Minister for Immigration, Local Government & Ethnic Affairs v Msilanga

REASONS FOR JUDGMENT This is an application by Moses Shane Pylka (the applicant) for a mandatory interim injunction requiring the Minister for Immigration & Multicultural Affairs (the Minister) to release him from custody. The interim application is brought in two principal proceedings which challenge the decision of the Minister's Delegate (the Delegate), made on 27 November 1997, not to release the applicant from custody. The applicant was born in New Zealand on 1 January 1964. He arrived in Australia on 19 September 1987. On 28 April 1994, he was convicted of five counts of trafficking in a drug of dependence and sentenced to two years and nine months imprisonment. In view of the conviction, the applicant was liable to deportation on the order of the Minister under s 200 of the Migration Act 1958 (Cth). Such an order was made on 20 December 1994. The applicant successfully challenged the order in the Administrative Appeals Tribunal (the AAT) and, on 1 June 1995, the AAT directed that the deportation order be revoked. On 5 May 1997, the applicant was convicted in Prahran Magistrates' Court on three counts of trafficking in a drug of dependence, two counts of using a drug of dependence and one count of unlicensed driving. The drug trafficking offences occurred on 1 January 1996, 22 November 1996 and 10 June 1997. The applicant was sentenced to six months' imprisonment. On 23 October 1997, the Minister made a further deportation order against the applicant, based again on the 1994 convictions, but no doubt having regard to the 1997 convictions. These latter convictions would not, on their own, ground a deportation order because such an order may only be made if a person is sentenced to a term of imprisonment exceeding twelve months (s 201(c)). It should be noticed that this order was made shortly before the applicant completed serving his sentence. On 20 November 1997, the applicant applied to the AAT to challenge the second deportation order. It is not certain when this application will be heard. In the meantime, the applicant remains in custody in the Victorian prisons system at Port Phillip Prison, Laverton. Section 253(1) allows for the detention of a person in respect of whom an order for deportation is in force. Section 253(9) provides: "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." By letter dated 25 November 1997, the solicitor acting for the applicant requested that the applicant be released from custody under s 253(9). The grounds for the request were expressed as follows: "I refer to the references and reports provided to you on 20th November 1997. Mr Pylka has served his sentence. There is no suggestion that he represents any threat to the community. He has the support of his de facto spouse, his employer and numerous friends and relatives. Reports from people involved in Mr Pylka's rehabilitation programme and his prison case officer all attest to his determination to remain drug-free and to his efforts to make a new start in life. Mr Pylka is willing to agree to release on conditions and his de facto spouse is willing to provide whatever support is necessary to secure her spouse's release." The references and reports referred to in the letter were not identified in the evidence before the Court. On 27 November 1997, the Delegate replied as follows: "I refer to your letter of 25 November 1997 regarding the release of your client, Mr Pylka, under section 253(9) of the Migration Act 1958. This section states that; '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.' I am a delegate of the Minister for the purposes of section 253 of the Act. I have considered the matters set out in your request and in particular, the support offered by his de facto spouse. However, I have decided against his release in light of his criminal convictions, which include trafficking in 'hard' drugs of addiction. In my view his release would pose an unacceptable risk to the Australian community." The applicant then applied to the High Court of Australia for orders nisi for the issue of writs of habeas corpus, prohibition and certiorari against the Minister and the Delegate in respect of the decision of the Delegate to refuse to release the applicant under s 253(9). On 5 December 1997, Hayne J remitted the application to this Court. The application initially came on for hearing before this Court on 11 December 1997. On that occasion, the applicant sought an interim mandatory injunction requiring the Minister to release him pending the final hearing of the challenge to the Delegate's decision. The respondents argued that no injunction should be granted because no case for substantive relief had been made out. Mr Gunst QC, who appeared for the respondents, argued, inter alia, that the grant of prerogative relief was discretionary and should not be granted in this case because there was an alternative procedure available to the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and/or the Judiciary Act 1903 (Cth). In order to avoid the possible success of that argument, the applicant issued an application under the ADJR Act. Thus, on 17 December 1997, when the matter came before the Court again, the applicant sought a mandatory interim injunction in either or both of the principal proceedings. Although both applications allege a number of errors in the decision of the Delegate, Mr Rose, who appeared as counsel for the applicant, confined the challenge to the allegation that the Delegate failed to take into account a relevant matter, namely, the offer of the applicant to agree to release on conditions, and that the Delegate was wrong in referring to the drugs involved as "hard" drugs. It was common ground that the Court has jurisdiction to grant a mandatory interim injunction for release under s 23 of the Federal Court Act where there is a substantive proceeding on foot: Minister for Immigration, Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169. Mr Gunst contended that there was no case of error made out and, hence, the applications should be struck out as disclosing no cause of action. A notice of motion was filed on 17 December 1997, for orders dismissing the ADJR proceeding on this basis. No motion for dismissal was filed in the remitted proceedings because, Mr Gunst contended, they could not proceed unless a prima facie case for relief was made out. I deferred consideration of this argument until the conclusion of argument and evidence on the injunction application. One issue to be considered in determining whether to grant the interim injunction is whether the applicant has established a serious issue to be tried on the question whether the decision-maker fell into error. The motion for dismissal and Mr Gunst's argument that there is no basis for the remitted proceedings both raise the same issue, namely, whether the respondents have shown that there are no grounds upon which the applicant could succeed in the principal proceedings. It is convenient initially to consider this argument and the question whether the applicant has established a serious issue to be tried in favour of an interim injunction. Mr Rose contended that the Delegate erred in failing to consider the offer of the applicant to accept release on conditions. The applicant must demonstrate a serious issue to be tried that the delegate erred in this way. The letter of request says "Mr Pylka is willing to agree to release on conditions". The response of the delegate is that "I have considered the matters set out in your request". In the absence of reasons for decision, there is no basis to doubt that the Delegate did as she said and considered, inter alia, release on conditions. The fact that she decided against release does not alone evidence a failure to take into account the possibility of release on conditions. On this evidence, there is no error constituted by a failure to consider release on conditions. The applicant did not seek from the Delegate reasons for her decision. It is normally by reference to the reasons that an applicant is able to say that a relevant matter has not been considered. In this case, the decision itself states certain conclusions, but I would not describe these conclusions as reasons. The role of the Court in this matter is not to substitute its decision for that of the Delegate. Its role is to examine whether the Delegate erred in the process of decision-making. It therefore cannot assist the applicant to rely upon evidence before the Court which was not before the Delegate. This is not a case in which a comparison of the evidence before the Delegate and the decision of the Delegate demonstrates that there must have been a failure to take into account relevant considerations because the evidence supports only one reasonable conclusion. On the contrary, the very brief terms of the request rather suggest that the request had little substance. The AAT had quashed the first deportation order on the basis that the chance of the applicant reoffending was very low. Within about six months, he did reoffend. Without a substantial case, the applicant obviously faced a formidable obstacle in convincing the Delegate in favour of release. Mr Rose relied on Srokowski v Minister for Immigration, Local Government & Ethnic Affairs (1988) 15 ALD 775, in which Lee J held that a delegate had erred by not taking into account the possibility of release from custody on conditions. This failure was evident from the reasons for decision which had been obtained. Further, the applicant had been in custody for twenty months and, hence, by reason of the long delay, had a strong case for release on conditions. That case is therefore very different in critical respects from the present case. In that case, there was evidence of failure to take into account a relevant matter. Here, there is no such evidence. Here the evidence proves the reverse. In this case, there has not yet been a long period of migration custody. At one stage, Mr Rose suggested that it was up to the Delegate to make further enquiries from the applicant's solicitors about the nature and type of conditions offered. In the circumstances, in my view, it was for the applicant to produce a suggested set of conditions to persuade the Delegate that release would not be a threat to the Australian community. In a passage cited by Lee J in Srokowski, at 779, Deane J said, in Sean Investments Pty Ltd v MacKellar (1991) 38 ALR 363, at 374-375: "In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." (my emphasis) Finally, the reference to hard drugs in the decision does not suggest that the Delegate erred in a material way. The applicant's conviction related to the trafficking in LSD and Ecstasy. There is no evidence before the Court which demonstrates that these drugs are not properly described as hard drugs, or that the Delegate was mistaken as to the drugs involved in the applicant's convictions. Consequently, there is no serious issue to be tried in either of the principal proceedings that the Delegate fell into error and the applicant is not entitled to the injunction sought. For the same reasons, I have come to the conclusion that neither of the principal proceedings disclose a reasonable cause of action. The applicant is, in my view, bound to fail in his present challenges to the Delegate's decision. To allow the proceedings to continue would involve useless expense: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125,at 129, per Barwick CJ. I will therefore make orders that both principal proceedings be dismissed. As the applicant has not addressed any argument on the question of costs, I will reserve that question for further argument in the event that the parties cannot agree. Arrangements can be made with my Associate to list the matter on this question at a time convenient to the parties and the Court. This decision does not prevent the applicant from now seeking reasons for the Delegate's decision and instituting a fresh challenge if those reasons demonstrate some error. Further, this decision does not prevent the applicant making a further application for release. On such further application, it is open to applicant to put before the Delegate a more substantial case, such as the case put to the Court in support of the balance of convenience arguments. In those circumstances, it is undesirable for me to express a view on this aspect of the present application. It is not necessary for my decision. Suffice it to say that I heard evidence from Mr Williams, who said that he would offer the applicant a full time job as a scaffolder, involving far in excess of forty hours of work per week for the indefinite future, and also from the applicant's sister, who was prepared to provide accommodation for the applicant away from the St Kilda area until he could find accommodation of his own. But central to the applicant's request for release was his claim that his present circumstances are entirely new and involve a very high likelihood that he will not reoffend and will appear for the AAT hearing. The circumstances are that he has recently become unofficially engaged to Louise Poulson and their relationship has a strong basis involving a determination to start afresh. This is a fairly oft told tale in such circumstances. But each case needs to be assessed on its own merits. It may well be that, if the Delegate had been invited to speak directly with Ms Poulson, the decision of the Delegate may have been different. While the applicant would be asking the Delegate for a second chance to demonstrate that he had reformed his life, the evidence of employment prospects, family support, and the character, influence and plans of Ms Poulson could persuade the Delegate in favour of release in all the circumstances. An aspect of the case which I have found troubling is that the deportation order was served on the applicant almost at the end of his period of imprisonment. This necessarily meant that, if he wanted to challenge the order, he ran the risk of remaining in custody while the challenge was being processed, heard and determined. Having served six months imprisonment for the drug offences, he faced the real possibility of further imprisonment for at least as long waiting for the administrative procedures to be completed. This seems most unsatisfactory. Had the deportation order been served at or about the time of commencement of the sentence of imprisonment, the challenge could have occurred while the applicant served his term of imprisonment. Although there is nothing to indicate that the Delegate did not take this factor into account in reaching her present decision, it seems to me that the late making of the deportation order is a matter relevant to be taken into account in determining any further request for release.