FEDERAL COURT OF AUSTRALIA

Te, in the matter of an application for writs of Habeas Corpus, Prohibition & Mandamus against Ruddock [2003] FCA 661

MIGRATION – deportation of non-citizen – detention of applicant pending deportation – lawfulness of detention – delay in executing deportation order – effect of lapse of time – whether implied limit on length of detention – whether lapse of time shows detention to be for ulterior purpose – whether lapse of time shows purpose of effecting deportation cannot be carried out – relevance of proceedings taken by deportee to challenge deportation order – failure of deportee to provide information relevant to obtaining travel document

Migration Act 1958 (Cth) ss 206, 253

Meng Kok Te v Minister for Immigration & Ethnic Affairs [1998] FCA 1339, cited

Meng Kok Te v Minister for Immigration & Ethnic Affairs [1999] FCA 111, cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 (2002) 193 ALR 37, cited

Koon Wing Lau v Calwell (1949) 80 CLR 534, applied

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

Vo v Minister for Immigration & Multicultural Affairs [2000] FCA 803 (2000) 98 FCR 371, followed

Perez v Minister for Immigration & Multicultural Affairs [1999] FCA 1342 (1999) 94 FCR 287, referred to

Luu v Minister for Immigration & Multicultural Affairs  [2002] FCAFC 369 (2002) 197 ALR 433, followed

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 (2003) 197 ALR 241, discussed

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

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

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

R (Saadi) v Secretary of State for the Home Department [2002] UK HL 41 [2002] 4 All ER 785, referred to

R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, referred to

Zadvydas v Davis 533 US 678 (2001), referred to

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

Cabal v United Mexican States (No 6) [2000] FCA 651 (2000) 174 ALR 747, followed

IN THE MATTER OF AN APPLICATION FOR WRITS OF HABEAS CORPUS, PROHIBITION AND MANDAMUS, AND FOR A DECLARATION AND INJUNCTION AGAINST THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE MENG KOK TE

V 373 of 2003

GRAY J

2 JULY 2003

MELBOURNE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The order in the form of an order nisi made by Goldberg J on 12 June 2003 be
            discharged.

2.         The application be dismissed.

3.         There be no order as to the costs of the application.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The nature of the proceeding

1                     The applicant, or prosecutor, in this proceeding, Mr Meng Kok Te, is in detention.  He is the subject of a valid order that he be deported, made by a delegate of the Minister for Immigration and Ethnic Affairs (subsequently the Minister for Immigration and Multicultural Affairs and, more recently, the Minister for Immigration and Multicultural and Indigenous Affairs) (in all cases, “the Minister”), pursuant to the power derived from ss 200 and 201 of the Migration Act 1958 (Cth) (“the Migration Act”).  He is a citizen of Cambodia.  In this proceeding, Mr Te has sought to secure his release from detention.  He has raised issues of the construction of s 253 of the Migration Act, by which the detention of deportees is authorised.  Mr Te has contended that the power to detain is subject to implied limitations in circumstances in which so much time has elapsed that the power is spent, the purpose of the detention can no longer be said to be deportation, and the execution of the deportation order has become impracticable.  If s 253 is not subject to these implied limits, Mr Te has argued that it accedes the legislative power of the Commonwealth Parliament under the Constitution.

2                     The proceeding was commenced in the High Court of Australia by application for an order nisi, calling upon the Minister to show cause why:

(a) a writ of habeas corpus or an order of or in the nature of mandamus should not issue, ordering Mr Te’s release from detention;

(b) a declaration should not be made that it is not lawful for the Minister to keep Mr Te in detention any longer;

(c) a writ of prohibition or an injunction should not issue directed to the Minister, prohibiting him from taking any step to detain Mr Te; and

(d) any other declaratory, injunctive or other equitable relief, as the Court thinks fit, should not be granted to Mr Te.

3                     On 12 May 2003, the High Court ordered that the application be remitted to this Court.  It is common ground between the parties that I should take the matter to have been remitted in the exercise of the power given to the High Court by s 44(2A) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  The grant of jurisdiction to this Court to deal with the matter is therefore made by s 44(3)(a) of the Judiciary Act.  Effectively, it is a grant of the jurisdiction of the High Court to deal with the matter.  It follows that the question does not arise whether this Court would otherwise have jurisdiction to deal with an application for a writ of habeas corpus.  For present purposes, the existence of such jurisdiction, conferred by s 44(3)(a), must be undoubted.

4                     The matter came into the docket of Goldberg J on 12 May 2003.  For reasons of his Honour’s commitments, he was unable to deal with it with the urgency that it required, as a matter concerning the liberty of the subject.  On 12 May 2003, his Honour made an order in the form of an order nisi, directed to the Minister, calling upon him to show cause why relief should not be granted of the kinds referred to in pars (a), (b) and (c) of the relief sought by Mr Te in the High Court, referred to above.  The grounds expressed in that order are:

“(1)     That on its proper construction section 253 of the Migration Act 1958
(“the Act”) authorizes detention no longer than to the extent reasonably capable of being seen as necessary to make deportation effective and does not extend to a power to detain for an unlimited period; alternatively

(2)       That to the extent that section 253 of the Act authorizes detention beyond the extent reasonably capable of being seen as necessary to make deportation effective such power is ultra vires the aliens power under section 51(xix) and the other powers under the Constitution; and

(3)       That in the circumstances the continuing detention of the prosecutor is unlawful.”

5                     In accordance with the practice whereby an application for a writ of habeas corpus is heard by the first available judge, the matter was referred to Marshall J as duty judge.  On 11 June 2003, and again on 13 June 2003, the matter was not ready to proceed because there were interlocutory steps that needed to be carried out.  Accordingly, his Honour passed the matter to me as duty judge, to be heard on 23 June 2003.  At the conclusion of the hearing, I found it necessary to reserve judgment.  Because of the urgency of the matter, I have endeavoured to prepare my reasons for judgment quickly.  As a consequence, they do not involve as much discussion of issues of law as I might have desired to engage in had I had more time.

The facts

6                     Mr Te was born in Phnom Penh, in Cambodia, on 7 April 1967.  In 1979, he became separated from his family by reason of the civil war in Cambodia and went to a refugee camp in Thailand.  On 7 July 1983, he entered Australia as a refugee with a visa entitling him to permanent residence here.

7                     Between 1987 and 1994, Mr Te was convicted on five occasions of various offences.  On two of those occasions, he was convicted of trafficking in a drug of dependence.  In relation to the second of these convictions, Mr Te appealed to the County Court.  On 16 September 1992, the County Court sentenced him to 12 months’ imprisonment, of which three months were suspended for a 12 month period.  On 29 May 1996, Mr Te was again convicted of trafficking in a drug of dependence.  On this occasion he was sentenced to seven years’ imprisonment with a non-parole period of five years.  He appealed unsuccessfully. 

8                     On 10 July 1998, while Mr Te was serving the sentence of imprisonment imposed on him in 1996, a delegate of the Minister ordered that he be deported from Australia, exercising the power conferred by s 200 of the Migration Act.  The order was based on the 1992 conviction and sentence.  The circumstances prescribed by s 201 of the Migration Act existed because, at the time of commission of the offence, Mr Te had been in Australia for a period of less than 10 years and was sentenced to imprisonment for a period of not less than one year. 

9                     On 6 August 1998, Mr Te applied to the Administrative Appeals Tribunal (“the AAT”), for review of the decision to deport him.  On 15 September 1998, he also applied to the Federal Court of Australia, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act, to review the decision to deport him.  The application to the Court also sought review of a decision to detain Mr Te, although it is not obvious that such a decision had been made by then, because Mr Te was still serving his sentence of imprisonment.  The application to the Court was dismissed by Branson J on 16 October 1998.  See Meng Kok Te v Minister for Immigration & Ethnic Affairs [1998] FCA 1339.  Mr Te appealed.  The Full Court dismissed his appeal on 12 February 1999.  See Meng Kok Te v Minister for Immigration & Ethnic Affairs [1999] FCA 111.  On 31 July and 1 August 2000, the AAT conducted a hearing of his application for
review.  On 22 September 2000, the AAT made a decision, affirming the decision of the delegate of the Minister to deport Mr Te. 

10                  In the meantime, on 16 August 1998, Mr Te became eligible for parole in relation to the sentence imposed on him in 1996.  Pursuant to s 253(8) of the Migration Act, a direction was made that he be kept in detention, initially in Port Phillip Prison, in which he had served his sentence.  He has been in detention continuously since that time, the only relevant change being that, on 2 January 2002, he was transferred from Port Phillip Prison to immigration detention at the Maribyrnong Detention Centre.

11                  On 21 March 2001, Mr Te commenced a proceeding in the High Court challenging the deportation order, on the basis that s 200 of the Migration Act could have no constitutionally valid application to him, as he had ceased to be an alien, for the purposes of the legislative power with respect to aliens in s 51(xix) of the Constitution.  On 7 November 2002, the High Court dismissed that application.  See Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 (2002) 193 ALR 37.  As a consequence of Mr Te’s lack of success in his respective proceedings in the AAT, this Court and the High Court, as counsel for Mr Te conceded, the Court must now accept that the deportation order in respect of him was made validly.  That deportation order still stands.

12                  It was not until May 2001, after Mr Te had begun his first High Court proceeding, that any step was taken by an officer of the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Department”) to execute the deportation order.  Contact was made with the Australian Embassy in Phnom Penh, seeking assistance in obtaining a travel document for Mr Te.  The Embassy advised that it could not assist.  The Department’s records show that, on 22 February 2002, there was a transfer of responsibility within the Department, for the purpose of an approach to the Cambodian Embassy in Canberra for assistance.  The Cambodian Embassy advised that only “short validity” travel documents would be issued to facilitate Mr Te’s entry to Cambodia.  Because of the pending High Court proceeding, no further action was then taken to obtain a travel document for Mr Te. 

13                  On 4 March 2002, the Australian Government and the Government of the Kingdom of Cambodia signed a memorandum of understanding concerning mutual cooperation in combating irregular migration, people smuggling and people trafficking.  On wholly inadequate material, a claim was made in this proceeding for confidentiality of this document, to avoid producing it to the Court.  Counsel for the Minister foreshadowed an application based on public interest immunity, to resist its production.  In the end, it was agreed between counsel that the memorandum of understanding includes a clause in relation to the return of irregular migrants, which covers deportees.  It does not include requirements for the provision of certain information prior to the issue of travel documents; these requirements are imposed by the Cambodian authorities independently. 

14                  On 7 November 2002, Mr Te’s solicitors wrote to the Australian Government Solicitor (“the AGS”), who had acted for the Minister in the High Court proceeding, which had been dismissed that day, asking for information as to when Mr Te would be released or sent to Cambodia. 

15                  This was followed by a letter dated 26 November 2002, requesting that the matter be referred to the Minister to reconsider his decision to deport, or to permit Mr Te’s release from detention pending deportation.  The AGS responded by letter dated 9 December 2002 in the following terms:

“Thank you for your letters of 7 and 26 November 2002 regarding the deportation of your client.  We note that your client’s High Court application was dismissed on 7 November 2002.

We are instructed that steps are being taken by the Department to deport your client to Cambodia as soon as possible.

It would assist the Department in expediting the deportation of your client if your client would cooperate and provide the following information:

a.         Details of your client’s identity documents: birth certificate, identity
            cards and passports.

b.         Full names and dates of birth of your client’s parents and
grandparents and place of origin of your client’s parents and
grandparents.

c.         Details of your client’s kin residing in Cambodia: full names, dates of
birth, relationship with your client and regular addresses of kin.

d.         Details of your client’s kin residing outside Cambodia: full names,
dates of birth, relationship with your client and regular addresses of
kin.

e.         Last known address for your client in Cambodia and former addresses in Cambodia.

f.          Details of your client’s education: names and location of schools and colleges attended.

g.         Details of employment: name and address of employer (if any) and any
other information that may assist to establish Mr Te’s identity in Cambodia.

The provision of this information by your client will assist in the Department obtaining a travel document for Mr Te and for arranging his early deportation.  You have asked when deportation is expected, and our instructions are clear that you may be assured that your client’s case is being treated as a priority.”

16                  On 13 January 2003, a solicitor employed by the AGS telephoned Mr Te’s solicitor, seeking a response to this letter.  Mr Te’s solicitor said that he had not had the opportunity to obtain instructions from Mr Te, but that some of the information sought should be available on the Department’s files. 

17                  On 17 January 2003, an officer of the Department sent to Mr Te a form of application for a Cambodian travel document.  The form was in the Khmer language.  Mr Te was unable to understand it.  He told the manager of the Maribyrnong Detention Centre that he intended to forward it to his legal representative.

18                  By letter dated 12 March 2003, Mr Te’s solicitors replied to the letter of 9 December 2002.  They pointed out that the issues raised in the letters of 7 and 26 November 2002 had
not been addressed.  They again sought the exercise of the Minister’s power to cancel the deportation order or to release Mr Te from detention.

19                  On 14 March 2003, an officer of the Department forwarded a further application form for a Cambodian travel document to Mr Te.  On 1 April 2003, Mr Te refused to complete that form, telling an officer of the Department that he believed that the form was an application for a visa to enter Cambodia.  On 3 April 2003, a further request to provide information was sent to Mr Te.  This was in the form of a handwritten questionnaire in English.  On 7 April 2003, Mr Te returned it with responses to some, but not all of the questions.  In some cases, he said he did not know the information sought.  In one case, he said the information had been previously advised.

20                  On 17 April 2003, Mr Te made a further request to the Minister to exercise his discretion to set aside the deportation order and release Mr Te from detention.

21                  By letter dated 24 April 2003, an officer of the Department conveyed to the Cambodian Embassy in Canberra the information it had about Mr Te and his family and requested the issue of a travel document.  On 29 April 2003, the Cambodian authorities requested consular access to Mr Te’s stepbrother, an Australian resident, in order to conduct further identity checks of Mr Te.  On 5 May 2003, Mr Te consented to the Department making contact with his stepbrother to arrange consular access by the Cambodian authorities.  The Department made contact with a person, who turned out to be Mr Te’s adopted brother, on 4 June 2003.  He agreed to speak to the Cambodian authorities, to assist them to establish the identity of Mr Te.  He did so on 16 June 2003.  On 18 June 2003, an officer of the Department wrote to the Cambodian Embassy, requesting advice on the outcome of the inquiries concerning Mr Te’s identity. 

22                  There was further correspondence on 20 June 2003, the Friday before the hearing of this proceeding.  The AGS wrote to Mr Te’s solicitor, making allegations of failure to provide information in a number of respects.  The letter referred to information available to the Department from the proceeding in the AAT.  The letter sought an immediate response to the allegations.  The solicitors for Mr Te replied, saying that they were unable to arrange a Cambodian interpreter and attend at the immigration detention centre to obtain instructions, so could not comply with the request for a response.  Also on the same day, by letter from the Department, Mr Te’s solicitor was advised that the Minister had considered each of Mr Te’s requests dated 12 March and 17 April 2003, for the exercise of his discretion to cancel the deportation order and release Mr Te, and had decided not to revoke the deportation order or to order the release of Mr Te from immigration detention.

23                  According to the records of the Department, two Cambodian nationals were deported to Cambodia on 27 February 2000 and 27 April 2000 respectively.

The legislation

24                  It is unnecessary to set out in full ss 200 and 201 of the Migration Act.  They were the foundation for the deportation order, which is now conceded to be valid.  Section 206 of the Migration Act provides:

“(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.”

25                  So far as is relevant to the present proceeding, s 253 provides:

“(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.

…

(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.”

The effect of elapsed time

26                  The case put on behalf of Mr Te was based on the length of his detention.  Overall, the period exceeds four years and 10 months, from 16 August 1998, when Mr Te ceased to serve his sentence of imprisonment, until the present.  There was a particular focus on the period from 22 September 2000, when the AAT dismissed Mr Te’s application for review of the deportation order, to 21 March 2001, when Mr Te began his first proceeding in the High Court, a period one day short of six months.  During that period (and indeed from 16 August 1998 until May 2001), no step at all was taken in relation to the execution of the deportation order.  The importance of the six-month period was emphasised because, during that period, there was no proceeding on foot concerning the validity of the deportation order, and therefore no basis on which officers of the Department could refrain from taking steps to secure the deportation of Mr Te.

27                  Mr Te’s case was put in several different ways.  His counsel argued that s 253(8) is to be read with the implication that the continued detention it authorises is detention only for the purpose of deportation.  Once the detention ceases to be for that purpose, it ceases to be authorised by the section.  Alternatively, if the section does authorise detention for a purpose other than deportation, the section exceeds the legislative power granted by s 51(xix) of the Constitution.  Detention will not be for the purpose of deportation if it is in fact for some ulterior purpose, or if the purpose of deportation has lapsed, because the deportation cannot, or cannot any longer, be carried out.  It was also argued that there is an implied limit on the length of detention that is lawful under s 253.  Once detention has exceeded a length of time reasonably necessary for the purpose of effecting deportation, it is no longer capable of being characterised as detention for the purpose of effecting deportation and is therefore not detention “pending deportation”.

28                  Counsel for Mr Te argued that, by 21 March 2001, when Mr Te began his first High Court proceeding, his detention had become unlawful, because he was no longer held “pending deportation” within the meaning of s 253(8).  The time that had elapsed, and particularly the six-month period immediately prior to that date, was in excess of that reasonably necessary for the purpose of effecting deportation.  The fact that nothing had been done by then, and particularly in the six-month period, showed that the purpose of the detention had ceased to be the purpose of deportation.  The failure of the Minister, through officers of the Department, to take any step to effect deportation showed that the duty to deport had become impossible of performance, so that Mr Te could no longer be detained for the purpose of performing it.  Without an implied limitation on the time for which a person subject to a deportation order can be detained, detention for life would be a real possibility.  This would be abhorrent to a legal system that values and protects liberty in the way that the Australian legal system does.

29                  In Koon Wing Lau v Calwell (1949) 80 CLR 534, the High Court upheld the constitutional validity of s 7 of the War-time Refugees Removal Act 1949 (Cth), which was in substance the same as the present s 253(8) of the Migration Act.  In the course of doing so, the Court dealt with the construction of s 7.  At 556, Latham CJ, with whom McTiernan and Webb JJ agreed, said:

“Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period.  The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls.  If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.”

30                  At 581, Dixon J said:

“The argument is that there is nothing to prevent the Minister making a deportation order and giving a direction as to the custody in which the deportee is to be held and leaving him there for life or indefinitely. ... In s. 7 (1) (a) I think that the words ‘pending deportation’ imply purpose.  The two provisions together mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel.  It appears to me to follow that unless within a reasonable time he is placed on board a vessel he would be entitled to his discharge on habeas.”

31                  Williams J, with whom Rich J agreed, said at 586 – 587:

“Section 7 (1) (a) provides that a deportee may, pending his deportation and until he is placed on board a vessel for deportation from Australia, be kept in such custody as the Minister or an officer directs.  The Act does not provide that a deportee shall be deported from Australia within a specified period.  It was submitted that under this provision a deportee could be kept in custody indefinitely and never deported, so that it is not a law with respect to the deportation of aliens at all but a law which in substance and effect authorizes the indefinite incarceration of the members of a certain class of persons.  But a deportee may only be kept in custody pending his deportation and until he is placed on board a vessel for deportation from Australia, so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal.  This fact might be difficult to prove but the omission to fix a period within which the deportee must be placed on board a vessel for deportation from Australia is not sufficient, in my opinion, to prevent s. 7 (1) (a) being a law with respect to aliens.  It would obviously be difficult to fix such a period.  Each case must depend on its own facts.  A court is loath to see any person committed to gaol without trial, and would be on the alert to see that the power conferred on the Minister or an officer to keep a deportee in custody pending deportation was used for that purpose and no other purpose.”

32                  Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637 concerned the construction of what was then s 39(1) of the Migration Act, a provision in substance the same as the present s 253(8).  It had been found that the Minister had ordered the deportation of certain illegal entrants, not to secure their removal from Australia, but to secure their continued detention in custody so that their evidence would be available in contemplated criminal proceedings against the organisers of their illegal entry.  At 643, the Court said:

“In the factual context of the present case, the continued detention of the appellants in custody during the period from the time when they were notified that a deportation order had been made was not justified by the above provisions of s. 39 for two related reasons.  The first is that the powers of arrest and detention in custody conferred by that section exist in relation to a ‘deportee’, that is to say (in the words of s. 39(1)) a person in respect of whom ‘an order for ... deportation ... is in force’.  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 authorizes 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 authorize 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.”

33                  In Vo v Minister for Immigration & Multicultural Affairs [2000] FCA 803 (2000) 98 FCR 371, the Full Court dealt with an appeal from a single judge, who had dealt with an application under the ADJR Act, seeking review of a decision of the Minister refusing to release a deportee from detention pursuant to s 253(9).  The question was raised whether the detention was “pending deportation”.  Reliance was placed on observations made in Perez v Minister for Immigration & Multicultural Affairs [1999] FCA 1342 (1999) 94 FCR 287 at [25] – [26].  After quoting a passage from Perez, the Full Court in Vo said at [12] – [13]:

“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.

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.” [Emphasis added]

The Court went on to discuss questions of ulterior purpose, quoting from Park Oh Ho.

34                  Vo was cited by another Full Court in Luu v Minister for Immigration & Multicultural Affairs  [2002] FCAFC 369 (2002) 197 ALR 433.  At [65], the Full Court quoted the passage from Vo that I have set out.  At [66], the Court continued:

“It may be that the length of the period of detention, and the prospects of effecting deportation in any reasonable time frame, may in all the circumstances of a particular case lead to the conclusion that the purpose of the detention is no longer ‘pending’ deportation.  That involves an inquiry into the state of mind of the respondent.”

35                  At [67], the Full Court said:

“The validity of the deportation order made under s 200 of the Act on 9 May 1997 is not challenged.  It remains valid.  Its validity is not lost by delay in implementing the deportation order:  per Gummow J in Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 at 380, and see s 206(2) of the Act.  As there is in force a valid deportation order, the detention power under s 253(1) may validly be exercised and the detention maintained pending the deportation.  It will only be if the purpose of the detention ceases to be deportation that the detention will no longer be lawful under s 253(1) and (8) of the Act.”

The Court then referred to the joint judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at [31] – [32], where their Honours quoted the passage from the judgment of Latham CJ in Koon Wing Lau, which I have already set out.

36                  In Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 (2003) 197 ALR 241, a Full Court dealt with the comparable, but significantly different provisions in ss 189 and 196 of the Migration Act, which deal with the detention of unlawful non-citizens pending removal from Australia, deportation or the grant of a visa.  Necessarily, the Court’s judgment canvassed a number of the authorities relating to the deportation provisions.  At [156] – [166], their Honours discussed Vo, Perez, the later judgment of another single judge in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450, the earlier judgment in Perez, to which the Full Court in Vo referred, and Luu.  At [166], the Court said:

“It is of great importance that a Full Court should follow a decision of an earlier Full Court unless convinced that the earlier Full Court is plainly wrong, the earlier Full Court decisions to which we have referred do not preclude a conclusion that the materially different provisions of the Act now being considered are subject to an implied limitation.  Neither Vo nor Luu involved detention which was in truth mandatory, or indefinite, in the way it is contended that s 196(1) provides for.  The fact that the Minister was able to order release from detention, as a matter of discretion pursuant to s 253(8) and (9), and that his power to do so was itself subject to judicial review, means that the cases do not stand as authority against the decisive application of the principles of construction which we regard as fundamental to the disposition of the present appeal.”

37                  The Court in Al Masri recognised two implied limitations on the power to detain in s 196 of the Migration Act.  The first was related to purpose.  At [134] – [135], the Court said:

“The first of the two limitations found by the trial judge was that s 196 was limited in operation to such time as the Minister was taking all reasonable steps to remove a detained person from Australia as soon as reasonably practicable.  This limitation emerged from a reading of the power to detain in s 196(1) as subject to the duty imposed upon the Minister by s 198(1) to remove as soon as reasonably practicable.  Although the two provisions are part of the same scheme, we would not read them together in this way.  If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.

The Minister’s purpose in detaining, however, must be the bona fide purpose of removal.  Otherwise the detention would not be lawful.  If the Minister were to hold a person in detention without such a purpose, then the detention would be unlawful and the person entitled to relief in the nature of habeas corpus.”

38                  The second limitation related to time.  At [136], the Court said:

“The second limitation found by the trial judge, a limitation upon the power to detain under s 196(1)(a) to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future, is of course temporal in nature.  His Honour formulated the limitation in the light of the duty imposed by the Parliament on the Minister in s 198(1) to effect removal ‘as soon as reasonably practicable’.  Although we consider that this provision does not, of itself, limit the power in any purposive way, it does inform the content of the limitation the principles we have discussed would point to.  Some such limitation is, in our view, required by these principles and the second of the limitations found by the trial judge has support from the language of an integral part of the scheme, and it maintains, clearly, the connection between the power to detain and the purpose of removal.  We see no reason to disagree with it.”

39                  The Court followed this with an observation at [137] that a person who made a request pursuant to s 198 of the Migration Act to be removed could not, by frustrating the process of removal, make their continued detention unlawful.  The instance given of such
frustration was a refusal to sign a consent required by a country otherwise prepared to take the person. 

40                  In the concluding paragraphs of the Court’s judgment, at [175] – [176], the Court said:

“Having regard to the prominence in the learned Solicitor-General’s argument of practical concerns about a construction that would deprive the scheme of mandatory detention of the absolute certainty which he submitted it required, we would point out that the second limitation found by the trial judge, which we have upheld, is not likely to have a frequent operation.  The limitation is not encountered merely by length of detention and it is not grounded upon an assessment of the reasonableness of the duration of detention.  This is illustrated by the decision of French J in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 where an applicant who sought to rely upon the reasoning of the primary judge in the present case failed to satisfy the threshold requirements for a finding that his continued detention was unlawful.  We, of course, make no criticism of the decision in that case in so far as it turned upon the facts peculiar to it but it does illustrate that the conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached.

As the trial judge pointed out, it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.  We have referred earlier to the inapplicability of our observations to a person who seeks to frustrate by their own act the process of removal.  It will have been apparent that our reasons are not directed to the significantly different circumstances of detention for the purposes of the deportation where the Minister retains a discretion, to be exercised according to law, to release a person from detention.” [Emphasis added]

41                  In the present case, counsel for Mr Te also relied on overseas authority.  In R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 at 706, Woolf J, as his Lordship then was, expressed the view that English legislation permitting detention pending removal was impliedly limited to a period reasonably necessary to enable the machinery of deportation to be carried out.  His Lordship’s approach was expressly approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at 111, by the House of Lords in R (Saadi) v Secretary of State for the Home Department [2002] UK HL 41 [2002] 4 All ER 785 at [26] and by the Court of Appeal in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [9] – [14].  Reference was also made to the judgment of the Supreme Court of the United States in Zadvydas v Davis 533 US 678 (2001), in which, applying the constitutional due process clause, the Supreme Court construed a statutory power to detain pending removal as not permitting indefinite detention.

42                  In my view, on the current state of the authorities, it is not open to a single judge of this Court to hold that the power to detain pending deportation is subject to an implied limitation on the length of time of the detention.  Vo stands as clear authority for the proposition that length of detention cannot of itself destroy the legal validity of the detention.  The reasoning of the Court in Vo is squarely based on the relationship between s 253(8), s 253(9) (the Minister’s power to order the release of a detainee), s 206(1) (the Minister’s power to revoke the deportation order) and s 206(2) (the clear provision that the validity of the deportation order is not affected by delay in the execution of the order).  In my view, these provisions support the Full Court’s view that length of time is not enough.  Vo is not inconsistent with earlier High Court authority.  The only possible support for the view that the mere passage of time can make continued detention unlawful is in the passage from the judgment of Dixon J in Koon Wing Lau, which I have set out above.  When the sentence in which his Honour referred to a reasonable time is viewed in its context, it is plain that his Honour was dealing with the passage of time as evidence of want of purpose, not as a separate limitation on the detention power itself.  His Honour had already concluded that the necessity for purpose was to be implied from the words “pending deportation”, in the sentence immediately preceding the one in which his Honour referred to a reasonable time.  It cannot be taken that, without more, his Honour left the subject of purpose and, in one sentence, enunciated a completely different limitation on the detention power.  If his Honour did so, his view was a minority one, having regard to what Latham CJ and Williams J said, with the support of the other judges who constituted the High Court for that case.

43                  The Full Court in Luu did not decline to follow Vo.  It did not hold that there was a time limit on the detention power, but only that the passage of time might be evidence of a want of subjective purpose.  Although the Full Court in Al Masri held that there is an implied limitation as to time with respect to the detention power in relation to unlawful non-citizens in s 196 of the Migration Act, it did not do so by saying that Vo was incorrectly decided.  Plainly, the Court in Al Masri distinguished the provisions with which it was dealing from those governing deportation, because of the respective contexts, and the wording, of the two provisions.  The Court made it clear that Vo is to be regarded as good law with respect to detention of persons subject to deportation orders.  The overseas authorities are persuasive, but not binding.  In any event, close attention would have to be paid to the statutory context in which the detention powers the subject of those authorities appeared, before the authorities could be regarded as in point.

44                  For these reasons, I am of the view that Mr Te’s argument, that the passage of a reasonable time necessary for effecting deportation by itself makes the detention brought into existence for the purpose of deportation become unlawful, must be rejected.  Like the Full Court in Vo, I regard this position as inconsistent with s 253(8) and (9) and s 206 of the Act.  I should add to those provisions a reference to s 253(11), which suggests that the legislature intended that, for so long as there is a valid deportation order in force, and the person subject to it is in detention for the purpose of carrying it into effect, there should be no power for a court to order release.  The provisions relating to deportation deal with people who have committed serious criminal offences.  The argument that the protection of the public was an irrelevant consideration for the Minister was rejected in Luu at [77] – [89].

45                  The remedy for delay lies, to some extent, in the hands of a person detained.  Such a person can apply for release pursuant to s 253(9).  It is no answer to this to say that decisions to release in the exercise of that power are rare, if not non-existent.  There is no reason to suppose that, in a proper case, the Minister would refrain from exercising the power.  To some extent, there is scope for judicial review of the decision in any event.  Unnecessary delay in the execution of a deportation order can be cured by an application for mandamus or injunction, directed to the Minister, requiring the execution of the order.

46                  This is not to say that s 253(8) permits indefinite detention.  It is clear that detention otherwise than for the purpose of deportation is not authorised and will be unlawful.  As was pointed out in Luu, the passage of time can be relied on to found an absence of the requisite purpose, or the existence of an ulterior purpose.  A case in which a significant amount of time passed, with no step taken to effect deportation, in circumstances where there was no ground for refraining from taking such a step, and in the absence of evidence of a subjective purpose to deport, it might be relatively easy for a court to hold that an absence of proper purpose had been established.

47                  The present case is not such a case.  The absence of any action by officers of the Department prior to 22 September 2000, when the AAT gave its decision, can be justified on the basis that Mr Te was challenging the validity and the correctness of the decision to deport him.  Active steps to execute the deportation order would have invited an application to the Court to restrain them, which would have had a good chance of success.  Likewise, between 21 March 2001 and 7 November 2002, Mr Te was engaged in his challenge to the constitutional validity of the deportation order.  Again, although there was nothing on the face of it to prohibit the taking of some steps, and some small steps were taken, it was appropriate for officers of the Department to refrain from preparing to execute the deportation decision, lest they then find that it was set aside.  It is not to be assumed that continued detention until the completion of proceedings is a penalty for taking proceedings to set aside a deportation order.  It is legitimate, however, to take into account the events that occurred during any period of delay, including events initiated by the deportee.  Not only do proceedings taken by the deportee explain delay in executing a deportation order, they also provide a justification for inaction by officers of the Department in relation to the execution of the order.

48                  The six-month period leading up to 21 March 2001 is of concern.  There may have been justification for inaction by officers of the Department during the first three weeks of that period, when it was uncertain whether Mr Te would appeal to this Court from the decision of the AAT on a question of law.  Apart from that period, the failure of officers of the Department to do anything towards deporting Mr Te was inexcusable.  Whatever s 253 of the Migration Act means, it is not a charter for locking up people and forgetting about them.  I recognise that officers of the Department have many cases requiring their attention.  Pressure of work was not advanced as an excuse for inaction in the present case.  Cases involving detention are deserving of priority, because of the fundamental importance attached to the protection of personal liberty.  Despite these concerns, I cannot conclude that the subjective purpose of any officer of the Department, or of the Minister, was other than to proceed with the deportation of Mr Te.  The fact that a step was taken in May 2001 is evidence that this purpose existed at that date.  Without further evidence, it must be concluded that it is more probable than not that the purpose had been maintained since the beginning, than that it had been abandoned or allowed to dissipate, and then revived.  The same can be said for the activity from 9 December 2002 onwards.  In my view, the evidence shows that, throughout the period of Mr Te’s detention, the purpose of executing the deportation order has been maintained. 

49                  Nor is there justification for a conclusion that the purpose has been frustrated by other events.  Although prior to 4 March 2002, there was no memorandum of understanding or other agreement between Cambodia and Australia under the terms of which Mr Te’s deportation could have been effected, this does not mean that he could not have been deported to Cambodia.  As the evidence shows, two other Cambodians had been so deported earlier in the year in which the six-month period prior to Mr Te’s first High Court proceeding began.  The indication from the Cambodian embassy in Canberra was that a short-term travel document would have been made available, but this course could not be pursued because of the uncertain duration of Mr Te’s first High Court proceeding.  There is no other evidence to show an impossibility of carrying into effect a deportation of a Cambodian national.  Although it might be possible to infer impossibility from prolonged inaction, the evidence in the present case shows otherwise.

50                  For these reasons, I am of the view that Mr Te has failed to make out his case that his continued detention under s 253(8) of the Migration Act is beyond power.  The length of time of the detention is not sufficient to show that.  Mr Te has failed to show that there was any want of the proper purpose, or presence of an ulterior purpose, for his continued detention.  He has failed to show that the purpose was incapable of being carried out.  His application for a writ of habeas corpus must fail.

51                  In case the matter should go further, and it should be held that I have reached the wrong conclusion about the implied limitation as to time, I should express briefly my conclusions about whether Mr Te has made out a case, on the assumption that the passage of time is sufficient to render continued detention unauthorised.  For reasons I have given, the periods during which Mr Te had proceedings on foot should not be counted in his favour as unnecessary delay.  Nor should the period since the dismissal of his first High Court proceeding be regarded as involving excessive delay.  In part, this is because Mr Te has been equivocal at best in relation to his responses to requests to cooperate in obtaining a travel document from the Cambodian authorities.  I accept the submission, made on his behalf, that Mr Te was under no duty to assist in relation to his own deportation.  Deportation is an involuntary process, so far as the persons deported are concerned.  I am of the opinion, however, that the question whether a deportee has cooperated is relevant to the reasonableness of any lapse of time.  Mr Te has had two opportunities to fill in application forms for travel documents.  He has rejected both, without apparently seeking assistance.  Although he has supplied some information, if he had enlisted the aid of his solicitors to help in his deportation, there is little doubt that he could have supplied more. 

52                  It is the six-month period between September 2000 and March 2001 that is the cause for the greatest concern.  Although it is a significant period, and one in which inexcusable delay occurred, I am not able to regard it by itself as exceeding what could be termed reasonable for the execution of a deportation order.  I do not consider that it could have been said on 21 March 2001 that any implied time limitation had expired.  With the benefit of hindsight and the placement of the six-month period in the context of other events, it becomes even more difficult to say that that occurred.  If there were an overall time limit, I would not be of the view that it has been exceeded in the present case.

Other issues

53                  Because of the view I have taken about the time limit issue, it is unnecessary to decide whether detention, once unlawful, could regain its validity once activity directed towards deportation resumed, or whether another decision pursuant to s 253(1) would have been necessary.  Nor is it necessary to deal with the question whether habeas corpus is a discretionary remedy and, if so, whether the discretion should be exercised against Mr Te in the present case on the basis that he could be taken into detention again at any time while the deportation order remained in force.  I should say that I prefer the view that habeas corpus is a remedy as of right.  Individual liberty is of such importance that it would be invidious for the Court to consider whether it would allow unlawful detention of a person to continue by reason of discretionary considerations. 

Costs

54                  In Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 at [5], the Full Court applied the principle expressed by Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651 (2000) 174 ALR 747 at [22] as follows:

“Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty.  There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty.  In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party.  In particular is this so where the costs are incurred by the State under whose authority the person is detained.”

The application of the same principle in the present case leads to the conclusion that, although unsuccessful, Mr Te should not be ordered to pay the Minister’s costs.

Conclusion

55                  For these reasons, the order in the form of an order nisi made by Goldberg J on 12 June 2003 should be discharged and the application should be dismissed, with no order as to costs.

Associate:

Dated:              2 July 2003