Minister for Immigration and Multicultural and Indigenous Affairs v Cisinski

REASONS FOR JUDGMENT Introduction 1 On 23 July 1997 a delegate of the Minister made an order under s 200 of the Migration Act 1958 (Cth) ("the Act") that the respondent be deported from Australia. Over five years later, on 20 December 2002, he had not been deported and an interlocutory order was made for his release from detention. 2 On 28 October 2003, the respondent still being present in Australia, the primary judge heard an application for the issue of a constitutional writ and for an order in the nature of a writ of habeas corpus. 3 The primary judge held that s 253(8) of the Act, which provides that a deportee may be kept in immigration detention pending deportation, is subject to an implied temporal limitation which restricts the period of detention to a reasonable period necessary to complete the removal of the deportee from Australia. 4 His Honour was of the view that this construction of s 253(8) was necessary in order to give effect to the doctrine of separation of powers. He considered that it was supported by two High Court authorities, Koon Wing Lau v Caldwell (1949) 80 CLR 533 ("Lau") and Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 ("Lim"). 5 In his Honour's view, three decisions of Full Courts of the Federal Court, which are authority for the proposition that the length of detention cannot of itself destroy its validity, are not inconsistent with the construction which he adopted. 6 The essential question which arises on the appeal is whether the primary judge's approach to the construction of s 253(8) of the Act was correct. 7 His Honour's decision was handed down before the decision of the High Court was given in Al-Kateb v Godwin (2004) 208 ALR 124 ("Al-Kateb"). There, the High Court dealt with the construction and constitutional validity of the mandatory detention regime contained in Division 8 Part 1 of the Act. 8 The provisions of the Act which govern deportation of non-citizens provide for detention to be at the discretion of the Minister. The discretionary power of detention under s 253(8) of the Act is therefore to be distinguished from the mandatory regime contained, in particular, in ss 196 and 198 of the Act. Nevertheless, it is necessary to consider the primary judge's reasons in light of the views expressed by the High Court in Al-Kateb. The Legislation 9 The learned primary judge set out the provisions of Division 9 and Division 13 of Part 2 of the Act which applied to the present case. It is convenient to refer to them again. We will not set out the provisions of ss 196 and 198. 10 Section 200 of the Act provided that the Minister "may order" the deportation of a non-citizen to which Division 9 applied. 11 Section 201 provided relevantly that, where a non-citizen who had been a permanent resident of Australia for a period of less than 10 years was convicted in Australia of an offence for which he or she was sentenced to imprisonment for a period of not less than a year, s 200 applied. That is to say, the person was liable to an order for deportation under s 200. 12 Section 206(1) provided that where the Minister had made an order for the deportation of a person, "that person shall", unless the Minister revoked the order, be deported. 13 Section 206(2) was in the following terms:- "The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order." 14 Section 253, which was contained in Division 13, governed detention of a deportee. The principal subsections for the purposes of the appeal are s 253(1), s 253(2), s 253(8) and s 253(9) but it is convenient to reproduce the whole of s 253 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) or (10) 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) or (10), 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. (4) If a person detained under this section (in this subsection called the detained person ) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall: (a) if that last-mentioned person is an officer - ask the detained person; or (b) in any other case - cause an officer to ask the detained person; to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period. (5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released. (6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly. (7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly. (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. (10) An officer may, without warrant, detain a person who: (a) has been released from detention under subsection (9) subject to conditions; and (b) has breached any of those conditions. (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." Background Facts 15 The respondent was born in Germany in 1951. He did not have German citizenship and was a "stateless alien". His father was born in Poland and his mother in Germany. At one stage his mother held German citizenship but she lost it before the birth of the respondent. 16 The learned primary judge described a "stateless alien" as a status, or degree of recognition, extended to families of displaced persons who went to Germany as a consequence of the social dislocation experienced in Europe as a result of World War II. 17 During the period of his residency in Germany the respondent was convicted of two criminal offences, one in 1978 and the other in 1981. 18 The respondent arrived in Australia in February 1982. He was granted permanent residency status in 1989. 19 In October 1992 the respondent was convicted in Perth of serious criminal offences. He was sentenced to a term of imprisonment of 11½ years. He became eligible for parole in November 1997. 20 In July 1997, approximately four months before the respondent became eligible for parole, the Minister's delegate made the deportation order. It appears from his Honour's interlocutory judgment of December 2002 that, as a result of the deportation order, the respondent was not released on parole. He remained in prison until 11 June 2000 when he was placed in immigration detention under s 253(8) of the Act. 21 The unsuccessful efforts made by or on behalf of the Minister to arrange for the Governments of Germany, Poland and Israel to accept the respondent upon his deportation from Australia are set out in his Honour's judgment. 22 There was evidence put before us of continuing efforts made by the Department up to October 2004 to secure the respondent's deportation. We did not receive this material as evidence on the question raised by the appeal but only as evidence of the current situation. It did not advance the position beyond that which was considered by the primary judge. The Primary Judge's decision 23 His Honour found at [23] that, at the time of the hearing, it did not appear that there was "a realistic possibility" that the government of Australia could make arrangements with another country, either then, or at "some uncertain future date", for the respondent to be received in that country. 24 The respondent submitted that the deportation order was not made bona fide for the purpose of securing his removal from Australia. However, his Honour rejected this submission at [26] of his judgment. 25 Moreover, the effect of his Honour's finding at [28] was that at the time of the hearing before him, the detention order relating to the respondent was for the purpose of deporting the respondent from Australia. 26 His Honour considered that the right to liberty and the separation of powers under the Constitution are important considerations in arriving at the proper construction of s 253(8) of the Act; se at [30]. 27 The learned primary judge, at [32], cited a passage from the joint judgment of Brennan, Deane and Dawson JJ in Lim. In that passage their Honours stated that it would be beyond the legislative power of Parliament to invest the executive with an arbitrary power to detain a person in custody, the power to detain by the executive being conferred in terms divorced from punishment and criminal guilt. 28 His Honour continued as follows at [33]: "Thus to be consistent with the separation of powers effected by the Constitution upon the vesting of the respective powers of the Executive, Parliament and Judiciary, an administrative power to detain must be a limited power. Further, the question whether an act by the Executive in exercise of such a power is contrary to the Constitution or exceeds the power conferred, may be determined only by the exercise of the judicial power of the Commonwealth. It is not a question that may be determined by the Executive or the Parliament." 29 After referring in some detail to the provisions of s 253, his Honour said at [51] that it is apparent that the Act anticipates a temporal connection between detention and deportation to give effect to the separation of powers under the Constitution. His Honour referred again to Lim and to the judgments of Latham CJ, Dixon J and Williams J in Lau. He quoted a passage from the judgment of Dixon J in which his Honour said that "unless within a reasonable time" the deportee was placed on board a vessel, he would be entitled to a writ of habeas corpus. 30 The primary judge continued at [54]:- "It follows that the power of the Executive to keep a person in custody for the purpose of removing that person from Australia is to be construed as requiring those responsible for effecting that purpose to take prompt and sufficient steps to complete the removal and to limit the period of detention to the reasonable period required for that action." 31 The primary judge then turned to the authorities of Full Courts of this Court in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 ("Vo"), Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24 ("Luu") and Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497 ("Te"). 32 His Honour was of the view that these authorities were not inconsistent with the construction which he adopted of s 253(8) of the Act. His Honour was also of the view that the relevant facts in Vo, Luu and Te did not require a "broader examination" of the proper construction of s 253(8) and in particular the limitations imposed by the Constitution as stated in Lim and Lau; see at [56] and [58]. 33 The primary judge continued at [60] as follows:- "What constitutes a reasonable time to effect the purpose of deportation in a given case will depend upon an examination of the facts and circumstances of that matter. Obviously, if at the time of that examination deportation is, and will remain, impossible, or if there is no real likelihood or prospect of the purpose being effected in the reasonably foreseeable future, the reasonable time within which a deportee may be detained to effect such a deportation may be said to have elapsed." 34 His Honour said at [63] that he was satisfied that the facts showed that at the time of the hearing "a reasonable time for effecting the deportation of the applicant after he had been detained 'pending deportation' had elapsed". 35 His Honour therefore made an order in the nature of habeas corpus for the release of the respondent subject to various conditions. 36 His Honour's judgment, delivered on 30 May 2004 and the orders made shortly thereafter were interlocutory. He granted leave to appeal from the orders on 30 July 2004. Discussion 37 In Vo, Beaumont, Mathews and Emmett JJ dealt with an appeal from a judge of the Court dismissing an application made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for the review of a decision of the Minister refusing to exercise the discretion under s 253(9) of the Act to release the deportee from detention. 38 The primary judge who heard the application in Vo referred, inter alia, to the construction of ss 253(8) and (9) of the Act in light of fundamental common law and human rights. He said that there must be a real chance of a reasonably imminent deportation. 39 Whilst the Full Court agreed that the prospects of imminent deportation are relevant to the merits of a decision whether to release a deportee under s 253(9), the members of the Full Court made it plain that they did not agree with the approach to construction of s 253(8) taken at first instance. 40 Their Honours said at [12]:- "… 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; …" 41 In expressing this view, their Honours pointed to the power of the Minister to revoke an order under s 206(1) and to the fact that s 206(2) squarely addresses the question of delay. They also pointed to the discretionary power of the Minister to order release under s 253(9). 42 Their Honours continued, at [12] by observing that the words "pending deportation" in s 253(8) refer to matters of formal record between the date of the order and its execution. They pointed to the serious practical difficulties that would arise if the test were otherwise. 43 Their Honours said at [13]:- "On the other hand, as we would understand it, the plain object of the present statutory scheme is to avoid those 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." 44 As to the suggestion that this would allow the power of detention to be abused, their Honours pointed out at [14] that the authority must be exercised bona fide for the purpose for which it is conferred. They referred to the joint judgment of Mason CJ, Deane, Toohey, Gaudron and McHugh JJ in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 ("Park Oh Ho"). 45 In Park Oh Ho at 643-644, in a passage cited by the Full Court in Vo, the members of the High Court said of the words "pending deportation" in what was then s 39(6) of the Act, that those words meant during such time as is required for the implementation of the order. The sub-section did not authorise indefinite detention for an ulterior purpose. 46 In Luu, Gray, North and Mansfield JJ also dealt with an appeal from a decision of a judge refusing to set aside a decision of the Minister made unde the ADJR Act refusing to exercise discretionary powers of release under s 253 of the Act. The applicant had sought revocation of the deportation order under s 206(1) and release from detention under s 253(9). 47 Their Honours observed at [63] that the appellant's contention was based on the proposition that the uncertainty of whether or when the deportation order could be effected meant of itself that the power of detention was not being exercised for the purpose of deportation. This proposition was rejected by the Court at [64]. Their Honours said at [64]:- "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." 48 The Full Court in Luu referred, at [65], with apparent approval to the decision of the Full Court in Vo. 49 Their Honours said at [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." 50 Their Honours stated at [67] that it will only be if the purpose of the detention ceases to be deportation that the detention will cease to be lawful under s 253(1) and s 253(8). They said that this was accepted by Brennan, Deane and Dawson JJ in Lim at 31-32 where their Honours quoted with approval from the judgment of Latham CJ in Lau. 51 In the quoted passage from Lau, the then Chief Justice said, at 555-556, 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 unauthorized and a writ of habeas corpus would provide an immediate remedy." 52 In Te, French, Sackville and Hely JJ heard an appeal from a judgment of a judge of the Court dismissing an application for writs of habeas corpus, prohibition and other relief challenging the validity of a deportee's detention under s 253(8) of the Act. 53 The issue of construction which was before the primary judge in the present case was squarely raised and dealt with by the members of the Full Court in Te. Their Honours said at [64] that senior counsel for the appellant argued for an implied limitation on the length of detention authorised by s 253(8) and that he submitted that the subsection authorised detention only for a period reasonably necessary to effect deportation. 54 French, Sackville and Hely JJ referred specifically to the limited purposes for which the power of detention can be maintained within relevant constitutional heads of power. They referred in this regard at [47] to the decisions of the High Court in Lim and Lau. 55 Their Honours clearly rejected the submission that there is an implied temporal limitation in s 253(8) as inconsistent with the decisions of the Full Courts in Vo and Luu; see at [71] - [73]. 56 Indeed, their Honours observed at [72] that decisions of an earlier Full Court are not to be lightly rejected. They referred to the decision of another Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 ("Al Masri") in which Vo and Luu were distinguished and explained without any suggestion of error. 57 The following passage from Al Masri at [166] is instructive:- "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". 58 The Full Court in Al Masri concluded by stating at [176] that their reasons were not directed to the significantly different circumstances of detention for the purposes of deportation, where the Minister exercises a discretion according to law to release a person from detention. 59 It follows from what we have said that we cannot agree with the learned primary judge that the construction which he adopted of s 253(8) was open on the authorities. It was rejected by Full Courts in Vo, Luu and Te. Even if the constitutional underpinnings of the requirement that the detention be for the purpose of deportation were not expressly referred to in Vo, they were dealt with and explained in Luu and Te. 60 We therefore cannot accept his Honour's conclusion that an implied temporal limitation is not inconsistent with decisions in Vo, Luu and Te. Nor, with respect, can we accept that those authorities failed to consider the proper construction of s 253(8) flowing from the decisions of the High Court in Lim and Lau. 61 The only glimmer of hope supporting the construction favoured by the learned primary judge is to be found in the following passage from the judgment of Dixon J in Lau at 581:- "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." 62 In Te, at first instance, Gray J said at [42] that when the last sentence of this passage, that is, the reference to a reasonable time, is viewed in its context, it is plain that Dixon J was pointing to the length of time as evidence of want of purpose. 63 The Full Court in Te did not deal expressly with Gray J's remark. However, the Full Court said at [47] that Lau is authority for the proposition that a limitation of the purpose for which detention of aliens is authorised is necessary for the making of laws authorising detention. This statement and the Full Court's acceptance of the principles stated in Vo and Luu are sufficient to dispose of any attempts to rely on the remarks of Dixon J as a charter for an implied temporal limitation in s 253(8). 64 Indeed in Al-Kateb, Hayne J at [231] and Callinan J at [288] said that Dixon J's remarks in Lau were not authority for the proposition that the words in s 196 of the Act are subject to an implied temporal limitation. McHugh J at [33] agreed with Hayne J's construction of s 196. Heydon J at [303] agreed with Hayne J. 65 The views of the majority in Al-Kateb support the approach to the construction of s 253(8) adopted by the Full Courts in Vo, Luu and Te. This view is encapsulated in the remarks of Hayne J at [231]. 66 As Hayne J observed, the purpose of detention, ie removal, is not shown to be spent by showing that efforts made to achieve removal have not so far been successful. Even if it is found that there is no real likelihood of removal in the reasonably foreseeable future, it does not follow that continued detention is not for the purpose of detention. 67 This approach to construction does not violate constitutional limits because detention has the purpose of, inter alia, facilitating deportation from Australia; see Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49 ("Woolley") at [71]. 68 Moreover, in Al-Kateb, Gleeson CJ, who was in dissent, said at [22] that he was influenced as to his construction of s 196 by the consideration that detention under that provision is mandatory. His Honour left open the possibility of a different approach to construction if a regime under which the power to detain is coupled with a discretion related to the circumstances of individual cases. This of course is the regime which applies to the deportation under Divisions 9 and 13 and in particular s 253(9). 69 Here, the finding of the primary judge at [28] that the continued detention of the respondent was not for an improper purpose should have led to the dismissal of the application. It is plain that a lengthy period had elapsed between the date of the order and the date of the hearing without any apparent prospect of removal. Nevertheless, with respect to his Honour, the established authorities necessarily led to a rejection of the application. 70 The respondent did not challenge, for the purposes of the appeal, the deportation order or the finding made by his Honour as to the absence of an improper purpose. 71 Counsel for the respondent sought to draw a distinction between the initial deportation order and the continued detention of the respondent. He submitted that s 253 does not give the executive a power to segregate deportees from the Australian Community, or to exercise the power of detention for that purpose. By implication, the effect of his submission was that the purpose of the detention of the respondent had shifted and was now sought to be exercised for the purpose of segregation, which was impermissible. Or, alternatively, it was for the Minister to justify the need to segregate the respondent from the community. 72 In Woolley, McHugh J referred at [71] to segregation as one of the permissible non-punitive purposes of the power of detention under s 196 of the Act. It is unnecessary to decide whether such a purpose is one which may underlie the exercise of the power under s 253. It is sufficient to say that the primary judge's finding that the continued detention was for the purpose of deportation, and the respondent's acceptance of this finding, preclude any such argument. Orders 73 The orders we will make are that the appeal be allowed and that the orders made by the primary judge on 16 July 2004 be set aside. The respondent must pay the costs of the appeal and the costs of the application before the primary judge.