consideration of the grounds of appeal
(a) Procedural fairness and unreasonableness
34 The grounds of appeal claim that the judge at first instance erred in holding that the respondent, to accord procedural fairness to the appellant, need not have informed the appellant:
. that he would be relying, without further investigation, on material current as at 1998, and
. that he would be acting on the basis that there was a risk of flight if the appellant were released from immigration detention.
35 As noted above, there was no dispute that the respondent was obliged to accord procedural fairness to the appellant in making the two decisions complained of. Nor was there any real dispute about the principles to be applied in determining the content of the obligation to accord procedural fairness in particular circumstances. See generally Kioa v West (1985) 159 CLR 550 at 585; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. The respondent's outline of contentions acknowledged that:
"(a) the appellant was entitled to put information and submissions to the Minister in support of his application;
(b) the appellant was entitled to an opportunity to rebut or comment upon any adverse material from other sources on which the Minister proposed to rely;
(c) the Minister was not obliged to notify to the appellant his mental processes or provisional views before making his decision, or to make the appellant's case for him;
(d) however, the Minister was required to identify to the appellant the 'gravamen' or substance of any critical issues on which the decision might turn and which were not apparent from the nature of the power or the terms of the statute: and
(e) the Minister was required to advise the appellant of any adverse conclusions which would not obviously be open on the known material."
36 The appellant's way of expressing the fourth and fifth of those points was that the respondent was obliged to draw to the appellant's attention the critical issues or factors on which the decision was likely to turn, and the gravamen of any adverse matters, so that he could have a meaningful opportunity of responding. In substance, there is no difference between the two expressions of those aspects of the obligation.
37 It was argued that the learned judge at first instance erred in his conclusion, accepting the respondent's contention, that the previous decisions of the Refugee Review Tribunal and of the Administrative Appeals Tribunal and the two letters referred to in [19] "served to highlight the substance of the critical issues to the applicant". Those critical issues were said by the appellant, without disagreement from the respondent, to be
. whether there was any, and if so what, risk that the appellant would re-offend if released,
. whether the appellant's release would create any, and if so what, risk of harm to those he had assaulted in March 1995,
. whether there was any, and if so what, risk that the appellant, if released, would attempt to avoid deportation by evading the department of the respondent, and
. whether there was any realistic prospect of a deportation order being effected within a finite and reasonable time.
38 It is desirable to trace certain letters in the exchange of communications in a little detail to note features of those letters. The letter from the appellant's legal advisers to the respondent dated 10 July 2000 referred to their understanding of there being ongoing negotiations with the Vietnamese authorities over a lengthy period to arrive at an MOU in respect of the orderly return of deportees to Vietnam. It expressed the concern that, if there was little prospect of the appellant being deported to Vietnam in the foreseeable future, he should be released from immigration detention. The Department of Immigration and Multicultural Affairs (DIMA) on 21 July 2000 sought from them further information concerning the appellant's home address in Vietnam, and where he was born, to assist Vietnamese embassy officials in attempting to obtain a travel document for him. On 8 September 2000 Senator Patterson, on behalf of the respondent, wrote to the appellant's solicitors. The letter informed them that active attempts were being made to seek a travel document to facilitate the appellant's deportation, and it asserted (although the assertion was disputed) that the appellant had only recently chosen to assist in those efforts. It said reliable information about his background in Vietnam was still being awaited from him. It noted:
"The Vietnamese authorities are currently considering a formal request for a travel document as evidenced by their recent requests for clarification."
39 A further letter from Senator Patterson of 19 September 2000 reported that DIMA had made ongoing direct representations to the Vietnamese government, as well as entering into more general negotiations with the government of Vietnam to develop an agreed framework for facilitating the return of Vietnamese nationals to Vietnam. It explained that securing sufficient reliable information as to the identity of the person being returned is a time consuming process, delaying the issue of appropriate travel documents. It referred specifically to the request that the appellant be released from immigration detention. It pointed out that the test in considering the request is that of balancing the support the deportee may have in the Australian community against any likely risks to the community. It said:
"A deportee will only be released from immigration detention if the delegate is satisfied that the person's deportation from Australia would not be jeopardised by the person attempting to evade the department, and the deportee does not represent a risk to the community."
It also referred to the embassy of Vietnam's recent request for further information about the appellant being provided to facilitate the issue of a passport to him.
40 It is also necessary to note the reasons for the earlier decision of 8 January 1998 not to release the appellant under s 253(9) of the Act. It was supported by a statement of reasons dated 23 January 1998. Essentially, by a process of reasoning much like that reflected in the reasons for the two decisions now subject to challenge, the delegate of the respondent concluded that the appellant was not an acceptable risk to the Australian community, and continued to be a threat to the Australian community.
41 Senior counsel for the appellant pointed out that at no time subsequent to 10 July 2000, when the request was made for release under s 253(9) of the Act, and the date of the decision on 12 March 2001 was the appellant interviewed or assessed concerning any question of risk of him re-offending, nor was he informed that the respondent intended to determine his application without any fresh investigation. It was also submitted (and acknowledged) that he was not explicitly informed that the respondent proposed to consider whether there was a risk that he might re-offend or that he might continue to be a threat to the Australian community in making the decisions. It was also submitted that the appellant was not informed that his deportation could not be given effect to until an Australian-Vietnam deportation agreement was entered into, or about the details of the negotiations towards reaching an MOU. An affidavit before the Court on the hearing before Marshall J disclosed that a draft MOU had been submitted to the Vietnamese government in March 2000, that there had been a number of exchanges between Vietnamese and Australian officials on points of detail thereafter, that on 4 December 2000 the Vietnamese government had submitted a revised draft of the MOU, and that detailed constructive negotiations had taken place at a meeting on 15 and 16 February 2001 following which (as at March 2001) a further response from Vietnamese officials was being awaited.
42 In our judgment, the appellant has failed to demonstrate that the learned judge at first instance erred in his assessment that the information available to the appellant and his legal advisers as a result of the two letters of 23 January 1998 and 19 September 2000, together with the previous Refugee Review Tribunal and Administrative Appeals Tribunal decisions substantially identified the critical issues which the appellant was required to address. We reject the contention that the appellant and his legal advisers were not aware of the need to address the four critical issues identified by the appellant referred to in [37] above: the risk of re-offending, the risk of harm to the victims of his previous offences, the risk of avoiding deportation by going into hiding in Australia, and the prospect of a deportation order being effected including difficulties in that process.
43 Correspondence from the appellant's previous legal advisers at the time of his earlier request for release from immigration detention indicates an awareness of those matters. His previous application for release under s 253(9) was supported by psychiatric and psychological reports about the appellant. The delegate of the respondent indicated that she reached her decision, notwithstanding those reports, that the appellant posed an unacceptable risk to the Australian community. The letter of 10 July 2000 contained no additional information on the topic, but there was no impediment to the appellant through his legal advisers procuring and submitting such information. It was equally identifiable as an issue in July 2000 as in December 1997 that the appellant might re-offend and expose members of the Australian community to risk, including those he had previously injured, if released from immigration detention. It was equally identifiable in July 2000 as in December 1997 as an issue that he might endeavour to avoid deportation by evading the authorities. Indeed, the reasons for the decision given on 23 January 1998 provide a clear indication to the appellant that any subsequent request for his release under s 253(9) of the Act would involve the respondent considering those issues. They were also clearly enough identified in the letter from Senator Patterson of 19 September 2000, particularly in the passage quoted in [39] above. The letter from the appellant's legal advisers dated 10 July 2000 itself recognised that there were ongoing negotiations between the Australian government and the Vietnamese government towards an MOU for the orderly return of deportees to Vietnam. If there were submissions the appellant wished to put about the effect of that process, or about any delay it was causing or might cause in his deportation beyond the complaints of delay which he made, or that there was no realistic prospect of him being deported in the circumstances, he could have done so. He might have sought further information about the MOU process. But the significant matter is that he was aware of the general issue. It was recognised in the letter of 10 July 2000. Subsequent correspondence related to the information to be provided to the Vietnamese authorities.
44 Accordingly, in our judgment, the appellant has not demonstrated error on the part of the judge at first instance in his consideration of whether the appellant was accorded procedural fairness by the appellant not being aware of the significant issues which the respondent addressed in making the two decisions.
45 The second way in which the appellant contended the respondent failed to accord him procedural fairness was in failing between July 2000 and March 2001 to interview the appellant about the risk of him re-offending, or to conduct a fresh assessment of the risk of him re-offending.
46 It is common ground that the appellant was not interviewed by any officer of the respondent on that topic during that period. It does not follow that the appellant did not have the opportunity to make such representations, and to present such material, as he was advised on the topic either at the time of his request by letter of 10 July 2000 or at any time until the decisions were made on 12 March 2001. The material accompanying his initial request under s 253(9) on 12 December 1997 illustrates that he was then aware of the desirability of addressing that topic, and that he then availed himself of the opportunity to do so. There is no reason why his awareness of the significance of the topic should have diminished because of the passage of time, or by reason of the period of time he had spent in immigration detention. Nor is the fact that he had apparently continued to have been of good behaviour a reason why he should no longer have such an awareness between July 2000 and March 2001.
47 One matter identified in the written contentions on behalf of the appellant was that neither the respondent nor DIMA informed him that the decisions of the respondent would be made without "any fresh investigation" of the risk of the appellant re-offending or being a risk to the Australian community, or of the fears claimed to have been held by the victims of his offences, during the period July 2000 to March 2001. Both in relation to this ground of appeal, and the ground of appeal complaining that the decisions were so unreasonable that no reasonable person could have made them, the apparent absence of any investigations by the respondent of those topics in the period July 2000 to March 2001 was contended to demonstrate error on the part of the respondent.
48 It should first be noted that the appellant did not contend that the respondent did not address the topics referred to. He clearly did. His reasons for the decisions indicate that. Nor did the appellant contend that the respondent was not entitled to have regard to the information to which, through his delegate, he had regard in making the decision on 8 January 1998 under s 253(9) of the Act to refuse to release the appellant from immigration detention. Clearly the respondent was entitled to have regard to that information. There was no new information to indicate it was in any material way erroneous.
49 Senior counsel for the appellant submitted that the passage of time since that decision meant that the appellant had been in immigration detention for a longer period, that his period of good behaviour in immigration detention had equally been lengthened, and that the passage of time might have lead to his victim's fears of the appellant being reduced as well as any threat to the Australian community being less. The submission is that, in those circumstances, the respondent was obliged to conduct further investigations after 10 July 2000 and before his decisions on the issues critical to those decisions. The failure to inform the appellant that he did not intend to do so was said to be an element of the failure to accord him procedural fairness. In addition, the failure to do so was said to inform the claim that the decisions were so unreasonable that no reasonable person could have made them.
50 In Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 and [2002] FCA 589 at [214], Wilcox J referred to his earlier remarks in Prasad at 169-170 (endorsed by the Full Court in Luu v Renevier (1989) 91 ALR 39 at 49) and in particular pointed out that he had said in Prasad at 170:
"It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."
Consequently, Wilcox J said at 417 [214]:
"It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored."
Luu v Renevier was a case where the decision of the administrative decision maker was set aside because it was one of those rare cases to which his Honour referred. To the knowledge of the decision maker, there was readily available information from a psychiatrist supervising the respondent as to the respondent's progress on an issue of critical importance to the decision, namely the risk of recidivism. Hence the Full Court (Davies, Wilcox and Pincus JJ) found the case fell within the principle which their Honours expressed at 50:
"One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained."
See also Tickner v Bropho (1993) 114 ALR 409, especially per Black CJ at 423-425.
51 The difficulty confronting the appellant's contention in this matter is that the judge at first instance found that there was no information before the respondent which indicated that there was any evidentiary material readily available about the risk of the appellant absconding if he were to be released from immigration detention, or about the risk of him re-offending if he were released into the Australian community, including in relation to the victims of his crimes. He had previously been examined by certain doctors whose reports were provided by his then solicitors in support of his earlier request on 12 December 1997 under s 253(9) of the Act for release from immigration detention. But there was nothing to indicate to the respondent that the appellant had been under continued medical supervision, or that his solicitors had arranged any up to date medical assessment of his condition in relation to those issues. Indeed, had they done so, the respondent might have expected that such information would have been submitted to him for his consideration.
52 Senior counsel for the appellant submitted that the respondent should himself have arranged to have the appellant interviewed and medically assessed, and should have conducted inquiries of the appellant and those who had offered to maintain and supervise him if he were released from immigration detention upon conditions. The appellant however had the opportunity through his solicitors of presenting such information as he wished on those topics. As noted in the reasons above, the appellant was aware that the issue that he might seek to abscond if released from immigration detention, and the issue that, if released, he might be a danger to the Australian community and to the victims of his earlier crimes, were matters to which the respondent would be giving consideration in making his decisions.
53 In our judgment, his Honour did not err in concluding that the appellant was accorded procedural fairness as explained by Mason J in Kioa at 587.
54 It follows from the above that the appellant's contention that the decisions were so unreasonable that no reasonable person could have reached them, because of a failure to conduct the inquiries to which senior counsel for the appellant referred, must also fail. Subject to the matter raised on the amended ground of appeal, and on the assumption that the respondent was entitled to address those issues as relevant considerations in the making of the decisions, the appellant was aware that he would do so. The respondent did so. The respondent referred to recent information provided concerning the offers of supervision, employment and accommodation made to the appellant. He referred to the possibility of the appellant being released upon conditions related to his supervision, employment and accommodation. To the extent that there was further information before him on those topics, he had regard to it.
55 The appellant contended that the findings firstly that there was a risk of him re-offending if he were released into the Australian community, so that he constituted a continuing danger to the Australian community including the victims of his previous crimes, and secondly that he might attempt to avoid deportation by evading officers of DIMA if he were released from immigration detention, were each findings which were so unreasonable that no reasonable person could have reached them. The contention was said to be fortified by the respondent's having not conducted any further inquiries in relation to the appellant's mental state or in relation to those offering to accommodate, employ and supervise him.
56 The nature of the unreasonableness ground of review was explained in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [1999] HCA 21(Eshetu) by Gummow J at 654 [137]:
"… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it would be very difficult to show that no reasonable decision maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or deny, that the necessary criterion has been met was all one way. … That other decision makers may have reached a different view, and have done so reasonably, is not to the point."
See also the discussion in Minister for Immigration & Multicultural Affairs v Betkhoshabeh (1999) 55 ALD 609, [1999] FCA 980 (O'Connor, Sundberg and North JJ) at 612-614 [8]-[12].
57 This is not a case where there was no material upon which the respondent could have been satisfied of those issues. The material upon which he based his decisions is referred to, and the reasons for decision given. It is true that the material is largely historical, that is what the appellant had done in the past or was perceived to have done in the past, and that there was no real new information with respect to those critical matters acquired in the period July 2000 to March 2001. There may be circumstances when the administrative decision-maker acting in part on information of some antiquity in the face of the elapse of time might fall within the "Wednesbury unreasonableness" principle. But in this matter we are not persuaded that the judge at first instance erred in concluding in all the circumstances that the decisions of the respondent did not fall within that principle. Indeed, in the circumstances, to accede to the propositions put in that regard on behalf of the appellant would amount to intervening in the merits of the decision and to substitute for the decisions of the respondent a view on the merits of the case. The Court is not entitled to do that: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37.
(b) The Risk of Flight
58 Senior counsel for the applicant contended that it was not open to the respondent to have found that there was a "risk of flight" if the applicant were released from immigration detention under s 253(9) of the Act, because there was simply "no probative material" upon which such a finding could have been made.
59 A finding of a risk of flight is one which should be made in relation to the circumstances of a particular case, that is in relation to the particular potential deportee. Reference was made to the appellant's consistent good behaviour whilst in detention, and to his expressed desire to be deported to Vietnam, as positive indications that there was no risk that he would go into hiding if he were released from immigration detention. However, we are not persuaded that the respondent did not have regard to those matters in deciding that there was a risk that the appellant, if released from detention, might put himself beyond the reach of DIMA. The learned judge at first instance concluded, despite some concerns, that it was nevertheless open to the respondent to find that there was some risk of flight by the appellant if he were released from detention. The respondent had before him the history of the appellant's attempts to remain in Australia, as well as his request to be deported to Vietnam. From 3 August 2000, the appellant had a request to the respondent to cancel the deportation order made on 9 May 1997. The respondent further had before him details of the appellant's past conduct in Australia, of the sentencing remarks of the judge, and of the appellant's presentation of the events concerning the conduct giving rise to his criminal convictions in a way different from that found by the sentencing Judge and by the Administrative Appeals Tribunal. The material before the respondent also adverted, albeit briefly, to the material indicating the possibility of releasing the appellant from detention under conditions.
60 The respondent's consideration of this issue, set out in [14] above, recognised that there was no specific evidence indicating that the appellant was likely to abscond if released from detention. Those reasons, however, do indicate that the respondent addressed the individual circumstances of the appellant.
61 We do not think it can be concluded that the respondent's finding that there is a risk of the appellant absconding if he were released from immigration detention was one which was not available to him. It was, in our view, an available inference from what the respondent knew of the appellant. Indeed, it is likely to be a rare case where there is clear direct evidence pointing to the risk of absconding except where, in the past, there has been an attempt to abscond. The inference was one which "depended upon a view of the facts that was open" to the respondent: see per Callinan J in Eshetu at 672 [194]. Accordingly, on this issue, we do not consider the learned judge at first instance erred in the manner asserted by the appellant.
(c) Whether the Detention was Unauthorised
62 The power of detention in s 253(1) of the Act is only a power of detention pending deportation, so detention for some extraneous purpose would not be authorised under that provision: see Koon Wing Lau v Calwell (1949) 80 CLR 533 (Koon Wing Lau) per Latham CJ at 555 cited with approval in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 per Deane and Dawson JJ (Lim). That position is clear from the terms of s 253(8) set out in [10] of these reasons. Their Honours in Lim said:
"In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective."
Although the provision there under consideration in the Act was in somewhat different terms from s 253 of the Act, in our view the views there expressed remain apposite.
63 The appellant contends that, because the respondent had no way of knowing whether it would ever be possible to effect the deportation order, the respondent was not exercising the power to detain bona fide for the purpose of holding the appellant in detention pending his deportation. It should be noted that the appellant's contention is based upon the proposition that the inability of the respondent to know with any precision whether deportation of the appellant to Vietnam was possible of itself means the respondent was not exercising the power of detention for the purpose of detention pending deportation. The appellant, in written submissions made after the hearing, sought leave to put in issue the actual purpose of the respondent in holding the appellant in detention. For the reasons set out in [33], we would refuse the leave sought. The argument available to the appellant is that, by reason of the uncertainty about whether deportation of the appellant is possible and if so at what time, the respondent cannot be holding the appellant in detention bona fide for the purpose of his deportation.
64 In our judgment, this contention of the appellant should be rejected. It does not follow from the fact that the time when deportation will be effected may not, at a particular time, be identifiable with precision that the purpose of the detention is not for the purpose of deportation. At the time of detention under s 253(1) it will generally be unlikely that the time at which deportation will be effected will be known with any precision. Section 253(2) provides that a deportee detained under s 253(1) may be held in immigration detention as a deportee in accordance with subs (8). Section 253(8) authorises detention "pending deportation", effectively until the deportee leaves Australia. Those provisions do not indicate that the detention power may be exercised only when arrangements are in place to effect the deportation, so that the time of deportation is known. They contemplate detention pending deportation, and whilst deportation arrangements are put in place and are executed.
65 That view is reflected in the decision of the Full Court (Beaumont, Mathews and Emmett JJ) in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371, [2000] FCA 803, in particular at 374 [12]-[13] where their Honours said:
"… 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."
66 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. The appellant's application at the completion of submissions to present such a contention in this matter has been refused. It would therefore be inappropriate to speculate about the sort of evidence which might lead to a conclusion that the respondent no longer has the purpose of detaining a deportee pending deportation. We observe however that where, as the learned judge at first instance found, the respondent had a reasonably specific approximation of when the appellant was likely to be deported, and the likely time when deportation would be effected was not remote in time, unless there were other evidence of some weight pointing to the respondent not exercising the power of detention for the permitted purpose, those factors would generally support the view that the purpose of detention continued to be pending deportation.
67 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. So much was accepted by Brennan, Deane and Dawson JJ in Lim at 31-32 where their Honours quoted with approval a lengthy passage from the reasons for judgment of Latham CJ (with whom McTiernan and Webb JJ agreed) in Koon Wing Lau at 555-556, including that:
"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 unauthorised and a writ of habeas corpus would provide an immediate remedy."
The legislation there under consideration was the Wartime Refugees Removal Act 1949 (Cth), but in general terms it was expressed similarly to the provisions of the Act now under consideration and s 7 of that Act authorised detention of a deportee "pending his deportation", and so is in a real sense to the same effect as s 253(8)(a) of the Act.
68 The Commission contended that s 253(9) of the Act should be construed so as to impose some "upper limit" on the length of detention when the respondent is considering whether to release a deportee from immigration detention. It accepts that the same construction should be given to the detention power under s 253(1). Reference was made to the recent decisions of the US Supreme Court in Zadvydas v Davis 533 US 678 and of Collins J and the Court of Appeal in R (on the application of Saadi) v Secretary of State for the Home Department [2001] 4 All ER 961.
69 The contention to that effect was not put before the judge at first instance. It was not expressly put in the written submissions on behalf of the appellant. We do not consider it necessary or appropriate to determine that question on the present application. Even accepting that there is some implied temporal limitation upon the exercise of the detention power under s 253(1), or upon the exercise of the power to maintain detention under s 253(9), rather than a limitation by reference to the purpose of the respondent (which might be assessed, inter alia, having regard to the length of the detention and the prospects of deportation within a reasonable or measurable time), the judge at first instance concluded that the respondent was able to give a reasonably specific approximation of when the appellant was likely to be deported. We did not understand the appellant to contend that his Honour erred in some appellable way in that finding. We do not consider the cases to which the Commission referred would support a construction of s 253(9) of the Act intended by the legislature which would render the decision to maintain the appellant in detention unlawful and unauthorised where the respondent was able to give a reasonably specific approximation of when the appellant was likely to be deported. His Honour accepted that the respondent considered it was likely that an MOU with Vietnam would be completed by a particular time and any real impediments to the appellant's deportation would apparently then be able to be resolved.