FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 887

MIGRATION – appeal on a question of law from the Administrative Appeals Tribunal (“AAT”) – deportation decision – Direction binding on AAT under s 499(2A) of the Migration Act 1958 (Cth) – whether AAT failed to comply with General Direction–Criminal Deportation No 9 – whether application of Convention on the Status of Refugees “raised” before the AAT.

MIGRATION – decision by Minister to detain applicant under s 253(1) of the Migration Act 1958 (Cth) on expiration of his custodial sentence under State law – whether s 253(1) excludes the rules of natural justice – whether applicant afforded natural justice prior to making of the decision.

PROCEDURE – application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review detention decision – application out of time – whether extension of time should be granted.

Administrative Appeals Tribunal Act 1975 (Cth),ss 43(1), 44(1), 44(2A).

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 11(1)(c), 11(3).

Migration Act 1958 (Cth), ss 5(1), 36(1), 200, 201, 253, 254, 499.

Migration Amendment Act (No 2) 1992 (Cth), s 22AA.

Migration Regulations 1989, rr 101, 106, 138.

Convention on the Status of Refugees, Articles 1A(2), 1C, 33.

General Direction – Criminal Deportation No 9.

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, cited.

Luu v Renevier (1989) 91 ALR 39, cited.

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, cited.

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227, cited.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, cited.

Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) FCR 389, cited.

Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, cited.

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

Annetts v McCann (1990) 170 CLR 596, cited.

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, applied.

Kioa v West (1985) 159 CLR 550, applied.

Barrett v Howard (2000) 170 ALR 629, applied.

Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, cited.

Twist v Randwick Municipal Council (1976) 136 CLR 106, cited.

VAN NGOC NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 834 of 2000

SACKVILLE J

SYDNEY

11 JULY 2001

THE COURT ORDERS THAT:

1.                  The appeal against the decision of the Administrative Appeals Tribunal made on 27 February 2001 in relation to the deportation of the applicant be dismissed.

2.                  The applicant be granted an extension of time until 19 June 2001 to file an application seeking review of the decision of the respondent’s delegate made on 15 March 2001 to detain the applicant pursuant to s 253(1) of the Migration Act 1958 (Cth) (“the detention decision”).

3.                  The applicant file and serve written submissions by 4 pm on 13 July 2001 as to the form of orders that should be made, consistently with these reasons, in relation to the detention decision.

4.                  The respondent file and serve written submissions on or before 12 noon on 18 July 2001 as to the form of orders that should be made, consistently with these reasons, in relation to the detention decision.

5.                  The parties’ submissions should also address the question of costs of the proceedings.

6.                  The proceedings be listed for any further argument at 9.30 am on 19 July 2001.

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

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     Three proceedings have been heard together.

2                     The first is an appeal on a question of law under s 44(1) of the Administrative Appeals Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“AAT”) given on 27 February 2001 (“the deportation decision”).  The AAT affirmed a decision of a delegate of the Minister to order the deportation of the applicant pursuant to s 200 of the Migration Act 1958 (Cth) (“Migration Act”).  The notice of appeal was not filed within the time specified in s 44(2A) of the AAT Act.  However an order has been made, without opposition from the Minister, extending the time for filing the notice of appeal.

3                     The applicant claims that the AAT erred in law because it failed to consider or apply General Direction – Criminal Deportation - No 9 (“the Direction”), issued by the Minister pursuant to s 499(1) of the Migration Act. According to the applicant, the Direction obliged the AAT to consider whether he had ceased to be a “refugee” for the purposes of the Convention on the Status of Refugees (the Refugees Convention”).  Since the AAT had not addressed that issue, it had failed to apply the Direction as it was required to do under s 499(2A) of the Migration Act.

4                     The second proceeding is an application to review the decision of the Minister’s delegate, made on 15 March 2001, to detain the applicant pursuant to s 253 of the Migration Act upon completion of his custodial sentence in a New South Wales prison (“the detention decision”).  The application is made pursuant to s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).  The ground stated in what is described as an amended application for review, filed on 19 June 2001, is that there was a breach of the rules of natural justice in connection with the making of the decision, in that the decision-maker:

“failed to warn the applicant that an exercise of the power in s 253 of the Migration Act was being contemplated…and failed to accord any opportunity to the applicant to make submissions or adduce evidence in that regard.”

It is also said on behalf of the applicant that the decision-maker failed to put to the applicant adverse material suggesting that he might attempt to evade the Department if released and that his criminal history might make him a threat to the community.

5                     The third proceeding is a motion seeking orders pursuant to s 11(1)(c) of the ADJR Act extending the time for the applicant to file the application to review the detention decision.  This Motion has been made necessary by the failure of the applicant to file the application under the ADJR Act within the twenty-eight day period prescribed by s 11(3) of the ADJR Act.  It was common ground that the applicant did not seek any relief under the ADJR Act until 21 May 2001, thirty-nine days after the prescribed period had expired.

legislation and instruments

migration act

6                     Section 200 of the Migration Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 applies.  The section applies, inter alia, to a non-citizen who has been a permanent resident for less than ten years and who is convicted in Australia of an offence and sentenced to imprisonment for a period not less than one year: s 201.

7                     Section 253 of the Migration Act provides as follows:

“253    Detention of deportee

(1)           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.

(2)           A person detained under subsection (1)… 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)…, 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 port 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 this 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 term “detain”, which is used in s 253, is defined in s 5(1) of the Migration Act to mean

“(a)     take into immigration detention; or

  (b)     keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.”

8                     Section 254(1) of the Migration Act applies if “a person is a…deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act”.  A “deportee” is a person in respect of whom a deportation order is in force: s 5(1).  The Secretary is empowered to give the person written notice, stating that a deportation order has been made and that from the time the person would otherwise be entitled to be released from custody (referred to as “the custody transfer time”) the person will be kept in immigration detention: s 254(2).  If a deportee is given notice under s 254(2), the deportee is taken from the commencement of the custody transfer time to be detained by the custodial authority in the capacity of an officer exercising the power conferred by s 253(1): s 254(3)(b).  In such a case, s 253(2) does not apply to the deportee: s 254(3)(c).

9                     Section 499(1) of the Migration Act authorises the Minister to give written directions to a person or body having functions or powers under the Act.  The directions may relate to the performance of those functions or the exercise of those powers, provided that they are not inconsistent with the Act or the Migration Regulations:s 499(1)(a), (b), (2).  The person or body must comply with a direction made under s 499(1): s 499(2A).  Any direction given under s 499(1) must be laid before each House of Parliament: s 499(3).

the direction

10                  The Direction was made by the Minister on 21 December 1998, pursuant to s 499(1) of the Migration Act.  It is headed as follows:

“AUSTRALIA’S CRIMINAL DEPORTATION POLICY CRIMINAL DEPORTATION UNDER SECTION 200 OF THE MIGRATION ACT 1958.”

The Direction includes the following provisions:

“INTERNATIONAL OBLIGATIONS

25.              Decision makers are to consider the international obligations contained in this section.

…

28.              In cases where issues of protection pursuant to the Convention and the Protocols Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration by the Minister as part of the exercise of the discretion to deport.

29.              The critical issue is whether the life or freedom of a person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion pursuant to Article 33(1) of the Refugees Convention.  This issue must be determined at the time the deportation decision is made.  It should be noted that prior recognition of refugee status, while relevant, does not determine this issue.  In other words, international law allows for the possibility that the person’s refugee status may have ceased by the time deportation is considered.

30.              If Article 33(1) does not apply to the person, there is no obligation on Australia to provide the person with protection under the Refugees Convention. If Article 33(1) applies, then the question is whether the person, having been convicted by a final judgment of a particularly serious crime, is a danger to the community, in which case the person cannot claim the benefit of Article 33(1).

31.              Notwithstanding International obligations, the deportation power must inherently remain a fundamental exercise of Australian sovereignty.  The responsibility to determine who should be deported in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.  (Emphasis added.)

refugeeS convention

11                  Article 1A(2) of the Refugees Convention defines the expression “refugee” to include a person who

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”

Article 1C of the Refugees Convention states that the Convention

“shall cease to apply to any person falling under the terms of Section A if:

…

(5)               He can longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.

12                  Article 33 of the Refugees Convention provides as follows:

“1.       No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2          The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

the coursE of events

13                  The applicant was born in North Vietnam in 1978.  According to the AAT, he left Vietnam in 1985 and travelled with family members to Hong Kong, where he lived in a refugee camp for five years.  He arrived in Australia on 5 June 1991, aged thirteen.  The AAT referred to him as having arrived “on a refugee visa”, but material before the AAT indicated that he had travelled on what was then known as a Camp Clearance visa (class 205).  I shall return to this question shortly.

14                  From 1994 to 1998, the applicant was convicted of what the AAT described as a “number of serious crimes”.  He was taken into custody on 7 October 1997.  On 13 November 1998 he was convicted of robbery in company, an offence committed in June 1996.  The applicant was sentenced to a term of imprisonment of two years, together with an additional term of two years.  The sentence of imprisonment was back-dated to 7 June 1998, the day after the minimum term of a previous sentence had expired.  It was the conviction and sentence for robbery in company that rendered the applicant liable to a deportation order under s 200 of the Migration Act.

15                  On 13 May 2000, a delegate of the Minister made an order pursuant to s 200 of the Migration Act that the applicant be deported from Australia.  At that time, the applicant was serving his sentence of imprisonment at Goulburn Correctional Centre. 

16                  On 18 May 2000, an officer of the Criminal Deportation Section of the Department wrote to the applicant at Goulburn Correctional Centre.  The letter attached a copy of the deportation order and advised the applicant of his right of review in the AAT.  The letter stated that:

“[u]pon completion of your sentence you may be held in the custody of the Immigration Department under section 253 of the Migration Act 1958 pending your deportation from Australia”.

The letter concluded by informing the applicant that, should he have any questions, he could write to or telephone the author of the letter.

17                  On 19 May 2000, the applicant signed an “acknowledgment of notification of deportation”.  The acknowledgment included the following paragraphs:

“I was informed that I would be deported as soon as possible after I complete the custodial portion of my sentence….

I was informed that, on completion of my present or any further sentence/s, I would, if necessary, be taken into and held in the Department of Immigration and Multicultural Affairs’ custody under section 253 of the Act, until arrangements are finalised for my deportation from Australia”.

18                  On the same day, an officer of the Criminal Deportation Section wrote to the Deputy Governor, Goulburn Correctional Centre, stating that it had been decided that the applicant would be deported from Australia on completing his term of imprisonment.  The letter further said that arrangements had been made for an officer of the Department to be present on the day the applicant was due for release so that he could be taken into custody under s 253 of the Migration Act.

19                  On 30 May 2000, the applicant sought review of the deportation decision in the AAT.  The AAT held a hearing in relation to the application on 13 and 14 February 2001, and gave its decision on 27 February 2001.  As I have noted, that decision affirmed the deportation decision made by the Minister’s delegate.

20                  On 8 March 2001, the Parole Board directed that the applicant be released on parole on 15 March 2001.  On the date of his scheduled release, a decision was made by the Minister’s delegate that the applicant should be detained pursuant to s 253 of the Migration Act upon completion of his custodial sentence.  The document recording the detention decision also recorded that the delegate had decided that the applicant should remain at a State correctional facility.  The Departmental minute to the delegate, recommending the detention of the applicant, pointed out that policy guidelines made it clear that very good reasons had to exist before a deportee would be released into the community and that a deportee should be released only if the delegate were satisfied that the person’s deportation would not be jeopardised by an attempt to evade the Department.  The minute included the following passage:

“In view of his criminal history of drug and fire arm offences, escape from police custody and robbery in company, [the applicant’s] deportation from Australia may be jeopardised by him attempting to evade the Department if released.  Likewise, no good reasons exist warranting his release into the community.  On the contrary, his criminal history may provide a good reason for not doing so for the protection of the community.”

21                  On 21 May 2001, the applicant filed in this Court a “Notice of Appeal and Application for an Order of Review”.  This document purported to appeal on a question of law from a decision of the AAT and to seek review under the ADJR Act of a “detention decision” said to have been made at some time between 18 May 2000 and 3 March 2001.  It appears that the applicant’s legal advisers were not at this stage aware that the detention decision had in fact been made on 15 March 2001.

22                  On 7 June 2001, the applicant unsuccessfully sought an order for his release from detention pending the hearing of his appeal from the AAT’s deportation decision and his application to review the detention decision.  Subsequently, the application under the ADJR Act was amended to identify the detention decision under challenge as that made on 15 March 2001.  The motion seeking an extension of time in which to institute the proceedings under the ADJR Act was filed on 7 June 2001.

the applicant’s status

23                  There was considerable discussion and some confusion in the course of argument as to the nature of the visa held by the applicant that enabled him to gain permanent residence in Australia.  The applicant’s written submissions asserted that he had come to Australia on a “refugee visa” and that he must therefore have been considered by the authorities to be a refugee within the meaning of the Refugees Convention. Counsel for the Minister adduced evidence, which was admitted subject to relevance, that the applicant had entered Australia on a Camp Clearance (class 205) visa.  To understand the position some background is necessary.

24                  The Migration Act, as in forcein 1991, did not make provision for what are now known as protection visas: see now Migration Act, s 36(1).  Nor did the legislation specifically provide for the Minister to determine that a person was a refugee.  (The first provision to that effect was s 22AA of the Migration Act inserted by the Migration Amendment Act (No 2) 1992 (Cth).)  The Migration Act in 1991 authorised regulations to be made prescribing the criteria for different classes of visa: s 23.  The Migration Regulations then in force provided for various classes of visa.  These included “Refugee visas” (code number 200) and “Camp Clearance visas” (code number 205): Migration Regulations 1989, Sched 2, Part 2.  The Regulations also provided for “Refugee (After Entry) permits”: Migration Regulations 1989, Sched 2, Part 3 (code number 803). 

25                  The criteria for a Refugee visa (class 200) included those specified in reg 101:

“The additional criteria in relation to a refugee visa are the following criteria:

(a)               the applicant is a person subject to persecution;

(b)               the applicant is living:

(i)                 outside the country of which the person is a citizen; or

(ii)               if the person is not usually a resident of that country – outside the person’s usual country of residence; and

(c)               the Minister is satisfied that:

(i)                 permanent settlement in Australia is the appropriate course for the applicant; and

(ii)               such settlement would not be contrary to the interests of Australia.”

It will be seen that the criteria required that the person be subject to “persecution”, but not necessarily that the persecution was inflicted for one of the reasons specified in the Refugees Convention.

26                  The criteria for a Camp Clearance visa (class 205) included those specified in reg 106:

“The additional criteria in relation to a camp clearance visa are the following criteria:

(a)               the applicant is a citizen of the Republic of Vietnam;

(b)               the applicant is living in a camp in Hong Kong…, being a camp maintained by the United Nations High Commissioner for Refugees;

(c)               the applicant:

(i)                 if in Hong Kong – arrived in Hong Kong before 16 June 1988; or

…;

(d)               the Minister is satisfied that:

(i)                 permanent settlement in Australia is the appropriate course for the applicant; and

(ii)               such settlement would not be contrary to the interests of Australia.”

Regulation 106 did not impose any requirement that the applicant satisfy the Refugees Convention definition of “refugee” although doubtless most, although not all, of those in UNHCR camps would have satisfied the definition.

27                  The criteria for a Refugee (After Entry) permit (class 803) included a requirement that the applicant had “been granted refugee status by the Minister”: Migration Regulations, reg 138(b).  The criteria specified for a number of other visas included a requirement that the applicant had been granted refugee status by the Minister.  This criterion reflected the practice at the time, which involved the Minister or a delegate acting as first-tier decision-makers, with the applicant having a right of appeal to a committee known as “DORS” (“Determination of Refugee Status Committee).

28                  On 3 May 2000, a minute was prepared for the Minister’s delegate which addressed the question of the applicant’s deportation.  The minute noted that the applicant had lived in a refugee camp in Hong Kong and had arrived in Australia in 1991 as the holder of what was described as a “refugee visa”.  The minute pointed out that the applicant’s claims had been referred to the Onshore Protection Section Central Office for assessment.  The report of that Office (the “Protection report”) was attached.

29                  The Protection report examined, inter alia, whether Australia owed the applicant protection obligations under the Refugees Convention. It commenced the assessment by stating that

“[the applicant] is the holder of a class 205 visa, which is assumed to be a class of visa which might engage Australian protection obligations”.

The Protection report did not, however, set out the criteria governing the grant of a Camp Clearance visa (class 205).

30                  The Protection report assessed the applicant’s position under Article 1C(5) of the Refugees Convention which, as the report noted, “allows for the cessation of refugee status under certain conditions”.  The Protection report referred to country information relating to Vietnam which indicated that large numbers of Vietnamese nationals who had left the country had returned or been returned and had experienced no discrimination or persecution.  Information requested by the Vietnamese authorities on criminal deportees suggested that the information might be used in surveillance of the individual concerned, but was sought in the first instance to ensure adequate family or community support for the deportee.  Other information was “unambiguous” in maintaining that criminal deportees would not encounter “distinguishing treatment” by virtue of their status.  The Protection report concluded that, on the basis of the country information, there was no real chance that the applicant would suffer persecution as a result of his illegal departure from Vietnam or in consequence of his criminal activities in Australia.

31                  The Protection report noted that these circumstances would warrant “the cessation of [the applicant’s] refugee status under Article 1C”.  Since the applicant had made claims in an interview, the report proceeded to assess his claims against Article 1A(2) of the Refugees Convention” to determine whether or not Australia owes him protection”.  The report said this:

“Protection related claims

In an interview held on 22 March 2000, Mr Nguyen stated that he is more acquainted with the culture in Australia than in Vietnam, and as he tends to speak in English more than in Vietnamese, he would not be able to communicate with the Vietnamese people.  His problems on return to Vietnam would be for financial reasons and ability to survive.

Assessment of Claims

Mr Nguyen’s claims that he will face problems if returned to Vietnam because he is not acquainted with the Vietnamese culture, and would have language and financial difficulties, do not amount to persecution for a Convention reason.”

32                  The minute prepared for the delegate considering the applicant’s case attached a copy of the Protection report and summarised its conclusions.  The minute included the following statement:

“[The applicant] arrived in Australia on 5 June 1991 as a holder of a refugee visa.”

If this statement was intended to identify the particular visa held by the applicant, it was incorrect.  As the Protection report had said, the applicant arrived on a Camp Clearance visa (class 205).  The Protection report did not suggest that the applicant had received a Refugee visa (class 200), or a Refugee (After Entry) permit (class 803) or any other class of visa or permit.  It would seem that the author of the minute may have been misled by the Protection report’s reference to the “cessation of [the applicant’s] refugee status”.  Alternatively, the author may have used a generic expression thought apt to describe the status of people granted permanent residence in Australia while in UNHCR refugee camps.

the aat’s decision

33                  The only reference in the AAT’s reasons for decision to the status of the applicant is found in a chronology of events.  The AAT reproduced verbatim a chronology supplied to it by the Minister’s representative.  It introduced the chronology with this observation:

“The [Minister’s] Statement of Facts and Contentions contains a useful chronology of relevant events.”

The reference to the applicant’s status is in these terms:

34                  The “T-Documents” reference indicates clearly enough that the Minister’s representative, and therefore the AAT, assumed that the applicant had a “refugee visa” because of the observation to that effect contained in the minute to the Minister’s delegate (reproduced at p 52 of the T-Documents).  The AAT appears to have overlooked or regarded as unimportant the inclusion in the T-Documents of a print-out of the “Movement Details” for the applicant in 1991 which clearly showed that he had been granted a class “205” visa.

35                  The AAT referred at length to the Direction, but not to that section of it which deals with the need for the Minister (and therefore the AAT) to consider Australia’s international obligations. The AAT considered in some detail the application of the criteria stated in the Direction (other than Australia’s international obligations).  It concluded that the applicant’s “very serious” criminal conduct and the “only too real” risk of recidivism outweighed other considerations such as hardship to the applicant and his family.  Accordingly, the AAT did not consider the case to be one in which its discretion should be exercised favourably to the applicant.

36                  In the course of its reasons, the AAT summarised the oral evidence of the applicant (who was not represented at the hearing) in terms which indicate that the applicant made no claim that he feared persecution or discriminatory treatment should he be returned to Vietnam. The AAT’s summary of the evidence given by the applicant’s relatives, many of whom had become Australian citizens, suggests that none of them put forward any such claim on the applicant’s behalf.

the deportation decision

the submissions

37                  The applicant submitted that the AAT had failed to comply with the Direction as required by s 499(2A) of the Migration Act.  The argument on his behalf was straightforward.  Its starting point was the AAT’s finding that the applicant had arrived in Australia on a “refugee visa”.  That finding, so it was argued, recognised that the applicant had once been accorded refugee status by the Australian authorities or, at the least, that he met the definition of “refugee” in the Refugees Convention when he arrived in Australia in 1991.  It was not to the point that the AAT’s finding may have been factually incorrect.  The finding was of itself enough to have “raised” before the AAT issues of protection pursuant to the Refugee Convention, within the meaning of par 28 of the Direction.  Alternatively, so it was contended, issues of protection had been raised since they had been directly addressed by the Minister’s delegate, through his consideration of the Protection report.  The Protection report and the delegate’s decision were before the AAT.  It followed that, as the AAT had not addressed the question of whether the applicant was owed protection obligations as required by the Direction, it had erred in law.

38                  Mr Lloyd, on behalf of the Minister, conceded that if issues of protection had been raised before the AAT within the meaning of the Direction, the failure of the AAT to address those issues constituted an error of law. This concession appears to be correct in the light of the observations of Whitlam and Gyles JJ in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, at 586-587.  Implicit in the concession was the further proposition that the Direction, although expressed to apply to decisions by the Minister, applied to the AAT when reviewing a deportation decision.

39                  Mr Lloyd put two submissions in answer to the applicant’s contentions:

(i)                  The relevant finding made by the AAT, properly understood, was that the applicant had arrived in Australia with a Camp Clearance visa (class 205).  The uncontradicted evidence before the AAT was to that effect and the AAT’s finding, albeit poorly expressed, should be construed consistently with the evidence.  Since the criteria for the grant of a Camp Clearance visa (class 205) did not require an applicant to show that he or she was a refugee for the purposes of the Refugees Convention, the AAT’s finding could not be said of itself to raise issues of protection under the Convention.

(ii)                Even if the AAT’s finding should be understood as conveying that the applicant once satisfied the definition in the Refugees Convention, that did not of itself mean that issues of protection had been raised before the AAT.  The delegate had addressed the issues of protection and found that they had no substance.  Neither the applicant nor any witness who gave evidence to the AAT in support of his case suggested in their evidence (or otherwise) that there was a basis for the Refugees Convention continuing to apply to the applicant.  No challenge of any kind had been made to the delegate’s assessment of the protection obligations owed to the applicant.  There was simply nothing to show that the applicant took issue with the delegate’s decision.  It could not be said, therefore, that issues of protection had been raised for the purposes of the Direction.  The AAT’s failure to consider afresh the question of protection obligations owed to the applicant did not constitute an error of law.

REASONING

40                  If the AAT intended to find that the applicant arrived in Australia on a visa which had been issued in consequence of a determination that he was a refugee for the purposes of the Refugees Convention, it was mistaken.  For the reasons I have given, the documents before the AAT (independently of any evidence adduced in the Court) demonstrate clearly enough that the applicant had been issued with a Camp Clearance visa (class 205).

41                  A factual finding by the AAT cannot, however, be ignored simply because it is demonstrably wrong; it is not for the Court to usurp the fact finding functions of the AAT.  The finding of the AAT was that the applicant had been granted a “refugee visa” in 1991. I do not think that the finding can be construed as meaning that the applicant was granted a Camp Clearance visa (class 205).  Had the AAT intended to make such a specific finding it would have been a simple matter for it to do so.  That leaves open the question of the finding the AAT actually made by its use of the ambiguous expression “refugee visa”.

42                  In context, I interpret the AAT’s finding as meaning that the applicant was granted a visa in circumstances that made it likely that, at the time he entered Australia, he was a refugee within the meaning of the Refugees Convention.  This is consistent with the language of the Protection report, which said that the class 205 visa was one “which is assumed to be a class of visa which might engage Australia’s protection obligations”.  Moreover, by assessing the applicant against Art 1C(5) of the Refugees Convention, the author of the Protection report implicitly accepted that the applicant once fell within the terms of the Convention.   This construction of the AAT’s finding is also consistent with the fact, as found by the AAT, that the applicant had spent five years in a refugee camp in Hong Kong, maintained by the UNHCR.

43                  The next question is whether issues of protection had been raised such as to enliven the AAT’s obligation under the Direction (read with s 499(2A) of the Migration Act) to consider Australia’s international obligations in relation to the applicant.  In addressing this question, the following observations are relevant:

(i)                  The task is essentially one of construing and applying the Direction to the circumstances of a particular case.  In undertaking that task it is necessary to bear in mind the stated purpose of the Direction, namely to provide guidance to decision-makers in considering the making of deportation decisions under s 200 of the Migration Act (see Preamble to the Direction).

(ii)                Ordinarily, the issues raised before the AAT will depend on the evidence or submissions advanced on behalf of the applicant.  It has frequently been said that a decision-maker is not obliged to make the case for the applicant: Luu v Renevier (1989) 91 ALR 39, at 45, per curiam.  Nonetheless, par 28 of the Direction refers to “cases where issues of protection…are raised”.  This passive language appears to contemplate that there might be circumstances where issues are raised otherwise than by the applicant, for example by the AAT itself in drawing attention to information available to it.

(iii)               Paragraph 28 of the Direction is directed, relevantly, to the situation where issues of protection are raised for determination by the Minister.  In the context of applications for review determined by the AAT, this means that the Direction is directed to the situation where issues of protection are raised for determination by the AAT.  The issues raised for the AAT to determine in the exercise of its functions are not necessarily the same as those that have been considered by the original decision-maker, in this case the delegate.  This follows from the AAT’s role which is to determine for itself, on the material before it, whether the decision under review was the right one: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 419, per Bowen CJ and Deane J; at 429-430, per Smithers J; see also AAT Act, s 43(1).  Accordingly, the mere fact that an issue has been addressed by the original decision-maker does not necessarily mean that it should be regarded as having been raised before the AAT.  The issues raised for determination by the AAT when reviewing the original decision may be quite different.

(iv)              Contrary to the applicant’s submissions, the fact that a deportee satisfied the Refugees Convention at the time of entry into Australia (whether or not a contemporaneous determination to that effect was made by the Minister) cannot, of itself, determine whether issues of protection have been raised before the AAT.  In A v Minister for Immigration and Multicultural Affairs [1999] FCA 227, for example, Katz J (at [34]-[35]) expressed surprise that the AAT had considered whether A’s deportation would bring Australia into breach of its obligations under the Refugees Convention.  His Honour did soin circumstances where A’s counsel had not made any submissions suggesting that A’s “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (to use the words of Art 33(1)).  A v Minister was not a case in which the applicant argued that the AAT had failed to comply with a Direction.  But it illustrates the point that merely because a deportee was once a refugee for the purposes of the Refugees Convention does not necessarily mean that issues of protection have been “raised” before the AAT, which is considering the deportation decision on the merits.

(v)                In determining whether an issue has been raised for determination by the AAT, it may be appropriate to give more leeway to an unrepresented applicant than to one who is legally represented.  Even so, it is necessary to take into account the claims the unrepresented applicant has made and the material he or she has put to the AAT.

44                  In the present case, the applicant was unrepresented before the AAT.  But neither he nor any person giving evidence on his behalf said anything or relied on any material which could be taken as suggesting that his life or freedom would be threatened for a Convention reason if he were to be returned to Vietnam (see Article 33.1).  Nor was anything put which suggested that the circumstances that caused him to be recognised as a refugee in 1991 continued to exist (see Article 1C(5)).

45                  It is a matter of some importance that the notes of interviews with the applicant and his relatives, which took place prior to the delegate’s decision, gave no hint of any such claims.  The applicant was specifically asked whether he foresaw any special difficulties if deported.  His answer was in substance that recorded in the Protection report ([31] above).  That answer, as the Protection report indicated, could not give rise to any serious question concerning the application of Article 33.1 of the Refugees Convention to the applicant.  Nor could the answer negate the operation of Article 1C(5) of the Convention.

46                  It is true that the Protection report, adopted by the delegate, addressed the possible application of Article 33.1 of the Refugees Convention to the applicant.  The report concluded that there was no basis on which it could be found that the applicant would be threatened on Convention grounds if he were returned to Vietnam.  The Protection report also concluded that the “greatly changed” circumstances in Vietnam warranted “the cessation of his refugee status under [Article 1C(5)]”.

47                  But the mere fact that the delegate, through the Protection report, addressed these questions does not mean that they can be characterised as issues of protection “raised” before the AAT, for the purposes of the Direction.  In the absence of some material before the AAT, whether or not supplied by the applicant himself, providing a genuine basis for a claim under Article 33.1, I do not think it can be said that issues of protection had been raised before the AAT.  A different view perhaps might have been open had the Protection report or the delegate’s decision suggested a genuine basis for a claim based on Article 33.1 or for the continued application of the Refugees Convention.  But the Protection report adopted by the delegate was expressed in unequivocal terms.  The conclusions in that report were not challenged, directly or indirectly, by the applicant.  Again, if there was some material before the AAT, or perhaps even readily available to it, which suggested a genuine basis for a different view, the position might be different.  There was, however, no evidence of any such material.  Indeed, the applicant did not adduce any evidence in this Court which suggested that there is an arguable basis for his contention that Australia’s international obligations would be breached if he were to be deported to Vietnam.

48                  In my view, issues of protection pursuant to the Refugees Convention were not “raised”, for the purposes of the Direction, in the proceedings determined by the AAT.  It follows that the Direction did not require the AAT to give consideration to issues of protection relating to the applicant.  The AAT therefore did not breach its duty under s 499(2A) of the Migration Act.  Accordingly, the applicant’s attack on the deportation decision fails.

49                  The applicant also advanced an argument founded on Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.  Mr Robinson accepted that this argument would stand or fall with the contention I have already addressed.  There is therefore no need to consider it separately.

THE DETENTION DECISION

50                  Given my conclusion that the AAT’s deportation decision should not be set aside, it might be thought that there is little practical utility in the applicant’s challenge to the detention decision made on 15 March 2001, at least if the object is to secure his release pending deportation.  The policy guidelines already referred to (see [20] above) hardly suggest that the applicant has a significant chance of persuading the Minister to release him pending deportation, particularly having regard to the applicant’s history as recounted in the AAT’s reasons for decision.  Nonetheless, no matter how formidable the obstacles may be, it is, as Mr Robinson submitted, always possible that cogent arguments might persuade the Minister’s delegate to stay his or her hand.  Perhaps, too, there are other reasons why the setting aside of the detention decision, if that is the relief to which the applicant is entitled, may have practical significance.

51                  It will be recalled that the detention decision was made under s 253(1) of the Migration Act.  At the time the decision was made, the applicant was a deportee in the custody of an authority of a State otherwise than under the Migration Act.  This isthe situation to which s 254 of the Migration Act is directed.  The Minister could have “detained” the applicant on the completion of his custodial sentence of exercising the powers conferred by s 254: Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389, at 394-395, per Lehane J, followed in Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, at 30-31, per curiam.  The applicant accepted, however, that the Minister is entitled, if he or she chooses, to invoke the general powers in s 253, instead of the specific powers in s 254, in relation to a deportee serving a sentence of imprisonment in a State prison: Tuiletufugu v Minister, at 395-397.  It is not necessary to consider the correctness of that view.

52                  As I have noted, the challenge to the detention decision was made on the ground that the Minister breached the rules of natural justice in connection with the making of the decision.  The first question, however, is whether the applicant should be granted an extension of time under s 11(1)(c) of the ADJR Act in which to lodge his application.  In considering this question, it is necessary to bear in mind the principles relating to the exercise of the Court’s discretion to extend time stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, at 348-349.  One of the factors to take into account is the merits of the substantive application.

53                  I have had the advantage of argument on the substantive question.  In my view, the applicant has established the ground on which he relies to challenge the deportation decision.

54                  The settled principle is that

“when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment… [A]n intention on the part of the legislature to exclude the rules of natural justice [is] not to be assumed or spelled out from ‘indirect references, uncertain inferences or equivocal considerations’”: Annetts v McCann (1990) 170 CLR 596, at 598.

This principle has recently been applied by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne J dissenting).

55                  Mr Lloyd, cognisant of the settled principle, submitted that, although the requirements of natural justice are not displaced by s 253 of the Migration Act, they must be “moulded” to fit this area of decision-making.  The legislative intention, so he argued, is that a detainee seeking release from detention should invoke the procedure established by s 253(9) and thus should apply to the Minister rather than claim the protection of the rules of natural justice before the detention takes place.  The same intent, so it was said, is evident in the procedure available under s 253(4), in cases where the detainee alleges that he or she is not in fact the deportee. Mr Lloyd submitted that the fact that s 253(3) requires the detainee to be informed of the reason for his or her detention shows that the legislation does not contemplate prior notification to the deportee of his or her impending detention.  Most importantly, the power conferred by s 253(1) is to detain without warrant and it is obvious that such a power might have to be used without advance warning to the deportee.  Accordingly, Mr Lloyd contended that to impose a requirement that a deportee be afforded procedural fairness or natural justice would frustrate the statutory power.

56                  The principal difficulty with the Minister’s argument is that it appears to assume that, if the principles of natural justice are held not to be excluded by a particular statutory context, they apply in a uniform manner whenever the statutory power is invoked.  In Kioa v West (1985) 159 CLR 550, Brennan J said this (at 612):

“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the reporting is to exercise the power”.

Later in the same judgment, his Honour pointed out (at 615) that the application of the principles of natural justice depends on the circumstances of the particular case:

“An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case.  Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected.”

In Barrett v Howard (2000) 170 ALR 629, the Full Court recognised the distinction between the requirement that procedural fairness be observed and the content of procedural fairness.  The Court observed (at 544) that the

“conclusion that procedural fairness is to be observed in the exercise of the power to terminate a Secretary’s appointment does not carry with it any conclusion about how that fairness is to be achieved.  Its content depends on the statutory framework.  It also depends upon the particular circumstances of the case which call for decision.”

57                  There will plainly be circumstances where a deportee can be afforded only a limited prior opportunity to be heard as to whether he or she should be taken into custody.  In some circumstances, it might not be practicable to afford any such opportunity, as where a deportee is apprehended while “on the run”.  But that does not mean that the principles of natural justice can never apply so as to require the Minister to afford a prior opportunity to advance reasons why he or she should not be taken into detention in exercise of the powers conferred by s 253(1) of the Migration Act.

58                  In the present case, the Minister’s delegate made the decision to detain the applicant at a time when he was in the custody of the State authorities completing his sentence of imprisonment.  The Department was plainly aware well in advance of the applicant’s release on parole from State prison on 15 March 2001 that it contemplated taking him into immigration detention.  So much had been made clear in the correspondence ten months earlier.  It is true that the precise date of the applicant’s scheduled release was made known to the Department only soon (probably very soon) before the actual day.  But plans for the applicant’s detention on the day he was due for release had been set in motion by the letter of 19 May 2000.  There were no obvious “exigencies of the case” (Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, at 23, per McHugh J) making it impracticable to afford him a prior opportunity to be heard on the question of whether an order under s 253 should be made at the expiration of his custodial sentence.

59                  Furthermore, it is difficult to see why the terms of subss 253(3), (4) or (9) of the Migration Act relied on by Mr Lloyd, should have the effect of preventing the principles of natural justice from applying to the exercise of the power conferred by s 253(1).  The existence of a right of appeal or review does not necessarily exclude the rules of natural justice: Twist v Randwick Municipal Council (1976) 136 CLR 106.  Particularly is this so when the right of “appeal” is to a body “internal to the same organisation as the regional decision-maker”: Ex parte Miah, at 272, per McHugh J.  In any event, s 253(9) of the Migration Act does not provide a right of appeal or review of a detention decision as such; rather it empowers the Minister to order at any time the release of a person in detention.  There is nothing in the language of s 253(9) suggesting that the Minister’s power under that provision was intended to exclude the operation of the rules of natural justice prior to the detention decision being made.  After all, the continued detention of a person after he or she has served a sentence of imprisonment is a serious matter, even if the person is the subject of a deportation order.  In my view, the power conferred by s 253(9) of the Migration Act, exercisable after the detention has occurred, is not incompatible with a deportee in the applicant’s situation being given an opportunity to be heard before being taken into immigration detention.  So too with the procedure established by s 253(4) for cases of claimed mistaken identity.  A provision such as s 253(3) requiring a detainee to be informed of the reasons for his or her detention does not constitute “plain words of necessary intendment” that a deportee should not have an opportunity in advance, if the circumstances permit, to argue against his or her proposed detention.

60                  Mr Lloyd advanced an alternative argument that, even if the rules of natural justice applied to the deportation decision made in respect of the applicant, he had been afforded natural justice. Mr Lloyd contended that the requirements of natural justice had been observed because the applicant had been informed in May 2000 that he “would, if necessary” be taken into detention on completion of his custodial sentence.  In assessing this submission, it is necessary to bear in mind, as Kirby J said in Ex parte Miah, at 285, that where

“an interest may be seriously affected by the exercise of a statutory power, an opportunity ought ordinarily to be given to the person concerned to respond to adverse information that is credible, relevant and significant to the decision to be made.”

This does not mean that a deportee already in custody must be given an elaborate opportunity to be heard prior to a decision being made to detain him or her at the conclusion of the custodial sentence.  But it does mean that, insofar as the circumstances permit, the deportee should have a meaningful opportunity to respond to specific information or circumstances that are regarded as warranting his or her detention pursuant to s 253 of the Migration Act.

61                  In this case it is true that the applicant must have known from May 2000 onwards that it was likely that the Department would seek to detain him upon his release from imprisonment under State law.  He could have communicated his objections to the Department had he appreciated that that course was open to him.  Nonetheless, the applicant was not specifically invited to make submissions to the Minister as to why he should not be taken into detention.  More importantly, he was never informed as to the matters the delegate was likely to regard as particularly significant in his case.  For example, he was never advised of the terms of the policy applicable to deportees serving sentences in State prisons.  Nor was he told that his criminal history suggested to the decision-maker both that he would attempt to evade the Department if released and that he was considered a risk to the community (see the Minute of 15 March 2001 ([20] above)).  He was not informed of the specific matters, personal to him, that were considered adverse to his claim to be released upon completion of his sentence of imprisonment.  As Gaudron J observed in Ex parte Miah, at 240, the basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case put against him or her.  Since the applicant was never informed of the matters that were thought to count against him, he was denied natural justice in relation to the making of the detention decision.

62                  In view of my conclusion that the applicant has established a breach of the duty to afford him natural justice, I think the appropriate course is to grant extension of time for the institution of the proceedings challenging the detention decision.  The delay was relatively short and the applicant provided an explanation for the delay, albeit one directed primarily to the delay in challenging the deportation decision.  Mr Lloyd did not suggest that the Minister had been prejudiced by the delay.  I do not think the fact that the applicant has never invited the Minister to exercise his powers under s 253(9) of the Migration Act to release the applicant from detention provides a basis for refusing to grant an extension of time in order to challenge the making of the detention decision on the ground that the decision was made in contravention of the principles of natural justice.

63                  Mr Lloyd submitted, as I understood him, that I should withhold relief from the applicant in respect of the detention decision in the exercise of the discretion conferred on me by s 16(1) of the ADJR Act.  Essentially he relied on the same matters as those advanced in opposition to the grant of an extension of time (except, of course, what was said to be the weakness of the applicant’s substantive case).  In my view, none of the matters relied upon justifies withholding all relief from the applicant. 

64                  A question may arise, however, as to the appropriate form of relief that should be granted to the applicant under s 16(1) of the ADJR Act, including the date from which any order operates.  It is also not clear to me whether the applicant seeks any relief other than an order setting aside the detention decision.  In these circumstances, I propose to afford the parties an opportunity, within a limited time frame, to make further written submissions as to the appropriate orders that should be made to give effect to these reasons for judgment.

conclusion

65                  The applicant’s challenge to the deportation decision fails.  For the reasons I have given, I propose to grant the applicant an extension of time in which to file an application under the ADJR Act to review the detention decision.  My present view is that I should make orders setting aside the detention decision, although there may be a question as to the date from which any such order should operate.  I shall, however, give the parties an opportunity to make further written submissions on the appropriate orders to be made in respect of the detention decision.  Those submissions should also address the question of costs.

Associate:

Dated:              11 July 2001