Kurtze, Harmut Siegfried v Mitchell, Peter

[1983] FCA 172

Re: HARMUT SIEGFRIED KURTZE
And: PETER MITCHELL, STIPENDIARY MAGISTRATE AT BRISBANE and THE MINISTER FOR
IMMIGRATION AND ETHNIC AFFAIRS
No. QLD G37 of 1983
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Sheahan J.

CATCHWORDS

MIGRATION - order of review of Magistrate's decision that applicant be detained in custody for 7 days pursuant to s.38 of the Migration Act.

PRACTICE AND PROCEDURE - investing a Supreme Court of a State with federal jurisdiction pursuant to s.32A of the Federal Court of Australia Act, 1976.

Administrative Decisions (Judicial Review) Act 1977, ss. 5, 15

Migration Act, 1958, ss. 38, 39, 40

Federal Court of Australia Act 1976, s. 32A

HEARING

BRISBANE

#DATE 24:6:1983

JUDGE1

I have before me an application for an order of review in which the applicant is Harmut Siegfried Kurtze and the first respondent is Mr Peter Mitchell, Stipendiary Magistrate in Brisbane, a prescribed authority within the meaning of s.40 of the Migration Act 1958. The second respondent is the Minister for Immigration and Ethnic Affairs. The application, in substance, is to review an order of the first repondent that the applicant be detained in custody for a period of seven days pursuant to s.38 of the Migration Act 1958. The basic ground on which the application is argued is that the order of the magistrate was not lawfully made, and that the applicant at the time of the application of the order was unlawfully detained in custody.

Basically, the substance of the argument in favour of the applicant is that the first respondent, Mr Mitchell, could not be reasonably satisfied that the period of detention ordered by him was reasonably required in order to enable the second respondent to consider whether the applicant is a prohibited immigrant, and whether a deportation order should be made in respect of him. The matter comes before me pursuant to s.32A of the Federal Court of Australia Act 1976, which section provides, inter alia, that in any matter pending in the general division of the Federal Court of Australia, a Supreme Court of a State is invested with federal jurisdiction to hear and determine any application that may be made to a judge of the first mentioned court sitting in chambers. As I understand the submissions made on behalf of the respondent by counsel, my jurisdiction to entertain an order of this type is not in issue, although I have some reservation as to whether I am sitting in a matter which was pending in the general division of the Federal Court before the application was instituted.

The facts which gave rise to this application are not really in dispute. It seems that the applicant arrived in Australia at Sydney on 19 January 1982. On arrival, he was granted a temporary entry permit valid until 19 July 1982. This has now expired, and there is no record of any further entry permit having been issued. The applicant was arrested by the Queensland Police at Mundubbera on 10 June 1983 pursuant to s.38 of the Migration Act 1958. He was transported to Bundaberg on 11 June 1983 where he appeared before the magistrate on 14 June at that place, when seven days detention in custody was ordered. He was then transferred to the Brisbane prison on 15 June 1983. It further appears from the material before me that on 21 June 1983 an application was made to the first respondent for another period of detention, and on this application the second respondent was represented by Mr Webb, a legal officer employed in the Brisbane office of the Commonwealth Crown Solicitor. The applicant was represented by Mr Morris of Counsel.

At this time and place, Mr Webb applied to Mr Mitchell for an order pursuant to s.38 of the Migration Act 1958, as amended, that the applicant be further detained for a period of seven days for the purpose of allowing the Minister of State for Immigration and Ethnic Affairs to consider whether the applicant was a prohibited immigrant and, if so, whether he ought to be deported. After hearing submissions from counsel, Mr Mitchell declared that he was satisfied that the visa issued to Kurtze expired on 19 June 1982; that he was satisfied that the applicant was arrested on 11 June 1983 and taken to Bundaberg where, on 14 June 1983, an order was made for detention of the applicant for a period of seven days. Mr Mitchell further indicated that he was satisfied that there were reasonable grounds for supposing that the person Kurtze is a prohibited immigrant and that he should be detained in custody for a further period of seven days to allow the Minister of State for Immigration and Ethnic Affairs to determine whether the applicant was a prohibited immigrant and, if so, whether a deportation order ought to be made in respect of him.

Submissions were made to Mr Mitchell and repeated to me in support of a proposition that Mr Mitchell, as a prescribed authority under the act, was not justified in law in ordering a further period of detention. The argument was in short compass, and it simply amounts to this: sub-s.38(3) of the Migration Act 1958 provides, inter alia, that where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question of whether there are reasonable grounds for supposting that that person is a prohibited immigrant; and if the prescribed authority is satisfied there are such reasonable grounds, he may, by writing under his hand, authorise the detention of that person in custody for such period not exceeding seven days from the date of the authorisation, as the prescribed authority is satisfied that is reasonably required in order to enable the minister to consider whether that person is a prohibited immigrant, and whether a deportation order should be made in respect of him; but otherwise, the prescribed authority shall order that person to be released. Sub-section (4) of the same section provides that a prescribed authority may, from time to time, extend a period of detention referred to in the last preceding section.

It seems to me that at least two things clearly appear from sub-s. 38(3). The first is that the prescribed authority, in this case Mr Mitchell, had power to order a period of further detention under sub-s. (4) of the same section if there was material before him which would satisfy him that an extension of the period of detention is reasonably required for the purpose set out in sub-s. (3).

Second, as I read the section, it seems to me that sub-s. (4), which allows extensions of the period of detention, must be read in conjunction with sub-s. (3), and accordingly there is imported into sub-s. (4) the necessity for the prescribed authority, in considering an extension of the period of detention, to be satisfied that further time is required reasonably by the Minister to make such inquiries as he deems fit.

The question in a nut-shell is whether the bald statement from the bar table by the counsel for the second respondent that a further period is sought so that the minister may consider the question is sufficient in law to justify a prescribed authority reaching a stage of reasonable satisfaction that such further time is required.

On the view I take of the section in question, difficulties could arise if some other interpretation of sub-s. (4) were to be preferred. It would mean, it seems to me, that the other view would justify a lawful period of detention under sub-s. (3) on a basis of reasonable satisfaction that that period is required by the minister, that in any subsequent application under sub-s. (4) nothing need be shown to the prescribed authority which justifies an extension of the period of detention and the question here, as I have said, is a short one: is it good enough for counsel simply to say that the minister requires further time without condescending to any particularity whatsoever as to why further time is required?

The matter is urgent by reason of the nature of the application and I would have preferred more time for consideration and perhaps more time to allow for debate or the question to take place. In the end I have come to the conclusion, not without hesitation, that Mr Mitchell did not have authority to order the extension of the period of detention which he did order and with respect to which this order for review is brought.

However, the difficulties do not end there so far as I am concerned. It appears that the deportation order was in fact made in respect of the applicant in the last day or so and the fact of it communicated to the applicant. In such a case, sub-s. 39(1) of the act provides:

"39.(1) Where an order for the deportation of a person is in force, an officer may, without warrant, arrest a person whom he reasonably supposes to be that person, and a person so arrested may, subject to this section, be kept in custody as a deportee in accordance with sub-section (6) of this section."

If I am right in concluding that the applicant was not lawfully in custody because of the lack of jurisdiction to make the order by the prescribed authority, Mr Mitchell, then the question is: could he be lawfully arrested while detained unlawfully in custody?

The effect of s.38 has not been canvassed before me to any real extent, but it seems to me that if I have power to do anything about the order it certainly does not amount to a power to quash a decision of the prescribed authority. That appears clearly enough, I think, from the provisions of the relevant statute under which the application is made, namely, the Administrative Decisions (Judicial Review) Act 1977 as amended. Sub-section 5(1) of that act particularizes the grounds upon which a person aggrieved by a decision to which the act applies may apply for an order of review. It seems to me that this type of decision is comprehended by a number of the particular grounds specified in sub-s. 5(1). However, it also clearly appears that my jurisdiction is that of a judge in chambers and therefore I am not sitting as the court.

Accordingly, sub-s. 15(1) of the same act applies. Sub-section (1) thereof provides:

"15.(1) The making of an application to the Court under section 5 in relation to a decision 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 (if any) as it or he thinks fit, a stay of all or any proceedings under the decision."

The next question of course is whether or not I should exercise either of the powers specified in sub-s. 15(1) of the last-mentioned act. The order made by the prescribed authority has in one sense been overtaken by the deportation order, assuming the latter was lawfully made, and I must assume that prima facie it was. In such case the applicant is liable to arrest without warrant at any time and, it seems to me, at any place where he is found. Consequently, I am unable to comprehend how a suspension of the operation of the order sought to be reviewed or the staying of any proceedings under that order would have any practical effect. Accordingly, I have decided - again, with some hesitation - that I should indicate that in my judgment the order made by the prescribed authority on 21 June 1983 with respect to the applicant was made without legal justification, there being no basis on which that authority could reasonably conclude that the Minister reasonably required further time.

I am not prepared to make any other order in the matter for the reasons I have endeavoured to indicate previously. Basically, I feel that any other order would be nugatory in the result. However, I am prepared to consider the submissions on costs of the application. My present thinking is that at the time the application was made and until the time of the deportation order was shown to have been made, the applicant was entitled to an order for relief if such was within my power - which I doubt. However, the application was one made which was in part successful though not to any practical sense. However, I would be amenable, if costs can be granted in such a matter, to allow the applicant's costs of the hearing before me on 21, 22 and 23 June to be taxed.

I will accede to the application of Mr Andrews that he have the costs of the first three days, but not of today.

I order that the further hearing of the matter be adjourned to a date to be fixed by the Queensland District Registrar of the Federal Court.