Palmer Tube Mills Ltd v Tubemakers of Australia Ltd

[1991] FCA 588

52% 74 1

JUDGMENT No.. ........ ........ ........ ..

IN THE FEDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH WALES DISTRICT REGISTRY	1 No. 58 of 1991
1
GENERAL DIVISION	1

BETWEEN: PALMER TUBE MILLS LIMITED

First Applicant

PALMER TUBE MILLS IAUST) PTY LTD

Second Applicant

AUSTRALIAN TUBE MILLS PTY LIMITED

Third Applicant

AND:  TUBEMAKERS OF AUSTRALIA LIMITED

First Respondent

THE BROKEN HILL PROPRIETARY

COMPANY LIMITED

Second Respondent

JOHN LYSAGHT (AUSTRALIA) LIMITED

Third Respondent

AUSTRALIAN WIRE INDUSTRIES

PROPRIETARY LIMITED

Fourth Respondent

AUSTRALIAN IRON AND STEEL

PROPRIETARY LIMITED

Fifth Respondent

CORRIGENDUM

To the Reasons for Judgment of Lockhart J. dated 23 September

3 December 1991

1991:

Insert on page 9 after the words "... and arrangements referred to in the said letter." a new paragraph as follows:

"5. Where a document to be discovered is a computer disc, only hard copies of those parts of the disc that contain discoverable material are to be discovered."

Associate to Mr Justice Lockhart

Administrative law - immigration - interlocutory relief - deportation order - deportee detained in custody pending availability of travel documents - deportee sent out of Australia and sent back by Italian authorities - whether "seeking to enter Australia" - whether illegal entrant. - whether power to detain in custody when turn-around procedure

.

not invoked - whether deemed to have entered Australia - whether release from custody should be ordered - serious criminal record - record of absconding on bail - whether should languish in prison - conditions of possible release.

Words and phrases - "seeking to enter Australia".

Piaration Act 1988 s.55, s.20, s.87, s.89, s.49, s.14, s.4,

6.59, s.60, s.13, s.92.

. .

trative Declslon S (Judicial Review) Act 1977 s.11.

RAK

AND ETHNIC AFFAIRS

No. VG 186 of 1990

GRAY J.

MELBOURNE

I

16TH OCTOBER 1990	RECEIVED
FEDERAL COURT OF

PRINCIPAL

REQIOTRV

F THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	1	No. VG 186 of 1990
)
-	1
BETWEEN :

JOHN ASEN KIRAKOS

Applicant

-and-
m E MINISTER FOR IMMIGRATION. LOCAL
GOVERNMENT AND ETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

glPGE: Gray J.

M:  Melbourne

m: 16th October 1990

By notice of motion, filed on 2nd October 1990, the
applicant seeks interlocutory orders to effect his release

from custody and to restrain his further arrest or detention

or his removal or deportation from Australia, pending the	final hearing and determination of the principal proceeding,
or further order. The principal proceeding is an application for an order to review various decisions of the Minister for Immigration, Local Government and Ethnic Affairs, concerning the applicant.
The applicant was born in Syria in 1955. He entered Australia on 26th June 1974, with an entry permit which permitted him permanent residence. Since 1976, he has been

. convicted of numerous criminal offences. It is only necessary at this time to mention the two most serious of those offences. On 16th November 1984, at the Magistrates Court at Melbourne, the applicant was convicted of malicious wounding and sentenced to two years' imprisonment, with a requirement that he serve a minimum term of eight months before being eligible for parole. He served that sentence. On 15th December 1987, he was convicted at the County Court at Melbourne of setting a trap with intent to cause injury, and was sentenced to two years' imprisonment, with a minimum term of one year before being eligible for parole.

At a meeting of the Adult Parole Board on 14th October 1988, while the applicant was in Castlemaine Prison, the board denied him pre-release, but ordered that he be released on parole between 2nd July 1989 and 2nd February 1990.

On 29th June 1989, a delegate of the Minister for
Immigration, Local Government and Ethnic Affairs signed an

Migration Act 1988 ("the Migration Act"), which are now found order pursuant to the provisions then found in s.12 of the

in s.55, that the applicant be deported from Australia. The basis of the order was the conviction on 3rd July 1984, coupled with the propositions that the applicant was not an Australian citizen and had been present in Australia as a permanent resident for less than ten years at the time of the commission of the offence.

On 29th June 1989, shortly prior to the applicant's

scheduled release on parole, an officer under the Migration Act signed a direction to the Governor of Her Majesty's Prison at Pentridge, to keep the applicant in custody pending deportation. The applicant was therefore kept in custody, not only after the date on which he would have been released on parole, but after the expiration of any sentence of imprisonment imposed on him.

On 14th February 1990, the applicant applied to the Administrative Appeals Tribunal for review of the decision to deport him. He was granted an extension of time to lodge his application for review. It appeared in evidence before the tribunal that the deportation order had not been carried out because of difficulty in obtaining travel documents acceptable to the Syrian authorities, the applicant being without a passport. The tribunal delivered its decision on 23rd May 1990 in the following terms:

for reconsideration in accordance with a	"The matter is remitted to the respondent
recommendation that, if it is not possible to execute the deportation order within a reasonable time as referred to in the statement of the reasons for the decision in these proceedings, the decision to deport the applicant and the order made consequent thereupon should be revoked."

In his reasons for decision, Deputy President Thompson, who constituted the tribunal, expressed the view that "it would not be unreasonable to continue to detain the applicant for a

further fairly short period, say up to four months, while efforts are urgently made to try to obtain travel documents from the Syrian authorities." The four month period so stated appears to have been accepted by both the applicant and the respondent as the reasonable time referred to in the tribunal's decision.

On 28th June 1990, the applicant lodged with the

Court an application to review the decision to deport him,

pursuant to the A d m i n i s t r a t i v e Dec i s ions ( J u d i c i a l Review) Ac t

1977("the ADJR Act"). That application became matter no. VG 186 of 1990. It was made outside the time prescribed by 8.11 of the ADJR Act. By notice of motion, the applicant sought to persuade the Court to extend the time for the bringing of the application, and to order his release from custody pending the hearing and determination of the application. Those motions were dealt with by Keely J., who delivered judgment on 8th August 1990, refusing the extension of time. His Honour also held that, if he had granted the extension of time, he would	not have granted an order releasing the applicant from	custody.
It is not clear what steps officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") took to endeavour to obtain travel documents for the applicant, nor how early they took those steps after the decision of the Administrative Appeals Tribunal. All that is known is that, on 11th September 1990,

there was received in Canberra a telex from the Australian
Embassy in Damascus, dated 7th September. That telex is
in ambiguous terms, but was taken to indicate that the
applicant could be sent to Syria with any travel document the
Australian government chose to give him, and without visa, as
Long as travel details were notified well in advance. On 11th
September, officers of the DepartmenC began to make
arrangements to book the applicant on the first available
flight to Syria. The applicant was given a certificate of
identity, which specifically stated that it did not constitute
authority to re-enter Australia. It was dated 19th September
and was due to expire on 2nd October. It described the
applicant as being "stateless", which is odd, given that the
applicant is described as a Syrian national in a number of

other documents in the Department's possession.

Travel arrangements were confirmed on the morning of
21st September, and on that day the applicant was given notice

that he was to be deported on 23rd September. He was due to

depart Melbourne on Qantas Flight QFl5 at 12.45 p.m. and to	arrive at Damascus on Syrian Arab Airlines flight RB418 at
9.50 p.m. on 24th September. The transit point was to be Rome.
On 23rd September, the applicant was placed on flight QF15 with two Qantas security guards. He arrived in Rome at 7.00 a . m . on 24th September. The Qantas security escorts then received information that Syrian Arab Airlines had refused to accept the applicant as a passenger because of insufficient evidence that he was a Syrian national. The airport manager of Syrian Arab Airlines in Rome would not accept the Australian certificate of identification. A decision was therefore made by Italian authorities that the applicant should be returned to Australia.

An officer of the Department in Australia was

advised that the applicant had been refused permission to board the flight from Rome. Attempts were made to obtain confirmation from within Syria, to enable the planned flight to proceed, but these were unsuccessful. Accordingly, the applicant was placed on Qantas flight QF16 and returned to Australia. The flight landed in Sydney but the applicant was allowed to remain on it until it arrived in Melbourne. At that time, the view was taken that the applicant would become an illegal entrant if he were allowed to enter Australia, becauae of the operation of s.20(l)(d)(v) of the Migration

Act, which applies to a non-citizen who has entered Australia	after being deported from Australia or another country. He
was therefore refused entry under s.87(l)(a). It is
convenient to set out the whole of 8.87 of the Migration Act:

"(1) An officer may -

(a)	prevent a person from entering Australia where that person would, if he or she so entered, be an illegal entrant; or
(b)	prevent a deportee from leaving a vessel on which he or she has been placed, and may take such action and use such force as are

necessary for that purpose.

(2) The master of a vessel may, in

relation to persons on board the vessel, do all things which an officer is, under sub-section (l), authorized to do."

The applicant was then purportedly taken into custody pursuant to s.89(2) of the Migration Act. An authority to hold in custody under 8.89 was directed to the Governor of Her Majesty's Prison at Pentridge, on the basis that the applicant was a person whom the relevant officer reasonably believed to be seeking to enter Australia in circumstances in which he would become an illegal entrant, who disembarked from flight no. QF16 and who had not left the airport. The applicant was therefore conveyed to Pentridge, where he remains.

On the same day, the Australian Government Solicitor advised the applicant's solicitors that no step would be taken to remove the applicant from custody until 30th September.

On 28th September, the applicant's solicitors requested reasons for various decisions, an undertaking that the applicant would not be deported and his release from custody. In return, an undertaking was given not to send the applicant out of Australia for seven days. An application was made ex parte to the Court to stay the applicant's deportation and for his release, but Jenkinson J. refused to give these orders.

On 2nd October, an application to review was filed. Although a fresh application, it was given the same number as the earlier application to review, No. VG 186 of 1990.

On the hearing of the notice of motion, Mr. Keon- Cohen of counsel appeared for the applicant and Mr. Tracey of counsel for the respondent. In the course of the hearing, the applicant indicated an intention to seek to amend the application to review. Mr. Keon-Cohen identified eleven separate decisions or items of conduct of which he sought review. Some can be ignored, as they involved alleged decisions to impose on the applicant liability for the costs of his deportation and the costs of his detention pending deportation. It is clear that no such decisions have been made. There is an attempt to challenge the decision to put into effect the deportation order. The question whether it is possible to treat as a separate decision the putting into effect of an earlier decision which is now beyond challenge

Also challenged were alleged decisions to arrest and detain

under the ADJR Act is one which was not pursued at length.

the applicant in Rome and to convey the applicant from Rome to Australia, the alleged decision that the deportation order continued to be valid and have force and effect and consequential decisions with respect to the applicant's arrest and detention and further deportation, the alleged failure to give any or any adequate consideration to the revocation of the deportation order in accordance with the decision of the Administrative Appeals Tribunal and alleged decisions not to

I

take the applicant before a prescribed authority for the purposes of 8.92 of the Migration Act and to arrest, to continue to detain and not to release the applicant.

At this interlocutory stage, it is unnecessary to

pursue most of the issues which the applicant seeks to raise.

Mr. Tracey contended that the decision to deport the applicant

had been executed by placing him on flight QF15 on 23rd September, and was spent once the applicant had left the territorial limits of Australia. He based this contention on what was said in pobtelmes v. Brenan (1906) 4 C.L.R. 395, at p. 406 per Griffith C.J. and p. 407 per Barton J. I am inclined to think that the contention is correct, although if it is possible for the applicant to challenge as a decision any step taken to carry out the deportation decision, some consequences may still flow from such step. Further, Mr. Tracey contended that anything which was done in Rome by way of sending the applicant back to Australia was done by Italian authorities, and was beyond the control of the Australian

correct. If it is, then nothing more can be done with respect	government. Again, I am inclined to think that this is
to the applicant pursuant to the decision to deport him made on 26th June 1989. The applicant's rights are to be determined according to his status when flight QF16 arrived in Australia on 26th September. By that time, he had ceased to have the benefit of his earlier entry permit. By virtue of s.49 of the Migration Act, an entry permit granted to a non- citizen stops being in force when the non-citizen leaves Australia and has no further force. By virtue of s.4(8), a person is deemed to have left Australia if he or she has gone outside the territorial limits of Australia.
By virtue of S. 14(1), on entering Australia, a non- citizen becomes an illegal entrant unless he or she is the holder of a valid entry permit or of an entry visa under s.17. The applicant held neither. Section 4(5)(b) has the effect that the applicant would have been deemed to enter Australia upon leaving Tullamarine Airport after disembarking from flight QF16. -Had the applicant left the airport, he would have become an illegal entrant within the meaning of 8.89. It is common ground that Tullamarine Airport is a proclaimed airport for the purposes of the Act. These circumstances raise the question of the operation of 6.89 of the Migration Act, the relevant parts of which are set out:

"(1) A person who is on board an aircraft at the time of the arrival of the aircraft at a proclaimed airport, whether or not

the aircraft in Australia, being a

that airport is the first port of call of

stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia in circumstances in which the person would become an illegal entrant, may -

(a)	if an authorized officer so directs; or
(b)	if the master of the aircraft so requests and an authorized officer approves,

be taken off the aircraft by an officer and kept in such custody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such time as the person is removed from Australia in accordance with sub-section (4) or until euch earlier time as an authorized officer directs.

aircraft at a proclaimed airport, whether (2 A person who disembarks from an

or not that airport is the first port of call of the aircraft in Australia, being a stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia in circumstances in which the person would become an illegal entrant, may, at any time before the person leaves the airport -

(a)	if an authorized officer so directs; or
(b)	if the master of the aircraft so requests and an authorized officer approves,

be taken into custody by an officer and kept in such custody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such time as the person is removed from Australia in accordance with sub-section (4) or until euch earlier time as an authorized officer directs.

(3) Where a person, not being a person exempted under sub-section 106 (1) from the operation of section 76, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and

been refused an entry permit at that airport or at any other airport in

Australia at which the person has called in the course of that travel, the person may, if an authorized officer so directs, be taken into custody at that first- mentioned airport by an officer and kept in such custody, either at that first- mentioned airport or elsewhere, as an authorized officer directs until such time as the person is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.

(4) Where a person is taken into custody under sub-section (l), (2) or (3), an authorized officer may, at any time within 48 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charterer of the aircraft on which the person travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.

(5) A master, owner, agent or charterer

on whom a requirement has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or within such further period as an authorized officer allows, whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of his or her removal from Australia.

Penalty: $5,000.

charterer of an aircraft are, jointly and (7) The master, owner, agent and

severally, liable to pay the Commonwealth a fair sum for the cost of keeping and maintaining a person while he or she is kept in custody in pursuance of sub- section (l), (2) or (3) and, if the person has been kept in custody at a place other than the proclaimed airport, the cost of transporting the person, and a custodian of the person, from the airport to the place of custody and, if the person is

required to be removed from Australia, from the place of custody to the vessel or

aircraft upon which he or she is to be so
removed.

(8) A person shall not, for the purposes of this Act, be deemed to have entered Australia merely because he or she was taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of sub-section (l), (2) or (3).

If this section was applicable to the applicant on his arrival at Melbourne, the relevant powers were to be found in sub- s. (2). It was the power in that sub-section which was purportedly invoked with respect to the applicant. I have set out the other sub-sections because they may have a bearing upon the proper construction of sub-S. (4), which is of some importance. It will be seen that each of sub-ss. (l), (2) and (3) empowers an authorised officer to direct that a person be kept in custody, either at an airport or elsewhere, "until such time as the person is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorised officer directs." If a person is kept in custody at a place outside the airport, sub-s.(8) excludes the effect of s.4(5), under which the person would ordinarily be deemed to have entered Australia on leaving the airport. Sub- s.(8) is framed carefully; it is only the one factor, that of being taken from a proclaimed airport for the purpose of being kept in custody in pursuance of sub-ss. (l), (2) or (3), which is to be excluded from consideration in determining whether a

person is deemed to have entered Australia for the purposes of	s.4(5). It follows that, if a person were removed from a
proclaimed airport otherwise than in the execution of the powers given by s.89(1), (2) or (3), s.89(8) would not operate to prevent the deeming effect of S. 4 (5). For the purposes of the Act, a person so taken from the airport would have entered Australia.
Mr. Tracey contended that the power under s.89(2) had been exercised in relation to the applicant, so that he had been removed from the airport and kept in custody, without having entered Australia for the purposes of the Act. Mr. Keon-Cohen argued that 8.89 had no application to the applicant at all, because he could not be described as a stowaway, or as "seeking to enter Australia". I do not regard this argument as having much weight; although the applicant may have returned to Australia against his will (and there is no evidence to this effect), when he left the aircraft at Tullamarine Airport he was not intending anything other than to leave the airport, and therefore to enter Australia.
Whilst it may be conceded that the removal of the applicant from the airport into custody on 26th September was an exercise of the power under s.89(2), a difficulty arises about his continued detention in Pentridge. In the present case, no notice has been served on the operator of flight QF16, pursuant to sub-s.(4), requiring that operator to remove the applicant from Australia. The time for the service of
a notice had been served, in the ordinary course, the such a notice passed at some time on 28th September. If such
applicant could only have been held in custody for a further seventy-two hours before being taken on a flight out of Australia.
Mr. Tracey argued that s.89(2) constituted authority for keeping the applicant in custody until either he was taken out of Australia by the carrier which brought him in, or an authorised officer directed that he be removed from custody. Mr. Tracey did concede that a serious question to be tried arose with respect to this argument. I am of the view that the applicant has a strong case for arguing that s.89(2) no longer constitutes authority for his retention in custody. AB I have said, the powers in s.89(1), (2) and (3) are exercisable pending removal from Australia in accordance with a notice served under sub-s.(4). Those powers cannot be construed as powers to detain a person in custody indefinitely. If no notice is served pursuant to sub-s.(4), within forty-eight hours after a person is taken into custody, there is no possibility of removal from Australia in accordance with that sub-section. The right to keep a person in custody under sub-s.(l), (2) or (3) must then cease and the custody must become unlawful, unless it can be justified by reference to some other provision. Further, because the one factor upon which sub-s.(8) concentrates has gone, namely the keeping in custody in pursuance of sub-S. (l), (2) or ( 3 ) , section 4(5) must operate to deem the person in custody to have entered Australia.
Reference was made to Sinathona v. Minister fox Jmiaration and Ethnic Affaim (1988) 80 A.L.R. 147, especially at pp. 156-158, where Burchett J. discussed the effect of what is now S. 89 (8). In that case, his Honour was compelled to consider whether an interlocutory order, releasing a person from custody, would have the effect of causing that person to enter Australia. In that case, a notice under what is now S. 89 (4) had been given. His Honour held that the effect of what is now s.89(8) was that the person in custody had not been deemed to enter Australia, so that her departure from that custody would make no difference. At p. 158, his Honour said:

" . . . .it seems to me that the applicant is

no more and no less in Australia, whatever she does after the time when she left the airport. Either at that time she was deemed to have entered Australia by virtue of s [4(5)], or she was not deemed to have

entered Australia by virtue of s [89(8) 1.

If her application to the court ultimately succeeds, it appears that she left the airport under circumstances which did not fall within the terms of s [89(8)], then no action which the Minister or the court might seek to take can alter the fact that she did leave the airport and was thereby, in those assumed circumstances, deemed under s [4(5)] to have entered Australia. On the other hand, if she ultimately fails in her application, her movement from Villawood to Cremorne or elsewhere cannot alter the fact that when she left the airport she did so by reason only of her having been taken from it for the purpose specified in sub-s.(8). It is because this is so that the draftsman of sub-s (8) found it unnecessary to refer to the several situations, which must have been readily apparent to him, in which a

person might leave a place of custody, and	in particular the situation expressly
envisaged by sub-s (6). It was unnecessary to refer to any of those matters because the question was not what might be done afterwards, but what was the legal effect of the person leaving the airport. That was decisive of whether the person was a person deemed for the purposes of the Act to have entered Australia."

I do not regard this passage as authority for the proposition that, whatever else might occur once a person has been removed from an airport into custody pursuant to s.89(1), (2) or ( 3 ) , that person can never be deemed to have entered Australia by virtue of s.4(5). If that were the proper conclusion, even the bringing to an end of the custody by an authorised officer under any of those sub-sections would not result in entry. Even return to the airport by the person concerned, and leaving it again, would not effect entry. In short, entry could never be effected. In any event, the circumstances of this case are different from those of Sinathong. In this caee, no notice pursuant to sub-S. (4) was given, so that the custody in which the applicant is held has ceased to be

custody "in pursuance of sub-section (l), (2) or (3) ", within

the meaning of sub-S. (8). Accordingly, I am of the view that there is a strong case that the applicant has entered Australia for the purposes of the Act.

Mr. Tracey sought to find alternative authority for the applicant's being held in custody, in 8.87 of the Act, which I have already quoted. It is interesting to note that there is no specific power in 8.87 to arrest or detain a	person or to keep a person in custody. There is a power to	"take such action and use such force as are necessary for that
purpose". Those words appear in para.(b) of sub-s.(l), but not in para.(a), which is the provision on which Mr. Tracey needs to rely. Mr. Tracey did argue that those words are applicable to both paragraphs of the sub-section, but that is an argument which is highly unlikely to succeed. Deprivation of liberty is such a drastic step that it is normal to expect specific provision for it if a statute intends to empower a person to detain or keep in custody. Taking a person from an airport to place him or her in custody, other than in the exercise of the powers given by 8.89 would not prevent the person from entering Australia; its effect would be the very opposite, by virtue of s.4(5) of the Act. In these circumstances, and in the absence of authority, I have serious doubts that a court would regard the power to prevent a person from entering Australia in s .87(l) (a) of the Migration Act as incorporating a power to arrest and detain in custody outside an airport.
No other source of power was advanced which would justify keeping the applicant in custody beyond 28th September. If my conclusions are correct, and the applicant has entered Australia for the purposes of the Act, his status is that of illegal entrant under s.14(1) of the Migration Act. He will be liable to deportation after the period of grace has ended, pursuant to S. 59, and may be the subject of a decision
under 8.60 to deport him at the end of the period of grace. The period of grace is calculated according to 8.13. He is
also liable to be arrested and kept in custody pursuant to 8.92, subject to the requirements of that section that he be brought before a prescribed authority within forty-eight hours after the arrest. In these circumstances, the question arises whether I should now order his release from his present custody.
A major factor in the decision whether to order the release of the applicant must be his criminal record. It appears that there was some controversy over whether the applicant had in fact been convicted of all the offences which were alleged in the Administrative Appeals Tribunal. There is in evidence before me a table of convictions which he does admit. Even those convictions make it plain that he has a very bad record. From 1976 onwards, he has been convicted of numerous offences, some of them involving firearms, others involving violence and still others involving the possession of illegal drugs. The seriousness of some of these offences is indicated by the sentences which the applicant has served in relation to the two to which I have already referred. He has served other sentences of imprisonment for other offences. He has shown such a propensity to commit criminal offences that it must be doubted whether he is to be deterred from such offences by any sentence which might be imposed within the bounds recognised by the law. On the basis of the applicant's
criminal record, Keely J. formed the view that there was "a
he be released'. It was said by Mr. Keon-Cohen that evidence significant likelihood of harm to the Australian cornunity if
was placed before the Administrative Appeals Tribunal, indicating that the applicant was remorseful about his past misdeeds, and had determined upon a process of reform. That evidence was not placed before the Court, notwithstanding that the applicant swore an affidavit.
Keely J. was also of the view that it was likely that the applicant would abscond if released. This likelihood

2 0

is underscored by the number of times on which the applicant has failed to appear on bail during his criminal career. Plainly, in the past, he has had a considerable disregard for his obligations to appear in court. Mr. Keon-Cohen has sought to overcome this obstacle by providing evidence of arrangements which could be made if the applicant were released. The applicant's brother, Sarkis Kirakos, who lives at Smithfield in New South Wales with his wife and four children, has sworn an affidavit, saying that he undertakes to accommodate the applicant at his home, to feed and support him, to assist him otherwise with respect to travel and like arrangements and expenses, and to report any breach of any undertakings given by the applicant. The applicant in his affidavit undertakes to reside at his brother's home, to comply with any reporting and like directions of the Department, not to leave his brother's home without giving forty-eight hours notice to the Department, not to leave an area within a one hundred kilometre radius of the Sydney Post Office without the prior approval of the Department and to	obey any orders of the Court. There is also a suggestion that	employment for the applicant could be arranged with his
brother's brother-in-law, who conducts a panel beating business at Mona Vale in New South Wales.
I have a considerable reluctance to order the release of the applicant from custody. On the evidence before me, I share the view of Keely J. that there is a significant likelihood of harm to the Australian community if he be released, and that there is a likelihood that he would abscond. There must also be an element of futility in ordering release if the applicant is liable to be arrested immediately under s.92. If I were to order release, it would be on the most stringent conditions as to reporting daily to an officer of the Department. I should also give consideration to requiring the lodgement by the applicant's
brother of a substantial sum of money by way of security against the applicant's disappearance into the Australian community, which would result in the incurring of expense and difficulty in finding him. I should also require that the applicant's brother appear before the Court, either in person or by counsel or solicitor, to give the necessary undertakings.
I am also reluctant to allow the applicant simply to languish in prison. Apart from his brief journey to Rome and back, the applicant has been in Pentridge Prison continuously
parole had the direction to detain him not been given. It since 2nd July 1989, when he would have been released on
must be remembered that the applicant is not being kept in custody for the purpose of punishing him for any offence, but is being detained pending the making and execution of a valid decision to deport him. For this reason, I enquired of Mr. Tracey why the applicant was being held in Pentridge, and not in the detention centre at Maribyrnong. The response was that the applicant's last convictions were for assaulting two prison officers while in prison, and that it was felt that the

a

22

detention centre did not have the staff or facilities to cope with a potentially violent detainee. I accept that this is so. I do not know what activity there was in respect of seeking to obtain travel documents for the applicant prior to the decision of the Administrative Appeals Tribunal. It does appear from that decision, however, that the learned Deputy President was troubled by the length of time which the applicant had spent in custody after 2nd July 1989, without any travel documents having been procured for him. Subsequent events do not indicate that officers of the Department moved with great speed to try to obtain travel documents; they seem to have taken the view that they had four months in which to act, and they would take that time. In the event, the applicant was flown out of Australia on the last day of that four month period. If I were simply to refuse to order the release of the applicant from custody, I am afraid that there may be another lengthy period, during which the applicant languishes in prison. I note that one of the claims which the applicant seeks to advance in this proceeding is a claim for	damages for wrongful imprisonment. As I have taken the view	that it is very likely that the applicant is presently being
held in custody without authority, prolonged imprisonment would only have the effect of increasing the damages which he recovers, if he is entitled to any.
The difficulty is that I am dealing with this matter only at an interlocutory stage. If I had been able to give a final decision that the applicant had entered Australia, and

P

that no authority existed for him to be held in custody, the respondent would know where he stood. Upon the applicant's release, he could be detained again and the powers with respect to deportation could be exercised. As it is, I am not in a position to determine those matters finally, and have sufficient doubt about my conclusions on them to preclude me from making orders which would give effect to those conclusions as if they were final. The respondent may wish to pursue reliance on s.87 or 8.89, and may turn out to be correct. To compel him to accept that the applicant has entered Australia and to put in train fresh deportation proceedings might lead to those proceedings being held invalid subsequently, on the very grounds which the respondent now argues.

For these reasons, it seems to me that I should not order release of the applicant at the present time, but that I should not allow his custody to continue for a lengthy period. The respondent should take advice and act in accordance with

it at an early date. If the applicant seeks to challenge the

taking of such action, then his departure from Australia might

be delayed accordingly, and his incarceration might be

extended. That will be the result of his own actions. The order I will make is an order adjourning the matter for directions and for the further hearing of the applicant's motion on a convenient date in the near future. When the matter comes on for further hearing, I shall expect the respondent to be in a position to state what his intentions

1. 24

(r

are with respect to the applicant. If no satisfactory intention is announced, then I shall order the release of the applicant from custody, on terms along the lines of those to which I have referred. Tuesday 23rd October would be a convenient day to which the matter could be adjourned, but I shall hear counsel on the question of a date before making an order.

I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray.

Counsel for the applicant:	Mr. B. Keon-Cohen
Solicitors for the applicant:	Galbally & Rolfe

Counsel for the respondent:  . R. Tracey

Solicitors for the respondent:	The Australian Government Solicitor
Dates of Hearing:	12th, 16th October 1990.