FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1271

Remarks of Justice Wilcox

On Thursday last week (10 October) I heard argument concerning interrogatories that the applicant wished to be answered by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.  I ruled that, with some amendments, the interrogatories should be answered.  I extended the original answer date (8 October) to 31 October, this date being set to meet the Minister’s convenience.  In order to allow the answers to be available at trial, I postponed the trial of the matter from 15 October until the week after 31 October.  Subsequently a trial date (6 November) was set.

When I made those directions, I indicated I would publish written reasons for my ruling about interrogatories during the course of this week.  On Wednesday last my associate notified the parties’ solicitors that this would be done at 2.15pm today.  Under those circumstances, it came as a surprise for me to learn that, yesterday, the Minister filed an application for leave to appeal against my decision.

I wish to make it plain that I have no problem about a decision of mine being subjected to the appeal processes provided under the relevant statutes. The appeal system is an essential safeguard against injustice.  In this Court, appeals are common.  They often succeed.  I have never felt affronted by any party taking advantage of their appeal rights.  I have never felt my personal ego to be at stake in relation to the outcome of any appeal against a decision I have made.  However, two aspects of the present application cause me concern.

First, it is disappointing that the Minister and his advisers should have felt it appropriate to file the application for leave without waiting for reasons for judgment they knew would be available to them on the following day.  I would have expected any litigant, let alone a Commonwealth Minister, to pay the Court the courtesy of considering a judge’s reasons for decision before deciding to contend the judge was wrong.  A 24 hour delay would have made little difference; the date for answering interrogatories is still 13 days away.

Second, and perhaps more importantly, I am concerned about the effect of the application on the trial date.  Because of the interrogatories issue, the trial date has already been once postponed.  The fact that this might need to be done again is not, in itself, a matter of great moment.  But it is necessary to bear in mind that the applicant has been in detention since 7 February last.  It is not suggested he has ever committed an offence under Australian law.  He entered Australia lawfully, pursuant to a visa granted to him by the Department, and he continued to hold a visa, of one kind or another, until his arrest on 7 February.  During that time he maintained contact with the Department.  The Department was aware of his home address and arrested him there.  So far as I can see, from the evidence, the applicant has conducted himself in an exemplary fashion, so far as Australian immigration law is concerned.  Notwithstanding this, by the presently fixed trial date, he will have been in detention for nine months.  I would regard it as a matter of great concern if that period were to be extended because of the Minister’s wish to challenge my ruling on a procedural issue.  Nothing is more fundamental to our legal system than individual liberty; people ought not to be deprived of that liberty except under circumstances of necessity.  I express the hope that the Minister’s submission in relation to grant of leave to appeal will include a proposal to ensure that, if it is not possible for the appeal to be determined before 31 October, the applicant will be released from detention until this litigation is completed.

I publish my reasons for the rulings I made on 10 October.  For the convenience of the parties, I provide each of them with a copy of these remarks.

18 October 2002