Fardsavar, M. v Minister for Immigration & Ethnic Affairs [1986] FCA 147

an ay ~yel Req

(47 .

NOT INTENDED FOR GENERAL DISTRIBUTION

Administrative law - application by prohibited non-citizen for release from custody pending review of deportation order ~ policy of Migration Act - applicant detained in maximum security prison - effect upon medical condition of applicant - whether exceptional circumstances - risk to applicant's estranged wife and her family

if applicant released

Administrative Decisions (Judicial Review) Act 1977 ss 5,13 Migration Act 1958 s.27

MAJID FARDSAVAR v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. WA G18 of 1986

TOOHEY J. PERTH 25 MARCH 1986

IN THE FEDERAL COURT

OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA G18 of 1986

~~~ re

BETWEEN: MAJID FARDSAVAR

Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: TOOHEY J. 25 March 1986

EX TEMPORE REASONS FOR JUDGMENT

There is only one matter before the court today and that is whether Mr. Fardsavar should be released from custody pending the hearing of his application to review the minister's decision

that he be deported as a prohibited non-citizen.

He became a prohibited non-citizen when his temporary entry permit expired. He is deemed by reason of s.27 of the

Migration Act 1958 to be aquilty of an offence and. as a

consequence. he is liable to arrest and detention.

In two decisions to which both counsel have referred -

Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4

A.L.R. 323 and Unlugenc v. Minister for Immigration and Ethnic

Affairs (1982) 43 A.L.R. 569 - the court has made clear the policy

or the Miaqration Act. That policv is that prohibited non-citizens should not remain at Large in the community pending deportation, except in exceptional circumstances. The situation ais not analogous to that of a person who 1s facing a charge in the courts, who has a presumption of innocence and therefore comes