The applicant seeks the review of a number of decisions affecting him said to have been made by or on behalf of the respondent. The matter presently before me is an interlocutory application seeking to restrain the respondent from detaining the applicant in custody pending the final hearing of the application.

Detention Centre; he sustained injuries to his hands on 11 April 1990; he has a claim for damages which is listed
I will refer briefly to such facts as have been established in the evidence. The affidavit of Caroline Scicluna, who is the applicant's solicitor, deposes to these facts: The applicant is detained at Maribyrnong
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for trial in the County Court in Melbourne on 30 October
1991; and, in addition to his physical injuries, he
suffers from what is called a psychiatric state. It is

said that on 12 September 1991 the applicant was arrested 1

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and taken into custody as an illegal entrant. On 13 ,.<-c p.
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September 1991 his solicitors, by letter of the same ':.I
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date, made application for his release from custody on

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the basis of what was said to be his unresolved legal . .~

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proceedings and his need for medical treatment. 1.1~
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Forwarded with the letter was a standard form also dated i_.
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13 September 1991 headed Application for Release on F: :->

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Conditions.. The only further information it adds to that
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contained in the letter is that the applicant's date of L- ; ! .'
birth is 14 October 1964 and his country of citizenship [E;
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is Indonesia. The form gives the reasons for seeking L: :
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release as simply, "Medical treatment (including .,
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psychiatric) and unresolved legal proceedings". On 14 h::

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September 1991 the applicant was taken before a F,:;:
prescribed authority and his detention was authorised for a further seven days. On the afternoon of 14 September 1991 an officer of the Immigration Department interviewed

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the applicant. On 16 September 1991 the applicant's 1,:;

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solicitors put certain proposals to the department in a jl"..
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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Birtles v Repatriation Commission

Details

AGLC: Birtles v Repatriation Commission [1991] FCA 645
Case: [1991] FCA 645
Decision Date: 25 Sep 1991

CaseChat Overview and Summary

The case of Birtles v Repatriation Commission is a Federal Court of Australia decision concerning the review of decisions made by or on behalf of the respondent, Repatriation Commission, affecting the applicant, Birtles. The primary issues in this case involved whether the applicant was denied natural justice in the making of these decisions, if relevant considerations were not taken into account and irrelevant considerations were taken into account, and if there was an abuse or improper exercise of power.

Birtles sought the review of three decisions: the decision on 12 September 1991 to arrest and detain him, the decision made on or about 18 September 1991 to refuse the written request for the applicant to be released from custody, and the decision made on or about 20 September 1991 to order the deportation of the applicant. The applicant argued that he was denied natural justice, relevant considerations were not taken into account, and irrelevant considerations were taken into account.

The court held that the applicant's arrest was justified as he was reasonably supposed to be an illegal entrant. Regarding the refusal to release him from custody, the court found that the officer had taken into consideration the submissions made on the applicant's behalf but determined that they were not adequate to justify the exercise of the discretion to order his release. The court also found that the applicant's proposed departure date would require him to remain in Australia illegally for an unreasonable period of time.

As for the deportation order, the court held that the applicant was given proper notice in accordance with the regulations, and that the Minister was not required to consider any matters other than those referred to in the regulation. The court concluded that there was no arguable case for the review of the deportation order.

Based on the reasoning and outcome, the court dismissed the application and refused the relief sought in the notice of motion.

Orders