Chen, K.L. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 1008

I

l !

1932   !

JUDGMENT NO. ......oo...m......	I .mm,rnI	S	i
L
i l I

IN THE FEDERAL COURT OF AUSTFULIA )

1   ; .'

VICTORIA DISTRICT REGISTRY	1	NO. VG 506 of 1992	i
8
1
GENERAL DIVISION	1	i
!.

BETWEEN: CHEN KANG LONG and

YANG GANG YU

(Applicants) , ,

AND :	HNISTER FOR IMMIGRATION,	i
I
LOCAL GOVERNMENT AND ETFINIC	i
AFFAIRS	L
I

Coram:	Ryan J
Date:	23 December 1992  RECEI!. I .

I

Place:  Melbourne 13 Jl\N 1993

PnlNCICAL

EX TEMPORE REASONS FOR JUDGMENT

I

RYAN J: This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") for review of a decision of a delegate of the respondent Minister directing that the applicants be detained in a prison of the State of Victoria instead of an Immigration Detention Centre.

During that time they were brought before a Magistrate as a	Broadmeadows Police Station from 1 December until 15 December.
prescribed authority on 2 December, 9 December and 16 December, and on each occasion their detention for a further period of seven days was authorised.
On 15 December 1992, a decision was taken by one Dominic Yau.
Mr Yau was an officer of the Department of Immigration Local
Government and Ethnic Affairs ("DILGEA") and a delegate of the Minister for the purposes of s.92(2) of the Migration Act 1958. He has deposed:

The applicants, on 1 December 1992, were arrested and detained as illegal entrants. They absconded from an interview room at: the respondent's King Street offices, leaving jackets and personal belongings behind them. They were re-arrested on the same day in Gardenvale after a search and a chase of one of the applicants. They were then detained in custody at the

"On 15 December 1992 I reassessed the questron of where the Applicants ought be detarned in custody. I was of the opinion that they could no longer be kept at the Broadmeadows Pollce Station and the Applrcants' solicitor had not advised any clear intention on the part of the Applicants. I was of the view that the Immigration Detention Centre at Maribyrnong ("the IDC") was not a surtable place to detain the Applrcants because of their attempted escapes from custody. The IDC is a mrnimum security facrlity. Having formed that opinlon I determrned that the Applicants should be kept in custody at the prison."

Section 92 (2) of the Migration Act provides:

"A person arrested under subsectron 1 or 10 may, subject to this sectron, be kept in the custody of any offrcer or in such other custody as the Minrster or the Secretary d~rects."

By s.11 of the same Act, it is provided:

"For the purposes of this Act, a person shall not be taken to be in custody under this Act, or in the custody of an officer, unless the person is:

(a) berng held:

(i)    in a detention centre established under this Act;

(ii)  in a prrson or remand centre of the Commonwealth, of a State or of a Terrrtory;

(iii) in a police station or watch house; or

(iv)  rn another place approved by the Minlster in writing; or

(b)

in the company of and restrained by:

(i)	an officer; or
(ir)	another person directed by the Secretary to accompany and restrain the person."

It was clearly open to the delegate of the Minister to decide that the applicants should be detained in a state prison rather than in an Immigration Detention Centre. However, the applicants complain that the decision-maker failed to take into account certain provisions of the Procedures Advice Manual issued in December 1989 by DILGEA in relation to the custody of illegal entrants and deportees.

Those provisions, so far as relevant are:

"3.4.2.	When an a r r e s t i s made l a t e i n t h e day and overnight custodv is necessarv, t h e de ta inee should normallv be	- .	-
placed- rn:

an immiqration de ten t ion c e n t r e where one is

availabl;;	o r
a pol ice watch-house	o r lockup where t h e r e rs no

immrgration detention cent re .

3.4.3.	A s f a r a s possible, a person t o be held i n custody f o r a s h o r t period should not be placed i n a prrson except a s
d e t a i l e d rn subsection 3.6.1."

Guideline 3.6.1 is in these terms:

"3.6.1	Where I l l e g a l Entrants and Deportees w ~ t h	Crimrnal Records
a r e t o b e Held
3.6.1.1	An	r l l e g a l en t ran t o r deportee wi th a crrminal record:

f o r vrolence;

f o r sexual a s sau l t ; or

a h i s to ry of mental disturbance;

where prac t icable , should not be placed rn an Immigration

Detentron Centre, but i n a s t a t e prrson o r i n s t i t u t i o n

where t h e r e a r e more adequate and appropr ia te f a c i l r t i e s

f o r custody and treatment."

In my view those guidelines lay down a policy that an illegal entrant or a deportee without a criminal record should not normally be placed in a prison. However, that policy is contemplated as being required to yield to the circumstances which exist when a decision under s.92(2) has to be made in respect of a particular illegal entrant or deportee. Those circumstances may includematters personal to the illegal entrant or deportee other than the possession of a criminal record of the kind specified in guideline 3.6.1.1, such as a demonstrated pre- disposition to escape from detention.

Although the decision-maker did not specifically advert to the guidelines quoted above, I am satisfied that he approached the exercise of his discretion i? a manner consistent with the policy evinced by those guidelines. It may be remembered that guidelines of this kind are not to be elevated to the status of law conferring substantive rights on persons coming within their ambit, and I refer to what Sheppard J, as a member of a Full Court of this Court in Minister for Immigration and Ethnic

Affairs v Conyn 'ham (1986) 68 ALR 441, said at 452-453. That is

not to say that a decision maker can disregard the guidelines or 3 approach his task in a manner totally inconsistent with them. The policy which the guidelines evince is clearly a relevant

consideration within the meaning of S	. 5 ( 2 ) (b) of the AD(JR) Act.
However, since I am not satisfied that there has been a failure	in the present case to take account of the relevant policy, it
follows that paragraph 5(2)(b) has no operation. It also follows, in my view, that the decision is not manifestly unreasonable so as to come within the principles enunciated in
Provincial Picture House Ltd v Wednesbury Corporation [ 19 4 8 ] 1 KB 223.
Even had I not come to the conclusion that I have just indicated on the two substantive grounds which have been argued, I would have refused this application in exercise of the discretion recognised by s.15 of the AD(JR) Act because I have been informed, after inquiries which I requested to be made, that a decision will be made by 31 December 1992, on the future of these applicants.
Accordingly their period of detention at the Melbourne Remand Centre, where they are now in custody, will not be unduly long. As well, M r OrCallaghan of Counsel for the respondent, has assured me after obtaining instructions over the luncheon adjournment, that adequate arrangements can be made for the applicants to have full access to their legal advisers for the purpose of giving them instructions in respect of any further application which they may wish to prosecute in relation to the application to them of the provisions of the Migration Act.
For these reasons, the application is dismissed. However, I
consider that there was, in the circumstances, perhaps an insufficient communication to the applicants and their legal
advisers of the considerations which were adjudged to render inapplicable to them the guidelines to which I have referred. Accordingly, it was not unreasonable forthe applicants and their advisers to make the application which they did to this Court. Since the application has been made expeditiously with a minimum of interlocutory activity I consider it an appropriate exercise of the Court's discretion to make no order as to costs.

I certify that the preceding five (5) pages are a true copy of the ex tempore reasons for judgment herein of his Honour M Justice Ryan.

Associate:	a
Date :

Counsel f	e Applicants: Mr G Ryan
~ o l i c i t o w	the Applicants: Mr J Wong
Counsel for the Respondent:	Mr D J OrCallaghan

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing:	23 December 1992
Date of Judgment:	23 December 1992