Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1435

Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1435

The Court was satisfied, having regard to the documents, the meaning of gazetted agency, and protective security measures, that the information in the five letters reviewed met the requirements of s503B(1)(a)(i) and s503B(1)(b), and that there was no evidence of a Ministerial declaration under s503A(3). The preconditions to the exercise of power under s503B(1) were therefore satisfied. Although the Minister sought a blanket non-disclosure order, the appropriate orders permitted only strictly limited in-court disclosure to the applicants' presently retained counsel upon undertakings, and otherwise prohibited disclosure, excluded the public, restricted publication, and restricted access to...

Jurisdiction
Australia
Judgment Date
12 October 2005
Procedural Posture
Migration Proceedings Concerning Possible Refusal of Visa Applications Under S501 of the Migration Act 1958 (cth) / Notice of Motion by the Minister Filed 30 September 2005 Seeking Non Disclosure Orders Under S503 B(1) of the Migration Act 1958 (cth)
Outcome
Non-disclosure orders made in both proceedings, with limited disclosure to the applicants' presently retained counsel in Court upon undertakings; parties to be heard on costs.
Legal Topics
['non Disclosure Orders' 'confidential Information From Gazetted Agencies' 'character Test' 'visa Refusal' 'section 501 of the Migration Act 1958 (cth)' 'sections 503 a, 503 B, 503 C and 503 D of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law'] ['non Disclosure Orders' 'confidential Information From Gazetted Agencies' 'character Test' 'visa Refusal' 'section 501 of the Migration Act 1958 (cth)' 'sections 503 A, 503 B, 503 C and 503 D of the Migration Act 1958 (cth)']

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Procedural Posture

Migration Proceedings Concerning Possible Refusal of Visa Applications Under S501 of the Migration Act 1958 (cth) / Notice of Motion by the Minister Filed 30 September 2005 Seeking Non Disclosure Orders Under S503 B(1) of the Migration Act 1958 (cth)

Legal Issues

  1. 1 ['Whether the information disclosed to the Court for the purposes of the motion satisfied the requirements of s503B(1)(a)(i) and s503B(1)(b) of the Migration Act 1958 (Cth).' 'Whether no declaration was in force under s503A(3) so that the preconditions to the Court exercising powers under s503B(1) were satisfied.' 'What orders were appropriate under s503B(1) and s503B(2) to ensure that, if a declaration came into force and the information was disclosed to the Court, the information would not be divulged or communicated to the applicants, their legal representatives, or the public.']

Ratio Decidendi

The Court was satisfied, having regard to the documents, the meaning of gazetted agency, and protective security measures, that the information in the five letters reviewed met the requirements of s503B(1)(a)(i) and s503B(1)(b), and that there was no evidence of a Ministerial declaration under s503A(3). The preconditions to the exercise of power under s503B(1) were therefore satisfied. Although the Minister sought a blanket non-disclosure order, the appropriate orders permitted only strictly limited in-court disclosure to the applicants' presently retained counsel upon undertakings, and otherwise prohibited disclosure, excluded the public, restricted publication, and restricted access to...

Court Disposition

Non-disclosure orders made in both proceedings, with limited disclosure to the applicants' presently retained counsel in Court upon undertakings; parties to be heard on costs.

Orders

  • ["If a declaration comes into force under s503A(3) of the Migration Act 1958 (Cth) and the information is disclosed to the Court, the information is not to be divulged or communicated to the applicant, the applicant's legal representatives except for limited in-court disclosure to presently retained counsel upon...