THE DETENTION DECISION
50 Given my conclusion that the AAT's deportation decision should not be set aside, it might be thought that there is little practical utility in the applicant's challenge to the detention decision made on 15 March 2001, at least if the object is to secure his release pending deportation. The policy guidelines already referred to (see [20] above) hardly suggest that the applicant has a significant chance of persuading the Minister to release him pending deportation, particularly having regard to the applicant's history as recounted in the AAT's reasons for decision. Nonetheless, no matter how formidable the obstacles may be, it is, as Mr Robinson submitted, always possible that cogent arguments might persuade the Minister's delegate to stay his or her hand. Perhaps, too, there are other reasons why the setting aside of the detention decision, if that is the relief to which the applicant is entitled, may have practical significance.
51 It will be recalled that the detention decision was made under s 253(1) of the Migration Act. At the time the decision was made, the applicant was a deportee in the custody of an authority of a State otherwise than under the Migration Act. This isthe situation to which s 254 of the Migration Act is directed. The Minister could have "detained" the applicant on the completion of his custodial sentence of exercising the powers conferred by s 254: Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389, at 394-395, per Lehane J, followed in Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, at 30-31, per curiam. The applicant accepted, however, that the Minister is entitled, if he or she chooses, to invoke the general powers in s 253, instead of the specific powers in s 254, in relation to a deportee serving a sentence of imprisonment in a State prison: Tuiletufugu v Minister, at 395-397. It is not necessary to consider the correctness of that view.
52 As I have noted, the challenge to the detention decision was made on the ground that the Minister breached the rules of natural justice in connection with the making of the decision. The first question, however, is whether the applicant should be granted an extension of time under s 11(1)(c) of the ADJR Act in which to lodge his application. In considering this question, it is necessary to bear in mind the principles relating to the exercise of the Court's discretion to extend time stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, at 348-349. One of the factors to take into account is the merits of the substantive application.
53 I have had the advantage of argument on the substantive question. In my view, the applicant has established the ground on which he relies to challenge the deportation decision.
54 The settled principle is that
"when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment… [A]n intention on the part of the legislature to exclude the rules of natural justice [is] not to be assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations'": Annetts v McCann (1990) 170 CLR 596, at 598.
This principle has recently been applied by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne J dissenting).
55 Mr Lloyd, cognisant of the settled principle, submitted that, although the requirements of natural justice are not displaced by s 253 of the Migration Act, they must be "moulded" to fit this area of decision-making. The legislative intention, so he argued, is that a detainee seeking release from detention should invoke the procedure established by s 253(9) and thus should apply to the Minister rather than claim the protection of the rules of natural justice before the detention takes place. The same intent, so it was said, is evident in the procedure available under s 253(4), in cases where the detainee alleges that he or she is not in fact the deportee. Mr Lloyd submitted that the fact that s 253(3) requires the detainee to be informed of the reason for his or her detention shows that the legislation does not contemplate prior notification to the deportee of his or her impending detention. Most importantly, the power conferred by s 253(1) is to detain without warrant and it is obvious that such a power might have to be used without advance warning to the deportee. Accordingly, Mr Lloyd contended that to impose a requirement that a deportee be afforded procedural fairness or natural justice would frustrate the statutory power.
56 The principal difficulty with the Minister's argument is that it appears to assume that, if the principles of natural justice are held not to be excluded by a particular statutory context, they apply in a uniform manner whenever the statutory power is invoked. In Kioa v West (1985) 159 CLR 550, Brennan J said this (at 612):
"The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the reporting is to exercise the power".
Later in the same judgment, his Honour pointed out (at 615) that the application of the principles of natural justice depends on the circumstances of the particular case:
"An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case. Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected."
In Barrett v Howard (2000) 170 ALR 629, the Full Court recognised the distinction between the requirement that procedural fairness be observed and the content of procedural fairness. The Court observed (at 544) that the
"conclusion that procedural fairness is to be observed in the exercise of the power to terminate a Secretary's appointment does not carry with it any conclusion about how that fairness is to be achieved. Its content depends on the statutory framework. It also depends upon the particular circumstances of the case which call for decision."
57 There will plainly be circumstances where a deportee can be afforded only a limited prior opportunity to be heard as to whether he or she should be taken into custody. In some circumstances, it might not be practicable to afford any such opportunity, as where a deportee is apprehended while "on the run". But that does not mean that the principles of natural justice can never apply so as to require the Minister to afford a prior opportunity to advance reasons why he or she should not be taken into detention in exercise of the powers conferred by s 253(1) of the Migration Act.
58 In the present case, the Minister's delegate made the decision to detain the applicant at a time when he was in the custody of the State authorities completing his sentence of imprisonment. The Department was plainly aware well in advance of the applicant's release on parole from State prison on 15 March 2001 that it contemplated taking him into immigration detention. So much had been made clear in the correspondence ten months earlier. It is true that the precise date of the applicant's scheduled release was made known to the Department only soon (probably very soon) before the actual day. But plans for the applicant's detention on the day he was due for release had been set in motion by the letter of 19 May 2000. There were no obvious "exigencies of the case" (Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, at 23, per McHugh J) making it impracticable to afford him a prior opportunity to be heard on the question of whether an order under s 253 should be made at the expiration of his custodial sentence.
59 Furthermore, it is difficult to see why the terms of subss 253(3), (4) or (9) of the Migration Act relied on by Mr Lloyd, should have the effect of preventing the principles of natural justice from applying to the exercise of the power conferred by s 253(1). The existence of a right of appeal or review does not necessarily exclude the rules of natural justice: Twist v Randwick Municipal Council (1976) 136 CLR 106. Particularly is this so when the right of "appeal" is to a body "internal to the same organisation as the regional decision-maker": Ex parte Miah, at 272, per McHugh J. In any event, s 253(9) of the Migration Act does not provide a right of appeal or review of a detention decision as such; rather it empowers the Minister to order at any time the release of a person in detention. There is nothing in the language of s 253(9) suggesting that the Minister's power under that provision was intended to exclude the operation of the rules of natural justice prior to the detention decision being made. After all, the continued detention of a person after he or she has served a sentence of imprisonment is a serious matter, even if the person is the subject of a deportation order. In my view, the power conferred by s 253(9) of the Migration Act, exercisable after the detention has occurred, is not incompatible with a deportee in the applicant's situation being given an opportunity to be heard before being taken into immigration detention. So too with the procedure established by s 253(4) for cases of claimed mistaken identity. A provision such as s 253(3) requiring a detainee to be informed of the reasons for his or her detention does not constitute "plain words of necessary intendment" that a deportee should not have an opportunity in advance, if the circumstances permit, to argue against his or her proposed detention.
60 Mr Lloyd advanced an alternative argument that, even if the rules of natural justice applied to the deportation decision made in respect of the applicant, he had been afforded natural justice. Mr Lloyd contended that the requirements of natural justice had been observed because the applicant had been informed in May 2000 that he "would, if necessary" be taken into detention on completion of his custodial sentence. In assessing this submission, it is necessary to bear in mind, as Kirby J said in Ex parte Miah, at 285, that where
"an interest may be seriously affected by the exercise of a statutory power, an opportunity ought ordinarily to be given to the person concerned to respond to adverse information that is credible, relevant and significant to the decision to be made."
This does not mean that a deportee already in custody must be given an elaborate opportunity to be heard prior to a decision being made to detain him or her at the conclusion of the custodial sentence. But it does mean that, insofar as the circumstances permit, the deportee should have a meaningful opportunity to respond to specific information or circumstances that are regarded as warranting his or her detention pursuant to s 253 of the Migration Act.
61 In this case it is true that the applicant must have known from May 2000 onwards that it was likely that the Department would seek to detain him upon his release from imprisonment under State law. He could have communicated his objections to the Department had he appreciated that that course was open to him. Nonetheless, the applicant was not specifically invited to make submissions to the Minister as to why he should not be taken into detention. More importantly, he was never informed as to the matters the delegate was likely to regard as particularly significant in his case. For example, he was never advised of the terms of the policy applicable to deportees serving sentences in State prisons. Nor was he told that his criminal history suggested to the decision-maker both that he would attempt to evade the Department if released and that he was considered a risk to the community (see the Minute of 15 March 2001 ([20] above)). He was not informed of the specific matters, personal to him, that were considered adverse to his claim to be released upon completion of his sentence of imprisonment. As Gaudron J observed in Ex parte Miah, at 240, the basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case put against him or her. Since the applicant was never informed of the matters that were thought to count against him, he was denied natural justice in relation to the making of the detention decision.
62 In view of my conclusion that the applicant has established a breach of the duty to afford him natural justice, I think the appropriate course is to grant extension of time for the institution of the proceedings challenging the detention decision. The delay was relatively short and the applicant provided an explanation for the delay, albeit one directed primarily to the delay in challenging the deportation decision. Mr Lloyd did not suggest that the Minister had been prejudiced by the delay. I do not think the fact that the applicant has never invited the Minister to exercise his powers under s 253(9) of the Migration Act to release the applicant from detention provides a basis for refusing to grant an extension of time in order to challenge the making of the detention decision on the ground that the decision was made in contravention of the principles of natural justice.
63 Mr Lloyd submitted, as I understood him, that I should withhold relief from the applicant in respect of the detention decision in the exercise of the discretion conferred on me by s 16(1) of the ADJR Act. Essentially he relied on the same matters as those advanced in opposition to the grant of an extension of time (except, of course, what was said to be the weakness of the applicant's substantive case). In my view, none of the matters relied upon justifies withholding all relief from the applicant.
64 A question may arise, however, as to the appropriate form of relief that should be granted to the applicant under s 16(1) of the ADJR Act, including the date from which any order operates. It is also not clear to me whether the applicant seeks any relief other than an order setting aside the detention decision. In these circumstances, I propose to afford the parties an opportunity, within a limited time frame, to make further written submissions as to the appropriate orders that should be made to give effect to these reasons for judgment.