Nguyen v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks an order that he be released from custody pending the final determination of these proceedings. In the proceedings, the applicant · appeals under s 44(1) of the Administrative Appeals Act 1975 (Cth) on a question of law from a decision of the Administrative Appeals Tribunal ("AAT") made on 27 February 2001, in which the AAT affirmed a decision made by the Minister's delegate on 13 May 2000 that the appellant be deported; and · seeks an order pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), ("ADJR Act") s 5, for review of what is said to have been a decision made on or about 18 May 2000 under s 253 of the Migration Act 1958 (Cth) ("Migration Act") to require the applicant to be detained upon the expiration of his existing custodial sentence (the "detention decision"). 2 It may be that the reference to s 253 of the Migration Act is in error and that the correct provision is s 254 of the Migration Act. It seems likely that this is the case, since s 254 deals with the immigration detention of "deportees" who are in the custody of an authority of a State otherwise than under the Migration Act. In May 2000, the applicant was serving a sentence of imprisonment in a State prison. 3 The applicant was born in 1978 in Vietnam. He arrived in Australia in 1991, aged thirteen. It appears that either before or after his arrival he was granted a protection visa. One of the grounds upon which the AAT is said to have erred is that it failed to take into account the provisions of the Convention Relating to the Status of Refugees governing the return of refugees to their countries of origin. 4 According to the findings of the AAT, the applicant was convicted of a number of serious offences during the period 1994 to 1998. He has been in custody since 7 October 1997. His most recent conviction was on 13 November 1998, when he was convicted of the offence of robbery in company committed on 15 June 1996. He was sentenced to four years imprisonment, being a minimum term of two years with an additional term of two years, to date from 7 June 1998. 5 The New South Wales Parole Board considered the applicant's case on 26 May 2000, but refused parol. The reasons given were these: "Unable to adapt to normal lawful community life; risk of reoffending; inappropriate in the public interest." 6 On 3 March 2001, the Parole Board again considered the applicant's case and determined that he should be released on 15 March 2001. On the latter date he was "released into the custody of an officer of the Department of Immigration". He has in fact remained in Silverwater Gaol since that time. 7 I accept that the Court has jurisdiction, in appropriate circumstances, to grant the interlocutory relief sought by the applicant: Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504, at 519-520, per Weinberg J. I also make the following assumptions in the applicant's favour: (i) there is a serious issue to be tried as to whether the AAT's decision was affected by an error of law; (ii) there is a serious issue to be tried as to whether the detention decision is liable to be set aside on grounds of procedural unfairness; and (iii) there is a serious issue to be tried as to whether the applicant should be granted an extension of time to institute proceedings under the ADJR Act challenging the detention decision (such an extension being necessary because the application was filed out of time). 8 I have set down a hearing on 26 June 2001 for determination of all issues. That is seventeen days from the date of the interlocutory application. While this is a relatively short time, I appreciate and accept that detention of a person otherwise entitled to liberty, even if the detention is for a short time, is a matter of "great moment": Betkhoshabeh, at 521. 9 Nonetheless, I do not consider that an interim order should be made for the release of the applicant. Matters that are particularly relevant to the question of release are whether there is any risk that the deportee may abscond and whether he or she is likely to be a danger to the Australian community: Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389, at 398, per Lehane J. 10 The applicant has an history of criminal convictions for what the AAT described as "serious" and "very serious" offences. These include a conviction in November 1997 for escaping from police custody. The AAT also referred to the fact that the applicant had failed to honour reporting obligations and had failed to appear in respect of the charge of robbery in company. These matters suggest that there is a significant risk that the applicant might abscond if released pending the hearing. This is not a case where the applicant has spent some time in the community immediately before being taken into immigration detention and whose conduct during that period of liberty can be taken into account in assessing the risk of absconding: cf Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 1450, at [16], per Carr J. 11 The evidence before me at present also suggests that there is some risk to the Australian community, although I cannot make any precise assessment of the gravity of the risk. I appreciate that the Parole Board determined that the applicant was suitable for release in March 2001, but there is no evidence as to why that step was taken and whether it involved a careful assessment of the extent to which the applicant would pose a risk to the community. 12 I have taken into account the evidence read on behalf of the applicant, but I do not think it alters the position I have described. The applicant is fortunate to have some family support, but that support does not overcome or substantially diminish the difficulties I have identified. 13 Mr Robinson, who appeared for the applicant, submitted that the applicant could be seriously prejudiced if he was not able to confer with and give instructions to his legal advisers. There is force in that contention. However, Mr Lloyd, who appeared for the Minister, advised the Court that the Minister would use his best endeavours to ensure that the applicant is moved to a prison in the Sydney area and to facilitate contact between the applicant and his advisers. If the Minister is able to make the necessary arrangements, this will avoid the prejudice to the applicant that otherwise might occur. To protect the applicant's position, I shall reserve liberty to apply on 24 hours notice. If the necessary arrangements are not in place within a reasonable time (say seven days from the date of the interlocutory hearing) the applicant will be free to approach the Court for further relief. 14 The applicant's claim for an interlocutory order faces the further difficulty that there have been significant delays on his part in instituting legal proceedings to challenge the decisions made on behalf of the Minister. I have, however, concluded that, independently of these delays, his application for interlocutory relief should be dismissed. 15 I should add that Mr Robinson contended that the applicant has a strong case for challenging the decision of the AAT. He submitted that the strength of the case ought to be taken into account in determining whether the applicant should be granted the interlocutory relief he seeks. Even if I were of the view that the applicant's case is, prima facie, a relatively strong one, it would not alter the views that I have expressed. 16 The application for interlocutory relief is dismissed. The applicant is to have liberty to apply on 24 hours notice. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.