Gray, G. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 1021

Re: GARY GRAY
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. Q G115 of 1992
FED No. 1021
Number of pages - 7
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J.(1)

CATCHWORDS

Immigration - application for release from detention pending re-hearing by the Administrative Appeals Tribunal of application for review of a deportation order - whether power of Court to order release of the applicant from detention pending the re-hearing - discretionary nature - relevant considerations - whether continued detention will cause hardship - level of risk to the community at large - release conditional upon certain undertakings.

Migration Act 1958 section 93

Administrative Appeals Tribunal Act 1973 section 44(4)

Park Oh Ho v. The Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637.

HEARING

BRISBANE

#DATE 18:12:1992

Counsel for the Applicant: Mr P. Nase

Solicitors for the Applicant: Dianne Soon and Co.

Counsel for the Respondent: Mr Boulton

Solicitors for the Respondent: Australian Government Solicitor.

ORDER

THE COURT ORDERS

1. That the applicant be released from detention pending the

determination by the Administrative Appeals Tribunal of a re-hearing of the application of the applicant for a review of the deportation order made against him on 26 June, 1991.

2. That the respondent do all such things as are necessary to

effect the release of the applicant from detention.

3. That the applicant's release from detention is conditional

upon his undertaking in writing to :-

(a) Reside at Logan House Drug Rehabilitation Centre pending the determination of a re-hearing of his application by the Administrative Appeals Tribunal;

(b) Comply with all lawful directions as to what is required of him at Logan House as a participant in the drug rehabilitation programme;

(c) Undergo such drug tests and to take such medication as may be required as part of the drug rehabilitation programme and as a condition of his residence at Logan House;

(d) Remain at Logan House unless granted leave by the administrators of Logan House and if granted leave, to comply with the conditions of any leave;

(e) Refrain from using or consuming any narcotic drug;

(f) Refrain from committing any criminal offence;

(g) Report by telephone to the Brisbane office of the Department of Immigration, Local Government and Ethnic Affairs each Wednesday between the hours of 9.00 a.m. and noon, save for such Wednesdays as may be public holidays in Queensland, in which case the applicant will report by telephone between the hours of 9.00 a.m. and noon on the next working day.

4. That in the event of a breach of the undertaking by the

applicant he be liable to re-arrest and to be brought before the Court forthwith to show cause why he ought not to be returned to detention.

5. That the release from detention of the applicant is without

prejudice to the respondent or his department exercising the power contained in section 93 of the Migration Act for proper reasons in consequence of any circumstances arising after the date hereof.

JUDGE1

COOPER J. The applicant has applied to be released from detention pending a re-hearing by the Administrative Appeals Tribunal of his application for review of a deportation order. The decision of the Court to allow the applicant's appeal from the decision of the Tribunal affirming the deportation order will necessarily involve further delay.

1. At present the applicant is being held at the Wacol Detention Centre in a high security environment which means that he has limited access to family and support and no access to study materials. He is also incurring a debt to the Commonwealth at the rate of $150.00 per day as the cost of his detention.

2. The purpose of Section 93 of the Migration Act 1958 as amended is to allow detention in custody "during such time as is required for the implementation of the deportation order. It does not authorise the indefinite detention in custody of a person for some ulterior purpose". (Park Oh Ho v. The Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 643).

3. The applicant was at large until the decision of the Administrative Appeals Tribunal affirming the decision of the delegate of the Minister to order deportation was handed down in July, 1992. The applicant in consequence of the decision of the Tribunal voluntarily surrendered himself to officers of the Department and was arrested and placed in custody for the purpose of implementing deportation. The applicant appealed to this Court from the decision of the Administrative Appeals Tribunal and has remained in detention throughout the period of the appeal.

4. The applicant has on two occasions sought to be released from custody pending the determination of the appeal. However, because the Deputy President found that there was an unreasonable risk of recidivism the applications were refused. For reasons which I have outlined in my reasons for allowing the appeal there was no qualitative or quantitative assessment of the risk of recidivism by the Tribunal other than an assessment which concluded that the risk was something more than a minimal risk.

5. Assuming without deciding the point that the protection of the public pending a review of a decision to make a deportation order is a proper purpose for the exercise of the power under section 93 of the Migration Act, the question is whether in the absence of a proceeding in this court relating to the decision to detain the applicant in custody, this court has, having determined the appeal, any power to order the release of the applicant from detention pending the re-hearing by the Tribunal.

6. In my view such a power does exist and is to be found in section 44(4) of the Administrative Appeals Tribunal Act 1973 which provides :-
   

"The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision".

1. The decision of the Court to order that the matter be remitted for re-hearing by the Tribunal necessarily suspends the further operation of the deportation order pending a fresh review by the Administrative Appeals Tribunal. The existence of the deportation order founds the right to detain the applicant in custody. The continuance of his detention in custody is therefore directly effected by the order of the Court made on the determination of the appeal. It follows in my view that the continued detention of the applicant is so bound up with the determination of the original appeal that the Court has the power to make such order as it considers appropriate in relation to the continued detention of the applicant pending the carrying out of the order of this Court by the Administrative Appeals Tribunal.

2. A power to order release in circumstances such as the present case involves the exercise of a discretion. Circumstances relevant to that discretion include the level of risk which the applicant poses to the community at large, the risk that the applicant will abscond if released from detention, any hardship continued detention will cause the applicant and any purpose which would be served by his continued detention.

3. The applicant seeks to be released conditionally upon his residing permanently at Logan House, a drug rehabilitation centre at which he previously resided prior to surrendering himself into custody after the decision of the Administrative Appeals Tribunal in July. The applicant was released on parole by the Queensland Corrective Services Commission on 13 April, 1992. Affidavit material in support of the applicant was given by Robert Keith Hamburger, the Director-General of the Queensland Corrective Services Commission and by one Ian Donald Stewart, the Assistant Deputy Director. That material shows that in coming to that decision the Commission has obviously carefully considered the level of acceptable risk of danger to the community and found that the applicant was not an unacceptable risk. The decision of the Commission was made against a background of there being appropriate supervision and support during the parole period and the prospect of being returned to custody if there was any suggestion that any of the parole conditions had been breached. To release the applicant back to Logan House would not therefore be to release him unsupervised into the general community without any safeguards as to his being returned to custody if the circumstances required it.

4. Giving due weight to the decision and reasoning of the Deputy President that the applicant posed an unacceptable risk of re-offending because that risk was something more than a very minimal risk, I am nevertheless not persuaded that to release the applicant subject to conditions of residence and supervision, would constitute an unacceptable risk to the community. In coming to that view I give considerable weight to the fact that the Corrective Services Commission, through a Regional Community Corrections Board and the Queensland Community Correction Board as the bodies charged with the assessment and determination of suitable applicants for parole have made such an assessment and decision in favour of the applicant prior to the determination of the Administrative Appeals Tribunal and in full knowledge that an appeal against deportation was under consideration.

5. The applicant is suffering hardship in detention as appears from his most recent affidavit. Because he is being held as a detainee for deportation he is being held in the high security area of the Wacol Remand Centre segregated from persons being held on remand for criminal offences. He is allowed visitation rights of only one and a half hours per week and is effectively excluded from using the telephone to ring his family and daughters in South Australia because neither they, nor he, can afford to pay for the cost of the telephone calls. His detention is also accruing a large debt in favour of the Commonwealth now at the rate of $150.00 per day as the cost of his detention which may be levied against him if he fails in his appeal to have the deportation order set aside. It is in his interests that his studies and rehabilitation program be resumed at the earliest possible time and this cannot be done in the environment where he is presently held.

6. The applicant did not abscond on the last occasion when the decision of the Tribunal went against him. At that time he contacted the relevant authorities and surrendered himself into custody in circumstances where he could have absconded and breached his parole conditions if he was so minded.

7. The continued detention of the applicant serves no purpose other than to segregate him from society, and that purpose is not, in my view, a justifiable purpose when all things are considered.

8. Accordingly the court orders :-
   

1. That the applicant be released from detention pending the determination by the Administrative Appeals Tribunal of a re-hearing of the application of the applicant for a review of the deportation order made against him on 26 June, 1991.

2. That the respondent do all such things as are necessary to effect the release of the applicant from detention.

3. That the applicant's release from detention is conditional upon his undertaking in writing to :-

(a) Reside at Logan House Drug Rehabilitation Centre pending the determination of a re-hearing of his application by the Administrative Appeals Tribunal;

(b) Comply with all lawful directions as to what is required of him at Logan House as a participant in the drug rehabilitation programme;

(c) Undergo such drug tests and to take such medication as may be required as part of the drug rehabilitation programme and as a condition of his residence at Logan House;

(d) Remain at Logan House unless granted leave by the administrators of Logan House and if granted leave, to comply with the conditions of any leave;

(e) Refrain from using or consuming any narcotic drug;

(f) Refrain from committing any criminal offence;

(g) Report by telephone to the Brisbane office of the Department of Immigration, Local Government and Ethnic Affairs each Wednesday between the hours of 9.00 a.m. and noon, save for such Wednesdays as may be public holidays in Queensland, in which case the applicant will report by telephone between the hours of 9.00 a.m. and noon on the next working day.

4. That in the event of a breach of the undertaking by the applicant he be liable to re-arrest and to be brought before the Court forthwith to show cause why he ought not to be returned to detention.

5. That the release from detention of the applicant is without prejudice to the respondent or his department exercising the power contained in section 93 of the Migration Act for proper reasons in consequence of any circumstances arising after the date hereof.