Minister for Immigration and Citizenship v MZYLE

REASONS FOR JUDGMENT 1 The question before the Court is whether the appellant, Minister for Immigration and Citizenship (the Minister) should be ordered to pay for a video link for the hearing of the appeal brought by him against the respondents. 2 The first respondent is a Sri Lankan citizen who arrived in Australia at Christmas Island in February 2010. He was detained on Christmas Island. He applied for an assessment of his refugee status. When he was refused refugee status he applied for a review of that assessment. 3 On 24 December 2010, the second respondent, after undertaking a review of the assessment, recommended to the Minister that the first respondent was not a refugee. 4 The first respondent sought advice from Victorian Legal Aid about the merits of a judicial review of the recommendation. On 16 March 2011, Victorian Legal Aid filed a judicial review application on his behalf in the Victorian Registry of the Federal Magistrates Court. 5 On 16 March 2011, the first respondent was transferred from detention on Christmas Island to detention at the Northern Immigration Centre in Berrimah, Northern Territory. 6 On 20 July 2011, the Federal Magistrates Court sitting in Melbourne heard the judicial review application. The first respondent was represented by Mr Niall SC. The Minister was asked and agreed to bring the first respondent from detention in Darwin to detention in the Maribyrnong Immigration Detention Centre in Victoria so that he could attend the hearing in the Federal Magistrates Court. 7 On 15 August 2011, Riethmuller FM determined that the second respondent had made errors of law in the recommendation made to the Minister. The Federal Magistrate declared that: … in recommending to the Minister that the applicant was not a person to whom Australia had protection obligations, the Second Respondent made an error of law in that the Second Respondent: (a) failed to determine an integer of the applicant's claims, namely whether the applicant was at risk of return to Sri Lanka on the basis of being a person who had departed illegally; (b) approached the matter on the basis that a choice had to be made between the various items of country information rather than assessing the weight to be attached to the country information in order to assess whether the fear held by the applicant was well-founded in light of the information then available. 8 On 2 September 2011, the Minister filed a Notice of Appeal in this Court against the declarations made by the Federal Magistrate. That appeal is listed for hearing on 28 October 2011. 9 On 18 October 2011, the first respondent filed an interlocutory application seeking orders that the Minister cause the first respondent to attend the hearing of the appeal and provide an interpreter fluent in Tamil and English for the first respondent. 10 The first respondent does not press for the Minister to bring him to Melbourne for the hearing of the appeal. He accepts that a video link would meet the requirements of his situation. Enquiries have disclosed that a video link is available on the day of the hearing of the appeal. The only question is whether the Minister should pay for the video link. 11 From the affidavit affirmed on 17 October 2011, by Chelsea Clark, a lawyer for the first respondent, it seems that the first respondent has no money. The argument on this application proceeded on the assumption that, unless the Minister funds the video link, the first respondent would not be able to attend the hearing of the appeal. 12 It was common ground that the Court has power to order that the hearing of the appeal be conducted by video link (s 47B Federal Court of Australia Act 1976 (Cth)) and to order that the Minister pay the costs of the video link (r 5.04 Federal Court Rules 2011 (Cth)). The power is a discretionary one. Obviously enough it must be exercised in order to advance the interests of justice. 13 Dr Donaghue, who appeared as counsel for the Minister, argued that the Minister should not be ordered to pay the costs of the video link because the presence of the first respondent was not necessary for the proper administration of justice or for securing appropriate access to the law and to the Court by the first respondent. The first respondent will be represented by senior counsel at the hearing of the appeal. The subject matter of the appeal is a judicial review of the recommendation made by the second respondent. The issues raised by the appeal are purely legal. They do not involve any matters of fact. Hence, so it was argued, it was highly unlikely that the instructions of the first respondent will be required. 14 Dr Donaghue relied on the judgment in NAKG of 2002 v Minister for Immigration [2002] FCA 997 (NAKG). The applicant was detained at Port Hedland and applied to be transferred to Villawood Immigration Detention Centre in order to confer with his lawyers in Sydney. The Minister opposed the transfer on the basis that he was prepared to provide a video link free of charge for the purpose. The principal proceeding was a Constitutional challenge to the power to detain the applicant. The application for transfer was rejected on the ground that the offered video link was an adequate means of communication between the applicant and his lawyers. At [41] Jacobson J said: 41 … Mr Bedrossian [Counsel for the applicant] 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. [emphasis added] 15 Two observations can be made about the relevance of this case to the present issue. First, it is trite that the exercise of discretion on such applications depends on questions of judgment concerning the particular facts of the case before the Court. In NAKG the issue before the Court was a Constitutional challenge to the statutory provisions concerning detention. Unlike the present circumstances, no acts of the applicant were in question. And, second, his Honour had nothing to say about a claim by the applicant to attend by video link. He determined that there was no justification for the physical presence of the applicant at the hearing. The judgment does not assist in the resolution of the present question. 16 Dr Donaghue also relied on the judgment in SZQCY v Minister for Immigration [2011] FMCA 358. The applicant, like the first respondent in the present case, challenged the recommendation made to the Minister that he was not a refugee. The applicant was detained, in Curtin Immigration Detention Centre in Derby in Western Australia. His judicial review application was to be heard in the Federal Magistrates Court in Sydney. He was to be represented by counsel at the hearing. The Federal Magistrate refused to require the Minister to transfer the applicant to Sydney or to provide a video link of the hearing. The Federal Magistrate said at [31] to [34]: 31. In the present case, the Minister submits that the nature of the matter is judicial review of a written recommendation of an Independent Merits Reviewer, in which the relevant evidence will be documentary. The hearing will almost certainly be confined to exchanges between the bench and counsel in relation to written submissions concerning that documentation. He submits that the applicant could gain no benefit from observing them in person or on a television set in real time. Even if a competent interpreter were supplied to the applicant at his remote location or in the courtroom, it is most unlikely that the oral proceedings could be usefully translated in real time. It would be open to the applicant to be fully informed of the issues in the matter by his counsel before the hearing, and it is to be expected that his counsel or other helpers will take any necessary instructions before the hearing. In the very remote possibility that further instructions were required in the course of the hearing, his counsel would be able to seek adjournments for that purpose. The applicant would have the opportunity after the hearing to obtain counsel's summary of the hearing and his explanation of what happened. 32. I accept the points made on behalf of the Minister. In my opinion, no principle of 'open justice' is jeopardised by the Court declining to order the Minister to produce or facilitate the applicant to observe the hearing. The courtroom in which the hearing will be conducted will be open to the public, in the same manner as every courtroom in Australia. That hearing will meet all the usual requirements of the open justice principle, in my opinion. A transcript of what will occur will be available to the applicant and any other person in the usual terms. 33. In circumstances where the applicant must be expected not to be conversant in the English language, it appears to me that there is no necessity, nor any practical benefit to the administration of justice, for the applicant to be either in attendance at the hearing in Sydney or to be observing it by television. In those circumstances, I am not persuaded that the Court should make any orders requiring the Minister to produce the applicant in person at the hearing appointed in Sydney, nor requiring the Minister to make arrangements for the applicant otherwise to observe the hearing or any other listing in the proceedings at which he is represented by his counsel of choice. 34. Perhaps, the situation might have been different if the applicant had filed his case in Perth, but he has not. Certainly, the situation would have been different if the applicant had not been represented by his counsel of choice, or had been a necessary witness in the case. But, as I said, neither of these situations arise in the present case. In this last paragraph, the Federal Magistrate indicated that the Minister might have been required to provide for the attendance of the appellant if the appellant had filed his application in Perth. Perth was the nearest registry to the place of detention. Thus, the Federal Magistrate did not intend to establish a general principle that the Minister should not be required to provide for the attendance of a represented appellant. 17 Dr Donaghue argued that the determination of the present case should be viewed in the context that a requirement that the Minister fund the video link may have significant resource implications for the Minister because he would need to treat like cases consistently. The affidavit of Maria Ngo, sworn on 19 October 2011 and filed on behalf of the Minister, explained that there are approximately 256 active judicial review applications relating to refugee status recommendations in the Federal Magistrates Court and in the Federal Court. I doubt that it is relevant to have regard in this application to the financial consequences to the Minister that might arise from judgments in other applications. But, in any event, there is insufficient evidence to sustain this argument as a consideration in this application. The Minister accepts that he is bound to ensure the attendance of asylum seekers in judicial review applications and appeals if they are not represented. The evidence does not reveal how many of the 256 current cases involve asylum seekers who are represented. Further, information published by the Court and referred to by Dr Donaghue indicates that the cost of a one hour video link is $712. Even if it were established that a significant number of the asylum seekers in the 256 current cases are represented, in the context of the level of costs of this type of litigation, it seems unlikely that the financial consequence of providing video links to represented asylum seekers would be overly significant. 18 Finally, Dr Donaghue referred to human rights jurisprudence in Europe where the Convention for the Protection of Human Rights and Fundamental Freedoms has been interpreted to require the presence of the accused in criminal trials but not on appeals unless the appeals concern facts as well as law: Clayton R & Tomlinson H, The Law of Human Rights (2nd ed, Oxford University Press, 2009) at [11.426] and [11.427]. On the other hand, in the Court of Appeal in Victoria, there is a right of an appellant to appear on the hearing of a criminal appeal subject to any contrary direction by a judge (r 2.36 Supreme Court (Criminal Procedure) Rules 2008 (Vic)). In the European context in civil cases there is a right to be present at an oral hearing where the personal character or conduct of the applicant is relevant or where the particular experience of the applicant can only be explained orally. There may be a right to be present at the hearing of appeals which consider both facts and law: Clayton R & Tomlinson H (2009) at [11.429]. 19 Against these factors relied upon by Dr Donaghue are a number of countervailing factors which militate in favour of the order sought. 20 Whether it is necessary for parties to attend hearings in order to give instructions to their lawyers may be determinative of the question whether the hearing attended by their lawyers but in their absence provides them with a proper right to be heard in accordance with the requirements of natural justice. But even that is not clear. It is accepted by the Minister that a party to a judicial review case who is not represented has a right to attend an appeal in this Court. That right exists notwithstanding the long experience of judges of this Court in such appeals which shows that generally asylum seekers have no understanding of the concept of judicial review and no capacity to contribute to the arguments on appeal. Their attendance is similarly "unnecessary" for the purpose of the hearing as it is if they are unable to instruct their lawyers. But it is nonetheless recognised that they 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. In any event, whether the first respondent is able to provide instructions to his lawyers at the hearing of the appeal is not determinative of the present question, namely, whether the Minister should fund the video link. 21 The first enquiry on that question is, even assuming for the purpose that the first respondent's presence is not required to instruct his lawyers, whether it is reasonable for him to want to witness the hearing. 22 The uncontradicted evidence is that the first respondent felt that it was good for him to be present to see how the proceeding in the Federal Magistrates Court was conducted. He sat in Court, the proceeding was interpreted, and he was able to understand and appreciate what was happening. He wants to hear the appeal so that he can understand what is happening. Again, there is uncontradicted evidence that the first respondent is in a fragile mental state. A report by Catherine Parle, a qualified counsellor registered as a clinical member of the Counsellors and Psychotherapists Association in NSW, reported that the first respondent: [S]uffers symptoms consistent with PTSD Type II, having experienced multiple traumas, co morbid with symptoms consistent with depression. He has frequent nightmares, waking with palpitations. He experiences flashbacks and an abnormal startle response. He has constant chest pain and persistently worries. He avoids reminders of his traumatic life and his experience of long term detention has exacerbated his stress symptoms. He feels hopeless and helpless, and suffers prolonged sadness and cries a lot. He is lethargic with no motivation, with memory and concentration problems and fears he will go crazy. He finds his situation unbearable to the extent that he has thoughts of suicide and has harmed himself in a minor way, on at least one occasion. His current immigration status is that success at Judicial Review of his case is being challenged by DIAC. The effect of not being involved and allowed to observe the proceedings to resolve these matters causes an increase in feelings of uncertainty, distress and sense of lack of control over his situation. I consider that it is likely to be detrimental to his mental health and exacerbate his depressive symptoms if he is not able to be involved in the court hearing which will be dealing with the future of his life. Therefore I believe it would be beneficial for him to attend the hearings involving his case. 23 Even without this evidence it 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 well founded 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. 25 The next relevant enquiry is what circumstances have given rise to the need for the video link and whether the Minister is responsible for those circumstances in a way which means that it is fair that he bear the cost of the video link. One circumstance which gives rise to the need for the video link is that the first respondent is in Darwin, and the other circumstance is that the hearing of the appeal is to be in Melbourne. 26 The first respondent comes to be in Darwin because he is detained under the provisions of the Migration Act 1958 (Cth) (the Act). The Act is administered by the applicant and his Department, and the place of detention is determined by officers of the Department (s 189). The first respondent has no say in the location of his detention. The Department controls that factor. There are detention facilities in Melbourne but the Department has not utilised these facilities for the first respondent for the purposes of his attendance at the appeal. 27 The hearing comes to be in Melbourne because the first respondent filed the initial application in Melbourne, and the Minister filed the appeal in Melbourne. The evidence discloses that the first respondent commenced the proceedings in Melbourne because he was able to obtain pro bono legal assistance here. Since then he has established a link with the lawyers in Melbourne. Mr Niall SC, who appeared for him in the Federal Magistrates Court, will appear for him at the hearing of the appeal. None of the parties have applied to the Court to have the hearing of the appeal held in Darwin and thereby obviate the need for a video link. In view of the relationship established through the proceeding in the Federal Magistrates Court between the first respondent and his lawyers in Melbourne, such an application by the Minister would probably face difficulties. 28 Thus, I find that in the circumstances of this case, the need for a video link arises from the decision to detain the first respondent in Darwin made under the Act by officers of the Department administered by the applicant. 29 There are several further considerations which give some support to the first respondent's argument. 30 The first respondent is not the moving party in the appeal. He is responding to the appeal brought by the Minister. He has not chosen to pursue this stage of the proceeding. 31 Finally, the proceeding is a public law proceeding. It is neither a civil case nor a criminal case. The learning in those areas therefore does not provide a necessarily relevant answer to the public law context. The State is always one of the adversaries in a public law case. In that sense, the position is closer to the criminal jurisdiction. It will be recalled that in Victoria defendants in criminal appeals are entitled to be present in Court on the hearing of appeals. This cannot be explained solely on the basis relied upon by Dr Donaghue that the criminal appeal is a rehearing. Some criminal appeals concern issues of law alone and those appeals are equally governed by the rule. The requirement that the defendant in a criminal case has a right to attend perhaps reflects the policy that it is desirable for people who are affected by acts of the State to be entitled to observe the process by which the State impacts on their lives. 32 Thus, the circumstances of this case justify an order that the Minister pay for the video link necessary to allow the first respondent in Darwin to participate in the hearing of the appeal to be conducted in Melbourne. I expect that it follows that the Minister will also pay for the interpreter necessary to make the arrangement effective. No separate argument was addressed to this issue. If there is contention about it, the matter can be relisted for further argument. The Minister must pay the first respondent's costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.