Solicitors for Respondent: Australian Government Solicitor

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

NORTHROP, SPENDER AND GRAY JJ This appeal raises for consideration the proper construction of s89 of the Migration Act 1958 and its application to the appellant. On 22 July 1992 the appellant disembarked from an aircraft at Melbourne Airport which is a proclaimed airport under subsection 89(2) of the Migration Act. An authorized officer under that subsection reasonably believed that the appellant would become an illegal entrant if he were to enter Australia. As a result, before the appellant left the airport, he was taken into custody by an officer and has been kept in custody ever since, a period of over 22 months.

2. The explanation for this long delay need not be discussed in detail. It is sufficient to say that the appellant made application under sections 22AA and 22AB of the Migration Act to be accorded refugee status. That application was refused and on review that refusal was affirmed by a delegate of the Minister. Because of pending proceedings in the Federal Court in Western Australia, the result of which could have affected the legal position of the appellant, the Minister undertook not to remove the appellant from Australia pursuant to s89 until those proceedings had been determined.

3. In June 1993, the appellant commenced a proceeding in the Federal Court, being matter No VG 250 of 1993, seeking to review the decision of the delegate not to grant him refugee status. This proceeding is pending.

4. The appellant made application to the Minister to be released from his custody under subsection 89(2) of the Migration Act pending the determination of the proceeding. By letter dated 23 August 1993, an authorized officer refused that request. The basis for the refusal was contained in the letter as follows:

"The Act contemplates release from such custody (s89(2) Migration

Act) only in two circumstances, where the person detained is

removed from Australia or is granted an entry permit. As neither

of these two circumstances are presently relevant to your client's

situation, I have no power to release your client at this time."

5. On 24 August 1993 the appellant commenced another proceeding in the Federal Court, being matter No 354 of 1993, seeking a review of the decision of 23 August 1993. By order made on 10 November 1993 and entered 15 November 1993, the Court constituted by Ryan J dismissed this application. The appellant appeals from that order.

6. The essential issue raised by the appeal is the nature of the power conferred by subsection 89(2) of the Migration Act to take the appellant into custody and to keep him in custody. Incidental to this central issue are two subsidiary issues. The first is whether the power to keep the appellant in custody has ceased because of the making of the application to be accorded refugee status or of the undertaking by the Minister not to remove him from Australia pending the determination of the Western Australian proceeding. The second is whether s89 of the Migration Act, or any other provision of that Act, confers a discretionary power enabling the Minister to release the appellant from custody.

7. Sections 88 and 89 of the Migration Act are complementary provisions, the first applying to persons arriving on board a vessel, not being an aircraft, at a port in Australia and the second to persons arriving on an aircraft at a proclaimed airport. Each section is within Division 8 of Part 2 of the Migration Act.

8. Part 2 is headed "ENTRY, PRESENCE AND DEPORTATION OF NON-CITIZENS". Division 8 is headed "Examination Search and Detention". Those headings are deemed to be part of the Migration Act; see subsection 13(1) of the Acts Interpretation Act 1901. The parts of s89 relevant to this appeal are set out:

"89. (1) ...

(2) A person who disembarks from an aircraft at a

proclaimed airport, whether or not that airport is the first port

of call of the aircraft in Australia, being a stowaway or a person

whom an authorized officer reasonably believes would become an

illegal entrant if the person were to enter Australia (whether or

not the person is seeking to enter Australia), may, at any time

before the person leaves the airport:

(a) if an authorized officer so directs; or

(b) if the master of the aircraft so requests and an

authorized officer approves;

be taken into custody by an officer and kept in such custody,

either at the proclaimed airport or elsewhere, as an authorized

officer directs until such time as the person is removed from

Australia or the person is granted an entry permit.

(3) ...

(4) Where a person is taken into custody under subsection

(1), (2) or (3), an authorized officer may, at any time within 48

hours after the person is so taken into custody, by notice in

writing served on the master, owner, agent or charterer of the

aircraft on which the person travelled to Australia, require the

master, owner, agent or charterer to remove the person from

Australia at no charge to the Commonwealth."

(5) ...

(6) ...

(7) ...

(7A) ...

(7B) A person who is taken into custody under subsection

(1),(2) or (3) may be kept in custody until the person is removed

from Australia in accordance with arrangements made by an

authorised officer.

(7C) Failure to give a notice in accordance with subsection

(4):

(a) does not prevent the person concerned from being kept

in custody as mentioned in subsection (7B); and

(b) does not prevent the person concerned from being

removed from Australia as mentioned in subsection

(7B).

(8) A person who is taken into or held in custody under

the section:

(a) is taken not to enter Australia unless he or she is

granted an entry permit; and

(b) if the person is granted an entry permit:

(i) if the entry permit is granted while the person

is at a proclaimed airport - he or she is taken

to enter Australia when he or she first leaves

the airport after the entry permit is granted;

and

(ii) if the entry permit is granted after the person

has been taken from a proclaimed airport - he or

she is taken to enter Australia when the entry

permit is granted.

(8A) An officer may, without warrant, arrest a person who

has escaped from custody in which the person was being held under

this section and return the person to custody."

(9) ... "

9. For the purposes of the central issue raised by this appeal, namely, the nature of the power conferred by subsection 89(2) of the Migration Act, the crucial words of the subsection are:

"A person ... may, at any time before the person leaves the

airport. ... be taken into custody by an officer and kept in such

custody ... as an authorized officer directs until such time as

the person is removed from Australia or the person is granted an

entry permit." (Emphasis added).

10. Subsections 89(1) and (3) are similar in form to subsection 89(2) but the conditions precedent to the taking into custody are different. The words emphasized occur in all three subsections. Before 26 June 1991, the corresponding words in each subsection were "until such time as the person is removed from Australia in accordance with subsection (4) or until such earlier time as an authorized officer directs".

11. Section 88 of the Migration Act, as mentioned earlier, is a provision similar to s89 but with respect to vessels other than aircraft. The provisions of s88 corresponding to subsection 89(2) contain the following, "until the departure of the vessel from its last port of call in Australia or until the person is granted an entry permit or until such earlier time as an authorized officer directs". (Emphasis added). These words were inserted in the subsection with effect from 26 June 1991.

12. In order to construe the power conferred by subsection 89(2) of the Migration Act upon an officer to take a person into custody and to keep that person in custody, it is helpful to make brief mention of some parts of the Migration Act. The full title to that Act is:

"An Act relating to the entry into, and presence in, Australia of

aliens, and the departure or deportation from Australia of aliens

and certain other persons."

13. The heading to Part 2 of the Migration Act, which is set out earlier in these reasons and being the Part within which s89 appears, namely "ENTRY, PRESENCE AND DEPORTATION OF NON-CITIZENS" makes sense when regard is had to the full title of the Act. Division 1 of Part 2 is headed "Control of entry into Australia". For present purposes, subsection 14(1) is of crucial importance. It is within Part 2 and is as follows:

"14. (1) On entering Australia, a non-citizen becomes an

illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorized by section 17."

14. For present purposes, particular reference is made to paragraph 14(1)(a). It is not necessary to make reference to other voluminous provisions contained in the Migration Act relating to the granting, refusal to grant and cancellation of entry permits. It is necessary to make reference to some of the definitions contained in the Act. The word "non-citizen" is defined to mean a person who is not an Australian citizen. The appellant is a non-citizen and thus comes within paragraph 14(1)(a). The definition contained in the Act of the word "enter" states only that it includes re-enter, which is not very helpful. Normally the word "enter" is appropriate to describe what happens when a person first comes within Australia. It is a word appropriate to describe what happens when a person, whether a citizen of Australia or a non-citizen, comes from outside Australia into Australia. Thereafter, that person can be described as being present in Australia. The position is made clear by sub-section 4(5) which provides:

"(5) Subject to subsection (5A), for the purposes of this

Act, a person shall be deemed to enter Australia:

(a) in the case of a person arriving in Australia by a

vessel other than an aircraft - when he or she

disembarks from the vessel in Australia; or

(b) in the case of a person arriving in Australia by an

aircraft - when he or she so disembarks from the

aircraft in Australia or, if he or she disembarks at a

proclaimed airport, when he or she leaves the airport;

whether or not the person intends to return to the vessel

or aircraft."

15. It is noted that where a person disembarks from an aircraft arriving at a proclaimed airport, the person is deemed to enter Australia "when he or she leaves the airport".

16. Subsection 4(5A) is not relevant to this proceeding.

17. Section 89 of the Migration Act is designed to prevent a non-citizen, who is not the holder of a valid entry permit, from entering Australia. In this context the deeming provisions of subsection 4(5) are of importance. The fact of disembarkation from an aircraft at a proclaimed airport does not constitute an entry to Australia by the person so disembarking until that person leaves the airport. Thus, where the conditions prescribed by subsection 89(2) are satisfied, an officer "may, at any time before the person leaves the airport" take that person into custody and keep that person in custody until the occurrence of one of the two events subsequently mentioned. In this context reference is made to s11 of the Migration Act which provides:

"11. For the purposes of this Act, a person shall not be

taken to be in custody under this Act, or in the custody

of an officer, unless the person is:

(a) being held:

(i) in a detention centre established under this

Act;

(ii) in a prison or remand centre of the

Commonwealth, of a State or of a Territory;

(iii) in a police station or watch house; or

(iv) in another place approved by the Minster in

writing;

or

(b) in the company of, and restrained by:

(i) an officer; or

(ii) another person directed by the Secretary to

accompany and restrain the person."

18. Having regard to subsection 4(27) of the Migration Act, the words "not to be taken to be in custody" appearing in s11 have the same force and effect as "not deemed to be in custody".

19. Under the provisions of s11 and subsection 89(2), the custody may be at a place outside a proclaimed airport, see subsections 89(8) and (8A).

20. A non-citizen taken into custody and being kept in custody under s89 is not an outlaw. While in Australia, the person is entitled to the benefits created by Australian law. This is made clear by Chu Kheng Lim v Minister for Immigration, Local and Ethnic Affairs and Another (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at pp19-20:

"Under the common law of Australia and subject to qualification in

the case of an enemy alien in time of war (see eg R v Vine Street

Police Station Superintendent; Ex parte Liebmann, (1916) 1 KB 268;

R v Bottrill; Ex parte Kuechenmeister, (947) KB 41), an alien who

is within this country (cf Musgrave v Chun Teeong Toy (1891) AC

272 (discussed in Legomsmky, Immigration and the Judiciary: Law

and Politics in Britain and America (1987) pp. 88-91) as to the

position of an excluded alien), whether lawfully or unlawfully, is

not an outlaw. Neither public official nor private person can

lawfully detain him or her or deal with his or her property except

under and in accordance with some positive authority conferred by

the law (see, generally Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at p631; Ex

parte Lo Pak [1888] NSWLawRp 32; (1988) 9 LR (NSW) 221 at pp. 244-245; Ex parte Walsh

and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at pp.79-80; Re Bolton;

Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at pp.528-529). Since the common

law knows neither lettre de cachet nor other executive warrant

authorizing arbitrary arrest or detention, any officer of the

Commonwealth Executive who purports to authorize or enforce the

detention in custody of such an alien without judicial mandate

will be acting lawfully only to the extent that his or her conduct

is justified by valid statutory provision. Nor, in the absence of

legislative provision to the contrary, does an alien within the

country lack standing or capacity to invoke the intervention of a

domestic court of competent jurisdiction if he or she is

unlawfully detailed (see Somerset v Stewart ("the Negro

Case")(1772), Lofft 1 [1772] EngR 57; (98 ER 499); Johnstone v Pedlar (1921) 2 AC

262 at pp273, 276, 284-285, 296; Reg v Home Secretary; Ex parte

Khera and Khawaja (1984) AC 74 at pp. 110-112 per Lord Scarman). If

the unlawful detention is by a person who is an officer of the

Commonwealth, the status of that person as such an officer will of

itself neither confer immunity from proceedings against him or her

personally in the ordinary courts of the land nor provide an

answer to an application for habeas corpus in any court of

competent jurisdiction. If an officer of the Commonwealth is

acting in the ostensible exercise of his or her authority as such,

the detained alien can invoke the original jurisdiction of this

Court under s75(iii) of the Constitution."

21. For present purposes the word "alien" and the word "non-citizen" can be treated as having the same meaning.

22. In this context, it is necessary to consider the nature of the power conferred on an officer to take the appellant into custody and to keep him in custody. This is in the circumstances where the appellant disembarked at Melbourne Airport and was a person whom an authorized officer reasonably believed would become an illegal entrant if he were to enter Australia; see subsection 89(2).

23. In these circumstances, if an authorized officer so directs, an officer "may, at any time before the person leaves the airport" take that person into custody. In the absence of statutory authority to do so, that act would be unlawful.

24. In its context, the word "may" confers the authority on the officer to do the act which otherwise would be unlawful. This is not a case where the word "may" is to be construed as "shall". It is a case where the word confers an authority. The position is made quite clear by what Windeyer J said in Finance Facilities Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 12; (1971) 127 CLR 106 at pp134-5:

"The question, which comes back to the words "may allow", is not

to be solved by concentrating on the word "may" apart from its

context. Still less is the question answered by saying that "may"

here means "shall". While Parliament uses the English language

the word "may" in a statute means may. Used of a person having an

official position, it is a word of permission, an authority to do

something which otherwise he could not lawfully do. If the scope

of the permission be not circumscribed by context or circumstances

it enables the doing, or abstaining from doing, at discretion, of

the thing so authorized. But the discretion must be exercised

bona fide, having regard to the policy and purpose of the statute

conferring the authority and the duties of the officer to whom it

was given: it may not be exercised for the promotion of some end

foreign to that policy and purpose or those duties. However, that

general proposition is irrelevant in this case. Here the scope

of the permission or power given is circumscribed. Conditions

precedent for its exercise are specified as alternatives. The

question then is, must the permitted power be exercised if one of

those conditions be fulfilled?

This does not depend on the abstract meaning of the word "may" but

on whether the particular context of words and circumstance make

it not only an empowering word but indicate circumstances in which

the power is to be exercised - so that in those events the "may"

becomes a "must". Illustrative cases go back to 1663: R v Barlow

[1741] EngR 139; (1663) Carth 293 (90 ER 773) 2 Salk 609 (91 ER 516). Today it is

enough to cite Julius v Bishop of Oxford (1880) 5 App Cas 214; and

add in this Court Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at pp. 505-506.

But I select one other reference out of a multitude: Macdougall v

Paterson [1851] EngR 970; (1851) 11 CB 755 (138 ER 672). There Jervis CJ said in

the course of the argument (1851) 11 CB at p. 766 (138 ER at p677)

"The word 'may' is merely used to confer the authority: and the

authority must be exercised, if the circumstances are such as to

call for its exercise". And, giving judgment, he said (1851) 11

CB at p. 773 (138 ER at p. 679):

"We are of opinion that the word 'may' is not used to give a

discretion, but to confer a power upon the court and judges;

and that the exercise of such power depends, not upon the

discretion of the court or judge, but upon the proof of the

particular case out of which such power arises."

I consider that to be directly applicable to the present case. If

the Commissioner, having considered the matter, is satisfied of

facts out of which the power to allow a rebate arises, he cannot

nevertheless refuse to allow it."

25. See also Bowling v General Motors-Holden's Pty Ltd [1980] FCA 143; (1980) 50 FLR 79 at pp. 90-95.

26. In the present case, on its proper construction, the use of the words "the person ... may be taken into custody by an officer and kept in such custody" in subsection 89(2) of the Migration Act are to be construed as conferring an authority on the officer, where the conditions precedent are established, to take the person into custody and this authority must be exercised when the conditions precedent are established. This arises from the words of s89 in their context in the Migration Act.

27. Counsel did not, in reality, dispute this construction but contended that the authority to keep the appellant in custody could be brought to an end by events other than those specified in subsection 89(2), namely the removal of the appellant from Australia or the granting to him of a valid entry permit. It was further contended that the Minister had a discretion to release the appellant from custody before either of those events occurred, that the Minister could create a factual situation to enable him to release the appellant under other provisions of the Migration Act and that, in any event, s89 may be incompatible with international Conventions. It is proposed to deal with each of these contentions separately.

28. Whether the power to retain the Appellant in custody has been terminated

29. Under this heading, counsel for the appellant submitted that, having regard to the nature of the power to hold in detention as contained in subsection 89(2) of the Migration Act, the period of detention was to have limited effect. He submitted that the power was for a specific purpose, namely to hold in custody until the person was removed from Australia or a valid entry permit was granted. On any view, so it was argued, on the facts of this case, that limited time had expired and therefore the continued detention was unlawful. It was argued further that the application made on 6 August 1992 by the appellant for refugee status or the undertaking given on behalf of the Minister on 27 May 1993 not to remove the appellant from Australia pending the determination of the Western Australia proceedings made the continued detention of the appellant unlawful.

30. On the first of these two arguments, counsel referred to the heading to s89 namely "Custody of certain persons during stay of aircraft in Australia". Under subsection 13(3) of the Acts Interpretation Act 1901, a headnote to a section of an Act is not to be taken to be part of the Act. Thus, the Court cannot treat the headnote to s89 as a part of the Migration Act. In any event, that heading appeared before s89 was amended with effect from 26 June 1991 by Act No 86 of 1991. After that date, another event was inserted which could terminate the power to keep in custody a person coming within subsection 89(2), namely, the granting of an entry permit. In these circumstances, the heading is misleading.

31. In Kirakos v. Minister for Immigration, Local Government and Ethnic Affairs (16th October 1990, unreported), Gray J expressed the view that:

" ... the powers in s. 89(1), (2) and (3) are exercisable pending

removal from Australia in accordance with a notice served under

sub-s. (4). Those powers cannot be construed as powers to detain

a person in custody indefinitely. If no notice is served pursuant

to sub-s. (4) within forty-eight hours after a person is taken

into custody, there is no possibility of removal from Australia in

accordance with that sub-section. The right to keep a person in

custody under sub-s. (1), (2) or (3) must then cease and the

custody must become unlawful, unless it can be justified by

reference to some other provision."

32. That view was expressed in relation to s. 89 in the form in which it stood prior to the amendments made by Act no. 86 of 1991. One of the purposes of those amendments appears to have been to make it clear that that view should no longer be accepted. In his second reading speech on the bill which became Act no. 86 of 1991, the then Minister for Immigration, Local Government and Ethnic Affairs said (Hansard, House of Representatives, 17th April 1991, pp. 2847-2848):

"I have mentioned section 89 of the Act - the turn around

provision which primarily deals with persons who arrive

undocumented by air. This section has been amended to make it

clear that its notice provision in relation to carriers is not

incorrectly linked to the ability to remove and keep in custody

persons who are not allowed to enter Australia. The notice

provision in section 89 - as in the comparable new processing area

provisions - was only intended to render the carrier liable for

the costs of removing the person and the custody and maintenance

of the person while awaiting removal."

33. If there were any ambiguity about the extent of the power to detain in subs 89(2) after its amendment by Act no. 86 of 1991, the history of amendment to overcome the view expressed in Kirakos and the expression of the Minister's intention resolve that ambiguity in favour of the view that the power to detain is not limited in time by reference to the exercise of the power to compel a carrier to remove the person detained from Australia. It is a power limited in time only by the events specified, namely removal from Australia or grant of an entry permit.

34. In the present case, the appellant is seeking refugee status. Time is required to enable that application to be processed. Time has been extended as a result of the appellant's actions. Long delays may result. This cannot affect the validity of the power to keep the appellant in custody. For similar reasons, the giving of the undertaking by the Minister cannot affect the validity of the custody of the appellant. There is no suggestion that the Minister is not performing his duties under the Migration Act with respect to the application. There is no suggestion that legal proceedings should be commenced to compel the Minister to perform his duties.

35. Counsel relied upon the authority of Lim (above). That case was very different from the present one. There, the power to hold in custody arose under s88 of the Migration Act before it was amended by Act No 86 of 1991. Other amendments to the Migration Act were relied upon. There, once the particular vessel had departed from Australia, it was held that the provisions of subsections 88(1) and (2) had run their course and the person could no longer lawfully be held in custody pursuant to them. No such impossibility can apply with respect to s89(2) where the person being held in custody is seeking a valid entry permit.

36. Counsel referred also to other amendments to the Migration Act, being Division 4A and Division 4B of Part 2. These relate to particular factual situations not applicable to the present appeal. If anything, the provisions appear to be adverse to the appellant but no reliance is placed upon them.

37. Counsel referred to the use of the word "may" in the appropriate part of s89(2) of the Migration Act and contended that this conferred a discretion on an officer to release the appellant from custody pending the determination of the application for refugee status.

38. Once properly taken into custody under subs 89(2), a person must be kept in custody until one of the events specified in the subsection occurs. Those events are the removal of the person from Australia or the granting of an entry permit.

39. If a person who being held in custody escapes from custody, that person may be arrested pursuant to the powers conferred by subsection 89(8A) and be returned to custody. This is a power separate and distinct from the power conferred on officers to arrest illegal entrants. The latter power is conferred by s92; see s93 with respect to deportees. Under these sections, specific power is conferred to enable an illegal entrant or deportee to be released, if need be, on conditions. Counsel for the appellant contended a similar power should be implied under s89, otherwise an anomaly would arise between the powers conferred by s89 on the one hand and sections 92 and 93 on the other.

40. This submission is rejected. The sections contain their own codes. The code contained in one cannot be implied into the other. The function of s89 has been discussed earlier. If the applicant were to be released from custody, one of two possible consequences would follow. He might still be taken not to have entered Australia, by virtue of subs 89(8). Compare the view expressed by Burchett J in Singthong v. Minister for Immigration and Ethnic Affairs (1988) 80 ALR 147, especially at pp. 156-158, in relation to earlier provisions. If that were the case, none of the provisions of the Migration Act would apply to the applicant. Alternatively, if the applicant did enter Australia, he would do so as an illegal entrant and would commit a criminal offence; see para. 77(1)(c) of the Migration Act. A construction which would produce either of these consequences is to be avoided if possible. It would not be a proper exercise of the powers conferred by the Act for an officer to release a person held in custody so as to enable that person to enter Australia as an illegal entrant so that the person could be arrested under the powers conferred by s92 and then be released from custody pursuant to the powers contained in that section. It is equally fanciful to suggest that an officer, in the valid exercise of powers, should grant an entry permit to such a person to enable that person lawfully to enter Australia, then cancel the entry permit, arrest the person as a illegal entrant and release the person under the powers conferred by s92.

41. Finally, counsel sought to rely upon the provisions of certain international Conventions. These arguments were not put before the trial Judge. Reference was made to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol relating to the Status of Refugees done at New York on 31 January 1967. The Convention and Protocol are referred to in subsection 4(1) of the Migration Act in relation to the meaning to be given to the word "refugee" used in the Act. This is relevant to the application of the appellant for refugee status under Division 1AA of Part 2 of the Migration Act. The Convention and Protocol do not assist the appellant in this appeal.

42. Reference was made also to Article 9, clause 1 of the International Convention on Civil and Political Rights. This Convention appears as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986. That clause reads:

"1. Everyone has the right to liberty and security of person.

No one shall be subjected to arbitrary arrest or detention.

No one shall be deprived of his liberty except on such

grounds and in accordance with such procedure as are

established by law."

43. It was contended that this supported the view that s89 should be construed as authorizing a minimum period of detention only and authorizing, where necessary, the implication of a power of release from custody pending the determination of the application for refugee status.

44. This contention is rejected. If anything, s89 of the Migration Act is supported by the clause referred to earlier. The appellant has been deprived of his liberty on the grounds and in accordance with procedures established by law. The period of custody has been extended by the processes followed in determining the application by the appellant for refugee status. The appellant is able to pursue his application. The Migration Act does not, expressly or by implication, authorise the release of the appellant from custody except on the occurrence of one of the events mentioned in subsection 89(2).