High Court of Australia|1994-11-16|Before: Hugh JJ

Bolkus v Tang Jia Xin [1994] HCA 31; (1994) 69 ALJR 8 (16 November 1994)

SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JOANNE McRAE, MANAGER OF THE IMMIGRATION RECEPTION AND PROCESSING CENTRE AT PORT HEDLAND IN THE STATE OF WESTERN AUSTRALIA v. TANG JIA XIN

BRENNAN(1), DAWSON(1), TOOHEY(1), GAUDRON(1) AND McHUGH(1) JJ

of the Migration Act 1958 (Cth) ("the Act") deals with the custody of

certain non-citizens ((1) s.4 of the Act defines "non-citizen" to

mean "a person who is not an Australian citizen".). The division

comprises ss.54J to 54U inclusive ((2) Division 4B was inserted by

s.3 of the Migration Amendment Act 1992 (Cth), which commenced

operation on 6 May 1992. The Division was amended by the [Migration

](/cgi-bin/viewdoc/au/legis/cth/num_act/maa41992225/)Amendment Act (No.4) 1992 (Cth) and by the Migration Laws Amendment Act

1993 (Cth). The judgments in the courts below deal with the Act as it

stood after the Migration Amendment Act (No.4) 1992 but before the

2. The reason for the inclusion of Div.4B is expressed in the Act

to be because the Parliament considers that it is in the national

interest that a non-citizen who is a designated person should be kept

in custody until he or she leaves Australia or is given an entry

permit ((3) s.54J). "Designated person" is defined ((4)

s.54K.) to mean a non-citizen who has been on a boat in the

territorial sea of Australia after 19 November 1989 and before 1

November 1993, who has not presented a visa, is in Australia, has not

been granted an entry permit and is a person to whom the Department of

Immigration and Ethnic Affairs ("the Department") has given a

designation in accordance with par.(e) of the definition. The

definition also includes children born in Australia where the mother is

a designated person. The content of the definition of designated

person was discussed in Chu Kheng Lim v. Minister for Immigration

((5) (1992) 176 CLR 1.) which upheld the validity of ss.54L and 54N of

3. Division 4B deals with the circumstances in which a designated

person must be kept in custody and must be removed from Australia and,

more particularly for present purposes, the time limit after which the

provisions for custody and removal cease to apply. The formulation of

that time limit has given rise to the present appeal.

4. Section 54Q provides that s.54L (custody) and s.54P (removal)

cease to apply to a designated person who was in Australia on 27 April

1992 (the respondent is such a person) if the person has been in

application custody for a continuous period of, or periods whose sum

is, 273 days. By reason of s.54Q(3), a person is in application

custody if the person is in custody and an entry application for the

person is being dealt with, unless one of certain events is taking

place. While the appeal focused on par.(c) of the enumerated events,

the role of that paragraph is better understood if all the alternative

"(c) the Department is waiting for information relating

to the application to be given by a person who is not

under the control of the Department;

(d) the dealing with the application is at a stage whose

duration is under the control of the person (in

custody) or of an adviser or representative of the

person;

(e) court or tribunal proceedings relating to the

application have been begun and not finalised;

(f) continued dealing with the application is otherwise

beyond the control of the Department".

5. The question raised by this appeal is whether, in the

circumstances of the present case, the Department was at any time

waiting for information relating to the respondent's entry application

to be given by a person not under the control of the Department. If

the Department was not so waiting, the period of 273 days mentioned

in s.54Q had expired at some time prior to 25 June 1993 and the

respondent was entitled to be released from custody. The appellants

contended that the Department had been "waiting for information" in

terms of par.(c) of s.54Q(3), with the consequence that the respondent

6. The Full Court of the Federal Court ((6) Minister for Immigration

and Ethnic Affairs v. Tang Jia Xin (1993) 118 ALR 603.) dismissed an

appeal by the present appellants from the judgment of Neaves J ((7)

Tang Jia Xin v. Minister for Immigration and Ethnic Affairs (No. 1)

[1993] FCA 372; (1993) 116 ALR 329.) declaring that the present respondent had, at

some time prior to 25 June 1993, been in application custody for

periods totalling 273 days and ordering that the respondent be released

from custody. In approaching the meaning of par.(c), the Full Court

said ((8) (1993) 118 ALR at 612.) that the structure of sub-s.(3)

suggests that the onus of establishing that any one of the exceptions

(c), (d), (e) or (f) applies lies upon the party wishing to establish

its application. This is undoubtedly correct ((9) see Vines v.

Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520; Banque Commerciale S.A., en

Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 169 CLR 279 at 285; Avel Pty.

Ltd. v. Multicoin Amusements Pty. Ltd. [1990] HCA 58; (1990) 171 CLR 88 at 119.).

7. As to the meaning of "waiting for", the Full Court considered

dictionary meanings, concluded that the expression was intended to

have its ordinary meaning rather than any special or technical

meaning, and agreed with the primary judge that "some notion of delay

is inherent in the concept of 'waiting for' something" ((10) (1993)

118 ALR at 613.). They rejected the appellants' argument that "any

lapse of time, whether ordinate or inordinate, qualifies as part of a

8. The appellants argued in this Court and in the courts below that

the waiting period commences from the moment of making a legitimate

request for information until receipt of the information or of a final

response. It was submitted that any other interpretation leads to

great uncertainty. Evidence, perhaps evidence from overseas, might be

necessary to show that a delay was likely. On the other hand, the

respondent submitted that the interpretation urged by the appellants

could result in a designated person remaining in custody for periods

well beyond 273 days, simply by reason of the Department making an

9. The question is a narrow one. One thing is clear, namely, that

pars (c), (d), (e) and (f) all imply by their language something which

has happened to interrupt the decision-making by the Department in

regard to the application, and something which is beyond the control

of the Department. To take the most obvious example, in par.(e), if

court or tribunal proceedings in relation to the existing application

have been begun and not finalised, the decision-making process cannot

proceed to finality. Indeed, since par.(f) speaks of "continued

dealing with the application (being) otherwise beyond the control of

the Department" (emphasis added), it is implied that the preceding

paragraphs relate to situations in which it is beyond the Department's

control to continue to deal with an application. Whether or not such

an implication is capable of affecting the construction of par.(d) or

par.(e), it does affect the construction of par.(c). In other words,

par.(c) is a particular situation in which continued dealing with the

application is beyond the control of the Department. While the

present question was not before the Court in Chu Kheng Lim v. Minister

for Immigration, in their judgment Brennan, Deane and Dawson JJ

"For the purposes of that maximum period, time does not run

while events beyond the control of the Department, such as

delay in the supply of information or delay in court or

tribunal proceedings, are preventing the finalization of

the entry application."

10. Viewed in that light, the application of par.(c) is not resolved

simply by saying that the Department is "waiting for information" as

soon as it requests information or that the Department is "waiting for

information" only after a reasonable period in which the information

might be expected has elapsed. It is necessary for the Department to

show not only that a response to a legitimate request for information

was awaited but also that the continued departmental dealing with the

application was, on that account, interrupted. In the present case

the onus is on the appellants to show, as a question of fact, that

there was a period, or there were periods, of time during which the

Department was unable to continue dealing with the respondent's entry

application by reason of its inability to obtain information relating

to the application to be given by a person who was not under its

control. These are matters very much within the knowledge of the

Department. If reasonableness plays any part in the inquiry it is a

limited part only. It may have some part to play in asking whether

the Department was able to deal with some other aspect of the

application. And it may have some part to play in asking whether

the information was likely to be provided and, if it was not, whether

the Department was waiting for it in the sense required by the Act.

The appellants suggested that a person in application custody may

contrive a situation so that the period of 273 days expires before

determination of his or her entry application. The answer is that if

the Department is unable to continue dealing with the application, in

11. The appellants drew attention to the second reading speech in the

House of Representatives ((13) Commonwealth, House of Representatives,

Parliamentary Debates (Hansard), 5 May 1992 at 2372.) and to the

supplementary explanatory memorandum which, echoing what had been said

"The period will stop running during any time in which

information is being sought from third parties (including

the applicant and his or her advisers)".

However, a Minister's second reading speech, while available as a

guide to interpretation, cannot be determinative of or substituted for

the text of the legislation. This is particularly so where the law is

restrictive of the liberty of the individual ((14) Re Bolton; Ex parte

Beane [1987] HCA 12; (1987) 162 CLR 514 at 518.).

12. The appellants also relied on the decision of the Full Court

of the Supreme Court of Western Australia in Truong v. Manager,

Immigration Detention Centre, Port Hedland ((15) (1993) 31 ALD 729.)

in which Malcolm CJ and Seaman J relevantly agreed with Ipp J It

is true that in determining whether the applicants had been in

application custody beyond 273 days, Ipp J spoke of a period of time

between a request by an officer of the Department for information from

the Refugee Council of Australia and the receipt of that information as

a period during which the Department was "waiting for information"

relating to the applications of the applicants and therefore a period

during which they were not in application custody. But the particular

question now before the Court does not appear to have been argued

before their Honours. If it was, the Full Court, in our respectful

view, was in error in concluding that the mere lapse of time meant that

13. The construction we have given to s.54Q(3)(c) is not the same as

that given by Neaves J and the Full Court. Nevertheless, the primary

judge carried out an exhaustive analysis of the various periods during

which the respondent was in custody, looking in each case at the stage

that decision-making had reached, asking himself in each case ((16)

"whether the circumstances which have occurred and which are

found to be outside the department's control are such as to

make it appropriate to conclude that there has been an

interruption to, or delay in, the decision-making process

beyond that which might be thought to have been encompassed

within the period of 273 days specified in s.54Q(1)".

We can discern no error in that general enquiry. It may well be that

the answer to the question calls for a detailed examination of the

decision-making process, though that will not always be the case. If

so, that is the inevitable result of the circumstances postulated by

14. The Full Court said that the primary judge "undertook a careful

and detailed analysis of the facts" ((17) (1993) 118 ALR at 614.);

there can be no quarrel with that assessment. The Full Court concluded

that his Honour's assessment of the appropriate period to be allowed in

specific instances had not been demonstrated to be a conclusion that

was not reasonably open. Importantly, the Full Court observed #18 :

" Moreover, it is a noticeable feature of the present

case that there was no affidavit or oral evidence before

the trial judge specifically verifying facts crucial to the

operation of any of the paragraphs. A witness may depose

that he or his department was 'waiting for information',

for that would be a fact. Before the trial judge, no

witness did so. The trial judge was left to infer that the

department had been waiting at various stages. But in

respect of those periods in relation to which his Honour

declined to draw the inference, once his Honour rejected

the contention that the department was waiting simply

because it had written seeking information, there was

little if any evidence on which the trial judge could have

found that the statutory criterion was satisfied. In

relation to a time when ongoing inquiries were under way,

the mere making of a request for information may not

establish that there was an interruption to the

decision-making process or that the department was

waiting."

15. In our view the Full Court was correct in dismissing the appeal.

Before Neaves J the appellants failed to discharge the onus of

showing that there was a period, or there were periods, of time during

which the Department was unable to continue dealing with the

respondent's entry application by reason of its inability to obtain

information relating to the application to be given by a person who

was not under its control. Accordingly the appeal to this Court

Laws Amendment Act 1993

Bolkus v Tang Jia Xin [1994] HCA 31;

At a glance

Court

Decision date

Before

Source

Judgment (176 paragraphs)

Bolkus v Tang Jia Xin [1994] HCA 31; (1994) 69 ALJR 8 (16 November 1994)

Parties

Legislation Cited (4)

Cases Cited (8)