FEDERAL COURT OF AUSTRALIA

Luu v Minister for Immigration and Multicultural Affairs

[2001] FCA 1136

MIGRATION LAW - Deportation – Criminal conviction – Detention pending deportation -Review of Minister’s decision to refuse order of release under s 253(9) of the Migration Act 1958 (Cth) – Review of Minister’s decision to refuse to revoke deportation order under s 206(1) of the Migration Act 1958 (Cth) – Whether detention was indeterminate

ADMINISTRATIVE LAW – Review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – Whether the decisions failed to accord applicant procedural fairness – Whether the decisions failed to take relevant considerations into account – Whether decisions were unreasonable – Whether decisions were invalid because applicant’s detention was unauthorised – Whether decisions were ultra vires because the detention was punitive

INTERNATIONAL LAW – Whether the applicant had a legitimate expectation that the Minister would act in accordance with the International Covenant of Civil and Political Rights 1966 – Whether the Minister breached the International Covenant of Civil and Political Rights 1966

WORDS AND PHRASES – “indeterminate detention”, “risk of flight”

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 206, 253(9)

Human Rights and Equal Opportunity Act 1986 (Cth)

Federal Court of Australia Act 1976 (Cth)

International Covenant on Civil and Political Rights 1966

Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 referred to

Kioa v West (1985) 159 CLR 550 applied

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

Pilbara Aboriginal Land Counsel Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Island Affairs (2000) 103 FCR 539 followed

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 cited

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 followed

Van Alphen v The Netherlands UNHRC305/88 referred to

Vo v Minister Immigration and Multicultural Affairs (2000) 98 FCR 371 referred to

Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 cited

Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 cited

Cabal v Secretary, Department of Justice (2000) 177 ALR 306 cited

Cabal v Secretary, Department of Justice  [2000] FCA 1227 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Perez v Minister for Immigration (1999) 94 FCR 287 referred to

Luu v Renevier (1989) 91 ALR 39 referred to

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 applied

Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 referred to

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 followed

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 referred to

Aronson & Dyer Judicial Review of Administrative Action 2^nd ed. 2000 cited

MINH DUNG LUU v THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, INTERVENER

V288 OF 2001

MARSHALL J

MELBOURNE

17 AUGUST 2001

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.       The applicant pay the respondent’s costs of the proceeding.

REASONS FOR JUDGMENT

1                     On 20 April 2001 the applicant, Mr Luu, applied to the Court for an order of review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  The application, as amended on 1 June 2001, sought judicial review of two decisions of the respondent Minister. The first decision was one to refuse to order the release of Mr Luu from detention pursuant to s 253(9) of the Migration Act 1958 (Cth) (“the Act”).  The second decision was one to refuse to revoke an extant deportation order in respect Mr Luu pursuant to s 206(1) of the Act.

Factual background

2                     Mr Luu is a Vietnamese citizen.  He was born in Vietnam on 10 October 1961.  He arrived in Australia on 18 January 1990 on a Class 205 Camp Clearance Visa.

3                     On 3 July 1996, the County Court of Victoria convicted Mr Luu on two counts of intentionally causing serious injury and one count of intentionally causing injury.  Mr Luu was sentenced to three years and six months imprisonment, with a minimum of two years and three months (including pre-sentence remand time) being required to be served in prison before he became eligible for parole.

4                     On 9 May 1997, a delegate of the Minister made a decision pursuant to s 200 of the Act that Mr Luu be deported. The delegate also made a direction that upon Mr Luu becoming eligible for release, he would be detained in immigration detention.

5                     Mr Luu challenged the deportation order in the Administrative Appeals Tribunal (“AAT”).  On 5 September 1997, the AAT affirmed the delegate’s decision.  Mr Luu sought judicial review of the AAT’s decision but was unsuccessful; see Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304, per Weinberg J. There was no appeal from his Honour’s judgment. The circumstances that led to the commission of the offences the subject of the deportation order are comprehensively traversed by Weinberg J at 305 to 309 of his Honour’s reasons for judgment.

6                     Mr Luu was granted parole in respect of his custodial sentence on 18 June 1997 but was immediately placed in immigration detention.  He has remained in immigration detention continuously since 18 June 1997, just in excess of four years time. Currently Mr Luu is detained at Port Phillip Prison, a maximum security prison.

7                     On 12 December 1997 Mr Luu’s then solicitors wrote to the Minister’s department requesting the release of Mr Luu pursuant to s 253(9) of the Act. Section 253(9) of the Act provides:

“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.”

8                     By letter dated 8 January 1998, a delegate of the Minister refused the solicitors’ request on the basis of her belief that Mr Luu “poses an unacceptable risk to the Australian community”. The delegate made that decision after considering information supplied on Mr Luu’s behalf, including psychiatric and psychological reports.

9                     On 23 January 1998 the delegate provided a written statement of her reasons for refusing to order Mr Luu’s release. That statement, inter alia, made the following salient points:

·        Mr Luu’s attack on 3 defenceless women was unprovoked and resulted in a most serious injury for one of the women.

·        The three victims have suffered psychological reactions to the attacks and one of them requires psychiatric assistance.

·        It was not accepted that Mr Luu was remorseful for his actions or that the risk of recidivism was minimal.

·        Mr Luu had attempted to transfer blame for his actions to his victims, had not accepted responsibility for his actions and would continue to pose a threat to his victims.

·        The victims feared for their lives if Mr Luu was released.

10                  The statement also made reference to the following issues:

§         The applicant’s offer to comply with any reasonable conditions on release.

§         Mr Luu’s good behaviour prior to the offence and that he had served the custodial portion of his sentence with good behaviour.

§         The sentencing remarks of the trial Judge.

§         In respect to the risk of re-offending - the psychiatric report provided by Dr Doherty, the psychological report by Mr Ball and the assessment of the Departmental Officer.

§         The decision of a Deputy President of the AAT on 5 September 1997 affirming deportation.

§         Offers of accommodation and employment.

11                  On 26 February 1998, an officer of the Minister’s department sent a facsimile transmission to Port Phillip Prison in the following terms:

“RE:    LUU Minh Dung CRN:107523

The abovenamed is to be Deported from Australia. He is now required to complete the attached application form for a Vietnamese passport, in Vietnamese. 4 passport size photographs are also required. We would appreciate if you could have LUU complete the form and provide the photos.”

12                  On 20 July 1998 Mr Luu applied for a protection visa in order to remain in Australia.

13                  On 3 September 1998 the Minister’s department conducted the first of four reviews of Mr Luu’s place of detention. The relevant officer decided to continue Mr Luu’s detention at Port Phillip prison. The written reasons for so doing stated as follows:

“The Immigration Detention Centre is a low security establishment and Mr Luu has been convicted of a very serious assault against the person.

The victims are still traumatised by the attack and one of them is still receiving treatment.

All are frightened that should he be released, he may try to harm them again.”

14                  A further review of Mr Luu’s place of detention was conducted on 9 November 1998. The department’s notes of the review reveal that Mr Luu inquired about a transfer to the Immigration Detention Centre but that he was advised that “he would remain in Port Phillip until the Vietnamese Government provided a travel document for him”. The reasons for that decision were stated as:

“The Immigration Detention Centre is a low security establishment and Mr Luu has been convicted of very serious assault against the person.”

15                  A further review of Mr Luu’s place of detention was conducted on 5 February 1999. The relevant official’s record of the review contained a recommendation that Mr Luu remain at Port Phillip Prison and not be transferred to the Immigration Detention Centre because “Mr Luu has been convicted of a very serious assault against the person”.

16                  On 30 March 1999 another review of Mr Luu’s detention produced the same result as previous reviews.

17                  On 21 June 1999 a delegate of the Minister refused Mr Luu’s application for a protection visa.

18                  In a decision made on 20 October 1999 the Refugee Review Tribunal (“RRT”) affirmed the decision of the Minister’s delegate to refuse Mr Luu a protection visa. On 9 November 1999, the Minister declined to exercise his discretion under s 417 of the Act to substitute for the RRT’s decision a decision more favourable to Mr Luu.

19                  On 8 February 2000, Mr Luu wrote to the Minister’s department and advised that:

“...I wish to have my removal to Vietnam effected immediately. Please pass on this request to the Vietnamese authorities to assist with the issue of a travel document.”

20                  On 9 February 2000, departmental officials commenced to make inquiries to assist Mr Luu to obtain a Vietnamese passport. Those inquiries continued up to and including July 2000, by which time Messrs Kuek and Associates had commenced to act for Mr Luu.

21                  On 10 July 2000, Kuek and Associates solicitors wrote to the Minister in the following terms:

“Dear Sir,

RE:     DEPORTATION TO VIETNAM – HARSH AND UNDUELY LONG DETENTION

We act for Mr. Minh Dung Luu. He has been in Immigration Detention since June 1997. He has signed all necessary documents and co-operated fully with your Department in an endeavour to obtain travel documents to Vietnam. Despite this, his deportation from Australia has not been effected as no travel documents have been obtained.

We understand that negotiations have been conducted with the Vietnamese Authorities over a number of years to have a memorandum of understanding in respect to the orderly return of Deportees to Vietnam.

If there is little, or no, prospect of Mr Luu being deported to Vietnam in the foreseeable future it is both contrary to the objectives of the Migration Act and costly to the community to keep him in custody. It is appropriate, in the particular circumstances of this case, to release him from immigration detention. Naturally, we would be happy to discuss any necessary special conditions for Mr. Luu’s release.

Mr. Luu is anxious to receive a favourable response from you as soon as it is reasonably possible for you. Should you have any questions please feel free to contact Mr. Gabriel Kuek of this office at any time.

Yours faithfully

KUEK & ASSOCIATES

Per:  Gabriel Kuek”

22                  On 21 July 2000, Mr Mirenda from the Minister’s department wrote to Kuek and Associates seeking assistance to obtain information required to obtain a travel document for Mr Luu. On the same day Mr Kuek of Kuek and Associates wrote to the Minister seeking a response to the firm’s letter of 10 July 2000. In a letter to Mr Mirenda dated 3 August 2000, Kuek and Associates requested that Mr Luu be released from immigration detention until his travel documents could be obtained.

23                  On 14 August 2000, a departmental officer visited Mr Luu in prison. The officer’s notes concluded as follows:

“Wants to get out of prison - dangerous/violent.”

24                  By letter dated 8 September 2000, Senator Kay Patterson replied to Mr Kuek on the Minister’s behalf. She advised that the Vietnamese authorities were considering Australia’s request for a travel document for Mr Luu. The senator concluded her letter by saying that:

“At this stage, I do not agree that there is little or no prospect of Mr Luu’s deportation being effected.”

25                  Senator Patterson also wrote to Mr Kuek regarding Mr Luu on 19 September 2000 in the following terms:

“Dear Mr Kuek

Thank you for your letter of 21 July 2000 to the Minister for Immigration and Multicultural Affairs, The Hon Mr Philip Ruddock, MP concerning the proposed deportation to Vietnam of Mr Minh Luu. Mr Ruddock has asked me to reply on his behalf. The delay in reply is regretted.

You have referred to your previous letter of 10 July 2000. A reply to that letter was sent to you on 8 September 2000.

As general background, once a deportation order has been made, Section 206 of the Migration Act (the Act) requires that it be executed accordingly. However, deportation may be delayed if:

·        a travel document is not available; and/or

·        relevant national authorities require further information to confirm the identity of the person concerned; and/or

·        relevant national authorities are not yet ready to facilitate the return.

In order to give effect to Mr Luu’s deportation order, DIMA has made ongoing direct representations to the Vietnamese Government. The Australian Government has also entered into more general negotiations with the Government of Vietnam to develop an agreed framework for facilitating the return of Vietnamese nationals to Vietnam.

Before permission to return and a travel document can be issued to a deportee, the Vietnamese Government must be satisfied as to the identity of the person being returned. Identification of a deportee includes referring the details to the relevant Ministries in Vietnam who, in turn, refer the matter to the relevant Municipal Government authority. This is a time-consuming process, especially in rural areas where communication infrastructure is limited.

In Mr Luu’s case, detention has, at all times, been in accordance with Australian law and relevant international instruments. The issue of detention pending removal of deportees has been addressed by the Australian Courts on a number of occasions. The Courts have recognised that the tests that are applied for their detention are equitable, and have determined that ongoing detention was lawful.

All persons subject to a deportation order are detained pursuant to Section 253 of the Act. The principle test applied in each case is that of balance between the support a deportee may have in the Australian community against any likely risks to the community.

A deportee will only be released from immigration detention if the delegate is satisfied that the person’s deportation from Australia would not be jeopardised by the person attempting to evade the Department, and the deportee does not represent a risk to the community.

Primary consideration is given to the Minister’s General Direction No. 9 on criminal deportation, which clearly states that deportees cannot expect to be at liberty after their sentences have been served until deportation occurs.

Following the conclusion of their prison sentences, all deportees are held at remand centres, and have the right to seek review of decisions to maintain their detention.

The Department has also been in contact with the Embassy of Vietnam in relation to Mr Luu’s case, and the Embassy has recently asked that further information about Mr Luu be provided to facilitate issue of a passport.

This has been drawn to the attention of Mr Luu’s Case Officer in DIMA Melbourne, who has sought these details from Mr Luu, as you have acknowledged in your letter.

You may be assured that all possible steps are being taken to achieve a resolution of this matter.

Thank you for drawing this matter to the Minister’s attention.

Yours sincerely

Senator Kay Patterson”

Mr Kuek replied to the Senator in a letter dated 12 October 2000 as follows:

“Dear Madam

Re:      Mr Minh Dung Luu

Thank you for your letter dated 19 September 2000. We have conveyed the contents of that letter to our client.

Your letter refers to the power to release a deportee from immigration detention. It does not, however, indicate whether the Minister (or his delegate) has in fact made a decision under s.253(9) of the Act not to order the release of Mr Luu. We would be grateful for your urgent clarification in this regard.

If no such decision has been made, we would ask that you treat this letter as a request that the Minister (or his delegate) order Mr Luu’s release under s.253(9), on the grounds that he has been in detention for more than 3 years and that there is no prospect of his deportation being effected within the foreseeable future.

As a separate matter, this letter should also be treated as a request on behalf of Mr Luu that the Minister exercise the power under s.206(1) of the Act to revoke the deportation order in respect of Mr Luu. The basis of this request is the same. It is contrary to principle and to Australia’s international obligations for a person in Mr Luu’s position to be kept in immigration detention indefinitely.

We also foreshadow that Mr Luu will require a statement of reasons pursuant to s.13(1) of the Administrative Decisions (Judicial Review) Act 1977 in respect of whatever decisions are made in response to these two requests.

If, in fact, the Minister has already made a decision under s.253(9) not to order Mr Luu’s release, we now request on Mr Luu’s behalf a statement of reasons for that decision pursuant to s.13(1) of the AD(JR) Act.

If you require any clarification, please do not hesitate to call Mr Gabriel Kuek of this office.

Yours faithfully,

KUEK & ASSOCIATES

Per:    Gabriel Kuek”

26                  On 19 February 2001, Mr Luu commenced a proceeding in this Court in respect of the Minister’s failure to make an order for his release under s 253(9) of the Act or to revoke the deportation order under s 206(1) of the Act.

27                  On 13 March 2001, at the hearing of the application which was commenced on 19 February 2001, counsel for the Minister advised the Court that the Minister had decided not to release Mr Luu and not to revoke the deportation order. Those decisions were made on 12 March 2001. The Minister’s belated decisions rendered the proceeding initiated by the applicant futile. Consequently, the Court ordered that the respondent pay the applicant’s costs. On 20 April 2001, by facsimile transmission of that date, Mr Mirenda forwarded to Mr Kuek the Minister’s written reasons for his decisions to refuse to release Mr Luu and for not revoking Mr Luu’s deportation order.

28                  The Minister’s statement of reasons dated 18 April 2001 is divided into three sections entitled:

·        FINDINGS ON MATERIAL QUESTIONS OF FACT

·        EVIDENCE ON WHICH FINDINGS WERE BASED

·        REASONS FOR DECISION

29                  The most critical findings under the heading “FINDINGS ON MATERIAL QUESTIONS OF FACT” were as follows:

·        “The risk of Mr Luu re-offending is significantly high. He constitutes a continuing danger to the Australian community, in particular to his victims.”

·        “There is a risk that Mr Luu would attempt to avoid deportation by evading the Department if he were released from detention.”

·        “The Australian Government’s negotiations with the Vietnamese Government towards concluding a Memorandum of Understanding (MOU) in relation to the return of criminal deportees have progressed substantially in recent times and there is a high probability that a MOU will be concluded later in the year.”

30                  Under the heading “EVIDENCE ON WHICH FINDINGS WERE BASED” the following was set out:

“a)      Material contained in an undated Departmental Minute to me at the foot of which, on 12 March 2001, I indicated my decisions in this matter.

b)         Briefing material containing negotiations with the Vietnamese Government towards concluding a MOU.”

31                  The Departmental Minute referred to above in a) (“the Departmental Minute”) comprises of a six page document summarising the history of Mr Luu’s continued detention and referring to various matters which the Minister was able to consider in coming to his decisions.

32                  In the section headed “REASONS FOR DECISION” the Minister, inter alia:

·        placed “particular weight” on the sentencing judge’s comment that “the attacks were most serious, were unprovoked and were on defenceless women, with the injury to one victim almost resulting in amputation at the wrist”

·        placed “weight” on “the fact that all three victims were fearful of what Mr Luu would do if released.

·        noted Mrs Luu’s claims that her husband had previously been violent towards her.

·        noted “the progress made towards the establishment of an MOU with the Vietnamese Government” including an expectation that the MOU would be concluded by “possibly mid-year”.

·        concluded that “because of the risk of flight and .. the danger Mr Luu presented to ... his victims, the exercise of my power to release Mr Luu from detention, whether under reporting conditions or otherwise, was not justified.”

33                  The Minister concluded his statement of reasons with a summary of his reasons for refusing to revoke the deportation order and for refusing to release Mr Luu from detention. As to the first issue, the Minister said:

“I considered that the offences committed by Mr Luu were most serious and that the risk of Mr Luu re-offending was significantly high. I concluded that he constituted a continuing danger to the Australian community, in particular to his victims. I noted that it is likely that a MOU will be concluded with Vietnam later in the current year in relation to the return to Vietnam of criminal deportees. Accordingly, I decided not to revoke the deportation order.”

34                  On the topic of release from detention under s 253(9) of the Act, the Minister said that:

“Bearing in mind the progress made towards the establishment of an MOU with the Vietnamese Government, and notwithstanding the offers of accommodation, employment, counselling and supervision, I concluded that the risk of flight and the interest of protecting the Australian community, in particular Mr Luu’s victims, justified his continuing detention for the time being. Accordingly, I decided not to release Mr Luu from detention under s 253(9).”

Intervention of HREOC

35                  By notice of motion dated 31 May 2001, the Human Rights and Equal Opportunity Commission (“HREOC”) sought leave to intervene in the proceeding. There was no opposition to HREOC’s motion. On 5 June 2001, the Court ordered that HREOC be granted leave to intervene and make submissions in the proceeding pursuant to s 11(1)(o) of the Human Rights and Equal Opportunity Act 1986 (Cth).

36                  At the hearing on 19 and 20 June 2001, Mr C Maxwell QC with Mr H Carmichael of counsel appeared for the applicant. Mr R Tracey QC with Mr C Horan and Mr G Mowbray of counsel appeared for the respondent. Ms A Healey of counsel appeared for HREOC.

THE APPLICANT’S CONTENTIONS

37                  The applicant challenged the decisions of the Minister on the following grounds:

·        The decisions breached natural justice by not according Mr Luu procedural fairness (“Procedural Fairness Ground of Review”).

·        The decisions involved an improper exercise of power by failing to take relevant considerations into account (“Relevant Consideration Ground of Review”).

·        The decisions involved an improper exercise of power in that it was so unreasonable no other reasonable person could have exercised the power (“Unreasonableness Ground of Review”)

·        The decisions were invalid because Mr Luu’s detention was unauthorised (“Unauthorised Detention Ground of Review”)

·        The decisions were ultra vires because the detention was punitive (“Punitive Detention Ground of Review”)

38                  Many of the issues raised by the applicant overlap a number of grounds of review.

PROCEDURAL FAIRNESS GROUND OF REVIEW

39                  The applicant submitted that the Minister’s decisions were in breach of natural justice as Mr Luu was not accorded procedural fairness. In oral submissions Mr Maxwell contended that procedural fairness had not been accorded on a number of grounds, namely:

·        The Minister had not informed Mr Luu of the critical issues on which the decisions were likely to turn. The Minister had not given Mr Luu a chance to address such issues. (“Fair Hearing Ground”)

·        The Minister had not informed Mr Luu of an adverse finding against him, not obviously open on the facts. Consequently, the Minister had not given Mr Luu a chance to address this adverse finding. (“Adverse Finding Ground”)

·        Mr Luu had a legitimate expectation that the Minister would exercise his power under s 253(9) of the Act in accordance with the International Covenant on Civil and Political Rights 1966 (“the ICCPR”). The applicant submitted that the Minister had acted otherwise than in accordance with the ICCPR and as a result was required to accord Mr Luu procedural fairness by affording him an opportunity to make submissions that the Minister should follow the ICCPR (“Legitimate Expectation Ground”)

40                  At the beginning of the respondent’s oral submissions, Mr Tracey clarified that, despite written submissions which may suggest the contrary, the respondent conceded that natural justice applied to the Minister’s decisions. However, Mr Tracey submitted that any obligation that the Minister may have had under procedural fairness had been satisfied.

41                  I will consider the contended grounds of procedural fairness separately.

Fair Hearing Ground

The submissions

42                  In written submissions the applicant contended that the Minister had not informed Mr Luu of the following critical issues on which the decision turned:

(a)   “whether there was any (and if so what degree of) risk that the applicant would re-offend if released;

(b)   whether the applicant’s release would create any (and if so what degree of) risk of harm to those he assaulted in March 1995;

(c)    whether there was any (and if so what degree of ) risk that he, the applicant, if released, would attempt to avoid deportation by evading the Department; and

(d)   whether there was any realistic prospect of the deportation order being effected within a finite and reasonable time.”

43                  Further it was contended that Minister had not informed Mr Luu that he intended to rely on material from 1998 without any further investigation. It was submitted that the Minister failed to give Mr Luu an opportunity to make submissions on these critical issues or interview Mr Luu with regard to conditions that may govern his release.

44                  In response, Mr Tracey submitted that Mr Luu’s request for the Minister to exercise power to release Mr Luu or revoke his deportation should be likened to an initial application, where natural justice does not normally apply. In light of this characterisation, Mr Tracey submitted that only minimal procedural fairness requirements applied, and the Minister had more than fulfilled his obligations to accord procedural fairness in the circumstances.

45                  Mr Tracey submitted that all the critical issues on which the Minister’s decisions turned were already know to the applicant, as such issues were revealed in previous AAT and RRT decisions involving Mr Luu and various correspondence between the applicant’s solicitors and representatives for the Minister. In oral submissions, Mr Tracey made particular reference to the two following documents:

·        A letter dated 23 January 1998 from Ms Whitmore (a delegate of the Minister) to the applicant’s solicitors. The letter provides a written statement of Ms Whitmore’s reasons for refusing Mr Luu’s release at that date (see above at [9]) (“the 1998 Letter”).

·        A letter dated 19 September 2000 from Senator Kay Patterson to the applicant’s solicitors (as quoted above at [25]) (“the Senator Patterson Letter”). Of particular significance the Senator makes reference to:

§         Negotiations between the Vietnamese government and the Australian government to effect Mr Luu’s deportation, and general negotiations to “develop an agreed framework for facilitating the return of Vietnamese nationals to Vietnam”. The latter is a reference to the MOU negotiations.

§         The ‘test applied’ in considering whether a person should remain in detention –

 “The principle test applied in each case is that of balance between the support a deportee may have in the Australian community against any likely risk to the community.

A deportee will only be released from immigration detention if the delegate is satisfied that the person’s deportation from Australia would not be jeopardised by the person attempting to evade the Department, and the deportee does not represent a risk to the community.”

46                  Mr Tracey submitted:

“… that nowhere in [the Minister’s] reasons [for decision] does the minister rely, for the purpose of making his decision, on any issue that has not been exposed to the applicant as being central and relevant to the decision-making process in the two documents”

47                  Mr Tracey further contended that Mr Luu, acting through his solicitors, had been free to make submissions to the Minister regarding the critical issues at any time. As an example Mr Tracey pointed to the fact that on 7 March 2001 Mr Luu’s solicitors had written to the Minister requesting that the Minister take into account the availability of supervision, accommodation, counselling and employment if Mr Luu was released. Mr Tracey also submitted that procedural fairness did not oblige the Minister to conduct any further investigation to obtain more recent information on Mr Luu.

Consideration

48                  The requirements of procedural fairness are flexible and depend on the circumstances in a particular case: Kioa v West (1985) 159 CLR 550 (“Kioa”). The requirements of procedural fairness may vary depending on the statutory context, the interest of the individual affected and the interests and purpose which the statute seeks to protect or advance: Kioa at 585 per Mason J. In considering the requirements of procedural fairness in the circumstances, I have taken into account that Mr Luu initiated the application. However, I reject the respondent’s contention that the court should characterise the application as an “initial application”. Mr Luu’s situation is not comparable with someone applying for a new licence – Mr Luu is, in effect, applying for his liberty, a basic human right. I have also taken into account the fact that Mr Luu was represented by solicitors. In light of this fact, I do not consider that procedural fairness in the circumstances required a full hearing. Rather, procedural fairness in the circumstances required Mr Luu to be informed of the critical issues and given a “meaningful opportunity to respond”: Nguyen v MIMA [2001] FCA 887 at 22 per Sackville J. I consider the opportunity to make written submissions would satisfy procedural fairness in the circumstances.

49                  Procedural fairness only requires the decision-maker to bring the “gravamen or substance” of the issues to the applicant’s attention: Pilbara Aboriginal Land Council  Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 (“Pilbara”) per Merkel J. I agree with Mr Tracey’s submission that the previous RRT and AAT decisions and the two letters specified above served to highlight the substance of the critical issues to the applicant. While no specific reference was made to the “MOU” in either of the letters specified above, reference was certainly made to general negotiations in the Senator Patterson letter. Furthermore, it is clear from correspondence between the applicant’s solicitors and the Minister, that the applicant was aware of the MOU and its importance to the decision. For example a letter from the applicant’s solicitors to the Minister dated 10 July 2000 stated:

“We understand that negotiations have been conducted with the Vietnamese Authorities over a number of years to have a memorandum of understanding in respect to the orderly return of Deportees to Vietnam…

If there is little, or no, prospect of Mr Luu being deported to Vietnam in the foreseeable future it is both contrary to the objectives of the Migration Act and costly to the community to keep him in custody.”

I recognise an individual in detention, unlike a government department, lacks resources and support staff, and that requiring him or her to make submissions to the Minister can be a heavy burden. However, as Mr Luu was represented by legal practitioners, I consider that he had adequate opportunity to respond to the issues raised by previous RRT and AAT decision s and the two relevant letters. I do not consider that procedural fairness obliged the Minister to specifically inform Mr Luu that the Minister would be relying on material current as at 1998. I will return to the issue of whether the Minister was under a duty to initiate investigation.

Adverse Conclusions Ground

50                  The basic ‘fair hearing’ requirement of procedural fairness is further qualified by a more specific requirement to notify the applicant of adverse conclusions that have been arrived at which are not obviously open on the known material. See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 (“Alphaone”) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 at 348 where Jenkinson J refers to this requirement as a “gloss on the general rule”.

51                  In approaching this particular requirement of procedural fairness, the Court must be cautious not to overstep the line between judicial review and merits review. Procedural fairness does not require a decision-maker to reveal all adverse preliminary conclusions or mental processes: see Alphaone at 592 and Aronson & Dyer Judicial Review of Administrative Action, 2^nd ed 2000 at 425. However, when a decision-maker makes an adverse finding that doesn’t naturally flow from the known material, procedural fairness requires the decision-maker to inform the applicant of this finding so he or she can have a real and meaningful opportunity to respond to the case against him or her.

52                  In the present proceeding, Mr Maxwell submitted that the Minister’s finding that there was a risk that Mr Luu would abscond upon release from detention was an adverse finding not obviously open on the known material. Mr Maxwell submitted that there was no clear evidence on which the Minister could rely to conclude Mr Luu might abscond. Mr Maxwell noted that the 1998 Letter made no reference at all to the risk of flight issue. Rather, it was contended the only recent evidence relevant to the risk of flight supported the view that Mr Luu would not abscond. In particular, on 8 February 2000, Mr Luu wrote to the Minister’s department requesting “to have my removal to Vietnam effected immediately” (see above at [19]).  Mr Maxwell contended that “… far from showing a risk of flight, [this letter] shows an enthusiasm for being deported at the earliest practicable opportunity.”

53                  In the respondent’s written contentions it was submitted:

“It was open to the Minister to adopt a prima facie view that, in the absence of evidence suggesting the contrary, a deportee may attempt to avoid deportation by evading the Department. The finding that there remained a risk that the applicant may attempt to avoid deportation by evading the Department was based on an implicit finding that deportees generally are at risk of flight."

54                  In oral submissions, Mr Tracey did not expand on this argument. Rather Mr Tracey contended that the Minister was entitled to draw the inference that Mr Luu was likely to abscond by reference to the fact that Mr Luu had wanted to remain in Australia up until early 2000. Mr Tracey submitted:

 “Both before the delegate and at the end of 1999 before the Refugee Review Tribunal, [the Applicant] was contending that he was in mortal fear of return to Vietnam by reason of the fact, amongst others, that he was an alleged deserter from the Vietnamese army, that he had left the country under circumstances that may have involved breaches of the Vietnamese law and these were considerations that were being advanced extremely heavily on his behalf and by him personally in evidence to the Refugee Review Tribunal…

[The applicant’s letter] was a stated change of position, but one could certainly harbour doubts as to the veracity of it, having regard to the history that I have just… outlined…it wasn’t just “send me back”, it was “release me and send me back”.

55                  In reply, Mr Maxwell contended that there was no evidence before the Minister to support a view that Mr Luu’s claim that he wanted to be deported should be treated with scepticism. Mr Maxwell submitted that the Department’s own officers appeared to take Mr Luu’s claim at face value. He pointed to an internal Departmental facsimile dated 9 February 2000, were a departmental officer held:

“Having exhausted all revue/refugee avenues, [Mr Luu] is now very keen to be released and return to Vietnam…

He stated that a cousin in Vietnam is attempting to assist him to obtain a Vietnamese passport. He says that the application was lodged at the local level in Saigon and has proceeded through all official levels (local, municipal, regional etc) to the point that Hanoi will now issue a passport on receipt of a$7000. The cousin can only come up with $3000 and Luu asks if the DIMA can assist…”

Suggest the cousin be contacted to investigate Hanoi’s willingness to issue a passport”

56                  Mr Maxwell was also referred to the Departmental Minute in front of the Minister which stated as follows:

“Mr Luu had refused to cooperate with attempts to apply for a Vietnamese travel document after he was served the deportation order. After exhausting review avenues he was keen to be released and to be returned to Vietnam and on 8 February 2000, signed a request to have his removal effected immediately.”

57                  Mr Maxwell submitted that “there was no scepticism either in February 2000 or in March 2001. [Mr Luu’s statement] was taken at face value as being a genuine statement of his desire to leave”.

58                  I have spent some time considering this matter because the respondent’s submission that the Minister can adopt a prima facie view that there is a risk of flight based on “an implicit finding that deportees generally are at risk of flight” is of some concern. I consider that the subject-matter, scope and purpose of the discretion given to the Minister under s 253(9) of the Act necessarily implies that the behaviour and actions of the individual applicant will be a relevant consideration. The fact that release may be either unconditional or subject to specific conditions highlights this point. Such an interpretation of s 253(9) requires the Minister to consider the applicant’s individual behaviour and actions, rather than making blanket assumptions about the risk of re-offending and the risk of flight. This is particularly so when there is evidence to suggest that contrary to such assumptions the applicant will not abscond – such as Mr Luu’s statement requesting to be returned to Vietnam. 

59                  Despite these concerns, in the present circumstances I consider it was open to the Minister to find that there was a risk of flight. The Departmental Minute in front of the Minister made reference to both Mr Luu’s history of attempts to remain in Australia and Mr Luu’s more recent request to be deported to Vietnam. It is reasonable to assume that the Minister considered both of these factors before coming to the conclusion that there was a risk of flight. Furthermore, the applicant was aware that risk of flight was one of the critical issues on which the Minister would make his decision. It was open to the applicant to make submissions to convince the Minister that there was no risk of flight.

Legitimate Expectation Grounds

60                  In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (“Teoh”) the High Court found that an applicant has a legitimate expectation that a decision-maker will act in accordance with an international treaty Australia has ratified. If the decision-maker acts inconsistently with such a legitimate expectation, an obligation to accord procedural fairness will arise. In Teoh Mason CJ and Deane J at 291 – 292 held:

“… if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.”

61                  Teoh remains good law regardless of the joint Ministerial Statements by the Attorney General and the Minister of Foreign Affairs on 10 May 1995 and 25 February 1997. As Goldberg J held in Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 105 in relation to the Ministerial Statement made on 25 February 1997:

“I do not consider that [the Ministerial Statement] is a ‘clear expression by the Executive of a contrary indication’. Put shortly, the Statement appears to be saying that Teoh is not the law. However, Teoh is a principle to be observed by decision-makers unless and until the Parliament or the Executive tells decision-makers not to act in accordance with treaties; or until the Parliament legislatively overrules Teoh.”

62                  In the current proceeding, the applicant and HREOC submitted that Mr Luu had a legitimate expectation that the Minister would exercise his power under  s 253(9) of the Act in accordance with the ICCPR. It was further submitted that the Minister had acted otherwise than in accordance with the ICCPR, and as a result was required to accord Mr Luu procedural fairness. Finally, it was submitted that procedural fairness in the circumstance was not accorded.

63                  I consider Australia’s ratification of the ICCPR which, inter alia, establishes international standards for the treatment of detainees, creates a legitimate expectation that the Minister in exercising power under s 253(9) will act in accordance with the ICCPR. The applicant contended that the Minister’s decision under s 253(9) breached Arts 7 and 10(1) of the ICCPR. HREOC supported these submissions, and further submitted that the Minister’s decision breached Arts 9(1), 10(2)(a)  and 26 of the ICCPR. The relevance of the ICCPR to the Minister’s decisions has been a recurring theme in this proceeding, so I will consider it in some detail now. The relevant articles provide as follows:

·        Art 7 provides:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…”

·        Art 9(1) provides:

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

·        Art 10(1) provides:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

·        Art 10(2)(a) provides:

“Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons”

·        Art 26 provides:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”

64                  The core submission of the applicant and HREOC was that the Minister’s decision under s 253(9) was in breach of the identified articles of the ICCPR (with the exception of Art 10(2)(a) which deals with segregation) because the decision had the effect of keeping Mr Luu in indeterminate detention.

65                  None of the articles identified make specific reference to indeterminate detention. However, I consider that it can fairly readily be accepted that indeterminate detention would usually breach the above named articles. In particular:

·        Indeterminate detention can be considered ‘cruel, inhuman or degrading treatment or punishment’ – and therefore prohibited under Art 7.

·        Indeterminate detention can be considered ‘arbitrary’ and therefore prohibited under Art 9(1): See Van Alphen v The Netherlands UNHRC 305/88 at [5.4] where it was held arbitrariness “is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predicability.”

·        Keeping someone in indeterminate detention is likely to lack “respect for the inherent dignity of the human person” – and therefore be prohibited under Art 10(1)

66                  Following Teoh, if the Minister exercised his discretion under s 253(9) to keep a person in indeterminate detention he would be required to accord the person procedural fairness. Compare Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 (“Vo”) where a Full Court of this Court rejected an argument that the length of detention pursuant to s 253 can of itself destroy the legal validity of the detention. However, Vo does not undermine the requirement that the Minister should accord procedural fairness if the effect of his or her decision is to act otherwise than in accordance with an international treaty. It then becomes imperative to decide whether the Minister’s decision had the effect of keeping Mr Luu in indeterminate detention.

67                  The applicant submitted:

“… at all times between May 1997 and July 2000, it was a matter of complete uncertainty whether, and if so when, a deportation agreement would be entered into, such that the Minister could deport the applicant.

…

Further… as at the date of the decisions (March 2001), the question of whether , and if so when, an Australia-Vietnam deportation agreement would be made was still a matter of uncertainty…”

68                  In response, the respondent contended that Mr Luu’s detention was not indeterminate, but simply a result of delay in finalising arrangements for the deportation of Mr Luu.

69                  The central question in issue is whether the Minister’s decision of 12 March 2001 was a decision to keep Mr Luu in indeterminate detention: see Vo at [19] where the Full Court held that the legality of a decision “must be tested in the circumstances at that point of time”. For this reason I have not addressed whether a decision made by the Minister prior to 12 March 2001 would have been a decision that had the effect of keeping Mr Luu in indeterminate detention.

70                  In the Minister’s reasons for decision, the Minister made reference to the on going negotiations between Vietnam and Australia as follows:

“I also noted the progress made towards the establishment of an MOU with the Vietnamese Government as follows:

·        A draft MOU was submitted to the Vietnamese Government in March 2000;

·        A counter-draft of this agreement was received in December 2000 following inter-governmental communication on the terms of the MOU in the preceding months;

·        Following the provision of a refined draft, a team of officials from my Department and the Department of Foreign Affairs and Trade visited Hanoi in February 2001 to further negotiate the terms of the MOU;

·        The discussions were constructive and encouraging , with the Vietnamese expressing a willingness to conclude the MOU at an early date, possibly mid-year;

·        The Vietnamese Government is to produce a further draft MOU based on the outcome of these discussions”

71                  Later the Minister held “it is likely that a MOU will be concluded with Vietnam later in the current year in relation to the return to Vietnam of criminal deportees.”

72                  In my opinion, the effect of the decision of the Minister at 12 March 2001 was not to place Mr Luu in indeterminate because the Minister was able to give a reasonably specific approximation of when Mr Luu was likely to be deported. Clearly, such an approximation must be supported by evidence confirming its likelihood. If the evidence showed that the Vietnamese government had refused to enter into negotiations or if negotiations appeared to have stagnated, the Minister’s approximation that an MOU was likely to conclude would be unfounded and his decision may well have had the effect of keeping Mr Luu in indeterminate detention. However, in the circumstances, the evidence before the Minister suggested that negotiations between Vietnam and Australia had progressed. On this basis the Minister found it was likely that an MOU would be concluded by the end of the year. I am in no position to dispute this finding. As noted above I have not addressed whether a decision made by the Minister prior to 12 March 2001 would have been a decision that had the effect of keeping Mr Luu in indeterminate detention.

73                  It follows that as the Minister’s decision at 12 March 2001 did not have the effect of keeping Mr Luu in indeterminate detention, the decision did not contravene the ICCPR in this regard. Consequently, the Minister was not required to accord Mr Luu procedural fairness with respect to the indeterminacy issue.

            Other Issues Regarding Legitimate Expectation

74                  HREOC further submitted that the Minister’s decision under s 253(9) might have breached Arts 9 and 26 of the ICCPR because it was “preventative detention”. I agree with the respondent’s contention that so long as the essential purpose of detention is for deportation, the fact that the Minister had regard to the risk of recidivism when making his decision to keep Mr Luu in detention, does not result in the detention being characterised as preventative. HREOC acknowledged that this Court, in a number of cases, has recognised that the Minister is entitled to have regard to risk to the community in exercising his or her discretion under s 253(9). See for example Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 at [86] per Weinberg J and Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389.

75                   HREOC also contended that in keeping Mr Luu, a ‘civil prisoner’, in Port Philip prison, he was not effectively segregated from persons serving sentences for criminal offences. Consequently, it was submitted that the decision to keep Mr Luu in such detention was in breach of Arts 7, 10(1) and 10(2)(a) of the ICCPR. There is no evidence before me to suggest that Mr Luu’s detention in Port Phillip Prison of itself, constitutes a breach of Arts 7 or 10(1) of the ICCPR. While keeping a civil prisoner in a state prisoner is far from ideal, there may be internal mechanisms in place to ensure that such detention is not in contravention of Arts 7 and 10(1). In relation to Art 10(2)(a), Australia’s ratification of the ICCPR was subject to a reservation specifically in relation to this article. The reservation to Art 10(2)(a) is as follows:

“…In relation to paragraph 2(a) [of Art 10] the principle of segregation is accepted as an objective to be achieved progressively…”

76                  The effect of the reservation is that Australia does not have “an absolute international obligation to ensure the segregation of unconvicted prisoners from convicted prisoners”: see Cabal v Secretary, Department of Justice (2000) 177 ALR 306 at [28] per Gray J, affirmed by the Full Court in Cabal v Secretary, Department of Justice [2000] FCA 1227.  Consequently, Australia’s ratification of the ICCPR cannot give rise to a legitimate expectation to act in accordance with 10(2)(a) of the ICCPR. For current purposes, I have not found it necessary to consider whether there is a legitimate expectation that Australia will act towards achieving segregation.

RELEVANT CONSIDERATION GROUND OF REVIEW

77                  In the Amended Application the applicant submitted that the Minister’s decisions were void because the Minister failed to take into account a number of relevant considerations. In response the respondent submitted that the Minister was not bound to take any of the listed considerations into account, or alternatively, those considerations had been taken into account.

78                  The majority of the applicant’s submissions under this heading can be dealt with quickly on the basis that the Minister did have some regard to these considerations because he specifically mentions them in his reasons for decision or they are noted in the Departmental Minute he referred to. Without deciding whether these are “relevant considerations” for the purpose of the Minister’s decisions, I note that the Minister had some regard to the following issues raised by the applicant:

·        Mr Luu’s continuous detention since June 1997 – Para 3 of the Departmental Minute.

·        Mr Luu’s detention in Port Phillip prison as opposed to a migration detention centre – Para 3 of the Departmental Minute.

·        The availability of Mr Luu’s supervision and accommodation should Mr Luu be released – Para 3(i) of the Minister’s reasons for decision and para 19 of the Departmental Minute.

·        Whether the risk to the community or the risk of flight could be addressed by making the applicant’s release subject to conditions – the Minister expressly rejected this option at 3(i) of his reasons for decision.

79                  While the above matters raised by the applicant have only briefly been considered by the Minister, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to matters: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason (“Peko-Wallsend”).

80                  The remaining matters that the applicant submitted the respondent was bound to take into account and failed to do so were Australia’s obligations under Art 7 and 9 of the ICCPR; the indeterminate nature of Mr Luu’s detention; and Mr Luu’s record of good behaviour in detention. It is convenient to consider the first two matters together.

Arts 7 and 9 of the ICCPR and Indeterminate Detention

81                  Both the applicant and HREOC contended that the Minister failed to take into account a relevant consideration by failing to have regard to Australia’s obligations under Arts 7 and 9 of the ICCPR. In response the respondent submitted that:

“there is no general principle that the decision-maker is bound (as opposed to entitled) to take into account the terms of international treaties when exercising a statutory power. The relevant considerations … are ascertained from the terms of the statute, either expressly or by implication from its subject matter, scope and purpose.”

82                  I agree with the respondent that there is no “general principle” that a decision-maker is bound to consider international treaties. However, it is clearly conceivable that the “subject-matter, scope and purpose” of a particular statute may require consideration of international law and Australia’s international obligations.

83                  In Perez v Minister for Immigration (1999) 94 FCR 287 (“Perez”), Madgwick J considered, inter alia, the construction of ss 206 and 253(9) of the Act. His Honour referred to “two well- established principles of statutory construction” at [19]:

“First, absent clear statutory warrant, fundamental common law rights and human rights ought not be abrogated. In Wentworth v NSW Bar Association (1992) 176 CLR 239 at 252, Deane, Dawson, Toohey and Gaudron JJ said:

“There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms.”

It is trite law that preventive detention may not be judicially undertaken except with clear legislative, as well as constitutional warrant: Kable v Director of Public Prosecutions (1996) 189 CLR 51. Such detention by mere administrative fiat, not constrained by the elaborate safeguards in favour of liberty which attend judicial deprivations of liberty, should even less readily be taken to have been intended by an Australian Parliament. Secondly, legislation ought to be read, where possible, in conformity with established rules of international law and Australia’s international obligations. Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38:

“We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty.”

Although, this second principle does not lend to the importation of the terms of a treaty or convention into Australian municipal law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J and Nulyarimma v Thompson [1999] FCA 1192 per Wilcox and Whitlam JJ), it does lend support to a construction which is required under the first.”

84                  His Honour then quoted Art 9 of the ICCPR and held at [21]:

“It follows that, where a proposed deportation order is likely to result in administrative detention of unacceptable duration, the order may not be statutorily authorised, absent clear legislative command.”

85                  The Full Court in Vo differed with Perez on the issue of whether the length of detention itself could destroy the legal validity of the detention. However, the Full Court did accept that matters such as unreasonable delay and the likelihood of indeterminate detention –understood in the context of fundamental common law rights and international laws prohibiting such conduct – were matters that went to the merits of a decision under s 253(9): see Vo at [12].

86                  Consequently, I consider both Perez and Vo support the proposition that in some situations international law and Australia’s international obligations will be relevant considerations to the Minister’s exercise of discretion under ss 206 and 253(9) of the Act. As noted above, I consider the ICCPR, which inter alia deals with the treatment of detainees, to be relevant to the decision of the Minister to continue to keep a person in detention.

87                  However, as also noted above, I do not consider that the decision of 12 March 2001 had the effect of keeping Mr Luu in indeterminate detention. In Peko Walsend, Mason J held at 40:

“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.”

88                  In my opinion, failure by the Minister to take Arts 7 and 9 of the ICCPR into account did not have a material affect on the Minister’s decision. It is unrealistic to expect administrative decision-makers to make reference to every relevant international obligation affecting their decisions. However, if on the other hand, a decision-maker makes a decision contrary to a relevant international obligation, the decision-maker will be bound to take this international obligation into account. This must necessarily be the case, if not for any other reason than to accord procedural fairness to an applicant for acting inconsistently with their legitimate expectation (see above at [60 – 62]).

Good Behaviour

89                  At 9C of the Amended Application the applicant submitted:

“… in considering whether the release of Luu would constitute any (and if so what degree of ) risk to the community or to his victims, or a risk of his evading deportation, the Minister failed to take into account Luu’s record of consistent good behaviour while in custody and in detention.”

90                  Specifically, the applicant referred to four documents entitled “Review of Place of Detention for Immigration Detainee” dated from 3 September 1998 to 17 March 1999 (“the Review Reports”). Each document recorded Mr Luu as having “no behavioural problems”. Solicitors for the applicant did not put forward any further evidence recording Mr Luu’s good behaviour in detention. In oral submissions, when asked why the Minister was bound to have regard to good behaviour, Mr Maxwell contended:

“Because it’s having regard to the nature of the question, which is, “Should I exercise a discretion to release”, and having regard to risk of evasion and risk of reoffending, he must consider, in our respectful submission, material in the knowledge of his department relevant to the propensity of that person to behave reasonably, lawfully and so on, to subject himself to constraint, or alternatively to resist constraint”

91                  In response, Mr Tracey contended that Mr Luu’s good behaviour was not a consideration that the Minister was bound to take into account. Rather it was a fact that might assist in resolving a relevant consideration – namely whether Mr Luu was likely to re-offend or attempt to abscond.

92                  I have spent some time considering this matter because I am concerned that the Minister made his decision with little or no reference to Mr Luu’s behaviour or actions over the last two to three years. As noted above, I consider a detainee’s behaviour and actions a central consideration to the exercise of the Minister’s discretion under s 253(9) (see above at [58]). However, ultimately, I agree with Mr Tracey that good behaviour reports cannot be considered a relevant consideration of themselves. Consequently, the Minister is not bound to take reports of good behaviour into account. In any event, it cannot be assumed that the Minister did not take the good behaviour reports into account. The Departmental Minute referred to the four Review Reports as follows:

“The questions of detention and place of detention have been reviewed on a number of occasions. It has been decided that release would be inappropriate as Mr Luu poses an unacceptable risk to the Australian community.”

93                  It may be assumed that notwithstanding positive reports of Mr Luu’s behaviour in detention recorded in the Review Reports, countervailing factors such as the seriousness of Mr Luu’s crime, tipped the balance in the decision-maker’s mind.

UNREASONABLENESS GROUND OF REVIEW

94                  The applicant also submitted that the Minister’s decisions were unreasonable. It was submitted that the decisions were unreasonable in the Luu v Renevier (1989) 91 ALR 39 (“Renevier”) sense in that the Minister failed to make reasonable inquires, and that the decision was unreasonable in the Wednesbury sense in that no reasonable person would have made such decisions.

Luu v Renevier Unreasonableness - Duty to inquire

95                  In oral submissions, under a number of headings including procedural fairness and unreasonableness, Mr Maxwell contended that the respondent had a duty to make inquiries regarding Mr Luu’s risk of re-offending and risk of flight “in order to exercise his significant powers properly”. Mr Maxwell relied on observations by a Full Court of this Court in Luu v Renevier. In Renevier at 50 Davies, Wilcox and Pincus JJ held that a decision may be unreasonable where:

“…to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.”

96                  Mr Maxwell submitted that in the light of Renevier the Minister’s failure to make fresh inquires into the risk of re-offending and the risk of flight rendered the Minister’s decision unreasonable.

97                  In response, Mr Tracey contended that there was no obligation on the Minister to conduct an investigation to obtain further information or material.

98                  I have previously expressed my concern about the Minister’s apparent failure to consider Mr Luu’s behaviour and actions over the past few years in detention. I am also aware that the Minister is in a far better position than a detainee to initiate medical and psychological assessments (particularly with regard to financial capacity and access to knowledge and resources). However, the circumstances in which a decision-maker is actually required to make inquiries is very restricted. In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 Wilcox J held:

“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of a decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it””

99                  Any duty on the decision-maker to inquire is generally restricted to material that is readily available. Behavioural evidence, which the Minister is required to create through interviews and assessment, does not fall into the definition of readily available material. Consequently, while I note the inadequacies of making a decision under s 253(9) without reference to the recent behaviour and actions of the applicant, I do not consider that the law in the current circumstances requires the Minister to initiate investigations into the applicant’s behaviour and actions. The law is particularly unlikely to require such investigations when the detainee is represented by solicitors: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 170 – 171 per Toohey J.

Wednesbury Unreasonableness

100               The applicant contended that the Minister’s decisions were unreasonable in the Wednesbury sense on a number of grounds.

101               Wednesbury unreasonableness is a very difficult ground to establish. The Minister’s decision to refuse to release Mr Luu after four years in immigration detention might be considered harsh and inappropriate, especially when the result of the decision is to keep Mr Luu, a civil prisoner, in Port Phillip prison.

102               Furthermore, the reasoning behind the Minister’s findings that:

·                      the risk of Mr Luu re-offending is significantly high; and

·                      there is a risk that Mr Luu will abscond if released

are open to question considering there has been no detailed investigation into any of those matters for some considerable time, and there is only inferential evidence to support the finding that there is a risk of flight.

103               However, it is one thing to consider that the Minister’s decisions were harsh and to criticise his line of reasoning. It is an entirely different thing to find the decisions unreasonable in the Wednesbury sense. As Wilcox J commented in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 at [24] – [25]:

“… a reviewing court is not entitled to find Wednesbury unreasonableness simply because the court disagrees – even profoundly disagrees – with the weight given by the decision-maker to the various factors relevant to  his or her decision. There must be more than that. In Bromley London Bourough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock described unreasonable decisions as those which ‘looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them’. Words like ‘absurd’, ‘irrational’ and ‘illogical’ have often been used in this context.

…

The matters [raised by the applicant] go only to the soundness of the deportation decision. That is not a matter for the Court.”

104               Similarly, the matters raised by the applicant go only to the soundness of the Minister’s decisions. The Minister’s decisions cannot be considered so unreasonable that no reasonable person would have made them.

105               In particular, the applicant submitted under this heading that the Minister’s decisions were unreasonable because:

“…[the] Minister deliberately delayed making any decision in the hope that, with the passage of time, the position with respect to making of a Australia-Vietnam deportation agreement might become clearer.”

106               I reject this submission on the grounds that there is no cogent evidence to support it.

107               The applicant also submitted that there was no evidence at the date of the decision to support the Minister’s finding that negotiations between Vietnam and Australia had progressed and that it was likely that a MOU would be concluded later in the year. Consequently, it was submitted, the decision was unreasonable. However, as discussed above at [72-73], I accept the respondent’s submissions that there was evidence available to the Minister to make such findings. I do not consider that the Minister’s decisions were so unreasonable that no reasonable decision-maker would have made them.

UNAUTHORISED DETENTION GROUND OF REVIEW

108               The applicant submitted that Mr Luu’s detention between July 2000 and March 2001 was unauthorised on the basis that the detention was indeterminate and consequently the power to detain was not being exercised bona fide for the purpose of holding Mr Luu pending deportation. For reasons discussed above I do not consider that Mr Luu’s detention was indeterminate at 12 March 2001. Notwithstanding that this may be the case, in oral submissions Mr Maxwell sought a declaration that Mr Luu’s detention over the period from July 2000 to 12 March 2001 was unauthorised. Mr Maxwell argued that it was appropriate for the Court to make such declarations under s16(c) of the ADJR Act, or alternatively, s 22 of the Federal Court of Australia Act 1976 (“Federal Court Act”). Section s16(c) of the ADJR Act gives the Court power to make “an order declaring the rights of the parties in respect of any matter to which the decision relates”. Section 22 of the Federal Court Act confers power on the Court to grant all such remedies as may be appropriate to resolve all matters in controversy between the parties.

109                In response, Mr Tracey submitted that it was inappropriate for the Court to consider whether the detention was or is unauthorised in the present application for review of the Minister’s decisions dated 12 March 2001.

110               It would be futile to make a declaratory order which has no practical effect. The decision of 12 March 2001 rendered valid any detention that may have previously been unauthorised. While Mr Maxwell submitted that the declaration would be relevant in that it may entitle Mr Luu to compensation for unlawful imprisonment, that claim is not relevant to this proceeding. In my opinion it is inappropriate to make such a declaration.

111               In any event, the Full Court in Vo rejected an argument that the length of detention pursuant to s 253 can itself undermine the legal validity of detention. Provided that bona fide efforts are being made to implement a deportation order, the detainee cannot be considered to be detained for an improper purpose. Consequently, it is unlikely Mr Luu’s detention between July 2000 and March 2001 was unauthorised.

PUNITIVE DETENTION

112               The applicant further submitted that detaining Mr Luu in Port Phillip Prison, a high security State prison, renders the detention punitive. The applicant contended that the Act does not authorise detention that is punitive in nature, and consequently, the Minister’s decision to keep Mr Luu in detention was ultra vires. To support this claim in oral submissions Mr Maxwell relied on Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 where the High Court recognised that Executive detention must not be punitive.

113               It appears that the applicant’s chief argument under this heading is that Mr Luu has been detained in a State prison, which by nature, has higher security than a detention centre. Clearly such prisons were not designed to facilitate immigration detention. Furthermore, it may be considered highly inappropriate to keep civil prisoners and those serving criminal sentences in the same institution, regardless of ‘internal arrangements’. However, the Act specifically defines ‘immigration detention’ under s 5 to include detention in State prisons. By arguing that the detention of Mr Luu in Port Phillip is punitive in nature, the applicant is in effect contending that the definition of ‘immigration detention’ under s 5 is constitutionally invalid. No specific submission was put to the court that s 5 was invalid and it is inappropriate to do other than assume that the provision is constitutionally valid.

Conclusion

114               In this matter I have been unable to find any instance in which the Minister failed to act in accordance with the law. However, it must be kept in mind that a human being’s liberty is never a matter to be taken lightly. Mr Luu has now been in detention for over four years waiting deportation. This is four years longer than the sentence deemed appropriate by the sentencing judge for the offences committed by Mr Luu. In a liberal democracy such as Australia it is unsatisfactory, to say the least, that a human being can be detained for this long in a high security prison having already completed his or her sentence. I doubt whether Parliament envisaged that the power to detain pending deportation would be used in such a way. Although it may be justifiably contended that Mr Luu did not press for his return to Vietnam until 8 February 2000 and is in some way complicit in the delay in this matter, it is hard to see how detention of such a length pending deportation is appropriate. Had this matter been reviewable on the merits, this Court may have reached quite a different conclusion to the one reached by the Minister. Unfortunately this matter is not so reviewable.

Orders:

1.                  That the application be dismissed.

2.                  The applicant pay the respondent’s costs of the proceeding.

Associate:

Dated:              17 August 2001