Kaur-Bonicelli, R. v The Minister for Immigration Local Government & Ethnic Affairs
[1990] FCA 159
•11 Apr 1990
JUDGMENT No. .!.5.? 7 ...... ?% CATCHWORDS
Administrative Law - immigration - interlocutory relief - Court's power to release deportee from custody pending final hearing - judicial review of Minister's decision.
Migration Act 1958 prior to 19 December 1989 s.s.6, 6A, 20, 38, 39,
Migration Act 1958, after 19 December 1989
S.S. 13, 14, 34, 60, 63, 92, 93
Migration Legislation Amendment Act 1989 s.6
Judicial Review Act s.s.13, 15, 16
Federal Court of Australia Act 1976 s.23
RANJIT KAUR-BONICELLI
and
THE MINISTER FOR IMMIGRATION
LOCAL GOVERNMENT AND ETHNIC AFFAIRS
V. No. G.95 of 1990
NORTHROP J.
PRINCIPAL ,-
11 APRIL 1990
MELBOURNE
FEDERAL COURT OF
IN THE FEDERAL COURT OF AUSTRALIA )
)
| VICTORIA DISTRICT REGISTRY | 1 | V. NO. G.95 of 1990 |
| ) | ||
| GENERAL DIVISION | ) | |
| BETWEEN: |
RANJIT KAUR-BONICELLI
Applicant
and
THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
7-S Respondent
| COURT | : | NORTHROP J. |
| DATE: | 11 APRIL 1990 | |
| - |
| PLACE : | MELBOURNE |
EX-TEMPORE REASONS FOR jUDGMENT
The applicant is moving the Court on notice dated 30 March 1990 for the following orders:-
"1. That this Honourable Court grant an order, mandatory in effect, requiring the Respondent, by himself, his servants or agents to forthwith release the Applicant from hls custody pending the final hearing and determination of this matter or further order;
2. That this Honourable Court grant an order restraining the Respondent, his servants or agents, from in any way seeking to:
(a) arrest and detain the Applicant;
(b)
transport the Applicant or deport the Applicant from Australia,
pendlng the flnal hearing and determination of
this matter, or further order."
| The respondent "the Minister" is opposing the In order to understand the motion it is necessary to set out in summary form, the facts relevant to the Issues raised. It must be realised, however, that an interlocutory order is belng sought and the Court has not had the | motion. | |
| opportunity to consider all the facts and law that will need | ||
| to be considered in determining the application. Accordingly, any views expressed are tentative and are formed for the purposes of interlocutory rellef only. They cannot be used at the trial of the proceeding. | ||
| The applicant 1s a female of 19 years of age having been born in India on 4 June 1970 and is of Indlan nationality. She is a non-citizen of Australia. She and the other members of her family have been brought up in the Sikh religion and are practlcislng Sikhs. On 14 November 1989 the | ||
| applicant arrived in Australia in the company of her parents | ||
| and her younger brother and sister. Each was permitted to | ||
| enter Australia pursuant to a two months entry permlt. The entry permit granted to the applicant was a temporary entry permit granted under s.6 of the mlgratlon Act 1958 as in operation in November 1989. | ||
| The applicant and her family came to Australia to visit relatives in Melbourne, the prlme relatlve being Mr Harjinder Singh, the appliantrs uncle being the brother of the applicant's father. Mr Slngh is an Australian citizen. When they arrived in Australia, the applicant's parents had about $4,000. No other funds were available to them. On the evenlng of 14 November 1989, belng the day they arrived in Australia, the applicant and her family attended a party at the home of Mr Singh at 65 Russell Street, Campbellfield. At that party the applicant met a Julio Bonicelli who was born ln Argentinia on 27 June 1953. He is 36 years of age and is an Australian citizen. Discussions took place at the party between the applicant, members of her family, Mr Singh, a Mr Dellifranci, a friend of Mr Singh, and Mr Bonicelli concerning the marriage of the applicant to Mr Bonicelli. On either 15 or 16 November, all these people agreed that it would be appropriate for the applicant to marry Mr Bonicelli. After giving all necessary notices, the applicant was married on 16 December 1989 at a civil marriage ceremony conducted by a Mr Sekhon. Apart from possibly the night of the marriage, at all material times the applicant has lived at the home of | ||
| ||
| there when he was in Melbourne but he was away most of the time being a travelling salesman. I am unable, on the material before me, to make any flnding on whether the marriage was consummated. | ||
| On 18 December 1989 the applicant made application under paragraph 6A(l)(b) of the Migration Act as then in operation, for an entry permit other than a temporary entry permit; see sub-sectlon 6A(8) and sub-sectlon 6(5). Such an | ||
| application is often described as an application for | ||
| resident status but such a permit cannot be granted to a non-citizen after entry into Australia unless one of a number of specifled conditions is fulfilled, the relevant one belng that specified in paragraph 6A(l)(b) namely that he, in this case, she, is the spouse of an Australlan citizen or the holder of an entry permit other than a temporary entry permit. The applicant clalmed that she was the spouse of an Australian citlzen namely Mr Bonlcelli. It cannot be dlsputed that the fact of being a spouse of such a person does not mean that an entry permit must be granted under sectlons 6 and 6A and there is much learning on the principles and problems involved in the proper exercise of the dlscretlon conferred on officers of the Department by sections 6 and 6A. No such permlt has been granted to the applicant. | ||
| On 19 December 1989, the Migration Legislation Amendment Act 1989 came Into operation. This Act made | ||
| ||
| the Amendment Act, Divisions 1 and 1A of Part I1 of the Migration Act in force on 18 December 1989, now described as the Principal Act, comprising sections 6 to 11C were repealed and new sectlons were substituted. Section 6A of the principal Act was repealed but by reason of sub-section 6(4) of the Amendment Act, the provisions of the Principal Act relatlng to the granting of entry permlts as in force on 18 December 1989 continue to have effect for the purpose of applications for entry permits made before 19 December 1990. Thus the application by the applicant for the permit under s.6A of the Principal Act must be determined pursuant to that section and the other relevant sections of Parts 1 and 1A of Part I1 of the Principal Act. | ||
| On 14 January 1990, the temporary entry permit granted to the applicant expired whereupon the applicant became what was described as a prohibited non citizen under the Principal Act but is now described as an illegal entrant. A further temporary entry permit has been granted to the applicant's mother, brother and sister but not to the applicant. The applicant's father has returned to India. | ||
| Under s.14 of the Migration Act as in force now, the applicant is an illegal entrant and it appears that the power to order the deportation of an illegal entrant is contained in s.60 of the Migration Act. That section | ||
|
The Mlnister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.
"60.(1)
(2) In spite of any other provision of thls Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended."
Speclal attention is dlrected to the phrase "the period of grace" appearing in sub-section 60(2). The period of grace is a perlod whlch normally is allowed before a person can be deported under a deportatlon order. There are problems as to whether, on the facts of thls particular case where the applicatlon for the entry permit was made before 19 December 1989, the provisions of paragraph 13(2)(a) have any effect, havlng regard to the reference therein to s.34. There was no equivalent provision to 5.34 in the Principal Act. It is not necessary for me to determine that matter in this case because of the concession made on behalf of the Minister solely for the purposes of this applicatlon. On that concession it is noted that under paragraph 13(2)(c) days to be excluded from the 28 days period of grace include a period starting when the person applies to the Federal Court under a number of specified Acts including the Judlcial Review Act for review of a decision refusing a person an entry permit and ending when the Federal Court gives its decision at first instance on that review. The effect of these provisions is that the applicant cannot be deported by order under s.60 until the present application has been heard
| and determined at first instance. This amounts to an | automatic statutory stay of the deportatlon order that has | ||
| been made agalnst the appllcant. Under s.63, the deportee must be deported unless the Minlster revokes that order but the stay prevents the deportation of the appllcant. In the present case, the Minister concedes that the perlod of grace applies. | |||
| Comlng back to the facts of thls case, the applicant was arrested on 8 March 1990 and taken into custody. It appears that the arrest was made under s.92 of the Act. Under sub-sectlon 92(1) an officer is empowered, without warrant, to arrest a person whom the officer reasonably supposes to be an illegal entrant and under sub-section 92(2) that person may, subject to s.92, be kept in custody. Under sub-section 92(9), the Mlnister or the Secretary "may at any time order the release (either uncondltionally or sublect to specified conditions) of a person who is in custody under this section". No order was made under that sub-section. | |||
| Since her arrest, the applicant has been kept in custody despite requests by her solicitor for her release. By three separate letters each dated 22 March 1990, the | |||
| solicitors wrote to officers of the Department seeklng the | |||
| release of the applicant, a statement of reasons under s.13 of the Judicial Review Act for her arrest and documents pursuant to the Freedom of Information legislation. It is important to note the terms of those letters since, to a | |||
|
We act for the abovenamed who is currently detalned at the Maribyrnong Detention Centre.
We understand that she was arrested due to an alleged involvement in an "immigration marriage racket". Our client strenuously denies these allegations. Upon Counsel's advice, we have formed the view that our client was wrongfully arrested, and that there are no proper legal grounds to contlnue to detaln her in custody.
We should be grateful for your lmmediate advice concerning the basis upon which it is alleged that our client is engaged in the abovementloned "racket" and the reasons why it is considered she should be detained.
We requlre thls advlce by 5.00 pm on Friday, 23rd, March 1990. We think it only fair that we should be informed of the basis of such serlous allegations so that we may properly advise our client.
We also seek immediate advice by the abovementioned deadline as to what decisions, if any, have been made in regard to our client's abovementloned Application for Grant of Resldent Status.
We request that our client be released forthwith. Faillng such release, we give notice that we shall, at the first available opportunity, make application to a Judge of the Federal Court of Australia for her Immediate release."
"RANJIT KAUR - DETENTION AT MARIBYRNONG - APPLICATION
FOR RESIDENT STATUS ON GROUNDS OF MARRIAGE
We act for the abovenamed MS Ranlit Kaur.
We understand that she is currently being detained by your Department at the Marlbyrnong Detentlon Centre due to allegations of involvement in an "immigration marriage racket". Our client strenuously denies this
allegation. We also refer to our client's Application
for Resident Status on Grounds of Marriage forwarded to
you on or about 18th December 1989.We understand that our client was taken Into custody. Pursuant to the provisions of the Administrative Decisions (Judicial Review) Act, we hereby seek reasons
for the following decisions concerning our client: (a) The decisions to arrest our cllent
(b) The declsion to detaln and to continue to detain our client at Maribyrnong. (C) The decision not to determine the abovementioned Application for Resldent Status on Grounds of Marrlage (if that is the case).
(d) The decislon upon the said Appllcatlon for Resident Status (if such decision has been made). We are of the view that our client is wrongfully detained and thus seek your urgent response to this request for reasons."
"MS RANJIT KAUR - DETENTION AT MARIBYRNONG - FREEDOM OF
INFORMATION ACT (COMMONWEALTH)we refer to the abovementioned MS Ranjit Kaur who has instructed us in regard to her Application for Resident Status dated and who is currently being detalned by yourselves at the Maribyrnong Detention Centre.
We hereby make applicatlon, pursuant to the Freedom of Information Act for all documents concerning the abovenamed held by you, including all documents relating to her said Application, her detention, her continued detention and allegations that she is somehow involved in an "immigration marriage racket" by reason of whlch, as we understand it, she has been detalned.
If documents relating to our client's alleged involvement in an "immigration marriage racket" are held by other Departments, especially the Australian Federal Police, would you please forward this application to that Department urgently for thelr response.
Slnce our client is, we belleve, wrongfully detained, we would welcome your urgent response to this applicatlon."
By letter dated 22 March 1990 an officer of the Department advised the applicant that the applicatlon for resldent status had been refused. The letter whlch, obviously, was written before receipt of the three letters from the solicitors for the applicant dated 22 March 1990, is set out:-
"Mrs Ranjit Kaur C/O Immlgratlon Detention Centre
Maribyrnong VIC 3032
Dear Mrs Kaur,
I refer to your application for grant of resident status on the grounds that you are marrled to an
Australian citizen or holder of an entry permit.
The fact that you are legally marrled to Julio Mauricio Bonlcelli who is an Australian citizen has enabled you to satisfy 6A(l) (b) of the Migration Act ie. you are ellgible for consideration for grant of resident status.
In deciding whether you could however, be granted resident status under S6(2) of the Migratlon Act, I have to take into account the Government's policy guidelines on the grant of resident status on the grounds of marriage.
These guidelines reflect the baslc principle that grant of resident status on marriage grounds is based on there belng a strong relationship wlth an Australian citizen or resident. Accordingly a marrlage whlch has been undertaken solely to obtaln resident status without any intention by the parties to enter into such a relationship does not provide a basls for grant of resident status on marrlage grounds.
In applying this policy I found that your marriage was entered into solely for the basis of obtaining resident status. I have come to this conclusion following separate interviews with both you and your husband at whlch it was evident that you and your husband are not llving together on a genuine domestlc basis.
Therefore your application for resident status on the grounds of marriage does not meet the relevant policy guidelines. I also examlned your application to see if you had raised any matters there, or in any subsequent contact with you, which might form a basis for grant of resident status on other policy grounds.
You did not put forward any such matters.
I also considered whether there were any other matters raised by you, in your application, or in any subsequent contact with you, or relevant to your application, which would, either individually or in aggregate, justify my maklng a decislon outslde the policy guidelines.
In my view there are no such matters.
Accordingly your application has been refused. Please note carefully that :-
(l) there is no provision for a review of this decislon under the Migratlon Act; and (2) you may only make another application for an entry permit if one of the things listed as a "prescribed change of circumstance" in the attachment to this letter has occurred to you since your last entry permit application. (If you consider this to be the case you should contact this department without delay)
As your temporary entry permit has already expired and your application for resident status has been refused you are now an illegal entrant and you are liable for deportation.
You are also advised that after 2 worklng days from the date of this letter, it is intended to refer your case to the Mlnister or a Delegate of the Mlnister to consider the question of the exerclse of the following power :
(a) the making of a requirement to leave Australia (sub-section 82(1) of the Act),
0 r (b) the maklng of a deportation order agalnst you under section 60 of the Act.
However, if within the 2 working days stated above, you lodge a permissible entry permit application in accordance with the Act and Migration Regulations, or a written proposal to leave Australia, these questions may not be referred to the Minister or hls Delegate pending a decision on any such application or departure proposal."
The attachment is not set out.
On 30 March 1990 a deportation order under s.60 of the Migration Act was made against the applicant. The application under the Judlcial Review Act was issued on the same day. Since then the matter has been heard by the Court on a number of days namely 3, 6, 10 April as well as today.
| A large amount of materlal has been placed before the Court | but it is not necessary to refer to most of that material. | |
| ||
| March 1990, presumbly all under sections 6 and 6A of the Principal Act being the declsion not to grant resident status on the grounds of marrlage to an Australian citizen, the decision not to grant resident status on other policy grounds, and the declsion not to grant resldent status outside pollcy guidelines. The fourth declsion, presumably, was made under s.14 of the Migration Act being the decision determining that the applicant was an illegal entrant and liable for deportation. The fifth decision, presumably, was made under section 92 of the Migration Act being the decision of 8 March 1990 to arrest the applicant, to detaln her and to contlnue to detain her at the Maribyrnong Detention Centre. The sixth decision, presumably, was made under s.60 of the Migration Act being the decision made on 30 March 1990 to deport the applicant from Australia. | ||
| It should be noted that since 30 March 1990 the applicant has been detalned pursuant to the powers conferred by s.93 of the Migration Act. Sub-section 92(8) provides in substance that if, while a person is in custody under s.92, an officer informs that person that a deportation order is in force in relation to that person, the provisions of s.92 stop in relation to that person and the person shall be taken to | ||
| ||
| review the deportation order, I am prepared to find by implication that the applicant has been so informed. A person arrested under s.93 may, subject to s.93, be kept in custody as a deportee in accordance wlth sub-sectlon (8). Under sub-section 8 a deportee may be kept in such custody as the Minister or Secretary directs pending deportation but under sub-sectlon (9) may be released. That sub-section is set out:- |
"(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (elther unconditionally or subject to specified conditions) of a person who is in custody under this section."
It follows, that at present and since 30 March 1990 the applicant has been kept in custody under sub-section 93(8) and not s.92(2). No notice of a decision under s.93(8) or 93(9) or 92(2) or 92(9) has been given by or on behalf of the Minister.
On 10 April 1990, the Court gave leave to the applicant to amend the application by adding two further decisions to be reviewed namely the seventh decislon being the decislon made on 30 March 1990 under 5.93 of the Migration Act not to release the applicant and the eighth decision being the decision to detain the applicant in custody under s.93 of the Act. The Minister did not oppose the amendment but did not thereby concede that the decisions
| Leave was granted to make all necessary amendments to the | sought to be reviewed are decisions that have been made. |
| application and today the application, as amended, was filed In Court. | |
| At the hearing of the motion for orders for the release of the applicant from custody pending the hearing and determination of the applicant, the respondent raised the issue of the power of the Court to make the interlocutory orders sought. In the past, it has been common practlce for the Court, in appropriate cases, to grant interlocutory orders for the release of a deportee pending the determination of an application to review the deportation order. The basis for the power for making the order has been one or other or both of 5.15 of the Judiclal Review Act and s.23 of the Federal Court of Australia Act 1976. Under s.20 of the Principal Act, where a deportation order had been made, the deportee had to be deported unless the order was revoked. The Minister had no power to stay the operation of a deportation order. In order to prevent the deportee being deported before the determination of an application for review of the deportee, the Court frequently made orders staying the deportation order. The stay order was made under sub-section 15(1) of the Judicial Review Act which provides:- |
"lS(1) The making of an application to the Court under section S in relation to a declsion does not affect the operation of the decision or prevent the taking of action to implement the decision but-
(a) the Court or a Judge may, by order, on such
conditions (if any) as it or he thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions (lf any) as it or he thinks fit, a stay of all or any proceedings under the declsion. "
In considering whether to grant the stay, the Court had regard to a number of matters including whether the material before the Court disclosed any reasonable basls to suggest the deportation order might be set aside. If, the deportee was in custody under s.39 of the Principal Act, sections 38 and 39 of the Principal Act corresponding to s.92 and 93 of the current Migration Act, the Court tended to exercise the power conferred by s.23 of the Federal Court Act which provides:-
"23. The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kznds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
| Under sub-sections 39(6) and (7) of the Principal Act, a deportee could be kept in custody pending the deportation but an authorized offlcer had a power to order the release of the deportee being held in custody under s.39. Normally the Court did not require an applicant to seek review of a decision to refuse to order the release of a deportee under sub-section 39(7) as the basis for ordering the release of the deportee, but relied upon s.23 of the Federal Court Act that the custody of a deportee was part of the matter raised by the application to review the deportation order. Nevertheless some Judges queried the | power of the Court to rely on the general power conferred by | s.23 of the Federal Court Act when there was an express power |
| conferred by the Principal Act; see, for example, Elm1 v Minister for Immigration and Ethnic Affalrs (1988) 14 A.L.D. 471 per Gummow J. at pp.472-3. I know of no authority of the Full Court of the Federal Court on this issue. | ||
| Further consideration will need to be given to the source of the power to order release of a deportee under s.93(9) of the Migration Act. Once an application has been made for review of a decision to grant an entry permlt, a statutory stay arises under the gulse of the perlod of grace referred to in s.13 of the Migration Act when the provisions of that sectlon have been complled with. In those circumstances, there is no need for an applicant to seek an order staying the execution of a deportation order. In the present case, in the absence of the concession made by the respondent, it would have been open to the applicant to seek a stay of the deportation order in whlch case the normal practice and principles would have been applied. But in the current circumstances attention is directed to the nature of the powers conferred by sub-sections 92(2) and (9) and sub-sections 93(8) and (9). In Asim v The Mlnister for Immigration and Ethnic Affairs Federal Court of Australia, Wilcox J., 23 December 1989, unreported, the Court ordered that the applicant be released from custody pending the determination of his application for review of decisions under the Principal Act. The application sought the review | ||
| ||
| the Committee for Determination of Refugee Status. The decision sought to be revlewed was made under sub-section 39(7) of the Principal Act. The delegate had decllned to make the order of release and had stated reasons for so declining and the Court based the review on s.6 of the Judicial Review Act rather than s.5 that is conduct rather than decision. The Court did not specify the source of the power exercised in grantlng the interlocutory order but the case illustrates the existence of the power conferred upon the Minlster by sub-section 93(9) of the Migratlon Act. | ||
| In the present case, the applicant is seeking to review the decisions made under sub-sections 93(8) and (9) of the Migration Act. Difficulties arise in identifying the decision made under sub-section 93(9). The application of that sub-section arose on 30 March 1990, belng the date of the deportation order. No notification of a decision to refuse to order the release of the application has been given and the mere keeping of the applicant rn custody does not by Itself Identify the making of a decision; see Slnclair v Commonwealth of Australia Federal Court of Australia, Northrop J., unreported 3 November 1988 at p.9 and the following pages, and Pearce v Button (1986) 8 F.C.R. 408 referred to in Sinclair. The Minister, by continuing to keep the applicant in custody, may have shown that a declsion within the Judicial Revlew Act has been made under s.93(8) of the Migratlon Act; see Ricegrowers Co-operative Mills Ltd. v | ||
|
"In the present case, I do not flnd it necessary to give any definltlve meaning to the word "declsion" appearing in s.13(1) of the Judicial Review Act. The mere thought processes taking place in the mind of the person when considering whether or how to exercise a power or to perform a duty of an administrative character under an enactment do not, in my oplnion, constitute a decision. In addition to thought processes, there must be some overt act by which the conclusions reached as a result of those thought processes are manifested. The manifestation may take many different forms. It may taken the form of a verbal or written communication of the conclusion to the person affected. It may taken the form of action taken to give effect to the conclusion. It may take the form of no action being taken when otherwise a definite action would have been taken."
In the present case, I am not satisfied that a decision within the Judicial Review Act has been made under sub-sectlon 93(9) of the Migration Act but that a decision has been made under sub-section 93(8) of the Migration Act. Thus, this is not a case similar to Asim.
The question that then arlses is whether the Court, having regard to the new provlslons of the Migration Act, has power to make the interlocutory order sought based on the
application to review the other decisions identified in the
application.
Counsel for the applicant relied upon the powers
conferred by s.16 of the Judicial Review Act and in
particular paragraph 16(l)(d). The whole of sub-section (1)
"16(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:
(a) an order quashlng or setting aside the decision, or a part of the decision, with
effect from the date of the order or from such earlier or later date as the Court specifies;
(b)
an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(C) an order declaring the rights of the parties in respect of any matter to whlch the decison relates;
(d) an order directing any of the parties to do, or to refraln from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."
In Park Oh Ho v Minlster for Immigration and Ethnic Affairs (1989) 88 A.L.R. 517, the Hlgh Court considered the nature of these powers. There a delegate of the Minister had made a deportation order against the appellant on 20 August 1986 and the appellant was retained in custody under s.39 of the Principal Act untll he was released on 2 December 1986. On review the Federal Court, on 29 March 1988, that is a long time after the appellant had been released, ordered the deportation order be set aside as a nulllty since the deportation order had been made for an improper purpose namely to keep the appellant in custody in Australia so that his evidence would be available in criminal proceedings but the Court refused to make a declaration under s.l6(l)(d) of the Judiclal Review Act. The High Court directed that the
order of the Federal Court be varied by adding thereto a declaration that the detention in custody of the appellant durlng the period 20 August 1986 to 2 December 1986 was unlawful. In considering whether the declaration should be made the Court, Mason C. J., Deane, Toohey, Gaudron and McHugh JJ. after setting out the terms of sub-section 16(1) of the Judiclal Review Act, sald at pp.521-2:- "The legislative purpose to be discerned in the conferral by s.l6(l)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a speclfled date) an impugned decislon is clear. It is to allow flexlbllity in the framlng of orders so that the issues properly raised in the revlew proceedings can be disposed of in a way which wzll achieve what is "necessary to do justice between the parties" (s.l6(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be
constricted by undue technicality. In particular,
the phrase "any matter to whlch the declsion relates" in s.l6(l)(c) should be construed as encompassing any matter which is so related to, in the sense of connected with, the Impugned decision that it is appropriate that it be dealt with by the grant of declaratory rellef in judicial proceedings for the review of the propriety of that decision. In a case such as the present where the impugned decison is a deportation order whlch has been found to have been null and vold ab initio, the lawfulness of a period of forced imprisonment which was based solely on the void order could, depending on the circumstances, be such a matter. If the applicant in such a case is still held in custody by persons under the control of the respondent decision-maker, an injunctive order that the respondent do whatever be necessary to procure the
applicant's release could be properly considered as
"necessary to do lustice between the parties". In that regard, it is relevant to mentlon that both declaratory and injunctive orders, as distlnct from an order for damages, can readily be seen as appropriate remedies of judicial "review" of administrative decisions and actions."
| In the light of this very broad construction of the power, it would follow that if, in thls case, the Court made | an order setting aside the deportation order it could make an | |
| order directing the Minister to release the applicant from custody. Such an order could be properly considered as "necessary to do justice between the parties". Such an order would be final. I can see no reason why the Court, in order to do justice between the parties, does not have power to make an interlocutory order pending the hearlng and determlnatlon of the application to revlew. This is part of the power of the Federal Court arislng expressly or by implication under sub-sectlon 16(1) of the Migration Act; compare Parsons v Martin (1984) 5 F.C.R. 235 per Brown C.J., | ||
| ||
| been applied in subsequent decisions of the Court. | ||
| Accordingly I hold that the Court has a power implied from sub-section s.16(1) of the Judicial Review Act to order that the Minister direct the applicant to be released from custody pending the hearing and determination of the application herein or until further order. This is a matter which is related to, in the sense of connected with, the matters ralsed by the reviews sought in the appllcatlon. This power does not depend upon a review of a decislon made under sub-section 93(9) but from the review of the deportation order as well as the decision to refuse resident status. | ||
| ||
| provisions could result in a long period of detention in custody of a deportee. The power of the Court to make interlocutory orders for the release of the deportee pending the hearing of the application for review flows from and depends upon the existence of the application for revlew and in particular for revlew of the decision not to grant resident status; compare sections 13 and 34 of the Migration Act. Any interlocutory order could be made subject to | ||
| conditions but any such order should be made only on proper | ||
| material. |
The factors to be taken into account in releasing a
| W | - | - | . | - - - | - | - | "l.--, C< | ., .A *< * . | ., " |
deportee from custo* coine wlthin llmited areas. There is no
| ' | right to release as in a ball case. ;The matters to be taken |
i.
into account can be varied, generally see Piroglu v Minister
! for Immigration and ~ t h n i c ~ ~ f f a l r s (1981) 55 F.L.R. 99 and
1 Habal v Minister for Immigration Local Government and Ethnic
i : Affairs Federal Court of Australia, Lockhart J., 12 September
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In the present case, the Court is not in a
position, on the material presently before it, to determine
whether the interlocutory order should be made and what conditions, if any, should be made if an order is in due course made. The Minister has not, on the material presently before the Court, made a declsion under sub-section 93(9) of the Migration Act. Of necessity, no reasons have been given
| by the Minlster. Thls is a case where the Minister or the | Secretary, by a properly authorised delegate, should be |
| requlred to express the reasons, and facts relied upon, if a decision is made to refuse to release the applicant. This is a course slmilar to that adopted by Wilcox J. in Asim. | |
| Accordingly, I propose to adlourn the further hearing of thls matter to a specified date and direct the Minlster to serve on the appllcantrs solicitors notice of his | |
| decision under s.93(9) of the M i g r a t ~ o n Act together with reasons for so deciding by a specified date. |
Orders and directions made.
1 certi£y that this and the b,.c/c. preceding pages are a true Copy ofl the Reasons for Judgment herein Of the Honourable Mr. Justice k h 4 - . 3 . - -
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