Federal Court of Australia Trang (formerly named as AZL20) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 104 Appeal from: AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1490 File number(s): WAD 255 of 2020 Judgment of: RARES, O'CALLAGHAN AND WHEELAHAN JJ Date of judgment: 18 June 2021 Catchwords: MIGRATION – continuation of pseudonym and non-publication order – where appellant had been given a pseudonym in proceeding below without order for that to occur – where both primary judge and Administrative Appeals Tribunal made orders restricting publication of information in witness statement – where appellant indicated he might apply for protection visa in the future but where s 91X of the Migration Act 1958 (Cth) did not apply – where Tribunal made non-publication order of witness' statement due to concerns about safety of a person – where appellant's name and details of his case was available online in Tribunal's published reasons – whether pseudonym and non-publication order necessary to prevent prejudice to the proper administration of justice or protect safety of a person pursuant to s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) – held : pseudonym not justified; only part of witness statement warranted non-publication order pursuant to s 37AG(1)(c). Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 35 Family Law Act 1975 (Cth) s 121 Federal Court of Australia Act 1976 (Cth) ss 37 AF, 37AG Migration Act 1958 (Cth) s 91X Cases cited: Attorney-General v Leveller Magazine Ltd [1979] AC 440 AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 72 Dickason v Dickason (1913) 17 CLR 50 Hogan v Australian Crime Commission (2010) 240 CLR 651 Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 Scott v Scott [1913] AC 417 The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 Trang v Minister for Home Affairs [2019] AATA 4087 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 28 Date of hearing: 5 May 2021 Date of last submissions: 10 June 2021 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms C.I. Taggart Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS WAD 255 of 2020 BETWEEN: PHUOC DAT TRANG (FORMERLY NAMED AS AZL20) Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: RARES, O'CALLAGHAN AND WHEELAHAN JJ DATE OF ORDER: 18 June 2021 THE COURT ORDERS THAT: 1. The pseudonym AZL20 cease to apply in: (a) the appeal and in proceeding WAD537 of 2019; (b) the orders made by, and the reasons for judgment of, the Full Court published on 5 May 2021. 2. The text of the orders made by, and reasons for judgment of, the Full Court published on 5 May 2021 be amended to remove the appellant's pseudonym. 3. Order 2 made on 15 May 2020 in proceeding WAD537 of 2019 be vacated and in lieu thereof it be ordered that: 2. For the period of 10 years from 15 May 2020 unless a judge of the Court otherwise orders, paragraphs 2 and 10 of the witness statement of Hoai Phuong Truong be suppressed and not published except to the parties and their legal representatives on the ground that this order is necessary to protect the safety of a person. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 5 May 2021, the Full Court dismissed the appellant's appeal with costs (AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 72) and ordered the Minister to file and serve, on or before 14 May 2021, an affidavit and submissions that explained why the appellant had been given a pseudonym and why it was appropriate for the primary judge to have made, or for the Full Court to continue, order 2 in the form it was made on 15 May 2020 (the 15 May 2020 order). That order had suppressed the witness statement of a named pastor. Earlier, the Administrative Appeals Tribunal had made an order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the s 35 order) restricting publication or other disclosure of the information contained in the pastor's witness statement. 2 Rares and O'Callaghan JJ summarised what appeared to be the issue in their reasons as follows (AZL20 [2021] FCAFC 72 at [22]): During the course of argument today, the Court expressed concern as to, first, how the appellant's name came to be given a pseudonym in the proceeding below and in this Court, without any order for that to occur, and in circumstances where s 91X of the [Migration Act 1958 (Cth)] did not apply, and secondly, why it was appropriate for his Honour to make an order on 15 May 2020 prohibiting the publication or other disclosure of the name of the pastor and information contained in his witness statement when the pastor's name appeared in the order that was available publicly through the Commonwealth Courts Portal and both his and the appellant's actual names are used in the Tribunal's still published reasons. The order restricted publication of those matters to only the appellant, the Minister, their legal representatives, judges, staff of the Court and the transcription services. His Honour did not set out in that order any ground under s 37AG of the Federal Court of Australia Act 1976 (Cth), and no such ground was apparent to the Full Court beyond the Tribunal's desire to keep confidential, at his request, the pastor's identity and activities. We ordered the Minister to file and serve an affidavit, together with submissions explaining the bases on which the Minister understood those orders to have been made and why they are to be appropriate to be continued by this Court. We will deal with that issue in separate reasons. 3 On 14 May 2021, the Minister filed an affidavit by his solicitor Arran Gerrard and submissions. Mr Gerrard noted that the pastor had written a statement of his evidence to the Tribunal that recorded at its conclusion "PS: Please keep my letter [sic] confidential as I travel to Vietnam very often". When counsel for the appellant drew that request to the Tribunal's attention on 24 September 2019 after the pastor began giving evidence, it said that it would make the s 35 order. 4 On 22 October 2019, the appellant commenced the proceeding before the primary judge in his own name while unrepresented. On 8 January 2020, the Minister filed a court book in the proceeding below that omitted the pastor's written statement because of the s 35 order. 5 On 7 May 2020, Mr Gerrard filed an affidavit before the primary judge to explain why the pastor's witness statement was not included in that court book. 6 On 15 May 2020, the primary judge made an order, that named the pastor, restricting publication or other disclosure of the information contained in his witness statement to the appellant, the Minister, their legal representatives, judges and staff of the Court and the Court's transcript provider. 7 On 6 and 7 May 2021 Mr Gerrard sent emails to: the appellant's lawyers who had acted for him before the Tribunal and the primary judge; the appellant's lawyers in a separate proceeding VID 157 of 2020, also docketed to the primary judge (the compensation proceeding); the pastor. 8 Mr Gerrard's emails drew attention to the 5 May 2021 order and asked the respective addresses to make submissions on its subject matter. The lawyers for the appellant at the trial said that his Honour made the 15 May 2020 order by consent, but they did not know how the pseudonym order came about and did not wish to make any submissions. The appellant's lawyers in the compensation proceeding said, in an email dated 13 May 2021, that they did not propose to put any submissions. 9 On 6 May 2021, Mr Gerrard also sent an email to the primary judge's associate seeking clarification of the reason for the pseudonym order. The associate replied later that day saying that: A pseudonym was applied in March 2020, in response to the attached letter of request, which was filed along with the originating application in proceeding VID 157 of 2020. On the basis of that request, his Honour formed the view that it was appropriate for a pseudonym to be applied in both proceedings. 10 His Honour's associate attached to that email a letter, dated 5 March 2020, from the appellant's solicitors in the compensation proceeding that referred to s 91X of the Migration Act 1958 (Cth) and noted that the originating application was to be filed the same day. It attached that application and the statement of claim. In the compensation proceeding, the appellant sought compensation for personal injuries from the Commonwealth because of its alleged failure to provide, or cause provision, to him of proper healthcare for a medical condition after he was transferred from prison to immigration detention. The letter stated: Although the attached originating documents do not on one view engage section 91X, our client is a person who has an ongoing immigration matter (WAD537/2019), and the matters raised in the documents relate to his immigration detention. If his name were known as a result of its publication in relation to this proceeding, that would permit information about his immigration matter to become known in his country of origin. In turn, this could threaten his safety in the event that he returns to his country of origin. In light of these matters, we request that the applicant be assigned a pseudonym consistent with section 91X. If the registry is not inclined to assign a pseudonym, we ask that the matter be referred to a duty judge so that this issue can be ventilated. 11 Mr Gerrard said that he attempted to access information on 5 and 14 May 2021 in respect of the appeal and proceeding WAD 537 of 2019 (being the proceeding before the primary judge in which he made the 15 May 2020 order) through the Court's website but was unsuccessful, the search returning the response: Matters where a pseudonym has been assigned to a party are not searchable in Federal Law Search. 12 On 18 May 2021, the associate to the presiding judge emailed the appellant, the Minister's solicitors and counsel referring to Mr Gerrard's affidavit and the responses to his various email enquiries. The email conveyed that the Court was minded to set aside the 15 May 2020 order concerning the pastor and the appellant's pseudonym in both the trial and the appeal, in light of: the appellant's and pastor's failures to respond; the lack of any substantive response by the appellant's former lawyers before the Tribunal and the primary judge; the subject matter of the compensation proceeding and the lack of any argument by the appellant's lawyers in it to justify the order and pseudonym; the failure of the appellant to identify any claims for protection that he may have or how he could be identified by anything else in the Full Court's reasons given that the Tribunal's reasons, that named him, are publicly available online, as Rares J noted: AZL20 [2021] FCAFC 72 at [22]. 13 The email gave the addresses until 20 May 2021 to make any further submissions in opposition to the Court. There was no response. Unfortunately, a copy of that email was not sent to the appellant's lawyers in the compensation proceeding and so, on 8 June 2021, the email was resent to them and the original addresses giving all of them until 11 June 2021 to respond. 14 The appellant's lawyers in the compensation proceeding responded on 10 June 2021. They said that they had set out the reasons for the request of the assignment of a pseudonym in their letter to the primary judge dated 5 March 2020, namely, that the appellant might apply in the future for a protection visa, which could engage s 91X (see [10] above). They said that they did not act for the appellant in this appeal, or in the Tribunal, or before the primary judge. Those solicitors said that they adopted the Minister's submissions. The Minister's submissions 15 The Minister observed that no formal order was made for the pseudonym AZL20 to be applied to the appellant and the primary judge did not identify a ground under s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) for the use of the pseudonym or the 15 May 2020 order. The Minister submitted that the appellant had stated an intention to apply for a protection visa relating to his claim to fear persecution if returned to Vietnam by reason of his religion (Christianity) or political opinion (as noted by the Tribunal in the passage of its reasons that Rares J quoted in AZL20 [2021] FCAFC 72 at [11]). 16 The Minister submitted that it should be inferred that the primary judge applied the pseudonym by reference to the concerns that the appellant's solicitors in the compensation proceeding had raised about s 91X of the Migration Act and, therefore, was justified on the ground in s 37AG(1)(a), namely that it was necessary to prevent prejudice to the proper administration of justice. The Minister argued that since the appellant has not resiled from his stated intention to apply for a protection visa (given that the appeal was dismissed), the same justification continues and the pseudonym should be retained. 17 The Minister contended that the 15 May 2020 order should not be set aside because none of three court files has been publicly accessible as a result of the pseudonym. He submitted that, if the pseudonym were removed, it may be appropriate to revise the terms of the 15 May 2020 order by removing the pastor's name from it to preserve the effect of the Tribunal's order. The Minister argued that there was country information before the primary judge and in the appeal books that gave some support to the pastor's concerns about the safety of a person within the meaning of s 37AG(1)(c). Consideration – the pseudonym 18 The appellant has never articulated any basis on which he can or could seek a protection visa, as the Full Court found (AZL20 [2021] FCAFC 72 at [27]–[30], [35]). Despite the Full Court inviting him and his lawyers in the compensation proceeding to make submissions in support of the original assignment and continuation of the pseudonym, he has not done so. 19 Ordinarily, s 37AG(1) of the Federal Court Act contains the grounds on which an order that the name or identity of a person involved in any way, including as a party or witness, in a judicial proceeding conducted in open court not be published in the absence of a statutory requirement, such as s 91X of the Migration Act or s 121 of the Family Law Act 1975 (Cth). It provides: 37AG Grounds for making an order (1) The Court may make a suppression order or non‑publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice; (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency). 20 The only possible bases for the pseudonym or 15 May 2020 order here (given that the appellant has not applied for a protection visa so that s 91X is not engaged) are those in s 37AG(1)(a) and (c). Those grounds require that the Court find that a non-publication or suppression order is necessary either to prevent prejudice to the proper administration of justice or to protect the safety of a person. In Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]–[32] French CJ, Gummow, Hayne, Heydon and Kiefel JJ explained that "necessary" in this statutory context "is a strong word" that suggests the Parliament was not dealing in trivialities. They held that it is not sufficient that the making or continuation of such an order appears to the Court to be convenient, reasonable or sensible "or to serve some notion of public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics" (citations omitted). And, once the appearance or absence of the requisite necessity exists, the Court must either make or vacate the order. 21 Their Honours' construction of the then statutory power to make a suppression or non-publication order, now contained in s 37AF of the Federal Court Act, is consonant with the Court's inherent power to do so to give effect to the principle of open justice as expounded in Scott v Scott [1913] AC 417. Their Lordships' decision was applied in Dickason v Dickason (1913) 17 CLR 50 at 51. Barton ACJ said (Dickason 17 CLR at 51), with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed (and see too Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 where Rares J discussed this principle): …there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice. On the contrary, secs. 15 and 16 of the Judiciary Act show clearly an intention on the part of the legislature that the jurisdiction of this Court should be publicly exercised. 22 Here the appellant's name and details of his case before the Tribunal have been available online since it published its reasons on 1 October 2019: Trang v Minister for Home Affairs [2019] AATA 4087. That meant that anyone could piece together who he was. As Lord Russell of Killowen graphically put it in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 468E–F (see too The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 at 222 [25], 224 [35]–[36] per Rares J): The position therefore was that, notwithstanding the decision of the magistrates designed to preserve the anonymity of "Colonel B," his deposition itself revealed at one simple remove his identity. Publication in full of his deposition, given as it was in open court, could not have been a contempt. It would have told the world (if interested) where to look for "Colonel B's" identity. Would it have transgressed the limits of the permissible if the publication of the deposition had been accompanied by a re-publication of the stated edition of "Wire," or the relevant extracts from it? I do not think so. The substance of the magistrates' decision would not have been breached. The gaff was already blown by the deposition, to the publication of which no objection could be taken. (emphasis added) 23 In his judgment, the primary judge quoted from, and otherwise discussed in detail, the Tribunal's published reasons that revealed the appellant's full name and his case on the merits as to why he said the cancellation of his visa should be revoked under s 501CA(4) of the Migration Act. The Tribunal's reasons elaborated whatever may have been suggested as in contemplation for his unmade protection visa application. 24 It follows that there was and is no justification for the use of the pseudonym both at the time that his Honour appears to have approved its use or now: Hogan 240 CLR at 664 [32]. Consideration – the non-publication order 25 It may be accepted that, because of the way in which the Tribunal proceeded and made the s 35 order, the pastor had an expectation that the Tribunal would not disclose what he said in his witness statement. The Court is now aware that the pastor's name was redacted in the Tribunal's reasons as published on the internet ([2019] AATA 4807 at [138]) and the substance of his evidence was not disclosed. The 15 May 2020 order referred to the pastor by name but suppressed his witness statement. In those circumstances the 15 May 2020 order can be understood to preserve the confidentiality of the substance of the pastor's evidence to the Tribunal in the witness statement which has not been disclosed in the public domain except at a high level of generality in the Tribunal's, the primary judge's and our earlier reasons. The Tribunal did not make any order that the pastor's name or oral evidence be confidential, although it appears to have proceeded on the basis that the s 35 order would do so. 26 However, there is no reason that the blanket terms of the 15 May 2020 order could have been necessary to prevent prejudice to the administration of justice because the Tribunal's s 35 order was, itself, not justified. The only part of the pastor's evidence in the witness statement that may have warranted a non-publication or suppression order were pars 2 and 10 because of their potential to affect the safety of a person (s 37AG(1)(c)). There is no apparent reason why the fact that he gave evidence or his name should be confidential in the judicial proceedings. Conclusion 27 The pseudonym for the appellant in WAD 537 of 2019 and in the appeal should be removed and his name, Phuoc Dat Trang, be substituted. 28 The 15 May 2020 order should be vacated and in lieu there should be an order that pars 2 and 10 of the witness statement of Hoai Phong Truong dated 4 September 2019 be suppressed and not published to any person other than the parties and their legal representatives for 10 years, unless the Court otherwise orders. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, O'Callaghan and Wheelahan. Associate: Dated: 18 June 2021