Johnson v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This applicant is a citizen of New Zealand, who came to Australia with his parents and four brothers in 1981 at six years of age and who has lived in this country with his family since that time. He is, however, not an Australian citizen. 2 The applicant has accrued a substantial criminal record and on 19 January 2002 the Minister for Immigration, Multicultural and Indigenous Affairs cancelled his visa under s 501(2) of the Migration Act 1958 (Cth). This was done on the basis that the Minister reasonably suspected that Mr Johnson did not pass the character test as defined by s 501(6) of the Act and that he had not satisfied the Minister that he passed the character test. As a result of that cancellation, he became an unlawful non‑citizen in the view of the Minister's officers and was taken into immigration custody pursuant to s 196 of the Act. He lodged an application for a review of the Minister's decision on 17 February. A substituted application raises as the principal ground that he is neither an immigrant, having been absorbed into the community, nor an alien and therefore falls outside the constitutional limits of the Migration Act insofar as it relates to the cancellation of visas and the removal of persons from Australia. 3 Mr Johnson applied to this Court for interlocutory release pending the hearing of his application or until further order. His motion, which was filed on 11 July 2003, was heard on 18 July 2003. On 22 July 2003, I acceded to the motion for interlocutory release and made orders in the following terms: '1. Upon the lodgment of a bond in the amount of $1000 as required by the following orders, the applicant is to be released from detention under the Migration Act 1958 (Cth) until the hearing and determination of this application or further order. 2. The applicant is to deposit with the District Registrar of the Western Australian District Registry of the Federal Court a bond by way of bank cheque in the sum of $1000 or otherwise in a form acceptable to the District Registrar which may be forfeited to the respondent at the discretion of the Court in the event of any breach by the applicant of the conditions imposed upon him by these orders. 3. The conditions upon which the applicant is released are as follows: (i) The applicant will reside with his parents at whichever of their homes they are living from time to time namely 46 Pedlar Street, South Hedland and 6 Mackenzie Place, Beechborough, Western Australia. (ii) The applicant will not live elsewhere without the prior written consent of an officer of the respondent, being an officer or one of a number of officers nominated by the respondent in writing within twenty-four hours of the making of this order. (iii) The applicant will travel with his parents if and when they travel between their homes in South Hedland and in Perth. He will give twenty-four hours notice of his change of address between those residences and the expected time of the journey to an officer of the respondent nominated in accordance with the previous order. (iv) If residing in South Hedland, the applicant will report in person on Tuesdays during ordinary working hours, excluding only public holidays, to the officer in charge of the South Hedland Police Station and in addition thereto by telephone, on Mondays, Wednesdays, Thursdays and Fridays to an officer nominated by the respondent pursuant to paragraph (ii) during ordinary working hours, excluding only public holidays. (v) If residing in Perth, the applicant will report in person to the office of the Department of Immigration, Multicultural and Indigenous Affairs at 411 Wellington Street, Perth, Western Australia 6000 on Tuesdays during ordinary working hours, excluding only public holidays, and in addition thereto by telephone on Mondays, Wednesdays, Thursdays and Fridays to an officer nominated by the respondent pursuant to paragraph (ii) during ordinary working hours, excluding only public holidays. 4. There is liberty to apply to vary any of the terms of these orders. 5. Costs of the applicant's motion filed 11 July 2003 are reserved.' Subsequently, a payment of $1000 was made to the Court in compliance with the first condition of the order requiring lodgment of a bond in the amount of $1000. That payment was made by Mr Peter S. Johnson, the applicant's father, and was paid into the Litigants Fund at the Federal Court of Australia, where it is presently held. 4 On 16 September 2003, the Minister filed a motion seeking an order that the orders of 22 July 2003 releasing the applicant from immigration detention upon conditions, be discharged and that the applicant pay the respondent's costs of the motion and of the applicant's motion filed on 11 July 2003. The basis for the motion seeking discharge of the order appears from an affidavit of Constable Deslea Patricia Sloan of Kiara Police Station. She says in her affidavit that on Wednesday, 10 September 2003, with another police officer, she was asked to investigate a disturbance at Mackenzie Place, Beechboro, in the State of Western Australia. On attending at that address, she found that the applicant and his mother, Kathleen Johnson, were present. She observed that Mrs Johnson had suffered recent injuries. She and the other officer proceeded to question both the applicant and his mother. He refused to make any comment about the incident but his mother assisted their inquiries. He was subsequently arrested and taken to the Kiara Police Station, where he refused to participate in a video record of interview. At the Kiara Police Station the applicant's mother gave a written statement to police, the substance of which is replicated in the affidavit as follows: '(a) At about 3.45pm on Wednesday 10 September 2003 the applicant was in the lounge room with the complainant at 6 McKenzie Place Beechboro. (b) The applicant began arguing and shouting at the complainant who asked the applicant to leave. The applicant approached the complainant and pushed her over onto the floor. The applicant stood over the complainant and punched her several times with a closed fist to the head. (c) The applicant sat, with his legs on each side of the complainant's face and continued punching her to the head and face. The applicant grabbed hold of the complainant's hair and began banging her head several times into the concrete floor. The complainant asked the applicant if she could get up for a drink and go to the toilet. The applicant would not let the complainant get up and continued shouting and swearing at her. (d) A short time later the applicant stood up and the complainant began to sit up. The applicant told the complainant to stay on the floor or he would smash her one. The applicant left the room and walked into the kitchen. The complainant immediately ran out the front door. (e) The applicant ran after the complainant and caught her at the end of the driveway. The applicant grabbed hold of the complainant in a bear hug from behind and threw her onto the ground. As the complainant lay on the ground the applicant grabbed hold of her arm and began lifting her up. The applicant grabbed the complainant with both hands and began dragging her back towards the house and into the dining room. (f) The applicant grabbed a piece of wood from the fireplace and began shouting at the complaint. The applicant held the piece of wood as if he was going to hit the complainant. The applicant continued arguing and shouting at the complainant whilst holding the piece of wood. (g) The complainant is 58 years old, about 160 cm tall and of solid build. As a result of this incident the complainant suffered bruising and swelling to her right eye and mouth. She also suffered intense pain and swelling to her right arm.' 5 The applicant was charged in relation to the incident on 10 September 2003 with assault occasioning bodily harm and deprivation of liberty. He appeared in the Perth Court of Petty Sessions on 11 September 2003 and bail was fixed in the sum of $5000 with a surety of $5000. He has not yet been able to obtain a surety and is presently on remand in the Hakea Remand Centre. I have been informed today by counsel for the applicant, Mr Christie, that one of the conditions of that bail is that he not approach the complainant. 6 Counsel for the applicant has filed an affidavit in which he has deposed that he has been informed by the applicant's father, Peter Johnson, and believes that: (a) the applicant's parents' initial reaction was not to support the applicant in opposing the respondent's motion, however, on further reflection they consider that the assault by the applicant on the applicant's mother was out of character and will not be repeated; (b) the applicant's mother has provided a statutory declaration to the Western Australian Police asking that the prosecution be withdrawn. The applicant has been on remand at least until the morning of 25 September when an interim hearing or mention of the prosecution is listed; (c) the applicant's parents consider the period of detention earlier this year emotionally affected the applicant and that a further period in detention will only exacerbate his stresses, which they believe led to the assault. They wish the present interlocutory injunction to continue and for the applicant to continue to reside with them; further, it is intended that the applicant's brother will also reside with them to provide further support for the applicant; (d) the applicant's father wishes to investigate and to support the applicant in obtaining counselling or stress management as a matter of priority; (e) the applicant's mother is currently on a bus from Hedland to Perth having left at approximately 5 pm on 24 September 2003 and the applicant's father is flying from Hedland to Perth on Friday, 26 September 2003 as neither of them could obtain a suitable flight from Hedland to Perth; accordingly, neither of them is available to attend today's hearing or to provide an affidavit themselves. 7 I have also been informed, and it appears not to be in contention, that despite the request from the applicant's mother that the prosecution be withdrawn, the state is presently proceeding with the prosecution. Mr Christie has requested an adjournment of the motion. However, in my opinion there is no point in not proceeding to deal with it now. It is, in my opinion, clear that because of his arrest and the terms and conditions of his bail, the applicant is not capable of complying with the conditions upon which the original injunction was granted, which involve residing with his parents and travelling with them if and when they travel between their homes in South Hedland and in Perth. Even if the applicant were not in custody and even if the condition imposed upon his release on bail relating to absence of contact with his mother did not exist, it would be my opinion that, having regard to the nature and seriousness of the charge and the content of the statement taken from the mother by Constable Sloan, it would be inappropriate to maintain his interlocutory release upon conditions requiring residence and travel with his parents. I say that having regard and with due respect to their support for him evidenced in Mr Christie's affidavit. 8 Mr Christie has drawn my attention to a recent amendment which has now come into effect to s 196 of the Migration Act under the Migration Amendment (Duration of Detention) Act 2003 (No 90/2003)whereby it appears, assuming the validity of the amendment, that interlocutory release orders will no longer be able to be made by courts pending the hearing and determination by persons in detention under that provision of challenges to the lawfulness of their detention; that is to say, until a final determination of the lawfulness of that detention or the status of the person as an unlawful non-citizen has been made. There was a saving provision in the amendment relating to existing interlocutory release orders and Mr Christie pressed upon me that if I were to discharge the order made in this case, the applicant would be effectively prevented from bringing a fresh application for interlocutory release. Whether that is so or not, I express no opinion. In any event, that is not a factor which it is appropriate for me to take into account in determining the merits of the present motion. 9 In respect of the bond payment I note that counsel for the respondent does not oppose repayment of the bond moneys to the applicant's father. In relation to the costs of the motion there is no basis upon which I should order that by reason of the subsequent events the costs of the applicant's motion filed on 11 July 2003, that is to say, the motion upon which I made the original order for interlocutory release, should be paid by the applicant. Those costs should remain reserved for the present pending the outcome of the substantive application. I must say that there seems to be, in the circumstances, little point in making a costs order in relation to the present motion. I propose to order discharge of the interlocutory release, repayment of the sum of $1000 by way of bond to the father and otherwise no order as to costs.