Morato, G.C.S. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 735

Re: GUSTAVO CARLOS SAAVEDRA MORATO
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G367 of 1991
FED No. 735
Administrative Law
(1991) 33 FCR 410

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Administrative Law - application for judicial review - Migration Act - illegal entrant held in custody pursuant to deportation order - stay of deportation - application for release from custody pending hearing of review application - policy of Migration Act - test for release from custody - whether special circumstances exist.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Batog v Minister for Immigration, Local Government and Ethnic Affairs (unreported - Olney J: 25 September 1991)

HEARING

MELBOURNE

#DATE 13:12:1991

Counsel for the applicant: Mr O.P. Holdenson

Solicitor for the applicant: Moores

Counsel for the respondent: Mr R. Downing

Solicitor for the respondent: Australian Government Solicitor

JUDGE1

I propose to give very brief reasons as I have come to a firm conclusion as to the proper disposition of this application in which at this stage the applicant seeks first to have the putting into effect of a deportation order made on 21 November 1991 further stayed pending the hearing on its merits of his application for review and, second, an order that pending the hearing of the application to review he be released from custody.

1. I should perhaps preface my remarks by indicating that irrespective of the objection by the respondent to the exercise of jurisdiction in respect of some aspects of the application, there does appear to me to be an arguable case involving a question of law in this application in that the decision-maker appears, on the evidence before me, to have adopted a construction of the relevant treaty or rules relating to the granting of refugee status that may arguably be disputed and that seems to me to have been the original basis of the application. It is a matter which ought to be litigated and in those circumstances it is appropriate that it be dealt with by this Court at the earliest possible time. Pending that event the applicant ought not to be in jeopardy of deportation.

2. Accordingly, to facilitate the hearing of that matter and anything else that may flow from it I propose to extend the stay of the deportation order to an appropriate date. In a recent similar matter in which the question was raised as to the ability to pursue remedies in this Court after the execution of a deportation order I observed that it is not realistic to suggest that a person who has been removed from Australia can effectively challenge the legality of the process which has caused the deportation and I adhere to that view. Accordingly I propose to extend the stay in an appropriate manner.

3. The only question that I have to determine at this stage is whether the applicant ought to be released from his present custody pending the hearing and determination of his application for review. This is a question which is continually before this Court and is one which almost on a daily basis is decided on the facts as they appear in each individual case. It is very hard to establish from the decisions a rule which will inevitably lead to a predictable conclusion. As one example of that situation I refer to the matter of Batog, to which reference was made during argument, which was a decision I gave on 25 September 1991. In that case the applicant was refused an order releasing him from custody. Now, that case is said by Mr Downing to have been more or less of the same level of gravity as this one but it was different in that the applicant there had actually come to Australia validly, but stayed on a long time after he was entitled to. However, he did not seek any change in his status but rather wanted to stay on in order to pursue some legal remedy he had in the County Court for damages. In that case nothing was known of his circumstances in Australia which would justify the Court in reaching a conclusion with any confidence that he would in fact, at the end of the business in the County Court, depart from whence he came.

4. In dealing with Batog I reviewed a number of decisions to which I had been referred by counsel and came to the conclusion that however expressed the test in this type of case is whether there are special circumstances which justify release or, as Mr Justice Northrop seemed to have expressed the same thing slightly differently, whether sufficient reasons were given for the release.

5. I do not really think that there is much between the different expressions of the test and it is convenient to think in terms of special circumstances. I can imagine many special circumstances which will justify the release from custody of an applicant who is an illegal entrant. Without attempting to be exhaustive, there may be circumstances where perhaps his health whilst in custody (and I would include in this both his physical and mental condition) is put at risk or, indeed, his safety there might be in jeopardy.

6. In such circumstances, I am sure the facts would weigh heavily in favour of changing the custodial situation to a type that would remove the risks attendant by the continuation of the existing custody.

7. There will be other cases where the application for review is so overwhelmingly justified that it would be quite unjust to leave the applicant in custody pending the determination of his application for review or perhaps there may be circumstances where through no fault of his own there has been an unconscionable delay in the matter being brought on for hearing so that the interests of justice may dictate a need to permit him to be released from custody provided of course the appropriate safeguards are put in place that will ensure that at the time when the matter is finally disposed of he will observe his duty to depart the country if that indeed is the result of the proceedings.

8. In this case the circumstances are that the applicant is and has always been an illegal entrant. He is a man who over a long period has lived a life of deceit. He has travelled the world on false documents. He has been brought up in an environment, as he says, where fraud and corruption are the norm rather than the exception. He was engaged in perhaps the most heinous of criminal activities that can be imagined in this modern world, that is dealing in large quantities of cocaine and he did that apparently for monetary gain without regard to the welfare of the many hundreds or perhaps thousands of people whose lives may be wrecked as a result and he has shown a complete disregard for the laws of this country and the laws of other countries.

9. But he says now that he is a changed person and this as a result of his adoption of Christianity in the period since his incarceration following his arrest late in 1988. Evidence has been given as to the sincerity of his current beliefs and associated with that, evidence has been given as to the absence of any risk of him absconding if he were released. I am not in a position to judge these matters. It is an impossible task for anybody to judge the sincerity of an individual's religious beliefs without being able to minutely examine the person's conduct and practice and understanding and that is not the task of this Court on this occasion.

10. Accepting the applicant's evidence at its highest, he is a person who has put behind him a life of crime. He is a person who seeks refugee status in order, as I understand it, to facilitate his departure from Australia to a third country. He has said nothing about the circumstances of his custody. Being held in custody is obviously not a desirable state of affairs even at its best. But in this case nothing has been said as to any detriment that the applicant is likely to suffer. He would like to be with his wife and stepchild. He would like, no doubt, to be free for the time that it will take to have his application for review resolved, but nothing has been said that satisfies me that any special circumstances exist which make it appropriate that the general policy of the Act be departed from. I have no doubt, and have said elsewhere, that the general policy of the Act is that persons who are the subject of deportation orders ought to be kept in custody pending their deportation. The only caveat on that rule is that if special circumstances exist in the justice of the case the Court ought to make an appropriate order for release. I do not find any such circumstances in this case and I do not propose to make any order that will facilitate the applicant's release from custody.

11. I do, however, propose to make an order to ensure the speedy trial of the application for review. I propose to set it down for hearing on the next available date which is 10 February 1992. I have taken it upon myself to estimate that at least two days ought to be set aside on that occasion. I think that is probably a reasonable estimate. I propose that the stay in respect of the deportation order be extended until 4.15pm on Tuesday, 10 February 1992 or until further order.

12. I think that there should be an order that the applicant have leave to file any amended application and any further affidavit material upon which he seeks to rely on or before 24 January 1992. The respondent will have leave to file affidavit material in reply on or before 31 January 1992. I think such a programme should facilitate everything. There should be general liberty to apply on 48 hours' notice in writing in case there is some need to vary the programme. The costs of this hearing will be reserved.