Betkhoshabeh v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|1998-10-18|Before: Branson J, Weinberg J

REASONS FOR JUDGMENT 1 There is before the Court a motion by the applicant for certain interlocutory orders which are sought on an urgent basis. That motion is brought in proceedings in which the applicant seeks judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act) and pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). In those proceedings which were instituted on 29 March 1999 the applicant seeks review of two decisions said to have been made by the respondent on or about 11 March 1999. 2 Those decisions were: · That he would not order the release of the applicant. · That the applicant should remain in detention. 3 The decisions which are the subject of challenge were made, or purported to have been made, under the Migration Act 1958 (Cth) ("the Migration Act"). The applicant claims to be aggrieved by these decisions because by reason of them, he is and continues to be detained at Port Phillip Prison, in Melbourne. He seeks, by way of final relief, an order quashing or setting aside those decisions, and orders pursuant to s 16(1)(d) of the ADJR Act, or pursuant to s 39B of the Judiciary Act directing the respondent to release him from custody. 4 By notice of motion dated 8 April 1999 the applicant seeks interlocutory relief, essentially in the same terms as the final relief sought in his application for review, save that the interlocutory orders sought on the motion would direct the respondent to release the applicant from custody pending the final determination of the substantive proceedings.

20 On 29 July 1998 the applicant succeeded in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") to the Federal Court. The case is reported as Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95. The principal contention advanced on behalf of the applicant in that proceeding was that the AAT had erred in its construction of Art 33 of the Convention relating to the Status of Refugees 1951 which relevantly provided:

"Article 33

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." (emphasis added) 21 Finkelstein J noted that in affirming the Minister's decision of 8 April 1997 to deport the applicant, the AAT had considered that the offence of "threat to kill" constituted a "particularly serious crime" for the purposes of Art 33 of the Convention. His Honour, in allowing the appeal, held that Art 33(2) did not contemplate that a crime was to be characterised as "particularly serious" or "not particularly serious" merely by reference to the nature of the crime committed, although this might suffice in some cases. 22 Finkelstein J observed that there were many crimes where it was not possible to determine whether they were "particularly serious" without regard to the circumstances surrounding their commission. The crimes of "aggravated burglary" and "threat to kill" were instances of such crimes. They were, for example, triable summarily in Victoria. The fact that the legislature saw fit to allow those charges to be tried summarily was a recognition itself that the seriousness of these offences was dependent upon the circumstances of the case. The AAT had failed to have regard to the facts and circumstances underlying the commission of the various offences of which the applicant had been convicted. The AAT should have taken into account the fact that it was the applicant's psychological illness that had led to the commission of the offences. It should have considered the extent to which that illness reduced his moral culpability in much the same way as that illness was taken into account in sentencing him for having committed those offences. 23 His Honour noted that the relevant decision-makers had been required to take into account the provisions of the Convention before making or confirming a deportation order under s 200 of the Act. Accordingly, a failure by either the Minister or the AAT to properly apply the Convention was a reviewable error of law. 24 His Honour ordered that the matter be remitted to the AAT to be heard and determined according to law. 25 The matter was re-heard before the AAT in September 1998. On 26 October 1998 a differently constituted Tribunal affirmed the deportation order. On 23 November 1998 the applicant brought an appeal pursuant to s 44 of the AAT Act to the Federal Court from the second AAT decision. Before that appeal was heard, he was on 4 December 1998, granted parole, subject to certain stringent conditions, by the Victorian Adult Parole Board. It should be noted that he had become eligible for parole in July 1997, but that the Parole Board had deferred making a decision about his release by reason of the deportation proceedings which had been set in train by the respondent. 26 On 17 December 1998 the applicant made application for interim release pending the hearing of his appeal. On 21 December 1998 Merkel J heard that application. His Honour did not find it necessary to determine that application because arrangements were made for the appeal to the Federal Court to be heard expeditiously. On 31 December 1998 the appeal was heard by Marshall J. Accompanying the appeal, there was a notice of motion brought by the applicant seeking interim release. 27 On 15 January 1999 Marshall J delivered his reasons for judgment in the second appeal, Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16. His Honour held that the appeal should be allowed, and the matter remitted to a differently constituted Tribunal to be heard and determined according to law. 28 After setting out extracts from the reasons for judgment of Finkelstein J in the first appeal, Marshall J observed that there was no issue in the appeal before him as to the correctness of Finkelstein J's reasons apart from one matter not germane to the resolution of the issues before the Court. His Honour observed: "I agree with the parties that his Honour correctly states the effect of Art 33 of the Convention in the excerpt of his reasons quoted above." 29 His Honour set out a series of propositions which he stated could be distilled from the reasons of Finkelstein J. These were: "· Whether a crime is a particularly serious one does not depend on the nature of the crime alone. · The facts and circumstances of a particular case may be such that what would ordinarily, by the nature of the crime concerned, be a particularly serious crime may not be so given mitigating circumstances. · The fact that an offence may have been committed as a result of a psychological illness may be such a mitigating circumstance. · A further mitigating factor may be that the conduct, which constituted the offence, was directed against a person whom the offender believed had intended to cause him harm. · The extent to which psychological illness has lessened the moral culpability of the offender is a matter to be taken into account when determining whether an offence is a particularly serious one in the context of Art 33(2) of the Convention." 30 His Honour then turned to the second AAT's reasons. He noted that among those reasons, the AAT had concluded that the applicant could suffer "a recurrence of his delusional behaviour" if he were returned to Iran and consequently might come to the attention of the authorities which, given his ethnicity and religion, could lead to a loss of his freedom. The AAT had held that, in these circumstances, the applicant's life or freedom would not be threatened "on account of" his race or religion. Consequently, the AAT considered that the applicant was not entitled to avail himself of the protection afforded by Art 33(1) of the Convention. 31 That conclusion had been sufficient for the AAT to affirm the order of deportation. Nevertheless, the AAT had considered whether Art 33(2) of the Convention applied to the applicant. His Honour noted that the AAT had stated, inter alia, that the seriousness of the applicant's crimes was diminished by the applicant's illness "but not to the point at which they can no longer be regarded as particularly serious". 32 Marshall J noted that the AAT, having found that the relevant crimes were "particularly serious" within the meaning of Art 33(2) of the Convention, had then turned to consider whether the applicant constituted a "danger to the community" of Australia. His Honour summarised the findings made by the AAT in that regard. The AAT had made the following points: "· At the time the crimes were committed the applicant constituted a danger to the community. · The danger was not limited to one person but also to certain relatives of that person who he believed were all also acting in the conspiracy against him. · On the basis of the psychiatric evidence before the AAT the crimes would not have been committed "but for his delusional thinking". · The applicant had no understanding of what he did at the time he committed the crimes. · The applicant "now harbours no thoughts of violence against Ms Aghajani or her family". · The applicant's delusions are under control and he is no longer psychotic as a result of his adherence to his current regime of medication. · The applicant's likelihood of reoffending is "so small as to be negligible while he remains on Clozaril…because Clozaril controls his delusional thoughts which have led to his criminal behaviour in the past". · The applicant has no insight into his illness - "he has no understanding that he has been ill and that he would be ill and suffering psychotic episodes but for his taking Clozaril" … · The applicant continues to take Clozaril despite the fact that a side effect is hyper-salivation. · Confinement in prison is a factor encouraging the applicant to take his medication. · The applicant respects his medical advisers and has followed their advice. · It remains a matter of speculation as to whether the applicant would continue to take his medication if released from "the structured society of prison". · The applicant believes that he is not ill and that there is no reason to take Clozaril and that consequently there is a real chance that the applicant would cease taking Clozaril. · The applicant is likely, on release, to live with his elderly mother and not with his brother in circumstances where the first signs of return to a psychotic state may not be observed. · There is "a very real risk that his symptoms could have re-appeared well before he was due for a monthly blood test". 33 Marshall J observed that the AAT had concluded that "the risk of Mr Betkhoshabeh's failing to take Clozaril and so of re-offending as a consequence of delusional behaviour is not a negligible risk". That risk was also described by the AAT as "a real risk" and "something more than a minimal risk". The AAT was of the view that the applicant was "a danger to the Australian community". It also concluded that the danger to the community that would exist if the applicant failed to take his medication outweighed the "grave risk to him as an individual should he return to Iran". 34 Marshall J held that the AAT erred in law in holding that Art 33(1) of the Convention did not apply to the applicant. 35 His Honour concluded: "Given the findings of the AAT concerning what would be likely to happen to the applicant on return to Iran and its finding that a return to a psychotic state would be likely to bring him to the attention of the authorities and further, given that because of his ethnicity and religion he may lose his freedom, I find that the AAT's conclusion that the applicant does not have the protection of Art 33(1) of the Convention so unreasonable that no reasonable tribunal would so conclude. The AAT outlined circumstances where the applicant, if returned to Iran, may, as a result of being ill, bring himself to the attention of the authorities and be incarcerated, at least in part as a result of those authorities discovering that he is an Assyrian Christian. It is absurd for the AAT to contend that the applicant's freedom would not thereby be threatened on account of his race and religion. Of course the trigger for the persecution may be his mental state, but once there exists the likelihood of persecution which is in part on account of a Convention based reason it matters little that the triggering of the persecution was a matter which is extraneous to a Convention based reason." 36 Marshall J then proceeded to consider the alternative finding of the AAT, namely that by reason of Art 33(2) of the Convention, the applicant was not entitled to rely upon the provisions of Art 33(1). 37 His Honour noted that the AAT had stated that it had had regard to the circumstances of the offences, and the applicant's psychiatric condition, in deciding whether or not the relevant crimes were "particularly serious crimes". The AAT had also found that the seriousness of these crimes was "not reduced" by the applicant's psychiatric state. Then, somewhat inconsistently with its earlier finding, the AAT found that the seriousness of the crimes was "diminished" by the applicant's illness, but not to the extent that they were not regarded as "particularly serious". 38 His Honour described this analysis as confused, and as even more confounding when one considered the later findings made by the AAT: "· The crimes would not have been committed but for the applicant's delusional thinking. · The applicant had no understanding of what he did at the time he committed the crimes." 39 His Honour then concluded: "In my opinion the AAT merely paid lip service to the relevant principles identified by Finkelstein J in Betkhoshabeh. It failed to properly consider the mitigating circumstances constituted by the applicant's state of mind at the time the offences were committed. It failed specifically to consider whether the moral culpability, as distinct from the legal culpability, of the applicant is a matter to take into account in determining whether an offence is a "particularly serious" one. In so doing the AAT erred in law by acting on a misconstruction of Art 33(2) of the Convention." 40 Having determined that the decision of the AAT should be set aside, and the matter remitted to a differently constituted AAT to be dealt with in accordance with law, his Honour turned to the notice of motion seeking interim release from custody. His Honour concluded: "Having regard to the urgent hearing and reasonably prompt judgment provided by the Court it would be futile for the notice of motion to be considered. This is especially so given that upon the making of the orders in the substantive matter the Court will be functus officio: see Omar v Department of Immigration & Multicultural Affairs (1997) 48 ALD 607 at 608 per Sundberg J." 41 On 19 January 1999 the applicant made application to the Minister for revocation of the deportation order, and for his release from immigration detention. He provided a substantial body of medical expert opinion to the Minister in support of his contention that the deportation order should be revoked. Throughout February and March 1999 his solicitors made a series of further requests for a decision from the Minister. 42 In the interim, on 5 February 1999, the respondent instituted an appeal to the Full Court from the orders of Marshall J. 43 On 11 March 1999 the Minister wrote to the applicant's solicitors in response to their numerous requests made to him to revoke the deportation order. That letter is in the following terms: "Mr Andrew Tulloch Phillips Fox Lawyers PO Box 4301PP MELBOURNE VIC 3001 Dear Mr Tulloch, Thank you for your letter of 22 February 1999 concerning the deportation order relating to Mr Vilperit Betkhoshabeh. I have received a number of letters asking that I revoke Mr Betkhoshabeh's deportation order and I am currently considering this action. As I am currently considered the issue of revocation I will not be ordering the release of Mr Betkhoshabeh as an interim measure. As you are aware, based on Legal Counsel's advice, I have decided to appeal Justice Marshall's decision of 15 January 1999. In view of the ongoing litigation in this matter I am unable to comment further. When I have made my decision on the revocation of Mr Betkhoshabeh's deportation order you will be informed directly. Yours sincerely, Philip Ruddock" 44 It should be noted that the Minister wrote again on 18 March 1999 to the applicant's solicitors in similar terms. Two letters of that date were tendered before me, but nothing turns upon those later letters. 45 On 29 March 1999 the applicant instituted his application for judicial review of the respondent's decisions of 11 March. On 8 April 1999 the applicant filed the notice of motion seeking interlocutory relief in the form of orders compelling the respondent to order the applicant's release from custody pending the determination of the primary application. 46 It should be noted that the appeal from the decision of Marshall J to the Full Court has been fixed for hearing on 17 May 1999.

The grounds of the application 47 The applicant relies upon four grounds in support of his contention that the Minister's decision that he not be released should be set aside, and that, in the interim, the Court should direct the Minister to release him from custody pending the final hearing of this matter. These grounds, in their amended form, are: "(A) A breach of the rules of natural justice occurred in connection with the making of the Decisions. PARTICULARS In exercising his discretion under the Act and in particular under sections 253(9) and 254 of the Act, the Respondent failed to accord the Applicant natural justice or procedural fairness in circumstances where he was required to do so by relying on material adverse to the Applicant without giving him any or any adequate opportunity to respond to that material. (B) the making of the Decisions was an improper exercise of the power conferred by the Migration Act 1958 on the Respondentin that he failed to take into account relevant considerations. PARTICULARS The Respondent failed to give genuine, proper or realistic consideration to any or all of the material submitted by the Applicant in support of his request for release from detention pending the re-hearing and determination of the Applicant's appeal to the Commonwealth Administrative Appeals Tribunal or the determination of the Respondent's appeal to the Full Court of this Court, including particularly the expert medical evidence before the Court and the Administrative Appeals Tribunal in the previous hearings of the Applicant's case. (C) the making of the Decisions was an improper exercise of the power conferred by the Migration Act 1958 on the Respondent in that he took irrelevant considerations into account in making the Decisions. PARTICULARS The Respondent took into account considerations that were irrelevant to the decisions that he was required to make under sections 253(9) and 254 of the Migration Act 1958 including in particular the fact that he was "currently considering the issue of revocation" of the deportation order made against the Applicant. (D) the making of the Decisions was an improper exercise of the power conferred by the Migration Act 1958 onthe Respondent in that they were so unreasonable that no reasonable person could have made them, on all the material properly before the Respondent, including all material and evidence before the Court and the Administrative Appeals Tribunal in the previous hearings of the Applicant's case." The jurisdiction of the Court to entertain the application for interlocutory relief 48 Mr Gunst QC who appeared on behalf of the respondent raised as a preliminary point the question whether the Court has jurisdiction to grant the interlocutory relief sought. He contended that it did not. 49 Mr Gunst submitted that although the applicant sought by way of final relief orders pursuant to s 16(1)(d) of the ADJR Act, and s 39B of the Judiciary Act, directing the respondent to release the applicant from custody, it did not follow that the Court could make such orders on an interlocutory basis. 50 Mr Gunst identified s 15 of the ADJR Act, and ss 19 and 23 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act") as the only possible bases upon which interlocutory relief of the kind sought could be granted. 51 Section 15 of the ADJR Act provides: "(1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but: (a) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the decision. (2) The Court or a Judge may make an order under subsection (1) of its or his or her own motion or on the application of the person who made the application under section 5." 52 Section 19 of the FCA Act provides: (1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament. (2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts." 53 Section 23 of the FCA Act provides: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." 54 Mr Gunst accepted that s 15 of the ADJR Act does not restrict the operation of the general power to make interlocutory orders under s 23 of the FCA Act: Rifki v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301; Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179-82 per Beaumont J, and 185 per Burchett J. Cf Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 at 129 per French J. 55 Mr Gunst also accepted that ss 19 and 23 of the FCA Act confer on the Court a broad power to make orders of such kinds, including interlocutory orders, as it "thinks appropriate". Wide though that power is, it is, he submitted, subject to various limits. It exists only "in relation to matters" in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the "kinds" of orders, whether final or interlocutory, which are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622; Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at 658. 56 The powers conferred upon the Court by s 23 of the FCA Act must also be exercised for the purpose for which they are conferred. It has been said that the general principle governing the exercise of the power to grant interlocutory relief is that the Court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked: Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (supra) at 659. 57 Mr Gunst drew attention to a number of authorities which, he contended, provided support for a narrow construction of s 23 of the FCA Act, and one which would not confer upon this Court the jurisdiction to grant the interlocutory relief sought. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 it was held that s 23 of the FCA Act "does not provide authority for granting an injunction where there is otherwise no case for injunctive relief", whether "under the general law or by statute". In Jackson v Sterling Industries Ltd (supra) both Brennan J and Toohey J observed that s 23 confers on the Federal Court such powers as are necessary or incidental to the exercise of the jurisdiction of the Court. These observations in Jackson were considered by Gummow J in Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471. His Honour expressed the view that some of the earlier statements concerning the width to be accorded to s 23 might require reconsideration in the light of the decision of the High Court. 58 Mr Gunst submitted that the interlocutory relief sought in the present case was neither "necessary" nor "incidental" to the primary exercise of the jurisdiction of the Court notwithstanding that the final relief sought by the applicant included orders that he be released from custody. Mr Gunst submitted that the reality was that, this being an application for judicial review, the best that the applicant could legitimately hope to achieve should he be successful when the matter is finally heard and determined would be to have the decision of the Minister not to order his release from custody remitted for reconsideration according to law. What the applicant was seeking to do, in Mr Gunst's submission, was to have the stream rise above its source, and to obtain interlocutory relief which exceeded in scope the relief which he could realistically expect to obtain at the final hearing. 59 Mr Rose who appeared on behalf of the applicant with Mr Moloney of counsel submitted that the Court had jurisdiction to grant the interlocutory relief sought. They relied primarily upon a decision of a Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (supra) where it was held that the Court had power to order the release from custody of an illegal entrant pending the determination of an application to review a migration decision. 60 Mr Msilanga, a citizen of Tanzania, had entered Australia in August 1986 pursuant to a temporary entry permit. In November 1986 he was granted a resident entry permit. On 20 November 1989, in the Supreme Court of South Australia, he was convicted of a serious criminal offence and was sentenced to seven years' imprisonment with a non parole period of three years. He was released from custody on parole on 4 February 1991. 61 Mr Msilanga's conviction and sentence rendered him liable to be ordered by the Minister to be deported pursuant to the provisions of s 55 of the Migration Act, as that section then stood. On 7 February 1991, the Minister made that order. 62 By s 93(1) of the Act, as it then stood, where an order for the deportation of a person was in force, an officer could, without warrant, arrest that person. On 8 February 1991 Mr Msilanga was arrested pursuant to that provision. By ss 93(2) and (8) of the Act a person under arrest under s 93(2) could be kept in custody pending deportation. 63 On 8 February 1991 Mr Msilanga applied to the AAT for a review of the decision of the Minister under s 55. In other words, he mounted a challenge to the original decision by the Minister to order his deportation. 64 On 6 March 1991 a delegate of the Minister decided that "the continued detention in custody of [Mr Msilanga] was proper". Mr Msilanga then instituted fresh proceedings, these being proceedings under the ADJR Act, and s 39B of the Judiciary Act, seeking judicial review of that decision. In his application, Mr Msilanga claimed by way of final relief: (1) An injunction "directing the [Minister] to revoke the deportation order"; (2) An order, pursuant to section 16(1) of the ADJR Act and ss 19 and 23 of the FCA Act and s 39B of the Judiciary Act, directing the Minister to release Mr Msilanga from custody. (3) An order "pursuant to [s] 23 of the [FCA Act] under [s] 39B of the Judiciary Act and [s] 19 of the [FCA Act] directing the [Minister] to release [Mr Msilanga] from custody". 65 Also in his application, Mr Msilanga claimed, by way of interlocutory relief, "[a]n order directing the Minister to release Mr Msilanga from custody pending the review pursuant to [s] 15(1) of the [ADJR Act] … and [ss] 19 and 23 of the [FCA]Act". 66 After a contested interlocutory hearing, on 8 March 1991, a judge of the Court ordered that Mr Msilanga be released "on bail". The judge rejected arguments advanced on behalf of the Minister that the Court had no jurisdiction to make an interlocutory order for release from custody, and secondly that, in any event, no such order should be made as it would have the effect of substituting in the short term the Court's opinion for that of the Minister or his delegate. 67 Beaumont J, in a careful judgment, concluded that the trial judge had jurisdiction, or power, to grant interim relief pending the final hearing of the matters the subject of the proceedings. That jurisdiction stemmed from ss 19 and 23 of the FCA Act read (if need be) in conjunction with s 15 of the ADJR Act. 68 His Honour stated at 179: "In my opinion, the judge did have this jurisdiction, or power, by virtue of ss 19 and 23 of the FCA Act, read (if need be) in conjunction with s 15 of the ADJR Act. I respectfully agree with the judge that the reservations expressed in Elmi are not applicable here. I am further of the view that nothing in s 15 of the ADJR Act is intended to derogate from the width of the powers given to the court by s 23 of the FCA Act for use in an appropriate case: s 15 of the ADJR Act addresses a possible need to suspend the operation of a decision; but this provision is silent on, and does not address, the different question, with which we are now concerned; that is, whether the court has the power to order that a person be released from custody. It is true that an interim order under s 23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s 16 of the ADJR Act or s 39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter of power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate." 69 His Honour continued at 181-2: "As has been noted, s 23 of the FCA Act limits the power of the court to what is, in the circumstances of the particular case, "appropriate". Where, as here, there is a claim raising serious questions whether decisions to arrest and to detain in custody were validly made, it was, in my opinion, "appropriate" for the learned primary judge to deal with the matter on an interim basis by ordering release pending a final hearing. There is nothing, in my view, in the reasons in Jackson which would contradict this conclusion. The claim for interim relief is clearly related to the claim for final relief and thus the necessary relationship has been established. For this reason, the reservations expressed in Elmi [v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 at 472-3] where no challenge to the decision to arrest was made, have no application. Moreover, in my view, it was "appropriate" in the language of Jackson, that the interim relief here take the form of an order for release from custody. … I agree with the learned primary judge that the immediate source of his jurisdictional power was s 23 of the FCA Act, read in conjunction with s 15 of the ADJR Act. There is nothing in the latter provision which is inconsistent with the former. Each provision empowers the court, in an appropriate case, in the exercise of a judicial discretion, to restrain, on an interim basis and pending final determination of the substantive claim, administrative action where a serious question arises as to the validity of that action. The appropriate form of that restraint will depend upon the circumstances of the particular case. Where the administrative actions under challenge are decisions to arrest and to detain in custody, there is no reason, in principle, why it would not be appropriate for the court to order, on an interim footing, that the party be released from custody until the substantive claim is dealt with. In my view, s 15 of the ADJR Act does not detract from the operation of s 23 of the FCA Act in any relevant way in the present case." 70 Burchett J stated at 184: "Counsel for the Minister conceded, and plainly it could not be denied, that the power conferred by s 15 of the Judicial Review Act would have enabled the court, in respect of each decision, to "suspend the operation of the decision" and to "order … a stay of all or any proceedings under the decision", but it was contended that s 15 exhausts the interlocutory remedies available in such a case. Section 15 was said to be of no avail to Mr Msilanga because, although the original decision to arrest and detain him was in its nature capable of being suspended or stayed, the later decision should be characterised simply as a decision not to release him; and the suspension of a decision not to release him would, it was said, have no effect on his continuing custody. The argument overlooks the fact that the application made by Mr Msilanga sought review, not only of the later decision, but also of the original decision to detain him in custody. The original decision being susceptible of suspension or stay, it seems to me the power conferred by s 15 of the Judicial Review Act was in fact adequate to meet the situation." 71 His Honour continued at 185: "Situations may very well arise with respect to which the power in s 15 may prove inadequate, since the justice of the case may demand some further or other interlocutory order. It is, therefore, a very important question whether the court will then be impotent. There is no doubt that, upon a final hearing, the court's arm is long enough and powerful enough to do justice. Section 16(1) confers on the court as defined (that is, by s 3(1), the Federal Court) a discretion to "make all or any of the following orders": "(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties." The power the learned primary judge conceived of himself as exercising in the present matter was, of course, the power conferred by par (d). It is wide enough to deal with the present problem. The only question, therefore, is whether the court has interim powers to match its ultimate powers. For myself, I can entertain no doubt of the answer. Section 16 of the Judicial Review Act having given the court jurisdiction to make the orders to which I have referred, s 19 of the Federal Court of Australia Act 1976 (Cth) confirms that jurisdiction, and s 22 emphasises its scope. Section 23 of the Federal Court of Australia Act then provides: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." This is as wide a conferral of power to grant the full range of interlocutory relief as any court could require. The fact that the Parliament has seen fit (by s 15 of the Judicial Review Act) to give expressly a special, and plainly appropriate, power to suspend or stay the very decision which is the core of the subject matter of jurisdiction in judicial review provides no reason at all for a conclusion that the wide powers of the court, to grant necessary interlocutory relief in respect of what may have been done pursuant to the decision, are in any way reduced. Section 15 is an affirmation of power to make a decision going to the heart of the matter; it would be a strange conclusion that a power to suspend the decision itself enfeebles the powers of the court to deal with its consequences." 72 Burchett J then at 186 referred to a large number of authorities which his Honour concluded demonstrated that the power of the Court to make an interlocutory order for the release of a person held in custody in such circumstances as those present in Msilanga, or in similar circumstances, had been accepted for at least the past ten years. His Honour then referred to the reservations of Gummow J in Elmi (supra) as to the scope of the Court's powers under s 23 of the FCA Act but noted that Gummow J had done no more than express a doubt as to the scope of the Court's powers in that regard. Burchett J also noted that since Elmi was decided, the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 644 had emphasised the width of the powers of the Court to be found in s 16 of the ADJR Act. His Honour stated at 187: "Park Oh Ho (supra) was a case concerned with the power to grant declaratory relief contained in s 16, but the passage I have cited makes it unequivocally clear that no narrow view should be taken of the cognate power to grant an injunction. It is that power which is picked up by s 23 of the Federal Court of Australia Act. In my view, it is ample to cover cases of the present kind." 73 Mr Gunst sought to distinguish Msilanga by noting that in that case the applicant had challenged the legality of the deportation order, and of his consequential detention, in the substantive proceedings from which the interlocutory proceedings emanated. He submitted that the same could be said of all cases in which the Court has recognised the power to grant interim or interlocutory relief by ordering the release of a person detained in custody pending the determination of that person's challenge to that detention. For example, in Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607 Sundberg J, while recognising that the Court had jurisdiction to make an order for what was tantamount to "bail" pursuant to ss 19 and 23 of the FCA Act, did so in the context of substantive proceedings which involved a challenge to the decision that the applicant be deported. The same could be said of the decision of North J in Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 where his Honour held that the Court had jurisdiction to grant a mandatory interim injunction for release under s 23 of the FCA Act where there was a substantive proceeding on foot. Likewise with the decision of Wilcox J in Halmi v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 261 (subsequently not followed in Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 205; Meng Kok Te v Minister for Immigration and Ethnic Affairs (unreported, Branson J, 18 October 1998) and Chi Dung Dang v Minister for Minister for Immigration and Multicultural Affairs [1998] FCA 1484 per Kenny J.) 74 In all these cases, as well as in Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158, the power of the Court to grant interlocutory relief in the form of orders directed to the Minister to release the applicant had, in Mr Gunst's submission, been premised upon the fact that the substantive proceedings involved a direct challenge to the deportation order, or the detention of the applicant consequential upon that order. 75 Mr Gunst submitted that in the present case Mr Betkhoshabeh did not contend in the proceedings before me that the Minister's decision to order his deportation had been unlawful, or that his detention pursuant to s 201 of the Migration Act was in any way irregular, or not supported by the provisions of that section. Rather, the applicant's case in the principal proceedings before me was that the decisions of the Minister made on 11 March 1999 that he not be released from custody notwithstanding the power to order such release pursuant to s 253(9) of the Migration Act, and accordingly that he be detained in custody, should be set aside. Those being the decisions challenged in the principal proceedings, nothing in Msilanga suggested that s 15 of the ADJR Act, or ss 19 and 23 of the FCA Act could provide a basis for the grant of the interlocutory relief sought. Such relief was neither "necessary" nor "incidental" to the substantive relief sought in the principal proceedings before me. 76 In my opinion, Mr Gunst's submission as to jurisdiction should be rejected. It seems to me to be somewhat artificial to say that Mr Betkhoshabeh cannot seek interlocutory relief in this Court merely because the proceedings in which he seeks that relief do not directly involve a challenge to the decision to deport him, or the decision to detain him, consequential upon a decision that he be deported. 77 The fact is that Mr Betkhoshabeh seeks judicial review of a decision by the Minister not to exercise a power conferred upon him under s 253(9) of the Migration Act. That subsection provides: "(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section." 78 In challenging the Minister's decision not to order his release pursuant to s 253(9) the applicant is, in effect, challenging the legality of his continuing detention. I do not see why the fact that he is not, in the proceedings before me, challenging the original deportation order, or the validity of his original detention under that order, should preclude him from seeking interlocutory relief. 79 Mr Gunst's submission that the applicant is unlikely to achieve any more in the final hearing of this matter than to have it remitted to the Minister for further consideration may well be correct. That is not, however, an argument in support of the contention that the Court has no jurisdiction to grant the interlocutory relief sought. It goes rather to the question whether such relief should be granted. 80 I would reject Mr Gunst's preliminary objection to the jurisdiction of this Court.

Has the applicant demonstrated that there are serious questions to be tried in relation to the grounds of review? 81 In my opinion grounds (A), (B) and (D) in the applicant's amended application do not raise serious questions to be tried. 82 I do not accept that the applicant can legitimately expect this Court to engage in surmise and conjecture as to what material the Minister may have considered, prior to making his decision on 11 March 1999, to refuse to release the applicant from custody. It is of course possible, as Mr Rose contends, that material which was adverse to the applicant, was placed before the Minister without either the applicant or his legal advisers being made aware of that fact. However, the evidence before the Court provides no basis for that assertion. Had the applicant sought reasons from the Minister for his refusal to order the applicant's release, or had he obtained discovery from the Minister, something might conceivably have emerged to support this contention. As matters stand, it is simply an assertion made without any foundation. 83 I am not persuaded that there is a serious question to be tried as to whether the Minister failed to have regard to relevant considerations when refusing to release the applicant from custody. The fact that his letter of the 11 March 1999 is short, and sparsely reasoned, does not support this conclusion. In my view, that letter, read properly, must be taken to incorporate by reference the matters of which the Minister would have been well aware by reason of the long history of the proceedings between the applicant and his department. The Minister stated in that letter that he had received a number of letters asking that he revoke the deportation order made in relation to the applicant, and that he was currently considering this action. He referred also to the judgment of Marshall J of 15 January 1999 which itself sets out in extensive detail the background to this matter. The contents of that judgment are, therefore, taken to have been incorporated into the Minister's reasons for decision. 84 It follows that I do not believe that the applicant has established that there is a serious question to be tried as to whether the Minister failed to have regard to the material placed before him on behalf of the applicant when he determined on 11 March 1999 that, at least for the moment, he should refuse the request to have the applicant released from custody. 85 As regards the contention that the Minister has acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) , I am not persuaded that there is a serious question to be tried in relation to that ground. On one view, it might be said that the Minister had acted both reasonably and responsibly in refusing to order that the applicant be released from custody while the Minister considered whether or not to pursue the applicant's deportation. Plainly the release of the applicant upon an interim basis would pose some risks to his former victim. There would also be a risk that the applicant would abscond, rather than face what must be the daunting prospect of being deported to Iran. 86 The Minister would have been entitled to act in accordance with his own deportation policy which places the safety and interests of the community ahead of those of the putative deportee. That policy which recognises that where a decision that a person should be deported has been taken, in part at least because of the danger that that person poses to the community, it is scarcely logical that he should be released from custody pending the resolution of all challenges to that decision. 87 That is not to say that in any given case the Minister may not properly exercise the power conferred upon him by s 253(9) of the Migration Act. The Minister may, of course, order the release of a person subject to deportation from custody while legal challenges to the validity of the deportation decision are determined. It cannot, however, in my view, be said to be unreasonable in the Wednesbury sense if the Minister, in a case such as the present, merely applies the normal policy governing such matters. 88 That leaves only ground (C). I should say that I do not view this ground as having any great cogency. I am, however, of the view that there is a serious question to be tried as to whether the Minister has taken into account an irrelevant consideration when determining whether to release the applicant from custody - namely the fact that he was considering revoking the deportation order. 89 It is arguable that giving consideration to whether to revoke a deportation order provides no justification of itself for refusing to order release pursuant to s 253(9) of the Migration Act. The true justification for refusing such release must lie in other factors such as the risks to the community generally of the applicant's release, and the risk that he might abscond. 90 In concluding that there is a serious question to be tried in relation to ground (C), it should not be thought that I do not bear in mind my own conclusion that the reasons given by the Minister in his letter of 11 March 1999 incorporate much that is implicit, rather than explicit. 91 I also treat the Minister's reasons as given in that letter as subject to the admonition of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 to the effect that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. 92 I find, nonetheless, that ground (C) does raise a serious question to be tried.

Balance of convenience 93 In my view, notwithstanding the fact that the applicant has demonstrated that there is a serious question to be tried in relation to ground (C), the balance of convenience clearly favours refusing the interlocutory relief sought. 94 I am conscious of the fact that the applicant has been in custody for a very considerable time, well beyond the expiration of his earliest non-parole period, by reason of the Minister's decision that he should be deported. I am also conscious of the fact that he is not to be blamed for errors previously made by the AAT in dealing with his case. In one sense, these errors have led to a protracted period of incarceration in this country. To deprive any person of his liberty, even for a day, is a matter of great moment. The Court must give full weight to that consideration, and to considerations personal to the applicant and his family. 95 On the other hand, the applicant has, by reason of his psychiatric illness and his own delusions, on three separate occasions committed offences against a wholly innocent victim whom he singled out for violent treatment. 96 There is before the Court an affidavit sworn by Ms Aghajani in which she deposes to her continuing fear of the applicant, and her belief that if he were released from custody her life would again be in danger. That affidavit makes it clear that the effect of the offences committed against Ms Aghajani has been extremely traumatic. She has had months off work, and has undergone extensive counselling to attempt, she says unsuccessfully, to overcome the trauma. She maintains that she is terrified that if the applicant were to be released from custody, he would try to attack her again, and to kill both her, and her new born child. 97 I cannot ignore the fact that, in its merits review of the applicant's case, the AAT has on two occasions found that the risk of the applicant not taking his medication if released from custody is real, and that if he ceased to take that medication, there would be a risk that he would redevelop a psychotic state, and re-offend. 98 I have read with care the psychiatric reports to the Minister, provided on behalf of the applicant, and those previously relied upon for other purposes. Those reports, though supportive of the stability of the applicant's present mental state, at least while he takes his medication, do not persuade me that the applicant would pose no risk, or no significant risk, to his former victim, or to others, if he were to be released pending the final determination of this proceeding. 99 It is one thing to accept that some risks must be taken when a person such as the applicant has completed his sentence, and is to be released from custody, whether on parole, or otherwise. It is another thing altogether to accept the risks associated with release from custody in the context of an order for deportation which is the subject of challenge. Custody orders made pursuant to s 201 of the Migration Act are intended to serve objectives which are entirely different from those of imprisonment. The considerations which govern the exercise of the power to release from custody, pursuant to s 253(9) of the Migration Act, have some similarities to, but are not the same as, those which govern the grant of bail. 100 The AAT noted with concern that the applicant appeared to show little insight into his prior actions. He believed that he had only committed the relevant offences because he had been ill. However, he no longer considered himself to be ill, and he did not believe that he needed to continue to take his medication. He indicated that he was prepared to continue to take the medication, but only because his doctors wished him to do so. 101 The applicant's attitude to his prior actions would provide little comfort to his former victim, Ms Aghajani. Her scepticism as to the opinion expressed by the applicant's psychiatrists, that the risk of the applicant's re-offending is low, may not be without some justification. I have taken her concerns into account in arriving at my decision. 102 I am fortified in my conclusion that, at this stage, the balance of convenience is against the grant of the interlocutory relief sought, by the fact that the Minister is currently considering whether or not to revoke the deportation order. If the Minister elects to revoke that order, the applicant will, of course, be released forthwith from custody. If the Minister elects not to revoke that order, there is to be heard within a few weeks the appeal to the Full Court. As matters stand, it does not seem to me to be very likely that the Full Court will take long to deliver its judgment. After it has heard the appeal, that Court can make such orders as, in all the circumstances, it thinks fit, in the exercise of its appellate jurisdiction - s 28(1)(b) of the FCA Act. 103 If the respondent's appeal succeeds the applicant will, in all probability, remain in custody pending his deportation, or a decision by the Minister to revoke his earlier order. If the appeal is dismissed, it will be open to the applicant to seek from the Full Court an order for his interim release pending the reconsideration of his case by the AAT, in accordance with the orders of Marshall J. 104 Alternatively, the applicant may seek to revisit his application for interlocutory relief in the present proceedings. His case for such relief may be viewed in a different, and stronger, light if the appeal were to be dismissed. 105 The application for interlocutory relief must be refused. The costs of this interlocutory application should be reserved. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Mr PN Rose & Mr GJ Moloney

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 200, 201, 253(9)

Federal Court of Australia Act 1976(Cth)ss 19, 23, 28(1)(b)

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