Gray v Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 775
•14 OCTOBER 1992
Re: GARY GRAY
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No Q G115 of 1992
FED No. 775
Immigration
(1992) 16 AAR 361
(1992) 38 FCR 351
(1992) 115 ALR 144
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)
CATCHWORDS
Immigration - deportation order against convicted non-citizen - whether s. 94 of the Migration Act 1958 prevents its implementation before the end of the sentence and during a period of parole - appeal to Administrative Appeals Tribunal against deportation order - whether arguable case that Administrative Appeals Tribunal, in the particular circumstances, should have taken into account, as against the risk of recidivism, a positive potential of the applicant to do considerable good - whether arguable case that Administrative Appeals Tribunal should have considered the harm to Australia's interests if Scotland should see Australia as inappropriately shaking off a migrant, who came here in his minority and developed drug addiction and criminality here, disrupting his rehabilitation and cutting him off from his now Australian family.
Migration Act 1958, ss. 55, 93 and 94
Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga (1992) 34 FCR 169
The Queen v. Carngham (1978) 140 CLR 487
R v. Chi Sun Tsui (1985) 1 NSWLR 308
HEARING
MELBOURNE
#DATE 14:10:1992
Counsel for the respondent: Mr D. Rangiah
Solicitor for the respondent: Australian Government Solicitor
Mr G. Gray appeared in person.
ORDER
The application be dismissed.
There be no order as to costs.
Note: Settlement and entry of orders dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Mr Gray, is the subject of a deportation order, made on 26 June 1991 under s. 55 of the Migration Act 1958, consequent upon his conviction, in Queensland on 26 April 1985, of an offence of stealing with actual violence whilst armed with an offensive weapon (a knife), and sentence to ten years of imprisonment. He had a long history of prior convictions, all of which were related to alcohol and drug addiction starting in his minority. He was born in Scotland on 13 September 1959, leaving with his family some time after his father had died, spending two years in England, and finally arriving in Australia at the age of fourteen. An appeal to the Administrative Appeals Tribunal against the deportation order having failed on 29 July 1992, he appealed to this Court, alleging errors of law. He also applied for, and obtained from Spender J. on 6 August 1992, an order staying the implementation of the deportation order. At the same time, he sought, but was refused, an interlocutory order for his release upon terms, pending the hearing of his appeal, from the custody into which he had been taken pursuant to the order the subject of the stay.
Mr Gray now makes a further interlocutory application for his release, in view of some delay which has occurred in the preparation of appeal books, despite the Department having undertaken to perform that task, and upon some further evidence as to the probability he would comply with any conditions the Court might impose. He also raises, for the first time, a question of the legality of his being held in custody in the circumstances of the case.
A threshold point is taken by the respondent. He claims the decision of Spender J. opposes to the application an absolute bar, by the doctrine of res judicata, by issue estoppel or otherwise. Since Spender J. was plainly dealing with the matter on an interlocutory basis, I reject this submission.
The question of legality arises from the terms of s. 94 of the Migration Act, as applied to the circumstances of this case. That section provides:
94(1) This section applies where a deportation order is made in respect of a person who is, otherwise than under this Act, in the custody of an authority of the Commonwealth, of a State or of a Territory.
(2) The Secretary may give the person written notice:
(a) stating that the deportation order has been made;
(b) setting out particulars of the deportation order; and
(c) stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (in this section called the 'custody transfer time'), the person will be kept in custody under this Act.
(3) Where a person is given notice under subsection (2), this Act (other than subsection 93(1) and (3)) applies in relation to the person as if he or she had been arrested under subsection 93(1) at the custody transfer time."
When the deportation order was served on Mr Gray on 3 July 1991, he was in prison serving his sentence. But on 10 April 1992, his release on parole was approved by the appropriate authorities in Queensland, and on 13 April 1992 he was actually released on parole, subject to conditions involving his residence at Logan House, a drug addiction rehabilitation centre, and submission to its curative programme. He had complied thus far in all respects with the conditions of his parole, and he had progressed to the institution's complete satisfaction through the preliminary stages of the programme, when his appeal to the Administrative Appeals Tribunal was dismissed on 29 July 1992, and he was re-arrested under the deportation order, in reliance on s. 93 of the Migration Act, upon his attending the Department at its request to surrender himself. The dispute concerns the legality of that arrest.
The applicant contends that s. 94 requires the Minister to await the end of his custody before taking any step to carry out the deportation order, and that he was still in the custody of the Queensland prison authorities when on parole. He points to the restraints upon his liberty imposed by the conditions of his parole. He relies on Bantick v. Blunden (1981) 58 FLR 414, where a community work order was regarded by Green C.J. as custodial in nature. He also relies on the terms of the Queensland legislation which, he submits, treats him as still in custody, or at least under detention. See ss. 33, 183 and 184 of the Corrective Services Act 1988 (Queensland).
However, the question is the meaning of "custody", not in the Queensland legislation, but in s. 94 of the Migration Act, where the full expression is "entitled to be released from ... custody". It is true that, for some purposes, the word "custody" has been given an extended sense: see Eatts v. Dawson (1990) 21 FCR 166. But, as an ordinary English word, its appropriate meaning refers to imprisonment, not to release upon terms. In the Oxford English Dictionary, 2nd ed., vol. IV, it is relevantly defined: "The keeping of the officers of justice (for some presumed offence against the law); confinement, imprisonment, durance."
Although the applicant's freedom of action did certainly continue to be restricted by the conditions of his parole, ss. 165 and 175 of the Corrective Services Act show that he had been released from actual custody. The distinction between custody and parole, or the similar concept of conditional liberty upon recognizance, is made clear in a group of cases concerned with rights of appeal in relation to orders allowing or regulating release on parole or recognizance: Griffiths v. The Queen (1977) 137 CLR 293; The Queen v. Carngham (1978) 140 CLR 487; R v. Chi Sun Tsui (1985) 1 NSWLR 308.
In the last of these cases, it did not occur to the Court of Criminal Appeal of New South Wales to question the proposition that a convicted and sentenced person released on parole was liable to be deported under s. 55. Street C.J. (at 310) described the practice:
"When the time arrives for custodial restraints to be relaxed or terminated, so that a prisoner will go free, then the Commonwealth Department intervenes, if the case is thought to require intervention, and puts in motion the deportation machinery."
Despite the earnest argument presented by the applicant, and the undoubted harshness in some respects of the statute as I interpret it (cf. Pochi v. Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 488), my conclusion is that s. 94 does not treat release upon parole as custody. It follows that the applicant's point fails.
Mr Gray then argues that, since the deportation order has been stayed pending the hearing of his appeal, it is not "in force" within the meaning of s. 93(1). But that is to mistake the effect of a stay. Although the Minister must temporarily hold his hand, the order has not ceased to be in force. Its ultimate operation is merely suspended. This point, too, fails, and the arrest was lawful.
I turn to the case put forward for release on discretionary grounds, pending the hearing of the appeal from the decision of the Administrative Appeals Tribunal. The first hurdle for the applicant to surmount here is the showing of a sufficient case in that appeal.
I respectfully agree with the view, to which Spender J. came, that the applicant has shown a serious question to be tried. Mr Gray's case is unusual. What his psychiatrist put to the Tribunal was really that the risk of recidivism, which, though fairly low, was serious because of the seriousness of his offences, was counterbalanced by the prospect that he would make a valuable contribution to Australia as a role model of success in overcoming long established drug dependence and criminality. It was pointed out that such role models are disastrously few, and when they appear they are of great significance for programmes to rehabilitate Australians - not able to be deported - who are derelict in themselves and a danger to society. In the case of the applicant, if his present success in overcoming drug addiction continues, he could be a striking encouragement for others, and for those working to help others, because of his outstanding potential. Although a drop-out from home and school at fifteen (his father had died when he was ten), and drug dependent and often in gaol for most of the next fourteen years, he has since 1988 so shaken off the effects of his addiction, and demonstrated what must be great natural capacity, as to make considerable progress in two university courses, for the degrees of Bachelor of Engineering and Bachelor of Arts, passing consistently in each at distinction and high distinction levels. He has also won the respect and support of a remarkable array of highly qualified experts in the areas of criminology and rehabilitation.
Of course, this is only a part of the picture, and the whole had to be considered by the Tribunal. But it is arguable that the Tribunal, although it quoted from the psychiatrist's report, took into account, when weighing the general community interest as distinct from the various relevant individual hardships involved, only the potential for doing harm (that is, the extent of the risk of recidivism) and not at all the potential for positively doing good, represented by Mr Gray. Certainly, the discussion in his own words, which the Deputy President's reasons contain, is relevantly confined to the danger of relapse into drug taking and consequent crime. The threads of decision are drawn together in para. 59, where reference is made to the well established proposition: the more severe the consequences of a relapse, the lower the acceptable level of risk. Without any mention of the counterbalancing consideration that a potential for considerable good may render some greater level of risk acceptable, the Tribunal says: "In this case, that requires a very minimal risk."
Among other points made in argument by the applicant, who appeared in person and demonstrated unusual ability in doing so, was that the Deputy President had failed to consider the potential for damage to Australia's reputation if it should be seen by Scotland, from where we draw migrants, to be rupturing in mid-course the rehabilitation of a migrant (who came here as a child, and became habituated to drugs and crime here, not in Scotland) by deporting him now, at 33 years of age, to a country in which he will be a stranger and cut off from his now Australian family, and from the support of the programme in which he presently appears to be succeeding. This also seems to be arguable. However, I note that pursuit of the point would require amendment, at some stage, of the Notice of Appeal, which presently raises the question whether a policy consideration in relation to persons who migrated to Australia as minors was taken into account, but not the contention put to me by Mr Gray.
As I find an arguable case has been shown on each of the bases I have mentioned, it is unnecessary to examine other grounds in the Notice of Appeal. The question remains whether, in the circumstances, the discretion I was held to have in Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga (1992) 34 FCR 169 should be exercised in favour of the applicant. I do not think the situation today can be said to be exactly as it was when Spender J. exercised his discretion, and it would be open to me to hold that a different view should be taken now. However, there is no great change. The Tribunal's finding, although there is a real, not negligible, argument that it is wrong, still stands that the applicant's presence in the general Australian community would constitute an unacceptable risk, so that he should be deported under the deportation order. It has not been shown that his remaining in custody pending the hearing would be protracted, nor that it would significantly hamper the preparation of his case. I shall reserve liberty to apply on seven days notice, in case unreasonable delays do develop, but otherwise the application must be dismissed. I have not overlooked the fact that the Queensland correctional authorities, who should be best placed to assess the risk that Mr Gray might not comply with conditions imposed upon him, departed from the common practice of delaying parole to synchronize with the carrying out of deportation orders, and saw fit to release Mr Gray on parole. Although that factor does not persuade me to accede to this application now, it might do so if the hearing of his appeal is not able to proceed with due promptness. Having regard to the importance for the Department of having the position clarified, and the nature of the application, I exercise my discretion as to costs in favour of the applicant, so as to make no order against him, although he has failed.
0
8
0