McCafferty, Archibald Beattie v Minister for Immigration & Ethnic Affairs & Ors [1995] FCA 1099

C A T C H W O R D S

MIGRATION - deportation - pre-parole assessment - whether short term leave precluded by deportation order - meaning of "accordingly" - s.206(1) Migration Act - meaning of "the custody" - meaning of "custody transer time" - s.254 Migration Act.

Migration Act 1958 (Cth) - s.189(1), s.206(1), s.254

Prisons Act 1952 (NSW) - s.29

Brauer v Queensland Corrective Services Commission (1992) 112 FLR 183

Gray v MILGEA (1992) 115 ALR 144

Lewis v MILGEA (1988) 89 FLR 218

R v The Governor of the Metropolitan Gaol; Ex parte Molinari (1961) 2 FLR 477

ARCHIBALD BEATTIE McCAFFERTY v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES and THE MEMBERS, OFFENDERS REVIEW BOARD OF NEW SOUTH WALES

No G 788 of 1995

Davies J

21 December 1995

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No G 788 of 1995

)

GENERAL DIVISION )

BETWEEN: ARCHIBALD BEATTIE McCAFFERTY

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

NEVILLE SMETHURST, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES

Second Respondent

THE MEMBERS, OFFENDERS REVIEW BOARD OF NEW SOUTH WALES

Third Respondent

Coram: Davies J.

Date: 21 December 1995

Place: Sydney

MINUTES OF ORDER

THE COURT DECLARES THAT:

1. The implementation of an order of the second respondent made under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) permitting the applicant to be on unescorted absence from the prison does not constitute a "custody transfer time" for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth).

THE COURT ORDERS THAT:

2. The "Direction to hold in custody", dated 20 August 1993 and made in relation to the applicant, Archibald Beattie McCafferty, be set aside and that the matter be remitted to the Secretary of the Department of Immigration & Ethnic Affairs for consideration whether or not to give a written notice under s.254 of the Migration Act 1958.

3. The reclassification of Archibald Beattie McCafferty as a Category C1 prisoner be set aside and the matter be remitted to the Commissioner of Corrective Services for reconsideration of Mr McCafferty's classification.

4. The Minister for Immigration & Ethnic Affairs pay the applicant's costs of the proceedings and that the respondents abide their own costs thereof.

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 ) No G 788 of 1995

)

GENERAL DIVISION )

BETWEEN: ARCHIBALD BEATTIE McCAFFERTY

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

NEVILLE SMETHURST, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES

Second Respondent

THE MEMBERS, OFFENDERS REVIEW BOARD OF NEW SOUTH WALES

Third Respondent

Coram: Davies J.

Date: 21 December 1995

Place: Sydney

REASONS FOR JUDGMENT

These proceedings, which seek orders against the Minister for Immigration & Ethnic Affairs, the Commissioner of Corrective Services for the State of New South Wales and the Members of the Offenders Review Board of New South Wales, arise
out of an administrative problem encountered in the New South Wales prison system with offenders who are subject to an order for deportation.

In my opinion, the problem has resulted from a misunderstanding of the relevant legislation. Hopefully, once that legislation is understood, there should be no further administrative difficulty.

It has long been the practice of Commonwealth Ministers not to enforce deportation orders directed to criminals until the offenders have been released from prison either at the end of their sentence or on parole. Thus, in R v The Governor of the Metropolitan Gaol; Ex parte Molinari (1961) 2 FLR 477, Sholl J mentioned the following facts at 483:-

"While Molinari was still at Pentridge under sentence, the Minister for Immigration on 18th January, 1961, signed an order, expressed to be made under s.13 of the Migration Act 1958, for his deportation. ... When the time for Molinari's release approached, he was, on 10th April, 1961, informed of the order. When his sentence expired in June, by reason of the usual remissions, he was retained in custody by the governor of the gaol, the respondent Souter, pending deportation."

When the Administrative Appeals Tribunal commenced to review deportation decisions, many of the cases concerned deportation orders which had been made after the offender's release from prison. Such cases will be found in the first 2 volumes of the Administrative Law Decisions. Later, because reformed offenders tended to settle back into the community, take employment, marry and so on, it became the practice to make deportation orders shortly before the offender's release. More recently, the practice seems to have been to make the order in time to allow the review processes
to be completed before an offender's release, but not to enforce the order until the offender has been released from prison.

Consistently with this approach, the present policy, which is set out in Migrant Series Instruction No 79 issued 26 August 1994, provides inter alia:-

"1.2 There is no intention of removing a person while that person is subject to a sentence imposed by a court. The changes that have been outlined above (and which are the subject of separate MSIs) have resulted in procedures being developed to serve the interests of the community - in having sentences served as properly determined by a court - and also taking account of the interests of inmates of gaols - in having the opportunity to benefit from various rehabilitative programs offered by institutions which they might otherwise be barred from as a result of their liability for enforced departure.

1.3 The policy objective is to ensure that liability for enforced departure should, wherever possible, not affect decisions concerning work release, rehabilitation or reclassification of prisoners. These decisions should rest solely in the hands of prison authorities. This is consistent with long-standing DIEA policy not to encroach upon the role of corrective service agencies to decide the terms and conditions of a prisoner's sentence. ..."

The terms of this instruction fail to appreciate that an offender is subject to the sentence of the court until the sentence finally expires. But the significant point is that the instruction reflects Ministerial policy that deportation should not be effected until the offender has been released from prison.

The reason for this practice has had much to do, I think, with the maintenance of proper Commonwealth/State relations. Most criminals have been held in State prisons as a result of the commission of State crimes. Even prisoners convicted under Federal laws have been held in State prisons. It has been thought that the deportation powers contained in the Migration Act 1958 (Cth) should not be
exercised so as to override, by reason of s.109 of the Constitution, sentences of imprisonment being served under orders of State courts.

None of the above matters is vital in itself but it is helpful to appreciate the context in which s.254 of the Migration Act, which was enacted in 1989 and to which I shall shortly turn, was passed.

The applicant, Archibald Beattie McCafferty, has been held in a State prison pursuant to life sentences for murder which were imposed upon him by the Supreme Court of New South Wales on 26 April 1974. On 15 October 1991, the Supreme Court imposed a minimum term to date from 30 August 1973. Under those sentences Mr McCafferty became eligible on 29 August 1993 to be considered for parole. On 10 April 1991, the Minister for Immigration & Ethnic Affairs ordered that Mr McCafferty be deported.

In the New South Wales system, it is usual that a prisoner who has been sentenced for a serious crime will, before being granted parole, be offered the opportunity of proving his or her ability to reenter the community by short term leave from prison under the provisions of s.29 of the Prisons Act 1952 (NSW) which provides inter alia:-

"29. (1) Any prisoner may, by order of the Commissioner, be taken temporarily from any prison to any place in the State or be permitted to be absent temporarily from any prison, on such conditions as may be prescribed and such conditions as may be specified in the order, for any purpose in aid of the administration of justice, or for the purpose of:

(a) attending the funeral or obsequies of any near relative;

(b) visiting a near relative suffering serious illness or disability;

(d) attending a place of eduction or training in connection with any course of education or training;

(e) engaging in employment specified in the order; or

(f) being interviewed by any member of the police force in connection with the commission of any crime or offence in any prison, whether or not committed or suspected of having been committed by the prisoner,

or for any other purpose which the Commissioner deems to be justified."

(2) Any prisoner may, in accordance with a permit granted to the prisoner by the Commissioner, be permitted to be absent from a prison, on such conditions as may be prescribed and such conditions as may be specified in the permit, for a period, being:

(a) for the purpose of weekend leave - such period not exceeding 3 consecutive days as may be specified in the permit;

(b) for the purpose of attending tuition or performing work in connection with a course of education or training being undertaken by the prisoner - such period not exceeding 7 consecutive days as may be specified in the permit; or

..."

In Mr McCafferty's case, he was for some months in late 1994 given that opportunity. He was classified C3, which was the most generous of the classifications, and was allowed day leave for the purpose of undertaking training or study. However, on 1 June 1994, an officer of the Department of Immigration and Ethnic Affairs ("DIEA") wrote to the Long Bay Correctional Centre to advise that it was the Department's intention to deport Mr McCafferty on his release. This communication and other circumstances led to a reclassification of Mr McCafferty to C1 and he was not thereafter allowed leave.

It is clear that the letter from DIEA played a part in bringing about this situation. Thus, on 29 August 1994, the Secretary, Serious Offenders Review Council, wrote to Mr McCafferty:-

"The Council noted your concern that the regression in your classification would adversely affect the Offenders Review Board's decision regarding your suitability for
release to parole. The Council considers that you have satisfactorily participated in external leave programs as a C3 and that the decision to increase your classification was made following receipt of a letter dated 1 June 1994 from the Department of Immigration and Ethnic Affairs stating that it had issued, to the Department of Corrective Services, a Direction to Hold, pursuant to Section 93 of the Migration Act 1958. Whilst the Council had previously been aware of your Deportation Order, it was of the opinion the Direction to Hold substantially altered your position."

On 12 October 1995, the Department of Corrective Services ("DCS") wrote to Mr McCafferty's solicitor:-

"I appreciate that it is within the power and authority of this Department to allow unescorted pre-release leave to deportees and in fact it is Departmental policy that a deportation order is not of itself a reason for declaring an inmate unsuitable for participation in an external leave program. Nevertheless, the stance taken by the Department of Immigration and Ethnic Affairs is an overriding factor in these deliberations."

Other factors also appear to have played a part. Whilst on leave, Mr McCafferty breached regulations by giving an unauthorised press interview. But we are not presently concerned with that.

There was correspondence between DIEA and DCS. In May 1995, the Director, Compliance and Detention Policy, DIEA wrote:-

"As you are aware the issue to be addressed involves a re-consideration of the effect of section 254 of the Migration Act 1958 in light of the Gray v MILGEA (1992) 115 ALR 144 and Brauer v Queensland Corrective Services Commission (18 December 1992, unreported). The current interpretation has the consequence of prison authorities not approving day release for prisoners because the effect of doing so would be to transfer the prisoner to Immigration detention."

Whenever Mr McCafferty applied for parole, his applications were refused for the reason, inter alia, that his ability to assimilate back into the community had not
been proven. In a communication of 20 July 1983, the Offenders Review Board gave notice to Mr McCafferty that:-

"Board notes oral advice from Serious Offenders Review Council (SORC) that if SORC felt McCAFFERTY could undertake day leave under Section 29 of the Prisons Act it would prefer that he should as a further method of being satisfied that he was being tested to lead a law abiding life."

At a parole hearing when parole was refused, the Chairperson of the Board said, inter alia, "The testing is for the Serious Offenders Review Council".

The position was therefore reached where Mr McCafferty wished to have an order for his release on parole, so that he could be released from the New South Wales prison and deported and the Minister for Immigration & Ethnic Affairs desired that Mr McCafferty be deported but would not act because he had not been released on parole. The ordinary parole and pre-parole procedures were not, however, being activated because Mr McCafferty was subject to an order for deportation.

The first misunderstanding of law was as to the effect of s.254 of the Migration Act 1958 (Cth). That section provides:-

"254. (1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.

(2) The Secretary may give the person written notice:

(a) if the person is a deportee:

(i) stating that a deportation order has been made; and

(ii) setting out particulars of the deportation order; and

(b) if the person is a removee - stating that the person is to be removed; and

(c) in any case - stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the `custody transfer time'), the person will be kept in immigration detention.

(3) Where a deportee is given notice under subsection (2), this Act (other than subsections 253(1) and (3) applies in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time."

The section was earlier numbered s.94 of the Migration Act.

In Gray v Minister for Immigration, Local Government & Ethnic Affairs (1992) 115 ALR 144, Burchett J considered whether in s.254(2)(c) the words "the custody" referred to the point of time of release on parole. Burchett J expressed the issue thus, at 146:-

"The applicant contends that s94 requires the minister to await the end of his custody before taking any step to carry out the deportation order, and that he was still in the custody of the Queensland prison authorities when on parole. He points to the restraints upon his liberty imposed by the conditions of his parole. He relies on Bantick v Blunden (1981) 36 ALR 541; 58 FLR 414, where a community work order was regarded by Green CJ as custodial in nature. He also relies on the terms of the Queensland legislation which, he submits, treats him as still in custody, or at least under detention: see ss 33, 183 and 184 of the Corrrective Services Act 1988 (Qld)."

Burchett J held that, in s.254, the words "the custody" should be read according to their meaning in the Migration Act, not in their meaning in the Corrective Services Act 1988 (Qld). His Honour held that release on parole operated as release from "the custody" for the purposes of the Migration Act. His Honour said at 147, "my conclusion is that s 94 [254] does not treat release on parole as custody." In so holding, his Honour gave s.254 of the Migration Act a meaning which accorded with the traditional practice to which I have referred.

In Gray's case, Burchett J drew a distinction between "actual custody" and "deemed custody". However, his Honour's reasoning should be read in the context with which his Honour was dealing. Subsequently, in Brauer v Queensland Corrective Services Commission (1992) 112 FLR 183, Moynihan J of the Supreme Court of Queensland read s.254 as if the words "actual custody" were written into it. Moynihan J held that day release under Queensland provisions which were the equivalent of s 91 Prisons Act 1952 (NSW) would operate as a release from actual custody for the purposes of s.93 [253] and s.94 [254] of the Migration Act.

In my opinion, the approach taken by Moynihan J was not correct insofar as s.254 is concerned. Section 254 does not speak of "actual custody" but refers to "in the custody" and "entitled to be released from the custody" and "the custody transfer time". In my opinion, s.254 is not concerned with the leave which may be given to prisoners for special purposes or leave which may be given with a view to ascertaining whether the prisoner is fit to be released from custody, that is to say, fit to be granted parole. Section 254 does not look to the circumstance where, for any reason, the prisoner may be outside the prison walls unescorted, but rather, it looks to the substantial point in time when the prisoner is released from the custody, which s.254 describes as the "custody transfer time". Ordinarily, I do not say in every case, that will occur when the prisoner is released on parole or at the end of his or her sentence.

I do not suggest that Brauer's case was wrongly decided. The judgment does not state that a notice had been served under s.254, merely that, at a time before the deportation order had been made, an officer had informed the prisoner "that he was under arrest under the Migration Act". The prisoner may have been, therefore, in immigration detention, not merely subject to being detained in immigration detention on the occurrence of the "custody transfer time". However, insofar as his Honour spoke of s.254, I am of the view that his Honour's reading of the section should not be followed.

Mr A Robertson SC, with whom Mr N Williams appeared for the Minister for Immigration & Ethnic Affairs, did not argue the contrary of the view I have expressed, but merely pointed out the problem and informed the Court that the Minister and his Department had felt it proper to apply the reasoning and decision of Moynihan J in Brauer's case.

In the present case, a notice served on 20 August 1993 was expressed to be a notice under s.93 [253] of the Migration Act. It was signed by an officer who was described as a delegate of the Minister for the purposes of s.93(8) [253(8)] of the Migration Act. According to Mr Robertson, the notice had been intended to be a notice under s.254, which one would assume to be the case as s.254 deals specifically with the circumstance where a person is held in custody otherwise than under the Migration Act, whereas s.253 simply provides a general power of arrest. It appears therefore, that an error was made. The notice served was neither directed to Mr McCafferty nor expressed in terms which were consistent with s.254. So that there will be no further misunderstanding about the matter, I shall set aside the notice served on the ground that it did not satisfy the provisions of s.254. That will leave the Secretary of DIEA freedom to serve on Mr McCafferty a notice that complies with the provisions of s.254.

It is not necessary for me to determine whether, in every case where a deportee is held in a State prison, the Commonwealth must act under s.254 rather than under s.253(1) and (8). Mr Robertson's concession that the notice was intended to be a notice under s.254 is sufficient to justify the order in the present case. Nor need I consider what the position may have been had a valid notice under s.253(1) been served.

The next issue arises from a point which was expressed rather more clearly in the associated case of Mr Hoang van Truong. In that case, there was advice dated 7 September 1995, sent from an officer of DIEA to the parole authorities that:-

"As he [Mr Truong] is subject to a deportation order, legal advice received by this department indicates that if he is released from gaol, even for just a day, the department is then obliged, due to the deportation order, to arrest and enforce Mr Truong's deportation from Australia."

This communication reflected more than one misconception of law. In the first place, s.254 provides a specific procedure to be adopted in relation to deportees who are in prison. Therefore, one would expect it to be availed of in the usual case, even if it is not read as covering the field. Section 254 provides for the deportee to be kept in immigration detention on the happening of the "custody transfer time". There should be no point of time after the custody transfer time when it is necessary for an officer to arrest the deportee. The deportee should be in immigration detention.

A more fundamental misunderstanding of the communication was as to the operation of s.206(1) of the Migration Act which reads:-

"206. (1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly."

The word "accordingly" does not mean instantly or even promptly. In Lewis v Minister for Immigration, Local Government & Ethnic Affairs (1988) 89 FLR 218, Asche CJ said at 223:-

"The expression `shall ... be deported accordingly' does not suggest that the deportee must be deported `immediately' or `forthwith'."

The provision simply casts a duty upon appropriate persons to see that the Minister's order for deportation is carried out. In the exercise of that duty, the appropriate persons have an element of discretion as to when and how the deportation is effected and may take all relevant circumstances into account, including those of the deportee and those of other persons who may be affected by the deportation.

The Migration Act does not require that, the moment a prisoner is outside gaol and unescorted, he or she must be immediately arrested. Nor, so far as I am aware, has the Migration Act ever been so applied. There have been very many cases coming before the Administrative Appeals Tribunal where orders for deportation have not been carried out pending the hearing and determination by the Administrative Appeals Tribunal of an application to review a decision to deport. That is but one illustration. The failure to carry out a deportation order until the deportee has been released on parole is another.

Section 189(1) of the Migration Act provides:-

"189. (1) 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."

However, a person who is in a State prison is in the migration zone. Therefore, the section is not concerned with and does not direct its attention to the issue of pre-parole release under s.29 of the Prisons Act. If a prisoner is an unlawful non-citizen and it is not proposed to execute the deportation order until the prisoner has been released on parole, the appropriate course is to grant an appropriate visa so that the person ceases to be an unlawful non-citizen.

The information contained in the communication of 7 September 1995 concerning Mr Truong was therefore misleading. The substance of that advice was also communicated in Mr McCafferty's case.

When DCS was informed that when Mr McCafferty was released the deportation order would be carried out, Mr McCafferty's classification was raised from C3 to C1 and he was thereafter refused any day leave. This step appears to have occurred primarily because of the misunderstanding of the operation of the Migration Act to which I have already referred.

Counsel for the Commissioner of Corrective Services conceded that, if I were to come to the view that s.254 of the Migration Act had been misinterpreted, as I have, then the reclassification on 29 June 1994 of Mr McCafferty to category C1 should be set aside and that the matter should be remitted to the Commissioner for reconsideration of Mr McCafferty's classification.

In the light of the above, I shall make the following declaration:-

In addition, I shall order:

2. That the "Direction to hold in custody", dated 20 August 1993 and made in relation to the applicant, Archibald Beattie McCafferty, be set aside and the matter be remitted to the Secretary of the Department of Immigration & Ethnic Affairs for consideration of whether or not to give a written notice under s.254 of the Migration Act 1958.

3. That the reclassification of Archibald Beattie McCafferty as a Category C1 prisoner be set aside and the matter be remitted to the Commissioner of Corrective Services for reconsideration of Mr McCafferty's classification.

4. That the Minister for Immigration & Ethnic Affairs pay the applicant's costs of the proceedings and that the respondents abide their own costs thereof.

I certify that this and the 14 preceding pages

are a true copy of the reasons for judgment herein of

the Honourable Justice Davies.

Associate:

Date: 21 December 1995

Counsel for the applicant: G.P. Craddock

Solicitors for the applicant: Legal Aid Commission of NSW

Counsel for the 1st respondent: A. Robertson SC

L. McCallum

Solicitor for the 1st respondent: Australian Government Solicitor

Counsel for the 2nd respondent: D. Cowan

Solicitors for the 2nd respondent: State Crown Solicitor's Office

Counsel for the 3rd respondent: P.J. Saidi

Solicitors for the 3rd respondent: State Crown Solicitor's Office

Date of hearing: 7 December 1995

Date of judgment: 21 December 1995

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