Hunt v Minister for Immigration and Border Protection
[2017] FCA 1437
•1 December 2017
FEDERAL COURT OF AUSTRALIA
Hunt v Minister for Immigration and Border Protection [2017] FCA 1437
File number: WAD 432 of 2017 Judge: MCKERRACHER J Date of judgment: 1 December 2017 Catchwords: PRACTICE AND PROCEDURE – whether a ‘bring-up’ order enabling the applicant to attend mediation in person should be issued – where applicant detained in an offshore immigration detention centre Date of hearing: Determined on the papers Date of last submissions: 16 November 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Dr J L Cameron (Pro Bono) Counsel for the Respondent: Mr A Gerrard Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 432 of 2017 BETWEEN: LANCE JEREMY VERNON HUNT
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
1 DECEMBER 2017
THE COURT ORDERS THAT:
1.The applicant to appear at the mediation before a registrar of this Court remotely from North West Point Immigration Detention Centre on Christmas Island via video-conferencing.
2.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
This matter relates to an application for extension of time to lodge an application for judicial review of a decision made by the Minister of Immigration and Border Protection to cancel the applicant’s Class TY Subclass Special Category (Temporary) visa. The details of the application do not require consideration at this juncture.
Following a case management hearing, at the applicant’s request, I made orders for the parties to attend mediation before a registrar of this Court. I did so as it appeared clear that there are matters which could be discussed. The applicant also sought an order that a registrar issue a bring-up order enabling the applicant to attend the mediation in person. He is currently detained in the North West Point Immigration Detention Centre on Christmas Island (Christmas Island IDC).
The Minister did not consent to a bring-up order on the basis that such an order would involve a considerable expense to the Minister and in circumstances where the applicant is represented by counsel. Counsel for the Minister did not have an opportunity to seek instructions on that point prior to the case management hearing and sought an opportunity to put evidence on before the Court before such a decision was made.
For those reasons, I ordered the parties to file any material in relation to the question of whether a registrar should issue a bring-up order.
MINISTER’S EVIDENCE
Mark William Taylor is the Assistant Director of the Mobile and Digital Communications Team, End User Platforms/ICT Division, within the Department of Immigration and Border Protection. He assists with the management and maintenance of the Department’s video-conferencing infrastructure and teleconferencing functions. By affidavit, Mr Taylor deposes to the following.
Video-conferencing arrangements
The video-conferencing infrastructure used by the Department is managed by a company called ‘Vantage Systems’. Vantage has been managing the Department’s video-conferencing infrastructure for approximately five years.
Generally, where the Department requires video-conferencing arrangements for a Court or Tribunal hearing, the video-link is facilitated in one of the following two ways:
(a)Vantage is engaged to set-up, facilitate and monitor the video-link between two or more ‘units’ (a ‘unit’ refers to the equipment through which the video-call is held, which may be Polycom, Cisco, Tanberg or other) (Vantage option); or
(b)‘Virtual Meeting Room’ is used, whereby each of the parties to the video dial into a specified number and add an identifier number (moderator code), much like you do for a teleconference phone call (Virtual Meeting Room option).
The Virtual Meeting Room option is generally used for unplanned calls, whereas the Vantage option is used where prior arrangements can be made between the relevant parties to the video call.
Mr Taylor’s view, based in part on reports from colleagues in his team, is that the Vantage option has generally proved to be more effective than the Virtual Meeting Room option in terms of the quality and reliability of the video connection.
The Vantage option has previously been used to facilitate video calls between detainees at the Christmas Island IDC and the Administrative Appeals Tribunal (Tribunal). Persons with relevant technical expertise working at Christmas Island IDC typically assist with organising and facilitating such video calls.
Using the Vantage option, the call between the two ‘units’ can be monitored by Vantage in its entirety. This means that, if it is evident that there are problems with the quality of the video connection, Vantage technicians can take steps to address these problems during the call, such as by adjusting the picture clarity of the video call.
Vantage personnel typically monitor the video calls from their headquarters in Melbourne.
In the event that the relevant person or persons monitoring the call at Vantage do not notice a problem with the video-call, the person or persons may be contacted directly by telephone in relation to any problem. For example, in the context of a video call with the Christmas Island IDC for the purposes of a Federal Court hearing, either the Court or the technical person facilitating the call on Christmas Island could contact Vantage to notify them of a problem with the call.
The quality of video-conferencing operated by Vantage is necessarily subject to factors outside of the control of the parties to the video-call. In particular, adverse weather conditions and/or internet traffic congestion may affect the quality of the call. That said, in Mr Taylor’s experience and based on the feedback received from colleagues, videoconferencing calls facilitated through the Vantage option have generally been reliable and of a good quality (i.e. a quality such that all parties are able to be seen and heard and with minimal delay in the transmission).
Where problems have arisen with video-conferencing through the Vantage option, these problems have been predominantly caused by user error on the part of one or more of the parties to the call, rather than a technical fault with the video-conferencing connection itself. User errors may include, for example, one or both parties failing to turn on or appropriately adjust the volume of their unit.
In order to prevent or at least reduce the likelihood of user error, one or more ‘test calls’ can be conducted between the Court and Christmas Island IDC, facilitated and monitored by Vantage. Such test calls can serve as a means of ensuring that, prior to the Court appointment, both the Court and the Christmas Island IDC have in place the appropriate settings for the video-call to run effectively. Test calls can be conducted at any time prior to the hearing.
Proposed video-conferencing arrangements for this mediation
Mr Taylor explains that his affidavit is filed in support of a request by the respondent for arrangements to be put in place for the applicant to appear at the mediation remotely from Christmas Island IDC via video-conferencing.
Should the Court approve the respondent’s request, he proposes further to the standard arrangements set out above, that a ‘test call’ be conducted between the Court and the relevant video-conferencing facility at the Christmas Island IDC prior to the mediation, either on the morning of the mediation or the day before. Alternatively, if the Court would prefer, the test call could be conducted at an earlier date. Any test calls, as well as the video-conferencing call during the mediation, could be monitored by Vantage subject to confidentiality arrangements.
Ms Latha Reardon is Superintendent of the Detention Placements Section, Detention Operations Branch in the Australian Border Force, which is part of the Department. She has been the Superintendent of the Detention Placements Section since 2 November 2015. In this role, she has responsibility for managing the placement and movement of persons in immigration detention across the national network of detention facilities. By affidavit she deposes to the following.
Applicant’s placement history
On 11 July 2017 the applicant was detained under s 189 of the Migration Act 1958 (Cth) and taken to Yongah Hill immigration Detention Centre (Yongah Hill IDC).
On 8 August 2017 the applicant was transferred from Yongah Hill IDC to the Christmas Island IDC. The applicant has not returned to the Australian mainland since that date and remains in immigration detention on Christmas Island at the present time.
Transfer of the applicant to Perth for mediation
The Department is able to make arrangements for the applicant to be transferred to Perth to attend the mediation, but Ms Reardon explains that these arrangements depend on the applicant’s risk rating and availability of accommodation at Perth Immigration Detention Centre (Perth IDC) and Yongah Hill IDC.
Applicant’s risk rating
Regulation 4.79 of the Aviation Transport Security Regulations 2005 (Cth) requires the Department to, in relation to the travel of a person defined under the Regulations as ‘dangerous’, complete a Notice of the Proposed Movement of a Person in Custody (the Form) and provide it to the operator of a prescribed air service at least 48 hours before the intended start of the relevant flight. Relevantly, reg 4.75 provides that a person in custody is dangerous if:
(a)the Immigration Department has assessed him or her as being:
(i)likely to attempt to commit an unlawful interference with aviation; or
(ii)likely to attempt to escape; or
(b)the Immigration Department is aware that:
(i)the person has been charged with an offence involving violence against a person or serious damage to property; and
(ii)the charge is still to be resolved; or
(c)the Immigration Department is aware that the person has been convicted of an offence involving violence against a person or serious damage to property.
If the detainee is being escorted on a commercial aircraft, the airline will consider whether to agree to the travel of the person and grant ‘uplift approval’. The airline is required to record their consent on the Form.
If the detainee is being escorted via a Department charter aircraft, the airline will assess the Form and refer the request to the Office of Transport Security (OTS) for ‘uplift approval’.
The detention service provider, Serco, generally conducts Security Risk Assessments (SRATs) in relation to immigration detainees every 30 days. The most recent SRAT prepared in relation to the applicant concluded that he is ‘High Risk’ in terms of placement and escort. A copy of the SRAT, dated 13 October 2017, was annexed to Ms Reardon’s affidavit.
Based on the information available relating to the applicant, including his risk rating, she understands that he would likely require accompaniment by at least two security escorts should he need to be transferred from Christmas Island to the Australian mainland for mediation.
Accommodation
As at 26 October 2017, the operational capacity and population of Perth IDC and Yongah Hill IDC was as follows:
Facility
Capacity
Population
Perth IDC
33
24
Yongah Hill IDC
270
210
Capacity numbers fluctuate depending on compliance activity and the need to move high-risk detainees around the network. It is not possible to say whether accommodation will be available for the applicant at Perth IDC or Yongah Hill IDC at the time of the mediation in December 2017 or January 2018.
In considering the placement of an individual, the broader immigration detention network is also considered. There is finite capacity across the national network and there is often an operational need to transfer detainees to rebalance the network and ensure the stability of each detention facility. The Detention Placement Section maintains operational oversight of the status of the network in relation to key indicators of risk, including detention facility capacity, cohort types and network stability indicators, such as incidents of self-harm, complaints and non-compliance incidents. Ms Reardon observes that when facilities are being utilised at or over capacity levels, this often leads to higher levels of such stability indicators and can lead to major incidents.
In her experience, it is critical for the management of the various detention facilities that the Department has flexibility in managing the capacity of each detention facility, given the changing operational requirements of the Department and the individuals detained in each detention facility. It is also necessary for detention facilities to have some buffer in their capacity due to the fact that they also support a number of Departmental activities at Australia’s international airports, including removal action and the holding of detected unlawful non-citizens as a result of compliance action.
As Superintendent of the Detention Placement Section, Ms Reardon is in regular contact with staff at all detention facilities to review capacity, resourcing and potential transfers of detainees within the network, including by way of a weekly telephone conference with all facility Superintendents. This includes contact with staff at the Christmas Island IDC, and she is regularly informed about the facilities available at that centre.
Travel and costs
At the moment, charter flights to transport detainees between Christmas Island and the Australian mainland are generally operated on a fortnightly basis. The only commercial airline which operates flights between Christmas Island and the Australian mainland is Virgin Australia.
In order to convey the applicant from Christmas Island to the Court mediation, the following two potential flight options may be available:
(a)a commercial flight with Virgin Australia airlines from Christmas Island to Perth, Australia (Option 1); or
(b)a chartered flight from Christmas Island to Perth, Australia (Option 2).
Option 1
The availability of Option 1 is entirely dependent on the granting of uplift approval by Virgin Australia to allow the applicant to travel on one of their commercial flights. Whether such uplift approval will be granted will not be known until the flight is booked and uplift approval is granted by the airline. In Ms Reardon’s experience, commercial airlines often refuse to grant uplift approval for high risk immigration detainees to travel on their commercial flights.
Option 1 is only available on a Tuesday and Saturday and the flights are often cancelled due to inclement weather.
The approximate total costs of the commercial flights for the Option 1 one-way journey would be approximately $2000, including two security escorts. However, this is dependent on the whether the transfer is to occur during school holidays in which case the cost of flights would be around $3500 or flights may have sold out.
Option 2
The availability of Option 2 is entirely dependent on the granting of uplift approval by OTS to allow the applicant to travel on the chartered flight.
The approximate travel costs of Option 2 (a chartered flight from Christmas Island to Perth) is $40,000, depending on the size of the aircraft and number of detainees and escorts on board. It may be possible for the applicant to be transported on a charter flight with other detainees. However, this would depend on the particular charter operations occurring at the time.
The security escorts would likely be accommodated in a hotel or hotels, depending on availability and location, and the approximate cost of such accommodation for each of the security escorts would likely be between $130-$160 per person per night for four nights.
Facilities at the Christmas Island IDC
Christmas Island IDC is the only detention facility operating on Christmas Island. Across the various compounds currently in operation at Christmas Island IDC, landline phones, video-conferencing and internet rooms are currently operating.
Video-conferencing facilities are available for use by detainees at no cost to them. Three video-conferencing facilities are available within the interview area. Detainees, legal representatives, courts and tribunals are able to utilise the equipment upon request. Detainees have successfully used the video-conferencing facilities to appear in court and tribunal proceedings on multiple occasions.
A significant proportion of the current detainees at Christmas Island IDC are involved in prosecuting merits review proceedings and judicial review proceedings.
APPLICANT’S EVIDENCE
The applicant contends that the statements relied upon to assert that he may pose a danger are inadmissible hearsay and wrong. He responds to them all. I will disregard all material as to whether or not he presents any danger. Such a finding is unnecessary to reach a decision.
The applicant further deposes that his ‘counsel advises me that in his opinion, based on experience both as a mediator and in representing parties, a procedure in which neither of the protagonists is present with the mediator, and in the presence of each other, would be unsatisfactory. Different considerations apply to the giving of evidence by video-link.’
CONSIDERATION
Mediation prior to an immigration appeal is relatively unusual. The topic of this mediation has not been identified with any precision and that is of course consistent with its confidential nature. It is difficult therefore to form a view as to whether there is likely to be a productive benefit from mediation in the present appeal. That said, the Court will encourage mediation especially where experienced counsel supports it.
I accept the evidence of Mr Taylor and I am aware of several hearings conducted recently by video link to Christmas Island in which the quality of reception and communication in my assessment has been quite satisfactory. That is not to say that problems can not arise. Clearly they can and if they do, it is important that measures be taken.
With the availability of the precautions as proposed by the Minister and others, which court staff would identify, I am not convinced that appearance in person at the mediation is warranted.
While there would be a benefit to the applicant being able to confer privately with counsel, arrangements most certainly can be made to ensure that communications between counsel and the applicant remain private.
The Minister would not attend in person and thus the usual considerations about specific parties or their human representatives facing each other across the table would not arise in this instance.
All matters considered, I am not satisfied that the benefit from personal attendance at the mediation warrants the cost that would be occasioned. Accordingly, I will make an order as sought by the Minister.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 1 December 2017
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