Habal, N.A. v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 724

LIMITED DISTRIBUTION

JUDGMENT No. xCi.?...Z?-

CATCHWORDS

ADMINISTRATIVE LAW - immigration - application for release

from custody pending determination of proceedings under

administrative Decisions (Judicial Review) Act 1977 - nature of onus' imposed on prohibited non-citizen - seeking release from custody - test to be applied.

Administrative Decisions (Judicial Review) Act 1977

Miaration Act 1958

NAIEM AZIZ HABAL v HINISTERFOR IMMIGRATION LOCAL GOVERNMENT

W D ETHNIC AFFAIRS

NG518 of 1989

LOCKHART J.
SYDNEY
12 SEPTEMBER 1989

L I M I T E D D I S T R I B U T I O N

JN	T H E	F E D E R A L	COURT	O F A U S T R A L I A	)
1

NEW SOU	T H	WALES	D I S T R I C T R E G I S T R Y	)	No.	N G S 1 8	of	1 9 8 9
1

G E N E R A L D I V I S I O N )

BETWEEN:  B A I E M A Z I Z HABAL

A p p l i c a n t

AND:  M I N I S T E R O F I M M I G R A T I O N

L O C A L	GOVERNMENT	AND	E T H N I C
A F F A I R S

R e s p o n d e n t

J U D G E	MAKING	ORDERS:	LOCKHART	J.
DATE	O R D E R S	MADE:	12 S E P T E M B E R	1 9 8 9

WHERE O R D E R S MADE: SYDNEY

M I N U T E S O F ORDER

T H E COURT O R D E R S THAT;

1.	T h e m o t i o n be	d i s m i s s e d ;
2.
m o t i o n .

The applicant pay t h e costs of t h e respondent of t h e

NOTE:  S e t t l e m e n t and e n t r y of orders is dealt w i t h i n O r d e r 36

of t h e Federal C o u r t R u l e s .

LIMITED DISTRIBUTION

I N THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGIS TRY ) No. NG518 of 1989

)

GENERAL DIVISION )

BETWEEN:  B A I E M A Z I Z HABAL

Applicant

AND- L	MINISTER OF I M M I G R A T I O N
hOCAL CQVERNMENT AND ETHNIC AFFAIRS

Respondent

1 2 September 1989

REASONS FOR JUDGMENT.

LOCKHART L* . .

This is an motion f o r re lease from custody pending t h e

determination of t h e applicant 's applicat ion f o r judicial

review under t h e Administrative Decisions Jud i c i a l Review A c t

1977 ( " the Judicial	Review Act")
The applicant sought re lease from custody i n t h i s matter before from another Judge of t h i s Court who gave h i s reasons f o r judgment on Tuesday, 22 August l a s t , dismissing t h e

applicat ion with costs . The re levant f a c t s as t hey stood a t

t h e t i m e h i s Honour looked a t t h e matter a r e fu l l y set out i n h i s Honour's reasons f o r judgment and need no restatement by m e save insofa r a s it is e s sen t i a l t h a t I r e f e r t o them f o r p resen t purposes which I sha l l now do.

Mr Habal is a prohibited non-citizen. On 11 July 1989 the Minister for Immigration, Local Government and Ethnic Affairs ordered that he be deported and on 27 July the applicant sought a review of that decision under the Judicial Review Act.

The applicant was arrested on 19 June 1989 and since then has been held in detention at the Villawood Detention Centre. The present application seeks release from custody pending the determination of the application for review which had not been fixed at the time Hill J. heard the matter but has now, I am informed by the legal representatives of the parties, been fixed in this Court for 25 October 1989, a month and a half away.

His Honour in the course of reviewing the facts in his

judgment of 22 August last said in the concluding passages of

his reasons for judgment that he considered that what he

described as a history of broken undertakings on the part of	the applicant as to employment, enrolment in education,
retention of air line tickets, obligations to notify changes of address and obtaining social security benefits did not concern him as significantly as an assertion made by the
applicant's wife uncontradicted by any evidence that the applicant was desperate to remain in Australia and was about to try to disappear.
His Honour held on the ordinary civil standard of proof that he was not satisfied that there is no or no significant danger of the applicants seeking to merge in the community and to become absorbed in it, rather the evidence he said was to the contrary. He also said that he was satisfied the applicant would not be prejudiced in pursuing his legal rights by remaining in custody.
Since the matter was heard by Hill J and accompanying the present application for release from custody the applicant has sworn an af fidavit which was filed on 1 September last in this Court. I need not refer to all the contents of that affidavit. It is sufficient to say that a number of the matters which his Honour noted were not the subject of any
evidence on the part of the applicant have now been made the subject of evidence, though not all of the matters to which
his Honour referred as lacking evidence have been adverted to in the applicant's affidavit, some no doubt because they are not matters with which he could himself deal in a probative form.
Included in the applicant's affidavit is a denial which he has reiterated in the witness box today of violence towards his wife during the course of their somewhat brief marital relationship. In addition, the applicant says that if he is released from custody he will be able to live with what he describes as "my very close friend Barbara Hayward and her parents", and he annexes to his affidavit two letters, one from Ms. Barbara A. Hayward and one from Mrs J.M. Hayward, whom I assume from the evidence is the mother of Barbara Hayward. In those two letters or statements the two ladies expressed that they wished to confirm that the relevant members of the family are prepared to provide accommodation for the applicant at their home in Punchbowl and to assist him to comply with any conditions imposed upon his release should the Court see fit to release the applicant from the Villawood Detention Centre.
The relevant principles have been mentioned in various cases, and I will for present purposes simply refer to the judgment of Mason J, as his Honour then was, in R. v m Binister for Immiaration and Ethnic Affairs. ex Darte Ratu, 14
ALR 317 at 331 and 137 CLR at 416 at 478 and 479, and to the
judgment of Northrop J in Piroalu v
and Ethnic Affairs (1981) 55 FLR 99, (1981) 4 ALD 323, and my
own judgment in ynluaenic v Ethnic Affairs (1982) 43 ALR 569.
There is one particular matter which requires reference in my decision in Ynluaenic to which I shall now turn. At the
foot of page 573 and the top of page 574 I said this:

I agree with the view expressed by Northrop J in

piroalq: 'The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the Minister or an authorised officer exercises his discretion in accordance with s 39

... in my opinion there is a real danger that

the applicant, if released from custody, would merge in the community and seek to become absorbed into the community. I consider this type of case to be very different from the normal 'bail' case. In those cases a person has been arrested and charged with a criminal offence but has not been convicted. He is being held in custody pending trial and, prima facie, is entitled to bail. In the present case the applicant has not been charged with any criminal offence. He is a prohibited immigrant and under the Migration Act prima facie should be held in custody. Time limits are imposed by s 38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s 39 Migration Act. The court should not interfere with that policy except in exceptional circumstances."

I have reconsidered my agreement with the observations of Northrop J in the last sentence of the passage quoted.	If
proving exceptional circumstances before he may obtain an	it means that a prohibited non-citizen bears the onus of
order releasing him from custody pending his deportation or hearing of his application for Judicial Review under the Judicial Review Act, then it goes too far and I withdraw my agreement with it, otherwise I confirm my agreement with the passage quoted.
A prohibited non-citizen is, as is mentioned in the same passage in Northrop J.'s judgment in piroalu, in a different position to a person charged with a criminal offence seeking bail pending trial. Such a person is presumed innocent until he is proved guilty at his trial but the prohibited non-citizen bears that status and is therefore liable to be deported indeed a deportation order may, as it has in the present case, already have been made against him.
As I pointed out in ynluaenic, a prohibited immigrant, now a prohibited non-citizen, remains in Australia without lawful authority, is liable to arrest and detention and has no right to remain in this country. He is an illegal immigrant, see Queen v porbes ex Darte Kwok Kwan Lee (1971) 124 CLR 168.
If the prohibited non-citizen seeks to challenge his status as a prohibited non-citizen and orders including deportation orders made against him he bears the civil onus of
convincing this Court that he should be released from custody
pending the hearing of his proceeding. The commencing point
for the Court must however be that the applicant is, unless and until this Court says otherwise, a prohibited non-citizen and liable to all the consequences that flow therefrom.
In my opinion a prohibited non-citizen ought not to be released from custody unless he satisfies the Court first that it is unlikely that he will seek to be absorbed into the
community; second, t h a t he w i l l observe any conditions including conditions a s t o report ing and notifying changes of address and t h e l i k e which t h e Court may impose in ordering h i s r e lease from custody; and th i rd , a s t o any o the r matters which t h e Court may consider relevant i n t h e circumstances of
t h e pa r t i cu l a r case.

Although ce r t a in of t h e breaches of undertakings given

by t h e applicant have been a t l e a s t i n p a r t explained i n t h e

f r e s h evidence t h a t is before t h e Court, it is still, i n my

view, establ ished by t h e evidence t h a t t h e applicant has

broken ce r ta in undertakings, i n pa r t i cu l a r t h e following:

F i r s t , t h e undertaking t h a t w a s given before he l e f t h i s

country of o r ig in f o r Austral ia when seeking t h e r equ i s i t e

permits from Australian immigration au thor i t i e s t h a t h e would,

i f	granted	a	v i s i t o r visa,	t r a v e l t o Austral ia	on	a	fu l ly paid
r e t u r n	t i c k e t	f o r	t r a v e l t o a	des t ina t ion	beyond	Austral ia	and

produce t h a t t i c k e t on a r r i v a l i n Austral ia and w e would

r e t a i n it whilst i n Australia. The breach of t h i s undertaking

r e l a t e s t o t h e re tent ion of t h e a i r l i n e t i c k e t in question

which i n t u r n is closely re la ted a s M r Barlow f o r t h e

appl icant correc t ly s t a t e s , t o h i s overstaying of t h e v i s i t

permitted by t h e v i s a upon which he entered Austral ia .

There is a l so a t l e a s t , it seems t o m e , one breach of

t h e undertaking t o not ify changes of address but i n t h e

circumstances of this case I do not regard it as important as
certain of the other breaches of undertakings.

An undertaking was also given by the applicant that he would not undertake employment or any formal studies whilst in Australia. It is plain that he has obtained employment in Australia in breach of the undertaking. He also appears to have taken some course in study to learn the English language and although that is perhaps a technical breach of undertaking, I do not propose for present purposes to place any weight upon it at all.

The applicant has no family ties in Australia save the formal tie with his wife from whom he is now separated. There is some evidence of his having a close relationship with MS Hayward but the evidence is not very clear with respect to that.

I have seen the applicant in the witness box as well as having read the affidavit evidence and exhibits in the case. I take into account the fact that the matter has been specially fixed for hearing for 25 October, some month and a half away. I also take into account the fact that subject to the discretion of the trial judge the probability is that if the applicant is retained in custody it would extend, at least to some extent, beyond 25 October but that, of course, would be a matter under the control of the trial judge.

I apply t h e ordinary c i v i l s tandard of proof along t h e

l i n e s mentioned by m e and by doing t h a t I have come t o t h e conclusion t h a t t h e appl icant has not persuaded m e t h a t t h e r e

is no o r no s igni f icant danger of h i s seeking t o merge i n t o

t h e Australian community and t o become absorbed i n it. I n t hose circumstances, f o r t h e reasons I have given, I decl ine t o o r d e r t h a t t h e applicant be released from detent ion a t t h e

Villawood	Detention	Centre.	Accordingly,	t h e	motion	is
dismissed.

I order t h e applicant t o pay t h e cos t s of t h e respondent

of t h e motion.

I c e r t i f y t h a t t h i s and t h e preceding

e ight (8) pages a r e a t r u e copy of t h e

reasons f o r judgment here in of t h e

Honourable M r . J u s t i c e Lockhart.

Dated: 12 September 1989

Sol ic i to r s	f o r Applicant:	Barlow and Co.
Counsel f o r Respondent:	M i s s R.M.	Henderson

So l ic i to r s f o r Respondent: Australian Government
Sol ic i tor

Date of Hearing:	12 September 1989
Date of Judgment:	12 September 1989