ATR15 v Minister for Immigration

[2016] FCCA 1954

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATR15 v MINISTER FOR IMMIGRATION [2016] FCCA 1954

Catchwords:
MIGRATION – Appellant in immigration detention – application for an order under s.256 of the Migration Act 1958 (Cth) to provide reasonable facilities for the obtaining of legal advice – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999

Migration Act 1958 (Cth), ss.5(1), 13, 256, 360, 366, 367(2), 46A(2),

Migration Amendment (Unauthorized Maritime Arrival) Regulation 2013 (Cth)

Cases cited:

ATR15 v The Minister for Immigration & Anor [2016] FCCA 1089

NAFC v Minister for Immigration and Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99

Applicant: ATR15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 705 of 2016

Judgment of: Judge McNab

Hearing date: 21 July 2016

Date of Last Submission: 21 July 2016

Delivered at: Melbourne

Delivered on: 8 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Latif

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Herzfeld

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application for an order to show cause be dismissed.

2. The costs of the application be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 705 of 2016

ATR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an amended application in a case, the applicant seeks orders that:

   a)The respondent detain the applicant at the Maribyrnong Immigration Detention Centre to facilitate his personal attendance at:

   i)his appointment with Dr Nina Zimmerman on 22 July 2016;

   ii)

   the hearing of the application for review by the Administrative Appeals Tribunal of the respondent’s decision to cancel his bridging visa made on

   
   

   10 October 2014;

   iii)conferences with his legal adviser in the 7 days prior to his scheduled Tribunal hearing or as many days prior as the notice of hearing from the Tribunal permits.

2. The grounds on which that relief is sought is found in the amended application that provides at [3] that:

   By refusing the applicant to attend a specialist medical appointment and appear at his forthcoming Tribunal hearing in person the Minister, whether by himself or his agents or contractors, is in continuing breach of his statutory duty under

   
   

   s 256 of the Act.

   Particulars

   Since at least 10 June 2016, the respondent has been aware of the applicant’s forthcoming Tribunal hearing and his wish to obtain legal advice, attend the hearing in person and obtain expert evidence.

   Since at least 10 June 2016, the respondent has been aware of the difficulties the applicant has encountered making use of the facilities available at the Christmas Island Detention Centre for the purpose of obtaining legal advice and taking legal proceedings in relation to his immigration detention insofar as those facilities do not afford him all reasonable facilities for obtaining timely and detailed legal advice reliably or at all. Nor have those facilities enabled him to attend legal proceedings in relation to his immigration detention in the past, including at the hearing of his judicial review application in the Federal Circuit Court on 29 March 2016.

   The applicant otherwise relies upon the affidavits of

   
   

   Ms Sarah Fisher dated 14 June 2016 and 6 July 2016.

3. In support of his application, the applicant relies upon:

   a)

   his amended application for an order to show cause dated

   
   

   11 July 2016;

   b)

   the affidavits of Ms Sarah Fisher dated 12 April 2016,

   
   

   14 June 2016, 6 July 2016 and 19 July 2016.

4. The respondent relies on an affidavit of Latha Reardon affirmed

   
   

   16 June 2016 and a further affidavit of Ms Reardon affirmed

   
   

   13 July 2016. The affidavit of Ms Reardon of 16 June 2016 also made reference to an affidavit of Deirdre Marie Russack affirmed

   
   

   10 May 2016 which set out a detailed account of the background of the applicant’s circumstances.

5. This is an application for a final order and is not an application for an interlocutory injunction. Those parts of the amended application that seek an order of mandamus will be dealt with in a separate judgment to be delivered shortly.

Background

1. The applicant is a noncitizen born in Myanmar (Burma). He arrived at Christmas Island on 12 April 2012 as an “offshore entry person” within the meaning of s. 5(1) of the Migration Act1958 (Cth) (“The Act”) as it then stood.

2. On 22 August 2012, the predecessor of the Minister exercised power under s.46A(2) of the Act to permit the applicant to lodge an application for a Protection Visa which he did on the same day. That application remains undetermined and the actions of the Minister in relation to the processing of that application are the subject of an application for a writ of Mandamus in this proceeding.

3. On 13 September 2012, the applicant was granted a bridging Visa in association with the outstanding Protection Visa application. He therefore became a lawful noncitizen within the meaning of s.13 of the Act and was released from detention between August 2013 and December 2013. There were enquiries and checks made by the Minister and on 5 August 2013 the applicant was referred to ASIO for a security check and a clear result was recorded on 18 October 2013.

4. On 14 December 2013 the Migration Amendment (Unauthorized Maritime Arrival) Regulation 2013 (Cth) (“UMA Regulation”) was introduced. It introduced as a criterion for the grant of a Protection Visa that the applicant not be an unauthorised maritime arrival. As the applicant’s visa application had not been finally determined at the time that the UMA regulation was introduced, the transitional provisions meant that this criterion applied to his Protection Visa application. The applicant was referred for a character check for the purposes of public interest criterion under the Act and on 6 February 2014 an Australian Federal police clearance was received and a clear result was recorded.

5. On 6 February 2014, a Delegate of the Minister refused to grant the applicant a Protection Visa on the basis that he was an unauthorised maritime arrival. The applicant sought review of this decision on 20 February 2014 in the Refugee Review Tribunal.

6. On 27 March 2014 the UMA regulation was disallowed by the Senate which had the effect of repealing the criterion relating to an applicant being an unauthorised maritime arrival from the date of disallowance. On 31 July 2014, the Refugee Review Tribunal remitted the Delegate’s decision to the Minister for reconsideration.

7. It is alleged that on 7 October 2014, [1] about 10 weeks after the Refugee Review Tribunal remittal, the applicant attended the offices of the Adult Migration Education Service (“AMES”) in Dandenong for the fortnightly appointment with his case manager. In the course of that appointment it is reported by the AMES officer that the applicant expressed frustration about how long it was taking to finalise his Protection Visa application and is said to have stated that he was suffering financial hardship. Additionally, the applicant reportedly said in English:

   [1] Affidavit of Deidre Marie Russack affirmed on 10 May 2016 at [22]

   I hate Australians and I want to join ISIS the Islamic State group and kill Australians”;

   that if he sees Tony Abbott somewhere he will kill him; and

   he did not care that these statements were very serious, as nothing was important to him anymore.

8. On 9 October 2014, the Department referred the allegations regarding those statements to ASIO.

9. It is alleged at [24] of Ms Russack’s affidavit of 10 May 2016, that on 10 October 2014, the applicant was issued with a Notice of Intention to Consider Cancellation (“NOICC”) of his bridging Visa.

10. It is also alleged that during an interview with a Delegate of the Minister on the same day, the applicant was reported by the Delegate to have admitted, by an interpreter, to having made threats against the Australian community, but only out of frustration with his Protection Visa application process and he claimed that he was not being serious. He denied making threats against the Prime Minister. After the interpreter left the interview, the applicant speaking in English, withdrew his previous statement admitting to having made threats against Australians, claiming that the interpreter had failed to interpret what he had said properly.

11. On 10 October 2014, the Delegate of the Minister decided to cancel the applicant’s bridging Visa and he was then taken into immigration detention. He has remained in detention since that time.

Applications before the Tribunal and this Court

1. The applicant applied for a review of the cancellation decision made on 14 October 2014. The Tribunal considered his application and affirmed the Department’s decision to cancel his bridging Visa.

2. The applicant applied to this court for judicial review and was successful in having the Tribunal decision quashed and remitted for redetermination according to law. This decision was on the basis that the second respondent had erred in refusing the applicant’s request for an adjournment without considering its discretion under s.367(2) of the Act and this amounted to legal unreasonableness. The Federal Circuit Court orders were made on 27 February 2015.

3. The applicant was invited to a second Tribunal hearing on

   
   

   5 March 2015 and the hearing was conducted on 10 March 2015. As was noted at [11] of ATR15 v The Minister for Immigration & Anor [2016] FCCA 1089 per Harland J, the applicant had been transferred to immigration detention in Western Australia and the invitation was issued without taking into account the public holidays and the different time zone between Western Australia and Victoria. The Tribunal affirmed the Delegate’s decision and again the applicant applied to the Federal Circuit Court for judicial review. The applicant was successful and orders were made on 1 July 2015 quashing the Tribunal’s decision and remitting the matter for redetermination according to law. It was held that the decision breached the relevant migration regulations by not providing sufficient notice for the hearing.

4. The applicant was invited to attend a third Tribunal hearing on

   
   

   9 July 2015. He attended the hearing on 18 and 19 August 2015 and was assisted by a migration agent and a Burmese interpreter.

5. On 24 August 2015, the Tribunal affirmed the Delegate’s decision and the applicant then sought review of that decision in this court, which application was the subject of the decision referred to above of ATR15 v The Minister for Immigration & Anor [2016] FCCA 1089. By that decision the court quashed the decision of the Tribunal on the grounds that the Tribunal had failed to have regard to the guidelines under the Procedures Advice Manual (PAM3) and referred the matter back to the Tribunal for hearing. The rehearing is listed before the Tribunal and the Tribunal is holding off from hearing the matter pending the result of this application.

6. One of the issues before the Tribunal and which was considered by the court in the decision of 20 May 2016, is the question of whether the second respondent has misconstrued the term “good order” as it appears in s.116(1)(b) of the Act. This arises in relation to the allegations that the applicant had made threats. The applicant wishes to place before the Tribunal evidence of a psychiatrist,

   
   

   Dr Nina Zimmerman. Dr Zimmerman provided the solicitor for the applicant a statement of her qualifications and experience dated 20 July 2016, which was tendered into evidence. In summary, Dr Zimmerman is a consulting forensic psychiatrist who has been a fellow of the

   
   

   Royal Australian & New Zealand College of Psychiatry since 2002 and who obtained a Master’s degree in medicine (psychological) from the University Melbourne in 2004. She states that she has worked in a consultant capacity of Forensicare in acute and rehabilitation settings in prisons and in the Thomas Embling Hospital, working with male and female patients between 2002 and 2014. In her letter she states:

   The skill set of a forensic psychiatrist includes regular risk assessments on patients who have histories of mental illness and/or histories of violence against themselves in the community. This is particularly crucial at the time when patients or prisoners are being released into the community. Competence and experience in assessment of risk is one thing that differentiates a forensic psychiatrist from a mainstream practitioner.

7. Dr Zimmerman states further:

   As a forensic psychiatrist I have worked with a population who frequently had significant histories of trauma and who are existing in detention environments. In this sense, my patients share many of the characteristics of those in immigration detention.

8. The applicant wishes to address a deficiency that had previously been identified by the Tribunal that the applicant did not have any expert medical evidence about the applicant’s mental health which might explain his conduct and address whether he is a risk to the “good order” of the Australian community. The applicant seeks to put before the Tribunal psychiatric evidence in relation to the applicant’s mental health in order to address these matters.

9. The respondent, by its written submissions dated 20 July 2016, notes at [26] that it may be accepted that the applicant wishes to place evidence before the Tribunal concerning the applicant’s psychiatric condition. The respondent also submits that all reasonable facilities are made available to the applicant to be assessed by a psychiatrist in order to obtain legal advice and/or take part in the Tribunal proceedings. It said that those reasonable facilities include access to visiting specialists (including psychiatrists) and facilitating consultations by Telehealth

   
   

   (a secure video teleconferencing facility between a patient and a healthcare provider). It submitted further that reasonable facilities do not require that the applicant have the ability to be examined, in person by the psychiatrist of his choice. The respondent also submits that there is no evidence to explain why Dr Zimmerman is the only appropriately qualified and available expert the applicant can retain, why she is not in a position to travel Christmas Island or why she is unprepared to assess the applicant over video link.

The applicant’s history of movement between Detention Centres

1. On 18 July 2015, the applicant was transferred to the MIDC “for the purpose of participating in the Tribunal hearing.”

2. The affidavit of Ms Reardon of 16 June 2016 describes the applicant’s placement history.[2] On 10 October 2014 the applicant was detained at the Maribyrnong Immigration Detention Centre and was rated by the detention service provider’s security risk assessment as medium risk. On 16 July 2014 the applicant was transferred to the Yonga Hill Immigration Detention Centre in Western Australia.

   [2] Affidavit of Latha Reardon affirmed on 16 June 2016 at [12]-[17].

3. On 18 July 2015 the applicant was transferred to Maribyrnong for the purposes of participating in the Tribunal hearing.

4. On 28 August 2015 the applicant was transferred back to Yonga hill. At the time of the transfer SRAT rated the applicant as “high-risk”. The increased risk rating was reflective of the applicant having been involved in seven incidents at Maribyrnong which included aggressive and non-compliant behaviour. The basis of the high risk rating was a challenge of the cross examination of Ms Reardon but it was accepted by counsel of the applicant that he had been so assessed as high-risk without conceding the basis that there was a proper basis for that assessment.

5. On 9 October 2015 the applicant was transferred to Christmas Island.

6. On 21 May 2016 the applicant was transferred to Yonga Hill for the purpose of attending a medical appointment. On 9 June 2016, the applicant was transferred to Christmas Island following his medical appointment.

7. Ms Reardon gave evidence that there are only four detention facilities designated to accommodate high-risk detainees in the immigration detention network and they include Maribyrnong and Christmas Island. Evidence was given by Ms Reardon that the Maribyrnong facility is over capacity at the present time and the Christmas Island facility is under capacity.

8. The applicant accepted that the respondent is dealing with the applicant on the basis that he is presently assessed as high-risk and that as such he must be accommodated in accordance with guidelines and policy in a detention centre designated for high risk detainees.[3]

   [3] Transcript of Proceedings on page 10 at [35]

9. The applicant does not accept that his assessment as a “high-risk” detainee is correct.

Jurisdiction to make the orders sought

1. It is it is accepted by the parties that I have power to make the orders sought pursuant to s.15 of the Federal Circuit Court of Australia Act 1999 and of the Act. This accords with the finding of Beaumont J. in NAFC v Minister for Immigration and Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99 (“NAFC”) at [24].

2. Section 256 of the Act provides:

   Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

3. The Minister, by its submission accepted that compliance with s.256 of the Act is a jurisdictional requirement for a valid decision as to the place of a person’s detention. At [47] – [49] of NAFC, Beaumont J held:

   47. The key element in the provisions of s 256, in my opinion, is the concept of “reasonable facilities”. It appears that these words were intended to have their ordinary meaning. The primary dictionary definition of “facility” is “something that makes possible the easier performance of any action”.

   48. The appropriate dictionary definition of “reasonable” appears to be “not excessive”, as in “reasonable terms” (Macquarie Dictionary 3rd ed); or “within the limits of reason; not greatly more or less than might be thought likely or appropriate” (The New Shorter Oxford English Dictionary).  As Gaudron J observed in an analogous context (Slivak v Lurgi (Australia) Pty Ltd (2001) 177 ALR 585 (at [53])) these are ordinary words bearing their ordinary meaning, and the question “requires no more than a making of a value judgment in the light of all the facts”.

   49. Thus, so far as concerns the application of s 256 here, the real question, as the Minister has submitted is essentially one of fact, an issue to be resolved primarily upon the evidence adduced for the Minister from Ms McPaul, as to the facilities proposed to be made available, to which reference will be made shortly.

4. In NAFC the court declined to make a finding that a breach of s.256 had occurred. His Honour, Beaumont J, referred to submissions that the case had some complexity in the issues as a result of the applicant’s challenge to the cancellation of his Visa. His Honour held that in his view, no breach of s.256 had yet occurred on the basis of the evidence before him which he accepted as evidence of an intention to provide “reasonable facilities” within s.256 of the Act. His Honour ordered that the Minister file and serve an undertaking to the court that reasonable facilities within the meaning of s.256 of the Act would be provided for the applicant at Woomera and otherwise dismissed the application.

5. In my view, the key issue to determining this application is whether on the evidence before the court the applicant will be afforded all reasonable facilities for making a statutory declaration for the purpose of the Act or for obtaining legal advice and for taking legal proceedings in relation to his migration detention.

Evidence in Relation to Facilities on Christmas Island

1. Ms Fisher, the applicant’s solicitor, has by her affidavit sworn 6 July 2016, sought to establish by her evidence the difficulties in adequately representing the applicant whilst using detention facilities at Christmas Island. In summary, her evidence is:

   a)she has 15 years’ experience of working with people in  migration detention;[4]

   [4] Affidavit of Sarah Louise Fisher affirmed on 6 July 2016 at  [7]

   b)she had thought that because the respondent had previously facilitated the applicant’s transfer to Maribyrnong for his appearance before the AAT in August 2015, she understood this would occur for the hearing before the AAT tentatively scheduled for 30 June 2016;[5]

   [5] Ibid, [11]

   c)on the basis of this understanding, on 23 June 2016 she wrote to the respondent in order to facilitate a temporary transfer of the applicant to Maribyrnong for the purpose of attending the hearing before the AAT and to attend a specialist medical appointment (with Dr Zimmerman) for the purpose of the hearing. On 24 June 2016 Miss Fisher wrote again to press for that to occur;

   d)on 27 June 2016, she received advice from the respondent that they were “not minded” to make the applicant available for a hearing at the AAT without a court order. On 29 June 2016, Ms Fisher wrote to the respondent in relation to placing the applicant in detention at Maribyrnong for the purposes of attending the AAT hearing;

   e)that the applicant was distressed and agitated because he had been housed in seclusion since 25 June 2016; that his telephone access was limited to 10 minutes each day and that as a detainee in exclusion he was escorted to one of the public telephones and that the call time was monitored and that this experience was one that the applicant had experienced before when he had been housed in seclusion in late October 2015/early November 2015;

   f)that the applicant had been transferred between compounds within the Christmas Island detention centre for his own safety in early 2015 as a result of assaults by other inmates in the centre;

   g)that the applicant had limited access to computer facilities; that she rarely receives emails from the applicant and that she noted that he had limited education and that English was not his first language;

   h)that during his most recent period of seclusion at Christmas Island it had been extremely difficult to communicate to him in detail with regards to the developments in the various cases being run with the assistance of Victoria Legal Aid because of his “profoundly disturbed state”; that his agitation was directed at Ms Fisher and that he was unable to engage or concentrate in relation to the information which Ms Fisher was attempting to convey to him;

   i)Communications were exacerbated by the time difference between Christmas Island and Australia, it being three hours behind Australian Eastern Standard Time;[6]

   j)That she had arranged the applicant to undergo a forensic assessment by Dr Zimmerman and that had been arranged to take place on 22 July for a two hour appointment;

   k)Dr Zimmerman has agreed to give expert evidence on the applicant’s behalf and that she is the only appropriately qualified and available viable expert that she is able to retain;

   l)Dr Zimmerman is not in a position to travel to Christmas Island[7] and Dr Zimmerman is not prepared to access the applicant using video conferencing.[8]

   [6] Affidavit of Sarah Louise Fisher affirmed on 6 July 2016 at [18]

   [7] Affidavit of Sarah Louise Fisher affirmed on 6 July 2016 at  [19]

   [8] Affidavit of Sarah Louise Fisher affirmed on 6 July 2016 at  [23a]

2. Ms Fisher gave evidence at [21] to [23] of her 6 July 2016 affidavit to the effect that: although infrastructure exists for external communication at Christmas Island, that it does not follow that the infrastructure is operating or accessible to detainees. Ms Fisher raised issues in relation to delays of being able to speak to a client and gave evidence that on one occasion she had to wait for three days in order to arrange a conference by telephone. She also gave evidence that when the applicant is held in seclusion that she is unable to contact the applicant by telephone or email.

3. She gave evidence at [21(b)] that she had difficulty sending and receiving documents by fax to clients at Christmas Island and noted that she found it “extremely difficult to have immediate or timely communication with a client held at Christmas Island”. She also gave evidence that on numerous occasions she has been unable to locate clients, including the applicant in situations where a transfer between detention centres had taken place without notice.

4. Ms Fisher stated at [23] of her Affidavit:

   I have direct knowledge of the matters about which I need to give the applicant advice and that matters about which I require further instructions, in the lead up to the Merit review application before the AAT. In my opinion, if the applicant cannot attend his AAT hearing in person, or was not available in person in the days leading up to that hearing to attend the medical appointment that I am arranging for him and obtain legal advice and give instructions, the prejudice to his AAT case will be substantial.

   
   

   I refer to and repeat my earlier evidence paragraph 15 above, the evidence for consideration the pending AAT hearing are the same as those that arose in August 2015 when the applicant attended his Merit review hearing in person. Credit was central to the last occasion and is likely to be central again.

5. Ms Fisher gave also gave evidence of the difficulty of conducting a hearing via video link where she would be unlikely to have an opportunity to confer with her client by video conference prior to the hearing and that where Dr Zimmermann was not prepared to access the applicant using video conferencing. Ms Fisher also gave quite detailed evidence in relation to difficulties she perceived in conducting a hearing with the use of an interpreter whilst the proceeding is heard by video link. She also identified that the accredited interpreters in Burmese are accredited only to a standard of National Accreditation Authority for Translators and Interpreters (NAATI) at Level II or less which is lower than the standard used generally by the AAT which tends to use interpreters at Level III.

6. Ms Fisher, in relation to her own difficulties in giving legal advice, stated that:

   a)she has been unable to spend sufficient time with the applicant to attain proper instructions or advice which she believes he requires for a fair opportunity to run his case in the AAT;

   b)the attempt to run the action whilst the applicant has been in Christmas Island has been “stressful and burdensome” upon Ms Fisher which has limited her ability to provide the same level of quantity or quality of advocacy and advice as would be the case if the applicant was to be detained at Maribyrnong;

   c)the AAT hearing is a merits review hearing which involves questions of fact and factual matters upon which a medical opinion is relevant. She states “though the applicant has appeared before Tribunals before, with and without legal assistance, this is an area that I must focus on in order to meet my obligations to the applicant as his legal representative.”[9]

   [9] Affidavit of Sarah Louise Fisher affirmed on 6 July 2016 at [23(e)].

7. The applicant, by evidence given by Ms Fisher in an affidavit sworn

   
   

   18 July 2016, sought to challenge the finding or assessment of the applicant being “high-risk”. Effectively the evidence was to the effect that in fact the applicant had been that the victim of incidents involving assaults upon him and whilst the documents referred to incident reports involving the applicant, many of them involved him as a victim rather than the instigator of any particular incident.

8. Ms Fisher also gave evidence that in relation to briefing of the department’s psychiatric services available on Christmas Island, she commented at [13]:“without seeking to waive legal professional privilege, I note the purpose of the appointment with Dr Zimmerman is to obtain the opinion of an independent expert, who is able to undertake a specialised assessment for the purpose of the applicant’s application for merit review of the decision to challenge his bridging Visa. The psychiatrist, Dr Nina Zimmerman, has been briefed precisely because of her experience and expertise in forensic risk assessments. She has confirmed that she is not able to travel to Christmas Island to undertake assessment and that the assessment requires an “in person” consultation.” That advice from Dr Zimmerman was confirmed in an email from Dr Zimmerman to Sarah Fisher dated 14 July 2016.

9. Ms Reardon gave evidence on behalf of the respondent that the facilities at Christmas Island for obtaining legal advice or for taking legal proceedings were as follows:

   a)There are telephones available to detainees 24 hours a day, seven days a week in an open reception area of each compound;

   b)There are telephones in interview rooms, for private phone calls between detainees and legal advisers, which can be accessed upon making a request of the security provider, SERCO;

   c)24 hours a day, seven days a week, legal advisers can  telephone or email Christmas Island and request a telephone call with their client, after which a mutually agreeable time is arranged through SERCO;[10]

   d)local telephone calls are free of charge and, while interstate and international calls require a telephone card (which can be used by calling a free telephone number). Arrangements can be made for such calls to legal advisers at no cost if necessary; [11]

   e)there is at least one fax machine in each compound;

   f)videoconferencing facilities within the interview area are available for use by detainees, legal advisers, courts and Tribunals at no cost upon request through SERCO.

   g)there are four computers with Internet facilities including emails which are available for use by detainees 24 hours per day except during mealtimes. There was evidence in the Reardon 16 June Affidavit that detainees are guaranteed one hour of use per day and can book additional time;

   h)there are mail deliveries to Christmas Island although it is noted that ordinary post can take up to 3 months to reach Christmas Island and express post which is delivered by plane is delivered once every two weeks;

   i)a significant proportion of current detainees in Christmas Island are involved in merits or judicial review proceedings.

   j)It was submitted by the respondent that the restrictions on the applicant’s access to facilities as a result of his being housed in seclusion from 25 June 2016 and 2 July 2016 no longer applied. There was a conflict in evidence between the applicant and the respondent in relation to the level of restrictions as a result of the applicant being held in seclusion.[12] There is no evidence that the applicant is currently in seclusion.

   [10] Affidavit of Latha Reardon affirmed on 16 June 2016 at [31.1]

   [11] Affidavit of Latha Reardon affirmed on 16 June 2016 at [31.2];

   [12] see evidence in Affidavit of Latha Reardon affirmed on 16 June 2016 at [3] – [5.4] and Affidavit of Sarah Fisher affirmed 6 July 2016 at [15] and [18]

10. In relation to access to psychiatric services Ms Reardon gave evidence in her 13 July 2016 affidavit that:

    a)the department’s contract detention health service provider, International Health and Medical Services provides services to people in Christmas Island including:

    i)primary health care services;

    ii)a medical clinic staffed by qualified health professionals (including general practitioners, nurses and psychologists) and visiting specialists (including dentists and psychiatrists; and

    iii)co-ordinating and organising medical transfers to the Australian mainland’s, or facilitating consultations via health, where it clinically required. Telehealth is a secure video teleconferencing facility between a patient and a healthcare provider.[13]

    [13] Affidavit of Latha Reardon affirmed on 13 July 2016 at [6]

11. She gave evidence that:

    IHMS will clinically assessed detainees needs and refer them, where appropriate, to specialists, including psychiatrists. At the Christmas Island IDC, detainees may receive psychiatric services from an IHMS psychiatrist, either in person at the IDC or via telehealth; or through referral to the mainland. I have been informed that the applicant has received and will continue to receive psychiatric service in person at the IDC.

12. Exhibited to her affidavit was an IHMS mental health summary which, in relation to the applicant’s mental health, provided that:

    the applicant has intermittently presented to the IHMS mental health team with frustration and stress due to his situation; he has attended individual and group therapy counselling sessions as required; in June 2016 he was reviewed by an IHMS psychiatrist who noted that the detainee is likely depressed in the context of been detained for two years. Recommendations were made for the applicant to commence taking antidepressant medications which continue to date. This mental health issue continues to be monitored and treated as clinically indicated.

13. The affidavit of 13 July 2016 of Ms Reardon also noted that to her knowledge, neither the applicant nor his legal advisers have made a request for an independent, properly qualified psychiatrist to visit him at Christmas Island. Further evidence was also given that to her knowledge, neither the applicant nor his legal advisers have made a request for the applicant to receive psychiatric services via Telehealth or through referral to the mainland.

Consideration

1. At the heart of the applicant’s submissions is the view that the reference to all reasonable facilities in s.256 includes a reference to location and that “all reasonable facilities for making a statutory declaration… or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention “includes the physical location of where the person in any immigration detention is held””.

2. Counsel for the applicant, Ms Latif, submitted that the applicant accepted that the infrastructure identified by Ms Reardon was available at Christmas Island but submitted that the constraints on the use of that infrastructure at that location meant that the applicant was unable to access all reasonable facilities for the purpose of obtaining legal advice. It was submitted that in order to determine whether reasonable facilities had been provided one had to focus particularly on the relevance to circumstances of the applicant these being that:

   a)He has been embroiled in proceedings in relation to his status over a long period and is understandably upset;

   b)he has been in long-term detention;

   c)that he has spent a considerable period of time at the Christmas Island detention centre;

   d)

   he frequently presents as distressed in his discussions with

   
   

   Ms Fisher;

   e)that he is preoccupied with his dissatisfaction with detention;

   f)what contact Ms Fisher is able to have with him whilst he is in Christmas Island is often spent talking through these issues rather than with him providing instructions and receiving advice.

3. It was said that this was to be contrasted with Ms Fisher’s evidence about the experience that she had when she had a face-to-face conference with him in Maribyrnong in preparation for an earlier Tribunal hearing.[14] It was submitted that the evidence of Ms Fisher established that when she was able to meet with the applicant face-to-face he was properly able to describe what had occurred in the lead up to the visa cancellation and she was able to obtain proper instructions in relation to that. The converse situation pertains in relation to her efforts to obtain instructions whilst he is at Christmas Island.

   [14] Affidavit of Sarah Fisher affirmed  18 July 2016 at [7]

4. She also made submissions that the evidence Ms Fisher showed that the applicant is unhappy about the circumstances of his detention and that he is distressed to the point where he just puts the phone down in the course of conversation with Ms Fisher.

5. The effect of the submission is that notwithstanding the existence facilities on Christmas Island, given the applicant’s condition,

   
   

   Ms Fisher is not able to properly discharge her important role as a legal adviser in order to prepare for the forthcoming hearing whilst he is at Christmas Island. It was stated in submissions to the court: “what we emphasise is that direct evidence that she gives about the quality of her interactions with the applicant when relying on the infrastructure that we agree is available at Christmas Island.”[15]

   [15] Transcript of Proceedings on page 34 at [20]

6. Counsel for the respondent Mr Herzfeld summarised the applicant’s submissions in this way: “the only way in which a migration decision about placement can be made which complies with section 256 is to remove me from Christmas Island and to place me at Maribyrnong. The only way that reasonable facilities for obtaining legal advice will take legal proceedings can be provided is by that move.”

7. In my view, that correctly summarises the applicant’s position. The concern is not so much about the reasonableness of the facilities for obtaining legal advice or taking legal proceedings, it is a submission which is more concerned with the location of the applicant.

8. I accept the evidence of Ms Reardon in relation to the facilities that are available at Christmas Island and I am of the view that all reasonable facilities for the purposes of obtaining legal advice or taking legal proceedings in relation to the applicant’s immigration detention.

9. I do not accept the submission that the only reasonable facilities for obtaining legal advice or taking legal proceedings can be provided by a move from Christmas Island to Maribyrnong and that is something which is beyond the reasonable scope of s.256.

10. I do not accept a reading of s.256 which has the detention centre itself as a facility. In my opinion, the reference to reasonable facilities is a reference to the facilities which are to be made available for obtaining legal advice or taking legal proceedings that are available at the place of detention. In order for me to conclude that there has been a breach of s.256 I have to make a positive finding that for the applicant to be detained at Christmas Island means that he will not be afforded all reasonable facilities for making statutory declaration for the purpose of this Act or for obtaining legal advice or for taking legal proceedings. I do not accept that the applicant has established that to be the case.

11. I note that Beaumont J in NAFC, referred to the primary definition of facility as “something that makes possible the easier performance of any action.” He did not find that facility means the place at which something is done that makes possible the easier performance of any action. In order for the applicant to obtain an order from the court, that an applicant be transferred to a particular place of detention, the applicant must demonstrate that s.256 will not be complied with in the place that the applicant is presently detained and can only be complied with if transferred to the place sought. Beaumont J. held in NAFC at [54] that s.256 must be allowed to have a freestanding operation.

12. The operation of s.256 must be considered in the context of a statutory scheme in particular ss.189 and 196 of the Act. In NAFC, Beaumont J held at [22] to [24] that:

    22. the statutory scheme affected by subsections 189 and 196 have thus left it to the Minister and officers to determine the places at which, the persons by whom, and the manner in which, a person in immigration detention is to be detained; and this is apparent, in particular, from the definition of immigration detention (s.5).

    23. On behalf of the Minister it is submitted that, properly construed, s.256 does not govern questions of transfer between detention facilities. Rather, it is directed to “the person responsible for his or her immigration detention”, it is triggered by a specific request, and it is confined to the particular matters mentioned; and such a provision is not to be read as conferring an obligation to detain the person in the facility which is most convenient to the person and his or her legal adviser.

    24. In my opinion, there is considerable force in the Minister’s submission so far as concerns any question of transfer. Nevertheless, in my view, the right and duty springing from the provisions of s.256 have their own, independent existence; put differently, the obligation cast upon the Crown by s.256 has a freestanding operation, where ever that detainee is held.

1. I take that statement to mean that the provisions in s.256 do not provide a right to a person in detention to be transferred to a facility which is most convenient to the person and his or her legal adviser. It casts on the Minister an obligation to provide all reasonable facilities where the Minister has determined that the detainee is to be held. The decision as to where detainees are held is a matter for the Minister and departmental officers.[16]

   [16] Soh v The Commonwealth (2008) 220 FCR 127 at 144 [83]; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 440 [218]

2. In relation to the submission that the transfer is necessary in order to provide a facility in which the applicant has access to Dr Zimmerman,

   
   

   I accept the evidence filed on behalf of the applicant that

   
   

   Dr Zimmerman does not wish to travel to Christmas Island and is not prepared to conduct an interview with the applicant via video link. However, there is no evidence which establishes that Dr Zimmerman is the only appropriate, qualified and available expert that the applicant can retain. Further, there is no evidence from Dr Zimmerman or given on her behalf, explaining why she will not travel to Christmas Island or why she is unprepared to assess the applicant over video link.

   
   

   No sufficient explanation has been given as to why the medical facilities and access to medical professionals which has been outlined in the evidence of Ms Reardon is not sufficient to adequate adequately enable the applicant to put his case before the Tribunal. Ms Reardon was cross examined in relation the availability of health providers who were independent of the Department and said that they might request someone outside of the health service provider body to provide an independent assessment but those persons would be ultimately engaged by the Department. I understand the applicant may wish to retain some expert entirely independent of the respondent but that does not render the facility available unreasonable.

3. As to the conduct of the matter before the Tribunal and whether the Tribunal requires the attendance of the applicant to give evidence or give directions to enable the applicant to give evidence by video link, in my view, that is a decision which to be taken by the Tribunal. Section 366 of the Act provides the Tribunal with discretion to allow people appear by video link. If the Tribunal is of the view that it is satisfied that video link is appropriate and the personal appearance by the applicant is unnecessary if the applicant contends ultimately that the Tribunal has been led into error and has committed a jurisdictional error in that regard then that is a matter which the applicant may take up on judicial review of the Tribunal’s decision.

4. How the matter proceeds before the Tribunal is a matter to be determined at first instance by the Tribunal exercising the suite of powers it has under Part 5, Division 5 of the Act.

5. Pursuant to s.360 of the act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence. Once a notice of invitation for the applicant to appear has been given pursuant to s.360A of the Act, the applicant may request the Tribunal to call witnesses and obtain material pursuant to s.361. In relation to the power of the Tribunal, the Tribunal has extensive powers pursuant to s.363 in relation to the conduct of proceedings.

6. In relation to the power of the Tribunal to allow an appearance before the Tribunal by video link, no doubt submissions will be put by the applicant that appearance by those means will be inappropriate particularly given the circumstances of the case. I have no doubt that the applicant will be in a position to make powerful, comprehensive submissions and present evidence in relation to:

   a)the very long history of the matter which I have attempted to outline in this decision;

   b)the particular circumstances of the applicant;

   c)the importance of the applicant’s credibility and the need to enable the applicant to give evidence in person before the Tribunal as he has done previously;

   d)the history of the applicant’s movement between detention facilities in order to give evidence in person; and

   e)submissions that the Tribunal needs to provide an invitation to appear which enables the applicant to have sufficient time to consult face-to-face with his legal advisers and Dr Zimmerman in order to prepare for the case.

7. In seeking the orders to require this court to order the transfer of the applicant to Melbourne for the purpose of the hearing the applicant effectively seeks to pre-empt the decision that the Tribunal may make in relation to the way that it will conduct the hearing before it. There is no evidence that the Tribunal will not decide these matters in favour of the applicant.

8. I believe it is undesirable to effectively seek to pre-empt the decision of the Tribunal in relation to the manner in which it conducts the proceeding before it. I refer to the textbook ‘Judicial Review of Administrative Action’, 5^th edition, Aronson & Groves at page 782, where the learned authors state:

   The courts are increasingly reluctant to grant judicial review (including prohibition) against inferior courts, courts of limited jurisdiction or Tribunals, until the matter has been finally determined. Not only do they prefer the impugned court or Tribunal to come to its own decision, but they also prefer litigants to use their appeal rights (whether to a Tribunal or a lower court) before resorting to judicial review. This is all discretionary,

   
   

   but there are excellent reasons for this approach. A wait-and-see policy can save superior court time. The impugned body for example, might well decide the jurisdictional point correctly. Or it might decline on the merits to decide in a certain way, thereby making the jurisdictional point irrelevant. Further,

   
   

   pre-emptive intervention by way of judicial review can impair the integrity or respect for the impugned body. In addition, the judicial review court can be greatly assisted if it has before it a reasoned opinion on the law and the evidence from the impugned body. This is particularly so where that body has special knowledge or skills (footnotes omitted).

9. Ultimately this is a difficult decision. The applicant has had a very long and significant history of preparation for appearances before the Tribunal. The history of his time in detention and the travails that he has undergone, in circumstances where it has been held that he is a genuine refugee, are difficult. I note also that the applicant has been regularly transferred for either security or health reasons and for the purposes of appearing before the Tribunal on previous occasions. I also accept that because of his response to his detention, Ms Fisher has had difficulty obtaining instructions from him.

10. That said, I do not accept that the applicant has discharged the onus of establishing that the respondent has failed to provide all reasonable facilities at Christmas Island for the purposes of enabling the applicant to obtain legal advice or take legal proceedings in relation to his immigration detention.

11. Accordingly, I order that the amended application be dismissed. In relation to costs, I reserve the question of costs to the pending decision in this proceeding.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date: 8 August 2016

CORRECTIONS

1. (Cover Sheet) – delete ‘First Respondent’ and insert ‘Respondent’

2. (Cover Sheet) – delete ‘Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL’

3. (Cover Sheet) – delete ‘Counsel for the Respondents’ and insert ‘Counsel for Respondent’

4. (Cover Sheet) – delete ‘Solicitor for the Respondents’ and insert ‘Solicitors for the Respondent’

5. (Reasons for Judgment) – delete ‘First Respondent’ and insert ‘Respondent’

6. (Reasons for Judgment) – delete ‘and ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent’