Leslie Edward Milton Towers v Minister for Immigration & Multicultural Affairs [1998] FCA 83 (16 February 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - detention pending application to Administrative Appeals Tribunal for review of deportation order - application for review also made to Federal Court of Australia - interlocutory application for release from custody - whether serious question to be tried - whether balance of convenience favoured the granting of interlocutory relief.

Migration Act 1958 (Cth) ss 200, 201, 253(9)

Msilanga v Hand [1991] FCA 68; (1991) 22 ALD 27 considered

Minister for Immigration, Local Government & Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169 applied

Halmi v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Wilcox J, 29 January 1998) referred to and distinguished

LESLIE EDWARD MILTON TOWERS v. MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

No. WAG 12 of 1998

CARR J

PERTH

16 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 12 of 1998

GENERAL DIVISION

BETWEEN:	LESLIE EDWARD MILTON TOWERS Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE(S):	CARR J
DATE OF ORDER:	16 FEBRUARY 1998
WHERE MADE:	PERTH

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. Until further order, the operation of:

(a) the decision made by the respondent on or about 23 January 1998 to detain the applicant; and

(b) the decision made by the respondent on or about 30 January 1998 not to order the release of the applicant,

be suspended.

2. Such things are to be done as are necessary to effect the applicant's release from immigration detention as soon as reasonably possible.

AND IT IS FURTHER ORDERED (THE APPLICANT CONSENTING THERETO) THAT:

3. During the currency of the suspensions referred to above the applicant shall:

(a) report to the respondent forthwith his current place of residence and, if he changes his residence, report that fact to the respondent before doing so;

(b) abstain from alcohol and not enter upon any premises which are licensed for the sale of alcohol;

(c) not drive a motor vehicle;

(d) report to the Cannington Police Station by 3.00 pm on each Monday, Wednesday and Friday; and

(e) in the event that the Administrative Appeals Tribunal upholds the respondent's decision to deport him, surrender himself to the custody of the respondent by 6.00 pm on the day following such determination, without prejudice to any right to apply for further release.

4. The respondent shall have liberty to apply if the applicant breaks any of the conditions in paragraph 3 above and the parties have liberty to apply generally.

5. Costs of the motion be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 12 of 1998

GENERAL DIVISION

BETWEEN:	LESLIE EDWARD MILTON TOWERS Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	CARR J
DATE:	16 FEBRUARY 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

The Court has before it a motion by the applicant for certain interlocutory orders to be made on an urgent basis. Initially some eight orders, including injunctions, declarations and other orders were sought. But the hearing of the motion was limited to two matters, namely, whether an injunction should issue to restrain the respondent from deporting the applicant and whether there should be an order directing the respondent to release him from detention. Counsel for the respondent gave an undertaking that the respondent would not deport the applicant pending the determination of the applicant's application to the Administrative Appeals Tribunal for review of the respondent's decision, made on 9 January 1998, to deport him. Accordingly, the only interlocutory matter falling for decision at this stage is whether the respondent should be ordered to release the applicant from detention, pending the determination of the Administrative Appeals Tribunal and, depending upon that determination, pending the hearing of the principal application in this matter.

FACTUAL BACKGROUND

The applicant, who is 29 years of age, is a citizen of New Zealand. He first arrived in Australia on 7 June 1987 and, at the time of committing the series of offences first referred to below, had accumulated periods of permanent residence in Australia totalling some 51/2 years. He is not married. On 17 March 1994 the applicant was convicted, in the Supreme Court of the Northern Territory, of manslaughter and three counts of "aggravated dangerous act". He was sentenced to four years imprisonment on the manslaughter count and two years imprisonment on each of the three other counts. The sentencing judge (Mildren J) ordered that all sentences be served concurrently and (after referring to several mitigating circumstances and observing that the applicant was "no danger to the community") ordered that the applicant be released after serving 12 months imprisonment, subject to entering into a recognisance. The offences had all occurred on 24 June 1993. The applicant had been in custody since 30 June 1993. He was released from prison on 29 June 1994. Following the applicant's release from prison, the respondent's department ("the Department") at Darwin gave consideration to the question of deporting him. On 10 August 1994 he was interviewed by an officer of the Department at Darwin. On 3 October 1994 the Department granted an extension of time, requested by the applicant's then solicitor (in Darwin), for making further submissions on his behalf until 14 October 1994. The Department's communication of that decision concluded with the following:

"However please be advised that we shall be referring Mr Towers (sic) case to the delegate for a decision 17/10/94."

On 13 October 1994 the applicant's Darwin solicitor forwarded a seven-page closely-typed letter of submissions seeking a recommendation against the deportation of the applicant. On the materials filed to date, it would appear that there was no response to that submission and that the applicant heard nothing further from the Department for a period of about three years. The applicant by then had moved to Perth. In the meantime, on 24 April 1996, the applicant was involved in a very serious motor vehicle accident on the northern outskirts of Perth, as a result of which he was charged on five counts. On 21 February 1997 the applicant was convicted of the following offences and received the sentences indicated:

. dangerous driving causing grievous bodily harm - sentenced to 15 months imprisonment, sentence suspended for 15 months, disqualified from holding or obtaining a motor driver's licence (MDL) for five years;

. dangerous driving causing bodily harm - sentenced to 12 months imprisonment, sentence suspended for 15 months, disqualified from holding or obtaining an MDL for two years;

. dangerous driving causing bodily harm - sentenced to 12 months imprisonment, sentence suspended for 15 months, disqualified from holding or obtaining an MDL for two years;

. driving under the influence of alcohol - fined $600 and disqualified from holding an MDL for 12 months (concurrent with the abovementioned periods);

. driving without an MDL - fined $50.

The accident which gave rise to the above offences was described in a report by the Western Australian Police in the following terms:

"At about 2300 hrs 24.04.96 deft drove Ford Falcon sedan 6SB 659 south on Wanneroo Road Nowergup. Deft drove onto the incorrect side of the road crossing continuous white line in the process, and collided head on with a north bound vehicle. As a result, Adam Michael DYER who was in the front passenger seat of the north bound vehicle, and John Haoa RIHIA, who was seated in the front passenger seat of defts vehicle, received injuries which amounted to bodily harm. Deft gave BAC [blood alcohol content] of 0.239% calc to 0.220% at the time. Defts MDL had expired on 06.11.89."

[There was a similar description in a report relating to the charge in respect of injuries amounting to grievous bodily harm to a Mr Halsall, the driver of the north bound vehicle.]

The applicant had pleaded guilty to all charges. At the time of the accident the applicant was self-employed as a sub-contractor laying pipes and driving bobcats. As a result of the accident he was seriously injured. I was told from the bar table at the hearing of this motion that the applicant now receives social security benefits. A departmental minute exhibited to an affidavit filed on behalf of the respondent in this matter ("the Minute") indicates that the applicant has a record of 22 other offences committed in New Zealand and Australia. Most of those offences are relatively minor but there are some which might, in the context of the present motion for the applicant to be released from detention, be categorised as significant, for example:

. two convictions for breaching bail in October 1989;

. three convictions for giving a false name and address in 1989;

. a conviction for driving without a motor driver's licence in 1989;

. a conviction for being an unlicensed driver with an excess of alcohol in 1991.

On 24 October 1997, the applicant was again interviewed by an officer in the Criminal Deportations Section of the Department (Mr K D Graffin). As I have mentioned, this was some three years since the last contact which the Department made with the applicant. In early December 1997 Mr Graffin telephoned the applicant seeking to interview him again. On 11 December 1997 the applicant attended the Department's office in Perth with a solicitor, Mr P King. Mr Graffin and another officer of the Department were present. On the advice of his solicitor, the applicant declined to be interviewed. Mr King told Mr Graffin that the applicant declined to be interviewed until he (Mr King) had obtained access to the Department's file on the applicant under the Freedom of Information Act 1982 (Cth) ("the FOI Act 1958 "). Mr Graffin told the applicant that as he declined to be interviewed, he would not be given another opportunity to respond to a number of matters that were relevant to him. Notwithstanding that advice, on the same day (11 December 1997) the Department sent a letter direct to the applicant giving him seven days to provide any further submissions. The Department did not send a copy of that letter to Mr King. Neither the applicant nor his solicitor provided any further submissions on the question whether the applicant should be deported, although Mr King wrote to the Department on 16 December 1997 referring to the Department's apparent change of mind and complaining about the direct contact with his client.

On 22 December 1997, Mr Graffin forwarded the Minute (26 pages) to a Deputy Secretary of the Department through two other departmental officers. The Minute concluded with a recommendation that the respondent's delegate (the Deputy Secretary) sign an order under s 200 of the Migration Act ("the Act") that the applicant be deported from Australia. On 9 January 1998 the Deputy Secretary approved that recommendation and signed a deportation order. The Deputy Secretary endorsed the following note on the last page of the Minute.

"A difficult case made no easier by the delays in considering it. The crimes resulted in the death of a person. That person would not appear to be directly involved in the fracas. Mr Towers seems to drive without thinking of the impact of significant drinking. It appears miraculous that another death did not occur in W.A. I can only occur [sic] with the view that there is a strong chance of re-offence. These factors outweigh any positive factors outlined."

The first recital to the deportation order stated that the applicant was a non-citizen who first arrived in Australia on 7th June "1997". This was obviously a typing error, although, the applicant relies upon this mistake. There is evidence that the Deputy Secretary subsequently amended the recital by substituting "1987" for "1997" and initialled the amendment.

In the meantime, on 23 December 1997 Mr King lodged with the Department a Request for Access to Documents (being the whole of the Department's file relating to the applicant, and in particular documents relating to his possible deportation). The Department did not respond to this request until, on 14 January 1998, it wrote to Mr King stating that it had received his request on 30 December 1997 and that "the 30 day period for processing your request commenced from 14/01/1998".

The deportation order was served on the applicant on 23 January 1998, on which date he was detained. The applicant has been kept in immigration detention since that date. On 28 January 1998 the applicant's solicitor filed an application for review by the Administrative Appeals Tribunal of the respondent's decision to deport the applicant, and served a copy of that application on the Department. On the same date Mr King spoke to Mr Graffin about the applicant being in detention. Mr Graffin (so Mr King deposes) told Mr King that he could make an application to the Department for the applicant's release from detention. Mr King said that the applicant would be prepared, as a condition of such release, to report daily to the Cannington Police Station. Mr Graffin replied that the Department did not usually request such stringent conditions for release and that Mr King should submit to the Department what conditions he felt reasonable. Later on 28 January 1998 Mr King wrote to the Department requesting the applicant's release from detention offering a weekly reporting condition. By letter dated 30 January 1998 the Department responded to that request stating that the applicant would not be released from detention. The letter set out the reasons for that decision.

On 4 February 1998 the applicant filed an application in this Court seeking injunctions, declarations and other orders. These included:

(a) a declaration that the deportation order, made on 9 January 1998, was invalid;

(b) an injunction restraining the respondent from deporting the applicant;

(c) an order directing the respondent to release the applicant forthwith from immigration detention.

From the foregoing it can be seen that the applicant is simultaneously seeking review in the Administrative Appeals Tribunal, on the merits, of the deportation order and by his application to this Court, challenges the legality of the deportation order and his present detention.

THE LEGISLATIVE FRAMEWORK

Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. Section 201 of the Act relevantly provides that s 200 applies to a non-citizen where:

. the person who is a non-citizen has been convicted in Australia of an offence;

. when the offence was committed, the person was a non-citizen who had been in Australia as a permanent resident for a period of less than 10 years or for periods that, when added together, total less than 10 years; and

. the offence was one for which the person was sentenced to imprisonment for a period of not less than one year.

For the purposes of the present motion, it is not in dispute that s 200 of the Act applies to the applicant.

Section 253(1) of the Act provides that where an order for the deportation of a person is in force, an officer (of the Department) may, without warrant, detain that person. Section 253(2) provides that a person so detained may, subject to the section, be kept in immigration detention or in detention as a deportee in accordance with s 253(8). Section 253(8) provides that a deportee may be kept in immigration detention, or such detention as the Minister or the Secretary directs, pending deportation. Section 253(9) provides:

"(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."

Section 500 of the Act provides for applications to be made to the Administrative Appeals Tribunal for review of decisions of the Minister made under s 200 of the Act because of circumstances specified in s 201. Part 4 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") by what might be described as its ambulatory provisions, provides for the procedures and powers on review by the Tribunal of a decision such as the respondent's decision to deport the applicant.

THE APPLICATION

I have had some difficulty in ascertaining the precise legal basis or bases upon which the applicant seeks the relief sought in his application. Order 4 rule 3 of the Federal Court Rules stipulates that an application must specify the relief claimed and, if the relief depends on a provision of an Act, it must specify the Act and the provision. Initially there appeared in handwriting on the application, as filed, references to s 20 of the Federal Court of Australia Act 1977 , and ss 496(1) and 481 of the Migration Act. At the hearing of this motion the applicant's counsel applied to add to those references a reference to s 44 of the AAT Act. That application was not opposed and leave was so granted. On a provisional basis, it would not appear that any of these sections apply to the present matter. Section 20 of the Federal Court Act contains provisions relating to the exercise of the original and appellate jurisdiction of this Court. Section 481 of the Act deals with the powers of this Court on an application for review of a judicially-reviewable decision. Neither a decision to deport a person nor a decision not to exercise the power conferred by s 253(9) of the Act to release a person from detention appear to be judicially-reviewable decisions. Section 44 of the AAT Act provides for appeals from the Administrative Appeals Tribunal to this Court. Mr King, who appeared, without fee, as counsel for the applicant, said at the outset of the hearing of the motion that he normally practised in another area of law and apologised for not being in a position to render "substantial assistance" to me on the relevant law. In those circumstances, I must record, with gratitude, the assistance which Mr P R Macliver, counsel for the respondent, was able to provide concerning the relevant statutory provisions and the authorities. The motion was fought on the basis, so far as the respondent was concerned, that although the application in its present form was probably defective, it could be amended properly to reflect an application being made pursuant to the Administrative Decisions Judicial Review Act (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth). The application specifically incorporates grounds which are said to be stated in an accompanying affidavit. There were two accompanying affidavits. One was sworn by the applicant on 2 February 1998 and the other by Mr King on 3 February 1998. For present purposes, I propose to treat the application as one which claims relief under any of the relevant provisions of the Act, the AAT Act, the ADJR Act and s 39B of the Judiciary Act. I propose also to have regard to the two affidavits filed on behalf of the applicant which I have just described, an answering affidavit filed in Court on behalf of the respondent at the hearing of the motion, and a further such affidavit filed in Court when the motion was re-listed for further hearing, at the applicant's request. I shall scrutinise those affidavits first, for the purposes of ascertaining, on a provisional basis, the grounds advanced by the applicant to challenge the various decisions referred to in the application. Those decisions have been identified by Mr Macliver, I think correctly, as being the decision to deport the applicant, the decision to take the applicant into custody and the subsequent decision, following the request from the applicant's solicitors for release of the applicant, not to release the applicant. The affidavits will also assist in deciding whether the interlocutory order, for the applicant's release, should be made.

JURISDICTION AND POWER OF THIS COURT TO ORDER THE APPLICANT'S RELEASE FROM DETENTION

The respondent accepted that this Court has jurisdiction and power to order the release of the applicant on an interim basis pending the hearing of the application in this Court. That seems clearly to be the law, see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169, a decision of the Full Court of this Court. It was also common ground that the tests to be applied in determining whether or not to grant interlocutory relief of that type were, as the Full Court also held in Msilanga, the "serious question to be tried" and "balance of convenience" tests. That Court also held, explaining earlier authority, that in applying those tests it is not necessary for an applicant for interlocutory relief by way of release from detention, to demonstrate that exceptional circumstances exist. I shall proceed to apply those tests to the present matter.

IS THERE A SERIOUS QUESTION TO BE TRIED?

I think it is appropriate to emphasise that this Court has no role to play in deciding the merits or otherwise of the respective administrative decisions which I have identified above. The Court's role, if and when it finally comes to hear this application, is to decide whether those decisions were made in accordance with the law. The merits or otherwise of the decisions are matters for the Administrative Appeals Tribunal to decide in due course. The Tribunal has indicated that "potentially available dates for the hearing" are 4-6 March 1998 and 6-9 April 1998. Given the respondent's undertaking not to deport the applicant until the Tribunal has heard his application for review on the merits, the likelihood is that if the applicant is successful in that application, the present application would not proceed to a full hearing. If he succeeds in the Tribunal, the applicant will not be deported and will be released from detention. It seems to be common ground that the Tribunal has no jurisdiction or power to order the applicant's release from detention pending its determination.

The first question which I have to decide is whether, on the materials filed to date, there is a serious question to be tried in this Court about whether the deportation order, the decision to take the applicant into custody and the decision not to release him were lawfully-made decisions.

The principal arguments advanced by Mr King on behalf of the applicant on the question whether there was a serious question to be tried, appeared mainly to go to the merits of the deportation order. For example, Mr King submitted that "the main issue" was whether or not the Department should have made a deportation order, particularly one based on a manslaughter charge where the sentencing judge had indicated that the applicant was not a danger to the community. Then he referred to the delay of some three years in the making of the decision to deport the applicant on the basis that he is a danger to the community. In the course of his submissions, Mr King asked rhetorically "If he was such a danger, why the long wait?". In my view, so far as the issue of whether there is a serious question to be tried is concerned, all these matters go to the merits or otherwise of the deportation order. They lie within the exclusive province of the Department and, on review, the Tribunal. There was no submission that the decision to deport was so unreasonable that no reasonable person could have made it. However, the applicant's history between 1994 and the present may well have a bearing on the matter of the balance of convenience or, as it is sometimes perhaps more accurately described, the question of the risk of causing an injustice to one or other party by granting or refusing the interlocutory relief. Mr King relied very heavily on a recent decision of Wilcox J in Halmi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, Application NG 30/98, 29 January 1998) for his submission that the respondent has no power to detain the applicant. In that case, Mr Halmi was in a State prison in New South Wales serving a sentence for supplying heroin when the respondent made a deportation order against him and served that order upon him. He was still in prison when the respondent served a notice upon him under s 254(2) of the Act. That subsection provides that the Secretary of the Department may give a deportee written notice stating that a deportation order has been made, setting out particulars of that order and also stating that from the time when the person would otherwise be entitled to be released from custody, the person will be kept in immigration detention. It is quite clear from s 254(1) that s 254 relevantly applies if a person is a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory otherwise than under the Act. Section 254(3) provides:

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

Wilcox J observed that s 253(1) appears to be the only source of power to detain a deportee. His Honour held that the proper construction of s 254(3) was that s 253(1) was not to apply to a person who has been given a notice under s 254(2). Mr Halmi was such a person and accordingly there was no power to detain him.

Mr King pointed to the covering letter dated 20 January 1998 which was handed to the applicant when he was served with a copy of the deportation order. In particular, Mr King pointed to the following paragraph which read:

"I am obloged (sic) to effect your deportation as soon as possible. If it is not possible to deport you then, you may be transferred to immigration detention under section 253 of the Act while arrangements are made for your deportation. This detention is authorised by section 254 of the Act. It is then likely that you will continue to be detained at a state custodial institution until your deportation from Australia."

The latest affidavit filed on behalf of the respondent explains that this letter was prepared using a precedent from another matter and failed to make the necessary modifications to state that the applicant was being detained under s 253 of the Act.

In my opinion it is quite clear that the decision in Halmi has no application to the present matter. Section 254 relevantly only applies to a deportee who is in custody otherwise than under the Act. Mr Halmi fitted that description but the applicant in this matter was not in such custody at any relevant time. The respondent's authority to detain the applicant is to be found in s 253(1). There is no basis upon which the application of that subsection is to be excluded upon the principles of construction applied in Halmi. The fact that the covering letter, which accompanied service of the deportation order on the applicant, contained the above paragraph cannot possibly, in my view, raise a serious question to be tried than s 254(3) operated in the manner referred to in Halmi. I do not think that there is a serious question to be tried in relation to that matter.

WHETHER THE RESPONDENT FAILED TO TAKE A RELEVANT CONSIDERATION INTO ACCOUNT

Mr King was on potentially firmer ground, in terms of administrative law principles, when he pointed to certain evidence in his own affidavit which he submitted made it appear that the Department completely ignored what the sentencing judge had to say in 1994 about whether the applicant was a danger to the community. It seems to me most fairly to be arguable that the question whether the applicant is likely to be a danger to the Australian community is a relevant consideration which the decision-maker is obliged to take into account when considering each of the three decisions under challenge. I am inclined to think that what the sentencing judge said at the time of imposing sentence is evidence bearing on that relevant consideration rather than forming a relevant consideration in itself. However, that discrete argument may itself raise a serious question to be tried. On the present stage of the evidence, notwithstanding Mr King's submissions and his affidavit evidence concerning his telephone call with the decision-maker, it appears that the question whether the applicant presented a threat to the Australian community was very much taken into account in the process of making the decision. On the present state of the evidence, I do not think that a serious question to be tried has been raised on that issue. I appreciate that the decision-maker has not been cross-examined or the respondent's evidence otherwise tested. It is also true that an unusual delay occurred. This is something to which the Assistant Secretary referred at the end of the Minute. On the other hand, there is Full Court authority that the Minister's power of deportation can be exercised from time to time: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.

THE MEETING ON 11 DECEMBER 1997

Next, Mr King submitted that a serious question to be tried was whether or not there had been an abuse of process or a denial of procedural fairness at and following his attendance with the applicant upon the Department's officers on 11 December 1997. I have already described some of what took place then, but I shall revisit the matter briefly.

On that occasion Mr Graffin (who later prepared the Minute) said that there were a number of matters which he wished to put to the applicant. Mr King suggested that the Department put questions in writing to which the applicant would respond. Mr Graffin declined to take that course and repeated that he had matters which he wished to put to the applicant. He said that if the applicant wished to put submissions "beyond that", that would be in order. However, he was not prepared to take the course suggested by Mr King. There was then a short break in the discussions (while Mr King conferred with the applicant) at the conclusion of which Mr King asked for time in which to obtain access to the Departmental file under the FOI Act before advising his client whether to participate in the proposed interview. Mr Graffin maintained the Department's position as outlined above. Mr King then told Mr Graffin that the applicant would not be interviewed. As I have mentioned earlier in these reasons, on the same date, but after the interview, Mr Graffin, on behalf of the Department, wrote to the applicant informing him that he intended shortly to forward a submission on the question of the applicant's possible departure from Australia and giving the applicant seven days to provide any additional submissions on that matter. When I first reviewed the evidence to date, I doubted whether the facts upon which Mr King relied presented a serious question to be tried of abuse of process or a denial of procedural fairness on the respondent's part at or following the applicant's attendance upon the Department's officers on 11 December 1997. However, this is a rather unusual case, due mainly to the time which expired between the time when the applicant was first told that his deportation was under consideration and the respondent's next contact with him. I think that there is a serious question to be tried about whether, in those circumstances, he was accorded procedural fairness when the first two decisions were about to be made (i.e. to deport him and to take him into immigration detention). The serious question to be tried is whether, given that the applicant had been allowed to be at large in the Australian community for so long, procedural fairness required the respondent to put specifically to the applicant the particular matters which he considered required his immediate deportation and detention. Further, if the respondent were minded not to do this, the question arises whether procedural fairness required that the applicant be given access under the FOI Act to the Department's file so that he could make a sensible response to the respondent's concerns. Given the background of delay, if the matter had suddenly (from the respondent's viewpoint) become urgent, procedural fairness might well have required that the FOI Act request be treated with appropriate expedition. None of the foregoing should be treated as any expression of a final conclusion. It is far too early for that. My conclusion at this stage is that serious questions of procedural fairness are raised for trial in relation to the first two decisions. Similar questions arise in relation to the decision not to release the applicant.

OTHER MATTERS RAISED BY THE APPLICANT

In other submissions (which I do not propose to summarise in detail but which were contained in a letter dated 10 February 1998 from the applicant's solicitors to the Court and which were expanded upon when the motion was re-listed for further hearing), various complaints were made about the contents of the Minute. First, there was a complaint that the period of permanent residence was incorrectly stated in the Minute. The applicant's contention is misconceived. The relevant calculation under s 201 is up to the time when the offence was committed. The respondent made the correct calculation. There were complaints about the selective editing and emphasis of passages from the transcript of the sentencing judge in 1994, the submissions made by the applicant's Darwin solicitor and the sentencing remarks of the magistrate in the Joondalup Court of Petty Sessions in 1997. The problem with this submission is that the full text of each of the relevant documents was annexed to the Minute and there is no evidence that the decision-maker did not have regard to those annexures. In terms of administrative law, I do not think that, on the present state of the evidence, there is a serious question to be tried on these further complaints raised by the applicant. In the context of the decision to deport, there remains one further complaint (taking into account an irrelevant consideration) which I will deal with in conjunction with consideration of the decision to detain the applicant and the decision (under s 253(9) of the Act) not to release him from detention.

As Wilcox J observed in Halmi (at p 10):

"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 orders comes to be enforced."

I think it is also strongly arguable that another relevant criterion is the degree of risk to the Australian community if the detainee were released pending the hearing of an application to the Tribunal or the hearing of an application in this Court. One searches in vain in the Minute for any consideration of the likelihood of the applicant absconding. The applicant submitted that there was no evidence on this point. Mr Macliver, in reply to that submission, pointed to the two convictions for breaching bail which I have mentioned above. However, those convictions were over eight years ago. Mr King submitted that the decision to detain the applicant was, in all the abovementioned circumstances, one which was unreasonable in the administrative law sense i.e. one which was so unreasonable that no reasonable person could have made it. The present state of the evidence does not, in my view, necessarily point to that conclusion. However, I consider that sufficient material has been put before the Court to raise that issue as a serious question to be tried. I now turn to the manner in which the respondent approached the question whether there would be any danger to the community if the applicant were released from detention. There is consideration (particularly at pp 27-28) in the Minute of the possibility of recidivism. In reaching his conclusion that:

"Towers clearly represents an unacceptable threat to the community by his continued failure to adopt community standards and redress his problems."

Mr Graffin referred to the applicant's alleged failure to co-operate with the Department. Immediately before stating the above conclusion, Mr Graffin appears to have suggested, as a relevant matter, that it was the applicant's fault that the Northern Territory convictions were not mentioned to the magistrate who sentenced him at Joondalup in February 1997. There is the following passage which immediately precedes the above conclusion:

"When Towers appeared in the Joondalup Court of Petty Session (sic) in February 1997 on charges resulting from his drunk driving it appears that no mention was made of the 1994 Northern Territory Manslaughter convictions. This indicates a lack of genuine remorse and symamatic (sic) of his failure to acknowledge and redress his serious problems."

I do not think that it is appropriate to give expanded reasons for the conclusion which I have reached that serious questions to be tried are raised on this question of the conclusion on recidivism both in respect of the decision to deport and the two decisions in relation to taking the applicant into custody and deciding not to release him. The respondent's letter dated 30 January 1998 to the applicant's solicitors dealt with the latter of those two decisions. The relevant portion of that letter reads:

"Given an order [the deportation order] was made with the intention to protect the safety and welfare of the community from Mr Towers I am not satisfied that there is appropriate justification at this point in time to release him back into the community. Mr Towers has an extensive criminal background and his recent history of limited co-operation with DIMA in assessing his deportation liability has been of concern. I am not satisfied that releasing Mr Towers from detention at this point of time would not jeopardise any subsequent action to effect his deportation from Australia."

In my view there are serious questions to be tried on the issue whether there was evidence to support the conclusion that the applicant was likely to abscond and whether irrelevant matters were taken into account to arrive at the decision to deport the applicant, to take him into custody and to keep him in custody. These are in addition to the other serious question to be tried which I have referred to above.

BALANCE OF CONVENIENCE

I have found this issue to be one of considerable difficulty. The inconvenience or injustice to the applicant, if he is detained for what might be a matter of some months and were to be successful in either of the proceedings which he has instituted, is obvious. On the respondent's side, two issues require consideration, namely, whether there is a risk to the community if the applicant is released from detention and whether he is likely to abscond. I approached the matter in a manner similar to that adopted by von Doussa J at first instance in Msilanga v Hand [1991] FCA 68; (1991) 22 ALD 27 at p 30. On an objective assessment - what is the likelihood of the applicant injuring someone in the community if he is released pending the hearing of this application? He was at large from 29 June 1994 to 24 April 1996 (the date of the car accident described above). He has not committed any offences since 24 April 1996. He will remain under a suspended sentence as a result of the magistrate's decisions at Joondalup for a further three months in respect of three of the charges. If he offends again, he risks having to serve the suspended sentences and would seriously jeopardise his chances of remaining in Australia.

Alcohol was central to the two sets of offences which are at the forefront of this matter. I was told from the bar table that the applicant no longer drinks alcohol and will accept a condition of continued abstention. The applicant gave sworn evidence to that effect; evidence which I accept.

I do not think that the evidence before the Court establishes any real risk that the applicant will abscond. Mr Macliver asked that, if I were minded to make an order that the applicant be released on an interim basis, it be on condition that a surety be provided. It may be that there is no prospect of a surety to cover the costs of locating the applicant if he did abscond. I will raise that matter with counsel. In any event, stringent reporting conditions would appear to be appropriate if he is released from immigration detention.

After weighing all of the above factors I have come to the conclusion, not without some degree of hesitation, that the balance of convenience favours the interim release of the applicant subject to stringent conditions. The conditions will be as follows:

1. The applicant is to report to the respondent forthwith his current place of residence and, if he changes his residence, he is to report that fact to the respondent before doing so.

2. The applicant is to abstain from alcohol and not enter upon any premises which are licensed for the sale of alcohol.

3. The applicant is not to drive a motor vehicle.

4. The applicant is to report to the Cannington Police Station once every day (including weekends).

5. The applicant is to attend at his solicitor's office at 3.30 pm each Wednesday and on each such occasion is personally to telephone the Department to confirm his place of residence.

I will hear counsel in relation to the terms of the above conditions and any other conditions which may be proposed.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of Justice Carr

Associate:

Dated: 16 February 1998

Counsel for the Applicant:	Mr P R King
Solicitor for the Applicant:	Kings Legal Service
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9, 13 February 1998
Date of Judgment:	16 February 1998