Truong, Hoang Van v Minister for Immigration and Ethnic Affairs

[1995] FCA 1083

IN THE FEDERAL COURT OF AUSTRALIA          ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY         )  No G 816 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          HOANG VAN TRUONG  

Applicant

AND:                   MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

NEVILLE SMETHURST, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES

Second Respondent

BRIAN ALCORN, GOVERNOR,

JOHN MORONY CORRECTIONAL CENTRE WALES

Third Respondent

Coram:        Davies J.
Date:          21 December 1995
Place:         Sydney

MINUTES OF ORDER

THE COURT DECLARES THAT:

1.The implementation of an order of the second respondent made under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) permitting the applicant to be on unescorted absence from the prison does not constitute a "custody transfer time" for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth).

THE COURT ORDERS THAT:

2.The matter be remitted to the Commissioner of Corrective Services for the purpose of reconsideration of the grant of leave to Hoang Van Truong under s.29 of the Prisons Act 1952 (NSW).

3.The first respondent pay the applicant's costs of the proceedings and that the respondents abide their own costs thereof.

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         )  No G 816 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          HOANG VAN TRUONG           

Applicant

AND:                   MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

NEVILLE SMETHURST, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES

Second Respondent

BRIAN ALCORN, GOVERNOR,

JOHN MORONY CORRECTIONAL CENTRE WALES

Third Respondent

Coram:        Davies J.
Date:          21 December 1995
Place:         Sydney

REASONS FOR JUDGMENT

The general structure of the facts of this case is similar to that in the associated case of McCafferty (NG 738/95) save in two respects.

Mr Truong was served with a notice under s.254 of the Migration Act 1958 (Cth), so we are not concerned with a notice purporting to be a "Direction to hold" under s.253. Moreover, Mr Truong was not reclassified to category C1, although he was refused day leave.

In Mr Truong's case, as in Mr McCafferty's case, day leave under s.29 of the Prisons Act 1952 (NSW) was refused following incorrect advice given by the Department of Immigration & Ethnic Affairs as to the operation of the Migration Act.

I need not repeat the reasons I stated in McCafferty's case.

I shall make the following declaration:-

1.The implementation of an order of the second respondent made under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) permitting the applicant to be on unescorted absence from the prison does not constitute a "custody transfer time" for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth).

In addition, I shall order:

2.That the matter be remitted to the Commissioner of Corrective Services for the purpose of reconsidering the grant of leave to Hoang Van Truong under s.29 of the Prisons Act 1952 (NSW).

3.That the Minister for Immigration & Ethnic Affairs pays the applicant's costs of the proceedings and that the respondents abide their own costs thereof.

I certify that this and the 2 preceding page
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  21 December 1995

Counsel for the applicant:  G.P. Craddock

Solicitors for the applicant:  Legal Aid Commission of NSW

Counsel for the 1st respondent:                  A. Robertson SC
  L. McCallum

Solicitor for the 1st respondent:                 Australian Government Solicitor

Counsel for the 2nd & 3rd respondents:       D. Cowan

Solicitors for the 2nd & 3rd respondents:     State Crown Solicitor's Office

Date of hearing:  7 December 1995

Date of judgment:  21 December 1995