Park Oh Ho and Others and The Minister of State for Immigration and Ethnic Affairs [1989] HCA 54

The seven appellants are citizens of South Korea. They entered Australia illegally: one in December 1985; one in February 1986; and the other five on 26 July 1986. They claim that they were innocently involved in a migration racket organized by a South Korean (Mr. Choi) with the assistance of at least one other South Korean (Mr. Kang) and certain corrupt Australian Customs officers. Regardless of whether the appellants' assertions of their lack of knowledge are genuine, it is clear that, on entry, each of them became a prohibited non-citizen for the purposes of the Migration Act 1958 Cth ("the Act"). On 26 July 1986, the appellants were all arrested and taken into custody pursuant to s. 38 of the Act which, subject to certain safeguards, authorizes the arrest and detention in custody of a person reasonably suspected of being a prohibited non-citizen. It is now common ground that both the original arrest of each appellant and his subsequent detention (from time to time authorized under s. 38(3) by order of a local magistrate acting as a "prescribed authority") at a "Detention Centre" in the Sydney suburb of Villawood was lawful up until 20 August 1986. On that day, Mr. Tuchin, a senior officer of the Department of Immigration and Ethnic Affairs ("the Department"), ordered that each of the appellants be deported from Australia. In so ordering, Mr. Tuchin was acting as a delegate of the respondent Minister of State for Immigration and Ethnic Affairs ("the Minister").

At the time the deportation orders were purportedly made, discussions were on foot between the office of the Commonwealth Director of Public Prosecutions and officers of the Department relating to the desirability of the appellants remaining in Australia as prosecution witnesses in proceedings against some of the persons alleged to have been involved in arranging their illegal entry. Notwithstanding the deportation orders, the appellants continued to be detained in custody at the Villawood Detention Centre through September and into October 1986. The appellants did not acquiesce in their continued detention but made strong and frequent pleas to be freed. Thus, an internal memorandum of 2 October 1986 from a departmental officer at Villawood records that that officer was "concerned for [the appellants'] welfare" and states that "they request to see me nearly every day and ask to be allowed to leave Australia". By 18 November 1986, the stage had been reached where five of the appellants had written, complaining of their plight, to political leaders, the press and the Human Rights Commission and all seven had apparently commenced a "hunger strike". On that day, an officer of the Director of Public Prosecutions informed an officer of the Department that the Department was "not obligated any longer" to hold up the deportations. That advice may have been given reluctantly, for the Director of Public Prosecutions continued to seek the co-operation of the appellants. Arrangements for the appellants' deportation were set on foot. Those arrangements were stayed after applications were made pursuant to the Administrative Decisions (Judicial Review) Act 1977 Cth ("the A.D.(J.R.) Act") by each of the appellants to the Federal Court of Australia for review of a number of decisions including the deportation orders purportedly made by Mr. Tuchin. The appellants were finally released from custody on 2 December 1986.

In due course, the seven applications for judicial review came on for hearing before Davies J. in the Federal Court. They were heard together. In each, the Minister was the respondent. His Honour found that, at the time he made the deportation orders, Mr. Tuchin must have had in mind that the deportation orders would serve to authorize the detention of the appellants so that they could be kept in Australia to give evidence for the prosecution in the criminal proceedings against other persons. In other words, none of the deportation orders had been made by Mr. Tuchin for the legitimate purpose of giving effect to a decision that a prohibited non-citizen should be deported as soon as appropriate arrangements for that deportation could be made. Each had been made for the impermissible purpose of detaining the particular appellant in custody in Australia so that his evidence would be available in the criminal proceedings. That being so, the deportation orders were all intrinsically flawed. Davies J. held that each of them "should be treated as a nullity" and ordered that they be "set aside ab initio". His Honour refused, however, to make a declaration that the detention of each appellant between 20 August 1986 and 2 December 1986 had been unlawful. It is unnecessary, for the purposes of the present appeal, to refer to a variety of other matters which were raised before his Honour on the review proceedings and dealt with in his judgment.

The appellants appealed and the Minister cross-appealed to the Full Court of the Federal Court. For present purposes, it is necessary to mention only one aspect of the respective appeals and cross-appeals: each of the appellants appealed from the refusal of Davies J. to declare that their detention had been unlawful; the Minister appealed from the decision of Davies J. that the deportation orders of 20 August 1986 were to be treated as a nullity. The Full Court dismissed the appeals and the cross-appeals. On the question of the validity of the deportation orders, a majority of the Full Court (Sweeney and Foster JJ.) agreed with the conclusion of Davies J. that they had been vitiated by an impermissible purpose. Morling J., who dissented on that question, was of the view that the evidence did not sustain a conclusion that the deportation orders had been made for the purpose of authorizing the detention of the appellants in custody in Australia so that they would be available as prosecution witnesses. The Full Court of the Federal Court was also divided on the question whether Davies J. had erred in not granting declaratory relief. Sweeney J. thought that, notwithstanding the invalidity of the deportation orders, it was not appropriate to make a declaration that the appellants' continued detention had been unlawful. Foster J. was of the view that such a declaration should have been made. Morling J. indicated that, if he had been of the view that the deportation orders were invalid, he would have been of the view that a declaration that the detention was unlawful should have been made. The appellants now appeal to this Court from the decision of the Full Court of the Federal Court. As a result of restrictions imposed upon the grant of special leave, the appeal is confined to the question whether the Full Court of the Federal Court was correct in upholding the learned primary judge's refusal to make a declaration that the detention of the appellants during the period from 20 August 1986 to 2 December 1986 was unlawful.

The Minister has not, on the hearing of the appeal, sought to dispute the finding of Davies J., affirmed by a majority of the Full Federal Court, that each of the deportation orders purportedly made on 20 August 1986 was intrinsically flawed by an error of law in that it was made for an impermissible purpose. As we followed the argument, two main submissions were advanced against the grant of declaratory relief. One related to the lawfulness of the appellants' detention. It was to the effect that, notwithstanding the invalidity of the deportation orders, an "Officer under the Act may properly act upon it in determining to exercise his powers under Sections 38 and 39". The other main submission advanced on behalf of the respondent Minister related to whether, even if the appellants' detention was unlawful, declaratory relief was warranted or appropriate. That submission would seem to be based on the appellants' difficulty in penetrating the fortress of officialdom to identify the particular person or persons ultimately responsible for their continued detention at Villawood. It was to the effect that there "was no evidence that the determination of detention was by the Minister, by his Delegate, as distinct from another "Officer" for the purposes of Section 38 and Section 39" of the Act and that, in these circumstances, Davies J. had been correct in refusing to grant declaratory relief since it had not been shown that the persons responsible for the appellants' detention in custody were persons for whose conduct the Minister was vicariously liable. It was suggested that the effect of declaratory relief would be to preclude the Minister from disputing such vicarious liability in proceedings for false imprisonment which the appellants have instituted against the Minister in the Supreme Court of New South Wales.

As has been said, it is now common ground that the original arrest of the appellants and their subsequent detention in custody was lawful up until 20 August 1986 in that it was authorized by s. 38 of the Act and orders made, from time to time, thereunder by a "prescribed authority". Section 38(6) provides:

If, while a person is in custody under this section, an officer informs that person (whether before or after he has been brought before a prescribed authority) that a deportation order is in force in relation to him, the preceding provisions of this section cease to apply in relation to that person and he shall be deemed to have been thereupon arrested under section 39 by the officer having his custody or, if he is not in the custody of an officer, by the officer who so informs him. It is also common ground that each of the appellants, while in custody under s. 38, was informed by an officer that a deportation order was in force in relation to him on the day (i.e. 20 August 1986) when the deportation order was purportedly made. From that time, the detention of the appellants under s. 38 of the Act came to an end pursuant to sub-s.(6) of that section. No further orders were made by a "prescribed authority". If the continued detention in custody of the appellants is to be justified after that time, it must be by reference to the provisions of s. 39(1) and (6) of the Act which are the only other statutory provisions upon which the Minister has sought to rely.

Where an order for the deportation of a person is in force, an officer may, without warrant, arrest a person whom he reasonably supposes to be that person, and a person so arrested may, subject to this section, be kept in custody as a deportee in accordance with sub-section (6). Sub-section (6) of s. 39 provides: A deportee may be kept in such custody as the Minister or an officer directs -

(a) pending deportation, until he is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he has been placed on board; or

(c) on board the vessel until her departure from her last port or place of call in Australia.

In the factual context of the present case, the continued detention of the appellants in custody during the period from the time when they were notified that a deportation order had been made was not justified by the above provisions of s. 39 for two related reasons. The first is that the powers of arrest and detention in custody conferred by that section exist in relation to a "deportee", that is to say (in the words of s. 39(1)) a person in respect of whom "an order for deportation is in force". The effect of the finding that the deportation orders of 20 August 1986 were vitiated by an impermissible purpose was that those orders were void. That being so, those orders were not "in force" and none of the appellants was a "deportee". The second reason is that s. 39(6) relevantly authorizes the detention in custody of a deportee "pending deportation". That means, in our view, during such time as is required for the implementation of the deportation order. It does not authorize the indefinite detention in custody of a person for some ulterior purpose, such as the purpose of being kept available as a witness in a pending criminal prosecution. Section 20(2) of the Act provides that the validity of a deportation order shall not be affected by delay in its execution. That sub-section says nothing, however, to validate a deportation order that is void ab initio.

It follows that the detention of the appellants during the period from 20 August 1986 to 2 December 1986 was not authorized by any applicable statutory provision. It was unlawful (see, e.g., Re Bolton; Ex parte Beane [1] ). We turn to the question whether a declaration to that effect should have been made against the respondent Minister in these proceedings.

On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.

The legislative purpose to be discerned in the conferral by s. 16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is "necessary to do justice between the parties" (s. 16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality. In particular, the phrase "any matter to which the decision relates" in s. 16(1)(c) should be construed as encompassing any matter which is so related to, in the sense of connected with, the impugned decision that it is appropriate that it be dealt with by the grant of declaratory relief in judicial proceedings for the review of the propriety of that decision. In a case such as the present where the impugned decision is a deportation order which has been found to have been null and void ab initio, the lawfulness of a period of forced imprisonment which was based solely on the void order could, depending on the circumstances, be such a matter. If the applicant in such a case is still held in custody by persons under the control of the respondent decision-maker, an injunctive order that the respondent do whatever be necessary to procure the applicant's release could be properly considered as "necessary to do justice between the parties". In that regard, it is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial "review" of administrative decisions and actions.

In the present case, the question whether the appellants' detention in custody between 20 August and 2 December 1986 was unlawful was plainly raised and litigated in the review proceedings before Davies J. As has been seen, the effect of his Honour's conclusion that the deportation orders were vitiated by an impermissible purpose was that the making of the orders and the subsequent detention of the appellants constituted an unlawful abuse of deportation procedures. The respondent Minister maintained throughout the proceedings before Davies J. and in the Full Court of the Federal Court that the appellants' detention was completely lawful. Even in this Court, he has resisted the conclusion that the voidness of the deportation orders removes the only lawful basis of the appellants' incarceration during the relevant period. In these circumstances, each of the appellants was entitled to a declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which that detention was based. That entitlement is, if anything, enhanced by the Minister's submission in this Court based on the appellants' suggested inability to identify the particular person or persons responsible for the decision or decisions that their incarceration should continue. In that regard, the objection that the effect of declaratory relief would be to preclude the Minister from disputing, in the pending proceedings in the Supreme Court of New South Wales, his vicarious liability for the conduct of the responsible person or persons was misconceived. The effect of declaratory relief will be to resolve finally, as between the appellants and the Minister, the question whether the appellants' detention in custody during the relevant period was unlawful. It will not conclude as against the Minister the question of the Minister's responsibility for that unlawful detention.

The appeal in each case should be allowed and the order of the Full Court of the Federal Court dismissing the appellants' appeals from the decision of Davies J. should be set aside. In lieu thereof, there should be an order allowing the appeals and varying the orders of Davies J. by adding thereto a declaration that the detention in custody of the appellants during the period from 20 August 1986 to 2 December 1986 was unlawful. The respondent Minister should be ordered to pay the costs of the appellants of their appeals to the Full Court of the Federal Court and of the appeal to this Court.