FEDERAL COURT OF AUSTRALIA

MIGRATION LAW – lawfulness of detention of deportee following term of custody by State authority – interaction of ss 253 and 254 of the Migration Act 1958 (Cth) – whether detention effected under s 253 – whether there is power to detain after giving a notice under s 254(2)

Administrative Decisions (Judicial Review) Act 1977 (Cth): s 5, s 11(1)(c)

Judiciary Act 1903 (Cth): s 39B

Migration Act 1958 (Cth): s 5(1), s 200, s 201, s 209, s 253, s 254

McCafferty v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 275

Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, Lehane J, 2 October 1998)

Meng Kok Te v Minister for Immigration and Ethnic Affairs (unreported, Branson J, 18 October 1998)

Halmi v Minister for Immigration and Multicultural Affairs (unreported, Wilcox J, 29 January 1998)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Haining v Deputy President Drake & Ors (unreported, Full Court of the Federal Court, 17 September 1998)

CHI DUNG DANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and GOVERNOR OF PORT PHILLIP PRISON

VG 412 of 1998

KENNY J

MELBOURNE

20 NOVEMBER 1998

THE COURT ORDERS THAT:

1.                  The time allowed for lodging the application for an order of review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is extended to 25 August 1998.

2.                  The application is dismissed.

3.                  The applicant is to pay two thirds of the first respondent’s costs of the application including reserved costs.

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

REASONS FOR JUDGMENT

By an amended application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), the applicant sought review of a number of decisions made by the first respondent (or his delegate) upon various grounds.  Upon the hearing of the application, however, the applicant limited his challenge to the first respondent’s decision to transfer him to “immigration detention” under the Migration Act 1958 (Cth) (“the Act”).  He alleged that the decision was unlawful because it was not authorised by s 253 or s 254 of the Act.  Applicant’s counsel put his case in various ways: I deal in turn with those ways in what follows.  There was no appearance by the second respondent, who had earlier indicated to the Court that he did not want to take any active part in the proceeding.

The applicant filed an affidavit sworn by him on 24 August 1998 in support of his amended application.  The respondent filed three affidavits in opposition, two affidavits sworn by his solicitor, Ms Elizabeth Lee, on 27 August and 2 September 1998 respectively and an affidavit sworn by Mr Nicholas Neary on 3 September 1998.  In written submissions, the applicant took objection to passages in Ms Lee’s affidavit of 27 August but, as it turns out, those passages have not proved relevant to any matter now in issue.

The facts relevant to the amended application can be briefly stated.  The applicant was born in Vietnam on 29 January 1968 and is a Vietnamese national.  He entered Australia on 14 July 1981, having been granted permanent resident status prior to entry.  On 26 August 1990 he committed an offence (possession of a drug of dependence, namely, heroin).  He was convicted in the County Court on 23 July 1991 and sentenced to 18 months’ imprisonment.  At the time the offence was committed he had been in Australia as a permanent resident for less than 10 years. 

The applicant was convicted of further offences in subsequent court appearances.  It suffices to say that on 27 May 1997 he was again convicted in the County Court of certain drug related offences and received a total effective sentence of 45 months’ imprisonment in respect of them.  A non-parole period of 15 months was fixed.  There was a declaration as to a period of pre-sentence detention.

On 28 November 1997 a delegate of the first respondent exercised the power conferred by s 200 of the Act to order that the applicant be deported from Australia on the basis that the matters set out in s 201 had been satisfied.  In so doing, the delegate relied on the conviction and sentence for the offence committed on 26 August 1990.  On 24 February 1998, whilst he was still a prisoner in Fulham Prison, the applicant was provided with a facsimile copy of a letter dated 24 February 1998 which relevantly read as follows:

Mr DANG Chi Dung

By Hand

Dear Mr Dang,

I am writing to inform you that after considering your case on 28 November 1997 (a delegate of) the Minister responsible for administering the Migration Act 1958 (the Act) made a deportation order under section 200 of the Act against you.

A certified true copy of that order is attached to this letter for your retention.

The custodial authorities have also been informed of the decision to deport you.

You will be deported as soon as possible after you complete the custodial portion of your sentence of imprisonment on 24 February 1998.  If it is not possible to deport you then, you will be transferred to immigration detention under section 253 of the Act while arrangements are made for your deportation.  This transfer is authorised by section 254 of the Act.  It is then likely that you will continue to be detained at a state/territory custodial institution until your deportation from Australia. 

You should note that with effect from the date of your possible transfer to immigration detention, you will become liable for the cost of your maintenance in detention.  A notice detailing the liabilities of deportees in respect to maintenance in immigration detention and deportation expenses is attached.

…

Christina Santos

Criminal Deportation Unit

24 February 1998

Documents headed “Acknowledgment of notification of deportation” and “Notice of removal and maintenance costs” were attached to Ms Santos’s letter.  Neither was signed by the applicant.  In the affidavit sworn by him in support of his amended application, he deposed that he did not see Ms Santos or any other representative of the first respondent on 24 February 1998.  That statement was not contested by the first respondent.

Also on 24 February but some time after the receipt of Ms Santos’s letter, the applicant was placed on parole.  He was not, however, released from prison.  Apparently Ms Santos sent another document by facsimile on 24 February.  That was a document addressed to the Governor of Fulham Prison and headed “Section 253   Direction to hold in Custody”.  It was in the following terms:

To the Governor

Fulham Prison

Sale Vic

I, Christina Santos, a delegate of the Minister for the purposes of subsection 253(8) of the Migration Act 1958 do HEREBY DIRECT you to hold in custody the person whom I reasonably suspect to be DANG Chi Dung a person against whom a valid deportation order is presently in force and who is to be detained in DIMA custody on completion of his custodial sentence pursuant to section 253 of the said Act.

Dated this 24^th day of February 1998

Christina Santos

Delegate of the Minister for the purposes of subsection 253(8) of the Migration Act 1958

On 3 March 1998 Ms Santos sent a further letter to the applicant by facsimile, to advise him that he would continue to be held in prison and would not be transferred to an Immigration Detention Centre.  On 4 March 1998 Ms Santos sent another “Section 253   Direction to hold in Custody” to the Governor of Port Phillip Prison (to which the applicant had apparently been removed).  Save for the date and addressee, that Direction was identical in terms to that sent to the Governor of Fulham Prison.

The applicant challenged the deportation order which the first respondent had made against him by application to the Administrative Appeals Tribunal on 13 March 1998.  The applicant instituted the present proceeding in this Court on 25 August 1998.  The Administrative Appeals Tribunal set aside the deportation order on 17 September 1998 and the applicant was released from detention.

Presumably it was for this reason that at the hearing of the application the applicant limited the relief he sought to a declaration to the effect that he had not been lawfully detained in immigration detention under either s 253 or s 254 of the Migration Act 1958.  The declaration was sought, counsel said, to prevent the applicant bearing the burden of the costs of his detention, a burden imposed in respect of immigration detention by virtue of s 209 of the Act.

The applicant’s primary submission was that his detention (at Fulham and Port Phillip Prisons) on and after 24 February 1998, when he had been granted parole, was not authorised by s 253 or s 254 of the Act and that, as he could not be lawfully detained other than under those provisions, that detention was unlawful.

The decision challenged by the applicant was not one of the “judicially reviewable decisions” described in s 475 of the Act and, in consequence, s 485, limiting the jurisdiction of the Court, has no application.

The applicant, by his counsel, sought by a number of routes to make good his submission that his detention had been unlawful.  First, the applicant’s counsel contended that where a person was a person to whom s 254 applied, s 253 had no application.  Section 254 is in the following terms:

(1)     This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.

(2)     The Secretary may give the person written notice:

(a)    if the person is a deportee:

(i)         stating that a deportation order has been made; and

(ii)       setting out particulars of the deportation order; and

(b)    if the person is a removee – stating that the person is to be removed; and

(c)     in any case – stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the “custody transfer time”), the person will be kept in immigration detention.

(3)     Where a deportee is given notice under subsection (2), this Act (other than subsections 253(1) and (3)) applies in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time.

Plainly enough, the applicant was a person to whom s 254 applied.  Counsel for the applicant submitted that the conclusion that s 254 covered the field in relation to such a person followed from the fact that s 254 was specifically expressed to apply “if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under [the] Act”.

The specificity of s 254, directed as it was to the situation where a deportee (or removee) was already in State (or Commonwealth or Territory) custody otherwise than under the Act, was, so the argument ran, to be contrasted with the generality of s 253.  Section 253 relevantly provides:

(1)    Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the office reasonably supposes to be that person.

(2)    A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).

(3)    Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.

…

(8)    A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:

(a)     pending deportation, until he or she is placed on board a vessel for deportation;

(b)     at any post or place in Australia at which the vessel calls after he or she has been placed on board; or

(c)      on board the vessel until its departure from its last port or place of call in Australia.

(9)    In spite of anything else in the section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.

…

The applicant by his counsel submitted that unless the first respondent could justify the applicant’s detention under s 254 of the Act, that detention was unlawful.  The applicant’s detention could not be supported by s 253, so the applicant submitted, because the operation of s 253 with respect to him was excluded by s 254, which, properly construed, dealt exhaustively with any person to whom s 254 applied.

Counsel for the first respondent sought to meet the applicant’s primary submission by contending that the first respondent had proceeded under s 253 and not s 254.  In making that contention, counsel relied upon Mr Neary’s affidavit (of 3 September 1998) sworn in his capacity as Manager of the Criminal Deportation Unit.  Mr Neary deposed that he was Ms Santos’s supervisor and that, sometime before 24 February 1998, he had directed staff under him to change letters and notices “on their personal H drive on their computers to reflect the contents of [a] minute” (from the Acting Director, Enforcement and Investigation Section, Canberra) to the effect that “arrests and detention of criminal deportees should be made pursuant to section 253 of the Migration Act 1958”.  He further deposed that the reference to s 254 in Ms Santos’s letter to the applicant of 24 February was a typographical error.  Counsel for the first respondent also relied on the fact that the “Direction to hold in Custody”, sent to the Governor of Fulham Prison, was expressed as made pursuant to s 253 by a delegate of the first respondent “for the purposes of subsection 253(8) of the Migration Act 1958”.  (If it matters, Ms Santos used precisely the same language in sending the later “Direction to hold in Custody” to the Governor of Port Phillip Prison.)

At one point, I understood counsel for the applicant also to contend, though for a different reason, that the first respondent had exercised the power conferred by s 253 and not s 254 in making the decision under challenge.  If this was so, then, so the applicant’s counsel argued, the applicant’s detention had not been effected by “an officer” within the meaning of the Act.  In consequence, the power conferred by s 253(1) had not, so he contended, been exercised by a person upon whom that power was conferred.  For the reasons set out below, I reject the basis of this contention, namely, that the first respondent acted under s 253 and not s 254.  If, as I find, the first respondent acted pursuant to s 254, then the applicant’s detention was continued by operation of the Act:  see s 254(2) – (3) and s 253(2) and (8); also Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, 2 October 1998) at page 8 per Lehane J and McCafferty v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 275, at 281 per Davies J.

As I have already indicated, I am not persuaded that the decision under challenge was made under s 253 rather than s 254.  The letter to the applicant of 24 February 1998 specifically stated that the applicant’s transfer to immigration detention under s 253 was “authorised by section 254”.  It was written in terms which met the requirements of s 254(2) of the Act.  That is, by that letter the applicant was informed (1) that a deportation order had been made against him (a copy being attached to the letter); and (2) that after completing the custodial portion of his sentence (when he would “otherwise be entitled to be released from … custody”) he would be kept in immigration detention “while arrangements [were] made for [his] deportation”.  The statement in that letter that the applicant was to be transferred to immigration detention under s 253 was consistent with Ms Santos’s giving notice under s 254(2) in that, by reason of the notice, s 254(3) operated to make s 253(2) and s 253(8) applicable to the applicant.  Indeed, a notification in similar terms was treated as a notice under s 254(2) in Meng Kok Te v Minister for Immigration and Ethnic Affairs (unreported, 16 October 1998) page 5 per Branson J, although the Minister did not contend to the contrary in that case.  In my view, Ms Santos’s letter of 24 February constituted a notice of the kind referred to in s 254(2).  I am not persuaded that it was intended by Ms Santos to be otherwise.  The letter was not written in terms which betokened reliance on s 253(3).  Neither party contested Ms Santos’s authority to give a notice under s 254(2) on behalf of the Secretary. 

Having regard to the reasons set out below, I consider that the terms of the “Section 253  Direction to hold in Custody” are consistent with the view that the first respondent (by his delegate) issued the Direction in reliance on s 254(3) and s 253(8):  the Direction was properly made pursuant to s 253(8) because once a notice had been given under s 254(2), s 254(3) rendered s 253(2) and s 253(8) applicable to the applicant. 

For the reasons set out above, I find that on 24 February 1998 the applicant was given a notice pursuant to s 254(2) and that the decision under challenge was made in reliance on s 254 and so much of s 253 as was relevant and made applicable to the applicant by s 254(3).  Prior to his being placed on parole, the applicant was, on 24 February 1998, a “deportee” as defined in s 5(1) of the Act and “in the custody of an authority of a … State” otherwise than under the Migration Act 1958.  It was for that reason that s 254 was applicable to him.  The consequence was that s 254(2) operated to confer on the Secretary (or a person duly authorised by him) power to give the applicant a notice of the kind mentioned in s 254(2), and, when this was done, s 254(3) applied.

In a short submission in reply, the applicant by his counsel attacked the form of the notice constituted by the letter of 24 February 1998.  He submitted that the Act required the giving of an unconditional notice.  A notice which relevantly said:

You will be deported as soon as possible after you complete the custodial portion of your sentence of imprisonment on 24 February 1998.  If it is not possible to deport you then, you will be transferred to immigration detention under s 253 of the Act while arrangements are made for your deportation

did not, it was argued, comply with the Act.  I reject this submission.  The letter stated, as it was required to do, that a deportation order had been made against the applicant.  Pursuant to s 206(1), unless the Minister revokes the order, the applicant is to be “deported accordingly”.  As Davies J said, however, in McCafferty’s Case (1995) 61 FCR 275, at 281:

The word “accordingly” does not mean instantly or even promptly.

…

The provision simply casts a duty upon appropriate persons to see that the Minister’s order for deportation is carried out.  In the exercise of that duty, the appropriate persons have an element of discretion as to when and how the deportation is effected … .

The notice given by the letter of 28 February 1998 correctly reflected that position.

Also in reply, the applicant’s counsel attacked the form of the “Section 253  Direction to hold in Custody” upon the basis that it asserted only that Ms Santos held a “reasonable suspicion” and not a “reasonable supposition” that the applicant was a person the subject of a deportation order which was in force.  He submitted that the need to set out in such a direction the existence of a reasonable supposition rather than a reasonable suspicion flowed from the terms of s 253(1).  That provision permitted an officer to detain “a person whom the officer reasonably supposes to be” the subject of such an order.  But if (as I find) the first respondent gave notice under s 254(2) with the result that s 254(3) was brought into operation, there is, in my opinion, no basis for this submission.  That is because s 253(1) was rendered inapplicable in relation to the applicant by virtue of s 254(3).

Having regard to the foregoing, it is not strictly necessary to determine whether, as counsel for the applicant submitted, s 254 operates in circumstances such as these to preclude resort to the power to detain conferred by s 253(1).  As this aspect of the matter was argued in some detail, however, I state briefly why I reject that submission.

Section 254 is, it appears, consistent with the practice and policy of the first respondent and his predecessors in office that deportation orders are not ordinarily enforced against a deportee who is serving a sentence of imprisonment until his or her release upon the expiry of the sentence or upon parole:  cf.  McCafferty (1995) 61 FCR 275, at 276-7 and Tuiletufuga (unreported, 2 October 1998) at page 10 per Lehane J.  A copy of Migration Series Instruction No. 168 (“Non Citizens Held in Prison Liable for Enforced Departure”) was exhibited to Mr Neary’s affidavit.  That Instruction confirmed the practice and policy of the first respondent in this regard:  see paragraph 2, page 2 of exhibit NN3.  If the submission made by the applicant’s counsel was accepted, that practice and policy has become mandated by the Act.  The first respondent, being unable to exercise the power conferred by s 253(1) against a deportee incarcerated in a State prison for breach of the criminal law, would be able only to give a notice under s 254(2).  For most practical purposes, in giving such a notice, the first respondent notifies the deportee that he is to be deported on the expiry of his sentence or on parole and, in any event, not before he is otherwise entitled to be released from prison.  I do not think that the conclusion for which the applicant contends is required by s 254:  cf Tuiletufuga, pp 10 – 12.  I should require more to appear from the Act before I would be persuaded that s 254 was intended to transform a practice and policy of this kind into a legally-mandated requirement.  Subsection 254(3) specifically sets out the occasion upon which part of s 253 is rendered inapplicable.  This is strongly indicative of it being Parliament’s intention that upon that occasion the remainder of s 253 is capable of application and that unless that occasion arises the whole of s 253 can apply.

Counsel for the applicant further submitted that the applicant’s detention was unlawful even if the Court was persuaded (as I am) that, by her letter to the applicant of 24 February 1998, Ms Santos had proceeded under s 254 by delivering a notice pursuant to s 254(2).  In support of this submission counsel referred to Halmi v Minister for Immigration and Multicultural Affairs (unreported, 29 January 1998; [1998] 50 FCA).  In Halmi’s case, Wilcox J held that a deportee who was given notice under s 254(2) of the Act cannot be detained under s 253(1) or any other provision of the Act.  As the first respondent pointed out, Lehane J, in Tuiletufuga,and Branson J, in Meng Kok Te, have since held that s 254(3), in conjunction with s 253(2), provide the requisite power to keep in detention a deportee to whom a notice under s 254(2) has been given.  I agree.  When a notice has been given under s 254(2), then, by virtue of s 254(3), the entirety of the Act, save for s 253(1) and (3), applies “in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time”.  Subsection 253(2), expressed to apply to a person detained under subsection 253(1), is, therefore, applicable to the deportee.  Subsection 253(2) confers power to keep such a deportee “in immigration detention or in detention as a deportee in accordance with” s 253(8).  Subsection 253(8) authorises the deportee to be kept “in immigration detention or such detention as the Minister or Secretary directs”.  As Branson J said in Meng Kok Te, at page 6, “The effect of s 254(3) of the Act … is that where a deportee is given notice under s 254(2), s 253(2) of the Act applies in relation to the deportee as if he or she had been detained under s 253(1) at the custody transfer time”.

It follows from the foregoing that I am not persuaded that any of the grounds raised by the applicant are made out and that I would dismiss the amended application for review.

There remains the question (strictly the first to arise) whether it is appropriate to grant an extension of time in which to lodge the application for review.  Some relevant considerations are referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.  See, more recently, on a like question, Haining v Deputy President Drake & Ors (unreported, Full Court of the Federal Court, 17 September 1998) page 4.  The applicant claimed that he had made the application for review as soon as his legal advisers became aware of the decision of Wilcox J in Halmi’s Case.  As previously noted, judgment in that case was delivered on 29 January 1998 and application for review was made on 25 August 1998.  The first respondent declined to assert that he would suffer prejudice if an extension of time were granted.  Although I have come to reject the grounds relied upon by the applicant at the hearing of the application, I do not consider that the application had such little merit that, for that reason alone, I should decline to grant an extension of time.  There was, plainly enough, some delay between the delivery of judgment in Halmi’s Case andthe lodging of the application for review.  In an affidavit sworn 26 August 1998 in support of the extension of time, the solicitor for the applicant deposed that he had not become aware of that decision until 17 August 1998.  In all the circumstances, I would extend the time in which to lodge the application for review until 25 August 1998 when the application was in fact made. 

Associate:

Dated:              20 November 1998