ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782

ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782

The appellant did not discharge the heavy onus of showing that a suppression or non-publication order was necessary. The judgments had already been online for a substantial period, making the proposed order of doubtful utility; the information relied upon, including date of arrival and other details, did not itself tend to reveal the appellant's identity and the asserted identification process was speculative and remote; and there had been no breach of the Migration Act 1958 (Cth) because the judgments did not publish the appellant's name, personal identifiers or identifying information. The public interest in open justice therefore was not displaced.

Jurisdiction
Australia
Judgment Date
05 June 2020
Procedural Posture
Application for Non Publication and Suppression Orders Under S 37 AF of the Federal Court of Australia Act 1976 (cth) / Determined on the Papers After Judgment in ELA18 V Minister for Home Affairs [2019] FCA 1482
Outcome
The application for a suppression and non-publication order was dismissed, with costs to the first respondent.
Legal Topics
['non Publication Orders' 'suppression Orders' 'open Justice' 'protection Visa Proceedings' 'identification of Parties in Migration Judgments']
['practice and Procedure' 'migration' 'administrative and Constitutional Law and Human Rights'] ['non Publication Orders' 'suppression Orders' 'open Justice' 'protection Visa Proceedings' 'identification of Parties in Migration Judgments']

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Procedural Posture

Application for Non Publication and Suppression Orders Under S 37 AF of the Federal Court of Australia Act 1976 (cth) / Determined on the Papers After Judgment in ELA18 V Minister for Home Affairs [2019] FCA 1482

Legal Issues

  1. 1 ["Whether a suppression or non-publication order should be made over the whole of the Court's earlier judgment or aspects of it said to reveal the appellant's identity." 'Whether the order was necessary to protect the safety of any person under s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).' "Whether the published judgment breached the Migration Act 1958 (Cth) by publishing the appellant's name, personal identifiers or identifying information." "Whether information such as date of arrival, place of arrival, place of birth, ethnicity and protection claims tended to reveal the appellant's identity."]

Ratio Decidendi

The appellant did not discharge the heavy onus of showing that a suppression or non-publication order was necessary. The judgments had already been online for a substantial period, making the proposed order of doubtful utility; the information relied upon, including date of arrival and other details, did not itself tend to reveal the appellant's identity and the asserted identification process was speculative and remote; and there had been no breach of the Migration Act 1958 (Cth) because the judgments did not publish the appellant's name, personal identifiers or identifying information. The public interest in open justice therefore was not displaced.

Court Disposition

The application for a suppression and non-publication order was dismissed, with costs to the first respondent.

Orders

  • ['The application for a suppression and non-publication order is dismissed.' "The appellant is to pay the first respondent's costs to be agreed or taxed."]