Truong, Hoang Van v Minister for Immigration and Ethnic Affairs & Ors [1995] FCA 1083

Truong, Hoang Van v Minister for Immigration and Ethnic Affairs & Ors [1995] FCA 1083

Because day leave under s.29 of the Prisons Act 1952 (NSW) was refused following incorrect advice by the Department of Immigration & Ethnic Affairs as to the operation of the Migration Act 1958 (Cth), and because unescorted absence under ss.29(1) or 29(2)(a) or (b) is not a "custody transfer time" for s.254(2)(c) of the Migration Act 1958 (Cth), the matter was to be remitted to the Commissioner of Corrective Services for reconsideration.

Jurisdiction
Australia
Judgment Date
21 December 1995
Procedural Posture
Federal Court Proceeding Concerning Refusal of Day Leave Under S.29 of the Prisons Act 1952 (nsw) and a Notice Under S.254 of the Migration Act 1958 (cth) / Final Judgment and Orders
Outcome
Declaration made; matter remitted to the Commissioner of Corrective Services for reconsideration; first respondent ordered to pay the applicant's costs; respondents to abide their own costs.
Legal Topics
['day Leave' 'unescorted Absence From Prison' 'custody Transfer Time' 'remittal for Reconsideration' 'costs']
['administrative Law' 'immigration Law' 'prisons and Corrections'] ['day Leave' 'unescorted Absence From Prison' 'custody Transfer Time' 'remittal for Reconsideration' 'costs']

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Procedural Posture

Federal Court Proceeding Concerning Refusal of Day Leave Under S.29 of the Prisons Act 1952 (nsw) and a Notice Under S.254 of the Migration Act 1958 (cth) / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether implementation of an order under ss.29(1) or 29(2)(a) or (b) of the Prisons Act 1952 (NSW) permitting unescorted absence from prison constitutes a "custody transfer time" for the purposes of s.254(2)(c) of the Migration Act 1958 (Cth).' 'Whether the refusal of day leave under s.29 of the Prisons Act 1952 (NSW), following incorrect advice by the Department of Immigration & Ethnic Affairs as to the operation of the Migration Act 1958 (Cth), should be remitted for reconsideration.']

Ratio Decidendi

Because day leave under s.29 of the Prisons Act 1952 (NSW) was refused following incorrect advice by the Department of Immigration & Ethnic Affairs as to the operation of the Migration Act 1958 (Cth), and because unescorted absence under ss.29(1) or 29(2)(a) or (b) is not a "custody transfer time" for s.254(2)(c) of the Migration Act 1958 (Cth), the matter was to be remitted to the Commissioner of Corrective Services for reconsideration.

Court Disposition

Declaration made; matter remitted to the Commissioner of Corrective Services for reconsideration; first respondent ordered to pay the applicant's costs; respondents to abide their own costs.

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...