FEDERAL COURT OF AUSTRALIA

MIGRATION – detention pending application to Administrative Appeals Tribunal for review of deportation order – application to set aside both decision to detain applicant and decision not to order applicant’s release – interlocutory application for release from custody – whether serious question to be tried – whether balance of convenience favours granting of interlocutory relief – discussion of interaction of ss 253 and 254 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss 200, 201, 253, 254, 475, 485

Judiciary Act 1903 (Cth), s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11(1)(c), 15, 19

Federal Court of Australia Act 1976 (Cth), s 23

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, cited

Whittaker v The Secretary of the Department of Immigration and Multicultural Affairs (Lehane J, 16 September 1997, unreported),cited

Pylka v Minister for Immigration and Multicultural Affairs (North J, 23 December 1997, unreported), cited

Towers v Minister for Immigration and Multicultural Affairs (Carr J, 16 February 1998, unreported), cited

Halmi v Minister for Immigration and Multicultural Affairs (Wilcox J, 29 January 1998, unreported), cited

THE COURT ORDERS THAT:

1.         The application for interlocutory relief is refused.

2.         The application is set down for final hearing at 10.15am on 29 September 1998 before me.

3.         The applicant is to file and serve, not later than 15 September 1998, any further evidence upon which he wishes to rely and an outline of his submissions on the final hearing.

4.         The respondent is to file and serve, not later than 22 September 1998, any further evidence upon which he wishes to rely and an outline of his submissions on the final hearing.

5.         The parties have liberty to apply on three days’ notice.

6.         The costs of the interlocutory hearing, and of the proceedings on 11 August, are reserved.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Nature of proceeding

The applicant seeks orders setting aside decisions by a delegate of the respondent (the Minister) to detain the applicant under s 253(1) of the Migration Act 1958 (Cth) and, subsequently, not to order the applicant’s release under s 253(9).   Those decisions are not “judicially-reviewable decisions” (s 475(1)) or decisions covered by s 475(2).   There are two consequences of that: one is that neither decision is reviewable under Part 8 of the Migration Act and the other is that s 485 of that Act does not exclude other avenues of judicial review.  Although the court does not have jurisdiction to review either decision under Part 8 of the Migration Act, the further amended application seeks to invoke the jurisdiction under that Part; but it also invokes s 39B of the Judiciary Act 1903 (Cth) (though there might be a question about the precise form of the relief sought if that were the court’s only jurisdiction). Curiously, though the original application relied also on s 5 (more accurately, no doubt, s 16) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”), the further amended application does not rely on the ADJR Act; it is not easy to see why the decisions are not reviewable under s 19 (there is a clear line of authority, to which I shall refer later in these reasons, which establishes that review is available under the ADJR Act in relation to decisions of this kind).   It may be, in the circumstances, that a final order could not be made under the ADJR Act unless the applicant were first granted an extension, under s 11(1)(c), of the time allowed for lodgment of his application.  

The aspect of the proceeding now before the court is an application for interlocutory relief by way of an order for the release of the applicant from detention pending the final determination of the further amended application.   The applicant relies on the power of the court, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make interlocutory orders of such kinds as the court thinks appropriate.  Certainly there is ample authority for the proposition that, at least in circumstances where review is sought under the ADJR Act, the court has power, relying on a combination of s 23 of the Federal Court of Australia Act and s 15 of the ADJR Act, to grant interlocutory relief of the kind now sought; and there is no obvious reason why, where reliance is placed solely on s 39B of the Judiciary Act, s 23 does not on its own confer ample power: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169; Whittaker v The Secretary of the Department of Immigration and Multicultural Affairs (Lehane J, 16 September 1997, unreported); Pylka v Minister for Immigration and Multicultural Affairs (North J, 23 December 1997, unreported); Towers v Minister for Immigration and Multicultural Affairs (Carr J, 16 February 1998, unreported). 

Facts; statutory provisions; impugned decisions

The applicant is a New Zealand citizen.  He was born on 10 March 1976.   He arrived in Australia in 1989; he lived with his adoptive parents in a Sydney suburb.   Following a series of earlier convictions, both as a minor and after he turned 18 (I shall return to the history in more detail later in these reasons), he was convicted at the Central Local Court on 31 May 1996 of stealing a motor vehicle, dangerous driving, driving whilst disqualified and “goods in custody”.   For dangerous driving, he was sentenced to imprisonment for nine months; for stealing the motor vehicle he was sentenced to prison for fifteen months commencing at the end of the sentence for dangerous driving.   For the other two offences he was sentenced to shorter prison terms concurrent with his term of imprisonment for dangerous driving.  

Section 200 of the Migration Act provides that the Minister may order the deportation of certain non-citizens.   Section 201 includes among the non-citizens who may be deported under s 200 one who has been convicted of an offence for which the non-citizen was sentenced to imprisonment for a period of not less than one year and who:

….. (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

            …(B)  for periods that, when added together, total less than ten years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; ….

It is common ground that the applicant met those tests.   On 14 April 1998, about six weeks before the applicant’s term of imprisonment was to expire, the Minister’s delegate made an order under s 200 that he be deported.   The applicant has sought review by the Administrative Appeals Tribunal of the decision to make that order and the Tribunal has set that application down for hearing in late October.   

Sections 253 and 254 of the Migration Act provide for the detention of persons ordered to be deported.   In order to make what follows intelligible, it is necessary to set out s 253 in part and s 254 in full:

253.     (1)       Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.

(2)       A person detained under subsection (1) … may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).

(3)       Where an officer detains a person under subsection (1) … the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.

…..

(8)       A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:

(a)       pending deportation, until he or she is placed on board a vessel for deportation;

(b)       at any port or place in Australia at which the vessel calls after he or she has been placed on board; or

(c)        on board the vessel until its departure from its last port or place of call in Australia.

(9)       In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.

…

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.

On 25 May 1998 a delegate of the Minister decided to detain the applicant under s 253.  It appears from the material before me that the applicant’s prison term came to an end on Monday 1 June 1998 and that on that day an officer of the Department attended at the prison where he was held and purported to detain him.   The decision made on 25 May is one of the two decisions which the applicant seeks to set aside.   The other is a decision of the delegate made on 16 July 1998 (presumably under s 253(9)) not to release the applicant.

Grounds on which review is sought

The applicant seeks to set the two decisions aside on three bases.  First, he claims that the initial decision to detain the applicant was made unlawfully, because s 253(1) has no application to a person already in the custody of an authority of a State: if the Minister wishes to keep in immigration detention a person who is serving a sentence of imprisonment under State law and is in State custody, he must proceed under s 254.   The applicant claims also that the delegate, in making each decision, acted unreasonably in the Wednesbury sense and failed to take relevant considerations into account.   For reasons which will appear, it is unnecessary to consider, on this interlocutory application, the latter two grounds.  

The first ground gives rise to questions which may be of some importance to the practical working of ss 253 and 254.   The intended scheme of the provisions seems clearly enough to be that where a person, against whom a deportation order has been made, is at large in the community, that person (or a person whom an officer reasonably supposes to be that person) may be detained (that is, in substance, arrested) under s 253(1).    Once that has happened, the person may be kept in immigration detention, or in detention as a deportee, in accordance with the succeeding sub-sections.   It may be mentioned in passing that “deportee” and “person in respect of whom a deportation order is in force” are synonymous: see the definitions in s 5(1).   Where a deportee is already in custody, however, there is no occasion to “detain” the person: thus, under s 254, a deportee in custody may be given a notice to the effect stated in s 254(2) with the consequence provided in s 254(3): that is, that from the time when the person would otherwise be released from custody he or she will be kept in immigration detention.

Until fairly recently, the practice of the Department seems to have been, where a decision is made to keep in immigration detention a deportee already in the custody of a Commonwealth, State or Territory authority, to give the person a notice under s 254(2) and then, when the person would otherwise be released, to attend at the prison and purport to detain the person (additionally) under s 253(1).  The practice is described in Whittaker at 4,5 as is the view of the law on which it appeared to be based.   However, in Halmi v Minister for Immigration and Multicultural Affairs  (Wilcox J, 29 January 1998, unreported), Wilcox J held that once a notice has been given to a person under s 254(2) it is no longer possible to detain that person under s 253(1) because s 254(3) expressly provides that s 253(1) does not apply in relation to the person.   Because there is no separate power to detain under s 254, the consequence is that there simply is no power to detain, under ss 253 and 254, a person to whom a notice has been given under s 254(2).   That decision, doubtless, explains what was done in the present case.  No notice was given under s 254(2); a decision was made, shortly before the due date of the applicant’s release, to detain him under s 253(1) and, apparently on the day on which he was due to be released, an officer attended at the gaol and purported to detain him under that provision.   The submission made on behalf of the applicant, in those circumstances, is simple: at the time when the officer purported to detain the applicant, he was in the custody of an authority of a State (even if that custody was about to come to an end).   Thus, though it was open to the Secretary to give the applicant a notice under s 254(2), it was not open to an officer to detain him under s 253(1) so long as he remained in custody.   Accordingly, the argument proceeds, the applicant, not having been lawfully detained, is not lawfully kept in immigration detention. 

Course of proceedings

Having described the context, I should return briefly to the history of the proceedings.   The application was listed before me for final hearing on Tuesday 11 August 1998.   However, it did not by any means emerge clearly from the application initially filed that the argument which I have just described would be relied on; it emerged in outline in written submissions provided by the applicant’s counsel the evening before the matter was set down for hearing (the applicant’s lawyers are not to be criticised for the timing) and did not appear fully until it was exposed in the course of argument on the morning of 11 August.   The point was plainly one of some complexity and importance; I was not prepared to decide it without the benefit of full argument and counsel for the Minister was not then in a position to argue the matter fully.   Accordingly, the application was stood over to Tuesday 18 August, and counsel for the applicant foreshadowed the interlocutory application now before me.   

Msilanga and the cases which follow it establish that the tests to be applied in considering an application, such as this, for interlocutory relief are those by which an application for an interlocutory injunction is tested: that is, whether, first, there is a serious question to be tried in relation to the claims for final relief and secondly, if there is, where the balance of convenience lies.

Serious question to be tried

It is clear, in my view, and the Minister concedes, that there is a serious question to be tried in relation to the applicant’s first ground.   It is possible that there may be a factual question, whether at the time of the purported detention the applicant was in fact still in the custody of an authority of a State.   If he was, then the question of law arises, whether s 253(1) authorises detention of a deportee in State custody.  The question of the efficacy of s 254 does not strictly arise.  It may be, however, that it is not possible, or not desirable, to consider the construction of s 253(1) in isolation from s 254, simply because s 254 is an important part of the statutory context in which s 253 is to be considered.   If the applicant’s argument is that in the case of a deportee in custody the Minister must rely on s 254, the argument may well proceed that the absence of an express power to “detain” does not matter, because s 254(3) has the result that a person to whom a notice is given under s 254(2) may be kept in immigration detention without being separately “detained”: that, it may be argued, is so because s 254(3) provides, among other things, that s 254(2) applies to such a person “as if he or she had been detained under sub-section 253(1) at the custody transfer time”.   Such an argument may have considerable force, but would require careful consideration of the judgment of Wilcox J in Halmi.   

Balance of convenience

On the balance of convenience, the Minister tendered the departmental file, documents produced on subpoena by the NSW Department of Corrective Services and a report of the Independent Commission Against Corruption on an investigation into conduct of a prison officer, in some of which the applicant was said to have been implicated.    The evidence tendered by the applicant comprised only an affidavit of the applicant’s solicitor annexing a portion of the departmental material and correspondence in which, among other things, the applicant’s solicitor offered on his behalf to submit to conditions (relating, among other things, to where he would reside and when he would report to authorities) should he be released, together with two of the Migration Series Instructions.    The applicant relied, also, on certain of the material tendered by the Minister.

It is convenient to describe first the basis on which the Minister argued that the balance of convenience favoured keeping the applicant in custody pending a final decision on the application.  In essence, the Minister’s submission was that the material before the court indicated that if the applicant were released there was a real risk both that he would abscond and that he would commit further offences.  Certainly the applicant has a sorry record.  He was sentenced to numerous offences as a minor, for several of which he was subjected to “control orders”: that is, in effect, terms of imprisonment.   The offences included assault, resisting police, carrying a cutting weapon, possessing a prohibited weapon, malicious wounding and break, enter and steal.    Before the convictions on the basis of which the deportation order was made, the applicant had, after turning 18, been convicted of numerous other offences.  Several of them were offences involving the use of motor vehicles, such as negligent driving, driving without a licence, driving dangerously and driving under the influence of liquor.   He had been convicted also of stealing motor vehicles, break enter and steal, possession of house breaking implements, malicious damage and, perhaps significantly, failure to appear.   The offences grounding the deportation order were serious ones of their kind: the applicant drove a stolen vehicle through a red light and collided with a taxi with the result that both the taxi and the stolen car were written off: it was fortunate that no one in either vehicle was killed.  The remarks made by the magistrate on sentencing the applicant included the following:

You are lying.  I think you certainly did lie to this court.   …. Certainly you’re a menace.  Nothing short of that to the community and on this occasion you are perhaps lucky you didn’t kill yourself and your passengers and the driver and passengers in the taxi … You’ve shown no contrition, no remorse to this court.   Your other offences of violence show perhaps a very disturbed person and the other serious matters recorded against you in the children’s court certainly show the court that you’re not a fit and proper human being to spend too much time in the community unless you do something about it.

His conduct in prison, also, has by no means been ideal.   He has been subjected to disciplinary action for a number of offences, including assault, threatening language, abusive language and damaging property.    Some of the offences, no doubt, might be regarded in the scheme of things as relatively trivial, but the history shows, it was said, a continuing propensity to flout authority and to act violently.   And although, curiously, there is no mention of it in the material produced by the Department of Corrective Services (I was told that the file produced was incomplete), the report of the Independent Commission Against Corruption on its investigation of conduct of a prison officer made findings that, while in prison, the applicant was implicated in a serious assault on another prisoner.  

The Minister pointed also to the lack of evidence suggesting any serious prospect of employment, should the applicant be released: he has, apparently, some experience as a bricklayer, but that was as far as the evidence went.  

The authorities to which I have referred – see, for example, Towers at 16, 17 – make it clear that the matters relied upon by the Minister are important elements in the balance of convenience.  

The matters relied upon by the applicant may be summarised as follows: first, the material before the court does not reveal any disciplinary matter occurring after July 1997.   Secondly, the applicant has stated, in interviews with departmental officers, that he has become a Christian, sees the need not to offend again and does not wish to return to prison.   Thirdly – and the Minister concedes that this is so – the applicant’s adoptive family is supportive and will provide him with accommodation (he will have his own room) and encouragement to behave appropriately.   Fourthly, the applicant has, on the material before me, close ties (particularly to his adoptive family and to certain friends) in Australia and none in his country of origin; it must be regarded as unlikely, therefore, that he would willingly do anything which would jeopardise his prospects of having the deportation order set aside and being permitted to remain in this country.   A related matter is that the applicant is held in Goulburn gaol: it is, as a practical matter, difficult for his Sydney lawyers, who I was told are acting for him on a pro bono basis, to obtain proper instructions in order to conduct his application before the Administrative Appeals Tribunal.   Then, it was said that it was relevant that the applicant was detained in a prison rather than in an immigration detention centre; judges in earlier decisions had treated the relative amenity (or lack of it) of various forms of detention as relevant to the balance of convenience.   It was submitted (correctly) that the particular offences of which the applicant had been convicted were not among the serious category of offences which the Department ordinarily regards as warranting deportation (offences such as producing or trafficking in hard drugs, involvement in organised crime, serious sexual assaults, armed robbery, violence against the person, blackmail).   Finally, it was put to me that the applicant’s case, in relation to the legal basis of the applicant’s detention, was a strong one and that that ought to be taken into account in considering where the balance of convenience lies.  

The question is not an easy one.   Certainly interlocutory orders for release have been made in cases where the offence grounding a deportation order has been a very serious one: Msilanga and Whittaker are examples of such cases.   But the seriousness of the particular offence is one element only: the balance of convenience must, I think, be assessed having regard particularly to the evident objects of immigration detention in cases such as the present.   Those objects are to ensure, first, that a person ordered to be deported will be available for deportation and, secondly, that members of the community are not put at risk by the release of a person against whom a deportation order has been made and who may be regarded as likely to commit further offences, particularly offences involving violence or danger to members of the public.   The applicant need not, in order to justify his release on an interlocutory application, demonstrate “exceptional” circumstances: Msilanga at 182, 183; but he must show that the balance of convenience favours his release.    An important factor favouring release is that his adoptive family would support and encourage him.   Plainly, in assessing the balance of convenience, it is appropriate also to give weight to the interest which the applicant has, given his ties to this country and lack of ties elsewhere, in doing nothing to jeopardise his prospects of remaining here.   But it must be said that the support of his adoptive family did not prevent what was, over a period of a few years, a persistent course of anti-social and criminal conduct.  In the absence of full argument, and in the light of the evident object of the provisions, I do not think I should give particular weight to the strength (whatever it may be) of the applicant’s case as to the effect of s 253(1): the final result is not to be anticipated now.   In the end, on the material before me, I think there is a significant risk that, if it came to the point, the applicant would not make himself available for deportation and a substantial risk that he would commit further offences.   In those circumstances, subject to one matter, I think the balance of convenience lies against making an interlocutory order for the applicant’s release.  

The one matter to which I have referred is that the application, involving as it does a question of liberty, should be decided on a final basis as early as practicable and, in any case, in sufficient time to enable the applicant, should he be successful, to give his lawyers the instructions they need to prosecute the application to the Administrative Appeals Tribunal.    I have set the application down for final hearing on 29 September.   It is appropriate to make directions which will ensure that the matter can be disposed of promptly then and also to give the parties liberty to apply.   Accordingly, I make the following orders:

1.         The application for interlocutory relief is refused.

2.         The application is set down for final hearing at 10.15am on 29 September 1998 before me.

3.         The applicant is to file and serve, not later than 15 September 1998, any further evidence upon which he wishes to rely and an outline of his submissions on the final hearing.

4.         The respondent is to file and serve, not later than 22 September 1998, any further evidence upon which he wishes to rely and an outline of his submissions on the final hearing.

5.         The parties have liberty to apply on three days’ notice.

6.         The costs of the interlocutory hearing, and of the proceedings on 11 August, are reserved.

There is one final matter.  In addition to the circumstances mentioned earlier, the applicant relied on the fact that the deportation order was made towards the end of his term of imprisonment, rather than much earlier, as a matter going to the balance of convenience (compare Pylka at 7).   While I do not think that delay of that kind weighs heavily in favour of release where there is a substantial risk of absconding or a further offence, plainly it is desirable that decisions of this kind be made as early as practicable; and, additionally, s 254, if it is effective, enables a decision as to continuing detention to be made, notified and (if the deportee is so advised) challenged well before a term of imprisonment expires.   That is a significant reason why it is desirable that the interaction of ss 253 and 254 be fully considered, on a final basis, without delay.

Associate:

Dated:              19 August 1998