Alpaslan, G. & Anor. v Minister for Immigration & Ethnic Affairs

[1985] FCA 418

Re: GULOREN ALPASLAN and MUSLIM TORAMAN
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VG No. 160 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.

CATCHWORDS

Administrative law - judicial review - application for stay of deportation order - whether applicants be released from custody pending reconsideration by Respondent.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958, s.39, s.38.

HEARING

MELBOURNE
#DATE 16:7:1985

JUDGE1

Application has been made to the Court under the Administrative Decisions (Judicial Review) Act 1977 for review of three decisions of the respondent, the Minister for Immigration and Ethnic Affairs. The first decision is a decision alleged to have been made in or about May 1984, that the first applicant be deported. The second is a decision made on or about 3rd July 1985 to reject the application of the applicants to be granted permanent residence permits. The third decision is a decision made on or about 4th July 1985 to implement the abovementioned deportation order against the first applicant.

Both the applicants are in custody. The first applicant, the subject of the deportation order, is in custody pursuant to s. 39 of the Migration Act 1958. The second applicant is in custody pursuant to s. 38 of the same Act, he having been arrested as a prohibited non-citizen. Each of the applicants was born in Turkey. They met in West Germany in about 1981, whilst each was living in that country as a guest worker.

Each of them is married to another person, and they left West Germany because of difficulties which they perceived with their spouses, and with other members of the Turkish community, in conducting a de facto relationship. They came to Australia on three months visitors' permits and have overstayed.

The applications for review of the decisions are based on a number of matters. These relate primarily to physical danger, which the applicants apprehend, should they be deported to Turkey, by reason of their marriages and their conduct of a de facto relationship, health reasons which affect both of them, and reasons which are associated with legal proceedings in which they are presently engaged. The full extent of the matters relating to their health and their legal proceedings have not yet been considered by the Minister.

The Minister, by his counsel, has indicated that he is prepared to review each of the decisions, the subject of the application for orders to review, and to agree to consider them in the light of any material the applicants may wish to place before him. In these circumstances the parties are agreed that the notice of motion that is before me, seeking to stay the operation of the decisions, should be adjourned until 13th August 1985, on an undertaking by the Minister not to carry into effect any deportation order, made or to be made, with respect to either applicant. Those orders I propose to make, together with other orders that were sought, reserving liberty to apply, and reserving costs.

The issue that is left before me is whether, in the interim, the applicants ought to be released from custody.

On the one hand it is put by Mr. Santamaria, on behalf of the Minister, that the authorities indicate a general tendency in favour of retaining prohibited non-citizens and persons the subject of deportation orders in custody. This is said to be the effect of ss. 38 and 39 of the Migration Act 1958, and is a matter that was dealt with by this court in Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4 A.L.D. 323 at page 328, a passage that was followed by Lockhart J. in Unlugec v. Minister for Immigration and Ethnic Affairs (1982) 43 A.L.R. 569 at pages 573-574.

On the other hand, Mr. Bell, on behalf of the applicants, seeks to draw attention to a number of aspects of the applicants' own circumstances, with a view to persuading the Court that they ought to be released from custody.

The view that I have taken on the evidence is that this is one of the exceptional cases where the applicants ought to be released from custody, subject to certain conditions.

It seems to me they have much work to do in the next month in preparing evidence to be submitted to the Minister for his consideration in reviewing the decisions. Much of that evidence is of a medical nature and it will be necessary for them to seek urgent appointments with medical practitioners for the preparation of urgent reports. That is not a matter that can easily be done whilst they are in detention.

There are a number of aspects which suggest to me that the danger of the applicants disappearing into the Australian community is much reduced. To begin with, each of them has a medical problem which requires medical attention, and accordingly, requires access to medical records by whoever is treating them. In the second case, each is involved in legal proceedings. One applicant has just completed workers' compensation proceedings, the other is involved in proceedings at common law with respect to an industrial accident. The first applicant is involved in the prosecution of an appeal to the County Court from a conviction and sentence in respect of an alleged theft. They will need to give attention to their legal advisers with respect to the prosecution of those proceedings, and it is unlikely they will disappear and abandon the proceedings.

It was put by Mr. Santamaria that, in the past, the applicants had used false names and false addresses. These facts were revealed on the applicants' own material. In my view, it is unlikely that they will resort to such devices in the future as a means of disappearing; to do so would inevitably have very serious consequences for their applications, for the reconsideration of the Minister's decisions as to deportation and for other matters.

For those reasons I propose to order that, subject to certain conditions, the applicants be released from custody pending the adjourned date of these proceedings.

A question has arisen as to the appropriate conditions to which I should subject the applicants. Some discussion took place as to whether I should require them to lodge a sum of money as security against their disappearance. I feel disinclined to do that, because any sum of money they would be lodging would only be their own money, and that would offer little in the way of safeguard against their disappearance, especially if the sum which was awarded as workers compensation settlement to the first applicant were paid to her in the meantime.

I do propose to order that they report twice weekly to an officer of the Department of Immigration, and to make it a condition of their release that they should reside at the flat which they have maintained up until now.

The order I propose to make is as follows. Upon the respondent, the Minister for Immigration and Ethnic Affairs, by his counsel, undertaking that he will not carry into effect any order, made or to be made, for the deportation of either of the applicants:

1. The application be adjourned until 10.15am on Tuesday, 13th August 1985.

2. Each of the applicants be released from custody upon condition that they:

(a) continue to reside at flat 12, 82 Blythe Street, Brunswick in Victoria,

(b) report each Monday and Thursday during normal office hours to an officer of the Department of Immigration and Ethnic Affairs at the 5th floor, block one, Commonwealth Centre, Latrobe Street, Melbourne.

3. I reserve liberty to any party to apply on 72 hours notice in writing to each other party.

4. I reserve the costs of this day and of the notice of motion dated 9th July 1985.