FEDERAL COURT OF AUSTRALIA

Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1652

MIGRATION – detention of an unlawful non-citizen pending deportation – whether interlocutory orders should be granted for release from detention – delay in executing deportation order – whether arguable case that no real likelihood or prospect of removal in the reasonably foreseeable future

Migration Act 1958 (Cth) ss 200, 253

Federal Court of Australia Act 1976 (Cth) s 23

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249 cited

KASCHIMIER CISINSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W317 of 2003

LEE J

20 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The applicant is to be released from detention until further order and subject to compliance with each of the conditions set out below:

1.1                   Within 24 hours of Mr Cisinski’s release from detention, Mr Cisinski give notice in writing to his solicitors, Christie & Strbac, Level 2 Law, 524 Hay Street Perth, Western Australia 6000 and to Mr Peter Corbould at the Australian Government Solicitor, 2 The Esplanade, Perth, Western Australia of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details.

1.2                   In the event that Mr Cisinski receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural Affairs (DIMIA) as to arrangements made for his deportation from Australia pursuant to s 200 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his deportation and, in the event of a specific arrangements being made for his deportation from Australia at a specified time, that he submit to the custody of the respondent for that purpose.

1.3                   In the event that Mr Cisinski receives any request in writing from the Australian Government Solicitor or an officer of DIMIA to complete any documents to facilitate his deportation, that he promptly complete and submit to any department of the Australian Government any application or applications for travel documents as the respondent reasonably considers may facilitate his deportation from Australia.

1.4                   Mr Cisinski report in person to the Albany Police Station or any other place to be agreed between the parties by their solicitors on Monday, Wednesday and Saturday each week and by telephone to an office of the Compliance Section of DIMIA on every other week day between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree.

1.5                   Mr Cisinski attend in person any hearing in the Federal Court of Australia or in the High Court of Australia of which he is given reasonable notice in writing by the Australian Government Solicitor, provided that, if such attendance is required at a city in which Mr Cisinski is not residing he may so attend by attending the Registry of the Court before which any such application is listed for hearing in the capital city in which he is then residing or nearest to where he is then residing.

2.         There be liberty to apply.

3.         Costs be reserved.

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

REASONS FOR JUDGMENT

LEE J:

1                     The applicant was born in Germany on 10 July 1951.  His father was born in Poland and his mother was born in Germany.  The applicant arrived in Australia in February 1982 with German travel documents that indicated he was stateless.  He was granted a “temporary entry permit” under the Migration Act 1958 (Cth) (“the Act”) as it then stood.  In December 1982, whilst in Australia, the applicant married a person who held “permanent resident status” under the Act.  In 1989 the applicant was granted an entry permit unrestricted as to the period in which he may reside in Australia.

2                     On 12 October 1992 the applicant was convicted of two counts of aggravated sexual assault and two counts of sexual assault, each offence involving his step-daughter, and was sentenced to a term of imprisonment to expire on 11 June 2000.  Under that sentence the applicant was permitted to apply for parole from November 1997.  On 23 July 1997 the respondent (“the Minister”) ordered that the applicant be deported pursuant to s 200 of the Act.  As a result of that order the applicant was not released on parole and served the whole sentence of imprisonment.  On 11 June 2000 the applicant was not released from the State prison in which the sentence of imprisonment had been served.  From that date the applicant was a person “detained” under the Act in a place of “immigration detention”.  In November 2001 he was taken from the State prison to a Commonwealth detention centre at the Perth Airport.

3                     On 21 November 2002 the applicant filed an application in this Court, seeking the issue of a writ of mandamus directing the Minister to carry out the order that the applicant be deported, or, alternatively, the issue of a writ of habeas corpus.  A notice of motion was filed on 28 November 2002 seeking an interlocutory order that the respondent be restrained from detaining the applicant in “immigration detention” pending hearing and determination of the substantive application.

4                     The Court has a discretionary power to make such an interlocutory order under s 23 Federal Court of Australia Act 1976 (Cth).  (See:  Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249).

5                     When the interlocutory application came on for hearing on 10 December 2002, counsel for the applicant submitted that the available evidence indicated that the several countries contacted on behalf of the Minister were not willing to accept the applicant as a deportee from Australia and that such circumstance was not likely to change in the reasonably foreseeable future.  In particular it was submitted that an inference could be drawn from the absence of any evidence as to what steps had been taken since June 2000 to deport the applicant, that he had been kept in detention for an ulterior purpose since that date and thereafter his detention had become unlawful. 

6                     On 17 December 2002 the Minister filed further material setting out the efforts made to remove the applicant from Australia between February 2000 and April 2002.  On the material before the Court it became clear that any prospect that the applicant could be deported to Israel or Poland had become unlikely by June 2000 and August 2001 respectively.  In respect of deportation of the applicant to Germany, it appeared that in June 2000 German authorities rejected the contention that the applicant was a citizen of Germany, a response reaffirmed by that country early in 2002.  After April 2002 the Minister considered making a direct submission to his German counterpart to request that Germany review its position but by December 2002 no decision had been made as to the appropriateness of that course of action.

7                     Having regard to the circumstances as a whole, I am satisfied that an interim order should be made for the release of the applicant.  The material before the Court shows the conclusion to be open that there is an absence of evidence to establish the imminence, or even the reasonable prospect, of deportation of the applicant being arranged in the reasonably foreseeable future, and that there is a serious argument that insofar as the Act empowers the Minister to keep a person in detention pending deportation, such a provision is to be construed as subject to a qualification as to reasonableness that would apply in the circumstances of this case.

8                     Having regard to the strength and content of the conditions that have been agreed between the parties to be terms of any order for the release of the applicant, I am satisfied that the interlocutory order for release sought should be made on the conditions proposed. 

Associate:

Dated:              7 April 2004