Brehoi v Minister for Immigration & Multicultural Affairs

the court: 1 This is an appeal from a judgment of Madgwick J delivered on 14 December 2000, whereby his Honour dismissed the appellant's application for judicial review of a decision of a delegate of the respondent Minister to issue a notice stating that a deportation order had been made under s 254(2)(a) of the Migration Act 1958 (Cth) ("the Act") in respect of the appellant. In the course of the hearing before his Honour, the appellant also sought to challenge the legality of his detention pending deportation under s 253 of the Act. 2 The judgment below from [4] to [15] records in some detail his Honour's findings as to the circumstances giving rise to the application for judicial review, which we need not repeat, save as to the following matters. (i) On 20 August 1997, a deportation order was made against the appellant by a delegate of the Minister pursuant to s 200 of the Act in reliance on the appellant's conviction in the District Court at Sydney on the criminal charge of supplying a prohibited drug; the appellant had been sentenced to a fixed term of imprisonment of two years and six months; (ii) On 29 August 1997, the notice pursuant to s 254(2)(a) referred to in [1] above was served by an officer of the Department of Immigration and Multicultural Affairs upon the appellant while he was serving his term of imprisonment at the Silverwater Correctional Centre; (iii) On 17 December 1998, a further notice pursuant to s 253(3) of the Act was served upon the appellant by two officers of the Department, whilst he was still imprisoned in the Silverwater Correctional Centre. That notice explained the reason for his intended immigration detention following the expiration of his term of imprisonment, and the appellant did not request those officers to furnish him with particulars of his intended detention. 3 In rejecting the appellant's claims that he was not served on either occasion with a notice to the effect asserted by the Minister, his Honour preferred the evidence of the departmental officers involved in the personal service of the notice. 4 The appellant also raised issues as to the validity of each of the notices in question. In upholding the validity of the first notice, his Honour followed the decision of a Full Court of this Court (Sundberg, North and Dowsett JJ) in Dung Chi Dang v Minister for Immigration and Multicultural Affairs (1999) 163 ALR 495, to the effect that no independent power was necessary to detain in immigration detention a person already imprisoned pursuant to a deportation order made under s 254. In upholding the validity of the second notice, his Honour referred to a decision of this Court at first instance in Tuiletufuga v Minister for Immigration and Multicultural Affairs (1999) 158 ALR 205 (Lehane J), to the effect that s 254 of the Act does not limit the scope of s 253(2) in respect of detention before deportation. 5 The appellant raises the following grounds of appeal: "(a) The judge erred in finding that the appellant had been granted parole at the time that the respondent purported to have him detained under the Migration Act. (b) The judge erred in failing to give any or any adequate weight to the notation on the respondent's copy of the notice purportedly served on the appellant at the time he was purportedly detained by the servants of the appellant. (c) The judge erred in finding that the requirements of ss 253 and 254 were satisfied when the evidence did not support such a finding. (d) The deportation order purported to be made against the appellant was not properly made and is a nullity and the judge erred in finding as a fact that such an order existed. (e) The judge failed to consider the situation of my daughter." 6 We are of the view that none of those grounds constitutes a relevant basis in law for setting aside the judgment at first instance of Madgwick J. 7 The first ground of appeal has no bearing upon the issues which Madgwick J was required to determine, which put shortly, were related to the legality of the appellant's first period of detention pursuant to s 254(2), and his current period of detention pursuant to s 253(3) and (8). 8 As to the second ground of appeal, his Honour found that Mr Gillett had visited the appellant on the occasion referred to in [2(ii)] above, and had given him a copy of the Department's letter dated 29 August 1997. His Honour was aware of the handwritten notation made by Mr Gillett on that letter, and we uphold the respondent's submission that his Honour must have given weight to the contents of that notation as evidence of the giving of the letter to the appellant in person on that date. 9 As to the third ground of appeal, the notification pursuant to s 254(2)(a) of the Act in the form of the letter dated 29 August 1997, together with its enclosures, was, as already indicated, found by Madgwick J to have been personally served on the appellant on that day, and his Honour rejected the appellant's testimony to the contrary. Furthermore, his Honour accepted as a fact, as also mentioned above, that on 17 December 1998, being the first day of the second period of the appellant's immigration detention, the two Departmental officers in question informed the appellant that he was being relevantly detained. This ground has not been made out. 10 No issue of the kind which the appellant sought to argue on the hearing of the appeal in support of the fourth ground was raised at first instance. The appellant sought leave at the end of the hearing of the appeal to institute a fresh proceeding under the Administrative Decisions (Judicial Review) Act 1977 and to have that fresh application heard and determined instanter concurrently with the determination of the appeal. We refused that application because it would require the respondent to have an opportunity to address evidence to it and would raise complex questions of fact in relation to a chain of authority from the Minister. This Court, constituted as it is to hear the appeal from Madgwick J, is an inappropriate forum for the resolution of those questions. However, our refusal of leave is not to be taken as precluding the appellant from instituting any fresh proceedings which may be open to him. 11 As to the fifth of ground of appeal, no issue concerning the appellant's daughter was raised below. Nor, in any event, can any such issue be material to the legality or otherwise of the appellant's past or present detention. 12 Four further issues have been raised in the appellant's written submissions, notwithstanding the absence of reference thereto in the notice of appeal. 13 The first relates to the appellant's lack of legal representation. Counsel for the respondent has informed us that at the close of the first day's hearing, Madgwick J informed the appellant that he would cause enquiries to be made of the New South Wales Bar Association as to whether a barrister might be available to appear for the appellant without charge on the following day. At the recommencement of the hearing on the second day, the appellant informed his Honour that he had previously spoken to a barrister at the Silverwater Correctional Centre, and had again spoken to, apparently, the same barrister earlier on that morning. The appellant further informed his Honour that the barrister had given him legal advice but would not be appearing for him. Despite these circumstances, the appellant submits that he was unable to prepare his case adequately enough to respond to the Minister's case below. We do not think that there is merit in this submission, not just because of the circumstances just recorded, but also because the appellant's lengthy oral and written submissions presented to us on this appeal have demonstrated that he is not lacking in intelligence and confidence to be able to present at considerable length all that could conceivably be said in support of his application. 14 The appellant further contended that he did not receive, at least in advance of the hearing below, copies of the affidavits of the Departmental officers, Mr Richards or Ms Speed, on which the respondent relied before Madgwick J. A reading of the transcript of 18 May 2000 at page 74 lines 7 to 9, lends no support to this submission. It was related to the evidence directed to the issue referred to in [9] above, but no advance provision of the affidavits could have enabled the appellant to avoid the implications of the factual findings of Madgwick J on that issue. 15 The appellant then contended that "There were a number of falsified statements made by the respondent. For instance… the respondent had a statement of fact that a solicitor had instructed her on 9th September 1997 that their client had been served with the decision on 29 August 1997". A concession made by Miss Henderson, who was Counsel for the Minister both at first instance and on appeal, lends weight to this contention but it leads nowhere because the appellant himself has produced documentary evidence of a communication on 28 August 1997 from Mr Gillett to a Mr Levingston, a solicitor then acting for the appellant, attaching "a copy of the documentation that will be handed to Mr Brehoi" The attachment was a copy of the deportation order dated 20 August 1997 and the communication corroborates Mr Gillett's assertion that he handed a copy of the order to the appellant on the next day, 29 August 1997. In the same context, the appellant sought leave to adduce fresh evidence tending to establish that he had not been present at the Silverwater Correctional Centre on 29 August 1997. That evidence was in the form of a letter dated 10 October 1997, from Vegmasters Pty Ltd, for which Mr Brehoi had worked under a work release program while detained at Silverwater. The letter included this passage: "Wages and hours worked prior to Mr Brehoi's accident: 15.08.97 to 19.08.97 23.75 hours $295.85 Gross 20.08.97 to 26.08.97 31 hours $380.70 Gross 27.08.97 to 02.09.97 15 hours $175.50 Gross 03.09.97 to 09.09.97 38 hours $481.75 Gross 10.09.97 to 16.09.97 16.5 hours worked $198.33 Gross 10.5 hours work. Comp $126.21 Gross 17.09.97 to present 27 hours work. Comp $324.55 Gross"