UUDGMENT No. sane 22,4 4 ecvensseeess CATCHWORDS PRACTICE AND PROCEDURE - suppression orders - application under s 50 Federal Court of Australia Act 1976 to suppress names of parties asserting claim to refugee status - application made after case proceeded to judgment - prior publication of names undermines benefit of order. Federal Court of Australia Act 1976, s 50 A v Minister for Immigration and Ethnic Affairs, 5 December 1994, Unreported, Lindgren J. 16 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v RU GUANG QUAN & ORS NG _327 OF 1994 Sackville J. 16 December, 1994 Sydney. -— FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 327 of 1994 GENERAL DIVISION ) BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Applicant AND: RU GUANG QUAN First Respondent YE LIU XIN Second Respondent JANET WOOD, MEMBER THE REFUGEE REVIEW TRIBUNAL, Third Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 16 DECEMBER 1994 MINUTES OF ORDER THE T ORDE THAT: - 1, / fhe application be dismissed. f 4 2." The orders made on 6 December 1994 and extended until oe | 'further order on 13 December 1994 be discharged. Seooget a) NOTE: Settlement and entry of orders is dealt with in Y Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 327 of 1994 GENERAL DIVISION ) BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Applicant AND: RU GUANG QUAN First Respondent YE LIU XIN Second Respondent JANET WOOD, MEMBER THE REFUGEE REVIEW TRIBUNAL Third Respondent CORAM: SACKVILLE J. PLACE : SYDNEY DATE: 16 DECEMBER 1994 REASONS FOR JUDGMENT In this matter, I delivered judgment on 6 December 1994. I ordered at that time that the application by the Commonwealth, seeking review of decisions by the Refugee Review Tribunal, be dismissed. The Tribunal had found, in effect, that the respondents were each entitled to be regarded as a refugee under the Convention Relating to the Status of Refugees. The hearing of the proceedings took place before me on 15 November 1994. On 8 July 1994 Whitlam J. had refused an application by the respondents for an order that there be no publication of the names of either of the respondents or any -2- material that would tend to identify them. Although there was some discussion in the course of the hearing before me concerning the possibility of an application being made to suppress the names of the respondents, no such application was made at the hearing. Thus the matter proceeded with the names of the respondents being referred to at the hearing and in evidence. The respondents were also identified in published court lists specifying the time and place of the hearing and for delivery of judgment. When judgment was delivered in open court on 6 December 1994, Mr Gerogiannis, on behalf of the respondents, sought orders under 8.50 of the Federal Court of Australia Act 1976 that (i) the first and second respondents be referred as "respondent A" and "respondent B" respectively; and (ii) there be no publication of the identity of either the first respondent or the second respondent, nor of anything which would tend to identify them. Ms Hall, who appeared for the applicant, neither supported nor opposed the application. As it was not possible to deal with the matter on 6 December 1994, and Mr Gerogiannis indicated in any event that he wished counsel to argue the point, I made orders intended to prevent publication of the respondent's names until the issues could be _ 3 _ dealt with more fully. Accordingly, I made the following orders: "1, Until 5 p.m. on Wednesday 14 December 1994, in any publication of the reasons of judgment in this matter, or any account relating to the case, the first and second respondents should be identified only as "respondent A" and "respondent B" respectively. 2. Until 5 p.m. on Wednesday 14 December 1994, in any publication relating to the reasons for judgment or any account of the case, I order that there be no matter published which identifies either the first or second respondents, nor anything which would enable them to _ be identified." Of course, these orders did not prevent publication of reports of the judgment, provided that the respondents were not identified. In fact, as the evidence on this application showed, reports appeared in at least two daily newspapers published in New South Wales. These reports did not identify the respondents. On 13 December 1994 Mr Craddock appeared on behalf of the respondents and sought continuation of the orders made on 6 December 1994. Mr Craddock recognised that the need for the orders would disappear if the Minister decided that he would not appeal. Accordingly, he proposed that any orders would lapse should the Minister decide not to appeal. Ms Hall again appeared for the Minister and made no submissions either in support of or in opposition to Mr Craddock's submissions. Section 50 of the Federal Court of Australia Act 1976 provides as follows: "The Court may, at any time during or after the -4- 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 section confers a discretion on the Court, which of course is to be exercised judicially: Australian Broadcasting Commission v_Parish (1980) 293 ALR 228 (FCA/Full Court), at 232. The importance of the principle of open justice has been repeatedly emphasised and orders departing from that principle are not to be made lightly. Nonetheless, there are circumstances in which the suppression of the name of a party or of a witness is necessary to prevent prejudice to the administration of justice: ABC v Parish, at 233. The Court is often required to weigh the principle of open justice against the public interest in doing justice between the parties: ABC v Parish at 234. Mr Craddock pointed out that orders have been made in order to protect the anonymity of parties in a variety of circumstances. In Ev Australian Red Cross Society (1991) 27 FCR 310 (FCA/Wilcox J.), Wilcox J. made orders prohibiting publication of the names of applicants because of the stigma said to attach to persons who are known to be HIV positive and because of the prejudice and embarrassment to the applicants and their families arising from publicity about the proceedings (at 313). In Secretary, Department of Social Security v SRA (1993) 118 ALR 467 (FCA/Full Court), the Court made orders in a case involving a pre-operative male-to-female transsexual, that the names of the respondent and certain witnesses be suppressed (at 475). In Commissioner of -5- Australian Federal Police v_ Cox (1989) 87 ALR 163 (FCA/Morling J.), at 168, Morling J. observed that, if a witness is asked a question the answer to which might expose him or her to criminal proceedings outside Australia, it would be proper for the Court to exercise its powers under s.50 to forbid or restrict publication of the evidence. In Av Minister for Immigration and Ethnic Affairs, 5 December 1994, unreported, Lindgren J. made an order under s.50, on an ex parte application by a person wishing to institute proceedings under s.5 of the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the Refugee Review Tribunal. Lindgren J. made the order because of the applicant's fear, deposed to in an affidavit, that he would suffer persecution if forced to return to his country of origin. His Honour held that (at 8): "it is prejudicial to the administration of justice that [in view of the applicant's affidavit] the applicant should, although aggrieved by the Tribunal's decision, have to choose between exercising in fear the right...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." Mr Craddock urged that I should reach a similar conclusion in the present case. He acknowledged that the respondents had succeeded before me and needed to bring no further proceedings themselves in the Court. However, if there was a successful appeal by the Minister, the respondents could be returned to China. Mr Craddock contended that they might well be singled out for adverse treatment, including forcible sterilisation, or -6- identified as opponents of the Chinese government and subjected to some punishment. The respondents themselves did not put on evidence. However, an affidavit was sworn by their solicitor. It is not necessary to reproduce the relevant portions of that affidavit. However, the solicitor deposed that she had been instructed that the respondents held fears about the way in which they and their child might be treated if they were forced to return to China. The solicitor said that she had been instructed that publicity about the case could affect the treatment of the respondents, if the Chinese authorities became aware of who was responsible for that publicity. The solicitor also deposed to the fact that in proceedings before the Refugee Review Tribunal the applicants for refugee status are not identified. The respondents had been told at the primary stages that what they said was confidential, and they were frightened when the court proceedings were not. In addition, the explanatory notes provided by the Department of Immigration advise that the Department uses and passes on the information about applicants for refugee status on a limited basis: "Apart from these uses, the information you provide in your application will be held in confidence. It will not be passed to the authorities in your country or their 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 - 7J- information that is passed on in such circumstances would generally be of a biographical nature (that is, name, date of birth, etc). Information regarding your actual claims to refugee status would NOT be passed on." I have no doubt that an order forbidding the publication of the names of persons asserting a claim to refugee status may be necessary in some cases in order to prevent prejudice to the administration of justice. However, having regard to the principles of open justice, I do not think that such orders are to be made as a matter of course. Despite the evidence adduced on behalf of the respondents and the submissions made by Mr Craddock, I do not think that the circumstances of the present case justify an order being made. In particular, in the present case, unlike Av Minister, the case has proceeded to a judgment in the Court without any order being made under s.50 of the Federal Court of Australia Act 1976. Indeed, an application was made to the Court in July 1994 and rejected by Whitlam J., on the ground that he was not satisfied that there was any real risk to the respondents. His Honour was also influenced by the likelihood, in his view, that the respondents' identities would be known within the Chinese community. Since July, the proceedings have continued with the respondents named in court documents and in court lists. These lists have been published in the daily press. The hearing took place with representatives of the press present. While there is no evidence that reports were published during the hearing that identified -8- the respondents, there was nothing to prevent court observers in Court or others making the respondents' identities known. Indeed, it would be surprising if their identities were not known to at least some persons beyond those attending the Court. In any event, anyone who wished to ascertain their identity would need only to look at the published court list for the day on which judgment was delivered (a report of the case appearing the next day in the daily press). If, as Whitlam J. thought, there was no "real benefit" to an order in July, there is even less prospect of any benefit at this stage of the proceedings. Even in these circumstances, if there were cogent evidence that divulging the names of the respondents would expose them to significant danger upon their return to China (assuming any appeal by the Minister is successful), I would be disposed to make an order under s.50. However, the fears expressed by the respondents' solicitor (recounting the instructions given to her) are somewhat general in character. I appreciate that it may be difficult to provide detailed and specific information on the likely consequences of particular applicants being identified. Nonetheless I do not think that the affidavit, having regard to the circumstances to which I have referred, provides the "particularisation" of the respondents' fears that Lindgren J. in "A" v Minister thought to be important (at 8). In this connection, I am not to be taken as holding that an applicant for refugee status who seeks to invoke s.50 of the Federal Court of Australia Act 1976, must always show that his or her fears are objectively well-founded. But, depending on the circumstances, ~9 - the nature and basis of the fears outlined in the affidavit can be significant in determining whether an order should be made in @ particular case. It is true, as Mr Craddock pointed out, that the Refugee Review Tribunal found that the respondents had a well-founded fear of forcible sterilisation. Indeed, that was not disputed at the hearing before me. But that fear arose from their desire to have more than one child and pre-dated their departure from China. The evidence does not make clear how, in the event that the respondents are required to leave Australia, the risk of forcible sterilisation will be significantly greater than otherwise would be the case. The evidence does not specifically address this point. I should record that I raised with Mr Craddock possible difficulties with orders that bind persons, other than the parties themselves or persons in Court, from divulging the names of the parties to the proceedings. See John Fairfax & Sons Pty Ltd _v_ Police Tribunal of New South Wales (1986) 5 NSWLR 465 (NSW/CA), at 474, 476-477; Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 (NSW/CA), at 345-350; National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 (FCA/Full Court), at 228-232. In view of the conclusion I have reached, it is not necessary to pursue these questions. However, I think that considerable care should be taken before making an order that exposes persons outside the courtroom to contempt proceedings if they publish Mw, we, - 10 - material that has been read or referred to in open court and was subject to no restraints at the time. For these reasons I do not think that any order should be made under s.50 of the Federal Court of Australia Act 1976 preventing publication of the respondents' names. I discharge the orders Made on 6 December 1994 and extended until further order on 13 December 1994. There should be no order as to the costs of the application. I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. =f, , Associate: ke de rz ' Dated: 16 December, 1994 Heard: 13 December, 1994 Place: Sydney Decision: 16 December, 1994 Appearances: Ms J. Hall of the Australian Government Solicitor appeared for the applicant. Mr G. Craddock instructed by the Legal Aid Commission of N.S.W. appeared for the first and second respondents.