SZQVO v Minister for Immigration
[2012] FMCA 30
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 30 |
| MIGRATION – Review of decision of Independent Merits Reviewer – interlocutory application – applicant in immigration detention and represented – whether the applicant should appear at the final hearing via video link – whether the Minister for Immigration and Citizenship should bear this cost – application dismissed. |
| Migration Act 1958 (Cth), ss.189, 476 Federal Magistrates Court Rules 2001 (Cth), rr.1.06, 4.08 Federal Magistrates Court Act 1999 (Cth), s.3 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2584 of 2011 |
| Judgment of: | Nicholls FM |
| First Court date: | 23 November 2011 |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| Appearing for the Applicant: | Mr M McCrudden |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Appearing for the Respondents: | Mr A Wood |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2584 of 2011
| SZQVO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
On 14 November 2011 the applicant in these proceedings filed an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a “migration decision” made by Mr Hugh Wyndham, the second respondent in these proceedings and identified also as an “Independent Merits Reviewer”. The reviewer recommended to the first respondent, the Minister for Immigration and Citizenship, that the applicant did not meet the definition of “refugee” as set out in Art.1A(2) of the Convention Relating to the Status of Refugees,[1] and that therefore Australia’s protection obligations were not engaged towards him.
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The issues raised in the application flow generally from the direction provided by the High Court in matters of this type in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14.
The Interlocutory “Application”
At the first Court date in this matter both parties were represented by solicitors. The applicant’s solicitor sought an order that the first respondent provide, and pay for, a video-link facility to enable the applicant to “participate” in the final hearing of this matter from a place of immigration detention.
The application was not made in the way contemplated by the Federal Magistrates Court Rules 2001 (Cth) (“the Court’s Rules”) (see r.4.08). No Application in a Case has been filed, nor was there any supporting evidence in support of the application made.
Nonetheless, pursuant to r.1.06 of the Court’s Rules, and taking into account s.3 (“operate as informally as possible in the exercise of judicial power”) of the Federal Magistrates Court Act 1999 (Cth) (“the Federal Magistrates Act”), I granted leave to the parties to make written submissions on this question.
Written submissions have been filed by both parties, and both were prepared by respective counsel.
However, the deficiency in critical information in the applicant’s submissions, and the absence of any supporting affidavit as to relevant facts, ultimately weighs against the applicant in otherwise what would appear to be, on its face, possibly worthy circumstances in favour of the order sought.
The Minister to Pay for an Interpreter
The applicant’s submissions also seek an order that the first respondent provide an interpreter at the place of detention to interpret the hearing to the applicant in the Farsi language.
No leave was granted to the applicant to make submissions in this regard. Indeed no such application was made at the first Court date. In this regard, the applicant’s counsel has taken a liberty not available.
But even if the Court were to treat this “application” in the same way as the “video-link application”, it would not succeed for three reasons.
The first is that it does not succeed generally for the reasons advanced in relation to the video-link application. That is, the lack of evidence as to the relevant circumstances makes it inappropriate for the Court to make the order sought.
It is for the applicant to make out his case for the order sought. The only relevant “fact” offered, even by way of submission, is that the applicant wants an interpreter in the Farsi language. There is nothing, for example, as to the applicant’s capacity, or otherwise, to understand the proceedings in English.
Critically, however, nothing has been put before the Court as to the applicant’s exact location. The assumption made by both parties is that the Court should consider both “applications” on general principles alone, with no regard to the relevant, actual circumstances.
It is not appropriate for the Court to make either order sought by the applicant in the absence of such knowledge of these circumstances. If for no other reason than it is impossible to consider the efficiency or utility of either order in the absence, for example, of knowledge of the applicant’s exact location.
The second reason is that there is nothing now from the applicant to argue against the usual practice of this Court in relation to the provision of interpreters in matters of this type.
Interpreters are provided by the Court in refugee matters where applicants are unrepresented. Plainly, it is in the interests of the administration of justice to do so. Interpreters are not routinely provided by the Court in matters where applicants are legally represented unless the Court is of the view that there are circumstances that require such a facility to be provided by the Court.
At best, it can be said the only reason in support of this, put by the applicant, is as an ancillary element to his being present at the hearing he should also have access to an interpreter.
In this, the applicant is in no different position to an applicant physically present in Court and who is legally represented. If such an applicant required an interpreter to understand the proceedings, then the usual approach (subject to [15] above) is that he or she makes those arrangements.
But in the current case, the applicant does not seek that the Court should arrange or pay for the facility of an interpreter. Rather that the Minister should do so.
No reason specific to this particular approach has been proffered to the Court. Except perhaps as implicit in the submissions that the applicant should be able to meaningfully “participate”.
In the absence of reasons linked to his actual circumstance, the applicant’s “application” does not succeed. It is not for the Minister, or for that matter the Court, to make out his case for him in relation to this “application”. His lawyers, even acting on a pro bono basis, have taken on that burden.
The third reason is that there would be no utility in making an order in relation to the Minister providing an interpreter in circumstances where I am not minded to make the order in relation to the video-link facility. It would be futile, and otiose, to do so.
The Minister to Pay for the Video-link Facility
The applicant’s position in relation to the video-link facility is that the Court should exercise its discretion in comity with the approach taken by North J in Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 (“MZYLE”).
In that case, the refugee claimant was in immigration detention in a facility in Berrimah, Northern Territory (MZYLE at [5]). Before North J the matter was on appeal from a judgment of this Court which had found legal error in the reviewer’s recommendation that the claimant was not a person to whom Australia owed protection under the Refugees Convention (MZYLE at [6] – [8]).
The hearing of the appeal made by the Minister was in Melbourne, as had been the hearing at first instance. The application to seek judicial review had been made in Melbourne because the applicant had received assistance from the Victorian Legal Aid (MZYLE at [4]).
So that the applicant was able to “participate” in the hearing of the appeal in Melbourne, North J made an order that the Minister pay for the costs of the video-link used in the hearing of the appeal before him.
The respondent in the current case makes reference to MZYLE, but by and large, seeks to draw on what was considered in this Court in SZQCY v Minister for Immigration & Anor [2011] FMCA 358 (“SZQCY”) per Smith FM.
In that case, the applicant was held in immigration detention in Derby, Western Australia. The case was commenced in Sydney where his counsel was located (SZQCY at [4]).
Federal Magistrate Smith declined to make the relevant order sought by the applicant (SZQCY at [35]). I should just note that Smith FM set out at some length the legal and procedural background attendant on, and relevant to, matters of this type, including the use of video-link facilities. I respectfully agree with his Honour as to the reference of those elements to the current question.
However, amongst other matters, his Honour raised at [12] the issue of the limited availability of video-link facilities at the location where, at that time, all Federal Magistrates exercising General Federal jurisdiction in Sydney were accommodated.
The Minister in the current case raises this as one of his five reasons in support of his opposition to the orders sought. That is, that this Court must consider the impact of a video-link arrangement on its own resources.
I have some difficulty with the use to which that part of the reasoning in SZQCY is now put by the Minister. This Court in the current case is not looking to make a pronouncement in respect of every case involving those in immigration detention.
Federal Magistrate Smith set out in SZQCY the Court’s relevant management practices (SZQCY at [5]). In particular, that once a matter has been placed in the docket of a particular Federal Magistrate, that Federal Magistrate acquires the responsibility of directing procedural matters. I respectfully agree (see also MZYLE at [16]).
In my view, it should be the requirements of each particular case, as those requirements are said to arise from the circumstances presented, that inform the outcome as to what is necessary in each case. To apply such a “Sydney local” issue in the way propounded by the Minister now is to disadvantage this applicant simply because he was able to arrange legal representation in Sydney.
Central to any such consideration must be the particular circumstances presented in each case and what is in the interests of the administration of justice.
In any event, and the reason why this particular objection to the applicant’s application does not assist the Minister in the current case, is that even if it could be said that the Court should consider the impact on its own resources, Federal Magistrates in Sydney exercising General Federal law jurisdiction are no longer housed in one location.
I have considered the availability of video-link facility at the exact location where this matter will be heard, and subject to any unforseen technological difficulty, such a facility will be readily available.
What the Court therefore is now presented with is the “contest” between MZYLE and SZQCY as to whether the Minister should arrange and pay for the cost of a video-link facility to enable the applicant to “participate” in the proceedings.
Since receipt of the written submissions, I have also had the benefit of reading the judgment of Driver FM in SZQXC v Minister for Immigration & Anor [2011] FMCA 1034 (“SZQXC”). His Honour was faced with a similar argument and similar circumstances as was seen in the above cases and current case.
Ultimately, Driver FM agreed with the view of Smith FM that, in the circumstances of that case, the Court should not order the Minister to provide for the duration of the trial a video-link facility and interpreter at the Minister’s expense (SZQXC at [13]).
In my respectful view, both MZYLE and SZQCY provided powerful arguments for either side of this consideration. Further, as Driver FM noted, the question now is one for the Court in the exercise of its discretion. Neither case is binding. However, it must also be said, with great respect to my fellow Federal Magistrates, that the views of a Judge superior to this Court, to the extent that they are relevant to the current circumstances, must weigh in the balance.
These views do proceed however from a basis of, first, “uncontradicted evidence”, that the applicant, in that case, “felt that it was good for him to be present”. No such evidence is before this Court.
Second, even without this evidence, the Court was able to take judicial note that asylum seekers are generally concerned about proceedings which seek “to establish their claims”.
With respect, I understood this to be a reference to the asylum seeker’s claims to protection. It is difficult to see how this applies to the current circumstances. The current case is not concerned with the merits of the applicant’s claims. That would lead to impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).
However, it may be, as suggested by Driver FM (at [8] of SZQXC), that given that the proceedings in the Federal Court were on appeal and, in that sense, the “… last judicial review opportunity available to the applicant…”, that the reference in MZYLE to the “establishing of claims” must be seen in that context. That is, that it referred to a wider context of the last opportunity, if the applicant were successful, to return his case to the decision-maker where he could subsequently establish his refugee claims. In which circumstance, that is another distinction with the current circumstances.
It is the case that judicial note can be taken that this case does have a “direct personal consequence” (with reference to MZYLE at [23]) for the applicant. But what remains unexplained in the current case is, even if the applicant were taken to have this interest (although it must be said that it is difficult to conceive of a situation where an individual party to any litigation can be said not to feel that there are direct personal consequences depending on the outcome of any litigation) there is nothing to say how simply observing these proceedings, even if it involves what was described as an “acute” concern, satisfies any understanding of what is going on in the proceedings.
Although not directly raised in the current proceedings, it is important to note that in SZQCY, Smith FM had before him argument that the applicant’s presence by video-link at the hearing was “… a necessary conjunct of the principle of ‘open justice’…” (SZQCY at [26]). This was at the heart of the reasoning in MZYLE.
The “ancient” authority referred to in SZQCY with, in my respectful view, its timeless expression of one of the central tenants of English law, still resonates today:
“Counsel, in particular, referred to ancient authority quoted by Kirby P in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47):
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.’ ...”
Further, it is the case, as with the circumstances in SZQCY and MZYLE, that the applicant is detained by the Minister pursuant to s.189 of the Act. The place or location of that detention is not at the applicant’s choosing, but at the direction of officers of the Minister’s department.
This is a factor which must carry weight in the consideration of the two opposing positions put before the Court now.
It cannot be doubted that the applicant has a right to be heard in this Court. But with legal representation, involving a firm of solicitors and counsel, that requirement will be satisfactorily fulfilled. There is nothing put before the Court to indicate that the applicant will be required to give evidence.
Should the applicant be left without legal representation before, or at the final hearing, the question as to a video-link, or his physical presence in the Court, can be addressed in that eventuality and at that time.
But in the current proceedings, the applicant does not press the right to be heard. But rather what he says is the “right” to “observe”.
In this, the applicant relies solely on MZYLE at [20].
“Whether it is necessary for parties to attend hearings in order to give instructions to their lawyers may be determinative of the question whether the hearing attended by their lawyers but in their absence provides them with a proper right to be heard in accordance with the requirements of natural justice. But even that is not clear. It is accepted by the Minister that a party to a judicial review case who is not represented has a right to attend an appeal in this Court. That right exists notwithstanding the long experience of judges of this Court in such appeals which shows that generally asylum seekers have no understanding of the concept of judicial review and no capacity to contribute to the arguments on appeal. Their attendance is similarly ‘unnecessary’ for the purpose of the hearing as it is if they are unable to instruct their lawyers. But it is nonetheless recognised that they have a right to attend. The reason is that they are entitled to observe the way in which their case is dealt with by the Court. The ability to see for themselves that the legal system has taken their case seriously lies at the heart of the requirements of free access to the law and open justice. In any event, whether the first respondent is able to provide instructions to his lawyers at the hearing of the appeal is not determinative of the present question, namely, whether the Minister should fund the video link.”
There, with respect, it is clear that the Court’s reasoning proceeded from the “necessity” for parties to attend. It includes a reference to unrepresented parties who have a “right” to attend the hearing. In context, and different to the current circumstances, a hearing of an appeal (see [45] above).
But even allowing that what is said at [20] of MZYLE can be extended to some proposition that an applicant attend for the purpose of observation, even where such an applicant is fully legally represented, with respect, I cannot see that that was said to extend to each and every circumstance in every case of this type.
Again, with respect, what North J said at [20] of MZYLE, must as the Minister’s submissions imply, be read in context of what was also said at [15] in the same case. In seeking to distinguish the circumstances in MZYLE from what had been said in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997 per Jacobson J, North J made it clear by way of observation that the exercise of discretion (as it was in that case) to order the transfer of the applicant to immigration detention in Sydney, that the resolution of the issue depended upon the facts of each particular case.
It is here that the applicant’s case in the current circumstances is deficient. Nothing has been put before the Court to show, or to argue, in support of the applicant’s claimed desire to observe.
If this desire is indeed capable of being derived from a “right”, there is nothing before the Court to argue for, let alone show, how the
video-link facility, even with an interpreter, can meaningfully, and in a practical sense, fulfil the exercise of such a “right”.
Plainly, and with respect, I understood the reference to “right to attend” in MZYLE at [20], arising from the reason of an entitlement to observe, to have implicit in it some absolute character.
But with respect, in the current circumstances, there is nothing before the Court to say that even if a video-link facility is made available that the applicant could in any way understand the proceedings.
If it is that the entitlement to observe is such as to enable an applicant to see how his or her case is dealt with by the Court, then there is nothing presented in the circumstances of this case to say that that can be practically achieved in this case.
It is undoubted, as stated by Driver FM in SZQXC, that it is desirable as a general principle in support of the principle of open justice that a party be able to attend Court to observe proceedings which affect their interests (at [5]).
However, no matter how desirable, such a general principle must be viewed through the prism of the circumstances of each case, and as it applies to those circumstances.
As the Minister submits, and particularly in the absence of anything to the contrary by the applicant, I cannot see in the current circumstances how the applicant would attain any practical benefit merely by observing these proceedings.
This Court can take judicial note of the many proceedings involving unrepresented applicants who seek recognition as refugees and the varying lengths taken by the Court to ensure that at each step they understand what is put against them and the nature of the issues for consideration.
With a represented applicant, present by video-link, it would be impractical, and given the adversarial nature of these proceedings, inappropriate for the Court to interrupt legal argument so that a “running commentary” of the proceedings can be provided to the applicant by his representatives.
If instructions are required, then adjournments can be, and often are, granted for that purpose. But “observation” of the proceedings, without understanding, does not promote any “right” the applicant can be said to have.
As Smith FM reminded (SZQCY at [29]), the power to order the Minister to “produce” the applicant to observe the proceedings must be exercised judicially and for good cause. As the Federal Magistrates Act provides in the code governing the use and payment for video audio links, these must be “for the purposes of the proceedings”.
In the current case, the applicant has not explained how his mere observation is a part of that purpose.
Further, I also agree with the Minister that it is appropriate to consider the public interest in the consideration of whether the Minister should bear the cost and responsibility to arrange this facility.
The cost to the public purse must be weighed against the lack of any necessity in the circumstances, for the applicant to be electronically present and the lack of any practical benefit to him. Unlike MZYLE there is no evidence, or even assertion, that the applicant would “feel good” if electronically present.
What has also been left unexplained and unexplored in submissions, is the actual context in which the video-link would operate if the order were to be made. For example, the Court can take judicial note that video-links from remote locations (say Christmas Island) are often fraught with technical difficulties (for example constant pixilation of the picture on the screen) that such a device would hinder rather than serve the purposes of justice.
In all the circumstances of this case therefore, I find myself respectfully in agreement with Smith FM and Driver FM. The issue is determined against the applicant. The orders made at the first Court date for the conduct of the substantive proceedings remain without amendment, other than to note that orders 14 and 15 (dealing with leave to file submissions on this issue) are now otiose.
In all therefore, the applicant’s “application” for the order that the Minister provide and pay for a video-link facility is refused, as is his request that the Minister arrange and pay for the interpreter.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 January 2012
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