Taurino v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1241

FEDERAL COURT OF AUSTRALIA

Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1241

SEBASTIAN JAMES TAURINO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 880 of 2004

WILCOX J
16 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 880 of 2004

BETWEEN:	SEBASTIAN JAMES TAURINO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the respondent and all ‘officers’, within the meaning of s 189 of the Migration Act 1958 (Cth), be restrained, until further order, from taking the applicant into detention pursuant to the said section.

2.Notes that the Court would be disposed to revoke order 1 in the event that the applicant fails to comply with all of the following conditions:

(i)upon the applicant’s release from Wolston Correctional Centre, the applicant is to reside at 39 Finlay Street, Slacks Creek, in the State of Queensland;

(ii)if the applicant proposes to move from that address, he is to notify in writing his solicitors, Mallesons Stephen Jaques (Level 30, Waterfront Place, 1 Eagle Street, Brisbane) and Andras Markus of the Australian Government Solicitor (Level 23, 133 Castlereagh Street, Sydney) of his new address and contact details.  Such notice shall be given at least 48 hours in advance of the applicant moving to a new location; and

(iii)the applicant is to report to the Department of Immigration and Multicultural and Indigenous Affairs’ Brisbane Regional Office (Level 13, 313 Adelaide Street, Brisbane) once a week, on each Monday, between the hours of 9.00am and 5.00pm, or at such other place and in such other manner as the parties by their solicitors may agree.

3.Orders that there be liberty to apply at such notice as may be considered sufficient by a judge of this Court.

4.        Orders that the costs of the notice of motion filed today by the applicant be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 880 of 2004

BETWEEN:	SEBASTIAN JAMES TAURINO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	16 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. When the argument in this matter was heard last week, reference was made to the fact that the applicant was likely to be released from custody on 19 September 2004, his gaol term being then complete.  There was discussion about the possibility of the applicant being placed in immigration detention once released from gaol.  I made no interlocutory order, but I suggested to the parties that there should be discussions between them; it might be possible for the future situation of the applicant to be resolved by agreement.  I gather there have been discussions but no agreement has been reached.  Accordingly, the applicant has filed a notice of motion seeking to restrain the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) from detaining him until this proceeding has been finally determined.

2. It now appears that the applicant is likely to be released from the prison in which he is being held, the Wolston Correctional Centre in Brisbane, some time tomorrow. The present intention of the Minister is that he should then be placed in immigration detention. It is suggested that this is likely to be at Villawood Detention Centre in New South Wales or Baxter Detention Centre in South Australia. It is apparent from an affidavit made by the applicant's fiancée, Amanda Lee Cook, with whom the applicant has two young children, that detention in either of those centres would have the practical effect that she and the children would be unable to visit him, as has apparently been their practice during the time of his incarceration. Once the applicant is taken into immigration detention, it seems that no judge would have power to order his release until a final decision is made in the substantive proceeding (see s 196(4) of the Migration Act1958 (Cth) (‘the Act’) and the decision of the Full Court in Ongel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 239).

3. The problem has arisen in acute form because the hearing of the matter was delayed until last Thursday in order to allow the Solicitor-General of Australia to appear on behalf of the Minister.  The Court could have provided an earlier hearing date; indeed, dates several weeks earlier were offered to the parties.  Had any of those dates been accepted, my judgment would have been given by this time.  If the applicant were held to be entitled to have the Minister's decision set aside, he would, by now, have had the benefit of that judgment, his visa would have been intact and there would have been no question of him being in immigration detention.

4. I was happy to accede to the respondent’s wish to have the Solicitor-General appear, particularly as a constitutional issue had been raised by the applicant.  However, if I had realised at that time that the present problem would occur, I would have taken a different view.  However much I would have wished to have the benefit of the Minister’s submissions coming from the Solicitor-General, I would have thought it unfair to the applicant to put him at risk of further incarceration, with consequential adverse consequences for his family, because of the fixing of a date that would meet the availability of the Solicitor-General.

5. I have not reached a final conclusion about the matters argued and I do not wish anything I say to be regarded as indicating a final view.  However, I am of the opinion that there is a serious question to be tried, at least in relation to the applicant’s argument that the decision of the Minister is invalid for administrative law reasons.  At this stage, I say nothing about the constitutional argument. 

6. Having regard to the fact that a constitutional question is involved, and the importance of my decision to both parties, it seems undesirable for me to rush my decision in order to accommodate the detention problem I have mentioned.  It is also undesirable, if this can be avoided, for me to announce a decision and make final orders in advance of my reasons being available.  I say this not only because the parties then would not know the basis upon which I had reached my decision, but also because I find the discipline of writing reasons sometimes affects my conclusion in a case.  I much prefer to take the normal course of thinking through the case as I prepare my reasons and to make a decision and orders that are fortified by those reasons.  However, my preference for that course should not be at the expense of the applicant’s interests, particularly having regard to the circumstances out of which the problem arises.

7. I invited submissions from Mr Kennett, junior counsel for the Minister, as to whether there is any public interest reason why the applicant should not be allowed to be at large, subject to conditions, pending the making of final orders in the substantive proceeding.  He indicated there is nothing that he can say about this, except for putting the technical proposition that, having regard to the Minister's decision, the applicant currently lacks a visa.  I appreciate this consideration.  I take it into account.  However, I also take into account that the applicant is a long term resident of Australia and has close connections with an Australian woman, his fiancée, and their two young children.  The applicant's fiancée has been supportive to him throughout.  She has provided statements in his support to the Minister and sworn affidavits for use in this proceeding.  Moreover, on her evidence, which is not challenged, she has regularly visited him whilst he has been in prison.  There is also material from her which indicates that the children are missing their father very much and are suffering psychological problems because of his absence. 

8. Under these circumstances, I think that the proper course is to allow the applicant to be at large pending my final orders, but on the understanding that he will reside with his fiancée (as she has offered); that any change of address will be notified in advance to the solicitors for both parties; and that he will report to the Department of Immigration and Multicultural and Indigenous Affairs once a week.  These conditions are proposed by the Minister, in the event that an order is to be made in the applicant’s favour.

9. The Minister also proposes a condition that the applicant not engage in employment or undertake any course of study.  This limitation often applies to an unlawful non-citizen who is at large, but I see no reason for imposing it in the present case.  On the contrary, it seems to me it would be a good idea for the applicant to get back into employment as soon as possible; from the point of view of him being able to support his family and the likely effect on his morale and his ability to keep out of further trouble.

10. Accordingly, the orders that I propose to make are as follows. I order that the respondent and all ‘officers’, within the meaning of s 189 of the Act, be restrained, until further order, from taking the applicant into detention pursuant to the said section.

11. I note that I would be disposed to revoke the said order, upon application, in the event that the applicant fails to comply with all of the following conditions:

    (1)upon the applicant's release from Wolston Correctional Centre, the applicant is to reside at 39 Finlay Street, Slacks Creek, in the State of Queensland;

    (2)if the applicant proposes to move from that address, he is to notify in writing his solicitors, Mallesons Stephen Jaques (Level 30, Waterfront Place, 1 Eagle Street, Brisbane) and Andras Markus of the Australian Government Solicitor (Level 23, 133 Castlereagh Street, Sydney) of his new address and contact details.  Such notice shall be given at least 48 hours in advance of the applicant moving to a new location; and

    (3)the applicant is to report to the Department of Immigration and Multicultural and Indigenous Affairs’ Brisbane Regional Office (Level 13, 313 Adelaide Street, Brisbane) once a week, on each Monday, between the hours of 9.00am and 5.00pm, or at such other place and in such other manner as the parties by their solicitors may agree.

12. I order that there be liberty to apply on such notice as may be regarded as sufficient by a judge of this Court.  I reserve the costs of the motion.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             14 October 2004

Counsel for the Applicant:	Mr P Brereton SC, Mr M Robinson, Mr C Jackson
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 September 2004
Date of Judgment:	16 September 2004