Minister for Immigration and Multicultural and Indigenous Affairs v X

REASONS FOR JUDGMENT THE COURT: 1 The respondent applied for a Student (Temporary) (Class TU) visa. The grant of the visa was subject to certain public interest criteria set out in par 4005 of Sch 407 of the Migration Regulations 1994 (Cth) including the criterion that the applicant is not a person who has a disease or condition such that a person who has it would be likely to require "healthcare or community services" and that the provision of such care or services would be likely to result in a "significant cost to the Australian community". 2 A delegate of the Minister refused the application and that refusal was affirmed by the Migration Review Tribunal. The respondent sought review in the Federal Court. A single judge of the Court quashed the determination of the Tribunal. On 29 September 2005 a Full Court consisting of the Chief Justice and ourselves upheld the Minister's appeal: [2005] FCAFC 209. 3 Before the Tribunal, the primary judge and the Full Court, the respondent was referred to by name. There was no application at any stage on his behalf for an order forbidding or restricting the publication of his name. The respondent by a motion now seeks an order under s 50 of the Federal Court of Australia Act 1976 (Cth) that the publication of his name is forbidden in any report of this proceeding, including the proceeding at first instance, made after the date of the order, other than in any report made by or on behalf of the Minister or the Department of Immigration and Multicultural and Indigenous Affairs. 4 The Chief Justice is presently overseas and the parties have consented to our hearing and determining the motion pursuant to s 14(3) of the Federal Court of Australia Act. 5 The basis of the application is that the judgments of the Full Court and the primary judge disclose that the respondent and his wife are HIV positive. They have two children who are not infected. The respondent says that the disclosure of his identity will cause severe distress and embarrassment to himself and his family. Publication to date 6 A copy of the Tribunal's decision is currently on the database of the Australasian Legal Information Institute (AustLII) although the respondent's surname is slightly misspelt. 7 The decision of the primary judge is on the databases of AustLII and the Federal Court. It received no general media coverage. There was a brief note in the Victorian Law Institute Journal which identifies the respondent by name but does not go beyond a summary of the legal conclusion reached by his Honour. It does not mention the respondent's HIV status. 8 Prior to the handing down of the Full Court's decision, there had been no publication in the general media identifying the respondent and his condition. This position altered as a result of a press release issued by a body called "Rights Australia Inc" on the afternoon of the Full Court decision. The press release referred to the respondent by name and stated that he and his wife are HIV positive. It said that the Full Court had overturned the primary judge's ruling and indicated that under Australian Government regulations the immigration authorities are not obliged to consider the actual circumstances of the applicant's illness but only the impact of a hypothetical case. 9 That was not an accurate summary of the Full Court's decision. The fact that the regulation in question directs attention to a hypothetical person with the visa applicant's disease or condition and not the actual visa applicant had been decided by an earlier Federal Court decision: Imad v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1011 at [13]. That point was not an issue in the present case. What was an issue was whether self-administered medication dispensed by a pharmacist pursuant to a medical practitioner's prescription was "healthcare" within the meaning of the regulations. 10 The statement quoted Rights Australia spokesman, Mr Greg Barns, as saying that the Full Court's decision was "cruel and inhumane". The press release concluded by referring the reader to the full text of the decision on the AustLII website. 11 On the same day a journalist from The Age contacted Mr Filip Gelev of Victoria Legal Aid, the respondent's solicitor, to ask his views and, if possible, the respondent's views about the case. She told Mr Gelev she had only become aware of this decision through the Rights Australia press release being sent to a number of media organisations. Subsequently a report appeared on The Age internet service and the website of The Sydney Morning Herald. In both cases the respondent was identified by name. The Sydney Morning Herald report became the subject of extended comment in an internet chat room known as the Green Room forum and was reported on the Yahoo News website. 12 After speaking to the respondent Mr Gelev contacted The Age journalist whose editors ultimately agreed to withhold the name of the respondent from the print article which appeared in the paper the following day. She declined to give any undertaking in relation to future articles. A report of the case the next day which appeared in The Sydney Morning Herald contained the name of the respondent, as did an article in The Daily Telegraph. 13 Mr Gelev spoke to Mr Barns who agreed to withhold the name from the version of the press release archived on the Rights Australia website. Lack of opposition 14 The Minister was represented by counsel and did not oppose the order sought. 15 Mr Gelev served copies of the notice of motion and supporting affidavits (in some instances without exhibits) on the publishers of: