Kumar, B.W. v Mitchell, P

[1991] FCA 747

WEMENT No. ?t./..9?,.-

C A T C H W O R D S

C0818 - application to magistrate for detention of alleged

illegal entrant - magistrate in error - competing

considerations between citizen seeking redress for error

affecting that person's liberty and organ of government

initiating proceedings - whether citizen should be left

without order for costs.

v K U W v. PETER MITCHELL & ANOR.

NO. 4683 of 1991.

29 OCTOBER 1991.

SPENDER J .
BRISBANE

THE F	-	COURT OF AUSTRALIA	)
1 NO. qda3 oe 1991

- 1

BETWEEN: BUNELA WATI K U W

Applicant

AND: PETER MITCHfg&

First Respondent

AND:  VERN T

Second Respondent

JUDGBMfING ORDER: Spender J.

-8	29 October 1991
IlmkLwm:	Brisbane

The eecond respondent pay the applicant's costs of and incidental to the application, including reserved coats, to be taxed if not agreed.

IIQ3CEI Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

URT OF AUSTRRLIA )

DISTRICT RE- ) NO. Q683 of 1991

v 1

BETWEEN I WATI K m

Applicant

AND:

First Respondent

AND: W T E R FOR -ION. LOCAL GOVERNMENT

- Second Respondent

sx2uu:  Spender J.

mbsx: Brisbane

Rm6:  29 October 1991

ONS FOR JUDG-

I am concerned with the question of costs in respect

of proceedings brought by Mrs Bunela Wati Kumar seeking review

of a decision by Mr Peter Mitchell, stipendiary magistrate, in
proceedings before him between the second respondent and the

applicant.

The question of costs falls for consideration in

these circumstances: Mrs Kumar was born on 24 November 1953

in Fiji and is a citizen of that country. She arrived at temporary entry permit which allowed her to remain in

Australia for three months. No further temporary entry permit

was granted since the expiry of that permit on 30 August 1989.

She was arrested under a. 92 of the aaration Act

("the Act") 1958 on the afternoon of 12 June 1991 by an

o f f i ce r a c t i n g pursuant t o t h a t Act and she was informed a t

t h a t t i m e t h a t there were reasonable grounds f o r supposing her

t o be an i l l e g a l e n t r a n t .

On the fo l lowing day, an a p p l i c a t i o n on b e h a l f o f

the Minis ter f o r an order au thor i s ing the d e t e n t i o n o f Mrs

Kumar under 8 . 92 o f the Act was heard by the f i r s t

respondent , W . W i t c h e l l .

S e c t i o n 92 r e l e v a n t l y providesr-

" ( 1 ) An o f f i c e r may, wi thout warrant, a r r e s t a

person	whom	the o f f i cer reasonably supposes	t o
be	an	i l l e g a l	e n t r a n t .
( 2 )	A person	arres t ed under subsec t ion	( 1 ) o r

(10) may, s u b j e c t t o this s e c t i o n , be k e p t i n

the c u s t o d y o f any o f f i cer or i n such other

c u s t o d y a s	the	M i n i s t e r	or	the	S e c r e t a r y
d i r e c t s .

(3) Where an o f f icer a r r e s t s a person under

subsec t ion ( 1 ) or (10 ) , the o f f i cer s h a l l

f o r thwi th infonn the person arres t ed o f the

reason for the a r r e s t , and t h a t o f f icer or

another o f f icer having the c u s t o d y o f t h a t

per8on	s h a l l	t a k e the arres t ed person	before a
prescribed	a u t h o r i t y w i t h i n	48	hours a f t e r the

a r r e s t or, i f i t i s n o t p rac t i cab le t o b r i n g

the arres t ed person b e f o r e a prescribed

a u t h o r i t y w i t h i n t h a t period, a s soon a s

prac t i cab le a f t e r t h a t period, and, i f the

a r r e s t e d person i s n o t so brought before a

prescribed	a u t h o r i t y ,	he	or she	s h a l l	be
r e 1 eased.

( 4 ) Where a person i s brought before a

prescribed a u t h o r i t y under this section, t h e

prescribed a u t h o r i t y s h a l l i n q u i r e i n t o the

ques t ion whether there a r e reasonable grounds

for	supposing	t h a t t h a t person	i s an i l l e g a l
e n t r a n t	and,	i f t h e prescribed	a u t h o r i t y i s

s a t i s f i e d t h a t there are such reasonable

grounds, he or she may, i n w r i t i n g , a u t h o r i z e

t h e d e t e n t i o n o f t h a t person i n cus tody , b u t

o therwise the prescribed a u t h o r i t y s h a l l order

t h a t person to be re leased .

the Minister or the Secretary may at any time	(9) In spite of anything else in this section,
order the release (either unconditionally or subject to specified conditions) of a person who is in custody under this section. "
Mr Murray Belcher from the Australian Government

Solicitor's office appeared on behalf of the second respondent to these proceedings and produced a document to the court

entitled "Applf	cation for Authori satf on under Section 92 of
the aecond respondent which indicated, inter alia, that Mrs	the Migration Act 1958" and signed by an officer on behalf of Australia" stamp, and a Resident Entry "A" type permit, all of which, it was said, had been stolen from Darwin Airport prior to the respondent's arrival in Australia. It was also alleged in that document that Mrs. Kumar had admitted during a record of interview that the visa and stamps were obtained from an acquaintance of her former husband for $500.
It was submitted by Mr. Jonathan Hulett, a solicitor who appeared on behalf of Mrs Kumar that the learned
atipendiary magistrate had a discretion to authorise her redease from custody pursuant to 6. 9 2 ( 4 ) .

Mr. Belcher, in an affidavit filed in these

proceedings, said that he submitted to Mr Mitchell:

" that pursuant to Section 92(4) Migration Act

1958 His Worship could do one of two things:

either order the detention of the Respondent
pursuant to that subsection, or order the
Respondent's release; "

He submitted that despite any order made by the

learned stipendiary magistrate B. 9 2 ( 9 ) permitted the custody

review officer to release the respondent either
unconditionally or subject to specified conditions and that
circumstance was a matter that might be taken into account by

the stipendiary magistrate.

Mr Belcher says that he submitted that if his

Worship, on being satisfied that there were reasonable grounds

for supposing the respondent to be an illegal entrant, had a

discretion to order the release of the respondent, the

respondent's ability to make an application pursuant to

S. 92(9) was a matter worthy of consideration, particularly as

his Worship did not have power to release the respondent on

conditions.

Mr Mitchell made an order authorising Mra Kumar's

detention for a period of seven days. In a letter of 17 June

1991 he refers to submiesion made on behalf of Mrs Kumar and

then said;

" I believe I stated that in the interpretation

of Subsection 4 in the circumstances where the
prescribed authority is not so satisfied then
the person shall be released, then the converse
being shown in this instance it followed that
the "may" should be read as "shall" and that an
order for detenti on should be made.

Mr Belcher also submitted in support of my observations at subsections 4 and 9. "

This statement is inconsistent with the affidavit

material of Mr Belcher, earlier set out.

On 14 June, Mr Bruce Henry, a solicitor acting for

Mrs Kumar, telephoned Mr Abdul Aziz Eesa, who is the assistant manager of the operations and administrations branch of the Department of Immigration Local Government and Ethnic Affairs in Queensland, asking Mr Essa to release Mrs Kumar from custody, a requeat which H1: Essa agreed to on conditions that mhe lodge a $10,000 surety, that a reporting arrangement be agreed to and that she live at a given address.

Mr Henry phoned Mr Easa later that day and requested

that he be released on $2000 surety with reporting
conditions, to which Mr Essa did not agree.

On the same day I then heard, by way of a telephone hearing, an application on behalf of Mra Kumar that she be

released from custody on certain conditions.	In the telephone
behalf of Mrs Kumar and I ordered the release of Mrs Kumar on hearing I heard submissions on behalf of the Department and on	the bamis of certain undertakings relating to her reporting to
sureties to support those reporting conditions. Those undertakings required Mrs Kumar to deposit with the Federal the Immigration Department and to the provieion of certain registration papers of her husband's motor vehicle and also required her to report on a daily basis to the Innnigration Department officers in the city.

On 18 June the matter was before me at the Federal

Court in Brisbane and I required the continuation of the undertakings previously given, subject to the variation that Hrs Kumar report daily to the Wynnum police station rather than to the Department of Immigration offices in the city.

which had been lodged with the Department in June, would be
proceased in the normal manner. After discussions with
representatives of Mrs Kumar and the Australian Government

that an application for permanent residence by Mrs Kumar, relearning llrs Kumar from the undertakings which had previously been given.

The matter was listed before me today to deal with the

querntion of costs of the application. At that time, it was
not sought on behalf of the second respondent to maintain the
correctness of the approach adopted by the learned stipendiary
magietrate.

An application for review of the decieion by Mr

Mitchell was not filed until 18 June 1991 and the grounds of the application included that the first respondent had erred in law in failing to apply the discretion conferred on him

under S. 92 of the Kiaration A c t 1958.

I think it right to say that there were factors which

required investigation on behalf of the Department concerning
the entries in Mrs Kumar's passport and the circumstances of
her continued presence in Australia. However, the question in
the Federal Court proceedings was the propriety of the course
adopted by the learned stipendiary magistrate and in

particular his view expressed in the letter of 17 June 1991

that "may", in e. 92(4), ought be construed as wshallm, and

that if the prescribed authority believes that there are
reasonable grounds to suspect that a person is an illegal
entrant, then the prescribed authority is obliged to authorise

the detention of that person in custody.

On 8 August representatives of Mrs Kumar were advised

It was said on behalf of Mrs Kumar that it was

necessary to seek review of the decision by the learned was eaid that since no attempt was made to maintain the

stipendiary magistrate: that attempts were made to obtain her
releaee from detention on conditions with which she was able
to comply, but that those attempts had been unsuccessful, and

it was therefore necessary that proceedings in the Federal

correctness of the interpretation adopted by the learned

Stipendiary Magistrate there should be no order made against the second respondent.

Notwithstanding the ambiguity in the material

concerning the approach adopted by the representative for the
department before the learned stipendiary magistrate, I
proceed on the basis of the material deposed to by Mr Belcher
that there was no encouragement or urging by him that the
magistrate should adopt the interpretation which, erroneously,

B

he did. The question, however, is whether that circumstance
ought to mean that the second respondent be relieved from what
would ordinarily be the result where there has been an

application successfully and necessarily brought in the court.

While I proceed on the basis that the second

reapondent was not a party to the error into which the learned
stipendiary magistrate fell, the question is whether an
innocent applicant, who has been the victim of an erroneous

decision, should be left without an order for costs.

These proceedings are not within the ambit of the

P r o c e e w e (Costal Act 1981.

Where there are two innocent parties the matter is not

free from difficulty, but I think that in all the
circumatancea the proper order to make as to costs is that the
aecond reapondent pay the applicant's costs, to be taxed if

not agreed. This order implies no fault or blame on the part of the representatives of the second respondent, but where

there are competing considerations between a citizen seeking

redreaa for an error affecting the liberty of that person,
proceedings being necessary to vindicate that person's rights,
and an organ of government which initiated proceedings
affected by error, the fact that that organ of the government
ham not been a party in the error does not mean that that
party ahould be relieved of the obligation to pay costs.

1. As between the parties, clearly the applicant is

. . < ~ ,

. .

) I	without fault and is entitled to a remedy and considerations
~,	of justice dictate that the second respondent should pay the
h .,
+	costs of the applicant.
It has been indicated that a notice of discontinuance of the proceedings will be filed. The order that I make is
'! t:	.
L	that the eecond respondent pay the applicant's costs,
.L+	.
'L,	including reserved costs, to be taxed if not agreed.

I certify that this and the
eight preceding pages are a true
copy of the reasons for judgment
herein of Justice J.E.J,

Spender.

. . Counsel for the applicant : Mr. L. Boccabella

instructed by : Cooke Barbeler and Stubbs

-..

...	Counsel for the respondents	r	Mrs. H. Hoare
:L	f nstructed by	I	Australian Government
, ,	Sol i ci tor
3. >	h.

T . . % . Date of hearing 29 October 1991