FEDERAL COURT OF AUSTRALIA

SZTYO v Minister for Immigration and Border Protection [2015] FCA 30

THE COURT ORDERS THAT:

1.    The Interlocutory Application dated 18 November 2014 and filed in Court by the applicant (SZTYO) on 19 November 2014 be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the said Interlocutory Application.

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

THE COURT ORDERS THAT:

1.    The balance of this proceeding be dismissed.

2.    The applicant (SZTYO) pay the respondents’ costs of and incidental to this proceeding insofar as those costs relate to the case brought against them by SZTYO in this proceeding.

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

REASONS FOR JUDGMENT

1    On 10 November 2014, two men (SZTYO and SZUBU) who were, as at that date, held in immigration detention at the Villawood Immigration Detention Centre (Villawood) made urgent applications before a Judge of this Court in which each of them sought an interlocutory injunction restraining the Minister for Immigration and Border Protection (the Minister) from transferring them out of Villawood. Earlier that day, officers of the Department of Immigration and Border Protection (the Department) had notified applicant SZTYO that the Department intended to transfer him to the Wickham Point Immigration Detention Centre (Wickham Point) which is located near Darwin NT and had notified applicant SZUBU that the Department also intended to transfer him to the Yongah Hill Immigration Detention Centre in Western Australia.

2    The urgent applications brought by SZTYO and by SZUBU on 10 November 2014 were successful and interlocutory injunctions were granted as sought.

3    The application made by SZUBU on 10 November 2014 was made in Full Court proceeding NSD 735 of 2014 which was an application for an extension of time and for leave to appeal from a judgment of the Federal Circuit Court of Australia (SZUBU v Minister for Immigration and Border Protection [2014] FCCA 1498). That application was heard on 7 October 2014. Judgment was reserved on that day. Judgment was delivered on 23 January 2015 (SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3) (SZTGV).

4    SZUBU’s application was thought to have features which were shared by two other sets of proceedings in this Court: Proceeding NSD     716 of 2014 between SZTGV, as applicant, and the Minister and the Refugee Review Tribunal, as respondents, and proceeding NSD 837 of 2014 between SZTWD, as applicant, and the Minister and the Refugee Review Tribunal, as respondents. SZTGV in proceeding NSD 716 of 2014 is the same person as SZTYO.

5    In its judgment in SZTGV the Full Court dealt with the common aspects of the three proceedings and rejected the arguments advanced on behalf of SZTGV, SZUBU and SZTWD. Those arguments concerned the operation of s 424A and s 424AA of the Migration Act 1958 (Cth).

6    After dealing with the common issues, the Full Court proceeded to deal with each of the three cases individually. The first individual matter dealt with by the Full Court was SZTGV’s appeal. The Court dismissed that appeal.

7    The Full Court then addressed SZUBU’s application for an extension of time and dismissed it. The Full Court dismissed that application because it considered that SZUBU’s proposed appeal had no reasonable prospect of succeeding. At [102]-[104] of SZTGV, the Full Court said:

It is apparent therefore that the Tribunal’s process of reasoning involved (a) a consideration of what had not been said at the compliance interview; (b) the assertion of a forensic principle that if the applicant’s version were true then he would have mentioned it at that time; and (c) a deduction that because it was not mentioned at that time the account was false. The absence of any reference to the Jat Sikh woman or his bisexuality was to be seen as a matter from which one could reason to the falsity of his account.

The applicant’s argument was that this matter was ‘information’ which was required to be disclosed to the applicant within the meaning of s 424A. However, for the reasons we have already given, an absence of evidence is not information within s 424A: SZBYR at [18]. It follows that proposed appeal ground one cannot succeed.

The applicant faces an additional difficulty which is that a partial transcript of the Tribunal hearing suggested that the Tribunal had raised the compliance interview with the applicant and had done so specifically in the context of s 424AA. It is not necessary to set the transcript out in full. It suffices to say that his failure to mention the Jat Sikh woman or the applicant’s bisexuality in his responses to Question 22 or 23 or under the ‘Additional Information’ heading was raised directly with him and he was informed that the failure might form part of the Tribunal’s reasons.

8    The Full Court also held that, had s 424A been engaged (which it was not), the Refugee Review Tribunal would have successfully utilised s 424AA. In that event s 424A would still have not been breached.

9    SZTGV does not bear upon the issues raised by SZTYO in this Court.

10    SZTYO made his application for injunctive relief in this Court on 10 November 2014 in proceeding NSD 1084 of 2014. In that proceeding, SZTYO has applied for an extension of time within which to seek leave to appeal from a decision of the Federal Circuit Court of Australia given on 13 June 2014 (SZTYO v Minister for Immigration and Border Protection [2014] FCCA 1180) and for leave to appeal from that decision. The Minister is the only respondent in that proceeding. If all of the relief claimed by SZTYO in proceeding NSD 1084 of 2014 were granted, SZTYO would then proceed in this Court with his appeal from the Circuit Court decision.

11    The evidence before me established that SZTYO and the Minister have settled proceeding NSD 1084 of 2014 upon terms that SZTYO be granted an extension of time within which to seek leave to appeal, that SZTYO be granted leave to appeal and that the appeal be allowed. The parties have also agreed upon consequential orders setting aside the orders made by the Circuit Court on 13 June 2014 and remitting the matter to that Court for determination according to law. The docket Judge has not yet made the consent orders sought by the parties although I understand that it is likely those orders will be made in the very near future. The making of the agreed orders is supported by the decision of the Full Court in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143. For present purposes, I intend to proceed upon the basis that, in due course, the subject matter of the Circuit Court proceeding under challenge in proceeding NSD 1084 of 2014 in this Court will be remitted to the Circuit Court for reconsideration according to law. Nonetheless, as at the date of publication of these Reasons for Judgment, proceeding NSD 1084 of 2014 remains on foot.

12    On 10 November 2014, the Judge granted both injunctions “… until further order …”, made certain pre-hearing directions, granted liberty to apply and then adjourned the further hearing of both applications to the Duty Judge’s list on 19 November 2014.

13    On 19 November 2014, both applications came before me for further hearing. I was Duty Judge on that day.

14    In the meantime, on 13 November 2014, SZTYO and SZUBU commenced a fresh proceeding in this Court against the Minister and the Secretary of the Department of Immigration and Border Protection (the Secretary) (NSD 1174 of 2014) in which they sought the following relief:

1.    An injunction pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) or pursuant to the Court’s implied power to prevent an abuse of process, restraining the each of the Respondents, by themselves or their department, officers, agents or delegates, from transferring the First Applicant out of the Villawood Immigration Detention Centre until after the determination of proceedings no SYG 504/2014 in the Federal Circuit Court of Australia (on remitter to that Court from this Court).

2.    An injunction pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) or pursuant to the Court’s implied power to prevent an abuse of process, restraining the each of the Respondents, by themselves or their department, officers, agents or delegates, from transferring the Second Applicant out of the Villawood Immigration Detention Centre until after the determination of proceedings no SYG 726/2014 in the Federal Circuit Court of Australia.

3.    Costs.

4.    Such further or other order as the Court thinks fit.

15    SZTYO was named as the first applicant in proceeding NSD 1174 of 2014. SZUBU was named as the second applicant in that proceeding.

16    The Originating Application in proceeding NSD 1174 of 2014 was made returnable before me on 19 November 2014 for hearing at the same time as the further hearing of the applications which had been initially made to the Court on 10 November 2014 and which had been adjourned for further hearing before the Duty Judge on 19 November 2014.

17    Proceeding SYG 504 of 2014 in the Circuit Court, which is referred to in the first claim for injunctive relief made in proceeding NSD 1174 of 2014 (par 1), is the proceeding in which the judgment of that Court referred to at [10] above (SZTYO v Minister for Immigration and Border Protection [2014] FCCA 1180) was given. Thus, in proceeding NSD 1174 of 2014, SZTYO claims an injunction restraining his removal from Villawood until after the determination of proceeding SYG 504 of 2014 upon remitter from this Court as a result of orders yet to be made but expected to be made in this Court in proceeding NSD 1084 of 2014.

18    At the commencement of the hearing before me on 19 November 2014, SZTYO sought and was granted leave to file in Court an Interlocutory Application in proceeding NSD 1084 of 2014 in which he sought an injunction in precisely the same terms as the injunction which he had sought in par 1 of the Originating Application filed on 13 November 2014 in proceeding NSD 1174 of 2014.

19    By 17 November 2014, SZUBU had decided not to continue with his application for injunctive relief. On 18 November 2014, he attempted to file in the Registry a Notice of Discontinuance of the whole of the case which he was seeking to make in proceeding NSD 1174 of 2014. He was unable to file that Notice of Discontinuance.

20    At the commencement of the hearing before me, Counsel for SZUBU sought an order that SZUBU have leave to discontinue the whole of the case which he was seeking to make in proceeding NSD 1174 of 2014 and an order discharging the injunction granted by the Court on 10 November 2014 in favour of SZUBU in proceeding NSD 735 of 2014. I granted SZUBU leave to discontinue the whole of proceeding NSD 1174 of 2014 insofar as it related to him, as requested. On 24 November 2014, SZUBU filed an appropriate Notice of Discontinuance which had the effect of terminating the case which he was seeking to bring in proceeding NSD 1174 of 2014. On 19 November 2014, I also discharged the injunction which had been granted by the Court in favour of SZUBU on 10 November 2014 in proceeding NSD 735 of 2014.

21    Once all of the procedural matters had been dealt with on 19 November 2014, two applications remained to be determined by me. The first was the application made by SZTYO in proceeding NSD 1174 of 2014 for an injunction restraining the Minister and the Secretary from transferring SZTYO out of Villawood until after the determination of proceeding SYG 504 of 2014 in the Federal Circuit Court of Australia (on remitter to that Court from this Court). The second was the application made by SZTYO for precisely the same relief by way of Interlocutory Application filed in Court on 19 November 2014 in proceeding NSD 1084 of 2014. Because the two applications involve claims for precisely the same relief, I ordered that all of the evidence tendered before me on 19 November 2014 be evidence in both matters.

22    The question of substance now before the Court, therefore, is whether the Court can, and, if so, whether the Court should, prevent the Minister and his Departmental officers from transferring SZTYO out of Villawood for so long as SZTYO has extant in the Federal Circuit Court of Australia any proceeding in which he seeks permanent relief by way of declaration and injunction which has the effect of preventing the Minister and his Departmental officers from removing him from Australia. Those claims for relief will be based upon the prejudice allegedly suffered by SZTYO by reason of the data breach more particularly described at [24]-[26] below. Proceeding SYG 504 of 2014 on remitter is said to be such a proceeding.

23    By Notice of Objection to Competency lodged by the Minister and the Secretary on 14 November 2014 in proceeding NSD 1174 of 2014, those parties objected to the competency of SZTYO’s Application in that proceeding. The grounds specified in that Notice are:

1.    The Court has no jurisdiction in relation to application:

1.1    The orders sought in the application make it plain that the injunction sought by each of the applicants is an interlocutory injunction, pending the resolution of their proceedings in the Federal Circuit Court.

1.2    An interlocutory injunction is only available where the Court’s jurisdiction has been properly invoked by a substantive application.

1.3    Section 23 of the Federal Court of Australia Act 1976 (Cth) is not a source of jurisdiction; it provides that the Court has power to make orders “in relation to matters in which it has jurisdiction”.

1.4    The applicants have not identified any matter in the Court’s jurisdiction in relation to which they seek the relief claimed.

The Relevant Facts

The Evidence of SZTYO

24    By letter dated 12 March 2014 from the Secretary to SZTYO which was received by SZTYO on or about the same date, the Secretary informed SZTYO that, in February 2014, a routine report released on the Department’s website unintentionally enabled access to some personal information about persons who were in immigration detention on 31 January 2014. This incident has come to be known as “the 2014 data breach”. I shall refer to it by that descriptor. The Secretary said that this information had been accessible for a short period of time before it was removed from the Department’s website. The information was not visible as part of the report displayed on the Department’s website and was not easily accessible.

25    SZTYO was in immigration detention on 31 January 2014.

26    In his letter, the Secretary went on to inform SZTYO that the information that it had been possible to access via the report to which he referred was SZTYO’s name, date of birth, nationality and gender, as well as details about his detention and whether any other members of his family were also in detention in Australia. In his letter, the Secretary went on to say that the Department would assess any implications for SZTYO personally as part of its normal processes. He said that SZTYO himself may also raise any concerns that he might have during the course of those processes.

27    Shortly after receiving that letter, SZTYO commenced proceeding SYG 504 of 2014 in the Circuit Court. As I have already mentioned, on 13 June 2014, a Judge of the Circuit Court summarily dismissed that proceeding.

28    By letter dated 27 June 2014 from a Departmental officer to SZTYO, the Department invited SZTYO to put in writing any concerns that he might have regarding the impact upon him of the 2014 data breach.

29    SZTYO subsequently wrote two letters in response to that letter, the first of which was sent on 11 July 2014 and the second a little later. In his responses, SZTYO argued that:

(a)    The 2014 data breach was a crime;

(b)    The Department was not entitled to investigate the circumstances in which the 2014 data breach occurred as it had a conflict of interest;

(c)    There was no way of knowing who had accessed SZTYO’s personal information;

(d)    There was a real possibility that SZTYO’s personal information had been revealed to authorities in his home country thereby putting him at serious personal risk; and

(e)    The consequences of the 2014 data breach should be dealt with by the Privacy Commissioner (to whom SZTYO had already complained).

30    In a report dated 20 May 2014 entitled “Privacy Breach – Data Management Report” prepared by KPMG for the Department, KPMG assessed the circumstances in which the 2014 data breach had occurred and made recommendations as to ways and means of avoiding similar breaches in the future.

31    On 23 October 2014, SZTYO commenced proceeding NSD 1084 of 2014 in this Court. This is the proceeding in which he has sought an extension of time to enable him to appeal from the judgment of the Circuit Court given on 13 June 2014 in proceeding SYG 504 of 2014.

32    At about 11.00 am on 10 November 2014 SZTYO was told by his case officer at Villawood that he was to be transferred to Wickham Point. He was told that he was being transferred in order to make room for other detainees – presumably new arrivals at the centre. He was also told that there was pressure on accommodation at Villawood because of the construction work that had been going on there for some time.

33    By late 2014, construction work had been going on at Villawood for some years. Stage 1 was completed in April 2014 and opened in May 2014. Stage 2 of the construction commenced in May 2014. The balance of the project is due for completion in 2016.

34    In November 2014, SZTYO was living in the new part of the facility. He had been living there since May 2014 when Stage 1 of the construction work was completed.

35    SZTYO said that, on 12 November 2014 and on 13 November 2014, a number of detainees were transferred from Villawood to other detention centres. He said that, over the two days in question, a total of 36 detainees were transferred out.

36    SZTYO also testified that, to his observation, Villawood was not completely full as at 18 November 2014 even if the 36 transferees referred to at [35] above had not been transferred out. He said that there were about ten cabins in the compound where he was then located which were empty. Some were occupied by only one person although each had the capacity to accommodate two persons. He also said that he had been informed that two other detainees had been transferred out in the place of SZUBU and him in light of the injunctions granted by the Court on 10 November 2014.

37    SZTYO said that he was concerned that, if he is transferred out of Villawood, he will be unable readily to contact his legal representatives in relation to an appeal which he has instituted challenging the decision of the Refugee Review Tribunal not to grant him a protection visa; in relation to Proceeding SYG 504 of 2014 in the Circuit Court (and Proceeding NSD 1084 of 2014 in this Court) in which he seeks relief as a consequence of the 2014 data breach and in relation to his application under the International Treaties Obligations Assessment (ITOA) being carried out by the Department in order to assess whether, as a result of the 2014 data breach, Australia’s non-refoulement obligations had not been complied with. He also had concerns about his capacity to continue in an effective way with his complaint to the Privacy Commissioner.

38    He went on to say that the main way that he currently contacts his legal representatives while at Villawood is by using his mobile phone. He said that, if mobile phone coverage is not good at Wickham Point, it would be very difficult for him to make effective contact with his legal representatives.

Additional Evidence Led on Behalf of SZTYO

39    Counsel for SZTYO read an affidavit affirmed by Michaela Byers on 13 November 2014 in SZTYO’s case. Ms Byers is a solicitor and registered migration agent with considerable experience in the field of migration law. She currently acts as a legal representative for SZTYO and SZUBU in their respective complaints to the Privacy Commissioner in relation to the 2014 data breach. She also acts as the registered migration agent for both of those men in relation to the ITOA with the Department of Immigration and Border Protection currently under way. She does not act for either SZTYO or SZUBU in any court proceedings. The Privacy Commissioner complaints and ITOA matters are ongoing.

40    Ms Byers said, if SZTYO is transferred interstate, she will not be able to attend the ITOA interview with him. She said that the Department does not normally provide any video or phone link for interstate agents in relation to such interviews.

41    Ms Byers said that she had had considerable experience in dealing with persons held in immigration detention in the Northern Territory and Western Australia. Through her firm’s asylum seekers and refugee assistance programs, her firm currently has more than 500 clients held in immigration detention in those two States. She said that communication with her clients located in the Northern Territory and Western Australia is extremely difficult. Some detainees are not permitted to have mobile phones. She said mobile reception at Wickham Point is very unreliable. If an agent wishes to make contact with a client in an immigration detention centre by way of the detention centre landline, a booking 24 hours in advance needs to be made. Often the client is not available when the call is actually made.

42    The cost of telephoning interstate in business hours using telephone interpreters, and the time taken to organise to speak to the client, can be prohibitive for Ms Byers’ firm. Ms Byers acts in a pro bono capacity and these additional impositions impair her ability effectively to represent her clients.

43    Ms Byers said that, in her experience, detainees at Wickham Point typically do not have access to any local legal advice or representation. She said that detainees at Wickham Point do have some access to support persons from the Red Cross but that these persons generally do not have legal training or qualifications.

44    She also provided some rudimentary information about the redevelopment of Villawood based upon information available on the Department’s website.

The Respondents’ Evidence

45    The respondents read an affidavit affirmed by Christopher John De Ruyter who is presently employed as the Director of the Operational Support and Logistics Section in the Compliance Operations and Detention Division within the Department. Mr De Ruyter said that, as part of his duties in that capacity, he is responsible for the placement of detainees within Australia’s immigration detention network, for transfer of detainees around that immigration detention network, for coordinating logistical arrangements such as charter flights, commercial travel and escorts for detainees, and for obtaining necessary clearances to facilitate transfers of detainees. He said that he is familiar with the operations and practices of the immigration detention facilities under the control of the Department, including Villawood and Wickham Point. He also said that he was familiar with the policies of the Department in relation to the management of those facilities. Mr De Ruyter said that he made his affidavit on the basis of his own knowledge and experience and upon the basis of conversations and communications which he had had with an officer based at Wickham Point and with an officer based at Villawood.

46    Mr De Ruyter said it is important for the management of its immigration detention facilities that the Department has flexibility in managing the capacity of each facility due to ever changing requirements of the Department and of the individuals detained in each detention facility. He said that it is also necessary for detention facilities to have some flexibility in their capacity due to the fact that they also support a number of Departmental activities at Australia’s international airports, including removal action, and the holding of detected unlawful non-citizens as the result of compliance action. This is particularly important for Villawood which is the only detention centre in Sydney.

47    Mr De Ruyter did not make the decision to transfer SZTYO out of Villawood to Wickham Point. He said that a total of 40 detainees were transferred out of Villawood in mid-November 2014—15 to Yongah Hill and 25 to Wickham Point. Based upon information which he obtained from a Departmental officer based at Villawood, Mr De Ruyter testified that the decision to transfer 15 detainees from Villawood to Yongah Hill on 12 November 2014 and the decision to transfer 25 detainees from Villawood to Wickham Point on 13 November 2014 were taken in order to relieve the pressure on accommodation at Villawood caused by the redevelopment of Villawood. He said that, since May 2014, the overall capacity at Villawood had been reduced from approximately 600 persons to 415 persons. He said that it might be necessary to transfer out additional detainees in the future.

48    Mr De Ruyter was told by his informant at Villawood that detainees were identified for transfer from Villawood based upon five particular criteria, namely:

(a)    Having no immediate family in New South Wales;

(b)    Having no ongoing police investigations in New South Wales;

(c)    Having no Court or Refugee Review Tribunal matters where a date for a substantive hearing is in the near future;

(d)    Not requiring ongoing specialist medical appointments in New South Wales; and

(e)    Having no imminent migration outcome (ie an imminent removal or visa grant).

49    He stated that SZTYO was identified as meeting those criteria and thus as a suitable detainee for transfer out.

50    Immediately prior to the transfer of detainees out of Villawood on 12 November 2014 and on 13 November 2014, the single adult male section at Villawood (including the Mitchell Compound) had 14 spare beds. After those transfers, that section had upwards of 40 spare beds.

51    It seems reasonable to conclude that, by 13 November 2014, as a result of the transfers referred to above, at least for some little time into the future, the pressure on accommodation for male detainees at Villawood had eased somewhat.

52    Mr De Ruyter also gave some detail of the facilities available at Wickham Point based upon his conversations with a Departmental officer stationed at that centre. He specified the number of landlines and interview rooms available at the centre. He also said that two interview rooms had videoconferencing facilities. He said that there were onsite interpreters at Wickham Point and a fax machine. He said that detainees were permitted to have mobile phones provided that they met the Departmental guidelines for the possession of such phones. However, he accepted that mobile phone coverage was limited. He also said that there were 42 computers in each compound.

53    At par 26 of his affidavit, Mr De Ruyter described the manner in which communications between immigration detainees and their legal representatives are usually arranged at Villawood, Wickham Point and Yongah Hill. The procedure is unwieldy, cumbersome and rather “hit and miss”. I was left with the distinct impression that effective communication is difficult and time-consuming to achieve.

54    I did not find Mr De Ruyter’s evidence concerning the availability of facilities at Wickham Point particularly helpful. It would have had more weight had he also provided information as to the configuration of the centre, the number of detainees currently held there and the particular facilities and assistance that would most likely be provided to SZTYO were he transferred there from Villawood.

55    Based upon Ms Byers’ evidence, it seems that communication between persons held in detention at Wickham Point and their legal representatives and migration agents based in Sydney for the purpose of providing detailed instructions in relation to their claims is generally difficult. Just how difficult no doubt depends upon all of the circumstances in each individual case.

56    It appears the SZTYO has a reasonable command of English and would not require an interpreter.

57    Mr De Ruyter was cross-examined briefly. It was not suggested to him that the Departmental decision to move SZTYO from Villawood to Wickham Point was taken with a deliberate eye to causing inconvenience to SZTYO in the management and conduct of the various matters currently in train designed to secure his permanent residence in Australia. Indeed, in one of his answers to a question in cross-examination, Mr De Ruyter said:

We certainly don’t want to hinder any Court proceedings or matters that a detainee might have ongoing, or sort of imminence, so it’s about not impacting on the Court proceedings.

58    In his evidence, Mr De Ruyter emphasised that the transfers were driven by the need to address accommodation pressures brought about by the construction work at Villawood.

Consideration

The Parties’ Submissions

59    As matters presently stand, SZTYO has the following applications in train:

(a)    His extant applications in proceeding NSD 1084 of 2014. Those applications will almost certainly result in proceeding SYG 504 of 2014 in the Circuit Court being remitted to that Court for reconsideration by that Court according to law. The claims for relief made in that proceeding may well be amended once they have been remitted.

(b)    The ITOA process which he has initiated. It is highly likely that he will be interviewed as part of that process.

(c)    An application before the Privacy Commissioner in respect of the 2014 data breach.

60    I am confident that SZTYO will probably give evidence in proceeding SYG 504 of 2014 when it is remitted to the Circuit Court because it is reasonably clear, even at this stage, that it would be in his interests to do so.

61    Although SZTYO tendered evidence and made submissions directed to proving what his reasonable needs will be in respect of all the applications listed at [59] above, the interlocutory injunction which he seeks is sought only until the determination of proceeding SYG 504 of 2014 in the Circuit Court. He does not relate the injunction which he seeks to either of the other applications referred to at [59] above.

62    Ms Byers and SZTYO have outlined the difficulties which they anticipate will be presented for the fair and effective presentation of SZTYO’s various applications by his transfer from Villawood to Wickham Point. I have described those anticipated difficulties at [37]-[43] above.

63    All of the obstacles to effective communication between SZTYO and his advisers which Ms Byers has anticipated in her evidence are, at this point in time, matters in prospect rather than matters which have already occurred. This is not to detract from Ms Byers’ evidence but it must be said that, given that SZTYO remains at Villawood for the time being, none of the anticipated difficulties has yet occurred. Nonetheless, it was submitted on behalf of SZTYO, upon the basis of Ms Byers’ evidence and, to some extent, by reference to the evidence of Mr De Ruyter, that the Court should restrain any transfer of SZTYO from Villawood to Wickham Point for so long as his application soon to be remitted to the Circuit Court remains outstanding.

64    Counsel for SZTYO submitted that this Court has jurisdiction to grant the injunction which he seeks on two alternative bases. First, he submitted that the Court has an implied jurisdiction to prevent an abuse of its own processes. He said that, should I form the view that the transfer of SZTYO from Villawood to Wickham Point would unduly interfere with the conduct of the two sets of proceedings which remain outstanding in this Court, that implied jurisdiction would be engaged. Second, he relied upon s 39B(1) of the Judiciary Act 1903 (Cth) because the relief sought is an injunction against the Minister and the Secretary, both of whom are officers of the Commonwealth.

65    Counsel for SZTYO relied upon s 23 of the Federal Court of Australia Act 1976 (Cth) which provides:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

66    He also relied upon Rule 30.33 of the Federal Court Rules 2011 which provides:

If a party or a witness is in lawful custody, the Court may make an order:

(a)    that the party or the witness be produced; and

(b)    for the continuing custody of the party or the witness.

67    It was submitted on behalf of SZTYO that, in the circumstances of the present case, given the significant difficulties that will be posed for SZTYO if the transfer is effected, the Court’s jurisdiction to prevent an abuse of its own processes has, in fact, been engaged. In support of that proposition, Counsel relied upon NAFC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99 (NAFC) and Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27 (Le).

68    The respondents’ advocate submitted that the injunction sought by SZTYO is plainly an interlocutory injunction. In proceeding NSD 1174 of 2014, so it was submitted, the claim for interlocutory relief was not anchored in any claim for substantive final relief and was thus incompetent. This is the point raised by the respondents in their Notice of Objection to Competency. The respondents’ advocate went on to submit that proceeding NSD 1084 of 2014 was about to be brought to an end upon the basis which I have described. She said that the final form of proceeding SYG 504 of 2014, once remitted to the Circuit Court, was a matter of speculation at the moment. For that reason, it was futile to speculate at the moment as to SZTYO’s needs in respect of that matter.

69    The respondents’ advocate made the very valid point that there was no impediment to the legal representatives of SZTYO taking immediate and urgent steps to confer with SZTYO, to obtain instructions from him in relation to all of his extant applications and to obtain Proofs of Evidence from him for use in the upcoming proceedings. She submitted that it was relatively clear that proceeding SYG 504 of 2014 will soon be remitted to the Circuit Court. The respondents’ advocate submitted that there was no proper foundation for granting the interlocutory injunction presently sought by SZTYO.

70    The case sought to be made by SZTYO under s 39B of the Judiciary Act appears to be based upon the proposition that those who are detaining SZTYO have a duty to ensure that he has access to all reasonable facilities and other assistance for making a statutory declaration for the purposes of the Migration Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention (as to which see s 256 of the Migration Act). The respondents’ advocate went on to submit that the question of whether that duty had been breached at the present time was a matter of pure speculation because the fulfilment of that duty had not been tested at the present time.

71    I pause to note that SZTYO has not made any claim based upon s 256 of the Migration Act at this stage. The evidence was that he is not an unauthorised maritime arrival so that he has not been, on that account, denied his rights under s 256.

72    It was also submitted on behalf of the respondents that the Minister, the Secretary and the Department generally needed to retain flexibility in the management of the immigration detention centre network which included the need to know and have control over where particular detainees will be held. She pointed out that there was currently no substantive administrative law challenge to the decision to transfer SZTYO. Rather, the injunction presently being sought was said to be based upon the need to prevent the processes of the Court from abuse. The respondents’ advocate submitted that none of the authorities relied upon by Counsel for SZTYO supported the grant of the injunction sought in the present case.

Decision

73    There is no doubt that the injunction presently being sought by SZTYO is an interlocutory injunction. It does not finally determine any rights between him and the respondent parties and is admittedly being sought in aid of other alleged rights. The claim is not elevated to any higher status by being included in a fresh proceeding (viz proceeding NSD 1174 of 2014).

74    Further, the interlocutory injunction being sought is in aid of private rights.

75    In Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 254-262 [44]-[74] the Full Court comprehensively explained the principles which should generally be applied when the Court is considering an application for interlocutory injunctive relief. In particular, at 256 [52]-[53], the Full Court said:

[52]    In Lenah Game Meats, a majority of the High Court held that, where an interlocutory injunction is sought (inter alia) in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. As Gleeson CJ said at [15]:

If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.

See also [8]-[21] (per Gleeson CJ); [59]-[61] (per Gaudron J); and [86]-[92]; [98]-[100]; and [105] (per Gummow and Hayne JJ). At [10], Gleeson CJ also specifically cited with approval Spry, The Principles of Equitable Remedies (5th ed, 1997) pp 446-456.

[53]    At [13], Gleeson CJ expressly approved the following passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

76    In proceeding NSD 1174 of 2014, SZTYO has not articulated any claim for final relief which is intended to be preserved by the claim for relief made in par 1 of the Originating Application filed in that proceeding. Indeed, there is no substantive claim at all articulated in that Originating Application.

77    In proceeding NSD 1084 of 2014, SZTYO has made the claims which I have described at [10] and [11] above. As I have already noted, it is likely that orders will be made upholding all of those claims and that the substantive claim previously made in proceeding SYG 504 of 2014 in the Circuit Court will be remitted to that Court to be reconsidered by that Court, either as originally made or in amended form.

78    It is not possible to discern any claim for final relief made in proceeding NSD 1084 of 2014 which could support the interlocutory injunction now sought. Further, given that that proceeding is almost at an end, even if such a claim could be identified, it would not be a claim which could support an interlocutory injunction in the form which is now sought.

79    These fundamental structural problems lead, in my view, to the inevitable conclusion that SZTYO has failed to establish that there is a serious question to be tried or prima facie case which can support the interlocutory injunction now sought.

80    The evidence does not support the proposition that the decision to transfer SZTYO constitutes an abuse of process. At its highest, such a transfer might cause inconvenience to SZTYO and his advisers although the nature and extent of that inconvenience is presently a matter of speculation. In addition, the decision is not the subject of any claim for relief by way of judicial review nor is s 39B of the Judiciary Act actually relied upon in the Originating Application. The essential proposition being advanced by SZTYO is that this Court should grant an interlocutory injunction in order to assist in the preservation of rights to be agitated in the Circuit Court. That proposition is unsound and should be rejected. It must be remembered that there is no present threat to remove SZTYO from Australia. The only matter in prospect is a potential transfer within the immigration network.

81    Section 23 of the Federal Court Act only gives the Court power to grant an injunction if it is otherwise properly seized of a substantive matter. On its own, that section does not assist SZTYO in the circumstances of the present case. Rule 30.33 of the Federal Court Rules has no application to the present case. SZTYO is not in “lawful custody” within the meaning of that rule.

82    However, in deference to the careful arguments made to the Court by Counsel for SZTYO, I intend to make a few observations as to whether, assuming appropriate final relief had been claimed in one or other of the relevant proceedings, the Court might have granted the injunction now sought. To that end, it is necessary to make some observations about the authorities relied upon by Counsel for SZTYO.

83    In Le, the applicants were two children who had arrived in Australia from China in December 1993 and who were being held in custody at the Port Hedland Immigration Detention Centre. By their next friend, they commenced proceedings in the ACT Registry of this Court for review of the Minister’s decision to refuse to accord them refugee status. In Le, the applicants sought orders that the Minister bring, or cause to be brought, each of them to a suitable place in Sydney and provide reasonable facilities to them so that they might meet with their next friend and legal advisers, prepare affidavits, attend court and give oral evidence if required.

84    Justice Sheppard considered that the real question raised by the application for transfer required the Court to consider what directions should be given in order that the case may be properly managed and prepared for trial. He took the view, quite simply, that the issue raised was a case management question. He began his consideration of that question by noting that the Court does not usually sit in Port Hedland and that it would be most inconvenient for it to have to do so. He then noted that it was not possible to tell at the time when he dealt with the matter whether one or both of the applicants would give oral evidence before the Court in support of their judicial review application. His Honour then looked at the desirability of transferring the case to the Western Australian Registry of the Court and concluded that it was also not convenient to take that course either. At 32E-33G his Honour said:

Having reflected on the matter, I have come to the conclusion that the best way of managing the case is to leave it in Sydney. This will necessitate its being transferred to the New South Wales Registry of the Court. Directions need to be made for the filing of affidavits by the applicants and other witnesses, if there be any. Those affidavits cannot be prepared unless the applicants' legal advisers are able to interview them. It is therefore appropriate to direct that the applicants be brought in custody to the Westbridge Centre and there housed until the case is concluded. So that the period during which that is necessary is as short as it reasonably can be, I have in mind directing that they be brought to Sydney three weeks before the date fixed for the hearing of the matter. That should give time for affidavits to be prepared and for the respondents to file any affidavits to be relied upon by them. The matter can then proceed to hearing. If it is appropriate, the applicants can then be returned to Port Hedland.

During the argument there was discussion about the powers of the Court to make such a direction. I have no doubt that this Court has power to make directions of this kind. The Court's power to make directions necessary to have cases properly prepared for trial derive from the Federal Court of Australia Act 1976 (Cth) and from the Federal Court Rules 1979 (Cth), particularly O 10 thereof. There is also power conferred by s 96 (now s 256) of the Migration Act 1958 (Cth). Section 96 provides:

“Where a person is in custody under this Act, the person having his or her custody shall, at the request of the person in custody, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her custody.”

The section, then s 41, was one of the original sections of the Migration Act. In the course of his Second Reading Speech, the then Minister for Immigration said (Hansard, House of Representatives, 1 May 1958, at 1398):

“Yet another safeguard is provided by clause 41 of the bill. It may be that a person arrested as a deportee will not dispute the question of identity, but will contest the validity of the deportation order. In these circumstances legal questions are involved, and should be decided by a superior court. Such a hearing can, of course, already be secured by writ of habeas corpus or by injunction. The bill, however, goes further. It ensures that persons arrested must be given all reasonable facilities for obtaining legal advice and taking legal proceedings.”

Those remarks establish that the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. That is how the section should be construed.

One answer made by counsel for the Minister to the submission that the section had not been complied with was that the Minister's offer to provide appropriate facilities at Port Hedland to enable the applicants to be interviewed by their legal advisers was a sufficient discharge of his obligation. In the circumstances of this case, I do not so regard it. It is not a practical solution to the problem. This emerges clearly from the various matters I have stated in these reasons.

No solution to the problem will be completely satisfactory to all parties. I have found the matter a difficult one. I am satisfied, however, that the course I have decided on is the most practical one. It should lead to a comparatively early resolution of the litigation. The only cost to the Minister and his department will be the transport of the applicants to Sydney and back to Port Hedland, if that should be appropriate. The applicants will be able to be adequately represented for no charge to them and the Court will be able to manage the case more effectively and more efficiently than it could if the case were to be heard in Port Hedland.

Before I conclude, I should mention one further matter. I can well understand that the Minister would have a concern about the course I have decided upon because of an understandable anxiety that others in Port Hedland may make similar applications. I cannot assert that this will not happen. But each case must be looked at in the light of its own facts and circumstances. One of the matters which may distinguish this case from others is the honorary legal representation being made available to the applicants. Others may not be so fortunate. They are more likely to be represented by one or other of the legal aid agencies with the consequence that the course outlined to Mr Jackson by the Western Australian Legal Aid Commission is more likely to be the one that is followed.

85    The application in Le was an application for an order requiring the Minister to bring the applicants from Port Hedland to Sydney. It was resolved by his Honour taking such steps as were reasonably necessary to ensure that the applicants had a fair and reasonable opportunity to prepare their upcoming case. He made the order sought.

86    It may be, at some point in the future, in the event that SZTYO is moved out of Sydney, he might be justified in bringing an application in the appropriate court (which may well be the Circuit Court) for similar relief in the event that his entitlements to reasonable access to advisers embodied in s 256 of the Migration Act are not being accorded to him.

87    At this point in time, however, I do not consider that the circumstances presently confronting SZTYO bring his case within the discretionary considerations exercised by Sheppard J in Le. In any event, there is no case here that requires case management.

88    In NAKG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 997, the applicant made a substantive claim in which he sought a declaration that s 196 of the Migration Act was constitutionally invalid with the consequence that his continued detention was unconstitutional and illegal. He also claimed an order that he be released. In addition to those claims, he made a claim for an interlocutory order requiring the Minister to transfer him from the Port Hedland Immigration Detention Centre to Villawood. That claim was put as a motion for directions for the proper and efficient management of the case for trial. At [25]-[30] of his Reasons, Jacobson J referred to Le. His Honour then went on to consider the various matters raised by the applicant as constituting impediments to his being able fairly and reasonably to prepare his case for trial. In the end, his Honour declined to make the transfer order sought by the applicant.

89    In NAFC, the applicant had applied in the Refugee Review Tribunal for review of a decision by the Minister to cancel his visa. He did this shortly after being taken into custody. It was the intention of the Minister, having taken the applicant into custody in Sydney, to transfer him to the Woomera Immigration Detention Centre. A Judge of this Court granted an interim order restraining the Minister from removing the applicant to Woomera. Subsequently, the applicant filed an application under s 39B of the Judiciary Act in relation to the transfer decision.

90    Beaumont J viewed the matter as raising important questions concerning the interpretation and application of s 256 of the Migration Act. In his Reasons, he referred to both Le and NAKG. As far as Le was concerned, at [27], Beaumont J said that Sheppard J was not attempting to lay down any rule of general application in this area. At [32], he said that the case before him arose in a context different from both Le and NAKG. His Honour then embarked upon a detailed consideration of the true meaning of s 256.

91    At [52]-[54] his Honour said:

[52]     As has been noted, on behalf of the applicant, it is said, in essence, that the present case is special because of the complexity of the issues likely to arise in his challenge to the cancellation of his visa.

[53]     In my opinion, whilst this contention appears to have some force, it is impossible for the Court to form a considered view of the degree of that complexity without inviting the Court to delve into the professionally privileged areas of the preparation of collateral litigation. In any event, the “reasonableness”, or otherwise, of the facilities to be provided for the purposes specified in s 256 is, as has been said, a question to be determined by the making of a value judgment in the light of all the facts at the material time. The applicant's case is, as the Minister submitted, one of the apprehended breach at Woomera of the guarantee provided by s 256. For the reasons given by Jacobson J, no breach has, in my view, yet occurred, given the evidence of Ms McPaul, which I accept as evidence of an intention to provide “reasonable facilities” within s 256. To my mind, the claim of such an apprehended breach cannot derogate from the Minister's transfer power if that power is otherwise regularly exercised, and no such other challenge is propounded here. At the same time, as has been said, s 256 is a free-standing guarantee, which must be given its own effect, wherever the detainee is held.

[54]     In the result, whilst I am of the view that the challenge to the proposed transfer to Woomera cannot be maintained, the operation of s 256 must be allowed its own free-standing operation at Woomera. This can be appropriately achieved by the Minister giving a suitable undertaking, or, if necessary, by a declaratory order.

92    His Honour considered that, in effect, he should require the Minister to give an undertaking that s 256 would be complied with and that, in the event that the Minister declined to give such an undertaking, a declaration as to the need for compliance with that section should be made.

93    I do not consider that an order such as the order made by Beaumont J in NAFC should be made in the present case. There is no present claim to the effect that s 256 has been breached by the Minister or his Department and there is no inevitability about any postulated future breach. The Court is entitled to assume that the Minister will comply with s 256 until such time as there is evidence to the contrary.

94    In my judgment therefore, the authorities relied upon by SZTYO in the present case do not support his present claim for an interlocutory injunction.

95    Nothing in these Reasons for Judgment should be interpreted as affecting in any way such prospects as SZTYO may have in the future to make an appropriate application either in this Court or in the Circuit Court for an injunction restraining his transfer from Villawood to some other immigration detention centre or for an order requiring his repatriation to Sydney in the event that such transfer is effected. Any application of that character made in the future would have to be considered on its merits at the time and in light of all the relevant circumstances.

96    For all of the above reasons, the present applications must be dismissed with costs.

Associate:

Dated:    30 January 2015