Heshmati, J. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 497

COURT OF AUSTRALIA	)
) No. 139 of 1992

VICTORIA DIS-T	REGISTRY	)	No. 147 of 1992
1	No. 176 of 1992
GENERAL DIVISION	1

JAFAR HESHMATI

Applicant

- and -

MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT

AND ETHNIC AFFAIRS

Respondent

-:	Heerey J
m:	29 May 1992

P U C E S Melbourne

EX TEMPORE REASONS FOR JUDCVENT

This is an application by the applicant Jafar Heshmati for release from custody. He has been in custody since he arrived at Tullamarine Airport on 6 September 1989. Since that time he has engaged in substantial administrative and litigious proceedings to secure a legal right to remain in Australia. I shall refer briefly to those proceedings in a moment. The application before me is for a motion in three proceedings which have been fixed for trial on 22 June next, namely VG 139 of 1992, VG 147 of 1992, and VG 176 of 1992.

Airlines flight on 6 September 1989 he was found to be travelling	with a false passport and was arrested by an authorised officer
under S. 36A( 3) of the Miaration Act 1958. He made an application for refugee status on 12 September 1989, and a series of decisions of delegates of the Minister rejected that application, the one that became the subject of litigation being a decision by Mr A.C. Harris on 20 April 1990.
Mr Heshmati then commenced proceedings VG 149 of 1990 under the Administrative Decisions (Judicial Review) Act 1977, and in the course of those proceedings he made an application for release similar to the one which is before me. This was heard by Lockhart J on 18 October 1990. His Honour dismissed the application. In the course of giving his reasons for that decision his Honour said:

Mr Heshmati is a citizen of Iran, having been born in that

country on 23 October 1961. When he arrived on a Singapore

"So far as the evidence goes, the applicant is unmarried and has no relatives in Australia. He applied for refugee status on 12 September 1989, and his application was later refused. He was interviewed in relation to his application for refugee status on 15 and 27 September 1989, and he signed a declaration in relation to the truth of the interview. The evidence before the court suggests that certain material contents of that declaration were untrue."

His Honour referred to evidence put on behalf of Mr Heshmati to	the effect that he had been befriended by an Iranian resident of
this country who was the president of an Iranian society, and this gentleman, M r Bozoargad, gave evidence that if Mr Heshmati was released from custody, he and his wife would take an active role in ensuring that the movements of the applicant were monitored and that he observed any conditions imposed by the court. Mr Bozoargad offered his own house as a place of abode for the applicant.
Lockhart J referred to evidence of M r Heshmati being involved in a degree of regrettable behaviour at the detention centre on more than one occasion since his confinement. Also on two occasions he commenced a hunger strike which lasted in each case for a considerable time.
His Honour concluded:

"The critical matters include, in my view, whether the court can be satisfied that the applicant would not seek to abscond or to be absorbed into the Australian community, and that he would observe any conditions imposed upon him by the court in ordering his release from custody and any other matters which the court may consider relevant in the case.

Having heard all the evidence on the motion, I am not satisfied at this stage that the applicant can be safely released from his present custody. I do not say that he will be a danger to the community, but I am simply not satisfied that he would not be. I am not satisfied that in circumstances which excited or angered the applicant he might not act for a time uncontrollably or irrationally and that seems to me to, in those circumstances, perhaps place him in an unfair position if he is released from custody and perhaps also place Mr Bozoargad and his wife and family in a position that is not entirely desirable, despite the fact that Mr Bozoargad said he is prepared to have the applicant in his home.

Lockhart J later heard the substantive application and on	22 November 1990 he gave a decision rejecting the application.
His Honour made some quite critical remarks about the credibility of Mr Heshmati. He said:

"This is a case where at the heart of the relevant decisions under attack was the finding by the relevant decision maker that the credibility of the applicant was in

grave doubt. This finding is not only supportable on the evidence, but was, to my mind, manifestly justifiable. The applicant was given a number of opportunities to give a truthful account of his case and circumstances, in particular his activities in Iran and the course of travel from Iran to Australia, but he failed to do so and gave various versions which conflicted in substantial respects from each other, and he failed to explain satisfactorily the numerous improbabilities, discrepancies and inconsistencies in his story and the reason for giving those versions." .

Mr Heshmati appealed to the Full Court. The decision is reported at (1991) 31 FCR 123. With one exception, the Full Court upheld the decision of Lockhart J. There was nothing said by the Full Court to contradict or qualify the criticism Lockhart J had made of Mr Heshmati's credibility.

The one respect in which Mr Heshmati had some success on this appeal was in relation to a letter which he had sent on 6 December 1989 to the Iranian Embassy. The decision maker,

M r Harris, had treated that letter as having been written with

the sole or dominant purpose of enhancing Mr Heshmati's claim to

treatment as a refugee. The Full Court considered that there had been a breach of the rules of natural justice in not giving Mr Heshmati an opportunity to put submissions opposing any adverse inference being drawn in respect of that letter.

In the event the order of the Full Court was that:

"The respondent refrain from acting further upon the said decision of 17 September 1990 until (a) the appellant has been given the opportunity to make in writing, whether under his own hand or that of his solicitors, such representations as he may be advised upon the question of whether the letter of 6 December 1989 was written with the sole or dominant purpose of enhancing his claim to treatment as a refugee "sur place", and (b) those representations have been considered by the respondent or his delegate, and the appellant or his solicitors have been notified in writing of the result of that reconsideration."

The decision of the Full Court was given on 21 August 1991. It was not until 2 March 1992 that Mr Heshmati's solicitors made the submission contemplated by the Full Court's order. A relatively small part of that period of delay may be accounted for by the. fact that on 11 September 1991 the Department lodged an application for special leave to appeal to the High Court, an application which was discontinued on 8 November 1991.

Nevertheless, the delay that did occur indicates, in my view, a disinclination on the part of Mr Heshmati to push forward his case on the merits and rather to concentrate, as he and/or his solicitors did in the meantime, on procedural warfare.

Mr Hesmati's submission, having been received on 2 March 1992, was dealt with quite promptly by the Department and on 20 March 1992 the Minister's delegate, MS E. Lloyd, provided a written decision as to the letter in these terms:-

"I find that the applicant wrote the letter of 6 December

1989 with the sole or dominant purpose of enhancing his

claim for acceptance as a refugee."

This decision was supported by detailed reasons. A part of the	present proceedings involve an attack on that decision under the
AD(JR) Act on the basis that MS Lloyd was wrong in not taking
into account a letter from Mr Heshmati's former solicitors which stated that they did not believe he had written a letter with the alleged mala fide purpose.
There was substantial argument before me as to the merits of
Mr Heshmati's present claims and his prospects of success. This
is, of course, a relevant matter in the exercise of the discretion to release a person in Mr Heshmati's position, but I think, in the circumstances, it is unnecessary for me to express any view. I say that because the trial date is only about three weeks away and it seems particularly undesirable that I should in any way hamper the proper conduct of the proceedings before the trial judge.
And, in any case, I am prepared to assume in favour of Mr Heshmati that he has raised a triable issue on at least some of the matters raised in the current proceedings. I make this assumption, because it seems to me that there are in any case discretionary factors which weigh strongly against the grant of the relief sought and are sufficient to warrant my dismissing the present application.
The appropriate criteria to be applied on an application of this nature have now been settled by the decision of the Full Court in ,Minister for Immiaration. Local Government and Ethnic Affairs
v Msilanaa (1992) 105 ALR 301. At page 307 Beaumont J, with whom Black CJ and Burchett J agreed, quoted with approval a decision
from an earlier unreported decision of Lockhart J in Habal v Minister for Immiaration. Local Government and Ethnic Affairs, 12 September 1989. This passage is as follows:

"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; secondly, that he will observe any conditions including conditions as to reporting and notifying changes of address and the like which the court may impose in ordering his release from custody; and thirdly, as to any other matters which the court may consider relevant to the circumstances of the particular

case. "

It is accepted that an applicant does not have to show exceptional circumstances, although matters relating to the purpose of the Migration Act are relevant.

I should also add that I agree with the comment of counsel for

the respondents in the present case that the position of somebody like Mr Heshmati, who is not even a prohibited non-citizen since he is deemed not to have entered Australia, is a factor which weighs against the exercise of the discretion.

I consider that considerable weight should be given to the quite adverse comments made by Lockhart J about the applicant, both in the application for release and, more importantly, after a full hearing. In a case of this nature the credibility that stands behind an applicant's promises to the court is of critical importance and the onus is on an applicant to satisfy a court that confidence can reasonably be reposed in such promises. The

that state of satisfaction.	history of Mr Heshmati, unfortunately, does not allow me to reach	I also take into account the long period of &lay. I do not, of
course, deprecate the seriousness of somebody being kept in
custody against their will, and I do not say that a few weeks
more will make no difference. But the fact is that Mz Heshmati .
has been in custody for some two and a half years, has engaged in substantial efforts to overcome the ordinary consequence that would follow from arriving in this country with false migration papers, has made no application for release since the unsuccessful application to Lockhart J in October 1990, and is now faced with a trial three weeks off at which, to put it at its lowest, there is a distinct possibility that his efforts to remain in this country will finally prove to be unsuccessful. The end of his litigation road is in sight.
I am not satisfied that there is not a real risk in all the
circumstances that he would not disappear, particularly giventhe undoubted tenacity with which he has resisted any return to his former country.
Perhaps I should make it clear, unless there be any doubt about the matter, that I do not doubt for a moment the good intentions of the citizens who have befriended him and who have sworn affidavits indicating their preparedness to help him. But ultimately it is a matter for the applicant to show that the discretion should be exercised in his favour and, for the reasons
application will be dismissed. I have mentioned, I am not prepared to so exercise it. The
I will make an order that the applicant pay the respondent's costs of this motion.
As to VG 176 of 1992, I will order that there be a. speedy hearing
of that matter, particularly bearing in mind that a decision is
required some time prior to the trial due to commence on 22 June.

I certify that this and the

preceding (8) eight pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Counsel for the applicant:  Mr B A Keon-Cohen

Solicitor for the applicant: Erskine H Rodan

Counsel for the respondent:	Mr R S Tracey QC with Mr A L
Cavanough

Solicitor for the respondent: Australian Government Solicitor