Laroque, George v The Minister for Immigration & Ethnic Affairs

[1983] FCA 340

Re: GEORGE LAROQUE
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G330 of 1983
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Immigration - judicial review - applicant a prohibited immigrant in custody - deportation order revoked - applicant re-arrested - whether lawfully in custody.

Migration Act 1958, ss.7, 38 and 39.

HEARING

SYDNEY

#DATE 27:10:1983

ORDER

1. The application be dismissed.

2. The applicant pay the respondent's costs of this application.

JUDGE1

This is an application for judicial review brought under s.5 of the Administrative Decisions (Judicial) Review) Act 1977 in which the applicant seeks to review the decision of the delegate of the Minister for Immigration and Ethnic Affairs said to have been made yesterday by which it was ordered that the applicant be arrested pursuant to the provisions of s.38 of the Migration Act 1958.

The application was filed only today. The history of the matter began on Tuesday, 25 October, when an earlier application for judicial review (No. G 327 of 1983) was made seeking the review of a decision of the Minister dated 19 September, 1983, by which the deportation of the applicant from Australia was ordered pursuant to s.18 of the Migration Act. In short, it was said that the Minister had failed to take into account a relevant consideration, namely, the engagement of the applicant to an Australian citizen. The applicant also indicated that reliance would be-placed on any matters arising from reasons supplied by the Minister pursuant to an application in that behalf made pursuant to s.13 of the Judicial Review Act.

The applicant was due to be deported on an aircraft leaving for the United States of America on Tuesday afternoon. After short notice to the Minister I granted interlocutory relief restraining the applicant's deportation and stood the hearing of application G 327 over until today. I was informed this morning that because of the representations that had been made on behalf of the applicant the Minister had revoked the deportation order which he had made. The revocation is dated yesterday.

There is no doubt that the applicant is a prohibited immigrant. He arrived in Australia on 14 August, 1982, and was given a temporary entry permit which expired on 14 February, 1983. No further permit was issued to him with the result that by the force of sub-sec.7(3) of the Migration Act he became a prohibited immigrant.

Pursuant to s.38 of the Migration Act he was arrested on 5 September, 1983. He was brought before a prescribed authority, that is a magistrate, referred to in s.38, on 7 and 14 September, 1983. The deportation order, as I have mentioned, was signed on 19 September, 1983. Thereupon the provisions of s.39 of the Migration Act became applicable to the applicant.

It is the submission of counsel for the applicant that now that the deportation order has been revoked, there is no warrant to be found in the Migration Act, particularly in ss.38 and 39 thereof, for the continued imprisonment of the applicant. The relief sought is his release from custody.

In evidence is a telex dated yesterday sent from the Department in Canberra to the Department in Sydney. The material part of the telex is as follows:

"The delegate (Mr Woodward) will today revoke his deportation order dated 19/10/83, to enable Mr Laroque to make submissions as to his personal circumstances. The question of deportation will "then be reconsidered by the Minister or another delegate. When the order is revoked, Laroque will be arrested under s.38 of Migration Act.

You are instructed to advise his solicitors today that

1. The DO will be revoked today

2. Laroque will be arrested and kept in custody under s38 of Migration Act

3. Laroque will be brought before a prescribed authority by Friday 28/10/83 (see s38(2) of Act)

4. Solicitors are invited to present detailed submissions as to the personal circumstances of Laroque relative to the question of his deportation from Australia in the light of policy stated in chapter 3 of Residence Control Manual, available for inspection at the Department's Sydney office. The submissions should address in particular A) Laroque's relations with Ms Nancy Amodi, B) his character C) hardship if any, if he is required to depart Australia, and D) any other matter that he wishes to raise.

5. The submissions should reach Mr Moon of the Department's Sydney office no later than midday Tuesday 1/11/83.

6. The submissions and any supporting material will be placed before the Minister or a delegate who will consider then afresh the question of Laroque's deportation."

Sub-sections 38(1) and (3) of the Migration Act are as follows:

"38.(1) An officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited immigrant, and a person so arrested may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or an authorized officer directs. . . . . . .

"(3) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a prohibited immigrant and, if the prescribed authority is satisfied that there are such reasonable grounds, he may, by writing under his hand, authorize the detention of that person in custody for such period as the prescribed authority is satisfied 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."

It is unnecessary to refer further to s.39 except to say that because there is now in existence no deportation order, it can have no application. In particular it cannot be the source pursuant to which the applicant is held in custody. The respondent does not rely on it as such.

The principal argument on behalf of the applicant is that s.38 does not authorise arrest in cases where the person to be arrested is without question a prohibited immigrant. Because of the words "a person whom he reasonably supposes to be a prohibited immigrant" it is said that the section is only intended to apply to cases where the arresting officer, although having reasonable grounds for the relevant supposition, is not certain and needs to take the person into custody to make inquiries.

Support for that view of the meaning of the section is said to be found in sub-sec.(3) which refers to the prescribed authority, that is the magistrate, being satisfied that there are reasonable grounds for supposing the person to be a prohibited immigrant. He may authorise the detention of that person in custody for such period as the prescribed authority is satisfied 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. It is said that an arrest may only be made for both of two purposes, namely, to determine whether the person is a prohibited immigrant and, if he be such, then to determine whether or not he should be deported. Reliance is placed on the use of the conjunctive "and" in sub-sec.(3) as distinct from the disjunctive "or".

In my opinion the words in sub-sec.(1), "arrest a person whom he reasonably supposes to be a prohibited immigrant", cover cases where there is no question that a person is a prohibited immigrant and cases where it is suspected on reasonable grounds that a person is a prohibited immigrant. In cases where there is no question that the person arrested is a prohibited immigrant little time will be spent on that matter and the question will immediately become whether he should be deported. It will be for the prescribed authority to determine how long it is reasonable for the person to be kept in custody for the determination of the question of whether or not a deportation order should be made.

To my mind this gives the section a sensible construction. It enables its operation to be fair to persons whom it may affect and yet be protective of the public interest which there is in the control of persons who enter this country and who may, having entered it, have become prohibited immigrants.

Counsel for the applicant submitted that the way the legislation was intended to work was that in cases such as this where a person was known to be a prohibited immigrant the Minister had to make up his mind, as I understand it before any arrest, whether to deport him or not. If he did decide to deport him an order would be made pursuant to s.18 and the provisions of s.39 would then authorise his being taken into custody. If no deportation order were to be made there and then, he could not be arrested and was to be left at large. Nevertheless, s.38 would authorise, in what might be regarded as a lesser case, the arrest of a person reasonably suspected - I interpolate, not reasonably supposed - to be a prohibited immigrant, so that inquiries might be made to determine whether or not he was a prohibited immigrant. If he were found to be so, he might still be kept in custody for a reasonable period to enable the Minister to decide whether he should make a deportation order.

That is not a construction of the section that one would give it unless one were forced to do so because it was the only meaning which it could have. Such a construction would in many cases compel the Minister to issue deportation orders against persons for whom he had sympathy and whom he had no real wish to deport. There would also arise questions as to whether, if he made deportation orders willy nilly in all cases where persons were known to be, as distinct from being suspected of being, prohibited immigrants, he was improperly exercising his power to make a deportation order. It could be said that he was making such an order, not for the purpose of deporting a prohibited immigrant, but for the purpose of keeping him in custody while he considered whether in fact he should be required to leave Australia.

For all these reasons I am satisfied that the procedure which was adopted yesterday of revoking the deportation order and re-arresting the applicant under the provisions of s.38 was lawful. In my opinion the custody of the applicant is lawful, with the result that the application should be dismissed. That is the order which I make. The applicant is to pay the respondent's costs of the application.