Vazouez, F. v Minister for Immigration, Local Government and Ethnic Affairs

[1990] FCA 749

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) G 606 of 1990
)
GENERAL DIVISION	)

BETWEEN:  FRANCISCO VAZOUEZ

Applicant

AND:  MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Dav~es J.

Place: Sydney

Date 18 December

FEDERAL COURT OF

EX TEMPORE REASONS FOR JUDGMENT

I

Davies J:  This matter commenced as an application to review a decision of the respondent, l

thc Minister for Imm~gration Local Government and Ethnic Affairs, that a deportation order

made against the applicant, Francisco Vazquez, be affirmed. That decision was made on or about 5 May 1990. The deportation order had originally been made on about 14 November

convictions for malicious injury. The first order was made against Mr Vazquez in April 1981	. ' I .
1988 under section 12 of the Migration Act 1958 (Cth).	Mr Vazquez had arrived in Australia	!:
1 2
I !. -

as a refugee from Cuba, coming via a refugee camp in the Unlted States and had arrived in	!.
Australia in about 1980 and was accepted in t h ~ s	country as a refugee.

, .

I

i

Unfortunately, Mr Vazqucz did not settle down to ordinary life in the community and I i

he thereafter had a long history of assaults, mainly assaults on females, and also one or two	I _
: ,

and there were subsequent orders in June 82, November 83, March 84, August 84, August 85, March 87 and November 87. As a result of the two years imprisonment imposed on Mr

Vazquez in November 1987, an order for his deportation was made

Mr Vazquez sought review of that decision by the Administrative Appeals Tribunal and the Tribunal noted that it would be inclined to affirm the Minister's decision but for the possibility of problems if Mr Vazquez were deported back to Cuba. A recommendation was

made that, if deportation be effected, that i t be effected to a place to which Mr Vazquez may be deported without danger of unjust punishment. Following upon that order the Minister and his department have been seeking some country which might take Mr Vazquez, particularly the United States. Some consideration has also been given to Cuba.

To this moment, the Minister and his department have been unable to obtain the

l

consent of any other country to receive Mr Vazquez. Inquiries arc still going on but the

!
;

matter has not progressed in the sense of being any more possible now to obtain a country for	t
Mr Vazquez deportation than was the position in November 1988 when Mr Vazquez was first
: , . ,
taken into immigration custody pending his deportation.
j

I	,
;
8 .

So the present position is that over two years have elapsed during which Mr Vazquez	i-'
I

has been kept in custody.	In these particular proceedings, the challenge against the	I .
1 ,
:.
! ,

affirmation of the deportation order has not been proceeded with but what has been sought is

L

an order for the release of Mr Vazquez from custody. 1

Having regard to the time that has elapsed and to what might be described as lethargy

i

in the department at some stages, I am satisfied that an order ought to be made.	I do not	1.:
!
I.

. _ ( I I

wish. to.make.any fimding ofi:improper,purpose:ag~nst;the .Minister..but theredsan: elen~enGin:;...-~ :.- {

this case which suggests that the Minister may have thought that Mr Vazquez was a person

who was dangerous to the community and that no harm would be done if he were kept in
custody while inquiries were made.

Such an approach would not show any improper purpose provided the lnqulries were made reasonably promptly but, plainly, the Mlnlster cannot keep Mr Vazquez in custody pending deportation just because he is regarded as a person who is dangerous to the community He can only be kept in custody while arrangements are made for his deportation. Over two years have now elapsed and no arrangements have been made

I do not propose to make an order for the immediate release of Mr Vazquez as

presently inquiries are being undertaken. These proceedings have prompted the department

to reactivate inquiries of overseas countries and those inquiries have not yet been quite

finalised; but it seems to me that I ought to put a l i m ~ t on the tlme. A reasonable time has

already elapsed under and the present state of affairs should be brought to an end.

Rather than simply adjourn~ng the present proceedings, it seems to me that I ought to

order that if the deportation order is not carried into effect within two months from this date

Minister may think it appropriate to impose some conditions under of section 93 (a) of the	then Mr Vazquez be released from custody. I have in mind that, in making that release, the
Mieration Act 1958 in its present form. The making of conditions was discussed by Lee J in
Srokowski v. S f o r (unreported,
delivered on 27 June 198%.),'

As to what, if any, conditions would be appropriate, I make no comment a t the	!
1 ,
,..
I

present. time' and. ~t seems. tol me: that,l,shnuld. noPattempt,, to.,resolver that issue:or .even the ,A::	.'. .	1 ,
i;  I
question as to whether the imposition of any conditions would be appropriate

Howevcr, the posit~on will be that a deportation will be in force unless revoked. So I

simply give the indication that the Minister may consider the ~mposition of conditions for
release and I will reserve liberty to apply in case there is any problem from either side ar is~ng

out of the carrying out of the order of the Court

The order will therefore be that, if the deportation order is not given effect by the

deportation of Mr Vazquez within two months from this date, that Mr Vazquez be rclcascd

from immigration custody at the end of that period.	I will reserve l~ber ty	to apply.	I w ~ l l
give the applicant the costs of the proceedings.
I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of the Honourable Mr. Justice Davies.

Associate: L&&-+AQ-
Date:	18 December 1990
Counsel for the applicant:	Mr T. F. Robertson

Solicitor Lor.the.	applicant-	M s - B - R u c b c ~ ~ .
Counsel for the respondent:	Mr. C. J; Stevens	'I'

Solicitor for the respondent	Australian Government Solicitor
Date of hearing:	18 December 1990
Date of judgment:	18 December 1990