Calvert, L.W. v Minister for Immigration Local Government & Ethnic Affairs

[1991] FCA 74

JUDGMENT No. 3.9 .... /.?L..-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO G59 of 1991

)

GENERAL DIVISION )

BETWEEN:  LARRY WAYNE CALVERT
Applicant

AND :	THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AFFAIRS
Respondent

=:	HILL J
PLACE :	SYDNEY
DATED :	7 MARCH 1991

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Larry Wayne Calvert, who is a citizen of the United States, is presently in custody in a maximum security wing of the Malabar Assessment Unit at Long Bay. He applies to the court to be released from that custody on certain conditions. M r Calvert is an illegal entrant to Australia and deportation orders have been made in respect of him on more than one occasion.

released on bail.

The applicant had been a law enforcement officer in the United States and came to Australia on 13 March 1985. Prior to his coming to Australia he was indicted on 4 September 1985 at Woller County, Texas, on three counts of felony theft. The counts involved allegations that between September 1983 and June 1984 he stole a tractor, a fuel tank and a hay baler. On 7 December 1984 he was convicted and

He failed to appear for sentencing and a warrant was then issued in Texas charging him with failure to appear and theft. Presumably his arrival in Australia coincided with his non-appearance in Texas.

Unfortunately, Mr Calvert did not follow the path of law and order in Australia either. On 6 November 1985 he was convicted of 35 offences of false pretences for which he was sentenced to concurrent terms of six months hard labour. A few days before his prison term finished in 1986 he absconded from Emu Plains Prison, where he was then incarcerated, and was at large for some time. In respect of this escape from custody he was ultimately sentenced to 12 months imprisonment with a six weeks non-parole period. He was sentenced as well on 16 June 1987 following a conviction for break, enter and steal and received three years imprisonment with a non-parole period of 12 months. On 1 March 1988 he was sentenced in respect of 18 counts of receiving stolen property, knowing

that it was stolen.

All in all, it is a sorry record for a person who at one time had sworn, one assumes, to uphold the law. In respect of the Australian convictions, Mr Calvert has served his terms of imprisonment and on the facts which happened, one might say, he had certainly paid his debt to society in Australia.

Mr Calvert was ordered to be released on licence in

respect of the offences for which he was convicted in June of
1990. Circumstances however intervened. While in prison in

Maitland it is alleged that Mr Calvert overheard a drug deal and reported it to the authorities. Subsequently on 1 July

1987 Mr Calvert alleges he was assaulted from behind with an

iron bar.

However it happened, there is little doubt that Mr Calvert was seriously injured. He now suffers motor disorders, cognitive and memory loss, and severe emotional disorders, and it would seem that these are a result of what befell him in Maitland. Some time after the accident in Maitland, the applicant married his present wife, Pamela. Inferentially, they must have come to have known each other at a time prior to Mr Calvert's imprisonment. Mrs Calvert lives in Raymond Terrace and receives at least some support from Mr Calvert in that he pays on her behalf a motor car registration.

On the day Mr Calvert was due to be released on licence from prison in respect of the various offences to which I have referred, he was arrested at the instance of the respondent pursuant to the provisions of the Miaration Act

1958 (Cth). Since that time he has remained in maximum

security pending deportation. He has, in other words, for some seven months, now been detained in an environment where physiotherapy, occupational and speech therapy are denied to him. I must say for that to have happened strikes me as being inhumane and could only be justified in very exceptional circumstances.

Mr Calvert commenced proceedings against the Department of Corrective Services claiming damages in respect of his injuries. Those proceedings are due for hearing in the New South Wales Supreme Court in May of this year. Notwithstanding the existence of these proceedings, a decision was again made to deport him and to implement that decision forthwith.

The consequence of those decisions, if implemented, would have been, in a practical sense, to put an end to M r Calvert's legal proceedings against the Department of Corrective Services. His legal advisers were of the opinion that his presence was necessary to the proceedings, and on the face of it that would seem to be so.

It was in these circumstances that the applicant commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in this court for review of the decisions to deport and the decision to implement the deportation. In addition, the applicant sought interlocutory relief in the form of a stay of the deportation order and an order that he be released from custody.

A settlement was reached between the parties in respect of the interlocutory proceedings to stay the implementation of the deportation order and in the end result the respondent agreed not to implement the deportation order until June, when hopefully the proceedings in the New South Wales Supreme Court will have concluded.

However, the respondent resists the application of the applicant that he be released from custody until the Supreme Court proceedings conclude. It was agreed between the parties that the settlement relieved me of the need to consider whether, in respect of the matters on which judicial review is sought, the applicant has an arguable case.

There has traditionally been a view that the power to order a person detained in custody under the Miaration Act to be released, required consideration of such matters being in the nature of an interlocutory injunction. In Unluaenc v

Minister for Immiaration and Ethnic Affairs (1982) 43 ALR 569

Lockhart J expressed reservations as to the correctness of applying principles relevant to the granting of ordinary interlocutory injunctions to proceedings of this kind.

However, his Honour did apply those tests in that case. In Habal v Minister for Immiaration and Ethnic Affairs (Federal Court of Australia, unreported, 22 August 1989), I considered the various cases where the issue had been raised and pointed out that the cases had not really considered the matter in any detail.

I continue, like M r Justice Lockhart, to have difficulty with the concept, although no doubt if the applicant had no case, that would be clearly a matter that would need to be taken into account in exercising discretion. It was ultimately conceded by the respondent that there were two main issues of fact which I would need to decide to determine the application.

If the applicant were to fail in respect of these matters, then clearly his application for release from custody would fail. The first matter is the question whether there is, to use the words of Mr Justice Northrop in Peroalu v Minister for Immiaration and Ethnic Affairs (1981) 55 FLR 99, a real danger that the applicant, if released from custody, would merge in the community and seek to become absorbed into

the community.

The second question is the question whether his release from custody would constitute a danger to society. In the circumstances of the present case that means whether I am satisfied on the balance of probabilities that it is unlikely that the applicant will again turn to crime.

As to the first of these matters the solicitor for the respondent pointed to the fact that the applicant had absconded from bail in Texas and had escaped from custody in Emu Plains a few days before the end of his term of imprisonment, and just after he had been interviewed by an officer of the respondent in connection with deportation that was then being considered.

An inference could arise that the absconding from Emu Plains was related to the immigration interview. That inference could more firmly be held in the event that Mr Calvert did not give evidence. It was, no doubt, for this reason that Mr Calvert was called to give evidence in reply.

Mr Calvert, as he presented in the witness-box, was clearly physically and mentally affected by his experiences in prison. His recollection of events in the United States and of the escape from Emu Plains was non-existent. It seems to

me, to put it mildly, that the applicant is no longer the same
man he was when he arrived in Australia. Indeed, I would

suspect he is but a pale reflection of his original self. This view is not merely mine. It is also the view of a clinical psychologist, Dr Roberts, who gave evidence on his behalf. Dr Roberts was of the view that continued stay by the applicant in prison was greatly detrimental to him. He could, she said, not obtain therapy nor occupational assessment or training which she regarded as necessary. She believed it unlikely that he would abscond or for that matter engage again in criminal behaviour. I accept her evidence without question.

Two other witnesses gave evidence on behalf of the applicant from the prison system itself. Both were of the view, having known him and observed him in the prison environment, that he would neither abscond nor offend again.

On the question of whether there is a likelihood that Mr Calvert would abscond, there are particular circumstances here which must be taken into account. The first is obviously the physical and mental state which Mr Calvert is in. It is my assessment that he is in need of considerable attention and support, which would make it highly difficult for him, in any event, to abscond. Secondly, but rather more importantly, he has a real incentive not to abscond, an incentive which clearly did not exist at the time that he left Emu Plains. That incentive, of course, is the

proceeding against the Department of Corrective Services in

the Supreme Court which is now imminent. I say nothing about

the applicant's chances of success in that proceeding, but it is clear enough that were he to not give evidence in those proceedings, his chances would not be improved.

There is one other factor which makes it unlikely that he will abscond in the short term, and that is his relationship with his wife. They have not lived together, at least since marriage, having regard to the fact that Mr Calvert has been in prison since that time. It is very likely that he will be in considerable need of her support and perhaps she too of his in another sense. These facts together allow me to form the view that it is unlikely that Mr Calvert will abscond.

Nor do I think that it is likely, having regard to all that has happened to him in the prison system, that he will again, in the time at least until the Supreme Court proceedings, turn to criminal activities. He does have a sum of money presently held by his solicitor which would be available to support him in that time and while one can never be certain, I do not think that the Australian community is in any real risk if Mr Calvert be now released.

Against those two matters must be seen the
overwhelming reasons in favour of Mr Calvert being released.

He has already been in prison for some seven months. The only offence for which he is really there is because he is an

illegal immigrant. He can obviously be of much greater assistance to his legal advisers in respect of his claim against the Department of Corrective Services if he is released from prison.

Further, as Dr Roberts' evidence pointed out, it would take at least a month for occupational assessment; a matter which will also be relevant to the issue of damages in the Supreme Court proceedings. To the extent that there is time available for M r Calvert to obtain some physiotherapy, speech therapy and other therapy which he is unable to obtain presently in Long Bay, I can only say that his release from confinement would be very desirable.

In these circumstances I am of the view that the applicant's application should succeed and that an order should be made that the applicant be released from custody. The parties have prepared short minutes of order in anticipation of the orders which I proposed to make. I note the undertakings which are given by the applicant's solicitors and make the following orders.

1.	Orders 1, 2 and 3 of the Short Minutes.
2.	On the happening of the last to happen of the events

referred to in Order 2 of the Short Minutes, I direct the	solicitor for the applicant to notify my associate
following which the court will notify the appropriate authorities so as to allow the release of the applicant.

1. Either party shall have liberty to apply to the court on 24 hours' notice in the event that the conditions in Order 3 of the Short Minutes are not satisfied or if the applicant does not surrender himself to the custody of the respondent at the end of the period set out in Order 1.

4.    The respondent pay the applicant's costs.

I certify that this and the
preceding ten (10) pages
are a true copy of the Reasons

for Judament herein of his Honour

M r ~ustice	Hill.
Associate:
Counsel and Solicitors	S. Gageler instructed by
for Applicant:	Cashman and Partners
Solicitors	T. Barrett of the Australian
for Respondent:	Government Solicitor
Dates of Hearing:	7 March 1991
Date Judgment Delivered:	7 March 1991