BSZ15 v Minister for Immigration

[2017] FCCA 399

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSZ15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 399

Catchwords:
MIGRATION – Application for an interlocutory injunction to stop deportation of applicant before his case heard – matter adjourned part heard.

Legislation:

Migration Act 1958 (Cth)

Applicant: BSZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: GREG VAN DAM, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 48 of 2015

Judgment of: Judge Young

Hearing date: 28 February 2017

Date of Last Submission: 28 February 2017

Delivered at: Darwin

Delivered on: 28 February 2017

REPRESENTATION

Applicant via videolink: In person

Counsel for the Respondent: Ms Davidson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The matter be adjourned part heard to 10 May 2017 at 10:15am NT time.

2. That the Applicant requires a Korean interpreter on this day.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 48 of 2015

BSZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG VAN DAM, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for an urgent injunction by an applicant for judicial review in this court on the basis that he is to be deported tomorrow. The Minister has conceded that that is likely to be the case.  The matter is set down for hearing in this court on 10 May 2017. In other words, the hearing is a little more than two months away. The Minister has not addressed me about any pressing reason for the deportation of the applicant and, of course, the Minister does not have to address me about that. The Minister at the moment is entitled to deport the applicant.  He is an unlawful non-citizen in detention. 

3. I made time in a very busy court list to hear this application and I set aside approximately an hour and a half to deal with it. The matter was complicated because the applicant is in detention and the application was made by video link to Darwin from Melbourne. Counsel for the Minister made various submissions at the outset about the legal test that would apply, relying principally on the ABC v O’Neill, in relation to the principles applicable to the grant of an interlocutory injunction.

4. She also sought to rely on a number of other cases and proposed to hand them up. I asked if copies of those cases had been provided to the applicant. They had not. No arrangements have been made with my associate to send those documents to the applicant. Had there been sufficient warning it would have been a very straightforward matter, if a little time consuming, to send those documents to the hearing room in Melbourne.  It is something done every day in the courts. 

5. In my experience it is considered a necessary aspect of procedural fairness that copies of cases, if they had not been notified to the opposing party some reasonable time before and certainly if copies were to be handed up in court, be provided to the other side. I was surprised that no steps had been taken to do that. I thought in the circumstances that procedural fairness required that the applicant at least be given copies of those cases. Whether or not he could read them was probably a moot point but he had an interpreter present. 

6. It might be said that providing a non-English speaking South Korean in detention with copies of cases that counsel were going to rely on during submissions is merely going through the forms of procedural fairness. There is probably some substance in that. In my view, the forms regarding procedural fairness, the forms regarding courtesy, the forms regarding appropriate conduct in these courts, are well established. It is a matter of tradition and the tradition reflects something of substance. 

7. Attending to this oversight by the Minister’s representatives caused a long delay in proceedings, more than an hour on my calculation, while the cases were sent to the hearing room in Melbourne. Of the hour and a half that I had set aside for dealing with this matter an hour was wasted. I heard some submissions from the Minister as I tried to understand the position that the Minister was taking. Towards the end of that period I provided some time for the applicant to make submissions and I asked him some questions. 

8. He had probably largely finished what he had to say but then the interpreter said that she was unable to stay any longer. I asked her if she could possibly stay another ten minutes, intending to deliver a judgment ex tempore. She was unable to do so. The effect of that is that the applicant, if I were to give an ex tempore judgment now, may not understand a word of it. There was no challenge from the Minister that the applicant required an interpreter and I am not in a position to examine the applicant about whether or not he needs an interpreter. 

9. I have to assume he did need an interpreter to participate in these proceedings. Participating in proceedings also involves being able to understand the reasons that one’s application has been successful or unsuccessful. I must assume the applicant does not understand a word of what I am now saying. He is entitled to think that he had something falling well short of justice from this court and he would be right. 

10. The fact is I do not have any more time today to deal with the matter as I have a list of cases for this afternoon. I do not know when I can arrange for another Korean interpreter to be available. It is an extremely unsatisfactory situation. It is difficult without question dealing with these kinds of matters in this court. It requires some forethought from all of those involved about those difficulties and planning about how they are going to handle them. It seems to me that the best I can do is adjourn the case and I am going to adjourn it to a date to be notified. And I will make arrangements for a Korean interpreter. 

11. I do not propose to issue an injunction because I am not satisfied that the applicant has an arguable case but I will give reasons for that at a later time.  If the Minister deports this man while the case is part heard there is probably nothing to stop him doing so. However, were he to do so, I would consider that inconsistent with civilised standards. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 3 March 2017