Untan v Minister for Immigration & Multicultural & Indigenous Affairs

The reasons for the release order made on 14 February 2003 13 Their Honours noted that Mr Untan pointed to the existence of this Court's interlocutory release jurisdiction affirmed in VFAD of 2002 v MIMIA [2002] FCA 1062; and that Mr Untan contended that, pending the determination of his appeal (then fixed for hearing in May 2003) he ought to be released from immigration detention, because there is a serious question to be tried as to whether (in the light of the decision of the High Court in S 157 of 2002 v Commonwealth [2003] HCA 3 given on 4 February 2003, i.e. after the decision of Branson J) the cancellation of his visa was valid. That is, Mr Untan contended that if the decision in S 157 of 2002 had been given before the primary Judge's decision here, Mr Untan would have been granted judicial review of the cancellation decision. 14 The Full Court said that it was "fairly clear" that Mr Untan's submission "was correct" and that "accordingly he would not now have the status of an unlawful non-citizen" within the meaning of, and with the consequences provided by, the Act. 15 Their Honours noted that the Minister had submitted that the Court had no power to order interim release, and that VFAD "was plainly wrong". However, the Full Court said that "on the basis of the limited argument before [it]", the Full Court could not say that VFAD was "plainly wrong". 16 The Full Court further noted that the Minister did not then point to any "balance of convenience" considerations which would weigh against the grant of interim relief. Before us, however, the Minister did rely on the "balance of convenience" considerations, explained below.

The basis of the Minister's motion 17 Before us the Minister also foreshadowed the filing of a notice of contention in the appeal, in which the Minister will contend that, by virtue of, inter alia, the reasoning and decision of another recent High Court decision in Re MIMIA; Ex parte Lam [2003] HCA 6 (in which Judgment was given on 12 February 2003, that is, after S 157 of 2002), the conclusion of Branson J that procedural fairness had not been provided, should not stand. 18 We merely note this contention at this stage since, before us, the Minister relied exclusively on the balance of convenience considerations appearing in the affidavit of Jennifer Irwin sworn 14 February 2003 as follows: "1. I am a Compliance Officer employed by the Department of Immigration and Multicultural and Indigenous Affairs at Parramatta. 2. On 7 August 2002, myself and another Departmental Compliance Officer interviewed Mr Untan at the Villawood Immigration Detention Centre. This was Mr Untan's first interview following his initial detention on the previous day at a Parole Office. 3. Throughout the interview, Mr Untan appeared tense and upset and he repeatedly said words to the following effect: 'If I didn't have family in Australia, I would return to my own country but because I do have family here I do not want to go back. The Department is trying to separate my family.' 4. The question was put to Mr Untan about whether his family could return with him to Romania. At this point, Mr Untan became more agitated and spoke rapidly saying words to the following effect: 'Why should my family have to go to Romania? They don't understand the country or know the language.' 5. During the course of the interview, when Mr Untan spoke about his detention on the previous day, he 'spat the dummy'. By that I mean that he raised his voice and became angry about the manner in which he was detained and said words to the following effect: 'I was embarrassed in front of my family. I was trying to do the right thing. How dare they do this? I was reporting for parole and I was set up. I have a casual job and that could have led to something more permanent.' 6. As the interview progressed, Mr Untan also said words to the following effect: 'My boys have behavioural problems. I've been released from prison for three months and in that time I've noticed a behavioural change with the boys. I helped arrange jobs for them at 'Flower Power', but now they're just lying at home and my wife is trying to arrange some psychological counselling for them' 7. My colleague explained the options that were available to Mr Untan given his detention and asked him what he wanted to do. Again, Mr Untan repeated that he would be prepared to leave Australia but because he had family here, he didn't want to leave them. I noticed that Mr Untan started to get agitated again and said words to the following effect: 'The time will come for the Minister to pay for his decision to cancel my visa. What goes around comes around. The Minister is ruining people's lives and separating families. This Government is like Nazi Germany where they separated children from their parents. Who will look after my children when I am gone? Maybe my children should turn up at the Minister's door. How would he like that? The Minister only makes these decisions to win votes. He doesn't care. If I could, I would shoot the Minister. He thinks he is protected but he isn't.' 8. When Mr Untan made these threats I did not consider that he could carry them out in practice as he was in Villawood Immigration Detention." 19 Although Mr Untan was not called, and no explanation for his absence was offered, the evidence of Ms Irwin was vigorously challenged in cross-examination. Her version was, however, fully confirmed in a contemporaneous Minute prepared by another Departmental officer who was also present at the interview held on 7 August 2002. 20 We accept Ms Irwin's evidence. She impressed us as a truthful witness.

Conclusions on the Minister's Motion 21 In our opinion, Mr Untan's threat to "shoot" the Minister ought to be taken seriously, for so long as Mr Untan remains out of detention. Given the gravity of the potential consequences, this is, we think, a consideration of the highest importance in weighing where the balance of convenience lies, even if the Minister's representatives did not seek to rely on it at the hearing on 12 February 2003. We bear in mind, in this connection, the speed with which these interlocutory applications have progressed. 22 On the other hand, there is also to be taken into account, in Mr Untan's favour, his wish to have his appeal dealt with at the earliest practicable date. As noted, we have acceded to this convenience consideration by expediting the appeal, and fixing its hearing for 20 February 2003. 23 In these circumstances, in our opinion, the balance of convenience (an issue which the previous Full Court did not need to address) clearly favours the Minister's position. In deciding whether to exercise the discretionary interim power to order a temporary release, the Minister's personal security should, in our view, be regarded as a decisive factor in concluding that no order for release should be made at this stage. It must follow that the interim order made on 14 February 2003 ought to be discharged and we so ordered on 15 February 2003. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Public Interest Advocacy Centre

Counsel for the Respondent: Mr S Rushton SC Mr J Smith

Date of Hearing: 14 and 15 February 2003