Whittaker, Leo Andrew Michael v The Secretary of the Department of Immigration and Multicultural Affairs
[1997] FCA 994
•16 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
JUDICIAL REVIEW - Interlocutory injunctions - whether there is a serious question to be tried as to whether particular matters were relevant and ought to have been taken into account and whether they were taken into account in the respondents’ decision to detain the applicant under s 253 or s 254 of the Migration Act 1958 - whether the balance of convenience favours the granting of interlocutory relief.
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958, s 200, s 253, s 254
Federal Court of Australia Act 1976, s 9, s 23
Msilanga v Hand (1991) 22 ALD 27
LEO ANDREW MICHAEL WHITTAKER v THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 727 OF 1997
LEHANE J
SYDNEY
16 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 727 of 1997
BETWEEN:
LEO ANDREW MICHAEL WHITTAKER
APPLICANTAND:
THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENTJUDGE(S):
LEHANE J
DATE OF ORDER:
16 SEPTEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Leave is granted to file in Court the applicant’s application and notice of motion dated 15 September 1997, the notice of motion being returnable instanter.
No court fees are to be payable on that application or that notice of motion.
Until further order of the Court,
(a)the operation is suspended of the decision made by the First Respondent made by his or her delegate on or about 17 June 1997 to give the applicant written notice pursuant to s 254(2) of the Migration Act and the decision of a delegate or officer of the First or Second Respondent made or given effect to on or about 13 September 1997 to detain the applicant under s 253(1) of the Migration Act; and
(b)such things are to be done as are necessary to effect the applicant’s release from immigration detention.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 727 of 1997
BETWEEN:
LEO ANDREW MICHAEL WHITTAKER
APPLICANTAND:
THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT
JUDGE(S):
LEHANE J
DATE:
16 SEPTEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an interlocutory motion in proceedings in which the applicant (Mr Whittaker) seeks judicial review of certain decisions of the respondents: by his application filed in Court on 10 September 1997 Mr Whittaker seeks, under s 11 of the Administrative Decisions (Judicial Review) Act 1977 ( the ADJR Act) and s 39B of the Judiciary Act 1903, orders setting aside:
(a)the decision of a delegate of the Secretary, made on or about 17 June 1997, to give Mr Whittaker notice under s 254(2) of the Migration Act 1958, as a result of which (assuming the validity of the notice) Mr Whittaker is now in immigration detention, and
(b) an alleged decision of a delegate of the Minister, made on or about 5 September 1997, not to order the release of Mr Whittaker under s 253(9) of the Migration Act.
Mr Whittaker seeks, in the application, consequential orders for his release from custody. Because the earlier decision was notified to Mr Whittaker more than 28 days before he filed his application, he seeks also an order under s 11 of the ADJR Act extending the time in which proceedings may be taken to challenge that decision. It should be said immediately that it is in my view unnecessary and inappropriate to decide the application for an extension of time now: the circumstances established by the evidence before me indicate that there are at least reasonable prospects that an extension will be granted; meantime, the requirements of s 11(1)(c) of the ADJR Act being procedural only, the application for review of the earlier decision is not, in the absence of an order extending time, to be treated as a nullity: Duff v Freijah (1982) 43 ALR 479.
By notice of motion, also filed in Court on 10 September 1997, Mr Whittaker seeks an interlocutory order that the Minister and the Secretary do all such things as are necessary to effect Mr Whittaker’s release from custody. It is that motion which is now before me. There is no doubt that the Court has, by reason of s 15 of the ADJR Act and ss 19 and 23 of the Federal Court of Australia Act 1976, power to make an interlocutory order of the kind which Mr Whittaker seeks. The tests to be applied are the familiar ones: is there a serious question to be tried, and if so does the balance of convenience favour granting interlocutory relief: Minister for Immigration Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169.
The circumstances, as they appear from the evidence before me, may be briefly stated. In 1986 Mr Whittaker, then aged 14, migrated to Australia from Ireland with his parents, sisters and brother. On his arrival Mr Whittaker became a permanent resident: he has not become an Australian citizen. Until 1989 the family lived in Sydney; in that year Mr Whittaker’s parents and sisters moved to Perth.
In 1991 Mr Whittaker was charged with murder. He was released on bail, on reasonably strict conditions, and remained at liberty until his trial in November 1992. He was acquitted of murder but found guilty of manslaughter, and sentenced to a minimum term of four years and two months with an additional term of three years.
In August 1993 he was again released on bail after his conviction was quashed on appeal. In January 1994 he married: his wife has a son, who has adopted Mr Whittaker’s surname. In March and April 1994 he was tried again and found guilty of manslaughter. He was sentenced to a minimum term of three years and five months with an additional term of three years. The earliest date for release on parole was in September 1997.
In July 1997, the Parole Board directed Mr Whittaker’s release on parole on 13 September 1997, subject to a number of conditions as to reporting, place of residence, employment and travel.
The remarks made by Wood J in sentencing Mr Whittaker are in evidence. There is no doubt that the crime of which he was convicted was extremely serious. I do not doubt that the departmental officers have correctly described it, in submissions concerning decisions proposed to be made, as a crime of a kind which is repugnant to the community. On the other hand, Wood J took the view that Mr Whittaker’s prospects of rehabilitation were good. The evidence on the motion is that he complied with the conditions on which he was admitted to bail in 1991 and 1993; his conduct in prison has been very satisfactory; and the risk of recidivism is assessed as low. He has participated in work release programs and has an offer of full time employment if he is released. The employer has written, in what may be described as glowing terms, in his support. The evidence is that Mr Whittaker has the support of his family.
Section 200 of the Migration Act empowers the Minister to order the deportation of certain non-citizens, including a non-citizen who has been in Australia as a permanent resident for less than ten years and has been convicted in Australia for an offence for which he or she has been imprisoned for a term of at least one year. On 13 June 1997 the Minister’s delegate signed a deportation order against Mr Whittaker under s 200. Mr Whittaker has appealed to the Administrative Appeals Tribunal against the decision to make that order; it is common ground that the appeal will not be heard this year, even if expedited. On 19 June 1997 the Minister served on Mr Whittaker the notice under s 254(2) of the Migration Act: the effect of the notice was that, from the time of his release on parole, he would be detained pending deportation under s 253. Mr Whittaker’s solicitor wrote to the Department in August 1997, submitting that Mr Whittaker should not be detained following his release on parole. On 5 September 1997, however, his solicitors were told that a decision had been made to keep Mr Whittaker in detention. That is the second decision of which Mr Whittaker seeks judicial review.
It emerged during argument before me that the second decision did not involve consideration by the Minister’s delegate of the power, under s 253(9) of the Migration Act, to order Mr Whittaker’s release but was rather a decision that, upon his release on parole, he be detained under s 253(1). That subsection provides:
Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
A file note was tendered of Ms Sarah Kang, an officer of the Department, to the effect that on 14 September 1997 she detained Mr Whittaker during a meeting in the office of the Deputy Superintendent of Parklea Prison under s 253. Mr Whittaker gave evidence of the meeting: he said that Ms Kang told him he was to be held in Parklea under s 253.
In response, counsel for Mr Whittaker sought leave to file in Court a further application seeking review of the decision to detain Mr Whittaker under s 253 and a notice of motion seeking, in proceedings thus commenced, the same interlocutory relief as he seeks by the motion in the proceedings already commenced. The solicitor for the respondents did not object to the filing of the application and notice of motion; but the question of their filing was held over pending my consideration of the evidence and submissions.
Included in the material before me, in addition to documents to which I have already referred, are relevant Migration Series Instructions, the Minister’s statement on Australia’s criminal deportation policy and the documents filed with the Administrative Appeals Tribunal in the appeal against the deportation order, including notes of interviews, correspondence and representations concerning the question whether Mr Whittaker should be deported. The material includes the submission to the Deputy Secretary of the Department on the question of Mr Whittaker’s deportation, on which the Deputy Secretary has noted his decision. There is also a recommendation to Mr Dale, Custody Review Officer in the Criminal Deportation Section of the Department, dated 5 September 1997, that Mr Whittaker be detained under s 253, on which Mr Dale’s concurrence is noted. Additionally, the material includes a notice to produce served on the Respondents seeking, among other things, documents recording reasons for the decision to issue the notice under s 254(2) of the Migration Act; no such documents were produced.
Before turning to the issue of whether there is a serious question to be tried it is necessary to discuss briefly the interaction of ss 253 and 254 of the Migration Act in this case. Section 254 provides in subs (3) that where a deportee is given a notice under the section the Act (other than s 253(1) and (3)) applies in relation to the deportee as if he or she had been detained under s 253(1) at what is called the custody transfer time. In the circumstances of this case, the custody transfer time was the time at which Mr Whittaker would otherwise have been released on parole: 13 September 1997. Before that time arrived, Mr Whittaker was not in detention under s 253 and accordingly before that time, I should think, it was not open to the Minister to exercise (in relation to Mr Whittaker) the power under s 253(9) to order the release of a person who is in detention under the section. If that is right, it follows that whatever decision was made shortly before 13 September, it was not a decision under subs (9). The respondents, as I have mentioned, say that the decision made shortly before that date was one to which effect was given on 14 September: it was a decision to detain Mr Whittaker under s 253(1). That was done, apparently, having regard to Migration Series Instructions 168, para 7 of which seems to proceed on the basis that, where a notice has been given under s 254, that section does not operate of its own force to put a deportee into immigration detention at the custody transfer time, so that if the deportee is to be detained it is still necessary to detain him or her under s 253(1). The view seems to be taken that that result follows from the decision of Davies J in McCafferty v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 275.
During the hearing I expressed some doubt about the correctness of that view, and further consideration has not dispelled the doubt. It is unnecessary and inappropriate now to come to a final view about the matter. There is, however, at least a serious question, in my view, as to whether the operative decision, resulting in Mr Whittaker’s present detention, is the decision made in June 1997 to give him a notice under s 254 or that made shortly before his parole took effect, to detain him under s 253. Although in his original application Mr Whittaker had, I think, misdescribed the second decision which he sought to challenge, plainly the substance of the matter is that he challenged both the s 254 decision and the later decision. Accordingly, the further application handed up in Court should be filed as should the notice of motion seeking interlocutory relief in the proceeding commenced by that application. The solicitor for the respondents indicated that he was content that that matter should be treated as being before me together with the motion in the proceeding already commenced. In the circumstances, I think it is appropriate that filing fees on the further application and notice of motion be waived and I shall order accordingly.
In his submissions in support of the proposition that there is a serious question to be tried, counsel referred to a number of matters. The starting point, clearly enough, is the purpose of immigration detention: the provisions for detention are in aid of the power to deport, to ensure that a person who is to be deported will be available for deportation: I was referred particularly to Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 33. Counsel submitted that in assessing whether it was appropriate to detain Mr Whittaker there were a number of relevant matters to be taken into account, including the seriousness of the crime of which he had been convicted but including also his prison record, the fact that he is believed to be unlikely to offend again, the conditions of his parole, his family ties, his pending appeal to the Administrative Appeals Tribunal and other matters. These matters were, it was said, relevant both to the question whether there was a prospect that Mr Whittaker would abscond and also to the question whether his release would pose a risk to the community. It is sufficient to say that, in relation to the s 254 decision and notice, there is a serious question to be tried as to whether matters such as those were relevant and ought to have been taken into account, and whether in fact they were taken into account: to some extent they appear to have been taken into account in relation to the deportation decision, but nothing before me appears to indicate that they were given separate consideration in relation to the s 254 decision. In relation to the decision to detain Mr Whittaker under s 253, made apparently on about 5 September, the material before me indicates that some consideration was given to some of those matters; but there remains, in my view, a serious question to be tried as to whether relevant matters for consideration included circumstances which might indicate a slight risk that Mr Whittaker would not be available, if not detained, for deportation and if so whether a number of the circumstances to which I have briefly referred were of that character and were taken into account. There is also, as I have mentioned, a serious question, in my view, as to whether what happened in fact was a detention under s 253 or whether, on the other hand, Mr Whittaker’s immigration detention came about by operation of s 254, the decision to give him the notice under that section being, if so, the operative decision.
Having come to those conclusions, it is unnecessary to refer to other matters put by counsel on this issue. I should, however, record that the respondents made limited submissions on the question whether there was a serious issue to be tried. They made submissions concerning an argument to the effect that there was a serious question whether subpara 7.1 of MSI 168 operated as an improper fetter upon the discretion of the decisionmaker (“unless very good reasons exist warranting release into the community at the “custody transfer time”, deportees should be detained in prison or in detention centres under s 253”) and on the applicability, to a decision to detain, of the rules of natural justice. They did not, however, make any particular submissions on the question whether considerations which were relevant and required to be taken into account were not in fact taken into account, beyond pointing to the circumstance that in both the submissions leading to the deportation decision and the submission leading to the later decision the view was expressed that the nature of the crime committed by Mr Whittaker, and the community’s abhorrence of such a crime, outweighed other factors. It does not follow, however, that there is not a serious question to be tried as to whether such other factors were required to be, and were in fact, taken into account. As I have said, my view is that there is such a serious question to be tried.
That leads me to the balance of convenience, on which I should record once again that the respondents made no particular submissions. Counsel for Mr Whittaker relied on the following factors.
The likely period Mr Whittaker will spend in custody before his appeal to the Minister of Appeals Tribunal is heard and decided;
His conduct in prison and assessed low risk of recidivism;
His arrangements to commence work and his living arrangements;
His need to work in order that he may support his wife and stepchild;
His previous compliance with bail conditions;
The difficulties that being incarcerated will cause him in preparing for his appeal to the Administrative Appeals Tribunal;
The pecuniary liability he will incur to the Commonwealth for his detention.
Generally, it was submitted that given the conditions of Mr Whittaker’s parole (and the likely result of their breach) and his appeal to the Tribunal, the risk that he will abscond must be regarded as slight indeed. Similarly, in the circumstances, there is no evidence to suggest that members of the public will be put at risk by Mr Whittaker’s release.
In the circumstances, it seems to me that the conclusion must be that the balance of convenience favours the release of Mr Whittaker. Although, of course, a decision on one set of facts is not a precedent in relation to other facts, it is interesting to note that this case is, in this respect, strikingly similar in many ways to Msilanga: see the decision of Von Doussa J reported as Msilangav Hand (1991) 22 ALD 27. In this case, it may be that the balance of convenience somewhat more clearly favours the making of the orders sought.
It was submitted for the respondents that the Court ought not make an order of the kind proposed on the footing that to do so would be contrary to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 and would amount in each case to substituting the decision of the Court for that of the person authorised under the Migration Act to make it. I do not think, however, that that is right. The final orders sought are orders setting aside the decisions - orders of a kind in terms authorised by the ADJR Act - and consequential orders releasing Mr Whittaker from custody. The effect of setting aside the orders would itself, of course, have the result that there was no legal basis for Mr Whittaker’s continued detention. Once that is seen and once it is accepted - as, in this Court, it must be - that the Court has power, applying the tests to which I have referred, to make interlocutory orders (and, after all, the Court has clear power under the ADJR Act to suspend the operation of an order) it is clear that the submission cannot be sustained. In fact, of course, the Court is not making a decision under s 253 or s 254 or compelling the making of a particular decision under either of those sections: its task is simply to consider, applying well-established tests, whether the decision in question was lawfully made: or, on an interlocutory basis, whether there is a serious question to be tried as to the lawfulness of the decision and then, having regard to the balance of convenience, deciding either to grant or withhold interim relief.
There remains the question of conditions. Given the parole conditions, it seems to me that there is no obvious requirement to impose conditions other than the weekly reporting condition which counsel for Mr Whittaker suggested. I shall hear the parties as to the precise form of that condition and of the orders to be made. Subject to that, the orders which the Court will make are the following:
Leave is granted to file in Court the applicant’s application and notice of motion dated 15 September 1997, the notice of motion being returnable instanter.
No court fees are to be payable on that application or that notice of motion.
Until further order of the Court,
(a)the operation is suspended of the decision made by the First Respondent by his or her delegate on or about 17 June 1997 to give the applicant written notice pursuant to s 254(2) of the Migration Act and the decision of a delegate or officer of the First or Second Respondent made or given effect to on or about 13 September 1997 to detain the applicant under s 253(1) of the Migration Act; and
(b)such things are to be done as are necessary to effect the applicant’s release from immigration detention.
In addition to the precise terms of the condition and orders, I shall hear the parties on the question of costs and also as to directions for the future conduct of these proceedings.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane
Associate:
Dated: 16 September 1997
Counsel for the Applicant: Mr R Beech-Jones Solicitor for the Applicant: Michael Maher Solicitors Solicitor for the Respondent: Mr G Peek, of the Australian Government Solicitor’s Office Date of Hearing: 15 September 1997 Date of Judgment: 16 September 1997
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