Le v Minister for Immigration and Ethnic Affairs

MARION ROSE LE AS NEXT FRIEND/GUARDIAN FOR LIN YAN and MARION ROSE LE AS NEXT
FRIEND/GUARDIAN FOR LIN JING v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS;
GREG WALLIS, MANAGER, PORT HEDLAND IRPC and REFUGEE REVIEW TRIBUNAL
Nos. ACTG56 and 57 of 1994
FED No. 685/94
Number of pages - 8
Practice and Procedure
(1994) 35 ALD 443 (extract)
(1994) 53 FCR 27

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
SHEPPARD J

CATCHWORDS

Practice and Procedure - judicial review - immigration - applicants refused refugee statues - applicants in custody in detention centre at Port Hedland - counsel and solicitors in Sydney willing to appear in honorary capacity - application that applicants be brought to Sydney to enable affidavits to be prepared and for hearing - consideration of relevant facts and circumstances - whether appropriate to direct that applicants be brought to Sydney

Migration Act 1958 s.256 (formerly s.96, originally s.41)
Federal Court Rules, Order 10

HEARING

SYDNEY, 13 September 1994
#DATE 21:9:1994

Counsel for the applicants: S.D. Rares SC with N.Peram and

M.Lawler

Solicitors for applicants: Jill McSpedden and Associates

Counsel for the respondents: Sir Maurice Byers QC with

R.M.Henderson

Solicitors for the respondents: Australian Government Solicitor

JUDGE1

SHEPPARD J To be dealt with is a notice of motion brought on behalf of the applicants seeking orders that the first respondent ("the Minister") bring or cause to be brought each of the applicants forthwith to a proper place in Sydney and there afford all reasonable facilities to the applicants for the purposes of the applicants' obtaining interpreting assistance, legal advice and preparing affidavits for use in these proceedings, and further that the Minister, within a reasonable time, make each of the applicants available in Sydney for conferences with their next friend, Ms Marion Le, and with the applicants' legal advisers in Sydney for the purpose of giving instructions for preparation of their cases and the conduct of these proceedings on their behalf.

Although the notice of motion raises an important question which is not without difficulty, it is but an aspect of the management of these cases so that they may be got ready for trial as soon as reasonably possible. The notice of motion indicates that similar applications are to be made in some other matters, namely, matters No. ACTG 48, 51, 52, 53 and 469 each of 1994. It is to be observed that the applicants in the applications now being dealt with are infants. The applicants in the other cases are not under any disability.
Another matter which it is necessary to mention at the outset is that all the applicants are represented by counsel and solicitors who are acting in an honorary capacity. To use the expression which is currently in vogue, they appear for the applicants "pro bono". That is a matter that I have thought it relevant to take into account in reaching my overall conclusion.
The applicants claim to have refugee status under the provisions of the relevant Convention and Protocol. Their applications to be accorded that status have been refused. Their applications for relief in this court challenge the decisions to refuse their applications on the ground of administrative error.
The applicants are sisters. Lin Yan is said to have been born in China on 27 August 1981 and Lin Jing on 7 December 1984. They are thus thirteen and almost ten years of age respectively.
Points of claim filed in the matters allege that, on 6 November 1993, the two sisters left China by a boat which eventually arrived in Australia. The boat has been named the "Quokka" by the Department. They accompanied members of their family, namely, an uncle, his wife (i.e. their aunt), two of their uncle and aunt's children, both of whom are very young, a brother of the uncle and a brother of the aunt. The "Quokka" berthed at Broome in Western Australia about 5 December 1993. On or about 7 December 1993 the two applicants together with other members of the family were placed in custody at the Port Hedland detention centre maintained by the Department. They have been in custody at the centre ever since. In July of this year there was an attempt to deport the applicants but, on an application to this Court, the deportation orders were, by agreement, stayed until the further order of the Court.
The applicants' next friend, Marion Rose Le, is a migration agent in Canberra. That no doubt accounts for the fact that the applications were commenced in Canberra, that is to say in the Australian Capital Territory Registry of the Court. Since then, however, for reasons of convenience, directions hearings have been held in Sydney. No formal transfer of the matter to the New South Wales Registry has yet been made. I understand that the respondents wish the matter to remain in the ACT Registry. I shall say more of this a little later.
The applicants in each of the cases wish to be brought to a suitable centre in Sydney so that they may instruct their legal advisers who are here and may, in due course, attend court during the hearing of their applications in order both to give evidence and to instruct their counsel and solicitors. The Minister is not prepared to move any of the applicants from Port Hedland to a suitable centre in Sydney. He is prepared to make available appropriate facilities at Port Hedland to enable the applicants to be interviewed, statements taken, affidavits prepared and the matter thus got ready for hearing. It is not clear to me what the Minister's view is in relation to the possible need for the applicants, or some of them, to be present in court during the hearing for the purpose of giving evidence or otherwise. This Court is empowered to sit anywhere in Australia, but it is not usual for the Court to sit in Port Hedland. Its usual places of sitting that are at all proximate to Port Hedland are either Perth or Darwin.
Because of certain matters which were raised in argument, it is as well that I emphasise some matters which are not in question in this case and not relevant to its outcome. Firstly, there is no suggestion that the Minister is being asked to release, even temporarily, any of the applicants from custody. The application proceeds upon the basis that the applicants will remain in custody. It is the place or places where they will be in custody which need to be considered. Secondly, it is not any part of the application made by the applicants that the Minister pay, or become responsible for, any of their legal costs. Of course, if an order or direction is made which will involve the applicants being moved from Port Hedland to Sydney, expense will no doubt be incurred by the Minister or his department. But this is a consequence of the custody in which the applicants are. The only person with authority to move the applicants from one place to another is the Minister. The position is no different from that which exists in countless cases where people are in prison and are required to give evidence in courts sitting in places remote from the place of imprisonment. Thirdly, the case is not about conditions which prevail in Port Hedland, or, for that matter, at the Villawood Detention Centre near Sydney. During the submissions, I detected some concern on the part of those representing the respondents that there was to be made some allegation that the conditions in Port Hedland were inadequate. That is not an issue in this case. Furthermore, the only evidence which there is about conditions in Port Hedland is that provided by the Department. That evidence was not challenged. The evidence is that the accommodation and services which are provided at the Centre are satisfactory.
The misunderstanding occurred, I think, because of submissions made by counsel for the applicants that the Minister placed the applicants in a detention centre remote from any centre of population thus making it very difficult for them to obtain legal advice and assistance. Objectively, that is true. That is what causes the problem in the present case. But it is not a matter for criticism of anybody. It is simply stating the fact as it is.
The next matter to which I should refer is evidence which there is concerning the possibility or probability of the applicants obtaining legal aid. There is firstly the affidavit of Mr. D. C. Sullivan who is a legal officer attached to the Litigation Branch of the Department. Mr. Sullivan deposed to having made enquiries of the New South Wales Legal Aid Commission, the Legal Aid Commission of Western Australia and the Legal Aid Commission of the Australian Capital Territory as to whether an application had been made on behalf of any of the applicants for legal aid to any of those agencies. Mr. Sullivan was informed that no such application had been made and, consequently, no grant of legal aid had been made.
Mr. P. A. Jackson is agent for the applicants' solicitor in these proceedings. He made inquiries of the Legal Aid Commission in Western Australia and was told that legal aid would not be granted by the Western Australian Legal Aid Commission if the proceedings were not being conducted in Western Australia. That was said to be the Commission's policy. Mr. Jackson also made inquiries of the New South Wales Legal Aid Commission and was told that the Commission may grant legal aid for representation and disbursements but was not able to comment one way or another. Decisions would have to be made by senior solicitors of the Commission not then available. In a later inquiry, Mr. Jackson was informed that the New South Wales Commission had granted legal aid to refugees for urgent applications in the Federal Court. He was also told that it would be very unusual for the Commission to finance travel arrangements to Port Hedland. His informant said, "My own view is that this should be funded by the Minister in the circumstances of the case that you have described".
In a further affidavit, Mr. Jackson said that he had been informed by an officer of the Western Australian Legal Aid Commission that, in the event that an application for legal aid were made in Western Australia (on the assumption that the case were transferred to the Western Australian Registry of this Court), the first option of the Commission would be to appoint an "in-house" solicitor from the Commission to act and appear. In the event that an application were made for external representation, the decision would be influenced by the availability of funds. These were "tight" at the moment. In the event that evidence was required to be taken at Port Hedland, the Commission would refer the solicitor acting (whether "in-house" or external) to the legal aid office in Port Hedland. Staff at that office would act as agents for the purpose of drawing affidavits and taking proofs of evidence. Funding would not be available for travel by external representatives to Port Hedland.
The question to be determined is what directions should be given in order that the case may be properly managed. The answer to that question will, in turn, depend upon a number of factors. It is desirable that the case be tried expeditiously and efficiently. That it be tried expeditiously and efficiently is in the public interest, the interests of each of the parties to the litigation and the interests of this Court, taking into account its overall need to administer its list in the most effective way. As earlier mentioned, the Court does not usually sit in Port Hedland. It would be most inconvenient for it to have to do so. The exercise would involve a judge and his or her personal staff travelling to Port Hedland and being in Port Hedland for whatever time was necessary and thus being away from the centre where the judge usually sits and is able to discharge a full range of judicial duties during an ordinary day. Furthermore, it would be necessary for court reporting staff and at least one court officer to be provided. An appropriate place would need to be made available for use as a court room where there would be adequate facilities including facilities for the media and other members of the public. The Court sits in public and the fact that it sits in a remote centre is no reason for cutting down the access of the public to the court room. There is no evidence which indicates the availability of satisfactory facilities for the Court in Port Hedland.
At this stage it is not possible to tell whether the applicants, or some of them, will give oral evidence. Desirably the usual practice of the Court will be followed. Evidence which they are to give will be made the subject of affidavits. If it is desired to cross-examine one or more of them, the witnesses will have to be present. I do not know whether video facilities are available in Port Hedland as they are in the main centres in Australia. But in a case where people will, perforce, need to give evidence through an interpreter, I do not regard it as likely to be satisfactory for their evidence to be taken by video let alone the telephone. These various considerations lead me to believe that the case cannot be tried conveniently in Port Hedland and must be tried in one of the more usual sitting places which the Court has. The nearest such places to Port Hedland are Darwin, where the Court has no resident Judge, and Perth. Perth is some 1,600 km from Port Hedland.
It would seem to be unwise for the case to proceed without the applicants being available. In any litigation problems may arise which unforeseeably bring about a situation in which a witness not thought to have been a necessary witness or not thought to have been one who would need to be cross-examined, is, after all, required to go into the witness box. In those circumstances the case cannot proceed satisfactorily unless the applicants are available at a place which is at least proximate to the court in which the case is heard.
At first sight, a sensible course would appear to be to transfer this matter to the Western Australian District Registry and then for the applicants to make an application for legal aid to the Western Australian Legal Aid Commission. Assuming this were granted, the matter could proceed as envisaged by the officer of the Western Australian Legal Aid Commission who supplied information to Mr. Jackson. The difficulty, however, is that one does not know whether legal aid will be granted. Nor does one know the extent to which legal aid will be granted. Past experience discloses that applications for legal aid usually take some time to process. That is understandable in the light of the large number of demands that are made on the resources of legal aid agencies. If I take the course of transferring the matter to the Western Australian District Registry, it will follow that the cases are unlikely to be heard for some months, certainly not until well into next year. If the matters are transferred to the Western Australian District Registry and legal aid is, nevertheless, refused, the matter is no further advanced. Furthermore, the applicants will have lost the benefit of the honorary representation which has so far been afforded to them. Effectively they will be without any representation. In this regard, it should be said that it would be quite unreasonable to expect that the generosity of counsel and solicitors for the applicants should extend to funding personally the expense of travelling to Port Hedland for the purpose of interviewing or taking statements from witnesses and conducting the hearing there.
Obviously Sydney and, for that matter Canberra, Adelaide, Melbourne and Brisbane are remote from Port Hedland much more so than is Perth. But these days, taking into account the availability of air travel, a journey of 1,600 km is not very much less convenient than one of 3,000 km or so. Sydney has two advantages. The first is the undoubted availability of honorary legal representation of the applicants. The second is the availability here of the Westbridge immigration "detention facility". It is adjacent to the Villawood Immigration Detention Centre. According to the evidence, the Westbridge Centre has suitable accommodation in which the applicants, including the two children, may be housed. From the point of view of the children it lacks one advantage. Because there is no demand for them, there is not available the educational facilities which are available at Port Hedland. But this matter will not involve the applicants needing to be in Villawood for very long. At the most three to four weeks would be involved. This should not be very interruptive of any schooling of which the applicants have the benefit. Once the hearing is over, they can be returned, depending on the outcome of the proceedings, to Port Hedland.
A further advantage in leaving the matter in Sydney is that the matter is proceeding in an orderly way. The Court in Sydney is able to find days to hear the case either late this year or early next year depending on when it is ready. The Court will not suffer the inconvenience it would suffer if it had to travel to Port Hedland. And the applicants, well represented as they are, are in a position to proceed forthwith.
Of course, the sticking point in this application from the Minister's point of view seems to have been not so much his objection to having the applicants present for a court hearing, but his objection to making them available for meetings with their legal advisers. The application which is now before me indeed is drawn, not on the basis that the applicants wish to come to court for the hearing of the matter, but on the basis that their presence is needed so that they may be interviewed and their cases properly prepared.
Having reflected on the matter, I have come to the conclusion that the best way of managing the case is to leave it in Sydney. This will necessitate its being transferred to the New South Wales Registry of the Court. Directions need to be made for the filing of affidavits by the applicants and other witnesses, if there be any. Those affidavits cannot be prepared unless the applicants' legal advisers are able to interview them. It is therefore appropriate to direct that the applicants be brought in custody to the Westbridge Centre and there housed until the case is concluded. So that the period during which that is necessary is as short as it reasonably can be, I have in mind directing that they be brought to Sydney three weeks before the date fixed for the hearing of the matter. That should give time for affidavits to be prepared and for the respondents to file any affidavits to be relied upon by them. The matter can then proceed to hearing. If it is appropriate, the applicants can then be returned to Port Hedland.
During the argument there was discussion about the powers of the Court to make such a direction. I have no doubt that this Court has power to make directions of this kind. The Court's power to make directions necessary to have cases properly prepared for trial derive from the Federal Court of Australia Act 1976 and from the Federal Court Rules, particularly Order 10 thereof. There is also power conferred by s. 96 (now s. 256) of the Migration Act 1958. Section 96 provides:-

"Where a person is in custody under this Act, the person having his or her custody shall, at the request of the person in custody, afford to him or her all reasonable facilities for making a

statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her custody."

The section, then s. 41, was one of the original sections of the Migration Act. In the course of his second reading speech, the then Minister for Immigration said (Hansard, House of Representatives, 1 May 1958, at 1398):-

"Yet another safeguard is provided by clause 41 of the bill. It may be that a person arrested as a deportee will not dispute the question of identity, but will contest the validity of the

deportation order. In these circumstances legal questions are involved, and should be decided by a superior court. Such a

hearing can, of course, already be secured by writ of habeas

corpus or by injunction. The bill, however, goes further. It ensures that persons arrested must be given all reasonable

facilities for obtaining legal advice and taking legal

proceedings."

Those remarks establish that the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. That is how the section should be construed.
One answer made by counsel for the Minister to the submission that the section had not been complied with was that the Minister's offer to provide appropriate facilities at Port Hedland to enable the applicants to be interviewed by their legal advisers was a sufficient discharge of his obligation. In the circumstances of this case, I do not so regard it. It is not a practical solution to the problem. This emerges clearly from the various matters I have stated in these reasons.
No solution to the problem will be completely satisfactory to all parties. I have found the matter a difficult one. I am satisfied, however, that the course I have decided on is the most practical one. It should lead to a comparatively early resolution of the litigation. The only cost to the Minister and his department will be the transport of the applicants to Sydney and back to Port Hedland, if that should be appropriate. The applicants will be able to be adequately represented for no charge to them and the Court will be able to manage the case more effectively and more efficiently than it could if the case were to be heard in Port Hedland.
Before I conclude, I should mention one further matter. I can well understand that the Minister would have a concern about the course I have decided upon because of an understandable anxiety that others in Port Hedland may make similar applications. I cannot assert that this will not happen. But each case must be looked at in the light of its own facts and circumstances. One of the matters which may distinguish this case from others is the honorary legal representation being made available to the applicants. Others may not be so fortunate. They are more likely to be represented by one or other of the legal aid agencies with the consequence that the course outlined to Mr. Jackson by the Western Australian Legal Aid Commission is more likely to be the one that is followed.
I do not propose today to make any orders or directions. When the matter is next in the list, counsel for the applicants are to bring in short minutes to give effect to my conclusions. The orders and directions should be comprehensive. They should deal with the transfer of these matters from the ACT Registry to the NSW Registry. They should provide, if that be necessary, for the service on the various Attorneys- General of notices under s.78B of the Judiciary Act 1903. In passing, I mention that two constitutional questions were mentioned in the run of the argument but not raised in this matter.
It should be understood that the only applications I have decided are those now before me. If similar orders or directions are to be sought in the other matters, these should be the subject of specific applications notified to the respondents in due time before the directions hearing takes place. There may be other matters which need attention. My concern is to endeavour to ensure that the directions given on the next occasion will be complete and adequate for the matter to come to trial at the earliest opportunity.
The matter is stood over to a date to be arranged with my Associate and notified by him to the parties.

[1994] FCA 685

21 SEPTEMBER 1994