Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs

[1992] HCATrans 224

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M23 of 1992

B e t w e e n -

CHU KHENG LIM, AI HUI TANG,

CHINH PO LIM, YOU RY LIM, VAN
VIA DINH, DALY GOAL, KIM SUA

LIM, MUI HUI TAN, MANT TAING,

VAN CHIN PHU, CHI MENG CHEU,

VAN HAI TROUNG, SOK LEE POUV,

CUI UI SUA, LIM KIM CHU, LIM

CHI TECK, LIM CHI LENG, LIM CHU

SUOL, TRUONG VAN HOACH, KHAV

CHAN LANGE, LIM KIM MUOI, LIM

SOUL LEANG

First-named Plaintiffs

LY IENG, THOU DALES. THOU

RUTHANAC, OEUM VAN YIV, OEUM

VAN KIM, LY TRAI, LIM CHHEANG,

PHAU HEANG, LIM MAKARA, LIM

WILLIAM VUONG AI LE. HOK KOUN,

KAUV NET. LAO SOKHUN

Second-named Plaintiffs

and

Lim( 2)	1	6/8/92
MASON CJ BRENNAN J DEANE J DAWSON J
TOOHEY J
GAUDRON J McHUGH J

THE MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

First-named Defendant

and

THE COMMONWEALTH OF AUSTRALIA

Second-named Defendant

Case stated

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSAY, 6 AUGUST 1992, AT 4.07 PM

Copyright in the High Court of Australia

MR B.J. SHAW, QC:  If the Court pleases, on the case stated

I appear with my learned friends, MR P.N. ROSE and

MR C.R. McDONALD, for the plaintiffs. (instructed

by Eve Lester, Solicitor, Refugee Advice & Casework

Service (Vic.) Inc.)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friends, MR T.J. RILEY, QC and MR C.R. STAKER, for

the defendants. (instructed by the Australian

Government Solicitor) Your Honours, with the

permission of my learned friend, I could indicate

that we did have some submissions by way of handout

that we intended to use tomorrow, but if there is a

time constraint it might assist the Court if I

handed them up now so they are available overnight.

MASON CJ: Yes, thank you.
MR GRIFFITH:	Your Honour, I think in this case the parties

have taken to heart Your Honour's admonition to let

the submissions state truly what the points are,

and with these supplemental submissions,

Your Honour, there is nothing much held back.

MASON CJ: Very well. Yes, Mr Shaw?

MR SHAW:  If the Court pleases, we propose to say what we

have to say on the basis that our argument has been

presented principally, and accordingly we will not

be presenting our argument. Rather, we will assume

that we have presented our argument. We will add

some things that we feel we might not have

Lim(2) 2 6/8/92

explained properly, or embroider a bit or, because
we have got my learned friend's submissions, say

something, that sort of thing, but unless the Court

wanted me to I propose really to proceed on that

basis rather than saying again what we have said

already.

Might we begin then by drawing the Court's

attention to certain aspects of the Migration

Amendment Act which, in our submission, are of

significance in relation to the matters raised by

the case stated. The first matter of significance

is a matter which is not often of significance - in

this case it is - it is that the Act was passed by

the Parliament on 5 May, as is stated in

paragraph 3.8 on page 22 of the Court book.	It was
assented to on 6 May, and that was almost

immediately after the proceedings in the

Federal Court had been partly determined and partly

adjourned from 15 April to 7 May.

The submissions of the defendants appear to

concede that one of the purposes of the legislation

was to prevent an order for release being made in

the proceedings which were to be heard on 7 May.

In their submissions, at page 4, in paragraph 2.6,

the defendants say that:

In the absence of the Amendment Act, it may

be, as the Plaintiffs contend, that an order for their release might have been made under

section 16 of the Administrative Decisions

(Judicial Review) Act 1977 ("the ADJR Act").

That is not for this Court to decide.	The
Amendment Act was passed to end this
possibility.

The next aspect of the Amendment Act to which

we would draw attention is the terms of

section 54J. That asserts the Parliament's opinion

that it is in the national interest that each

non-citizen who is a designated person should be

kept in custody until he leaves Australia or is

given an entry permit. There is no reason stated

for that opinion, and indeed, when one comes to

consider the definition of "designated person" it

is difficult to think of any reason for that

opinion except a reason which has to do with

dealing severely with these particular people.

We say that because when we look at the

definition of "designated person" and it is

designated persons in respect of whom the Amendment

Act is passed, one finds that the first aspect of

it is that - and this is in section 54K in the

definition of "designated person":

Lim( 2) 6/8/92

"designated person" means a non-citizen who:

(a) has been on a boat in the territorial sea

of Australia after 19 November 1989 and before

1 December 1992.

So the period commences a considerable time before

the date of the passing of the legislation, and to

that extent is in part ex post facto legislation,

and what is more, the date selected,

19 November 1989, so far as appears, has a

relationship only with the arrival in Australia of

the first plaintiffs.

And, we say that because, in the case stated,

it is stated that, and this is in paragraph 3(1) on

page 21 of the Court book:

The firstnamed plaintiffs arrived on or about

27 November 1989 and the secondnamed

plaintiffs arrived on or about 31 March 1990.

So that a date has been selected which is eight

days before the arrival of the first plaintiffs and

no other reason for selecting that date, other than

that it immediately precedes the arrival of the

first plaintiffs, suggests itself as a reason for

the selection of that date. There is nothing in

itself particularly remarkable about 19 November

1989 and if there were no intention specifically to

catch the first plaintiffs, then one might as well

have selected 28 November 1989. But that date was

not selected and instead this date, immediately

preceding their arrival, has been selected. So it

is submitted that it is an easy inference that the

provisions of this Act are directed specifically

at, amongst others, the first plaintiffs.

The second date, too, is a date of some

curiosity. 1 December 1992 has, of course, not yet

arrived. A little way to go, but not far. There

does not seem to be anything more particular about

1 December 1992 than 1 July 1992 or 1 January 1993;

it seems a date selected out of the air and, in our

submission, it is an easy inference that the

definition is directed to catch the first
plaintiffs and anybody else who may, in the period

shortly after their arrival, arrive in Australia in

the same way. It is true that one cannot say

whether any more people will arrive than the first

plaintiffs and obviously more did arrive because,

amongst other things, the second plaintiffs arrived

and there were other people as well.

DEANE J:  Mr Shaw, I have just been trying to work out,

would this catch all New Zealanders who arrived in

Lim( 2) 4 6/8/92

the designated period and make them liable to be

put in custody by an immigration officer?

MR SHAW:	Your Honour, it would not - - -
DEANE J:	Why not?
MR SHAW:	- - - and that is one of the very interesting

things about this definition because there is a

nice little bit down the back - - -

DEANE J:	I had missed it.
MR SHAW:	There is a nice little bit down the back, it does

not say that New Zealanders are okay, it says
something which is rather nicer, for our point of

view, than that what it says is, in effect, anybody

the Minister thinks is okay is okay, and the reason

for that is - - -

BRENNAN J: Where is "down the back"?

MR SHAW: It is in (e) of the definition. In order to be a

"designated person" you not only have to arrive on

a boat in the period - - -

DEANE J: What I said is, that means that it would catch all

New Zealanders who came by sea if the Immigration

Department designated them.

MR SHAW:  Gave them an identifier, yes.

BRENNAN J: Or came by plane and went out in a dinghy.

MR SHAW: Yes, I suppose it would.

DAWSON J: What does (e)(ii) mean?

MR SHAW:  Your Honour, there is an affidavit put in in the

proceedings in the Federal Court which shows what

an identifier is and, apparently, the departmental

practice is to give these boats names - English	names - and in fact the two relevant boats have
been called the Beagle and the Pender Bay, and then
the occupants, or whatever one calls these people, are each given numbers preceded by the letters of the name of the boat. So, one has these people
called, or coming by reason of the identifier PBl
or PB whatever, in the case of one boat, and in the
case of the other boat B28 or B72 or whatever it
might be.

MR SHAW:  I think in substitution, Your Honour.

DAWSON J: But how would you know - it doesn't matter.

Lim(2) 6/8/92

TOOHEY J: Presumably there is a photograph that goes with

the identifier.

MR SHAW:  The affidavit sets out what their names are and

what their numbers are, but they have ceased to be people and have become concentration camp numbers,

is the general idea, but whether or not they do

depends on whether or not the Department gives them

this identifier, and whether or not the Department

has done so - in other words, whether or not the

Act applies - is a matter which is taken out of the

hands of the Court, because section 54U, which is

even further down the back, says:

A statement by an officer, on oath or affirmation, that the Department has given a

particular person a designation described in
paragraph (e) of the definition of 'designated

person' in section 54K is conclusive evidence

that the Department has given that person that

designation.

So, the scheme of the Act is that it will apply to

persons who have been on a boat within this

relatively short period, in this way distinguishing

them absolutely from all other aliens, all other

arrivals, whether by boat or air, for no apparent

reason. They are singled out. It depends on

irrational dates and it depends on the discretion

of the Department in giving a designation to the

arrivals and whether or not that designation is

given is conclusively determined by the statement

of the Department.

It is not, it is submitted, immediately

apparent, or even after consideration is it apparent, how it is that it could be in the national interest that these non-citizens and these

alone should be selected for this particular

treatment. In our submission, it becomes apparent

even from that, but when one goes further, that

what is being done is there is an attempt to

prevent the Court from making an order which it is
feared it might otherwise make, but otherwise to
leave everything in the case of those selected for

this treatment by the Department completely

unaffected, because if one looks at section 54S(2),

one finds that there is a provision that says:

This Division does not affect the rights of a designated person under this Act except so far as they, or their exercise, are inconsistent

with section 54L, 54M, 54N, 54P or 54R.

So what is being done, amongst other things, is

that an alteration is being made in the case of

closely defined class of persons to the ways in

Lim( 2) 6 6/8/92

which their rights may be vindicated in the courts,

because one has not only section 54R which is

specifically directed to courts - it says in terms:

A court is not to order the release from

custody of a designated person.

But one has section 54L which says:

(1) Subject to subsection (2), after

commencement -

which presumably means after commencement of the

amending Act -

a designated person must be kept in custody.

Now, that presumably is not an injunction which is

directed to the designated persons, although no

doubt it is informing them so. But it is
directing, presumably, anybody who might be

concerned with the way in which these people are to be kept and whether they are to be released or not.

It is saying to them, and that includes the courts,

these people whom we cut off from all the other
aliens, must be kept in custody, and a court is not

to order their release. Otherwise, of course, the

exercise of their rights is not affected.

MASON CJ:  Mr Shaw, that may be a convenient time to

adjourn. We will resume at 9.45 am tomorrow.

MR SHAW: If Your Honour pleases.

AT 4.28 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 7 AUGUST 1992

Lim(2) 7 6/8/92