SZQCY v Minister for Immigration & Anor
[2011] FMCA 358
•16 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 358 |
| MIGRATION – Practice and procedure – application for judicial review by offshore entry person from remote location – represented by counsel and not required at hearing – whether Court should order the Minister to produce the applicant at hearing or to facilitate video transmission of the hearing. |
| Constitution, s.75(v), Ch.III Federal Magistrates Act 1999 (Cth), ss.52, 52(2), 66, 67, 68, 69, 72 Federal Magistrates Court Rules 2001 (Cth), r.8.01 Migration Act 1958 (Cth), ss.46A, 198, 474(7), 476, 476(2)(d) |
| BZAAB v Minister for Immigration & Citizenship [2011] FCA 429 International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, (2010) 272 ALR 14 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 South Australia v Totani [2010] HCA 39, (2010) 271 ALR 662 |
| Applicant: | SZQCY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 644 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 16 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Order 12 made on 19 April 2011 is vacated.
Any party making a request for the use of videoconferencing facilities at the hearing must lodge the requisite forms with the Federal Court Registry no later than 4 July 2011.
The timetable made on 19 April 2011 is amended as follows:
The time provided for a Court Book is extended to 20 May 2011.
Any subpoenas or notices to produce documents to the Court prior to the hearing must be issued and served no later than 3 June 2011, and shall be made returnable at a listing before a Registrar in Sydney at a time and place appointed by the Registry.
The applicant has leave to file and serve an amended application including any additional grounds of review with complete particulars of each ground on or before 10 June 2011.
The applicant must file and serve any additional affidavits, including in relation to the application for extension of time, on or before 10 June 2011.
The first respondent must file and serve any amended response under Rule 44.06 and any affidavits in support on or before 27 June 2011.
Costs in relation to today’s listing are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 644 of 2011
| SZQCY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is a directions listing in a matter commenced on 4 April 2011. It is one of the first applications under s.476 of the Migration Act 1958 (Cth) which have been placed in my docket involving an ‘offshore entry person’ as defined in the Migration Act. The Court’s jurisdiction in relation to such applications has not been challenged by the Minister, and arises by reason of the High Court’s decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, (2010) 272 ALR 14.
In short, the High Court gave relief under its Constitutional jurisdiction in an application for judicial review of administrative action referable to a non-compellable power of the Minister under s.46A of the Migration Act to allow an offshore entry person to make a valid visa application, in circumstances where the Minister has set up an administrative scheme for assessing the refugee status of offshore entry persons when considering the possible exercise of that power. The High Court recognised that its constitutional jurisdiction rested, inter alia, on s.75(v) of the Constitution (see [51]). This Court’s statutory jurisdiction under s.476 in relation to “the same original jurisdiction” is therefore available, noting that migration decisions under s.46A are not excluded by the reference in s.476(2)(d) to s.474(7). The Court may also have jurisdiction in relation to an anticipated ‘migration decision’ which would be constituted by the removal of the applicant from Australia under s.198 following an adverse recommendation in relation to the exercise of the s.46A power.
The decision-making by the Minister, his officers, and contractors, in relation to offshore entry persons usually occurs while they are held in immigration detention after being detained in remote locations of Australia. The present applicant indicated in his application to the Court that he was held in Curtin Immigration Detention Centre in Western Australia, which is on the Derby Highway, Derby. His counsel informs the Court that the applicant remains held in that location.
His application indicated that it was a document prepared by his counsel who is located in Sydney. It was filed in the Sydney Registry of the Federal Magistrates Court. The applicant thereby indicated a choice of venue in relation to the exercise of the Court’s jurisdiction, and this led to the matter being assigned to myself, being a Federal Magistrate assigned to hearing such cases in a courtroom in Sydney available for that purpose.
Under the Court’s case management practices, which are applicable in relation to this jurisdiction as in other general federal law jurisdictions, the Federal Magistrate receiving the matter acquires the responsibility of directing all procedural matters and of exercising the substantive powers of the Court in the matter. In matters such as the present, important procedural matters for my direction include questions of venue, and the mode of hearing, insofar as it may depart from a hearing in a courtroom involving the attendance of parties, their legal representatives, or witnesses.
These matters are addressed in the Federal Magistrates Act 1999 (Cth). In relation to venue, s.52 allows the Court “to sit at any place in Australia”, but s.52(2) allows that directions may be made that a proceeding shall be “conducted or continued at a place specified in the order”. This appears to anticipate that, absent any general or specific directions to the contrary, the proceeding is to be conducted in the location where it is commenced. No general practice directions have been given by the Court altering this situation in relation to offshore entry persons. Rather, the Chief Federal Magistrate has designated a panel of Federal Magistrates assigned to all of its Registries to direct and hear cases in accordance with the Court’s normal practices.
Rules made in relation to applications for change of venue appear in r.8.01 of the Federal Magistrates Court Rules 2001 (Cth). It provides:
8.01Change of venue
(1)A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2)In considering an application, the Court must have regard to:
(a)the convenience of the parties; and
(b)the limiting of expense and the cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
In relation to the modes of hearing in the Federal Magistrates Court, the Federal Magistrates Act establishes the Court under Chapter III of the Constitution, and thereby anticipates that the Court will conduct the proceedings under procedures conformable with the recognised requirements of Australian judicial process. At the centre of that process is an obligation to afford every party an opportunity to attend a “hearing” which “takes place before a judge at a time and place” reasonably notified to every party (cf. Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 at [141]‑[145], see also French CJ at [54], and Gummow and Bell JJ at [88], see also French CJ in South Australia v Totani [2010] HCA 39, (2010) 271 ALR 662 at [62]).
Normal judicial practice envisages that such a hearing will occur viva voce in a courtroom available to the appointed judge. However, Division 5 of Part 6 of the Federal Magistrates Act contains provisions allowing the “use of video links or audio links”. Sections 66, 67 and 68 give the Court a discretion “for the purposes of any proceeding” to “direct or allow” respectively “testimony to be given”, or “a person to appear before the Federal Magistrates Court”, or “a person to make a submission to the Federal Magistrates Court” by way of video link or audio link. There is no express provision of the Act or the Rules empowering a Federal Magistrate to “direct or allow” the establishment of a video or audio link in relation to a hearing conducted in his or her courtroom for other purposes, including for the purpose of permitting a person only to observe or hear the proceedings in the courtroom.
Section 69 provides conditions for the use of video links and audio links under the Act. In particular, in relation to either mode, the Federal Magistrate is required to be satisfied, for example, in relation to videos:
69Conditions for use of video links and audio links
Video link
(1)The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to a video link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the video link:
(a) the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:
(i)giving the testimony; or
(ii)appearing; or
(iii)making the submission;
as the case may be, by way of the video link;
(b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting;
(c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;
(d) such other conditions (if any) as are imposed by the Federal Magistrates Court or the Federal Magistrate.
Section 69 allows further conditions to be prescribed by rules but I am unaware of any relevant rule. Section 72 empowers the Federal Magistrate to make such orders as he or she “thinks just for the payment or expenses incurred” in connection with a video or audio link directed under the Act. It is difficult to identify the source of any other power to order a party or non-party to incur such expenses unwillingly.
The Court has available facilities provided by the Federal Court in that court’s various court buildings in relation to video and audio connections. However, as I understand it, this does not apply in Sydney. In Sydney the Federal Magistrates exercising general federal jurisdictions are not accommodated in the premises of the Federal Court, and do not have access to its premises. We are located at the other end of Hyde Park, in premises rented from the State Government. Those premises, at least until October 2011, include one courtroom wired with the relevant equipment, and Federal Magistrates have access to that courtroom subject to its availability.
A protocol has been published by the Court in relation to applications for the use of video equipment, which applies ‘broad principles’:
·The use of video link is at the discretion of the Federal Magistrate having control of the matter
·Parties/legal practitioners seeking to use video links should bring their request to the attention of the Court at the earliest opportunity
·Parties/legal practitioners initiating the use of video links will usually be required to meet the cost of using the video conference equipment
·Parties/legal practitioners will not usually be charged for court initiated use of video conference equipment
·A federal magistrate may waive the charges for using video conference equipment in exceptional circumstances
The Federal Court Registry, which administers the receipt and processing of requests for video conference facilities, has published charges for the use of the equipment, and a set of directions indicating “Responsibilities of party/organisation requesting a video conference”, which I am advised are also followed in relation to access to the video equipment available to Federal Magistrates in Sydney. A publication in February 2005 entitled: “Charging for use of videoconferencing by the Federal Magistrates Court”, indicates that at that time it was estimated that a 60-minute video link between two Federal Court sites would be charged at $522. I am uninstructed as to the present charging regime, and as to the relevant budgetary situation of my Court, in relation to the provision of video and audio links at its expense.
In effect, the provisions of the Act, the Rules and the administrative procedures which I have referred to above, put the onus on a party seeking the exercise by the Court of powers to allow or require the use of video or audio links, to apply to the Federal Magistrate with the case management of the matter to authorise such a link and to give any necessary directions as to how it will be charged.
In relation to persons held in the Minister’s custody under immigration detention, recent authority in the Federal Court, which in my respectful opinion should be followed in this Court, is found in the judgment of Logan J in BZAAB v Minister for Immigration & Citizenship [2011] FCA 429. As I understand his Honour’s references to the circumstances in that case, an applicant in immigration detention in Brisbane was due to appear before his Honour without legal representation, but this did not occur due to his being removed to Sydney by the Minister and being rendered unavailable to appear. There may have been some confusion whether the Court would allow attendance at a directions hearing by telephone but, as his Honour indicates in [2], his Honour had not authorised such a procedure, and his Honour expressed an opinion with which, with respect, my own experience would have sympathy, that:
… the remoteness of interpersonal communication offered by telephone, to a person whose first language is not English, and who is in custody, would make a directions hearing by telephone impractical.
I accept, however, that at times this impracticality may need to attend some directions hearings, depending on the importance and circumstances of the listing.
His Honour also said:
3When a person is arrested and comes into the custody of the Minister, knowing by his officers that that person is due to appear in a court created under the Constitution by the Parliament to exercise the judicial power of the Commonwealth, it is incumbent on the Minister, as custodian, to produce that person, unless excused from so doing by the Court. It is one of the fundamental responsibilities that falls upon those who deprive a person of their liberty not to interfere, by so doing, with that person’s access to Commonwealth judicial power.
…
5It is no part of the role of the Court to have the general administration of the Migration Act 1953 (Cth); that is a subject allocated to the Minister, by Her Excellency the Governor‑General, under the Administrative Arrangements. The Minister and his officers are perfectly entitled, in the event that they believe there is lawful cause for so doing, to arrest someone and hold them in custody if it is considered that a term of a bridging visa has been breached. The obligation though, having so done, is to produce the person, not to prevent them from attending court by not producing. …
It was an appreciation of the above matters which influenced me at the first court date in the present matter on 19 April 2011, when I directed a timetable leading to a hearing on 11 July 2011 at 10.15 am in my courtroom in Sydney. They caused me to include directions:
12.If the applicant is held in immigration detention, the first respondent must arrange for his or her attendance at the hearing, unless the applicant will be represented by a lawyer and the lawyer notifies the first respondent that the applicant’s attendance is not required.
13.Any application to dispense with the preceding order, or for a change of venue for the hearing, or for the attendance of any party or witness by audio or video link, shall be made by application in a case supported by an affidavit explaining reasons for the application and the arrangements proposed. Any such application must be filed and served no later than 6 May 2011 and shall be returnable on a date obtained from the Associate.
In retrospect, I think that the deadline of 6 May 2011 was perhaps too early, although it attempted to encourage the parties on both sides to start turning their minds to the proper venue and mode of hearing in the matter, rather than leaving this until the eve of the appointed hearing in Sydney.
Directions which I have subsequently made in offshore entry person cases have set a deadline in terms of the above order 13 of about five to four weeks before the hearing. But I would encourage the parties on both sides of the bar table in matters in my docket to address these issues as early as possible, particularly if applications are going to require an evidentiary foundation to show the necessity for the directions which are sought, and what arrangements are proposed in relation to hearings in venues away from Sydney, or arrangements for telecommunication connections which are not to another Federal Court-controlled video courtroom.
My above directions have given rise to the interlocutory application which is before me today, brought by the Minister. The Minister seeks that I should vacate order 12, and make no order requiring him to arrange for the attendance of the applicant in person or by video or audio connection at the hearing. In particular, that I should not order the Minister to arrange for video facilities between Sydney and the Curtin Detention centre, assuming that they can be arranged to the satisfaction of the Court.
For his part, the applicant by his counsel did not seek any orders for change of venue nor otherwise under order 13. Instead, his counsel opposed the Minister’s application. He also submitted that, if I vacated order 12, I should at least order the Minister to arrange and pay for a video connection to Curtin Immigration Detention Centre which would enable his client to observe the proceedings.
Neither party has put any evidence before me showing that satisfactory arrangements are available at that location, but I shall assume that such evidence might be available, including to arrange for the applicant to be present at a suitable place to observe the hearing when it commences at 8.15 am local time.
Counsel for the applicant informed the Court that his client did not intend to make an affidavit in the proceedings and was not a witness. Counsel has been appearing for the applicant on a direct client instructions basis, under the rules of the New South Wales Bar.
At times that procedure gives rise to uncertainty, because there is no assurance that counsel accepting such instructions from time to time will necessarily appear at the hearing. However, the same uncertainty arises in migration cases where an applicant has a solicitor on the record, since solicitors not infrequently file withdrawals shortly before a hearing. This is part of the difficulties facing this Court in its migration jurisdiction.
However, there is every indication in the present case that the applicant’s counsel will be appearing on behalf of the applicant at the hearing, and he indicated that he may receive some reimbursement for his efforts from Legal Aid. This is, therefore, a case where, as counsel conceded, none of the provisions of sections 66, 67 or 68 are applicable.
The applicant’s counsel submitted, however, that the attendance by his client in person at the hearing, or as second best by observing the proceedings by video connection, was a necessary conjunct of the principle of ‘open justice’. This term has been invoked in judgments, mainly in relation to non-publication orders or the hearing of proceedings in ‘closed court’ (see, for example, Kirby P in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50 and following, and also Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 at 520 per Gibbs J).
Counsel, in particular, referred to ancient authority quoted by Kirby P in Raybos:
In the record of the trial of Lieutenant Colonel John Lilburne ((1649) 4 How St Tr 1269 at 1273) there is contained Lilburne’s plea:
“That by the laws of this land all courts of justice always ought to be free and open for all sorts of … people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place, where the gates are shut and barred, and guarded with armed men: and yet, Sir, as I came in, I found the gates shut and guarded, which is contrary both to law and justice.” …
Counsel did not refer me to any particular power which I had under the Federal Magistrates Act to make orders requiring the Minister to produce an applicant at the hearing or at the end of a video link to the courtroom, where this would occur only so that the applicant can observe the proceedings, and where the applicant will be appearing at the hearing by way of his legal representative and is not required at the hearing. However, counsel’s submissions may be understood as invoking a general implied authority, which would be inherent to the exercise of my judicial commission under Chapter III of the Constitution. Some inherent powers in relation to this might be available as a conjunct of the obligation on the Minister referred to by Logan J in BZAAB.
I am prepared to assume that there is power to order another party to produce a party held in custody to allow that person to observe the hearing, and that Div.5 of the Federal Magistrates Act does not set out an exhaustive code in relation to the Court’s powers to order the other party to make satisfactory arrangements for that party to observe proceedings from other premises. However, that power must be exercised judicially and for good cause, in circumstances where the Act itself has set out a code governing the use and payment for video and audio links ‘for the purposes of the proceeding’.
The Court, in my opinion, should be cautious in making such orders outside the confines of Div.5, and should do so only if satisfied that this is necessary to the administration of justice in the particular matter.
I am additionally cautious due to my knowledge of the possibly limited resources available to my Court for such video connections in relation to proceedings conducted in Sydney, even if they are to be paid for by one of the parties.
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.
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.
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.
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.
Taking into account all the submissions made on behalf of the applicant’s counsel, I am not persuaded to make any order today other than to vacate order 12 as previously ordered.
My acceding to the Minister’s application today, does not preclude any person, whether the Minister or the applicant or those helping the applicant, on their own initiative from seeking to use the video facilities available in this building. I am only deciding that I shall not order the Minister to undertake that responsibility on the application of the applicant.
I shall fix a deadline for any such request to be made. If the necessary forms are completed, including with their undertakings as to the costs of a proposed video link, and if the facilities in this building are available at the time of the appointed hearing, and if I am satisfied as to the suitability of the conditions proposed for the applicant to observe the hearing at Curtin Immigration Detention Centre, then I might approve such a procedure. If both parties join in such an application then I might give my approval in Chambers. Otherwise, it will be necessary for the moving party to seek a further directions listing seeking my approval, supported if necessary by appropriate affidavit evidence.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 19 May 2011
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