Re Nichola Jane Hughes v the Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 11 (29 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: NICHOLA JANE HUGHES
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G5 of 1993
FED No. 11
Number of pages - 25
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Migration - applicant subject to deportation order - application for release from custody pending hearing and determination of review proceedings - tests applicable to granting of interlocutory injunctions in public law cases.

Minister for Immigration Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169

Chan v Commonwealth (unreported, High Court, Stephen J., 12 December 1980)

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148

HEARING

MELBOURNE
29:1:1993

Counsel for the applicant: Mr O.P. Holdenson (instructed

by Erskine H. Rodan).

Counsel for the respondent: Mr K. Bell (instructed by
Australian Government Solicitor).

ORDER

The Court orders that:

1. The application contained in paragraph 2 of the applicant's notice
of motion dated 8 January 1993 be dismissed.
2. The respondent's costs of this application be taxed and paid by
the applicant.
3. The application for review dated 8 January 1993 be listed for
trial on 24 February 1993.
4. Paragraph 4 of the order of Mr Justice Heerey made 14 January 1993
be varied to permit the applicant to file further affidavit
evidence on or before 10 February 1993.
5. Paragraph 5 of the order of Mr Justice Heerey made 14 January 1993
be varied to permit the respondent to file further affidavit
evidence in reply on or before 17 February 1993.
6. Liberty to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

OLNEY J. The applicant is a British national. On 30 November 1989 she was issued with a temporary resident visa which entitled her to travel to Australia. She entered Australia from the United Kingdom on 25 January 1990 when she was granted a temporary entry permit (TEP) valid to 4 December 1990. The TEP expired on 4 December 1990 but on 10 December 1990 it was extended to 25 January 1991. It is unnecessary in these proceedings to chronicle all of the events which occurred since the applicant came to Australia. There is a dispute as to some of the details which will have to be resolved in other proceedings but for now it is sufficient to say that from and after 26 January 1991 she has been an illegal entrant and that since 21 December 1992 she has been in custody. At first she was held pursuant to section 92 of the Migration Act but subsequently, following the making of a deportation order on 7 January 1993, she has been in custody pursuant to section 93.

2. On 8 January 1993 application was made pursuant to the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act 1903 for the review of certain decisions and conduct of delegates of the respondent relating to the deportation order and to the refusal to grant the applicant one or other of several types of entry permits. By notice of motion filed with the application the applicant sought, inter alia, orders that pending the hearing and determination of the application the respondent first be restrained from removing the applicant from Australia and second release the applicant from custody. On 14 January 1993 Heerey J. restrained the respondent pending the hearing and determination of the application from seeking to deport and/or remove the applicant from Australia. On the same occasion Heerey J. directed that the application for release from custody be adjourned to 22 January 1993. The matter was subsequently further adjourned to 27 January 1993, on which latter day I heard evidence and argument and reserved my decision.

3. The only question presently before the Court is whether the applicant should be released from custody pending the hearing and determination of her application for review and if so, upon what terms and conditions.

4. The authority of this Court to order the release of a person held in custody pursuant to section 93 of the Migration Act is now well established. The decision of the Full Court of the Federal Court in Minister for Immigration Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169 is the latest and most authoritative statement of the Court's jurisdiction in this respect. In these proceedings the respondent accepts the decision in Msilanga as binding. So too does the respondent accept that in determining an interlocutory application such as this, it is not necessary for the applicant to demonstrate that "exceptional" circumstances exist in order to succeed.

5. The facts in Msilanga are distinguishable from the facts of this application to the extent that whilst in Msilanga the decisions sought to be reviewed related to the refusal or failure of the respondent to release the applicant from custody, in the present case the decisions and conduct being challenged have to do with the various applications for entry permits and finally the decision to order deportation. The parties to these proceedings have not raised any question as to these factual differences and for my own part I am prepared to accept without argument that the dicta in Msilanga are applicable to the facts of this case.

6. In Msilanga Beaumont J. (with whom Black C.J. agreed) referred to Chan v Commonwealth (unreported, High Court, Stephen J., 12 December 1980) where in an application for an interlocutory injunction in a matter under the Migration Act, it was sought to enjoin the defendants from continuing to detain the plaintiff in custody. Beaumont J. quoted at pp 179-180 a passage from the judgment of Stephen J. of which the following parts are relevant to the present matter:

The use of injunctive relief for such a purpose is unusual, but this in
itself provides no ground for withholding that relief if jurisdiction is
made out and if I am satisfied that as a matter of discretion an
injunction ought to go.
...
The jurisdiction is discretionary. I intend to exercise my discretion
in accordance with the judgment of this Court in the Beecham Group case.
I have accordingly looked at two questions: the establishment of a prima
facie case as that term is there explained and the balance of hardship
or injury.

7. Later in his reasons in Msilanga, in dealing with the general question of whether the primary judge had erred in adopting the "serious question to be tried" test in determining whether interim relief should be granted, Beaumont J. said (at p 182):

On behalf of the Minister, it was submitted that, given the public law
context of these proceedings, it was inappropriate to apply the test
applicable in the case of an application for interim relief in "private"
litigation eg, proceedings brought to preserve private property. I have
difficulty in accepting this submission. In Castlemaine Tooheys Ltd v
South Australia [1986] HCA 58; (1986) 161 CLR 148, in a public law case, Mason C.J. said
(at 153):
"The principles governing the grant or refusal of
interlocutory injunctions in private law litigation have
been applied in public law cases, including constitutional
cases, notwithstanding that different factors arise for
consideration. In order to secure such an injunction the
plaintiff must show:
1. that there is a serious question to be tried or that
the plaintiff has made out a prima facie case, in the
sense that if the evidence remains as it is there is a
probability that at the trial of the action the
plaintiff will be held entitled to relief;
2. that he will suffer irreparable injury for which
damages will not be an adequate compensation unless an
injunction is granted; and
3. that the balance of convenience favours the granting
of an injunction.
Recently two members of this Court have held that the
plaintiff must establish that there is 'a serious question
to be tried', to use the expression favoured in American
Cyanamid v Ethicon Ltd [1975] UKHL 1; (1975) AC 396 ... in preference to
the 'prima facie case' test which was adopted in Beecham
Group Ltd v Bristol Laboratories Pty Ltd ... Australian
Coarse Grains Pool Pty Ltd v Barley Marketing Board (1982)
57 ALJR 425, per Gibbs C.J.; Tableland Peanuts pty Ltd v
Peanut Marketing Board (1984) 58 ALJR 283, per Brennan J.
In my opinion that is the correct test to be applied at
least in the majority of cases ..."
It follows, in my view, that, in this respect also, the primary judge
adopted the correct approach in the present case.

8. After posing the question as to whether the primary judge had erred in not insisting that "exceptional" circumstances be shown in order to justify the grant of interim relief, Beaumont J. expressed the view the primary judge had been correct in applying the conventional "balance of convenience" test, an approach which he said accorded with that taken by Stephen J. in Chan and by Mason C.J. in Castlemaine Tooheys. In the same context Beaumont J. said (at p 183):

Here we have a serious question arising as to the validity of
administrative decisions and proceedings brought, at first instance, to
restrain the execution of those decisions pending a final hearing at
first instance. In such a case, assuming, as was reasonable to assume
in the present case, irreparable damage to the applicant if interim
relief were not granted, it was appropriate that the judge proceed, as
he did, to address the balance of convenience in accordance with the
reasoning of Stephen J. in Chan and of Mason C.J. in Castlemaine Tooheys.
It was not, in my view, necessary that the judge address the different
question whether the applicant for interim relief could show
"exceptional" circumstances. The relevant inquiry was where, in all the
circumstances, the balance of convenience lay.

9. The third judge in Msilanga (Burchett J.) was of the same view. At p 187 he said:

The appellant did not dispute the learned primary judge's finding that
the respondent had established a serious question to be tried within the
meaning of the well-known principle governing the grant of interlocutory
relief. However, it was submitted that, if the court held in favour of
jurisdiction, it should nevertheless reach the conclusion that
interlocutory relief, in the form of an order securing the release of an
applicant from custody, should not be granted in a case of this kind,
because to do so would be to usurp the functions of the Minister.
Alternatively, it was submitted that such relief should be granted only
in exceptional circumstances. Both these propositions seem to me to be
contrary to the decision in Chan v Commonwealth (unreported, High Court
of Australia, Stephen J., 12 December 1980) which Beaumont J. has cited

in

his reasons. In my opinion, the submissions are also contrary to the
whole thrust of the reasoning of Mason AC.J. in Castlemaine Tooheys Ltd v
South Australia [1986] HCA 58; (1986) 161 CLR 148.
Once a sufficient case is shown that the Minister's decision in invalid,
the court has a duty to consider the exercise of the powers entrusted to
it, in accordance with the principles that govern the exercise of those
powers, which are not limited in the ways the submissions suggest.

10. After dealing with the first of the arguments referred to in the passage quoted Burchett J. turned to the alternative argument and said (at p 189):

So far as concerns the alternative argument, that the jurisdiction
should only be exercised in exceptional circumstances, I do not think
that either the power conferred by s 15 of the Judicial Review Act, or
the power conferred by s 23 of the Federal Court of Australia Act in its
operation upon s 16 of the Judicial Review Act, should be construed as
restricted in that way. I accept that immigration matters will
frequently raise issues not raised in many other types of applications.
But what that means is, not that the law is different in respect of
them, but that the factual considerations subsumed under the rubric of
balance of convenience will, in those cases, be enlarged to take account
of the immigration issues. The governing principles remain those to
which Mason AC.J. referred in Castlemaine Tooheys (supra). They were the
principles which the learned primary judge applied in this case.

11. As to this aspect of the case Black C.J. said at (p 170):

I add that whilst I agree that there is no requirement for an applicant
to shown exceptional circumstances, I would emphasise that the
circumstances to be considered in determining where the balance of
convenience lies will include the immigration issues, as Burchett J.
points out in his reasons.

12. The foregoing summary of the relevant dicta in Msilanga sets out the general principles applicable to the determination of the application presently before the Court.

13. I turn now to the facts of the case.

14. I find the following facts to have been proved.

15. The applicant was born in Wales, UK on 3 October 1967. Late in November 1989 she applied for and was granted a one year temporary resident visa. Her departure from UK was delayed by about a month due to the illness of a family member and upon enquiry at Australia House in London she was told that she could apply to extend her entry permit by one month after her arrival in Australia. She arrived in Australia on 25 January 1990 and was granted a class T18 TEP which entitled her to stay in Australia as a working holiday-maker until 4 December 1990. Shortly after her arrival she inquired from the Geelong office of the Department of Immigration Local Government and Ethnic Affairs (the department) as to the extension of her permit and was told to re-apply towards the end of the then current permit. The applicant says that late in November 1990 she contacted the department's office in Melbourne and was given conflicting and confusing information. She says further that on the Friday before her permit was due to expire she went to the department's King Street office and was refused an extension. An officer of the department has said that there is no record of any of these attendances at the department's offices and there is no reason to doubt either this statement or the applicant's recollection of what occurred. The applicant's TEP expired on 4 December 1990 but on 10 December 1990 an extension was granted to 25 January 1991. On 29 January 1991 the department received a nomination from her employer under the employer nomination scheme but this was not an application for an entry permit. According to the department's records applications for an extended eligibility TEP class 823 (economic) (economic EETEP) and a permanent entry permit after entry class 805 (skilled occupation) (skilled occupation PEPAE) were received on 4 March 1991. The applicant says these were received by the department earlier than 4 March 1991 but that is not an issue that requires determination at this stage. On 13 March 1991 a letter was sent to the applicant by the department advising her that she was not eligible to apply for the permits sought and she was advised to leave the country. On 26 June 1991 officers of the department attended at her former place of employment at 501 Burke Road, South Hawthorn, being the address she had given in her applications, but she was not there. At some stage, probably in early 1992, the applicant telephoned the department's office in Perth apparently on more than one occasion but did not leave any address or telephone number. There is no evidence to suggest that she was asked to do so. Her last contact with the Perth office was on 14 May 1992. The department wrote again to the applicant on 27 May 1992 advising that the earlier advice given to her to the effect that she was not eligible to lodge an application for permanent residence was not correct and she was invited to contact the department. No contact was made and the letter, which had been sent to 501 Burke Road and to the applicant's mother's address, was returned unclaimed from both addresses.

16. Apart from the foregoing chronology of facts, other facts have been proved.

17. When departmental officers located the applicant at an address in Toorak on 21 December 1992 she at first denied her identity and gave a false name. Later when shown her passport and photograph she admitted her identity. At the hearing of the application, in giving oral testimony, the applicant endeavoured to explain that by giving a false name it was not her intention to avoid detection by the immigration authorities but I found her evidence on this point unconvincing and I do not accept it. The applicant admits having received the letter of 13 March 1991, in which she was advised to leave Australia. She admits not having kept the department informed of her whereabouts in the period subsequent to that date and she admits to having worked in Australia as an illegal entrant.

18. On 30 July 1992 the applications for an economic EETEP and for a skilled occupation PEPAE were refused and the applicant was so advised by letter addressed to 501 Burke Road. On 21 December 1991 the applicant was located at an address in Toorak where she was arrested and taken into custody where she has since remained. A deportation order was made on 7 January 1993. It is common cause that the only contact the applicant made with the department after the lodging of her applications for economic EETEP and skilled occupation PEPAE in February or March 1991 was the telephone calls she made to the Perth office. I am satisfied that if she could have done so, the applicant would have maintained her deception to avoid the consequences of having been detected by the authorities.

19. The applicant's case for release from custody has 4 bases, namely:

1. The respondent will not be inconvenienced should she be released;
2. The Court can be confident that the applicant will comply with any
conditions which may be attached to her release;
3. Her continued detention is detrimental to her;
4. She will be better able to prepare her case if not detained in
custody.

20. In addition, presumably as part of the alleged detriment the applicant says in her affidavit sworn 21 January 1993:

There are personal matters such as the gathering of evidence pertinent
to my case, organising my finances, the lease of my apartment and the
sale of my possessions and importantly to me, the welfare of my pet cat
for which I must find a good home if I am deported.

21. In support of her case the applicant has given on oath the following undertakings namely that if released from custody she will:

1. Report in person during business hours to the respondent's
department four times per week.
2. Reside at 3/34 Davis Avenue, South Yarra with Teresa Menei, an
Australian citizen who is employed and should she desire or intend
to reside elsewhere she shall provide at least 48 hours notice to
the respondent's officers.
3. Not depart from the Melbourne metropolitan area without the prior
permission of the respondent.
4. Not attend at any airport or other point of international
departure.
5. Prosecute this application with diligence.
6. Not engage in any employment either paid or voluntary.

22. In addition, a close friend of the applicant's one Laurence Anthony Bull has given evidence on oath that he undertakes that:

1. He has provided and will continue to provide a bank guarantee to
the respondent to the sum of $2,500.00.
2. He will ensure that the applicant will comply with her
undertakings given on oath in the Federal Court on 27th January,
1993 by maintaining personal contact with and attendance upon the
applicant upon a daily basis.
3. If he forms the view that the applicant will act in breach of any
or all of her undertakings given on 27th January, 1993 then he
will immediately inform the respondent's officers of this matter.

23. Counsel for the respondent concedes that if the applicant is released from custody and does in fact comply with the terms of her undertaking then the respondent's department would not be inconvenienced except to the limited extent that supervision of her compliance will be necessary. The respondent does however challenge the assertion that the Court can be confident that the applicant will comply with any conditions which may be attached to the release. Both of these matters go to the question of balance of convenience and are subsidiary to the more fundamental questions of whether the applicant is likely to suffer irreparable injury if not released from custody, being the issue to which the third and fourth bases of her claim relate.

24. In support of her assertion that her continued detention would be detrimental to her the applicant has given the following affidavit evidence:

On her arrival at the Immigration Detention Centre (IDC) there were two
other female detainees, one from Hong Kong, the other from China. The
former was deported in the first week of January 1993 the latter on or
about 13 January 1993. A further two females from Somalia who speak no
English arrived in late December, 1992 and early January 1993
respectively. At that time they were the only females in a population
of approximately forty males. On several occasions she has been the
object of sexual harassment by several of the male detainees. In
particular on Monday, 11 January 1993 she was seated in the dining room
when a Dutch detainee seated himself opposite her and began staring at
her breasts. He was encouraged in this behaviour by a group of Chinese
who were also making comments and gestures and whilst she does not speak
Chinese she has no doubt that these comments were replete with sexual
overtones. She found this behaviour most upsetting and felt extremely
uncomfortable and consequently did not attend meals for a period of two
days thereafter. One of the male guards had noticed other behaviour and
on the way to the visitor's room on the evening of 13 January 1993 asked
her if she was having any problems. She told him she considered their
behaviour extremely puerile and humiliating. He advised her not to
retaliate personally as this would only escalate the situation, but that
the best course of action would be to report the incident to the shift
inspector which she did on or about 14 January 1993. Since that time
she has attended the dining room only sporadically and still feels
extremely uncomfortable in this room especially when a large number of
male detainees is present and she is being stared at continually. She
has found her time in detention extremely harrowing and was ten days
overdue in her regular menstrual cycle. This in turn caused loss of
appetite, headaches and general lassitude. She saw the doctor on or
about 5 or 6 January 1993 and he stated that there was basically nothing
he could do medically to bring on her period as this condition was
stress-related. Prior to being detained she was a very light smoker
consuming in the region of five to ten cigarettes per day. She now
finds she is smoking up to thirty cigarettes per day which is having a
detrimental effect on her health. Further, she has lost approximately 5
kilograms and is having great difficulty sleeping at night. She is
taking medication prescribed by the doctor and has a continual bad taste
in her mouth which she says is caused by irregular eating and nervous
tension.

25. The applicant also relies upon the affidavit of a forensic psychologist one Elizabeth Laurian Warren who interviewed her on 26 January 1993 at the request of the applicant's solicitors. In a report annexed to the affidavit Ms Warren sets out the following summary and conclusions:

Ms Hughes presented as an intelligent young lady who has experienced a
rather chaotic upbringing and has an unresolved intense emotional
relationship with her mother. She has lived independently for many
years from her mother but has not achieved the emotional independence
she craves. It was the relationship with her mother which brought her
to Australia.
Ms Hughes has been functioning independently in the vocational sphere
both prior to her arrival in Australia and since her arrival in
Australia. She is ambitious to make a life for herself in Australia in
both a material and domestic sense.
This young lady is currently suffering from an excess of somatic
symptoms as a result of the anxiety she feels directly related to her
enforced detention. She was able to concentrate with encouragement and
assistance during interview but has generally had difficulty remembering
details, a common symptom of anxiety. She has depressive symptoms of
loss of appetite (about 10-12 kilos) and initial insomnia whereby she
has difficulty going to sleep without sleeping tablets. She has been
experiencing almost constant headaches as well as pain from an abscess
in her jaw. Although she has profound and disturbing feelings in
relation to her mother in normal circumstances she is able to control
those. In the circumstances of extreme stress at present those feelings
take on an overwhelming quality and she is tearful and distraught. The
final factor of concern is her feeling of being almost wrongfully
detained given her efforts at resolving the situation via the correct
channels. Such adds to her anxiety and feelings of guilt, resentment
and depression.

26. The respondent has filed a number of affidavits in reply which establish the following facts:

The applicant was examined by a medical practitioner one Mahinda
Samararatna on several occasions. The first examination was on 22
December 1992, as part of the applicant's induction into the IDC. The
doctor found her to be fit and well. On 4 January 1993, he examined her
in relation to an allergic reaction in her eyes. He diagnosed allergic
conjunctivitis and prescribed Antistine Privine eye drops and Teldane
tablets. The condition has since resolved. On 5 January 1993, the
applicant complained to the doctor that her menstrual period was two
weeks overdue. She explained that she had a personal problem with her
ex-boyfriend who was a former partner and in the antique business. He
explained to her that the lateness of the period was probably due to
stress, including the stress of her personal problems. He suggested,
out of an abundance of caution, that she undergo a pregnancy urine test.
The applicant declined the test, stating that she was sure that she was
not pregnant. The applicant also complained of a foul taste in her
mouth, for which he prescribed Ethynol mouth wash. On 22 January 1993,
she complained of a headache and insomnia. The doctor detected no
neurological signs and determined that the headache was a tension
headache. He explained to her that her insomnia was due to anxiety due
to her being in detention. He prescribed Euhypnos, a sleeping tablet to
be taken at 9.00pm each evening and Panadol to be taken twice a day. He
again examined her on 25 January 1993 when she asked to take her
sleeping tablet at 11.00pm. He agreed with this. He also found that
the applicant was suffering from an abscess in her right lower jaw for
which he prescribed Augmentin Forte, an antibiotic to be taken one
tablet, three times a day and panadeine forte to be taken, two tablets,
three times a day. He considered the applicant's general condition to
be that she is a healthy normal person. She suffers from some anxiety
and depression as the result of being held at IDC. That anxiety and
depression has manifested itself in headaches, insomnia and overdue
menstruation. He considers that the applicant's conditions will be
managed by the treatment he has prescribed and no further treatment is
required.

27. The manager of the IDC at Maribyrnong one Nicholas Joseph Neary has sworn an affidavit giving details of the facilities and procedures at the IDC and also concerning some matters referred to in the applicant's affidavit. Neary's evidence is as follows:

The IDC is a minimum security installation at Maribyrnong for the
detention of illegal entrants to Australia. Males and females are
accommodated separately in rooms, each of which accommodates between 1
and 4 people. The exception being families, the members of which are
accommodated together as a unit. The male and female wings (save for a
few exceptions) have completely separate facilities. Detainees have
access at all times to a public telephone and may receive incoming
telephone calls at any time. Visitors are permitted between 9.00 and
11.30am, 2.30 and 5.00pm and 7.00 and 9.00pm on any day. A detainee's
solicitor may visit his or her client at any reasonable time. A doctor
is available to attend to detainees' medical complaints at all times.
Detainees take their meals in a communal meal area. Breakfast is served
at 7.15am on weekdays, 7.30am on weekends. There are two other meals at
12 noon and 5.30pm. Meal attendance is optional. Upon arrival at the
detention centre, new detainees are invited to inform the chef of their
special dietary requirements, which are met. Detainees may have food
brought into the detention centre for them and facilities are made
available for the storage and heating of that food. Recreational
facilities are available to detainees including reading material,
televisions, and the like. The exceptions to male/female segregation
are the meals area, visiting areas, the doctor's waiting room and during
transport to and from court. Detainees are escorted by APS officers to
and from visiting areas, to and from the doctor's waiting room and to
and from court. Meal times are supervised by several APS officers.

28. Neary further says concerning the applicant that during her daily interaction with officers and staff at the IDC she has not complained of harassment by other detainees. The matter of incidents involving the applicant and male detainees has come to the attention of IDC officers and staff as the result of the alertness and observations of IDC officers. Immediately those incidents came to the attention of IDC officers and staff steps were taken to ensure that they were not repeated. The applicant was admitted to the IDC on 21 December 1992 and was accommodated in a female dormitory. Initially she indicated that she had no special dietary requirements, but later indicated that she wished to eat vegetarian dishes only. She normally ate one meal only, which she took in the evening but did occasionally have breakfast and lunch. On 14 January 1993, Neary spoke with Inspector David Young, the Officer-in-Charge of security and of Australian Protective Service Officers at the IDC, in relation to suggestions that the applicant may have received unwanted attention from a male detainee during a meal. Neary and Young agreed that the applicant should be offered the option of taking her meals separately from the other detainees at a different time and that the male detainee should be counselled in relation to the matter, which was done. Neary has since been informed by Young and believes that the male detainee apologised for the incident. The detainee was most contrite and there were no further incidents involving that detainee and the applicant. He is further informed by Young that the applicant declined an offer to take her meals at a different time. The male detainee was removed from Australia under supervised departure on 18 January 1993. The applicant did not, prior to making her affidavit of 21 January 1993, make any mention of the behaviour of a Dutch detainee. The Dutch detainee arrived at the IDC on 7 January 1993 and was released on 12 January 1993. At all times during her stay at the detention centre, the applicant has been free to make and receive telephone calls. In the week commencing 11 January 1993, she asked to stay up late in order to make a telephone call to relatives in the United Kingdom. She was informed that she could either go to bed and be woken at 1.30am or stay up until the early morning in order to make the call. She opted to remain awake. She made a number of overseas telephone calls in the early morning. At all times during her stay at the IDC, the applicant has been free to receive visitors. She has received numerous visitors (numbering about eight) including visits from her solicitor at 7.10pm to 8.00pm on 21 December 1992 and between 10.30 and 11.15am on 8 January 1993 and by her mother on 23 December 1992. The applicant was visited by the British Consul on 15 January 1993. They spoke for about 20-25 minutes. On 22 January 1993, Neary was informed that the applicant had sworn an affidavit in these proceedings concerning incidents of sexual harassment at the IDC. Upon the applicant's return from Court on that day, he repeated to her the offer of alternative arrangements for her meals. The applicant stated that she wished to take her evening meal separately from the other detainees but wished to attend breakfast and lunch together with the other detainees. As a result, she will have no contact with male detainees during the evening meal. The applicant will continue to be escorted to the visiting area, doctor's appointments and to Court, by Australian Protective Service officers. Any complaints about harassment will be dealt with promptly.

29. A number of other officers at the IDC have also sworn affidavits and their evidence can be summarised as follows: On 5 January 1993 whilst Mary-Ann Vella was acting manager of the IDC the chef at the detention centre reported his concern that the applicant was eating only one meal a day. Ms Vella had observed that the applicant appeared to be losing weight. She spoke to the applicant in relation to the matter and the applicant explained that she usually ate only one meal a day and rarely ate breakfast. While escorting the applicant back to her dormitory after the meeting the applicant joked that the one good thing to come out of all this was that she was losing weight.

30. Vincent De Paola, a protective services officer at the IDC has spoken to the applicant in relation to incidents involving her and a male detainee at the centre. On 12 January 1993 while escorting her to the visiting area he noticed that she looked unhappy and asked her what was wrong. She replied that she was fed up with the harassment from a certain group of detainees and that their behaviour was immature and embarrassing. He suggested that she not retaliate, as this would possibly make matters worse. He told her that she should lodge an official complaint to the inspector. On 13 January 1993, he again accompanied her to the visiting area and on the way a Chinese male detainee whistled at her. He told the male detainee to stop and he apologised. In the presence of the visitor, a Mr Bull, he repeated his suggestion to the applicant that she make a formal complaint about her concerns. He also said that he had spoken to some of the male detainees concerning their behaviour towards her. The applicant and Mr Bull thanked him for his concern and the conversation ended. He has not spoken to the applicant about this matter since that time. Later he informed Inspector Young and Sergeant Fitzpatrick of his conversations with the applicant.

31. At approximately 2.00pm on 14 January 1993 Geoffrey Crighton, an acting sergeant of the Australian Protective Service stationed at the IDC, spoke to the applicant in relation to her failure to attend lunch on that day. She said that a Malaysian person was laughing at her at meal times. Crighton then left the area to obtain the Identification Book, so that the applicant could identify the detainee to him. On his return he was accompanied by Sergeant Fitzpatrick, who was commencing his shift. The applicant identified the detainee. Sergeant Crighton suggested that if she wanted, she could eat later and this should solve the problem. The applicant declined the offer stating that she did not want to inflame the situation. Sergeants Crighton and Fitzpatrick suggested to the applicant that they would monitor the meal period and if she had further problems she should let them know. At the conclusion of the evening meal on that day Sergeant Fitzpatrick asked the applicant if she had experienced any problems. She advised him that everything had been all right.

32. On 14 January 1993 Sergeant Crighton reported to Inspector Young that he had had occasion to speak to the applicant concerning her failure to attend lunch on that day. He said that the applicant had said that she did not wish to eat in the dining room because she had been harassed by a male detainee. As a consequence of the report, Young and Neary decided that the applicant should be offered the option of taking her meals separately from the other detainees at a different time and that the male detainee should be counselled. His decision was conveyed to the applicant who was satisfied with the suggestion of counselling but indicated that she wished to continue to take her meals in the communal area together with the other detainees. The male detainee was counselled and there were no further incidents involving him and the applicant. He was most contrite. He was moved from Australia under supervised departure on 18 January 1993. After making her affidavit in these proceedings concerning incidents of sexual harassment during meal times the applicant has again been offered the opportunity to take her meals separately from the other detainees. She has stated that she wishes to take her evening meal separately but wishes to attend breakfast and lunch together with the other detainees. Australian Protective Service staff at the detention centre are directed to report any unusual incident involving detainees. Any incidents of sexual harassment of detainees would be reported to Inspector Young.

33. There is no issue of fact between the parties either as to the facilities made available to detainees at the IDC or as to what has occurred concerning the conduct of some male detainees towards the applicant. It is not said that the objectionable conduct is ongoing nor can it be said that the supervision provided by the staff is anything but sympathetic and thorough. Given her circumstances, it is not surprising that the applicant has suffered some stress but the medical evidence suggests that her problems are being adequately managed. I do not find anything in the report of Ms Warren which contradicts this conclusion. The conclusion I have reached is that so far as her health and well-being are concerned the only detriment which the applicant is suffering by her continued detention is that she is being frustrated in her desire to return to the general community.

34. The applicant has failed to satisfy me that release from detention is necessary to enable her to be better able to prepare her case. When I drew counsel's attention to the fact that according to an order made by Heerey J. on 14 January 1993 any further affidavits on behalf of the applicant were to be filed on or before 25 January 1993 (a date then passed) counsel indicated that the only outstanding evidence yet to be filed was that of Sharon Carter, the applicant's former immigration agent. There appears to be no need for any further detailed input from the applicant whose several affidavits already filed give the impression of thoughtful and detailed preparation.

35. On 14 January 1993 Heerey J. was satisfied that there was a serious question to be tried on the application for review. The present application has proceeded on the basis that that finding is relevant to the question of interlocutory relief by way of release from custody. This being so, consistent with the decision in Msilanga and the dicta of Mason C.J. and Stephen J. referred to therein, the questions which I must address upon this application are first whether the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless relief is granted and second, whether the balance of convenience favours the granting of the relief sought.

36. Whilst it is beyond question that the principles governing the grant or refusal of interlocutory injunctions in private law are applicable in public law cases it is not always the case that the language used in private law to express the relevant tests which must be applied is apt in public law cases such as that presently under consideration. Indeed, the concept of irreparable for which damages will not be an adequate compensation unless an injunction is granted is not one which can be literally applied in his case. Furthermore, there is frequently, indeed almost inevitably, some overlap between the question of whether a party may suffer irreparable injury which cannot be compensated for by damages and the question of where the balance of convenience lies.

37. On the evidence before me I am not persuaded that the applicant will suffer "irreparable injury" unless the relief sought is granted. I take the words "irreparable injury" to include injury to her health (both physical and mental) and injury in the sense of being deprived of the reasonable opportunity to pursue her legal rights. These are the bases upon which her claim for release has been made and in my opinion the applicant has failed to make out her case.

38. The question of balance of convenience does not really arise as a separate issue and I make no finding in that regard other than to comment that an illegal entrant who has obviously embarked upon a course of conduct over a period of nearly 2 years to keep her whereabouts from the immigration authorities and who when apprehended has endeavoured to escape detention by denying her identity and giving a false name clearly has many difficulties to overcome to establish to the Court's satisfaction that she is sufficiently trustworthy to be released from custody even upon the most stringent terms. In the present case I do not regard Mr Bull's undertakings, although given in complete honesty and with the utmost good faith, as an adequate surety. He was aware of the applicant's status as an illegal entrant before her arrest and did nothing at that time to inform the authorities as he now says he would if the applicant should default in relation to any conditions attached to her release. He is clearly too personally involved to be regarded as completely objective. Further, I am surprised that no evidence was provided from the friend at whose premises the applicant says she would reside if released. The Court does not know what is the relationship between the applicant and her friend nor whether she (the friend) is prepared to enter into any obligation to permit the applicant to remain there during the relevant period. As it is, the question of the adequacy of the undertakings offered has not arisen and I make these comments merely to indicate my personal view as to the matters referred to.

39. The relief sought in paragraph 2 of the notice of motion filed 8 January 1993 is refused.