Federal Court of Australia

BPBR v Minister for Immigration and Multicultural Affairs [2024] FCA 1289

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

4.    Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to protect her safety, any information tending to reveal the identity of the applicant not be published or otherwise disclosed for a period of 7 years.

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

REASONS FOR JUDGMENT

RAPER J

1    The applicant is an Albanian national who came to Australia in 2011. On 28 August 2013, the applicant was convicted (without penalty) of two offences which related to cultivating cannabis (‘the 2013 offences’). In 2017, the applicant was further charged with offences of “cultivate a commercial quantity of controlled plant—basic” and “abstract or divert electricity from power system” and of “possess prescribed equipment” as a result of hydroponic equipment being found at a property where she held the lease. On 14 March 2019, the applicant was convicted of these charges relating to the cultivation of cannabis and entered a guilty plea, leading to a fine and a term of imprisonment (which was suspended) (‘the 2017 offences’).

2    As a consequence of this conviction, the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa was cancelled on the basis that the Minister’s delegate determined that she was reasonably suspected not to pass the “character test” contained in s 501(2) of the Migration Act 1958 (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal. On 26 April 2024, the Tribunal reaffirmed the delegate’s decision to cancel her visa: BPBR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 1002 (AAT).

3    In these proceedings, the applicant seeks to review the Tribunal’s decision. There are three issues for determination. The applicant claims that the Tribunal’s decision ought to be quashed on three bases (two grounds of review were not pressed at hearing): First, whether the Tribunal denied her procedural fairness in finding that there was “a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences” (AAT[106]) by failing to put this to her or where it was purportedly not open on the known material that this issue was a live one. Secondly, whether the Tribunal failed to consider the consequences for the applicant and her unborn child in the event that the Tribunal decided to cancel her visa. Thirdly, whether the Tribunal erred in proceeding on the basis (AAT[109]) that there were no minor children whose interests had to be considered when considering the best interests of minor children in Australia.

4    For the reasons which follow, the applicant’s application must be dismissed. I can discern no error in the Tribunal’s reasons.

The Tribunal did not deny the applicant procedural fairness

5    The first issue concerns whether the Tribunal denied the applicant procedural fairness in finding that there was “a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences” (AAT[106]) by failing to put this to her and/or where it was purportedly not open on the known material that this issue was a live one.

6    The applicant concedes that she was on notice as to the question of the likely risk of her further offending was an issue to be determined by the Tribunal in the context of its review of the delegate’s decision. The applicant also conceded that she knew that her attempt to say that she was not “willingly involved” in her offending (and therefore her claim of duress) may be rejected. In addition, the applicant conceded, at hearing, that she knew that her allegation of duress might be seen as her not taking responsibility for what she had done and therefore be a basis for why she was at risk of reoffending.

7    The gravamen of the applicant’s complaint of a denial of procedural fairness was that she said that the Tribunal had failed, at a “sufficiently granular” level, to identify and notify her at the hearing of a relevant “issue”, which was described as an “affirmative finding of risk of falling back [under] the influence of people she’s no longer associated with”. It was submitted that the rejection of her evidence does not naturally lead to a conclusion, that in the circumstances of this case, that there was a real risk that she would fall back under the influence of the persons with whom she associated at the time of the relevant offending and thereby be led to commit further offending.

8    For the reasons which follow, I reject the applicant’s contention: The Tribunal did not deny her procedural fairness.

9    The question to be determined is what was required in order to ensure that the decision was made fairly in the circumstances having regard to the applicable legal framework under which the decision was to be made: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at 335. Neither party sought to deploy nor disagree as to how the statutory framework of this case informed the exercise. It was without dispute that by operation of s 501 of the Migration Act, the Minister, or his or her delegate may refuse or cancel a visa on character grounds. Relevant to the circumstances of this case, s 501(2) provides that the Minister may cancel a visa that has been granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

10    Section 501(6) prescribes the different circumstances where a person does not pass the character test. In this case, the delegate identified the relevant circumstance as being, pursuant to s 501(6)(a), the person having ‘a substantial criminal record’ (as defined by s 501(7)). A ‘substantial criminal record’ includes where a person has been sentenced to a term of imprisonment of 12 months or more.

11    In the absence of statutory modification, examples of what procedural fairness requires include the decision-maker identifying for the affected person any critical issue to the decision not apparent from its nature or the terms of the statute under which that decision is made and also giving the affected person an opportunity to respond to any adverse conclusion drawn by the decision-maker on material supplied by, or known to the affected person, which is not an obvious and natural evaluation of that material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591. Accordingly, it is essential to understand the factual context in which the Tribunal’s decision was made in this case.

12    In this case, given there was no challenge of the finding that the applicant did not pass the character test, the delegate and then the Tribunal proceeded to consider whether, as a matter of discretion, the applicant’s visa should be cancelled. To that end, they were required to consider the statutory direction made under s 499 of the Migration Act: “Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA”.

13    The “primary considerations” required to be considered by Direction 99 were:

•    the protection of the Australian community, taking into account the nature and seriousness of [the applicant’s] criminal offending or other serious conduct, and the risk to the Australian community should [the applicant] engage in further criminal or other serious conduct;

•    whether the conduct engaged in constituted family violence;

•    the strength, nature and duration of ties to Australia;

•    the best interests of minor children in Australia; and

•    the expectations of the Australian community.

14    As is evident from the above and conceded by the applicant, part of the Tribunal’s review involved, amongst other matters, the first primary consideration, namely the risk to the Australian community should she engage in further criminal or other serious conduct.

15    In the decision which was the subject of the review before the Tribunal, the Minister’s delegate had found that “there remains a possibility that [the applicant] will reoffend or further engage in serious conduct”: D[68]. The delegate “remain[ed] concerned by the lack of information regarding [the applicant’s] rehabilitation and her ongoing ability to remain crime free in the community”. In coming to this conclusion the delegate stated that they had had regard to the nature of the applicant’s past offending. The delegate had made reference to the fact that the veracity of the applicant’s claims as to the circumstances of her offending had been rejected. In the context of considering the nature and seriousness of the conduct, reference was made to the applicant’s claims regarding the circumstances of both the 2013 (including allegedly being under duress) and 2017 offending as being found by the sentencing judge to be “unconvincing” (respectively D[35] and D[27]). As part of the delegate’s assessment of the likelihood of re-offending, consideration was given to factors relevant to the applicant’s past offending.

16    The delegate gave consideration to her (then) remorse, which the delegate accepted (D[60]) and took into account the “limited information regarding any rehabilitation [the applicant] had undertaken to help her avoid similar offending in the future” such that the delegate stated critically that they “remain concerned about her ongoing ability to remain crime free in the community”: D[63].

17    Accordingly, there was no basis upon which the applicant could not contend that a live issue before the Tribunal (about which she was on notice) was whether there was risk that she would reoffend in the future, that her claims as to the circumstances of the offending (and her being under duress) would not be accepted, that her claims of being under duress would be seen as a lack of acceptance of responsibility and indicative of there being a risk of reoffending and where she changed her claims as to the circumstances of offending would further amplify the reasons for there remaining a risk she could not “avoid similar offending in the future” and “remain crime free”. These were all matters which the delegate had taken into account in refusing her visa.

18    There was no dispute that when considering the first primary consideration, the Tribunal was required to consider the risk of future harm to the Australian community should the non-citizen commit further offences. As part of this consideration, the Tribunal identified two sub-issues: (a) the nature of the harm (about which no challenge is made with respect to the Tribunal’s finding: at AAT[99]–[100]); and, (b) the likelihood of the applicant engaging in further criminal conduct: at AAT[101]–[108]. The applicant takes issue with one aspect, at AAT[106], of the Tribunal’s reasons.

19    It is necessary to contextualise this impugned aspect of the Tribunal’s reasons. It appears under the heading “Likelihood of the applicant engaging in further criminal conduct”. The Tribunal found that it was difficult to determine how likely it is that the applicant would re-offend for numerous reasons: First, the Tribunal rejected the evidence of a psychologist, Ms Stark, in this respect: AAT[101]. Secondly, the Tribunal rejected the “general tenor” of the applicant’s case that her offending could be explained away by her relationship with her former husband (GN) and given that relationship had ended, no further offending was likely: AAT[102]–[105]. Thirdly, and related to the second issue, the Tribunal found that her offending began before she had even met GN and where she did it for “someone in an organised group in 2013” and under duress such that there was someone else who had “some kind of hold on her and could induce her to engage in criminal conduct”: AAT[103].

20    It is in this context that the Tribunal then found, at AAT[106], (about which the procedural fairness ground is based):

In the absence of a detailed understanding of how the applicant was drawn into the cannabis growing network in the first place it is difficult to assess how likely it is that she will be able to avoid doing work for that network again. When she was giving evidence to the Tribunal the applicant was clearly scared of threats that could be made against her and her family and believed that, if the threats were made, she could not go to the police. In these circumstances there is a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences.

21    It is my view that the applicant has not been denied procedural fairness given the applicant was on notice of the issue and the Tribunal’s conclusion was an obvious and natural evaluation of the evidence for the following reasons.

22    First, the applicant was on notice, by reason of what the delegate had identified as being the issues leading to their conclusion that there remained a possibility that the applicant will reoffend or further engage in serious conduct, as set out above.

23    Secondly, it was the applicant who raised before the Tribunal that she would not reoffend because, amongst other things, she had not been a ‘willing participant’ in both the 2013 and 2017 offending by reason of purported duress. The applicant filed a Statement of Issues, Facts and Contentions in the Tribunal. She did not file a witness statement but relied on oral evidence to the same effect as that contained in her Statement of Issues. In that Statement of Issues, as to why, on her case, she was not a risk to the Australian community, the applicant challenged the delegate’s reasons by making reference to: “the delegate, when deciding to cancel her visa, did not question the evidence before him/her that, in relation to the charges of 2017, it was clear that she did not act alone”, she then went on to claim:

There was certainly evidence before the Court, and subsequently before the Department, that she was being threatened and forced to agree to criminal activities by criminal males who escaped apprehension and charges because of her profound fear and failure [of them or others] to reveal their identities.

There is, sadly, no evidence of any police action taken to apprehend the real offenders – the two alleged growers – or offer the applicant protection and/or assistance if she assisted police find the culprits.

(my emphasis)

24    The applicant then claimed that the sentencing judge had ignored her claim of being under duress and as a consequence stated that:

No-one was interested in helping me. No-one asked me anything about what had happened to me. I felt no-one cared and if I told what really happened – that I was being forced and threatened to do things against my will – I would not be believed and that I and my family in Albania would suffer. I was so scared.

25    She then claimed that no weight should be given to the sentencing remarks of the sentencing judge in 2019 (regarding the 2017 offending) for reasons which included the “trivialisation of evidence that the Applicant was the subject of domestic violence and that she lived in fear of repercussions if she did not do exactly what she was told to say and do” and where she claimed that the reality was she “continually incriminated herself out of fear of reprisals” and there was a “real story” which was not known, and completely contrary to what she had told the sentencing judge as to her circumstances in 2016 and 2017 (including the reasons for her leaving the country—apparently her mother had not been dying of cancer but had had an accident).

26    By this new account, she claimed, that she lived in the Kilburn house with GN, she left him there to go to Albania, that there were no cannabis plants or any equipment in the house when she left and the electricity had not been diverted. That is contrary to the finding of the sentencing judge, these things were done “with her permission”.

27    In her submission it was then postulated on her behalf:

It is contended that even if the prosecution case was true – that she agreed to the cultivation of cannabis and permitted the electricity to be diverted – then the evidence was that she did so under threat from one of the growers.

28    Accordingly, the submission was apparently made in the full knowledge that the about-turn in her description of these events (and her culpability) may be rejected by the Tribunal.

29    Ultimately she made the following submission:

...she was a victim of domestic violence and that this fact should be given maximum weight by the Tribunal in consideration of the conviction which has lead (sic) to the cancellation of her visa.

She further contends that she is NOT a risk to the Australian community as she was not a willing participant in the crimes with which she was charged and convicted.

The applicant contends that there is no possibility that she will reoffend. She is pregnant and her partner intends to migrate on a skilled visa if accepted to Australia. He is a person of good repute and does not have a criminal record anywhere in the world.

The applicant contends that she was vulnerable on both the occasions in 2013 and 2017 because she was alone and did not speak English well.

30    In continuing to blame her past misdeeds on others, she went on to submit:

The applicant further contends that the Australian community expects that women in Australia will be protected from acts of violence towards them and their families. The Australia[n] community expects a higher standard of policing and community care than has been evidenced towards the applicant in the past.

31    Thirdly, the applicant was on notice of the likely steps in the reasoning that might lead to a conclusion that there was a likely risk of her further offending was illuminated in the Minister’s written and oral submissions before the Tribunal. The Minister’s written submissions put the applicant on notice that it would submit that there remained a risk that the applicant would reoffend given the following matters: the limited weight that could be given to Ms Stark’s evidence; there was no evidence to demonstrate that the applicant had engaged in any rehabilitation programs or courses to address her offending behaviour; the applicant had sought to diminish the crimes with which she was charged by “refut[ing] much of what was attributed to her by her past migration lawyer, and the sentencing remarks” (drawing to the Tribunal’s attention to the claim of duress—by reference to lines 320–327 of her Statement of Issues); and she sought to minimise her offending and to place blame on others, which demonstrated a failure to take accountability for her offending behaviour. The Minister reiterated the same in closing submissions.

32    Fourthly, at the hearing before the Tribunal, the applicant gave evidence which would, on any view, logically lead to the conclusion that the Tribunal reached about the involvement of others in her offending and her being under the influence of other unidentified individuals. In her oral evidence she stated that she pleaded guilty to the 2017 offences because she “couldn’t mention names” of whom she knew were guilty because she has family. She was then asked by her lawyer that “according to the documents before the court, before the tribunal, there are two other people at least involved in that [the cultivation of marijuana]” which she confirmed was her understanding.

33    When asked about the circumstances of the 2013 offending, later in her examination in chief, she gave the following evidence about the alleged duress arising with respect to both the 2013 and 2019 convictions:

And that basically when you were speaking to the police, you said you were under pressure at that time, you couldn’t speak, you couldn’t – now, what you have said at paragraph 52 was, ‘No one was interested in helping me. No one asked me anything about what had happened to me. I felt no one cared, and if I told what really happened, that I was being forced and threatened to do things against my will, I would not be believed, and I and my family in Albania would suffer. I was so scared’. So the same kind of feeling – was that carried over to you in 2019?---Yes.

So that statement applied to you when you met – when you were in 2013, and again in 2019?---Yes.

And you say – you tell the tribunal that these people were all basically criminals?---Of course they are.

False names?---False names. They use many. Not just one.

And so are you still scared?---Of course. That’s why I’m moved from Adelaide; I came to Sydney.

Sorry?---That’s why I moved from Adelaide to Sydney.

Why? Explain why exactly?---Because scared. And I don’t want to be mixed in for nothing. I don’t want trouble anymore. And even the address now; no one knows where I live. I put a PO Box. Everything to go in PO Box, post office.

(my emphasis)

34    Again, it is apparent that she was alleging that there were multiple actors involved in these crimes, who she did not name at the time, and was not naming now before the Tribunal apart from GN. This was consistent with what she had claimed in her Statement of Issues.

35    The Tribunal was faced with this starkly different account of what had happened. The Tribunal determined that it did not accept the applicant’s new account (laying the blame on the alleged coercive conduct of her previous husband GN). Rather the Tribunal determined that the account accepted by the sentencing judge (which involved another man with whom she had lived—AF): AAT[51]. The Tribunal found that subsequent to the conduct giving rise to the 2017 offending that she became involved with GN, about whom she was scared and his criminal associates: AAT[55]. As a consequence, in the context of considering the risk of reoffending the Tribunal did not accept the “general tenor of the applicant’s case, which [was] that the applicant’s offending was specifically linked to her relationship with GN and now that the relationship is over, no further offending is likely”: AAT[102].

36    The Tribunal went on to find (at AAT[103]):

In my assessment the applicant’s criminal offending began before she had even met GN and the 2017 offending occurred largely independent of his influence. I am satisfied that the applicant began minding crops for someone in an organised group in 2013. She did so under duress. At that point in time the applicant did not know GN. Consequently, there is someone else with whom the applicant has interacted who at that time had some kind of hold on her and could induce her to engage in criminal activity.

37    The Tribunal then gave reasons for rejecting the applicant’s claims, finding “GN’s involvement in the 2017 offences” was peripheral and it was not him that had drawn her into involvement in organised crime: AAT[104]–[105].

38    Accordingly, the Tribunal formed the view that there was a real chance that the applicant would be drawn back into the influence of the criminals she once associated with and will commit further offences. This conclusion logically arose from all that was said in the reasons, including, consistent with the applicant’s evidence, that the applicant must have been under the influence of some other unknown person and that she had been the subject of threats in the past and had not sought the assistance of the police when subjected to that conduct.

39    The applicant knew that the issue of reoffending was an issue. She raised the issue. She was also under no illusion that she knew that the Tribunal might reject her evidence. She was changing, in material ways, many of the claims she had made before the sentencing judge in circumstances where the delegate specifically raised concerns about her remaining crime-free.

40    Here it is my view, that the true criticism of the applicant, as identified by the Minister, is one akin to that identified in Alphaone, it is not that the applicant was not informed of the critical issue but rather criticism is made of the Tribunal’s evaluative exercise (and where the applicant was disappointed not only that her evidence was rejected but that parts of it confirmed why the risk remained).

41    A fair reading of the Tribunal’s reasons reveals that the Tribunal ultimately did not accept the applicant’s new account of the circumstances giving rise to her 2017 offending but did accept her claims regarding the place of duress, in part, both with respect to the 2013 and 2017 offending. The Tribunal was concluding, in the absence of a detailed understanding of how she was drawn into the cannabis growing network, it is difficult to assess how likely it is that she will be able to avoid doing work for that network again.

42    It is part and parcel with the identification of a risk of reoffending that a logical conclusion be that there is a real chance the person will be drawn back under the influence of past associates. The applicant’s account continually changed. She claimed the involvement of multiple, unidentified actors of whom she was afraid and had not named in the past, was still not naming and had not gone to the authorities with regard to. I do not accept that there was a necessity for the Tribunal to draw this to the applicant’s attention, it was a logical consequence of the Tribunal’s rejection of the truthfulness of the applicant’s evidence.

43    The applicant sought to rely on dicta from a number of authorities: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] HCA 63; 228 CLR 152; Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507; Smith v Minister for Home Affairs [2019] FCA 45. There was no dispute by the Minister as to the soundness of the reasoning within these decisions, but rather that each case could not, by analogy, be deployed in this case. I agree.

44    I do not accept that the circumstances of SZBEL are akin to these. In that case, the Tribunal reverted from a course taken by the delegate who accepted the accuracy of two aspects of the appellant’s account. At no stage did the Tribunal challenge what the appellant had said with respect to those two matters, which the Tribunal later found implausible. This was found by the High Court to be decisive of the appeal. As is evident from the above, the decisive circumstances of SZBEL are entirely different to this case. This was not a case of the Tribunal failing to draw to the applicant’s attention an issue which the delegate had accepted.

45    In addition, aspects of the SZBEL reasoning are instructive. The plurality went on to make three observations with respect to the third issue, where the delegate had not accepted the applicant’s account, and whether procedural unfairness had arisen. The High Court observed that it is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant that he or she is lying or their evidence will not be accepted. However, where there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand on those issues to explain why that account should not be accepted. I do not consider that this was such a case. Here, it was the applicant that, rather than ventilating a discrete claim, without evidence, gave oral evidence. It was the applicant who raised the issue, knew its importance and gave evidence about it. Here, as identified by the High Court, the rules of natural justice did not require the Tribunal to disclose what he was minded to decide nor to give a running commentary of what he thought. This is, in effect, what the applicant is suggesting the Tribunal ought to have done.

46    In SZTQS, the Tribunal made a factual conclusion (about the asylum seeker being able to get bail upon return because his family would provide surety) which was a necessary link in the Tribunal’s chain of reasoning about which the appellant was not put on notice at hearing. The circumstances of this case are entirely different. The Tribunal’s conclusion arises from a rejection of the applicant’s evidence not from a factual finding, which was not open, on the applicant’s evidence.

47    In Smith, the denial of procedural fairness was found to arise where Ms Smith was not put on notice by the Minister that her denial that the circumstances giving rise to the murder conviction involved drug-taking was in issue where there had been no finding in the criminal proceedings that any drugs were involved. This is not the case here. Here the applicant raised the claim of duress and linked it to assessment of whether there was a risk of her reoffending. The applicant was on notice, both of the fact that her claims of duress would not be accepted, but also that there would be a link between the rejection of her evidence a finding that she was at a risk of re-offending. She, herself, had sought to deploy the duress evidence, as a basis for why she would not re-offend.

The Tribunal did not fail to consider the consequences for the applicant and her unborn child if her visa was cancelled

48    By ground two the applicant contends that the Tribunal erred by, failing to consider that should the applicant’s visa be cancelled she would be liable to be detained in the ordinary course under s 189(1) of the Migration Act despite being pregnant and this would have particular consequences for her and her unborn child. Notably, it was without dispute that the applicant still has not been taken into detention and she gave birth in the community. For the following reasons, this ground fails.

49    The Tribunal did consider the legal consequences of the decision. This is evident from the Tribunal’s reasons. The Tribunal agreed with the applicant’s assessment, consistent with the submission made by the applicant’s representative, that the “legal consequences of any decision to cancel …..[were] not relevant at that point in time”: AAT[125].

50    The applicant’s quarrel with the Tribunal’s reasons appears to be not with a purported failure by the Tribunal to consider the legal consequences of the decision but rather now with what the practical consequences might have been, if, the applicant were to have been placed in detention whilst she was still pregnant. This was not an issue which was raised with the Tribunal. I accept the submission of the Minister that when or how such detention or removal would occur was a matter of speculation about which the Tribunal was not required to opine: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [17]–[18] (Perram J); BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [101] (Perry J), [138] (Bromwich and Kennett JJ, agreeing). As submitted by the Minister, as a matter of law, the timing of and ways in which people may be detained is dependent on a myriad of factors, there is no straight line to detention. I do not accept that this is a case, akin to those involving the possibility of indefinite detention. Therefore I do not consider the decisions in DYY18 v Minister for Home Affairs [2019] FCA 1901 and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 (North, Kenny and Perry JJ) are of assistance. As a consequence, the Tribunal had no obligation to consider this issue: Hong v Minister for Immigration and Border Protection [2019]; FCAFC 55; 269 FCR 47 at [69] (Bromwich and Wheelahan JJ).

The Tribunal did not fail to consider the interests of minor children

51    By ground three the applicant contends that the Tribunal erred by failing to consider the best interests of the applicant’s unborn child. At the time of the decision the Tribunal knew the applicant was pregnant and due to give birth in approximately six weeks. The applicant contends the Tribunal was required, by item 8(4) of Direction 99, to consider the best interests of minor children (including those unborn) in Australia.

52    The applicant concedes that the jurisprudence of this Court has held a contrary position on several occasions, and she did not submit those decisions to be plainly wrong. As a consequence, she accepts this ground cannot succeed but wishes to preserve her position and press it only formally.

53    I would then only note, that whilst Direction 99 does not define who comprise “minor children”, consistent with the plain, ordinary meaning of the phrase, the content of the Direction and existing single instance authority, “minor children” does not include unborn children. In Kalm v Administrative Appeals Tribunal [2013] FCA 890; 215 FCR 221 at [8], Justice Jessup was considering a previous iteration of the Direction, but in similar terms and an argument that the “minor child” included an unborn child, he rejected the argument for the following reasons:

As appears from the extract set out above, the Direction picks up the definition of “minor” in s 5 of the Act, namely, “a person who is less than 18 years old”. As used in the Act (both in s 5 and elsewhere), the word “minor” is a noun. As used in cl 11(1)(b) of the Direction, the word is an adjective. However, the sense of the expression “minor children” in the Direction is clear: it means children less than 18 years of age. The word “child” is not defined in the Direction. Neither, at least relevantly to the present question, is it defined in the Act. But it must also be said that none of the many occasions upon which that word is used in the Act could include within its connotation an unborn baby. In my view, on a natural reading of cl 11(1)(b) of the Direction, the expression “minor children” does not encompass an unborn baby in its mother’s womb, both in the sense that such a biological entity is not a “child” in normal parlance and, to pick up the definition of “minor” in the Act and the Direction, in the sense that it is not a “person”.

54    This reasoning has also been consistently followed: JNMK v Minister for Home Affairs [2019] FCA 1758; 168 ALD 206 at [23] (Jackson J); SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [28] (Griffiths J).

55    In any event, I note as the Minister submitted that there is a remaining obstacle: The applicant had expressly disclaimed reliance on the point before the Tribunal. It is unclear how the applicant could contend subsequently that the Tribunal erred by not considering what the applicant had said it did not need to consider.

Whether a pseudonym order should be made

56    Part VAA of the Federal Court of Australia Act 1976 (Cth) gives the Court power to make suppression orders (including assigning a pseudonym to a person’s name). Section 37AA of the Federal Court Act defines a suppression order to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”.

57    The applicant seeks an order that she retain the pseudonym assigned by the Tribunal. The Minister takes no position with respect to whether the order should be made but submitted, consistent with authority, that there was no automatic entitlement for an applicant to continue to use a pseudonym assigned by the Tribunal and that the Court will need to be satisfied as to at least one of the matters in section 37AG(l)(a) or (c) of the Federal Court Act and ought be guided by authorities including Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon, and Kiefel JJ). The applicant took no issue with these observations.

58    Section 37AG of the Federal Court Act provides that the Court may make a suppression or a non-publication order on a number of grounds including, as relied upon here, where “the order is necessary to protect the safety of any person”.

59    As the applicant correctly adverted to, in order for such an order to be necessary, it is a “strong word”, for which it is not enough that the order is convenient, reasonable or sensible (Hogan at [30]–[31]). As s 37AE of the Federal Court Act provides that “[i]n deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

60    The applicant submitted that the Court should make an order, pursuant to s 37AG(1)(c) of the Federal Court Act, that the pseudonym be retained because that the order is necessary to protect her safety and by necessity, should operate for seven years.

61    As observed Katzmann J in DSLB v Comcare [2023] FCA 1222, (at [111]–[114]):

111     In AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; 93 ALJR 321 Nettle J considered the requirements for making an order under s 77RE of the Judiciary Act on the ground that it was necessary to protect the safety of the applicant’s children. The applicant was a police informant, whose information had contributed to the convictions and imprisonment of numerous individuals for serious crimes. Section 77RE of the Judiciary Act is in relevantly identical terms to s 37AF of the FCA Act. Section 77RF(1)(c), the ground upon which the applicant relied, is relevantly identical to s 37AG(1)(c) of the FCA Act. His Honour made the following pertinent observations at [14]–[17].

112     First, it is not necessary that the court be satisfied on the balance of probabilities that, absent the order sought, the person would suffer harm. Rather, the court must be satisfied on the balance of probabilities that the order is necessary to protect the safety of a person, informed by the nature, imminence and degree of likelihood of apprehended harm.

113     Second, the statutory criterion is “not one of necessity to prevent harm to a person but of necessity to protect the safety of a person” and “safety is a protean conception” distinguishable from harm. As “the idea of safety invariably entails the assessment of risk”, the criterion will be made out if:

upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

114     Third, while any assessment of the risk to a person’s safety involves “a degree of conjecture”, that difficulty can be overcome by compelling opinion evidence.

62    I am satisfied that the pseudonym order is necessary in the circumstances to protect the safety of the applicant for the period sought, given the delegate and the Tribunal have recognised that the applicant was a victim of domestic violence which included threatening behaviour. The Tribunal also found that during her marriage to GN, she was subjected to violent and controlling behaviour. The Tribunal also accepted that as a result of GN’s behaviour deteriorating the applicant formulated a plan to move away from him and blocked all contact with GN, including changing her phone number and closing social media accounts. Despite, these attempts being made by the applicant to avoid contact with her former husband, the undisputed evidence before the Tribunal revealed that threats were made against the applicant and her family by GN, by contact GN had made with her family in Albania. The Tribunal found that the applicant was scared of GN and his criminal associates.

Conclusion

63    For the foregoing reasons, the application must be dismissed, a pseudonym order will be made and the applicant is ordered to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    8 November 2024