Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

MAHRAN BEHROOZ APPELLANT

AND

SECRETARY OF THE DEPARTMENT OF

IMMIGRATION AND MULTICULTURAL AND

INDIGENOUS AFFAIRS & ORS RESPONDENTS

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

[2004] HCA 36

6 August 2004

A255/2003

ORDER

Appeal dismissed. Appellant to pay costs of first respondent.

On appeal from the Supreme Court of South Australia

Representation:

J W K Burnside QC with J P Manetta for the appellant (instructed by Jeremy Moore & Associates)

D M J Bennett QC, Solicitor-General of the Commonwealth, with M A Perry for the first and second respondents (instructed by Australian Government Solicitor)

No appearance for the third and fourth respondents

Intervener

D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

Immigration – Appellant charged with offence of escape by unlawful non-citizen from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) – Appellant sought issue of witness summonses pursuant to Magistrates Court Act 1991 (SA) seeking production of documentary material relating to conditions and complaints about conditions at detention centre – Whether material sought by witness summonses could have assisted appellant in his defence – Whether, by reason of conditions at detention centre, it could be said that appellant did not escape from "immigration detention" within the meaning of the offence.