DZACO v Minister for Immigration
[2012] FMCA 199
•15 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 199 |
| 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 [2011] 250 FLR 243 DZAAY & Ors v Minister for Immigration [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: | DZACO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILLIAN BARTLET IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 78 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 78 of 2011
| DZACO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILLIAN BARTLET 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 matters. In accordance with the usual practice of matters of this nature draft Short Minutes of Order had been prepared. In this case the draft Short Minutes of Order were agreed between those representing the applicants and those representing the Minister save for two proposed orders inserted into the draft Short Minutes of the applicants. These were:
“11.Unless the Applicant elects otherwise, a Registrar of the Court in the Darwin Registry:
a.must provide an interpreter in the language nominated in the application, to be personally present with the Applicant, to interpret for the Applicant at the hearing of the application in Darwin; and
b.if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the Applicant to interpret for the Applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the Applicant at the hearing of the application in Darwin.
12.
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.
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.”
It is said by the applicants that these orders are orders based upon those granted by Federal Magistrate Lucev DZAAA & Ors v Minister for Immigration & Anor [2011] 250 FLR 423 (10 June 2011) and DZAAY & Ors v Minister for Immigration& Anor [2011] FMCA 687 (6 September 2011). In those cases the court made Order 11 of the applicant’s draft orders, he did not make Order 12 because the Minister undertook to the court to produce the applicant to the court. The situation of these applicants is that they are currently detained in Darwin at the Darwin Airport Lodge which is approximately twenty minutes drive from Darwin city. It would thus not be particularly onerous for the Minister to make arrangements for the applicants’ attendance at court. The second part of proposed Order 12 has been drafted because of the propensity of the Minister to move persons between places of detention and now from places of detention into the community, either to community housing or upon a bridging visa where the applicant has the responsibility of finding his own accommodation. This movement of persons, who have unresolved applications before this court, has become commonplace and is beginning to cause some difficulties. Needless to say, the court would not wish that persons be kept in detention for any longer than they need to be and certainly should not be kept in detention pending the hearing of a case in which the applicant was involved just so that the applicant can sit at the back of the court whilst the case is being conducted. But once that view has been expressed there still remains the problem of whether the applicant should then attend the hearing where he is otherwise legally represented and if he should, who should be responsible for the costs of taking him to the place of hearing.
DZAAA was not the first case in which a problem of this nature had been considered by the court. In SZQCY v Minister for Immigration & Anor [2011] FMCA 358 Smith FM was faced with an application on behalf of an applicant for review of an IMR decision where the applicant was legally represented but was in immigration detention in the Curtin Detention Centre in Western Australia. He had filed an application for review in Sydney and his case was to be heard there. He sought a video link between the Sydney Court and Curtin. Smith FM declined the request saying at [31] – [34]:
“[31]In the present case, the Minister submits that the nature of the matter is judicial review of a written recommendation of an Independent Merits Reviewer, in which the relevant evidence will be documentary. The hearing will almost certainly be confined to exchanges between the bench and counsel in relation to written submissions concerning that documentation. He submits that the applicant could gain no benefit from observing them in person or on a television set in real time. Even if a competent interpreter were supplied to the applicant at his remote location or in the courtroom, it is most unlikely that the oral proceedings could be usefully translated in real time. It would be open to the applicant to be fully informed of the issues in the matter by his counsel before the hearing, and it is to be expected that his counsel or other helpers will take any necessary instructions before the hearing. In the very remote possibility that further instructions were required in the course of the hearing, his counsel would be able to seek adjournments for that purpose. The applicant would have the opportunity after the hearing to obtain counsel’s summary of the hearing and his explanation of what happened.
[32]I accept the points made on behalf of the Minister. In my opinion, no principle of ‘open justice’ is jeopardised by the Court declining to order the Minister to produce or facilitate the applicant to observe the hearing. The courtroom in which the hearing will be conducted will be open to the public, in the same manner as every courtroom in Australia. That hearing will meet all the usual requirements of the open justice principle, in my opinion. A transcript of what will occur will be available to the applicant and any other person in the usual terms.
[33]In circumstances where the applicant must be expected not to be conversant in the English language, it appears to me that there is no necessity, nor any practical benefit to the administration of justice, for the applicant to be either in attendance at the hearing in Sydney or to be observing it by television. In those circumstances, I am not persuaded that the Court should make any orders requiring the Minister to produce the applicant in person at the hearing appointed in Sydney, nor requiring the Minister to make arrangements for the applicant otherwise to observe the hearing or any other listing in the proceedings at which he is represented by his counsel of choice.
[34]Perhaps, the situation might have been different if the applicant had filed his case in Perth, but he has not. Certainly, the situation would have been different if the applicant had not been represented by his counsel of choice, or had been a necessary witness in the case. But, as I said, neither of these situations arise in the present case.”
In DZAAA Lucev FM considers the approach taken in SZQCY and without saying that it is clearly wrong disagrees with the premises behind the decision. His Honour believes that the applicant’s non appearance at or removal from a hearing is likely to result in a denial of procedural fairness and an improper administration of justice because otherwise he cannot hear and understand the argument being put on his behalf or give instructions if required. At [20] his Honour says:
“It might also be said that in order for a lawyer to be properly instructed to be able to conduct judicial review proceedings it is not necessary for an applicant to be present.30 Whilst that might often be the case it does not take into account that:
a)an applicant is entitled to appear in Court (except where for reasons of behaviour or argument on legal issues an applicant is excluded);
b)an applicant is entitled to hear and understand the argument being put on their behalf, and, just as importantly, the argument put in response by the Minister, to which an applicant is entitled to reply;
c)even if an applicant's initial submissions reflect directly the instructions given by an applicant, it may be necessary for any reply to be the subject of further instructions from an applicant, and an applicant brought to Court (as is the case here) who does not have the proceedings interpreted, is not in a position to give instructions to a lawyer appearing on their behalf; and
d)it may be that the Court raises matters which need to be the subject of instructions, and once again, those instructions cannot be given to an applicant's lawyer in Court if an applicant, who is in Court, has not had the proceedings interpreted, or if no interpreter is available; and
e)Whilst these are judicial review proceedings, it is not unknown for an applicant to have to give evidence in judicial review proceedings and be cross-examined on that evidence, in which case it will have been necessary, and will be necessary for, the proceedings to be interpreted to the applicant so that the applicant understands what has transpired, and in relation to any evidence, what is transpiring.”
This last, with respect, seems to me to be a statement of the obvious. I do not believe it is suggested by anyone that if the applicant was required to give evidence or be cross-examined then he should not be present in court with an interpreter either through a video link or in person. His Honour also disagreed with the views of Smith FM in relation to the adjournment of proceedings if further instructions needed to be taken and of the opportunity to be told of what occurred at the hearing after the event and be given a transcript.
Around the time that his Honour was deciding DZAAA a similar matter was being considered by North J in the Federal Court; Minister for Immigration & Anorv MZYLE [2011] FCA 1210. His Honour did not have before him the decision in DZAAA but he did have the decision in SZQCY. After reciting the paragraphs from that judgment already extracted in these reasons his Honour said:
“In this last paragraph, the Federal Magistrate indicated that the Minister might have been required to provide for the attendance of the appellant if the appellant had filed his application in Perth. Perth was the nearest registry to the place of detention. Thus, the Federal Magistrate did not intend to establish a general principle that the Minister should not be required to provide for the attendance of a represented appellant.”
I would respectfully agree with what fell from North J. I tend to the view that a person in detention whose case is being heard should have as much right to attend it as an ordinary member of the public. That he cannot attend voluntarily is a direct result of the Minister’s decision to detain the applicant. North J said in MZYLE at [26]:
“[26]The first respondent comes to be in Darwin because he is detained under the provisions of the Migration Act 1958 (Cth) (the Act). The Act is administered by the applicant and his Department, and the place of detention is determined by officers of the Department (s 189). The first respondent has no say in the location of his detention. The Department controls that factor. There are detention facilities in Melbourne but the Department has not utilised these facilities for the first respondent for the purposes of his attendance at the appeal.”
In that case his Honour was considering the question of a video link to Melbourne where the application had been filed. His Honour concluded that it was appropriate to order a video link because the need for such arose from the decision to detain the first respondent in Darwin made under the Act by officers of the Department administered by the applicant.
In the instant case the applicant is presently in Darwin and, as I have said, it would not be difficult for the respondent to bring him to the court. I believe that if he is moved from that place of detention to another place of detention then the same principles shall apply as applied in MZYLE. If follows from the views I have expressed that I would be in favour of making orders 12(a)(i) and 12(b) of the proposed orders. The order with which I have some concern is Order 12(a)(ii). In my view if the applicant is transferred to a place of detention within twenty-eight days of the hearing date then the Minister shall be responsible for producing him at a court house with which there is a functioning video link to the court house in Darwin at which the matter will be heard (or to Darwin if that should be more convenient or cheaper).
In all the cases that have been discussed the right to be present at the hearing is conflated with the right to have the hearing translated for the applicant. Whilst I have considerable sympathy for the views expressed by Smith FM concerning the value of such translation that is not the reason why I would decline to make the order sought. The applicant argues that it is consistent with the decision of DZAAA for the court to order an interpreter to assist the applicant and states:
“[18]In judicial review proceedings filed in the Darwin Registry that have proceeded to final hearing with the Applicant present and orders in terms of order 11, the Court has often required the assistance of the First Respondent to make an interpreter available to be used from the immigration detention centres in Darwin.
[19]The Applicant therefore submits that without an order of the Court regarding the provision of an interpreter by the Court, then the Applicant will have difficulties in obtaining an interpreter. Accordingly, if the Court is not minded to make the order in Order 11, the Applicant seeks an order that the First Respondent provide and pay the costs of an interpreter at the final hearing as follows,
(11)The First Respondent must provide and pay the costs of an interpreter in the language nominated in the application, to be personally present with the Applicant, to interpret for the Applicant at the hearing of the application in Darwin.”
In support of those submissions the applicants’ lawyer makes reference to the decision of North J in MZYLE at [32]. It is true that in that case his Honour made an order that the Minister pay for the video link and an interpreter in Melbourne but he did state:
“No separate argument was addressed to this issue.”
The applicants’ lawyers then make reference to a decision of Federal Magistrate Barnes in SZQUE v Minister for Immigration & Anor [2011] FMCA 1011 where her Honour held
“It would follow in this case that the Minister should also provide an interpreter in order to achieve the purpose of affording the applicant procedural fairness (see Gradidge v Grace Bros Pty Ltd(1988) 93 FLR 414 and DZAAA). It is not efficient for an interpreter provided for such an applicant to be present in the court room in Sydney where the applicant is in a detention centre elsewhere. Given that an interpreter is normally provided by and at the expense of the Minister in Western Australia where an applicant in Curtin is self-represented, in this case one would expect that that should also be the case.”
Again there was no real argument on the matter. The view which I take in respect of provision of and payment for an interpreter where an applicant is legally represented is that the same principles should be applied in respect of an administrative law case of this nature as I believe are applied in respect of any other case. What are those principles? A survey of jurisdictions around Australia and of commentary reveals the following:
The Federal Magistrates Court’s Policy:
The Federal Magistrates Court Interpreter and Translator Policy[1] states that in defended hearings the federal magistrate is responsible for determining whether an interpreter is needed once a matter has begun. In relation to the provision of that interpreter the guidelines go on to state that “the Court’s responsibilities do not extend to ensuring that a litigant or client of the Court is able to effectively communicate with her or his solicitor, and the Court should not pay for an interpreter for this purpose”.
[1] Federal Magistrates Court Interpreter and Translator Policy (2007) Federal Magistrates Court of Australia < at 12 March 2012.
The Guidelines also state:
“Funding of Interpreter Services
3.1 Availability of Funds: A registry shall not refuse to fund access to an interpreter in accordance with these guidelines for the reason that sufficient funds are not available.
3.2 Booking an Interpreter: The Court will pay for interpreters assessed to be essential, when their engagement is authorised and booked by court staff. The Court will not pay for an interpreter booked by a barrister or solicitor, nor for a preferred interpreter selected by a solicitor in addition to an interpreter provided by the Court. Where a solicitor considers that the services of an interpreter may be required, the solicitor shall request the Court authorise and book the services of the interpreter. Unless particular circumstances apply to the contrary, the Court will only book one interpreter where the parties are from the same ethnic background. Every endeavour should be made to obtain the services of an interpreter who is independent from either of the parties.”
The General Policy in Civil Procedures:
The Australian Law Report Commission’s report “Multiculturalism and the Law” states that in relation to civil matters:
“Generally speaking, parties are responsible for providing their own interpreters and their witnesses’ interpreters although in most courts the successful party may recover his or her costs, including the cost of an interpreter, from the unsuccessful party.”[2]
[2] Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) at [3.37].
The report also notes that there are several exceptions to the rule (particular mention is made of the Immigration Review Tribunal). It is also noted that in South Australia the costs of interpreters for the interpreting of witnesses’ evidence is met by a levy included in court filing fees. In answering the question as to whether the Commonwealth should provide interpreters the report notes that: “The Commonwealth has accepted responsibility for providing interpreters for parties to civil proceedings in some contexts—chiefly those where a federal entitlement is in issue” and goes on to state that:
“On one view, the general rule that parties to civil proceedings are responsible for conducting their own cases and bearing their own costs supports the conclusion that they should provide their own interpreters. If a professional interpreter is not required there may not be any costs involved. On the other hand, if a person who needs an interpreter cannot afford the cost of this, he or she is effectively debarred from participating in proceedings. Access to justice is to this extent blocked. Even without this added expense, the high cost of litigation precludes many people from access to justice, unless they qualify for legal aid. To the extent that the added cost of an interpreter bars access it adds a further level of discrimination against non-English speakers. There are grounds for concluding that access and equity principles require the Commonwealth to provide such resources as are necessary to ensure that inability to pay for an interpreter is not a barrier to justice.”[3]
[3] Ibid, at [3.41].
And recommends that:
“Where a party needs an interpreter to understand the proceedings, the court should assist and promote the use of an interpreter for this purpose as far as it is able to do so.”[4]
[4] Ibid, at [3.44].
A similar position is expressed in Interpreters and the Legal System[5] in which Laster and Taylor note:
[5] Kathy Laster and Veronica L Taylor, Interpreters and the Legal System (Federation Press, 1994).
“In civil cases, however, interpreting costs are usually borne by the parties themselves. The rationale for this distinction is that civil proceedings are seen as private matters in which the state plays no part other than as an adjudicator. This is now recognised as an outdated characterisation of civil proceedings, and the government now accepts responsibility for funding interpreter services in some tribunals”.[6]
[6] Ibid, p.23.
The Australian Pro Bono Manual, compiled by the National Pro Bono Resource Centre, advises:
“The provision of interpreters by courts and tribunals in civil matters is less certain. Some tribunals, for example the Administrative Appeals Tribunal and the Refugee Review Tribunal, provide interpreters where necessary. The Federal Court provides interpreters for unrepresented litigants, but will not provide one where the litigant is represented. The Federal Court will, however, provide free interpreters for litigants who are represented pursuant to a referral for pro bono assistance under the Order 80 referral scheme. In some courts clients will have to organise and pay for interpreters themselves.”[7]
[7] John Corker and Kathy Laster, The Australian Pro Bono Manual (2005) National Pro Bono Resource Centre < at 12 March 2012.
The position in various courts:
The Federal Court of Australia:
As noted above the Federal Court does not provide interpreters for represented litigants unless the party had been referred for pro bono assistance. In addition to the above, the Federal Court advises litigants that:
“If you need an interpreter to understand what is being said at a court hearing, you will need to arrange for any interpreter that you or your witnesses may require. If you can not afford to pay for an interpreter the Court may arrange one for you. If you want the Court to arrange an interpreter you must contact the Registry at least one week before the hearing date. If you do not contact the Registry then they may not be able to get an interpreter and the hearing will be delayed.”[8]
[8] Commencing an action in the Federal Court of Australia: A Procedural Guide for Litigants (2011) Federal Court of Australia < 13 March 2012.
New South Wales:
The New South Wales Government’s LawAccess website informs the following:
“In Local Court civil cases you will need to pay for an interpreter.
If you receive a pension or benefit, or have a low income, you can ask to be exempt from paying the fee. When you complete the form, under 'Any special requirements', you will need to explain why you are asking for an exemption. […] It will be referred to the Language Services Director for consideration and you will then be notified of the decision.
If you win your civil case, the cost of the interpreter could be included in the costs that the other party pays to you.
In the District and Supreme Courts, free interpreters are provided for defendants and witnesses in criminal cases. In civil cases, parties have to arrange and pay for their own interpreters.”[9][9] Interpreters, LawAccess: Attorney General and Justice < at 12 March 2012.
The District Court of New South Wales:
The District Court’s “Frequently Asked Questions” webpage indicates that :
“[…] although interpreters are arranged for accused persons and witnesses in criminal matters, the parties in civil proceedings are expected to provide their own interpreters.”[10]
Western Australia:
The Bench Book of the Supreme Court of Western Australia[11] provides:
“In civil cases, where a request has been made by a judicial officer or a booking has been made for an interpreter or translator through the court, Court and Tribunal Services will pay for that service in some jurisdictions as indicated below. A party may also arrange and pay for any interpreters or translators that they require for themselves or their witnesses. At the end of the trial, the successful party may at the discretion of the judicial officer seek to recover any interpreter/translator costs as part of their costs submission.”
Examples are given of situations in which courts will provide interpreter services:
“In the Family Court of Western Australia, where an interpreter is required in or by the Court, the interpreter is arranged and paid for by Court and Tribunal Services. Where a customer requires an interpreter or translator for another purpose, the service is arranged and paid for by that party. In the Coroner’s Court, where an interpreter is required for a hearing or requested by the Coroner, the interpreter will be arranged and paid for by Court and Tribunal Services. The State Administrative Tribunal books interpreters for parties whose first language is a language other than English, who are Deaf or hearing impaired, or who have special needs, at no cost to the parties. Most interpreters are required for Human Rights matters.”
Victoria:
The “Frequently Asked Questions” page of the County Court’s website informs that in civil proceedings the onus is on solicitors to arrange the booking and payment of interpreters when they are required.[12]
[10] Frequently Asked Questions (2011) District Court of New South Wales < at 12 March 2012).
[11] Equality before the Law Benchbook (2009) Supreme Court of Western Australia < at 12 March 2012.
[12] FAQs (2012) County Court of Victoria < at 12 March 2012.
South Australia:
It is mentioned above that the costs of interpreters for witnesses’ evidence is covered by a levy. Practice Direction No. 10 of the Supreme Court of South Australia instructs that an interpreting service to the Courts is provided by the Interpreting and Translation Centre, a branch of Multicultural & Ethnic Affairs, and that this service is available to parties in civil proceedings and persons required to give evidence as witnesses in either criminal or civil proceedings in Court. However, it is noted that the service “does not provide interpreters for solicitors taking instructions from clients or for parties in proceedings requiring to communicate with the solicitors”.[13]
[13] David Royle, Practice Direction No. 10 (1993) Supreme Court of South Australia < at 13 March 2012.
It would appear that the general practice is that if a party to a proceeding, who does not speak fluent English, wishes an interpreter just to assist his understanding of the proceeding and where he is not giving evidence and is legally represented, then the burden falls upon those representatives and the party himself to seek out and pay for that interpreter. The provision of interpreters by the Government at Tribunals is where a party is self represented or where he will be giving evidence. Those provisions do not obtain here.
The fact that this applicant is legally aided does not, to my mind, alter the position. Whilst legal aid funds are limited so are those of this court, and for that matter, the Minister. It is the applicant who has brought this case. He seeks relief. Why should others pay for his interpretation when it does not go towards the assistance of the court? I agree with Smith FM that in the very rare circumstance when instructions on a question of fact must be taken an adjournment could be sought if no interpreter was present. Of course the applicant will be aware that this is a costs jurisdiction so, if he is successful the costs of providing an interpreter may possibly be reimbursed; although I should not be taken as having any formed opinion upon this as it would be up to the taxing officer.
I would not make Order 11(a) or (b) sought by the applicant. Both parties have been partially successful, there should be no order as to costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 15 March 2012
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