Tran v Minister for Immigration (No.2)

[2004] FMCA 425

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION (No.2) [2004] FMCA 425

PRACTICE AND PROCEDURE – MIGRATION – Cancellation of visa – request that Applicant attend in person for judgment – Applicant in detention – Applicant represented – video link ordered – principles to consider.

Applicant: BUI DO TRAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 392 of 2003

Delivered on: 27 May 2004

Delivered at: Melbourne

Hearing Date: 27 May 2004 (by audio link)

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr L Linden

Solicitors for the Applicant: Access Lawyers

Solicitor for the Respondent: Ms J Davis

Solicitors for the Respondent: Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 392 of 2003

BUI DO TRAN

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR RULING

(Revised from transcript)

1. In this matter the Applicant by correspondence dated 26 May 2004 through his solicitors has requested that he should be present for the delivery of judgment scheduled to occur in Melbourne at now the revised time of 10 a.m. EST on 28 May 2004.  In the letter dated

   
   

   26 May 2004 from the Applicant’s solicitor reference is made to the fact that the Applicant is currently at the Baxter Detention Centre in South Australia.  The hearing in this matter was conducted with the Applicant being in the Baxter Detention Centre but connected to the Court by order of the Court by video link and the issue of whether the proceedings should take place in that form was agitated and a ruling made on that issue at the substantive hearing. 

2. Before the Court now is the issue of whether or not an Applicant, still represented, should be required or permitted to attend the Court and effectively whether or not this Court should direct that he attend given that he is currently in a Detention Centre which is obviously controlled by the Respondent. 

3. Various arguments were advanced in relation to the matter but as I understand it quite properly the general view is taken that parties to litigation should be given the opportunity to be present at the time of delivery of judgment.  It is recognised that that is normally a situation which applies in most litigation.  It is particularly recognised that in a criminal trial process an accused person invariably has to be present save in exceptional circumstances for the delivery of a judgment which normally after a trial before a jury would involve of course a delivery of a verdict followed by a hearing of a plea and then a sentence.  Whether it be for the delivery of the verdict or the sentence invariably the accused person attends Court in person.  Whilst I have some sympathy for the general principle advanced for and on behalf of the Applicant I do not regard the delivery of a decision in a matter of judicial review as being one which requires the physical presence of the Applicant particularly where a video link facility is made available, the decision of the Court will be announced, reasons for the decision published and whatever the outcome it will be clear to both parties that those reasons are to be then considered and both parties will then have an opportunity to consider appeal rights. 

4. In the present case I am satisfied that both parties will have an opportunity to reflect upon the matter and the use of the video link facility and other access to the Applicant and indeed the opportunity of the legal representatives to seek and obtain instructions in relation to the decision essentially would not in either case affect rights which either party may have to pursue an appeal. 

5. Ultimately the issue of whether or not it is appropriate to deliver judgment with the Applicant being present by video link is a matter for the Court in the exercise of its discretion.  I reject the suggestion that the method of hearing arranged by the Court for the attendance and appearance of the Applicant should lead to inferences or perceptions as to the outcome of the hearing.  No inference should be drawn one way or the other.  This is simply a practical matter for a national Court to determine the appropriate use of video link and indeed other facilities including audio link in a case where essentially submissions are made on a matter of law.  This is not a case where the Court is going to pronounce any sentence upon a party or that the party may otherwise seek to make submissions or representations about further issues for example bail and the like.  In the present case I am satisfied that it would be fair and just for the judgment to be delivered, the Applicant who is represented to be given the opportunity to be present by video link facility and in the normal course of events the decision of the Court published and transmitted immediately to the parties.  Each party can then decide as to whether or not an appeal is appropriate and have the opportunity of fully exercising appeal rights.  For those reasons the request that a direction be made requiring the Respondent to arrange for the Applicant to be present in person is refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Mcinnis FM

Associate: 

Date:  27 May 2004