FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 951

MIGRATION – decision to detain applicant set aside for want of natural justice – date from which decision should be set aside – date of decision or date of order.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 8, 16(1).

Judiciary Act 1903 (Cth), s 39B(1).

Migration Act 1958 (Cth), s 209.

Re Refugee Tribunal; Ex parte Aala (2000) 75 ALJR 52, cited.

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, cited.

Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, cited.

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162, cited.

Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637, distinguished.

VAN NGOC NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 834 of 2000

SACKVILLE J

SYDNEY

20 JULY 2001

THE COURT ORDERS THAT:

1.                  The detention decision (as described in Order 2 of the Orders dated 11 July 2001) be set aside as from 15 March 2001.

2.                  Each party bear his own costs in respect of the proceedings, including any interlocutory proceedings.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     In these proceedings I delivered judgment on 11 July 2001: Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 887.  I do not repeat anything said in that judgment, except to note that I invited submissions from the parties on the form of orders relating to what I described as the “detention decision”. I also invited submissions as to the costs of the proceedings.

2                     The parties filed brief written submissions and I heard oral argument on 19 July 2001.  At the conclusion of the argument I made an order in the following terms:

“That the detention decision (as described in Order 2 of the orders dated 11 July 2001) be set aside as from 15 March 2001.”

I indicated that I would give my reasons for this order and make any other orders in a written judgment.  This is the judgment.

submissions

3                     Mr Robinson, for the applicant, sought the following orders:

1.                  The detention decision (as described in order 2 of the orders dated 11 July 2001) be set aside on and from 15 March 2001.

2.                  The respondent and his servants or agents forthwith do such things as are necessary to effect the applicant’s immediate release from immigration detention.

3.                  Declare that the detention of the applicant by the respondent or officers of the respondent from 15 March 2001 to 19 July 2001 was unlawful.

4                     Mr Lloyd, who appeared for the Minister, accepted that, consistently with my reasons for judgment, an order had to be made setting aside the detention decision.  He submitted, however, that the detention decision should be set aside on and from 19 July 2001, the date of the oral argument on the question of relief.  Mr Lloyd stated that he had received instructions that upon the making of an order, whether in the form suggested by the applicant or that suggested by the Minister, the Minister would cause the immediate release of the applicant.  Mr Lloyd submitted that, in light of his instructions there was no occasion for Order 2 proposed on behalf of the applicant.  He also submitted that a declaration should not be made, principally because no such relief had been sought by the applicant in his application.

5                     I should add that Mr Lloyd made it clear that the immediate release of the applicant said nothing about whether or not a further detention decision would be made.  There would seem to be no impediment, other than observance of the rules of natural justice and compliance with any statutory requirements, to the making of a further detention decision in respect of the applicant, since the deportation order remains in force.

6                     Both Mr Lloyd and Mr Robinson accepted that the Court had a discretion as to the date from which the order setting aside the detention decision should operate.  This follows from the terms of s 16(1)(a) of the Administration Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), which provides as follows:

“16(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:

(a)               an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

…”.

7                     Mr Lloyd relied on three matters to support the Minister’s contention that the detention order should be set aside prospectively.  These were that the applicant

(i)                  delayed seeking relief to the point where he required an extension of time to institute the proceedings;

(ii)                did not seek reasons for the decision to detain him so as to facilitate an early challenge;

(iii)               has never put forward cogent reasons justifying his release or suggesting why a detention order should not be made.

date from which the orders should operate

8                     In Re Refugee Tribunal; Ex parte Aala (2000) 75 ALJR 52, a case determined in the original jurisdiction of the High Court under s 75(v) of the Constitution, Gaudron and Gummow JJ (with whom Gleeson CJ agreed) said (at 61) that:

“if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.”

9                     The present case involves an exercise of the jurisdiction conferred by s 8 of the AJDR Act on the Federal Court, not s 39B(1) of the Judiciary Act 1903 (Cth) (which mirrors the language of s 75(v) of the Constitution).  Nonetheless, Ex parte Aala shows that a decision-maker’s failure to comply with the rules of natural justice in the exercise of a statutory power constitutes a jurisdictional error.

10                  Gaudron and Gummow JJ in Ex parte Aala cited with approval (at 65) an important observation of Gaudron J in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, at 157:

“Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers.  It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise.  The rule of law requires no less.”

11                  On general principles of administrative law a decision made in contravention of the rules of natural justice is not regarded as void ab initio, but if challenged is liable to set aside from the date it was made.  In Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, Aickin J (with whom Stephen J agreed) explained the position (at 277) as follows:

“That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes.  Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception.  Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio.”

12                  The discretion conferred by s 16(1)(a) of the ADJR Act is not to be circumscribed by any rigid rules.  The passages I have cited, however, suggest that where a decision has been made in contravention of the rules of natural justice, the decision should ordinarily be set aside as from the date it was made, at least if there are no factors pointing to a different date as being appropriate.  This is consistent with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162, at 169.  (French and Hill JJ in that case upheld an order that a deportation decision be set aside as from the date it was made as an exercise of the trial Judge’s discretion: see at 186.)

13                  In addition, the applicant pointed to a practical reason why the order setting aside the detention decision should operate from the date it was made.  It appeared to be common ground that if the decision is not set aside from the date it was made, the applicant will or may be liable for so-called maintenance costs totalling some $17,000, based on a calculation of $136 per day of detention: see Migration Act 1958 (Cth), s 209.  Mr Lloyd did not dispute that if the detention decision were to be set aside from the date it was made the applicant would not be liable for these costs.  I do not give this consideration major weight but it is a factor to take into account.

14                  As I have noted, Mr Lloyd relied on the applicant’s delay as a reason to make an order with prospective effect only.  Doubtless, there are circumstances in which delay would warrant such an order.  In this case, however, the delay was not egregious.  Indeed, the uncontradicted evidence shows that the applicant made contact with a solicitor shortly after being notified of the deportation decision on about 8 March 2001 and that the proceedings challenging the deportation and detention decision were instituted on 21 May 2001.  It is fair to conclude that the delay is explained, at least in part, by the fact that the applicant was in custody or detention at all material times and by the need for his legal advisers to make inquiries.  In my view the delay does not warrant making an order setting aside the decision which is expressed to operate only from the date of the order.

15                  Similarly, the failure to seek reasons for the Minister’s decision does not warrant any such order.  The applicant has succeeded in setting aside the detention decisions on natural justice grounds.  Mr Lloyd did not explain how a request to the Minister to state his reasons for making the detention decision would have illuminated the issues on the challenge to the detention decision, or allowed the challenge to be resolved earlier than it was.

16                  Finally, the fact that the applicant has not (at least in the Minister’s view) advanced reasons justifying his release from detention does not answer his complaint that he was denied procedural fairness before the detention decision was made.  He has never had a fair opportunity to explain why a detention decision should not be made.  If and when that opportunity is ultimately provided the applicant may or may not be able to satisfy the Minister.  But the fact is, on the reasoning I have adopted, that the applicant was adversely affected by a decision made in excess of jurisdiction.

17                  I propose to exercise the discretion conferred on me by s 16(1)(a) of the ADJR Act by making an order setting aside the detention decision as from 15 March 2001.  In view of the Minister’s position on the release of the applicant no order for his release is required.

should a declaration be made?

18                  The amended application filed in these proceedings did not seek declaratory relief.  There was no mention of declaratory relief at the hearing which preceded the judgment of 11 July 2001.  It was only because of the fortuitous circumstance that I relisted the matter for further argument (because I wanted assistance on the date from which an order under s 16(1)(a) of the ADJR Act should operate) that afforded the applicant an opportunity to argue for a declaration.  At the further hearing, Mr Robinson did not suggest any reason why, if an order was made under s 16(1)(a) of the ADJR Act in the terms I have made, a declaration would be of practical significance for the applicant.

19                  In these circumstances, I do not think it appropriate to make the declaration now sought by the applicant.  I appreciate that the High Court in Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637 made a declaration that the detention of the appellants for a particular period was unlawful.  The Court did so in exercise of the power conferred by s 16(1)(c) of the ADJR Act, which provides for “an order declaring the rights of the parties in respect of any matter to which the decision relates”.  But Park Oh Ho involved a deportation order vitiated by an improper purpose and the question of lawfulness of the detention was in issue from the very outset of the proceedings: see at 645.

costs

20                  The proceedings before the Court involved two matters: one was an appeal on a question of law from the deportation decision made by the Administrative Appeals Tribunal; the other was an application for an order of review of the Minister’s detention decision.  The Minister succeeded on the first, the applicant on the second.  An order that each party bear his own costs in respect of each of the matters is in my view appropriate.

Associate:

Dated:              20 July 2001