Tam v Minister for Immigration & Ethnic Affairs

[1988] FCA 837

JUDGMENT No. f37 ........ ..... I ........ .... 8f

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 301 of 1988

)

DIVISION GENERAL )

BETWEEN: DANNY SIU WING TAM

Applicant

AND :	MINISTER FOR IMMIGRATION
-	AND ETHNIC AFFAIRS

Respondent

CORAM: M. L. FOSTER, J.
DATE: 17 MARCH, 1988.

PLACE: SYDNEY.

REASONS FOR JUDGMENT

H IS HONOUR:  In this matter I have been asket d to exercise my

powers under S. 39(7) of the Migration Act, 1958 ("the Act") as
an authorised officer under that Act to order the release of

I am informed that, as a matter of procedure in respect of applications of this kind made in the past, if they

the applicant from his present custody. The applicant has in
fact been in custody under the relevant deportation order since

July of last year. There have been no previous applications

for release. It,appeat-S from what I have been told that that

may have been due to the fact that the applicant was unaware of

any rights in that regard.

are granted they are usually granted subject to conditions	as
to residence and reporting.	There appears to be no precise

provision for the imposition of such conditiions upon an order for release but it would seem that an implication to that effect might well be read into the power to order release from custody.

It appears that the requiring of security from the
applicant or from responsible and respectable persons in the

community is not contemplated under the Act and that there has

been no previous condition for the provision of security

imposed in respect of this type of application.

I have been referred to a decision of this Court,

Piroglu v. Minister for Immigration and Ethnic Affairs & Anor.,

(55 F.L.R. 9 9 ) and to passages in the judgment o f his Honour

Mr. Justice Northrop. His Honour considered the central

differences between an application under this section and an application for bail in respect of a person charged in the ordinary way with a criminal offence but not yet brought to

trial. I respectfully agree with the observations made by his

Honour in that regard. One cannot approach the case of a prohibited immigrant held under a deportation order in quite the same light as one would approach the case of an application for bail made by a peson charged but not yet dealt with. In the latter case, of course, all the requirements of the law in relation to a person being regarded as innocent until proved guilty would operate.

In the present case I have to consider the question of release of this man from custody pending the hearing of the application in this Court for a review of the Ministerial order of deportation, on the basis of the material made available to

me at this time. It may be that when the full Ministerial statement becomes available in the near future that a further

application could be made.	I see nothing in the section to
indicate that applications	are made once and for all.

What I have before me at the moment, however,

indicates that he applicant entered Australia quite clearly as an illegal immigrant. He was a stowaway on a ship. His reasons for leaving Hong Kong and adopting this method of entry into Australia appear fairly suspect on the material currently before me.

Shortly after arriving in Australia he engaged himself

in serious criminal activity. The crimes of armed robbery in respect of which he received an aggregate sentence of twelve

years with a fairly lengthy non-parole period are very serious

crimes in the criminal calender of the State of New South Wales

or indeed of any State of the Commonwealth. Under the __	Bail
Act,	- applicable in New South Wales, such crimes effectively
remove the prima facie right to bail which applies in respect of, broadly speaking, non-violent crimes. He has a history in
Hong Kong of crimes of dishonesty. He has escaped from custody
on his own version in China. Of course, and I do not overlook
in any way this fact, his escape, on the version he has given,
was an escape from a form of political incarceration, reference
to which he makes on humanitarian grounds in his application to
remain in Australia.
I am also advised that the arrangements for deportation of this man into the People's Republic of China are
currently well in hand and are only stayed pending the ultimate
decisiion of this Court and, if that decision be favourable to him, the ultimate decision of the Minister. This fact would be known to him and it is only commonsense to realise that that would provide more than adequate motivation to abscond and seek
to merge with the Australian community, in view of the facts he
has expressed about being returned to the People's Republic of China.

I have to look, in particular, in this application at

this stage, to the question of my satisfaction or otherwise that he would not abscond. I take into account that he has community ties. It would appear from what is before me, that they are relatively strong community ties. He is married, the marriage having taken place round about the time when these

those offences, and of the deportation order, he has, in fact,	criminal offences were committed., As a result of committing	so far as I can see, been in custody for the greater part of
his marriage.
I have come to the conclusion on the whole of the material before me, that I would not, at this point of time, be justified in ordering release from custody even on the strict conditions to which I am informed the applicant would adhere.
In those circumstances, this application is refused

I will stand the matter over for further directions on

31 March, 1988.

I certify that this and the four preceding

pages are a true copy of the reasons for judgment herin of his Honour, Mr. Justice Foster.

Associate