Asim, M.A. v The Minister for Immigration & Ethnic Affairs

CATCHWORDS

.ADMINISTFATIVE LAW - Immlgratlon - Application to review

decislon not to release applicant from custody pending the

final determination of

his application for refugee status

Whether what is to be reviewed is

a decision or conduct

Whether there was evidence to support the conclusion, If released, the applicant would probably disappear ar.d fail to comply with reporting ccndltlons.

Mlqration Act 1953

5.39

Administrative Decisions (Judicial Review) Act 1977 55.5 ,

Firoqlcl v Minlster for Immiqration and Ethnic Affairs	(1931)
55 FLR 99 dlstingulshed
NSW G.376 of l935

MOHAMMFJ) ASLAM ASIM v THE MINISTER FOR IMMIGRATIQM AND ETHNIC

AFFAIRS

Wilcox J.

Sydney

23 December 1985

IN THE

F DERAL

COURT

OF ArJSTRALIS

) )

IT31 SOUTH	$JALES	DISTRICT REGISTRY	1	No. G.376 of 1985
)
GENEF-X	DIVISION	)

THE MINISTER FOE

IMMIGPATION AND ETHNIC

AFFAIRS

Respondent

C0F.Al.l :	WILCOI! J.
DATE:	23 DECEMBER 1985
PLACE :	SYDNEY

MINUTE OF 0RDEP.S

THE

COTJPT

ORCIEFS THAT:

The

respondent by his

delegate,

.hn?marie

Nicholl,

reconsider and determine wlthin twenty-four

( 2 4 )

hours the question whether the

applicant should be

released from custody pending che ultlmate

determinatlon of his application for review

of the

decision h:? the 'hmittee

f a r Determinaricn c.f

2 .

Refugee Status to refuse his request for refugee status. and m y subsequent declsion in relation thereto by or on behalf of the Minlster.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Fsderal Court Rules.

IN THE FEl2EP.X COURT OF ArJSTRALI3

MEbI SOTJTH [.TALES DISTRICT PEGISTRY

!	No. G.375 of l085

)

D1VISIC)N

GENERAL

)

Respmdtnt

CQRAM :

bIILco:< J.

DATE

23 DECEMEER 1'335

PLACE :

SMNEf

EXCEWORE PEiiSONS FOR JTJDGMEMT

This application

1 s made under the Adminlstratlve

Decisions (Jurliclal Review) Act 1977. The application is within a limlted compass; it seeks the renew of c7hat is called the decision of the respondent, that is the Minister

for Immlgration and Ethnic Affairs, made

by Annemarie

Nicholl, an officer of the Department of Immigration and Ethnic Affairs, that the applicant, Mohammad Aslam Asim, should not LP released from custody pending the tdecisicn <2f th? Committee for Determination of Refugee Status and the

conslderation of such decision

by the Minister for

Immigration and Ethnic .$ffairs. It is said that this

decisim was made at approximately	11.20 am on 17 December
1985.

The material before the Court

is fairly sparse,

largely no doubt because of the fact

that the matter has

come on for hearing

as a matter of urgency.

It appears that the applicant has Seer: in Auztralia

on at irast tkree previous

occasions. He cane tg Auztralia

nn 1 7 January 1974 pursuant to a temporary entry permit, and

he was granted a number of estenslons before leaving

Australia on 4 April 1975. "here is nothing to indicate

that during that visit he breached the provisions of the

Micfration Act l953 in any respect.

It is said in Miss Nlcholl's affldavit that on

December 1977 the appllcant arrived in Sydney and that

departed on the same day. Sehind this bald statement lies

an assertion, I assume, that he arrived wlthout a temporary

entry permit and for that reason was denied entry and that

he then left Australia.

It appears that the applicant again came to

Australia In 1978;

the date I s not revealed.

He was

deported from Australia on

31 January 1979 dcle to the fact

3 .

. .

that he remained in Australia after the expiration of hls

temporary entry permit. PTothing is said as to the

circumstances under which this occurrence occurred. From

the fact of deportation one can

draw the infeence that

there was a breach of the Misration

Act, as indeed is

implied by the reference to the explration of the tempcrarg

entry permit. There is nothing to indicate that

Mr h i m

went into hiding during that visit

or that, in any way, he

sought to avoid apprehension andfor deportation.

On his most recent visit,

Mr Asim re-entered

Australia on 5 April 1985. He was granted

a temporary entry

permit valid for

three month5. Within that perixi af three

months, apparently some time late in June 1985, he made

application for refugee status. I say this because there

was apparently

a discussion with an offlcer of the

C O W

Secretariat on 28 June 1985.

It 1s true Lhat the affldavit

cf Miss Nicholl refers to the application being lodged

n 21

July 1985,

that is shortly outside the three months' period

but it is possible that thls was the date of the formal applicatlon. From the reference to the earlier discussions,

it does appear that within the three month period

M 3sim

took up with the Department

-- whether formally or otherwlse

-- the possibility of his being allowed	to remaln m
Australia as a refugee.

Mr Asim WRJ interviewed on 18 September 1985. The

allegation is made

that, in the oplnion of the Interviewing

officer, he did not answer questions truthfully at this

interview. There is no affidavlt from the

interviewmg

officer, and there is no information before me as to the

nature of the alleged untruthfulness.

There is also an allegation made of unexplained

alterations to Mr Asim's passport, upon which he entered

Australia on 6 April 1985.

This vas the subj5ct of a

reference at a later interview of the applicant with

Clive Robson rJf the Department on

24 October 1985, but at

that time Mr Robson

said, "I am not going to go into

all of

those details now." So that it is not clear specifically

what is alleged against

Mr Asim. However, 3s Miss Ward

points out, the application for r57iew does

r o t ref?r to the

matter of the passport. Understandably, in those

circumstances she has no instructions on the allegations

regarding the passport or

as to the extent to which they

were raised in lnterviews with

Mr Asim. In that situatlon

it would be unfair to the respondent to take Into account

any complaint

by Mr Asim about the allegations

as 50 the

passport for the purpose of dealing with this application.

If that matter were to

be taken into account then an

opportunity would have to be given to

he respondent to

present evidence on Lhia point. As I have reached a

conclusion that relief should be granted to the applicant upon a different basis, it is not necessary to take that course.

The application for refugee status made by

Mr Asim

was considered by the

D O E Committee on 26 September 1985

and refused. On 17 October 1985 a deportation order was

signed by Mr Wayne Julian Gibbons, the delegate

of the

Minister, and this was served upon

Mr 9s1m on 23 October

1985. In the meantime, apparent1:r Mr Asim had lodged an

"appeal" against the determination by the DORS Committee. (Although so called, the "appeal" was really a request for reconsideration of the decision). It was at that stage

that, on 24 October 1985, he was interviewed by

Mr Robson.

Apparently that interview was in relation to the appeal.

There was some delay in

transcribmg the lnterview and

the

transcript was not able to be verified by the applicant

until 21 Novemb?r 1985.

At that time it was intended that

the appeal would

be considered at

a meetlng on

29 November 1985, but there

was apparently some problem within

the Department in

recelving material in time

for that meeting, so the matter

was ad-~ourned until the meeting of Friday,

13 December 1985.

On that day the matter was apparently considered by the

Committee but it found it was not able to reach

determination in relation to the application and

it decided

to seek further lnformation from Pakistan, which is	Mr
Asim's country of origin.

The Committee will

meet again on 17 January 1986,

but the informatlon given by Miss Phi of the Department

that the Committee is unlikely to have the

requisite

information by that date and that

the matter will probably

not be dealt	with until the following meetlng on	Friday, 31
January 1986.

There is some material included

in the evidence

before me in relation to the merit of the application for

refugee status. I am not concerned with

that material

except insofar as

it does indlcate that the application is

bona fide one and that

it appears that there are matters

warranting serious consideration. This seems to be

acknowledged by the Committee In its decision to seek

further material from Pakistan before making

a decision.

Mr Asim has been

in custody at the Villawood

Detention Centre since

18 September 1985. By the time that

the Committee deals with his matter on

31 January 1986,

period of four and

a half months will have lapsed.

This is

not said by way of criticism of the Ccmmitt?e.

bbviously

the matter raises problems and

it is in the interests of the

appllcant that the Committee take the

time and trouble to

7 .

obtain all necessary information, including any information

desirable to be oLLained from Pakistan, rather than to reach

a quick decision which may be unfair to him. However, the

fact is that the delays mean that the applicant wlll, unless released in the meantime, have to spend

a conslderable

amount of time in custody regardless of the outcome of his

appllcation for review

of the earlier decision.

As I have indicated, this application is a fairly narrow one. This is not a case where an appllcant has

sought review of a decision to refuse

an entry permlt andlor

a declsion to make a deportation order under

s.18 of the

Misration Act and has then sought an lnterlocutory order

under s.15 of Administrative Decisions (Judlcial

Review) Act

setting aside a declsion to keep the applicant in custody:

cf Piroslu v Minister for Immlaration and Ethnic Affairs

(1981) 55 FLR 99.

In this case the “decision under an

enactment” in relation to which complaint is made is

so-called decision under

s.19(7) of the Miqratlon Act not to

release the appllcant from custody. Section 39 of the of a deportee.

Subsection ( 6 ) of that section provides:

“A deportee may be kept in such custody

as the Mlnicter or an offlcer directs

(a) pending deportation, until

he is

placed on board a vessel for

deportatlon;

...

Subsection ( 7 ) provides:

"Notwithstanding anything contained

this section, an authorized officer may at any

time order the release of

a person who is in

custody under this sectlon."

In this case the authorized officer, that is Miss Nicholl, has declined to exercise the dlscretion conferred by sub-s.(7) to order release of the applicant from custody.

I think that the

red . legal basis of attack must be

pursuant to s . S ( l ! of the Administrative Decisionu

\Judicial

Revi?w Act rather than pursuant to

5.5, which deals with

decisions sald to be invalid. Section 6 provides that:

"(l)

Where a person has engaged,

1 s

engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who 1 s aggrieved by

the conduct may apply to the Court for an order of review ln respect of the conduct on

any one

or more of.. .

certain specified grounds.

In essence, in this case, the

applicant charges that Miss Nicholl has engaged in conduct

for the purpose

of making a decision to vhich the Act

applies -- that is a decision whether or not to release him

from custody pursuant to s.39(7) of the Miqration

P.ct -- and

he complains that in that connection certain legal defects

have occurred. If any of those defects are

shown the

consequence must be that the Court has jurisdiction to

intervene and make an order requiring reconsideration of the

matter.

There is in my view no basis by which the Court can

superimpose Its own

view as to the proper decision to be

made. That would be to intrude into the merits of the case.

The question then is whether the applicant has made out his

submission that legal error has affected the conduct of Miss

Nicholl in deciding not to order release.

Two matters have been argued

in that connection.

The first of those matters is that there has been

a breach

of the rules of natural justice

in that Miss Nicholl has

taken into account, adversely to the a2plicant. the alleged

irregularities in his passport. It

is sald that these

matters were not raised with the applicant, chat Mr Robson declined to particularise the complaints and that the applicant has therefore been denied any opportunity of

answering the allegations. geliance is placed upon the

deciJion of the High Court of Australia in Kioa

v M nister

f o r Immiqration and

Ethnic Affairs given last week.

A s

have indicated, the resolution

of this submission would

requlre an opportunlty to be given to the respondent to deal

with the matter of passport irregularities and the manner in

which the renew was conducted. For the reason

I have

indicated I think it unnecessary to postpone the matter to

enable that to be done and I say nothing one way or the

other regarding the first submission of the applicant.

10.

The second submission fastens upon para.5

of Miss

Nicholl's affidavit. Paragraph 5 immediately follows

para.4, in which she set out the previous history

of the

applicant In regard to immigration conduct and which	I have
already summarized. In para.5 she said this:

"In the llght of the above matters

I formed the

opinion that, should the Appllcant be released

from custody there is a reasonable probabillty

that he would disappear and seek to become

absorbed into the community, and that he would

not comply with any reporting conditions."

The argument for the applicant is

that this conclusion is

conclusion adverse to him which is not supported by any

evidence or other material sufficient to justify that

conclusion: see s.6(l)(h) of the Administrative Decisions

(Judicial Review)

Act.

It is said on behalf of the

applicant that the fact

that the applicant overstayed

hls

temporary entry permit in

1978179 and had to

be deported

provldes no basis for an inference that, if

he were released

from custody at this

time, he would disappear and seek to

become absorbed into the community and that

he would fail to

comply wlth any reporting conditions. Reference is made to

affidavics which were submitted to the Minister in support

of the application

for refugee status from which

t appears

that the applicant

has a half-brother resident In Llverpool

-- where he owns his own home --

and to affidavits from

two

other people, friends of the applicant who are resldent in

Sydney and apparently interested in his welfare.

The

submlssion is put that this material tends to suggest that,

II.

the applicant would remain in contact with the authoritles and, at the least, that there is nothing before the Minister

to suggest that

he would disappear.

It seems to me that that there is substance in this

submission. If there was anythlng in the appllcant's

history to suggest that he had a propensity to disappear

when he came under notice from the migration authorities,

think that I would hav? been referred

to it. The applicant

is obviously keen to remain

In Australia and it appears that

his keenness is

of long standing, but that is quite a

different matter from a wlllingness to disappear and an

unwillingness to comply

wlth any reportlng condltions.

It seems to me that the conclusion reached by Miss

Nicholl adversely to the applicant

1 s not supported by

evidence and that this dictates

that the court should

interfere and require reconsideration of

his application for

release from custody pendlng the ultimate decision.

making that reconsideration Miss Nicholl,

who has been in

court today, will have the benefit

of certain further

matters whlch have emerged, including a statement made

counsel for the applicant upon instruction both from the

applicant's brother Mr Khalid and from his friend

Mr Aslam

Chaudhry that they are each prepared to execute

a bond in a

substantial sum, say

$20,000,

condltloned upon the applicant

reporting regularly and continuing to reside

wlth the

12.

brother at his home at Liverpool

pendmg the ultimate

decision.

It is, of course, entirely a matter for Miss

Nicholl as to what weight she should give to that offer but

it is no doubt a matter

which she will take into account.

It is desirable, particularly given the fact

that

the holiday period

1s about to commence, that a quick

decision be made in relation

to the reconsideration. I have

been told this can be made speedily.

The order that I

propose to make is as follows.

I order that the respondent

by his d2legar-s, Bnnemarle Nlcholl, reconsider and determine within 24 hours the question whether the applicant should be

released from custody

pendmq the ultimate determinatlon of

his application for review

of the decision

by the Committee

for Determination of Refugee Status to refuse his request

for refugee status and any subsequent decision in

rllation

thereto by or

on behalf

of the minister.

(Counsel for the applicant indicated that he was

instructed not to ask

for costs in the matter).

No application is made

on behalf of the applicant

for an order for costs in this application; consequently,

no such order is made.

13.

I certify that the twelve

(12)

preceding pages are

a true copy of

the Reasons for Judgment herein	of
his Honour Mr. Justice Wilcox. -

Associate:

A - //-

Eat e :

22 January 1986

Counsel for the applicant:	Mr A L Hill
Solicitors f o r the applicant:	Messrs Prior & Phippard
Counsel for the respondent:	Mlss S Nard

Solicitors for the respondent: Australian Government

Sollcltor

Date(s) of hearing:

2 3 Gecember 1985

[1985] FCA 665

23 Dec 1985