Kurtze, Harmut Siegfried v Mitchell, Peter, Stipendiary Magistrate at Brisbane

[1983] FCA 418

_ - _ _ _ - - - - - C A T C H W O R D S

MIGRATION - order of r e v i e w of MaglsEratc's declslon t h a t

applicant be de ta ined I n c u s t o d y €or 7 c l a y s p u r s u a n t t o s . 3 8

of t he Migratlon A c t .

PRACTICE AND PROCEDURE - investing a Suprenle C o u r t of a S t a t e

w i t h federal j n r l s d l c t l o n p u r s u a n t to s .32A of the Federal C o u r t

of A u s t r a l i a A c t , 1 9 7 6 .

A d r n l n l s t r a t l v c Declslons - (Judicial R$?\ , ie i<) Act l!] : II, S'>. .,, i j

Migration A c t , 1 9 5 8 , s s . 3 8 , 3 9 , 4 0

Federal C o u r t of A u s t r a l l a A c t 1 9 7 6 , s . 3 2 A

H.S. KURTZE v. MR PETER MITCHELL, STIPENDIARY MAGISTRATE AT

BRISBANE AND THE	MINISTER	FOR	I I * P l I G l t ~ T I O I ~	AND ETHNlC	AFFAIRS
QLD G37 OF 1 9 8 3

IN THE FEDERAL COURT OF AUSTRALIA)

QUEENSLAND DISTRICT REGISTRY	)	QLD G37 of 1983
GENERAL DIVISION	)

BFIWEEN :

HARMIJT SIEGFRIED KURTZE

Applicant

AND :

MR PETER MITCHELL,

STIPENDIARY MAGISTRATE	AT
BRISBANE

First Resaondent

AND :

THE MINISTER FOR 1MMIGRF.TIOM

AND ETHNIC AFFAIRS

Second Respondent

34 JUNE 1983

EXTEMPORE REtlSONS FQR JUDGPENT

I have before me an applicatlon for an order of

review in which the applicant is Harmut Siegfrled Kurtze and

the first respondent is Mr Peter Mitchell, Stipendlary

Magistrate in Brisbane, a prescribed authority within thFj meaning of 3.40 of the Misration Act 1958. The second

respondent is the Minister for Immigration and Ethnic

Affairs. The application, in substance. is to rcvlew an

order of the first respondent that the applicant be detained

in custody for a period of seven days pursuant to s . 3 0 of

the Miqrationx 1958. The baslc ground on which the

application is argued is that the order of the magistrate

was n o t lawfully made, and that he applicant at che time of

the application of the order was unlawfully detained in

custody.

2

Basically, the substance of the argument in favour

of the applicant 13 that the first respondent, Mr Mltchell,

could not be reasonably satisfied that the periud of

detention ordered by him was reasonably requlrerl In order to

enable the second respondent o convlder whether the

applicant i3 a prohiblted imrnlgrant, and whether a

deportation order should be made in respect of hlm. The

matter comes before me pursuant to 3 . 3 2 A of the Federal

Court of Ausralia Act 1976, which sectlon provldes, inter

alia, that in any matter pending in the general divislon of

the Federal Court of Australia, a Supreme Court of a State

is invested with federal jurisdiction EO hear and determme

any application that may be made to a Judge of the first

mentioned court sittlng in chambers. ?-s I un4erst:r.d the

submissions made on behalf 3f the respondent by col-.nzel, my

jurisdiction to entertain an order of thls type 1 s nnt 11,

Issue, althouqh I have some reservatlon 3s t o whel I,,.. I WI

citting in 2. putter vhic'rl -?as p e n d L r q in tst' ' e . ':L I division of the Federdl Court before the appllcatlon Z.IY instituted.

The f a c t s which gave rise to this applicatlcn are not really in dispute. It seems that the applicant arrived

in Australia at Sydney on 1 9 January 1982. On arrlval, he

was granted a temporary entry permit valld untll 1 9 July 1982. This has now explred, and there is n? record of any

3

further entry permit having been issued. The applicant waz arrested by the Queensland Police at Mundubbera er. 10 June

1983 pursuant to 5.38 of the Misration Act 1958. He war,

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 prlson on 15 June 1983. It

further appears from the materlal before me that on 2 1 June

1983 an application was made to the f l r s t respondent for

another period of detention, and on thls applicatlon the second respondent was represented by Mr klebb, a legal officer employed in the Bribbane offlce of the Commonwealth

Crown Solicitor. The applicant was represented by Mr Morris of Counsel.

At this time and place, Flr Idebb applied to Mr

Mitchell for an order pursuant to 3.38 of the Miqratlon Act

1958, a3 amended, that the appllcant be further detalnec! for

a period of seven days for the purpose of allowlng the

Minister of State for Immigration and Etnnlc Affairs to

consider whether the applicant was a prohihlted 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 explred on 19 June

1982;	that he was satisfled that the appllcant was arrested
on 11	June 1983 and taken to Bundaberg where, on 1 4 June

1983, an order was made for detentlon of the appllcant for a

4

period of seven days. Mr Mitchell further lndlcated that he

was atisfied that here were reasonable grounds for

supposing that the person Kurtze is a prghlblted immlgrant

and that he should be detalned in custody for a further

period of seven days to allow the Minister of State f o r

Immigration and Ethnic Affairs to determine whether the applicant was a prohibited immigrant and, If so, whether a

deportation ord'er ought to be made in respect of him.

Submissions were made to M r Mltchell and repeated

to me in support of a proposition that Mr Mitchell, as a

prescribed authority under the act, was n o t justifled 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 Micrration Act 1958 prcrvldes, inter alia,

that where a person is brought before a prescrlbed authorlty

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 1 s zatlsfled there &re nuch

reasonable grounds, he may, by writing under his hand,

authorise the detention of that person ln custody f o r 5uch

period not exceeding seven days from the date ,:)C the

authorisation, ,I? the prescrlbed authority 1 s s a t l ~ f : , ? ! 1 . b . t

is reasonably required in order to en3ble the (nil I - 1 . e : ~ I

consider whether that person is a prohlblced Immigrant, and whether a deportation order should be made in respect cf

. ...

5

him; but otherwise, the prescribed authorlty shall order

that person to be released. Sub-sectlon ( 4 ) of the same

section provides that a prescribed authority may, from time

to time, extend a perlod of detentior. referred to	7-!I	t he
last preceding zection.

It seems to me that at least two thingz clearly

appear from sub-s. 38(3). The first is that the prescrlbed

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 detentlon 1 s

reasonably required for the purpose set out in 3ub-3. ( 3 ) .

Second, as I read the section, it seems to me that

sub-s. ( 4 ) . which allows extensions of the perifid of

detention, must be read in conlunction with sub-S. ( 3 ) , and

accordingly there is imported into sub-s. ( 4 ) the necessity

for the prescribed authority, in consldering a extension of

the period of detention, to be satlsfled that further time

is required reasonably by the Minlster to make such

inquiries as he deems flt.

The question in a nut-zhell is whether the bald

statement from the bar table by the counsel for the second

respondent that a further perlod is souqht s o that the

minister may conqider the question is sufficient in law to

justify a prescribed authority reaching stage a of

reasonable satisfaction that such further time 13 required.

6

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, rt seems to me, that the other view would justlfy a lawful period of

detention under sub-s. ( 3 ) on abasls of reanonable

satisfaction that that period is requlred by the minister,

that in any subsequent application under 3ub-S. ( 4 ) nothing

need be shown to the prescribed authority which ~ustifies dn extension of the period of detention ar.d the question here,

as I have said, i3 a short one: 15 lt good enough for

counsel simply to say that the minlster requires further

time without condescendinq 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 of the question to take place. In the end I hove come to the

conclusion, not without hesitation, that MK Mitchell did not

have authority to order the extension of the period of

detention which he did order and with respect to whlch this

order for review is brought.

7

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. 3 9 ( 1) of the act provides:

"39.(1) Where an order for the

deportation of a person is In force, Gn officer may. without

warrant, arrest a person whom

he re2.sonably supposes t@ be that person, and a person so arrested may, subject to this

section, be kept in custody as

a deportee in accordance wlth

sub-section ( 6 ) of this

section. 'I

If I am right in concluding that the appllcant war, not

lawfully in custody because of the lack of ]urisdiction to make

the order by the prescribed authorlty, Mr Mltchell, then the

question is: could he be lawfully urrested while detained

unlawfully in custody?

The effect of 3.38 has not been csnvaszed before any real extent, but it seems to me that me to

if I have power to 40

anything about the order it certalnly d@es not amount to a power

to quash a declsion 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 a3 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 Teems to me that this type

of decision is comprehended by a number of the partlcular

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 he taking

of action to implement the decislon

but -

(a) the Court or a Judge map, 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 condltions (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 ar not I sho~ld

exercise either of the powers specified in sub-s. 1 5 ( 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 acsume that

prima facie it was. In such case the applicant is llable to

arrest without warrant at any time and, it seems to me, at any

place where he is found. Consequently, Iam unable to

9

comprehend how a suspension of the operution of the order sought

to be reviewed or the staying of any proceedlngz 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 prescrlbed authority

on 21 June 1983 with respect to the applicant was made without

legal justification, there being no basis on whlch that

authority could reasonably conclude	that the Minister reasonably
required further time.

I am not prepared to make any other order ln the

matter for the reasons I have endeavoured to indlcate

previously. Basically, I feel that any other order woulc! be

nugatory in the result. However, I am prepared to conslder the

submissions on costs of the applicatlon. My precenk thlnlrlnq 1':

that at the time the application W ~ S made and xltll t 'l? t . 1 ~ I :

the deportation order was shown to have been made, tl-:. 3p?l I . \

vas entitled to an order for relief if such wa3 within my power

- which I doubt. However, the. opplicatlon was o r e msde vhich

was in part scxcessful though not to any practical sense. matter, to allow the applicant's costs of the hearmg before me

on 21, 22 and 23 June to be taxed.

I will accede to the application f Mr Andrews that he

have the costs of the first three days, but not of today.

-" - ,

10

I order that the further hearing of the matter be

adjourned to 3 date to be fixed by the Queensland Dlstrlct

Registrar of the Federal Court. '

JUDGES' CHAMBERS

SUPREME COURT

BRISBANE

I

I h e r e b y c e r t l f y t h a t t h e t 1=11 pages

a n n e x e d h e r e t o a]-e a t r u e a n d c o r r e c t c o p y o f t h e

r e a s o n s f o r JUdglletIt o f The Honoureb le Mr. J u s t l c e

C.C. S h e a h a n i n t h e n a t t e r of HARMUT SIEGFHTED K L R T Z E

( A p p l i c a n t ) a n d MR PETER M I T C H E L L , STIPZNDILRY MAGISTRATE

AT BRISBANE and THE MINISTER FOR I M M I C R P T I O N AND E T H N I C

AFFAIRS ( S e c o n d R e s p o n d e n t )

d e l i v e r e d 2 4 t h t h e d a y o n of Jur:e 1983.

A g s o c l a t e ,

C . D . SHEAHAN 2 .