ASQ15 v Minister for Immigration and Border Protection

[2015] FCA 626

FEDERAL COURT OF AUSTRALIA

ASQ15 v Minister for Immigration and Border Protection [2015] FCA 626

Citation:	ASQ15 v Minister for Immigration and Border Protection [2015] FCA 626
Parties:	ASQ15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number:	NSD 508 of 2015
Judge:	EDMONDS J
Date of judgment:	3 June 2015
Cases cited:	SZTYO v Minister for Immigration and Border Protection & Anor (2015) 144 ALD 348
Date of hearing:	3 June 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
The Applicant:	The applicant appeared in person by videolink
Non-legal Representative for the Applicant:	Ms L Pickersgill
Solicitor for the Respondent:	Ms D Watson of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 508 of 2015

BETWEEN:	ASQ15 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	3 JUNE 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed as incompetent.

2.No order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 508 of 2015

BETWEEN:	ASQ15 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	EDMONDS J
DATE:	23 JUNE 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 3 June 2015 I dismissed the  applicant’s application for various forms of prerogative and injunctive relief in relation to the respondent’s decision to relocate the applicant to another detention centre other than Villawood Immigration Detention Centre in Sydney (“relocation decision”).  These are my reasons for doing so.

2. The grounds of the application included:

   (1)The respondent failed to consult with its medical service provider, and take into consideration the applicant’s mental and physical health reports, that the applicant is not fit to travel, not fit to sudden changes, and the mental deterioration the relocation will cause the applicant.

   (2)The respondent failed to take into account the applicant’s young age in making its decision to relocate the applicant to another detention centre.

   (3)The respondent failed to take into consideration the applicant’s community, ethnic and religious connections established over a long period of time during the applicant’s residence in New South Wales, isolation from and loss of which will cause further mental deteriorations as a result of the respondent’s decision to relocate the applicant to another detention centre.

   (4)The applicant’s migration case will be delayed for up to a year as a result of this relocation to another detention centre.

   (5)Error(s) in the conduct of the decision of the respondent.

   (6)The respondent failed to formally inform the applicant of its reasons to make the decision to relocate the applicant to another detention centre.

   (7)The applicant wasn’t given a reasonable time to inform and notify family, friends, religious and ethnic support groups of which she is a member.

   (8)The applicant wasn’t given a reasonable time to prepare for the relocation.

3. The proceeding first came before the Court on 27 May 2015 for directions, by which time the applicant had been relocated to Wickham Point Alternative Place of Detention or APOD (“Wickham Point”) in Darwin.

4. I stood the proceeding over for one week so that I could satisfy myself that the applicant had adequate facilities available to her at Wickham Point, in particular, access to legal assistance in Darwin and access to mental and physical health services.

5. The proceeding came back before the Court on 3 June 2015.  On that occasion the respondent relied on an affidavit of Sally Pfeiffer, affirmed 1 June 2015, currently employed as the Director, Immigration Detention Network Capability within the Department of Immigration and Border Protection (“the Department”).  Ms Pfeiffer relevantly deposed:

   23.I am aware that when this matter came before the Court on 27 May 2015, the person who appeared on the applicant’s behalf, Ms Lynn Pickersgill, raised concerns about access by the applicant to legal assistance in Darwin and also raised concerns relating to the applicant’s mental health.

   24.As a result, I have caused inquiries to be made regarding the issue of available legal assistance in Darwin and say as follows. There are a number of organisations and individuals who provide pro-bono legal assistance to detainees at Wickham Point. One such organisation is the Darwin Asylum Seeker Support and Advocacy Network (DASSAN).  Northern Territory Legal Aid also provides assistance to detainees.  Contact details for both of these organisations are contained on posters at Wickham Point.  There have also been a number of barristers in Darwin who have provided pro-bono legal assistance.  There are also some Darwin firms of solicitors that have provided legal assistance to detainees.

   25.I am also aware that a senior case officer met with the applicant on 28 May 2015 at Wickham Point and gave her the contact number for DASSAN and Northern Territory Legal Aid contact details.  She was also told how she could find legal advisors to assist her, whether they be paid or pro-bono.  She was also provided with details about accessing mental health assistance and arrangements were made with her agreement for an assessment to occur in relation to her.

6. The difficulty with the applicant’s application is that it is incompetent.  This Court has no jurisdiction to grant final relief of the kind sought in relation to the respondent’s relocation decision and, insofar as other relief sought is “until the Court makes its judgment on this application” (paras 1 and 3 of the “Details of Relief sought”) and therefore interlocutory, such relief is only available where the Court’s jurisdiction is invoked by a substantive application: see SZTYO v Minister for Immigration and Border Protection and Anor (2015) 144 ALD 348, in relation to a similar application.

7. No other basis was put forward as invoking the jurisdiction of the Court.  I therefore dismissed the application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:        

Dated:        23 June 2015