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Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
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Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

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Cases

MIGRATION - deportation order - deportee in immigration detention pending deportation - decision not to revoke deportation order - decision not to release deportee from immigration detention pending deportation - whether deportee was accorded procedural fairness in the making of the decisions - whether there was evidence upon which a risk of deportee absconding if released from immigration detention could be found - whether decisions so unreasonable that no reasonable person could have made them.

MIGRATION - deportee in immigration detention - decision not to release deportee from immigration detention pending deportation - whether protection of Australian community a relevant consideration to decision.

MIGRATION - deportee in immigration detention - decision not to release deportee from immigration detention pending deportation - whether continued detention was indeterminate or punitive and was thereby in contravention of Migration Act 1958 - whether continued detention was indeterminate preventative or punitive and was thereby in contravention of Articles 7, 9 and 10 of the International Covenant on Civil and Political Rights 1966 so that such contraventions were relevant matters which had to be taken into account in making the decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 (27

Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 (27 November 2002)
Last Updated: 27 November 2002


FEDERAL COURT OF AUSTRALIA
Luu v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 369


MIGRATION - deportation order - deportee in immigration detention pending deportation - decision not to revoke deportation order - decision not to release deportee from immigration detention pending deportation - whether deportee was accorded procedural fairness in the making of the decisions - whether there was evidence upon which a risk of deportee absconding if released from immigration detention could be found - whether decisions so unreasonable that no reasonable person could have made them.

MIGRATION - deportee in immigration detention - decision not to release deportee from immigration detention pending deportation - whether protection of Australian community a relevant consideration to decision.

MIGRATION - deportee in immigration detention - decision not to release deportee from immigration detention pending deportation - whether continued detention was indeterminate or punitive and was thereby in contravention of Migration Act 1958 - whether continued detention was indeterminate preventative or punitive and was thereby in contravention of Articles 7, 9 and 10 of the International Covenant on Civil and Political Rights 1966 so that such contraventions were relevant matters which had to be taken into account in making the decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth), ss 206, 253, 200, 417, 206

Wartime Refugees Removal Act 1949 (Cth)

Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304 - referred to

Annetts v McCann (1990) 170 CLR 596 - referred to

Ainsworth v Criminal Justice Commission (1997) 175 CLR 564 - referred to

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, [2000] FCA 1113 - referred to

Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 887 - referred to

Betkhoshabeh v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 504, [1999] FCA 470 - discussed

Tuiletufuga v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 389 - referred to

Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227, (2000) 177 ALR 306, [2000] FCA 949 - referred to

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 - referred to

Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 - referred to

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 - applied

Kioa v West (1985) 159 CLR 550 -referred to

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 - referred to

Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362, [2002] FCA 589 - discussed

Luu v Renevier (1989) 91 ALR 39 - discussed

Tickner v Bropho (1993) 114 ALR 409 - referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [1999] HCA 21 - cited

Minister for Immigration & Multicultural Affairs v Betkhoshabeh (1999) 55 ALD 609, [1999] FCA 980 - referred to

Attorney-General (NSW) v Quin (1990) 170 CLR 1 - referred to

Koon Wing Lau v Calwell (1949) 80 CLR 533 - discussed

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 - discussed

Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371, [2000] FCA 803- discussed

Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 - referred to

Zadvydas v Davis S33 US 678 - referred to

R (on the application of Saadi) v Secretary of State for the Home Department [2001] 4 All ER 961 - referred to

Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287, [1999] FCA 1342, [2002] FCA 450 - discussed

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - referred to

Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 - discussed

Lokeni Hui v Minister for Immigration & Multicultural Affairs [1998] FCA 1563 - referred to

Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 705 - referred to

Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, (1999) FCA 726 - discussed

Ceskovic v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 559 - discussed

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 - referred to

Msilanga v Minister for Immigration Local Government and Ethnic Affairs (1991) 24 ALD 353 - referred to

Minister for Immigration Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 - referred to

Gray v Minister for Immigration Local Government & Ethnic Affairs [1992] FCA 1021 - referred to

Pylka v Minister for Immigration & Multicultural Affairs [1997] FCA 1503 - referred to

Davidson v Minister for Immigration & Multicultural Affairs [1999] FCA 575 - referred to

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [2000] FCA 1385 - discussed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 - referred to

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 180 ALR 1 - referred to

MINH DUNG LUU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 995 of 2001

GRAY, NORTH & MANSFIELD JJ

27 NOVEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 995 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINH DUNG LUU

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT


JUDGES:
GRAY, NORTH & MANSFIELD JJ


DATE OF ORDER:
27 NOVEMBER 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of the appeal.

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
V 995 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINH DUNG LUU

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
GRAY, NORTH & MANSFIELD JJ


DATE:
27 NOVEMBER 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal from a judgment of Marshall J given on 17 August 2001. His Honour dismissed an application by the appellant under the Administrative Decisions (Judicial Review) Act 1975 (Cth) (the ADJR Act). The application concerned two decisions of the respondent under ss 206(1) and 253(9) of the Migration Act 1958 (Cth) (the Act) made on 12 March 2001.

2 The facts leading to the decisions are not contentious.

3 The appellant is a Vietnamese national. He arrived in Australia lawfully on 18 January 1990. On 3 July 1996 he was convicted of two counts of intentionally causing serious injury to another person, and one count of intentionally causing injury to another person. He was sentenced to three years and six months imprisonment, with a two years and three months non-parole period.

4 Following the conviction, the respondent on 9 May 1997 made an order under s 200 of the Act that the appellant be deported. The appellant challenged the decision that he be deported under s 200 of the Act. On 5 September 1997, the Administrative Appeals Tribunal affirmed the deportation order. It gave reasons for its decision. An application to the Court to set aside the decision of the Administrative Appeals Tribunal was dismissed on 25 August 1998: Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304. There is now no issue about the validity of the deportation order.

5 Following the appellant's release from prison on 16 June 1997, he was placed in immigration detention under s 253 of the Act. On 12 December 1997, the appellant through his solicitors requested the respondent to order his release from immigration detention under s 253(9) of the Act. On 8 January 1998, the respondent by his delegate refused that request. A written statement of reasons for the decision was provided on 23 January 1998. Again, there is no issue as to the validity of that decision.

6 On 20 July 1998 the appellant applied for a protection visa under the Act. His application was refused by a delegate of the respondent on 21 June 1999, and affirmed by a decision of the Refugee Review Tribunal given on 20 October 1999. It provided reasons for its decision. The appellant then requested the respondent, pursuant to s 417 of the Act, to substitute a decision more favourable to the appellant than the Refugee Review Tribunal's decision, on the ground that it was in the public interest to do so. The respondent on 9 November 1999 declined to do so.

7 On 8 February 2000 the appellant through his solicitors requested his immediate removal to Vietnam. His deportation did not promptly occur. The delay has given rise to the present proceedings.

8 On 10 July 2000, and subsequently, the appellant through his solicitors again requested the respondent to release him from immigration detention under s 253(9) of the Act. On 3 August 2000, the appellant through his solicitors requested the respondent to revoke the deportation order under s 206(1) of the Act. On 12 March 2001 the respondent decided not to release the appellant from immigration detention, and not to revoke the deportation order. Those decisions are the subject of the application under the ADJR Act and of the judgment now under appeal. Reasons for those decisions were provided to the appellant on 18 April 2001.

9 Section 206 of the Act provides:

"(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."

10 Section 253 of the Act deals with detention of a deportee. It empowers the respondent to detain a person against whom an order for deportation is in force in immigration detention: s 253(2). Sub-sections (8), (9), (10) and (11) provide:

"(8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:
(a) pending deportation, until he or she is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or

(c) on board the vessel until its departure from its last port or place of call in Australia.

(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."

REASONS FOR THE DECISIONS

11 The statement of reasons of the respondent for the two decisions is divided into three sections: findings on material questions of fact, evidence on which findings were based, and reasons for decision. The findings on material questions of fact were as follows:

(a) Mr Luu was convicted of Intentionally Causing Serious Injury (2 counts) and Causing Injury Intentionally (1 count) and was sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months.
(b) My Delegate issued a deportation order against Mr Luu on 9 May 1997.

(c) The Administrative Appeals Tribunal (`the AAT') affirmed the deportation order on 5 September 1997.

(d) My Delegate decided against Mr Luu's release on 8 January 1998.

(e) The offences committed by Mr Luu were most serious.

(f) The risk of Mr Luu re-offending is significantly high. He constitutes a continuing danger to the Australian Community, in particular to his victims.

(g) There is a risk that Mr Luu would attempt to avoid deportation by evading the Department if he were released from detention.

(h) The Australian Government's negotiations with the Vietnamese Government towards concluding a Memorandum of Understanding (MOU) in relation to the return of criminal deportees have progressed substantially in recent times and there is a high probability that a MOU will be concluded later in the year."

The evidence upon which those findings were based was said to be contained in an undated departmental minute at the foot of which the respondent on 12 March 2001 indicated his decisions, and briefing material concerning negotiations with the Vietnamese government towards concluding a Memorandum of Understanding (MOU) for the return of criminal deportees from Australia to Vietnam.

12 The summary of the respondent's conclusions for each decision were as follows:

(i) Request for revocation of deportation order made under s 200
I considered that the offences committed by Mr Luu were most serious and that the risk of Mr Luu re-offending was significantly high. I concluded that he constituted a continuing danger to the Australian community, in particular to his victims. I noted that it is likely that a MOU will be concluded with Vietnam later in the current year in relation to the return to Vietnam of criminal deportees. Accordingly, I decided not to revoke the deportation order.

(ii) Request for release from detention under s 253(9)

Bearing in mind the progress made towards the establishment of an MOU with the Vietnamese Government, and notwithstanding the offers of accommodation, employment, counselling and supervision, I concluded that the risk of flight and the interest of protecting the Australian community, in particular Mr Luu's victims, justified his continuing detention for the time being. Accordingly, I decided not to release Mr Luu from detention under s 253(9).

The detailed reasons of the respondent refer to the background described briefly above, including the appellant's criminal convictions. The respondent noted the sentencing remarks of the Judge at the time, and gave particular weight to the comments of the sentencing Judge that the attacks were most serious, were unprovoked and were on defenceless women, with the injury to one victim almost resulting in amputation at a wrist. He noted the adverse psychological consequences to the victims. He noted the appellant had provided a more recent version of events portraying himself as the victim, but gave weight to the fact that both the Administrative Appeals Tribunal and the Court in the proceedings in which the Tribunal decision was challenged proceeded on the basis of the version of events upon which the appellant had been sentenced, rather than the appellant's more recent version of events. Weight was given to the fact that all three victims were fearful of what the appellant would do if released, and claims by the appellant's wife that the appellant had been physically and verbally abusive towards her, that he had threatened to cut her head or her ears off, and that on one occasion as a result she had fainted and had been taken to hospital. It noted a further occasion claimed by her when the appellant had seized her by the hair and pushed her onto the road resulting in her hospitalisation, her move to a women's refuge, and the grant to her of an intervention order.

13 It proceeded:

"(f) I noted the consideration given by my Delegate to a previous request for release and the view held by the Delegate at the time of the decision not to release (8 January 1998) that there was a risk that Mr Luu would reoffend and that he continued to be a threat to the Australian community. I noted that my Delegate believed that the evidence in favour of his release did not outweigh the evidence in favour of continued detention.
(g) I gave weight to the Government's deportation policy citing violence against the person as a very serious offence.

(h) I noted the previous attempts made by my Department to obtain a travel document for Mr Luu to effect his deportation, and the Vietnam Government's request in December 1999 for a Memorandum of Understanding (MOU) between the two countries to be concluded before attempting the resolution of any individual cases.

I also noted the progress made towards the establishment of an MOU with the Vietnamese Government as follows:

. a draft MOU was submitted to the Vietnamese Government in March 2000;

. A counter-draft of this agreement was received in December 2000 following inter-governmental communication on the terms of the MOU in the preceding months;

. following the provision of a refined draft, a team, of officials from my Department and the Department of Foreign Affairs and Trade visited Hanoi in February 2001 to further negotiate the terms of the MOU;

. the discussions were constructive and encouraging, with the Vietnamese expressing a willingness to conclude the MOU at an early date, possibly mid-year;

. the Vietnamese Government is to produce a further draft MOU based on the outcome of these discussions."

14 Finally, in the section of the reasons for decision before turning to the summary, the respondent noted the claim of offers of assistance made to the appellant with accommodation, employment, counselling and supervision. He added:

"Although there was no specific evidence presented indicating that Mr Luu was likely to abscond upon release from detention, I considered that there remained a risk that Mr Luu may attempt to avoid deportation by evading the department. I concluded that because of the risk of flight and, moreover, because of the danger Mr Luu presented to members of the Australian community, in particular his victims, the exercise of my power to release Mr Luu from detention, whether under reporting conditions or otherwise, was not justified."
THE JUDGMENT AT FIRST INSTANCE

15 The grounds of review which his Honour was required to address were extensive. They were that each of the decisions was invalid and should be set aside because:

(1) the respondent had not accorded procedural fairness to the appellant in the making of the decisions by

. failing to inform the appellant of the issues critical to his proposed decisions so that the appellant had a reasonable opportunity to address those issues;

. failing to inform the appellant of an adverse finding against him not obviously open on the material, namely that there was a risk that the appellant might abscond if released from immigration detention;

. failing to give the appellant the opportunity to make submissions that the respondent should make his decisions in accordance with the International Covenant on Civil and Political Rights 1966 (the ICCPR), as the appellant had a legitimate expectation that he would do so, when the respondent did not make his decisions in accordance with the ICCPR;

(2) the respondent had failed to take into account considerations relevant to the decisions when he was obliged to have done so, including that the continued detention of the appellant amounted to indeterminate detention in contravention of Articles 7 and 9 of the ICCPR, and that the appellant had a record of consistent good behaviour while in custody and while in immigration detention;

(3) the respondent's decisions were an improper exercise of power because they were each so unreasonable that no reasonable person could have so exercised the power, in the first place because the respondent had not inquired further about the risk of the appellant re-offending or about the risk of him absconding beyond the information upon which the decision under s 259(3) was made on 8 January 1998, and by reference to the decisions themselves in all the circumstances;

(4) the continued detention of the appellant in immigration detention was indeterminate, and so was not authorised by the Act; and

(5) the continued detention of the appellant in immigration detention was punitive, and so was not authorised by the Act.

Initially the application to the Court complained of the failure of the respondent to make decisions in respect of the two matters raised by the letters from the appellant's solicitors dated 10 July 2000 and 3 August 2000. The making of the decisions on 12 March 2001 overcame that issue. But it was largely the elapse of time, without further inquiries having been made, between 10 July 2000 and 12 March 2001 which was the focus of much of the submissions put to the judge at first instance.

16 His Honour addressed each of the appellant's contentions in the sequence referred to above. It has not been contended on the appeal that he misunderstood any of the grounds upon which the application was made or that he did not deal with each of those grounds.

17 On this appeal, and before the judge at first instance, it was not contested that in making the decisions the subject of the appeal the respondent was obliged to accord the appellant procedural fairness: see e.g. Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1997) 175 CLR 564 at 576-577; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 548, [2002] FCA 1113 at[32] and specifically in relation to s 253(9) of the Act Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 887 per Sackville J. The issue was whether the respondent had complied with the requirements of procedural fairness in relation to the making of the two decisions.

18 His Honour concluded that procedural fairness in the circumstances required the appellant to be informed of the critical issues upon which determination of the two issues was to turn, and to be given a meaningful opportunity to respond to them. His Honour considered that such an opportunity would be satisfied by being given the opportunity to make written submissions in relation to the "gravamen or substance" of the issues being addressed by the respondent.

19 His Honour then concluded that the previous decisions of the Refugee Review Tribunal and of the Administrative Appeals Tribunal, and letters of the respondent of 23 January 1998 (from his delegate) providing reasons for refusing the appellant's release from immigration detention as at that date, and of 19 September 2000 from Senator Patterson on behalf of the respondent "served to highlight the substance of the critical issues" to the appellant. Consequently, his Honour concluded that the appellant had notice of the substance of the critical issues upon which the determination of the two requests might turn, and he further concluded that the appellant had an adequate opportunity to respond to those issues.

20 The judge at first instance also accepted that the "fair hearing" requirement of procedural fairness in the circumstances required the respondent to notify the appellant of adverse conclusions that may have been arrived at which were not obviously open on the material known to the appellant. His Honour described the proposition in the following terms:

"However, when a decision maker makes an adverse finding that doesn't naturally flow from the known material, procedural fairness requires the decision maker to inform the applicant of this finding so he or she can have a real and meaningful opportunity to respond to the case against him or her."
As noted, the particular adverse finding which the appellant contended did not naturally flow from the material of which he was aware was that there was a risk of the appellant absconding if he were released from immigration detention. His Honour rejected the contention that the risk the appellant might abscond upon release from immigration detention was an adverse finding not obviously open on the known material. He concluded that the appellant was aware that the risk of flight was one of the critical issues on which the respondent would make his decision. Hence it was open to the appellant to have made such submissions as he was advised to convince the respondent that there was no risk of flight. His Honour was further satisfied that the respondent did consider the particular circumstances of the appellant before concluding that there was a risk of flight.

21 The judge at first instance accepted that the appellant had a legitimate expectation that the respondent, in making the two decisions, would act in accordance with relevant Articles of the ICCPR, ratified by Australia. It was argued that the decision of the respondent under s 253(9) of the Act was not in compliance with Articles 7 and 10(1) of the ICCPR because it imposed indeterminate detention upon the appellant.

22 His Honour concluded, however, that the decision of 12 March 2001 not to release the appellant from immigration detention:

"was not to place Mr Luu in indeterminate (detention) because the (respondent) was able to give a reasonably specific approximation of when Mr Luu was likely to be deported".

There was evidence that the Australian government and the Vietnamese government had ongoing negotiations to arrive at an MOU to develop an agreed framework for facilitating the return of Vietnamese nationals to Vietnam, and that the Minister considered it likely that an MOU would be concluded by the end of 2001. His Honour concluded, therefore, that the decision under s 253(9) of the Act did not have the effect of keeping Mr Luu in indeterminate detention, so his decision did not contravene the ICCPR as asserted. Accordingly, the respondent was not obliged to accord the appellant procedural fairness in relation to "the indeterminacy issue" in the way contended for by the appellant.

23 The appellant also contended that the decision under s 253(9) of the Act contravened Articles 9 and 26 of the ICCPR because it resulted in or maintained "preventative detention". His Honour accepted the contention of the respondent that, so long as the essential purpose of the detention is for deportation, the fact that the respondent had regard to the risk of recidivism when making his decision to keep the appellant in immigration detention did not result in the detention being categorised as "preventative". His Honour referred to decisions of the Court, which the appellant did not contend to have been wrongly decided, that the respondent is entitled to have regard to the risk to the community in the event of the release of a deportee from immigration detention in exercising the discretion under s 253(9): see e.g. Betkhoshabeh v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 504, [1999] FCA 470 (Betkhoshabeh), and Tuiletufuga v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 389. Consequently, the respondent had not failed to accord the appellant procedural fairness by not informing him of the intention to make a decision inconsistent with obligations under the ICCPR. The decision was not inconsistent with the ICCPR in the way contended for.

24 His Honour also rejected the contention of the appellant that the detention of the appellant in Port Phillip Prison was in breach of Articles 9, 10(1) and 10(2)(a) of the ICCPR because he was a "civil prisoner" not effectively segregated from persons serving sentences for criminal offences. His Honour was not persuaded that there was any contravention of Articles 9 or 10(1) of the ICCPR by the appellant being kept in Port Phillip Prison. His Honour noted that Australia's ratification of the ICCPR was subject to a specific reservation in relation to Article 10(2)(a) that "... the principle of segregation is accepted as an objective to be achieved progressively ..." and did not therefore impose upon Australia "an absolute international obligation to ensure the segregation of unconvicted prisoners from convicted prisoners": see Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 affirming the judgment of Gray J at first instance: (2000) 177 ALR 306, [2000] FCA 949 Consequently, his Honour concluded, there could be no legitimate expectation that Australia would act in accordance with Art 10(2)(a) of the ICCPR.

25 The learned judge at first instance then addressed the claims that the decisions were void because the respondent had failed to take into account a number of relevant considerations. A number of particular factual matters were identified in submissions, but his Honour concluded that the respondent had in fact taken into account those matters: the appellant's continuous detention since June 1997, his detention in Port Phillip Prison as opposed to detention in an immigration reception and processing centre, the availability of supervision and accommodation if the appellant were to be released, and whether the risk to the community or the risk of flight could be addressed by making the appellant's release subject to conditions.

26 As to the claim relating to Articles 7 and 10(1) of the ICCPR, it was contended that the respondent had failed to have regard to Australia's obligations under those Articles. His Honour concluded that in some situations international law and Australia's international obligations will be relevant considerations to the respondent's exercise of discretion under ss 206 and 253(9) of the Act. However, as he had concluded that the decisions of 12 March 2001 did not have the effect of keeping the appellant in indeterminate detention, any failure on the part of the respondent to have regard to those Articles of the ICCPR did not have any material effect upon the decision.

27 His Honour was obviously a little troubled about the claim that the respondent had failed to take into account the appellant's record of consistent good behaviour whilst in prison and in immigration detention. His Honour concluded:

"I have spent some time considering this matter because I am concerned that the Minister made his decision with little or no reference to Mr Luu's behaviour or actions over the last two to three years. As noted above, I consider a detainee's behaviour and actions a central consideration to the exercise of the Minister's discretion under s 253(9) (see above at [58]). However, ultimately I agree with Mr Tracey that good behaviour reports cannot be considered a relevant consideration of themselves. Consequently, the Minister is not bound to take reports of good behaviour into account. In any event, it cannot be assumed that the Minister did not take the good behaviour reports into account. The Departmental Minute referred to the four Review Reports as follows:
`The questions of detention and place of detention have been reviewed on a number of occasions. It has been decided that release would be inappropriate as Mr Luu poses an unacceptable risk to the Australian community.'

It may be assumed that notwithstanding positive reports of Mr Luu's behaviour in detention recorded in the Review Reports, countervailing factors such as the seriousness of Mr Luu's crime, tipped the balance in the decision-maker's mind."

28 The learned judge at first instance then addressed the claims that the decisions of the respondent were unreasonable, both because he had failed to make certain inquiries which he should have made, and because the decisions were so unreasonable that no reasonable person could have made them. After referring to the limited circumstances in which a decision maker is required to make inquiries: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J, his Honour noted that any duty on the decision maker to inquire is generally restricted to material that is readily available. He did not think that the inquiry for which the appellant contended, namely inquiries about the appellant's risk of re-offending and about the risk of flight if released from immigration detention, readily fell within that class of inquiry. The inquiries suggested on behalf of the appellant involved a process of interviews and assessment about the appellant's behaviour and possible propensities. His Honour therefore reached the view that the respondent was not required to initiate investigations into the appellant's behaviour and actions, particularly having regard to the fact that he was at material times represented by solicitors: see the remarks of Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 170-171. His Honour, having regard to the reasons for the decisions, did not consider that the decisions were so unreasonable that no reasonable person would have made them.

29 The appellant also argued that the decisions of the respondent not to release the appellant from immigration detention were not authorised by the Act because the detention was indeterminate, and consequently the power to detain was not being exercised in good faith for the purpose of holding the appellant pending deportation, and because the detention was punitive. As his Honour had found that the detention was not indeterminate, and was not punitive, necessarily he rejected those contentions. He also declined to consider whether to make, or to make, a declaration that the detention of the appellant over the period from July 2000 to 12 March 2001 was unauthorised because any such declaration would have no practical effect.

THE GROUNDS OF APPEAL

30 Senior counsel for the appellant, when introducing the appeal, described it as a case concerning procedural fairness. He indicated that, if the appeal were to succeed, the appropriate order for the Court would be to remit the two decisions to the Minister to re-consider them in accordance with law. In the meantime the appellant would remain in immigration detention. The Court pointed out that the concerns of a lack of procedural fairness could be addressed by the appellant making a fresh request to the respondent to release him from immigration detention, or to cancel the deportation order. The appellant's concerns about the quality of the decision making process by the respondent in respect of the two decisions could then be addressed, and would be likely to be addressed without the need for the current appeal. The appellant nevertheless wished the present appeal to proceed rather than adopt that course.

31 The matters argued on the appeal in essence reflected the matters argued at first instance. In addition, in the course of reply, the appellant through senior counsel foreshadowed an application for leave to further amend the grounds of appeal by adding the claim that the respondent, in making the decisions, took into account an irrelevant consideration, namely that the continued detention of the appellant would afford protection to the community and to his victims. The appellant was given leave to formulate the proposed amendment in writing. The Human Rights and Equal Opportunity Commission (the Commission) was given leave to intervene in the application at first instance and on the appeal. Its submissions were confined to issues arising in respect of the decision of the respondent under s 253(9) of the Act, namely:

. whether, upon its proper construction, s 253(9) of the Act permitted the respondent to have regard to "the protection of the Australian community" in making the decision to maintain the appellant in immigration detention;

. whether the detention of the appellant pending deportation should be construed as being subject to certain limits which were relevantly activated in this matter;

. whether Australia's treaty obligations under Articles of the ICCPR were a relevant consideration for the respondent in making a decision under s 253(9) of the Act whether to release the appellant from immigration detention;

. whether the detention of the appellant "was and remains" in breach of Australia's international obligations under Articles of the ICCPR.

32 Following the hearing, the proposed ground of appeal was expressed as being that the respondent, in making the decisions, erred in law by taking into account an irrelevant consideration, namely the need to protect the Australian community against the risk that, if released, the appellant might cause harm. That was not a matter argued before the judge at first instance. The respondent did not oppose that leave. It is appropriate in the circumstances to grant leave to the appellant to amend the grounds of appeal in that respect.

33 In the appellant's supplementary submissions, the appellant also sought leave to further amend the grounds of appeal to add the claim that the respondent, in deciding not to release the appellant from immigration detention, exercised the power under s 253(9) for the improper purpose of securing the preventive detention of the appellant. Again, the contention was not raised before the judge at first instance. The respondent opposed the application. Through senior counsel, he asserted that, had the claim been made at first instance, the respondent would have been able to, and would have, led evidence as to the purpose of the detention. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, Latham CJ said:

"Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards."
In the light of the assertion by the respondent through senior counsel, and because the proposed ground of review may provoke a focus upon the subjective purpose of the respondent in a way which the grounds of the application to the Court did not previously do, we consider the appellant should be refused leave to amend the grounds of appeal to raise the point.

CONSIDERATION OF THE GROUNDS OF APPEAL

(a) Procedural fairness and unreasonableness

34 The grounds of appeal claim that the judge at first instance erred in holding that the respondent, to accord procedural fairness to the appellant, need not have informed the appellant:

. that he would be relying, without further investigation, on material current as at 1998, and

. that he would be acting on the basis that there was a risk of flight if the appellant were released from immigration detention.

35 As noted above, there was no dispute that the respondent was obliged to accord procedural fairness to the appellant in making the two decisions complained of. Nor was there any real dispute about the principles to be applied in determining the content of the obligation to accord procedural fairness in particular circumstances. See generally Kioa v West (1985) 159 CLR 550 at 585; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. The respondent's outline of contentions acknowledged that:

"(a) the appellant was entitled to put information and submissions to the Minister in support of his application;
(b) the appellant was entitled to an opportunity to rebut or comment upon any adverse material from other sources on which the Minister proposed to rely;

(c) the Minister was not obliged to notify to the appellant his mental processes or provisional views before making his decision, or to make the appellant's case for him;

(d) however, the Minister was required to identify to the appellant the `gravamen' or substance of any critical issues on which the decision might turn and which were not apparent from the nature of the power or the terms of the statute: and

(e) the Minister was required to advise the appellant of any adverse conclusions which would not obviously be open on the known material."

36 The appellant's way of expressing the fourth and fifth of those points was that the respondent was obliged to draw to the appellant's attention the critical issues or factors on which the decision was likely to turn, and the gravamen of any adverse matters, so that he could have a meaningful opportunity of responding. In substance, there is no difference between the two expressions of those aspects of the obligation.

37 It was argued that the learned judge at first instance erred in his conclusion, accepting the respondent's contention, that the previous decisions of the Refugee Review Tribunal and of the Administrative Appeals Tribunal and the two letters referred to in [19] "served to highlight the substance of the critical issues to the applicant". Those critical issues were said by the appellant, without disagreement from the respondent, to be

. whether there was any, and if so what, risk that the appellant would re-offend if released,

. whether the appellant's release would create any, and if so what, risk of harm to those he had assaulted in March 1995,

. whether there was any, and if so what, risk that the appellant, if released, would attempt to avoid deportation by evading the department of the respondent, and

. whether there was any realistic prospect of a deportation order being effected within a finite and reasonable time.

38 It is desirable to trace certain letters in the exchange of communications in a little detail to note features of those letters. The letter from the appellant's legal advisers to the respondent dated 10 July 2000 referred to their understanding of there being ongoing negotiations with the Vietnamese authorities over a lengthy period to arrive at an MOU in respect of the orderly return of deportees to Vietnam. It expressed the concern that, if there was little prospect of the appellant being deported to Vietnam in the foreseeable future, he should be released from immigration detention. The Department of Immigration and Multicultural Affairs (DIMA) on 21 July 2000 sought from them further information concerning the appellant's home address in Vietnam, and where he was born, to assist Vietnamese embassy officials in attempting to obtain a travel document for him. On 8 September 2000 Senator Patterson, on behalf of the respondent, wrote to the appellant's solicitors. The letter informed them that active attempts were being made to seek a travel document to facilitate the appellant's deportation, and it asserted (although the assertion was disputed) that the appellant had only recently chosen to assist in those efforts. It said reliable information about his background in Vietnam was still being awaited from him. It noted:

"The Vietnamese authorities are currently considering a formal request for a travel document as evidenced by their recent requests for clarification."
39 A further letter from Senator Patterson of 19 September 2000 reported that DIMA had made ongoing direct representations to the Vietnamese government, as well as entering into more general negotiations with the government of Vietnam to develop an agreed framework for facilitating the return of Vietnamese nationals to Vietnam. It explained that securing sufficient reliable information as to the identity of the person being returned is a time consuming process, delaying the issue of appropriate travel documents. It referred specifically to the request that the appellant be released from immigration detention. It pointed out that the test in considering the request is that of balancing the support the deportee may have in the Australian community against any likely risks to the community. It said:

"A deportee will only be released from immigration detention if the delegate is satisfied that the person's deportation from Australia would not be jeopardised by the person attempting to evade the department, and the deportee does not represent a risk to the community."
It also referred to the embassy of Vietnam's recent request for further information about the appellant being provided to facilitate the issue of a passport to him.

40 It is also necessary to note the reasons for the earlier decision of 8 January 1998 not to release the appellant under s 253(9) of the Act. It was supported by a statement of reasons dated 23 January 1998. Essentially, by a process of reasoning much like that reflected in the reasons for the two decisions now subject to challenge, the delegate of the respondent concluded that the appellant was not an acceptable risk to the Australian community, and continued to be a threat to the Australian community.

41 Senior counsel for the appellant pointed out that at no time subsequent to 10 July 2000, when the request was made for release under s 253(9) of the Act, and the date of the decision on 12 March 2001 was the appellant interviewed or assessed concerning any question of risk of him re-offending, nor was he informed that the respondent intended to determine his application without any fresh investigation. It was also submitted (and acknowledged) that he was not explicitly informed that the respondent proposed to consider whether there was a risk that he might re-offend or that he might continue to be a threat to the Australian community in making the decisions. It was also submitted that the appellant was not informed that his deportation could not be given effect to until an Australian-Vietnam deportation agreement was entered into, or about the details of the negotiations towards reaching an MOU. An affidavit before the Court on the hearing before Marshall J disclosed that a draft MOU had been submitted to the Vietnamese government in March 2000, that there had been a number of exchanges between Vietnamese and Australian officials on points of detail thereafter, that on 4 December 2000 the Vietnamese government had submitted a revised draft of the MOU, and that detailed constructive negotiations had taken place at a meeting on 15 and 16 February 2001 following which (as at March 2001) a further response from Vietnamese officials was being awaited.

42 In our judgment, the appellant has failed to demonstrate that the learned judge at first instance erred in his assessment that the information available to the appellant and his legal advisers as a result of the two letters of 23 January 1998 and 19 September 2000, together with the previous Refugee Review Tribunal and Administrative Appeals Tribunal decisions substantially identified the critical issues which the appellant was required to address. We reject the contention that the appellant and his legal advisers were not aware of the need to address the four critical issues identified by the appellant referred to in [37] above: the risk of re-offending, the risk of harm to the victims of his previous offences, the risk of avoiding deportation by going into hiding in Australia, and the prospect of a deportation order being effected including difficulties in that process.

43 Correspondence from the appellant's previous legal advisers at the time of his earlier request for release from immigration detention indicates an awareness of those matters. His previous application for release under s 253(9) was supported by psychiatric and psychological reports about the appellant. The delegate of the respondent indicated that she reached her decision, notwithstanding those reports, that the appellant posed an unacceptable risk to the Australian community. The letter of 10 July 2000 contained no additional information on the topic, but there was no impediment to the appellant through his legal advisers procuring and submitting such information. It was equally identifiable as an issue in July 2000 as in December 1997 that the appellant might re-offend and expose members of the Australian community to risk, including those he had previously injured, if released from immigration detention. It was equally identifiable in July 2000 as in December 1997 as an issue that he might endeavour to avoid deportation by evading the authorities. Indeed, the reasons for the decision given on 23 January 1998 provide a clear indication to the appellant that any subsequent request for his release under s 253(9) of the Act would involve the respondent considering those issues. They were also clearly enough identified in the letter from Senator Patterson of 19 September 2000, particularly in the passage quoted in [39] above. The letter from the appellant's legal advisers dated 10 July 2000 itself recognised that there were ongoing negotiations between the Australian government and the Vietnamese government towards an MOU for the orderly return of deportees to Vietnam. If there were submissions the appellant wished to put about the effect of that process, or about any delay it was causing or might cause in his deportation beyond the complaints of delay which he made, or that there was no realistic prospect of him being deported in the circumstances, he could have done so. He might have sought further information about the MOU process. But the significant matter is that he was aware of the general issue. It was recognised in the letter of 10 July 2000. Subsequent correspondence related to the information to be provided to the Vietnamese authorities.

44 Accordingly, in our judgment, the appellant has not demonstrated error on the part of the judge at first instance in his consideration of whether the appellant was accorded procedural fairness by the appellant not being aware of the significant issues which the respondent addressed in making the two decisions.

45 The second way in which the appellant contended the respondent failed to accord him procedural fairness was in failing between July 2000 and March 2001 to interview the appellant about the risk of him re-offending, or to conduct a fresh assessment of the risk of him re-offending.

46 It is common ground that the appellant was not interviewed by any officer of the respondent on that topic during that period. It does not follow that the appellant did not have the opportunity to make such representations, and to present such material, as he was advised on the topic either at the time of his request by letter of 10 July 2000 or at any time until the decisions were made on 12 March 2001. The material accompanying his initial request under s 253(9) on 12 December 1997 illustrates that he was then aware of the desirability of addressing that topic, and that he then availed himself of the opportunity to do so. There is no reason why his awareness of the significance of the topic should have diminished because of the passage of time, or by reason of the period of time he had spent in immigration detention. Nor is the fact that he had apparently continued to have been of good behaviour a reason why he should no longer have such an awareness between July 2000 and March 2001.

47 One matter identified in the written contentions on behalf of the appellant was that neither the respondent nor DIMA informed him that the decisions of the respondent would be made without "any fresh investigation" of the risk of the appellant re-offending or being a risk to the Australian community, or of the fears claimed to have been held by the victims of his offences, during the period July 2000 to March 2001. Both in relation to this ground of appeal, and the ground of appeal complaining that the decisions were so unreasonable that no reasonable person could have made them, the apparent absence of any investigations by the respondent of those topics in the period July 2000 to March 2001 was contended to demonstrate error on the part of the respondent.

48 It should first be noted that the appellant did not contend that the respondent did not address the topics referred to. He clearly did. His reasons for the decisions indicate that. Nor did the appellant contend that the respondent was not entitled to have regard to the information to which, through his delegate, he had regard in making the decision on 8 January 1998 under s 253(9) of the Act to refuse to release the appellant from immigration detention. Clearly the respondent was entitled to have regard to that information. There was no new information to indicate it was in any material way erroneous.

49 Senior counsel for the appellant submitted that the passage of time since that decision meant that the appellant had been in immigration detention for a longer period, that his period of good behaviour in immigration detention had equally been lengthened, and that the passage of time might have lead to his victim's fears of the appellant being reduced as well as any threat to the Australian community being less. The submission is that, in those circumstances, the respondent was obliged to conduct further investigations after 10 July 2000 and before his decisions on the issues critical to those decisions. The failure to inform the appellant that he did not intend to do so was said to be an element of the failure to accord him procedural fairness. In addition, the failure to do so was said to inform the claim that the decisions were so unreasonable that no reasonable person could have made them.

50 In Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 and [2002] FCA 589 at [214], Wilcox J referred to his earlier remarks in Prasad at 169-170 (endorsed by the Full Court in Luu v Renevier (1989) 91 ALR 39 at 49) and in particular pointed out that he had said in Prasad at 170:

"It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."
Consequently, Wilcox J said at 417 [214]:

"It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored."
Luu v Renevier was a case where the decision of the administrative decision maker was set aside because it was one of those rare cases to which his Honour referred. To the knowledge of the decision maker, there was readily available information from a psychiatrist supervising the respondent as to the respondent's progress on an issue of critical importance to the decision, namely the risk of recidivism. Hence the Full Court (Davies, Wilcox and Pincus JJ) found the case fell within the principle which their Honours expressed at 50:

"One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained."
See also Tickner v Bropho (1993) 114 ALR 409, especially per Black CJ at 423-425.

51 The difficulty confronting the appellant's contention in this matter is that the judge at first instance found that there was no information before the respondent which indicated that there was any evidentiary material readily available about the risk of the appellant absconding if he were to be released from immigration detention, or about the risk of him re-offending if he were released into the Australian community, including in relation to the victims of his crimes. He had previously been examined by certain doctors whose reports were provided by his then solicitors in support of his earlier request on 12 December 1997 under s 253(9) of the Act for release from immigration detention. But there was nothing to indicate to the respondent that the appellant had been under continued medical supervision, or that his solicitors had arranged any up to date medical assessment of his condition in relation to those issues. Indeed, had they done so, the respondent might have expected that such information would have been submitted to him for his consideration.

52 Senior counsel for the appellant submitted that the respondent should himself have arranged to have the appellant interviewed and medically assessed, and should have conducted inquiries of the appellant and those who had offered to maintain and supervise him if he were released from immigration detention upon conditions. The appellant however had the opportunity through his solicitors of presenting such information as he wished on those topics. As noted in the reasons above, the appellant was aware that the issue that he might seek to abscond if released from immigration detention, and the issue that, if released, he might be a danger to the Australian community and to the victims of his earlier crimes, were matters to which the respondent would be giving consideration in making his decisions.

53 In our judgment, his Honour did not err in concluding that the appellant was accorded procedural fairness as explained by Mason J in Kioa at 587.

54 It follows from the above that the appellant's contention that the decisions were so unreasonable that no reasonable person could have reached them, because of a failure to conduct the inquiries to which senior counsel for the appellant referred, must also fail. Subject to the matter raised on the amended ground of appeal, and on the assumption that the respondent was entitled to address those issues as relevant considerations in the making of the decisions, the appellant was aware that he would do so. The respondent did so. The respondent referred to recent information provided concerning the offers of supervision, employment and accommodation made to the appellant. He referred to the possibility of the appellant being released upon conditions related to his supervision, employment and accommodation. To the extent that there was further information before him on those topics, he had regard to it.

55 The appellant contended that the findings firstly that there was a risk of him re-offending if he were released into the Australian community, so that he constituted a continuing danger to the Australian community including the victims of his previous crimes, and secondly that he might attempt to avoid deportation by evading officers of DIMA if he were released from immigration detention, were each findings which were so unreasonable that no reasonable person could have reached them. The contention was said to be fortified by the respondent's having not conducted any further inquiries in relation to the appellant's mental state or in relation to those offering to accommodate, employ and supervise him.

56 The nature of the unreasonableness ground of review was explained in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [1999] HCA 21(Eshetu) by Gummow J at 654 [137]:

"... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it would be very difficult to show that no reasonable decision maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or deny, that the necessary criterion has been met was all one way. ... That other decision makers may have reached a different view, and have done so reasonably, is not to the point."
See also the discussion in Minister for Immigration & Multicultural Affairs v Betkhoshabeh (1999) 55 ALD 609, [1999] FCA 980 (O'Connor, Sundberg and North JJ) at 612-614 [8]-[12].

57 This is not a case where there was no material upon which the respondent could have been satisfied of those issues. The material upon which he based his decisions is referred to, and the reasons for decision given. It is true that the material is largely historical, that is what the appellant had done in the past or was perceived to have done in the past, and that there was no real new information with respect to those critical matters acquired in the period July 2000 to March 2001. There may be circumstances when the administrative decision-maker acting in part on information of some antiquity in the face of the elapse of time might fall within the "Wednesbury unreasonableness" principle. But in this matter we are not persuaded that the judge at first instance erred in concluding in all the circumstances that the decisions of the respondent did not fall within that principle. Indeed, in the circumstances, to accede to the propositions put in that regard on behalf of the appellant would amount to intervening in the merits of the decision and to substitute for the decisions of the respondent a view on the merits of the case. The Court is not entitled to do that: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37.

(b) The Risk of Flight

58 Senior counsel for the applicant contended that it was not open to the respondent to have found that there was a "risk of flight" if the applicant were released from immigration detention under s 253(9) of the Act, because there was simply "no probative material" upon which such a finding could have been made.

59 A finding of a risk of flight is one which should be made in relation to the circumstances of a particular case, that is in relation to the particular potential deportee. Reference was made to the appellant's consistent good behaviour whilst in detention, and to his expressed desire to be deported to Vietnam, as positive indications that there was no risk that he would go into hiding if he were released from immigration detention. However, we are not persuaded that the respondent did not have regard to those matters in deciding that there was a risk that the appellant, if released from detention, might put himself beyond the reach of DIMA. The learned judge at first instance concluded, despite some concerns, that it was nevertheless open to the respondent to find that there was some risk of flight by the appellant if he were released from detention. The respondent had before him the history of the appellant's attempts to remain in Australia, as well as his request to be deported to Vietnam. From 3 August 2000, the appellant had a request to the respondent to cancel the deportation order made on 9 May 1997. The respondent further had before him details of the appellant's past conduct in Australia, of the sentencing remarks of the judge, and of the appellant's presentation of the events concerning the conduct giving rise to his criminal convictions in a way different from that found by the sentencing Judge and by the Administrative Appeals Tribunal. The material before the respondent also adverted, albeit briefly, to the material indicating the possibility of releasing the appellant from detention under conditions.

60 The respondent's consideration of this issue, set out in [14] above, recognised that there was no specific evidence indicating that the appellant was likely to abscond if released from detention. Those reasons, however, do indicate that the respondent addressed the individual circumstances of the appellant.

61 We do not think it can be concluded that the respondent's finding that there is a risk of the appellant absconding if he were released from immigration detention was one which was not available to him. It was, in our view, an available inference from what the respondent knew of the appellant. Indeed, it is likely to be a rare case where there is clear direct evidence pointing to the risk of absconding except where, in the past, there has been an attempt to abscond. The inference was one which "depended upon a view of the facts that was open" to the respondent: see per Callinan J in Eshetu at 672 [194]. Accordingly, on this issue, we do not consider the learned judge at first instance erred in the manner asserted by the appellant.

(c) Whether the Detention was Unauthorised

62 The power of detention in s 253(1) of the Act is only a power of detention pending deportation, so detention for some extraneous purpose would not be authorised under that provision: see Koon Wing Lau v Calwell (1949) 80 CLR 533 (Koon Wing Lau) per Latham CJ at 555 cited with approval in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 per Deane and Dawson JJ (Lim). That position is clear from the terms of s 253(8) set out in [10] of these reasons. Their Honours in Lim said:

"In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective."
Although the provision there under consideration in the Act was in somewhat different terms from s 253 of the Act, in our view the views there expressed remain apposite.

63 The appellant contends that, because the respondent had no way of knowing whether it would ever be possible to effect the deportation order, the respondent was not exercising the power to detain bona fide for the purpose of holding the appellant in detention pending his deportation. It should be noted that the appellant's contention is based upon the proposition that the inability of the respondent to know with any precision whether deportation of the appellant to Vietnam was possible of itself means the respondent was not exercising the power of detention for the purpose of detention pending deportation. The appellant, in written submissions made after the hearing, sought leave to put in issue the actual purpose of the respondent in holding the appellant in detention. For the reasons set out in [33], we would refuse the leave sought. The argument available to the appellant is that, by reason of the uncertainty about whether deportation of the appellant is possible and if so at what time, the respondent cannot be holding the appellant in detention bona fide for the purpose of his deportation.

64 In our judgment, this contention of the appellant should be rejected. It does not follow from the fact that the time when deportation will be effected may not, at a particular time, be identifiable with precision that the purpose of the detention is not for the purpose of deportation. At the time of detention under s 253(1) it will generally be unlikely that the time at which deportation will be effected will be known with any precision. Section 253(2) provides that a deportee detained under s 253(1) may be held in immigration detention as a deportee in accordance with subs (8). 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 whilst deportation arrangements are put in place and are executed.

65 That view is reflected in the decision of the Full Court (Beaumont, Mathews and Emmett JJ) in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371, [2000] FCA 803, in particular at 374 [12]-[13] where their Honours said:

"... we cannot accept that the length of detention can of itself destroy the legal validity of the detention. In our view, the statutory scheme is explicitly to the contrary: as has been noted, s 206(2) squarely addresses the question of delay. This is not to say that no other avenues of approval are 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."

66 It may be that the length of the period of detention, and the prospects of effecting deportation in any reasonable time frame, may in all the circumstances of a particular case lead to the conclusion that the purpose of the detention is no longer "pending" deportation. That involves an inquiry into the state of mind of the respondent. The appellant's application at the completion of submissions to present such a contention in this matter has been refused. It would therefore be inappropriate to speculate about the sort of evidence which might lead to a conclusion that the respondent no longer has the purpose of detaining a deportee pending deportation. We observe however that where, as the learned judge at first instance found, the respondent had a reasonably specific approximation of when the appellant was likely to be deported, and the likely time when deportation would be effected was not remote in time, unless there were other evidence of some weight pointing to the respondent not exercising the power of detention for the permitted purpose, those factors would generally support the view that the purpose of detention continued to be pending deportation.

67 The validity of the deportation order made under s 200 of the Act on 9 May 1997 is not challenged. It remains valid. Its validity is not lost by delay in implementing the deportation order: per Gummow J in Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 at 380, and see s 206(2) of the Act. As there is in force a valid deportation order, the detention power under s 253(1) may validly be exercised and the detention maintained pending the deportation. 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. So much was accepted by Brennan, Deane and Dawson JJ in Lim at 31-32 where their Honours quoted with approval a lengthy passage from the reasons for judgment of Latham CJ (with whom McTiernan and Webb JJ agreed) in Koon Wing Lau at 555-556, including that:

"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 unauthorised and a writ of habeas corpus would provide an immediate remedy."
The legislation there under consideration was the Wartime Refugees Removal Act 1949 (Cth), but in general terms it was expressed similarly to the provisions of the Act now under consideration and s 7 of that Act authorised detention of a deportee "pending his deportation", and so is in a real sense to the same effect as s 253(8)(a) of the Act.

68 The Commission contended that s 253(9) of the Act should be construed so as to impose some "upper limit" on the length of detention when the respondent is considering whether to release a deportee from immigration detention. It accepts that the same construction should be given to the detention power under s 253(1). Reference was made to the recent decisions of the US Supreme Court in Zadvydas v Davis 533 US 678 and of Collins J and the Court of Appeal in R (on the application of Saadi) v Secretary of State for the Home Department [2001] 4 All ER 961.

69 The contention to that effect was not put before the judge at first instance. It was not expressly put in the written submissions on behalf of the appellant. We do not consider it necessary or appropriate to determine that question on the present application. Even accepting that there is some implied temporal limitation upon the exercise of the detention power under s 253(1), or upon the exercise of the power to maintain detention under s 253(9), rather than a limitation by reference to the purpose of the respondent (which might be assessed, inter alia, having regard to the length of the detention and the prospects of deportation within a reasonable or measurable time), the judge at first instance concluded that the respondent was able to give a reasonably specific approximation of when the appellant was likely to be deported. We did not understand the appellant to contend that his Honour erred in some appellable way in that finding. We do not consider the cases to which the Commission referred would support a construction of s 253(9) of the Act intended by the legislature which would render the decision to maintain the appellant in detention unlawful and unauthorised where the respondent was able to give a reasonably specific approximation of when the appellant was likely to be deported. His Honour accepted that the respondent considered it was likely that an MOU with Vietnam would be completed by a particular time and any real impediments to the appellant's deportation would apparently then be able to be resolved.

(d) Whether the Detention was Indeterminate

70 The appellant further contended, as he had at first instance, that the appellant was subject to indeterminate detention, and by reason of his indeterminate detention he was subjected to cruel and inhuman treatment contrary to Art 7 of the ICCPR to which Australia is a signatory. The Commission supported his contention. Consequently, the argument ran, the respondent was bound to take into account those matters in reaching his decisions and he had failed to do so.

71 In our view the detention of the appellant was not indeterminate so as to contravene Art 7 of the ICCPR, assuming, for the purposes of consideration of the argument, that a contravention of Art 7 would be a matter which the respondent was obliged to take into account in making the decisions or either of them. The learned judge at first instance did not find that the appellant's detention is indeterminate. After referring to the relevant evidence, his Honour concluded at [72]:

"In my opinion, the effect of the decision of the Minister at 12 March 2001 was not to place Mr Luu in indeterminate detention because the Minister was able to give a reasonably specific approximation of when Mr Luu was likely to be deported. Clearly, such an approximation must be supported by evidence confirming its likelihood. If the evidence showed that the Vietnamese government had refused to enter into negotiations or if negotiations appeared to have stagnated, the Minister's approximation that an MOU was likely to conclude would be unfounded and his decision may well have had the effect of keeping Mr Luu in indeterminate detention. However, in the circumstances, the evidence before the Minister suggested that negotiations between Vietnam and Australia had progressed. On this basis the Minister found it was likely that an MOU would be concluded by the end of the year. I am in no position to dispute this finding. As noted above I have not addressed whether a decision made by the Minister prior to 12 March 2001 would have been a decision that had the effect of keeping Mr Luu in indeterminate detention."
The respondent had formed the view that there was a high probability that a MOU between Australia and Vietnam relating to the return to Vietnam of criminal deportees would be concluded during 2000, so there was a real prospect that the appellant would be deported in the reasonably foreseeable future. Senior counsel for the respondent pointed out that the appellant during the hearing at first instance had acknowledged through counsel that it was open to the respondent, on the material before him, to have reached such a conclusion.

72 In Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287, [1999] FCA 1342 at 290 [14] (Perez) Madgwick J described "indeterminate detention" as detention "for a long period or for an unknown period which is not acceptably short". Perez concerned the validity of a deportation order under s 200 of the Act. His Honour concluded at 292 [24] that a deportation order may not be valid unless there is a reasonable prospect of the order being effectuated within a reasonable time, and at 293 [25] that s 253(8) and (9) should be read as being subject to

"a clear implication that there must be a real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future."
His Honour's remarks were considered by the Full Court in Vo, and then by Allsop J in Perez v Minister for Immigration & Multicultural & Affairs [2002] FCA 450 at [98]-[107]. Although Allsop J set aside the decision then under consideration to maintain immigration detention under s 253(9), his Honour did so for reasons particular to that case. His Honour, as he was obliged to do, followed the decision in Vo, in particular the passages referred to above at [65].

73 It may be accepted, as the Commission argued, that administrative detention for a long or indefinite period should not be authorised except by clear statutory language. It may also be accepted that legislation ought to be read where possible in conformity with the established rules of international law and Australia's international obligations: see e.g. per Brennan, Deane and Dawson JJ in Lim at 38, even though the ratification of an international instrument does not import into Australian domestic law the terms of such an instrument: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh). The respondent did not, in contentions, dispute those propositions.

74 The decision of the learned judge at first instance, however, had regard to the period of immigration detention already undergone by the appellant. His Honour accepted, as noted earlier, that the respondent had a rational basis for expecting the deportation of the appellant to be effected within a reasonable and finite period. His Honour in all the circumstances did not regard the respondent's decision under s 253(9) as imposing a period of indeterminate detention upon the appellant. For the reasons already given, we are not persuaded that his Honour's decision is erroneous. That is not to say that the appellant might not, at some other time, apply for release from immigration detention or that, in the circumstances then obtaining, his continued detention might not be beyond the power of detention authorised by ss 253(1), (8) and (9) of the Act. But the present appeal, on the findings of fact we have accepted, does not require consideration of such a claim. As we indicated at the commencement of the hearing, the opportunity of the appellant to apply again to the respondent for the cancellation of the deportation order and for his release from immigration detention remains.

(e) Whether the detention was punitive

75 The appellant's brief contention on this topic was that his continued detention in Port Philip Prison and not in an immigration reception and processing centre conducted by or on behalf of the respondent was unlawful, because it amounted to the respondent exercising the powers of detention under s 253 of the Act for punitive purposes. If that were the purpose of the placing of the appellant in immigration detention or in immigration detention in Port Philip Prison, then it would be an unlawful detention for reasons already given, and see Lim at 32.

76 But, as the respondent through senior counsel pointed out, the Act contemplates that immigration detention may be effected in a prison of a State: see cl (b)(ii) of the definition of "immigration detention" in s 5 of the Act. Thus the fact that the appellant is in immigration detention does not, of itself, indicate anything about the respondent's purpose in making the decisions now under appeal, and in retaining him in immigration detention. As we have determined that the appellant has not otherwise demonstrated that the respondent's purpose in making the decisions was not authorised by the Act (and the appellant's application to amend the grounds of appeal to open the issue as to the respondent's subjective purpose when making the decisions the subject of this appeal has been refused), the assertion that the appellant remains in immigration detention because the respondent wishes to punish him cannot succeed.

(f) Protection of the Australian community: an irrelevant consideration?

77 The appellant raised this ground in written submissions only after the hearing. It concerns only the decision under s 253(9) of the Act. He appears to have been prompted to do so by submissions of the Commission.

78 In Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389, Lehane J at 398 referred to the power conferred by s 253 in the following terms:

"The Migration Act does not specify the matters to be taken into account by the Minister in exercising the power to detain under s 253 (or under s 254) or the power, under s 253(9), to order the release of a deportee from detention. Those matters are, therefore, to be ascertained (as a matter of construction) by considering the subject matter of the power and the purposes for which it has been conferred: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, 40 per Mason J. An obvious principal purpose of the power is to ensure that a deportee is available for deportation, and matters going to the likelihood (or otherwise) that the deportee will do so are of particular importance. Some of the matters relied on by the applicant may be relevant to that question. Another relevant consideration is whether the applicant is likely (perhaps through renewed criminal activity) to be a danger to the Australian community: Towers v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Carr J, 16 February 1998) at pp 11, 12. That follows from a principal purpose of criminal deportation, and thus of the ancillary power to detain, the protection of the Australian community.
79 The approach of Lehane J in Tuiletufuga has been cited with approval by O'Connor J in Lokeni Hui v Minister for Immigration & Multicultural Affairs [1998] FCA 1563 and by Sackville J in Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 705. In Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, [1999] FCA 726, the Full Court (Sundberg, North and Dowsett JJ) at 31 [9] adopted the views of Lehane J in Tuiletufuga as to the interaction of ss 253 and 254 of the Act in the following terms:

"In our view the relationship between ss 253 and 254 is as follows. Once a notice has been given under s 254(2), subs (3) makes the other provisions of the Act, apart from s 253(1) and (3), applicable. These other provisions apply in relation to a deportee as if he had been detained under s 253(1) at the custody transfer time. One of the other provisions is s 253(2), which confers power to keep a deportee who has been detained under subs (1) in immigration detention or in detention as a deportee in accordance with subs (8). Subsection (8) allows the deportee to be kept in immigration detention or such detention as the Minister or Secretary directs. No independent power to detain is necessary."
Although not touching directly upon the point presently under consideration, their Honours do not suggest the restriction upon the factors relevant to the respondent's decision making power under s 253(1) or (9) of the nature now contended for.

80 Indeed, although we would give leave to amend the grounds of appeal to raise the point, it is not clear that this is an entirely appropriate matter to ventilate the issue. The appellant does not now challenge the decision that he be placed in immigration detention. When he first sought a decision that he be released from detention, he asked the respondent to address (inter alia) whether he remained a risk to the Australian community; he presented medical reports directed to that topic. A significant complaint he now makes about the decision of the respondent of 12 March 2001 under s 253(9) not to release him from immigration detention is that the respondent did not inform him that the respondent did not intend to re-investigate or further investigate whether the appellant's release might involve a risk to the Australian community, including the victims of his crimes.

81 However, for the reasons given earlier, the point has been permitted to be raised. It should first be noted that there is no reason to distinguish, for this purpose, a decision made under s 253(1) to detain a deportee from a decision made under s 253(9) to maintain a deportee in immigration detention. Nor is there any reason to distinguish, for this purpose, a decision made under s 254(2) to effect the continued detention of a deportee at the expiration of the time when the deportee would otherwise be released from custody at the expiration of the sentence. As discussed earlier, the purpose for which any of those powers may be exercised is to secure, or to act in aid of, the deportation of the deportee pending deportation.

82 It does not follow, in our view, that the considerations relevant to such a decision may not include the protection of the Australian public. Whether that is so is a matter of construction of the relevant provisions. The nature of the deportation power, and the concomitant or complementary detention power, is to exclude the deportee from the Australian community and to do so pending the deportation. In Lim McHugh J said at 71:

"Similarly, imprisonment of a person who is the subject of a deportation order is not ordinarily punitive in nature because the purpose of the imprisonment is to ensure that the deportee is excluded from the community pending his or her removal from the country. Likewise, the lawful imprisonment of an alien while that person's application for entry is being determined is not punitive in character because the purpose of the imprisonment is to prevent the alien from entering into the community until the determination is made. But if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character."
83 It is apparent from his Honour's observations that the exercise of the detention power to exclude a deportee from the community pending deportation is not of itself the exercise of a punitive power. It is but a small step then to accept, as we do, that a relevant factor in deciding whether to detain a deportee pending deportation, or to maintain such detention pending deportation, is the protection of the Australian community. Indeed, until the fresh ground of appeal at the close of submissions, the appellant acknowledged as much. If a deportee is about to be released from a custodial sentence for a heinous crime, it is not apparent to us why the legislature would intend to exclude from the respondent's consideration protection of the Australian community when deciding whether to place the deportee in immigration detention pending deportation. It is a consideration consistent with the objective served by deportation, as it achieves pending deportation the removal of the deportee from the Australian community. Thus Davies J in Ceskovic v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 559 at 454-455 said of a prospective deportee who was in fact a refugee:

"Immigrants who fear for their life or liberty in their homeland cannot expect to remain in this country of their adoption if they so conduct themselves as to be a danger to the community ... It is sufficient that his continued presence in Australia is a danger to Australian citizens and to others whom Australia permits to enter its borders."
84 Moreover, there is a line of cases in this Court which have recognised that the protection of the Australian community is a relevant consideration to the respondent's decision whether to detain, or maintain the detention of, a deportee: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 622; Msilanga v Minister for Immigration Local Government and Ethnic Affairs (1991) 24 ALD 353 upheld on appeal, Minister for Immigration Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169; Gray v Minister for Immigration Local Government & Ethnic Affairs [1992] FCA 1021; Pylka v Minister for Immigration & Multicultural Affairs [1997] FCA 1503; Betkhoshabeh; and Davidson v Minister for Immigration & Multicultural Affairs [1999] FCA 575.

85 Betkhoshabeh addressed the respondent's deportation policy made under s 499 of the Act. The respondent is empowered to give general directions, not inconsistent with the Act, as to how functions and powers under the Act are to be exercised. The direction entitled "General Direction - Criminal Deportation - No. 9" given on 21 December 1998 applied to the decision under s 253(9) given on 12 March 2001. Relevantly, it provided:

"In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it."
A deportee may continue to be held in custody pursuant to the Migration Act pending finalisation of appropriate deportation arrangements and cannot expect to enjoy any period at liberty within the Australian community between the expiration of their penal servitude and deportation from Australia."

86 Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [2000] FCA 1385 at 324 [35] remarked in relation to the power to deport under s 200 of the Act:

"The question ultimately to be decided is one of statutory interpretation. Section 200 of the Act gives the applicant a discretion in unconfined terms to order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. If there are any limitations on the matters to which the applicant is entitled to have regard in the exercise of that discretion, they must be able to be gleaned from the subject-matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 39-40). In this regard it is of significance that the discretion has been conferred on a Minister of the Crown. The Legislature may be assumed to have intended that a Ministerial discretion might be exercised taking into account quite broad policy considerations (Peko-Wallsend per Mason J at 42). The Policy Direction reflects just such broad policy considerations."
87 There has been no direct challenge to the validity of the Direction referred to. In Betkhoshabeh, Weinberg J at 520-521 [86] said of the policy which the Direction identifies:

"The Minister would have been entitled to act in accordance with his own deportation policy which places the safety and interests of the community ahead of those of the putative deportee. That policy which recognises that where a decision that a person should be deported has been taken, in part at least because of the danger that that person poses to the community, it is scarcely logical that he should be released from custody pending the resolution of all challenges to that decision ..."
There are no express criteria in ss 253 or 254 as to the factors relevant to the exercise of those powers, including the power to release from immigration detention under s 253(9) of the Act. In that circumstance, it is not apparent why the factors which the respondent identified in the Direction are inconsistent with the Act, as it contemplates the removal of a deportee from the Australian community pending deportation. Criminal deportation under ss 200 and 201 of the Act effects the legislative intention that non-citizens convicted of certain crimes may be removed from the Australian community, in effect by reason of the commission of such a crime. The detention of a deportee pending deportation is a means of removing such a person from the Australian community until the deportation is effected. It is not inconsistent with the fulfilment of that purpose that the respondent, in deciding whether to detain a deportee, or to maintain the detention of a deportee, may have regard to the protection of the Australian community. To do so is not, of itself, to exercise a punitive power as explained by McHugh J in Lim referred to in [82] above.

88 The Commission contends that McHugh J in Lim went no further than saying that detention for the purpose of preventing an individual from committing further criminal offences against Australian citizens is not an authorised consideration when the respondent decides to impose, or maintain, immigration detention on a deportee. In our view, for the reasons already given, his Honour went a little further than that. The respondent, once a deportation decision has been made, is empowered to detain the deportee. It is clear the deportation decision is made having regard to the deportee's past criminal conduct. In the case of criminal deportation, it is that conduct which creates the circumstance for the exercise of the deportation power and the reason for the particular exercise of that power. As a matter of legislative intent, we consider the respondent could have regard to that conduct when determining whether to exercise the power under s 253. The purpose of the exercise of the power remains the effecting of the deportation of the deportee and, whilst that process takes place, the removal of the deportee from the community. If that purpose continues to exist "pending deportation", in the manner discussed above, the detention is not punitive. In our view, that was the approach explained by McHugh J in Lim. As his Honour there contemplated, the circumstances may indicate that the purpose of detention is not, or is no longer, to achieve the "non-punitive object", but that position was not established in this matter.

89 Nor do we accept the Commission's contention that the respondent's contentions conflate the purposes of the power to deport and the power to detain pending deportation. The respondent acknowledged that a decision to detain a deportee does not necessarily follow a decision to deport. Indeed, the respondent's reasons for the decision under s 253(9) now under consideration recognise that detention, or the maintenance of detention, does not routinely follow from the making of a deportation order. However, as we have concluded, the considerations relevant to the making of a deportation order are not necessarily different from those relevant to the making of a detention order pending deportation. Whether the considerations overlap is a matter of construction of the particular provisions.

(g) Failure to consider relevant considerations

90 There were two broad categories of considerations which, the appellant contended, the respondent was obliged to, but failed to, take into account in making the decisions. The first category concerned the appellant's personal circumstances. The second category concerned alleged contraventions of Articles of the ICCPR.

91 It is of course clear that this ground of appeal can succeed only if the appellant established that there were matters which the respondent was required by the relevant provisions to consider and which he did not consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [73]; (2001) 180 ALR 1.

92 We assume, without necessarily accepting, that the matters which the appellant claimed to fall into the first category referred to are each matters the respondent was required to consider in making the decisions. In our view, the respondent is not shown to have failed to have regard to any of them. The matters to which attention was drawn by senior counsel for the appellant were each the subject of consideration by the respondent. They are: the length of time the appellant had been in immigration detention, and his behaviour whilst in detention; the place where the appellant was detained; the prospects of the appellant being released into the community subject to reporting and supervision and like conditions; the offers to supervise and accommodate the appellant within the community, and to provide him with support in relation to employment and counselling; and the prospects of the appellant's deportation being effected within some measurable time.

93 It may be accepted that, if the respondent was about to make the decisions under consideration in a manner which was inconsistent with Australia's international obligation under the ICCPR, he should have given notice to the appellant of his intention to do so and to have given the appellant an adequate opportunity to present submissions in relation to those issues. It may also be accepted that the respondent was required to take into account that, if it were the case, the decisions would contravene provisions of the ICCPR: see Teoh. However, for reasons we have already given, we do not consider that the respondent's decisions did contravene Australia's international obligations under Arts 7 or 9 of the ICCPR. The Commission, but not the appellant on the appeal, also contended that the respondent's decision under s 253(9) contravened Art 10(1) and Art 10(2)(a) of the ICCPR. In the circumstances, it is not strictly necessary to address those matters. It is sufficient to indicate that we agree with the reasons for decision of the judge at first instance as to why in this matter the decision under s 253(9) did not in fact contravene those Articles of the ICCPR.

94 We are therefore of the view that this ground of appeal has not been made out.

CONCLUSION

95 For the reasons given, we consider the appeal should be dismissed. The appellant should pay the respondent's costs of the appeal. The submissions of the Commission were directed principally to matters of general significance as to the proper construction of s 253(9) of the Act, and more generally s 253 of the Act. We therefore have the tentative view that no order for costs should be made in relation to its participation in the appeal. If the respondent, however, wishes to make any application for costs against the Commission, we would allow him 14 days to file and serve written submissions in support of that application and the Commission will then be allowed 14 days to file and serve written submissions in response. In that event, the Court would then rule on the application on the basis of the written submissions.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, North & Mansfield.




Associate:

Dated: 27 November 2002

Counsel for the Appellant:
Mr C Maxwell QC with Mr H Carmichael






Solicitor for the Appellant:
Access Law






Counsel for the Respondent:
Mr C Gunst QC with Mr C Horan






Solicitor for the Respondent:
Australian Government Solicitor






Counsel for the Human Rights and Equal Opportunity Commission Intervening by Leave:
Ms D Mortimer






Solicitor for the Human Rights and Equal Opportunity Commission Intervening by Leave:
Mr C Lenehan






Date of Hearing:
12 November 2001






Date of Last Submissions:
21 December 2001






Date of Judgment:
27 November 2002


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