regarding the protection of identifying information relating to protection applicants. For example, it was suggested that the Court should issue a direction to the FCCA as to what should or should not be included in relevant reasons for judgment. To the extent that there are any such gaps, it is a matter best left to the Parliament. It is not for this Court to embark upon an exercise in law reform.

Conclusion

26    For these reasons, the amended originating application will be dismissed, with costs.

Associate:

Dated:    9 October 2020