SZEQQ v Minister for Immigration
[2005] FMCA 561
•15 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQQ v MINISTER FOR IMMIGRATION | [2005] FMCA 561 |
| MIGRATION – Visa – protection visa – application for review of RRT decision not to grant a protection visa. PRACTICE & PROCEDURE – Adjournment – applicant in immigration detention – where applicant moved by Respondent’s department from NSW to a detention centre in South Australia prior to hearing – applicant unable to obtain legal advice because of move. |
Lindon v Commonwealth (No.2) (1996) 136 ALR 251
| Applicant: | SZEQQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3255 of 2004 |
| Delivered on: | 15 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 April 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
I direct the proceedings SZEQQ v Minister for Immigration (SYG 3255 of 2004) and SZEQS v Minister for Immigration (SYG 3261 of 2004) be heard together.
The Applications will be adjourned to Tuesday, 24 May 2005, for Final Hearing at 10:15am at Court 7B, Level 7, John Maddison Tower, 88 Goulburn Street, Sydney.
I DIRECT the Respondent to do all things necessary to ensure that both Applicants appear personally before the court on the next occasion.
I require the services of a Mandarin interpreter for the proceedings on 24 May 2005.
I DIRECT the Registrar to forward copies of the court book and these orders to the lawyer previously authorised to provide advice to the Applicants, Mr Michael McAuley, Barrister, Henry Parkes Chambers, Level 10, 299 Elizabeth Street, Sydney within 14 days.
I DIRECT the Respondent to ensure that the Applicants are returned to the State of New South Wales in sufficient time before the hearing to allow the nominated panel lawyer to hold a conference with the Applicants with the aid of an interpreter.
I DIRECT the Respondent to forward a copy of the relevant documents to the Applicant SZEQS within 14 days.
I NOTE the Respondent has undertaken to pay the charges for the video link for these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3255 of 2004
| SZEQQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is a matter which I consider needs an adjournment. The concern that I have is that when these people commenced their applications, as they had a right to do even if their applications may, in the long run, be shown to be futile, they were being held in Sydney and were able to be brought to court. Before they had a chance to obtain the legal advice that the court saw fit to refer them to, the Respondent removed them from the State of New South Wales to the State of South Australia, which had two effects:
i)They could not physically see a lawyer, although they may have been able to obtain legal advice over the telephone by way of telephone interpreter service.
ii)The other thing was they could not physically attend court, and we now have a situation where the proceedings are being dealt with by way of video link.
The third matter, which has been resolved, and it is to the credit of counsel for the Minister that it was brought to my attention that the Applicant SZEQQ was distressed partly because of the fact that her husband, Applicant SZEQS, was not allowed to be with her. It is still a matter of concern that it should have happened. .
The concern that I have is I think that this is a very unsatisfactory way for proceedings relating to important matters in people's lives to be dealt with. The court has an obligation to not only dispense justice, but be seen to dispense justice. The concern that I have is that the Respondent, knowing that the Applicants had commenced the proceedings in this court in Sydney, and knowing that they had been referred to a scheme where they would obtain legal advice, within that knowledge then removed them from Sydney to another state so that they could not obtain that legal advice and so they could not attend court personally.
It may well have been possible for other means for them to have obtained some legal advice, such as the Telephone Interpreter Service. It is a less than perfect solution. The fact that on the face of it, the case of each Applicant does not appear strong is not, to my mind, relevant to that. It so often happens that if one looks at human rights cases that it is usually unpopular and difficult people who are dealt with in an unfortunate way. Attractive, intelligent and articulate people are usually not the subject of discrimination.
I am mindful of the fact that, as Kirby J has said in Lindon v Commonwealth (No. 2) (1996) 136 ALR 251, even a weak case deserves its time in court, and if it is to have its time in court, it should be done in such a way that, as far as possible, it should be fair.
It is for these reasons that I am not prepared to proceed with the hearings today, and in fact I am not prepared to have these cases dealt with by way of video link. I intend to adjourn these proceedings to a date in May.
I propose to direct that the Respondent is to take whatever steps are necessary to produce the Applicants before this court for the purpose of the hearing. I also propose to direct that the relevant documents should be re-referred to the same adviser on the panel so that he may conduct a face to face conference, with the aid of an interpreter, with each of these Applicants before the proceedings commence.
I propose to order a transcript of the reasons for this decision.
I will make it quite clear that it is obvious to me that different branches of a large department have been involved, and there is no suggestion that the Respondent Minister has acted in any way maliciously or in any way intending to hinder or thwart the outcome of these proceedings. I think that is quite clear, and I accept the fact that it is inadvertent. It is unfortunate, but I would not take it any higher than that.
When the case resumes, it will resume at a court here in Sydney. The Applicant will be present at the court, and I will be the one hearing the case. The same lawyers for the Minister will be appearing, but the Applicant will be in the same court as they are. I will also arrange for a Mandarin interpreter to be available.
I must warn the Applicants though that they should not see this as any sort of an indication that they are going to win their cases. It is just my concern that they should be dealt with fairly before the court so that they have the chance to put what case that they have before the court for consideration.
The cases will be heard together so that both Applicants will be able to be present in court at the same time.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 13 May 2005
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