SZQUE v Minister for Immigration & Anor
[2011] FMCA 1011
•16 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 1011 |
| MIGRATION – Application for review of recommendation of Independent Merits Reviewer – whether Minister should be ordered to pay for video link to allow represented applicant to participate in hearing. |
| Federal Magistrates Act 1999 (Cth), ss.66, 67, 68, 69 Migration Act 1958 (Cth) |
| DZAAA and Others v Minister for Immigration and Citizenship and Others (2011) 250 FLR 423; [2011] FMCA 434 Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 Minister for Immigration and Citizenship v MZYLF [2011] FCA 1211 SZQCY v Minister for Immigration & Anor [2011] FMCA 358 |
| Applicant: | SZQUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER TYLER (IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER) |
| File Number: | SYG 2425 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 16 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gormly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The first respondent pay the costs of a video link of the hearing so that the applicant is able to participate in Curtin Detention Centre in the hearing to be conducted in Sydney.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2425 of 2011
| SZQUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER TYLER (IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER) |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In the particular circumstances of this case I am of the view that the Minister for Immigration and Citizenship should pay any cost of a video link provided at the final hearing of this matter so that the applicant is able to participate in Curtin Detention Centre in the hearing of his application for judicial review that is to be conducted in Sydney.
I am of that view for reasons similar to those of North J in Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 which I find persuasive. Insofar as Smith FM expressed a contrary view in SZQCY v Minister for Immigration & Anor [2011] FMCA 358, as North J pointed out in MZYLE at [16], his Honour did not intend to establish a general principle that the Minister should not be required to provide for the attendance of a represented applicant (and see generally the comments in DZAAA and Others v Minister for Immigration and Citizenship and Others (2011) 250 FLR 423; [2011] FMCA 434 at [15] – [21]).
In MZYLE the applicant had been detained on Christmas Island and later moved to the Northern Territory. At the time the Federal Magistrates Court sitting in Melbourne heard the judicial review application the applicant had legal representation in Melbourne, notwithstanding that he was not physically present in Victoria. The Minister was asked, and agreed, to bring the applicant from detention in Darwin to detention in Victoria so that he could attend the hearing in the Federal Magistrates Court. On the Minister’s appeal the applicant sought to participate by video link. As in this case, the Minister was prepared to facilitate access to a video link, so the real issue was whether the Minister should pay for the video link (MZYLE at [10]).
I am of the view that, as in MZYLE, the applicant in this case should be able to participate in the hearing by video link, notwithstanding that his appearance may not, strictly speaking, be “necessary” in order to instruct his lawyers in the sense to which the solicitor for the Minister referred. No issue is taken or apparent about the availability of suitable video link facilities. As in MZYLE at [21] the issue is “whether it is reasonable for [the applicant] to want to witness the hearing”. This is not an appeal and in that sense there is some distinction between the facts of this case and MZYLE, but I am nonetheless of the view that the general factors considered by North J are relevant in this case.
The circumstances of this case are not uncommon, in that applicants for judicial review detained in Western Australia are filing applications for judicial review in Sydney, notwithstanding that Perth is the nearest registry to the place of detention. I do not know why that is happening. I do not know what facilities are made available to asylum seekers in detention or what information is provided about their rights of judicial review in relation to decisions of Independent Merits Reviewers or, indeed, the fact that an application for judicial review may be filed in Western Australia. It is peculiarly within the power of the first respondent to provide information to detainees in that respect.
This is not a case in which there has been any application for the matter to be transferred to Perth. The applicant (and the respondents) are now represented in Sydney. In such circumstances it is appropriate that the matter be heard where both parties have legal representation. If the applicant did not have legal representation, it might have been more appropriate for the hearing to proceed in the registry closest to his place of detention in order to his participation in the proceedings at a reduced cost. This is not such a case.
In any event having regard to the matters considered by North J about the nature of proceedings such as these and the benefits to an applicant of participation in a hearing of this nature, notwithstanding the absence of strict necessity it is reasonable for the applicant to wish to witness the hearing of his application for judicial review. As North J observed in MZYLE, cases such as these “have direct personal consequences for asylum seekers” and “may impact on their life and liberty” (at [23] and see the consideration of relevant factors in DZAAA).
Moreover, it is important that an asylum seeker who has arrived in Australia by boat and is in a detention centre and may well have had very little contact with the “outside world” should understand that the Court hearing his or her judicial review application is independent from the Department of Immigration. That would be facilitated if the applicant is able to participate in the hearing in person or by a video link.
The real issue is whether the Minister ought to bear the cost of the video link as the applicant contended. The Minister submitted that the applicant should bear the cost of the video link, notwithstanding that he is an asylum seeker who is in detention. The provisions of the Federal Magistrates Act 1999 (Cth) in relation to video links do not expressly address the cost of a video link (see ss.66 – 69).
As I understand it, for a video link to be put into place in relation to the Curtin Detention Centre, the facilities are such that it is necessary for the call to be made from the Curtin Detention Centre. The need for a video link in this case arises because the applicant is in detention in remote Western Australia. The applicant is in Western Australia because he is detained under the Migration Act 1958 (Cth), an Act that is, unusually, administered by the other party to the litigation. This is not the normal situation in which video link facilities are sought by a party to proceedings. These are proceedings of a special kind. The place of detention, as North J pointed out in MZYLE at [26], is “determined by officers of the Department”, not by the applicant.
The hearing of the application and the applicant’s legal representative is in Sydney. There are detention facilities in Sydney, although there is no evidence before me as to the extent of the availability of such resources at the present time. It may be open to the Department, however, to utilise those facilities. If that necessitated a slight adjustment to the hearing time, I have given the parties liberty to apply and it would be open to the respondents to seek to exercise that liberty to apply in order to facilitate participation in person by the applicant in the hearing.
On balance, I have had regard to the fact that no general principle was set down in SZQCY and to the contrary considerations addressed in detail in DZAAA. I consider that in the interests of judicial comity, I should follow the approach taken by the Federal Court in MZYLE (and also see Minister for Immigration and Citizenship v MZYLF [2011] FCA 1211). I see no reason to distinguish the approach taken in MZYLE in the circumstances of this case. The fact that North J was considering an appeal is not such as to mean that the principles to which his Honour referred, based on considerations of natural justice, are not appropriate. Indeed such considerations are perhaps even more appropriate in relation to the hearing at first instance of a judicial review application.
In circumstances where the application has been filed in Sydney, the applicant has obtained legal representation in Sydney and none of the parties have applied to the court to have the hearing held in Western Australia or, somewhere near the Curtin Detention Centre (if there is such a place) such that the applicant can appear in person, the need for a video link arises from the fact that the applicant is detained by the Department in Western Australia under the Migration Act.
Notwithstanding that he is the moving party to the judicial review application, in proceedings of this nature the applicant should have the opportunity to participate in the hearing in the interests of procedural fairness. The circumstances of this case, as in MZYLE, justify an order that the Minister meet the cost of the video link, insofar as such a cost is incurred. As indicated, it may well be that that follows in any event because the call to the court must be initiated from Curtin. It would not in those circumstances be a charge imposed by the court for providing an outgoing video link.
In MZYLE North J expressed the view that he expected that it followed that the Minister would also pay for the interpreter necessary to make the arrangement effective (and see DZAAA). There was no argument in relation to that issue. It would follow in this case that the Minister should also provide an interpreter in order to achieve the purpose of affording the applicant procedural fairness (see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 and DZAAA). It is not efficient for an interpreter provided for such an applicant to be present in the court room in Sydney where the applicant is in a detention centre elsewhere. Given that an interpreter is normally provided by and at the expense of the Minister in Western Australia where an applicant in Curtin is self-represented, in this case one would expect that that should also be the case. However, if there is any suggestion to the contrary, the parties have liberty to apply and the matter may be relisted for further argument.
I note that the applicant did not seek to appear in person at hearing. However were he to cease to have legal representation the issue of such an appearance would arise (see MZYLE at [20] and SZQCY at [34]) and I would expect the Minister to relist the matter for directions in such a situation.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 19 December 2011
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