FEDERAL COURT OF AUSTRALIA No. NG 1032 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 126 No. NG1032 of 2000 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS HILL, EMMETT, FINKELSTEIN JJ 5 FEBRUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1032 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: No. NG1032 of 2000 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, EMMETT AND FINKELSTEIN JJ DATE OF ORDER: 5 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellant pay the respondent's costs of the appeal; and 3. as and from today the name of the appellant be not disclosed to any person without the leave of the Court and that the judgment at first instance be henceforth entitled No NG1032 of 2000 v Minister for Immigration and Multicultural Affairs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1032 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: No. NG1032 of 2000 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, EMMETT AND FINKELSTEIN JJ DATE: 5 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT HILL J 1 I will ask Emmett J to deliver the first judgment. EMMETT J 2 The appellant is a citizen of China. He arrived in Australia on 13 April 1999. On 20 August 1999 he lodged an application for a protection (class AZ) visa. On 13 October 1999 a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") refused to grant a protection visa. On 5 November 1999 the appellant applied for a review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 8 May 2000 the Tribunal affirmed the decision not to grant a protection visa. The appellant then applied to this Court for an order of review of the decision of the Tribunal. On 11 September 2000 a judge of this Court dismissed the application with costs. The appellant now appeals to the Full Court from that decision. 3 The appellant is a businessman who has operated in China and other parts of the world since January 1987. He travelled extensively and returned to China on several occasions. He claims that he met a person known as Naeem, a Pakistani whom the appellant met in Kenya, who claimed to be a friend of Osama Bin Laden and part of his terrorist group. In August of 1998, through Naeem the appellant attempted to obtain a visa for the United States. The appellant paid Naeem a sum of money for a visa but the visa did not eventuate. 4 The Tribunal found that wanting to take revenge against Naeem, whom he regarded as having cheated him, the appellant went to the United States Embassy in Hong Kong and spoke to the FBI. The appellant claimed that he knew the people involved in the bombing incident of the United States Embassy in Nairobi. He gave details about Naeem, about Bin Laden's next plan, about one of Naeem's closest friends who had directly taken part in the bombing, and other details that Naeem had revealed "when they all drank beer together". The Tribunal stated that "Naeem got a little bit drunk". I shall return to that question in a moment. 5 The Tribunal accepted that the appellant told the FBI about Naeem because Naeem cheated him out of money. The Tribunal also accepted that if the Authorities took that information seriously, it would have been passed on to other international sections of police forces searching for persons responsible for the bombing. The Tribunal considered there was no reason why the appellant's details as the informant would not be accessible to police involved in the investigations. 6 The Tribunal found that the appellant then returned to China. Soon after, Naeem called him and the appellant said that he did not want to deal with him again as he was "the biggest cheat he had ever known". Several months later one of Naeem's friends called the appellant and asked if he knew Naeem's whereabouts. The appellant said that he did not know. The friend warned the appellant by saying that if the FBI killed Naeem, he would make the appellant disappear. The appellant said to the Tribunal that, being scared, he decided to stay in a remote city in the west of China where he established a small business. He later went to Wen Zhou City to arrange a container of leather shoes to be transported from there to Western China. 7 On the eve of his departure from Wen Zhou, at about 8.00 pm, he went to his mother's home to spend the night. After he arrived some people came in saying that they were from the State Security Bureau, the Chinese secret police. They showed him a warrant for his arrest. The appellant claimed that there were more than 20 secret police. He said that they took him to a hotel, put him into a room on the second floor and began questioning him. 8 He claimed that he was asked about his visit to the United States Embassy in Hong Kong, Pakistan and the inside story about the bombing of the US Embassy in Kenya. He claimed that he was shut in the room for six days, threatened, tortured, questioned and then released. He claimed that he was forced to write a statement promising that he would keep secret everything about his arrest. He said that he was told that if he continued to talk with the FBI he would be punished. 9 The appellant made no claim that he was questioned about matters not related to the facts or issues concerned with Bin Laden's associates. He produced a document indicating that the Wen Zhou City State Security Bureau had decided to cease surveillance of him on 11 December 1998 after completing investigations into his case. The appellant said that he stayed in Wen Zhou for a short while and then went back to West China where his business was situated and later went to Australia, all without difficulty. 10 In its reasons, the Tribunal said it was satisfied that at the time the appellant departed China he had no well founded fear of persecution for a Convention reason. The Tribunal observed that it made that finding on the basis of the appellant's own evidence at the hearing; that he did not make an application upon arrival in Australia because his fear arose at a later stage. 11 The appellant said that the reason for lodging a protection visa was not his detention in the hotel. He came to Australia to trade; it was events that had occurred in Australia that gave rise to his fear of persecution. These were, first, when the appellant told the FBI in Australia that he had been arrested in China and secondly, when he told a business acquaintance, Chen Wei, and others of that incident notwithstanding the promise that he had made to the State Security Bureau. 12 In his submissions to the primary judge, the appellant said that he had written a statement promising the State Security Bureau people who arrested him that he would keep details of his arrest secret. He said that now that he had broken his promise, a promise that was made under coercion, the State Security Bureau people would regard it as committing a crime and punish him severely when they could lay hands upon him. 13 The Tribunal referred to the fact that the appellant made no application for a protection visa for four months after his arrival in Australia. The Tribunal recognised, however, that the delay of itself could not be determinative and that there would need to be other considerations to support adverse findings with respect to the appellant's credit. Nevertheless, the Tribunal was satisfied that the delay of the appellant in making the application was an indication that the depth of the appellant's fear of persecution was not significant when he came to Australia. 14 The Tribunal went on to say though that in any event it was satisfied that the appellant's difficulties were not Convention related. The Tribunal did not consider that the incident when the appellant was detained occurred for reason of his political opinion or any other Convention reason. The Tribunal considered that, even if there is a political element involved in the criminal activity of terrorists, that does not mean that the appellant's difficulties arose by reason of any political opinion held by him. 15 The Tribunal did not accept that the authorities in China had imputed a political opinion to the appellant simply because he contacted the Americans in Hong Kong. The appellant presumably passed on information to the Americans because they were the victims of the bombing and because he wanted a reward if there was one on offer. He also did so because of his desire to take revenge on Naeem. 16 The Tribunal characterised the appellant's claim as one that he is a refugee sur place. He made that claim after he communicated with ASIO and the FBI in Australia and advised them that he had been detained for six days in China. He did not provide the FBI with any information of importance or significance. The Tribunal observed that, although the appellant believed his visit to ASIO or the FBI would be leaked to the Chinese government, he did not provide any evidence to indicate that that would be the case. 17 The Tribunal was satisfied that advising ASIO and the FBI in Australia about his arrest, contrary to the wishes of the Chinese authorities, did not give rise to a fear of persecution for a Convention reason. The Tribunal considered that there was no evidence to suggest that those facts were or will be passed to Chinese authorities; the Tribunal was satisfied that in all the circumstances described by the appellant, that possibility was less than remote. 18 The appellant also claimed that he had strong evidence that the Chinese secret police had found him in Sydney. However, the Tribunal did not accept that the reasons advanced by the appellant indicated that such a finding should be made. The Tribunal considered that the claims were speculative. The Tribunal was unable, on the evidence presented by the appellant, to find that a particular association with the former business associate gave rise to a fear of persecution for a Convention reason. 19 The application to this Court for an order of review discloses no grounds set out in s 476(1) of the Migration Act 1958 (Cth). The application was accompanied by a typed document entitled "Applicant's Submissions". That document, as the primary judge observed, asserted that the decision of the Tribunal was incorrect and unfair in various respects identified in the document and asserted an entitlement on the merits to the grant of a protection visa. The primary judge observed that the focus of the document was not upon the limited grounds upon which the Court is entitled under the Migration Act to review a decision of the Tribunal. 20 The notice of appeal to the Full Court refers to a further typed document entitled "Submissions in Support of my Appeal" instead of specifying grounds of appeal as is required by the rules. Several matters were raised by that document. The first complaint appears to be an assertion of denial of procedural fairness by the primary judge. The appellant asserts that the respondent's, that is the Minister's, solicitor sent his submissions for the hearing on Friday, 1 September so that he only received them on Monday evening, 4 September, for a hearing fixed for 5 September. 21 The appellant said that he did not have an ample opportunity to consider those submissions because of what he characterised as a deliberate delay in serving the document. It is not clear whether a direction had been given for the appellant to file written submissions. It may be that the document to which I have already referred was intended to be his submissions for the hearing. 22 Whether or not the appellant had an ample opportunity to deal with the submissions of the Minister before the primary judge, he has had ample opportunity between the date of the original hearing and the date of the hearing before this Full Court to formulate any arguments that are open to him in response to those submissions. The appellant did not identify any particular submission that he would have made to the primary judge had he been given further time. This complaint does not give rise to any remedy on appeal. 23 A further matter that was the subject of complaint before the primary judge concerns an alleged error of translation by an interpreter. The appellant says that in response to a question as to whether Naeem was drunk he said in Chinese "No, he was not drunk". He asserted before the primary judge that the interpreter rendered that response in English "No, he was not exactly drunk". 24 The primary judge recorded that no transcript or other record of the proceedings before the Tribunal had been placed in evidence and that there was, therefore, no basis upon which his Honour could conclude that the asserted error in fact occurred. There had been no challenge to the competence of the interpreter. The complaint was simply that she had made a mistake. 25 The appellant complained before this Court that if the primary judge were unable to find any basis for coming to a certain conclusion because of a lack of evidence, he could have requested the appellant to provide evidence that he claims to have had. 26 In the course of submissions to the Full Court, the appellant said that he required a further two weeks' adjournment of the appeal to enable him to have a translation made of the transcript. He has had ample opportunity to arrange a translation if the matter is of any significance, but has apparently made no attempt to do so. In any event, the appellant was unable to indicate what significance, if any, should be attached to the so-called inaccuracy or mistake in translation. The primary judge concluded that even if there were an error, it was not material. The primary judge was unable to appreciate why, as the appellant apparently submitted, the mistake was a serious mistake that could have changed the result of the hearing. Before the Court the appellant was once again unable to advance any reason as to why the mistake, if it was made, was significant. The primary judge referred to the fact that in the appellant's written account to the department, he in fact said "We drank beer together, Naeem got a little bit drunk and became more talkative". That rather suggests that there was no error in any event. 27 The next matter complained of in the appeal relates to the finding by the Tribunal that the delay of the appellant in making the application is an indication that the depth of the appellant's fear of persecution was not significant when he came to Australia. The appellant's submission to this Full Court is that the definition in the Convention only requires that an applicant have a well-founded fear. It does not require that the depth of the applicant's fear has to come to a certain extent before he or she can be recognised as satisfying the criteria of having a fear of persecution. 28 The Tribunal's reasons indicate that a finding of fact was made that when the appellant left China he had no subjective fear at all. Further, if there were any fear of persecution it was not of persecution for any Convention reason. That finding, as the Tribunal said, is based on the appellant's own evidence that his fear was based on what he had done in Australia after his arrival and was not based upon the events which had occurred in China. 29 The Tribunal also found that what had happened in Australia was not likely to give rise to any concern in China because there is no reason to believe that his approach to ASIO or the FBI would be leaked to the Chinese government. In any event, the Tribunal's finding is that even if there were a threat of what might be characterised as persecution in China, or at least of action which was of an undesirable character, the reason for that would be because of the appellant's admitted breach of promise not to disclose the circumstances of his detention to anyone else. The Tribunal found that any fear the appellant had was not by reason of a Convention ground. It is reasonable to infer that the Tribunal considered that any fear that the appellant had arose from his breach of the undertaking that he gave to the Chinese authorities. 30 Tied up with this question is the relevance of the political nature of the activities of Naeem and his associates. Any reprisal against the appellant would not be for a Convention reason even if it be the case that the activities of Naeem and his associates are politically motivated. There is no suggestion that the appellant has ever had attributed to him the political views of Bin Laden or Naeem or their associates. The most that can be said is that the Chinese authorities took action in order to ascertain from him information concerning people whose activities may well have a political motivation. 31 The final matter that has been raised in the submissions in support of the appeal concerns what is said to be a serious violation of privacy. The primary judge's reasons for judgment have been published in the ordinary way under the name of the proceeding, which includes the name of the appellant. Though a request was made to the Court for suppression of his name, no evidence was advanced to this Court by the appellant as to the likely consequences of further publication of his name in the reasons of this Full Court. 32 Counsel for the Minister indicated that no objection would be taken if the Court were disposed to make orders that the name of the appellant not be published in connection with the disposition of the appeal. It may well be that if any damage is likely from publication of the name of the appellant, that damage has now been done and cannot be undone. In any event, that is not a ground of appeal and would not be a ground upon which this Court would interfere with the decision of the primary judge. 33 Nevertheless, in the absence of any opposition from the Minister, it would be appropriate that the reasons for this Full Court's disposition of the appeal be published in a way that did not disclose the name of the appellant. In my view the appeal should be dismissed with costs. I would be prepared to make an order such as I have just foreshadowed. HILL J 34 I agree with the reasons which Emmett J has just delivered. I wish to make one additional or supplementary comment. I am concerned that the orders in the present case did not provide for the reasons for decision to be published in such a way as not to reveal the identity of the appellant. In fairness to the learned primary judge he was not asked to do so. There are cases in this Court which have suggested that a suppression order should not be made once the material has gone into the public domain. These cases do not suggest that that is a matter of law but rather that it would ordinarily not be in the interests of the administration of justice thereafter to suppress the name of a particular litigant. 35 The present is a case where the appellant's story, which was apparently accepted by the Tribunal, would indicate that if he returned to China and it was apparent to the Chinese authorities that he had spoken to the FBI in Australia, his life could be in danger. In my view, in the particular circumstances of this case, this affords a sufficient reason to order that as and from today the name of the appellant be not disclosed to any person except with leave of the Court and that the judgment at first instance henceforth be entitled No NG1032 of 2000 against the Minister for Immigration and Multicultural Affairs. 36 Although, as his Honour Emmett J has noted, this matter would not provide a ground of appeal to the Full Court of this Court, it may well be an appropriate matter for the Minister to take into account should the appellant seek to request the Minister to exercise the residual discretion that the Minister still has. That is, however, a matter for the appellant should he desire to put the matter before the Minister. I agree otherwise with the orders that his Honour Emmett J proposes. FINKELSTEIN J 37 I agree with Emmett J and with the orders that he proposes. I agree with the additional comments made by Hill J. HILL J 38 The orders of the Court will accordingly be that: 1. the appeal be dismissed; 2. the appellant pay the respondent's costs of the appeal; and 3. as and from today the name of the appellant be not disclosed to any person without the leave of the Court and that the judgment at first instance be henceforth entitled No NG1032 of 2000 v Minister for Immigration and Multicultural Affairs. 39 I note that this order would not prevent counsel or solicitors for the Minister reporting the results of the case to the Minister or persons within the respondent's office. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Hill, Emmett and Finkelstein JJ. Associate: Dated: 5 February 2001 The appellant appeared in person Counsel for the Respondent: David Godwin Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 February 2001 Date of Judgment: 5 February 2001