FEDERAL COURT OF AUSTRALIA NAFC v Minister for Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 22 MIGRATION – appellant in immigration detention – application for injunction to prevent removal from Sydney to Woomera or Baxter pending hearing before Refugee Review Tribunal in Sydney – primary Judge refused injunction – appeal moot because Tribunal hearing completed in meanwhile – reference to question whether s 256 of Migration Act 1958 (Cth) imposes obligation on Minister PRACTICE AND PROCEDURE – appellant in immigration detention – application for injunction to prevent removal from Sydney to Woomera or Baxter pending hearing before Refugee Review Tribunal in Sydney – primary Judge refused injunction – appeal moot because Tribunal hearing completed in meanwhile – reference to question whether s 256 of Migration Act 1958 (Cth) imposes obligation on Minister Migration Act 1958 (Cth) s 256 NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997 cited NAFC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1409 OF 2002 LINDGREN, STONE & ALLSOP JJ 26 FEBRUARY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1409 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAFC APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: LINDGREN, STONE AND ALLSOP JJ DATE OF ORDER: 26 FEBRUARY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1409 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAFC APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: LINDGREN, STONE AND ALLSOP JJ DATE: 26 FEBRUARY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: background 1 The appellant appeals against orders made by a judge of the Court on 18 December 2002 ([2002] FCA 1587). The primary judge ordered as follows: "1. Unless within seven days the Minister files and serves an undertaking to the Court that reasonable facilities within the meaning of s 256 of the Act will be provided for the applicant at Woomera – Declare that the Minister is bound to provide such facilities. 2. Application otherwise dismissed. 3. Make no order as to costs." 2 In the original application the appellant sought the following orders: "(a) An order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application for review of a decision to cancel his protection visa. (b) Further or alternatively, an order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application to the Respondent for a subclass 050 Bridging visa." 3 The form of application also sought an interlocutory injunction restraining the respondent Minister from removing the appellant from Sydney pending the hearing and determination of the proceeding. The appellant was in immigration detention at the Immigration Detention Centre at Villawood in Sydney ("Villawood"). 4 The appellant arrived in Australia in October 1999. On 3 August 2000 he was granted a protection (class XA) subclass 785 (Protection) visa, valid until 3 August 2003. On or about 12 April 2002, he received a notice of intention to cancel his visa under s 109 of the Migration Act 1958 (Cth) ("the Act"). This was based on an allegation that the appellant had furnished false or misleading information in connection with his application for the visa. In particular, it was based on an allegation that, contrary to what he had said, he was not from Afghanistan but was from Pakistan. The appellant maintains the correctness of what he originally stated. 5 At 8.30 am on 5 December 2002 the appellant received a notice that his visa had been cancelled. He was immediately taken into custody with a view to his being transported to the Immigration Reception and Processing Centre at Woomera ("Woomera") later that day. 6 At about 11.00 am on 5 December 2002, the appellant's solicitor filed in the Refugee Review Tribunal ("RRT") an application under s 411(1)(d) of the Act for review of the decision to cancel the appellant's visa. 7 At about 11.50 am, the appellant's solicitor lodged at the offices of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") an application for a bridging visa subclass 050. The application was subsequently refused and the appellant applied to the Migration Review Tribunal ("MRT") for review of that decision. 8 Later on the same day, the appellant applied to the Court for an interim order restraining the Minister from removing him to Woomera. This was granted by the primary judge. The interim order was in force when the application came on for hearing before his Honour on 10 December 2002 (the substantive application had been filed in Court on 6 December 2002). His Honour heard the application on a final basis, reserving his decision but continuing the interim injunction until further order. 9 At the time of the hearing before the primary Judge the application to the RRT was still pending. There was evidence before his Honour that the application before the RRT would be strongly contested and that expert "voice analysis" and "facial mapping" evidence would be led. 10 At the heart of the proceeding before his Honour (and of the appeal before us) was s 256 of the Act. That section is as follows: "Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the [detainee], ... afford to him or her all reasonable facilities ... for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention." 11 Briefly, the case for an injunction restraining the Minister from removing the appellant from Villawood to Woomera was that to do so would necessarily deprive him of reasonable facilities for obtaining legal advice or taking legal proceedings in relation to the his detention, because there would not be afforded to him at Woomera reasonable facilities, in particular, effective access to his legal advisers who are in Sydney, with which to pursue his application before the RRT for review of the decision to cancel his protection visa. 12 On 18 December 2002 his Honour refused the application for an injunction (NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587). We will not summarise his Honour's reasons for decision. It is sufficient to set out [52] to [54] of those reasons which are as follows: "[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 [in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997], 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. 13 The parties came before Lindgren J on 18 December 2002 at which time it was expected that the MRT would be giving a decision later that day on the appellant's application for review of the decision the bridging visa. It was agreed that if the MRT decision was adverse to the appellant, the parties would return the following day. Late on 18 December 2002 the MRT affirmed the refusal of the bridging visa and so the parties returned before his Honour on 19 December 2002. 14 On 19 December 2002 the appellant filed the notice of appeal, in which the grounds of appeal are set out at [2] as follows: "(a) That the learned Judge erred in failing to make findings of fact as to whether the facilities proposed to be made available by the Respondent to the Appellant for obtaining legal advice or taking legal proceedings in relation to his immigration detention complied with the Appellant's rights under s 256 of the Migration Act 1958 (Cth). (b) That the learned Judge erred in failing to consider the grant of an injunction quia timet notwithstanding that no breach of s 256 has yet occurred." The notice of appeal also claimed interlocutory relief, being "an interim interlocutory injunction restraining the respondent from removing the appellant from Sydney pending the final determination of this appeal". 15 Also on 19 December, the appellant filed in the primary proceeding a notice of motion seeking, relevantly, the following orders: "1. An order that the decision of the Court made on 18 December 2002 in these proceedings be stayed until further order. 2. An injunction restraining the Respondent or his officers, agents or delegates from removing the applicant from Sydney until further order." 16 A mere stay of his Honour's orders would not prevent the Minister from removing the appellant from Villawood to Woomera. A stay would signify that the application would no longer stand dismissed and would remain on foot. The application before Lindgren J proceeded on the footing that what was truly desired was the injunction referred to in [2] of the notice of motion. 17 Lindgren J made an order, similar to that made by the primary judge, that pending his decision on the motion the appellant not be relocated from Villawood to Woomera (NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1637). For reasons which need not be canvassed for present purposes, his Honour ordered that pending the determination of the appellant's appeal or further order of the Court, the Minister not remove the appellant from Villawood to Woomera, but that the Minister have liberty to apply for a dissolution or variation of that injunction on 48 hours' notice, not before 1 January 2003. 18 The Minister applied for a dissolution of the injunction. Due to fires at Woomera, the Minister's proposal had become one to transfer the appellant from Villawood to the Baxter Immigration Reception and Processing Centre ("Baxter"). There had been read before the primary judge an affidavit of Christine McPaul of the Department as to the facilities available at Woomera and there was then filed and read before Lindgren J an affidavit by Ms McPaul sworn 6 January 2003, substantially to the effect that the same facilities were available at Baxter. The injunction referred to in the last paragraph was varied to include a reference to Baxter in addition to the reference to Woomera. Counsel for the appellant cross-examined Ms McPaul. Another development, by the time Lindgren J was called upon to decide the Minister's application for dissolution of the injunction, was that the RRT had fixed the application before it for hearing on Thursday 6 February 2003. 19 For reasons that need not be canvassed, on 13 January 2003 Lindgren J ordered (NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 13) as follows: "UPON THE RESPONDENT'S UNDERTAKING TO THE APPLICANT AND TO THE COURT: THAT on the hearing of the appeal in proceeding N 1409 of 2002: (1) the respondent will not take the point that the applicant has already been removed from Sydney; and, accordingly (2) the respondent will agree that in all respects the merits of the appeal are to be determined as if the applicant had not been removed from Sydney and had remained in detention at the Immigration Detention Centre, Villawood; and THAT if the applicant's appeal in proceeding N 1409 of 2002 succeeds on the merits, the respondent will return the applicant to the Immigration Detention Centre, Villawood as soon as practicable following the Court's delivery of reasons for judgment favourable to the applicant on the appeal, without charging to the applicant any of the costs of his removal from that Centre or return to that Centre: THE COURT ORDERS THAT: 1. The injunction ordered on 24 December 2002 as varied on 7 January 2003 be dissolved with effect from 5.00 pm on Friday 17 January 2003. 2. The costs of the applicant's motion brought by notice of motion filed on 19 December 2002 be reserved, pending determination of the appeal in proceeding N 1409 of 2002." 20 At the commencement of the hearing of the appeal, the Court was informed: · that the appellant had been relocated from Villawood to Baxter; · that the hearing before the RRT had been concluded, subject only to the provision of a written submission; and · that no complaint had been put to the RRT that the relocation of the appellant prior to the RRT hearing had prejudiced the appellant in any way in the conduct of the RRT hearing. REASONING ON THE APPEAL Mootness of the appeal 21 In our opinion, the appeal is moot and should be dismissed for that reason. The case before the primary Judge was that the appellant should not be removed from Sydney because of the desirability or necessity of his being in proximity to his solicitors in order that he might adequately prepare for the hearing before the RRT. Since the hearing before the RRT has now been concluded, that case has evaporated, as counsel for the appellant fairly conceded. 22 Counsel suggested that determination of the appeal was necessary in order that the issue of costs should be resolved. We pointed out that if that was the only issue outstanding, the appellant would need leave to pursue the appeal. In any event, as will appear, we think it clear that the primary Judge's order that there be no order for costs should not be disturbed. Did his Honour fail to address the issue whether a transfer of the appellant to Woomera would necessarily lead to a non-compliance with s 256? 23 The substance of the complaint made in relation to his Honour's reasons is that he treated the application as premature and erroneously failed to address the question whether a transfer of the appellant to Woomera would necessarily result in a non-compliance with s 256. 24 It must be noted that the only case sought to be made on behalf of the appellant before his Honour was that preparation of the appellant's case for hearing before the RRT would be impossible or inconvenient because of a lack of effective communication between the appellant, supposedly in Woomera, and his legal advisers in Sydney. There was affidavit evidence before his Honour of Kerry Daniel Murphy, the solicitor for the appellant, that it would be necessary to reassess reports by expert witnesses and "possibly to obtain further expert evidence". Mr Murphy's affidavit continued: "If this is the case, the Applicant will need to be in Sydney in order to provide instructions and possibly to have access to further expert analysis." It is plain that it was not proved that the appellant himself would need to be the subject of further examination by experts. The sentence quoted may be intended to state that this may prove to be necessary, but it goes no further than that. There was no evidence before the primary Judge that the Minister would not in the future, consider a request, if made, for the appellant to be taken to see an expert. In any event no prejudice in this regard appears to have marred the RRT hearing. 25 His Honour referred to the reasons given by Jacobson J in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997. In that case Jacobson J stated (at [32]): "Subject to one proviso, I accept the submission put to me by Mr Lloyd that if it is appropriate to conduct trials by way of video link, it must be acceptable for the legal advisers to conduct conferences with their clients by video link unless there is a substantial impediment to its use." The "one proviso" to which his Honour referred concerned the need for confidentiality of communications between solicitor and client. This issue was addressed by the affidavit evidence of Ms McPaul in the present case. 26 Against the above background, we think that the learned primary Judge did impliedly find that the facilities which were available at Woomera were, in general terms, "reasonable facilities ... for obtaining legal advice ...". His Honour properly, however, reserved the possibility that a particular request made by the appellant once he was at Woomera might give rise to special considerations "in the light of all the facts at the material time". 27 In the result, the complaint that his Honour did not determine the reasonableness of the facilities available at Woomera on the basis of the evidentiary material before him, is not made out. Construction of s 256 28 We raised, on the hearing, a question as to whether "the person responsible for" the detention of a person in immigration detention is not the Minister. It seems inappropriate for us to discuss this question. CONCLUSION 29 For the above reasons, the costs order of the primary Judge cannot be challenged. 30 In our view the appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 26 February 2003 Counsel for the Appellant: Mr N C Poynder Solicitor for the Appellant: Craddock Murray Neumann Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 February 2003 Date of Judgment: 26 February 2003