Birtles v Repatriation Commission

[1991] FCA 645

IN THE FEDERAL COURT	1
OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. VG 255 of 1991

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Applicant

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FOR IMMIGRATION. LOCAL GOVF-	F :.
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FEDERAL COURT OF F.

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REQISTRY	Respondent	!;.,
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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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letter of that date. I do not need to canvass the	2.:
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contents of the letter in detail. The letter was sent in further support of the application for release from custody. It enclosed a document which is something in
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the nature of an order on the applicant's solicitors to pay the department $20,000 in the event that the applicant absconds or does not comply with his undertaking to depart from Australia once his common law action is finalised. There is other information contained in the correspondence which suggests that the common law action will be resolved on 30 October 1991 and that the applicant has a booking on a flight to Indonesia on 6 November 1991 , details of which were to be supplied later.
In the letter of 16 September 1991, the basis upon which the applicant sought release is repeated. However, the letter adds that h e applicant was anxious to leave Australia and return to Indonesia "where he has a wife and child since the accident happened". I do not quite understand this last phrase, but I assume he has a wife
words "since the accident happened" escapes me. The	and child in Indonesia although the relevance of the
letter further asserts that "he would like-to complete his medical treatment before returning home", and concludes with a request that "the department accept the proposal for his voluntary departure or supervised departure if that is deemed to be necessary".
In response to the two approaches seeking the applicant's release from custody, the department, on 18 September

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1991, wrote to the applicant's solicitors advising	I I
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refusal to release him. The thrust of the department's	. ~
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letter is that the author, who was obviously acting as a	F;,
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delegate of the Minister, said he could not agree that	;,'.S
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the applicant be released from custody and permitted to	r:
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depart voluntarily on 6 November 1991 as the date	!.; (
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proposed would require the applicant to remain in
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Australia illegally for an unreasonable length of time.	I-;:  1 '
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The further comment was made that in accordance with	r;,.

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normal practice, the author of the letter would only be	i!:
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prepared to consider approval of voluntary departure if	p . .., . -,
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departure was to take place within seven days.	:.
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Although no affidavit was sworn by the applicant, upon	i :-
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the application of his counsel, I gave leave for him to	f .;
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give oral evidence notwithstanding the objection of	1::
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counsel for the respondent. The applicant was duly	3

called and cross-examined. The thrust of the applicant's p,; : /

testimony was that on Wednesday, 18 September 1991 he was

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interviewed by an officer at Maribyrnong Detention Centre

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when he was asked a series of questions the answers to

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which were noted on a piece of paper. He was then asked

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to sign the paper but declined because, as he said, he

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was on Workcare. However, he asked that the document be

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interpreted to him in his own language and this was done

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through the telephone interpreter service.

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In response to the application the respondent filed affidavits of Margot Carroll (an officer of the department) and Nicholas Neary (the officer in charge of the Maribyrnong Detention Centre).

MS Carroll deposed that a deportation order had been signed on 20 September 1991 and a copy of that order is exhibited to the affidavit. (A copy of the same order was also tendered through the applicant.) The deportation order asserts that the applicant entered Australia on 5 November 1988. MS Carroll further swore that medical treatment is available at the detention centre and that no request for permission for the applicant to attend any medical appointment had been made. If it were made, it would be permitted. She said that doctors are permitted to attend at the detention centre but no request has been made for the attendance of

the applicant for an entry permit under regulation 42 and

any doctor. Furthermore, no application has been made. by

it is said that the time for making such application has
now expired.

In his affidavit Mr Neary deposes as to an interview with the applicant on 18 September 1991. He says he notified the applicant of the intention to refer to the Minister the question of the exercise of his power to order the applicant's deportation, after which a series of questions were put. The answers were marked on a document a copy of which is exhibited to his affidavit. This document is a copy of the same document that the applicant agreed was the one that was filled in at the time of the interview and which he had declined to sign. Mr Neary said that the applicant first answered all questions put to him giving his answers in English and in his opinion, he appeared to understand the questions. However, the applicant insisted on obtaining an interpreter to explain the document. This was immediately arranged through the telephone interpreter service and the document was translated. The questions were posed again and the applicant gave the same responses. Furthermore, Mr Neary said that the applicant advised that he would not sign the .document as he was under Workcare.

The decisions that are sought to be reviewed are

arrest and detain the applicant. That was a decision

threefold. First, the decision on 12 September 1991 to

made pursuant to section 92(2) of the M i g r a t i o n Act. Second, the decision made on or about 18 September 1991 to refuse the written request for the applicant to be released from custody. That relates to a decision made pursuant to section 92(9) of the Migra t ion A c t . And third, the decision made on or about 20 September 1991 to order the deportation of the applicant.

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review the various decisions are various but basically

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are that the applicant was denied natural justice in

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connection with the making of the relevant decisions by

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reason of the fact that no opportunity was provided to

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him to be heard fairly or at all prior to the making of

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the decision, that there was a denial of natural justice

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or an abuse or an improper exercise of power, that

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relevant considerations were not taken into account and

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that irrelevant considerations were.	As to the latter,	1:'	'
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the relevant considerations said not to have been taken	$l,	. .
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into account were the matters raised in the

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correspondence from the applicant's solicitors and the	v<..
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irrelevant considerations said to be taken into account	1
are said to be that the respondent took into account the	- , : 1 .
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view that the applicant's proposed departure date would	.-
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require the applicant to remain in Australia illegally	v.,
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for an unreasonable time and that this was an exercise of h*? ,,'S:

power in accordance with a rule, policy or practice	I$
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without regard to the merit of the particular case.	It	, :.
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is also said that the exercise of power was so	1 . 2 ... ,. . .
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unreasonable that no reasonable person could have
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exercised it in that way, that there was an error of law	? B;:
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and that the decision was otherwise contrary to law.	As

to the third decision, it is said that this was an	!:: .	:	S
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the making of the decision were not observed. The

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particulars pleaded in relation to this ground are that	b,	..I
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the applicant had not been properly notified in
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accordance with the regulations that it. was the	1 .*,L .- ~. ;:. >.
notification was presented in the English language only,	',.X
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and as the applicant cannot read English and has problems	. ,
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understanding spoken English he required the assistance
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of a qualified interpreter which was not provided. On
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It is also said that relevant consia'erations were not	t.I
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taken into account in the exercise of power, those	1 ' 5 ;i
relevant considerations being the requirement in the ~ ~ c t
for the Minister to consider prescribed matters set out	i l::,:
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in regulation 179(b) (i). The particular matter referred

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to is the requirement to consider:	,,.
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Whether the person has been notified in	L'
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accordance with the regulations it is the Minister's intention to exercise the power to order deportation of the person.
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In this context, the question of the notice being in	E
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English is referred to. It is also said that the making	f ;
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of the decision involved an error of law as to which no	: ; 1
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particulars are pleaded and that the decision was	I,;
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contrary to law and amounted to an exercise of power in a	. .. . .
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way that constituted an abuse of power, as to which no	. .
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particulars are pleaded.
I think that it is quite patent that the applicant is and at all relevant times was an illegal entrant and nothing has been said to suggest other than that the relevant officer who arrested him on 12 September 1991 reasonably supposed him to be so and further thathis arrest was in exercise of a power under section 92(1) of the Act.
For my part, I fail to see how the exercise of that power can in the circumstances of this case give rise to circumstances that justify a review of the so-called decision to arrest. The only matter for consideration by the arresting was whether he reasonably supposed the applicant to be an illegal entrant. It is obvious, although the matter was not specifically addressed, that the applicant was an illegal entrant and therefore there were reasonable grounds to suppose him to be such. Under	no circumstances could I contemplate on the evidence as	it has been presented that there is any case at all that
would justify the review of the decision to arrest.
The second contested decision relates to the refusal to exercise a discretion under section 92(9). That subsection provides that:

In spite of anything else in this section the Minister or the Secretary may at any time order the release, either unconditionally or subject to specified conditions, of a person who is in custody under this section.

As to that, it is obvious that the material that had been put to the relevant officer by the applicant's solicitors in the form of two letters was taken into consideration and this is obvious by the text of the letter of 18 September 1991 which refers to those two letters in its opening sentence. The complaint that the applicant makes is not that the submissions made on his behalf were not taken into consideration but rather that they were found not be adequate to justify, in the officer's considered opinion, the exercise of the discretion to order his release. The other aspect of the decision is that it is said that a decision to release at that time would involve the applicant in being unlawfully at large for an unreasonable period of time. Again, that was a matter of judgment which has not, in my view, been addressed or

attacked in any way. Further, it is said that the decision-maker applied an arbitrary test as to whether or

not 7 days was a reasonable period for the applicant to

be at large, and that in referring to the period of 7 days he disregarded the merits of the case. I do not think that such a conclusion can be arrived at from the general thrust of the letter. The period that the applicant would be at large, if the proposals put by his solicitors were acceded to, would be an indefinite period, possibly ending 6 November 1991 although there was no certainty and indeed, the proposal put was that he should depart after the conclusion of his medical treatment. There does not appear to be any basis upon which it could be suggested that it was an improper response to say that the proposal involved him being at large for an unreasonable period. The period of 7 days is an indication of what was regarded as being reasonable, but as the application was obviously for the applicant to be released and left in the community for a period of at least 6 or 7 weeks, I do not think that the decision-maker's response was inappropriate.

However, be that as it may, the view I have taken on a proper construction of the statute is that by operation of subsection 92(8) of the Act, the applicant ceased to be held pursuant to section 92 upon the issuing of the deportation order, and for that reason, by the time this application was made on 23 September 1991, the applicant	was not being detained pursuant to either of the two	decisions initially referred to. In my view, those
decisions are completely irrelevant to any consideration of the matter presently before me.
On 20 September 1991 the applicant was the subject of a deportation order and by operation of subsection 92(8) he was thereafter taken into custody as if he had been arrested under section 93. No application for release has been made pursuant to subsection 93(9) and the only attacks made on the decision to issue the deportation order are first, that the applicant was not given an opportunity to put his case before the deportation order was made, and second, that there was a procedural defect in the making of the order in that proper notice was not given prior to it being made.
Subsection 60(1) of the Act provides:

The Minister may after considering the prescribed matters and no other matters order the deportation of a person whom is an illegal entrant under any provision of this Act.

The prescribed matters (which are referred to in regulation 179) are, first, whether the person is an illegal entrant; second, whether the person has been given in accordance with the regulations, notice of intention to refer to the Minister the question of the exercise of power to order his deportation; third,

whether the person has been granted or is an applicant to	be granted refugee status or territorial asylum; fourth,
whether the person is an applicant for an entry permit or has applied for to a review authority following a decision by the Minister refusing the grant of an entry permit; fifth, whether the person is subject to a court order that is in force effecting the Minister's exercise of the relevant power; and last, whether two working days have elapsed after the day on which the person was

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arrested under section 92 or 93 of the Act, as the case

requires.

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I am satisfied on the evidence that when on 18 September i s b;:

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1991 the applicant was interviewed by Mr Neary at	L-j:
Maribyrnong a series of questions was put to him which cover all of the subparagraphs of regulation 179. The applicant acknowledged that he was an illegal entrant, that he had not been granted refugee status or territorial asylum, that he had no current application	b.<;
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for refugee status or territorial asylum, that he had no	v;.
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current application for an entry permit, nor an	1;:. 5 . ... > .
application to a review authority, that he was not	c.'.;
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subject to any court order which would affect the	.~

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Minister's power to order deportation and that after	U,.?	:	;	1
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being arrested he was granted two working days to make an	t - S.'?
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entry permit application. I am also satisfied that a	l?:. ...
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copy of the document recording the foregoing responses of

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the applicant was given to him but before that it was at his request translated to him through the telephone	:	:	F
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interpreter service by an interpreter in his native	:	L
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language of Indonesian. There is abundant evidence from	S . .
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the mouth of the applicant himself that the matter for	?C
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consideration in regulation 179(b) (i), namely whether he	! 2,
had been given notice of intention to refer to the	i:.:
Minister the question of the exercise of the power to order deportation, was given to him and it cannot be said that any circumstance exists which would justify a review of the decision to make a deportation order on the ground of absence of proper notice.
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about the deportation order, namely that the applicant	,l.i
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ought to have had an opportunity to put his case, as it
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were, after notice of intention was given and before the	;."

deportation order was made. I think the answer is found fairly and squarely in provisions of subsection 60(1)	1:	:	:	1
which in my view demonstrates a very firm legislative	p. . .
intention on the part of Parliament to restrict the	p.r .L
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circumstances under which a decision to make a	. .
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deportation order can be attacked.	L;
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It would have been contrary to the Minister's duty under	I.r
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the statute to take into consideration matters other than	?2'
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those referred to in the regulation and in my view his	i;,,
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failure to do so cannot be the basis of an application to	17,
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review that decision.	The conclusion I have reached in	,,....
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the circumstances of the case is that it cannot be said	l!;
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that there is an arguable case nor, indeed, that the	2 :
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application is likely to succeed.	I wish, however, to	!.,,
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say something further about some of the authorities that	p~?:
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were referred to in argument.	r~
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In Piroolou v Minister for Immiaration and Ethnic Affairs	: . ) . C
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55 FLR 99 Northrop J had this to say at page 106.	(I	5
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might comment that this was a decision in 1981 before	. ~
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recent amendments and therefore the section numbers are
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not the same) :	i:.
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The policy of the M i g r a t i o n A c t is clear.

Prohibited immigrants should not be left at	g
large in the community pending deportation	t a I:
unless the Minister or an authorised officer	I :
exercises his discretion in accordance with
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section 39.	:L

Section 39 was the equivalent of the present section 93.	...	:	;	l:,'
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His Honour then referred to the particular facts of the
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case and at page 107 said:	i.:.
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In my opinion, there is a real danger that the	,. ~.:
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applicant if released from custody would merge	,-..
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into the community and seek to become absorbed	2 .
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into the community. I consider this type of	;:  ...
case to be very different from the normal bail	{r';
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case. In those cases a person has been	..:'
arrested and charged with a criminal offence	.  . .
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but has not been convicted. He is being held	'"
in custody pending trial and prima facie is	.. .
entitled to bail. In the present case the	i:
applicant has not been charged with any	l '
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criminal offence, he is a prohibited immigrant	I-.<

and under the M i g r a t i o n A c t prima facie should 1 :

be held in custody. Time limits were imposed ) .-.

by section 38 of the M i g r a t i o n A c t and once a deportation order has been made a deportee prima facie should be held in custody until

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deported.

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He then referred to section 39 as it then was and said: : 1; , .

The Court should not interfere with that policy	r	:	:	;	:	.	:	1
except in exceptional circumstances.	>.
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The foregoing comments of Northrop J were referred to in h.,:

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1982 by Lockhart J in Unluaenc v Minister for Immiaration	,!I
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and Ethnic Affairs 43 ALR 569. At page 573 of the report	* : .<.
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his Honour referred to the passage I have just quoted and

said:

I agree with the view expressed by Northrop J	L.,.
in Piroglou.	i:. l
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He then quoted the part that I just quoted.	j ' ; ji:.
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Subsequently, in September 1989 in Habal v Minister for 0 Immigration. Local Government and Ethnic Affairs
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(unreported) Lockhart J had occasion to look again at
the same question and indeed referred to his earlier	k : ' L.'
adoption of what Northrop J had said in Piroalou and said	/ '
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I have reconsidered my agreement with the	i:;
observations of Northrop J in the last sentence	/ :.
of the passage quoted. If it means that a	[.-.c 1. <
prohibited non-citizen bears the o'nus of	1.~'. ,
proving exceptional circumstances before he may	rfi
obtain an order releasing him from custody pending his deportation or hearing of his application for judicial review under the Judicial Rev iew Act then it goes too far and I withdraw my agreement with it, otherwise I confirm my agreement with the passage quoted.

On 26 April 1990, in Kaur-Bonicelli v Minister for Immiaration Local Government and Ethnic Affairs

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(unreported), Northrop J had occasion to again consider	r i:
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this matter and he referred to what he said in Piroalou.	:'j ,.-
He also referred to what Lockhart J had said in Habal.	l;'?.
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The case had to do with a person who had come to	P .
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Australia and who had married here and then applied for	t":
permanent status. The department had taken the view that the marriage was not genuine and it refused the

application. His Honour said at pages 10 and 11 of the
typewritten print:

Once it is said that prima facie a deportee is not entitled to what might be described as being released from custody the question arises as to what factors should be taken into account in cases of this kind.

The mere fact of there not being any likely absorption into the community is irrelevant on this aspect of the matter because the same issue could arise in every case except where there have been possible actions in the past in relation to a particular applicant who subsequently has tried to become absorbed, is arrested and detained. Likewise, the other factors referred to in the authorities are all cases where, to a large extent, it is a matter of judgment for the decision maker to make as to whether to release the deportee or not.

The mere fact of showing in the absence of establishing that there is a fairly strong likelihood of succeeding on the merits that an applicant is unlikely to be absorbed, the applicant will observe any conditions imposed and any other relevant material does not change the prima facie position that a deportee should be kept in custody pending deportation.

In the present case I see no reasons at all why the applicant should be released. It might be said that there are no exceptional circumstances present but on the facts of this

the release being ordered. Any person in that there are no sufficient grounds given for case I prefer to adopt the approach of saying custody does suffer hardship. In the present case the applicant can be visited, use a telephone and although it is said she is suffering some effect from incarceration, that of itself is not a sufficient reason.

I do not need to go any further than that. It is very clear that Northrop J was adhering to his earlier view although perhaps changing the expression of it somewhat, to say that either special circumstances have to be shown

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or as he preferred it, that in the particular case no sufficient reasons were given for the release being ordered.

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I refer to those cases because in my view they set out

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what I understand to be the legislative policy of the

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Migration Act and this is particularly so in a case as in

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the present case, where the applicant has not sought a

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change in his status. The applicant has not said anything to contradict the assertion that he is an

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illegal entrant. He does not seek to stay in Australia.

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He has never made any application to stay on a legal

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basis and therefore he is in my view a person that the Act, on the face of it, considers ought to be detained in custody.

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It is true that the provisions of subsection 93(9) provide for the release from'custody of such a person and

upon there must be some reason. In this case no

I adopt the view that for that subsection to be acted

application has been made pursuant to subsection 93(9),

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and I do not need to consider it any further. I am

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fortified in the view I have taken by the very clear	Q
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provisions of subsection 60(1) which, of course, are	[,;<
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directed to the Minister and indicate the very limited	f:./
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range of matters that the Minister may take into account
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in making an order for deportation. That in my view	I - I

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suggests, when one looks at the prescribed matters, that

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the matters that ought to be considered under subsection

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93(9) really have to do with the question of whether or

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not there is a possibility by reason of some other

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application that the applicant will be permitted in due

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course to remain in Australia legally.

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In this case I have reached the view on the evidence,	;:Cl$,- .
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such as it is, that there is no basis upon which the	.': 1; ,.c
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application can hope to succeed in respect of any one of	:;.; t:, ,
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the three decisions. In any event, there are some other
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aspects of the case which apart from anything else, would	k'.
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in my view inhibit any exercise of power I might have to	l:.>
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release the applicant upon conditions.	i. l
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Nothing is known of this applicant's circumstances, of	.U
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his history in Australia, how or why he came here, or	l '
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indeed for how long he has been an illegal entrant. It	p::
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is said that he has a wife and child in Indonesia but	i:-
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nothing more and nothing is known of his living	v .
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conditions or his associates in Australia. There is
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therefore no evidence upon which I could formulate any	3-7;
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order imposing conditions which would be appropriate to	> <
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the release of the applicant from custody were I minded	l ' . i
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to a0 so.	*...
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Furthermore, there is no evidence upon which any finding	L '..
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can be made that he will not seek to be absorbed into the community. In the absence of any evidence concerning his history in Australia, it is not possible to reach any view one way or the other on that issue. Nor, indeed, is there any evidence upon which any finding could be made that he will observe any conditions that may be imposed. So far as the actual grounds upon which the original application was made to the department under section 92(9) are concerned, I can say that there is no evidence that proper medical treatment would not be available to the applicant in Indonesia nor that the proper conduct of his damages action would be prejudiced by him not being released from custody except in so far as it would have to be conceded that in the ordinary course of events his attendance at the trial would probably be necessary, although there is a strong suggestion that the matter will be resolved by settlement. I say this because of the terms used in the authority enclosed with his	solicitor's letter of 16 September 1991, and also to the	statement that it is thought that the claim would be
finalised on 30 October 1991.
There would seem to be some indication that if a request were made he would be permitted under supervision to attend both the court for the trial of his claim and for medical treatment but there is no evidence any such request has been made.
On a number of different bases I have reached the conclusion that the relief sought ought not to be granted. I have also reached the conclusion that the facts as presented (and there has been every opportunity for the matter to be canvassed in great detail) do not give rise to any prospect other than that the application in each of its three aspects is quite hopeless. I therefore propose to take the same course that one of my colleagues did in a matter to which reference has be&
made during argument, and which I have no doubt is open to me, and dismiss the application as well as refusing the relief sought in the notice of motion. There will be orders to that effect.

I certify that this and the

preceding 20 pages are a true copy of the Reasons for Judgment of the

Honourable Mr Justice Olney

* . - I

Dated: a.16 flq/

Heard	24-25 September 1991
Counsel for applicant	MS R.L. Gillespie
Solicitors for applicant :	Messrs Galbally & O'Bryan
Counsel for respondent :	Mr R. Downing

Solicitors for respondent: Australian Government

Solicitor