Supreme Court of SA|2003-01-16|Before: Besanko JJ, Gray J, Black CJ, Weinberg JJ, Bleby J, Lander J

BEEHROOZ & ORS v DIMIA & ORS No. SCCIV-02-856 [2003] SASC 7 (16 January 2003)

1 LANDER AND BESANKO JJ. This application for leave to appeal should be refused. In our opinion, the decision of Gray J that the applicants have not identified a defence known to law is correct and the applicants have not established that it is sufficiently arguable that his Honour erred.

2 Gray J decided the matter against the applicants on two grounds. First, assuming for the purpose of considering this point that the applicants have identified a defence known to law, he held that the material the applicants put forward was not, as a matter of fact, sufficient to establish that the documentary material sought by the subpoenas was evidentiary material: ss 3 and 20(1) of the Magistrates Court Act 1991 (SA).

3 We think it is arguable that his Honour erred in this respect in that he placed too high an onus on the applicants. It is reasonably arguable that, although the court must be satisfied that the subpoenas do not involve a fishing expedition or have not been issued for an improper or collateral purpose, the applicants do not have to establish a prima facie or arguable case that the proposed defence will succeed before subpoenas will be allowed. We think it is arguable that what is required will depend on the circumstances of the particular case, but that in this case his Honour erred in his statement of the level of proof or satisfaction required from the applicants.

4 However, we do not think it is reasonably arguable that his Honour erred in concluding that the applicants had not identified a defence known to law. This is fatal to the applicants' application irrespective of the outcome of the first point.

5 The applicants seek to argue that their detention at the Woomera Immigration Processing and Detention Centre ("the Centre") was unlawful because of the harshness of the conditions at the Centre. The status of the applicants as unlawful non-citizens is not challenged. The fact that in the first instance they were lawfully detained, pursuant to s 189 of the Migration Act 1958 (Cth), is not disputed. The applicants do not question the validity of any section of the Migration Act particularly s 196 of the Act.

6 Thus, it is not disputed that in being detained they were in immigration detention. There is no dispute that the centre was established as an immigration detention centre pursuant to the Act.

7 We cannot see how it can be said that the harshness of the conditions at the Centre can lead to the conclusion that the applicants were no longer detainees or in some way they were no longer being held in immigration detention.

8 We do not accept that harshness of conditions in a detention centre means that a detention centre ceases to have the character of a detention centre by reason that the harshness of conditions is contrary to the power of detention in the Act.

9 Thus, we are of the opinion that even if the harshness of conditions was established that would not mean that any of the elements of this offence under s 197A of the Act would remain unproved. In saying that, we do not mean to reverse the onus of proof. We are simply speaking of the offence without addressing the onus or burden. We note that although not precisely on point the recent decision of the Full Court of the Federal Court in NAMU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 (Unreported, Black CJ, Sunburg & Weinberg JJ, 9 December 2002) supports the conclusion we have reached.

10 For those reasons, we would dismiss the application for leave to appeal.

11 BLEBY J. I would grant leave to appeal. In my opinion, the defendants have an arguable case on both the grounds on which Gray J decided the appeal from the magistrate. The issues concerned are of importance, of course, in the operation of the Migration Act. For those reasons I would grant leave.

12 LANDER J. The order of the court will be that by a majority the application for leave to appeal is dismissed.

BEEHROOZ & ORS v DIMIA & ORS No. SCCIV-02-856 [2003] SASC 7

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Judgment (14 paragraphs)

BEEHROOZ & ORS v DIMIA & ORS No. SCCIV-02-856 [2003] SASC 7 (16 January 2003)

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