Hui v Minister for Immigration & Multicultural Affairs

Factual Background 4 On 28 September 1998 a delegate of the respondent ordered the deportation of the applicant from Australia, acting under s 200 of the Act. The circumstances leading to that order were described in reasons for judgment which I published in application N147 of 1999 on 21 July 1999. I incorporate by reference paragraphs 1-4 of those reasons. On 8 October 1998 the applicant applied to the Tribunal for review of the delegate's decision. On 16 October 1998 another of the respondent's delegates decided, as I have mentioned, that the applicant should be held in detention pursuant to s 253 of the Act, that he should not be transferred to the Immigration Detention Centre and should remain in immigration detention in a New South Wales Department of Corrective Services gaol pending the hearing of his application to the Tribunal for review of the deportation order. On an unspecified date between 16 October 1998 and 4 December 1998 the applicant applied to this Court for an order of review, under s 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) ("ADJR Act") of the decision made on 16 October 1998 concerning his detention. He claimed that in the making of that decision there had been a breach of the rules of natural justice, an improper exercise of power and that there was no evidence to justify the conclusions on which the decision was based. The applicant sought, in that application, that the decision to detain him at Silverwater be set aside and that he be released from detention forthwith, on such conditions as the Court considered fit. That application was heard by O'Connor J on 4 December 1998. I shall call that application the first application. Her Honour reserved judgment but delivered it four days later. Her Honour, in published reasons, rejected the applicant's complaints under the ADJR Act and dismissed the application. Her Honour expressed the view that the hearing before the Tribunal (no date having been fixed at that time) should be given a high priority as the applicant was in prison. The Tribunal heard the matter on 21 January 1999 and, on 28 January 1999 affirmed the decision to deport the applicant. On 19 February 1999 the applicant appealed to this Court against that decision. As I have mentioned, on 6 May 1999 the applicant filed the present application. On 17 June 1999 the respondent filed a notice of objection to competency which, omitting formal parts, reads as follows: "The respondent objects to the jurisdiction of this Court to try this application for an order of review under the Migration Act 1968 ("the Act") on the grounds that:- 1. The "decision" which the application seeks to challenge is not a judicially-reviewable decision within the meaning of section 475 of the Act; 2. The application seeks to agitate again a matter which was the subject of orders made 8 December 1998 by O'Connor J of this Court that an application to review the same "decision", being application NG 1161 of 1998, be dismissed with costs." 5 On 13 July 1999, when I heard the applicant's appeal, which I shall call the second application, from the Tribunal's decision, I made directions in respect of this application. They included directions that the respondent's objection to the competency of the application be heard and determined at the same time as the application itself and directions concerning the filing of affidavits and written outlines of submissions by each side. On 21 July 1999, in the second application, I allowed the appeal against the Tribunal's decision of 28 January 1999, set aside that decision and remitted it to the Tribunal, differently constituted, for further hearing and determination according to law. I understand that the appeal is pending before the Tribunal, but no hearing date has been fixed. 6 Apart from affidavits sworn by the applicant and his brother, no further affidavits have been filed in this application since 13 July 1999. One of the orders made on that date was that the evidence in the second application would be evidence in this application. None of the affidavits in that matter, nor indeed the affidavits of the applicant or his brother in this matter, goes towards challenging the decision of 16 October 1998. 7 I propose to turn first to the respondent's objection to competency. The respondent relies on an affidavit of Ruth Elizabeth Cheetham sworn on 8 July 1999. Ms Cheetham deposes to the decisions of the respondent's delegate that the applicant be held in detention pursuant to s 253 and that he not be transferred to an Immigration Detention Centre, but be detained in the State prison. Ms Cheetham swears that there have not been any other determinations in relation to the applicant's detention or place of detention since 16 October 1998. 8 The respondent submits that the legality of the decision now again under challenge was challenged in the first application before O'Connor J. The respondent points out that there was no appeal from O'Connor J's decision in the first application. The respondent contends that as between the applicant and himself, the applicant is estopped from denying the legality of the decision to detain him on 16 October 1998. The respondent submits that there is no other power in this Court to order the applicant's release. There has to be, so he submits, an identified specific source of power in the Court to override the power which was exercised under ss 253 and 254 of the Act. The possible source of power contained in s 16 of the ADJR Act has, so the respondent submits, been spent by O'Connor J's decision. The respondent says that the powers conferred by ss 19, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) can only result in the granting of an order for release of the applicant if that is incidental to the exercise of some other substantive jurisdiction of the Court, citing Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169. In that case the Full Court upheld a decision of a Judge at first instance to order, on an interlocutory basis, the release of a person who was bringing proceedings under the ADJR Act which sought ultimately to challenge the validity of an order providing for his detention. The respondent submits that the applicant does not and could not bring any application to quash the decision ordering his detention and that there is thus no means by which the Court can order his release. 9 The applicant is unrepresented. In those circumstances I consider that it is in the interest of justice, without infringing the rights and interests of the respondent, for me to treat this application as invoking whatever jurisdiction this Court may have to make the order which the applicant seeks i.e. that he be released from custody pending the decision of the Administrative Appeals Tribunal. Accordingly, I approach the matter on the basis that the respondent seeks judicial review whether under the ADJR Act or under s 39B of the Judiciary Act 1903 (Cth) of the respondent's decisions of 16 October 1998. I gave consideration to whether the applicant's somewhat informal application should also be regarded as challenging, upon the same two statutory bases, the respondent's failure to exercise the 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." 10 I have concluded that it would not be appropriate to regard the application as extending that far. First, there is no evidence that the applicant has asked the Minister or the Secretary to exercise the power conferred by s 253(9). It is open to him, should he so choose to do that; that is, he may write immediately to the Minister asking him to exercise the power conferred on him by s 253(9) of the Act. 11 Secondly, even if this application could be construed as such a challenge, the result of a successful attack on the failure to exercise the power under s 253(9) in my view, as Mr Beech-Jones, counsel for the respondent submitted, in the circumstances of this case where a deportation order is current and under challenge in the Administrative Appeals Tribunal, would not be a court order that the applicant be released from prison. 12 Furthermore, no factual basis has been laid for such an attack, nor do I consider it appropriate to treat the application as an application to extend time to appeal from O'Connor J's decision. I repeat, though, that it is open to the applicant, if he so chooses, to write immediately to the Minister asking him to exercise the power conferred on him by s 253(9) of the Act. 13 I have considered whether two other matters might enable one to consider this application despite O'Connor J's judgment. The first is the fact that her Honour's judgment was given at a time before the Administrative Appeals Tribunal gave its decision, and that that decision has in turn been set aside by this Court. In my view, the circumstance that the Tribunal's decision has been set aside does not assist the applicant to bypass her Honour's judgment. The situation is still the same, he is awaiting the outcome of his appeal to the Administrative Appeals Tribunal. The second matter was that this application could be viewed as having been brought under s 39B of the Judiciary Act. In those circumstances, common law administrative law principles would be applied. However such an attempt would, in my view not be permitted under the principles explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The applicant was legally represented before O'Connor J and, in my opinion, if the applicant had wished to rely upon s 39B of the Judiciary Act, he should have included such an application in those proceedings. Furthermore, all of the review grounds raised by the applicant before O'Connor J were grounds reflected in common law administrative law principles. 14 Accordingly, I accept the respondent's submissions that the applicant is barred by the final judgment of O'Connor J given on 8 December 1998 from seeking to review the respondent's decision of 16 October 1998 and there has not been identified any other basis upon which this Court could exercise jurisdiction to release the applicant from detention. 15 For these reasons I uphold the respondent's objections to competency and the application will be dismissed. 16 I should add a final word. If I had found that I had jurisdiction further to review the decisions of 16 October 1998 and had set aside that decision and to the extent that I had any discretion as to whether to order the applicant's release, I would have exercised that discretion against making such an order. I have taken into account the affidavits sworn by the applicant and by his brother. However, I refer to the applicant's criminal history in this country since 4 December 1991 involving most serious offences. They include violent physical attacks, some of which were extremely serious. One of them involved the use of a large knife or machete. The applicant was given warnings about deportation, but still went on to commit further violent offences. I have not overlooked the applicant's attendance at an anger management programme and a drug awareness course last year, his attendance at church and upon a psychologist. However, my assessment of the evidence is that if released from custody there would be an unacceptable risk of the applicant renewing his criminal activity to the extent of being a danger to the Australian community. I consider that this case is very different to the circumstances which I considered in Towers v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 88. In that case there was evidence of the applicant having been released into the Australian community for an extended period without further offending before the deportation order was made. In any event, as I have held that I have no power to release Mr Hui, these observations are not strictly necessary to my decision, nor would I like them to be taken as in any way comprising persuasive reasoning if the applicant saw fit to apply to the Minister to exercise his power under s 253(9). The respondent has the ability to obtain further information and far better inform himself than I have, in terms of the affidavits filed and the material put before me both in the second application and in relation to this application. I make these observations purely as an aside on the question of whether I would have exercised my discretion on the materials to date, had I found that I had such a discretion. 17 Finally, in fairness to Mr Hui, it is to be noted that he has now been in custody for nearly eleven months not by way of punishment for having committed any offence, but because he is awaiting deportation. It is also in my view significant to take into account that that period of nearly eleven months started with the termination of the period of imprisonment to which he had been sentenced on the last occasion of violating the law, so at the very end of that sentence the applicant was detained pending deportation. That, as I say, was nearly eleven months ago. As O'Connor J observed in her judgment, so I join in expressing the view that the process of merits review in Mr Hui's case should, in all the circumstances, be given as high a priority as possible. 18 There will be the following orders:

1. The application be dismissed.
2. The applicant pay the respondent's costs of the application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Counsel for the Respondent: Mr R Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3 September 1999

Date of Judgment: 3 September 1999