Vo, Kiet Tuan v Minister for Immigration & Multicultural Affairs [1998] FCA 1632

Federal Court of Australia|1998-06-17|Before: Lehane J, Lindgren J

INTRODUCTION The applicant ("Mr Vo"), applies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) for review of a decision which, according to his amended application, was "made in a letter dated 17 June 1998" from the delegate of the respondent ("the Minister") to the Assistant Operations Manager, Metropolitan Remand and Reception Centre ("MRRC"). According to the amended application, the decision was one pursuant to s 254 of the Migration Act 1958 ("Cth") ("the Act") that Mr Vo was to be kept in immigration detention from a time when he would otherwise have been entitled to be released from custody. Mr Peek, solicitor of the Australian Government Solicitor's office, who appeared for the Minister, pointed out that it was not clear what decision was sought to be attacked. Two decisions were made by the Minister's delegate on 29 May 1998 and were implemented on 18 June 1998. One was a decision under s 253 (1) of the Act that Mr Vo be detained and the other was a decision that under s 253 (8) of the Act that he not be transferred to the Immigration Detention Centre. In favour of Mr Vo, and notwithstanding the reference to s 254 in his amended application, I will treat that amended application as attacking both of those decisions under s 253 (1) and s 253 (8) respectively. The next problem is that the present proceeding, which was launched on 28 August 1998 was brought outside the twenty-eight day period allowed by s 11 of the ADJR Act. The Minister has fairly indicated, through Mr Peek, that he does not object to an extension of time and I will make an order extending the time to 28 August 1998. There is authority for the proposition that the Court has jurisdiction under the ADJR Act to review a decision under s 253; see Tuiletufuga v Minister for Immigration and Multicultural Affairs (unreported, Lehane J, 19 August 1998). BACKGROUND FACTS I will set out the background facts in chronological order. Mr Vo arrived in Australia under the Indo Chinese Refugee Program on 26 May 1983 when he was sixteen years of age. He attended school in Sydney for less than a year. Since then, he has spent much of his life in prison. On 20 August 1997, the Minister's delegate made an order under s 200 of the Act for the deportation of Mr Vo. Section 200 provides that the Minister may order the deportation of a non-citizen to whom Div 9 of Pt 2 of the Act applies. The order recited that Mr Vo was not an Australian citizen and was convicted at Parramatta District Court on 30 June 1994 of armed robbery for which he was sentenced to a minimum term of imprisonment of four years with an additional term of three years. This made Mr Vo a person to whom Div 9 of Pt 2 of the Act applied. The deportation order was simply an order that Mr Vo be deported from Australia. Mr Vo applied to the Administrative Appeals Tribunal ("AAT") for review of the decision to make the deportation order and on 5 March 1998 the AAT affirmed the decision of the Minister's delegate. On 20 April 1998, Mr Vo applied to this Court for review of the AAT decision. However, he was out of time and needed an extension which, as I will shortly note, was refused. On 29 May 1998, the decisions with which I am presently concerned were made. According to a minute of the Department of Immigration and Multicultural Affairs ("the Department"), the Minister's delegate considered whether, following expiry of the term of his imprisonment, Mr Vo as a deportee should, pending his deportation, be detained pursuant to s 253 of the Act or released into the community. The term of Mr Vo's imprisonment expired on 18 June 1998. Subsection 253 (1) and (2) provide: "(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) ... may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8)." Section 253 (8) provides that a "deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs" pending deportation. Section 253 (9) provides that in spite of anything else in s 253, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under s 253. The expression "immigration detention" is defined in s 5 of the Act to mean, inter alia, being held by an "officer" in a prison of a State. The expression "officer" is defined in the same section to mean, relevantly, an officer of the Department. The decisions taken on 29 May 1998 were, for reasons set out in the minute, that Mr Vo be detained pursuant to s 253 and that he not be released into the community but be kept in immigration detention. The Minister's delegate wrote the following note on the minute when taking the decisions: "Mr Vo clearly should not be released to the community based on the offences committed, previous warning, behaviour in prison and risk of not being available for deportation. Similarly, the IDC is not a suitable place of detention for a person with Mr Vo's history of criminal activities." On 5 June Wilcox J refused Mr Vo's application for an extension of time in which to reply for review of the AAT's decision, on the ground that the application lacked any prospect of success. The result was that the deportation order remained in force. On or about 9 June, Mr Vo was "granted parole", apparently with effect on and from 18 June. On 17 June, the Minister's delegate wrote to the Assistant Operations Manager of the MRRC advising that Mr Vo was the subject of the deportation order and was due to be transferred from the John Moroney Correctional Centre to the MRRC that day, 17 June. The letter advised that Mr Vo's sentence was due to finish on Thursday 18 June and that an officer from the Department would attend at the gaol at about 9.00 am on 18 June to detain Mr Vo under s 253 of the Act so that he could remain at the gaol "in immigration detention". The letter advised that the Departmental officer would provide the necessary written direction under the Act for Mr Vo to be held in immigration detention. The letter then said: "Mr Vo will remain in immigration detention at a State facility until a travel document is obtained for his deportation to Vietnam. I would be grateful if you could advise this section in advance of any proposed transfer of Mr Vo to a gaol outside the metropolitan area." The following day, 18 June, Mr Dale of the Department attended at the MRRC and "detained" Mr Vo under s 253 of the Act. He explained to Mr Vo that his application to this Court had been dismissed. Mr Dale informed Mr Vo that he would continue to be detained until a Vietnamese travel document was in fact issued and would remain in a State facility as he was considered to be unsuitable for the Immigration Detention Centre. Apparently Mr Vo had, for some time, been refusing to sign papers to enable the Vietnamese Government to issue "travel papers" to enable him to be deported back to Vietnam, but on 18 June he signed such papers. This date assumes some significance since Mr Vo's complaint, to which I shall refer, is that he has been detained for an unreasonably long time after 18 June. But it is to be noted that the Australian Government's capacity to take the necessary steps to remove Mr Vo to Vietnam depended upon the issue of the travel documents and Mr Vo did not co-operate by signing the necessary documentation until 18 June. Mr Dale delivered to the Governor of the MRRC a written request that the Governor hold Mr Vo as a "deportee" on behalf of Mr Dale as an "officer", at the MRRC or any other New South Wales Department of Corrective Services facility, "a place of immigration detention", from 18 June. On 3 July, a Departmental officer spoke to Mr Vo at the MRRC. Mr Vo questioned why he was still in gaol, notwithstanding expiry of his term of imprisonment. On 21 July Mr Vo was transferred to the Metropolitan Medical Transit Centre at Long Bay Correctional Centre for a medical appointment, and the Department was informed of this the following day. After the need for medical services had passed, he was not transferred back to the MRRC because of overcrowding there. It seems to be undisputed that it is unsatisfactory that Mr Vo should be accommodated at Long Bay rather than at the MRRC. On 10 July, Mr Vo completed a document called "Inmate's Application" requesting to know what was happening under his deportation order. He wrote: "I would like to know what happened from my deportation order because I have done my time and I all ready get my parole so I'm not spouse to be in custody and now I want the answer from immigration soon imposible, please." (errors in original retained) In substance, Mr Vo was questioning how it could be that he continued to be detained having served out the period of imprisonment imposed on him for his crimes. On 11 August, the Department inquired regarding the transfer of Mr Vo from Long Bay back to the MRRC. On 28 August, Mr Vo filed his application for review in this Court. However, since he later filed an amended application on 22 October, I will defer discussing the nature of his application until I discuss that document below in chronological sequence. According to a Departmental minute, on 1 September, the Minister's delegate reviewed the question of Mr Vo's continued detention. The minute recorded that arrangements were being made for the issue of a travel document in order to effect Mr Vo's deportation. The minute stated: "Taking into account the previous detention submission addressing the question of Mr Vo's custody and decision regarding his unsuitability for transfer to the IDC [Immigration Detention Centre], it is submitted that Mr Vo is still considered unsuitable for release into the community and that his current custody arrangements be maintained. The question of Mr Vo's continued custody will be reviewed on a regular basis." The recommendation was that Mr Vo continue to be detained, not at the Immigration Detention Centre, but in a State facility. The Minister's delegate made the following note, when adopting the recommendation: "Little has changed since my earlier decision. In fact, given that the Federal Court has affirmed the decision to deport, I do not believe that there would be an incentive for Mr Vo to make himself available for deportation, should he be released into the community." On 16 October, Mr Vo, still no doubt wondering what was happening in relation to his deportation, wrote to the Australian Government Solicitor a letter which, omitting formal parts, read as follows: "I request a copy by way of informal discovery of all documents held by the Department of Immigration and Multicultural Affairs and any other Departments such as the Department of Foreign Affairs and Trade concerning my deportation and negotiations with the Vietnamese Government." On 21 October, the Australian Government Solicitor replied forwarding to Mr Vo a "Bundle of Relevant Documents" for use on the hearing of the present proceeding, a copy of the Minister's outline of submissions and list of authorities, and a copy of a recent unreported case. The letter stated that the Minister would not agree to produce the documents Mr Vo had requested in relation to dealings with the Vietnamese Government by way of informal discovery as they were not relevant to the case currently before the Court. The Australian Government Solicitor advised Mr Vo that if he wished to pursue "general access" to those documents, he might consider replying to the Department under the Freedom of Information Act 1982 (Cth) ("the FOI Act"). On 22 October, Mr Vo filed his amended application to which I shall shortly refer. On the same day, he made a formal request to the Department for access to documents under the FOI Act. I do not know what has transpired in that regard. On 30 November, the Department sent a facsimile transmission to the "Long Bay Classifications Unit" pointing out that Mr Vo was still held at the Metropolitan Medical Transit Centre Long Bay in immigration detention pending his deportation from Australia. The Department requested that Mr Vo be transferred back to the MRRC. On 3 December, an officer of the Department attended at the Long Bay Classifications Unit and was advised that it was expected that Mr Vo would be transferred back to the MRRC some time in the following week.

REASONING By his amended application Mr Vo sets out the following grounds of his application for an order of review: "1. The delegate failed to give proper weight to the length of time the Applicant would face in detention waiting for the deportation order to be carried out. PARTICULARS (a) The Applicant is faced with an indefinite period in detention because the Respondent is unable to remove the Applicant from Australia due to an unreasonable delay in negotiations with the Vietnamese Government. Thus, the balance of convenience favours the release of the Applicant subject to parole conditions whilst negotiations continue. 3. The delegate failed to give proper weight to the hardship the Applicant would face in detention waiting for the deportation order to be carried out. (a) The Applicant has a minimum security classification of C1 but by being detained in immigration detention at the prison he was thereafter transferred to a maximum security section. 4. The Applicant [sic - delegate] failed to give proper weight to the fact that the Applicant has been granted parole which came into effect on 18 June 1998. 5. The decision to detain the Applicant was so unreasonable that no reasonable person could have so exercised the power. PARTICULARS (a) The Applicant is faced with an indefinite period in maximum security detention because the Respondent is unable to remove the Applicant from Australia due to an unreasonable delay in negotiations with the Vietnamese Government." Mr Peek has very fairly sought to place these grounds in the various categories of ground provided for in the ADJR Act, such as that the decisions were not authorised by the Act, that they involved errors of law, and that the decision-maker failed to take into account relevant considerations: cf s 5 (1) (d) (e) and (f) and (2) (b) of the ADJR Act. I have studied the Departmental minute relating to the two decisions taken by the delegate on 29 May and do not think that any ground of review provided for in s 5 (1) of the ADJR Act is made out on the evidence. It is important to appreciate that the two decisions in question have to be looked at as at 29 May when they were made, although, of course it is appropriate to have regard to matters that should have been foreseeable to the decision-maker at that time.

That decisions not authorised by the Act/that decisions involved an error of law (s 5 (1) (d) and (f) of ADJR Act)

Not thinking that his Honour was plainly wrong, I follow Lehane J's holding in Tuiletufuga v Minister for Immigration and Ethnic Affairs (unreported, 2 October 1998) that s 253 (1) of the Act is a source of general power to detain a deportee, whether or not the deportee was in State custody at the time of exercise of the power. It follows that s 253 (2) and (8) gave power as to the permissible forms of detention.

Accordingly, the decision made on 29 May 1998 to detain Mr Vo and the decision made on the same date to keep him in immigration detention but not at the Immigration Detention Centre, were both authorised by the Act and were not affected by error of law.

That the decisions failed to take into account relevant considerations (s 5 (1) (e) and (2) (b) of ADJR Act)

Whether a consideration is "relevant" and, if so, whether a decision-maker was bound to take it into account, and, if so, whether a failure to do so will vitiate the decision, are matters to be determined in the light of the construction and purpose of the enactment under which the decision is made; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. The purpose of s 253 is to provide in the public interest a means by which deportees may be detained pending deportation in effectuation of a deportation order.

Mr Vo's amended application can be analysed as identifying various considerations which he says the Minister should have taken into account. Because I accept Mr Peek's submissions in respect of the various considerations pointed to by Mr Vo, I am able to deal with this aspect of the case by adopting those submissions in paraphrased form as follows:

A. Mr Vo's relationship with his siblings and daughter The decision-maker accepted that these personal considerations to the applicant were relevant. The Departmental minute acknowledged that the applicant "ha[d] a daughter, two brothers and one sister in Australia", but noted: "He has no contact with his daughter and did not want his siblings to be interviewed by the Department…".

The minute also referred to a Probation and Parole Service Report which "indicate[d] that Mr Vo ha[d] not received any visits from family or friends since the last report and ha[d] minimal telephone contact with his sister in Sydney." When interviewed by the Department in relation to his deportation order on 27 June 1997, Mr Vo indicated that he had not seen his twelve year old daughter for six years following the breakdown of his de facto relationship and that he did not have custody of, or access to her. Mr Vo's relationship with his daughter was not such that the United Nations Convention on the Rights of the Child made her interests a primary consideration in accordance with the principle recognised in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. I note in passing that even if it had been of that character, it would not, of course, necessarily have followed that a decision-maker taking this approach would have concluded that her interests were best served by releasing Mr Vo pending his deportation in order to pursue establishing a relationship with her after so long. Mr Vo has not provided any evidence in support of his present submission, and would not permit his siblings to be interviewed by the Department. In the circumstances, the decision-maker adequately took into account the present consideration.

B. Mr Vo's links to the community This was also a matter which the decision-maker acknowledged as relevant and took into account. The decision-maker concluded, however, that Mr Vo's ties to the community were negligible. The decision-maker had regard to the fact that for the preceding eleven years Mr Vo had only spent a total of some sixteen months in the community due to periods of incarceration. In these circumstances, the decision-maker concluded that other factors outweighed any persuasive force in the consideration of Mr Vo's links with the community.

C. That Mr Vo will be deprived of the opportunity to seek employment This flows, to some extent, from the consideration of Mr Vo's links to the community. The only indication of any prospects of employment was referral to an employment agency through the Parole Service. D. That Mr Vo has been granted parole which will be subject to conditions The issue whether a person will present for deportation if released, or abide by any conditions imposed, involves a consideration of factors different from those relevant to parole. In his interview with the Department, Mr Vo indicated that he proposed to go to Queensland if released. The decision-maker also had regard to his expressed reluctance to return to Vietnam and his refusal for a time to seek appropriate Vietnamese travel documents. It was well within the decision-maker's contemplation that Mr Vo would be released subject to parole. Regard was had to this consideration. It was open to the decision-maker to conclude that Mr Vo might abscond despite any conditions of his parole. E. Mr Vo's prospects of rehabilitation The nature of the deportation order against Mr Vo and his criminal and prison history were all considered by the decision-maker. The decision-maker appears to have given particular significance to the fact that Mr Vo re-offended after being given a warning by the Minister on 20 May 1993. So far as this was a relevant consideration, it was taken into account by the decision-maker.

GENERAL For the above reasons, in my opinion the application should be dismissed with costs. I should go on to refer to a third decision to which Mr Peek referred. This was a decision taken on 1 September on the review of Mr Vo's detention and place of detention. I am not prepared to treat Mr Vo's present application as an application for review of that decision. It is one thing to extend the time for the making by Mr Vo of his application and to reconstruct it for him so that it attacks the two decisions made on 29 May. It is altogether another thing to treat it as challenging, on grounds not identified, a decision which it does not mention and which was made at a time subsequent to the commencement of the proceeding. Having said this, I should record that there are some aspects of Mr Vo's position which give me cause for concern. Apparently, unless and until the Minister revokes the deportation order, it remains valid and the Minister is entitled to keep Mr Vo in immigration detention pending his deportation; see Tam v Minister for Immigration, Local Government & Ethnic Affairs (1989) 87 ALR 373 (FCA/Gummow J) at 380. Because Mr Vo is not legally represented the question of his continued detention may not come properly before a Court. With the benefit of professional legal advice and representation, Mr Vo might apply for review of the decision of 1 September and the Minister, if he so saw fit, might not object to the lateness of such an application. Again, Mr Vo might apply for an order of release under s 253 (9) and if an adverse decision were given, apply for judicial review of that decision. Yet again, Mr Vo might apply for revocation of the deportation order and if this were refused, apply for judicial review of that decision. None of these matters have been the subject of argument before me and I express no opinion on them. What is important is that Mr Vo have the benefit of legal advice and representation in relation to such matters so that, if he be advised accordingly, the question of his ongoing detention can be brought before the Court in a properly structured manner. Another aspect of the matter which concerns me is that I have no idea as to what has happened in relation to the application under the FOI Act. I accept readily the cogency of the argument that if Mr Vo were to be released, he would be unlikely to present himself for deportation. On the other hand, there may come a time when, and there may be circumstances in which, it would not be a sustainable exercise of discretion to keep Mr Vo in detention any longer. It may be desirable for Mr Vo to apply for legal assistance under the pro bono scheme operated by the New South Wales Bar Association or the Law Society of New South Wales.

CONCLUSION The orders of the Court are that: 1. The time within which an application may be made for review of the decisions of the respondent's delegate made on 29 May 1998, of which the applicant was advised on 18 June 1998, be extended to 28 August 1998. 2. The application be dismissed. 3. The applicant pay the respondent's costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 16 December The Applicant appeared in person

Solicitor for the Respondent: Mr G Peek of The Australian Government Solicitor

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