FEDERAL COURT OF AUSTRALIA

Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450

MIGRATION – Administrative Decisions (Judicial Review) Act – s 39B of the Judiciary Act – criminal deportation – detention pending deportation – proper approach mandated by s 253 of the Migration Act 1958 and s 51 (xix) of the Constitution when facts display likely indefinite detention – failure to take into account best interests of children as a primary consideration.

CONSTITUTIONAL LAW – s 253 of the Migration Act 1958 valid.

Constitution s 51(xix)

Migration Act 1958 (Cth ) ss 200, 206, 253(8), 253(9)

Acts Interpretation Act 1901 (Cth) ss 15A, 33(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 16

Judiciary Act 1903 (Cth) ss 39B, 78B

Immigration Act 1971 (UK) Sch 3, para 2

Immigration Ordinance (Laws of Hong Kong, 1981 rev., c. 115)

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

Robtelmes v Brenan (1906) 4 CLR 395 referred to

Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 referred to

O’Keefe v Calwell (1949) 77 CLR 261 referred to

Koon Wing Lau v Calwell (1949) 80 CLR 533 followed and applied

Pochi v Macphee (1982) 151 CLR 101 referred to

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 followed and applied

Attorney-General (Canada) v Cain [1906] AC 542 referred to

Chu Shao Hung v The Queen (1953) 87 CLR 575 referred to

Znaty v Minister for Immigration (1972) 126 CLR 1 referred to

Federal Commissioner of Taxation v Munro (1926)38 CLR 153 referred to

Attorney-General (Vic) v Commonwealth (1945)71 CLR 237 referred to

Jones v Dunkel (1959) 101 CLR 298 referred to

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

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 applied

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 applied

R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 discussed

Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 discussed

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 referred to

Vo v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 371 applied and discussed

Wentworth v New South Wales Bar Association (1992) 176 CLR 239 referred to

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

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 discussed

Abebe v Commonwealth (1999) 197 CLR 510 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 applied

Eaton v Overland [2001] FCA 1834 referred to

Aronson and Dyer Judicial Review of Administrative Action (2^nd Ed)

George Hector Perez v Minister for Immigration & Multicultural Affairs

N 1332 of 2001

ALLSOP J

3 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

the orders made in these proceedings on 12 April 2002 be varied by vacating order 6 of those orders.

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

REASONS FOR JUDGMENT

1                     On 12 April 2002 I made orders in this matter. These are my reasons for those orders. A consequence of these reasons is that it is appropriate that order 6, which I made against the contingency of the need to vary the orders made in the light of the publication of my reasons, be vacated.

2                     The applicant is a Cuban national. His history in this country up to 1999 was recounted by Madgwick J in a previous case between the applicant and the respondent (Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287). It is necessary, however, once again, to set out aspects of that history.

3                     The applicant was born on 15 April 1958. In his late teens he was convicted of fighting and gaoled, in Cuba. Soon after his release, in 1980, he, along with many other Cubans in not dissimilar circumstances, left Cuba, in what later came to be seen as the government of Cuba ridding the country of people seen by it to be ‘undesirables’. As a consequence of arrangements between the United Sates and Australia, Mr Perez arrived in Australia on 16 June 1980, and was immediately accorded refugee and permanent resident status.

4                     In January 1981, the applicant, in company with a fellow Cuban refugee, was involved in a serious fight at a nightclub in which one man was killed and four others wounded. The applicant was convicted of malicious wounding with intent to inflict grievous bodily harm. He received a ten year prison term with a four year non-parole period. This began a series of offences of a serious and violent nature: an assault on a prison officer in 1985 (three month sentence); an assault in 1986 (eighteen month sentence, nine month non-parole period); breach of his parole in 1986; common assault in 1991; assault occasioning actual bodily harm in 1992 (one year and four month sentence, with a twelve month non-parole period); various firearms offences and assaulting police in 1992 (various sentences from two years to three months); assault in 1993 (three month sentence); maliciously inflicting grievous bodily harm in 1996 (three year sentence, with a two year three month non-parole period); assault occasioning actual bodily harm in 1996 (four months); various driving and licence offences in 1995; escaping from custody, assaulting police and resisting arrest in 1998. The last of Mr Perez’s sentences expired on 9 September 1999. The date of the offences for which Mr Perez was convicted in 1996 was late 1994.

5                     While in gaol pursuant to these various convictions, Mr Perez committed a number of prison offences including fighting, threatening behaviour and assault.

6                     From 1988 to 1992, while not in custody, Mr Perez was in a de facto relationship with a woman who, as I understand it, was an Australian citizen, Ms Benjamin. There were two children by this relationship, Rico and Steven, born in 1990 and 1992, respectively. Ms Benjamin, in a signed statement, said that Mr Perez was a kind and loving father. The children remained in close contact with Mr Perez until 1995, when he married an Australian citizen, Ms Stacey Nichols. Thereafter, contact with Ms Benjamin and their two children lapsed. Ms Benjamin’s statement records that the elder of her children found it difficult to take the loss of the presence of their father after the break up of the relationship and to take the loss of the contact after 1995. Contact between Mr Perez and Ms Benjamin and Rico and Steven resumed in 2000 after a chance sighting of Mr Perez by a friend of Ms Benjamin who was visiting the gaol in which Mr Perez was housed. Since then there has been an emotional reunion between Rico and Steven and Mr Perez and they visit him weekly. Ms Benjamin says that the children have become more confident, less anxious and less temperamental since resuming contact with Mr Perez.

7                     Mr and Mrs Nichols, the parents of Mr Perez’s wife, Stacey, and Mrs Stacey Perez have also signed statements. Mrs Perez had a child at the time of the commencement of her relationship with Mr Perez. That child was born in 1992. Mr Nichols, Mrs Perez’s father, tells of a more settled lifestyle of Mr Perez after the marriage in 1995, including regular employment. A child, Joanne, was born to Mr and Mrs Perez in 1996. However, Mr Perez returned to gaol after the conviction in 1996. The offence for which he was convicted in 1996 occurred in 1994.

8                     In their statements, Mr Perez’s parents-in-law, his wife and Ms Benjamin, state that Mr Perez has been a kind father to his children and step-child and that the children are all very attached to him.

9                     As I earlier said, Mr Perez’s last sentence finished in September 1999. Since that time he has remained in custody by reasons of steps taken under the Migration Act 1958 (Cth) to which I make reference below.

10                  The position of Mr Perez in this country has been considered on a number of occasions. In 1983 a delegate of the Minister considered the question of deportation. At least in part because of the view that deportation to Cuba was not a practical alternative, Mr Perez was given a warning about his behaviour and its possible consequences in criminal deportation. Further consideration was given to deportation in 1992, but apparently because of difficulties being then experienced of returning other criminal deportees to Cuba (to which matters I will return shortly) this course was not pursued. After his conviction in 1996 deportation was again considered. A recommendation was made to the delegate of the Minister by Mr Perez’s then case officer, Mr Gillett, that, based on the now stable relationship with his wife and the continuing difficulties in gaining readmittance of refugees to Cuba, Mr Perez ought not to be deported. That recommendation was not followed. On 26 November 1996 a delegate of the Minister ordered that Mr Perez be deported. Mr Perez sought review of the decision in the Administrative Appeals Tribunal. On 15 December 1998 the Tribunal affirmed the delegate’s decision. An ‘appeal’ was lodged in this Court. Madgwick J could perceive no error of law in the decision of the Tribunal. His Honour thus dismissed Mr Perez’s application.

11                  The deportation order was made under Part 2 Division 9 of the Migration Act. Section 200 (being within Division 9) provides:

200      Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

12                  There was no dispute before me about Division 9 of the Migration Act applying.

13                  Section 206 provides:

206            Deportation order to be executed

(1)         Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2)         The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.

14                  Section 253 in Part 2 Division 13 of the Migration Act provides for the detention of deportees, relevantly 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) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).

…

(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.

(10)      An officer may, without warrant, detain a person who:

(a)          has been released from detention under subsection (9) subject to conditions; and

(b)          has breached any of those conditions.

(11)      Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.

15                  Subsection 33(3) of the Acts Interpretation Act 1901 (Cth) provides the express basis for revocation of the deportation order, and in addition to subs 253(9), for the order to detain Mr Perez. Subsection 33(3) is in the following terms:

Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

16                  Shortly before the expiry of his sentences in September 1999, a delegate of the Minister decided that Mr Perez should be held in immigration detention under subs 253(1) after the expiry of his sentences. This was reviewed a little over a week later, after the receipt of a letter from Mrs Perez, which letter was described by the then departmental case officer as follows:

… In her letter Mrs Perez makes an impassioned plea for the release of her husband on the termination of his sentence on compassionate grounds. Mrs Perez claims that the continued detention of her husband will place significant emotional hardship on herself, her 7 year old son and 3 year old daughter. The boy is Mr Perez’s stepson but looks upon Mr Perez as his own father.

17                  The delegate refused to revoke the decision to detain Mr Perez.

18                  It is necessary to provide some further background to Mr Perez’s position.

19                  The Cuban government has generally taken a strongly negative attitude to any suggestion that it re-admit the ‘undesirables’ (by which term I am referring to the apparent view of the Cuban authorities and not to a view I have formed of Mr Perez) who left Cuba in 1980, in the circumstances in which Mr Perez left. The evidence before me includes evidence of an unsuccessful attempt in 1991 to deport one Carlos Figueredo to Cuba. It also includes evidence concerning the attempts to deport one Francisco Soria Vazquez to Cuba. After flights to Moscow and Rome, Mr Vazquez was returned to Singapore airport. Australian officials made it known he would not be re-admitted to Australia. He remained at Singapore airport for four months, until returning to custody at Long Bay gaol in Sydney. Further detail of the fate of these men was not before me, except that it appears that Mr Vazquez was returned to Cuba after two years’ immigration detention.

20                  In September 1991, a memorandum of understanding was entered between the governments of Australia and the Republic of Cuba about issues related to immigration. Paragraph 7 of that memorandum was to the following effect:

The parties, whenever necessary, shall hold consultations on the issues arising on the implementation of the present Memorandum and specially on the migratory situation of the citizens of one Party living in the territory of the other Party who are under legal process of expulsion in the territory of other Party.

21                  There was also evidence before me of an unsuccessful attempt in 1995 to deport one Juan Illarramendiz to Cuba. In connection with the circumstances of that man, a cable from the Department of Foreign Affairs and Trade (DFAT) from Mexico City to Canberra dated 6 June 1995 contained the following clear statement of the attitude of the Cuban authorities:

Further to reftels, we sought advice from Cuban Embassy, Mexico City on receipt of first reftel and have now received a response. Minister Counsellor Piedra Rencurrell, of the Cuban Embassy, Mexico City, has advised us that any Cuban citizen that had been received in the United States as a refugee, as evidenced by receipt of Cuban refugee visa, would not be accepted back to Cuba, particularly if they had a criminal record and were the subject of a deportation order.

22                  The evidence before me of the attempts to execute the deportation order concerning Mr Perez included the following. On 1 July 1997 Mr Gillett, Mr Perez’s then case officer, referred the matter to DFAT. On 24 November 1999 Mr Gillett sent an intra-departmental email providing such information as he had about Mr Perez apparently in order to satisfy some enquiry by DFAT (which was to be responded to by another member of the department), which commenced with the following paragraph:

DFAT have got to be kidding haven’t they. I first referred this case to Rebecca Geach for referral to DFAT on 1 July 1997 and after all this time they want to know basic questions about his entry etc. What has been going on for the last 2 years or so?

23                  The email from Mr Gillett contained the following:

3.      There is no great mystery as to why Mr Perez has been able to remain in Australia for so long. He was previously considered for deportation in 1983 and was given a warning because the Cuban authorities were not accepting criminal deportees back to Cuba at that time. In this respect nothing much has changed over the years. Mr Perez has spent numerous periods in prison over the years and it was only about 6-7 years ago that deportation orders were being signed against Cuban nationals as it was common knowledge that Cuba would not accept back criminal deportees. Only one Cuban national (Vasquez) has been deported during that time and he was held in Immigration detention for approximately 2 years before the Cuban Government agreed to take him back. This decision was made after Immigration had dealt with the deportation at a very high level (I think that senior officers actually travelled to Cuba to negotiate Mt Vasquez’s [sic] return)

In a nutshell Mr Perez has escaped deportation for so long because the Cuban authorities have consistently refused to take back their criminals over the years. They simply don’t want them.

Mr Perez has been in immigration detention since 9/9/99. He was taken into Immigration detention after he completed his last prison sentence. Mr Perez has indicated on a number of occasions that he would prefer to die rather than return to Cuba.

24                  However, notwithstanding the expressions used by Mr Gillett as to what he perceived to have been the inactivity of DFAT, there had been some steps taken in October 1997 by DFAT. A DFAT cable from Mexico City to Canberra, dated 23 October 1997 was in evidence. It read as follows:

Cuba: Memorandum of understanding (MOU) on migration related issues between the Government of Australia and the Government of the Republic of Cuba.

Thanks reftel. We spoke last week to the Cuban Embassy (Irma Gonzalez, Minister) to seek confirmation that Cuba acknowledges that the MOU on migration matters remains in effect. Given the delay and the need for an early response, we today called Ramon Alonso, Australia Desk Officer in the Cuban MFA and were advised that a response had already been sent to their Embassy in Mexico (they would follow up on why there had been a delay conveying this advice to us).

2.                  Alonso said that having consulted the text of the MOU, Cuba shared our view that the document remained in effect. He has undertaken to convey this advice in writing via their embassy in Mexico City.

3.                 On the matter of whether the Cuban government would cooperate to ensure Perez’ deportation from Australia and return to Cuba, Alonso said that they would need full details of the case and suggested that this might be best dealt with via Cuba’s Consul General in Sydney, Maria Luisa Fernandez. He said, for example, that they would require details of how Perez came to be in Australia, whether he had residence elsewhere at the time of his arrival in Australia and also details of the nature of the criminal offence.

4.                 Grateful advice.

25                  There was also an undated cable, from its form, I would infer, indicating a source in DFAT, which appears to be a response to the last mentioned cable. It read as follows:

Cuba: Memorandum of understanding (MOU) on migration related issues between the Government of Australia and the Government of the Republic of Cuba.

Thank you for reftel and your assistance to date. DIMA have been in contact with Cuba’s Consul General in Sydney and she has requested Mr Hector Perez submit an application for a travel document. As Mr Hector Perez is not co-operating we are seeking finger prints as an identifier, or alternatively, considering the issue of an Australian certificate of identity, if the Cubans are prepared to issue him with a visa.

2.        As requested in reftel, DIMA will provide the following advice to the Consul-General in Sydney:

A.       Mr Hector Perez arrived in Australia on 16 June 1980. He hold expired Republica De Cuba Pasaporte No. 27577, issued in the name of Jorge Luis Hector Perez. He has not been eligible for Australian Citizenship due to his criminal history, and his criminal deportation was ordered on 26 November 1996.

B.       The Australian Government has no evidence to suggest Mr Hector Perez had residence in any other country at the time of his entry into Australia.

C.      Mr Hector Perez was last sentenced for an offence committed on 10 December 1994, namely: maliciously inflict grievous bodily harm.

3.        We have now been asked by DIMA to also ascertain whether Cuba would accept Mr Hector Perez’s wife and children, subject to his successful deportation, and if his wife and children sought to accompany him. We will appreciate your assistance in raising this issue with your contacts.

Thank you for your assistance in keeping these matters before the Cuban authorities.

26                  On 11 December 1997 the Australian Embassy reported to Canberra the comments of Irma Gonzales, ‘Minister’ at the Cuban Embassy, Mexico City:

… that despite ‘the unwillingness of Perez to cooperate in applying for a passport, … as long as the Cuban Consul General was satisfied as to the identity of Perez, she was certain that a travel document could be issued in order to enable his deportation.’ [emphasis added]

Asked whether ‘in the case of Perez being deported from Australia to Cuba, the Cuban government would accept Perez’s wife and children… if they were Australian citizens and they had decided to travel with Perez to Cuba following his deportation, she could see no reason why they would not be allowed to reside in Cuba given that Perez is a Cuban citizen.’

27                  On 29 October 1997 the Cuban Consul General in Sydney, Maria Fernandez, advised Immigration Criminal Deportations:

…that Mr Perez would only be detained if he had an outstanding prison sentence to complete. (Mr Perez advised that he had been convicted of criminal offences in Cuba but had fully served out his sentences).

28                  It should be noted that in July 2001, in a memorandum concerning Mr Perez, the ‘Protection Services Section’ of the department, after noting the comments of Ms Gonzales and Ms Fernandez just referred to, said:

However, attempts to remove other Cuban criminal deportees in the past have proved difficult. AAT Decision No N96/1558 notes that:

‘The much publicised case of Francisco Vasquez in 1991 had already brought to public and political attention the difficulties associated with the return to Cuba of criminals who had been expelled from their former homeland at the time of the Mariel Boatlift. Mr Vasquez was ultimately allowed to return by the Cuban authorities but only after intensive diplomatic efforts by the Australian government. Such efforts were, however, not successful in the case of another Cuban refugee by the name of Juan Illarramendiz who Australia sought to deport back to Cuba in 1995.’

Current country information, together with the fact the MOU on Migration Related Issues is still in effect, indicates that it will be possible to return Mr Hector-Perez to Cuba. [emphasis added]

29                  The country information referred to in the last paragraph was not put in evidence before me.

30                  Returning to the matter chronologically, on 19 October 1999, Mr Gillett from the Criminal Deportation Section, sent a facsimile to Mr Gotovac of Unauthorised Arrivals in which he asked for some information, as follows (emphasis in original):

Could you please advise if there are any further developments in the issue of a travel document to Mr Perez. Our section is concerned that Mr Perez could be detained in Immigration detention indefinitely as the Cuban authorities have already provided a negative response. Judge Madgewick [sic] of the Federal Court accepted that some delay in executing a deportation order may be unavoidable but the Migration Act DID NOT AUTHORISE INDERTERMINATE DETENTION.

The question remains: ‘How long do we detain Mr Perez before seeking a revocation of the deportation order?’

31                  Mr Gotovac replied promptly on 21 October 1999, as follows:

We have requested the Ambassador in Mexico City to make representations to the relevant Cuban Ministry to have Perez accepted back to Cuba. On 12 October, Mexico city [sic] advised that the Cubans refuse to take Perez back saying that he should be returned to the country that offered him asylum in the firstplace ie USA. because [sic] he was part of the ‘Casos De Marielitis’ intake into the US.

In the interim we have asked DFAT to put pressure on the Cuban Consulate in Sydney. The Consulate confirmed to DFAT that Perez is still considered to be a Cuban national but as Perez refuses to sign an application form the Consulate will not issue him with a travel document. However even if he signed an application form, or presented an OZ C of I the Cuban Consulate stated that he would NOT be allowed entry into Cuba without first returning to the original country of asylum ie USA.

We contacted the USA Consulate who confirm that persons who have had permanent residence in USA are permitted to be away from the US for ONLY 12 months maximum period, after which time their permanent residence status is automatically nul [sic] and void.

On 18 October 99 we requested DFAT to make further representations through diplomatic channels.

We will advise developments.

32                  On 24 November 1999 Mr Gillett wrote the email which is set out at [22] and [23] above.

33                  Thus, the optimism in 1997 that might be seen in Ms Gonzales’ views ([26] above) had not been borne out by the passage of time, and the Cuban position by late 1999 was negative.

34                  The next glimpse of movement in Mr Perez’s case is in May 2000. On 26 May 2000 Ms Kang, of Criminal Deportations Section, wrote a minute recommending the maintenance of the custody arrangements. The minute, in full, was in the following terms:

On 1 May 2000 you decided to maintain Mr Hector Perez’s custody pursuant to section 253 of the Migration Act 1958. The decision in respect of his detention is held at folios 63-67 of this file. He is currently detained at the MRRC.

On 25 May 2000 the Department received a letter dated 8 May 2000 from Mr Hector Perez’s solicitor Elias Tabchouri of Raheb and Associates requesting reconsideration of his continuing immigration detention (folio 120 refers). In the light of this request Mr Hector Perez’s immigration detention needs to be reviewed by you at this time.

Mr Hector Perez’s solicitor states that they are not aware of any evidence to suggest that Cuba agree or will agree to Mr Hector Perez’s return to Cuba.

The only outstanding matter for Mr Hector Perez’s deportation is the issue of a travel document by the Cuban authorities. This matter is with Unauthorised Arrivals in Canberra who have advised that negotiations are taking place at a high level, and will continue, for Mr Hector Perez’s repatriation back to Cuba. [emphasis added]

Mr Hector Perez’s criminal history is considered to be substantial and very serious by the Australian Government which has resulted in the Minister’s delegate signing a deportation order against him. It is the Government’s view that the purpose of deportation is to protect the safety and welfare of the Australian community.

In light of all of the evidence it is submitted that no new factors have been introduced and that Mr Hector Perez’s current custody arrangements should be maintained.

If you decide to maintain current custody arrangements Mr Hector Perez will continue to be visited on a monthly basis and his custody reviewed regularly.

35                  Ms Kang’s recommendation was approved by the regional manager, Mr McCormack.

36                  Thus, in May 2000 there were, it would seem, ‘negotiations … taking place at a high level ... for Mr Perez’s repatriation back to Cuba.’ It is unclear whether these were any more than the communications to which I have referred. No other elucidation or illumination as to what they were is provided by the evidence.

37                  In March 2001 the solicitors for Mr Perez once again requested Mr Perez’s release. On this occasion, it was requested in the alternative to a request for the revocation of the deportation order. The decisions in relation to these requests, to which I will now come, are the subject matter of the present proceedings before me. The request of the solicitors contained a four page submission, a copy of the memorandum of understanding of September 1991, DFAT cables and messages concerning Mr Figueredo and Mr Vazquez, a newspaper report about Mr Vazquez, a DFAT cable about Mr Illarramendiz, DFAT cables concerning Mr Perez (and referred to at [21] and [23] to [25] above), and the statements from Mr and Mrs Nichols and Ms Benjamin. The statement of Mrs Perez (Mr and Mrs Nichol’s daughter) was already in the departmental file, having been referred to by Mr Gillett in late 1999 (see [22] and [23] above).

38                  On 31 July 2001 a Mr Donatiello, ‘Acting Business Manager, NSW Compliance’, prepared a minute and recommendations for the consideration of the Minister in connection with the request for revocation of the deportation order. On 7 August 2001 the Minister affirmed the deportation order and refused to revoke it.

39                  On 24 August 2001 Ms Kang, now in the ‘NSW Character Unit’, prepared a minute and recommendation concerning Mr Perez’s continued detention. She recommended that his ‘current detention be maintained’. On 24 August 2001, Ms Houston, the Acting Manager of the ‘NSW Character Section’ agreed. On 27 August 2001, Mr Donatiello also agreed. Mr Donatiello was the delegate of the Minister for the decision concerning Mr Perez’s continued detention.

40                  Reasons for this decision of Mr Donatiello were provided on 8 October 2001, after a request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act).

41                  The request made by Mr Perez’s solicitors appears to have caused enquiry once again to be made of the current position concerning the possibility of Cuba readmitting Mr Perez. On 11 July 2001, Ms Kang sent an email to a Mr Bottrill of DFAT and Mr Gotovac of Unauthorised Arrivals, in the following terms:

Can you please give me an update re: negotiations for his Cuban travel document … Your prompt reply would be most appreciated. Thank you.

42                  On 11 July 2001, Ms Kang received an email from a Mr Tuckey who had taken up the request that she had made of Mr Gotovac. Mr Tuckey stated the following to Ms Kang and Mr Gotovac:

I called DFAT and spoke to both Peter Doyle, Director, and Kevin McDonald, Refugees, International & Transnational Crime Section, about the case.

I advised Mr McDonald that there was a FC hearing this morning and I sought chronology of the latest approaches to both the Consulate-General of the Republic of Cuba, Sydney, and the Ministry of Foreign Affairs, Cuba, via Australia’s accredited Ambassador based in Mexico City.

Mr McDonald said that he would liaise with the Cuban desk and get back to us.

I also suggested that it would be timely to make fresh approaches to both the Consulate and the Foreign Ministry.

43                  Mr Tuckey also sent Ms Kang the terms of an email that he had sent on 11 July 2001 to Mrs Sicilia Fernandez, the Cuban Consul-General, which was in the following terms:

I write to you in relation to the case of Mr Hector Perez, a Cuban national in Australia.

Mr Perez is the subject of a Deportation Order and, according to the Australian Migration Act 1958, he must now be removed from Australia as soon as possible. He will remain in immigration detention until he is removed from Australia.

As you know, the Government of Australia and the Republic of Cuba have signed a Memorandum of Understanding on Migration Related Issues.

The Australian Government considers the return of Mr Perez to Cuba a matter of great importance as it concerns the acceptance of the responsibility of States for their own nationals, a fundamental principle of sovereignty and statehood.

As this matter has not been raised with the Cuban Government for more than three years, the Australian Government also considers its prompt resolution a matter of urgency.

As under Australian legislation, Mr Perez remains in immigration detention, his prompt return to Cuba is also important on humanitarian grounds.

I would appreciate your advice on this important matter.

44                  Thus, it can be said, parenthetically, that by this time, 11 July 2001, it would appear that the ‘high level negotiations’ referred to by Ms Kang in May 2000 ([34] and [36] above) had produced no discernible change to the Cuban attitude and a further request was now being made for some consideration of the matter by Cuba.

45                  On 31 August 2001, Mr Gotovac indicated in an email that there was no update on the situation concerning Mr Perez’s travel documents. Thus, some seven weeks after Mr Tuckey’s email to the Consul-General, no further communication had apparently been received from the Cubans.

46                  Each of the decisions not to revoke the deportation order and not to release Mr Perez from immigration detention is reviewable under the AD(JR) Act and under s 39B of the Judiciary Act 1903 (Cth).

47                  The Further Amended Application For An Order Of Review (the Further Amended Application) filed in Court on 14 March 2002 attacked both decisions. It did so on several bases.

48                  The Minister’s decision not to revoke the deportation order (the First Decision) was said to be bad in the Further Amended Application for the following reasons:

(a)            First, it was claimed that the decision was an improper exercise of the power in s 206 in that it was an exercise of power other than for the purpose for which it was conferred (paras 5(1)(e) and 5(2)(c) of the AD(JR) Act) in that it was said that the reason for not revoking the order was simply to retain him in custody, but not as part of a bona fide effort to secure Mr Perez’s deportation.

(b)            Secondly, it was claimed that there was a failure to take into account as a primary consideration the best interests of Mr Perez’s children, and in that circumstance there was a failure to tell Mr Perez that this failure had occurred, leading to a failure to accord him natural justice.

49                  The delegate’s decision not to end Mr Perez’s detention (the Second Decision) was said to be bad in the Further Amended Application for the following reasons.

(a)               First, the decision was said to be an improper exercise of the power under subs 253(9) in that it was an exercise of the power other than for the purpose for which it was conferred (paras 5(1)(e) and 5(2)(c) of the AD(JR) Act) in that the reason for maintaining his custody was said not to be to secure Mr Perez’s deportation, but to prevent his release into the community.

(b)               Secondly, it was said that the decision was not authorised by subs 253(9) because it was not reasonably incidental to the power to deport.

(c)               Thirdly, and related to the second point, it was said that it was beyond the power of the Commonwealth to continue to detain Mr Perez. The way this was put in the Further Amended Application was as follows:

The Commonwealth does not have the power to legislate for long-term, indefinite, administrative detention of lawful non-citizens, as is the case with the applicant, because such detention is not reasonably incidental to the power to exclude, admit, or deport an alien, and thus it is beyond the executive power of the Commonwealth.

Therefore, because section 253(8) of the Act does not fetter the power to detain a person such as the applicant, it is invalid, in particular, when read in conjunction with the powers to deport in sections 200 and 206, which do not require the deportation order to be carried out ‘as soon as reasonably practicable’, and there is no means by which the applicant may end his detention.

(d)               Fourthly, it was claimed that there had been a failure to take into account as a primary consideration the best interests of Mr Perez’s children and a consequential breach of the rule of natural justice.

50                  Appropriate notices under s 78B of the Judiciary Act were given for the constitutional point referred to in [49(c)] above.

51                  During the hearing of the matter, debate took place about the validity of the Second Decision beyond the scope of these matters identified in the application. Mr Basten QC, who appeared for the Minister, very properly and fairly, took no objection to that course, reserving, naturally, the right to attend to any evidential matters thrown up by that course. I granted leave to the applicant to amend the Further Amended Application, in such form as he might be advised, to conform with this wider ranging debt. Pursuant to that leave, the applicant has sought further to amend his grounds of review in a document entitled ‘Proposed Further Amended Application For An Order Of Review’. That document contains no additional attack on the First Decision, but adds the following ground and particulars by way of attack on the Second Decision:

Ground 5

The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s5(1)(e)) in that it was an exercise of power that was so unreasonable, no reasonable person could make it (s5(2)(g)).

Particulars

The Applicant failed to gave [sic] very little weight or consideration to what was a matter of great importance, namely, the prospects of successfully executing the deportation order, and the possible timeframe under which that could be expected to occur.

52                  No objection has been taken to the amendment. Plainly it contained a typographical error. I take it as intended to say: ‘The applicant failed to give adequate weight to, or gave very little weight or consideration to, what was a matter of great importance etc.’. I grant leave for it to be filed, if properly corrected. An original should be filed in due course to complete the file record.

general principles

53                  Before turning to the two decision under attack, it is appropriate to set out some relevant propositions made good by high authority in this country. First, the legislative power conferred by s 51 (xix) of the Constitution with respect to aliens is expressed in unqualified terms and encompasses a law providing for the deportation of aliens: Robtelmes v Brenan (1906) 4 CLR 395, 400-4, 415, 420-22; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, 83, 94, 108, 117, 132-33; O’Keefe v Calwell (1949) 77 CLR 261, 277-78, 288; Koon Wing Lau v Calwell (1949) 80 CLR 533, 555-56, 558-59; Pochi v Macphee (1982) 151 CLR 101, 106; and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 26, 29-30.

54                  Secondly, it is within the full power of the Commonwealth Parliament to make laws with respect to aliens and to pass laws providing for the custody or detention of an alien pending deportation: Koon Wing Lau v Calwell supra, 551, 555-56, 583, 585, 595; Attorney-General (Canada) v Cain [1906] AC 542, 546; Chu Shao Hung v The Queen (1953) 87 CLR 575, 589; Znaty v Minister for Immigration (1972) 126 CLR 1, 9-10; and Chu Kheng Lim, supra at 10, 30-33.

55                  Thirdly, the power to legislate for detention in connection with the aliens power is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or as necessary to enable an application for an entry permit to be made and considered: Chu Kheng Lim, supra at 33. However, the limitation of the authorisation for detention ‘pending deportation’ carries within it the reasonable connection to support the validity of the authorising law: Koon Wing Lau v Calwell, supra and Chu Kheng Lim, supra at 31-32, and see cases referred to at [53] above.

56                  Fourthly, as a matter of the interpretation of a law of the Commonwealth Parliament, there is a presumption that Parliament did not intend to pass the law beyond constitutional bounds: s 15A of the Acts Interpretation Act; Federal Commissioner of Taxation v Munro (1926)38 CLR 153, 180; Attorney-General (Vic) v Commonwealth (1945)71 CLR 237, 267; and Chu Kheng Lim, supra at 14.

the First Decision

the first basis ([48(a)] above)

57                 The applicant asked me to draw a conclusion about the likelihood of success of deportation being executed, to the effect that there is so little basis for hope of Cuba taking Mr Perez back that the reason for not revoking the deportation order was, or must have been, simply to keep Mr Perez in detention, and away from the public. It was submitted that the Minister could not have been acting upon a bona fide belief that Mr Perez could, as a practical matter, be deported. The evidence was said to be sufficiently clear as to warrant an inference as to such lack of bona fides, to which inference I could apply the rule in Jones v Dunkel (1959) 101 CLR 298 so as more comfortably to draw that inference. It is thus necessary to examine the facts in a little more detail.

58                 The decision of the Minister was made on 7 August 2001. No reasons were sought. The Minister recorded his decision at the end of Mr Donatiello’s minute referred to in [38] above. The signature of the Minister was adjacent to the scoring out of relevant alternatives ‘not agreed’ adjacent to ‘Affirm the Deportation Order’ and ‘agreed’ adjacent to ‘Revoke the Deportation Order’ which appear immediately below the following heading and paragraph at the conclusion of the minute prepared by Mr Donatiello:

MINISTER’S DECISION

I have considered all matters in the submission and the annexures to the submission and make the following decision…

59                  I accept the submissions of Mr Basten that the minute, in these circumstances, does not amount to the reasons of the Minister, but the apparent extent of the matters considered by him relevant to the First Decision. Thus, no reasons have been provided.

60                  The minute was a little over five pages in length and signed by Mr Donatiello. It first set out the background. It referred to, but did not apparently annex, the submission made in 1996 in relation to the deportation. It referred to Mr Perez’s convictions. It annexed the deportation order, which was not before me at the hearing, but which has since been supplied to me. Both parties have requested that the copy sent to me be added to the Court record. It will be marked as Exhibit C. The minute then referred to the annexed submission of Mr Perez’s solicitor, to Mr and Mrs Nichols’ letters and to a statement of Ms Benjamin. The submission referred to the availability of Migration Series Instruction Number 26. This document contained the following:

3.1.           The decision to revoke or not to revoke a deportation order made under Section 200 of the Act is a discretionary one to be taken by the Minister or his delegate. There is currently no regulation limiting the matters to be considered when deciding whether to revoke a deportation order. The AAT has the power to affirm, vary or set aside a deportation decision, but cannot revoke a deportation order. Where the AAT has set aside a deportation order the order will be revoked unless the Department has decided to appeal the AAT decision.

3.1.1        Apart from this, as a matter of policy, there are few circumstances in which revocation should be favourably considered. These circumstances include:

·     whether the deportee has been determined to be a refugee and has been granted a protection visa;

·     whether the deportee has been granted territorial asylum;

·     ad hoc situations where a considerable amount of time has elapsed since the order was made and circumstances may have changed dramatically, for instance where the deportee is a reformed model prisoner who has greatly contributed to society since his/her crime;

·     where a court has quashed the deportee’s conviction; or

·     the Minister has exercised his power’s [sic] (while knowing that the deportee is subject to a deportation order) under sections 345 or 351 to grant a visa to the deportee.

…

3.3 Unless otherwise advised by the Minister’s Office, deportation orders made by the Minister should only be revoked by the Minister.

3.4              The Minister or delegate revokes a deportation order by:

·     recording on the submission that the deportation order is revoked; and

·     signing and dating that record.

61                  The minute contained the following about MSI 26:

MSI 26 provides guidance on the general circumstances in which revocation should be favourably considered. However, in making a decision on whether or not to revoke the deportation order on Mr George Hector-Perez you are not bound by the instruction. It is open to you to be guided by the factors set out in the MSI. However in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate to those factors.

62                  The minute then dealt with the refugee status of Mr Perez, his entry in 1980 having been as a refugee, and the giving to him of permanent resident status. In relation to this question of refugee status there was legal advice attached for which privilege has been claimed. There was also attached an advice from the ‘Protection Services Section’ of the department concerning the question whether deportation of Mr Perez would breach certain conventions, including the ‘Refugees Convention’. That advice was in evidence before me. In it, the prospects of return to Cuba were dealt with and the information set out in [26] to [28] above was recounted.

63                  The minute identified the various convictions on which the deportation order was based and stated that there was no evidence that any had been quashed on appeal.

64                  The balance of the minute was in the following terms:

·         Ad hoc situations where a considerable amount of time has elapsed since the order was made and circumstances may have changed dramatically.

13.        At the time Mr Hector-Perez’s deportation order was signed he was still serving a sentence for maliciously inflict grievous bodily harm. The Department received advice from Long Bay Correctional Centre that on 18 June 1998 Mr Perez had escaped State custody.

14.        On 10 March 1999 Mr Hector-Perez was convicted of escape from lawful custody for which he was sentenced to a fixed term of six months. He was also convicted of assault police and resist officer execution of duty for which he was sentenced to a fixed term of two months and one month respectively.

15.        On 9 September 1999 Mr Hector-Perez was taken into Immigration Detention. He has remained in Immigration Detention in a State Facility since then. Current negotiations are taking place with the Cuban Authorities for the issue of a travel document to effect his deportation from Australia.

16.        It is open for you to find that a considerable amount of time has not elapsed since the order was made, and that there have been no dramatic changes to his circumstances in that time.

·         The Minister has exercised his power’s [sic] (while knowing that the deportee is subject to a deportation order) under section 345 or 351(2) of the Act to grant a visa to the deportee

17.        You have not exercised your powers under these sections of the Act nor are they relevant to this case.

·         Other considerations

18.        The representation received from Mr Elias Tabchouri, in essence, states:

§           negotiations to deport Mr Hector-Perez back to Cuba began at least as far back as October 1997 and there still seem to be no concrete indications that Cuba will seriously consider accepting Mr Hector-Perez’s return;

§           in considering whether or not it will be possible to negotiate Mr Hector-Perez’s return, consideration should be given to Australia’s past attempts to return deportees to Cuba. There has only been one documented case of a successful deportation, the case of Mr Vazquez which was only achieved only after an extraordinary series of events, which included being detained at Singapore airport for four months;

§           consideration should be given to the deterioration of the family situation of his children, who are now in the custody of their grandparents, and Ms Stacey Perez and her inability to cope with her husband’s continuing detention; and

§           consideration should be given to the interests of his two sons to Alanna Benjamin, an earlier partner. The children and Mr Hector-Perez are now in regular contact, and the children have benefited, however, their best interest would be served if they were able to see Mr Hector-Perez in a community setting and on a less restricted basis.

19.        The letters received from Mr and Mrs Nichols, parents of Ms Stacey Perez, included with the solicitor’s representation, in essence, state:

§           the children are now under their care due to their daughter’s inability to cope with her husband’s current situation. As they are both in their 60s, this puts immense strain on them as well as the children;

§           his children, both of whom are Australian citizens, miss him constantly. Attempts to deport Mr Hector-Perez back to Cuba are causing them all mental and physical anguish; and

§           they feel that it is now time to release Mr Hector-Perez.

20.        A statement received from Ms Alanna Benjamin, an ex-partner, included with the solicitor’s representation, in essence stated;

§           she has two children with Mr Hector-Perez, who remained in close contact until he married in 1995. In October 2000 she was informed that Mr Hector-Perez was in gaol and she immediately arranged to visit him. The reunion was very emotional for her sons. Since then they have visited him on a weekly basis;

§           her children have developed a strong bond with their father and want him out of gaol so they can spend more than two hours a week with him;

§           since her children have seen their father they have changed. They are much happier, more confident and less anxious and temperamental. It has had an excellent effect on their day-to-day lives; and

§           Mr Hector-Perez has agreed with her that he should remain a large part of his children’s lives.

65                  Relevant to the first basis of the attack on the First Decision, is paragraph 15 of the minute before the Minister which stated:

‘Current negotiations are taking place with the Cuban Authorities for the issue of a travel document to effect his deportation from Australia.’

66                  Further, the annexure from the ‘Protective Services Section’ which included what is set out at [26] to [28] above, in particular, therefore, the highlighted passages in [26] and [28] above is stated to have been considered by the Minister.

67                  It would have been open, obviously, to the Minister to seek further detail of the state of the attitude of the Cuban authorities. He did not do so. The fact that he did not do so does not lead to any conclusion about the lack of bona fides of the decision or its purpose. On the material before him, there was a basis for concluding the deportation would, or could, be effected. I say ‘would, or could,’ because of the ambiguity in the clause ‘it will be possible to return Mr [Perez] to Cuba’: see [28] above. In one sense, anything is possible. I do not think that it could be said from the material which was before the Minister, and which was in evidence, that Mr Perez’s return to Cuba would never, or could never, occur. Thus, it cannot be said that there was, or could be, no relationship between the deportation order (affirmed and left unrevoked) and future execution of it.

68                  On the evidence before me, I see no basis for the drawing of an inference that the Minister was, or even might have been, refusing to revoke the deportation order for a purpose unconnected with seeking Mr Perez’s deportation. I should add that the evidence before me in this respect was restricted to parts of the file of the department, and did not include any evidence of any person familiar with the procedures, practices and attitudes of the Cuban authorities.

69                  Thus, it is unnecessary for me to deal with the question as to how a decision not to revoke a deportation order should be, or should have been, examined, if the facts revealed that the deportation order, on the probabilities, would never, or could never, be executed. That was not the state of affairs as disclosed here by the material before the Minister.

the second basis ([48(b)] above)

70                  By reason of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (Teoh) it was incumbent upon the Minister, in order to accord procedural fairness to Mr Perez, that if he were proposing to make a decision on a basis other than that the best interests of the children to be affected by the decision were a primary consideration, he would have to inform Mr Perez of that, and he would have to provide Mr Perez with an adequate opportunity of presenting a case against the taking of such a course: Teoh, supra at 291-92, 302, 304-5; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. No such notice was given by the Minister or the department to Mr Perez. Therefore, if the interests of Mr Perez’s three children and one step-child were not treated as a primary consideration in the making of the decision, that is that the decision was made on a basis other than that their best interests to be affected by the decision were a primary consideration, the decision was flawed and liable to be set aside under the AD(JR) Act. I should add that Mason CJ and Deane J had expressed their views in Teoh, supra at 291-2, on the basis of the existence of a legitimate expectation, absent statutory or executive indications to the contrary. No such contrary indications were pointed to here.

71                  The submissions put on behalf of the Minister were as follows. First, it was said that I should assume that the original deportation order properly considered the interests of the children. That may be, but this was a separate decision and the obligation remains unquenched by the existence of an earlier decision, properly made. Also, as to this first submission, the original deportation order did not deal with the two children of Mr Perez and Ms Benjamin who had, from 1995 to 2000, lost contact with Mr Perez.

72                  Secondly, on the basis that the Minister read and considered the annexures to Mr Donatiello’s minute and the minute itself (as the minute discloses, see [58] above) it was said that the following was considered by the Minister:

(a)           that the solicitors of Mr Perez asserted in their submission that the best interests of his children must be assessed as a primary consideration;

(b)          that the solicitors of Mr Perez asserted in their submission that Mrs Perez in a letter of 24 August 1999, a copy of which was on the department’s file, referred to the effect that Mr Perez’s absence has had on his young children;

(c)           that the solicitors of Mr Perez asserted in their submission that the case officer for Mr Perez at the time of his original deportation order described Mrs Perez’s letter as ‘an impassioned plea for the release of her husband … on compassionate grounds’;

(d)          that the solicitors of Mr Perez requested the Minister to take into account the deterioration of the family situation of the children as reflected in the parents’ letters (which letters were before the Minister);

(e)           that the solicitors of Mr Perez requested the Minister to take into account the interests of the two sons of the earlier relationship and asserted that they were now in regular contact, though that was far from ideal, with him in gaol;

(f)            the letters of Mr and Mrs Nichols and Ms Benjamin;

(g)           a part of the minute from the ‘Protection Services Division’ which dealt with the Convention on the Rights of the Child as follows:

Other issues for consideration

Mr Hector-Perez is married with a 5 year old daughter and a 9 year old stepson from this relationship. He also claims that the contact has been restored with his two children from a previous de facto relationship in Australia.

Article 3.1 of the Convention on the Rights of the Child (CROC) states:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests of the child shall be a primary consideration.’

Although acknowledging that the best interests of Mr Perez’s children would be for him to remain in Australia (despite his long criminal record and extensive incarceration), those interests do represent a primary consideration which must be balanced against another primary consideration of the protection of the Australian community.

(h)           the terms of the minute in paras 18, 19 and 20 (see [64] above) which identify in summary form the aspects of the children’s position;

73                  It is not clear to me that the Minister had the handwritten letter of Mrs Perez referred to at [72(b)] above. It was certainly on the departmental file. It was referred to by the solicitors. It was not separately identified as an annexure to Mr Donatiello’s minute. On balance, it would appear not to have been before the Minister. Nor is it clear that the submission of Mr Gillett (Mr Perez’s then case officer) made prior to the deportation order being originally made (which recommended that an order not be made in part because of the affectation of the interests of Mr and Mrs Perez’s children, see [10] above) was before the Minister. On balance, it would appear not to have been before the Minister.

74                  There were, and are, no written reasons. Subject to the next sentence, I accept the submissions of the respondent to the extent that they were to the effect that the material set out at [72] above was before and considered by the Minister. However, I do not accept the submission that either Mrs Perez’s letter or Mr Gillett’s submission was before the Minister.

75                  Notwithstanding the matters referred to at [73] and [74] above to the effect that I cannot conclude the documents there referred to were before the Minister, I think that there was sufficient material before the Minister to enable him to take into account, as a primary consideration, the best interests of the four children. It has not been shown that the Minister did not do so. The decision made does not of itself lead to the conclusion that this was not done. The material before him was sufficient for him to formulate and take into account those best interests as a primary consideration.

76                  Thus, the attack on the First Decision fails.

the Second Decision

77                  It is necessary to return to a little more detail in respect of the delegate’s decision to continue to detain Mr Perez. The statement of reasons of the delegate is dated 8 October 2001. In the first section, entitled ‘Material Findings of Fact’, the following appears after a recounting of Mr Perez’s history in this country, including his criminal record:

8.        On 22 March 2001, a request to revoke Mr Perez’s deportation order was received from Mr Perez’s solicitors. The submission highlighted his wife’s inability to cope with his immigration situation and the resulting deterioration of the family situation. Mr Perez’s solicitors requested either revocation of the deportation order or release of Mr Perez from immigration custody, with appropriate reporting and living conditions.

9.        On 27 July 2001, a revocation submission based on the information provided was forwarded to the Minister. Included was an assessment of Australia’s protection obligations to Mr Perez. It concluded Australia would not be in breach of the Refugees Convention, the CAT or ICCPR if Mr Perez were returned to Cuba.

10.    Mr Perez has family in Australia. His spouse, Mrs Stacey Perez’s letter to the Department, dated 3 September 1999, states the ongoing trauma had totally destroyed her family. She asked that her husband be allowed to return home, as they can’t go on living without him. Mrs Perez has a son from a previous relationship and a daughter with Mr Perez. Their daughter Joanne was born in February 1996. Mrs Perez’s parents, Mr and Mrs Nichols provided letters to the Department, dated 9 and 13 March 2001, respectively. They state, that their grandchildren are in their care because of their daughter’s inability to cope with her husband’s current situation. They asked that Mr Perez be released from immigration custody so that he can rejoin his family and resume a normal life.

11.    Mr Perez has two children from a previous defacto relationship with Ms Alanna Benjamin. In a statutory declaration to the Department, dated 28 February 2001, Ms Benjamin states, that since October 2000, her children have re established [sic] contact with their father and visit him in gaol on a weekly basis. They are happier children.

78                  The reasons set out the evidence and material on which the findings were based and included the following:

…

(iii)       Department of Immigration and Multicultural Affairs, Migration Series Instructions

(iv)       Information contained in Department of Immigration and Multicultural Affairs file, N98/600415, N93/400130, CLF2001/2205, CLF2001/40170, CLF2001/40171 and CLF2001/42406

(v)         Supporting documents from Mr Perez’s family and former De facto spouse

(vi)       Conviction and Sentence details from NSW Department of Corrective Services

(vii)     Submissions from Mr Perez’s legal representative.

79                  It is appropriate to set out in full what appears under the heading ‘Reasons for My Decision’ which make up the balance of the reasons:

13.        Mr Perez was first considered for deportation in 1983 due to a conviction for malicious wounding. Mr Perez was issued a strong verbal warning. In 1996, Mr Perez was again considered for deportation and on 26 November 1996, the delegate for the Department signed a deportation order against Mr Perez. At the time the deportation order was signed, Mr Perez’s risk of recidivism was assessed as moderate to high.

Sub-section 253(8) of the Act states that:

‘A deportee may be kept in immigration detention or such detention as the Minister or 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 calling Australia’

Section 253(9) of the Act, which states that:

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

14.        Mr Perez has a lengthy criminal history dating from February 1982 that includes crimes of violence of varying severity and firearm offences. He has escaped from lawful custody on 18 June 1998 and was recaptured. In light of Mr Perez’s escape from criminal custody and his criminal history, it is questionable whether Mr Perez would make himself available for deportation should he be released.

Paragraph 2.3 of MSI 167 states:

‘A deportee should only be released if the delegate is satisfied that the person’s deportation from Australia would not be jeopardised by the person attempting to evade the Department.’

15.        Continuing high level negotiations between Australia and Cuba mean that Mr Perez’s deportation should occur at some point in the future.

16.        On 7 August 2001 the Minister affirmed Mr Perez’s deportation. The submission to the Minister included information on the deterioration of the family situation of his children, now in care of their grandparents, and Mrs Stacey Perez’s inability to cope with her husband’s continuing detention, and also the interests of his two sons to Ms Alanna Benjamin, a former partner of Mr Perez.

The Minister’s General Direction No. 9 in relation to criminal deportation states at paragraph 33:

‘A deportee may continue to be held in custody pursuant to the Migration Act pending finalisation of appropriate deportation arrangements and cannot expect to enjoy any period at liberty with the Australian community between the expiration if [sic] their penal servitude and deportation from Australia’

17.        In reaching my decision, I took into consideration the compassionate statements put forward by Mr. Perez, his family and advocates and balanced them against Mr. Perez’s extensive and violent criminal history. I also gave weight to the fact that Mr. Perez has previously escaped from lawful custody – State Correctional facility – and therefore I formed a doubt as to Mr. Perez making himself available for deportation should the deportation order be executed after any release from detention. In all the circumstances before me, I decided to maintain Mr. Perez’s immigration detention pursuant to Section 253 of the Migration Act 1958.

80                  A number of matters should be noted about these reasons. First, the conclusion in paragraph 15 that the deportation ‘should’ occur must be set in the light of all the available material. The delegate (Mr Donatiello) must be taken to have been aware of the matters contained in, and annexed, to his earlier briefing paper for the Minister. Also, Ms Kang’s briefing minute of 24 August 2001 referred to this question and stated that she had sought an update on the progress of Mr Perez’s travel documents (see [41] to [45] above). This, as I have indicated, had not produced any more optimistic response from the Cubans than existed prior to May 2001 which I described at [23] to [36] above, the optimistic high-point being the expression of opinion by Ms Gonzales in December 1997 (see [26] above) which had apparently not led to any progress in advancing Ms Perez’s repatriation. In this light, it is difficult to see how the word ‘should’ can be understood as taking the matter any higher than a statement that the possibility that the deportation order will be executed cannot be ruled out. Certainly, (and Mr Basten agreed with this) there could be, and in fact there was, no attempt by Mr Donatiello, or others in the department, to estimate or identify when in the future it would, or might be, executed.

81                  Secondly, paragraph 16 referred to the minute of Mr Donatiello to the Minister in connection with the revocation of the deportation order and the deterioration of the family situation of the children. Paragraph 17 then goes on to state that in reaching his decision, the delegate took into consideration ‘the compassionate statements put forward by Mr Perez, his family and advocates and balanced them against Mr Perez’s immigration extensive and violent criminal history’.

82                  Thirdly, nowhere in the reasons (or Ms Kang’s minute, or indeed, in any departmental document in evidence before me) was there any identification or elucidation of what the best interests of Mr Perez’s children were and are.

the first basis ([49(a)] above)

83                  The first basis of attack was founded, as the applicant’s submissions acknowledged, on the factual conclusion which the applicant asked me to draw and which is referred to at [57] above. For the reasons expressed above, I refuse to draw that conclusion. Without that conclusion being drawn, there is no basis to conclude, or infer, that the decision was made not to maintain Mr Perez in custody to deport him, but only to detain him to prevent his release into the community.

the second basis ([49(b)] above)

84                  The submission was put on behalf of the applicant that the enactment authorising Mr Perez’s detention had limits that have been exceeded in the circumstances here. To make good that submission it was necessary to identify the scope of the power to detain granted by subs 253(8). This submission did not depend on success in the challenge to the First Decision.

85                  The principal argument put on behalf of the applicant as to the scope of the power within subs 253(8) was based on principles expressed in R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704. There, the applicant, an Indian national, was held in detention after a deportation order was made against him. He had committed various offences and had been imprisoned after convictions for those offences. The relevant provision of the United Kingdom Immigration Act 1971 (Schedule 3 para 2) provided as follows:

2(1) …

(2) Where notice has been given to a person … of a decision to make a deportation order against him … he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure… (and if already detained by virtue of …. (2) above when the order is made, shall continue to be detained unless the Secretary of State directs otherwise).

[emphasis added]

86                  Mr Singh was due for release on 20 July 1983, but he was detained under para 2(3), above, pending his removal. Time passed because he had lost his passport and because there was delay on the part of the Indian High Commission. The matter came before Woolf J (as his Lordship then was) on a writ of habeus corpus in the Queen’s Bench Division on 13 December 1983, slightly under five months after Mr Singh was otherwise due for release (on 20 July 1983). Woolf J held that, though the power to detain was not subject to any express limitation of time beyond the phrase ‘pending his removal’, the power to detain was otherwise limited. At p 706 he said:

…Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. …

[emphasis added]

87                  In these circumstances, Woolf J granted an adjournment of the case for three days and then said (at p 709):

… In taking that course, I have in mind that if it is shown to this court that the applicant is due to be removed within a very short time indeed, then it would be proper for him to remain in detention for that short time. But if, when the matter comes before me in three days’ time there is no intimation given to me on behalf of the Home Office that he will be so removed, this is a case where he should be released unless, having taken advantage of the adjournment, the Home Office are in a position to put before the court evidence which reveals a wholly different situation from that indicated by the evidence which is at present before me. Therefore, in those circumstances, I grant that limited adjournment, taking the view that a very short additional period of further detention will not result in such an injustice to the applicant as requires me to refuse the Home Office an opportunity to file further evidence, bearing in mind that they can reasonably say that the late service upon them has not given them proper time to put their case in order. [emphasis added]

88                  Ex parte Hardial Singh was approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (Lam). There, s 13D of the Immigration Ordinance (Laws of Hong Kong, 1981 rev., c. 115) conferred a power to detain (but did not require the detention of) a Vietnamese migrant ‘pending his removal from Hong Kong’. The applicants were (with the exception of one, referred to as A 8, who had dishonestly claimed to be Taiwanese) ethnic Chinese Vietnamese nationals who had been refused refugee status, and who had been in detention for different periods. Using the identification in the judgment of their Lordships, the applicant A 9 had been detained for twenty-five months pending determination of his refugee status and twenty months pending removal from Hong Kong; A 10 had been detained for ten months and twenty-five months for those two purposes, respectively; A 11 had been detained for twenty-four months and forty-four months for those two purposes, respectively; A 8 had been detained for twenty-two months and forty months for those two purposes, respectively. (Applicants A 1 to A 7 had been released after commencement of the proceedings and before delivery of judgment of the primary judge, Keith J.)

89                  Various arguments were put to Keith J. One (referred to as ‘the length of the detention issue’) was to the effect that given the very long periods during which the applicants had already been detained, their further detention for an indefinite period would be unreasonable, and therefore unlawful. Another (referred to as ‘the nationality issue’) was to the effect that the Vietnam authorities had a policy under which Vietnam would not accept the repatriation of those they treated as non-Vietnamese nationals; therefore, the argument ran, there was no possibility of their removal from Hong Kong under a scheme for compulsory repatriation which had been agreed to between the Hong Kong and Vietnamese authorities. So, it was submitted, their detention could not be ‘pending deportation’.

90                  Keith J, who referred to, and was prepared to apply, the views of Woolf J in Ex parte Hardial Singh,concluded that the periods of detention were, despite their length, reasonable. His Honour’s conclusion, however, was despite his expressed views (which expressed views were specifically agreed with by the Privy Council comprised of by Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Steyn and Sir Brian Hutton) as follows:

‘When coupled with the length of their detention pending screening, the time which these applicants have been in detention is truly shocking. They are, at first blush, an affront to the standards of the civilized society which Hong Kong aspires to be.’

[emphasis added]

91                  The reasons why Keith J held that the periods of detention were, nevertheless, reasonable, arose from the context of the detention. Some applicants (A 9, A 10 and A 11) had not applied for voluntary repatriation under a voluntary scheme, and another (A 8), had withdrawn his application for voluntary repatriation. As a result, compulsory repatriation was the only alternative, and the speed of this process was controlled, not by the Hong Kong authorities, but by the Vietnamese authorities. Thus, the delay (of the Hong Kong authorities) was not unreasonable. This dealt with the length of detention issue.

92                  As to the nationality issue, Keith J, on the evidence, concluded that the Vietnamese authorities would not accept the repatriation of A 9, A 10 and A 11, but that when the true facts about A 8 were made clear they would accept A 8. So, in respect of A 8, Keith J found that there was ‘every prospect of him being removed from Hong Kong in the near future.’

93                  The Hong Kong Court of Appeal held that the approach of Keith J was in error, that the terms of the Ordinance governed the position, and that the court could intervene only on the usual grounds of judicial review, here, relevantly, if the decision as to continued detention was unreasonable in the sense identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). The Court of Appeal held that the detentions were lawful if they were for the purpose of repatriation and that purpose was not spent. It held that there was no burden on the respondent to show that it was more likely than not that Vietnam would accept the applicants for repatriation. It was enough for the director to show that attempts were on foot to effect repatriation.

94                  The Privy Council dealt first with the question of Ex parte Hardial Singh. Their Lordships were unequivocal in their disagreement with the Court of Appeal, and in their agreement with Keith J, in respect of the application of the principles in Ex parte Hardial Singh. Their Lordships said at p 111:

…

Section 13D(1) confers a power to detain a Vietnamese migrant ‘pending his removal from Hong Kong.’ Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J. in the Hardial Singh case [1984] I W.L.R. 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain ‘pending removal’ their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.

Although these restrictions are to be implied where a statute confers simply a power to detain ‘pending removal’ without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships’ view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances.

[emphasis added]

95                  Secondly, and in the light of their Lordships’ views referred to in [94] above, the Privy Council held that the determination of a reasonable period for the authorised detention ‘pending removal’ was the assessment of a jurisdictional fact, and one for the Court to make: at pp 113-14.

96                  Thirdly, it was unnecessary for the Privy Council to deal with the argument of the applicants to the proceedings, and appellants to the appeal, that Keith J was wrong on the length of the detention issue, because of the view taken on the nationality issue. However, by way of obiter dicta, their Lordships said the following at pp 114-15:

…

However, since there is a large number of Vietnamese boat people still in Hong Kong who may only be able to bring proceedings on the basis that the inordinate length of their detention renders it unreasonable, it is desirable to emphasise one point. The large majority of those in detention do not wish to return to Vietnam and have declined to apply for voluntary repatriation. The evidence shows that, if they did so apply, most of them would be repatriated in a comparatively short time, thereby regaining their freedom. It follows that, in such cases, the Vietnamese migrant is only detained because of his own refusal to leave Hong Kong voluntarily, such refusal being based on a desire to obtain entry to Hong Kong to which he has no right. In assessing the reasonableness of the continuing detention of such migrants, section 13D(1A)(b)(ii) requires the court to have regard to ‘whether or not the person has declined arrangements made or proposed for his removal.’ In their Lordships’ view the fact that the detention is self-induced by reason of the failure to apply for voluntary repatriation is a factor of fundamental importance in considering whether, in all the circumstances, the detention is reasonable.

97                  Fourthly, as to A 9, A 10 and A 11, the conclusion of Keith J that the Vietnamese authorities would not take them back was affirmed. In this light, their Lordships held at p 116:

…

In all circumstances their Lordships can see no sufficient reason to overturn the finding of the judge that it is the policy of the Vietnamese Government not to accept repatriation of non-Vietnamese nationals. In these circumstances, it is not contended that these applicants are being detained ‘pending removal.’ Accordingly, the decision of Keith J. to order their release was correct.

98                  Counsel did not refer me to any case in Australia where Ex parte Hardial Singh or Lam’s Case had been dealt with. My researches have not thrown up any such case. However, the Full Court of this Court has dealt with similar arguments as were before the court in those cases, in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371. There, the applicant had been convicted of armed robbery. He was not an Australian citizen. He was a national of Vietnam. A deportation order was made under s 200 of the Migration Act. He was eligible for parole on 18 June 1998. He was thereafter kept in immigration detention under s 253 of the Migration Act. By letter dated 16 July 1999 he applied to be released on the ground that the Vietnamese Government was not interested in allowing him to re-enter Vietnam. A decision was made on 21 July 1999 to maintain his detention. Review of that decision to maintain the custody of Mr Vo was sought under the AD(JR) Act. The grounds of review were expressed by the Full Court at p 373 to be:

…[I]n essence, that the Minister’s delegate failed to give sufficient weight to the length of time the appellant would spend in detention while waiting for the deportation order to be carried out, because of unreasonable delays in negotiations between the Australian and Vietnamese Governments on the matter of his entering into Vietnam.

99                  On appeal from the dismissal of the application, the applicant argued that his detention could not be regarded as ‘pending deportation’ within the meaning of subs 253(8) in the light of what Madgwick J had said in Perez, supra. There, in a challenge only to the decision to deport (not to the decision to maintain Mr Perez in custody, since Mr Perez was still serving his sentence), Madgwick J had referred to the rules of statutory construction concerning the affectation of fundamental common law and human rights and to the need for Australia’s international obligations to be observed: Perez, supra at 290. His Honour referred, at 290-91, to what the High Court had said about these matters in Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 252 and Chu Kheng Lim, supra at 38. (Reference might also be made to Teoh, supra at 287.) The Full Court then set out what Madgwick J said in Perez, supra, immediately after his Honour had referred to these principles:

Subsections (8) and (9) [of s 253] must be read with the foregoing principles in mind. In subs (8) there is, in the context of the subject matter, a clear implication that there must be a real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future. Likewise, subs (9) is not intended to be a dead letter but the active source of the Minister’s power to prevent injustice. In an appropriate case, the Minister will have a duty to act under that subsection: see, in a different context, Luu v Renevier (1989) 91 ALR 39 and Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553; see also Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Dhiman v Minister for Immigration and Multicultural Affairs [1999] FCA 1291.

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

100               Madgwick J had, earlier in his judgment, just before dealing with the principles of construction referred to above, dealt with delay and the real prospects of execution of the deportation order. At pp 289-90 he said:

Delay in the execution of a deportation order does not invalidate it: s 206(2). However, that may not mean that the prospect of a long delay in arranging the intended deportation is irrelevant to the question of the validity of the initial making of the order. Section 206(1) provides that, where the Minister has made an order for the deportation of a person, ‘ that person shall, unless the Minister revokes the order, be deported accordingly.’ It is clear from this (and generally) that the principal purpose of and justification for the making of a deportation order is to effect the proposed deportation of the person. If it were plain that there was no prospect of effecting the deportation within a reasonable period, there might be no justification for the making of the order and the conclusion might be invited that the power to make the order was being exercised for some extraneous and therefore legally improper purpose. Further, upon its later becoming apparent, after the regular making of an order, that events revealed a practical impossibility in actually effecting the deportation, questions of the Minister then having a legal duty to revoke the order might arise.

In any case, regardless of the position as to validity, anticipated delay might be relevant to determining the merits, the correctness or preferability in the administrative sense, of a decision that a person be deported. Even when unaccompanied by detention, delay may involve hardship for that person and the person’s family. For many a person, the pronouncement of an edict that he or she is to be deported is likely to occasion as much or nearly as much anguish as being informed that they have not long to live or that they will have to live with some serious health affliction. To be exiled from an affluent democratic country like Australia to a poor county ruled, like Cuba, on totalitarian lines is obviously a grim thing. Such a deportation might well be made grimmer by its prospect, and grimmer still if that prospect is long-continued: ‘Cowards die many times before their death; the brave man dies but once.’ Cowardice, in that sense, is common enough.

Nevertheless, delay on its own may be a less alarming matter than a likelihood that a practical consequence of the making of a deportation order will be indeterminate detention, in the sense of detention for a long period or an unknown period that is not acceptably short.

The making of a deportation order does not have a logically necessary consequence that the person concerned will be detained pending the deportation. Section 253 empowers the detention of a deportee but does not require it and s 253(8) specifically allows the release conditionally or otherwise, of a person determined under that section. However, s 253 subjects a deportee to the immediate liability to detention and, in a particular case, detention may be the probable or, as here, the practically inevitable consequence of a deportation order.

Where that is so, if the prospect is that such detention will be indeterminate (in the sense I have used that term), this may possibly go to the validity of the deportation order, but in any case it will certainly affect the merits of the decision.

Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to all our legal and political traditions and to international conceptions of human rights for which Australia has signified our respect by entering into treaties.

Assuming the constitutional validity of such authorising legislation, such detention ought not be thought to have been authorised except by statutory language, the intention of which is clear beyond argument.

101               On the evidence before the Administrative Appeals Tribunal, an ‘appeal’ from whose decision was before Madgwick J, the Tribunal had found on the evidence that:

There is also no evidence in the present case that Cuba has at this stage rejected the deportation of Mr Perez back to that country. Rather, the evidence shows that the diplomatic process to secure such return has been initiated through the lodgment of a third person note … There is also evidence that the Cuban government continues to view the [Memorandum of Understanding, between Cuba and Australia] as still being in effect and that this agreement will be utilised in Mr Perez’s case should the deportation order be affirmed.

102               Madgwick J then noted at p 293 that:

If later events belie that factual conclusion, formed on the presently available evidence, then Mr Perez would, in my opinion, not be without a remedy.

103               The decision of Madgwick J in Perez, supra, is not authority for the proposition that delay, past what a court thinks is reasonable, takes the position beyond the scope of the authority to detain in subs 253(8). However, it might be thought that what his Honour said which is set out at [100] above would found an argument of the kind referred to in Lam as ‘the detention issue’, and which commended itself to Woolf J in Ex parte Hardial Singh and Keith J and the Privy Council in Lam. Neither Ex parte Hardial Singh nor Lam was cited to Madgwick J in Perez, supra.

104               However, the Full Court in Vo made clear that such an argument is not available in this Court. In Vo, after referring to what Madgwick J said in Perez and cited at [100] above, the Full Court, in dealing with the argument that the continued detention was not authorised because it had not taken place ‘pending deportation’ within the meaning of subs 253(8), said the following at [12] to [15]:

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

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

[14] This is not to say that the Act, or the general law, will permit the authority to detain to be abused. Clearly, the authority must be exercised bona fide for the purpose for which it was conferred and not to achieve another, disguised, objective (none of which was suggested to be the case here) (see, for example Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 per Gummow J at 378). In Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ said (of the precursors of the present provisions) (at 643-644):

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

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

105               There was a related argument put to the Full Court, of the kind advanced here, as to the failure of the Minister to prove the length of detention was justified. The Full Court rejected this as follows (at [16] of the Court’s reasons):

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

106               The last sentence of this paragraph reflects the distinct status of arguments as to whether the powers to revoke the deportation order or to order release should be exercised. Such considerations (as here) are to be seen as separate and distinct from whether the power or authority existed in subs 253(8) to order, or to order the maintenance of, detention. The former are to be seen as questions of the valid exercise of the power, the latter as a question of the existence of the power by reference to the scope or reach of the authorising or enabling statutory provision.

107               I should add that neither Ex parte Hardial Singh nor Lam was cited to the Full Court in Vo.

108               The reasons of the Full Court mandate, it seems to me, the view that the scope of the power granted by subs 253(8) has not been exceeded here. Further, as I have said above, in the light of the evidence before the delegate, I do not think the conclusion which the applicant submitted I should draw and referred to at [57] above was one which the delegate was required to draw. He did not do so. Although such a finding may be unnecessary for the application of the reasoning in Vo, it does reinforce the conclusion that the second basis for the attack on the Second Decision must fail.

109               In Vo, supra another argument was put which was dealt with by the respondent in written submissions before me, but which, strictly speaking, was not identified in the Application in any of its filed or proposed forms. That argument is reflected in para 17 in the reasons of the Full Court in Vo as follows:

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

110               The argument failed in Vo on the facts. The respondent before me submitted that the delegate’s findings that because ‘high level negotiations’ were taking place, he believed that the deportation ‘should occur at some point in the future’ dealt with that argument. At one level it does. I do not think it was a perverse finding, especially in the manner that it should be understood, in my view (see [80] above). Also, as I have said, I do not think that the facts required a finding that the deportation would not, or could not, occur. However, at another level, I think this answer is inadequate. I will return to this question in due course, when I deal with the fifth ground referred to in [51] above.

111               Another, similar, argument was identified in Vo which the respondent before me saw as the same argument. At paras [24] and [25] of its reasons in Vo the Full Court said:

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

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

112               I repeat what I have said in [110] above.

113               For the above reasons, the second basis of the attack on the Second Decision fails.

the third basis ([49(c)] above)

114               The constitutional challenge was to the validity of subs 253(8). It was submitted that without a limitation implied of the kind referred to in Ex parte Hardial Singh and Lam there is no length of time to limit the detention contemplated by the section and, so it was said, the provision travels beyond what is ‘reasonably capable of being seen as necessary for the purposes of deportation.’: Chu Kheng Lim, supra at 34.

115               This is a point on which I am bound by High Court authority. In Koon Wing Lau v Calwell, supra, the High Court upheld the validity of s 7 of the War-time Refugees Removal Act 1949 (Cth), which was in relevantly similar terms to subs 253(8) of the Migration Act. That conclusion was expressly upheld in Chu Kheng Lim, supra at 31.

116               The constitutional attack fails.

the fourth basis ([49(d)] above)

117               The penultimate basis for attack is that the interests of the four children were not taken into account as a primary consideration. The delegate gave reasons. From them, in the context of the material before the delegate, it is necessary to find compliance with the principles referred to in [70] above.

118               In Wan, supra, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan, supra at [20]. Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal. Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. An appreciation of the facts set out at paras 8 to 11 of the reasons ([77] above) and of the contents of the ‘compassionate statements’ referred to in para 17 of the reasons ([79] above) does not mean that from that material the bests interests of the children have been identified and appreciated, and taken into account as a primary consideration. It is not just a matter for ‘compassion’ as para 17 would tend to indicate was the view of the delegate. ‘Compassion’ is participation in another’s suffering, fellow-feeling, sympathy, pity inclining one to show mercy or give aid: The New Shorter Oxford Dictionary (1993). The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).

119               The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children. The delegate did not say that he had taken the children’s interests into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.

120               It is not enough to say, as in a sense the respondent submits, that all this is found in paras 8 to 11 and 17 of the reasons (see [77] and [79] above). It is not. The delegate certainly took facts concerning the family and children into account. He recognised, and expressed himself in para 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.

121               I fully appreciate that the Second Decision (dealing as it did with his incarceration pending the execution of the deportation order) did not lead to the loss permanently for the children of their father, or to the need to go with him to Cuba if they were to be with him. However, these are young children, at an age at which all aspects of their mental, physical, social and educational well-being and development could be enhanced by the presence or ready availability of a father, not in incarceration, especially in circumstances where the delegate did not, and could not, say how long Mr Perez might be in Australia, and possibly able to provide advantages of this kind to his children and step-child. If his removal is able to be effected, but only after some further considerable time, that time might be very important to one or more of these children in his, her or their growth and development. This kind of consideration is what Teoh requires, not what is reflected by the delegate’s reasons.

122               The above is not intended to be a prescribed body of appropriate findings about these children and Mr Perez in these circumstances, but it illuminates the nature of the mandated analysis and consideration which was not undertaken.

123               For these reasons the Second Decision should be set aside.

the fifth basis ([51] above)

124               As I said in [52] above there is plainly a typographical error in the Proposed Further Amended Application; and I take the draftsperson of the document to be seeking to state what I have set out at [52] above. This is plainly, as the written submissions in support make clear, based on what was said by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41. The written submissions filed in support of ground 5 were, in full, as follows:

23.              In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 41, His Honour, Justice Mason, stated that a failure to give adequate weight to a matter of great importance can form the basis of judicial review. The appropriate ground of review is ‘manifest unreasonableness’.

24.              Here, the approach that the Respondent has taken to the issue of the likelihood of executing the deportation order within a reasonable timeframe, is so unreasonable, given the paucity of evidence, that no reasonable decision-maker could have reached it.

25.              Mr Perez’s detention is unlawful, and he should be released. Even if it is not unlawful, the reasoning of the decision-maker is so unreasonable, and so fails to come to grips with the essence of the case, that it should be set aside, and remitted to the Respondent, to be decided according to law, and with costs.

125               These submissions were somewhat narrower than the debate which took place at the hearing. They also focus upon one strand of Wednesbury unreasonableness, that the end result of the exercise of the discretion, in the light of all the evidence, cannot be sustained as one capable of being reached by a reasonable decision-maker in the circumstances in which the decision was made.

126               A number of things can be said about this approach. First, it does not raise the question thrown up by the various approaches in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 as to whether Wednesbury unreasonableness applies, or is relevant, to fact finding, and whether it is limited to the exercise of discretion: see Eshetu, supra at [40] and [145], and see also Abebe v Commonwealth (1999) 197 CLR 510 at [194] and Aronson and Dyer Judicial Review of Administrative Action (2^nd Ed) pp 278-89, esp. 281-82 . Secondly, it does not place any emphasis on one aspect reflected in other judgments in the High Court, that the Wednesbury ground of review can often be closely related to, or another way of expressing, other vitiating error: see generally Wednesbury, supra at 229-30, itself; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 per Deane J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 273 and Eshetu, supra at [125]. Thirdly, one must pay careful heed to the cautionary warnings given by the High Court to the application of Wednesbury in giving expression to subjectively held views of unfairness, especially in the context of decisions where judgment, opinion, policy and the balancing of such matters is at the heart of the exercise of discretion: for example Eshetu, supra at [40] and [41] per Gleeson CJ and McHugh J and Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 per Brennan J, which warnings, if I may respectfully put it this way, only echo the caution of Lord Greene MR in Wednesbury, supra at 230.

127               I have earlier discussed the constitutional foundation of s 253: [55] above. The legitimate reach of the section is founded on its reasonable connection with deportation, through the phrase ‘pending deportation’: [55] above. However, that does not exhaust the effect and importance of the constitutional foundation of the section. The constitutional foundation necessarily imports into the section, the obligation, in the exercise of the power granted by the section, to consider and deal with the matter through, and by reference to, a framework or prism conformable with the limits of the constitutional power enabling the section: the reasonable connection with deportation (that is the reasonable connection with the execution of any deportation order). Thus, if, on the facts as found by, or available to, the decision-maker, it is plain that the deportation order will be effected, and within a short space of time, that provides the framework of connection with deportation, and so with the underlying enabling power, which informs the entitlement of the decision-maker to make the decision about detention or release. Equally, if, on the facts as found by, or available to, the decision-maker, it is plain (as here) that the deportation order has not for two years been able to be effected and may not be able to be effected for an indefinite period, though, nevertheless, the decision-maker believes that at some indefinite point in the future it should be able to be effected, that provides the framework of connection with deportation which informs the entitlement of the decision-maker to make the decision about detention or release. This is implicit, it seems to me, in the reach of the constitutional power informing the valid expression of Parliament’s will: the reasonable connection with deportation.

128               To say as much does not dictate in any given case the ‘correct’ decision. Nor does it necessarily mean that a decision reached without dealing with the matter on that basis is necessarily one which would be Wednesbury unreasonable if it had been reached by dealing with the matter on the correct basis. It can perhaps be expressed (as occurred during debate at the hearing) as a form of statutorily mandated relevant consideration; or, as Mason J anticipated in Peko-Wallsend, supra, at [41] could be the case, it can perhaps be expressed as the presence of a statutory indication of the appropriate weight to be given to certain considerations. For my part, I would prefer to express the matter, not as an example of a statutory indication of the appropriate weight to be given to certain considerations, but as a statutory requirement to approach the task by reference to a framework, or perspective or prism dictated or moulded by the reasonable connection with deportation, that is, with the likelihood, and timing, of the execution of the deportation order.

129               To apply this approach here, the delegate would be obliged to examine Mr Perez’s circumstances, the best interests of his children and step-child, his long and violent criminal history and any other matters considered relevant, including the availability of release on appropriate (perhaps stringent) conditions, through the prism, or from the perspective, of his apparently indefinite future detention, on the information currently available and that in the light of the history of the attempts to repatriate him.

130               It seems to me, looking at the reasons of the delegate, that he simply did not do so. Once the connection with effecting deportation was established by the acceptance that he should be able to be deported, no attempt was made to examine the matter from the position, as was evident and as Mr Basten very properly agreed, that no one could say when he might be able to be returned to Cuba. There was certainly no basis to think (and Mr Basten did not suggest) that Cuban permission was imminent. In that sense, the time of return was, at best, at some indefinite point in the future. Based on the history of his case, and on the history of the cases of the other Cubans which I have mentioned, it may be some considerable time in the future.

131               In those circumstances the delegate failed to direct himself to the task required of him by the statute.

132               It is not an answer, it seems to me, to say that there will be on-going review of Mr Perez’s detention and, at some point, a decision to maintain his detention might be able to be characterised as Wednesbury unreasonable. Each decision must be made within the framework, and from the perspective, required by the legislation.

133               To say as much is not, however, to conclude that the result of the decision was one which could not have been the legitimate product of a proper consideration, if it had been undertaken. Whilst there is great force in the submissions of Mr Jackson, who appeared for the applicant, that the length of the detention by the executive of Mr Perez since September 1999 has been inordinate, and whilst one is tempted to describe Mr Perez’s circumstances by resort to the language employed by Keith J as referred to at [90] above, due regard can legitimately be paid to the length and nature of Mr Perez’s criminal record, the risk of flight, the interest of the protection of the public pending his deportation, the previous warning to him about his behaviour and its consequences and the role played by the apparent intransigence of the Cuban authorities in his plight. Equally, or in contradistinction, regard can legitimately be paid to Mr Perez’s family circumstances, the possibility that these, together perhaps with age and maturity, have curbed or will curb his erstwhile violent disposition, the availability of stringent conditions of reporting and the best interests of the four children. All these competing considerations (which I do not suggest are exhaustive) highlight the difficult and judgmental nature of the decision, and illuminate the appropriateness of judicial caution against succumbing to subjective notions of unfairness in branding what is a normative choice, infused with policy and judgment, as necessarily Wednesbury unreasonable and, so, unlawful.

134               Thus, I would also set aside the Second Decision because of the failure of the delegate to approach the decision directing himself to the task as required by the Act.

135               The above may not be crisply or clearly articulated by ground 5 as expressed in the proposed amendment, but it reflects, I think, one aspect of what is sought to be conveyed. However, it does reflect, it seems to me, how debate was conducted at the hearing. In these circumstances, it is appropriate, given the views to which I have come, to found an order to set aside the Second Decision on this ground also.

136               Given all the circumstances, especially the gravity and consequences for Mr Perez of incarceration by executive decision, I think it appropriate, subject to what follows, to direct that the reconsideration of the decision be made by the Minister or by a delegate other than Mr Donatiello: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 43. I hasten to add that this is not because I have come to the view that Mr Donatiello would not, in fact, faithfully attend to his task: cf Eaton v Overland [2001] FCA 1834. As Davies and Foster JJ said in Northern NSW FM, supra, at 43:

… Such a finding imports no criticism whatever of the member who originally constituted the Tribunal but simply recognises that, when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing. …

[emphasis added]

Their Honours did not deal with the question on the basis of apparent bias. It was a more general, though kindred, consideration, as expressed above. The Court is empowered to approach the matter in this way, on the authority of Northern NSW FM, by the content of para 16(1)(b) of the AD(JR) Act. However, the respondent has not addressed me on this aspect of relief and for that reason, on 12 April 2002, I granted leave to the parties to put submissions to me about this subject matter should they feel it to be appropriate.

137               In light of these reasons, it is now appropriate to revoke order 6 made on 12 April 2002.

138               In conclusion, I wish to express my gratitude to counsel and solicitors for the quality and frankness of the assistance which I received in argument and written submissions.

Associate:

Dated: 3 May 2002