McCafferty, Archibald Beattie v Minister for Immigration & Ethnic Affairs & Ors [1995] FCA 1099

C A T C H W O R D S MIGRATION - deportation - pre-parole assessment - whether short term leave precluded by deportation order - meaning of "accordingly" - s.206(1) Migration Act - meaning of "the custody" - meaning of "custody transer time" - s.254 Migration Act. Migration Act 1958 (Cth) - s.189(1), s.206(1), s.254 Prisons Act 1952 (NSW) - s.29 Brauer v Queensland Corrective Services Commission (1992) 112 FLR 183 Gray v MILGEA (1992) 115 ALR 144 Lewis v MILGEA (1988) 89 FLR 218 R v The Governor of the Metropolitan Gaol; Ex parte Molinari (1961) 2 FLR 477 ARCHIBALD BEATTIE McCAFFERTY v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES and THE MEMBERS, OFFENDERS REVIEW BOARD OF NEW SOUTH WALES No G 788 of 1995 Davies J 21 December 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 788 of 1995 ) GENERAL DIVISION ) BETWEEN: ARCHIBALD BEATTIE McCAFFERTY Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent NEVILLE SMETHURST, COMMISSIONER OF CORRECTIVE SERVICES FOR THE STATE OF NEW SOUTH WALES Second Respondent THE MEMBERS, OFFENDERS REVIEW BOARD OF NEW SOUTH WALES Third Respondent Coram: Davies J. Date: 21 December 1995 Place: Sydney MINUTES OF ORDER THE COURT DECLARES THAT: 1. The implementation of an order of the second respondent made under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) permitting the applicant to be on unescorted absence from the prison does not constitute a "custody transfer time" for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth). THE COURT ORDERS THAT: 2. The "Direction to hold in custody", dated 20 August 1993 and made in relation to the applicant, Archibald Beattie McCafferty, be set aside and that the matter be remitted to the Secretary of the Department of Immigration & Ethnic Affairs for consideration whether or not to give a written notice under s.254 of the Migration Act 1958. 3. The reclassification of Archibald Beattie McCafferty as a Category C1 prisoner be set aside and the matter be remitted to the Commissioner of Corrective Services for reconsideration of Mr McCafferty's classification. 4. The Minister for Immigration & Ethnic Affairs pay the applicant's costs of the proceedings and that the respondents abide their own costs thereof. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.