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IMMIGRATION – deportation – immigration detention pending deportation – length of detention – failure to take steps to effect removal of deportee from Australia – largely referable to deportee’s legal challenges – period of inactivity for six months unrelated to legal proceedings – whether inactivity evidences want of proper purpose for continuing detention – onus of proof – whether onus upon Minister to justify detention – power to detain – whether implied limitation – whether limited to period reasonably necessary to effect deportation – effect of previous Full Court decision – no such implied limitation – appeal dismissed

Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] F

Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15 (5 February 2004)
Last Updated: 5 February 2004

FEDERAL COURT OF AUSTRALIA
Te v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 15


IMMIGRATION – deportation – immigration detention pending deportation – length of detention – failure to take steps to effect removal of deportee from Australia – largely referable to deportee’s legal challenges – period of inactivity for six months unrelated to legal proceedings – whether inactivity evidences want of proper purpose for continuing detention – onus of proof – whether onus upon Minister to justify detention – power to detain – whether implied limitation – whether limited to period reasonably necessary to effect deportation – effect of previous Full Court decision – no such implied limitation – appeal dismissed

CROSS APPEAL – costs – discretion to award costs – application for habeas corpus – whether principle that costs not to be awarded against unsuccessful applicant – discretion – not fettered by rule – liberty of subject – relevant consideration – award of costs against unsuccessful applicant


Migration Act 1958 (Cth) s 200, s 253(8), s 253(9), s 206
Federal Court of Australia Act 1976 (Cth) s 43

Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 followed
Meng Kok Te v Minister for Immigration and Ethnic Affairs [1998] FCA 1339 cited
Meng Kok Te v Minister for Immigration and Ethnic Affairs [1999) FCA 111 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 193 ALR 37 cited
Koon Wing Lau v Calwell (1949) 80 CLR 533 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 cited
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 cited
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 cited
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
O’Sullivan v Farrer (1989) 168 CLR 210 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 referred to
Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637 referred to
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 referred to
Perez v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 619 cited
Luu v Minister for Immigration and Multicultural Affairs (2002) 197 ALR 433 referred to
Truong v Manager, Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 cited
R v Hardial Singh [1984] 1 WLR 704 cited
Lam v Tai A Chau Detention Centre [1997] AC 97 cited
Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 referred to
Cabal v United Mexican States (No 6) (2000) 174 ALR 747 referred to
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 referred to

Clark and McCoy, Habeas Corpus – Australia, New Zealand The South Pacific, Federation Press (2000) at 249

MENG KOK TE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V570 OF 2003

FRENCH, SACKVILLE AND HELY JJ
SYDNEY (HEARD IN MELBOURNE)
5 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V570 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MENG KOK TE
APPELLANT
AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: FRENCH, SACKVILLE AND HELY JJ
DATE OF ORDER: 5 FEBRUARY 2004
WHERE MADE: SYDNEY (HEARD IN MELBOURNE)


THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The cross-appeal be allowed.

3. The appellant is to pay the respondent’s costs of the appeal and of the application.











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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V570 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MENG KOK TE
APPELLANT
AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES FRENCH, SACKVILLE AND HELY JJ
DATE: 5 FEBRUARY 2004
PLACE: SYDNEY (HEARD IN MELBOURNE)


REASONS FOR JUDGMENT

THE COURT:
Introduction

1 Meng Kok Te was born in Cambodia in 1967 and came to Australia as a refugee in 1983 at the age of 16. He was granted a permanent resident visa. In 1992, he was sentenced to twelve months imprisonment, three months of which was suspended, for trafficking in heroin. In 1996, he was sentenced to seven years imprisonment, again for trafficking in heroin. A deportation order was made against him on 10 July 1998, relying upon the conviction and sentence imposed in 1992. He was transferred into immigration detention in August 1998. He challenged the deportation order made against him by proceedings in the Administrative Appeals Tribunal (AAT) and by way of judicial review in the Federal Court at first instance and on appeal. He also took action in the High Court challenging the constitutional validity of the order. In all of these proceedings he was unsuccessful.

2 In April 2003, Mr Te commenced new proceedings in the High Court challenging the validity of his ongoing detention. He sought orders nisi for writs of habeas corpus, prohibition and mandamus and for a declaration and injunctive relief. The High Court remitted his application to the Federal Court.

3 On 2 July 2003, Gray J dismissed his application. In so doing he declined to award costs in favour of the Minister for Immigration and Multicultural and Indigenous Affairs who was the respondent to the proceedings. In the proceedings before Gray J Mr Te alleged, in substance, that the length of his detention, and in particular the inactivity of the Department in procuring his removal to Cambodia indicated that his continuing detention was not for any lawful purpose and that he should be released. In addition he argued that a person can only be held pending deportation for the period reasonably necessary to effect deportation. He argued that that reasonable period had expired prior to May 2001.

4 Mr Te now appeals against the decision of Gray J. For the reasons which follow we are of the view that neither of his principal contentions can be sustained. The second is directly contrary to a decision of the Full Court of the Federal Court in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371.

5 The Minister cross-appeals against the learned primary judge’s refusal to make an order for the costs of the application in his favour. We are of the view that his Honour’s discretion in that respect miscarried and that an order for costs in favour of the Minister ought to have been made at first instance.

Factual History

6 Meng Kok Te is a national of Cambodia. He was born in Phnom Penh on 7 April 1967. As appears from a decision of the AAT made on 22 September 2000, he had only two years of schooling in Cambodia. When he was 7 or 8 years of age the Khmer Rouge Regime came to power. It closed the schools. Mr Te and his family were forced to leave Phnom Penh. Initially he remained living with his family in the countryside but was removed and put to work as a farm labourer. Following the fall of the Khmer Rouge in about 1979, he was reunited with his family for a few months. They were again separated when his parents sent him to the border of Thailand and Cambodia to trade items to assist with the family’s survival. He was unable to return home because of continued fighting involving the Khmer Rouge at the Thai border and remained at a border camp there before being moved to a refugee camp in Thailand. He spent three years in the camp before his arrival in Australia.

7 Following his arrival Mr Te spent two months at a hostel in Melbourne and then went to live with his uncle. He attended school in Melbourne for two years. At the end of that time he moved out of his uncle’s house and obtained employment for two months at a shoe factory in Collingwood. He then worked at Repco for twelve months, followed by four months at another factory, then two years doing deliveries for a clothing company until 1987 when he was involved in a serious car accident. Following the accident he did not work again until 1990 when he obtained part-time employment as a waiter for about four months and for two months as a fruit picker. On 13 June 1992, he married Bich Viet Huong Tran who is a Vietnamese national. They were married on her eighteenth birthday.

8 In the period between July 1987 and May 1996 Mr Te was convicted of a number of offences including drug related offences. On 15 June 1992, he was convicted at the Melbourne Magistrates Court on two counts of possession of a drug of dependency and one count of trafficking in a drug of dependency. He was sentenced to twelve months imprisonment. That sentence was varied on appeal to the County Court of Victoria on 16 September 1992 so that three months of the twelve-month term was suspended.

9 The circumstances of the commission of the offence for which Mr Te was sentenced in 1992 are set out in the reasons for decision of the AAT on 22 September 2000. As appears from the recital of facts in that decision he was arrested in an undercover police drug squad operation on 5 June 1991 and found to be in possession of $6,700 in marked notes. He had obtained the money after supplying to two other persons approximately 14 grams of 80% pure heroin while under police surveillance. Following his arrest a police search of his home discovered approximately 40 grams of 30% pure heroin, which he admitted he intended to sell. He made admissions that he had trafficked in heroin for the previous five months. He told police that he would normally purchase 7 grams of the drug then sell a portion of it to support his own addiction to smoking heroin. He had sold it to a friend of his age who was an addict and did not sell it to anyone else.

10 Mr Te was released from custody in November 1992 and recommenced residing with his wife. However, following a further police undercover operation, he was again taken into custody on 23 September 1993 and charged with trafficking in heroin. It appears that his trial did not take place until 1996. He was found guilty of one count of trafficking in heroin between 15 June 1993 and 16 September 1993. He was sentenced on 29 May 1996 to seven years imprisonment with a non-parole period of five years. An application for leave to appeal against that conviction was dismissed by the Court of Appeal on 30 October 1997. The trial judge calculated that over the relevant three-month period, 203 grams of heroin of between 38.7% and 76.6% purity were trafficked by Mr Te for a total price of $124,000. The judge said that the street value of the heroin would substantially exceed its selling price and characterised Mr Te as a wholesaler or a commission wholesaler of heroin during the relevant period.

11 Mr Te and his wife separated in September 1993 and were divorced in October 1996. According to the AAT she divorced him because she was concerned about the effect of his offences on her residency in Australia. She became an Australian citizen on 2 October 1997 and apparently wished to resume the relationship with him.

12 On 28 May 1998, Mr Te was sent a letter by the Department of Immigration and Multicultural Affairs advising that he was liable to deportation. He was subsequently interviewed by an officer of the Department. On 10 July 1998, a delegate of the Minister signed a deportation order under s 200 of the Migration Act 1958 (Cth). The order was in the following terms:

‘WHEREAS MENG KOK TE, AKA MENG K TE, AKA MENGKOK KOK TE AKA MENGKOK TE AKA MENP KOK TE is a non-citizen who arrived in Australia on the seventh day of July 1983.

AND WHEREAS the said MENG KOK TE was convicted at the Melbourne Magistrates’ County of Victoria, Melbourne, on the sixteenth day of September 1992 of an offence namely Traffick in a Drug of Dependence (one count) which was committed on the fifth day of June 1991, and for which he was sentenced to a term of imprisonment of twelve months of which three months was suspended for twelve months.

AND WHEREAS at the time of the commission of the said offence the said MENG KOK TE was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less than ten years.

NOW I, EDWARD VICTOR KILLESTEYN a delegate of the Minister responsible for administering the Migration Act 1958, DO HEREBY ORDER, in pursuance of the power conferred upon me by section 200 of the Migration Act 1958, that the said MENG KOK TE be deported from Australia.

Dated this 10th day of July 1998
Edward Victor KILLESTEYN’

13 As appears from the order, the offence relied upon to support it was the first conviction of trafficking in respect of which Mr Te was sentenced in June 1992. At the time of his conviction and sentence he had been in Australia for a period of less than ten years. The term of imprisonment for which he was sentenced was for a period of not less than one year and so attracted the application of s 201 of the Migration Act.

14 On 6 August 1998, Mr Te made an application to the AAT for review of the decision to deport him. He also sought judicial review of the decision in the Federal Court by an application filed on 15 September 1998. That application was dismissed by Branson J on 16 October 1998 – Meng Kok Te v Minister for Immigration and Ethnic Affairs [1998] FCA 1339 and the appeal from that decision was dismissed on 23 February 1999 – Meng Kok Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111. The application and appeal were based upon the argument that Mr Te, having had three months of his twelve-month term of imprisonment suspended, had not been sentenced ‘for a period of not less than 1 year’ and so did not attract the application of s 201.

15 On 16 August 1998, Mr Te became eligible for parole in relation to the sentence imposed in 1996. However, a direction was made pursuant to s 253(8) of the Migration Act that he be kept in detention, initially in the Port Phillip Prison in which he had served his sentence. He has been in detention since that time. On 2 January 2002, he was transferred from the Port Phillip Prison to immigration detention at the Maribyrnong Detention Centre.

16 Mr Te’s application for review to the AAT was heard on 31 July and 1 August 2000. On 22 September 2000, Deputy President BM Forrest affirmed the decision to deport him. On 21 March 2001, Mr Te commenced proceedings in the original jurisdiction of the High Court challenging the validity of the deportation order on the ground that s 200 of the Migration Act could have no constitutionally valid application to him. He argued that he had ceased to be an alien for the purposes of the legislative power with respect to aliens in s 51(xix) of the Constitution. That application was dismissed by the High Court on 7 November 2002 – Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 193 ALR 37.

17 No steps were taken under the deportation order until after the commencement of the High Court proceedings in 2001. In May 2001, an officer of the Department of Immigration and Multicultural Affairs made contact with the Australian Embassy in Phnom Penh seeking assistance in obtaining a travel document for Mr Te. The Embassy was unable to assist. Following this the Cambodian Embassy in Australia advised the Department that it would only issue short validity travel documents to facilitate entry to Cambodia. Having regard to the pending High Court proceedings no further action was taken to obtain a travel document for Mr Te at that time.

18 A Memorandum of Understanding (MOU) was signed between the Government of Australia and the Government of the Kingdom of Cambodia on 4 March 2002. The MOU concerned mutual cooperation in combating irregular migration, people smuggling and trafficking. It was not produced before the trial judge in these proceedings as there was a disputed claim for public interest immunity. It was agreed however that the MOU includes a clause in relation to the return of irregular migrants, which covers deportees. It does not include requirements for the provision of information prior to the issue of travel documents. Those requirements are independently imposed by Cambodian authorities.

19 On 7 November 2002, when the High Court dismissed Mr Te’s application challenging the validity of the deportation order, his solicitors wrote to the Australian Government Solicitor asking for information as to when he would be released or returned to Cambodia. They did not receive a reply and wrote again on 26 November 2002. They asked that if it were not possible to deport Mr Te from Australia imminently, the matter be referred to the Minister to reconsider his decision or to permit Mr Te’s release pending deportation. The Australian Government Solicitor responded to that letter on 9 December 2002 saying that steps were being taken by the Department to deport Mr Te to Cambodia "as soon as possible". Mr Te was asked in that letter to cooperate and provide information being:

(a) details of identity documents, birth certificate, identity cards and passports;

(b) full names and dates of birth of parents and grandparents and place of origin of parents and grandparents;
(c) details of kin residing in Cambodia;
(d) details of kin residing outside Cambodia;
(e) last known address for Mr Te in Cambodia and former addresses in Cambodia;
(f) details of education, including names and location of schools and colleges;

(g) details of employment, including the name and address of the employer if any and other information that might assist to establish identity in Cambodia.

This letter was followed up on 13 January 2003. According to an AGS file note of that date, a solicitor employed by AGS telephoned Mr Te’s solicitor seeking a response to the letter of 9 December 2002. The solicitor was told that Mr Te’s solicitor had not had the opportunity to obtain instructions from his client and moreover that some of the information would be available on departmental files. On 17 January 2003, a departmental officer sent an application for a Cambodian travel document to Mr Te at the Maribyrnong Immigration Detention Centre. Mr Te refused to complete the application and advised the manager of the Centre that he intended to forward the application form to his lawyer.

20 On 12 March 2003, Mr Te’s solicitors wrote to AGS repeating their request that the Minister consider exercising his discretion to release the applicant from detention pending deportation. Two days later the Department provided a second application form for a Cambodian travel document. On 1 April 2003, Mr Te again refused to complete the application as he believed it was an application for a visa to enter Cambodia.

21 A further request to provide information was sent to Mr Te at the Maribyrnong Immigration Detention Centre on 3 April 2003. On 10 April 2003, he provided some information which was received by the Department on 11 April 2003. On 9 April 2003, Mr Te filed in the High Court an application for orders nisi for writs of habeas corpus, prohibition and mandamus and for a declaration and injunction.

22 On 22 April 2003, the Department sent a letter to Mr Te’s solicitors referring to previous requests to him to provide personal details and other information to assist in the process of obtaining travel documents from the Cambodian authorities in order to facilitate his deportation. The letter stated that to that date the only response from Mr Te was contained in a handwritten document which had been forwarded to the Department under a covering letter from his solicitors of 10 April 2003. The AGS letter alleged that Mr Te had not cooperated with attempts to make arrangements for his deportation and had deliberately withheld information within his personal knowledge in an attempt to frustrate the process of deportation.

23 For the purposes of the proceedings which had been commenced in the High Court, AGS requested Mr Te’s solicitors to admit that their client had not cooperated with attempts to make arrangements for his deportation. Absent such an admission, cross-examination of Mr Te was foreshadowed.

24 On 24 April 2003, the Department submitted a request to the Cambodian Embassy for the issue of a travel document based on available information about Mr Te. The response was a request from Cambodian authorities for consular access to Mr Te’s stepbrother who is an Australian resident in order that Cambodian authorities could conduct further identity checks. On 5 May 2003, Mr Te consented to the Department making contact with his stepbrother to arrange consular access by Cambodian authorities.

25 On 12 May 2003, Hayne J ordered that the application commenced in the High Court on 9 April be remitted to the Federal Court of Australia, Victoria District Registry and that the application proceed in the Federal Court as if steps already taken in the matter in the High Court had been taken in the Federal Court.

26 On 12 May 2003, Goldberg J made orders nisi (misdated 12 June 2003 as extracted) requiring the Minister to show cause why habeas corpus, a declaration and a writ of prohibition and/or an injunction should not issue to effect Mr Te’s release from immigration detention. The orders were made returnable on 11 June 2003.

The Orders Nisi and the Grounds of the Application

27 The orders made by Goldberg J on 12 May 2003 were in the following terms:

‘1. The Minister, at 10.00am on 11 June 2003, show cause why –

(a) A Writ of Habeas Corpus, and/or an order of or in the nature of Mandamus, should not issue from this Court ordering the applicant’s release from immigration detention.

(b) A Declaration should not be made by this Court that it is not lawful for the Minister to keep the applicant in immigration detention any longer;

(c) A Writ of Prohibition and/or an injunction should not issue out of this Court directed to the Minister prohibiting him from taking any step to detain the applicant;

II: THE GROUNDS OF THE APPLICATION ARE –

(i) That on its proper construction section 253 of the Migration Act 1958 ("the Act") authorizes detention no longer than to the extent reasonably capable of being seen as necessary to make deportation effective and does not extend to a power to detain for an unlimited period; alternatively

(ii) That to the extent that section 253 of the Act authorizes detention beyond the extent reasonably capable of being seen as necessary to make deportation effective such power is ultra vires the aliens power under section 51(xix) and the other powers under the Constitution; and

(iii) That in the circumstances the continuing detention of the applicant is unlawful.’

Ancillary orders were also made.

28 On 20 June 2003, the Department wrote to Mr Te’s solicitors advising that the Minister had considered the requests that he cancel or vacate the deportation order or release Mr Te from immigration detention. It advised that the Minister had decided not to revoke the deportation order nor to order the release of Mr Te from immigration detention pursuant to s 253(9) of the Migration Act. On the same day, the AGS wrote to Mr Te’s solicitor alleging failure to provide information in various respects. The letter referred to information available to the Department from the AAT proceeding. It sought an immediate response to the allegations. Mr Te’s solicitors said they were unable to arrange a Cambodian interpreter and attend at the detention centre to obtain instructions and so could not comply with the request for a response.

The Decision at First Instance

29 The orders nisi made by Goldberg J were ultimately referred to Gray J who heard the case on 23 June 2003. On 2 July 2003, his Honour delivered judgment and made orders in the following terms:

‘1. The order in the form of an order nisi made by Goldberg J on 12 June 2003 be discharged.

2. The application be dismissed.

3. There be no order as to the costs of the application.’

30 After setting out the history of the matter his Honour identified the basis of Mr Te’s case as ‘...the length of his detention’. Altogether the period he had been in immigration detention at that time exceeded four years and 10 months dating from 16 August 1998 when Mr Te had ceased to serve his term of imprisonment. Argument focussed on the period from 22 September 2000, when the AAT dismissed the application for review of the deportation order, to 21 March 2001, when Mr Te began his first proceeding in the High Court. That was a period one-day short of six months. His Honour found that during that period, and indeed from 16 August 1998 until May 2001, no step at all was taken in relation to the execution of the deportation order. The importance of the six-month period derived from the fact that there was no proceeding on foot concerning the validity of the order and therefore no basis during that time on which officers of the Department could refrain from taking steps to secure Mr Te’s removal.

31 It was argued before his Honour, on behalf of Mr Te, that the continuing detention authorised by s 253(8) of the Migration Act is detention only for the purpose of deportation. Once detention has exceeded a length of time reasonably necessary for the purpose of effecting deportation it is no longer capable of being characterised as detention for that purpose and is therefore not detention pending deportation. By 21 March 2001, Mr Te’s detention had become unlawful as the time that had elapsed, and particularly the six-month period immediately prior to that date, was in excess of what was reasonably necessary for the purpose of effecting the deportation. Reference was made to Koon Wing Lau v Calwell (1949) 80 CLR 533. In that case the High Court upheld the validity of s 7 of the War-time Refugees Removal Act 1949 (Cth), which was in substance the same as the present s 253(8) of the Migration Act. The relevant provisions were construed as authorising detention pending deportation and not detention for an unlimited period. His Honour referred to a number of cases including the recent decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241. His Honour also referred to Vo. In that case the Full Court would not accept that the length of detention under s 253(9) could of itself destroy the legal validity of the detention.

32 The learned primary judge said, at [42]:

‘In my view, on the current state of the authorities, it is not open to a single judge of this Court to hold that the power to detain pending deportation is subject to an implied limitation on the length of time of the detention.’

On that basis he rejected the argument advanced by Mr Te that the passage of a reasonable time necessary for effecting deportation was sufficient to render unlawful a detention originally effected for the purpose of deportation. His Honour observed that the remedy for delay lay to some extent in the hands of a person detained. Such a person could apply for release pursuant to s 253(9). Unnecessary delay in the execution of a deportation order could be cured by an application for mandamus or injunction directed to the Minister requiring the execution of the order.

33 The primary Judge rejected any suggestion that s 253(8) would permit indefinite detention. He accepted that it is clear that detention otherwise than for the purpose of deportation is not authorised and will be unlawful. Where a significant amount of time has passed with no step taken to effect deportation in circumstances where there was no ground for refraining from taking such a step, and in the absence of evidence of a subjective purpose to deport, it might be relatively easy for a court to hold that an absence of proper purpose had been established.

34 His Honour did not consider that the present was such a case. The absence of action by officers of the Department before 22 September 2000 when the AAT gave its decision could be justified on the basis that Mr Te was challenging the validity and correctness of the deportation order. Similarly, between 21 March 2001 and 7 November 2002 he was engaged in his challenge to the constitutional validity of the order. This did not mean that it was to be assumed that continued detention until the completion of proceedings was a penalty for taking proceedings to set aside a detention order.

35 His Honour regarded the six-month period leading up to 21 March 2001 as ‘of concern’. During that period the failure of the officers of the Department to do anything towards deporting Mr Te was ‘inexcusable’. But despite that concern he could not conclude that the subjective purpose of any officer of the Department or of the Minister was other than to proceed with the deportation of Mr Te. The fact that a step was taken in May 2001 was evidence that this purpose existed at that date.

36 Nor was there any justification for a conclusion that the purpose had been frustrated by other events. Two other Cambodians had been deported in 2000 in the six-month period prior to Mr Te’s first High Court proceeding. Information from the Cambodian Embassy in Canberra was that a short-term travel document would have been made available but this course could not be pursued because of the uncertain duration of the first High Court proceeding. There was no other evidence before his Honour to show the impossibility of carrying into effect a deportation of a Cambodian national. For these reasons his Honour was of the view that Mr Te had failed to make out his case that his continued detention under s 253(8) of the Migration Act was beyond power. His Honour also considered the position, on the assumption, contrary to his own view, that passage of time could be sufficient to render continued detention unauthorised. In the event he was of the opinion that notwithstanding his concerns about the six-month period between September 2000 and March 2001, he could not regard it by itself as exceeding what could be termed reasonable for the execution of a deportation order.

37 His Honour concluded by declining to make an order that Mr Te pay the Minister’s costs.

The Grounds of Appeal

38 The grounds of appeal against the judgment of Gray J were as follows:

‘1. The learned trial judge erred in failing to hold that on its proper construction, s 253 of the Migration Act 1958 ("the Act") authorises detention for a period of no longer than reasonably necessary to effect deportation, and that this time expired in relation to the detention of the appellant no later than 20 March 2001.

2. The learned trial judge ought to have held that, on a proper construction of s 253, detention under that section is only valid if, and for so long as, deportation is pending and while deportation arrangements are put in place and executed, and that in the case of the appellant this ceased to be so no later than 20 March 2001.

3. To the extent that the decision of the Full Court of the Federal Court of Australia in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 determines to the contrary of the construction in paragraphs (1) or (2) above, the decision involves an error of law and should be overruled.

4. The learned trial judge ought to have held that, if the proper construction of s 253 is to the contrary of the constructions in paragraphs (1) or (2) above, it is ultra vires the legislative power of the Commonwealth under s 51(xix) and other powers in the Constitution.

5. The learned trial judge erred in holding that, in determining either the purpose of detention or whether the period of detention exceeded that permitted by the Act, periods of the appellant’s detention during which legal proceedings were pending should not be taken into account.

6. The learned trial judge ought to have held that no later than 20 March 2001 the Minister through his officers and agents was not detaining the appellant for the purpose of deportation.

7. The learned trial judge ought to have held that the fact that no steps were taken for the deportation of the appellant between August 1998 and May 2001 sufficed to constitute the continuing detention unlawful.
8. The learned trial judge ought to have held that the continued detention of the appellant since a date no later than 20 March 2001 was and is not authorised by s 253 of the Act and was and is unlawful.’


Cross Appeal

39 The Minister has cross-appealed against the order of Gray J that there be no order as to the costs of the application. The grounds of the cross-appeal were as follows:

‘1. The primary judge erred in holding that there exists a principle that a costs order should not be made against an unsuccessful applicant in proceedings brought to seek release from his or her detention by authority of the State.

2. Alternatively, the primary judge erred in holding that there exists a principle that a costs order should not be made against an unsuccessful applicant in proceedings brought to seek release from his or her detention under the Migration Act 1958.

3. The primary judge erred in failing to hold that the principle that, ordinarily, costs follow the event is applicable in proceedings brought to seek release from detention under the Migration Act 1958.

4. The primary judge should have ordered that the applicant pay the respondent’s costs of the application.’

Statutory Framework

40 Central to the present application is s 253 of the Migration Act which provides:

‘(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).

(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.

...

(8) A deportee may be kept in migration 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;
(c) on board the vessel until its departure from its last port or place of call in Australia.

(9) In spite of anything else in this section, 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 this section.

(10) An officer may, without warrant, detain a person who:

(a) has been released from detention under subsection (9) subject to conditions; and
(b) has breached any of those conditions.

(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.’

Subsections (4) to (7) set up a procedure whereby a person detained under the section can contest the detention on the basis that he or she is not the person in respect of whom the deportation order is in force.

41 Section 206 of the Migration Act provides:

‘206(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.’

The Scope of the Detention Power

42 The power to detain a deportee, conferred by s 253, is confined, as is every statutory power, by the subject matter, scope and purpose of the legislation under which it is conferred – Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 496 (Latham CJ) and 505 (Dixon J); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 (Mason J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J); O’Sullivan v Farrer (1989) 168 CLR 210 at 216 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 84 (Gaudron and Gummow JJ). The purpose of the detention power conferred by s 253 is made plain by its terms. It is a power to detain ‘pending deportation’ coupled with certain ancillary powers to detain at ports or on a vessel in the course of removing a deportee from Australia.

43 The constitutional validity of provisions equivalent to s 253(8) of the Migration Act has been considered by the High Court. In Koon Wing Lau, a challenge was made to the validity of s 7 of the War-time Refugees Removal Act. Section 7 provided that a deportee could ‘pending his deportation and until he is placed on board a vessel for deportation...be kept in such custody as the Minister or an officer directs’. The language of s 7 was substantially identical to that of s 8C of the Immigration Act 1901 (Cth), a predecessor of s 253(8) of the Migration Act.

44 The challenge to the validity of s 7 was based on the contention that it authorised the indefinite detention of aliens. Accordingly, so it was argued, it could not be supported as a law with respect to ‘aliens’ (s 51(xix)) or ‘mmigration’ (s 51(xxiii)). Rejecting the argument, Latham CJ said (at 556):

‘Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period. The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes, the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.’

McTiernan and Webb JJ agreed with Latham CJ. See also at 581 per Dixon J. Williams J, with whom Rich J agreed, also rejected the argument (at 586-587):


"It was submitted that under this provision a deportee could be kept in custody indefinitely and never deported, so that it is not a law with respect to the deportation of aliens at all but a law which in substance and effect authorizes the indefinite incarceration of the members of a certain class of persons. But a deportee may only be kept in custody pending his deportation and until he is placed on board a vessel for deportation from Australia, so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal. This fact might be difficult to prove but the omission to fix a period within which the deportee must be placed on board a vessel for deportation from Australia is not sufficient, in my opinion, to prevent s 7(1)(a) being a law with respect to aliens.’

45 In Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, the High Court considered the power of detention conferred by s 39 of the Migration Act, which was relevantly in substantially the same terms as the present s 253. In that case, the Minister’s delegate had ordered the deportation of certain non-citizens, not in order to secure their removal from Australia, but to ensure their continued detention in custody, so that their evidence would be available in criminal proceedings against the organisers of their illegal entry into Australia.

46 The Court held that the continued detention of the non-citizens was unjustified, for two reasons. First, the power to arrest and detain existed in relation to a ‘deportee’ – that is, a person in respect of whom a deportation order is in force. The effect of the finding that the deportation orders had been vitiated by an impermissible purpose was that the orders were void and therefore none of the non-citizens was a ‘deportee’. Secondly, s 39(6) (equivalent to the current s 253(8)) authorised the detention of a deportee ‘pending deportation’. Their Honours said (at 643) that:

‘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.’

47 The limited purposes for which immigration detention can be maintained within the scope of the relevant heads of constitutional power were made plain in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 10 (Mason CJ), 32 (Brennan, Deane and Dawson JJ) and 65 (McHugh J). The provisions under consideration in Lim were ss 54L and 54N of the Migration Act providing for the detention of ‘designated persons’. These were non-citizens who arrived in Australia by boat without visas between 19 November 1989 and 1 December 1992 and who had not been granted an entry permit. The joint judgment said that ss 54L and 54N would be valid laws if the detention which they required and authorised were ‘... limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered’. As appears plain from this case and Koon Wing Lau the limitation of the purposes for which detention is authorised in respect of aliens or immigrants is a necessary requirement for the validity of laws authorising such detention.

48 The limits of the detention power conferred by s 253 were considered by the Full Court of the Federal Court in Vo. That case, like the present, concerned the detention of a non-citizen in respect of whom a deportation order had been made under s 200 of the Migration Act. The detainee, a Vietnamese national, had applied to the Minister to be released from immigration detention on the basis that the Vietnamese government was not prepared to allow him to re-enter that country. The application was refused. The refusal was challenged by way of an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). One of the grounds was that the Minister’s delegate failed to give sufficient weight to the length of time that the appellant would spend in detention, awaiting deportation, because of unreasonable delays in negotiations between the Australian and Vietnamese governments about his removal into Vietnam.

49 The application failed at first instance and an appeal was dismissed. The Full Court did not accept that the length of detention could of itself destroy the legal validity of the detention. Their Honours considered that the statutory scheme was explicitly to the contrary. They said this (at 374):

‘...as has been noted, s 206(2) squarely addresses the question of delay. This is not to say that no other avenues of approval area open. For one thing, the Minister may revoke the deportation order under s 206(1). For another, the Minister (or the Secretary) may order release under s 253(9). It is true that the power to detain is available only whilst the deportation order is ‘in force’ (s 253(1)); and that this criterion is reflected in the reference to the position ‘pending deportation’ in s 253(8)(a). But there is every reason to suppose that this was intended to refer to the state of affairs existing between the time of the making of the deportation order and its execution (unless previously revoked). These are all matters of formal record which are readily ascertainable by all concerned. If the test were otherwise, that is a test of a question of degree, whereby the authority to detain is lost after the lapse of a particular amount of time, serious practical difficulties would arise: it would not be possible to identify the exact point of time when the authority is to be treated as having lapsed, in the absence of any formal process to determine when the lapse did occur.

On the other hand, as we would understand it, the plain object of the present statutory scheme is to avoid these difficulties by defining the relevant events in which the authority to detain will lapse, as the execution of the deportation order or its earlier revocation. Short of their occurrence, the deportation order is ‘in force’ for the purposes of s 253(1), and the deportation is ‘pending’ for the purposes of s 253(8)(a). Until one of these events occurs, the authority to detain will subsist.’

50 Their Honours accepted, as had been held in Park Oh Ho, that the authority to detain had to be executed bona fide for the purpose for which it was conferred and could not be used to achieve another disguised objective. But there was no suggestion that the deportation order had been made for an improper purpose. It followed (at 375) that the authority to detain the non-citizen subsisted until the deportation order was executed or revoked. The Court also rejected a submission that the Minister had failed to discharge the onus of proving that the length of time of the appellant’s detention was justified. The Minister’s authority to detain subsisted until the execution of the deportation order or its revocation. Neither of those events had occurred. In the Court’s view, the Minister had no further onus to bear in order to maintain the validity of his authority to detain.

51 Vo was followed by another Full Court in Luu v Minister for Immigration and Multicultural Affairs (2002) 197 ALR 433. In that case a Vietnamese national was the subject of an order made in 1997 that he be deported on account of his conviction of a criminal offence and consequential sentencing to a term of imprisonment. A challenge to the deportation decision was unsuccessful. The detainee requested his removal to Vietnam in February 2000. In July 2000, no removal having been effected, he requested release from immigration detention under s 253(9) and in August 2000 sought revocation of the deportation order under s 206(1). In March 2001, the Minister decided not to release him from immigration detention and not to revoke the deportation order. His application for judicial review of these decisions was dismissed at first instance and on appeal.

52 In considering whether the detention was unauthorised, the Full Court referred to Koon Wing Lau and to Lim. It rejected a contention that, because the Minister had no way of knowing whether it would ever be possible to effect the deportation order, he was not exercising the detention power bona fide for the purpose of holding the appellant in detention pending his deportation. The Court said this (at 451):

‘Section 253(8) authorises detention "pending deportation", effectively until the deportee leaves Australia. Those provisions do not indicate that the detention power may be exercised only when arrangements are in place to effect the deportation, so that the time of deportation is known. They contemplate detention pending deportation, and while deportation arrangements are put in place and are executed.’

Their Honours saw that view reflected in the decision in Vo. They accepted that the length of the period of deportation and the prospects of effecting deportation within a reasonable timeframe could be circumstances relevant to the conclusion that the purpose of the detention was no longer ‘pending’ deportation. That, however, would involve an inquiry into the state of mind of the Minister.

53 Their Honours pointed out (at 452) that the validity of the 1997 deportation order had not been challenged and that its validity could not be lost by delay in implementing the order. As they said (at 452):

‘It will only be if the purpose of the detention ceases to be deportation that the detention will no longer be lawful under s 253(1) and (8) of the Act.’

54 In Al Masri, the Full Court was concerned with the detention of unlawful non-citizens pursuant to ss 189 and 196 of the Migration Act pending removal from Australia. The Court dismissed an appeal from the order of the trial judge that Mr Al Masri be immediately released from detention under those provisions. The Court read s 196 as subject to an implied limitation that the period of mandatory detention would not extend to a time at which there was no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention. Their Honours, however, distinguished the statutory provisions there under consideration from s 253 which was the subject of the decision in Vo. In particular they said, referring to Vo (at 278):

‘The observation by the Full Court that the statutory scheme [under s 253] was "explicitly to the contrary" of the notion that "the length of detention can of itself destroy the legal validity of the detention" is very important. The Full Court did not conclude that the expression "pending deportation" was incapable of carrying an implicit limitation in some other context; the Full Court rejected any such implication because it was denied by an express provision.

55 Their Honours said in relation to both Vo and Luu (at 279):

‘It is of great importance that a Full Court should follow a decision of an earlier Full Court unless convinced that the earlier Full Court is plainly wrong, the earlier Full Court decisions to which we have referred do not preclude a conclusion that the materially different provisions of the Act now being considered are subject to an implied limitation. Neither Vo nor Luu involved detention which was in truth mandatory, or indefinite, in the way it is contended that s 196(1) provides for. The fact that the minister was able to order release from detention, as a matter of discretion pursuant to s 253(8) and (9), and that his power to do so was itself subject to judicial review, means that the cases do not stand as authority against the decisive application of the principles of construction which we regard as fundamental to the disposition of the present appeal.’

The Appellant’s Contentions

56 The contentions advanced on behalf of the appellant were summarised in the outline of submissions as follows:

(a) Detention pending deportation is lawful only if it is for the purpose of facilitating deportation.
(b) The evidentiary onus was on the Minister to show that the purpose of detention was to facilitate deportation. No step was taken towards that end until May 2001. The onus was not discharged.
(c) The learned trial judge erred in failing to apply the correct onus.
(d) Even without applying the onus, the facts demonstrated that the requisite purpose was absent.
(e) Alternatively, a person can only be held pending deportation for the period reasonably necessary to effect deportation.
(f) The Full Court in Vo erred in holding otherwise.
(g) A reasonable period had been exceeded well before the first steps to give effect to deportation were taken in May 2001.

The Purpose of the Detention
57 The Minister did not dispute that if Mr Te’s detention had ceased to be for the purpose of facilitating his deportation, his continued detention would be unlawful. However, the Minister contended that there was simply no evidence that would have justified, let alone compelled, the trial Judge to find that Mr Te’s continued detention was not for that purpose of deportation.

58 It is true that Mr Te has been detained for a long time since the deportation order against him was made. But save for the period of six months during which there was little or no departmental activity to effect his removal, the bulk of his time in detention has passed while he has been engaged in various legal proceedings relating to the validity of the deportation order. There was no evidence before the learned primary judge to support any inference that any part of his detention could be explained by any improper purpose on the part of the Minister or officers of the Department. As his Honour observed, the absence of any action by officers of the Department before 22 September 2000, when the AAT gave its decision, could be justified on the basis that Mr Te was challenging the validity and correctness of the decision to deport him. That was also the case between 21 March 2001 and 7 November 2002 when he was engaged in his challenge to the constitutional validity of the deportation order. Although, as his Honour observed, there was nothing to prohibit the Department from taking some steps to facilitate Mr Te’s deportation, it was appropriate for officers of the Department to refrain from preparing to execute the deportation decision in case it was subsequently set aside. Inaction during these periods could not be taken as an indication of any improper purpose.

59 As to the six-month period from September 2000 to 21 March 2001, his Honour had concerns about unjustified inactivity by the Department, but he could not conclude that the subjective purpose of any officer of the Department or of the Minister was other than to proceed with Mr Te’s deportation. He said (at [48]):

‘Without further evidence, it must be concluded that it is more probable than not that the purpose had been maintained since the beginning, than that it had been abandoned or allowed to dissipate, and then revived. The same can be said for the activity from 9 December 2002 onwards. In my view, the evidence shows that, throughout the period of Mr Te’s detention, the purpose of executing the deportation order has been maintained.’

60 In written submissions filed on behalf of Mr Te it was argued that where an applicant for habeas corpus has adduced evidence to put the legality of the impugned detention in issue the legal burden of justifying the detention shifts to the respondent. In the present case, so it was argued, the initial evidential burden was discharged by the admitted fact that the detention continued until May 2001 with no step being taken to facilitate deportation. Moreover, the complete absence of any step being taken between September 2000 and March 2001 to remove Mr Te from Australia at a time when no legal action was on foot sufficed to shift the burden to the respondent. The burden, it was said, had not been discharged. The learned trial judge had erred by treating the onus as resting entirely upon Mr Te. In oral argument senior counsel for Mr Te said it was sufficient that an applicant for habeas corpus demonstrate absence of the relevant lawful purpose.

61 It is not entirely clear what is meant by the concept of absence of purpose in this context. It is, however, the case that an applicant for habeas corpus carries the initial burden of showing a prima facie case that the detention complained of is unlawful. When such a case is shown, the burden of proof rests upon the detaining authority to prove any fact prescribed by statute as a condition of the power of detention – Truong v Manager, Immigration Detention Centre, Port Hedland (1993) 31 ALD 729 (Malcolm CJ and Seaman J).

62 The evidence before the primary judge in these proceedings did not raise a prima facie case of any unlawful purpose on the part of the Minister. At best it raised a case of bureaucratic inactivity for a period of six months. While regrettable, inertia of this kind is entirely consistent with the persistence of a purpose to deport and, accordingly, the continuing validity of the detention. The failure to take substantial steps to effect Mr Te’s removal during the rest of the period of his detention is for the most part explicable by reference to the various legal proceedings which he instituted in respect of the deportation order.

63 In our opinion, no case of improper purpose was raised before his Honour, the learned primary judge. His Honour did not err in the conclusions he drew or in the way that he dealt with the question of onus.

Whether the Power to Detain had Expired by Effluxion of Time

64 Senior counsel for Mr Te argued for an implied limitation on the length of detention authorised by s 253(8). He submitted that s 253(8) in authorising detention ‘pending’ deportation permitted detention only for a period reasonably necessary to effect deportation namely the period during which officers of the Minister were putting deportation arrangements into place and executing them. It was submitted on Mr Te’s behalf that the primary judge had erred in finding that there was no limit on the length of time during which a person the subject of a deportation order could be held in detention. Such an interpretation of the Act would permit indefinite detention of a person subject to a valid deportation order. This was not the intention of the legislature.

65 Senior Counsel for Mr Te relied upon the judgment of the Full Court in Al Masri. He referred in particular to the presumption, referred to in that judgment, against the curtailment of fundamental freedoms and the requirement that legislation should be, so far as its language permits, interpreted in a manner consistent with international law and Australia’s treaty obligations. Applying similar principles of statutory construction to s 253 of the Act, that section was said to be subject to a limitation that detention is authorised no longer than reasonably necessary to effect deportation. There was nothing in the statutory context to displace that interpretation. Counsel acknowledged that the Full Court in Al Masri had observed that its reasons were not directed to the circumstances of deportation where the Minister retains a discretion, to be exercised according to law, to release a person from detention. Counsel submitted that that issue was not before the Court in Al Masri and that the existence of the discretion referred to in that case makes no legal difference.

66 Necessarily counsel submitted that the Full Court in Vo had erred in its construction of s 253. He contended that the Full Court had not been referred to relevant authorities predating its decision, namely R v Hardial Singh [1984] 1 WLR 704 and Lam v Tai A Chau Detention Centre [1997] AC 97. He pointed out that in Perez v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 619, Allsop J, although following Vo, noted (at 646 [107]) that neither Ex parte Singh nor Lam had been cited to the Full Court in that case. It was also submitted that Vo’s reliance on s 206(2) of the Migration Act was misplaced, as that provision relates only to the validity of an order for deportation and does not address the effect of delay on the validity of detention. It could not be regarded as an expression of the legislative intention to permit indefinite detention as it did not address that issue and a very clear expression of legislative intention would be required for it to be regarded as being intended to permit unlimited detention.

67 In Ex parte Singh a deportation order had been made against the applicant, an Indian national who had been convicted of offences in the United Kingdom. The Secretary of State had power to detain the applicant pending his removal from the United Kingdom. The applicant had been detained for some five months after the expiry of his deportation order and had actively sought to be returned to India. Woolf J (as he then was) was not satisfied that the Home Office had done all that reasonably could be done to secure the applicant’s deportation from the United Kingdom.

68 Woolf J said this (at 706):

‘Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.’

69 In the event, Woolf J did not make an order for the release of the applicant, but granted an adjournment to give the Home Office an opportunity to put on evidence showing that the applicant was due to be removed within a very short time.

70 Lam involved the detention in Hong Kong of unauthorised migrants from Vietnam of Chinese ethnic origin. The relevant legislation conferred power to detain such migrants ‘pending [their] removal from Hong Kong’. The applicants had been kept in detention for periods of up to four years after determination of their refugee status. The Privy Council, although finding it unnecessary to resolve the ‘length of detention’ issue, expressed approval (at 111) of the principles enunciated by Woolf J in Ex parte Singh. Lord Browne-Wilkinson, delivering the judgment of their Lordships, noted that it is plainly possible for the legislature to exclude any implied restrictions by express provision. In this case, however, it was relevant that a provision in the Hong Kong legislation expressly envisaged that the exercise of the power of detention would be unlawful if the period of detention was unreasonable. The judgment also accepted (at 114-115) that the fact that detention is self-induced, by reason of a detainee’s failure to apply for voluntary repatriation, is a ‘factor of fundamental importance in considering whether, in all the circumstances, the detention is unreasonable’.

71 Clearly enough, the proper construction of a provision such as s 253(8) of the Migration Act depends upon a reading of the provision in its context. The Full Court’s conclusion in Vo that the length of the detention cannot of itself destroy the legal validity of the detention, was based on a reading of the statute as a whole. We do not understand the judgment as having misconstrued the language of s 206(2), which is directed to the effect of delay in the execution of a deportation order in the validity of the order and not to the effect of delay in the validity of continuing detention. As we read the judgment, the Court took s 206(2) into account as one element in the statutory scheme designed (as their Honours said) to define the relevant events on which an authority to detain will lapse.

72 In order to depart from the decision in Vo it would be necessary for us to be satisfied that it was plainly wrong. This is not a view lightly to be adopted by one Full Court in respect of the decision of another. The decision of the Full Court in Vo has been followed by the Full Court in Luu. It was explained and distinguished in Al Masri without any suggestion that the Full Court in Vo had been in error in the conclusions which it had reached about the operation of s 253. Indeed, the Full Court in Al Masri was at pains to stress the importance of a Full Court following a decision of an earlier Full Court unless convinced that it was plainly wrong.

73 In our opinion the submissions on this aspect of the contentions cannot stand against the authority of the Full Court in Vo and in this respect also the appeal must fail.

Costs - The Cross Appeal

74 The primary judge declined to make an order for costs in favour of the Minister. In so doing he referred briefly to the decision of the Full Court in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 at [5], where the Full Court applied ‘the principle’ expressed by Goldberg J in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [22]. His Honour quoted the following passage from the judgment of Goldberg J:

‘Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained.’

His Honour, having quoted that passage, then said (at [54]):


‘The application of the same principle in the present case leads to the conclusion that, although unsuccessful, Mr Te should not be ordered to pay the Minister’s costs.’

75 Counsel for the Minister submitted that the learned primary judge erred in holding that there is a special rule or principle, outside the criminal jurisdiction, that litigants unsuccessfully seeking to be released from official detention should not be ordered to pay their costs. It was submitted that there is no such rule or principle. To the contrary, the general rule is that costs are awarded against the successful party.

76 In Clark and McCoy, Habeas Corpus – Australia, New Zealand The South Pacific Federation Press (2000) at 249, the learned authors observe:

‘It was once the case that costs could not be awarded in habeas corpus cases, though the current position in all jurisdictions is that costs are in the discretion of the court, and in two instances this has been explicitly extended to habeas corpus proceedings. The general rule is that costs are awarded against the unsuccessful party. All costs in New Zealand cases are in the discretion of the court and the court has the power to refuse costs to a successful party or may order a successful party to pay the costs to an unsuccessful party. This is also the practice in Australia where costs have been awarded against the party applying for the writ where the order nisi is discharged or the respondents where the application is successful.’

77 The award of costs in any proceedings in the Federal Court is authorised by s 43 of the Federal Court of Australia Act 1976 (Cth) which provides:

‘43(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

(1A) [Concerns only representative proceedings]

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.’

78 It was said in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (at 234 per Black CJ and French J):

‘The power of the Court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that ‘the Court has an absolute and unfettered discretion to award or not to award [costs]’: per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however it must be exercised judicially and not against the successful party except for some reason connected with the case.’


Specifically in relation to habeas corpus, and after referring to the observations of Goldberg J and the Full Court in Cabal, the joint judgment in Ruddock v Vadarlis went on to say (at 240-241):


‘That is not to say, however, that a new rule is introduced to displace the ordinary rule in every case that concerns the liberty of the individual. The award of costs must remain an exercise of discretion having regard to all the circumstances of the case.’

79 Senior counsel for Mr Te did not contend that there is any binding rule that in a habeas corpus application the applicant should not be ordered to pay costs. He submitted that the special features of an application for habeas corpus are, however, relevant to the exercise of a judge’s discretion on costs. There can be no suggestion that it is limited to cases analogous to the criminal jurisdiction.

80 In our opinion, his Honour’s application of the observations made in the passage which he quoted from the judgment of Goldberg J without more does support the inference that he applied the ‘principle’ referred to by Goldberg J in the Cabal decision as though it were a rule rather than a factor relevant to the exercise of the discretion. In this respect, his Honour fell into error.

81 In the circumstances of this case, we consider that a proper exercise of the discretion would have had regard to the sparseness of any evidence as to improper purpose and the very significant obstacles to the applicant’s case presented by the Full Court decision in Vo and other Full Court decisions affecting it. While there was a period of departmental inactivity which his Honour regarded as ‘inexcusable’ that did not evidence any improper purpose on the part of the Department or the absence of an ongoing proper purpose for the detention. The great bulk of the delay has been as a result of Mr Te’s own legal proceedings and also, as mentioned earlier, his failure to cooperate promptly and fully with the Department in facilitating the provision of travel documents which would have enabled his removal from Australia. In our opinion this is a case in which, on a proper exercise of the discretion, costs ought to have been awarded in favour of the Minister at first instance.

Conclusion

82 For the preceding reasons, the appeal will be dismissed. The cross-appeal will be allowed. The appellant will be ordered to pay the respondent’s costs of the application and of the appeal.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 5 February 2004



Counsel for the Appellant: Dr G Griffith QC and Mr SGE McLeish and Ms C Harris



Solicitor for the Appellant: Access Law



Counsel for the Respondent: Mr AL Cavanough QC and Mr SJ Horan



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 14 August 2003



Date of Judgment: 5 February 2004
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