Dang v Minister For Immigration & Multicultural Affairs

THE COURT: 1 The appellant is a Vietnamese national. He entered Australia on 14 July 1981, having been granted permanent resident status prior to entry. On 26 August 1990 he committed an offence for which he was later sentenced to imprisonment for 18 months. At the time the offence was committed he had been in Australia as a permanent resident for less than 10 years. In May 1997 he was convicted of further offences and sentenced to imprisonment for 45 months. 2 On 28 November 1997 a delegate of the first respondent ("the Minister") made an order pursuant to s 200 of the Migration Act 1958 that the appellant be deported. The delegate relied on the conviction and sentence for the 26 August 1990 offence for the purposes of the requirements of s 201. On 24 February 1998, while the appellant was still a prisoner in Fulham Prison, he was provided with a copy of a letter bearing that date from Ms Santos of the Criminal Deportation Unit. The letter referred to the deportation order and enclosed a copy. It continued: "You will be deported as soon as possible after you complete the custodial portion of your sentence of imprisonment on 24 February 1998. If it is not possible to deport you then, you will be transferred to immigration detention under section 253 of the Act while arrangements are made for your deportation. This transfer is authorised by section 254 of the Act. It is then likely that you will continue to be detained at a state/territory custodial institution until your deportation from Australia." The letter concluded by saying that the appellant would be liable for the cost of his immigration detention. 3 Also on 24 February, at some time after receipt of Ms Santos' letter, the appellant was placed on parole. He was not released from prison. This was because of the direction contained in a facsimile which Ms Santos sent on the same day to the Governor of Fulham Prison, headed "Section 253 Direction to hold in Custody". It was as follows: "I, Christina Santos, a delegate of the Minister for the purposes of subsection 253(8) of the Migration Act 1958 do HEREBY DIRECT you to hold in custody the person whom I reasonably suspect to be DANG Chi Dung a person against whom a valid deportation order is presently in force and who is to be detained in DIMA custody on completion of his custodial sentence pursuant to Section 253 of the said Act." 4 The appellant successfully challenged the deportation order, which was set aside on 17 September 1998. He was then released from detention. In August 1998 the appellant sought review of the Minister's decision to hold him in "immigration detention" on the ground that the decision was not authorised by s 253 or s 254 of the Act. The relief he sought was a declaration that he had not been lawfully detained in immigration detention under either section. The declaration was sought in order that he would not have to bear the cost of his detention, a burden imposed by s 209. Kenny J dismissed the application. The appellant appeals from that decision. 5 Section 253 provides in part as follows: "(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) … may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8). (3) Where an officer detains a person under subsection (1) …, the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order. … (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; … … Section 254 provides: "(1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act. (2) The Secretary may give the person written notice: (a) if the person is a deportee: (i) stating that a deportation order has been made; and (ii) setting out particulars of the deportation order; and (b) if the person is a removee - stating that the person is to be removed; and (c) in any case - stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the 'custody transfer time'), the person will be kept in immigration detention. (3) Where a deportee is given notice under subsection (2), this Act (other than subsections 253(1) and (3)) applies in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time." 6 The appellant's Notice of Appeal, which was amended by leave at the hearing of the appeal, contains four grounds. The first is that the primary judge erred in holding that s 254(3), in conjunction with s 253(2), provided the requisite power to keep in detention a deportee to whom a notice under s 254(2) had been given. It was submitted that her Honour should have adopted the reasoning of Wilcox J in Halmi v The Minister [1998] 50 FCA instead of that of Lehane J in Tuiletufuga v The Minister [1998] 1255 FCA and Branson J in Meng Kok Te v The Minister [1998] 1339 FCA. The second ground is that the primary judge erred in finding that the appellant had been detained pursuant to s 254 when the evidence in the affidavits filed on behalf of the Minister asserted that he had been detained under s 253. The third ground is that, assuming the appellant had been detained under s 254, her Honour erred in concluding that the letter to the appellant of 24 February 1998 "was written in terms which met the requirements of s 254(2)". The fourth ground is that the judge erred in ordering the appellant to pay two thirds of the Minister's costs. This ground was not pursued. 7 The first ground was agitated in the appellant's first set of written submissions and in the Minister's response, but was not pursued in oral argument. However, we think we should deal with the ground because of the uncertainty surrounding the status of Halmi. Thus the first question is whether Halmi requires the conclusion that a deportee who has been given a notice under s 254(2) cannot be detained under s 253(1) or any other provision of the Act. That is what Wilcox J held. His Honour said (at 9): "Mr Halmi is a person who falls within the words of s 253(1) of the Act. If that subsection had been left to apply to the case, it would have empowered any officer of the Department to detain Mr Halmi in immigration detention or in detention as a deportee: see s 253(2) …. However, s 253(1) must be read with s 254. That section enacts special rules in relation to persons who are already in custody. In such a case, a notice may be given under s 254(2). As I have recounted, Mr Halmi was given such a notice. It follows the situation is one to which s 254(3) applies; Mr Halmi was a deportee who had been given notice under sub s (2) of the section. The consequence, according to s 254(3), is that the Act other than sub ss (1) and (3) of s 253 apply in relation to him as if he had been detained under s 253(1) at the time of transfer. Section 254(3)'s exclusion of s 253(3) is understandable. Section 253(3) is a notice provision and s 254(2) provides for a special form of notice in custody transfer cases. But the exclusion of s 253(1) is startling. That subsection appears to be the only source of power to detain a deportee. Although s 254 deals specifically with deportees who are already in custody, it confers no power to detain them in immigration detention after they are released from the custody of another authority. Subsection (1) only specifies the people to whom the section is to apply. Subsection (2) only authorises the giving of a notice." 8 In Tuiletufuga Lehane J held that s 254(3), in conjunction with s 253(2), provide the requisite power to keep in detention a deportee to whom a notice under s 254(2) has been given. His Honour said: "I am, with respect, unable to accept that a deportee, on whom a notice is served under s 254(2), is not effectively transferred to immigration detention, or detention as a deportee under s 253(8), at the custody transfer time. It was, perhaps, unnecessary for s 254(3) to exclude s 253(1) from operating in relation to a deportee who has been given notice under s 254(2), but perhaps it is not surprising that the exclusion was thought appropriate. Its application to such a deportee is not necessary because the Act, particularly s 253(2), does apply in relation to the deportee 'as if he or she had been detained under subsection 253(1) at the custody transfer time'. Thus if a notice under s 254(2) is given to a deportee in State custody, that person, as soon as he or she becomes entitled to release from that custody, is treated as if he or she had been detained under s 253(1) at that time. Accordingly, the deportee may be kept in detention from that time under s 253(2) and the rest of the subsections of s 253 (other than subs (3) which, of course, is otiose in such a case) apply accordingly. A separate power to detain is unnecessary: s 254(3), read in conjunction with s 253(2), provides authority to keep the deportee in detention." In Meng Kok Te Branson J followed Tuiletufuga in preference to Halmi. The primary judge followed Tuiletufuga and Meng Kok Te. 9 In our view the relationship between ss 253 and 254 is as follows. Once a notice has been given under s 254(2), sub‑s (3) makes the other provisions of the Act, apart from s 253(1) and (3), applicable. These other provisions apply in relation to a deportee as if he had been detained under s 253(1) at the custody transfer time. One of the other provisions is s 253(2), which confers power to keep a deportee who has been detained under sub‑s (1) in immigration detention or in detention as a deportee in accordance with sub‑s (8). Sub‑section (8) allows the deportee to be kept in immigration detention or such detention as the Minister or Secretary directs. No independent power to detain is necessary. Sections 254(3) and 253(2) together make it unnecessary. In our view the primary judge correctly preferred Tuiletufuga and Meng Kok Te to Halmi. 10 The second issue arises out of one of the Minister's responses to an argument put to the primary judge that unless the Minister could justify the appellant's detention under s 254, that detention was unlawful. The response was that the Minister had in fact proceeded under s 253 and not under s 254. In support of this contention the Minister relied on an affidavit of Nick Neary, Manager of the Criminal Deportation Unit. He deposed that he was Ms Santos' supervisor at the time of her letter of 24 February 1998, and had directed his staff to change letters and notices "on their personal H drive on their computers to reflect the contents of a minute" (from the Acting Director, Enforcement and Investigation Section, Canberra) to the effect that "arrests and detention of criminal deportees should be made pursuant to s 253 of the Migration Act 1958". He further deposed that the reference to s 254 in Ms Santos' letter was a typographical error. It was also put that the "Direction to hold in Custody" sent to the Governor of Fulham Prison was expressed to be made pursuant to s 253 by a delegate of the Minister "for the purposes of s 253(8) of Migration Act 1958". 11 Her Honour rejected the Minister's contention. She said: "I am not persuaded that the decision under challenge was made under s 253 rather than s 254. The letter to the applicant of 24 February 1998 specifically stated that the applicant's transfer to immigration detention under s 253 was 'authorised by section 254'. It was written in terms which met the requirements of s 254(2) …. … The statement in that letter that the applicant was to be transferred to immigration detention under s 253 was consistent with Ms Santos' giving notice under s 254(2) in that, by reason of the notice, s 254(3) operated to make s 253(2) and s 253(8) applicable to the applicant. … In my view, Ms Santos' letter of 24 February constituted a notice of the kind referred to in s 254(2). I am not persuaded that it was intended by Ms Santos to be otherwise. The letter was not written in terms which betokened reliance on s 253(3)." Her Honour went on to say that the terms of the "Section 253 Direction to hold in Custody" were consistent with the view that the Minister issued the direction in reliance on s 254(3) and s 253(8), since once a notice had been given under s 254(2), s 254(3) rendered s 253(2) and s 253(8) applicable to the appellant. Thus her Honour found that on 24 February 1998 the appellant had been given a notice pursuant to s 254(2), and that the decision under challenge had been made under s 254 and so much of s 253 as was relevant and made applicable by s 254(3). 12 It is a singular feature of the present ground of appeal that it assails the primary judge's rejection of the account given by the Minister's deponent. Subject to our consideration of the related third ground of appeal, we see no occasion to differ from the primary judge's conclusion that the decision under challenge was made under s 254 rather than under s 253. 13 The third ground, which was added by the amendment, attacks the judge's conclusion that the 24 February letter met the requirements of s 254(2). Section 254(2)(c) empowers the Secretary to give a deportee written notice that "from the time when the person would otherwise be entitled to be released from [custody otherwise than under this Act] ('the custody transfer time'), the person will be kept in immigration detention." Three deficiencies in the letter are asserted, any one of which is said to render it ineffective. The first is that the letter does not use the word "kept" in immigration detention. It was said that the expressions "transferred to immigration detention" and "continue to be detained" are unauthorised substitutes. We do not agree. Parliament's intention is to ensure that a deportee who is in custody receives a notice which · informs him that a deportation order has been made · gives him particulars of the order · tells him that he will not be released at the conclusion of his sentence but will be detained "in immigration detention". So long as the notice conveys to the deportee those essential elements, it need not slavishly reproduce every word of s 254(2)(c). Parliament could not have intended that the replacement of "kept" by an equivalent word or expression such as "transferred to immigration detention" and "continue to be detained" would invalidate the notice. See, for example, Tasker v Fullwood [1978] 1 NSWLR 20 at 23‑24, TVW Enterprises Ltd v Duffy [No 3] (1985) 62 ALR 63 at 71 and Pearce and Geddes, Statutory Interpretation in Australia 4th ed at 284. The 24 February letter amply satisfies the requirement in s 254(2)(c). It is indeed more informative than it would have been had it simply reproduced the verbiage of that paragraph. 14 The second alleged defect is that the letter does not say that the appellant will be detained in immigration detention at the custody transfer time. Rather it does "not exclude the possibility that the detention might occur 'as soon as possible' after the custody transfer time". Pursuant to s 206(1), once a deportation order is made, the deportee is to be "deported accordingly". The word "accordingly" does not mean instantly or forthwith. While the provision imposes a duty to carry out the order, in the exercise of that duty the officers upon whom it rests have a discretion as to when and how the deportation is effected. See McCafferty v The Minister (1995) 61 FCR 275 at 281‑282. The relevant part of the letter reflects that position, and indeed the reality that there will inevitably be delays in securing the departure of a deportee from Australia. The message required by s 254(2)(c) is clearly conveyed by the letter. The appellant will not be released at the conclusion of his sentence, but will be detained in immigration detention if it is not possible to deport him forthwith upon completion of his sentence. 15 The third complaint about the letter is that it contemplates that the appellant might not be kept in detention. Reference is made to the words - "It is then likely that you will be detained …". This complaint misunderstands the relevant part of the letter. What is "likely" is not that the appellant will be detained in immigration detention, but that his detention will be in a "state/territory custodial institution", namely an institution of the same type as that in which he served his custodial sentence, rather than a Commonwealth place devoted wholly to the detention of illegal immigrants and deportees. 16 None of the grounds of appeal has been made out, and the appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg, the Honourable Justice North and the Honourable Justice Dowsett.