NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587 | Case summary

Conclusions on the application 13 As was submitted for the Minister, it is necessary to place s 256 of the Act in its general legislative context, as follows: 14 "Immigration detention" under the Act is provided for by s 189(1), which imposes an unqualified obligation upon an "officer" to detain an unlawful non-citizen within Australia: "If an officer knows or reasonably suspects that a person in the migration zone ... is an unlawful non-citizen, the officer must detain the person." (Emphasis added) 15 This provision both requires than an officer detain an unlawful non-citizen, and authorises that detention, as a "specific control mechanism" (Ruddock v Vadarlis (2001) 183 ALR 1 at 54 per French J). The term "detain" is defined in s 5 to mean: "(a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so." 16 Consistently with this, in its ordinary meaning, "detain" means "to keep under restraint or in custody". "Restrain" in turn, means to "keep in check or under control ... to deprive of liberty, as a person" (The Macquarie Dictionary (3rd ed)). 17 An "officer" is defined in s 5 to mean persons holding the offices designated in s 5 (including officers of the Department and police officers), and: "(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of the Act, including a person who becomes a member of the class after the authorisation is given." 18 Section 196 is also, material, providing: "(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa." (Emphasis added) 19 The circumstances in which a person is to be released from "immigration detention" are defined exhaustively by ss 191 and 196(1) and (2). "Immigration detention" is defined in s 5 to mean: "(a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or (c) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented under section 249, from leaving a vessel - on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b)." 20 It is not suggested that s 191 or s 196(1) or (2) apply here. 21 In short, as is common ground, this statutory regime shows that immigration detention under the Act involves both the deprivation of liberty of the person and the assumption of control over the person, particularly in respect of residency (cf. Howard v Jarvis (1958) 98 CLR 177 at 183 per Dixon CJ, Fullagar and Taylor JJ). 22 The statutory scheme effected by s 189 and s 196 has thus left it to the Minister and officers to determine the places at which, the persons by whom, and the manner in which, a person in immigration detention is to be detained; and this is apparent, in particular, from the definition of immigration detention (s 5). This is also common ground. 23 On behalf of the Minister it is submitted that, properly construed, s 256 does not govern questions of transfer between detention facilities. Rather, it is directed to "the person responsible for his or her immigration detention", it is triggered by a specific request, and it is confined to the particular matters mentioned; and such a provision is not to be read as conferring an obligation to detain the person in the facility which is most convenient to the person and his or her legal adviser. 24 In my opinion, there is considerable force in the Minister's submission so far as concerns any question of transfer. Nonetheless, in my view, the right and duty springing from the provisions of s 256 have their own, independent, existence; put differently, the obligation cast upon the Crown by s 256 has a free-standing operation, wherever the detainee is held. 25 On behalf of the applicant, reliance is placed upon the decision of Sheppard J in Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27. The facts were that two children who had arrived in Australia from China were in custody at the Port Hedland Detention Centre. They commenced proceedings in this Court's ACT District Registry for review of a decision to refuse to accord them refugee status. In an interlocutory application, they sought orders that the Minister bring, or cause to be brought, each of them to a suitable place in Sydney and provide reasonable facilities so that they might meet with and instruct legal advisers, prepare affidavits and give oral evidence in Court. Sheppard J held that the Court had power to so direct, derived from either O 10 of the Federal Court Rules or, alternatively, from s 256 of the Act. His Honour further held that, in the circumstances of that case, it was not sufficient to provide facilities for meetings with legal advisers in Port Hedland. Sheppard J said (at 32) that, taking into account the availability to the applicants of pro bono legal representation, their readiness to proceed forthwith, the existence of a suitable low detention facility and the convenience of the court, the best way of managing the case was to hear it in Sydney. 26 In so concluding, Sheppard J said (at 31): "At this stage it is not possible to tell whether the applicants, or some of them, will give oral evidence. Desirably the usual practice of the Court will be followed. Evidence which they are to give will be made the subject of affidavits. If it is desired to cross-examine one or more of them, the witnesses will have to be present. I do not know whether video facilities are available in Port Hedland as they are in the main centres in Australia. But in a case where people will, perforce, need to give evidence through an interpreter, I do not regard it as likely to be satisfactory for their evidence to be taken by video let alone the telephone. These various considerations lead me to believe that the case cannot be tried conveniently in Port Hedland and must be tried in one of the more usual sitting places which the Court has. The nearest such places to Port Hedland are Darwin, where the Court has no resident judge, and Perth. Perth is some 1,600 km from Port Hedland. It would seem to be unwise or the case to proceed without the applicants being available. Inany litigation problems may arise which unforeseeably bring about a situation in which a witness not thought to have been a necessary witness or not thought to have been one which would need to be cross-examined, is, after all, required to go into the witness box. In those circumstances the case cannot proceed satisfactorily unless the applicants are available at a place which is at least proximate to the court in which the case is heard." 27 In my opinion, Sheppard J was not attempting to lay down any rule of general application in this area. His Honour made this clear when he added these observations (at 33): "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." 28 In other words, his Honour approached the question as a case management issue. As such, practical considerations may be expected to receive such weight as the particular circumstances indicated. 29 Sheppard J emphasised this by adding these observations (at 33): "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." 30 A different outcome in a case management context is illustrated in the recent decision of Jacobson J in NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 997 where, in a similar context, O 10 was also sought to be invoked, but the interlocutory application for transfer from Port Hedland to Villawood Detention Centre was refused, distinguishing Le on the ground that videoconferencing could be used. 31 Jacobson J said (at [37] - [40]): "It seems to me that videoconferencing will assist in, rather than impede, the speedy hearing of the proceedings. Indeed, quite apart from the other reasons which I have given for the exercise of my discretion against the applicant, in my view, it would have been open to me to dismiss the transfer application upon the ground that Mr Jackson did not take up the opportunity to have a videoconference. Without at least attempting such a conference he was not in a position to assist the Court in resolving the question of whether videoconferencing was a satisfactory means of communication with his client. In my view, there is only one possible impediment to the use of videoconferencing between Mr Jackson and his client. Mr Bedrossian did not raise this issue but it seems to me to be important that I refer to it in my judgment. Trials are held in public but conferences between a solicitor and his or her client are to be kept confidential. Although the Minister has offered to provide the video facilities free of charge, no mention was made of the need for confidentiality. I do not know whether the Minister is able to make available a room to the applicant where he can have a videoconference in private. I assume that this can be arranged. I will reserve liberty to apply on 72 hours notice if any question arises. It is unnecessary for me to determine whether Mr Jackson and counsel are retained in an honorary capacity in the same way as in Le. Even if their retainers are analogous to honorary representation, I would not depart from the view I have reached as to the suitability of videoconferencing." 32 The present case arises in a context different from both these O 10 cases. Here, in my view, the ultimate question is whether the Court should, indirectly, enforce the duty imposed upon the Minister under s 256 by enjoining the proposed transfer. 33 A similar question has arisen in England in R v Secretary of State for the Home Dept; Ex parte McAvoy (1984) 1 WLR 1408 (Webster J), where an application was made for judicial review of a decision to remove the applicant from Brixton prison to Winchester prison. The applicant sought a mandatory injunction ordering the Secretary of State to return him to Brixton prison or to another London prison, or alternatively, a declaration that he was entitled to return to Brixton prison on the ground that the Secretary of State, by having transferred him to Winchester prison, was failing to allow his legal advisers a proper opportunity to prepare his case for trial. 34 The relevant background to the application was that the applicant had been committed to stand trial on a charge of robbery of £26 million worth of gold bullion. The trial was expected to last for between six to eight weeks and it was submitted that, to prepare for the trial, numerous and lengthy conferences with legal advisers would be necessary. However, although legal visiting rooms were provided at Winchester, the facilities at Brixton were superior. Moreover, because of extra travelling time, Winchester would be a more expensive location for the legal advisers. 35 The Crown evidence, on the other hand, was that, for operational and security reasons, it was considered essential to move the applicant to Winchester. 36 The applicant, relying upon his general right, as an unconvicted prisoner, to a fair trial of the criminal proceedings against him, invoked rule 37(1) of the Prison Rules 1964 (UK) (a provision similar to s 256) as follows: "37(1)The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer." 37 As Webster J noted (at 1414), this provision reflects rights of the kind enshrined in the Human Rights treaties. 38 After observing (at 1414) that the reference in Rule 37(1) to the affording of reasonable facilities "must be read as a reference to the affording of reasonable facilities in all the circumstances", Webster J turned to consider those circumstances, particularly those explained in the affidavit evidence of Mr Goddard, a Home Office official. 39 Webster J said (at 1416): "... Mr Goddard ... confirm[s] that in exercising his continuing discretion under section 12 of the Prison Act 1952 [conferring power upon the Secretary of State to remove a prisoner to another prison], the Secretary ... has had and continues to have regard to… [inter alia] …his need to have adequate facilities for the preparation of his defence ... ... [and] as an exception in this case, consideration is being given to making available a larger visiting room and for the provision of facilities for visiting outside normal hours." 40 Having noted that Crown counsel, after an adjournment, had indicated that there was at Winchester a much larger room used mainly by the board of visitors, which, by arrangement, could be made available, Webster J said (at 1416 - 1417) that, in all of these circumstances, he did not propose to make an order, and added (at 1417 - 1418): "... I am satisfied that the Secretary of State has taken into account the full effect of that transfer and I am satisfied that consideration is being given to the making of reasonable arrangements to enable the applicant to consult with his lawyers as may be necessary at Winchester. I am satisfied that the Secretary of State has not misdirected himself in law by failing to take into account the applicant's rights to visits by his family and lawyers. I also take the view that, where the Secretary of State has security reasons for transferring a prisoner from one prison to another, the prisoner's right to be visited by his family or friends will rarely, if ever, be a factor of significance to be taken into account in making the decision whether that transfer should take place or not. In most cases, in my view, the same considerations apply to a prisoner's right to be visited by his legal advisers. This case was quite exceptional, as I have said, in that leading counsel had been instructed and had advised the applicant before he was transferred. As a result of the transfer, because of the distance involved in travelling from London to Winchester, and because of the visiting hours at Winchester on the one hand and leading counsel's existing commitments on the other, he would be unable to advise and take instructions from his client until about two weeks before the trial in a case in which a number of consultations will clearly be necessary before the trial begins. In those circumstances, the alternatives would appear to be either that leading counsel presently instructed ceases to act and that a new leading counsel is instructed, or that the visiting arrangements at Winchester are modified, or that the applicant, as he requests, is moved back to London. In the circumstances of this case, it does seem to be arguable that to compel the applicant to instruct a new leading counsel would deprive him, if not of a fair trial, certainly of a fair trial as he would regard it. In the very last resort, that result might be necessary if security reasons require it. In my view, it is to be hoped that suitable arrangements will be made which will not lead to that result." 41 McAvoy was cited by Hodgson J in R v Secretary of State for the Home Dept; Ex parte Herbage [1987] 1 QB 872 at 880 for the proposition that, on an application for judicial review, failure by the Crown officials to have regard to the Prison Rules 1964 can be taken into account. 42 In R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, the Divisional Court (Ralph Gibson LJ, Fox and Parker JJ concurring) (at 85) cited McAvoy with approval, observing that, although Webster J had decided that the Secretary of State had a very wide discretion to transfer prisoners, he had to have regard to the rights of an unconvicted prisoner, reflected in the Prison Rules, for his legal advisers to be afforded facilities for interviewing him; yet the Court held that there had been no misdirection on the facts. 43 In addressing the present question it is first necessary to analyse the meaning, and relevant operation, of s 256 of the Act. 44 The explanation given of this provision (as originally enacted) in the Explanatory Memorandum was: "Clause 41.It is considered desirable that there should be a specific direction of this kind to officers, to place beyond any possible doubt the necessity for arrested persons to be given facilities to obtain any legal redress they believe they may be entitled to." 45 A similar sentiment was expressed by the Minister in his Second Reading Speech (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." 46 In other words, the legislative intention is consistent with the human rights notions referred to in the applicant's argument. 47 The key element in the provisions of s 256, in my opinion, is the concept of "reasonable facilities". It appears that these words were intended to have their ordinary meaning. The primary dictionary definition of "facility" is "something that makes possible the easier performance of any action". 48 The appropriate dictionary definition of "reasonable" appears to be "not excessive", as in "reasonable terms" (Macquarie Dictionary 3rd ed); or "within the limits of reason; not greatly more or less than might be thought likely or appropriate" (The New Shorter Oxford English Dictionary). As Gaudron J observed in an analogous context (Slivak v Lurgi (Australia) Pty Ltd (2001) 177 ALR 585 (at [53])) these are ordinary words bearing their ordinary meaning, and the question "requires no more than a making of a value judgment in the light of all the facts". 49 Thus, so far as concerns the application of s 256 here, the real question, as the Minister has submitted is essentially one of fact, an issue to be resolved primarily upon the evidence adduced for the Minister from Ms McPaul, as to the facilities proposed to be made available, to which reference will be made shortly. 50 Before going to that evidence, it should, however, be noted that in the course of this hearing, the Minister offered this undertaking to the Court: that the Minister will not transfer the applicant to the Woomera Detention Centre before the MRT gives its decision in his matter. As has been said, this decision is expected soon. 51 As indicated, the Minister relies upon the evidence of Christine Ruth McPaul, Acting Assistant Secretary, Unauthorised Arrivals and Detention Services Branch of the Department. In her affidavit sworn 9 December 2002, Mrs McPaul gave the following evidence with respect to the facilities provided at detention centres: · Detainees are permitted to have unrestricted access to facilities in order to communicate with their legal representatives irrespective of their location. In relation to the Woomera Detention Centre, video and telephone conference facilities are available to detainees. The Court has used such facilities in relation to hearings involving detainees from that detention centre. The detainees at Woomera also have access to fax machines. Detainees may also receive personal visits from their legal representatives. · Detainees at Woomera can receive incoming telephone calls through a number of mobile phones within each of the compounds. Detainees can also access the pay telephone system and access telephones which are used by Australasian Correctional Management ("ACM") and the Department. If a legal representative wishes to speak to a detainee, an appointment is made to speak to that person at a pre-arranged time using the telephone conferencing facility. When this occurs, the legal representative organises for an interpreter if required. · There are no costs levied by the Department on a detainee or their legal representatives for using the conferencing facilities. Faxes are usually sent free of charge either by the Department or through the ACM fax machine. The pay telephones are accessed by the detainees by the purchase of phone cards through the property office at Woomera, or received by them through the mail. · Any hearing or conference which is conducted at Woomera is conducted in a closed room. Neither ACM nor Departmental officers are present within the room while these are being conducted. An ACM officer normally stays outside within the vicinity of the room for security reasons. · If a fax is received for a detainee at Woomera, the fax is immediately placed in a sealed envelope and given to the detainee. Other than reading the fax for details of the addressee, the fax is not otherwise read. Any letters which are received at Woomera addressed to a detainee are given to that person without being opened. · There are currently three Farsi interpreters on site at Woomera to assist detainees. Telephone Interpreter Services (TIS) interpreters are usually used by detainees' legal representatives for telephone conferences with their clients. These interpreters join in a three-way conversation between the legal representative and the detainee. · The video conferencing facility at Woomera was inspected by the Registrar of the South Australian Registry of the Court in August 2002 in order to ensure the suitability of the arrangements in place for the conduct of court proceedings. 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. 55 Given this outcome, there should be no order for costs.

NAFC v Minister for Immigration & Multicultural & Indigenous Affairs

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