Applicant VKAC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1418

FEDERAL COURT OF AUSTRALIA

Applicant VKAC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1418

APPLICANT VKAC of 2002 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 761 of 2002

RYAN J

19 NOVEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 761 of 2002

BETWEEN: APPLICANT VKAC of 2002

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 19 NOVEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application for orders in the nature of prerogative relief against the respondent Minister ("the Minister") arising from the detention of the applicant pursuant to s 189(1) of the Migration Act 1958 ("the Act"). The applicant also seeks interlocutory orders in the following terms; "1. An order that the Respondent personally, and by his servants and agents, be restrained pending the hearing and determination of this proceeding from detaining the Applicant. 2. An order that the Respondent personally, and by his servants and agents, be restrained pending the hearing and determination of this proceeding from treating the Applicant as a non-citizen. 3. Such orders and directions as may be required to facilitate the hearing this application." 2 The applicant was born in what was formerly known as Burma, now the Union of Myanmar ("Myanmar") and came to Australia at the age of 15 in June 1971. She married an Australian citizen in 1973 and was divorced in 1978. She has one son who was born in 1979. From May 1985 to June 1986 the applicant travelled outside Australia, mainly in Europe. Before undertaking that travel she had applied for a Burmese passport but was advised that she was deemed to have renounced her Burmese citizenship three months after leaving Burma in 1971. Accordingly, she procured a Certificate of Identity from the Australian Department of Immigration and Multicultural Affairs as it was then called. After her return to Australia, the applicant engaged in various criminal activities connected with her involvement in the use of illegal drugs and, on 28 April 2000, she was sentenced to imprisonment for varying terms on counts related to the possession and supply of amphetamines, possession of heroin and fraud. The total maximum period of imprisonment was later, on 28 February 2001, reduced to five years on appeal to the Supreme Court of Western Australia. With remissions for good behaviour, the applicant has now been released, either on parol or unconditionally, from custody in Western Australia. 3 However, the applicant has been in migration detention since 4 February 2002. The description of that detention, as set out in par 22 of an affidavit sworn 5 November 2002, is in these terms; "I have been in migration detention since 4 February 2002. It is a small facility, and I am usually the only female. The pressure of being detained in these circumstances is unbearable. I have complained to the Commonwealth Ombudsman to no avail. I am being openly housed among male detainees and there is no escape from the pressure of being detained as the only female in a small facility. I have an extended family of more than eighty persons in Australia, including a son and my defacto partner of four years, with whom I can reside and who would give any undertakings the Court may require to ensure that, if released, I attend at the hearing of this matter."