SZVCP v Minister for Immigration and Border Protection

Procedural Background 6 The procedural background is an unavoidable feature of this case. 7 As at 15 September 2015, the applicant had three substantive applications in the Federal Circuit Court. They were: (1) an application filed on 29 October 2014 (SYG3004/2014) and supported by the applicant's affidavit of the same day, in which the applicant sought relief arising from the release of personal information on the website of the Department; (2) an application filed on 7 April 2015 (PEG142/2015) and supported by the applicant's affidavit of the same day, in which the applicant sought relief arising from a decision of the then Refugee Review Tribunal not to grant him a protection visa; and (3) an application filed on 17 June 2015 (PEG261/2015), in which the applicant sought relief arising from the International Treaties Obligations Assessment (ITOA) conducted by the Minister's Department concluding that the applicant did not engage Australia's non-refoulement obligations. Until the applications in a case accepted for filing on 3 and 8 September 2015, the applicant had not sought any relief concerning his place of detention, whether on Christmas Island or elsewhere. 8 Under the Federal Circuit Court Rules 2001 (Cth) an 'application in a case' is the means by which a litigant in that Court seeks interlocutory, as opposed to final, relief. The applications in a case, accepted for filing on 3 and 8 September 2015 in SYG3004/2014 and PEG142/2015 respectively and dismissed by the Federal Circuit Court on 15 September, sought a number of orders: declarations; an injunction restraining the respondent Minister from detaining the applicant at the Christmas Island Immigration Detention Centre and an order requiring that the applicant's detention occur at an alternate place of detention; and a number of claims for interlocutory relief. 9 The applicant's claims for interlocutory relief were as follows (errors in original): 1. An interlocutory injunction restraining the Minister from continuing to detain me at Christmas Island Immigration Detention Center nor the Perth or Darwin detention Centers. 2. Stop the Minister from ever returning me to Christmas Island Immigration Detention Center or Christmas Island nor any of its detention Centers in Perth Western Australia and or Darwin as most of the Serco EMERGENCY RESPONSE TEAM of SERCO that have caused me severe trauma and distress are from PERTH AND DARWIN detention centers. 3. A writ of Habeas Corpus issue ordering the Minister to produce my body physically in Court in all hearings of this matter before the Court and not by Video or phone as those mediums are prejudiced to my case and gives the respondent an undue advantage over me. 4. Leave granted to file any amended application together with any supplementary affidavits. 5. The Subphoena the records of the Psychologists of IHMS and the file entries of both my immigration case Manager Ms Anna of the Department AND THE CASE NOTES OF THE Center manager Ms Denise Alexander of Serco regarding the issues raised in this matter and they be ordered to come to court to give evidence. 10 In support of his applications in a case he apparently relied on his own affidavits both sworn on 1 September 2015 (and in the same or virtually the same terms) in which he deposed that he had been transferred from immigration detention at Villawood to detention on Christmas Island on 13 March 2015 and that, on Christmas Island, he had been "subjected to discrimination, segregation, abuse, vilification and intimidation and bullying by SERCO Managers, Serco Emergency Response Unit staff[], Serco Cleaners, and Serco staff members from Perth and Darwin and by other Detainees". It was not in contest that the applicant was removed to immigration detention in Victoria at the end of August 2015, for reasons that are not presently relevant. Counsel for the Minister informed the Court that, subject to an assessment, the applicant might well be returned to Christmas Island.

the PRIMARY JUDGE'S Orders AND rEASOnS 11 The primary judge gave ex tempore reasons: see now SZVCP v Minister for Immigration [2015] FCCA 2576. They were as follows. First, the primary judge said (at [6]) that an application in a case was not a vehicle by which declaratory relief could be made as that was final or substantive relief. Secondly, the primary judge said (at [9]) that insofar as the applicant had sought an order preventing his removal to Christmas Island, it was clear that his current detention related to applications by him for relief in relation to the Migration Act and, on the face of the material before the Court, his continued detention was lawful. The primary judge said there was no basis upon which it was appropriate to grant interlocutory relief at that stage in relation to where the applicant was held in detention, and for that reason refused to grant any interlocutory relief "in terms of the application in a case insofar as it concern[ed] the location of the applicant's continued detention". Thirdly, the primary judge said (at [10]) in relation to the applicant's application "directing the Court effectively to obtain evidence for the applicant and to issue subpoenas" that it was not "the role of the Court to enter the arena in relation to the gathering of evidence, nor [was] it appropriate for the Court, except in exceptional circumstances, to engage in the issuing of subpoenas. This [was] not a case of exceptional circumstances." The primary judge went on to say at [11]: It is not appropriate for the Court to issue subpoenas in respect of the various persons that the applicant has identified. It is a matter for the applicant to seek relevant evidence in respect of the issues raised by the respective proceedings. The Court raised with the applicant that the individuals that he referred to do not in any way appear to be relevant to any jurisdictional issue raised by the proceedings that have been identified, and on that ground alone it would not be appropriate for subpoenas to be issued in respect of those persons. The Court does propose to provide a timetable for the applicant to be able to put on evidence in respect of all three applications. (Emphasis added.) 12 As we have said, the applicant was self-represented before the primary judge. Before this Court he is represented by pro bono counsel.

APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL 13 Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal cannot be brought from an interlocutory judgment of the kind made by the primary judge in the Federal Circuit Court without the leave of this Court. In written submissions filed before the hearing, the applicant argued that he had an appeal as of right, because his appeal fell within the exception in s 24(1C) for an interlocutory judgment "affecting the liberty of an individual". This argument was not pressed at the hearing, however, and counsel for the applicant accepted that leave was needed to institute the appeal. There are settled principles to be applied in determining whether or not leave to appeal should be granted: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Re CSR Ltd [2010] FCAFC 34; 183 FCR 358 at [5]. 14 There was no doubt that the applicant required an extension of time in which to seek leave to appeal, but an extension may be granted under r 35.14 of the Federal Court Rules 2011 (Cth) in accordance with the accepted principles: see s 37M of the Federal Court of Australia Act, Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480-481 and Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38]. 15 We accept that the applicant has given a reasonable explanation for the delay in applying to this Court. The Minister did not contend that he would suffer any prejudice if the Court were to extend time. In the circumstances, the question of an extension of time and leave to appeal falls to be resolved in this case by reference to the substance of the proposed appeal. As will appear, we propose to extend time, grant leave to appeal and allow the appeal. 16 Before this Court the applicant sought to rely on an amended draft notice of appeal dated 16 February 2016. Leave so to rely was not opposed by the Minister. We would grant leave for the applicant to do so. 17 This amended draft notice of appeal seeks to raise three grounds as follows:

1. The failure by the primary judge to exercise his discretion: a. to allow leave to amend the application in a case pursuant to rule 7.01 of the Federal Circuit Court Rules 2001; or b. to dispense with the formal requirements for the commencement of proceedings pursuant to s 57 of the Federal Circuit Court of Australia Act 1999, was sufficiently unreasonable in the circumstances so as to amount to appealable error.
2. The primary judge failed to accord the applicant procedural fairness. Particulars a. The hearing of the applications in a case occurred on the first return date following their filing with the Court. b. The primary judge did not provide the applicant with an opportunity to regularise his claim and obtain evidence (c.f. Shrestha v Migration Review Tribunal and Another (2015) 229 FCR 301). c. The applicant was an unrepresented litigant with no formal legal training. d. The primary judge did not provide the applicant with sufficient information about the court's processes and procedures so as to enable him to make an informed choice about how to exercise his legal rights (c.f. SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445).
3. The primary judge erred in concluding that there was no basis upon which it was appropriate to grant interlocutory relief. Particulars a. The proposition that the appellant's detention is lawful did not preclude an injunction restraining the Minister from transferring the appellant from one place of detention to another: Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 per Selway J at [16]. b. The primary judge failed to consider, or provide reasons for, the dismissal of the application for an injunction restraining the Minister from transferring the appellant to Christmas Island based on an anticipated breach of a duty of care owed by the Minister to the appellant. i. The Minister has a duty to take reasonable care to avoid causing foreseeable harm to the appellant while in detention, particularly in circumstances where the Minister has notice of his mental fragility (c.f. Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93 per Selway J at [33], [35]). ii. The primary judge should have held that, in circumstances where the appellant had adduced evidence of past and anticipated future breaches of the Minister's duty of care to the appellant, such evidence being uncontested by the Minister, there was an arguable basis for the injunctive relief sought (c.f. Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [127]-[129] and [137], see also [1]-[4] and [14]; S v Secretary, Department of Immigration and Multicultural Indigenous Affairs (2005) 143 FCR 217 at [218] and [232]).

Parties' submissions 18 Counsel for the applicant submitted that the primary judge denied the unrepresented applicant procedural fairness. He submitted that the primary judge did not give the applicant an adequate opportunity to explain the relevance of the evidence that he sought on subpoena and did not provide him with adequate information to ensure a fair hearing. Counsel for the applicant also submitted that the applicant was wrongly deprived of an opportunity to amend his case and take other steps to regularise his claim and that his Honour erred in holding that there was no basis for the grant of interlocutory injunctive relief. 19 Counsel for the Minister contended that the applicant had not shown that there was any want of procedural fairness. The Minister submitted that the applications in a case were fundamentally defective and properly dismissed and that, in any event, there was no error on the part of the primary judge in refusing to grant the interlocutory injunction. Counsel for the Minister further argued that there was no substantial injustice to warrant the grant of leave as it was open to the applicant to make a fresh application for interlocutory injunctive relief, issue a notice to produce and/or request a Registrar to issue a subpoena, and have his interlocutory application heard with the benefit of whatever evidence was produced. If, having extended time and granted leave, the Court held that there was appellable error, then the Minister contended that the Court should not grant the relief that the applicant sought. 20 Subject to an issue raised by counsel for the Minister in oral submissions to which we return at [40] below, it was common ground that the Federal Circuit Court had jurisdiction to grant the relief the applicant claimed.

consideration 21 On 15 September 2015, the application initially before the primary judge was the application in a case in PEG142/2015, accepted for filing a week earlier, on 8 September. His Honour ultimately made orders in that matter and in SYG3004/2014 and in the applicant's other Perth proceeding. The precise path by which these matters arrived before his Honour is not entirely clear, but neither party made anything of this. 22 As will have been seen, the relevant parts of the applications in a case, which were dismissed on the first return date in the case of PEG142/2015, included relief by way of an interlocutory injunction restraining the Minister from returning the applicant to Christmas Island. It appears that SYG3004/2014 was not initially before his Honour and that the application in a case in that matter was listed for hearing two days later before another judge, but that his Honour took steps to enable him to deal with it himself that day. 23 Both in his applications in a case and at the hearing in the Federal Circuit Court, the applicant sought leave to amend his applications, and to file supplementary affidavits. He also applied for the issue of subpoenas for certain documents and for two officials to be subpoenaed to give evidence. 24 In our opinion the primary judge did not in substance consider the interlocutory injunction applications made by the applicant and the application for the issue of subpoenas. His Honour did not address at all the applications for leave to amend and to file supplementary material. 25 The hearing on 15 September was quite short: the transcript is in a little over 18 pages. About a third of the hearing was concerned with identifying the proceedings instituted by the applicant in the Federal Circuit Court. Just before the primary judge adjourned to make time-tabling inquiries, the applicant sought to draw his Honour's attention to the issues raised by his affidavit, which was apparently then before the Court. In particular, the applicant said: But also if I can just say this, your Honour, that if you look at the affidavit in support of the first application in a case, there are issues that I've raised there which outline in that affidavit, which need to be attended to by the court in order for you to make a decision … on some of the orders I'm seeking: (1) a summonsed issued, or a subpoena and a summons issued, to have my case manager, the centre manager, the psychologist and the psychiatrist come to court to give evidence in regards to what they know about the traumatic and distressing [] and the torture they put me through in Christmas Island. It is very important, according to the facts and in law, that those people come to give evidence, because they are part of what has occurred to me. … When I got out of detention from the judgment of the Full Court of the Federal Court on 25 March, I thought I was okay until I got put into hospital on that mental health … and detained in hospital. 26 The primary judge replied: Yes. I understand what you're asking for. Whether or not those matters are relevant is something I will let you explain in a minute. 27 When the primary judge returned to court, his Honour informed the applicant that: Mr Applicant, what I'm minded to do is to have these two proceedings in Perth transferred to the Sydney registry for the purpose of being heard in December concurrently with the proceedings that are already on foot in the Sydney registry and to make directions relating to each of those three matters so that they are ready for hearing in December. …. At the moment I'm not persuaded by anything you've said that the gathering of evidence is a function that this court should in any way engage in and it's not clear to me that any of the matters you've identified are relevant. In relation to the issue of jurisdictional error, this court is not sitting as a court making fresh findings of fact. In relation to the issue of the [ITOA] assessment, again, this court is determining whether there has been a jurisdictional error or whether you're entitled to other declaratory relief in relation to the processes that have been pursued, but it's not an exercise where the court is making fresh findings about your welfare or your state of mind. So at the moment nothing you've said has persuaded me it's appropriate to grant any more relief of the kind you've identified other than transfer the matter and making directions for the hearing of the matter in Sydney. 28 The applicant responded, saying he did not understand what his Honour meant "in relation to the gathering of evidence", adding: In questions of law, your Honour, you have to have - the court has to have the facts of the case … . 29 The applicant went on to say: If you're going to dismiss the matter then you have to have the facts under the law to make that decision … The respondent hasn't provided any submission. 30 It appears that his Honour did not fully appreciate that the applicant was seeking to adduce evidence in support of his application for injunctive relief because his Honour observed shortly thereafter that the applicant was not precluded from putting on affidavit evidence "because of dismissing his application" (although the significance of this comment is not entirely clear and, as will be seen, his Honour in fact affirmed that he understood the applications that were before the Court). 31 The following exchange resulted from an attempt by counsel for the Minister, Mr Hannan, to clarify the applicant's position: Mr Hannan: The only other point I should draw [to] your Honour's attention is in fairness to the applicant. The applicant is claiming in the application in a case interlocutory relief to which some of what is said might arguably be relevant in terms of not wanting to go to Christmas Island, etcetera. He has that application on before your Honour. His Honour: I understand that. 32 Having affirmed his understanding, his Honour informed the applicant that it was "not appropriate for the court to gather evidence" and that "there were matters that are not relevant currently in your application … because the nature of this court's jurisdiction is one which it is engaged in determining particular questions which are jurisdictional questions relating to the [ITOA] assessment and/or the Tribunal decision." Believing that his Honour perceived that there was a lack of jurisdiction to deal with his applications in the case, the applicant requested him to transfer the matter to this Court, a request that was declined. His Honour said: Mr Applicant, the court has jurisdiction in respect of your principal application and in relation to your [ITOA] application. Insofar as your application in a case is concerned it's not an independent source of jurisdiction; it's misconceived. I don't propose to transfer the application in a case. The primary judge went on to make the orders challenged here and delivered the reasons to which we have referred. 33 His Honour did not address the applicant's request for leave to amend his application and to file supplementary affidavits, and, in our opinion, did not in substance address his applications for an interlocutory injunction. Assuming the applicant's affidavits were formally before the Federal Circuit Court, his Honour made no findings of fact as he would have been required to do if he had in substance dealt with the interlocutory injunction applications. 34 The transcript also makes it clear that the applicant was not given a reasonable opportunity to present submissions in support of any of the dismissed applications. The applications to amend and to file supplementary affidavits, and the request to issue a subpoena, were apparently made in aid of the applications for injunctive relief. These supporting applications were either not dealt with at all or, in the case of the request for a subpoena, the primary judge acted on the basis of a fundamental misconception (as explained below). The result was that the applicant was deprived of a reasonable opportunity not only to make these supporting applications but also to make his application for injunctive relief. 35 Insofar as the applications in a case for injunctive relief and associated applications were dealt with by the primary judge we discern a number of errors in the primary judge's reasoning. In our opinion, the dispositive reasoning was that because the detention of the applicant was lawful there was no basis on which he could obtain the interlocutory injunctive relief he sought. This was erroneous. There may be particular circumstances about the place of the proposed detention that would make it prima facie not "lawful", in the broadest sense, to detain a person in that place. Secondly, the primary judge did not take the applicant's evidence at its highest nor permit him to adduce further evidence as he sought to do. Thirdly, the primary judge proceeded on an incorrect basis in refusing to issue the subpoenas. That the case the applicant sought to make did not go to whether or not there was jurisdictional error in the decisions or conduct the subject of the three substantive applications did not mean that his applications in a case for injunctive relief should be dismissed. Fourthly, as noted, at no point did his Honour advert to the applicant's applications to amend his application, which amendments might have cured the procedural irregularity to which his Honour referred, namely, seeking final relief in applications in a case. 36 There can be no doubt that the primary judge was obliged to exercise his powers reasonably and to accord the applicant procedural fairness. His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications. His Honour was also obliged to address and consider each of the applications that the applicant made to the Court. He could not act unreasonably by dismissing them without in substance addressing them. The reasons for this are explained in numerous cases, including in Shrestha v Migration Review Tribunal and Another [2015] FCAFC 87; 229 FCR 301 at [37]-[49] and in the cases there cited. The Federal Circuit Court, which is established under Ch III of the Australian Constitution, cannot validly be empowered to act other than in accordance with these central tenets of procedural fairness. 37 We accept that there was a clear denial of procedural fairness in this case because the applicant was not afforded a reasonable opportunity to make his applications, and the applications were not in substance addressed and considered before they were dismissed. This is such a clear case of denial of procedural fairness that it is unnecessary to encumber our reasons with a great deal of authority. 38 In this case, the fact that the applicant was unrepresented exacerbates the procedural unfairness that he encountered. The fact that a litigant is not represented may require a court to take steps to explain its processes and procedures to the litigant to ensure procedural fairness. This is well-recognised, as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 makes clear. In the hearing on 15 September 2015, the primary judge made no effort to explain to the unrepresented applicant how he might properly make an application for an injunction under the Federal Circuit Court's rules. Nor did the primary judge explain the other procedures that the applicant might have chosen to utilise. His Honour might, for example, have drawn the applicant's attention to the provision for notices to produce. Bearing in mind that the applicant was unrepresented and that his own uncontested affidavit showed that the subject matter of his claim for injunctive relief was important to him, we consider that the judge's failure to explain the Court's processes and procedures was unfair to the applicant and involved an unreasonable exercise of power. Had the primary judge taken the time to consider the applications being made by the applicant and to explain the Court's processes and procedures, the outcome might well have been different. 39 As noted earlier, the Minister submitted to the effect that there was only one (adverse) answer to the applicant's application for injunctive relief given the various procedural, evidentiary and other matters to which the Minister directed us, especially in his written submissions. We would, however, be slow to reach this conclusion in the absence of any hearing, where the applicant had not been given the opportunity he sought to amend, to adduce further evidence and to subpoena witnesses. Speaking generally, proceedings, including interlocutory applications, are not to be dismissed on the first return date in circumstances where a party seeks to amend and to adduce evidence, particularly where that party is self-represented: see Shrestha v Migration Review Tribunal and Another cited above. 40 As indicated earlier, counsel for the Minister also raised in oral submissions but not in his written submissions an important issue as to the scope or content of the jurisdiction of the Federal Circuit Court in relation to allegations of negligence. The submission was that the Federal Circuit Court had jurisdiction only where negligence amounting to a jurisdictional error was involved. Counsel for the Minister emphasised Wednesbury unreasonableness but accepted, as we understood it, that other forms of jurisdictional error would suffice. Given the circumstances in which the issue arose, we do not consider it appropriate to rule on this submission. The Minister, if so advised, may raise it in the Federal Circuit Court. We would observe however that jurisdictional error is a matter of characterisation of the facts rather than a reason for refusing to permit the facts to be explored. 41 We reject the Minister's submission that the matter should not be remitted because the self-represented applicant did not characterise his claims as disclosing jurisdictional error, as the Minister argued they must to engage the jurisdiction of the Federal Circuit Court. It may be that the applicant should be given an opportunity to amend and supplement his evidence if this argument were accepted. If it be necessary to show jurisdictional error then the decision-making record should be available so as to show, for example, what considerations the decision-maker took into account or did not take into account.

Remedies 42 In the circumstances where the applications made by the applicant were not in substance dealt with by the Federal Circuit Court, we do not regard it as appropriate for a Full Court of this Court to evaluate the evidence for the first time and to exercise the jurisdiction and powers which should have been exercised by the Federal Circuit Court. 43 The Minister submitted that even if the matter were remitted to the Federal Circuit Court this Court should not grant an interlocutory injunction or continue the interlocutory injunction issued by a judge of this Court on 28 October 2015. We do not accept that submission. 44 One of the bases for that submission was that the applicant was no worse off since, as we understood the submission, he could renew his application for an interlocutory injunction in the Federal Circuit Court. We reject that submission. As we have said, we would interpret the reasons of the primary judge as proceeding on a misapprehension, being that evidence could not be relevant unless it went to show that there was jurisdictional error in relation to the decisions under review which we have identified at [7] above. This and the other errors we have identified in the reasoning of the primary judge warrant correction with the consequence that the relevant orders themselves, giving effect to that reasoning, should be set aside. 45 We propose to issue an interlocutory injunction until the Federal Circuit Court otherwise orders, so to protect the efficacy of this Court's order for remittal; to preserve the subject matter of the interlocutory applications and also because, on the material before this Court, there is sufficient evidence to establish a prima facie case that the applicant may be harmed as a vulnerable detainee and, by way of recrimination, as a vulnerable detainee who says he has acted, in effect, as a whistle blower and this has become known in the Christmas Island Immigration Detention Centre. 46 The applicant submitted that any order for remittal should be to a judge other than the primary judge who heard the interlocutory applications. We see no basis for such an order. In our opinion which judge of the Federal Circuit Court should hear the matter falls for the consideration of the Chief Judge of that Court.

Conclusion 47 For these reasons we would allow the appeal, remit the matter to the Federal Circuit Court of Australia to determine the relevant parts of the interlocutory applications, and grant an interlocutory injunction until the Federal Circuit Court of Australia otherwise orders. For completeness we note that there are consent orders dated 20 October 2015 in the Federal Circuit Court adjourning the matters pending determination of the Minister's applications for special leave to appeal and any subsequent appeals from the judgment given by this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1, but with liberty to apply on five days' notice. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Robertson and Griffiths.