Vilbert Bet Khoshabeh v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1158;

Vilbert Bet Khoshabeh v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1158; - FCA 1994 case summary — Zoe

[16]

"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) ... "

[34]

"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."

[39]

"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."

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Vilbert Bet Khoshabeh v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1158; (1994) 122 ALR 453 (15 June 1994)

Parties

Legislation Cited (2)

Cases Cited (9)