Ioan Dorel Halmi v Minister for Immigration & Multicultural Affairs [1998] FCA 50 (29 January 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Deportation - Non-citizen convicted of criminal offence - Appeal to Administrative Appeals Tribunal pending - Transfer notice under s 254(2) of Migration Act 1958 served on deportee while in custody for criminal offence - Decision by Minister's delegate to hold deportee in detention until AAT appeal - Whether there is power to detain person on whom s 254(2) notice served - Whether decision to detain vitiated by decision maker taking into account the views of a superior officer in evidence to a Parliamentary Committee.

Migration Act, ss 200, 201, 253 and 254

IOAN DOREL HALMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG30 OF 1998

JUDGE: WILCOX J

PLACE: SYDNEY

DATE: 29 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG30 of 1998

BETWEEN:	IOAN DOREL HALMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	29 JANUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decisions taken on 7 January 1998 and 13 January 1998 to detain the applicant, Ioan Dorel Halmi, at Villawood Detention Centre be set aside;

2. The said applicant be released from detention forthwith; and

3. The respondent, the Minister for Immigration and Multicultural Affairs, pay the costs of the applicant of this proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG30 of 1998

BETWEEN:	IOAN DOREL HALMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	29 JANUARY 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for review of a decision by an officer of the Department of Immigration and Multicultural Affairs that the applicant, Ioan Dorel Halmi, be detained in the Immigration Detention Centre at Villawood pending his deportation to Romania.

The facts and legislation

Mr Halmi is a Romanian citizen. He arrived in Australia at the age of 28 years on 15 July 1988 pursuant to what was referred to in a Departmental minute as "the Eastern European Refugee program". At that time, of course, Romania was under totalitarian rule.

According to information later accepted by Judge Barbour in the District Court of New South Wales, Mr Halmi commenced to use heroin in about October 1988, apparently as a counter to depression arising out of the death of his father. It seems that, in order to support his addiction, he became involved in the supply of the drug. As a result, he was convicted on a charge of supplying a prohibited drug. On 28 March 1990 Judge Barbour sentenced Mr Halmi to 18 months imprisonment. Taking into account time spent in custody before sentence, his Honour ordered Mr Halmi's release on parole on 21 November 1990.

In 1992 a delegate of the Minister for Immigration and Ethnic Affairs considered the possibility of deportation of Mr Halmi pursuant to s 201 of the Migration Act 1958 . That section relevantly provides:

"Where:

(a) a person who is a non-citizen has either before or after commencement of this section been convicted in Australia of an offence;

(b) when the offence was committed the person was a non citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; or

(ii) ...

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person."

Section 200 says: "The Minister may order the deportation of a non-citizen to whom this Division applies".

In the event, in 1992, the delegate decided against deporting Mr Halmi; but he was warned that deportation might be the result of any further offence.

Unfortunately, Mr Halmi did offend again. Once again, the offence was the supply of heroin. Apparently, he did this in order to support his habit. However, by the time he came up for sentence before Judge Johnson on 22 April 1996, according to information accepted by his Honour, Mr Halmi had overcome his addiction. The Judge was impressed by a report prepared by a drug counsellor within the Department of Corrective Services, Doug Morris, and imposed the relatively lenient sentence of 2 years and 3 months. He ordered Mr Halmi's release on parole on 18 January 1998.

On 17 September 1997, in anticipation of Mr Halmi's release from prison, a delegate of the Minister made a deportation order against Mr Halmi. Mr Halmi was notified of the order on 29 September. Through his solicitors, he made application to the Administrative Appeals Tribunal for review of the decision to make the deportation order. On 27 October Deputy President McMahon made an order staying the operation of the deportation order pending the Tribunal's ultimate decision in the matter or further order of the Tribunal.

The stay order did not affect the fact that an order for Mr Halmi's deportation remained in force within the meaning of ss 253 and 254 of the Migration Act. Those sections provide as follows:

"253(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.

(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).

(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.

(4) If a person detained under this section (in this subsection called the `detained person') claims, within 48 hours after the detention and while the detained person is in detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall:

(a) if that last-mentioned person is an officer - ask the detained person; or

(b) in any other case - cause an officer to ask the detained person;

to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period.

(5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released.

(6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly.

(7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly.

(8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:

(a) pending deportation, until he or she is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or

(c) on board the vessel until its departure from its last port or place of call in Australia.

(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.

(10) An officer may, without warrant, detain a person who:

(a) has been released from detention under subsection (9) subject to conditions; and

(b) has breached any of those conditions.

(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person."

254(1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.

(2) The Secretary may give the person written notice:

(a) if the person is a deportee:

(I) stating that a deportation order has been made; and

(ii) setting out particulars of the deportation order; and

(b) if the person is a removee - stating that the person is to be removed; and

(c) in any case - stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the `custody transfer time'), the person will be kept in immigration detention.

(3) Where a deportee is given notice under subsection (2), this Act (other than subsections 253(1) and (3)) applies in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time."

Heidi Speed of the Criminal Deportation Section of the Department prepared a minute dated 16 December 1997 regarding the possible detention of Mr Halmi after his release from gaol. After setting out something of Mr Halmi's history she said:

"Question of release:

Mr Halmi has a wife and son in Australia. On release he intends to reside with them at the family home in Mount Pritchard. He has a confirmed offer of full time employment with Rubber Recycling Pty. Ltd. on his release.

Mr Halmi's solicitor has made the following submissions on his behalf which address the question of continued custody:

. detention would have the effect of causing Mr Halmi to lose his full time occupation in which he is currently engaged and which is to continue after his release from prison. This would further have detrimental consequences for his dependant wife and child.

. we note that his wife and child are Australian citizens and reside in the matrimonial home at Mount Pritchard. We further confirm that his employment with Rubber Recycling Pty Ltd. is to continue after his release from prison.

. if he were to be detained at Villawood it would place on him directly and his family indirectly a financial burden of paying for maintenance costs when he has perfectly proper and adequate accommodation to go to.

Recommendation

A relevant consideration to the question of custody is whether Mr Halmi can be relied upon to make himself available for deportation should the A.A.T. maintain the decision to deport.

It is submitted that Mr Halmi's previous history in relation to prior warnings in regard to his liability for deportation and his ties to the community can be used as a measure for this question.

Mr Halmi has previously been warned regarding his liability for deporation from Australia in 1992. He ignored this warning and has committed further, serious, offences.

Mr Halmi has strong family ties to the community with an Australian citizen wife and child. On release he intends to reside with his wife and son.

Mr Halmi has maintained, through his interview with the departmental case officer, that he is unable to live in Romania as the local authorities would not let him have a normal life.

Mr Halmi's solicitor has requested that on his release from criminal custody, Mr Halmi be allowed conditional liberty on condition that he continue to work for Rubber Recycling Pty. Ltd. and resides at that matrimonial home at Mount Pritchard.

On balance given his previous warning and reluctance to return to Romania, it is considered that Mr Halmi would not make himself available for deportation.

Migration Series Instruction 168.7.1 states that very good reasons should exist warranting release of a deportee into the community.

It is submitted that there are no special or mitigating circumstances presented for Mr Halmi's release from criminal custody on 18 January 1998.

Mark Sullivan, Deputy Secretary, Department of Immigration and Multicultural Affairs, in his address to the Joint Standing Committee on Immigration on Friday 17 October 1997, stated:

`... a delay near to release often means that if the deportee pursues their rights to review through the A.A.T. and/or the courts, their term of imprisonment expires and then consideration has to be given to whether or not to maintain immigration detention or not. A fair amount has been spoken about whether during such consideration a person should be released. Prima facie we say that, having made a decision that a person needs to be excluded from the Australian community on the basis of the seriousness of a crime and the chance of reoffence, it does not seem to logically follow that the person should be considered safe to release into that same community while they pursue avenues of appeal against the deportation.'

It is therefore submitted that Mr Halmi should not be released from criminal detention, but that he should be detained pursuant to Section 254 of the Migration Act 1958 pending the outcome of his appeal to the AAT."

This recommendation went to Philip Dale, executive officer of the Criminal Deportation Section. On 7 January 1998 he adopted it. He prepared a memorandum as to his reasons that reads as follows:

"I have read Ms Speed's submission dated 16 December 1997. The following should also be taken into account.

Since Teoh's case, it is necessary to address the UN Convention on the Rights of the Child when exercising discretionary decision making powers. Article 3.1 of the Convention states:

`In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

Even taking into account the hardship that Mr Halmi's immigration detention may have on his son, I agree with the recommendation to detain Mr Halmi. The issues outlined in Ms Speed's submission outweigh the hardship that his son may face.

Subsequent to the preparation of this submission the section became aware of further comments made by the Deputy Secretary before the Joint Standing Committee (JSC) on Migration on 17 October 1997. These comments appear on page M265 (copy on file) of the Hansard of these proceedings and are in response to questions from the chair of the committee, Christine Gallus MHR, regarding the 273 day national delay in the AAT finalising a criminal deportation appeal. Mr Sullivan says:

`That is the issue that has now caught us, the fact that if you hold it to that time you (sic) and they appeal to the AAT, you spill over into the AAT time frame. Our reaction when that started occurring was to release most prisoners. Our stance on release now is a harder one, and that is, having made a criminal deportation decision, a person should not be released.'

Prior to Mr Sullivan's comments before the JSC (as appear in Ms Speed's submission and above) I would have been inclined to recommend Mr Halmi's release into the community to await the outcome of the AAT appeal. I have in the past six months or so released a number of deportees into the community where the case officer has recommended detention. However in light of Mr Sullivan's comments I agree with the recommendation.

I do not see Mr Sullivan's comments preventing a decision maker from releasing a deportee into the community though obviously these comments impose a much stricter approach on the decision maker than previously adopted in this office. Mr Halmi's ties to the community are strong and if it were not for his previous warning I would possibly be inclined to recommend release into the community. I have contacted the Litigation Section in CO and they have advised that a telephone conference was held on 2 December 1997 and as yet no hearing date has been set. If Mr Halmi is detained under the Migration Act upon the completion of his criminal detention the Litigation Section will be advised of such so the AAT can give all possible expedition to the finalisation of the appeal."

On 12 January Ms Speed prepared a second minute dealing with Mr Halmi's transfer to the Villawood Detention Centre. Although this is a low security institution, Ms Speed thought it an appropriate place in which to detain Mr Halmi. She explained:

"There is no evidence that Mr Halmi has attempted to escape from custody. He has been involved in works release program within the prison system since 19 March 1997. He has been employed by the same company for this period and has been offered permanent employment on his release by this company. Mr Halmi has also been involved in weekend release from Silverwater Correctional Centre.

Mr Halmi has a history of gambling and illegal drug abuse up until his current conviction. He has been involved in drug and alcohol counselling since his incarceration. There is no evidence that Mr Halmi has used illegal drugs since his incarceration.

Mr Halmi has not received any medical or psychiatric treatment during his current period of incarceration.

He has stated that he if he is to be held in immigration detention he would prefer to be held at the Immigration Detention Centre.

Mr Halmi has a stable family environment with an Australian citizen wife and son. He has maintained contact with his family through visits on weekend release and he has helped support them financially through maintaining employment in the works release scheme.

I recommend that Mr Halmi be transferred to the IDC on the date of his release from state custody on 18 January 1998. This is due to the following factors.

. it would appear that Mr Halmi no longer uses illegal substances.

. Mr Halmi has been involved in works and weekend release within the prison system for a number of months; and

. Mr Halmi has a stable family relationship."

Mr Dale accepted this recommendation and it was further endorsed by Mary Jane Jones, Acting Regional Manager of the Bankstown office of the Department.

On 16 January a delegate of the Minister issued a notice under s 254(2) of the Immigration Act in the following terms:

"You are hereby given notice, pursuant to section 254 of the Migration Act 1958 ("the Act"), that:

. a deportation order has been made in respect of you pursuant to section 200 of the Act; a copy of the deportation order, setting out particulars, is attached; and

. from the time you would otherwise be entitled to be released from the custody of (state name of correctional authority), you will be kept in immigration detention.

Release from custody, for the purposes of this Notice, includes release to participate in pre-release schemes or probation. This Notice does not affect your participating in any leave of absence scheme while in the custody of the Department of Corrective Services, subject to the policies and practices of that authority."

The notice was served the same day.

Also on 16 January this proceeding was instituted by the filing of an application for review of the decision to detain Mr Halmi pending determination of his appeal to the Administrative Appeals Tribunal. That application is before me today. In the meantime, on 18 January, Mr Halmi was released from prison but immediately transferred to the Villawood Detention Centre where he is now being held.

The power to detain

In considering the course taken by the Department, an immediate problem is to identify the source of its power to detain Mr Halmi. Mr Halmi is a person who falls within the words of s 253(1) of the Act. If that subsection had been left to apply to the case, it would have empowered any officer of the Department to detain Mr Halmi in immigration detention or in detention as a deportee: see s 253(2). As there is no issue as to Mr Halmi's identity, ss 253(4) - (8) would not have been material. However, s 253(1) must be read with s 254. That section enacts special rules in relation to persons who are already in custody. In such a case, a notice may be given under s 254(2). As I have recounted, Mr Halmi was given such a notice. It follows the situation is one to which s 254(3) applies; Mr Halmi was a deportee who had been given notice under subs (2) of the section. The consequence, according to s 254(3), is that the Act other than subss (1) and (3) of s 253 apply in relation to him as if he had been detained under s 253(1) at the time of transfer.

Section 254(3)'s exclusion of s 253(3) is understandable. Section 253(3) is a notice provision and s 254(2) provides for a special form of notice in custody transfer cases. But the exclusion of s 253(1) is startling. That subsection appears to be the only source of power to detain a deportee. Although s 254 deals specifically with deportees who are already in custody, it confers no power to detain them in immigration detention after they are released from the custody of another authority. Subsection (1) only specifies the people to whom the section is to apply. Subsection (2) only authorises the giving of a notice.

Section 254(3) may have been unnecessary; in its absence it would not have been difficult to discern a legislative intention that s 253 applies to persons covered by s 254. However, the subsection has been enacted and it clearly states that s 253(1) is not to apply to a person who has been given a notice under s 254(2).

I have no doubt those concerned with the drafting of s 254 intended that people to whom the section applied could be lawfully detained. However, in a matter involving personal liberty, assumption about subjective intention is not enough. No legal principle is more precious to a free society than that which says a person may be deprived of liberty only pursuant to express and clear statutory authority.

In view of the general importance of this point, I thought it desirable to adjourn the hearing of the case for sufficient time to allow Mr Peek, solicitor for the Minister, the opportunity to give the point further consideration and discuss it with senior departmental officers. Despite that opportunity, Mr Peek was unable to identify any source of detention power except s 253(1). His argument simply is that s 254 would be nonsensical unless there was an ability to detain persons to whom it applies; therefore, despite the words of s 254(3) itself, I should interpret that subsection as not excluding the application of s 253(1).

I understand Mr Peek's point; no doubt the problem arises out of a drafting error. However, in a matter involving personal liberty, I do not think it is legitimate for me to take the course Mr Peek suggests. The decision to detain is without statutory warrant and is unlawful. On this ground alone, it must be set aside.

Extraneous consideration

There is a second reason for setting aside the decision. It is apparent from Mr Dale's memorandum that his decision to approve Ms Speed's recommendation regarding detention was critically influenced by Mr Sullivan's evidence to the Parliamentary Joint Standing Committee. This was not properly a matter for his consideration.

The Act does not prescribe criteria for determining whether or not a person should be detained pending deportation; the relevant criteria have to be discerned from consideration of the scope and purpose of the Act. Those factors plainly make relevant the question whether the person is likely to remain available for deportation if and when the deportation order comes to be enforced. Material to those matters is the existence or otherwise of family or employment ties. As Mr Dale himself observed, "Mr Halmi's ties to the community are strong". So this was a factor in his favour. Mr Dale said that, but for the previous warning and despite Mr Sullivan's comments, Mr Halmi's community ties would possibly have inclined him to recommend his release into the community. There will often, perhaps usually, have been a previous warning. And it is difficult to see the connection between non-observance of a previous warning in respect of the commission of an offence and non-availability for deportation. To make such a connection is to obliterate all that has happened in the meantime, including in this case Mr Halmi's apparent defeat of his drug habit.

Mr Dale referred to the United Nations Convention on the Rights of the Child. He implied he had taken into account the hardship Mr Halmi's immigration detention might have on his son, but he did not explain how he had done this. Mr Dale apparently did not even know the son's age; this information was not in the file. In fact the son will turn four next week. Neither did Mr Dale say anything about the effect on the family finances, and therefore on the son, of loss of Mr Halmi's earnings. It is difficult not to agree with Mr Ramage QC, counsel for Mr Halmi, that Mr Dale gave no more than lip service to consideration of the effect of the detention on the family.

I need not explore the consequences of these observations. It is clear Mr Dale allowed his own judgment to be overborne by what he saw as the departmental position expounded by Mr Sullivan to the Parliamentary committee. Mr Dale said that, prior to Mr Sullivant's comments, "I would have been inclined to recommend Mr Halmi's release into the community to await the outcome of the AAT appeal" but "in light of Mr Sullivan's comments I agree with (Ms Speed's) recommendation". Although he appreciated Mr Sullivan's comments did not prevent him releasing a deportee into the community, he thought "they imposed a much stricter approach on the decision maker". In truth, they imposed nothing. Rules governing a statutory decision maker are capable of being imposed only by law; that is, by the statute or valid regulations. For Mr Dale to allow himself to be influenced by Mr Sullivan's comments was a fundamental derogation of his duty to make his own independent decision, guided only by the relevant statutory considerations and the facts of the particular case. On this ground, also, the detention decision is invalid.

The orders of the Court will be that:

(1) The decisions taken on 7 January 1998 and 13 January 1998 to detain the applicant, Ioan Dorel Halmi, at Villawood Detention Centre be set aside;

(2) The said applicant be released from detention forthwith; and

(3) The respondent, the Minister for Immigration and Multicultural Affairs, pay the costs of the applicant of this proceeding.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated: 29 January 1998

Counsel for the Applicant:	M Ramage QC
Solicitor for the Applicant:	Andrews Solicitors
Counsel for the Respondent:	G Peek
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 January 1998