WACM and WADL v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 591

FEDERAL COURT OF AUSTRALIA

WACM & WADL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 591

MIGRATION – detention – interlocutory application to prevent relocation – whether removal to Baxter from Perth detention centre would improperly impede right to applicant to legal advice – no serious issue made out – relief refused

Migration Act 1958 (Cth) s 256

WACM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W117 of 2003

WADL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W118 of 2003

RD NICHOLSON J
30 MAY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W117 OF 2003 W118 OF 2003

BETWEEN:

WACM
APPLICANT

WADL
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

30 MAY 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicants’ applications for interlocutory injunction be dismissed.

2.The applicants pay the respondent’s cost of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W117 OF 2003 W118 OF 2003

BETWEEN:

WACM
APPLICANT

WADL
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	30 MAY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application brought on behalf of two applicants for refugee status who are presently in the Perth detention centre.  They are there as a consequence of proceedings heard earlier today.  Their position is that they sought to be recognised as refugees, have not succeeded in that quest and are subject to a Notice of Deportation.  Earlier they successfully sought injunctive relief against deportation until the hearing and determination of an appeal in another matter before the Full Court in Victoria and the consequent resolution of each of their applications.

2. The present injunctive application is brought orally at 1.30 pm and seeks to restrain either of the applicants being moved from the Perth detention centre to the detention centre at Baxter in South Australia. 

3. The only evidence which it has been possible to bring to the Court due to the hurried nature of the application is an affidavit on behalf of the Australian Government Solicitor annexing advice from the Manager of the Perth detention centre. That states the move of the two applicants as proposed this afternoon on a flight departing at 2.50 pm to Baxter has been arranged to get the number of detainees in the Perth detention centre down. The reason for that, it is said, is that the kitchen at the centre closes today to undergo refurbishment over the next nine weeks. Next it states that while there is a community of Iranians at Baxter that is not the case at the Perth detention centre. Further it is stated that the Perth detention centre is too small to maintain persons in long-term detention if that can be avoided and generally it only retains persons who have a compelling medical need or have family there. It is further stated that it is unusual for there to be detained protection visa applicants. Normally, persons housed there are persons who are about to be deported as a consequence of the application of s 501 of the Migration Act 1958 (Cth) arising from their criminal convictions.

4. For the applicants the case is essentially that by removal to Baxter the two applicants will suffer additional inconvenience and expense in being properly legally represented in respect of their principal applications.  It is said, therefore, that the principle of law which is at issue is that one party to a proceeding, namely in this case the respondent, should not take steps which would interfere or hinder the access by the other party to a proceeding to legal access and advice.  It is submitted that total hindrance does not need to be proved.  It is sufficient if obstacles are placed in the way. 

5. The tests to be applied in the case of an application for an interim injunction are well established.  The first is whether there is a serious issue to be tried in the sense of an arguable case on a point of law or principle; the second is where the balance of convenience lies.  It is common ground and well established in any event that the two principles are inter‑related, that is, the strength of the first can also be a factor to weigh in the second.

6. This is an interlocutory application, and I must take the evidence as I find it.  Even taking that broad view, that is, that on an application brought in circumstances of urgency it is not possible to bring affidavits as to the degree of inconvenience, I find it difficult to accept as a fact that the access of either of the parties to legal advice will be either prevented altogether, and that in all fairness is not maintained as I understand it, or hindered to any degree such as would invoke whatever may be the applicable principle.  In my view inconvenience and expense do not amount to such a hindrance.  The difference in time is surmountable.  The absence of direct personal contact is not to be encouraged, but it is apparent that in the system of dealing with applicants in this jurisdiction under the present laws where they are placed in places of detention, face‑to‑face contact simply is not the norm.

7. I am particularly influenced in looking at the applicable principle by the presence of s 256 of the Migration Act 1958 (Cth) which provides, in part and where relevant, that:

   ‘Where a person is in immigration detention under the Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her forms for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention and to provide all reasonable facilities to that end.’

   As I read that, it is a duty so that it is something in relation to which mandamus may arguably lie if there is a failure to perform. 

8. I am unconvinced, therefore, that there is any principle of law yet offended which would entitle this Court to find that there was a serious issue to be tried in the sense of an arguable issue that would entitle this Court to intervene. The discretion which the Court has on an interlocutory injunction application is governed by the two factors I have referred to and is not an open‑ended discretion for the Court to interfere in administrative processes unless some principle of law justifies it. In the presence of s 256, and in the absence of evidence greater than that presently before the Court, I cannot see any basis for such principle being invoked.

9. Therefore, in considering the balance of convenience, I take into account the view I have formed in relation to the seriousness of the issue to be tried. I also weigh the evidence brought in relation to the nature of the Perth detention centre which, as appears from the facts referred to in the affidavit, is not a place of detention in the normal run. It is more in the nature of a holding centre. In the balance also is to be weighed not only that there is the possibility of the remedy I have referred to arising under s 256 but other remedies may be available in the event of legal advice not being properly available to these applicants.

10. It is regrettable that costs may be incurred and inconvenience experienced by those assisting the applicants but it is not the business of the courts to become involved generally in the absence, as I have said, of a principle of law entitling the court to intervene.  In my view, no such principle is now presently invoked here.

11. For those reasons I would refuse each of the applications for interim relief against the proposed removal to the Baxter detention centre.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             13 June 2003

Pro Bono Counsel for the Applicants:	Mr MD Cox
Counsel for the Respondent:	Mr LA Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 May 2003
Date of Judgment:	30 May 2003