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

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

Temporary unescorted absence from prison under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) is not the custody transfer time contemplated by s.254(2)(c) of the Migration Act 1958 (Cth). The 20 August 1993 Direction to hold in custody did not satisfy s.254 because it was not directed to Mr McCafferty and was not expressed in terms consistent with that section. As the applicant's reclassification to Category C1 was affected by the misunderstanding that s.254 prevented pre-parole leave, it was set aside and remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
21 December 1995
Procedural Posture
Proceedings Seeking Orders and Declarations Concerning Deportation, Immigration Detention Notice, Prison Classification and Pre Parole Leave / Reasons for Judgment and Final Orders After Hearing
Outcome
Application allowed in part; declaration made; direction and reclassification set aside; matters remitted; costs ordered against the Minister.
Legal Topics
['deportation Order' 'pre Parole Assessment' 'short Term Leave From Prison' 'custody Transfer Time' 'immigration Detention' 'prisoner Classification']
['migration Law' 'administrative Law' 'prisons and Corrections Law'] ['deportation Order' 'pre Parole Assessment' 'short Term Leave From Prison' 'custody Transfer Time' 'immigration Detention' 'prisoner Classification']

Case Brief

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Procedural Posture

Proceedings Seeking Orders and Declarations Concerning Deportation, Immigration Detention Notice, Prison Classification and Pre Parole Leave / Reasons for Judgment and Final Orders After Hearing

Legal Issues

  1. 1 ['Whether implementation of an order permitting unescorted absence from prison under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) constitutes a custody transfer time for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth).' 'Whether the Direction to hold in custody dated 20 August 1993 satisfied the requirements of s.254 of the Migration Act 1958 (Cth).' "Whether the applicant's reclassification as a Category C1 prisoner should be set aside because it was affected by a misunderstanding of s.254 of the Migration Act 1958 (Cth)." 'Whether s.206(1) of the Migration Act 1958 (Cth) required immediate arrest or deportation when a prisoner subject to a deportation order was outside gaol on leave.']

Ratio Decidendi

Temporary unescorted absence from prison under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) is not the custody transfer time contemplated by s.254(2)(c) of the Migration Act 1958 (Cth). The 20 August 1993 Direction to hold in custody did not satisfy s.254 because it was not directed to Mr McCafferty and was not expressed in terms consistent with that section. As the applicant's reclassification to Category C1 was affected by the misunderstanding that s.254 prevented pre-parole leave, it was set aside and remitted for reconsideration.

Court Disposition

Application allowed in part; declaration made; direction and reclassification set aside; matters remitted; costs ordered against the Minister.

Orders

  • ["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...