Sir Thomas Graham Fry v Minister for Immigration & Multicultural Affairs [1997] FCA 112 (12 February 1997)

C A T C H W O R D S

MIGRATION - Application for review of alleged decisions to detain and deport applicant - Objection to competency of application - Whether any relevant decisions made - Whether it would be open to a departmental officer reasonably to suspect the applicant is an "unlawful non-citizen" and so detain him.

Migration Act 1958, ss 13, 14 and 189.

No. NG.973 OF 1996

SIR THOMAS GRAHAM FRY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 12 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG.973 OF 1996

NEW SOUTH WALES DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: SIR THOMAS GRAHAM FRY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 12 FEBRUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG.973 OF 1996

NEW SOUTH WALES DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: SIR THOMAS GRAHAM FRY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: WILCOX J

PLACE: SYDNEY

DATE: 12 FEBRUARY 1997

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: On 13 December 1996 the applicant in this matter, Sir Thomas Graham Fry, completed a sentence of imprisonment for being knowingly involved in the manufacture of a prohibited drug. He was released from custody in respect of that offence but immediately placed in immigration detention. On that same day, an application was filed in this Court on his behalf. It was described as an application to review decisions of the respondent, the Minister for Immigration and Multicultural Affairs, that Mr Fry - the word "Sir" is a given name, not a title - be held in detention and deported.

The respondent filed an objection to competency and a notice of motion for orders that the application for review be dismissed and the applicant pay the respondent's costs. This notice of motion came before me this morning.

It appears the applicant was born in New Zealand on 8 February 1952. His mother and father were Australian citizens. He said he first arrived in Australia in 1979 or 1980. In 1981 he returned to New Zealand to visit his son, stealing a yacht for that purpose. He was extradited to Australia and sentenced to three years imprisonment for stealing the yacht. Whilst in prison he married an Australian citizen. In March 1983 a deportation order was made against him. In April 1983 he was released from prison. He contacted the Department of Immigration seeking to resist deportation. He applied for resident status, relying on his marriage, and registration of his birth as an Australian citizen, relying on his parents' nationality.

In November 1983 the deportation order was revoked. Mr Fry remained in Australia. Over the ensuing 15 months, there was contact between him and the Department of Immigration in connection with his application for registration of his birth as an Australian citizen. Apparently, the Department needed to be satisfied that his birth had been registered with an Australian government agency, such as a Consulate, within the prescribed period. Mr Fry found difficulty in establishing this fact.

Contact between Mr Fry and the Department ceased early in 1985. Although the departmental file is in evidence, it is not clear why this occurred. It may be, as is claimed on behalf of Mr Fry, that the cessation of contact was the fault of departmental officers rather than Mr Fry. However that may be, it seems nothing was done in relation to his applications.

In December 1992 and April 1993 Mr Fry was convicted of drug offences. In August 1993 he was notified by the Department of Immigration of his liability to deportation. He responded with an assertion that he was an Australian citizen. There was further correspondence in which Mr Fry alleged he lodged an application for citizenship in 1983. The Department said there was no record of his birth registration. Once again contact lapsed.

In March 1994 Mr Fry was convicted of a further drug offence: knowingly taking part in the manufacture of a prohibited drug. He was sentenced to four years' imprisonment. That sentence expired on 13 December 1996. It seems the Department became concerned to regularise his immigration status while he was in prison. Mr Fry was granted a bridging visa on 14 October 1994, but this visa was only for the period of his imprisonment on the drug offence. During that time, Mr Fry asserted he was granted resident status in 1983. However, he apparently did not pursue the assertion. Certainly, the Department never conceded the point.

The next relevant event was Mr Fry's release from prison on 13 December 1996 and his immediate placement in immigration detention. Some time between that date and today he was released from immigration detention, pursuant to an arrangement made between the parties. In order to regularise that release, a temporary visa was granted to him; but it expired last Friday, 7 February. Accordingly, it is stated by Ms Watson, solicitor for the respondent, that Mr Fry is now unlawfully at large and liable to be re-detained.

As I have indicated, the first decision in relation to which review is sought is an alleged decision that the applicant be held in detention. Ms Watson says there is no extant decision to detain Mr Fry. Moreover, Mr Fry is not in detention. Even if he were, she says, the detention would be the product, not of a statutory decision, but the operation of the Migration Act 1968 .

Ms Watson is undoubtedly correct in saying there is no current detention or detention decision. On the other hand, Mr Fry is presently threatened with re-detention. If it would be unlawful to re- detain him, it seems sensible for the Court to look at the situation and take whatever course is necessary to prevent the unlawful act.

The second decision in respect of which review is sought is a decision to deport. Once again, there is no extant decision to that effect. At some future time, the Minister may make a deportation order under s 200 of the Migration Act, although Ms Watson says this is unlikely. It is more likely, she says, that, if any visa application made by Mr Fry is refused, he will be removed from Australia pursuant to s 198 of the Migration Act. I need not go into these possibilities: there is no present threat to deport or remove Mr Fry from Australia.

The question I have to determine is whether there is a valid application before the Court, that is to say, whether any decision has been made that is reviewable by the Court. I do not think any such decision has been made. I also think that, if an officer of the Department made a decision to detain Mr Fry, under existing circumstances that decision would not be legally invalid.

Section 189 of the Migration Act is the starting point. Subsection (1) says: "If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person". The "migration zone" is defined so as to include Australia. There is no doubt that, since 13 December 1996, Mr Fry has been, and now remains, "a person in the migration zone".

There is no basis for arguing that Mr Fry is an Australian citizen. So much is conceded by his solicitor, Mr Oliveri. Mr Fry may be eligible for Australian citizenship by virtue of the nationality of his parents, although I gather other criteria will also need to be considered in determining any application. However, whether or not he is eligible for citizenship, or will ultimately be successful in his application for citizenship, it is clear beyond controversy that he is not at this moment a citizen. Consequently he is what the Act calls a "non-citizen".

The next question is whether he is an "unlawful non-citizen". That term is defined by s 14 as referring to a non-citizen in the migration zone, such as Mr Fry, "who is not a lawful non-citizen". This term is defined by s 13(1) of the Act as follows: "A non-citizen in the migration zone who holds a visa that is in effect is a lawful non- citizen". In other words, being a non-citizen in the migration zone, Mr Fry can bring himself within the category of being a lawful non-citizen, and therefore not being an unlawful non-citizen, only if he holds a visa that is in effect. It is common ground that he does not hold such a visa. It follows he is an unlawful non-citizen. That being so, the Court cannot say it is not open to an officer of the Department to "reasonably suspect" that Mr Fry is an unlawful non- citizen.

The above reasoning assumes that, if the Court were satisfied of facts that meant it was not open to an officer to reach a conclusion or a reasonable suspicion that a person is an unlawful non-citizen, the Court could order the release of the person from detention or, in an appropriate case, that the person not be detained in the future. The validity of this assumption has not been argued, but I make it in Mr Fry's favour. However, on the admitted facts, Mr Fry is indeed an unlawful non-citizen. Consequently there can be no basis for concluding it is not open to a departmental officer to hold a reasonable suspicion to that effect.

All of what I have said is virtually conceded by Mr Oliveri. But he says his client was given to understand in 1983 that he would be allowed to remain in Australia. The basis of this assertion is that the deportation order made in March 1983 was revoked in November 1983 under circumstances where the Department was indicating that Mr Fry might be eligible for Australian citizenship.

There is no doubt about the revocation of the deportation order. But revocation of a deportation order does not by itself confer an entitlement to remain in Australia. Revocation simply means the previous authority to remove the person from Australia no longer exists. As the law stood in 1983, before the present ss 198 and 199 were enacted, if a forced removal was to take place, a fresh deportation order would be necessary. The revocation of the deportation order in November 1983 terminated the entitlement of relevant officers to deport Mr Fry from Australia at that time. It did not change Mr Fry's status or turn him from being a prohibited non- citizen, as I think the term then was, into a person entitled to remain in Australia; and still less, of course, an Australian citizen.

With the exception of the periods during which he was the subject of bridging visas - that is, during most of his period of custody on the latest offence and during a short period that expired last Friday - since November 1983 Mr Fry has been a person unlawfully in Australia. After the expiration of the latest visa that situation recommenced. Unless and until Mr Fry is successful in obtaining another visa, or, of course, in becoming an Australian citizen, he will continue to be an unlawful non-citizen.

I do not think anything said to Mr Fry in 1983 or subsequent years, so far as the evidence reveals, could have caused him to believe he was lawfully entitled to remain in Australia, as distinct from causing him to believe there was no immediate threat of his deportation and there was a possibility he would ultimately achieve Australian citizenship. However, even if he did form a belief as to lawfulness or citizenship, perhaps through some misunderstanding of the position, that does not change the legal position. Mr Oliveri eventually put his case on the basis of estoppel. But there can be no estoppel against the operation of the statute, even if there was a factual basis for finding an estoppel, which I do not think there is.

It seems to me the application to the Court was misconceived. There are no relevant decisions to be reviewed. To the extent that a departmental officer formed the view that s 189 applied, that was a view open to be formed. If that is to be regarded as a decision, there is no basis for holding it was an unlawful decision.

The objection to competency succeeds. The application should be dismissed with costs. I so order.

I certify that this and the preceding eight (8) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated: 12 February 1997

APPEARANCES

Solicitors for the Applicant: Hillman Mura & Consultants

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing: 12 February 1997