JUDGMENT No. tS. 2. CATCHWORDS PRACTICE AND PROCEDURE - Application under s 50 of the Federal Court of Australia Act 1976 for the prohibition of the publication of the name of an applicant for orders of review of a decision refusing the applicant refugee status - whether publication would constitute "prejudice to the administration of justice" - considerations of the public interest in relation to applications for refugee status. Federal Court of Australia Act 1976 s 50 Australian Broadcasting Commission v Parish (1980) 43 FLR 129 SRD v Australian Securities Commission (1994) 123 ALR 730 13 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY "AX v HNIC A No. NG 854 of 1994 Lindgren J 5 December 1994 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 854 of 1994 GENERAL DIVISION ) BETWEEN: "A" Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS First Respondent PROFESSOR TSAMENYI SITTING AS THE REFUGEE REVIEW TRIBUNAL Second Respondent CORAM: Lindgren J PLACE: SYDNEY DATE: 5 December 1994 MINUTES OF ORDER THE COURT: 1. GRANTS LEAVE to the applicant to file in Court notice of motion for orders under s 50 of the Federal Court Act 1976 in the form initialled by me, dated today and placed with the papers. ORDERS that the notice of motion referred to in para 1 above be made returnable instanter. ORDERS that the time for filing by the applicant of an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the decision dated 19 April 1994 of the Refugee Review Tribunal be extended to 4.00pm this day Monday 5 December 1994. ORDERS pursuant to s 50 of the Federal Court Act 1976 that until further order of the Court: (a) the notice of motion, application for an order of review and the copy documents referred to in Order 54 r3 of the Federal Court Rules be placed and retained in an envelope to be sealed and marked "NOT TO BE OPENED EXCEPT BY ORDER OF THE COURT". (b) (c) (d) (e) in the title of the proceedings, the applicant be referred to as "A". in all affidavits and other documents to be filed in the proceedings the applicant be referred to as "A" or as "the applicant". the name of the applicant or anything liable to identify him not be published, but this order shall not prevent disclosure of his name or otherwise of his identity to counsel or to the solicitors for the parties or within their respective chambers and offices. additional copies of the documents referred to in para (a) above with the name of the applicant replaced by "A" be provided by the applicant to the Registry for the use of the Court. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 854 of 1994 GENERAL DIVISION ) BETWEEN: "A" Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS First Respondent PROFESSOR TSAMENYI SITTING AS THE REFUGEE REVIEW TRIBUNAL Second Respondent CORAM: Lindgren J PLACE: SYDNEY DATE: 5 December 1994 REASONS FOR JUDGMENT INTRODUCTION There is before the Court an ex parte application by a person to whom I will refer as "the applicant" for an order under s 50 of the Federal Court of Australia Act 1976 the object of which is to enable him to commence proceedings in the nature of an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") without revelation of his identity. The Tribunal decided that the applicant was not a refugee as defined in the United Nations Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). Section 50 is as follows: "50 The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth." The case made for the applicant for an order under s 50 is based on his fear that if he should be unsuccessful in the proposed proceedings he will, upon return to the country of which he is a national, suffer persecution by the government of that country. He has filed an affidavit as to the holding of that fear by him and in that affidavit he has given reasons as to why he holds that fear. In dealing with this application, I have been conscious of the fact that while s 50 gives the Court a discretion to be exercised on the facts of each case, it 18 possible that the way in which the Court may exercise its discretion in this particular case may have implications, or be suggested to have implications, for other cases. For this reason I informed counsel for the applicant that I would be assisted by knowing the attitude of the proposed first respondent, the Minister for Immigration and Ethnic Affairs ("the Minister") to the present application. The Australian Government Solicitor was notified of the application and I have been assisted, not only by counsel for the applicant, but also by the solicitor for the Minister who appeared as amicus curiae. FACTS AND SUBMISSIONS A refugee is defined by the Convention as amended by the Protocol relevantly as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having the nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." In the present case it is only "reasons of .... political opinion" which is suggested to be relevant. The applicant made allegations directed against the government of his country. The Tribunal held that his fear of persecution by that government was not "well-founded". Subject to the limited nature of the grounds of an application for judicial review, these matters would be ventilated in the proposed application. The Department publishes "Explanatory Notes" in relation to applications for refugee status in which it gives certain assurances as to the confidentiality of the contents of an application. Relevantly, the document says this: "The information you give in your application for refugee status is needed by the Department of Immigration and Ethnic Affairs to carry out its functions and activities. It will be used for the purposes of assessing your application. Some or all of the information may be used in any other matters arising between you and the Department, for example, entry permit applications and compliance action. The information you give in your application about a particular matter may sometimes conflict with information given by another refugee status applicant about that matter. In such instances, the Department may have a legal obligation to invite you and the other applicant to comment on the conflicting information. Any information you give about your country of origin or habitual residence may also be used in a general way by the Department. It would be used to examine conditions in that particular country or habitual residence for the purposes of assessing other refugee status applications. The Department may also pass on all of the information in your application to the review body involved in the review of refugee decisions. The Department may also, on a restricted basis, pass on some or all of such information to Australian Government agencies which deal with foreign affairs, education, health, community services, social welfare, employment and labour, intelligence, law enforcement, taxation and statistics. The Department may also provide, on a restricted basis, some of the information in your application to the Office of the United Nations High Commissioner for Refugees (UNHCR). j wi j dence. wi representatives in Australia or any other country, EXCEPT as follows. If you are finally determined not to be a refugee and you have no other grounds for remaining in Australia, you will be required by law to leave Australia. If you refuse to co-operate in departing Australia under such circumstances, the Department may need to obtain for you a travel document and/or entry visa. The information that is passed on in such circumstances would generally be of a biographical nature (that 1s, name, date of birth, etc). Information regarding your actual claims to refugee status would NOT be passed on." (emphasis supplied) Clearly a purpose of these assurances is to allay a fear that the authorities in an applicant's country or their representatives in Australia might become aware of the identity of the applicant, of the making of the application and of the applicant's allegations, and a fear that their knowledge of these matters might lead to persecution of the applicant if he or she should be determined not to be a refugee. Consistently with this stance, the record of the Tribunal's ' determination bears a notation on the front cover as follows: "In accordance with s.166EA of the Migration Act 1958 (Cth),(as amended), the published version of t decision does not contain any statement which may identify the Applicant or any relative or dependant of the Applicant." Sub-section 166EA(2) provided (s 166EA has been re-numbered 431 by the Migration Legislation Amendment Act 1994 (No 60, 1994)) that the Tribunal: "must not publish any statement which may identify an applicant or any relative or other dependant of an applicant". This provision suggests a legislative purpose of facilitating the making and pursuing of applications to the Tribunal for review, free of fear of adverse repercussions in the event of failure. I have had submissions in writing from the legal representatives of the applicant and the Minister. These emphasise the public interest in enabling a person who is aggrieved by a decision of the Tribunal to be able to make application under the AD(JR)Act without fear of persecution. That public interest signifies the ability, without that fear, to apply and fail: an ability to apply without that fear only in cases where success is assured is, of course, a nonsense. The applicant submitted in relation to the public interest as follows: "Firstly, it is important that the Minister, (or the RRT on a merits review), have the best available evidence upon which to make a determination on the merits. It is important that there be finality to refugee status decision-making. Fear of disclosure of sensitive information may lead to later challenges to the adequacy of the decision-making process. There is the potential, ina particular case, for the publication of the court's hearing itself to enlargen the scope of an applicant's basis for fear of return. Publication of material identifying the applicant, whether in proceedings brought by the applicant or the Minister, might dissuade other applicants from a candid exposure of their claims. The effectiveness of the Minister's undertaking in the Explanatory Notes would be compromised." The solicitor for the Minister, appearing as amicus curiae, submitted in relation to the public interest as follows: "In the Minister's view... there is a public interest in ensuring that applicants for refugee status can make their claim and provide information in support of that claim without fear that, if ultimately they are held not to be persons to whom Australia has protection obligations under the Convention, they may be subjected to detriment in their home country as a resuit of having made such an application. The existence of such a public interest has been recognised by successive governments, which adopted policies that tended to protect the identity of applicants for refugee status and information provided by such applicants. The policies referred to found legislative expression, at least in part, in certain provisions of the Migration Act 1958 (see ss 431, 439, and 440)." REASONS Section 50, in the context of this case, requires the question to be asked: "Is it necessary that an order under the section be made 'in order to prevent prejudice to the administration of justice'?" If so, the Court has a discretion to make an order under the section. The only order which the Court is empowered by the section to make is, relevantly, one which appears to it to be necessary in order to prevent prejudice to the administration of justice. The only public interest which the section makes relevant to the existence of the Court's jurisdiction under it is the public interest in the administration of justice, although other public interest may be relevant to the discretions which arise where jurisdiction exists. The notion of "prejudice to the administration of justice" has been discussed in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (FCA/FC) at 132-134 per Bowen CJ and SRD v Australian Securities Commission (1994) 123 ALR 730 (FCA/Hill J). It suffices to say for present purposes that in my opinion it is in the interests of the administration of justice that a person who is aggrieved by a decision of the Tribunal that he or she is not a refugee and who desires to apply under the AD(JR) Act for review of that decision on grounds which are not plainly untenable, should be able to do s0 without fear of being persecuted as a result of the making of the application. In this particular case, as I indicated, there is an affidavit from the applicant himself deposing in some detail to fear of persecution and the reasons for it and as to the acts of persecution which he fears for himself and others if he should apply under the AD(JR) Act and fail. He does not say that if an order under s 50 is not made he will not proceed with that application, but evidence to that effect should not be looked for. Although the applicant has not been cross-examined, his affidavit is not merely a bland statement of the holding of the fear of persecution: it gives reasons for his fear and articulates the way in which the feared persecution might occur. It is not necessary for me, for the purpose of this application, to determine the question whether applicant's fears of persecution are well-founded and I do not do so. I see no reason, in view of the particularisation in his affidavit, to doubt that he holds those fears. In my opinion it is prejudicial to the administration of justice that in these circumstances the applicant should, although aggrieved by the Tribunal's decision, have to choose between exercising in fear the right of application given to him by the AD(JR) Act on the one hand, and accepting the Tribunal's decision that he is not a refugee on the other hand. It was not submitted by the solicitor for the Minister that the "grounds" stated in the proposed form of application under the AD(JR) Act are plainly hopeless or otherwise such that the filing of the application would be an abuse of the process of the Court. On the question of the exercise of discretion, I take into account in this case that the applicant has caused the Minister to be notified, and that the Minister has had the opportunity of making submissions against the making of an order under s 50, neither consents to nor opposes the making of an order, and has made submissions which, in the respect noted earlier, lend some support to the making of an order. I accept the force of the submissions made by counsel for the applicant and the solicitor for the Minister referred to earlier. Notwithstanding the strong public interest in the open administration of justice as a general practice (see, for example, Raybos Aust Pty Ltd v Jones (1985) 2 NSWLR 47 (NSW/CA) at 50-55 (Kirby P); QO v Seymour (1993) 69 Aust Crim R 514 (FCA/Foster J); J v L& A Services Pty Ltd, unreported, Qld/FC, 15 February 1993), I am persuaded that the public and private interests in the applicant's being free to commence the proposed proceedings without fear of persecution prevail in this case. CONCLUSION The orders which I have in mind will be made only until further order of the Court and will be framed so as to go no further than necessary to prevent disclosure of the applicant's identity for the time being. The orders which I will make at this stage will not prevent a hearing in open court in the usual way: see sub-s 17(4) of the Federal Court Act 1976. Further orders may be necessary as the matter proceeds if it sho..i be found that difficulties are encountered in preserving the confidentiality of the applicant's identity consistently with the necessity that both parties be free to file affidavits and otherwise put before the Court, without inhibition, all relevant evidence in support of their respective cases. The orders will be as follows: 1. I grant leave to the applicant to file in Court notice of motion for orders under s 50 of the Federal Court Act 1976 in the form initialled by me, dated today and placed with the papers. 2. I order that the notice of motion referred to in paragraph 1 above be made returnable instanter. 3. I order that the time for filing by the applicant of an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the decision dated 19 April 1994 of the Refugee Review Tribunal be extended to 4.00pm this day Monday 5 December 1994. 4. I make orders pursuant to section 50 of the Federal Court Act 1976 that until further order of the Court: (a) the notice of motion, application for an order of review and the copy documents referred to in Order 54 r3 of the Federal Court Rules be placed and retained in an envelope to be sealed and marked "NOT TO BE (b) (c) (a) (e) - 11 - OPENED EXCEPT BY ORDER OF THE COURT"; in the title of the proceedings, the applicant be referred to as "A"; in all affidavits and other documents to be filed in the proceedings the applicant be referred to as "A" or as "the applicant"; the name of the applicant or anything liable to identify him not be published, but this order shall not prevent disclosure of name or otherwise of identity to counsel or to the solicitors for the parties or within their respective chambers and offices; additional copies of the documents referred to in para (a) above with the name of the applicant replaced by "A" be provided by the applicant to the Registry for the use of the Court. I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren Associate: tbe, /S Dated: 9 December 1994 - 12 - 5 December 1994 Sydney 5 December 1994 Mr G Craddock of counsel instructed by Perry & Smith Solicitors appeared for the applicant. Mr A Markus of Australian Government Solicitor appeared for the respondents amicus curiae.