COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CWDS
  Migration Act - Judicial review - deportee taken into custody under s.93 -
power of the court to order his release on bail pending the determination of
an application under the Administrative Decisions (Judicial Review) Act 1977 -
whether the applicant would be a danger to the community if released on bail -
whether the applicant would be likely to abscond.

HRNG
ADELAIDE
#DATE 8:3:1991
  Counsel for the applicant:           Mr P.B. Womersley with Mr P.T. Byrt
  Solicitor for the applicant:         Womersley and Co.
  Counsel for the respondent:          Ms C. Frances
  Solicitor for the respondent:        Australian Government Solicitor

ORDER
  On the notice of motion for interlocutory relief:
  That the applicant be released on bail upon him entering into a recognizance
in the terms settled by me and upon a surety in the sum of $10,000 of which
$2,500 is to be provided in cash in accordance with the conditions of the
recognizance.
  Liberty to all interested persons to apply on short notice and if necessary
ex parte to vary or cancel the terms of the bail.

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

JUDGE1
  The application which was commenced this morning seeks orders for review in
respect of decisions of the respondent made on 7 February 1991 to detain the
applicant in custody and on 6 March 1991 to continue the detention of the
applicant in custody.  Both those decisions were made pursuant to provisions
of s.93 of the Migration Act 1958.  The present application seeks review of
those decisions pursuant to the provisions of the Administrative Decisions
(Judicial Review) Act 1977 ("the ADJR Act") and s.39B of the Judiciary Act
1903.
2.  I will give the factual history of the matter shortly, but I first outline
the nature of the relief sought today.  By way of interlocutory order, the
applicant seeks relief which would have the effect of bringing about his
release from custody, appending the termination of the substantive issues
raised by the proceedings.  The applicant argues that the court has power to
make an interlocutory order of the type sought pursuant to ss.19 and 23 of the
Federal Court of Australia Act 1966 read with s.15 of the ADJR Act.  The
respondent, on the other hand, contends that no such jurisdiction exists, and
further argues that in any event no order should be made of the kind sought as
it would have the effect of substituting in the short term the court's opinion
for that of the Minister or his delegate formed under sub.s.93(9) of the
Migration Act.
3.  The respondent directed the court's attention in particular to
reservations on the power to make an order of the kind sought expressed by
Gummow J. in the case of Ali Elmi v. The Minister for Immigration and Ethnic
Affairs in unreported decisions dated 21 December 1987 and 10 March 1988. In
my view, this court has jurisdiction to make orders of the kind sought
pursuant to the sections invoked by the applicant and I rely on the authority
of earlier decisions of the court in Noral Piroglu v. The Honourable Ian
McPhee, Minister for State for Immigration and Ethnic Affairs, and The
Commonwealth of Australia (1981) 4 ALD 323, and Unlugenc v. The Minister for
Immigration and Ethnic Affairs (1982) 43 ALR 569.
4.  In my opinion the reservations expressed in Elmi to which reference was
made are clearly distinguishable.  In that case, the decision pursuant to
which the applicant was held in custody pending his deportation was not the
subject of the application for review.  In the present case, both the
decisions pursuant to which the applicant has been, or is being held, are the
subject of the proceedings.
5.  On an application for interlocutory relief the court has to consider two
questions:  firstly, whether on the substantive issues there is a serious
question to be tried;  and secondly, if that question is resolved in favour of
the applicant, where the balance of the convenience lies.  If the balance is
in favour of the order sought by the applicant it will be made pending further
order of the court or the determination of the issues.
6.  In my view, there are serious questions to be tried raised by the
application.  It is inappropriate that I give expanded reasons for so
believing, as those very questions will have to be agitated in more detail and
determined in the course of a full trial.  It is sufficient that I indicate
what those serious questions are.  In my view, in relation to the decision on
7 February 1991 there is a serious question whether that decision has had any
force since the decision of 6 March 1991.  It is at least arguable that the
decision, or the purported decision, on 6 March 1991 displaced any force or
effect which the earlier order would have had.  Even if the decision of 6
March 1991 is by reason of procedural error invalid, in my view there remains
a serious question to be tried whether in that event the applicant could
lawfully be held pursuant to s.93.  That point arises under sub.s.93(2) which
provides that a person arrested under sub.s.(1) or (10) may, "subject to this
section, be kept in custody as a deportee in accordance with subsection (8)".
The point of contention would be whether, if there is an invalid disposition
of an application regularly made under sub.s.(9), the deportee thereafter is
being held in accordance with the section.
7.  In my view, there are also serious questions to be tried regarding the
procedural regularity and therefore validity of the decision made on 6 March
1991.  The decision of the delegate then made rests primarily on two grounds:
that if the applicant were released from custody pending the determination of
the substantive issues, firstly there would be a likelihood that he would
abscond, and secondly there would be a likelihood of further criminal activity
or convictions on his part.
8.  There are serious questions to be tried on the first issue as to whether
there was evidence to support the conclusion that the applicant was likely to
abscond, and further, whether some irrelevant fact was taken into account to
arrive at that decision.  It is contended that an irrelevant fact was taken
into account, namely a belief by the decision maker, or a policy, that people
subject to a deportation order are likely to abscond, given certain matters
such as no ownership of assets.
9.  A serious question that I think arises concerning the second aspect of the
decision namely the likelihood of further criminal activity, again is whether
there existed evidence sufficient to support the inferences and the findings
of fact leading to the ultimate conclusion reached by the delegate.  And
again, there is a serious question whether an irrelevant consideration was
taken into account, namely a policy or principle that people who have
committed one serious offence are likely to commit other serious offences of a
like or dissimilar nature.
10.  These are serious matters which warrant a proper trial of the application
after particulars have been given to better crystallise the points which the
applicant wishes to pursue.
11.  The much more difficult question in the case is the determination of
where the balance of convenience lies.  And on this question I think it is
necessary that I recite some of the background facts.  The applicant is a 38
year old Tanzanian citizen.  He entered Australia on 22 August 1986 on a
temporary entry. As a result of his marriage to his Australian fianc e on 8
November 1986 he was granted a resident entry permit.  The marriage lasted
only a short time, and was finally dissolved in 1988.
12.  On 4 March 1989 the applicant committed a very serious knife attack on a
woman with whom he had recently had a close friendship.  The attack occurred
in her home.  She suffered horrendous injury.  The applicant was taken into
custody that day, and remained in custody pending his conviction and sentence,
ultimately on his own confession, of the crime of wounding with intent to do
grievous bodily harm.
13.  The sentence of the Supreme Court of South Australia was that he be
imprisoned for seven years.  A non-parole period of three years was set.  The
sentencing judge said that the offence was committed whilst the applicant was
under the influence of liquor, and he said that he took into account the
applicant's previous good character and his resolve in his contrition to
positive and worthwhile action for the predicament in which he found himself.
14.  With the benefit of remissions, the applicant was released from custody
on strict parole conditions on 4 February 1991.  Prison records subpoenaed by
the applicant's solicitors suggest that he was a model prisoner during his
incarceration.  The parole conditions include conditions as to reporting his
place of residence, that he abstain from alcohol, that he not enter upon the
premises of any licensed hotel, and there were further absolute conditions or
"designated conditions" as they are called, which provide that he shall not
possess an offensive weapon and shall not contact, attempt to contact or
associate in any way with the victim of his crime.
15.  In the event of a breach of either of the designated conditions, the
applicant would render himself liable to be taken back into custody for the
balance of the seven year term of his sentence, or for so long as he might
remain in Australia prior to deportation.
16.  The applicant's conviction and sentence rendered him liable to
deportation in the exercise of the respondent Minister's discretion under s.55
of the Migration Act.  On 7 February 1991, the Minister signed a deportation
order. Pursuant to s.93 of the Migration Act the applicant was arrested and
taken into custody on 8 February 1991, pending deportation.
17.  Prior to his arrest, the applicant had been residing with a minister of
religion in the Anglican Church of Australia and his family, and employment
had been found for him.  In his few days of freedom he complied with his
parole conditions.  The arrest of the applicant was his first notification of
the making of the deportation order.  On 8 February he applied to the
Administrative Appeals Tribunal for a review of the decision.  On the same day
an order was made by the Tribunal staying his deportation pending the review.
18.  It is likely that the Administrative Appeals Tribunal hearing will occur
within the next two to three months, and presumably a decision will be given
shortly thereafter.  The applicant also made application to the Minister for
his release from custody pursuant to the power under sub.s.93(9) of the
Migration Act, pending the Administrative Appeals Tribunal review.
19.  That application was made by letter from his solicitors on 11 February
1991.  As no decision on that application had been made by 25 February 1991,
proceedings were issued in this court to review the decision implicitly made
on 7 February 1991 to detain him in custody. The delegate of the Minister made
a decision on the application under sub.s.93(9) on 6 March 1991.  That is one
of the decisions now under challenge.  The making of that decision rendered
the first set of proceedings futile and the new proceedings commenced today
and are now those before the court.
20.  The Minister determined that the applicant remain in custody, and he is
presently held in the Adelaide Remand Centre.
21.  In the exercise of the discretion which this court must now exercise, the
respondent opposes the release from custody of the applicant on the grounds,
firstly that the applicant is a danger to the community and in particular to
the victim of the attack on 4 March 1989 and to people close to her who say
they fear reprisal from the applicant as they have given her support in one
way or another;  and secondly, that there is a likelihood that the applicant
will break his bail and abscond.  These are the reasons expressed by the
delegate in his decision of 6 March 1991, but in my opinion this court must
consider these matters afresh on the information before it and form its own
judgment.
22.  The attack on the victim was, as I have said, horrendous, and her
predicament cannot help but invite sympathy.  That she entertains fear is
understandable, but her situation is similar to that which many victims of
crime must inevitably face.  People guilty of criminal offences are punished
according to the criminal law.  Almost inevitably after a time, and serving
the sentence of the criminal court, they are released back into the community.
23.  If the applicant were not a non-citizen under the Migration Act there
would be no question of him being detained in custody beyond the ordinary
requirements of his sentence.  It is simply not open to the authorities to
implement a victim's desire born out of fear of further attack to never
release an offender.
24.  In my opinion, this application should be determined primarily according
to an objective assessment of the likelihood of the applicant committing an
attack upon someone in the community, and in particular upon the victim and
her immediate friends and family.  In assessing that likelihood, obviously
regard must be had to what happened in March 1989, but regard must also be had
to the established behaviour of the applicant both before and after that
event, to the fact that he has undergone nearly two years of punishment since
then, and to the fact that if released he would life under the regime dictated
by the terms of his parole.
25.  I have already mentioned those terms and the one of particular
significance is that he not approach in any way the victim of the crime. This
court, of course, can also impose terms in a recognizance for release on bail
which in themselves can be restrictive and can be reviewed at short notice.
26.  The extensive correspondence from members of the community which is now
on the court file - some from the victim and her close family urging a
continued incarceration of the applicant and others supporting his bid to
remain at large in Australia - express widely different views, but one thing
is clear from the correspondence - the applicant has expressed an overwhelming
desire to remain in Australia.
27.  In my view it would be extraordinary if he were to torpedo his chances of
achieving that end, whatever those chances might be - and on that the court
can express no opinion - by breaking a term of his parole or a term of bail.
Apart from the attack on 4 March 1989, the applicant has not displayed a
violent or physically aggressive disposition.  In the time since March 1989,
and particularly in the four days when he was at large in February this year,
there has been no suggestion he has endeavoured to contact the victim.  Grave
though the attack in March 1989 was, it appears an isolated aberration.  The
information before the court, a lot of which is far from objective, gives no
basis in my view for believing that the applicant should not be released on
the ground that he would be a danger to members of the community.
28.  I consider he should be released on bail, but on conditions as to
reporting and non-contact with the victim and members of her family who are to
be named in the conditions of bail.
29.  I do not think the information before the court establishes any real risk
that the applicant will abscond.  But as a formality to cover that
eventuality, in my view a surety should be insisted upon.  There is a surety
prepared to put up a substantial sum of money to ensure due compliance with
the bail conditions by the applicant.  A surety in the sum of $10,000 is
sufficient, I would have thought, to cover the costs of the respondent in
locating the applicant in the unlikely event that he breaks the term of his
bail by absconding.
30.  For these reasons I propose to order the release of the applicant,
subject to the terms of bail which have been already read out to the court.
They will now be typed up, and checked by the parties concerned. The surety
can enter into his recognizance here and I will give a direction that the
applicant be released upon his executing the terms of the recognizance in the
presence of a justice, and that can be done at the gaol.