Msilanga, D.W. v Minister of Immigration Local Government & Ethnic Affairs

Re: DEODATUS WILLIAM MSILANGA
And: THE HONOURABLE GERARD LESLIE HAND and MINISTER OF IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. S G11 of 1991
FED No. 84
Migration Act
22 ALD 27

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Migration Act - Judicial review - deportee taken into custody under s.93 - power of the court to order his release on bail pending the determination of an application under the Administrative Decisions (Judicial Review) Act 1977 - whether the applicant would be a danger to the community if released on bail - whether the applicant would be likely to abscond.

HEARING

ADELAIDE

#DATE 8:3:1991

Counsel for the applicant: Mr P.B. Womersley with Mr P.T. Byrt

Solicitor for the applicant: Womersley and Co.

Counsel for the respondent: Ms C. Frances

Solicitor for the respondent: Australian Government Solicitor

ORDER

On the notice of motion for interlocutory relief:

That the applicant be released on bail upon him entering into a recognizance in the terms settled by me and upon a surety in the sum of $10,000 of which $2,500 is to be provided in cash in accordance with the conditions of the recognizance.

Liberty to all interested persons to apply on short notice and if necessary ex parte to vary or cancel the terms of the bail.

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

JUDGE1

The application which was commenced this morning seeks orders for review in respect of decisions of the respondent made on 7 February 1991 to detain the applicant in custody and on 6 March 1991 to continue the detention of the applicant in custody. Both those decisions were made pursuant to provisions of s.93 of the Migration Act 1958. The present application seeks review of those decisions pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and s.39B of the Judiciary Act 1903.

I will give the factual history of the matter shortly, but I first outline the nature of the relief sought today. By way of interlocutory order, the applicant seeks relief which would have the effect of bringing about his release from custody, appending the termination of the substantive issues raised by the proceedings. The applicant argues that the court has power to make an interlocutory order of the type sought pursuant to ss.19 and 23 of the Federal Court of Australia Act 1966 read with s.15 of the ADJR Act. The respondent, on the other hand, contends that no such jurisdiction exists, and further argues that in any event no order should be made of the kind sought as it would have the effect of substituting in the short term the court's opinion for that of the Minister or his delegate formed under sub.s.93(9) of the Migration Act.
The respondent directed the court's attention in particular to reservations on the power to make an order of the kind sought expressed by Gummow J. in the case of Ali Elmi v. The Minister for Immigration and Ethnic Affairs in unreported decisions dated 21 December 1987 and 10 March 1988. In my view, this court has jurisdiction to make orders of the kind sought pursuant to the sections invoked by the applicant and I rely on the authority of earlier decisions of the court in Noral Piroglu v. The Honourable Ian McPhee, Minister for State for Immigration and Ethnic Affairs, and The Commonwealth of Australia (1981) 4 ALD 323, and Unlugenc v. The Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569.
In my opinion the reservations expressed in Elmi to which reference was made are clearly distinguishable. In that case, the decision pursuant to which the applicant was held in custody pending his deportation was not the subject of the application for review. In the present case, both the decisions pursuant to which the applicant has been, or is being held, are the subject of the proceedings.
On an application for interlocutory relief the court has to consider two questions: firstly, whether on the substantive issues there is a serious question to be tried; and secondly, if that question is resolved in favour of the applicant, where the balance of the convenience lies. If the balance is in favour of the order sought by the applicant it will be made pending further order of the court or the determination of the issues.
In my view, there are serious questions to be tried raised by the application. It is inappropriate that I give expanded reasons for so believing, as those very questions will have to be agitated in more detail and determined in the course of a full trial. It is sufficient that I indicate what those serious questions are. In my view, in relation to the decision on 7 February 1991 there is a serious question whether that decision has had any force since the decision of 6 March 1991. It is at least arguable that the decision, or the purported decision, on 6 March 1991 displaced any force or effect which the earlier order would have had. Even if the decision of 6 March 1991 is by reason of procedural error invalid, in my view there remains a serious question to be tried whether in that event the applicant could lawfully be held pursuant to s.93. That point arises under sub.s.93(2) which provides that a person arrested under sub.s.(1) or (10) may, "subject to this section, be kept in custody as a deportee in accordance with subsection (8)". The point of contention would be whether, if there is an invalid disposition of an application regularly made under sub.s.(9), the deportee thereafter is being held in accordance with the section.
In my view, there are also serious questions to be tried regarding the procedural regularity and therefore validity of the decision made on 6 March 1991. The decision of the delegate then made rests primarily on two grounds: that if the applicant were released from custody pending the determination of the substantive issues, firstly there would be a likelihood that he would abscond, and secondly there would be a likelihood of further criminal activity or convictions on his part.
There are serious questions to be tried on the first issue as to whether there was evidence to support the conclusion that the applicant was likely to abscond, and further, whether some irrelevant fact was taken into account to arrive at that decision. It is contended that an irrelevant fact was taken into account, namely a belief by the decision maker, or a policy, that people subject to a deportation order are likely to abscond, given certain matters such as no ownership of assets.
A serious question that I think arises concerning the second aspect of the decision namely the likelihood of further criminal activity, again is whether there existed evidence sufficient to support the inferences and the findings of fact leading to the ultimate conclusion reached by the delegate. And again, there is a serious question whether an irrelevant consideration was taken into account, namely a policy or principle that people who have committed one serious offence are likely to commit other serious offences of a like or dissimilar nature.
These are serious matters which warrant a proper trial of the application after particulars have been given to better crystallise the points which the applicant wishes to pursue.
The much more difficult question in the case is the determination of where the balance of convenience lies. And on this question I think it is necessary that I recite some of the background facts. The applicant is a 38 year old Tanzanian citizen. He entered Australia on 22 August 1986 on a temporary entry. As a result of his marriage to his Australian fianc e on 8 November 1986 he was granted a resident entry permit. The marriage lasted only a short time, and was finally dissolved in 1988.
On 4 March 1989 the applicant committed a very serious knife attack on a woman with whom he had recently had a close friendship. The attack occurred in her home. She suffered horrendous injury. The applicant was taken into custody that day, and remained in custody pending his conviction and sentence, ultimately on his own confession, of the crime of wounding with intent to do grievous bodily harm.
The sentence of the Supreme Court of South Australia was that he be imprisoned for seven years. A non-parole period of three years was set. The sentencing judge said that the offence was committed whilst the applicant was under the influence of liquor, and he said that he took into account the applicant's previous good character and his resolve in his contrition to positive and worthwhile action for the predicament in which he found himself.
With the benefit of remissions, the applicant was released from custody on strict parole conditions on 4 February 1991. Prison records subpoenaed by the applicant's solicitors suggest that he was a model prisoner during his incarceration. The parole conditions include conditions as to reporting his place of residence, that he abstain from alcohol, that he not enter upon the premises of any licensed hotel, and there were further absolute conditions or "designated conditions" as they are called, which provide that he shall not possess an offensive weapon and shall not contact, attempt to contact or associate in any way with the victim of his crime.
In the event of a breach of either of the designated conditions, the applicant would render himself liable to be taken back into custody for the balance of the seven year term of his sentence, or for so long as he might remain in Australia prior to deportation.
The applicant's conviction and sentence rendered him liable to deportation in the exercise of the respondent Minister's discretion under s.55 of the Migration Act. On 7 February 1991, the Minister signed a deportation order. Pursuant to s.93 of the Migration Act the applicant was arrested and taken into custody on 8 February 1991, pending deportation.
Prior to his arrest, the applicant had been residing with a minister of religion in the Anglican Church of Australia and his family, and employment had been found for him. In his few days of freedom he complied with his parole conditions. The arrest of the applicant was his first notification of the making of the deportation order. On 8 February he applied to the Administrative Appeals Tribunal for a review of the decision. On the same day an order was made by the Tribunal staying his deportation pending the review.
It is likely that the Administrative Appeals Tribunal hearing will occur within the next two to three months, and presumably a decision will be given shortly thereafter. The applicant also made application to the Minister for his release from custody pursuant to the power under sub.s.93(9) of the Migration Act, pending the Administrative Appeals Tribunal review.
That application was made by letter from his solicitors on 11 February 1991. As no decision on that application had been made by 25 February 1991, proceedings were issued in this court to review the decision implicitly made on 7 February 1991 to detain him in custody. The delegate of the Minister made a decision on the application under sub.s.93(9) on 6 March 1991. That is one of the decisions now under challenge. The making of that decision rendered the first set of proceedings futile and the new proceedings commenced today and are now those before the court.
The Minister determined that the applicant remain in custody, and he is presently held in the Adelaide Remand Centre.
In the exercise of the discretion which this court must now exercise, the respondent opposes the release from custody of the applicant on the grounds, firstly that the applicant is a danger to the community and in particular to the victim of the attack on 4 March 1989 and to people close to her who say they fear reprisal from the applicant as they have given her support in one way or another; and secondly, that there is a likelihood that the applicant will break his bail and abscond. These are the reasons expressed by the delegate in his decision of 6 March 1991, but in my opinion this court must consider these matters afresh on the information before it and form its own judgment.
The attack on the victim was, as I have said, horrendous, and her predicament cannot help but invite sympathy. That she entertains fear is understandable, but her situation is similar to that which many victims of crime must inevitably face. People guilty of criminal offences are punished according to the criminal law. Almost inevitably after a time, and serving the sentence of the criminal court, they are released back into the community.
If the applicant were not a non-citizen under the Migration Act there would be no question of him being detained in custody beyond the ordinary requirements of his sentence. It is simply not open to the authorities to implement a victim's desire born out of fear of further attack to never release an offender.
In my opinion, this application should be determined primarily according to an objective assessment of the likelihood of the applicant committing an attack upon someone in the community, and in particular upon the victim and her immediate friends and family. In assessing that likelihood, obviously regard must be had to what happened in March 1989, but regard must also be had to the established behaviour of the applicant both before and after that event, to the fact that he has undergone nearly two years of punishment since then, and to the fact that if released he would life under the regime dictated by the terms of his parole.
I have already mentioned those terms and the one of particular significance is that he not approach in any way the victim of the crime. This court, of course, can also impose terms in a recognizance for release on bail which in themselves can be restrictive and can be reviewed at short notice.
The extensive correspondence from members of the community which is now on the court file - some from the victim and her close family urging a continued incarceration of the applicant and others supporting his bid to remain at large in Australia - express widely different views, but one thing is clear from the correspondence - the applicant has expressed an overwhelming desire to remain in Australia.
In my view it would be extraordinary if he were to torpedo his chances of achieving that end, whatever those chances might be - and on that the court can express no opinion - by breaking a term of his parole or a term of bail. Apart from the attack on 4 March 1989, the applicant has not displayed a violent or physically aggressive disposition. In the time since March 1989, and particularly in the four days when he was at large in February this year, there has been no suggestion he has endeavoured to contact the victim. Grave though the attack in March 1989 was, it appears an isolated aberration. The information before the court, a lot of which is far from objective, gives no basis in my view for believing that the applicant should not be released on the ground that he would be a danger to members of the community.
I consider he should be released on bail, but on conditions as to reporting and non-contact with the victim and members of her family who are to be named in the conditions of bail.
I do not think the information before the court establishes any real risk that the applicant will abscond. But as a formality to cover that eventuality, in my view a surety should be insisted upon. There is a surety prepared to put up a substantial sum of money to ensure due compliance with the bail conditions by the applicant. A surety in the sum of $10,000 is sufficient, I would have thought, to cover the costs of the respondent in locating the applicant in the unlikely event that he breaks the term of his bail by absconding.
For these reasons I propose to order the release of the applicant, subject to the terms of bail which have been already read out to the court. They will now be typed up, and checked by the parties concerned. The surety can enter into his recognizance here and I will give a direction that the applicant be released upon his executing the terms of the recognizance in the presence of a justice, and that can be done at the gaol.

[1991] FCA 84

08 MARCH 1991