R.A.B. Somaghi v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 567

Re: R.A.B. SOMAGHI
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G150 of 1990
FED No. 567
Administrative Law
21 ALD 104

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Migration Act - Application for release from custody pending final determination of refugee status.

Migration Act 1958

HEARING

SYDNEY

#DATE 29:8:1990

Counsel for the Applicant : Mr Rose

Solicitors for the Applicant : Erskine H. Rodan

Counsel for the Respondent : Mr Tracey

Solicitors for the Respondent : Australian Government Solicitor

ORDER

The applicant bring in short minutes of order to give effect to the Court's reasons for judgment.

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

JUDGE1

This is a motion for release from custody of the applicant who is 28 years of age and an Iranian national. He has been in custody at the Maribyrnong Detention Centre since 7 September 1989. He came to Australia, arriving on 6 September 1989, using a false Greek passport in a different name, and was granted a temporary entry permit permitting him to stay for one month.

1. He appears to have been in Melbourne for the period of about a day when he was arrested on 7 September 1989. So far as the evidence goes he is unmarried and has no relatives in this country. He applied for refugee status on 15 September 1989 and his application was refused on 10 November 1989.

2. The applicant was interviewed in relation to his application for refugee status on 27 September 1989; and on 20 October 1989 he signed a statutory declaration in relation to the truth of the interview. The evidence before the court suggests that certain of the contents of that declaration were untrue.

3. On 6 December 1989 the applicant's solicitor made a request for reconsideration of the refusal of refugee status. On 19 February this year the applicant was re-interviewed on the question of reconsidering his refugee status. On 6 March this year his solicitors made a request for the applicant's application for refugee status to be reconsidered, but that was rejected on 20 April 1990.

4. Subsequently the respondent Minister agreed to reconsider the application by the applicant for resident status, the applicant having lodged an application for such status on 23 November 1989 which was initially rejected. The decision has not been made by the respondent with respect to that reconsideration, but it is plain from the evidence that the decision will be made not later than 18 September this year. What will then ensue, of course, is a matter of speculation; but the likelihood is that, if the applicant, being in custody now, remains in custody until 18 September of this year, he will remain in custody for some time thereafter; how long is a matter of speculation which I will not enter into.

5. In support of his application for release from custody the applicant has called in his case a Mr. Ahmad Bozorgzad, who is a school teacher and has been in this country since January 1983. He too came from Iran but has the status of permanent resident here. He is the current president of a society known as the Iranian Society and was only recently elected to that office. There are some 8,000 Iranian nationals living in Victoria, from various backgrounds, religions and political groups. The Iranian Society appears to absorb or encapsulate all or most of them.

6. Mr. Bozorgzad has given evidence that certain members of the Iranian Society would, if the applicant is released from custody, look after him and that he himself would take an active role in that regard and in monitoring his movements as best he could. He offers his own house for a limited period, though the precise period is not clear. Mr. Bozorgzad lives in his house in a suburb of Melbourne with his wife and two young children.

7. There is evidence that the applicant has been involved in a degree of unfortunate behaviour at the detention centre on more than one occasion in recent months. He has admitted certain of the behaviour but denied other behaviour and there is no sworn evidence of direct probative effect to the contrary. There are, however, contemporaneous notes in the evidence of staff of the detention centre. I do not find it necessary to resolve the question for present purposes of who is to be accepted on the evidence with respect to those incidents. They do not appear to be incidents of major altercations or of conduct that could seriously injure people's lives. It must be remembered that at the time of these alleged incidents he had been in custody for some nine months or so.

8. The applicant himself has given evidence and I have had the benefit of seeing him in the witness box. The relevant tests to apply in motions for release from custody have been established over a period of years. They were stated by Northrop J. in the case of Piroglu v Minister for Immigration and Ethnic Affairs (1989) 55 FLR 99. A number of single Judges of this Court, including myself, have dealt with the matter. I dealt with the question in, amongst other cases, Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569, and more recently in Habal v Minister for Immigration, Local Government and Ethnic Affairs, 12 September 1989, unreported.

9. The passage from Northrop J.'s judgment in Piroglu, which has been cited on many occasions by single Judges of the Court, is one I need not set out. It is well-known. His Honour said in that judgment that the Court should not interfere with the policy which he discerned under the Migration legislation then in force in relation to the retention in custody of prohibited immigrants, or illegal entrants, as the case may be, except in exceptional circumstances. With one modification I assented to the same proposition in Habal. I am therefore content to abide by what I said there for present purposes.

10. Critical matters include whether the Court can be satisfied that the applicant would not seek to abscond or be absorbed into the Australian community, and that he would observe any conditions imposed upon him by the Court in ordering his release from custody and any other matters which the Court may consider relevant in the particular case.

11. It seems to me on the evidence that has been adduced that it is unlikely that the applicant will seek to be absorbed into the Australian community or to abscond. I think any reporting and other conditions can suitably monitor the movements of the applicant if he is released from custody. The critical consideration seems to me to be the fact that he has been in custody for almost twelve months. I think in all the circumstances that he ought to be released from custody provided the appropriate conditions are observed by him.

12. Those conditions will have to be formulated, but they must involve the applicant's reporting to appropriate nominees of the respondent on at least three occasions each week; notifying any change of address and indeed his first address in writing to the respondent at nominated offices; staying in the city of Melbourne unless the respondent agrees otherwise; and obeying the instructions of the Department and of Mr. Bozorgzad as to his movements and addresses; in particular, only living at places of which the Department approves.

13. Those cover, as they occur to me at the moment, the principle nature of the conditions that ought to be imposed.