Fardsavar, M. v Minister for Immigration & Ethnic Affairs

[1986] FCA 147

NOT INTENDED FOR GENERAL DISTRIBUTION

Admlnistratlve law - application by prohibited non-cltizen for

release from custody pendlnu renew of deportation order - policy

of Miuratlon Act - applicant detamed in maximum securlty prison - effect upon medical condltlon of applicant - whether exceptlonal clrcumstances - risk to appllcant's estranued wife and her family

If applicant released

Aainistratlve Declsions (Judicial Review) Act 1977	ss 5.13
Misration Act 1958 s.27

MAJID FARDSAVAR v. MINISTER FOR IMMIGRATION	A D EI'HNIC AFFAIRS
No. WA G18 of 1986
TOOHEY J.
PERTH
25 MARCH 1986

IN THE FEDERAL COURT J

OF AUSTFALIA )

WESTERN AUSTRALIA I No. WA G18 of 1986

DISTRICT REGISTRY )

GENERAL	DIVISION	l
B E T W E E N ; MAJID FARDSAVAR

Applxant

and

MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

C m : TOOHEY J.

25 March 1986

EX TEMPORE REASONS FOR JUDGMENT

There is only one matter before the court today and that

is whether Mr. Fardsavar should be released from custody pending

the hearing of his application to review the minister's decision

that he be deported as a prohibited non-citizen.

He became a prohibited non-citizen when his temporary

entry permit expired. He is deemed by reason of s . 2 7 of the

Miqration Act 1958 to be uullty of an offence and, as a

consequence, he is liable to arrest and detention.

In two decisions to whlch both counsel have referred -

Piroulu v. Minister for Immiuration and Ethnic Affairs (1981) 4

A.L.R. 323 and Unluqenc v. Minister for Immiqratlon and Ethnic

Affalrs (1982) 43 A.L.R. 569 - the court has made clear the policy

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of the Miaratlon Act. That pol~cy is that prohlblted non-citlzens

should not remaln at ldrcre In the communlty pendma deportatlon.

except In exceptlonal clrcumstances. The situatlon is not

analouous to that of a person who 1 s faclnu a charge In the

courts, who has a presumption of lnnocence and therefore comes

before the court with some entitlement to bail.

Now. Mr. Stokes, counsel for the applicant. has

suggested that both those decisions have been overtaken by the

recent decision of the High Court in - K v. Minister for

Immiuratlon and Ethnic Affairs (1985) 62 A.L.R. 321. In my view

that is not so on the matters with which this application is

presently concerned. I accept that there are some factual

differences between the two earlier cases and this one. But the

expression of the policy of the Miuration Act and the need to show

exceptional circumstances, or the like, before someone can be

released from custody pendinu deportation, are still apposite.

Mr. Fardsavar has been in custody since 21 February this

pear and he was transferred from the deportation centre to

Fremantle prison on 24 February. The officer in charge of the detention centre, Mr. Puuh, uave reasons for his decision to

transfer the appllcant, and those reasons have not been

challenued. The cholce now is said to be between Mr. Fardsavar’s

continued detention in Fremantle and his release on conditions.

The justification offered by his counsel for hls release

rests, I think, malnly on Mr. Fardsavar’s state of health - a

condltion whlch I understand to be laruely, If not entirely,

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psycholoulcal. Mr. Fardsavar has complalned of the condltlons In

whlch he 1 s presentlp held; of difflcultles In uettlnu suitable

food; and	of anxleties produced bp the actlons of other prisoners.
In so far as he requlres medlcation. there seems to be

no problem wlth his detention m Fremantle orison. Indeed, in

this respect he is better off wlth ready access to medlcal advice

than if he were released.

Having reaard to the evidence of Dr. Bockman I am not

persuaded that an appropriate diet cannot be provided in prlson.

The position. auain as I understand It from the evldence. is that

it is advisable for Mr. Fardsavar to avoid certain foods	.	It is
not a situation In which he requires special foods.

While I am not persuaded that there has been a serious

threat auainst his life while In prison, I accept that he is

concerned at the situation In whlch he is placed and that the

situation 1 s causinu him to be depressed. Dr. Toussaint, a

psychiatrist called on behalf of the applicant, was of the opinion

that he should be transferred from prison to a hospital to

continue treatment until the matter of his deportation 1 s

finalized. Unfortunately. that is not a practicable step. The matter has been put to the court as a cholce between prison and

release, thouah it seems to me that Mr. Fardsavar's return to the

detentlon centre is an option to whlch further consideration miyht

be qiven. As to the preparation of his case for the hearinu of

the substantive application, I am not persuaded that proper

attention cannot be uiven to that matter while he is in prison,

4.

partlcularlv when the alternatlve sucrqested to the court is that

he be releasea to enable hlm to uo to Melbourne.

Now, aqalnst that concern for Mr. Fardsavar’s welfare

there are several considerations that must be taken Into account.

The circumstances of his marriaue to Vida Fadsavar need not be

explored here. Certainly, there are unusual aspects of the

marriaae, even in terms of the ethnic backaround of those

involved. But what is a matter for concern are the threats made

bp Mr. Fardsavar against his wife and her family. Whatever the

precise circumstances in whlch Mrs. Fardsavar had an abortion. I

am satisfied that Mr. Fardsavar made threats aqainst her at the

time and that he dld so thereafter.

No challenue was made to the evidence of Mr. Behjat.

Mrs. Fardsavar’s father, of threats to kill made in a telephone

call by the applicant from the detention centre. I do not think

that Mrs. Fardsavar and her family should be put at risk.

I appreciate that he conditions upon which Mr.

Fardsavar’s release is sought include no contact with his wife

or

her family; his residence in Melbourne until the hearing; and

reporting conditions, touether with sureties. But these are not

matters that can be completely controlled and I am satisfied that

there are risks involved to which Mrs. Fardsavar and her family

ouaht not to be exposed.

The startina polnt in this matter is the need for the

applicant to justify his release from custody. Now, whether

I . .

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clrcumstances must be excewtlonal - as some of the cases have sald

- or whether the standard 1 s somewhat lower, I am satlsfled that

in all the circumstances no adequate case has been made out for

Mr. Fardsavar’s release from custody.

Criticisms have been made of hls conduct In relatlon to

the Department of Immiuration. but on the evidence presently

available I do not reuard that, of itself, as a stumblinu block to

his release. Equally, thouuh I have some doubts about his

truthfulness In regard to what he told officers of the department,

it may be that with adequate sureties and stringent reporting

conditions there is a reasonable prospect that he would appear on

the hearina of the application.

But the fact is that he must make good his case for a

release and. in my view, he has not done so. In particular, I

consider that his release is likely to auuravate an already

volatile situation between him and hls wife and her family. I

propose. therefore, that the appllcation for release be dismissed.

I would only add this. First, it seems to me that the

authorlties should ive further consideration the t

practicability of his returninu to the detention centre pending

the hearing of his application. I appreciate that there are

problems. but there are also problems personal to him while he is

in Fremantle prison. And I have no doubt that the preparation of

his case would be better asslsted by his being in the deportation

centre as against Fremantle prison. I can do no more than draw

that matter to the attention of the relevant authorities.

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The second matter 1 s this. The court wlll asslst in

providinu an earlv hearinu date for the substantlve application.

If counsel wish me to ulve dlrections with a view to brinuinu on

the hearinq, I am prepared to do so, elther forthwith or at some

time counsel may think appropriate.

But he formal order of the court is that he

application for release from custody is dismissed.

I certify that this and the preceding

five pages are a true copy of the

ex tempore reasons for judgment herein

of his Honour Mr. Justice Toohey.

.