FEDERAL COURT OF AUSTRALIA

NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997

MIGRATION – claim for interlocutory relief seeking the transfer of the applicant from Port Hedland to Villawood Immigration Reception and Processing Centre for the purpose of instructions being taken by the applicant’s solicitor – suitability of video link technology for the purpose of taking instructions – ‘need’ for an interpreter and pro bono counsel as factors in the exercise of the Court’s discretion - power of the Court to order the transfer - substantive action involves a challenge to constitutional validity of s196 of the Migration Act.

WORDS & PHRASES -  “immigration detention”

Migration Act 1958(Cth), ss 196, 48B, 256 and s417

Federal Court Rules O 10, O 33 r 15

Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27

Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535

Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995

Versace v Monte [2001] FCA 1454

NAKG OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

N512 of 2001

JACOBSON J

9 AUGUST 2002

SYDNEY

THE COURT ORDERS THAT:

1.      The application for interlocutory relief claimed in par B1 of the application be dismissed.

2.      Reserve liberty to apply to apply on 72 hours’ notice.

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

REASONS FOR JUDGMENT

1                     The applicant is an unlawful non-citizen in immigration detention at the Port Hedland Immigration Reception and Processing Centre in Western Australia (“Port Hedland”).  By an application filed on 3 June 2002, he seeks a declaration that s196 of the Migration Act 1958(“the Act”) is constitutionally invalid.  He also seeks a declaration that his continued detention is unconstitutional and “illegal” and an order that he be released.

2                     The application includes a claim for “interlocutory relief” that the applicant be transferred from Port Hedland to the Villawood Immigration Reception and Processing Centre in New South Wales (“Villawood”).  The claim for interlocutory relief is, in substance, a motion for directions for the proper and efficient preparation of the case for trial.  This is because the purpose of the transfer is to enable the applicant’s solicitor, Mr Peter Jackson, who carries on practice in Sydney, to meet with the applicant here in order to obtain instructions and to prepare an affidavit. 

3                     I heard the application for transfer of the applicant on 30 July 2002.  The respondents opposed the order.  They conceded that there is power to make such an order under O10 of the Rules of this Court.  They made no such concession as to the alternative sources of power relied upon by the applicant, namely O33 r15 and s256 of the Act. 

4                     I will refer later in my judgment to the decision of Sheppard J in Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27.  In that case, his Honour was of the view that both O10 and s256 of the Act provided sources of power for the Court to make an order for the transfer of persons in immigration detention from one centre to another.  Hely J, in Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 at [19] and Mansfield J in Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 at [47] referred to the decision in Le without expressing any disapproval of it. 

5                     In Kucuk, Hely J noted, without deciding the point, that it was open to doubt whether the proceedings were in relation to the applicant’s immigration detention.  No such question arises here because the respondents have conceded that the proceedings are in relation to the applicant’s immigration detention.

6                     It seems to me to follow that O10 and s256 of the Act provide alternative sources of power.  However, I cannot make an order under s256 of the Act unless I am satisfied that either the Minister or the Commonwealth is a person who is responsible for the applicant’s detention.

7                     Mr S Lloyd of counsel for the respondents submitted that the Minister is not a person responsible for the applicant’s detention.  It is unnecessary for me to decide the point because of the concession that there is power under O10.  Nevertheless, although there has been no substantial debate about this question, my preliminary view is that the company which runs the immigration centres does so either as an agent of either the first respondent or the second respondent.

8                     It is also unnecessary for me to deal with the question of whether O33 r15 is a further source of power.  It is sufficient for me to proceed upon the basis that I have power under O10 and s256 of the Act. 

9                     The gravamen of the respondents’ opposition is that the claim should be refused on discretionary grounds, most notably that the respondents have offered to provide videoconferencing facilities free of charge to the applicant and the offer has not been taken up.

10                  In order to dispose of the transfer application, it is necessary to refer to the substantive application and the issues, which arise under it as well as to the evidence relied upon in support of the motion.

11                  The applicant contends that there are two bases for the relief claimed in the application.  First, as referred to above, there is a challenge to the constitutional validity of s196 of the Act.  Second, irrespective of the validity of s196, the applicant says that his continued detention is “unlawful” because the Constitution does not authorise the indefinite detention of a person whose status is indeterminate. 

12                  The first basis rests purely upon legal argument as to the constitutionality of s196 of the Act.  The second basis is said to depend upon factual circumstances but the only fact which has been put forward on the pleadings is the length of the applicant’s detention.

13                  The application refers to a statement of claim filed on 3 June 2002 and to an affidavit of Ms Le sworn on 28 May 2002.  Ms Le is the applicant’s immigration agent.  Most of the matters set forth in the statement of claim are admitted.  There are a number of minor issues between the parties as to the date on which a particular event occurred.  However, it is common ground between the parties that the applicant arrived in Australia on or about 5 June 1999 and that he has been in detention since that time. 

14                  It is also common ground that the applicant applied for and was refused a protection visa.  The application was made in June 1999 and refused in July 1999.  It is also admitted on the pleadings that the applicant lodged an application for review with the Refugee Review Tribunal (“the RRT”) in August 1999 and that the RRT refused the application.

15                  The defence filed on 11 July 2002 sets forth a number of steps taken by the applicant in relation to his immigration status from August 1999.  These steps are not pleaded in the statement of claim but the respondents rely upon them as a defence to the proceedings.  The steps consist of a number of applications made by the applicant to the Minister to exercise his powers under ss 48B and 417 of the Act.  The most recent of the applications was made in February 2002.  All of the applications were refused. 

16                  Ms Le’s affidavit traces the history of the applicant’s detention from 5 June 1999.  Ms Le refers to the various applications made by the applicant in relation to his immigration status up to February 2002.  Although some of Ms Le’s evidence is given on information and belief, the matters contained in her affidavit are largely documentary.  Her affidavit appears to establish the accuracy of the steps relied upon by the respondents as part of the history of the applicant’s detention.

17                  The documents exhibited to Ms Le’s affidavit include a copy of a report made by an immigration inspector on 6 June 1999.  The report states that the applicant was interviewed with an Arabic interpreter.  The report states that the applicant spoke Arabic and a little English.  (See p1 of Exhibit ML1)  The exhibits to Ms Le’s affidavit also include a declaration dated 21 June 1999 made by an interpreter used by the applicant in the preparation of an application for a protection visa in June 1999.  (Exhibit ML1 at p19)

18                  Mr Bedrossian, counsel for the applicant, relied on these two documents to establish the proposition that it is likely that an interpreter will be required to enable Mr Jackson to obtain proper instructions.  There was no other evidence to support this proposition.

19                  It seems to me that it would have been open to the applicants to provide further evidence through either Ms Le or Mr Jackson of the need for an interpreter.  In my view, the evidence relied upon by Mr Bedrossian is not satisfactory because there is no direct evidence one way or the other as to whether an interpreter will be required either at the meeting with Mr Jackson or at the final hearing.  I note that Mr Jackson says in his affidavit that communication on the telephone with a client whose first language is not English is difficult.  I do not think that this establishes the need for an interpreter in the present case because Mr Jackson’s evidence is that he has never spoken to his client.  Nevertheless, I am prepared to proceed upon the assumption that the applicant will need an interpreter.

20                  In paragraph 3 of his affidavit in support of the transfer application Mr Jackson says it is “necessary” for him to seek face to face instructions and that he considers it unsatisfactory for the matter to proceed further without a face to face meeting.  Mr Jackson conceded under cross-examination that he had been offered an opportunity to meet with the applicant through a video link facility to be provided by the respondents.  He agreed that he had not taken up the opportunity.

21                  It was put to Mr Jackson by Mr Lloyd that he was therefore not in a position to know whether the technology was adequate.  The transcript proceeds as follows:

“Now, without you having attempted to communicate with Mr – perhaps I will just call him ‘the applicant’ – via a video link, would you agree that you are not in a position to know whether that technology would be adequate for the purpose of taking instructions? --- I wouldn’t agree with that.  ---  I would prefer to have face-to-face contact with a client – to take instructions as to affidavits, factual matters, and also more critically perhaps tactical decisions as to how the case might be conducted. 

You have said here that you would prefer that it be done on that basis?--- Yes.

Your affidavit says it is necessary, but because you haven’t actually done it, you can’t say whether it is necessary.  It is just your preference that it be done that way?---Indeed, yes.” (pp 9-10)

22                  Mr Bedrossian recalled Mr Jackson in order to establish that Mr Jackson and counsel for the applicant have been retained pro bono.  Mr Jackson’s evidence was that the basis of the retainers is that the lawyers will not seek to recover costs and disbursements except insofar as the applicant has the benefit of a costs order. 

23                  The respondents relied on an affidavit of Mr Norton sworn 17 June 2002.  Mr Norton is a public servant employed by the Department of Immigration & Multicultural & Indigenous Affairs.  He says that he is familiar with the operation of detention centres under the control of the Department and the facilities available within such detention centres.

24                  Mr Norton’s affidavit deals with management concerns in the running of detention centres.  Mr Lloyd relies on this evidence as a factor to be taken into account in the exercise of my discretion.  However, it seems to me that the transfer application can be disposed of without reference to the management issue and I have not taken this issue into account in the exercise of my discretion.

25                  Mr Bedrossian relied heavily upon the decision of Sheppard J in Le.  There, his Honour dealt with an application on behalf of two children to be brought from immigration detention at Port Hedland to Sydney to be able to meet and instruct their lawyer.  Coincidentally, the lawyer in those proceedings was Mr Peter Jackson and the applicant was Ms Le. 

26                  Sheppard J stated that the question of whether an order ought to be made will depend upon a number of factors including the need to try the proceedings expeditiously and efficiently.  (at 30)  His Honour also made it clear that each case must be looked at in the light of its own facts.  (at 33) 

27                  Mr Bedrossian submitted that the present transfer application is on all fours with the application dealt with by his Honour in Le. 

28                  Mr Bedrossian relied upon the need for expedition and upon the undesirability of videoconferencing, particularly where an interpreter is required for the conference.  In this regard, he relied upon the following passage of Sheppard J’s judgment in Le:

“At this stage it is not possible to tell whether the applicants, or some of them, will give oral evidence.  Desirably the usual practice of the Court will be followed.  Evidence which they are to give will be made the subject of affidavits.  If it is desired to cross-examine one or more of them, the witnesses will have to be present.  I do not know whether video facilities are available in Port Hedland as they are in the main centres in Australia.  But in a case where people will, perforce, need to give evidence through an interpreter, I do not regard it as likely to be satisfactory for their evidence to be taken by video let alone the telephone.   …

It would seem to be unwise for the case to proceed without the applicants being available.  In any litigation problems may arise which unforeseeably bring about a situation in which a witness not thought to have been a necessary witness or not thought to have been one who would need to be cross-examined, is, after all, required to go into the witness box.  In those circumstances the case cannot proceed satisfactorily unless the applicants are available at a place which is at least proximate to the court in which the case is heard.” (at 31)

29                  Reliance was also placed in the transfer application upon a submission that the lawyers in the present proceedings have been retained on an honorary basis.  This was a factor which Sheppard J took into account.  (at 33)

30                  Mr Lloyd submitted that the decision in Le is to be distinguished from the present transfer application.  First, he said that the position in relation to video links has moved on since 1994 when Le was decided.  Second, he said that there was nothing in the pleadings or in the evidence of Ms Le to suggest that any evidence from the applicant would be required.  Third, he said that Mr Jackson and counsel were not retained on an honorary basis in the same way as Mr Jackson had been retained in Le. 

31                  Video link technology has become an accepted way in which cases in this Court are conducted.  As Tamberlin J said in Versace v Monte [2001] FCA 1454 at par 16:

“Generally speaking, given the advanced state of video link technology and because of the convenience of this procedure and the savings in time and cost it provides, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link, especially where evidence is adduced from various witnesses: see McDonald v Commissioner of Taxation [2000] ATC 4,271 at [21]-[22]; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 and cases there cited.  In the latter case, Katz J, at [25] said:

‘I find a strong current of authority in favour of permitting the relatively new video link technology to be used, in the absence of some considerable impediment telling against its use in a particular case.  I do not find in this case, having regard to the matters put to me by counsel for the respondents, anything sufficiently out of the ordinary to cause me not to permit Dr Roulin’s evidence to be taken by video link.’ (Emphasis added).”

32                  Subject to one proviso, I accept the submission put to me by Mr Lloyd that if it is appropriate to conduct trials by way of video link, it must be acceptable for the legal advisers to conduct conferences with their clients by video link unless there is a substantial impediment to its use.

33                  I do not consider the need for the applicant to have an interpreter to be such an impediment.  It seems to me that there is no reason why Mr Jackson cannot have an interpreter with him in Sydney when the videoconference takes place.

34                  Moreover, the issues, which arise in the substantive proceeding, do not constitute an impediment to the use of video.  Rather, in my view, they strongly support it.  This is because there is no real issue of fact between the parties and I do not see how or why oral evidence of the applicant would be required. 

35                  Mr Bedrossian submitted that evidence may be adduced as to the factual circumstances of the applicant’s detention.  I do not see how this issue arises either on the application or on the pleadings or, indeed, on either of the alternative bases upon which the applicant contends that he is entitled to the relief sought in the application.

36                  Mr Bedrossian submitted that it may be necessary to adduce evidence from the applicant as to his knowledge of steps taken by the Minister to resolve the applicant’s immigration status or to transfer him to another destination.  It seems to me that any such evidence would be documentary.  Evidence of the steps taken by the Minister would be available from the respondents’ files.  If necessary, the existing evidence could be supplemented by tendering documents from those files.  In any event, I do not see how the applicant’s knowledge of those steps bears upon the Constitutional questions raised by the applicant in these proceedings.

37                  It seems to me that videoconferencing will assist in, rather than impede, the speedy hearing of the proceedings.  Indeed, quite apart from the other reasons which I have given for the exercise of my discretion against the applicant, in my view, it would have been open to me to dismiss the transfer application upon the ground that Mr Jackson did not take up the opportunity to have a videoconference.  Without at least attempting such a conference he was not in a position to assist the Court in resolving the question of whether videoconferencing was a satisfactory means of communication with his client.

38                  In my view, there is only one possible impediment to the use of videoconferencing between Mr Jackson and his client.  Mr Bedrossian did not raise this issue but it seems to me to be important that I refer to it in my judgment. 

39                  Trials are held in public but conferences between a solicitor and his or her client are to be kept confidential.  Although the Minister has offered to provide the video facilities free of charge, no mention was made of the need for confidentiality.  I do not know whether the Minister is able to make available a room to the applicant where he can have a videoconference in private.  I assume that this can be arranged.  I will reserve liberty to apply on 72 hours notice if any question arises.

40                  It is unnecessary for me to determine whether Mr Jackson and counsel are retained in an honorary capacity in the same way as in Le.  Even if their retainers are analogous to honorary representation, I would not depart from the view I have reached as to the suitability of videoconferencing.

41                  There is one further submission, which I should deal with.  Mr Bedrossian submitted that since, in any event, it will be necessary to have the applicant in Sydney for the purpose of the trial, I ought to exercise my discretion to order that he be transferred to Villawood now so that instructions can be given to Mr Jackson.  It was submitted that the same costs would be incurred in any event.  However, it seems to me that it is unnecessary for the applicant to be physically present at the hearing.  This is because the case will turn on legal argument and there is no real factual dispute between the parties.

42                  Accordingly, for the reasons set forth above, I propose to dismiss the application for transfer of the applicant from Port Hedland to Villawood.

Associate:

Dated:              9 August 2002