FEDERAL COURT OF AUSTRALIA

NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 401

CONSTITUTIONAL LAW (CTH) – Migration – Provision requiring unlawful non-citizen to be kept in immigration detention until removal from Australia, deportation or grant of visa – “To avoid doubt” provision prevents release, even by a court, of an unlawful non-citizen unless granted a visa – Validity – Whether direction to court as to the manner in which it is to exercise its jurisdiction.

The Constitution Ch III

Migration Act 1958 (Cth) s 196

Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 considered

Reg v Deputy Governor of Parkhurst Prison [1992] 1 AC 58 cited

Prisoners A – XXX Inclusive v New South Wales (1995) 38 NSWLR 122 cited

VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243 cited

Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 cited

NAMU of 2002, NAMV of 2002, NAMW of 2002 by their Tutor NAMX of 2002, NAMY of 2002 and NAMZ of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 726 OF 2002

BLACK CJ, SUNDBERG and WEINBERG JJ

9 DECEMBER 2002

MELBOURNE (HEARD IN SYDNEY)

On appeal from a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The fourth, fifth and sixth appellants pay the respondents’ costs of the appeal

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1    The appellants are a husband and wife and their four children. One child is 18. The others are younger. The appellants are nationals of Iraq who left that country in 1995. They arrived in Australia in December 1999 from Syria and were placed in immigration detention. The husband’s application for a protection visa was rejected by the Minister’s delegate, whose decision was affirmed by the Refugee Review Tribunal. An application for judicial review of that decision was dismissed: W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860. In July 2002 the appellants applied to the Court under s 39B of the Judiciary Act 1903 (Cth) for a declaration that s 196 of the Migration Act 1958 (Cth) (“the Act”)

“is invalid to the extent that it purports to derogate from the jurisdiction which is vested in the Federal Court of Australia by s 39B of the Judiciary Act 1903 by directing the Federal Court of Australia as to the manner in which it is to exercise that jurisdiction.”

They also sought release from detention. The primary judge ordered that the question raised by the declaration, namely whether s 196 is a valid law of the Commonwealth, be separately determined. His Honour answered the question in the affirmative (see NAMU v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2002] FCA 907). He then dismissed the application.

2    The appellants have appealed to the Full Court on two grounds:

“1.    His Honour erred in holding that s 196(3) of the Act was not invalid to the extent that it purports to derogate from the jurisdiction vested in the Court by s 39B of the Judiciary Act by directing the Court as to the manner in which it is to exercise that jurisdiction.

2.    His Honour erred in holding that s 196(1) was valid when it allows that an unlawful non-citizen may be unlawfully detained in immigration detention.”

The relief claimed included an order that the appellants be released from immigration detention pending the determination of the appeal.

APPELLANTS’ STANDING

3    Section 486C(1) of the Act provides:

“Only the persons mentioned in this section may commence or continue a proceeding in the Federal Court or the Federal Magistrates Court that raises an issue:

(a)    in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens; and

(b)    that relates to the validity, interpretation or effect of a provision of this Act or the regulations;

(whether or not the proceeding raises any other issue).”

The persons mentioned in s 486C include a party to a review referred to in s 479, the Attorney-General of the Commonwealth or of a State or Territory, and a person who commences or continues the proceeding in performing the person’s statutory functions: sub-s (2). The section applies to proceedings in the Court’s jurisdiction under, amongst other provisions, s 39B of the Judiciary Act: sub-s (3). The section has effect despite any other law: sub-s (5).

4    Before the primary judge there was no challenge to the appellants’ standing, and no reference was made to s 486. The potential relevance of the section to the present case was not appreciated until the existence of the section was noted by Gray J in VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243. That case was decided shortly after the present appeal was heard. The Court considered it possible that the section may bar the present proceeding, and invited submissions on the point. The Minister did not challenge the appellants’ standing and adopted their contention that s 486C does not apply because the proceeding does not raise an issue in connection with visas, deportation, or removal from Australia of unlawful non-citizens. Rather, the issue it raises is whether the appellants are validly held in immigration detention. In our view that is the true position. The issue raised does not fall within s 486C(1)(a), and in order for the section to apply, both pars (a) and (b) must be satisfied. Accordingly the section is no bar to the application before the primary judge or to the appeal.

LEGISLATION

5    Section 196 is in Division 7 of Part 2 of the Act – “Detention of unlawful non-citizens”. Division 7 consists of ss 188 to 197. Section 189(1) provides:

“If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”

Section 196 provides:

“(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a)    removed from Australia under section 198 or 199; or

(b)    deported under section 200; or

(c)    granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.”

By s 14 a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. By s 13 a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. Sections 198 and 199 (referred to in s 196(1)(a)) are in Division 8 of Part 2 – “Removal of unlawful non-citizens”. Section 198 deals with the removal from Australia of unlawful non-citizens in the circumstances detailed in sub-ss (1) to (10) thereof. Section 199 deals with the removal of a spouse of an unlawful non-citizen who is removed or is about to be removed. Section 200 (referred to in s 196(1)(b)) is in Division 9 of Part 2 – “Deportation”, and empowers the Minister to order the deportation of a non-citizen to whom the Division applies.

APPELLANTS’ CONTENTIONS

6    The appellants’ contentions in relation to their claim for final relief can be summarised as follows:

•    Section 196(3) is cast in essentially the same terms as was s 54R of the Act considered in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Lim”).

•    Section 196(3) is invalid for the reasons given in Lim for holding that s 54R was invalid.

•    Section 196(3) merely states what is implicit in sub-s (1), and accordingly sub-s (1) is invalid.

•    The adverse consequences to the appellant children go beyond what is reasonably necessary to achieve the object of deterring people from coming to Australia where on arrival they would be unlawful non-citizens, and accordingly is punitive in character, with the result that their continued detention constitutes an exercise of judicial power contrary to Chapter III of the Constitution.

INTERLOCUTORY RELEASE

7    At the conclusion of argument the Court declined to order the appellants’ release pending the determination of the appeal. The Court said:

“The principles to be applied are clear and well-established, and they are set out in the reasons for judgment of Hely J in this very matter when his Honour dealt with a similar application. As his Honour said, where interlocutory relief is sought pending a challenge to the constitutional validity of a statute, the court approaches the question on the basis that the provision that is being challenged is valid unless it is shown to be invalid. The test to be applied is that suggested by Mason CJ in Australian Capital Television Pty Ltd v The Commonwealth (1992) 104 ALR 389 at 393, in which his Honour quoted from his previous judgment in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155-156:

In the absence of compelling grounds it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is judged ultra vires.

Reference is also made to the judgment of Hill J in Artinian v The Commonwealth (1996) 43 ALD 235 at 243 in this Court. If, as Hill J said, and we agree, that is the proper approach for a court to adopt before the determination of a challenge to the validity of the statute, then it is all the more so when the validity of the statute has been upheld by the decision of a judge of the court after a full hearing and now on appeal this court has reserved its decision on that very matter. In these circumstances, the application for interlocutory relief should be dismissed.”

FIRST GROUND OF APPEAL

8    The basis of the attack on the validity of s 196 is the claim that Lim effectively decides that the section is invalid because a majority of the justices held that s 54R was invalid. The relevant provisions of the Act considered in Lim can be summarised as follows. Section 54L(1) required that a designated person be kept in custody. By sub-s (2) a designated person was to be released from custody only if he or she was removed from Australia under s 54P or was given an entry permit. Section 54N provided that if a designated person was not in custody, an officer may detain the person and take reasonable action to ensure that the person was kept in custody for the purposes of s 54L. Section 54P(1) required an officer to remove a designated person from Australia as soon as practicable if the person asked to be removed. By s 54Q(1), ss 54L and 54P ceased to apply to a designated person who had been in application custody for a specified number of days. It is not necessary to set out the definition of “application custody”. Section 54R provided:

“A Court is not to order the release from custody of a designated person.”

The expression “designated person” was defined in s 54K as:

“a non-citizen who:

(a)    has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 December 1992; and

(b)    has not presented a visa; and

(c)    is in Australia; and

(d)    has not been granted an entry permit; and

(e)    is a person to whom the Department has given a designation by:

(i)    determining and recording which boat he or she was on; and

(ii)    giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;

and includes a non-citizen born in Australia whose mother is a designated person.”

9    Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ held that ss 54L and 54N did not infringe Ch III of the Constitution and were valid laws with respect to aliens within s 51(xix) of the Constitution. Gaudron J was of the view that with certain qualifications those sections were valid. Brennan, Deane, Dawson and Gaudron JJ held that s 54R was invalid and could not be read down so as to bring it within legislative power. The section was invalid because circumstances could exist in which a designated person was unlawfully held in custody by a person acting in pursuance of the provisions. Their Honours gave examples: at 35-36. It followed from this possibility that s 54R was invalid. Brennan, Deane and Dawson JJ, with whom Gaudron J agreed, explained why this was so (at 36-37):

“All the powers conferred upon the Parliament by s 51 of the Constitution are … subject to Ch III’s vesting of that judicial power in the courts which it designates, including this Court. That judicial power includes the jurisdiction which the Constitution directly vests in this Court in all matters in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party or in which mandamus, prohibition or an injunction is sought against an officer of the Commonwealth (s 75(v)). A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power and to remove ultra vires acts of the Executive from the control of this Court. Such a law manifestly exceeds the legislative power of the Commonwealth and is invalid. Moreover, even to the extent that s 54R is concerned with the exercise of jurisdiction other than this Court’s directly vested constitutional jurisdiction, it is inconsistent with Ch III. In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred on it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates.”

10    Section 196 lacks the two features that were fatal to s 54R. First, unlike s 54R which by virtue of its reference to “designated person” was capable of sanctioning the detention of persons whose presence in Australia was lawful, s 196 is confined in its operation to “unlawful non-citizens”. As was noted at first instance, it was the ambit of the definition of “designated person” that formed the rationale for the majority’s conclusion in Lim that s 54R was invalid. Secondly, unlike s 54R which purported to preclude a court from ordering the release of a person whose detention was unlawful, s 196 precludes a court from ordering the release of persons who are lawfully detained. No court has power to direct the release of persons who are being lawfully detained, and s 196 does no more than restate this axiomatic position. It does not prevent the court from examining whether a person is an unlawful non-citizen and, if the person is not, ordering his or her release. What a court cannot do is order the release of a person who has been held to be an unlawful non-citizen. The Court’s power to order interlocutory release is considered and confirmed in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390.

11    The other members of the Court in Lim were of the view that, if read literally, s 54R would be invalid, but that it should be read down so as to apply only to persons who were lawfully held in custody. Thus Mason CJ, with whom Toohey J agreed on this point, having identified the circumstances in which a designated person must be released from custody (ss 54P, 54L(2), 54Q(1) and (2)), said (at 11):

“If there were no other circumstances in which a designated person could not be lawfully held in custody under Div 4B, there would be no difficulty in reading down s 54R in the way I have indicated, that is, regarding it as a direction not to release a designated person lawfully detained in custody pursuant to Div 4B . Indeed, it would be a mischievous interpretation to read s 54R literally when the plain intention of Parliament, as manifested by the particular provisions to which I have referred, is that a designated person should be released from custody in the situations with which those provisions deal.”

His Honour then noted that there were other circumstances in which a designated person might not lawfully be detained. He said that the fact that Parliament may not have appreciated that in some circumstances lawful authority for continued detention of a designated person would terminate, was not a reason for giving s 54R a literal interpretation. His Honour was of the view that the section should be qualified “so as to require the Court not to order the release of a designated person held in lawful custody under Div 4B” (at 12). As we have said in [10], s 196 has built into it the qualification Mason CJ would have imposed on s 54R to assure its validity.

12    McHugh J was of the same opinion as Mason CJ. His Honour said (at 69):

“… notwithstanding the form of the section, the evident purpose of s 54R is plain enough. It is to ensure that the effect of the provisions of Div 4B is not frustrated by orders of the courts. Accordingly, s 54R should be construed so as to give effect to that purpose. It should be read as applying only to applications seeking orders of release from custody of those persons who are lawfully detained pursuant to the other provisions of Div 4B. When it is so read, s 54R does not direct a court exercising federal jurisdiction not to give effect to substantive rights.”

13    When one compares the statutory regime considered in Lim with that applicable to the present case, it is clear that Parliament has constructed the latter so as to avoid the features of the former that led to the invalidity of s 54R. Section 196 is drafted in a form that all justices in Lim said would be valid. Far from making the appellants’ case, Lim destroys it. Section 196(3) does not direct this Court as to the manner in which it is to exercise its s 39B jurisdiction. No fetter is imposed on the Court’s ability to determine whether a person in detention is in fact an unlawful non-citizen, and if it finds he or she is not, to order the person’s release. The appellants’ first ground of appeal fails.

SECOND GROUND OF APPEAL

14    The second ground attacks s 196(1) because it “allows that an unlawful non-citizen may be unlawfully detained in immigration detention”. We were told by the appellants’ counsel that this ground is directed to the following passage in the reasons of the primary judge:

“The issue of validity cannot, in the constitutional sense, depend upon conditions which may be personal to a particular applicant. Such factual matters are not constitutional facts, to be taken into account in determining the validity of a provision such as s 196, because they cannot affect the characterisation of the statutory authority to detain, under a rule incidental to the executive power to process visa applications and to deport and thus being a law which does not authorise a punitive or penal detention.”

The factual matters to which the primary judge referred relate to the effect that immigration detention has had on the detained children. His Honour had before him the report of a clinical psychologist to the effect that all the children have suffered psychological disturbances as a result of their detention, that their mental state continues to deteriorate, and that in the case of two of them there is a severe risk of self harm and suicide if they remain in detention. Counsel submitted that to place children in such a position goes beyond what is reasonably necessary to effect the purpose of immigration detention, which he said was to deter persons who would on entry to Australia be unlawful non-citizens from coming to Australia. Reliance was placed on the observation of McHugh J in Lim (at 71) that when detention for a legitimate non-punitive purpose goes beyond what is necessary to achieve that purpose “it will be regarded as punitive in character”. A law authorising such detention “might be invalid because it infringed Ch III” of the Constitution (at 66).

15    McHugh J (at 71) concluded that in enacting Div 4B Parliament was not depriving designated persons of the right to apply to the Court for an order that they be released from detention in order to punish them, but rather to ensure that they can be supervised and controlled pending the determination of their applications for entry. His Honour was of the view (at 73-74) that the circumstances that pertained to the particular plaintiffs in Lim, namely the considerable length of time they had spent in detention, did not operate to convert non-punitive detention into detention for a punitive purpose.

16    The factual consequences of immigration detention for the mental health of an individual detainee cannot, in our view, render s 196(1) invalid on the ground that those consequences evince an intention to detain for the purpose of punishing those who are detained. Despite the effect that detention may have on the mental health of the detained child appellants, the non-punitive purpose of detention pursuant to s 196(1) is not displaced by that effect. If a punitive purpose is to be found, it must be discovered from the legislative structure of the regime for detention rather than from the consequences of the detention on individual detainees. Decisions in more general contexts that conditions of imprisonment are not relevant to the legality of the imprisonment, support this conclusion. See Reg v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 165-166 and Prisoners A – XX Inclusive v New South Wales (1995) 38 NSWLR 622 at 633. In Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 a Full Court dealt with a contention that a detained person’s continued detention pending deportation was unlawful because it amounted to the exercise of the Minister’s power to detain for punitive purposes. The Court rejected the contention, saying that the fact of continued detention “does not, of itself, indicate anything about the respondent’s purpose … in retaining [the appellant] in immigration detention” (at [76]).

17    A distinction, on humanitarian grounds, between the detention of children and adults does not displace the legislative purpose behind s 196(1), namely to ensure that detainees are available for deportation or removal from Australia when that is required by the Act. That purpose is as applicable to children such as the appellant children as it is to adults who are unlawful non-citizens. The general application of the statutory regime cannot, even in combination with the apparent consequences of immigration detention for the mental health of specific detainees, support a conclusion that s 196(1) goes beyond what is necessary to achieve its non-punitive purpose.

18    The consequences of the appellants’ contentions are far reaching. As was pointed out in the course of argument, if sound, the submission would mean that any person in immigration detention who genuinely indicated a willingness to commit suicide as a consequence of the detention would be entitled to immediate release because she or he would thereupon become unlawfully detained.

19    Since we have concluded that the factual consequences of detention for a particular individual do not operate to render s 196(1) invalid, we need not consider whether the primary judge erred in saying that those consequences are not to be taken into account in determining whether s 196 is valid because they are not constitutional facts. As to the distinction between constitutional facts and ordinary facts in dispute between parties, see Breen v Sneddon (1961) 106 CLR 406 at 411 per Dixon CJ.

CONCLUSION

20    The appeal must be dismissed.

Associate:    

Dated:        9 December 2002