FEDERAL COURT OF AUSTRALIA

MIGRATION LAW – detention pending application to Administrative Appeals Tribunal for review of deportation order – whether improper exercise of power provided under s 253 of the Migration Act 1958 (Cth)

ADMINISTRATIVE LAW – whether decision maker breached rules of natural justice – whether decision maker exercised discretionary power in accordance with a policy without regards to the merits of the case and in so doing failed to take into account or accorded no weight to relevant considerations – whether there was evidence to justify preliminary conclusions on which decision maker based his decision

Migration Act 1958 (Cth), s 253

Administrative Decisions (Judicial Review) Act 1997 (Cth), ss 5(1), 5(2), 5(3)

Minister for Immigration and Ethnic Affairs v Teoh (1995)183 CLR 273, cited

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

Faleata Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Lehane J, 2 October 1998), cited

Halmi v Minister for Immigration 1998 79 FCR 261, cited

LOKENI HUI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1161 of 1998

O’CONNOR J

SYDNEY

8 DECEMBER 1998

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE:             SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

REASONS FOR JUDGMENT

This is an application to review a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) made on 18 October 1998 that the applicant not be transferred to the Immigration Detention Centre and to remain in Immigration detention in a New South Wales Department of Corrective Services gaol pending an appeal by the applicant to the Administrative Appeals Tribunal (“AAT”) against a deportation order served on him on 8 October 1998.  The decision of the Minister was made pursuant to s 253 of the Migration Act 1958 (Cth) (“the Act”).

The application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1997 (“the Review Act”)and O 54 of the Rules of the Federal Court of Australia.

The applicant relies on three grounds –

(a)        That a breach of the rules of natural justice occurred in the making of the decision because the decision maker failed to draw to the applicant’s attention the fact that he did not propose to treat the interests of the children of the applicant as a primary consideration (s 5(1)(a) of the Review Act.)

(b)        That the decision was an improper exercise of the power provided in s 253 of the Act in that the decision maker exercised a discretionary power in accordance with a policy without regards to the merits of this particular case (s 5(1)(e) and s 5(2)(f) of the Review Act).   In so doing, the decision maker failed to take into account, or accorded no weight to, relevant considerations (s 5(1)(e) and s 5(2)(b) of the Review Act), such as the applicant’s previous record in relation to attending Court whilst on bail, and the welfare of the applicant’s children.   

(c)        That there was no evidence to justify preliminary conclusions on which the decision maker based his decision namely, the serious concerns about the closeness of the applicant’s relationship with both his children and his brother.  (s 5(1)(h) and s 5(3) of the Review Act.)

The applicant seeks orders that:

1.         The decision taken on 18 October 1998 to detain the applicant at Silverwater MRRC be set aside.

2.         The said applicant be released from detention forthwith, on such conditions as the Court considers fit.

3.         Such other orders as the Court sees fit.

FACTUAL BACKGROUND

The applicant is a citizen of New Zealand.  He was born in Western Samoa and went to New Zealand when he was fifteen years old.  He arrived in Australia on 2 October 1988.  He subsequently departed Australia on 12 October 1988 arriving again on 9 June 1990.

In 1993 the applicant was first considered for deportation in relation to an offence of malicious wounding.  He was issued with a warning on 2 June 1993.  The applicant was subsequently considered for deportation in respect of another deportable offence.  On that occasion the Minister again decided not to order his deportation and another warning was issued on 5 November 1996.

On 26 March 1998 the applicant was convicted of further criminal offences and was sentenced to a term of imprisonment.  He appealed in relation to the severity of his sentence and this appeal  was upheld by the District Court and he received a lesser sentence.  On 28 September 1998 the Minister signed a deportation order in relation to the applicant pursuant to s 200 of the Act.  The applicant was served with the deportation order on 8 October 1998.

On 9 October 1998 the applicant lodged an appeal with the AAT against the deportation order.  On that day the applicant advised an officer of the Minister that he did not wish to be held in detention as he wanted to see his children.

His request for release, pending his appeal against the decision to deport at the AAT, was refused on 18 October 1998.  It is this decision which is the subject of this application for judicial review.

Section 253 of the Act, relevantly, is in the following terms:

“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) or (10) 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) or (10), 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.”

The substance of the delegate’s decision is as follows [Relevant Documents 223-224]:

“Mr Hui is eligible for release on 18 October 1998.

A report from Probation and Parole Service, John Morony Correctional Centre dated 14 July 1998 indicates that Mr Hui’s reports to date are not positive in fact they give every indication that he has problems which clearly manifest in agression [sic] and violence.  All factors indicate an inability to conform with ‘norms’.  (folios 96 to 105)

Question of Release

Mr Hui has two children aged six and four and one brother in Australia.  He has had no contact with his children since March 1998.  Prior to his sentence he would visit his children every fortnight at his ex-defacto’s home and intends to resume these fortnightly visits on his release.  Whilst he claimed to have telephoned his brother once or twice a week during his sentence his brother, when spoken to by the departmental case officer, advised that he was not aware of Mr Hui’s latest sentence or that he was currently in gaol and had not seen him for the past four to five months.

On 8 October 1998 Mr Hui advised the departmental case officer that he did not wish to be held in immigration detention as he wanted to see his children.

A Parole report dated 14 July 1998 advises that Mr Hui’s reports to date are not positive and in fact give every indication that he has problems which clearly manifest in aggression and violence.  All factors indicate an inability to conform with ‘norms’.  He has made little effort in obtaining work.

Mr Hui has an extensive criminal history.  His offences include assault, breach domestic violence order, common assault and malicious wounding.  He received pecuniary penalties, recognisance and several periods of imprisonment ranging from one month to nine months for these offences.

Mr Hui’s most recent offence of affray and assault occasioning actual bodily harm are serious offences for which he has served a period of twelve months imprisonment.

It should be noted that despite Mr Hui’s two warnings in respect of possible deportation he has chosen to ignore these warnings and has continued to reoffend.

Recommendation

A relevant consideration to the question of custody is whether Mr Hui can be relied upon to make himself available for deportation should his appeal to the Administrative Appeals Tribunal be unsuccessful.

Mr Hui has two children in Australia although the lack of communication with them, either personal or by telephone, throughout his current sentences raises concern’s [sic] as to the closeness of that relationship.  Furthermore, Mr Hui had indicated at his interview with the departmental case officer that he had telephoned his brother once or twice a week during his sentence, however, when his brother was interviewed he claimed that he was not aware that Mr Hui was currently in gaol and had not spoken to him for the past four to five months.

Of major significance is Mr Hui’s ignorance of two previous warnings.  It is assessed that if he is released into the community he may continue to reoffend and may not make himself available for deportation if his appeal was unsuccessful.

Migration Services Instruction (MSI) 168 7.1 states that very good reasons should exist warranting release of a deportee into the community.

It is submitted that there have been no special or mitigating circumstances presented for Mr Hui’s release from custody upon the grant of parole.

It is therefore recommended that Mr Hui not be released from criminal detention, but that he be detained pursuant to Section 253 of the Migration Act 1958 (the Act) and transferred into Immigration detention pending the outcome of his appeal to the Administrative Appeals Tribunal.”

The applicant’s first ground of review is that the decision maker failed to provide natural justice in the making of the decision.

The applicant relied, in making this submission, on the following principle - that the applicant, having a legitimate expectation that the best interests of his children will be a primary consideration in making the administrative decision in question, and the proposed decision being inconsistent with this expectation, he was entitled, as a person affected, to notice of this result and an adequate opportunity to present a case against taking that course.  (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-2).

I do not consider that, in the making of this decision to detain the best interests of the applicant’s children would be regarded as a primary consideration.  This is not the decision to deport (which is still the subject of appeal to the AAT on the merits) nor is it a case where the detention of the applicant would break up the family unit which was of crucial importance in Teoh’s case.  At the time of the last offence for which the applicant was jailed he was living apart from his family with access rights to his children.  However, he is, at present, unaware of their whereabouts.  They are not dependent on him for financial support although the applicant states he saw them regularly before his custodial sentence and expressed the intention of seeking them out once released.

The Act does not specify the matters a decision maker must take into account in exercising the power under s 253.   It is established principle that those matters are inferred or construed 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 per Mason J at 40.

As Lehane J said in Faleata Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 2 October 1998) at 12-13:

“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. …  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.”

His Honour went on to say that, in some cases, the hardship caused by the deportee’s detention to his or her family, particularly children might in some cases be principally relevant.

“ …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.” (at 17)

The respondent submitted that hardship to the applicant’s children had been considered fully in the decision to deport where it was taken into account that the applicant’s children are not in contact with him or dependent on him.   The decision under review is, apparently, unknown to them, its effect in relation to the children primarily being felt by the applicant who is prevented, being in detention, from seeking them out.   In my view, the principle in Teoh has no application to this case.  The other purposes enunciated by Lehane J in Tuiletufuga (above) are and have been treated, quite properly by the decision maker, as of primary importance.

In relation to the second ground of review, the two particular matters which were allegedly given no weight were the applicant’s previous record in relation to attending Court whilst on bail and the welfare of the applicant’s children.  Neither of these matters in my view, if not considered, would have materially affected the decision.

As Mason J said in Peko-Wallsend  at 40:

“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:  …”

Applying this principle here, the record of attending Court (which, incidentally as the respondent pointed out [Relevant Documents 142], indicated a breach of bail conditions), was of less importance compared to the views of the parole officers in relation to the likelihood of absconding particularly if the decision of the AAT was unfavourable.  The welfare of the children was, for the reasons I have given above, unlikely to be affected by the proposed detention until the AAT hearing. The decision maker was entitled to and did give great weight to the current opinion of those who had had recent dealings with the applicant about his violence and “inability to conform with norms”.  Faced with these matters the prior attendance record of this applicant at past Court hearings even though not considered, could not have materially affected the consideration of the overall protection of the Australian community amounting to concerns as to reoffending and the likelihood of not being available for deportation which was the main reason to decide to detain.

Neither in my view did the decision maker err by using the discretionary power in s 253 in a way not sanctioned by the published administrative policy guidelines merely by using the phrase “there have been no special or mitigating circumstances presented for the applicant’s release” as opposed to the phrase “very good reasons” which appear in the guidelines.   These phrases are merely alternative ways of expressing the need for there to be compelling reasons to justify release pending appeal of a decision to deport.   There is no material difference between them.

The third ground relied on is that there was no evidence to support the “serious concerns” expressed about the closeness of the relationship with his children and his brother. This ground also fails.  There could have been an alternative conclusion reached by the decision maker but the one made was open on the evidence.   The applicant really seeks merits review by challenging the conclusion reached on this issue.  He will receive this consideration in his application to the AAT.  The decision maker preferred to rely on absence of contact with his brother while in jail (the applicant’s assertion that he rang his brother regularly was denied by the brother who said he was not aware his brother was in jail), and the fact that his children’s whereabouts were unknown to him and he had had no contact with them for a considerable time.  This is not a case of “Wednesbury unreasonableness” which would taint the decision to detain the applicant.

Counsel for the applicant made a general submission in presenting his case as to the undesirability of detaining Mr Hui.   He relied on a statement from Halmi v Minister for Immigration (1998) 79 FCR 261 at 268 where Wilcox J said:

“No legal principle is more precious to a free society than that which says a person may be deprived of liberty only pursuant to express and clear statutory authority.”

I agree with his Honour’s views.  However in that case this remark was directed at the validity of the decision pursuant to the section being considered.  No such challenge is made here.

Although not raised by the applicant, the Court expressed, in the course of the hearing, concern that the applicant was still in custody on 4 December 1998 having lodged an appeal to the AAT on 9 October 1998 and no date for the hearing of the matter had, at that stage, been set.  Although the Court considers that the grounds for reviewing the decision to detain are not made out, it would seem that the process of merits review should, in the circumstances, be given a high priority.  As a result of this decision Mr Hui will remain in detention.  This should be as brief as possible.  A person, even when detained pursuant to authority should expect that administrative arrangements, in such circumstances, should be sensitive to the loss of liberty involved.   Whether or not his merits review is successful, he will have spent a considerable period in detention.

The application is dismissed with costs.

Associate:

Dated:              8 December 1998