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.