SZVCP v Minister For Immigration and Anor (No.2)

[2016] FCCA 3155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCP v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 3155

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to set aside subpoena – whether the subpoenas issued have any apparent relevance – subpoena issued to Mr Stan Van Camp is set aside.

Applicant: SZVCP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3004 of 2014

Judgment of: Judge Street

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Sydney

Delivered on: 6 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr Herzfeld

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The subpoena issued to Mr Stan Van Camp is set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3004 of 2014

SZVCP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application to set aside subpoenas

1. This is an application by the first respondent to set aside subpoenas issued by the applicant. The first respondent seeks to set aside subpoenas to give evidence to Mr Stapleton, to Mr Bain, Mr Toohey, Ms Ochocki, Mr Van Camp and Ms Wilson.

2. The relevant principle to apply in determining whether the subpoenas should be set aside is one of apparent relevance. In substance, the Court is determining whether each subpoena has a legitimate forensic purpose and if not, it constitutes an abuse of process. In the present case, the applicant has served an outline described as an amended statement of evidence proposed to be adduced in respect of each of the persons the subject of a subpoena. The Court notes the subpoena to Ms Wilson is also not yet the subject of clarity as to whether it has been served and that there has not been service of the subpoena on 6 December 2016.

Issues raised by the first respondent

1. The first respondent has put in issue both the existence of any duty of care as well as the issue of breach in respect of injunctive relief which the applicant seeks in the substantive proceedings. The injunctive relief is to prevent the applicant being returned to Christmas Island.

2. The substance of the applicant’s case turns upon alleged incidents that the applicant alleges occurred on Christmas Island and which the applicant contends amounts to a breach of a duty of care owed to the applicant. In respect of this the duty, the applicant alleges that there is a proper basis upon which he apprehends that he will be the subject of a breach of the duty of care if returned to Christmas Island.

3. The first respondent does not contest the subpoena to Ms Alexander in respect of whom the applicant’s outline identifies that he wished to raise issues with her regarding actions that Ms Alexander took in regards to his alleged breach of duty and in relation to particular events the applicant alleges were occurring. The first respondent also does not challenge the subpoena of a further witness, who is the intelligence analyst with Serco Immigration Services. The outline in substance refers to seeking to explore issues again relating to the allegation of a breach of duty whilst the applicant was at Christmas Island.

Consideration

1. The first respondent has contended that the number of persons subpoenaed is itself oppressive. The Court has foreshadowed that the evidence that will be adduced from each witness as well as cross-examination will respectively, will be limited to half an hour without further leave of the Court.

2. I find that the evidence does not establish that it is oppressive for the applicant to call the witnesses identified subject, to the findings made below in relation to Mr Van Camp.

3. It has also been contended that the case notes from the various officers are not opposed in terms of admission. The Court has however, been informed that the applicant’s credit is in issue and that the allegation of breach of duty is in issue. In these circumstances, whilst the Court is conscious of the burden imposed upon the recipients of the subpoenas, the Court is satisfied that the subpoena to each of the persons other than Mr Van Camp have a sufficient apparent relevance not to be an abuse of process.

4. In relation to the subpoena to Mr Van Camp, this was a person who was not at Christmas Island relevantly in relation to the applicant and to whom the applicant apparently made complaints in relation to criminal proceedings being conducted in South Australia where he was giving evidence. The applicant contends that there was information given by major crime officers to Mr Van Camp that in some way the applicant alleges is relevant.

5. The applicant also contends that he told Mr Van Camp how he would kill himself rather than return and that Mr Van Camp’s notes about the communications made after the applicant left Christmas Island were not complete.

6. It is not apparent from anything the applicant has said how Mr Van Camp can advance the applicant’s case in respect of the allegations of breach of duty or indeed, in relation to the challenges to the applicant’s credit in respect of the records whilst the applicant was at Christmas Island.

Conclusion

1. I am not satisfied that Mr Van Camp is a witness in respect of whom the applicant’s outline and indeed, the applicant’s affidavit and submissions identifies any apparent relevance.

2. The subpoena to Mr Stanley Van Camp, on the material before the Court, is an abuse of process.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  13 December 2016