Khoshabeh, V.B. v Minister for Immigration and Ethnic Affairs

[1993] FCA 805

JUDGMENT No. ........ ........ .. ........ ..I 80s , 93

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) No VG 354 of 1993
1
GENERAL DIVISION	1

BETWEEN:  VILBERT BET KHOSHABEH

(Applicant)

AND:	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

(Respondent)

Coram:  Ryan J

Place: Melbourne

Date	-
--	10 November 1993

MINUTE OF ORDERS

THE COURT ORDERS:

1.   That the application be dismissed.

2 .    That the applicant pay the costs of the respondent such costs to be taxed in default of agreement.

NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	)  No VG 354 of 1993
) )

BETWEEN:  VILBERT BET KHOSHABEH

(Applicant)

AND:	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

(Respondent)

Coram:  Ryan J

Place: Melbourne

Date:  10 November 1993

REASONS FOR JUDGMENT

Rvan 3: This is an application for review of what is said to be a decision or conduct of the respondent Minister refusing to release the applicant from detention in which he has been held since 22 July 1992. The facts are in relatively short compass. The applicant who was born on 5 January 1961 arrived at Melbourne airport on 22 July 1992. There, an authorized officer of the respondent formed the belief that the applicant

would become an illegal entrant if he were to enter Australia.	That belief is accepted as having been reasonable.
Accordingly, the applicant was taken into custody and notice was given to the airline which had brought him to Australia requiring it to remove him from this country. However, before he was to be removed, the applicant, on 6 August 1992, applied under ss. 22AA and 22AB of the Migration Act ("the Act") to be accorded refugee status.
The application to be accorded refugee status was refused on 8 September 1992 and that refusal was affirmed on revlew by a delegate of the Minister on 26 May 1993. On 27 May 1993 the respondent accepted that the applicant was within the class of persons covered by the representative action commenced in this
Court under the name Zhang De Yong v Minister for Immigrat ion
Local Government and E t h n i c A f f a i r s (WAG 215 of 1992). Conformably with that acceptance, the respondent undertook not to remove the applicant from Australia until proceedings numbered WAG 215 of 1992 had been determined.
On 23 June 1993 the applicant instituted proceedings numbered VG 250 of 1993 in this Court seeking to review aspects of the refusal to accord him refugee status which are said to be personal to the applicant. I infer that the latter proceedings raise issues which do not arise in the determination in WAG 215 of 1992.
A notice of motion in proceedings numbered 250 of 1993 seeking
custody was returnable on 20 August 1993. However, on that an interlocutory order for the applicant's release from
date an issue arose as to whether there had been a request for the applicant's release from custody. To put the matter beyond doubt, the applicant's solicitors forthwith wrote a letter embodying such a request which elicited the following reply by letter dated 23 August 1993 from i P Borg, an authorized officer of the Respondent:

"The Act contemplates release from such custody [s.89(2) M ~ g r a t i o n

Act] only rn two crrcumstances, where the person detarned rs removed from Australra or is granted an entry permrt. As ne~ther of these two circumstances are presently relevant to your clrent's situation, I have no power to release your cllent at thrs trme."

On 24 August 1993 a separate application was issued in proceeding numbered VG 354 of 1993 in order to review the decision of a delegate of the Minister, on 23 August 1993, to refuse the applicant's request, of 20 August 1993, for release.

The first question which arises out of this factual background is whether the applicant's continued detention in custody which was concededly lawful when it commenced has become unlawful either because of the making by the applicant on 6 August 1992 of an application to be accorded refugee status, or because of the undertaking by the respondent on 27 May 1993 not to remove the applicant from Australia pending the determination of the proceedings numbered WAG 215 of 1992.

The applicant contends that the power to detain conferred by

which is to be ascribed to the enactment of that section and	s.89 of the Act is exercisable only for the limited purpose
which is said to be indicated by its heading "custody of certain persons during stay of aircraft in Australia".
Section 89 relevantly provides:

"89	(1) A person who is on board an aircraft at the time of the
arrival of the a~rcraft at a proclaimed airport, whether or not that arrport is the first port of call of the aircraft in Australra, being a stowaway or a person whom an authorized officer reasonably believes would become an illegal entrant if the person were to enter Australia (whether or not the person
rs seeking to enter Australra), may -

(a)	rf an authorrzed offrcer so drrects; or
(b)	rf the master of the aircraft so requests and an authorized offrcer approves,

be taken off the a~rcraft by an offrcer and kept ln such custody, either at the proclaimed airport or elsewhere, as an authorized off~cer drrects unzrl such trme as the person rs removed from Australra or the person is granted an entry permlt .

arrport, whether or not that arrport 1s the first port of call (2) A person who disembarks from an aircraft at a proclarmed

of the arrcraft in Australia, berng a stowaway or a person whom an authorized offrcer reasonably believes would become an illegal entrant if the person were to enter Australia (whether

tlme before the person leaves the alrport - or not the person is seek~ng to enter Australra), may, at any

(a)	rf an authorazed officer so dlrects; or
(b)	if the master of the a~rcraft so requests and an authorized offrcer approves,

be taken into custody by an offrcer and kept rn such custody, erther at the proclarmed arrport or elsewhere, as an authorized offrcer dlrects untrl such trme as the person is removed from Australia or the person rs granted an entry permit.

(3) Where a person, not being a person exempted under sub-

sectron 106(1) from the operation of sectaon 76, who travels by alrcraft from a place outsrde Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other alrport in Australia at whrch the person has called rn the course of that travel, the person may, if an authorized officer so drrects, be taken into custody at that first-mentioned airport by an officer and kept rn such custody, either at that frrst-mentroned airport or elsewhere, as an authorized officer directs untrl such time as the person is removed from Australia or the person is granted an entry permit.

(4) Where a person is taken anto custody under sub-section

48 hours after the person is so taken into custody, by notice	(l), (2) or ( 3 ) , an authorized officer may, at any time wrthin
in writing served on the master, owner, agent or charterer of the aircraft on which the person travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.
( 5 ) A master, owner, agent or charterer on whom a requirement
has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or her or within such further period as an authorazed officer allows, whether or not the person to whom the requrrement relates is able or willing to pay, or agrees to pay, a charge in respect of his or her removal from Australia.

Penalty: $10,000.

(6) It is a defence to a prosecution in respect of a failure

to comply with a requirement under sub-section (4) if the defendant proves that, after the requirement was served upon him or her, the defendant gave reasonable notrce to an authorrzed offrcer of his or her wrllingness to recerve the person to whom the requrrement related on board a specrfied vessel or arrcraft at a spec~fred port at a specrfred trme for removal from Australia and the person concerned was not made avarlable at that port at that trme rn the custody of an officer for placing on board that vessel or arrcraft.

(7) The master, owner, agent and charterer of an arrcraft are, ~ointly and severally, lrable to pay the Commonwealth a fair sum for the cost of keeprng and mainta~nmg a person whlle he or she is kept rn custody in pursuance of sub-section (l), (2) or (3) and, ~f the person has been kept in custody at a place other than the procla~med arrport, the cost of transporting the person, and a custodran of the person, from the airport to the place of custody and, zf the person rs required to be removed from Australia, from the place of custody to the vessel or aircraft upon which he or she is to be so removed.

(TA) subsection (7) does not apply to the master, owner, agent or charterer of the aircraft unless a notice was served on the master, owner, agent or charterer in accordance with subsection (4)

(7B) A person who is taken rnto custody under subsectron (l),
(2) or (3) may be kept in custody until the person is removed

from Australra m accordance with arrangements made by an

authorised officer.

(7C) Farlure to grve a notice in accordance with subsection

(4):

(a)	does not prevent the person concerned from b e ~ n g kept in custody as mentzoned m subsectzon (78); and
(b)	does not prevent the person concerned from berng removed from Australia as mentioned rn subsectron (7B).

(8) A person who rs taken into or held in custody under this

section:

(a) is taken not to enter Australra unless he or she is granted an entry permit; and

(b)

if the person is granted an entry permit:

(i)	if the entry permit is granted while the person is at a proclaimed airport - he or she is taken to enter Australia when he or she first leaves the airport after the entry permit is granted; and
(ii)	if the entry permit is granted after the person has been taken from a proclaimed airport - he or she is taken to enter Australia when the entry permit is granted.

(SA) An officer may, without warrant, arrest a person who has

escaped from custody in which the person was berng held under

this sectron and return the person to custody.

(9) A reference in this section to a proclaimed airport

includes a reference to an Australian resources installation
and to an Australian sea installation.''

I accept that the purpose of s.89 is to provide a facility for the apprehension of prospective illegal entrants before they have passed beyond the precincts of a proclaimed airport and for their expeditious and economical removal from this country. However, time limits within which those purposes are to be achieved are not imposed by the duration of the stay in Australia of the aircraft on which a prospective illegal entrant has arrived.

It is true that a notice to a master, owner, agent or charterer of the aircraft must by virtue of sub-S. 89(4), be given within 48 hours after the takrng into custody. Obviously, even within that limited time the aircraft would normally have left this country. A similarly short period of 72 hours is afforded to the master, owner, agent or charterer within which to remove the prospective illegal entrant. Equally obviously that period which could be up to 5 days after arrival of the first aircraft does not entail the use of the same, or even any, aircraft. Indeed, sub-S. 7B may

operate to allow an authorized officer to make alternative
arrangements for the removal of a person independently of the

carrier which had brought the person to Australia.

As well, it is to be noted that a further period of time for compliance with the notice can be allowed by an authorized officer under S. 89 ( 5 ) . The Court was informed that a further period had been granted to the airline which brought Mx Khoshabeh to Australia. However, that is a power to grant an indulgence or accommodation to the master, owner, agent or charterer and, from my reading of the section, is not to be exercised to meet some unconnected convenience of the prospective illegal entrant or to further some policy objective of the Minister.

The High Court in Chu Kheng Lim v M i n i s t e r for Immigration

Local Government and Ethnic A f f a i r s (1992) 176 CLR 1 has discussed the purposes to be attributed to s.88 of the Act which contains provisions related to prospective illegal entrants in many respects parallel to those of s.89. The plantiffs in that case were Cambodian nationals who had arrived in Australian territorial waters by boat. Upon arrival they were taken into custody pursuant to s.36 of the Act which later, effectively, became sub-ss. (1) and (2) of s.88 of the Act. The relevant provisions of s.88 then provided:

"(1) A person who rs on board a vessel (not being an arrcraft) at the time of the arrival of the vessel at a port, whether or not that port is the frrst port of call of the vessel in Australia, being a

to be seeking to enter Australia in crrcumstances in which the person	stowaway or a person whom an authorized officer reasonably believes
would become an illegal entrant (in this section called the 'prohibrted entrant'), may:

(a)	if an authorized officer so directs; or
(b)	if the master of the vessel so requests and an authorized officer approves,

be kept in such custody as an authorized officer directs at such place as the authorized offrcer drrects untrl the departure of the vessel from its last port of call in Australia or untrl such earlier time as an authorrzed offrcer directs.

(2) Where a person ... who has travelled to a port in Australra on board a vessel (not being an aircraft), whether or not that port is the first port of call of the vessel in Australia, has, after the arrival of the vessel at its first port of call in Australia, sought and been refused an entry permrt, the person may, if an authorized officer so directs be kept in such custody as an authorrzed offrcer directs at such place as the authorrzed officer directs untrl the departure of the vessel from its last port of call in Australia or

until such earl~er time as an author~zed offlcer dlrects."

In then joint judgment Brennan, Deane and Dawson 33 concluded that s.88 was designed to effect the quick turn around of prospective illegal entrants but could not authorize the continued detention of a prospective illegal immigrant beyond the strict temporal context upon which the section, according to its terms, was designed to operate. At p.2 their Honours observed:

"Sectlon 88's heading, which is part of the Act, reads: "Custody of prohibited entrant during stay of vessel m port" (emphasis added). As that heading indrcates, the provrslons of the section are lntended to have a strlctly temporary operation. Thus, sub-ss (1) and (2) authorized the detention of the part~cular person rn custody only untrl the departure of the vessel from Australia or "until such earher tzme as an author~zed off~cer dlrects" (emphas~s added). The effect of subs (8) was that a person "taken ashore' In custody under s 88(1) or (2) was deemed, for the purposes of the Act, to be in a kind of statutory l~mbo and not to have entered Australia. Up until the time the partrcular vessel departed, the person held in custody under s 88 could be returned to the vessel or placed on some other vessel ( ~ n c l u d ~ n g an aircraft). Once the particular vessel had departed from Australia, the prov~sions of S 88(1) and (2) had run therr course and the person could no longer lawfully be held in custody pursuant to them.

The plaintiffs had, at the time of the commencement of Drv 4B, been held in custody for almost two and one-half years in the case of the firstnamed plaintrffs and a little over two years in the case of the secondnamed plarntiffs. The explanatron of that prolonged detention in custody in purported pursuance of s 88 is that the vessels on

which the plaintiffs arrived will never be leaving Australia. They

were, the Court was informed, burned. The view was apparently taken by the Minister's Department that, in a case where a vessel can never leave because it has been destroyed, temporary custody under s 88(1) and (2) can continue indefinitely. As has been seen, however, that approach to the constructron of the section was mistaken. The period of custody authorazed by s 88 was merely a transitory one pending the departure of the relevant vessel after a temporary visit to a port or ports in this country. Once the relevant vessel no longer existed (or, for that matter, once rt became apparent that the relevant vessel would never depart), the temporary perlod pending departure, in which a person could lawfully be held m custody pursuant to s 88, came to an end. If the person was thereafter to be lawfully held in custody m Australia, the justiflcataon, ~f there was one, had to be found in some other statutory provision."

See also per Toohey J at 42-44, and McHugh J at 63. Conformably with the approach taken by the High Court in Lim it is necessary first to consider whether the power to detain under s.89 has, as a result of effluxion of time or some supervening event, been spent. It is clear that in the present case different constraints operate from those which were considered by the High Court in Lim. As I have already observed, s.89 does not utilize a nexus between the duration of the stay of the aircraft and the departure of the prospective illegal immigrant. Nor do the time limits which are provided for in sub-ss. 89(4) and (5) have an operation beyond continuing the liability of the master, owner, agent or charterer of the aircraft to remove the person at no cost to the Commonwealth.

In Lim s.88 ceased to apply to the plaintiffs because the relevant vessel no longer existed and the circumstances to which the temporal limits of detention were directed could no longer apply. As indefinite detention was not a purpose to which s.88 was directed it was held that s.88 no longer

authorized the detention of the plaintiffs. In the present

case, neither of the two matters relied upon by the applicant are precluded from happening. Clearly both the grant of an entry permit and the applicant's removal from Australia are alternatives which remain open.

The duration of the detention authorized by s.89 depends upon how quickly the happening of one or other of the two stipulated events can occur. In my view, the intervention of

- l0 -

circumstances which bring about the result that neither of those events can occur for some considerable time because they have to await the outcome of lengthy decision-making processes and review does not mean that the custody ceases to be for the purpose to which s.89 is directed.

Mr Hurley, who appeared for the applicant, submitted that s.89

requires that if a prospective illegal entrant is to be removed from Australia the Minister must expeditiously compel that removal. It was submitted that if an entry permit is not granted but the Minister is precluded from removing the person as here by the giving of an undertaking not to deport, s.89 ceases to authorize the detention. That is so, in the present case, according to the submission, because the detention is now for the purpose of processing the application to be accorded refugee status rather than to allow for the removal of the applicant from this country. However, in my view, the processing of the applicant's application to be accorded refugee status is directed to determining whether an entry

permit should be granted to the applicant. That purpose	entirely accords with the purpose for which s.89 was enacted.
I do not regard delay as, of itself, precluding the detention from being for the purpose of s.89. I am fortified in that conclusion by the amendments to the Act effected by the M i g r a t i o n Amendment Act(No 86 of 1991) which have changed the specification of the second alternative event on which lawful custody comes to an end from "or until such earlier time as an authorized officer directs" to "or the person is granted an
entry permit. "
The next question concerns the stipulation contained in s.89 that an authorized officer must reasonably believe that the person would become an illegal entrant if that person were to enter Australia. It was contended on behalf of the applicant that the happening of the two events earlier described have precluded an authorized officer from reasonably holding that belief. In light of the concession made by the applicant that the belief was reasonably formed at the time of arrival into Australia I cannot accept that the mere making of an application or the giving of an undertaking by the Minister not to deport makes unreasonable a reasonable belief earlier held. No grounds beyond the mere happening of the two events have been put forward as preventing the maintenance of the requisite reasonable belief.
For these reasons I regard the custody of the applicant as presently authorized by sub-s.89(2). The next question which
respondent a discretion to release a prospective illegal falls to be considered is whether the Act gives to the immigrant who is lawfully detained under s.89.
The first step in the argument advanced by Counsel the applicant is that sub-s.89(2) is predicated on the existence of a discretion, exercisable by an authorized officer, to take or to decline to take into custody a person coming within the section. Upon the taking into custody of a person it is said
there is a further discretion to keep the person in such custody as an authorized officer directs. The word "may" where appearing in sub-ss. (2) and (7B) of s.89, in contradistinctlon to the use of the mandatory "shallv in other parts of the section is relied on as demonstrating the existence of the discretion contended for. The discretion to detain is then said to entail, by corollary, a discretion to release. The proposition that an authorized officer has a discretion to keep the applicant in custody under sub-s.7B raises the question of what other courses of action are open to the officer entrusted with the exercise of that discretion. It was submitted by the applicant that one alternative is to release the applicant.
Were that submission to be accepted the applicant, so it was said, could be released from custody, the deeming provision in sub-S. 89(8) would then cease to apply and the applicant would enter Australia within the meaning of the Act. Upon entering into Australia the applicant would, as he does not have an
arrest and detention under s.92 and to deportation under s . 6 0 . entry permit, become an illegal entrant and become liable to
It is difficult to impute to the Parliament an intention to confer on an authorized officer a discretion the exercise of which would have the consequence of a person becoming an illegal entrant into this country. The criminal provisions contained in the Act in relation to illegal entrants clearly signify legislative disapproval of persons entering the

country without permission and make the discretion contended for highly unlikely. True it is that the Act provides for a regime for the arrest and detention of illegal entrants which includes a power to release on conditions. That power, it was said, would be available to the respondent to detain the applicant upon his release under 5.89. However, the need to resort to those provisions to overcome practical difficulties and apparent contradiction of legislative policy that would be involved in the exercise of a discretion to release under s.89, only serves to point up how strained is the construction invoked to support the existence of that discretion. Section 89 does not provide any guidance as to the manner or terms on which release may be granted nor is there an express link between s.89 and s.92.

In the absence of clear statutory language I am unable to accept the existence of the discretion to release contemplated by the applicant. No doubt detention under s.89 may only be used for the purposes to which that section is directed.

Detention which falls outside those purposes would be unlawful	and application could be made to the Court for relief.
However, in the face of the express stipulation by the section of two events which can bring lawful detention to an end I cannot uphold the existence of a general residual discretion in the respondent to authorize release. Had such a discretion been contemplated, provision would almost certainly have been made for the manner of its exercise and for the regulation of illegal entrants thereby allowed to enter Australia.
In the result the application must be dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for judgment of his Honour Mr Justice Ryan

Associate:

Date: LO twwadw WQ3

Counsel for the applicant:	Mr T Hurley
Solicitors for the applicant:	Erskine Rodan
Counsel for the respondent:	Mr K Bell
Solicitors for the respondent:	Australian Government Solicitor