Commission submission - MING DUNG LUU

IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY

No V995 of 2001

BETWEEN

MING DUNG LUU Appellant

and

THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

SUBMISSIONS IN REPLY TO RESPONDENT'S SUBMISSIONS OF 23 NOVEMBER 2001

INTRODUCTION

1. These submissions are filed pursuant to the directions given by the Full Court and conveyed to the Human Rights and Equal Opportunity Commission ("the Commission") in a facsimile from the Associate to the Honourable Justice Gray dated 17 December 2001. They are directed only to the issues raised in the respondent's submissions of 23 November 2001 (including the respondent's submissions on the issue of costs - which were not foreshadowed at the hearing).

IMPROPER PURPOSE GROUND

2. The Commission did not have the opportunity, prior to filing its supplementary submissions of 18 November 2001, to consider the terms of the appellant's proposed amendment to the Notice of Appeal (set out in paragraph 5 of the appellant's submissions of 20 November 2001 (the "Proposed Amendment")). 3. The Commission understands that the respondent does not oppose the grant of leave insofar as it concerns paragraph (b)(ii) of the Proposed Amendment (see paragraphs 5 and 6 of the respondent's submissions of 23 November 2001). The Commission supports the application for leave in respect of this ground. 4. In respect of paragraph b(i) of the Proposed Amendment (the improper purpose ground), the Commission makes no submissions on this part of the application for leave to amend, as the appellant has not identified any particulars in respect of this ground and how, if at all, this ground might differ in substance from the considerations ground.

AVAILABILITY FOR DEPORTATION

5. The Minister has given a general direction under section 499 of the Act regarding the exercise of the powers conferred by sections 200 and 201 (the "General Direction", which appears at AB 130 - discussed further below). The General Direction includes a statement to the effect that a person should not "normally" be deported for criminal offences until they have served any custodial sentence (see paragraph 32 of the General Direction at AB 140). However, that does not mean that such a person is, for the duration of their sentence, "unavailable for deportation". Subject to any procedural fairness requirements that may flow from that statement of policy, the power conferred by section 200 of the Act may still be exercised so as to deport such a person prior to the conclusion of their sentence. That person thus remains available for deportation. The fact that that power will not, by reason of the Minister's guidelines, "normally" be exercised to deport such a person until the end of their custodial sentence does not alter that position. [1]

PROTECTION OF THE COMMUNITY

6. The respondent's submissions may broadly be categorised as follows:

• The characterisation of the term "deportation";
• The purpose of the power to detain and the considerations relevant to that power; and
• The effect of the General Direction.

7. Reiteration by the respondent of submissions about the "homicidal intent" of a hypothetical deportee [2] is unhelpful and unnecessary: see paragraph 23 of the Commission's submissions dated 18 November 2001. The ordinary provisions of the criminal law (in addition to legislation dealing with orders in the nature of "intervention orders" [3]) address such hypothetical situations. Characterisation of the term "deportation" 8. A fundamental proposition underlying many of the respondent's further submissions is that deportation is not simply the physical removal of a person from the territorial limits of Australia, but rather:

"…is the removal of [a] person from the Australian community. It begins with the making of a deportation order, is effectuated by the detention of the person pending removal, and is completed by the physical removal of a person from Australia." [4]

9. The respondent cites no authority in support of that proposition. The Commission submits that it is plainly incorrect. The High Court in Chu Kheng Lim v Minister for Immigration[5] carefully distinguished between the power to expel or deport and the associated power to detain. [6] Deportation cannot be "effectuated" by detention of a person, otherwise there would not be a power to release pending deportation. Detention may be a necessary incident of the executive power to deport in some circumstances, but it is not an end in itself. 10. The terms of the Act suggest that deportation is the physical removal of a person from Australia. Section 200 of the Act provides:

"The Minister may order the deportation of a non citizen to whom this Division applies."

Sections 253(1) and (9) of the Act provide:

"(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person…..

(9) 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."

The terms of those sections indicate that "deportation" is the physical act of removal from the territory of Australia. [7] It is an act which the Minister orders, pursuant to section 200, to take place at some future time. The discretionary powers to detain are separately conferred by section 253 and their exercise is constrained by the principles set out by the High Court in Lim.

Purpose of the power to detain and the considerations relevant to that power

11. It is incorrect to conflate, as the respondent appears to do,[8] the purposes of the power to deport and the power to detain pending deportation. 12. The purposes of the power to detain under section 253 are, by reason of the importance placed by the common law upon the preservation of liberty, closely circumscribed. They are limited to the narrow purposes of "restrain[ing] an alien in custody to the extent necessary to make deportation or expulsion effective". [9] 13. It does not follow, from the mere fact that the detention power is facultative of the deportation power, that the powers may be exercised for identical purposes. It was, with respect, that assumption which led Lehane J to hold in Tuiletefuga v Minister for Immigration and Multicultural Affairs[10] that the protection of the Australian community is a purpose of the power of detention and thus a relevant consideration for the exercise of the discretion conferred by section 253(9) of the Act. The Commission has, in paragraphs 30-46 its submissions of 5 November 2001, discussed the reasons why it submits that his Honour was incorrect in that regard. 14. The passage from McHugh J's judgment in Lim extracted at paragraph 19 of the respondent's submissions of 23 November 2001 was dealt with in paragraphs 18 and 19 of the Commission's submissions in reply of 12 November 2001 and in paragraphs 12-21 of the Commission's further submissions of 18 November 2001. The respondent has not sought to address those submissions with any particularity. 15. Steed v Minister for Immigration and Ethnic Affairs[11] (referred to in paragraph 21 of the respondent's submissions of 23 November 2001) does not assist the respondent. That case involved an appeal from a decision of the Administrative Appeals Tribunal (the "AAT") affirming a decision of the Minister to deport the applicant. The applicant had been imprisoned for an offence and subsequently released on parole. The deportation order was made after the applicant's release, but prior to the expiry of his parole period. It was argued by the applicant, on the basis that a parole period was part of his sentence, that the AAT had failed to have regard to the above-mentioned ministerial policy to the effect that a person should not be deported during the term of their sentence. The Court rejected that argument, holding that the effect of the policy was that, in general, the period of time spent in custody should not be cut short by a deportation order. [12] In that context, the Court's remarks relied on by the respondent bear a different meaning:

"It could easily lead to strange and difficult results if an offender were to be at large in the community for some years after release from prison before his deportation could be considered and an order made." [13]

16. That statement was directed to the proposition that a deportation order could not be made during the term of a person's parole period. It is of no relevance to the present matter. 17. It is also incorrect to suggest that, in Minister for Immigration v Msilanga[14] , Beaumont J approved the comments of Northrop J in Piroglu v Minister for Immigration and Ethnic Affairs[15] regarding the policy of the Act (extracted in paragraph 22 of the respondent's submissions of 23 November 2001). Northrop J made those comments in support of his Honour's (obiter) conclusion that an applicant for interlocutory orders for release from detention associated with criminal deportation must show "exceptional circumstances". In Msilanga, Beaumont J (with whom Black CJ agreed) and Burchett J rejected that proposition and by implication also rejected Northrop J's comments regarding the policy of the Act. [16] 18. The remainder of the authorities cited by the respondent in its submissions of 23 November 2001 (other than Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470 which is discussed below) do not assist the respondent. 19. In Gray v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 18 December 1992) [17], Cooper J expressly stated at paragraph 6 that he was not deciding whether protection of the public pending review of a decision to make a deportation order was a proper purpose for the exercise of the power to detain pending deportation. 20. In Davidson v Minister for Immigration & Multicultural Affairs [1999] FCA 575 [18] , Lehane J made obiter comments to the effect that it "was well established" that risk to the community was one of the principal matters to which a decision maker is required to have regard in exercising the power to detain under section 253 of the Act. As his Honour observed, that issue did not arise on the facts before him. [19] His Honour nevertheless stated that the relevant authorities for that proposition were set out in his own decision in Tuiletufuga. As noted in paragraph 32 of the Commission's submissions of 5 November 2001, the only decision cited in support of that proposition in Tuiletufuga was an interlocutory decision of Carr J in Towers v Minister for Immigration and Ethnic Affairs [1998] 83 FCA (16 February 1998). Towers is not clear authority for that proposition. Carr J only stated that it was "arguable" that the risk of danger to the Australian community was a relevant consideration in respect of the three decisions under consideration in that case. 21. Like Towers, Msilanga v Hand (1991) 22 ALD 27 [20], Pylka v Minister for Immigration and Multicultural Affairs [1997] 1503 FCA [21], Kirakos v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 16 October 1990, Gray J) [22], Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 705 [23] and Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123 [24] all involved interlocutory applications for release from custody.[25] The question of whether risk to the community was a purpose of the power of detention and thus a relevant consideration in considering the power to release was not decided in Msilanga nor in Pylka.[26] Nor did that issue arise in Tuaoi (where the applicant conceded that risk to the community was a relevant consideration and the case conducted on that basis) [27] nor in Nguyen (where Sackville J appeared to view the risk of the applicant absconding as determinative of the application for relief) [28] . Gray J's decision to refuse relief in Kirakos was based upon the peculiar circumstances of that matter and the difficulties of dealing with the issues that arose therein on an interlocutory basis. [29] 22. In Lokeni Hui v Minister for Immigration and Multicultural Affairs [1998] FCA 1563 [30], the applicant challenged the Minister's delegate's decision to detain him pursuant to section 253 of the Act, on the basis that the decision involved a denial of natural justice. The applicant alleged that he had a legitimate expectation that the best interests of his children would be a primary consideration in making the decision under section 253 and that, as the decision was inconsistent with that expectation, he was entitled to notice of the result and an adequate opportunity to present a case against taking that course. O'Connor J did not consider that the best interests of the applicant's children could be regarded as a primary consideration in the making of the decision. It was unnecessary for her Honour to consider whether Lehane J was correct in holding that the protection of the community was a relevant consideration and purpose of the powers conferred by section 253 of the Act. The effect of the General Direction 23. The General Direction does not purport to apply to decisions made under section 253, but rather to decisions under s 200 and 201: see the preamble to the General Direction at AB 130. 24. Moreover, in extracting the passage from paragraph 33 of the General Direction (which appears at AB 141), the respondent has omitted the opening words of that paragraph and has not reproduced the preceding paragraph. [31] Those provisions make clear that that part of the General Direction relates to the policy that a person should not be deported during the term of their sentence, but should, wherever possible, be deported at the time of their release from prison. The passage extracted by the respondent notes that a person may continue to be held in custody in circumstances in which it is not possible to arrange for a person's departure to coincide with their release (ie where the aims of the policy are unable to be met). However, viewed in context, it does not purport to direct decision makers as to the matters that should be considered under section 253(9) of the Act. 25. It may be that the respondent's reliance on the General Direction is also based upon the incorrect assumption that the purposes of the powers conferred by sections 200 and 253 of the Act (and the relevant considerations that follow from those purposes) must be identical. 26. In any event, the terms of an executive policy can have no bearing on the proper construction of the purposes of the statutory power to which the policy relates: that truly puts the cart before the horse. 27. With respect, Weinberg J appears to have similarly fallen into error in Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470. In the passage extracted by the respondent at paragraph 31 of his submissions of 23 November 2001, his Honour refers to:

"Custody orders made pursuant to section 201 of the Migration Act…."

28. The power to detain is not found in sections 200 or 201 of the Act. It is a discrete but incidental power conferred by section 253, which may only be exercised for the limited purposes described above. His Honour also appears to have conflated the terms and purposes of those powers. 29. That appears to explain his Honour's conclusion that the Minister was entitled to consider "his own deportation policy" (which was apparently a reference to the General Direction). His Honour did not advert to the fact that the policy contained in the General Direction is limited in its terms to decisions under sections 200 and 201 of the Act. With respect, his Honour's decision is, to this extent, incorrect and should not be followed. 30. Of course, his Honour was considering those issues in the context of an interlocutory application for release and his Honour expressly noted that he was "fortified" in his conclusions by other certain other circumstances. [32]

Conclusion

31. Many of the authorities relied upon by the respondent are interlocutory decisions concerning release of a person. Like the situation of release on bail also relied upon by the respondent, they are cases where release follows an exercise of judicial power. The breadth of lawful considerations in such a circumstance may be quite different from the lawful considerations in the exercise of administrative powers such as those conferred by sections 253(1) and (9) of the Act. 32. The respondent's protests, at paragraph 39 of his submissions of 23 November 2001, that such detention is neither "preventative" nor punitive in these circumstances run directly counter to the characterizations of the High Court in Kable and Chester, referred to in the Commission's primary submissions. It is plain that where a person is held in custody for the purpose of "preventing the deportee from committing further offences" (respondent's submissions paragraph 39) that detention can be nothing other than preventative. 33. The question is not so much the character of the detention - which the Commission submits is plain although now the respondent seems reluctant to admit it - but rather whether it is authorized and contemplated by section 253. It is not expressly authorised or contemplated. It is contrary to the common law of Australia and to all fundamental principles concerning protection of a person's liberty. The Commission submits such a purpose should not be implied into a purely executive power to detain which is no more than incidental to a power of physical removal from Australia.

COSTS

34. The Commission accepts that the Court has a power to order costs against an intervener. 35. The Commission submits that there should be no order for costs against it in respect of the appeal generally or in respect of the appellant's application to amend the notice of appeal. 36. Section 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides that one of the functions of the Commission is to seek the leave of the Court to intervene in proceedings that concern human rights. It is clear that the present proceedings raised important questions of human rights and as such the Commission sought leave to intervene to assist the Court on issues concerning human rights. 37. The Commission's intervention in this matter was by way of written submissions with limited oral submissions. The Commission's participation did not prolong the proceedings and its intervention did not add significantly to the costs of the parties. 38. The respondent did not oppose the Commission's intervention at first instance nor on appeal. The Respondent did not put the Commission on notice at the hearing of this matter that he would seek costs against the Commission because of the application to amend the notice of appeal. 39. It is, moreover, quite incorrect to assert that the "raising of [the issue of the Proposed Amendment] as a ground of appeal…was in essence brought about by…HREOC". [33] 40. As was made clear at the hearing and in the Commission's submissions of 18 November 2001, the purpose for which the discretion under section 253 could be exercised was originally raised by the Commission as part of its submission that certain international obligations were relevant considerations in the exercise of the discretion under section 253 of the Act. In making that submission, the Commission sought to apply the standard test set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 concerning the ascertainment of what is, and is not, a relevant consideration for the purposes of exercising a statutory power or discretion. The Commission raised these issues in its first submissions, which it was directed to file at the same time as the appellant's. 41. It was a matter for the appellant if, and when, he chose to rely on any submissions made by HREOC in the conduct of his appeal, and in the grounds of appeal. He chose to wait until the end of the hearing to seek leave to amend his notice of appeal. The timing of the application to amend, and the consequences of that amendment, were not matters within the control of the Commission. When the Commission supported the application to amend at the hearing, that was without notice from the respondent that he would seek costs against the Commission on this issue. 42. Where the Commission has intervened by way of making written submissions and at times oral submissions in courts of federal jurisdiction including this Court, [34] the Family Court of Australia [35] and the High Court [36] there has been no order for costs against it. The Commission submits that the circumstances of the present proceedings do not warrant departure from the usual order that the Commission bears its own costs.

Dated: 21 December 2001

D.S. MORTIMER Counsel for the Human Rights and Equal Opportunity Commission

CRAIG LENEHAN For and on behalf of the Human Rights and Equal Opportunity Commission

ENDNOTES 1. cf paragraphs 9 and 10 of the respondent's submissions of 23 November 2001. 2. See paragraph 12 of the respondent's submissions of 23 November 2001. 3. See eg section 4 of the Crimes (Family Violence) Act 1987 (Vic) and section 562AE and 562AI of the Crimes Act 1900 (NSW). 4. See paragraph 14 of the respondent's submissions of 23 November 2001 5. (1992) 176 CLR 1 6. See eg at p30 per Brennan, Deane and Dawson JJ. See to similar effect, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 556 per Latham CJ. 7. cf paragraph 14 of the respondent's submissions of 23 November 2001. 8. See eg paragraph 15 of the respondent's submissions of 23 November 2001. 9. Lim at 31. 10. (1998) 87 FCR 389 at 398 11. (1981) 37 ALR 620 12. See page 622. 13. Ibid 14. (1992) 34 FCR 169 15. (1981) 55 FLR 99 16. See at 182-3 (per Beaumont J) and at 187 and 189 per Burchett J. 17. Referred to by the respondent in paragraph 25 of his submissions of 23 November 2001. 18. Referred to by the respondent in paragraph 33 of his submissions of 23 November 2001. 19. See [7] where his Honour stated "Questions of risk to the community do not, I think, play any part in the present case and do not appear to have played any particular part in the decision made to detain Mr Davidson." 20. Referred to by the respondent in paragraph 24 of his submissions of 23 November 2001. 21. Referred to by the respondent in paragraph 26 of his submissions of 23 November 2001. 22. Referred to by the respondent in paragraph 36 of his submissions of 23 November 2001. 23. Referred to by the respondent in paragraph 34 of his submissions of 23 November 2001. 24. Referred to by the respondent in paragraph 38 of his submissions of 23 November 2001. 25. Pylka also involved an application for summary dismissal. 26. See paragraphs 24 and 26 of the respondent's submissions of 23 November 2001. 27. See paragraph [12]. 28. See paragraphs [10]-[11]. 29. See paragraph [27]. 30. Referred to by the respondent in paragraph 29 of his submissions of 23 November 2001. 31. See paragraph 17 of the respondent's submissions of 23 November 2001. 32. Those circumstances are discussed at paragraphs 102-104 of his Honour's reasons. As his Honour there noted, the Minister was, at the time of his Honour's decision, considering whether to revoke the relevant deportation order. Moreover, even if the deportation order was not revoked, an appeal to the Full Court in related proceedings regarding a review by the AAT of the deportation order was to be heard within a few weeks of Weinberg J's judgment. As Weinberg J noted, if the applicant was successful in those appeal proceedings, he could apply to the Full Court for an interlocutory order for his release pending the reconsideration of his case by the AAT.= 33. Cf paragraph 42 of the respondent's submissions of 23 November 2001. 34. Langer v Australian Electoral Commission (1996) 59 FCR 450. 35. B v B (Costs) (1997) 22 Fam LR 453, In Re a Teenager (1988) 13 Fam LR 85, In Re Michael (1994) FLC 92-486, P and P (1995) FLC 92-615. 36. P v P (1994) 181 CLR 583, ZP v PS (1994) 181 CLR 639, Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, Qantas Airways Ltd v Christie (1998) 193 CLR 280, Kartinyeri v Commonwealth [1998] HCA 22 (Transcript 12 May 1998), Secretary, Department of Health and Community Services v JWB (Marion's case) (1992) 175 CLR 218 and Croome v State of Tasmania (1997) 191 CLR 119.

Last updated 5 September 2002