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MIGRATION - immigration detention - release from detention pending appeal - discretionary factors for Court's consideration - where threat to Minister's life made.

PRACTICE - Federal Court of Australia - interlocutory orders - variation of interlocutory orders made by Full Court of Federal Court of Australia - whether variation can be made by Full Court - whether consideration can be given to factors not before Full Court when orders first made.

Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003

Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 8 (19 February 2003)
Last Updated: 19 February 2003


FEDERAL COURT OF AUSTRALIA
Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 8


MIGRATION - immigration detention - release from detention pending appeal - discretionary factors for Court's consideration - where threat to Minister's life made.

PRACTICE - Federal Court of Australia - interlocutory orders - variation of interlocutory orders made by Full Court of Federal Court of Australia - whether variation can be made by Full Court - whether consideration can be given to factors not before Full Court when orders first made.

Migration Act 1958 (Cth)

VFAD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1062 applied

S 157 of 2002 v Commonwealth [2003] HCA 3 cited

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6 cited

ION UNTAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. N 1359 OF 2002

BEAUMONT, WHITLAM & STONE JJ

19 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1359 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ION UNTAN

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
BEAUMONT, WHITLAM & STONE JJ


DATE:
19 FEBRUARY 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

INTRODUCTION

1 On 15 February 2003, this Full Court made the following orders:

"1. The interlocutory orders made by the Full Court of the Federal Court of Australia on 14 February 2003 be discharged.

2. The Minister is to file and serve his Notice of Contention and written submissions in support by noon on Monday 17 February 2003.

3. The hearing of the appeal be expedited to 11.30 am on Thursday, 20 February 2003 to be heard by Beaumont, Whitlam and Stone JJ.

4. The Minister have the carriage of the preparation of the appeal books.

5. The appeal be listed before Beaumont J for directions on Monday, 17 February 2003 at 2.15 pm."

2 Upon making these orders, we announced that our reasons for judgment would be published at a later date. These are those reasons.

3 It will first be necessary to explain the circumstances, by way of background, in which our orders were made, as follows.

BACKGROUND

4 The appellant, Ion Untan, is a Romanian citizen who arrived in Australia in 1984 on an Eastern European Refugee Program visa.

5 Mr Untan has a lengthy criminal record dating back to 1985, having been convicted of, amongst many other offences, assault, malicious damage, and possession and supply of prohibited drugs. Most recently, he was convicted in 1997 on two counts of possession of shortened firearms and of breaking and entering and committing a felony in circumstances of special aggravation, for which he was sentenced by the Supreme Court of New South Wales to serve a term of seven and one-half years imprisonment, with a minimum term of five years, such minimum term to commence on 13 May 1997, expiring 12 May 2002. He was released from prison on 20 May 2002.

6 On 17 July 2002, the Minister decided, pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"), to cancel Mr Untan's visa. This decision was notified on 6 August 2002, when Mr Untan was taken into immigration detention.

7 By his amended application filed in this Court on 17 October 2002, Mr Untan sought judicial review of the Minister's decision to cancel the visa. On 26 November 2002, Branson J dismissed the application, holding, in essence, that the Minister's decision was "protected" by virtue of s 474 of the Act, notwithstanding that the decision was made in contravention of a statutory obligation to afford procedural fairness.

8 On 16 December 2002, Mr Untan instituted an appeal to the Full Court from this judgment. The appeal was, in the absence of an order for its expedition, fixed for hearing in the Full Court sittings to be held in May 2003.

9 On 5 February 2003, Mr Untan filed a notice of motion seeking an order that he be released forthwith, pending the determination of his appeal. This motion was heard on 12 February 2003 by a Full Court constituted by Lee, Whitlam and Jacobson JJ. On the morning of 14 February 2003, the Full Court ordered that, upon Mr Untan giving certain undertakings, he be released from immigration detention. Mr Untan then gave those undertakings and was released that afternoon.

10 Later on 14 February 2003, the Minister gave Mr Untan's solicitors notice of his intention to move for the discharge of the Full Court's orders. The Minister filed a notice of motion to that effect on 15 February 2003, returnable before this Full Court on that day, when we heard evidence and argument from the parties. Before us, it was accepted, correctly in our view, that since the order made on 14 February 2003 was interlocutory only, it could be varied or discharged by another Full Court, if it were appropriate to do so. Whether it was, in the circumstances, appropriate to do so was thus the real issue for our determination.

11 As has been noted, after hearing argument on 15 February 2003, this Full Court discharged the release order and directed the expedition of the appeal.

12 In order to understand the issues arising on the Minister's motion, it will be necessary to explain the Full Court's reasons for making the release order, as follows.

THE REASONS FOR THE RELEASE ORDER MADE ON 14 FEBRUARY 2003

13 Their Honours noted that Mr Untan pointed to the existence of this Court's interlocutory release jurisdiction affirmed in VFAD of 2002 v MIMIA [2002] FCA 1062; and that Mr Untan contended that, pending the determination of his appeal (then fixed for hearing in May 2003) he ought to be released from immigration detention, because there is a serious question to be tried as to whether (in the light of the decision of the High Court in S 157 of 2002 v Commonwealth [2003] HCA 3 given on 4 February 2003, i.e. after the decision of Branson J) the cancellation of his visa was valid. That is, Mr Untan contended that if the decision in S 157 of 2002 had been given before the primary Judge's decision here, Mr Untan would have been granted judicial review of the cancellation decision.

14 The Full Court said that it was "fairly clear" that Mr Untan's submission "was correct" and that "accordingly he would not now have the status of an unlawful non-citizen" within the meaning of, and with the consequences provided by, the Act.

15 Their Honours noted that the Minister had submitted that the Court had no power to order interim release, and that VFAD "was plainly wrong". However, the Full Court said that "on the basis of the limited argument before [it]", the Full Court could not say that VFAD was "plainly wrong".

16 The Full Court further noted that the Minister did not then point to any "balance of convenience" considerations which would weigh against the grant of interim relief. Before us, however, the Minister did rely on the "balance of convenience" considerations, explained below.

THE BASIS OF THE MINISTER'S MOTION

17 Before us the Minister also foreshadowed the filing of a notice of contention in the appeal, in which the Minister will contend that, by virtue of, inter alia, the reasoning and decision of another recent High Court decision in Re MIMIA; Ex parte Lam [2003] HCA 6 (in which Judgment was given on 12 February 2003, that is, after S 157 of 2002), the conclusion of Branson J that procedural fairness had not been provided, should not stand.

18 We merely note this contention at this stage since, before us, the Minister relied exclusively on the balance of convenience considerations appearing in the affidavit of Jennifer Irwin sworn 14 February 2003 as follows:

"1. I am a Compliance Officer employed by the Department of Immigration and Multicultural and Indigenous Affairs at Parramatta.
2. On 7 August 2002, myself and another Departmental Compliance Officer interviewed Mr Untan at the Villawood Immigration Detention Centre. This was Mr Untan's first interview following his initial detention on the previous day at a Parole Office.

3. Throughout the interview, Mr Untan appeared tense and upset and he repeatedly said words to the following effect: `If I didn't have family in Australia, I would return to my own country but because I do have family here I do not want to go back. The Department is trying to separate my family.'

4. The question was put to Mr Untan about whether his family could return with him to Romania. At this point, Mr Untan became more agitated and spoke rapidly saying words to the following effect:

`Why should my family have to go to Romania? They don't understand the country or know the language.'

5. During the course of the interview, when Mr Untan spoke about his detention on the previous day, he `spat the dummy'. By that I mean that he raised his voice and became angry about the manner in which he was detained and said words to the following effect:

`I was embarrassed in front of my family. I was trying to do the right thing. How dare they do this? I was reporting for parole and I was set up. I have a casual job and that could have led to something more permanent.'

6. As the interview progressed, Mr Untan also said words to the following effect:

`My boys have behavioural problems. I've been released from prison for three months and in that time I've noticed a behavioural change with the boys. I helped arrange jobs for them at `Flower Power', but now they're just lying at home and my wife is trying to arrange some psychological counselling for them'

7. My colleague explained the options that were available to Mr Untan given his detention and asked him what he wanted to do. Again, Mr Untan repeated that he would be prepared to leave Australia but because he had family here, he didn't want to leave them. I noticed that Mr Untan started to get agitated again and said words to the following effect:

`The time will come for the Minister to pay for his decision to cancel my visa. What goes around comes around. The Minister is ruining people's lives and separating families. This Government is like Nazi Germany where they separated children from their parents. Who will look after my children when I am gone? Maybe my children should turn up at the Minister's door. How would he like that? The Minister only makes these decisions to win votes. He doesn't care. If I could, I would shoot the Minister. He thinks he is protected but he isn't.'

8. When Mr Untan made these threats I did not consider that he could carry them out in practice as he was in Villawood Immigration Detention."

19 Although Mr Untan was not called, and no explanation for his absence was offered, the evidence of Ms Irwin was vigorously challenged in cross-examination. Her version was, however, fully confirmed in a contemporaneous Minute prepared by another Departmental officer who was also present at the interview held on 7 August 2002.

20 We accept Ms Irwin's evidence. She impressed us as a truthful witness.

CONCLUSIONS ON THE MINISTER'S MOTION

21 In our opinion, Mr Untan's threat to "shoot" the Minister ought to be taken seriously, for so long as Mr Untan remains out of detention. Given the gravity of the potential consequences, this is, we think, a consideration of the highest importance in weighing where the balance of convenience lies, even if the Minister's representatives did not seek to rely on it at the hearing on 12 February 2003. We bear in mind, in this connection, the speed with which these interlocutory applications have progressed.

22 On the other hand, there is also to be taken into account, in Mr Untan's favour, his wish to have his appeal dealt with at the earliest practicable date. As noted, we have acceded to this convenience consideration by expediting the appeal, and fixing its hearing for 20 February 2003.

23 In these circumstances, in our opinion, the balance of convenience (an issue which the previous Full Court did not need to address) clearly favours the Minister's position. In deciding whether to exercise the discretionary interim power to order a temporary release, the Minister's personal security should, in our view, be regarded as a decisive factor in concluding that no order for release should be made at this stage. It must follow that the interim order made on 14 February 2003 ought to be discharged and we so ordered on 15 February 2003.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 19 February 2003

Counsel for the Appellant:
Mr R Butler






Solicitor for the Appellant:
Public Interest Advocacy Centre






Counsel for the Respondent:
Mr S Rushton SC

Mr J Smith






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
14 and 15 February 2003






Date of Orders:
15 February 2003






Date of Judgment:
19 February 2003


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