FEDERAL COURT OF AUSTRALIA

MIGRATION LAW – detention pending application to Administrative Appeals Tribunal for review of deportation order – lawfulness of detention of deportee following term of custody by State authority – interaction of ss 253 and 254 of the Migration Act 1958 (Cth) – whether in the case of a deportee in the custody of an authority of the Commonwealth, State or Territory, s 254 applies to the exclusion of s 253 as the sole power to detain – whether serving a notice under s 254(2) is effective to transfer deportee to immigration detention or detention under s 253(8) at the custody transfer time – meaning of “detain” for the purposes of s 253(1).

ADMINISTRATIVE LAW – application to set aside both decision to detain applicant and decision not to order applicant’s release – whether failure to take relevant considerations into account – whether exercise of power so unreasonable that no reasonable person could have so exercised it.

Migration Act 1958 (Cth), ss 5(1), 189(1), 195, 196, 198(1), 200, 201, 209, 253, 254

Judiciary Act 1903 (Cth), s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 11(1)(c), 13, 16

McCafferty v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 275, considered

Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351, cited

Halmi v Minister for Immigration and Multicultural Affairs, (Wilcox J, 29 January 1998, unreported), not followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied

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

FALEATA TUILETUFUGA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

ng 719 OF 1998

lehane j

sydney

2 october 1998

THE COURT ORDERS THAT:

1.         The applicant is granted leave to amend his further amended application by substituting the date 25 May 1998 for the date 1 June 1998 and by adding a claim for an extension of the time allowed for lodging his application.

2.         The time allowed for lodging the application is extended to 17 July 1998.

3.         The application is dismissed.

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

REASONS FOR JUDGMENT

The Application

By his further amended application filed on 28 September 1998, the applicant seeks, under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth), orders quashing two decisions made by the respondent or his delegate.  The earlier of the two decisions was one made on 25 May 1998 to detain the applicant, purportedly in reliance on s 253 of the Migration Act 1958 (Cth); the latter was a decision made on 16 July 1998 not to release the applicant from detention (Migration Act, s 253(9)).  The applicant seeks a consequential order that he be released from detention forthwith.  

According to the further amended application, the date of the earlier decision was 1 June 1998, but 1 June was the day on which an officer of the Department purported to detain the applicant in accordance with the decision made on 25 May.   Counsel for the respondent indicated that the respondent was content to proceed on the footing that the correct date was substituted for 1 June.  Additionally, it is probable that relief under the ADJR Act is available only if the court first grants, under s 11(1)(c) further time for lodging the application.  Again, counsel for the respondent indicated that the respondent consented to the granting of further time and I indicated that the time would be extended to the date on which the application was lodged.   It will be necessary to make formal orders to give effect to those matters, but it is not necessary, I think, in the circumstances to require the filing of a yet further amended application.

The further amended application invokes also the court’s jurisdiction under Pt 8 of the Migration Act.   For reasons which I gave in an interlocutory judgment delivered on 19 August 1998, the court has no jurisdiction to review the decisions under Pt 8 but has jurisdiction under the ADJR Act and under s 39B of the Judiciary Act.

Grounds on which Review is Sought

The applicant claims that the decision to detain him should be quashed as unlawful since, as a person then in the custody of an authority of a State, he could not be “detained” under s 253.  Secondly, and alternatively, he claims that each decision was an improper exercise of power in that the decision maker failed to take relevant considerations into account; thirdly, he says, “the decision” (presumably each decision) was an exercise of power that was so unreasonable that no reasonable person could have so exercised it.

I shall consider each of those grounds separately.   First, however, it is necessary to state the facts.  I can do so substantially by repeating the outline given in the interlocutory judgment to which I have referred.

Facts; statutory provisions

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, 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.  The aggregate period of imprisonment was therefore two years.  For the other two offences he was sentenced to shorter prison terms concurrent with his term of imprisonment for dangerous driving.   The aggregate period of imprisonment was therefore two years.

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 the applicant was still in the custody of a State authority, serving his sentence.  On that day a delegate of the respondent made the first of the impugned decisions, to detain the applicant under s 253.   That decision was put into effect on 1 June 1998.  On that day, apparently at about 9am, Mr Williamson, an officer of the Department, attended at the gaol, where the applicant was still held, purported to detain him under s 253 and gave him a notice which, among other things, confirmed that that was what he had done.  It is clear that the applicant’s sentence expired on about 1 June 1998.   The material before me, however, does not enable me to find the precise date or time of expiry of the sentence: when, under State law, the applicant was entitled to be released from custody.   There are internal departmental notes and notices and correspondence from the Department to the State authorities suggesting, or at least proceeding on the assumption, that the sentence expired on 1 June; but there is nothing more than that.  What is, however, quite clear is that, at the time when Mr Williamson made his announcement and delivered the notice, the applicant was held in custody in a State prison by a State authority.  There is no evidence that the applicant had in fact been, in some way, discharged from that custody, even immediately before his meeting with Mr Williamson.

From 1 June 1998, the applicant has remained in the custody of the State authority, but on the footing that he has, since then, been detained in that custody no longer by force of any State law but under s 253 of the Migration Act.   

Lawfulness of Detention: Interaction of ss 253 and 254

The essence of the applicant’s argument on this ground is that s 254 deals exclusively with the detention, following a term of custody by a Commonwealth, State or Territory authority, of a deportee.   It is necessary to state at the outset that s 254 does not deal only with deportees.  It deals also (though not quite in the same way: see below) with “removees”.   A “removee” is (s 5(1)) an unlawful non-citizen removed, or to be removed, under Div 8 of Pt 2 of the Migration Act.    An officer who knows, or reasonably suspects, that a person in the migration zone is an unlawful non-citizen must detain that person: s 189(1).   Such a person then has an opportunity to apply, within a very limited period, for a visa (s 195).   In general terms, Div 8 of Pt 2 requires the removal of an unlawful non-citizen who is detained under s 189 and either fails to make an application for a visa within the time allowed or makes one which fails.   An unlawful non-citizen who is detained under s 189 must be kept in immigration detention until he or she is removed, deported or granted a visa (s 196(1)).    To make the intention of the parliament absolutely clear, s 196(3) then provides:

To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.

Removal (from Australia) must follow as soon as reasonably practicable (s 198(1)).  There is thus a substantial difference between the provisions applicable to the detention of unlawful non-citizens, on the one hand, and deportees (who may not be unlawful non-citizens) on the other.   Unlawful non-citizens must be detained and are not, except in the particular circumstances specified, to be released; deportees may be detained (s 253(1)) and, if detained, may be released either unconditionally or subject to specified conditions (s 253(9)).

Section 254 is not, of course, directly applicable in this case, in the sense that the Department chose rather to proceed under s 253(1).  The respondent faintly argued that the notice given by Mr Williamson to the applicant on 1 June 1998 might be treated as a notice under s 254(2), but that is not possible: the notice states that what Mr Williamson has done is “detain” the applicant under s 253; and it does not state the particulars required by s 254(2)(a).   But it is necessary to consider the operation of s 254, because the applicant’s argument as to the construction of s 253 depends upon the interaction between the two provisions.  Section 254 applies where a removee or deportee “is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under [the Migration Act]”.   The meaning of the phrase “in the custody” was considered by Davies J in McCafferty v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 275.   His Honour said, at 280:

Section 254 … 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.  

See also Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 at 352, 353 per Burchett J.   If one reads the phrase in that way (as I respectfully agree that one should) the applicant remained in the custody of the State authority when the decision of 25 May was made.   Equally, I do not think I can come, on the somewhat slim evidence, to any conclusion as to the state of affairs when Mr Williamson visited the applicant on 1 June other than that the applicant remained in the custody of the State authority.   His release from that custody may have been imminent, but it had not happened: he was still kept within the prison.

Section 254 then permits the Secretary (“may” in subs (2) is obviously facultative) to give the removee or deportee in custody a notice setting out certain required particulars 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.

Subsection (3) is important.   I have set it out already, but should do so again:

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

One aspect of that subsection is that, unlike sub ss (1) and (2), it applies only to deportees, not removees.   In relation to removees, apparently, the notice serves only as a warning or as a statement of what is to occur: in the case of a removee, who is not a deportee, further action will be taken at the custody transfer time to ensure that what is required by ss 189 and 196 actually happens.  Presumably, in relation to removees, sub ss (1) and (2) of s 254 are to be read as postponing to the custody transfer time (if a notice under s 254 is given) the time for performance of the obligation arising under s 189.  Beyond noticing, however, the difference between the ways in which s 254 treats deportees and removees, however, it is unnecessary to consider in greater detail the way in which the Migration Act deals with the detention of removees.  

The operation of s 254(3), in relation to deportees, was considered by Wilcox J in Halmi v Minister for Immigration and Multicultural Affairs (29 January 1998, unreported).   His Honour held that a notice purportedly given to a deportee under s 254 was ineffective, because s 254(3) explicitly excludes the power of detention under s 253(1) and there is no other applicable statutory power to detain a deportee.   The essence of his Honour’s reasoning appears in the following passage, at 9:   

In considering the course taken by the Department, an immediate problem is to identify the source of its power to detain Mr Halmi.   Mr Halmi is a person who falls within the words of s 253(1) of the Act.  If that subsection had been left to apply to the case, it would have empowered any officer of the Department to detain Mr Halmi in immigration detention or in detention as a deportee: see s 253(2). …. However, s 253(1) must be read with s 254.   That section enacts special rules in relation to persons who are already in custody.  In such a case, a notice may be given under s 254(2).   As I have recounted, Mr Halmi was given such a notice.  It follows the situation is one to which s 254(3) applies; Mr Halmi was a deportee who had been given notice under subs (2) of the section.   The consequence, according to s 254(3), is that the Act other than sub ss (1) and (3) of s 253 apply in relation to him as if he had been detained under s 253(1) at the time of transfer.

Section 254(3)’s exclusion of s 253(3) is understandable.  Section 253(3) is a notice provision and s 254(2) provides for a special form of notice in custody transfer cases.   But the exclusion of s 253(1) is startling.   That subsection appears to be the only source of power to detain a deportee.  Although s 254 deals specifically with deportees who are already in custody, it confers no power to detain them in immigration detention after they are released from the custody of another authority.    Subsection (1) only specifies the people to whom the section is to apply.   Subsection (2) only authorises the giving of a notice.  

No doubt that reasoning explains the course taken by the Department in this case.   Presumably it was thought that to give the applicant a notice under s 254 would not have been effective to detain and keep him in immigration detention and, once a notice had been given to him under s 254, s 253(1) might have been excluded from applying to him.   Thus, the only practical course, if the Department were to give effect to a policy in favour of allowing completion of a State custodial sentence before transfer to immigration detention, was to detain the applicant under s 253 on his release or at about the time when he was entitled to be released.  

Section 254 has no direct effect on the outcome of this case, but the applicant’s argument requires some consideration of the way in which s 254 operates.   I have had the benefit of argument and an opportunity to consider the matter.   Clearly the effectiveness, or otherwise, of s 254 is a matter of concern to the respondent.   Although, so far as I am aware, the efficacy of s 254 has not directly arisen for decision in any case other than Halmi, no doubt was expressed concerning its effectiveness in either of the two reported cases in which the operation of the section has been considered, McCafferty and Gray.  

I am, with respect, unable to accept that a deportee, on whom a notice is served under s 254(2), is not effectively transferred to immigration detention, or detention as a deportee under s 253(8), at the custody transfer time.   It was, perhaps, unnecessary for s 254(3) to exclude s 253(1) from operating in relation to a deportee who has been given notice under s 254(2), but perhaps it is not surprising that the exclusion was thought appropriate.   Its application to such a deportee is not necessary because the Act, particularly s 253(2), does apply in relation to the deportee “as if he or she had been detained under subsection 253(1) at the custody transfer time”.   Thus if a notice under s 254(2) is given to a deportee in State custody, that person, as soon as he or she becomes entitled to release from that custody, is treated as if he or she had been detained under s 253(1) at that time.   Accordingly, the deportee may be kept in detention from that time under s 253(2) and the rest of the subsections of s 253 (other than subs (3) which, of course, is otiose in such a case) apply accordingly.   A separate power to detain is unnecessary: s 254(3), read in conjunction with s 253(2), provides authority to keep the deportee in detention.

The question whether, in the case of a deportee in the custody of an authority of the Commonwealth, a State or a Territory, s 254 applies to the exclusion of s 253 has been considered but not, so far as I know, decided.   In McCafferty Davies J said at 281:

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. … According to [counsel for the Minister], 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. …

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).   [Counsel’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 applicant argues that the scheme of ss 253 and 254, taken together, is substantially as Davies J there describes it: s 253 is a general power to detain and keep in detention; s 254 is a special provision directed to the case where a deportee is already in (other) custody.   In such a case there can be no question of “detaining” someone who is already detained; and, more broadly, the general provision in s 253 should be construed as giving way to s 254 in the particular cases with which that provision deals; and, more broadly still, any ambiguities in a provision for detention should be resolved in a way which limits, rather than expands, its operation.

My initial inclination was to accept those submissions.   On reflection, however, I have concluded that they should be rejected.   In the first place, there is a definition of “detain” in s 5(1) of the Migration Act.   It is as follows:

“detain” means:

(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Given that meaning, it is by no means a strange use of language to empower an officer to “detain” someone who is in, for example, State custody.   Departmental policy is that it will not remove or deport a person while that person is serving a prison sentence.   A copy of Migration Series Instruction No. 168 was in evidence: its title is “Non-Citizens Held in Prison Liable for Enforced Departure”.   The policy is stated in section two of the document, as follows:

“2.       DIMA’S POLICY POSITION

2.1       DIMA will not remove or deport a person while that person is serving a prison sentence.  Its role is to:

·        identify non-citizens liable to removal or deportation on completion of their sentence and bring this to the attention of the individual and the prison authorities;

·        ensure non-citizens in prison have lawful status during their prison sentence;

·        ensure that in doing this the non-citizen is not prevented from participating in rehabilitative schemes such as work or study release.

2.2       At the end of the custodial sentence DIMA will detain non-citizens liable to removal or deportation.”

Davies J, in McCafferty at 276, 277, describes the policy as one which has been applied by successive Ministers for many years.   It is reflected in s 254.   It is, however, no more than a policy; and to give s 253 the operation for which the applicant contends might very well have the consequence that, in practical terms, the Minister could not deport a person, otherwise liable to deportation, while that person was serving a prison sentence.   That would be so because an effective power to deport requires, as ancillary to it, a power to detain; and, on the applicant’s construction, there is no power to detain, except under s 254 at the custody transfer time.   Clearly, s 254 does not limit the duty, imposed by s 189, to detain a removee.  Sections 4.1 and 4.2 of the Instruction describe the way in which the policy is reconciled with the duty:

4.1 While unlawful non-citizens serving prison sentences are detained in State, Territory or Federal custody, there is a legal obligation that they also be detained in immigration detention, or be granted a visa to give them lawful status.   As a result, unlawful non-citizens are routinely granted a Bridging E Visa for the duration of their custodial sentence.    Non-citizens whose visas cease or are cancelled are also granted Bridging E Visas ….

4.2  At the completion of their sentence a Bridging E Visa will cease … and they will become unlawful non-citizens and subject to detention and removal under ss 189 and 196.  

A presumption in favour of liberty is not, in my view, offended by a construction which permits the deportation, and prior detention, of a prisoner against whom a deportation order has been made, particularly in the context of a statute which confers a power (indeed imposes a duty) of detention and removal of an imprisoned unlawful non-citizen.   (The issue of a visa, in accordance with the policy I have quoted, ensures that the non-citizen ceases to be “unlawful”).   A fortiori, the presumption in favour of liberty, where one means is available of detaining a deportee on the expiry of his or her sentence, is not offended by a provision which permits precisely the same result to be brought about by other means.  

Section 254(3) remains, perhaps, rather a mystery.   It may have been thought convenient to provide for an automatic transfer from the previous custody to immigration detention in the case of a deportee, though why this should not equally be so in the case of a removee is by no means obvious.   Where notice has been given to a removee under s 254(2), it remains necessary that, at the custody transfer time, the removee be detained under s 189.   In the case of a deportee that is not so, though in many cases the difference may be more apparent than real: unless arrangements have been made, as contemplated by s 253(8) (and by subpara (b)(ii) of the definition of “immigration detention” in s 5(1)), for continuing detention by the Commonwealth, State or Territory authority having custody of the deportee, it will be necessary physically to take the deportee into the immigration detention in which s 253(2) authorises him or her to be kept.    But I do not think it is possible to achieve a construction which eliminates all apparent anomalies, and for the reasons I have given, in my view, a construction is to be preferred which does not limit s 253 by reference to s 254.       

Other Grounds: Relevant Considerations; Unreasonableness

In the further amended application the applicant gives the following particulars of considerations said to have been relevant and not to have been taken into account by the decision maker (presumably, though it is not said, both decision makers):

3.1       The pecuniary liability the applicant will incur to the Commonwealth for his continued detention pending the hearing of his application before the Administrative Appeals Tribunal;

3.2       The difficulties that the applicant will encounter by reason of him being incarcerated in respect of him preparing for his appeal to the Administrative Appeals Tribunal;

3.3       The applicant’s history as regards compliance with bail conditions and his attendance at Court in other matters for sentencing;

3.4       The applicant’s desire to remain in Australia;

3.5       The applicant’s family connections in Australia and the lack of family connections in Western Samoa;

3.6       The applicant stated his willingness through his representatives to abide by reporting arrangements;

3.7       The applicant’s undertaking to pursue his appeal at the Administrative Appeals Tribunal.

The last two of those particulars could not apply to the decision of 25 May: the statement of willingness and the undertaking both came later.  

The Migration Act does not specify the matters to be taken into account by the Minister in exercising the power to detain under s 253 (or under s 254) or the power, under s 253(9), to order the release of a deportee from detention.  Those matters are, therefore, to be ascertained (as a matter of construction) by considering the subject-matter of the power and the purposes for which it has been conferred: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, 40 per Mason J.   An obvious principal purpose of the power is to ensure that a deportee is available for deportation, and matters going to the likelihood (or otherwise) that the deportee will do so are of particular importance.  Some of the matters relied on by the applicant may be relevant to that question.   Another relevant consideration is whether the applicant is likely (perhaps through renewed criminal activity) to be a danger to the Australian community: Towers v Minister for Immigration and Multicultural Affairs (Carr J, 16 February 1998, unreported) at 11, 12.   That follows from a principal purpose of criminal deportation, and thus of the ancillary power to detain, the protection of the Australian community.  

The applicant has not sought, under s 13 of the ADJR Act, a statement of the reasons for either of the challenged decisions but departmental records, which are in evidence, indicate clearly enough particular matters which the decision makers took into account.   Before considering those matters, however, it is desirable to provide some context by describing some of the circumstances as they appear from the departmental file which was tendered before me.   I have, to a considerable extent, described the circumstances in the interlocutory judgment; once again I shall, as to some matters, largely repeat what I said there.

There is no doubt that the applicant has a sorry record.   He was convicted of 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 I think the history may fairly be said to show a propensity to flout authority and to act violently and in ways likely to endanger others.

On the other hand, the material 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, the applicant’s adoptive family is supportive and have said that they will provide him with accommodation (on the basis that he would have his own room) and encouragement to behave appropriately.   The applicant has, on the evidence, close ties (particularly to his adoptive family and to certain friends) in Australia and none in his country of origin.  It can be accepted that the applicant wishes to remain in Australia: he has instituted an appeal to the Administrative Appeals Tribunal, which has been set down for hearing and has instructed lawyers.   The applicant’s solicitor has given evidence that the incarceration of the applicant at Goulburn (where, at least until recently, he has been imprisoned) poses almost insurmountable difficulties in the preparation of his appeal for hearing: the solicitor says that he does not himself have the resources to obtain instructions from a client in Goulburn and, because the applicant is indigent, it is not possible to instruct agents in Goulburn to deal with a matter requiring, as the solicitor says the appeal does, the services of a specialist in the field.   Finally, the material indicates that the applicant’s employment prospects are by no means great: he has, apparently, some experience as a brick layer, but little by way of employment history.  

The Minister’s delegate signified his decision by approving, on 25 May 1998, a recommendation of departmental officers contained in a minute, the substance of which I shall set out in full:

Background

Mr Tuiletufuga is a citizen of New Zealand.   He arrived in Australia on 28 May 1989.   He was 13 years of age on arrival in Australia.

On 31 May 1996 at Central Local Court Mr Tuiletufuga was convicted of Steal Motor vehicle.  He was sentenced to fifteen months imprisonment with an additional term of nine months.

Mr Tuiletufuga was considered for deportation in relation to this offence and on 14 April 1998 the delegate signed a deportation order pursuant to Section 200 of the Migration Act 1958 against Mr Tuiletufuga.

Mr Tuiletufuga has not yet lodged an appeal in relation to the decision to deport with the Administrative Appeals Tribunal (A.A.T), however it is anticipated that he will lodge this application.

Mr Tuiletufuga is due to be released on 26 May 1998.   He will not be under the supervision of the Probation and Parole Service on his release. 

Question of Release

Mr Tuiletufuga has strong family ties to the community.  His adoptive parents, six sisters and two brothers are in Australia.  On release he plans to live with his family at 6 Thomas Street Lewisham.  He has no offers or prospects for employment on his release.

There is no travel document available for Mr Tuiletufuga.  It is not envisaged that there would be any problems in obtaining a travel document from the New Zealand authorities if this is required.

Recommendation

A relevant consideration to the question of custody is whether Mr Tuiletufuga can be relied upon to make himself available for deportation should the A.A.T. maintain the decision to deport.

Mr Tuiletufuga has strong family ties to the community and intends to live with his family on release.

Mr Tuiletufuga has a lengthy criminal history which dates back to 1993.   He has a number of convictions as a juvenile including break and enter with intent, malicious wounding, resist arrest, robbery whilst armed, robbery in company, possess prohibited weapon and carry cutting weapon.   Since turning 18 Mr Tuiletufuga has been convicted of offences including steal motor vehicle, unlicensed driver, malicious damage, possess house breaking implements, stealing and assault.

Mr Tuiletufuga had thirty one infringements recorded against him during his term of imprisonment.   These include infringements for assault, threatening language, not comply routine, damage property, abusive language, threatening behaviour, fighting and drugs in urine.

Migration Series Instruction 168.7.1 states that very good reasons should exist warranting release of a deportee into the community.  

It is submitted that there are no special or mitigating circumstances presented for Mr Tuiletufuga’s release from criminal custody.

On balance given Mr Tuiletufuga’s criminal history and his behaviour whilst in prison it is assessed that Mr Tuiletufuga will not make himself available for deportation if the A.A.T. affirms the Department’s decision.

It is therefore submitted that Mr Tuiletufuga should not be released from criminal detention, but that he should be detained pursuant to Section 253 of the Migration Act 1958 pending the outcome of his appeal to the A.A.T. or removal from Australia.

If it is decided to detain Mr Tuiletufuga the question of transferring him to the Immigration Detention Centre will be contained in a separate submission.

If it is decided that Mr Tuiletufuga should be released it is submitted that his release should be subject to conditions which may include reporting to this office, he lives at 6 Thomas St, Lewisham and notify this office of any change of address at least 48 hours in advance, that he makes an application to the New Zealand authorities for a travel document and that he makes himself available for deportation should his appeal to the AAT be unsuccessful.

Heidi Speed

Criminal Deportation

15 May 1998

Mr Tuiletufuga’s risk of recidivism is assessed in his deportation submission as moderate to high.    When making the decision to order deportation Mr Sullivan commented on 14 April 1998 at folio 114;

“I concur with the submission, nothing in Mr Tuiletufuga’s history or behaviour in prison suggests anything but a return to crime on release.   This latest crime could have been most serious but for the alertfulness of a taxi driver.  Deportation will impose hardship on him and what is obviously a close family.   However there is no good reason that he will not cause further harm to the Australian community.”

Mr Tuiletufuga’s deportation order was only signed on 14 April 1998 and he has now lodged his application for review with the AAT on 12 May 1998.   I have today spoken to the case officer in litigation, Ross Gregg, and he has told me, after he conferred with the NSW registry of the AAT, that at the very best a hearing could be scheduled for August or September this year.

Philip Dale

Executive Officer

Criminal Deportation

25 May 1998

To his approval of the recommendation thus made, the delegate added the following note:

I am of the view that the release of Mr T.to the community would be a risk.  He has demonstrated that he cannot conform to rules within the A/a community or within the prison system.   I do not consider a release to the community to be in the community’s best interests.

The recommendation and the delegate’s added note indicate, clearly enough, the principal matters taken into account by the delegate in deciding to detain the applicant.  The decision maker, as is apparent from his own note, took particular account of what he regarded as the degree of risk to the community posed by the applicant’s release.  It may be inferred that he took into account also the view expressed by the officer who made the recommendation that, based on the matters set out in the minute, there was a real prospect that the applicant would abscond, at least in the event of an unfavourable decision by the Administrative Appeals Tribunal.   Thus, the principally relevant matters, which I have identified, were considered.  There may well, in particular cases, be other matters which, in exercising the powers under ss 253 and 254, a decision maker is obliged to consider.    In some cases (on the evidence, not in this case) they may include matters going to hardship caused by a deportee’s detention to his or her family, particularly children: Halmi at 10, 11.   Given the purposes of the power, however, inconvenience or hardship resulting to the deportee personally is unlikely to be a matter required to be considered except, perhaps, where the degree of hardship is very great and  the assessed risk of absconding, or of risk to the community, relatively low.  

What I am concerned about in this part of the case is, of course, not what the decision maker was entitled to take into account but what he was bound to take into account: Peko-Wallsend at 39 per Mason J.   Additionally it is to be remembered that:

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: …   

(Peko-Wallsend at 40)

The particular matters which, in the applicant’s submission, the decision-maker should have taken into account, but did not, must be assessed in the light of those principles.   The first of those matters is the liability of the applicant to meet the costs of his detention.   Such a liability is imposed by s 209 of the Migration Act on a non-citizen who is detained.   Given the purposes of detention, and that the liability under s 209 is one which is imposed on all detained non-citizens, I cannot see that this was a matter which the delegate was obliged to take into account: if the purpose of detention is to guard against the two risks to which I have referred, it is not easy to see why in any case, if either risk is considered to be established, the existence of the liability is a matter which the decision maker must take into account or, indeed, except perhaps in a borderline case, why it is even a matter which the decision maker might properly take into account.   Similar considerations apply, I think, to the second of the matters identified, difficulties encountered with the preparation of the applicant’s appeal.   As to that matter, it may be added that, at the time the decision of 25 May was made, there was no reason, in my view, why the delegate should have anticipated, and taken into account, the particular difficulties identified only in affidavit evidence filed after the proceeding was commenced.   The third matter, the history as regards compliance with bail conditions and attendance at court, was not pressed: among the offences committed by the applicant was “failure to appear”.   I do not think that the fourth matter, the applicant’s desire to remain in Australia, was a matter required specifically to be taken into account: it may fairly be commented that such a desire may be taken to be a common characteristic of persons who seek to resist deportation.   It might be taken into account, perhaps, as a matter going to the question of whether a deportee is likely to abscond (though on that question it might be a rather double-edged consideration) and also, perhaps, as to a likelihood that, pending an appeal, a deportee will reoffend.   But, if so, it is merely one factual circumstance which may be taken into account in assessing the risk.   Finally, the applicant’s family connections in Australia are specifically referred to in the departmental minute and must, I think, be taken to have been considered.   The lack of family connections in Western Samoa might, no doubt, have been considered; but I am unable to hold, having regard to the purposes of the power, that it was required to be taken into account.

Thus, in relation to the earlier decision, the applicant’s claim, based on failure to take relevant matters into account, fails.   His claim that the exercise of the power was so unreasonable that no reasonable person could have so exercised it fails equally. 

The particulars given on this aspect of the claim are as follows:

4.1       The decisionmaker failed to properly consider or to give sufficient weight to the importance of the applicant’s family ties in Australia and the support available to him in Australia from his family;

4.2       The decisionmaker failed to properly consider the applicant’s age and the objective seriousness of the offences for which he has been charged.

4.3       The decisionmaker gave undue weight to the applicant’s conduct in prison by characterising it as disclosing a high risk of recidivism should he be released into the community.

The material in evidence does not support the proposition that the decision maker failed to give proper consideration to the importance of the applicant’s family ties and the support available through his family.   The Wednesbury test is not satisfied simply because (and I express no view about this) a court may think that insufficient weight was given to a particular matter.   Secondly, I do not think that a failure specifically to consider the applicant’s age could possibly in this case lead to a conclusion that the decision was so unreasonable that no reasonable person could have made it.   Plainly one of the matters which was considered was the character and seriousness of the applicant’s criminal conduct, particularly the offences for which he was ordered to be deported.   The third matter listed is, again, a consideration of weight and the actual characterisation of the risk as moderate to high was supported by material in the departmental file.   It is important to emphasise, once more, that the court is not to consider, on judicial review, the merits of a decision, merely its lawfulness in accordance with well established criteria.   Applying those criteria, the applicant’s attack on the decision of 25 May 1998 fails.  

The decision of 16 July 1998 can, I think, be dealt with briefly.   At the time when that decision was made the Department had received submissions from the applicant’s solicitors.  Those submissions, relating particularly to suggested conditions of release, were taken into account and weighed against other relevant considerations: this is demonstrated by the terms of the recommendation approved by the delegate.  The solicitors’ submissions did not, however, refer to difficulties involved in obtaining instructions for the appeal (those difficulties were referred to in evidence and argument before me).   That being so, I do not think I can hold that they should have been taken into account.  Otherwise, nothing arises in relation to that decision which did not equally arise in relation to the earlier decision.   It follows that the attack on the later decision fails also.  

Conclusion

For those reasons the application must be dismissed.    Most of the argument concerned the question of the interaction of ss 253 and 254.  It was because of the need to argue that matter fully that the matter had to be adjourned on the original hearing date, leaving the applicant to apply for interlocutory relief.   The legal question involved was an important and not entirely straightforward one relating to the operation of the Migration Act.   In the circumstances, although the applicant failed both on an interlocutory basis and on the final hearing and some difficulty was caused by a late identification of the precise legal point involved, my tentative view is that I should make no order as to costs.   I will, however, hear any arguments counsel may wish to put on the subject of costs before coming to a final view.

It is perhaps worth adding this.   The applicant’s appeal to the Administrative Appeals Tribunal is due to be heard within a little less than three weeks.   It is evident from the material before me that the question of continuing detention, and of the place of detention, is kept under continual review.    Plainly it is desirable that the applicant have the opportunity to give his lawyers the instructions they need for the effective conduct of the appeal.  

Associate:

Dated:              2 October 1998