AAG15 v Minister for Immigration and Border Protection

[2016] HCATrans 127

[2016] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2016

B e t w e e n -

AAG15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO WESTERN AUSTRALIA

ON TUESDAY, 31 MAY 2016, AT 12.00 PM

Copyright in the High Court of Australia

AAG15 appeared in person.

HIS HONOUR:   Mr AAG15?

AAG15:   Yes, your Honour.

HIS HONOUR:   You obviously appear for yourself for the purposes of this application.

AAG15:   Yes, I am, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Brown.

MR J.D. BROWN:   I appear for the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  Mr AAG15, I have had the advantage of reading your application and the material that you filed in support of it.  Is there anything that you would like to say in support of it, in addition to what you have already written?

AAG15:   Your Honour, I wish I had the opportunity to put in my submission.  I have a lot to say and I have a lot of documents to support my request.  If I could ask for an adjournment, if that is possible, otherwise I could carry on with the case.

HIS HONOUR:   Why do you seek an adjournment, Mr AAG15?

AAG15:   I never had the opportunity to put in my submission and summons, your Honour.

HIS HONOUR:   For what purpose do you seek to file a summons?

AAG15:   I was reliant on the facts that I got from the High Court, your Honour, which was dated on 3 May, pursuant to rule 25.03.2, serve a summons and the outline of submissions.

HIS HONOUR:   Yes, I see.  Well, you have not done that, but I have your application.  I have the materials so far as they concern the previous proceedings in which you have been involved.  I have the reasons for judgment of the Federal Circuit Court and Federal Court and the reasons for decision of the Tribunal, so I have a fair understanding of what is involved.

AAG15:   Yes, your Honour.

HIS HONOUR:   Perhaps you could take it from there?

AAG15:   Okay.  Just to make it clear that the judgment from the Federal Circuit Court and the Federal Court was an application for a protection visa.

HIS HONOUR:   Yes.

AAG15:   My case is more based on the cancellation of my spouse visa which was a different sitting altogether in the Federal Court by Judge Tracey.

HIS HONOUR:   Yes.

AAG15:   My…..intervention was basically just loud and clear to say that, you know, for the best interests of my children I be allowed to remain in Australia, and then it stated if it was impossible and I remain in Australia to finalise my WorkCover claim, to pay off my debts to the Australian Government, leave money for my children and I was willing to volunteer and return back to Fiji and then I was told that I do not meet the guidelines.  If I refer to the PAM3 that the honourable Minister’s solicitor has provided, in number 4 it says, cases that should be brought to my attention.

HIS HONOUR:   Yes.

AAG15:   And it says strong, compassionate circumstances and if not recognised would result in serious ongoing and irreversible harm and continuing hardship to an Australian citizen.  I have three children and two grandchildren born here in Australia and two children who are permanent residents.  It also states ‑ to my belief with my children it is commonly known it is nature, all of us or all of you know that the best interests of a child is for him or her to be brought up by both their parents.

And I am only here requesting as a father, I have the opportunity and I am making use of every opportunity I can.  In these last few years, learning from my mistakes, I am pretty sure I have proven – I have done double time in detention now since prison.  You know, I have got to present an opportunity to be with my children and if I am denied that then you are denying my children their rights, their benefits.

It also states under the PAM3 that compassionate circumstances regarding health, psychological state of a person.  The Department knows that I have – I was injured working in Australia, paying my taxes, supporting the community and I only committed just one big mistake in my life.  I have been judged, I have done my time, 15 months in prison, and up till today it is double what I have been in detention, and this prolonged detention – I…..my parole granted and I did all the rehabilitation, and then when I appealed in the Administrative Appeals Tribunal in January 2014 I was told that I did not do the right programs; it was not my fault.  It has been stated in the Tribunal papers and in the Federal Court papers and also in my – as stated by Judge Smallwood.

All that the Tribunal was referring to at that time was I was judged in court as low.  All my programs, rehabilitation, I was seen as low, but only because a psychologist 12 months – 15 months earlier, prior to the AAT decision in January 2014 ‑ only because a psychologist that I had paid for had said that I was a moderate risk.  That is why I believe that this character has haunted me for the last five, six years.  And if I recall from one of the Tribunal members, a Senior Member, Naida Isenberg, ruled that a prison term should not forever define a person’s character.

If I ask the defendant to provide any evidence they have to show of my bad character in the last five years, I have never had a single incident in prison, I have never had a single incident in detention, 30 months.  I have helped out in activities for the activity department in detention.  I was nominated by the board for the Detainees Consultative Committee, only five detainees, and whilst I was in prison there were only four prisoners that were given an opportunity to go through a job search industry scheme and I can read so much references from people that I have spent time with, eight months before court in 2012, 15 months in prison, 30 months in detention.

You know, I believe I have proven that at least my ministerial intervention letter could be presented to the Minister at least to have a look and see that I am doing this as a father for my children.  I was willing to pay off my debts because I have ties to an Australian business through my compensation, and that should be only finalised within the next six months.  But as soon as the intervention was rejected I was given four removal slips to be removed from Australia and if I had not lodged my papers on 29 April in the High Court I would have been removed that same weekend.

I mean, I do meet the guidelines, I have children here, I have a medical condition that has worsened because of my detention time.  I have evidence to say that, you know, that Fiji lacks surgery for my type of injury.  I had a disc removed from my spine; that is all in the documentation.  And what I was told by the honourable solicitor for the Minister, Mr David Brown, who is present today, that I can go back and have another operation in Fiji.  I mean, he is not a qualified neurosurgeon to make the call and I had my brother present who is a registered Victorian ‑ registered New South Wales physiotherapist and he defined to Mr Brown that, you know, he could not make that call because he was not qualified.

Whilst in detention I have been denied medical treatment and I have a meeting this afternoon with the Commonwealth Ombudsman who has been following up on all these missed appointments.  My last court sitting on February 8, they transport me here on 7 February.  I have my children and my grandchildren booked for visits on 9 February and what they did, as soon as after the court, they sat me in a room and said, you get back on the flight to Perth or you will be transferred to Christmas Island, denying the rights of my children and grandchildren.

I could have been standing in front of you today because I filed a habeas corpus on 23 May, just last Monday, and a fax came back from the Deputy Registrar, Denise, saying that I needed to present it hand delivered.  If I had got that fax on Tuesday, 24 May I would have been standing there in front of you to show you all these documents, but what happened was these guys here at the detention centre gave me the fax on Saturday morning and that is ‑ ‑ ‑

HIS HONOUR:   Okay, what are the documents that you want to show me?  What are the documents that you want to show me?

AAG15:   The documents that I wanted to present was all my medical documents.  You know, I have even – they wanted to remove me from Australia even though we have a case in the High Court next Tuesday, which is to do with data breach.  You may have read up on the publication of about 9,258 of us asylum seekers where all our details was exposed worldwide and that is a different case with my protection visa.

So all I was asking in this ministerial intervention was I remain with my children and it states in the PAM3 the best interests of my children and it also states that because of my health, you know, prolonged detention, my health has got worse.  I had three medical appointments booked in Melbourne when I went for court on February 8; there were two in March and one in April.  That was denied because they sent me back here.

I came back here to Perth.  They never took me to another interview, another appointment to a neurosurgeon.  Until I started following up and I had a conference with the Commonwealth Ombudsman I have had no other reply from Border Force because they do not know who to blame.  I got a letter from Serco handing it to Immigration, and Immigration, I got a letter from Border Force.

I do not know if you watched the program on I think it was Monday, 22 April about a detainee’s death in Manus Island.  Six or seven professionals spoke up about detainees being denied medical attention.  That was only offshore but the ombudsman is following up on my case because they want to just remove me from Australia when I have medical condition and I was even willing to pay my debts off to the Australian Government.

HIS HONOUR:   What is the medical condition, Mr AAG15?

AAG15:   I was injured at work, lifting glass, and I had a cervical discectomy whereby they removed a disc.

HIS HONOUR:   Yes, I see.  Thank you.

AAG15:   Yes.  They removed a disc but I believe that I require further surgery because the whole of my right side is still numb.  When I first got into detention I requested for a single room but I never heard anything else about it till 30 months till I got here to Yongah Hill I have a single room in the last month ‑ climbing up and down a double bunk after my surgery.  You know, the Department knew that I did all programs in prison and I was willing to go and do more programs on parole but I was denied that opportunity, and here they are still saying that because of my bad character I do not have the right to present my ministerial intervention to the Minister.

HIS HONOUR:   Yes.  I might hear from Mr Brown just now.  Take a seat for a moment please.

AAG15:   Thank you, your Honour.

HIS HONOUR:   Mr Brown, can I confirm that the plaintiff is one of these data breach plaintiffs also?

MR BROWN:   I understand that he is, yes.

HIS HONOUR:   And that means he is going to be staying here for some little time anyway, does it?

MR BROWN:   Yes, I think that depends on how the proceeding next week goes, your Honour.

HIS HONOUR:   Of course.  But at least until then he will be here?

MR BROWN:   I understand so.

HIS HONOUR:   I do not have a copy of Justice Jessup’s reasons for judgment or Judge McGuire’s.  Could you provide me with those?

MR BROWN:   We have yet to provide you with that, your Honour, but we can.

HIS HONOUR:   Yes, I see.  I have not had before now the benefit of any identification of the real nature of the complaint, although I made some assumptions as to what it would be.  What is not apparent to me, although I assume it has been dealt with, is whether the contention made barely in the application and now fleshed out a little bit that the delegate failed to have regard or sufficient regard to compassionate circumstances and health circumstances was taken into account.  I assume that will be apparent from the reasons of the Tribunal and from the reasons of the Federal Circuit Court and Federal Court but I think I should see them before I proceed much further.

MR BROWN:   I understand that, your Honour.  Certainly in the Administrative Appeals Tribunal the plaintiff did as part of his evidence before that Tribunal advert to the back injury that he has referred the Court to today and that was something that was considered by the Tribunal member in reaching his decision.  That in turn was then the subject of the review by Judge McGuire and thereafter Justice Tracey.

HIS HONOUR:   Very well.

MR BROWN:   So we can certainly provide your Honour with those documents and I apologise that we have not done so before.

HIS HONOUR:   No, not at all.

MR BROWN:   We saw this as really focused much more on the ministerial intervention question.

HIS HONOUR:   Yes.  But it is that to which these inquiries are directed for the reason that the Minister’s delegate made a determination under the PAM not to refer the intervention question or request to the Minister personally.

MR BROWN:   Well, it was not a delegate of the Minister, your Honour, it was a departmental ‑ ‑ ‑

HIS HONOUR:   Departmental officer.

MR BROWN:   Departmental officer.  The departmental officer followed the ministerial guidelines that the Minister had issued.

HIS HONOUR:   No, I understand that.

MR BROWN:   Yes, thank you.

HIS HONOUR:   But what he said apparently is that that officer did not take into account relevant considerations, namely, the compassionate circumstances and health difficulties of the plaintiff.

MR BROWN:   Except that the guidelines provide, your Honour, that under certain circumstances a certain class of requests that the officer is required not to refer that to the Minister but to simply finalise the matter, which is what happened on this occasion.  One of those sets of circumstances is where somebody has had a visa cancelled for character reasons, which is what occurred in this case, which is what found the plaintiff in the AAT seeking review of that decision in the first place.

HIS HONOUR:   Thank you for that.  I sort of had that thrust of it, it is just that I am a little bit concerned about the detail.  Although it may be inconvenient to both of you what I am disposed to do is ask you, Mr Brown, within the relatively near future to provide me with copies of the Administrative Appeals Tribunal determination, Judge McGuire’s reasons for judgment and Justice Jessup’s reasons for judgment and to put the further hearing of this over until later in the week which would still be within the time that the gentleman is going to be here anyway for the other matter so as to cause as little inconvenience as possible.

MR BROWN:   Thank you, your Honour.

HIS HONOUR:   I have another matter coming back on Friday, also an immigration matter, the consequence of not having a Tamil interpreter here today.  That is fixed for 9.30 next Friday.  I wonder would it not be too inconvenient if we were to put this one on, say, at 11 o’clock on Friday morning?

MR BROWN:   That is nine o’clock in Perth.

HIS HONOUR:   Thank you.  Yes, it is 11 here.  Let us do this at 9.30.  Would that be satisfactory to you?  Let us make it 11.30 our time.

MR BROWN:   9.30 Perth time, yes, your Honour.

HIS HONOUR:   Yes.

MR BROWN:   Thank you.

HIS HONOUR:   Would you be able to give me those documents by the end of the day?

MR BROWN:   I will give them by two o’clock, your Honour.

HIS HONOUR:   Thank you very much, Mr Brown.  Mr AAG15, what I have asked Mr Brown to do is to provide me with some documents to just let me have a look at what has been said previously about the points that you have made this morning and in order to enable me to have some time to

do that I am going to adjourn the further hearing of this matter until next Friday morning at nine o’clock Perth time.

AAG15:   Okay.  That will be on the – the date would be ‑ ‑ ‑

HIS HONOUR:   Friday, 3 June 2016 at nine o’clock Western Standard Time.

AAG15:   Friday, 3 June, 9.30 Perth time.

HIS HONOUR:   Nine o’clock.

AAG15:   Okay.  Yes, your Honour.

HIS HONOUR:   I will say it again, 0900, nine o’clock.

AAG15:   Nine o’clock.

MR BROWN:   That is 11 o’clock our time, your Honour.

AAG15:   Okay.

HIS HONOUR:   That is 11 o’clock our time.  Thank you, Mr Brown.  Presumably, Mr AAG15, I shall see you then again by video link.

AAG15:   Yes, your Honour.

MR BROWN:   Your Honour, if I may apologise, I will be in Darwin in another matter at that time but we will certainly have somebody here to represent the Minister’s position.

HIS HONOUR:   That would be of assistance; thank you, Mr Brown.  I will adjourn this matter now until 11 o’clock Eastern Standard Time next Friday, 3 June.

AT 12.26 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 3 JUNE 2016