Nassiri, B. v Minister for Immigration & Ethnic Affairs

[1986] FCA 249

Re: BEHZAD NASSIRI; KHALIL ORDIENEJAD and ABDOLAMIR MASOODNEJAD
And: S.J. DEER and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Nos. QLD G50, G51 and G52 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Administrative Law - Immigration - application to review decision of magistrate that the applicants be held in custody - legality of procedure whereby applicant was imprisoned.

Migration Act, 1958, ss. 38(3), s. 38(3A)

Administrative Decisions (Judicial Review) Act 1977, s. 5

HEARING

BRISBANE

#DATE 30:5:1986

For the applicants Mr. Boccabella instructed by Given & Masinello

For the respondents Mr. D.P. O'Gorman instructed by the Australian Government Solicitor.

ORDER

Proceedings G52/1986 be consolidated with proceedings G50/1986 and G51/1986.

The decision of the first respondent authorizing the detention of each of the applicants until 6 June, 1986 be suspended until further order.

Each of the applicants be released upon condition that -

(a) He report each Monday, Wednesday and Friday up to and including 6 June, 1986 at 9.30 a.m. at the office of the Department of Immigration and Ethnic Affairs at 1st Floor, 167 Eagle Street, Brisbane, to Mr. Aziz Essa or such other person as may be authorised.

(b) He reside in accommodation approved by Mr. Ross John Daniels.

(c) He notify Mr. Aziz Essa, or such other person as may be approved by the second respondent, of his address at all times.

(d) He comply with any reasonable request, given adequate notice, to attend at the office of the Department of Immigration and Ethnic Affairs in relation to his application for refugee status.

The matter be adjourned to be mentioned on a date to be fixed by the Registrar.

The costs be reserved.

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

JUDGE1

In each of these three matters the applicant seeks interim relief with respect to an application to review a decision of the first respondent, who is a magistrate, made on 23 May 1986 authorizing the applicants' detention until 6 June 1986. The case of Abdolamir Masoodnejad, number 52 of 1986, is the only one which has in fact been heard, but, by agreement of the parties, having heard that matter, I have made an order that the three be consolidated. I have been told that the other cases are similar to the case of Abdolamir Masoodnejad and that the same result should ensue in all three. These reasons, of course, relate only to the case which has been heard.

1. The evidence is that the applicant, who has very little command of English, is an Iranian citizen who was employed as a seaman on an Iranian ship which berthed at Mackay in this state on Tuesday, 20 May 1986. He left the ship on Wednesday, 21 May, at 3 a.m. and went to a motel, and made contact with officers of the Customs Department the following day. There is a dispute as to the circumstances in which that contact occurred, but it is not necessary to resolve it for the purpose of this decision. The applicant says that he spent some time in prison in Iran because he did not want to become a member of an organization called the Iranian Revolutionary Guards. I am told that he has made application for refugee status, and the dispute before me is in substance concerned with the question whether he should be in custody pending the determination of that application.

2. I am informed on behalf of the respondents that it is expected that the application will be determined quite soon. The applicant's case as opened by his counsel, Mr. Boccabella, challenged the legality of the procedure whereby he was imprisoned. I had thought initially that there was not sufficient affidavit material to justify interference with the decision to detain the applicant, but, having heard the oral evidence, I have come to a contrary view.

3. The detention order purports to have been made under section 38(3) of the Migration Act 1958, which reads as follows:
   
   

"Where a person is brought before a prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a prohibited non-citizen 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 non-citizen and whether a deportation order should be made in respect of him, but otherwise the prescribed authority shall order that person to be released."

1. It will be observed that the subsection requires as a condition that there be satisfaction of the existence of reasonable grounds for supposing the matter mentioned; that is not in issue here. It also is to be noted that the provision does not require that the person brought before the prescribed authority be detained if that authority is satisfied of the existence of such grounds, but merely gives a discretion to detain him. Under subsection 3A the period of detention cannot exceed seven days unless the person to be detained consents.

2. Evidence was called from a Mr. Bahry, an interpreter, who appears to have had the task of explaining to the applicant the nature of the proceedings which took place before the first respondent, who is admitted to be a prescribed authority. The evidence given by Mr. Bahry raises a strong prima facie case, in my view, that the applicant was not given to understand that there was no power to detain him beyond seven days unless he consented.

3. It is true that a form of consent was signed by the applicant, but on being repeatedly questioned about the matter the interpreter seemed to me to insist - his own English being by no means perfect - that he had not told the applicant that he had a choice about being detained, but had told him rather that he had to be detained for 14 days, for a reason which the interpreter gave.

4. Mr. Boccabella has urged upon me the view that in those circumstances, prima facie, the consent is vitiated because it was given by what can only be described as a misrepresentation. It seems to me unlikely that if the matter is finally determined a great deal more light can be thrown upon it; that is, although the only relief which is sought at present is of an interim nature, I am influenced somewhat by the fact that no one else is likely to be able to come forward to contradict what the interpreter, Mr. Bahry, says he explained to the applicant in the Iranian language.

5. Mr. O'Gorman, for the second respondent, the Minister for Immigration and Ethnic Affairs, suggested that perhaps another interpreter who had to deal with the applicant before Mr. Bahry took over may have made the requisite explanation. That seems in the circumstances somewhat improbable.

6. The power to detain for more than seven days depends entirely upon the giving of a consent and, probably through a misunderstanding, the first respondent caused to be given to the applicant an explanation of the position which, prima facie, was quite erroneous. All the applicant had to do if he did not want to be detained for 14 days was say so, and on the face of it he was never given to understand that, but was rather given the impression that he had no choice about being detained for 14 days.

7. It may seem a complex task to deal with this sort of case where the person sought to be detained has, as has Mr. Abdolamir, very little knowledge of the English language. Nevertheless, the legal requirement is clear, and there is, to put it at the lowest, a prima facie case here that it was not complied with in that the consent obtained was vitiated by the erroneous explanation of the legal rights of the person who was asked for the consent.

8. It was suggested during the course of the argument that perhaps the position was saved for the respondents by the principle that ignorance of the law is no excuse, but here the applicant's case is not based merely upon his lack of knowledge of the local legal position, but upon a positively false assertion, which, on the evidence given before me, may well have been made to him. As counsel for the applicant points out, the liberty of the applicant is involved and it seems at this stage improbable that if the matter proceeds to a full hearing the respondents would be able to sustain the order which has been attacked.

9. I should mention that it is by no means clear whether the error which was made was that of the first respondent or the interpreter; I would suspect it to be the latter. There is authority in the Full Court of the Supreme Court of Queensland in the case of Kimmorley v. Atherton ex parte Atherton (1971) QdR 177, that a magistrate may be guilty of an "error" or "mistake", even if it is an unwitting one and in circumstances as such that he could not possibly have known of the error. It is unnecessary, however, to determine whether that principle is applicable to applications made under s. 5 of the Administrative Decisions (Judicial Review) Act, as is this one. It is enough to decide at this stage that there is a prima facie case, and one then comes to the balance of convenience. There is no particular reason to think that the applicant would decamp or fail to comply with conditions as to his release, which I understand are agreed, and, however that may be, he is prima facie entitled to be released.

10. I do not see a sufficiently compelling consideration of convenience to deprive him of relief from what is, on evidence so far adduced, an unlawful detention. I therefore propose to order by way of interim relief the applicant's release from his present custody, subject to the agreed conditions.