FEDERAL COURT OF AUSTRALIA

Vo v Minister for Immigration & Multicultural Affairs [2000] FCA 803

IMMIGRATION – immigration detention pending deportation – length of detention does not of itself affect validity of detention.

Migration Act 1958 (Cth)

Perez v Minister for Immigration and Multicultural Affairs (1999) 943 FCR 287

Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

KIET TUAN VO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 56 OF 2000

JUDGES:       BEAUMONT, MATHEWS & EMMETT JJ

DATE:            15 JUNE 2000

PLACE:          SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed, with costs.

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:

1                     The Migration Act 1958 (Cth) (“the Act”) provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies (s 200).  This provision applies to certain persons present in Australia for less than ten years who are convicted of certain crimes (s 201).  Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person (s 253(1)).  A person detained may be kept in detention as a deportee (s 253(2)).  A deportee may be kept in immigration detention, or such detention as the Minister or Secretary directs, pending deportation, until placed on board a vessel for deportation (s 253(8)).  The Minister or the Secretary may at any time order the release of a person who is in detention under s 253(9).

2                     By a deportation order of the Minister’s delegate dated 20 August 1997 made in respect of the appellant, it was recited that the appellant was not an Australian citizen;  that on 30 June 1994, the appellant was convicted of the offence of armed robbery, which was committed on 27 December 1993, for which he was sentenced to a minimum term of imprisonment of four years with an additional term of three years;  and that at the time he committed the offence, the appellant was not an Australian citizen and had been present in Australia for less than ten years. It was ordered, pursuant to s 200, that the appellant be deported from Australia.

3                     The question of detention of the appellant as a deportee under s 253 was considered by the Department of Immigration and Multicultural Affairs (“the Department”) in a minute dated May 1998.  The minute noted that the appellant was due to be considered for parole on 9 June 1998.  The minute recommended that the appellant be detained and that he not be transferred from State prison to the Immigration Detention Centre.  His continued custody, and the place of his detention were to be reviewed on a monthly basis.  The recommendations of detention and non-transfer were approved by the Department’s Regional Manager on 29 May 1998.

4                     On 18 June 1998, the date when the appellant became eligible for parole, an immigration officer within the meaning of the Act made a request in writing under s 5 of the Act to the Governor, Metropolitan Remand & Reception Centre, requesting that the appellant be held at the Centre (or any other facility of the New South Wales Department of Corrective Services), being a place of immigration detention, from that date.

5                     By letter to the Department dated 16 July 1999, the appellant applied to be released from immigration detention on the ground that the Vietnamese Government was not interested in allowing him to enter Vietnam.

6                     The application was considered in a Departmental minute dated July 1999 as follows:

“REVIEW OF PLACE OF DETENTION – Kiet Tuan VO – Criminal Deportee

Mr Vo has been held in immigration detention pursuant to Section 253 of the Migration Act 1958 since 18 June 1998 when he completed a sentence of criminal detention.  On 29 May 1998 it was decided that he was unsuitable for the Immigration Detention Centre (IDC) and that he remain in the gaol system (folios 17-20).

On 5 June 1998 the Federal Court affirmed the AAT’s decision to affirm the deportation order.  The decision record is held at folios 22-28.  On 28 August 1998 Mr Vo made an application for release to the Federal Court.  This application was later dismissed on 9 December 1998.

Mr Vo’s place of detention was last reviewed on 16 June 1999 where you agreed with the recommendation that his current custody arrangements be maintained (folio 58).

On 16 July 1999 the Department received correspondence from Mr Vo requesting release from immigration detention (folios 74 & 73).  In light of this request Mr Vo’s immigration detention needs to be reviewed by you at this time.

Throughout his immigration detention Mr Vo has been visited by departmental officers on a regular basis.  He is currently held at the MRRC, Silverwater.

Mr Vo has lodged a complaint with the United Nations regarding his deportation and detention.  Mr Vo’s files have been referred to the Character Section in respect of this complaint.

Arrangements are currently being made for the issue of a travel document in order to effect Mr Vo’s deportation.

Taking into account the previous detention submission addressing the question of Mr Vo’s custody and decision regarding his unsuitability for transfer to the IDC, it is submitted that Mr Vo’s current custody arrangements should be maintained.”

7                     The recommendation in the minute was approved by the Department’s Regional Manager on 21 July 1999.

8                     The appellant instituted proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 seeking, relevantly, review of the decision dated 21 July 1999 to continue to detain him under s 253.  The grounds of the application were, in essence, that the Minister’s delegate failed to give sufficient weight to the length of time the appellant would spend in detention while waiting for the deportation order to be carried out, because of unreasonable delays in negotiations between the Australian and Vietnamese Governments on the matter of his entering into Vietnam.

9                     A Judge of the Court dismissed the application.  The appellant now appeals from this judgment.

10                  The appellant’s first ground of appeal is that the primary Judge erred in holding that the detention should be regarded as having taken place “pending deportation” within the meaning of s 253(8).  The appellant relies upon observations, made obiter, by Madgwick J in this connection in Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287.

11                  In Perez, the applicant before the Administrative Appeals Tribunal was still serving a term of imprisonment when the Tribunal decided the matter, and there was evidence from which it might have been concluded that the deportation to Cuba would be effected “within some reasonable period” (at 293).  Thus the present question did not then arise for decision and, in fact, the application was dismissed.  However, Madgwick J had earlier made some general observations in the present area.  His Honour first noted the provisions of s 206 in this connection, that is to say, where the Minister makes a deportation order, the person shall, unless the Minister revokes the order, be deported (s 206(1));  and the validity of a deportation order shall not be affected by any delay in its execution (s 206(2)).  Madgwick J then referred to the rules of statutory construction presuming that fundamental common law and human rights are not to be abrogated and that Australia’s international obligations will be observed (at 290) –  and said of ss 253(8) and (9) (at 293):

“Subsections (8) and (9) must be read with the foregoing principles in mind.  In subs (8) there is, in the context of the subject matter, a clear implication that there must be a real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future.  Likewise, subs (9) is not intended to be a dead letter but the active source of the Minister's power to prevent injustice.  In an appropriate case, the Minister will have a duty to act under that subsection:  see, in a different context, Luu v Renevier (1989) 91 ALR 39 and Minister for Immigration and Multicultural Affairs v Singh (1997) FCR 553; see also Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Dhiman v Minister for Immigration and Multicultural Affairs [1999] FCA 1291.

On a different view, s 253 of the Act may operate to diminish, or even to extinguish, the force of the interpretation to which I have referred in respect of ss 200 and 201;  it may be said that the foregoing interpretative considerations ought to apply only to s 253 and not to ss 200 and 201 at all.  Whatever the effect on the validity of a deportation order of the likelihood of indeterminate detention consequent upon such an order, such likelihood is, in my opinion, clearly an important matter affecting the merits of a decision to make such an order.  All the above considerations, both as to delay in itself and as to possible invalidity of the deportation order on account of likely indeterminate detention, are relevant to the merits, indeed more so.”

12                  Whilst we respectfully agree with his Honour that these matters go to the merits of a decision under s 253(9) considering whether to release a deportee, we cannot accept that the length of detention can of itself destroy the legal validity of the detention.  In our view, the statutory scheme is explicitly to the contrary:  as has been noted, s 206(2) squarely addresses the question of delay.  This is not to say that no other avenues of approval are open.  For one thing, the Minister may revoke the deportation order under s 206(1).  For another, the Minister (or the Secretary) may order release under s 253(9).  It is true that the power to detain is available only whilst the deportation order is “in force” (s 253(1));  and that this criterion is reflected in the reference to the position “pending deportation” in s 253(8)(a).  But there is every reason to suppose that this was intended to refer to the state of affairs existing between the time of the making of the deportation order and its execution (unless previously revoked).  These are all matters of formal record which are readily ascertainable by all concerned.  If the test were otherwise, that is a test of a question of degree, whereby the authority to detain is lost after the lapse of a particular amount of time, serious practical difficulties would arise:  it would not be possible to identify the exact point of time when the authority is to be treated as having lapsed, in the absence of any formal process to determine when the lapse did occur.

13                  On the other hand, as we would understand it, the plain object of the present statutory scheme is to avoid these difficulties by defining the relevant events in which the authority to detain will lapse, as the execution of the deportation order or its earlier revocation.  Short of their occurrence, the deportation order is “in force” for the purposes of s 253(1), and the deportation is “pending” for the purposes of s 253(8)(a).  Until one of these events occurs, the authority to detain will subsist.

14                  This is not to say that the Act, or the general law, will permit the authority to detain to be abused.  Clearly, the authority must be exercised bona fide for the purpose for which it was conferred and not to achieve another, disguised, objective (none of which was suggested to be the case here) (see, e.g. Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 per Gummow J at 378).  In Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ said (of the precursors of the present provisions) (at 643 – 647):

“The effect of the finding that the deportation orders of 20 August 1986 were vitiated by an impermissible purpose was that those orders were void.  That being so, those orders were not ‘in force’ and none of the appellants was a ‘deportee’.  The second reason is that s 39(6) relevantly authorises the detention in custody of a deportee ‘pending deportation’.  That means, in our view, during such time as is required for the implementation of the deportation order.  It does not authorise the indefinite detention in custody of a person for some ulterior purpose, such as the purpose of being kept available as a witness in a pending criminal prosecution.  Section 20(2) of the Act provides that the validity of a deportation order shall not be affected by delay in its execution.  That sub-section says nothing, however, to validate a deportation order that is void ab initio.”

15                  There was not, and could not be, a suggestion in the present case that the deportation order itself was void.  An earlier challenge to the deportation had been dismissed by the Court.  The attack rather was made upon the authority to detain.  But, in our opinion, that authority subsists until the deportation order is executed or revoked.  This ground of appeal fails.

16                  The next (related) ground of appeal is that his Honour should have held that the Minister failed to discharge the onus of proving that, in all the circumstances, the length of time of the appellant’s detention was justified.  As we have said, however, the Minister’s authority to detain subsisted until the execution of the deportation order or its revocation.  Neither of these events had occurred, and in our view the Minister had no further onus to bear in order to maintain the validity of his authority to detain.  Whether he should exercise his power under s 206(1) to revoke the deportation order, or to order release under s 253(9), are different questions which do not affect the validity of the authority to detain itself.

17                  The appellant further argues that his Honour should have held that the Minister erred in law by failing to take relevant matters into account in exercising his discretion whether to order release under s 253(9).  It is said that the Minister ought to have taken into account the circumstance that there was not a reasonable likelihood that deportation could be effected within a reasonable time because it was possible that the Vietnamese Government might never issue the necessary travel documents to the appellant.

18                  We have difficulty, on the facts, accepting the argument.

19                  As has been said, the decision in question was made on 21 July 1999.  Its legality must be tested in the circumstances at that point of time.  The amended application for order of review was filed on 19 November 1999.  It was supported by an affidavit sworn by the appellant’s solicitor on 17 August 1999 which merely annexed a letter from the Department to the appellant dated 21 July 1999, itself enclosing a copy of the Departmental minute dated 21 July 1999 set out above.  It will be recalled that in the minute it was stated that –

“Arrangements are currently being made for the issue of a travel document in order to effect Mr Vo’s deportation.”

20                  The only other evidence on this question at that time was adduced by the Minister.  Two affidavits sworn by an officer of the Department were read on behalf of the Minister.  The Departmental officer also gave oral evidence in the course of which he said that there were meetings in Vietnam in 1998 between Australian officers in Vietnam and the Vietnamese Ministry for Foreign Affairs.  There were also meetings with the Vietnamese Embassy in Canberra in January 1999.  In the course of those meetings, Australian Departmental officers expressed their utmost concern about the delays in the case of the appellant, and other cases.  A streamlined procedure was put together in January 1999 and that was confirmed by an exchange of papers between the Department and the Embassy of the Republic of Vietnam.

21                  The Departmental officer also said in the course of his oral evidence that the Republic of Vietnam has always undertaken to accept their responsibilities, under international practice and law, to receive back their nationals.  However, the Vietnamese have continuously apologised to Australia in the twelve months prior to July because of the significant bureaucratic process that is involved in Vietnam, where it is necessary to go through four different levels of negotiation.

22                  There was no evidence one way or the other as to whether that information was known to the decision-maker involved in the decision under review.  In any event, the information could not have influenced the decision-maker in the appellant’s favour.

23                  The deponent also gave further oral evidence as to the position well after July 1999, but that was irrelevant to any question of the legality of the decision made on 21 July 1999.  The appellant sought to rely on that material.  The primary Judge observed that such evidence had been presented at the hearing without objection.  His Honour’s reasons make it clear that he had regard only to the material that was before the decision-maker in concluding that no reviewable error had been made out.

24                  Finally, it is argued for the appellant that his Honour should have held that the Minister has a duty to order release when it appears that it is not practicably possible to effect deportation within a reasonable time.

25                  We cannot accept the submission.  Clearly s 253(9) confers a discretion, as does s 206(1).  But in any event, as has been said, the only evidence as at 21 July 1999 was to the contrary of the circumstances postulated in the submission.

26                  It will follow that the appeal must be dismissed with costs.

Associate:

Dated:                                         15 June 2000