Kaur Bonicelli, R. v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 201

JlJDGMENT No. ..... /..?0.:._

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	V. NO. G.95 of 1989
)
GENERAL DIVISION	)
BETWEEN:

RANJIT KAUR-BONICELLI

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFAIRS

Respondent

COURT:	NORTHROP J.
DATE :	26 APRIL 1990  2 1 M A Y 1990

PLACE: MELBOURNE

REGISTRY

EX-TEMPORE REASONS FOR JUDGMENT

On 11 April 1990 I gave oral reasons in relation to the motion then before the Court which sought the release of the applicant from custody pendlng the hearing and

deportee from custody and adjourned the further hearing of	the motion and gave directions as to material to be put
before the Court in relation to any decision made or to be made under sub-section 93(9) of the Migration Act. This is the continued hearing of that motion.
Thls morning there have been tendered as evidence a number of documents, including a decision dated 24 April 1990, by whlch an officer of the Department decided not to exerclse the discretion vested by sub-section 93(9) of the Migratlon Act 1958 to release the appllcant. There was also filed a copy of the statement of reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the question of the refusal to grant resident status to the applicant, a statement of reasons pursuant to s.13 of the Judicial Review Act in relation to the decision to arrest the applicant under 5.92 of the Migration Act and a statement of reasons under s.13 of the Judicial Revlew Act in relation to the decision not to release the appllcant under sub-sectlon 93(9) of the Nlgratlon Act.
At the present time there is no application before the Court seeking the review of the decision under
ago, but in my opinion that does not affect the power of this sub-section 93(9) of the Migration Act referred to a moment
Court to consider whether an order should be made directing the release of the applicant pending the hearing and determlnatlon of the present applications before the Court. Counsel for the applicant has indicated that in all probablllty a fresh application will be filed seeking to review the declsion made under sub-section 93(9) but it is sufficient for me to say that at the present time, even if such an application was before me, I would proceed in the same way and come to the same conclusion for the same reasons irrespective of whether the application was made or not.
I refer to what was said in my earlier reasons and I now have before me the statement of the reasons for the refusal to grant release from custody. The relevant parts of the reasons given are set out in that document and reference 1s made to the medical evidence which was before me at the earller hearing. I set out the whole of paragraph 8 of the statement of reasons:-

determination of the application as amended. In those

reasons I expressed the view that the Court had power to determine the motion even in the absence of a declsion not to release the applicant under sub-sectlon 93(9) of the Migration Act 1958. I also made reference to the factors to be taken into account in considering whether to release a

"8. I had regard to the following documents

submitted in support of MS Kaurrs application:

report from consultant psychiatrist Dr Yves S Christopher in which it is asserted that the applicant exhibited certaln phsylcal and mental symptoms of ill-health and that they were "compatible and consistent wlth an anxiety state enhanced by her present

predication and concerns for her future".

In evaluating thls report, I considered that thls assessment of MS Kaur's condition is not supported by Dr Samararantna, doctor on call to the Immigration Detention Centre, who comments, in

part, in a report dated 2 April 1990, that "the	applicant is a normal healthy 20 year old person".
I also had regard to a report from Dr Melvanl,
Vlslting Medical Officer, Immlgratlon Detention Centre, who examined MS Kaur on 31 March and 1 April 1990, following an adverse reaction she had had the previous day to medication prescribed for a gastric infection. He was of the opinion that "thls young lady is fit and healthy" and she had completely recovered from the adverse reaction to the prescribed medication without any residual effects. I therefore concluded that the applicant's release was not warranted on thls ground.

affidavit from the applicant's solicitor, Mr

Noor Dean, that the applicant "suffers anxiety, dlstress and fear being detained at Maribyrnong, and wishes to be released".

In considering thls assertion, I had in mind that the applicant is permitted almost unrestricted contact with her legal representatives and to receive visitors for ten hours per day. She also has access to medical services, telephone and a variety of recreational facilities. She has members of her immediate family in Australia who can visit her at any time. While MS Kaurrs detention may cause her a degree of anxiety and distress, I did not consider that this was any more than what is experienced by most other detainees and I concluded that her release was not warranted on this ground."

For present purposes it is sufficient to say that insofar as the applicant suffered a reaction to medication received by her, that has been overcome. There is a conflict of evidence as to the effect on the applicant of being in custody. In all the circumstances it was reasonable for the officer to consider the various views and to come to the conclusion that the medical grounds were not sufficient to justify any release from custody.

The statement of reasons for decision contain the

following two paragraphs:-

should be released from custody, wlth or wlthout	"9. In deciding whether or not the applicant
conditions, I regarded the following considerations, in summary, to be the most significant:

the applicant has not abided by assurances she gave the department prlor to obtaining her visa overseas.

the applicant was involved in an active deception designed to circumvent migration law and policy and secure permanent residence for herself in that she attempted to mislead the department in the matter of her relationship with Mr Bonicelli.

a deportation order came into force against
her on 29 March 1990.

10. After weighlng these considerations, I could not with any confidence conclude that MS Kaur would abide by any conditions imposed in relatlon to release form custody, including a bond. I therefore decided that Ranjit Kaur should remain in section 93 custody pending the outcome of her

appeal. "

During the course of submissions objection was taken to statements as to what were the assurances given by the applicant in relation to her obtaining her vlsa overseas and I ruled that in the absence of evldence I would not have regard to any such conditions that might have been imposed. There is no evidence on those matters and I do not rely upon them at all. The material presently before the Court, including the s.13 reasons for the decision to refuse to release from custody must have some material effect on the Court. The applicatlon must be determined in accordance with the law as it now stands.

under the provisions of the Principal Act, on an

application for resident status and a failure of such

applicatlon and a deportation order having been made, any	stay of the deportation order and any order for the release
of a deportee from custody were based upon, among other things, a consideration of whether there was what was
described as a serious Issue to be tried as to the likelihood
of success or otherwise of the challenge to the deportation order and the decision to refuse to grant resident status. This involved the Court examining to some extent the substance of the issues raised, formlng a view as to the strength of those Issues both for and against the applicant and, in the light of the view so formed, of determining whether the applicant should be released from custody or not. It followed, in accordance with the normal principles to be applied, that, the stronger the case of the likelihood of success of the applicant on the substantive issue, the more likely it was that release would be ordered and it was in this context that views were expressed as to the nature of a person being in custody after a deportation order had been made. I discussed this in Piroglu v. Minister for
Immigration and Ethnlc Affairs (1981) 55 F.L.R. 99 which was
referred to In the earller reasons given and I quote from p.107 of that report:-

"I consider this type of case to be very different from the normal "ball" 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 trlal and prlma facie, is entitled to bail. In the present case the applicant has not been charged wlth 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 untll deported, s.39 of the Migration Act.
The court should not Interfere with that policy except in exceptional circumstances."

In the case of Habal, also referred to in my earlier reasons, Lockhart J. queried that last statement expressed in that quotation and expressed his dlsagreement with it, otherwise agreed with the general principles staed in Piroglu.

Since those cases have been declded and on the facts of this case the legal position has been changed. On the facts of the present case and in light of the concession made by the minister, there is an automatic statutory stay of the deportation order made and thus it is not necessary for the applicant, in the present case, to establish what might be sald to be a serious issue to be tried or to rely upon the strength of such an issue in her favour in relation to the deportation order. Nevertheless, such a matter is of importance where a statutory stay does exist because I still accept, as a matter of law, the fact that prima facie a deportee does not have a right of release from detention pending the hearing of a review of the order to deport. All the cases where the Court has considered various factors to be taken into account where an application for release has been made, proceed on the basls that there is at least a strong ground for saying that there is a serious issue to be tried and that there is a likelihood of the relevant order being set aside. In addition the nature of the custody could be considered. In this respect matters for consideration

have been expressed to be whether there is a likelihood that	an applicant will seek to be absorbed into the community,
whether an applicant will observe any conditions, including conditions as to reporting to the migration officials, and whether there are any other matters which a Court may consider relevant to the circumstances of that particular case. These can be illustrated by reference to what was said by Lockhart J. in Habal.
In the present case the applicant by her counsel has given an undertaking to the Court and has also filed an undertaking in writing signed by her as follow:-

"I, Ran]lt Kaur-Bonicelli, of 6 5 Russell Street, Campbellfield in the State of Victoria, housewife, presently at the Maribyrnong Detention Centre, Hampstead Road, Maribyrnong, do hereby undertake to be solemnly bound by any conditions of bail imposed by this honourable court with respect to my release and so abide all restrictions upon reporting conditions to the authorities in my movement wlthin Australia."

In addition, counsel on her behalf has indicated that the applicant is prepared to undertake to give herself up the day before the hearing of the application presently before the Court, to abide by the declsion of the Court and if need be to glve herself up at that time so as to avoid any danger of absconding, as it were, when a decision is made, if it is made, that the deportation order stand.

In addition, the uncle of the applicant, Harinda Singh, has slgned an undertaking as follows:-

Campbellfield in the State of Victoria, hereby give	"I, Harlnda Slngh, of 6 5 Russell Street,
the following undertakings to the Federal Court of Australia in regard to my niece, Ranlit Kaur-Bonicelli, who 1s currently held at the Mar~byrnong Detenion Centre that should she be released from custody:-
1. I w ~ l l permit her to reside w ~ t h me at my home

at the above address;

2.    I will fully support her whilst she remalns in Australia; and

3.    I wlll advise the Department of Immigration, Local Government and Ethnic Affairs forthwith upon becoming aware of any breach by her of her undertakings to the court."

These undertakings, which are relevant and are similar to many others glven in cases of this kind where a deportee is released from custody pending the hearing and determination of a deportation order have been offerred. Having regard to the fact that there is now a statutory stay of the deportation order, on the facts of thls case, in my opinion it is still important in considering whether a deportee should be released from custody or not to look at the substantive issue insofar as a Court is able to do so, in considering the strength or otherwise of the actions taken by the department and the likelihood or otherwise of success of the application itself.

Many of the relevant facts on the substantive Issue have been referred to in my earlier reasons. In addition, there is before the Court in the form of a statement given to officers of the department that Mr Bonlcelli entered into this marriage agreement for the purposes of giving resident

genuine marrlage at all.	status to the applicant and that in reality it was not a
In approaching these matters it must be remembered that the Court does not exercise its own judgment as to whether the marrlage was genulne or not - see Safadl v. Mlnlster for Immigration and Ethnic Affairs (1981) 38 A.L.R.
399 per Franki J. at pp.402-403 and Unlugenc v. Minlster for Immigration and Ethnic Affairs (1982) 43 A.L.R. 569 at p.575.
In my opinion, on the material before the Minister and his officers, it cannot be said that the decision to treat the marriage as not being genuine is not based upon reasonable grounds. Put another way, there is ample material to show that there were reasonable grounds to support the vlews taken by the Minister and his offlcers that this was not a genuine marriage and was entered Into for the purpose of obtaining or seeking to obtain resident status for the applicant. On the whole of the material before me I cannot say that that conclusion was unreasonable. In those circumstances any weight to be given in favour of the applicant on the substantive issue is not great and it is necessary to determine the question of release or not having regard to that fact.
Once ~t is said that prima facie a deportee 1s not entitled to what might be described as being released from custody, the question arises as to what factors should be taken into account in cases of this kind. The mere fact of there not being any llkely absorption into the community is irrelevant on this aspect of the matter because the same
issue could arlse in every case except where there have been possible actions in the past in relation to a particular applicant who subsequently is trying to become absorbed, is arrested and detained. Likewise, the other factors referred to in the authorltles are all cases where, to a large extent, it is a matter of judgment for the decision maker to make as to whether to release the deportee or not.
The mere fact of showing, in the absence of establishing that there is a fairly strong likelihood of succeeding on the merits, that an applicant is unlikely to be absorbed, that the applicant wlll observe any conditions imposed and any other relevant material, does not change the prima facie position that a deportee should be kept in custody pendlng deportation.
In the present case, I see no reasons at all why the applicant should be released. It mlght be said that there are no exceptional circumstances present, but on the facts of this case, I prefer to adopt the approach of saying that there are no sufficient reasons given for the release being ordered. Any person in custody does suffer hardship. In the present case, the applicant can be vislted, use a telephone, and, although it 1s sald she is suffering some effect from the incarceration, that of Itself is not sufficient reason. I take into account the fact of the conclusion reached by officers of the department that the
marriage was not a genuine marriage, and that the material before the Court supports the view that that was a reasonable
conclusion. In those clrcumstances, the offerlng of the
conditions referred to earlier are not of themselves
sufficient to overcome the prima facie case that the applicant should be kept in custody. Accordingly, the motion is refused.

I certify that this and the c.RdxL	( I;\	/
preceding pages are a true copy of the reasons for Judgment herein of the Honourable Mr Justice Northrop

Dated a& +..A [TO .

ATTACHMENT A

Title of Action:	Ranjit Kaur-Bonicelli
v. Minister for
Immigration, Local
Government and Ethnic
Affairs
File Number:	V. NO. G.95 of 1989
Date of Hearing:	26 April 1990
Judgment Delivered:	26 Aprll 1990
Counsel for Applicant:	Mr B. Keon-Cohen
Solicltors for Applicant:	Coburn & Associates
Solicitors for Respondent:	Mr R. Huttner

Signed ........ ........ .. &-W,L.

Dated 26 April 1990