Stretton v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: LOGAN J DATE: 11 MARCH 2015 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This Court has limited original jurisdiction in relation to migration decisions. Those limitations are to be found in, materially, s 476A of the Migration Act 1958 (Cth) (the Act). Within the limits of that original jurisdiction the court has all of the powers necessary to ensure an effective exercise of that original jurisdiction: see, in this regard Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33. 2 Mr Keith Anthony Stretton has sought by an originating application filed on 2 December 2014 an exercise of the original jurisdiction left to this Court by the Act in respect of a decision made personally by the Minister for Immigration and Border Protection (Minister) on 28 October 2014 to cancel under s 501(2) a visa granted to him. 3 Mr Keith Stretton is, as a result of the Minister's cancellation decision, presently in immigration detention. For the purposes of the Act and as section 5 records, immigration detention may take a number of alternative forms. At present Mr Keith Stretton is being held in the Villawood Detention Centre in Sydney, New South Wales, which is a detention centre established under the Act. He has been there since November 2014. The Minister proposes to transfer Mr Keith Stretton tomorrow from the Villawood Detention Centre to another detention centre established under the Act. The particular detention centre to which the Minister proposes to transfer Mr Keith Stretton is situated on the Australian offshore territory of Christmas Island. 4 That transfer decision has in turn actuated an urgent interlocutory application by Mr Keith Stretton to restrain the Minister from transferring him to Christmas Island and to require either, pending the hearing and determination of the judicial review application or for at least three weeks or further earlier order, that he be held instead at the Villawood Detention Centre. 5 The occasion for the making of the Minister's cancellation decision is to be found in his view as to the character test, with that in turn being informed by Mr Keith Stretton's criminal history. More particularly, it is informed by his having been sentenced by the District Court at Southport, Queensland on 24 June 2013 to two years imprisonment, to be suspended after serving six months, in respect of what might be described as a sexual offence involving a juvenile. It is not necessary for the purposes of the present interlocutory application further to detail either that particular offence or other matters concerning Mr Keith Stretton which informed the Minister's decision. 6 The urgent nature of the application meant that the evidence led in respect of the application, both on behalf of Mr Keith Stretton and the Minister, was compressed. Even so, the evidence establishes that today Mr Keith Stretton has made threats of self-harm and is under constant monitoring at present in the Villawood Detention Centre. Those particular facts were established by a statement made consensually from the bar table by counsel for the Minister. That statement corroborated an impression given in oral evidence this evening by one of Mr Keith Stretton's children, Mr Michael Stretton. There is no doubt, having regard to the statement made from the bar table, as well as Mr Michael Stretton's evidence, that Mr Keith Stretton is in a particular emotional state at present and that that emotional state is directly related to the imminent prospect of his transfer to Christmas Island. 7 Mr Keith Stretton is classified by the Minister and the responsible officers within his department as requiring high security accommodation for his own protection on account of the particular offence of which he was convicted in 2013. The evidence further is that the Minister is under the difficulty that, whilst he can be accommodated at what is called the secure Blaxland compound within the Villawood Detention Centre, that particular secure compound is under strain, under strain in terms of the available secure facilities to house those requiring such detention. The evidence further is that the only facility with capacity to accommodate transfers in what is described as Mr Keith Stretton's "cohort", namely high risk single males, is the Christmas Island Immigration Detention Centre. Apparently Mr Keith Stretton is one of 13 single male detainees in this cohort who are the subject of recent transfer decisions made by the Minister. 8 Those transfer decisions are made on the basis of balancing, as best the Minister can, where to house within available facilities those requiring secure detention beyond the norm. At present all high risk facilities located on the Australian mainland have exceeded their planned operating capacity. The Christmas Island Immigration Detention Centre offers integrated service provision to meet the various needs of detainees. These include a medical service, which is equivalent to any general practice in the Australian community. 9 Section 256 of the Act requires that, where a person is in immigration detention, the person responsible for that detention, at the request of the person in detention, is to give to him or her, amongst other things, all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention. The evidence is that at Christmas Island there are facilities for confidential conferences and, further, that each interview room has a telephone which does not require the use of a phone card. Apparently there are also video conferencing facilities which may be booked on request, either by a detainee, or that person's lawyers. 10 The evidence also is, and I have no hesitation in accepting it, that, as a matter of practice, it can be difficult to make effective use of these facilities. Mr Michael Stretton is a practising lawyer with experience and recent experience of having to take instructions from a person on Christmas Island. His evidence is that it is well nigh possible, with the available telecommunications facilities as between here and Christmas Island, effectively to take instructions. 11 As against that in relation to this case, it must be borne in mind that the substantive application is a judicial review application. It is not a hearing on the merits. The scope for the introduction of any further evidence, be it oral or affidavit, from Mr Keith Stretton in such a hearing is, to say the least, limited. One might apprehend, therefore, that, in relation to the taking of instructions with a view to the giving of evidence, a transfer of Mr Keith Stretton from Villawood to Christmas Island would not have any overly intrusive impact on an effective exercise of the court's jurisdiction. 12 That said, it is apparent from the judicial review application that the grounds are complicated. There is, on the face of the application, in my view, a need on the part of those instructed by Mr Keith Stretton to have an ability effectively to communicate with him in relation to matters of detail concerning the prosecution of the application, including the amendment or abandonment, if so advised, of particular grounds. Further, it is by no means impossible to see that there may be a need on the part of those representing him to have background instructions from Mr Keith Stretton so that they may more fully assimilate the content of the material that was before the Minister. 13 In short, on the evidence to hand I have a very real concern that it would be possible for Mr Keith Stretton effectively to give instructions in relation to the conduct of his judicial review application were he to be housed on Christmas Island. Transfer decisions are of course in the ordinary course of events matters for the value judgment of the Minister and responsible officers within his department. It is no part of this Court's function to engage in public administration. It is manifestly this court's function to ensure an effective exercise of the jurisdiction consigned to it and an effective ability on the part of those who have sought to invoke that jurisdiction to prosecute their cases. It is that particular concern that arises in this case on the evidence. 14 There is another dimension which is pertinent, and that is Mr Keith Stretton's present emotional state. There is no medical evidence as to the condition from which he suffers, much less what might be its duration. All there is the observation of a son as to the deterioration which he has observed between a father known to him to be a strong man and one who has been moved to utter a threat of self-harm, the existence of which is corroborated. 15 These types of judicial review applications are fraught. Whilst, in itself, I am satisfied that the state of communications, in a relative sense, as between Christmas Island and Brisbane, when compared with Sydney and Brisbane, are such in themselves as to warrant the inhibition of his transfer, I do also take into account that the ability to receive and assimilate instructions may be affected adversely by Mr Keith Stretton's emotional state. There are flights available to and from Christmas Island, but it is a matter of judicial notice on my part that they are nowhere near as frequent or inexpensive as flights between Sydney and Brisbane. If he is housed on Christmas Island the prospect of receiving visits from family to provide emotional support in relation to the conduct of litigation is much diminished when compared with his being housed in Sydney. 16 It is for the Minister to ensure that persons are housed in ways that do not inhibit their effective access to an exercise of Commonwealth judicial power, which includes an effective ability to give instructions in relation to an invoked jurisdiction. 17 Immigration detention, as defined in the Act, includes not just facilities maintained by the Minister, but also other facilities. At least on the information to hand, these seem not to have been considered at all by the Minister in relation to the transfer decision. It is because of that important that any interlocutory injunctive relief reserve liberty to apply, both to the Minister as well as Mr Keith Stretton, in the event that, upon reflective value judgment, something other than Christmas Island occurs to the Minister and those advising him as an alternative to Villawood. At present, for the reasons given, Villawood is just no alternative at all. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.