Seeto, B. v Department of Immigration, Local Government and Ethnic Affairs

[1992] FCA 709

Re: BILING SEETO
And: DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G648 of 1992
FED No. 709
Immigration
(1992) 28 ALD 498 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Immigration - interlocutory order for release of applicant for judicial review held in custody - appropriate conditions.

Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga (1992) 34 FCR 169

HEARING

SYDNEY

#DATE 7:9:1992

JUDGE1

In this matter, the applicant challenges, under the judicial review legislation and the Judiciary Act, certain decisions relating to her application for a grant of resident status following her marriage to an Australian citizen. That application took some time to be considered, and in the meantime her husband died. Consideration was given to whether she should be granted an entry permit on some other ground, and she was informed that an appeal - an internal appeal - would be available to her, and she did take advantage of that. After a considerable time, this also was refused, and again, it was intimated to her that there was a further review procedure which might be available to her, and she made application accordingly.

1. It appears that, at some stage during the course of consideration of that third application, someone from the department indicated to her that the application would be likely to be refused, but it was not of course for such a person to refuse it, and one can hardly regard her conduct as calling for any form of censure because she awaited the decision of the body to which she had been told it was open to her to make application. That body ultimately did decide that the application was inadmissible, and forwarded a letter to her from Perth at her address at Ashfield in Sydney, at the same time sending a copy to her solicitor. The solicitor's office date stamp indicates that the copy forwarded to him was not received until 13 August 1992. It would not be an unreasonable inference that the copy sent to a suburban address at Ashfield was received no sooner than the copy sent to solicitors in Surry Hills. Even if she did receive the letter earlier, the last sentence in it told her that notification in relation to the relevant application had been sent to the Department of Immigration, Local Government and Ethnic Affairs, and to her solicitors. The reference to sending a copy to the department can only have engendered the thought in any reasonable recipient that there was still some decision to be taken upon the matter, which would be taken by the department and communicated to her. What happened was that, within a few days, she was arrested, and has since been in custody.

2. The conduct of the applicant, throughout the period of the three applications to which I have referred, seems on the face of the material placed before the court to provide not the slightest reason for thinking that she will fail to comply with her legal obligations. She has done no more than test decisions in the manner in which she has been officially advised she might do so. She has now brought proceedings in the court to test the legality of the decisions, and has done so through solicitors. She has also made an application to establish her entitlement as a person having refugee status. She comes from mainland China.

3. Mr Allatt, who appears for the department, has frankly told me that the department itself has recently reconsidered the position, and is prepared to consider the release of the applicant from custody. But he has submitted that any order I make for her release ought to be upon conditions. The first condition suggested is that she be required to report weekly to the Rockdale regional office of the department at 81 Railway Street, Rockdale, on each Wednesday between the hours of 9 am and 3 pm. Although Mr Barlow for the applicant submitted that this is too frequent, I do not think it would be a serious burden upon her to report weekly, and I propose to impose that condition.

4. The second condition suggested on behalf of the department is that the applicant should lodge a $10,000 bank guarantee, and it is further suggested that this guarantee ought to be forfeited if she breaches any conditions of the order for her release. I do not think this is a case in which it is appropriate to impose any condition of that sort. The applicant has substantial property entitlements, according to the evidence, in New South Wales, but those entitlements depend upon the administration of the estate of her deceased husband. However, their existence is in itself some reason to think that she would be unlikely simply to abscond and abandon her very significant material ties with New South Wales. In any case, there is not, as I have already indicated, the slightest reason to think that she would do so.

5. The fact that, following her arrest, the applicant refused to take part in an interview without legal advice seems to have been regarded by the departmental officer as somehow indicating recalcitrance so as to justify her continued detention, or at any rate to justify her being required to submit to onerous conditions in order to regain her liberty. I cannot understand that reasoning. She had a solicitor, and she had been arrested without warning following the rejection, as incompetent, of an application she had previously been told by the department she could make. In those circumstances, a desire to have the benefit of the advice of her solicitor before answering questions seems not only natural, but very much justified.

6. Reference is made, in the reasons for declining to release the applicant, to the fact that she had remained in Australia, although an illegal entrant since 14 July 1991. As I made clear in Chumbairux v. Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 483-484, 495, reasoning of that kind cannot have much weight in a case such as this. The truth is she had applied in accordance with the immigration law long before the expiry date of her entry permit, and the fact that the procedures of the department took her beyond that date does not impute any moral blame to her whatever, and certainly provides no reason for thinking that she, who had pursued the legal procedures suggested to her, might go outside the law in order to evade any ultimate decision against her. I do not think this is an appropriate case in which to impose the suggested condition.

7. The next condition suggested is that the applicant should reside at her current address at unit 1 number 52 Orpington Street, Ashfield, unless and until she first gives 48 hours notice of any intention to change her address. I think that is a condition which I should impose. Then it is suggested she should undertake not to engage in employment without the written authority of the department, and that she should undertake to the department to depart from Australia expeditiously if ultimately found ineligible to remain in Australia. Mr Barlow has indicated that she is happy to give each of those undertakings. Then it is suggested that she should undertake to report to the Rockdale regional office, if and when requested to do so in writing, that is, she should report on special occasions when her attendance is necessary, apart from the formal reporting on each Wednesday. Mr Barlow is also happy to consent to that.

8. In my opinion, it would be an appropriate exercise of the discretion, which I was held to have in Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga (1992) 34 FCR 169, to order the release forthwith of the applicant upon the conditions I have indicated should be imposed, including those which have been accepted by the applicant's solicitor. I do not think, in the circumstances, it is necessary that the undertakings be framed as undertakings to the court. Since they are conditions of the order for release, the penalty for failure to comply with them is quite sufficiently severe without my doing that, and the applicant has a solicitor who can explain the consequences to her.

9. Accordingly, I order that the applicant be released forthwith, but that the conditions be complied with, and, so far as concerns the conditions referring to undertakings, that a suitable form of undertakings be lodged with the department, signed by the applicant, by Wednesday at 5pm. I direct that Mr Barlow submit a draft to Mr Allatt by facsimile by 5pm today, to cover each of the matters which I have referred to, in the form of an undertaking, and that Mr Allatt notify by 12 noon tomorrow any objection he has to the proposed form, and that the condition I have already announced then be performed by the lodgment of the appropriate undertaking within the time I have already specified. I reserve liberty to each party to apply on one hour's notice if there is an insuperable argument about the form of the undertaking, notice to be given by telephone to my associate.

10. I reserve the costs of this application.