DZACO v Minister for Immigration - [2012] FMCA 199

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…

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 199
Decision Date: 15 March 2012

CaseChat Overview and Summary

The case of DZACO v Minister for Immigration involved a challenge to the proposed orders for the hearing of the applicant's case. DZACO, an applicant for a visa, sought orders that would facilitate his appearance at the Federal Circuit Court. The Minister for Immigration, as the respondent, opposed these orders. The legal issues before the court were whether the applicant should be produced to appear in person in court, and if an interpreter should be provided for him despite being represented.

The court considered the need for the applicant's physical presence in court and the logistics of his potential transfer from Darwin. The court determined that the applicant should be produced to appear in person, either in Darwin or at a location with a functioning video link to Darwin if transferred outside Darwin. The court also examined the issue of providing an interpreter, noting that while interpreters are not generally provided in civil matters, the circumstances of this case warranted special consideration. The court decided against providing an interpreter, given the applicant's legal representation and the availability of alternative means of communication.

The orders issued by the court required the Minister for Immigration to produce the applicant to appear in person at the hearing, with provisions for his movement depending on his detention location. The court allowed both parties to apply to vary the mode of appearance and the hearing venue if the applicant was transferred outside Darwin. The orders provided flexibility to accommodate changes in the applicant's circumstances and to ensure a fair hearing.

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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