SZVCP v Minister for Immigration and Border Protection

Case [2016] FCAFC 24

FEDERAL COURT OF AUSTRALIA

SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24

Appeal from: Application for extension of time and leave to appeal: SZVCP v Minister for Immigration & Anor [2015] FCCA 2576
File number: NSD 1243 of 2015
Judges: KENNY, ROBERTSON AND GRIFFITHS JJ
Date of judgment: 9 March 2016
Catchwords MIGRATION – application for an extension of time and leave to appeal – Federal Circuit Court dismissed applications in a case, including for injunctive relief restraining transfer to Christmas Island – clear want of procedural fairness –  failure to address applications –failure to explain processes and procedures to unrepresented litigant –  extension of time and leave to appeal granted – appeal allowed – matter remitted to Federal Circuit Court  – interlocutory injunction restraining transfer of applicant to Christmas Island until further order of Federal Circuit Court
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1C), 37M

Migration Act 1958 (Cth) s 14

Federal Circuit Court Rules 2001 (Cth) r 35.14

Federal Court Rules 2011 (Cth)

Cases cited:

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Gallo v Dawson [1990] HCA 30; 93 ALR 479

Mentink v Minister for Home Affairs [2013] FCAFC 113

Re CSR Ltd [2010] FCAFC 34; 183 FCR 358

Shrestha v Migration Review Tribunal and Another [2015] FCAFC 87; 229 FCR 301

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445

SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1
Date of hearing: 16 February 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: R Davies (Pro Bono)
Counsel for the Respondents: P Herzfeld
Solicitor for the First  Respondent: Australian Government Solicitor
Counsel for the Second Respondent:  The second respondent submitted to any order the Court might make, save as to costs

ORDERS

NSD 1243 of 2015
BETWEEN:

SZVCP

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

KENNY, ROBERTSON AND GRIFFITHS JJ

DATE OF ORDER:

9 MARCH 2016

THE COURT ORDERS THAT:

1.It being necessary to prevent prejudice to the proper administration of justice, until further order the name of the applicant or any other information enabling him to be identified not be published.

2.Leave be granted to the applicant to rely on the amended draft notice of appeal dated 16 February 2016.

3.An extension of time be granted to the applicant to seek leave to appeal from orders 10 and 12 in PEG142/2015 and orders 10 and 12 in SYG3004/2014 in the Federal Circuit Court of Australia made on 15 September 2015.

4.Leave to appeal be granted to the applicant to appeal from orders 10 and 12 in PEG142/2015 and orders 10 and 12 in SYG3004/2014 in the Federal Circuit Court of Australia made on 15 September 2015.

5.The appeal be allowed.

6.In…

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SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24
Case
[2016] FCAFC 24
Decision Date

CaseChat Overview and Summary

The case of SZVCP v Minister for Immigration and Border Protection involved the applicant, SZVCP, appealing against orders made by the Federal Circuit Court in relation to applications in a case seeking interlocutory relief. The applicant was a non-citizen who had previously been detained on Christmas Island and was seeking various forms of relief, including an injunction against his detention and the production of certain documents and officials for evidence. The Minister for Immigration and Border Protection opposed the application. The primary legal issues that the court needed to decide were whether the Federal Circuit Court had jurisdiction to grant the relief sought by the applicant and whether the primary judge had adequately considered the interlocutory injunction applications and the application for subpoenas. The Court found that the Federal Circuit Court did have jurisdiction and that the primary judge had not adequately considered the interlocutory injunction applications and the application for subpoenas.

The Court of Appeal held that the primary judge did not in substance consider the interlocutory injunction applications made by the applicant and the application for the issue of subpoenas. His Honour did not address at all the applications for leave to amend and to file supplementary material. The Court held that it was necessary to prevent prejudice to the proper administration of justice, and granted leave to the applicant to appeal from certain orders made by the Federal Circuit Court. The Court set aside the orders and remitted the applications in a case to the Federal Circuit Court to be heard and determined according to law. The Court also granted an interlocutory injunction until the Federal Circuit Court otherwise orders and restrained the first respondent from transferring the applicant to Christmas Island. Finally, the Court ordered that the first respondent pay the applicant’s costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

1. It being necessary to prevent prejudice to the proper administration of justice, until further order the name of the applicant or any other information enabling him to be identified not be published.

2. Leave be granted to the applicant to rely on the amended draft notice of appeal dated 16 February 2016.

3. An extension of time be granted to the applicant to seek leave to appeal from orders 10 and 12 in PEG142/2015 and orders 10 and 12 in SYG3004/2014 in the Federal Circuit Court of Australia made on 15 September 2015.

4. Leave to appeal be granted to the applicant to appeal from orders 10 and 12 in PEG142/2015 and orders 10 and 12 in SYG3004/2014 in the Federal Circuit Court of Australia made on 15 September 2015.

5. The appeal be allowed.

6. In matter PEG142/2015 in the Federal Circuit Court of Australia, orders 10 and 12 made on 15 September 2015 be set aside and the applications in a case referred to in those orders be remitted to the Federal Circuit Court of Australia to be heard and determined according to law.

7. In matter SYG3004/2014 in the Federal Circuit Court of Australia, orders 10 and 12 made on 15 September 2015 be set aside and the applications in a case referred to in those orders be remitted to the Federal Circuit Court of Australia to be heard and determined according to law.

8. The first respondent pay the applicant’s costs of the proceedings in this Court.

9. Until further order of the Federal Circuit Court of Australia, the first respondent be restrained from transferring the applicant to Christmas Island.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Also on the issue of relief, the Minister relied on the affidavit of Latha Reardon affirmed on 7 January 2016. PROCEDURAL BACKGROUND The procedural background is an unavoidable feature of this case. As at 15 September 2015, the applicant had three substantive applications in the Federal Circuit Court. They were: (1) an application filed on 29 October 2014 (SYG3004/2014) and supported by the applicant’s affidavit of the same day, in which the applicant sought relief arising from the release of personal information on the website of the Department; (2) an application filed on 7 April 2015 (PEG142/2015) and supported by the applicant’s affidavit of the same day, in which the applicant sought relief arising from a decision of the then Refugee Review Tribunal not to grant him a protection visa; and (3) an application filed on 17 June 2015 (PEG261/2015), in which the applicant sought relief arising from the International Treaties Obligations Assessment (ITOA) conducted by the Minister’s Department concluding that the applicant did not engage Australia’s non-refoulement obligations. Until the applications in a case accepted for filing on 3 and 8 September 2015, the applicant had not sought any relief concerning his place of detention, whether on Christmas Island or elsewhere. Under the Federal Circuit Court Rules 2001 (Cth) an ‘application in a case’ is the means by which a litigant in that Court seeks interlocutory, as opposed to final, relief. The applications in a case, accepted for filing on 3 and 8 September 2015 in SYG3004/2014 and PEG142/2015 respectively and dismissed by the Federal Circuit Court on 15 September, sought a number of orders: declarations; an injunction restraining the respondent Minister from detaining the applicant at the Christmas Island Immigration Detention Centre and an order requiring that the applicant’s detention occur at an alternate place of detention; and a number of claims for interlocutory relief. The applicant’s claims for interlocutory relief were as follows (errors in original):1.An interlocutory injunction restraining the Minister from continuing to detain me at Christmas Island Immigration Detention Center nor the Perth or Darwin detention Centers.2.Stop the Minister from ever returning me to Christmas Island Immigration Detention Center or Christmas Island nor any of its detention Centers in Perth Western Australia and or Darwin as most of the Serco EMERGENCY RESPONSE TEAM of SERCO that have caused me severe trauma and distress are from PERTH AND DARWIN detention centers.3.A writ of Habeas Corpus issue ordering the Minister to produce my body physically in Court in all hearings of this matter before the Court and not by Video or phone as those mediums are prejudiced to my case and gives the respondent an undue advantage over me.4.Leave granted to file any amended application together with any supplementary affidavits.5.The Subphoena the records of the Psychologists of IHMS and the file entries of both my immigration case Manager Ms Anna of the Department AND THE CASE NOTES OF THE Center manager Ms Denise Alexander of Serco regarding the issues raised in this matter and they be ordered to come to court to give evidence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant submitted that any order for remittal should be to a judge other than the primary judge who heard the interlocutory applications. We see no basis for such an order. In our opinion which judge of the Federal Circuit Court should hear the matter falls for the consideration of the Chief Judge of that Court.CONCLUSION For these reasons we would allow the appeal, remit the matter to the Federal Circuit Court of Australia to determine the relevant parts of the interlocutory applications, and grant an interlocutory injunction until the Federal Circuit Court of Australia otherwise orders. For completeness we note that there are consent orders dated 20 October 2015 in the Federal Circuit Court adjourning the matters pending determination of the Minister’s applications for special leave to appeal and any subsequent appeals from the judgment given by this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1, but with liberty to apply on five days’ notice.

Ratio Decidendi

Legal Principle Established

Subject to an issue raised by counsel for the Minister in oral submissions to which we return at [40] below, it was common ground that the Federal Circuit Court had jurisdiction to grant the relief the applicant claimed.CONSIDERATION On 15 September 2015, the application initially before the primary judge was the application in a case in PEG142/2015, accepted for filing a week earlier, on 8 September. His Honour ultimately made orders in that matter and in SYG3004/2014 and in the applicant’s other Perth proceeding. The precise path by which these matters arrived before his Honour is not entirely clear, but neither party made anything of this. As will have been seen, the relevant parts of the applications in a case, which were dismissed on the first return date in the case of PEG142/2015, included relief by way of an interlocutory injunction restraining the Minister from returning the applicant to Christmas Island. It appears that SYG3004/2014 was not initially before his Honour and that the application in a case in that matter was listed for hearing two days later before another judge, but that his Honour took steps to enable him to deal with it himself that day. Both in his applications in a case and at the hearing in the Federal Circuit Court, the applicant sought leave to amend his applications, and to file supplementary affidavits. He also applied for the issue of subpoenas for certain documents and for two officials to be subpoenaed to give evidence. In our opinion the primary judge did not in substance consider the interlocutory injunction applications made by the applicant and the application for the issue of subpoenas. His Honour did not address at all the applications for leave to amend and to file supplementary material. The hearing on 15 September was quite short: the transcript is in a little over 18 pages. About a third of the hearing was concerned with identifying the proceedings instituted by the applicant in the Federal Circuit Court. Just before the primary judge adjourned to make time-tabling inquiries, the applicant sought to draw his Honour’s attention to the issues raised by his affidavit, which was apparently then before the Court. In particular, the applicant said:But also if I can just say this, your Honour, that if you look at the affidavit in support of the first application in a case, there are issues that I’ve raised there which outline in that affidavit, which need to be attended to by the court in order for you to make a decision … on some of the orders I’m seeking: (1) a summonsed issued, or a subpoena and a summons issued, to have my case manager, the centre manager, the psychologist and the psychiatrist come to court to give evidence in regards to what they know about the traumatic and distressing [] and the torture they put me through in Christmas Island.It is very important, according to the facts and in law, that those people come to give evidence, because they are part of what has occurred to me. … When I got out of detention from the judgment of the Full Court of the Federal Court on 25 March, I thought I was okay until I got put into hospital on that mental health … and detained in hospital.