DZACM v Minister for Immigration - [2012] FMCA 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 198

PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Respondent produce Applicant to appear in person in court at hearing and provision for movement of applicants – whether to grant order.

PRACTICE & PROCEDURE – Orders – where proposed Short Minutes of Order provided that Registrar provide interpreter for applicant – where applicant represented – where interpreter not generally provided by courts in civil matters – whether court should provide interpreter.

DZAAA & Ors v Minister for Immigration & Anor [2011] 250 FLR 423
DZAAY & Ors v Minister for Immigration& Anor [2011] FMCA 687
SZQCY v Minister for Immigration & Anor [2011] FMCA 358
Minister for Immigration & Anor v MZYLE [2011] FCA 1210
SZQUE v Minister for Immigration & Anor [2011] FMCA 1011

Applicant:

DZACM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 75 of 2011

Judgment of:

Raphael FM

Hearing date:

23 February 2012

Date of Last Submission:

23 February 2012

Delivered at:

Sydney via videolink to Darwin

Delivered on:

15 March 2012

REPRESENTATION

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr T. Anderson

Solicitors for the Respondents:

Clayton Utz

ORDERS

a. Unless the Applicant elects otherwise, the First Respondent produce the Applicant to appear in person in Court at the hearing:
i.So long as the Applicant remains in detention in or about Darwin; or
ii.If, within 28 days of the hearing listed in Order (10), the Applicant is transferred to a place of detention outside Darwin the First Respondent shall be responsible for producing him at a court location in which there is a functioning video link to Darwin or to the Court in Darwin.
b. Each party have liberty to apply not less than 28 days prior to the hearing listed in Order (10) to:

i.vary the mode of, and manner in which the Applicant appears at, the hearing; and

ii.change the venue of, and place at which the Applicant must appear at, the hearing,

if the Applicant has been transferred to a place of detention outside Darwin.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY VIA VIDEOLINK TO DARWIN

DNG 75 of 2011

DZACM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

These are two applications in which the applicants are persons seeking judicial review of decisions of Independent Merits Reviewers who determined that they were not persons to whom Australia owed protection obligations. The applicants both arrived within Australian territory by boat and were initially detailed at Christmas Island. They were both then transferred to detention in Darwin where they obtained the assistance of the Northern Territory Legal Commission in the prosecution of their applications in this court.
On 23 February 2012 I held a directions hearing in both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 198
Decision Date: 15 March 2012

CaseChat Overview and Summary

The case of DZACM v Minister for Immigration involved the applicant, DZACM, a non-citizen detained in Australia, challenging the Minister for Immigration's decision to deport him. The dispute was heard in the Federal Circuit Court of Australia, with the central issue being the conditions under which the applicant should be produced to appear in person at the hearing. Specifically, the court had to decide whether the respondent should produce the applicant in person if he remained in detention in or around Darwin, and if he was transferred to a different detention location, under what circumstances he should be produced at the hearing.

The court examined the proposed Short Minutes of Order, which included provisions for the applicant's physical or virtual appearance based on his detention location and the availability of a video link. Additionally, the court considered whether an interpreter should be provided for the applicant, despite the fact that he was represented by counsel. The court noted that interpreters are not routinely provided in civil matters and had to weigh this against the applicant's right to a fair hearing.

In its reasoning, the court granted the orders proposed in the Short Minutes of Order. The court ruled that unless the applicant chose otherwise, the respondent should produce him in person at the hearing if he remained in Darwin detention or via a video link if transferred elsewhere. Furthermore, the court allowed each party to apply to vary the mode and manner of the applicant's appearance at least 28 days before the hearing if the applicant had been transferred. The court also concluded that an interpreter was not necessary, given the applicant's representation by counsel. The final orders provided for the aforementioned conditions on the applicant's appearance and granted liberty to apply to modify these conditions.

Orders

Orders of the court

a. Unless the Applicant elects otherwise, the First Respondent produce the Applicant to appear in person in Court at the hearing:

i. So long as the Applicant remains in detention in or about Darwin; or

ii. If, within 28 days of the hearing listed in Order (10), the Applicant is transferred to a place of detention outside Darwin the First Respondent shall be responsible for producing him at a court location in which there is a functioning video link to Darwin or to the Court in Darwin.

b. Each party have liberty to apply not less than 28 days prior to the hearing listed in Order (10) to:

i. vary the mode of, and manner in which the Applicant appears at, the hearing; and

ii. change the venue of, and place at which the Applicant must appear at, the hearing,

if the Applicant has been transferred to a place of detention outside Darwin.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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