F v Refugee Review Tribunal & Anor [1997] FCA 459 (28 May 1997)

CATCHWORDS

PRACTICE AND PROCEDURE - Applicant for refugee status - Order directing applicant to be described in court documents by letter of alphabet and that name not be published in connection with proceeding - Order made so as to diminish risk of publication of humiliating facts affecting applicant - Subsequent newspaper publication of facts - Whether order to be rescinded.

Federal Court of Australia Act 1976 , s50

F v REFUGEE REVIEW TRIBUNAL (constituted by MURRAY GERKENS) and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 786 of 1995

COURT: Sundberg J

PLACE: Melbourne

DATE: 28 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No VG 786 of 1995

GENERAL DIVISION )

BETWEEN: F

Applicant

AND: REFUGEE REVIEW TRIBUNAL (constituted by MURRAY GERKENS)

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondents

COURT: Sundberg J

DATE: 28 May 1997

PLACE: Melbourne

MINUTES OF ORDER

The Court orders that:

1. Upon the applicant's undertaking that he will not institute a fresh proceeding in this Court for the relief sought in the application or relief of a like nature, the applicant have leave to discontinue the application.

2. Paragraph 1 of the order made on 2 November 1995 be rescinded.

3. Paragraph 2 of this Order be stayed until 4:30 pm on 11 June 1997.

4. There be liberty to either party to apply.

5. The applicant pay the respondents' taxed costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No VG 786 of 1995

GENERAL DIVISION )

BETWEEN: F

Applicant

AND: REFUGEE REVIEW TRIBUNAL (constituted by MURRAY GERKENS)

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondents

COURT: Sundberg J

DATE: 28 May 1997

PLACE: Melbourne

REASONS FOR JUDGMENT

SUNDBERG J:

In September 1995 the applicant filed an application under the Administrative Decisions (Judicial Review) Act 1977 to review the conduct of the Refugee Review Tribunal (constituted by Mr Gerkens) in refusing to disqualify itself from hearing his application for refugee status. The grounds relied on included claims that the Tribunal's conduct gave rise to a reasonable apprehension of bias, that in formulating a "draft provisional view" the Tribunal had adopted misconceived attitudes in relation to his application, and that it had made errors of law in the draft provisional view. The relief claimed included a direction that the Tribunal further consider the applicant's claim for refugee status and an order that in undertaking its further consideration it be constituted otherwise than by Mr Gerkens.

By notice of motion filed on 17 October 1995 the applicant sought orders under s50 of the Federal Court of Australia Act 1976 that the application and other court documents be placed in an envelope marked "not to be opened except by order of the court", and that in the title of the proceedings he be referred to as "F". Section 50 empowers the Court to "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 to prevent prejudice to the administration of justice or the security of the Commonwealth". In an affidavit filed with the notice of motion the applicant's solicitor expressed the belief that the application "will involve canvassing allegations against the applicant which will be demonstrated to be untrue but which are of the most scurrilous and infamous nature", and that "if the applicant were identified as being a refugee applicant, he would be likely to be subject to further humiliation in Florida, where he comes from, and where his family still resides". No additional information about the conduct referred to was given.

On the day fixed for hearing the motion the solicitor filed another affidavit in which he recounted his instructions that until April 1992 the applicant had been a State member of the Honour of Representatives, a Senator in the Florida Senate and a Commissioner for Dade County in Florida. In that month he announced his candidacy for Mayor of Dade County. Shortly thereafter his car was stolen from his home. Thieves were caught in possession of the car and confessed to a police officer named Garcia that they had stolen it. Garcia was a protege of the campaign manager of Dade County's Mayor. While in Garcia's custody the thieves made allegations against the applicant which were particularly embarrassing, humiliating and politically damaging to him. They were granted immunity from prosecution. Their story has been shown to be false. However the media in Florida continue to repeat the story as the truth. As a result of the thieves' story the applicant was required, "on the day of the election for which he was a candidate for re-election", to give evidence in pre-trial procedures ostensibly held to investigate the theft of his car. He answered questions relevant to the theft, but refused to answer others, and was gaoled for contempt.

The solicitor expressed the view that the applicant's personal and professional reputation and ability to earn a livelihood as a lawyer in Australia would be greatly harmed if publicity were given to the allegations made against him by the thieves. It would be difficult to prevent such publicity in Australia if it were to become known that a former United States politician was seeking refugee status. The solicitor believed that the applicant's concern about publicity was affecting the instructions he was giving, and that without an assurance that the proceedings would be conducted so as to protect the disclosure of the applicant's identity, the solicitor would be instructed not to detail matters which were legally relevant to the proceeding.

On the basis of that information, on 2 November 1995 I ordered that court documents showing the applicant's name be placed in an envelope marked "not to be opened except by order of the Court", that in the title of the proceedings the applicant be referred to as "F", that in all documents to be filed he be referred to as "F" or as "the applicant", and that his name or anything likely to identify him as the applicant not be published. I will call this order "the suppression order".

The substantive application came on for hearing before me on 18 March 1996. The affidavits that had been filed in the meantime revealed the information the applicant did not want disclosed. It was that the people who had stolen his car claimed to have taken it from outside a "crack house" where they alleged the applicant was using cocaine while having sex with a prostitute.

In the course of argument it became apparent that the recent decision of Lehane J in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 created difficulties for the applicant's case. His Honour had decided that the restricted grounds of review introduced into the Migration Act 1958 by the Migration Reform Act 1992 applied to proceedings already on foot. At counsel's request I adjourned the matter so the applicant could consider his position. Before doing so I said that I doubted whether, had I been in possession of the facts now before the Court when I granted the suppression order, I would have done so. I invited the applicant's counsel, on the resumption of the hearing, to persuade me that it should be continued.

When the matter resumed on 20 May 1997 the applicant's counsel informed me that subsequent decisions had confirmed the position taken in Mahboob, and that the applicant sought leave to discontinue his application. He proposed to commence an action in the High Court challenging the constitutional validity of certain of the review provisions introduced by the 1992 Act.

On 23 May 1996, that is to say during the period the matter stood adjourned, the Age newspaper published a lengthy article commencing on the front page of the paper under the banner "Missing Miami high-flier chases a job in Melbourne". The article said the applicant (referring to him by his full name) had been "the king of Miami's Dade County", a former Florida senator and county commissioner. It was thought he would be the next Mayor of the County. The article continued:

Today, [F] is in Australia trying to re-establish himself after his high-flying life was grounded and he flitted from Florida.

[F] has applied for admission to the bar in Victoria, New South Wales and Queensland ....

...

According to [F], he is the victim of a vicious campaign of persecution by Miami's state attorney's office, the Miami Herald and others.

Miami authorities want [F] to do something he doesn't want to do: tell them about the night of 29 April 1992.

It was late that night that [F] told police his ice-blue Mercedes-Benz had been stolen from outside his four-bedroom house in Coral Gables ....

But others had a somewhat different version of events. In articles in the Miami Herald, four people - described as a crack-smoking streetwalker, a small-time dope dealer who killed someone 16 year earlier, another hooker with drug convictions, and a man who was kicked out of the army for drug use - detailed their recollections of that night ....

The criminal defence lawyer who represented [F] ... told The Age that a "whore and her drug-dealing boyfriend" claimed publicly that they had stolen the car from a crack den [F] was at with a prostitute.

...

Their allegations, strenuously denied by [F], caused a sensation in the media, and later when repeated in statements to the state attorney's office, which launched an investigation.

The article went on to say that the state attorney's office had issued a subpoena calling on the applicant to help in its investigation of the alleged car theft. A court ordered him to answer questions, but he refused, and was found in contempt of court and imprisoned. After his release about a month later he left the country. He arrived in Australia in September 1993, and since then has made a series of attempts to return to the law. In connection with applications for admission to the bar in several States he has used a reference from a registered migration lawyer.

In support of the continuance of the suppression order the applicant deposed that in August 1996 he was admitted to practice as a legal practitioner in New South Wales and has a practising certificate from the Law Society. In April 1997 he obtained employment with a firm of Sydney solicitors. He disclosed to the firm "the circumstances which underlie [his] decision never to return to the United States", and the fact that he is a party to the present proceedings which are the subject of a confidentiality order. He said he believes that if there is any adverse publicity in Sydney as a result of the lifting of the confidentiality order, it would be of such concern to his employers that he would be obliged to tender his resignation. He further believes that there would be no prospect of obtaining further employment in Sydney as a solicitor, and that his prospects of practising law in Australia as a sole practitioner would be seriously diminished.

The applicant's counsel advanced three reasons why the suppression order should not be lifted. The first was that the applicant's ability to pursue his professional career in this country would be destroyed if the order were not maintained. It was said that the lifting of the order would undermine the very purpose for which he sought refugee status. The second was that the Migration Act provides for confidentiality to be maintained in proceedings before the Tribunal. The Tribunal hears applications for review in private (s429), and must not publish any statement of its reasons for decision which might identify an applicant or any relative or other dependant of an applicant: s431(2). It was submitted that since proceedings in the Tribunal were still on foot, to lift the suppression order would undermine the intent of those confidentiality provisions. The third was that because the applicant intended to apply to the High Court for a suppression order as part of initiating proceedings there, to lift the present order would be to anticipate and frustrate that application.

The weight that these considerations might otherwise have is affected by the publicity the applicant's situation has already received. The embarrassing facts, the fear of disclosure of which prompted the initial application for suppression, have been in the public domain since May 1996. Had that publicity occurred before I was asked to make the suppression order, I would not have made it. The only material fact that has not been disclosed in the Age article is that the applicant has applied for refugee status. The applicant's counsel informed me that extensive and adverse coverage has been given to the applicant's circumstances and departure from the United States in newspapers circulating in Miami, and that this coverage is continuing. The fact that the applicant has applied for refugee status here is not likely to cause him additional harm in the United States. His position is unlike that of refugee applicants from totalitarian countries where the making of the application may itself have serious consequences for them upon their return. In any event, he says he intends never to return to the United States. The fact that the applicant has applied for refugee status will not cause anybody to think ill of him or persecute him in this country.

I propose therefore to rescind the suppression order. But in view of the fact that the applicant intends to commence proceedings in the High Court and at the same time seek a suppression order, I will stay my order for a reasonable period. According to their letter to the respondents' solicitors of 6 May 1997, the applicant's solicitors have been "preparing proceedings" since before that date. The applicant's counsel informed me that proceedings would be commenced "in the immediate future ... (in) the next couple of weeks at the outside". In those circumstances I think a stay of fourteen days is appropriate. I will grant liberty to apply in case the High Court grants a suppression order. I would not want any suppression order made by that Court to be subverted by the lifting of this Court's order.

I will grant leave to the applicant to discontinue the application upon the undertaking given by his counsel that he will not institute a fresh proceeding in this Court seeking relief of a like nature to that sought in the discontinued application.

The applicant submitted that I should make no order as to costs because the discontinuance had nothing to do with the merits of the case, but was of a "jurisdictional" nature, with both sides mistakenly believing that the pre Migration Reform Act grounds of review applied to the application. I am not persuaded that this is a sufficient ground to depart from the general rule that costs follow the event. The applicant instituted proceedings for the purpose of challenging the decision of the Tribunal member not to disqualify himself from hearing the matter on the ground of apprehended bias. In fact that is not an available ground of review, and recognising this, the applicant discontinues the case. The respondents did nothing to engender in the applicant's mind that he could obtain a review on that ground, though it is true that before Mahboob the second respondent held the same view as the applicant's advisers. The applicant should pay the respondents' costs of the application.

I certify that this and the preceding eight pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg

..................................................................

Associate

28 May 1997

Counsel for the Applicant: A H Swanwick

Solicitors for the Applicant: H S Wise Gershov & Co

Counsel for the Respondents: A L Cavanough QC

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 20 May 1997

Place of Hearing: Melbourne

Date of Judgment: 28 May 1997