BZAAB v Minister for Immigration and Citizenship [2011] FCA 429 (11 April 2011)

Last Updated: 3 May 2011

FEDERAL COURT OF AUSTRALIA

BZAAB v Minister for Immigration and Citizenship [2011] FCA 429

Citation:		BZAAB v Minister for Immigration and Citizenship [2011] FCA 429
Appeal from:		Application for extension of time: BZAAB v Minister for Immigration & Anor [2011] FMCA 174
Parties:		BZAAB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		QUD 56 of 2011
Judge:		LOGAN J
Date of judgment:		11 April 2011
Catchwords:		APPEAL AND NEW TRIAL – application for extension of time to file a notice of appeal – whether to transfer proceedings to Sydney Registry – where applicant in immigration detention in Sydney – where respondents did not oppose the application – application for extension of time granted – matter not transferred to Sydney. MIGRATION – applicant detained in Sydney for alleged breach of bridging visa – applicant not produced to Court for directions – whether Minister had duty to produce – Minister should have produced applicant – Minister required personally to depose reasons for non-production
Legislation:		Migration Act 1953 (Cth)
Date of hearing:	11 April 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr P Bickford
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 56 of 2011

BETWEEN:	BZAAB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	11 APRIL 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The applicant’s application for leave to file and serve out of time be allowed.
2. The applicant file and serve a notice of appeal in Form 55 by 19 April 2011.
3. It will be sufficient service of the notice of appeal if the applicant hands the notice of appeal to a custodial officer.
4. The Minister for Immigration and Citizenship (the Minister) is to cause the notice of appeal so handed to be lodged forthwith in Court.
5. The matter be listed for hearing in the Federal Court of Australia in Brisbane on 11 May 2011 at 10.15am.
6. The appeal book be constituted by:

(a) the application;

(b) the bundle of relevant documents filed in the Federal Magistrates Court;

(c) the transcript of evidence and any exhibits before the Federal Magistrate;

(d) the reasons for judgment and orders of the Federal Magistrate;

(e) the notice of appeal (or, if applicable, the amended notice of appeal), any notice of contention, notice of cross appeal or for an extension of time within which to appeal or seek leave to appeal);

(f) the orders of the court granting leave to appeal or extending time to file and serve a notice of appeal.

7. Order 52 rules 24-29 of the Federal Court Rules (“the FCR”) not apply to this appeal, unless otherwise directed.
8. The appeal booked be prepared, filed and served by the Minister.
9. The appeal book be prepared by copying on both sides of the pages, unless it is fewer than ten (10) pages in length.
10. The applicant file and serve a written outline of submissions no later than seven (7) day clear working days before the hearing date, unless otherwise directed.
11. The respondent file and serve a written outline of submissions no later than three (3) clear working days prior to the hearing.
12. Outlines of submissions not exceed ten (10) pages in length, including any annexures.
13. Liberty to apply (with permission given for any application in relation to listing to be dealt with by telephone or if available, video link).
14. Costs of and incidental to the application be reserved save those in respect of the appearances on 8 April 2011, where there will be no orders as to costs.
    

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 56 of 2011

BETWEEN:	BZAAB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE:	11 APRIL 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. When this matter was called on for its listed directions hearing on Friday 8 April 2011, the applicant did not then appear in Brisbane. I was informed that morning by the solicitors for the Minister for Immigration and Citizenship, the Honourable Christopher Bowen, MP (the Minister), who is the first respondent, that the reason for that was that the applicant had been arrested and was in custody for an alleged violation of the terms of her bridging visa.
2. Late on the afternoon beforehand contact had been made with my associate, by those solicitors, giving a number at which telephone contact might be made. It was made clear at that stage, to those solicitors, that there was no permission from the Court to conduct the directions hearing by telephone. The reason for that was an apprehension on my part, amply justified today, that the remoteness of interpersonal communication offered by telephone, to a person whose first language is not English, and who is in custody, would make a directions hearing by telephone impractical.
3. When a person is arrested and comes into the custody of the Minister, knowing by his officers that that person is due to appear in a court created under the Constitution by the Parliament to exercise the judicial power of the Commonwealth, it is incumbent on the Minister, as custodian, to produce that person, unless excused from so doing by the Court. It is one of the fundamental responsibilities that falls upon those who deprive a person of their liberty not to interfere, by so doing, with that person’s access to Commonwealth judicial power.
4. It was because of that extremely serious lapse in custodial responsibilities that I thought on Friday last that the interests of justice required that the Minister personally file an affidavit explaining why it is that the person was not produced. This he has done, supplemented by two affidavits of one of his departmental subordinates, Ms Trapaga-Saul, Assistant Secretary Compliance Case Resolution.
5. It is no part of the role of the Court to have the general administration of the Migration Act 1953 (Cth); that is a subject allocated to the Minister, by Her Excellency the Governor-General, under the Administrative Arrangements. The Minister and his officers are perfectly entitled, in the event that they believe there is lawful cause for so doing, to arrest someone and hold them in custody if it is considered that a term of a bridging visa has been breached. The obligation though, having so done, is to produce the person, not to prevent them from attending court by not producing. An apology was tendered on behalf of the Minister this morning. I am quite certain that that was genuinely tendered, and that a valuable reminder has been given to the Minister and his officers.
6. What makes the events of last Friday ironic is that the Minister informed me by his counsel this morning that he was not disposed to oppose the granting of an extension of time within which to appeal. Had there been better coordination on behalf of the Minister, his officers and, it must be said, their advisers, before Friday last, one might have expected that the need for a directions hearing in person could have been obviated. There is much wisdom behind the military adage that “prior preparation and planning prevents poor performance”. Given the Minister’s stance, it is not necessary to allocate a separate time for the hearing of an application for an extension of time within which to file and serve a notice of appeal out of time.
7. The applicant is presently housed in Villawood. It is clear from the affidavits of Ms Trapaga-Saul that, in terms of the present arrangements which the Commonwealth has for the housing of persons in immigration detention, the most comfortable facility for the long-term housing of the applicant is at Villawood in Sydney. It is, of course, a matter for the Minister in his general administration as to where to locate facilities. There is, though, an inconvenience about there being but one at Villawood when proceedings are in Brisbane.
8. One’s mind in those circumstances naturally turns to the transferring of the appeal to the Sydney Registry for its hearing. The difficulty about that is that the appeal work for the May sittings of the Court has already been allocated, so far as the Sydney list is concerned. It may, of course, opportunistically be that a gap might emerge, however, the case is presently in my docket, and I am aware from my own forward list that I can hear this case on 11 May. It is greatly preferable that it be heard then rather than being adjourned to the August sittings, which are the next appeal sittings of the court. Apart from the general interest in a timely hearing of the appeal, there is also the particular interest that the applicant is presently in custody. For those reasons, I do not propose to transfer the case to the Sydney Registry, but rather to hear it in Brisbane.
9. For that purpose, the directions that I make today are directed to allowing the applicant time within which to prepare her notice of appeal, and then for the further progression of the case to the hearing. Given her present custodial circumstances, the directions will include a direction that it be sufficient service on the Minister if she hands the prepared notice of appeal to the officer in whose custody she is, with it then falling upon the Minister to cause the notice of appeal to be lodged with the registry. I use the term “lodged” because it may be that a filing fee is necessary before a lodged document can be accepted for filing by the registrar.
   
10. It is to be hoped, given the applicant’s illiteracy in English, that those who have her custody, given the timeframes within which the applicant must work, will facilitate her access to an interpreter, and also, if it be the case that legal aid practitioners visit Villawood, facilitate access to such persons as soon as possible. I have no doubt that the Minister and his officers will use their best endeavours in this regard. The directions will be in terms of the signed draft that I have placed with the court papers.
    

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 29 April 2011