C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70

C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70

The appellants did not discharge the heavy onus of showing that a suppression order was necessary to protect safety: they identified only information that might tend to identify them, adduced no evidence or appeal book material demonstrating necessity, and characterised the risk as somewhat speculative. A speculative risk could not make a suppression order necessary under s 37AG(1)(c). However, s 91X of the Migration Act 1958 (Cth) required non-publication of a name of a person who applied for a protection visa appearing in specified paragraphs of the earlier judgment.

Jurisdiction
Australia
Judgment Date
21 April 2020
Procedural Posture
Application for Suppression Order Under S 37 AF of the Federal Court of Australia Act 1976 (cth) in an Appeal Concerning Protection Visa Applicants / Interlocutory Application Determined on the Papers After Judgment in the Appeal
Outcome
The appellants' interlocutory application for a suppression order was dismissed, but a limited non-publication order was made under s 91X of the Migration Act 1958 (Cth).
Legal Topics
['suppression Orders' 'non Publication Orders' 'open Justice' 'protection Visa Proceedings' 'safety of Persons' 'publication of Names of Protection Visa Applicants']
['practice and Procedure' 'migration Law' 'administrative Law'] ['suppression Orders' 'non Publication Orders' 'open Justice' 'protection Visa Proceedings' 'safety of Persons' 'publication of Names of Protection Visa Applicants']

Case Brief

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Procedural Posture

Application for Suppression Order Under S 37 AF of the Federal Court of Australia Act 1976 (cth) in an Appeal Concerning Protection Visa Applicants / Interlocutory Application Determined on the Papers After Judgment in the Appeal

Legal Issues

  1. 1 ['Whether the appellants established that a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) was necessary to protect the safety of any person under s 37AG(1)(c).' "Whether information consisting of various names tended to reveal the appellants' identity within s 37AF(1)(a)." 'Whether s 91X of the Migration Act 1958 (Cth) prohibited publication of a name appearing in the earlier appeal judgment.']

Ratio Decidendi

The appellants did not discharge the heavy onus of showing that a suppression order was necessary to protect safety: they identified only information that might tend to identify them, adduced no evidence or appeal book material demonstrating necessity, and characterised the risk as somewhat speculative. A speculative risk could not make a suppression order necessary under s 37AG(1)(c). However, s 91X of the Migration Act 1958 (Cth) required non-publication of a name of a person who applied for a protection visa appearing in specified paragraphs of the earlier judgment.

Court Disposition

The appellants' interlocutory application for a suppression order was dismissed, but a limited non-publication order was made under s 91X of the Migration Act 1958 (Cth).

Orders

  • ["The appellants' interlocutory application for a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) be dismissed." '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...