Tuaoi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is the subject of a deportation order made on 24 August 1998. That order is the subject of an application for review in the Administrative Appeals Tribunal. In these proceedings the applicant challenges the decision to detain him, made under s 253 Migration Act 1958 on or prior to 12 October 1998, when it was notified to him; and the decision not to exercise the discretion under s 253(9) to order his release from that detention. The final hearing is postponed pending the giving of a statement of reasons for the first mentioned decision. The question whether any reasons were given, as s 253(3) requires, is to be addressed following the giving of this decision, which concerns an application for release from detention pending the hearing of the substantive application. 2 That the Court has power to restrain those exercising power from detaining a person in the position of the applicant is not in dispute: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, and the cases cited at 186. That case also holds that principles applicable to the grant of interlocutory relief, namely that a serious question be shown to attend the substantive matter and that the balance of convenience favour release, apply to such an application. Although it is appropriate for a Court effecting release to order it on conditions usual to bail, and to consider factors which are also considered on bail applications, it is not correct to regard these matters as being the same as bail applications. As has been pointed out in Piroglu v Minister for Immigration and Ethnic Affairs and Anor (1981) 55 FLR 99, 107, bail applications proceed from a different premise, namely that citizens are entitled to their liberty and, whilst charged with an offence, they are presumed to be innocent. In those circumstances, the question might well be posed as one as to why bail ought not be granted. In cases such as the present, the applicant is not a citizen and the deportation order has been made following his conviction and imprisonment on a serious charge involving violence. Indeed, in such a circumstance the "balance of convenience" seems to be a somewhat inappropriate phrase, although this is usually explained as a catch all phrase to take account of what are considered to be relevant factors. 3 The applicant was born in Western Samoa and is 33 years of age. He immigrated to New Zealand in 1987 and arrived in Australia on 31 August 1995. He is married with five children and has family in Brisbane, all of whom are Australian citizens. 4 Prior to his arrival in Australia he had a series of convictions in New Zealand for offences mostly associated with alcohol and driving. There were eleven charges in all in the period from November 1991 to May 1993. Following his arrival, and in April and May 1996, he was convicted on two charges of assault, the firstmentioned occasioning bodily harm. He was again convicted on 3 October 1997 of a charge of assault occasioning grievous bodily harm commissioned on 27 October 1996 and was sentenced to imprisonment for three years, with a recommendation of parole after fourteen months. He was then serving a term of imprisonment for non-compliance with penalty orders made under the previous assault conviction. He was in custody from September 1997. 5 The reports of correctional officers and psychologists, prepared for the purposes of parole, linked the later offences involving violence to alcohol abuse. The circumstances surrounding the last mentioned conviction involved not only violence at a higher degree, but an attack which was unprovoked and resulted in permanent injury. In mid-1998, the applicant undertook a program to assist his withdrawal from alcohol, but he had not done so before that time. He did not attend meetings of other groups such as Alcoholics Anonymous. 6 On 1 October 1998, he was informed that he would be given home detention from 12 October and parole from 3 December 1998. Parole conditions included his undertaking counselling with respect to alcohol and participation in programs chosen for him. On 12 October 1998, he was placed under immigration detention. 7 The reasons given for the decision not to release refer to a general policy direction on Australia's Criminal Deportation Policy signed by the Minister on 21 December 1998, under s 499 of the Act. That policy is said to provide direction to persons "having functions or powers" in relation to deportation of non-citizens under s 200. Detention following deportation would seem to me to be included in that. The reference then in paragraph 33 of the General Direction would seem to me to apply, despite a submission by the applicant that paragraph 33 was confined to the making of a decision to deport and no more. It is in these terms: "It is the Government's view that whenever possible, a deportee's departure from Australia should be arranged to coincide with the deportee's release from prison. A deportee may continue be (sic) held in custody pursuant to the Migration Act pending finalisation of appropriate deportation arrangements and cannot expect to enjoy any period at liberty within the Australian community between the expiration of their (sic) penal servitude and deportation from Australia. Decision makers should have due regard to the Government's view in this respect." 8 Paragraph 32 of the General Direction was referred to by the applicant; I take it by way of a submission that the decision should have taken it into account. It is in these terms: "It is the Government's view that deportation for criminal offences should normally only occur after the custodial portion of the person's sentence has been completed. Decision makers should have due regard to the Government's view in this respect. It is for the appropriate State authorities, or the Governor-General in the case of Commonwealth prisoners, to decide the conditions under which a prisoner is to serve a sentence, the extent of remission of any part of a sentence, or the release of a potential deportee on licence, or on parole, for the purpose of deportation". 9 The problem lies in the phrase "for the purpose of deportation". In the way it is expressed, it would seem to suggest that the authorities concerned usually with release of prisoners were to do so also for the purpose of deportation, but this is nonsensical. 10 In any event, it is not disputed that there is here a serious question to be tried. The applicant points to the intention of the directive to have the policy applied for all purposes and in all cases, and that in this case, other relevant considerations were not taken into account. There may be some difficulty with the latter submission, at least on the basis it was put to me, for it seemed to require the decision maker to apply the views of the psychologist and other officers to whom I have referred. 11 It was submitted however, for the Minister, that the slight prospect of success in the substantive application weighs against release. There were not, however, reasons given for the first mentioned decision. On the view I have otherwise taken of the matter, it is not however necessary for me to consider these questions. 12 It was said in Msilinga (182-3) that an applicant for such relief need not show "exceptional circumstances". Burchett J considered that the balance of convenience ought to take account of migration matters. I confess to some difficulty with the notion that, in the context of a deportation order, the fact of a challenge to it could remove considerations which acknowledge that detention is a necessary incident of the deportation process, if Msilinga is to be regarded as saying that. In any event, it is acknowledged by the parties that the level of risk posed by the applicant's release into the community and the prospect of his absconding are significant questions. It seems to me that the first mentioned is determinative. 13 It was submitted for the applicant that the conditions set for parole would apply, and that he would be required to undertake steps to ensure he remained abstinent and that he would be supervised. It was also submitted that the parole board ought to be seen to have reached a considered decision on the basis of reports from experts. The submissions by Ms Holmes, for the Minister, put the matter in better perspective. The Parole Board's approach acknowledges the fact of future release into the community and seeks to manage the risk of re-offence, amongst other things. 14 Here, the level of risk was assessed as low, but this appears to have been based upon views as to the applicant's potential to abstain from alcohol. The reports do not however allay my concerns were the applicant to be in a position where alcohol was freely available. They do not explain why his undertaking a program in the few months before consideration for parole is to be regarded as of significance, nor how his withdrawal from alcohol can be assessed in a prison regime. Moreover, they do not appear to have taken into account the length of his history of alcohol related offences. Even with the undoubted support of his family, I am unable to conclude that he poses no substantial risk of further violence were he to be released. 15 The application will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.