Ibrahim v Minister for Immigration and Border Protection

1. The Applicant's oral application for an order that the Minister arrange his attendance at the hearing on Friday 22 September 2017 is refused.
2. The costs of the Applicant's oral application are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 23 May 2017, the Assistant Minister for Immigration and Border Protection cancelled the Applicant's Class BC (Subclass 100) Partner (Migrant) visa. 2 On 4 August 2017, the Applicant commenced proceedings in this Court seeking the issue of a writ of certiorari to quash the decision of the Assistant Minister. In addition, the Applicant seeks the issue of a final injunction restraining the Minister and those for whom the Minister is responsible from acting on the basis that the visa cancellation is valid and, in particular, from detaining him in the exercise of the power contained in s 189 of the Migration Act 1958 (Cth) or in the alternative, from deporting him from Australia. He also seeks an order that he be released forthwith from immigration detention. The Court is to hear this application on 22 September 2017 in Adelaide. 3 The Applicant, who is presently held in the North West Point Detention Centre on Christmas Island, now seeks an order that the Minister bring him to Court for the hearing on 22 September 2017. 4 When the oral application for the order that the Applicant be brought to the Court was first made on 15 September 2017 (without prior notice to the Minister), counsel for the Minister questioned whether the Court had the power to make such an order, but at today's hearing, the Court's power in that respect was conceded. 5 I am satisfied that the Court has the power to make an order that a person held in immigration detention should be brought to the Court to participate in and/or witness the hearing in which that person is involved as a litigant. It may be a necessary incident of the jurisdiction vested in the Court, but it is, in any event, encompassed by s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). That section vests power in the Court in relation to all matters in which it has jurisdiction to make orders of such kinds as it thinks appropriate. The Court's power to direct the bringing of a person held in custody or detention to Court for a hearing has been recognised, or at least assumed, in a number of authorities, including Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27 at 32 (Sheppard J); Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 195 (Allsop J, as he then was); and Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 (North J). 6 The Migration Act does not contain any provision qualifying the Court's power in this respect or the matter of its exercise. 7 Accordingly, the question on the Applicant's present application is whether the Court should, in the exercise of the discretion in his case, make the order that he be brought to the Court for the hearing. 8 The Applicant is a national of Nigeria and has been in Australia (relevantly) since 1 May 2008, having then been granted a provisional form of the subsequently issued visa which was cancelled by the Minister on 23 May 2017. The Applicant has convictions for criminal offences committed between 2011 and 2015, one of which is an offence of aggravated robbery for which he was sentenced to imprisonment for two years, 10 months and two weeks. On 23 May, the Assistant Minister cancelled the Applicant's visa, being satisfied that he did not pass the character test set out in s 501(6) of the Migration Act by reason of having a substantial criminal record. The Assistant Minister relied on the Applicant having been sentenced to imprisonment for a period of 12 months or more. 9 On 20 July 2017, the Applicant was detained, pursuant to s 189 of the Migration Act, and he has retained in immigration detention ever since. Until about 1 September 2017, he was detained at the Adelaide Immigration Transit Accommodation at Kilburn, a suburb of Adelaide. He was then relocated to a detention centre in Perth and four days later, relocated to the North West Point Detention Centre on Christmas Island. 10 The Applicant commenced the current proceedings in the Court's Adelaide Registry. At a case management hearing on 17 August 2017, arrangements were made for the hearing of the application on 24 October 2017. However, on 15 September 2017, on the application of the Applicant, the Court brought forward that hearing to 22 September 2017. 11 The Applicant bases his application for the issue of a writ of certiorari on a single ground, being the same ground as he contends was upheld by the majority of the Full Court of this Court in BCR15 v Minister for Immigration and Border Protection [2017] FCAFC 96. 12 There is one authority of this Court which suggests that in the absence of an order to the contrary, the Minister should facilitate the presence of persons held in immigration detention at court hearings in which the person is a party: BZAAB v Minister for Immigration and Citizenship [2011] FCA 429. In that case, Logan J held: [3] When a person is arrested and comes into the custody of the Minister, knowing by his officers that that person is due to appear in a court created under the Constitution by the Parliament to exercise the judicial power of the Commonwealth, it is incumbent on the Minister, as custodian, to produce that person, unless excused from so doing by the Court. It is one of the fundamental responsibilities that falls upon those who deprive a person of their liberty not to interfere, by so doing, with that person's access to Commonwealth judicial power. … [5] … The Minister and his officers are perfectly entitled, in the event that they believe there is lawful excuse for so doing, to arrest someone and hold them in custody if it is considered that a term of a bridging visa has been breached. The obligation though, having done so, is to produce the person, not to prevent them from attending court by not producing. … 13 The interests of litigants in being present in court to witness the conduct of proceedings concerning them, especially those which concern their liberty and freedom of movement, are obvious. North J referred to those interests in MZYLE saying: [20] … But it is nonetheless recognised that [parties] have a right to attend. The reason is that they are entitled to observe the way in which their case is dealt with by the Court. The ability to see for themselves that the legal system has taken their case seriously lies at the heart of the requirements of free access to the law and open justice. … [23] … [I]t is likely that the Court would take judicial notice of the fact that asylum seekers are generally concerned about the proceedings which seek to establish their claims and want to be present to understand the way the Court is dealing with their cases. To take such judicial notice is to recognise that such cases have direct personal consequences for asylum seekers. Their concern is particularly acute because the outcome may impact on their life and liberty. Even where their applications fail because the Court does not accept that they have a wellfounded fear of persecution, the result of the cases will determine whether they remain in Australia or not and hence determine their place of residence in the immediate future. The proceeding thus has immediate and direct personal consequences for an asylum seeker. [24] It is therefore reasonable for the first respondent to wish to witness the hearing of the appeal even if his presence is not required to instruct his lawyers. 14 The Minister emphasised the following matters in submitting that the orders sought by the Applicant should not be made in the present case: (a) the Applicant has legal representation and so is not required to be before the Court personally, in order to present evidence or to make submissions; (b) the sole ground of review relied upon by the Applicant involves a matter of law, on which it is highly improbable that the Applicant will be able to provide assistance to his counsel; (c) arrangements can be made for the Applicant to observe the hearing by video link to the detention centre on Christmas Island. I observe, in relation to that matter, that there is no evidence to indicate that the available video link will satisfy all the requirements of s 47C of the FCA Act, but even if they do not, it seems that the Applicant should be able to listen, by means of that video link, to the proceedings as they progress; (d) the expense and inconvenience involved in bringing the Applicant to Adelaide from Christmas Island and, in the event that the application fails, the expense and inconvenience of returning him to Christmas Island, or to such other place of detention as is determined by the Minister. 15 There are, however, a number of countervailing considerations on which the Applicant relies. The first is the matter already mentioned, namely, the interest of the Applicant as a litigant in being present while the hearing concerning his claim takes place. 16 The second is the circumstances by which the Applicant comes now to be on Christmas Island. This is not a case of an Applicant who arrived by boat on Christmas Island seeking to be brought to mainland Australia to witness the hearing of proceedings relating to an unsuccessful application for a protection visa. Instead, the Applicant has significant connections with Adelaide, because it seems that he has resided in Adelaide substantially, if not wholly, throughout the time that he has been in Australia. 17 The Applicant commenced the proceedings in the Adelaide Registry of the Court and he has retained Adelaide based solicitors and counsel. At the time that the Court made arrangements for the hearing of his application to take place in Adelaide, the applicant was still detained in Adelaide. It is the Minister who has chosen to relocate the Applicant to Christmas Island at a time when the proceedings before the Court were still current and in the knowledge of the arrangements which the Court had made for the hearing. There is a sense, therefore, in which it can be said that it is the Minister himself who has created the circumstances in which the expense and inconvenience on which he now relies by way of resisting the application will occur. 18 Counsel for the Applicant made a number of criticisms of the evidence provided on behalf of the Minister relating to the decision to transfer the Applicant to Christmas Island and of the evidence concerning the transport arrangements which can be made between Christmas Island and Adelaide. However, the decision as to the location at which a detainee is to be detained is one for the Minister to make. I note also that there was no suggestion made on the Applicant's behalf that the transfer of the Applicant to Christmas Island was made for an inappropriate or improper purpose, let alone for a purpose of impeding or frustrating this Court's processes or the Applicant's access to legal representation and assistance. 19 Counsel for the Applicant also submitted that, having regard to the decision of the majority in BCR16, the Applicant has a strong prima facie case of jurisdictional error. I take the view that it would be inappropriate for the Court presently to be essaying any preliminary evaluation of the Applicant's prospects of success, but it may be fair to note that the Respondent's position, even today, is that the answer to the Applicant's application is still under consideration. 20 A particular matter of concern to the Court is that the Applicant's claim for relief includes an order for his immediate release from immigration detention in the event that the underlying application succeeds. Counsel for the Respondent conceded at the directions hearing on 15 September 2017 that an order to that effect would be appropriate in the event that the Applicant's application does succeed. The Court should be concerned, and is concerned, that the orders it makes, including orders for release of a person from immigration detention, be effective. There would seem to be little question about the efficacy of such an order if the Applicant is present in Adelaide at the hearing or when the decision of the Court is delivered, but there could be some compromise to the efficacy of the order if the Applicant remains on Christmas Island. 21 Counsel for the Applicant referred in this respect to the possibility that, by reason of the remoteness of Christmas Island and the limited number of flights from there to Australia, the practical consequence may be that, even if released, it may be some time before the Applicant is able to leave Christmas Island. Counsel for the Minister submitted that the Court should proceed on the basis that the normal course would be followed in this case and that, if an order is made for the Applicant's release from detention, he will be returned to Adelaide. He also submitted that there was no basis upon which the Court should conclude that that ordinary course would not be followed in the Applicant's case. 22 I consider that the Court is entitled to proceed on the basis that the Minister will respect the Court's order if an order for discharge from detention is made; and that the Minister will seek to carry the orders into effect not just as a matter of form, but as a matter of substance and practicality. It would, of course, be a serious matter for the Minister not to give proper respect to the Court's order. 23 The ability of a litigant to be present in Court to witness the proceedings concerning that litigant, especially when they involve matters of the litigant's liberty and freedom of movement, are important matters and the Court should be cautious before allowing that entitlement to be too readily undermined. 24 However, in the present case, arrangements can be made for the Applicant to witness the proceedings by reason of the video link to which I referred earlier. Consequently, that consideration does not carry the same weight as may otherwise have been the case. 25 There are other practical considerations on which the Minister relied. Having regard to these matters, I am not satisfied that it is appropriate to make an order for the Applicant to be brought to Court personally for the hearing. In coming to that conclusion, I have attached considerable weight to the submissions made on behalf of the Minister as to the way in which the Court's order for the release of the Applicant, if such an order is made, will be carried into effect. 26 Accordingly, the oral application for an order that the Applicant be brought to Adelaide for the hearing is refused. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.