Te, Meng Kok v Minister for Immigration & Multicultural Affairs [1998] FCA 1339

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

This is an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review the decisions of the Minister of Immigration and Multicultural Affairs made on 10 July 1998 to make a deportation order against the applicant pursuant to s 200 of the Migration Act 1958 (Cth) ("the Act") and to direct the second respondent to hold the applicant in custody pursuant to s 253 of the Act. The applicant was represented before the Court by counsel, as was the first respondent. There was no appearance on behalf of the second respondent who had apparently indicated to the Court earlier that he intended to play no active part in the proceeding. The two decisions the subject of this application are not "judicially-reviewable decisions" within the meaning of s 475 of the Act. The limitations imposed on the jurisdiction of the Federal Court by s 485 of the Act thus have no application. The applicant contends that he is not liable to deportation under s 200 of the Act. The deportation order made against him was made in reliance on s 201 of the Act. Section 201, so far as is here relevant, provides as follows: "Where: (a) a person who is a non-citizen has … been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; … (c) the offence is an offence for which the person was sentenced … to imprisonment … for a period of not less than one year; section 200 applies to the person". The only basis upon which the applicant contends that he does not fall within the terms of s 201 of the Act relates to the terms of the sentence imposed upon him following his conviction of a drug related offence. This contention calls for consideration to be given to the significance, so far as s 201 of the Act is concerned, of the suspension of part of the term of imprisonment. The relevant sentence imposed on the appellant was "sentenced to 12 months imprisonment, three months of sentence suspended for 12 months." It is accepted that this sentence was imposed in respect of an offence committed at a time when the applicant, who is a non-citizen, had been in Australia as a permanent resident for a period of less than 10 years. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 the Court gave consideration to the then s 12 of the Act, which authorised the making of a deportation order in respect of an alien convicted in Australia "of any other offence for which he has been sentenced to imprisonment for one year or longer." The majority of the Court, Bowen CJ and Deane J, held that a sentence of imprisonment with hard labour for 12 months, accompanied by a direction that the plaintiff be released after three months, after entering into a recognisance to be of good behaviour for two years, was a sentence to imprisonment for one year within the meaning of the section. At 418 their Honours said: "There is … much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment". Nothing suggests that the construction of the words "sentenced for a period of not less than one year" in the context of s 201 of the Act requires a different approach from that adopted by the majority of the Full Court in Drake's case in respect of s 12 of the Act as it was then. The sentence imposed on the applicant by the Melbourne County Court, following the hearing of his appeal, was a sentence of twelve months' imprisonment, albeit that three months of the sentence was suspended for twelve months. That is, the County Court determined that the appropriate sentence to be imposed was a sentence of twelve months (s 27(3) Sentencing Act 1991 (Vic)). I do not accept that the distinction contended for by the applicant between an order for early release, on the one hand, and a suspension of part of the sentence in circumstances in which the suspended portion of the sentence is not ordered to be served, on the other, is of any present relevance. The applicant argued that although an order for early release of the type considered in Drake's case does not effect the length of the sentence for the purpose of s 201 of the Act, the suspension of a portion of a sentence does effect the length of the sentence for the purpose of s 201 of the Act provided that the suspension is not later revoked. Acceptance of this argument would involve the conclusion that a sentence, a portion of which is suspended, is not a final sentence and that its true length may only be ascertained at the determination of the period of suspension. I do not accept that the sentence imposed by the County Court was not a final sentence. In my view, it was a final sentence in the same sense as the sentence considered in Drake's case was a final sentence. Its finality was not affected by the fact that later conduct by the applicant was capable of affecting the period of actual detention to be served by him. . I conclude that the applicant is liable to deportation as he did commit, at a time when he had been in Australia as a permanent resident for a period of less than 10 years, an offence for which he was sentenced to imprisonment for a period of not less than one year within the meaning of s 201 of the Act. The applicant further contends that the decision to direct the second respondent to hold the applicant in immigration detention was, and is, contrary to law in that it was not, and is not, authorised by ss 253 and 254 of the Act. Sections 253 and 254 of the Act, so far as are here relevant, provide as follows: "253 (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). … (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. … 254 (1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act. (2) The Secretary may give the person written notice: (a) if the person is a deportee: (i) stating that a deportation order has been made; and (ii) setting out particulars of the deportation order; and (b) if the person is a removee - stating that the person is to be removed; and (c) in any case - stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the "custody transfer time"), the person will be kept in immigration detention. (3) Where a deportee is given notice under subsection (2), this Act (other than subsections 253(1) and (3) applies in relation to the deportee as if he or she had been detained under subsection 253(1) at the custody transfer time". The relevant history of the applicant, so far as this contention is concerned, is as follows. On 10 July 1998, a delegate of the first respondent issued a deportation order under s 200 of the Act in relation to the applicant. As at 10 July 1998, the applicant was serving a custodial sentence at the Fulham Correctional Centre in Sale, Victoria. That sentence was due to be completed on 16 August 1998. On 15 July 1998, an officer for the purposes of the Act requested the manager of the Fulham Correctional Centre to hold the applicant in immigration detention, on the officer's behalf, after his custodial sentence was completed. On 15 July 1998 the applicant was given written notice stating that the deportation order had been made, setting out particulars of the deportation order and stating that, "You will be kept in Immigration custody under section 253 of the Act until arrangements can be made for your departure from Australia." It was contended by the applicant, and accepted by the first respondent, that the letter of 15 July 1998 was a notice to the applicant pursuant to s 254(2) of the Act. The applicant places reliance on the decision of Wilcox J in Halmi v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 29 January 1998). The relationship between ss 253 and 254 of the Act has been more recently considered by Lehane J in Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 2 October 1998). Lehane J did not follow the approach taken by Wilcox J in Halmi's case to the interrelationship between ss 253 and 254 of the Act. In Halmi's case, Wilcox J concluded that a deportee who has been given notice under s 254(2) of the Act cannot be detained under s 253(1) of the Act, and that the Act does not provide any other detention power relevant to such a deportee. Lehane J in Tuiletufuga's case, concluded that s 254(3), read in conjunction with s 253(2), provides authority to keep in detention a deportee to whom a notice under s 254(2) has been given, and that the identification of a separate power to detain is unnecessary. With respect, I find the analysis of the interrelationship between ss 253 and 254 of the Act undertaken by Lehane J convincing. The effect of s 254(3) of the Act, in my view, is that where a deportee is given notice under s 254(2), s 253(2) of the Act applies in relation to the deportee as if he or she had been detained under s 253(1) at the custody transfer time. That is, the deportee may, subject to s 253 of the Act, be kept in immigration detention or in detention as a deportee in accordance with s 253(8). The deportee being already in custody, there is no need for the identification of a separate power to take the deportee into custody or detention. I conclude that the decision of the first respondent to direct the second respondent to hold the applicant in immigration detention was and is authorised by ss 253 and 254 of the Act. The other contentions advanced by the applicant in his amended application were as follows: "(5) The Deportation Order was made contrary to law in that no reasonable decision maker could have arrived at such a decision in the particular circumstances of the case. (6) Further, and in the alternative, the decision maker failed completely to give any or any adequate consideration to relevant matters namely: (a) whether or not the applicant was a person who could be repatriated to his country of citizenship, and - (b) the fact that the applicant was a refugee when he entered Australia, at the time the Deportation Order was made and remains a refugee." Section 500 of the Act authorises the making of an application to the Administrative Appeals Tribunal for a review of a decision of the minister under s 200 of the Act because of circumstances specified in s 201 of the Act. The applicant has applied within time to the Administrative Appeals Tribunal for a review of the decision of the minister under s 200 of the Act. The application for review by the Administrative Appeals Tribunal has not yet been heard. Such review, when heard, will be a full merits review. Questions of fact and of law may be argued. The decision of the Administrative Appeals Tribunal following such review will be open to be appealed to this Court on the ground of error of law. The relief sought by the applicant before this Court, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B of the Judiciary Act 1903 (Cth) is discretionary. In my view, having regard to the alternative remedy available to the applicant, it is not appropriate for grounds 5 and 6 of the amended application to be considered by this Court on this application. The application will be dismissed.