Brehoi v Minister for Immigration & Multicultural Affairs [2000] FCA 1839 (14 December 2000)

Last Updated: 14 December 2000

FEDERAL COURT OF AUSTRALIA

Brehoi v Minister for Immigration & Multicultural Affairs [2000] FCA 1839

IMMIGRATION - review of a decision to detain a deportee following a period of custody by a State authority - interaction between ss 253 and 254 of the Migration Act 1958 (Cth) ("the Act") - ability to detain a deportee under s 254 of the Act - ability to detain a deportee pursuant to s 253 rather than s 254 of the Act where the deportee is in the custody of another authority.

Migration Act (Cth) 1958 ss 253, 254

Halmi v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 261 not followed

Dung Chi Dang v Minister for Immigration and Multicultural Affairs and Anor [1999] FCA 726; (1999) 163 ALR 495 applied

Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 205 applied

NICHOLAS BREHOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N4 of 2000

MADGWICK J

14 DECEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N4 of 2000

BETWEEN:	NICHOLAS BREHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	14 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N4 of 2000

BETWEEN:	NICHOLAS BREHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	14 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 In this matter the applicant, Mr Brehoi, seeks judicial review of the decision of a delegate of the respondent Minister, that a notice under s 254 of the Migration Act 1958 (Cth) ("the Act") be issued in respect of him. The applicant also seeks review of the conduct of the respondent in causing the s 254 notice to be issued.

2 In the course of oral argument, the applicant also sought to challenge the legality of his detention under s 253 of the Act.

3 The applicant, unrepresented, filed voluminous written submissions. The following deals with what I take to be the possibly arguable matters raised both orally and in writing.

Factual background

4 The applicant was born in Bucharest, Romania on 21 August 1958. On 8 March 1980, he arrived in Australia under the Eastern European Refugee Program. He has a criminal history that dates from 1983. In May 1992, consideration was given to his deportation but it was decided that he should be given a warning.

5 On 4 August 1995, the applicant was convicted of a number of counts of supplying heroin between 4 August 1991 and 2 December 1993. For these offences he was sentenced in the NSW District Court to a minimum term of 4 years, expiring on 1 December 1997, and an additional term of 2 years and 6 months expiring on 1 June 2000. An appeal against his convictions and sentence was dismissed on 16 December 1996.

6 Based on one of the convictions of 4 August 1991, a deportation order was made on 20 August 1997 against the applicant. On 28 August 1997, the Governor of Silverwater Correctional Centre was given a request under s 254 of the Act to hold the applicant in immigration detention after he completed his custodial sentence. On the same day a notice in accordance with s 254(2) of the Act was prepared for service on the applicant but not served, because he claimed to the officer who attended to serve him that he had an outstanding appeal against his sentence.

7 During oral argument the applicant disputed that he was in fact served with the s 254(2) notice on 29 August 1997. The applicant claimed that no officer had attended on him on that day and that he was not served with the notice. As the applicant was unrepresented, I permitted an evidentiary examination of these facts. The respondent led evidence from Mr Gillett, an officer of the respondent's department, that he saw the applicant on that day, served him with the notice and informed him of the making of the deportation order. The applicant gave evidence to the contrary.

8 In any event, the applicant applied to the Administrative Appeals Tribunal ("AAT") on 9 September 1997 for a review of the decision to deport him. On 12 December 1997, the respondent's delegate decided that the applicant should be detained under s 253 of the Act, at least until his AAT application was resolved, if the NSW authorities should decide to release him.

9 On 15 December 1997, the NSW Parole Board granted the applicant parole, directing that he be released no later than 22 December 1997. On 16 December 1997, the Deputy Governor of Silverwater Correctional Centre was sent a further request, under s 254 of the Act, to hold the applicant in immigration detention once his custodial sentence was completed. On 19 December 1997, the applicant was apparently purportedly transferred into immigration detention.

10 On 24 December 1997, in accordance with a request by the applicant, it was decided to transfer him to the Immigration Detention Centre at Villawood and he arrived there on 2 January 1998. On 2 February 1998, an officer of the respondent approved the recommendation to continue the detention of the applicant under s 253 of the Act and on that day he was detained pursuant to s 253 by an officer who visited him at the Detention Centre.

11 On 19 February 1998, the authorities discovered that the applicant had escaped from the Villawood Immigration Detention Centre. On 2 March 1998, the AAT dismissed the applicant's application when he failed to appear. On 11 April 1998, the applicant was arrested by NSW Police for breach of his parole and was held at Bathurst Correctional Centre pending a decision of the NSW Parole Board on whether he should again be released. On 24 April 1998 and 13 July 1998, the respondent informed the authorities at the Bathurst Correctional Centre, that if the Board decided the applicant should be released on parole, he would be detained under s 253 of the Act. The applicant was also advised.

12 On 14 July 1998, a decision was taken by the regional manager of the Department's Bankstown office to detain the applicant under s 253 of the Act, in the event that the NSW authorities released him. The matter was reviewed periodically, and on 4 September 1998 and 7 December 1998 it was decided that the applicant should be held at a State custodial institution.

13 The NSW Parole Board decided that the applicant should be released on parole no later than 17 December 1998. On 11 December 1998, the Department of Corrective Services was asked to transfer the applicant to a detention facility at Silverwater, so that he could be detained by an officer. On 16 December 1998, a request was sent to the manager of the detention centre at Silverwater, requesting that the applicant be held there in immigration detention.

14 On 17 December 1998, the applicant was transferred to the detention centre at Silverwater where two officers allegedly informed him that he was being detained and held in immigration detention under s 253 of the Act. During oral argument the applicant challenged the validity of his detention under s 253 of the Act, claiming that he had not been informed by the officers that he was to be detained under s 253. I permitted this matter also to be factually investigated. The respondent presented evidence from Mr Richards and Ms Speed, the two officers who saw the applicant, that Mr Richards had in fact informed him that he was to be detained under s 253 of the Act.

15 The Department conducted reviews of the decision to detain the applicant at Silverwater on 10 February 1999, 28 April 1999, 25 June 1999, 18 August 1999, 28 October 1999, 1 December 1999 and 18 February 2000. On each occasion, it was decided to continue the applicant's detention. The review of 28 October 1999 noted that the applicant's application to have the decision to deport him reviewed had been reinstated by the AAT on 7 September 1999. A hearing was to have taken place on 5 and 6 October 1999, however, these hearing dates were vacated at the request of the applicant, and the application for review of the deportation order remains undetermined by the AAT.

Relevant legislation

16 Section 200 of the Act gives the Minister the power to order the deportation of certain non-citizens. Section 201 provides that one class of non-citizens that may be deported under s 200, is non-citizens that have been in Australia for less than 10 years and who are sentenced to a period of imprisonment of not less than one year. It is not in dispute that the applicant fell within these requirements and was liable to a deportation order.

17 The initial decision to detain the applicant was made pursuant to s 254 of the Act which, prior to its amendment, provided:

"(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."

18 The second and continued periods of immigration detention were ordered pursuant to s 253 of the Act, which provides:

"(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.

...

(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."

Validity of the s 254 detention

19 The applicant relies on the judgment of Wilcox J in Halmi v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 261 to support his submission that he was unlawfully detained under s 254 of the Act. In Halmi, Wilcox J held that a deportee who has been given notice under s 254(2) of the Act cannot be placed in immigration detention. His Honour concluded that, because s 254(3) excludes s 253(1) of the Act, there cannot be a lawful detention as s 253(1) provides the sole power to detain a deportee under the Act.

20 However in Dung Chi Dang v Minister for Immigration & Multicultural Affairs [1999] FCA 726; (1999) 163 ALR 495 a Full Court of this Court disagreed with the interpretation of s 254 adopted by Wilcox J. Of the relationship between ss 253 and 254, the Court said at [9]:

"[o]nce a notice has been given under s 254(2), subs (3) makes the other provisions of the Act, apart from s 253(1) and (3), applicable. These other provisions apply in relation to a deportee as if he had been detained under s 253(1) at the custody transfer time. One of the other provisions is s 253(2), which confers power to keep a deportee who has been detained under subs (1) in immigration detention or in detention as a deportee in accordance with subs (8). Subsection (8) allows the deportee to be kept in immigration detention or such detention as the Minister or Secretary directs. No independent power to detain is necessary. Sections 254(3) and 253(2) together make it unnecessary." (Emphasis added)

21 Following Dung, the respondent is able to detain a deportee who is in custody through the issuing of a written notice complying with s 254(2).

22 Evidence was given by Mr Robert Gillett that he provided the applicant with a letter on 29 August 1997, which contained the following:

"[t]he Minister's delegate signed a deportation order against you on 20 August 1997 and a copy of this order is attached...On completion of your current sentence you will, if necessary, be held in the custody of the Immigration Department until arrangements are finalised for your deportation from Australia. A notice under section 254 of the Migration Act 1958 relating to this custody is enclosed."

This letter on its face complies with the requirements of s 254(2)(a).

23 On this letter there is a handwritten notation made by Mr Gillett that the applicant did not wish to sign for the deportation order.

24 Although the applicant denies being visited by Mr Gillett on 29 August 1997, it seems likely that Mr Gillett did in fact visit the applicant at the detention centre at Silverwater and did give him the letter informing him of the deportation order and detention pursuant to s 254 of the Act. The applicant gave evidence that he contacted a solicitor some time in August for advice about an AAT appeal. 30 and 31 August 1997 were a Saturday and Sunday. The applicant would only have contacted a solicitor to appeal against a deportation order if he had received notice of such a deportation order. That would be consistent with the evidence of Mr Gillett that he gave the applicant the notice of his deportation on 29 August 1997. Further, the applicant in a written statement of 12 May 2000 said that he made an application to the AAT and, in oral evidence, said that Corby Livingstone, solicitors, were acting on his behalf in making that application. (Elsewhere, he said he had no money to pay Corby Livingstone. It seems unlikely that they would have seen the applicant as a suitable candidate for any pro bono generosity they may have possessed.) In the application to appeal to the AAT, dated 9 September 1997, it was indicated that the deportation order was attached. It seems likely to me that the solicitors received a copy of the order from the applicant. The evidence of Mr Gillett is to be preferred to that of the applicant.

Validity of the detention under s 253

25 It was submitted by the applicant, in the alternative, that because he was in custody, the respondent could not use s 253 of the Act to detain him because detention of deportees in custody could only be undertaken under s 254 of the Act. This issue arises because of a change in Departmental policy brought about by the Halmi decision and concern on the part of the Minister's Department, consequent upon that decision, that it could not use s 254 of the Act to detain deportees. The only means by which, at that time, the Minister could be confident of legally detaining the applicant was to detain him upon his release on parole under s 253. The respondent's delegates sought to do this by sending two officers to detain the applicant on 17 December 1998. The uncertainty about the relationship between s 253 and s 254 of the Act has since been resolved by Dung. Furthermore, s 254 has been amended to address the uncertainty arising from the form in which it was originally drafted.

26 The issue here is whether s 253 of the Act is the source of a general power to detain a deportee whilst s 254 of the Act is a special provision dealing with the detention of a deportee already in another form of custody, such that s 253 should be regarded as subject to s 254. The question of whether s 254 limits the scope of s 253 was considered by Lehane J in

Tuiletufuga v Minister for Immigration & Multicultural Affairs (1999) 158 ALR 205. As to the relationship between s 253 and s 254, his Honour said:

"A presumption in favour of liberty is not, in my view, offended by a construction which permits the deportation, and prior detention, of a prisoner against whom a deportation order has been made, particularly in the context of a statute which confers a power (indeed imposes a duty) of detention and removal of an imprisoned unlawful non-citizen.... A fortiori, the presumption in favour of liberty, where one means is available of detaining a deportee on the expiry of his or her sentence, is not offended by a provision which permits precisely the same result to be brought about by other means."

27 I respectfully agree. There appears to be nothing in the provisions of s 254 to indicate that s 254 alone is to be used in the case of a deportee who is already in another form of custody. Indeed, as counsel for the respondent pointed out, s 254(2) provides that the Secretary may give the person written notice; this suggests that, if the Minister does not give written notice, the more onerous provisions of s 253 must be complied with to detain the deportee.

28 Evidence was given by two departmental officers, Mr Andrew Richards and Ms Heidi Speed, that they attended on the applicant on 17 December 1998 and informed him that he was being placed in immigration detention under s 253 of the Act, because he was a deportee. The applicant agrees that he was visited by these two departmental officers on 17 December 1998, but he denies that they told him he was to be placed in immigration detention or why. However, 17 December 1998 was the date on which the applicant was to be paroled. It seems unlikely that the officers would have visited the applicant at the detention centre at Silverwater and not executed some formalities associated with placing him in immigration detention. A file note of Mr Richards, dated 21 December 1998 supports his evidence and that of Ms Speed. This was made before any question was raised as to what had happened. The evidence of the two officers is to be preferred to that of the applicant.

29 According to the evidence, there was no request from the applicant to see the deportation order and there was therefore no requirement under s 253(3) for the officers to furnish the applicant with the order.

Conclusion

30 Neither ground of review raised by the applicant can be sustained. The first ground, that there was no power under s 254 of the Act to hold a deportee fails because of the ruling of the Full Court in Dung. The respondent could rely on a notice pursuant to s 254 of the Act to detain the applicant and, as a matter of fact, the respondent complied with the requirements of s 254. Therefore, the first period of detention of the applicant was lawful.

31 The second ground of review raised by the applicant, that his second period of detention pursuant to s 253 of the Act was unlawful, is also not made out. The submission that s 254 limits the scope of s 253 only to deportees that are not in any other form of custody cannot be sustained.

Disposition

32 The application for review will be dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 14 December 2000

Applicant appeared in person.
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 April 2000 & 18 May 2000
Date of Judgment:	14 December 2000