SZQWG v Minister for Immigration
[2012] FMCA 158
•5 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 158 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – application for judicial review filed in Sydney by applicant detained in Tasmania – applicant released from immigration detention on bridging visa in Adelaide – matter transferred to Adelaide Registry. |
| Federal Magistrates Act 1999 (Cth), s.52 Federal Magistrates Court Rules 2001 (Cth), rule 8.01 Migration Act 1958 (Cth) |
| SZQCY v Minister for Immigration & Anor [2011] FMCA 358 |
| Applicant: | SZQWG |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | KERRY BOLAND, IN HER CAPACITY AS INDEPENDANT MERITS REVIEWER |
| File Number: | SYG 2662 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 5 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant must file and serve a notice of his address for service in Adelaide within 2 working days.
The hearing appointed for today is vacated by consent.
Pursuant to s.52(2) of the Federal Magistrates Act 1999 (Cth) the proceeding is to be continued at Adelaide and removed from the docket of Smith FM.
Direct that the District Registrar forward the file to the Adelaide Registry, with a request that the parties be notified of an appointment for directions before the Court in Adelaide.
No orders as to the costs relating to today’s listing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2662 of 2011
| SZQWG |
Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
| KERRY BOLAND, IN HER CAPACITY AS INDEPENDANT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This case has had an unfortunate history. The applicant is an off-shore entry person who arrived in Australia in May 2010. His case for refugee status was eventually the subject of a report of an independent merits reviewer dated 2 November 2011. The applicant filed an application for judicial review of that report on 22 November 2011, showing no legal representation, and giving an address at Pontville Immigration Detention Centre in Tasmania. The application did not have any grounds of review that are intelligible, and the applicant, who remains unrepresented, has not yet formulated any ground of jurisdictional error affecting the IMR report.
The application was filed by fax in the Sydney registry of the Court for reasons that are obscure, and was placed in my docket for a first court date on 9 February 2012. No legal representative appeared, and an unsatisfactory audio link was established to Pontville. At that stage, the applicant was hoping that a legal representative would be arranged for him in Sydney. I made directions in my usual form, which included a request to the NSW District Registrar for a referral under Part 12 to a lawyer on the ‘pro bono panel for legal assistance’. I appointed a hearing on 5 March 2012 – that is, today. I also appointed a pre-hearing directions hearing on 9 February, where I expected to review the state of preparedness of the matter.
The local Registrar did attempt to obtain legal representation for the applicant, or at least someone to advise him about his legal situation. However, these efforts were unsuccessful. The efforts appear to have included discussions with an organisation in Sydney known as PILCH, but it reported to the Registrar on 8 February:
We haven’t been able to find representation for this client as yet. We will follow it up with the barrister considering it, but it is unlikely he will have representation by tomorrow.
Neither the court nor the Minister’s solicitor has been informed as to who the “barrister” referred to is, and there has been no attendance at any of the listings by any legal representative assisting the applicant. No representation appears for him today. I note that in the course of the refugee determination process, the applicant was assisted by a Sydney migration agency, Playfair Visa and Migration Services, under the IAAS scheme, but they appear not to have continued to assist the applicant.
At the pre-hearing directions hearing on 9 February, the applicant was produced to the Court by the Minister by way of a video link to the Federal Court in Hobart. The Minister applied for the imminent hearing to be conducted by such a link, but I refused that application because the Minister’s solicitor candidly informed the Court that the Minister could give no assurance that the applicant would still be in Pontville Immigration Detention Centre at the date of the hearing, since the Minister was in the process of closing that facility. I therefore confirmed my previous direction requiring the Minister, in the absence of any representative of the applicant, to produce the applicant before me in person at the appointed hearing in Sydney.
Because the applicant informed me that nobody had ever read to him in translation the report of the IMR reviewer, I directed the Minister to arrange for that to happen before the hearing. The applicant informs me today that this did happen, and that, in the course of the report being read to him, he has detected various points which he would wish to raise before the Court.
Late last week, the Court was informed by the Minister’s solicitor that the applicant had been taken to Adelaide and released there under a bridging visa. The Minister would therefore not be producing him at the hearing appointed in Sydney for today. The Court has not been informed whether his release is attended by conditions in relation to his place of residence, nor what arrangements were made in relation to his release.
The Court was then presented with consent orders for the transfer of the matter to Adelaide, and requested to vacate the hearing and hold a directions hearing today. The Minister’s solicitor arranged for an audio connection to an office in the Department of Immigration in Adelaide today, at which the applicant attended, and was assisted by an interpreter, albeit one who did not have formal qualifications as an interpreter.
With her assistance, the applicant informed me that he is living with a friend in Adelaide, and expects to continue to reside there, and that it is his preferred place of residence in Australia for the foreseeable future. It appears unlikely that he has the resources to travel to a hearing in Sydney, and the Minister disclaims any responsibility to arrange this.
The Court has a general power to transfer the venue of a matter, pursuant to s.52 of the Federal Magistrates Act 1999 (Cth), and taking into account considerations referred to in rule 8.01 of the Federal Magistrates Court Rules 2001 (Cth). As I explained in my judgment in SZQCY v Minister for Immigration & Anor [2011] FMCA 358, Courts in Australia generally regard it as clearly preferable for litigants in person held in detention to have an opportunity personally to appear before the Court. The same preference arises for people not in detention, but suffering practical impediments for coming to Court in another State. In my experience, this opportunity is especially desirable for refugee claimants needing the assistance of an interpreter.
In circumstances where it appears that no legal representative has been found to represent the applicant in Sydney, I am now in the position where it appears to me to be in the interests of justice in the present case for me to transfer this matter to Adelaide. It can there be case-managed by a local Federal Magistrate. I am hopeful that there may be an opportunity to find a lawyer in Adelaide who will meet and give advice to the applicant about his situation, and might perhaps give him such other assistance including representation, as may be desirable and appropriate. Essentially, the matter has been unable to progress at all while it has been in my docket, except for the filing of a Court Book, and it will be necessary to give a new set of directions for its future preparation.
I shall therefore make orders to that effect, together with orders requiring the applicant to file a notice of his address for service in Adelaide, and to keep the local registry in Adelaide informed if he changes his address. I have emphasised to the applicant that it will be his responsibility to do this, and to attend any listings of which he is given notice.
I shall make no orders as to the costs relating to today’s listing.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 5 March 2012
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