Bolkus v Tang Jia Xin

[1994] HCA 31

HIGH COURT OF AUSTRALIA

BRENNAN, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JOANNE McRAE, MANAGER OF THE IMMIGRATION RECEPTION AND PROCESSING CENTRE AT PORT HEDLAND IN THE STATE OF WESTERN AUSTRALIA v. TANG JIA XIN

(1994) 69 ALJR 8

16 November 1994

Orders

Appeal dismissed with costs.

Decision

BRENNAN, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ Division 4B of Pt 2 of the Migration Act 1958 (Cth) ("the Act") deals with the custody of certain non-citizens ((1) s.4 of the Act defines "non-citizen" to mean "a person who is not an Australian citizen".). The division comprises ss.54J to 54U inclusive ((2) Division 4B was inserted by s.3 of the Migration Amendment Act 1992 (Cth), which commenced operation on 6 May 1992. The Division was amended by the Migration Amendment Act (No.4) 1992 (Cth) and by the Migration Laws Amendment Act 1993 (Cth). The judgments in the courts below deal with the Act as it stood after the Migration Amendment Act (No.4) 1992 but before the Migration Laws Amendment Act 1993.).

2. The reason for the inclusion of Div.4B is expressed in the Act to be because the Parliament considers that it is in the national interest that a non-citizen who is a designated person should be kept in custody until he or she leaves Australia or is given an entry
permit ((3) s.54J). "Designated person" is defined ((4)
s.54K.) to mean a non-citizen who has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 November 1993, who has not presented a visa, is in Australia, has not been granted an entry permit and is a person to whom the Department of Immigration and Ethnic Affairs ("the Department") has given a designation in accordance with par.(e) of the definition. The definition also includes children born in Australia where the mother is a designated person. The content of the definition of designated person was discussed in Chu Kheng Lim v. Minister for Immigration ((5) (1992) 176 CLR 1.) which upheld the validity of ss.54L and 54N of the Act.

3. Division 4B deals with the circumstances in which a designated person must be kept in custody and must be removed from Australia and, more particularly for present purposes, the time limit after which the provisions for custody and removal cease to apply. The formulation of that time limit has given rise to the present appeal.

4. Section 54Q provides that s.54L (custody) and s.54P (removal) cease to apply to a designated person who was in Australia on 27 April 1992 (the respondent is such a person) if the person has been in application custody for a continuous period of, or periods whose sum is, 273 days. By reason of s.54Q(3), a person is in application custody if the person is in custody and an entry application for the person is being dealt with, unless one of certain events is taking place. While the appeal focused on par.(c) of the enumerated events, the role of that paragraph is better understood if all the alternative suspending events are noted. They are:

"(c) the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;

(d) the dealing with the application is at a stage whose duration is under the control of the person (in custody) or of an adviser or representative of the person;

(e) court or tribunal proceedings relating to the application have been begun and not finalised;

(f) continued dealing with the application is otherwise beyond the control of the Department".

5. The question raised by this appeal is whether, in the circumstances of the present case, the Department was at any time waiting for information relating to the respondent's entry application to be given by a person not under the control of the Department. If the Department was not so waiting, the period of 273 days mentioned in s.54Q had expired at some time prior to 25 June 1993 and the respondent was entitled to be released from custody. The appellants contended that the Department had been "waiting for information" in terms of par.(c) of s.54Q(3), with the consequence that the respondent had not been in custody for 273 days.

6. The Full Court of the Federal Court ((6) Minister for Immigration and Ethnic Affairs v. Tang Jia Xin (1993) 118 ALR 603.) dismissed an appeal by the present appellants from the judgment of Neaves J ((7) Tang Jia Xin v. Minister for Immigration and Ethnic Affairs (No. 1) (1993) 116 ALR 329.) declaring that the present respondent had, at some time prior to 25 June 1993, been in application custody for periods totalling 273 days and ordering that the respondent be released from custody. In approaching the meaning of par.(c), the Full Court said ((8) (1993) 118 ALR at 612.) that the structure of sub-s.(3) suggests that the onus of establishing that any one of the exceptions (c), (d), (e) or (f) applies lies upon the party wishing to establish its application. This is undoubtedly correct ((9) see Vines v. Djordjevitch (1955) 91 CLR 512 at 519-520; Banque Commerciale S.A., en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279 at 285; Avel Pty. Ltd. v. Multicoin Amusements Pty. Ltd. (1990) 171 CLR 88 at 119.).

7. As to the meaning of "waiting for", the Full Court considered dictionary meanings, concluded that the expression was intended to have its ordinary meaning rather than any special or technical meaning, and agreed with the primary judge that "some notion of delay is inherent in the concept of 'waiting for' something" ((10) (1993) 118 ALR at 613.). They rejected the appellants' argument that "any lapse of time, whether ordinate or inordinate, qualifies as part of a 'waiting' period" ((11) ibid.).

8. The appellants argued in this Court and in the courts below that the waiting period commences from the moment of making a legitimate request for information until receipt of the information or of a final response. It was submitted that any other interpretation leads to great uncertainty. Evidence, perhaps evidence from overseas, might be necessary to show that a delay was likely. On the other hand, the respondent submitted that the interpretation urged by the appellants could result in a designated person remaining in custody for periods well beyond 273 days, simply by reason of the Department making an inquiry, particularly one overseas.

9. The question is a narrow one. One thing is clear, namely, that pars (c), (d), (e) and (f) all imply by their language something which has happened to interrupt the decision-making by the Department in regard to the application, and something which is beyond the control of the Department. To take the most obvious example, in par.(e), if court or tribunal proceedings in relation to the existing application have been begun and not finalised, the decision-making process cannot proceed to finality. Indeed, since par.(f) speaks of "continued dealing with the application (being) otherwise beyond the control of the Department" (emphasis added), it is implied that the preceding paragraphs relate to situations in which it is beyond the Department's control to continue to deal with an application. Whether or not such an implication is capable of affecting the construction of par.(d) or par.(e), it does affect the construction of par.(c). In other words, par.(c) is a particular situation in which continued dealing with the application is beyond the control of the Department. While the present question was not before the Court in Chu Kheng Lim v. Minister for Immigration, in their judgment Brennan, Deane and Dawson JJ commented ((12) (1992) 176 CLR at 33.):

"For the purposes of that maximum period, time does not run while events beyond the control of the Department, such as delay in the supply of information or delay in court or tribunal proceedings, are preventing the finalization of the entry application."

10. Viewed in that light, the application of par.(c) is not resolved simply by saying that the Department is "waiting for information" as soon as it requests information or that the Department is "waiting for information" only after a reasonable period in which the information might be expected has elapsed. It is necessary for the Department to show not only that a response to a legitimate request for information was awaited but also that the continued departmental dealing with the application was, on that account, interrupted. In the present case the onus is on the appellants to show, as a question of fact, that there was a period, or there were periods, of time during which the Department was unable to continue dealing with the respondent's entry application by reason of its inability to obtain information relating to the application to be given by a person who was not under its control. These are matters very much within the knowledge of the Department. If reasonableness plays any part in the inquiry it is a limited part only. It may have some part to play in asking whether the Department was able to deal with some other aspect of the application. And it may have some part to play in asking whether the information was likely to be provided and, if it was not, whether the Department was waiting for it in the sense required by the Act. The appellants suggested that a person in application custody may contrive a situation so that the period of 273 days expires before determination of his or her entry application. The answer is that if the Department is unable to continue dealing with the application, in that event time would cease to run.

11. The appellants drew attention to the second reading speech in the House of Representatives ((13) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 5 May 1992 at 2372.) and to the supplementary explanatory memorandum which, echoing what had been said by the Minister, reads:

"The period will stop running during any time in which information is being sought from third parties (including the applicant and his or her advisers)".

However, a Minister's second reading speech, while available as a guide to interpretation, cannot be determinative of or substituted for the text of the legislation. This is particularly so where the law is restrictive of the liberty of the individual ((14) Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.).

12. The appellants also relied on the decision of the Full Court of the Supreme Court of Western Australia in Truong v. Manager, Immigration Detention Centre, Port Hedland ((15) (1993) 31 ALD 729.) in which Malcolm CJ and Seaman J relevantly agreed with Ipp J It is true that in determining whether the applicants had been in application custody beyond 273 days, Ipp J spoke of a period of time between a request by an officer of the Department for information from the Refugee Council of Australia and the receipt of that information as a period during which the Department was "waiting for information" relating to the applications of the applicants and therefore a period during which they were not in application custody. But the particular question now before the Court does not appear to have been argued before their Honours. If it was, the Full Court, in our respectful view, was in error in concluding that the mere lapse of time meant that the applicants were not in application custody.

13. The construction we have given to s.54Q(3)(c) is not the same as that given by Neaves J and the Full Court. Nevertheless, the primary judge carried out an exhaustive analysis of the various periods during which the respondent was in custody, looking in each case at the stage that decision-making had reached, asking himself in each case ((16) (1993) 116 ALR at 345.):

"whether the circumstances which have occurred and which are found to be outside the department's control are such as to make it appropriate to conclude that there has been an interruption to, or delay in, the decision-making process beyond that which might be thought to have been encompassed within the period of 273 days specified in s.54Q(1)".

We can discern no error in that general enquiry. It may well be that the answer to the question calls for a detailed examination of the decision-making process, though that will not always be the case. If so, that is the inevitable result of the circumstances postulated by the Parliament in relation to sub-s.(3) of s.54Q.

14. The Full Court said that the primary judge "undertook a careful and detailed analysis of the facts" ((17) (1993) 118 ALR at 614.); there can be no quarrel with that assessment. The Full Court concluded that his Honour's assessment of the appropriate period to be allowed in specific instances had not been demonstrated to be a conclusion that was not reasonably open. Importantly, the Full Court observed #18 :

" Moreover, it is a noticeable feature of the present case that there was no affidavit or oral evidence before the trial judge specifically verifying facts crucial to the operation of any of the paragraphs. A witness may depose that he or his department was 'waiting for information', for that would be a fact. Before the trial judge, no witness did so. The trial judge was left to infer that the department had been waiting at various stages. But in respect of those periods in relation to which his Honour declined to draw the inference, once his Honour rejected the contention that the department was waiting simply because it had written seeking information, there was little if any evidence on which the trial judge could have found that the statutory criterion was satisfied. In relation to a time when ongoing inquiries were under way, the mere making of a request for information may not establish that there was an interruption to the decision-making process or that the department was waiting."

15. In our view the Full Court was correct in dismissing the appeal. Before Neaves J the appellants failed to discharge the onus of showing that there was a period, or there were periods, of time during
which the Department was unable to continue dealing with the respondent's entry application by reason of its inability to obtain information relating to the application to be given by a person who was not under its control. Accordingly the appeal to this Court should also be dismissed.