SZQEG v Minister for Immigration
[2011] FMCA 882
•3 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 882 |
| PRACTICE AND PROCEDURE – Application to vacate hearing date – where originating application made in April 2011– where applicant originally unrepresented – where applicant detained in Perth and then transferred to Hobart – where neither the court nor respondent’s representative informed of applicant’s transfer by the Minister – where applicant gained representation after transfer and in close proximity to date set for hearing – whether to grant adjournment – whether indemnity costs should be ordered against the Minister. |
| Applicant: | SZQEG |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 808 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 November 2011 |
| Date of Last Submission: | 3 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | John William Mountford |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Hearing date vacated.
Matter to be transferred to the Melbourne Registry of this Court which shall hold a directions hearing upon a date to be advised to the parties.
Applicant’s lawyer to file a notice of address for service within 7 days.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 808 of 2011
| SZQEG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
There comes before me this afternoon an application to vacate a hearing date in respect of a matter where the originating application was lodged on 27 April 2011. The applicant was then a detainee in the Curtin Detention Centre. For reasons which are not clear, the application was lodged in Sydney and fell into my docket. On the first court date, the applicant appeared by video-link. He was not represented. At that time, the matter was set down for hearing in Sydney on 18 August 2011.
If the applicant had remained unrepresented, he would have been required to be brought to Sydney for the purposes of the hearing. However, on 8 August 2011 I made orders adjourning the matter to a date between 7 to 11 November for hearing in Perth, where I would be on circuit. At that stage the applicant remained unrepresented.
At some time thereafter, the applicant was removed from detention in Curtin and taken to detention in Tasmania.
It would appear that the Minister did not have the courtesy to inform either the court or even his own solicitors of this fact. This is not the first time this has happened. Indeed, it is becoming remarkably commonplace and is of immense inconvenience both to the court and to those persons who have been so removed in relation to their cases.
It would appear that a few days ago the applicant obtained the assistance of Mr Mountford, a solicitor in North Hobart.
Mr Mountford has been to see the applicant and he has been in communication with the court. He is unable to represent the applicant at the hearing on 7 November 2011 and he has told me that as at this afternoon, he has not had sufficient time to come to a view as to whether the Independent Merits Reviewer whose decision is being reviewed fell into jurisdictional error in the manner of reaching his decision. He has asked that the hearing be vacated and suggested to the court that the matter be removed from the Sydney docket and placed into the Melbourne docket of this court so that a Federal Magistrate from Melbourne can attend in Tasmania and hear the case. He has been informed that if this happens, his client is unlikely to obtain a speedy hearing date. It is possible that one will be obtained in the early part of next year and that the situation in Melbourne for hearing dates is not substantially better than that in Sydney.
In the result, this applicant, who has already been in detention for some considerable time, will have to remain in detention for a further time. This is not a result that the court would wish to see. The stress placed upon persons in detention has been the subject of considerable publicity over the last few months and the court would not wish to do anything that would add to that stress. It seemed to me that if there is any blame to be laid at anyone’s feet in this matter it can be laid squarely at the feet of the Minister whose inability to coordinate movements and court cases has brought this situation about. Also, I would be most reluctant to vacate a hearing date one working day away from it. But these are exceptional cases and I am impressed by the genuine concern for his client expressed by Mr Mountford.
I propose to allow the application, as inconvenient as it will be to the court, which has already made arrangements to attend in Perth on that day, and I will transfer the matter into the Melbourne docket, although I cannot guarantee any hearing date. Mr Mountford has been in communication with this court and has attended this hearing. Subject to anything that Mr Corbould would have to say – and I fully accept that this is none of his doing or that of the Australian Government Solicitor for whom he works – I would propose to order that the Minister pay Mr Mountford’s costs on an indemnity basis for its failure to provide any information either to his own solicitors or to the court about the applicant’s movements and thus bring about the inconvenience and unnecessary distress and delay that has been occasioned.
Mr Corbould argues that an order of this type would be unfair.
He reminds the court that the applicant was originally unrepresented and remained unrepresented until he did move to Tasmania and that it was not the failure of the Minister to advise parties of his removal that caused him to be represented and caused the application to be made. He says that the applicant could have availed himself of legal assistance in Curtin or when he first moved to Tasmania. I am unaware of what legal assistance is available at Curtin. But I take his point that perhaps the causation of the application is more the recent obtaining of legal advice than the move itself, however inconvenient the move has proved to be. I will not make the order I suggested; I will reserve the costs so that they may be dealt with by the Federal Magistrate who hears the substantive case.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Date: 11 November 2011
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