Commission submission - MING DUNG LUU

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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 appealwas
in essence brought about byHREOC". [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