Senator Bolkus & Anor v Tang

[1994] HCATrans 427

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IN THE HIGH COURT OF AUSTRALIA •

Registry No C9 of 1994

B e t w e e n -

SENATOR NICK BOLKUS, MINISTER

FOR IMMIGRATION AND ETHNIC

AFFAIRS

First Appellant

and

JOANNE McRAE, MANAGER OF THE
IMMIGRATION RECEPTION AND

PROCESSING CENTRE AT PORT

HEDLAND IN THE STATE OF WESTERN

AUSTRALIA

Second Appellant

and

TANG JIA XIN

Respondent

BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

Tang(2) 1 11/8/94

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 AUGUST 1994, AT 10.16 AM

Copyright in the High Court of Australia

MR R.R. TRACEY, QC:  If the Court pleases, I appear with my

learned friend, MR T.M. HOWE, for the appellants.

(instructed by the Australian Government Solicitor)

MR A.R. CASTAN, QC:  If the Court pleases, I appear with my

learned friend, MR P.N. ROSE, for the respondent.

(instructed by Jill McSpedden & Associates)

BRENNAN J: Yes, Mr Castan. Yes, Mr Tracey.

MR TRACEY:  If the Court pleases, this is an appeal from a

judgment of the Federal Court of Australia in which

it dismissed an appeal from a single judge of that

court who had made certain declarations concerning
the validity of ongoing custody of designated
persons and the substance of what he held was that

they had been held in custody for a period in

excess of the 273 days provided for in the Act.	If
the Court pleases, may we commence by handing up a
written outline of submissions.

BRENNAN J: Thank you. Yes, Mr Tracey.

MR TRACEY: If the Court pleases. As the Court will have

discerned from reading that outline, the matter

comes down to a short point of statutory

construction. The context for that exercise of
construction is provided by Division 4B of Part 2

of the Migration Act and the Court will recall that

it examined that divison in some detail in

Lim's case fairly recently. The relevant features of it for present purposes are these: that non-

citizens who are designated persons as defined in

section 54K are required to be detained in custody

and to be released from custody only if deported or

given an entry permit.

The second feature of present relevance is

that the custody can only continue for an aggregate
of 273 days. During that period, time stops

events occur. One of these events is that provided running under the legislation if certain prescribed for in section 54Q(3)(c) which is in these terms:

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.

So that if the designated person applies to the

Department for some form of entry permit, for

example, by saying that they are a refugee from

their country of origin, then the Department has to

consider that application and process it while the

custody continues. Of necessity, the Department

will need to make inquiries in most cases to obtain

Tang(2) 11/8/94

the information necessary to resolve the

application, and what subsection (c) does is to say

that while those inquiries are being undertaken by

the Department that the clock stops, so that the
273 day period does not conclude before any

application is determined.

The Court will readily understand that

inquiries of many different kinds may be necessary.

They may, for example, involve the seeking of information from an Australian post in the country of origin of the person claiming to be a refugee. It may involve seeking information from the

United Nations High Commissioner for Refugees about

conditions in a particular country. It may involve

making further inquiries of the applicant him or

herself, and that of course will be necessary if

the inquiries of the Australian post generate any

adverse material that it is contemplated being

taken into account. That has to be put to the

applicant and given the opportunity to make

submissions about it.

It is in that context, if the Court pleases,

that the point of statutory construction that is

involved in this case arises, and the point is

fairly simply stated. The Department has contended

that it is waiting for such information from the

time it makes a request. So that the clock stops

running from the time that the Department writes to

the applicant, or sends a cable to the overseas

post, and it does not resume running until there is

a response.

The Federal Court, on the other hand, both at

first instance and on appeal, put a gloss on that

construction and in paragraph 6 of our written

submission the Court will see the - - -

GAUDRON J: But did they really? Or did they just say it is

a question of fact?

MR TRACEY:  They certain said that, Your Honour.

GAUDRON J: And why would it not be a question of fact

whether they are waiting or not waiting, given that

the request has been made? I mean they may decide,

"We would like to have this but we will not hold it

up pending that."

DAWSON J:	Depends how you construe the word "waiting".
MR TRACEY:	Your Honour, plainly they did say that, but none

the less they put a clear gloss on the construction

because what they said was that - and this applied

generally, it was not just to any one particular

situation that arose in this case. Your Honour

Tang(2) 11/8/94

will have seen there were eight different periods,

so there were different requests, went to different

places, to different people and this general

principle was said to apply to them all, and that

was that you were not waiting until either the

period you have prescribed in your letter of

request had been reached and passed without a

response or if you had not prescribed a period then

a reasonable time had elapsed, and that was

expounded as a general principle - - -

DAWSON J:  If it were a question of fact, you would have to

look at it and say whether they could have done

something else in the meantime, or could not.

MR TRACEY:  Yes.

DAWSON J: And it was not approached that way. It was

approached, as it were, as an abstract question.

MR TRACEY:  Indeed, and one could conceive, Your Honour, of things that in theory might have been done. The

decision-maker might have said, "Look, you get on

with the job. Write a draft report on the
assumption that the answers we are going to get are
so-and-so". Now, in theory that is possible. As a
matter of fact it is possible, but it really does
not meet the point, because, whilst it is possible,

it may be a purely fruitless exercise, because the

answer may come back quite differently from the one

anticipated.

TOOHEY J:  Mr Tracey, does the Act throw any light on the

meaning of "person who was not under the control of

the Department"?

MR TRACEY:  It does not help in that regard, no,

Your Honour.

TOOHEY J:  Do you read it as referable to persons employed

by the Department, or does it have some wider

operation than that?

MR TRACEY:  No. We read it, Your Honour, as drawing a

distinction between those in the employ of the are not, be they the applicant and his or her advisers - - -

TOOHEY J: Well, that was going to be my next question. So,

you read it as including the applicant as well?

MR TRACEY: Yes, Your Honour, yes. And, one really must

because the Department cannot control the speed

with which an applicant might respond to a request.

Tang(2) 4 11/8/94

BRENNAN J:  Who bears the onus of proof of the extended

period?

MR TRACEY:	I suppose the answer to that, Your Honour, depends upon the context in which the matter
arises. If, for example, there was an action commenced for wrongful detention by the applicant, then he or she would bear that onus in those
proceedings.

McHUGH J:  Why? You have got to justify the detention, have

you not?

MR TRACEY: Well, Your Honour, if it was habeas corpus, I

was going to give that as the alternative example,

then the onus would be reversed. It would depend

upon the nature of the proceedings in which the

issue arose.

BRENNAN J: Well, say the evidence closed in one or other of

those classes of proceedings with no more shown
than that the period of 273 days had been exceeded,

and that the person was being kept during that

extended time in application custody, what would be

the result?

MR TRACEY:  If there was no evidence relating to any matter

that fell within paragraphs (c) to (f) inclusive, the result must be that the Court would find that the person was unlawfully detained for the period

beyond 273 days.

BRENNAN J: Then the onus must be on the Department, at

least evidentially.

MR TRACEY:  In that sense Your Honour, with respect, is

perfectly right, yes.

BRENNAN J:  Why is it that the Department cannot be required

to show whether, to use Justice Gaudron's phrase,

as a matter of fact it was waiting for some period?

MR TRACEY:  Your Honour, it could satisfy that requirement

to a limited extent. As Your Honour has seen in

this case, a good deal of evidence was called

before the Federal Court at first instance saying

when requests had been made, to whom, when the

replies came in. The calculations were done as to

the periods involved. But on the formulation of

the Federal Court, that is not enough. The factual

issues can be presented to the Court but then an

additional step has to be taken. A judgment has to

be made about what is a reasonable period as

against that factual background, and therein lies

the problem.

Tang(2) 5 11/8/94

BRENNAN J:  The proposition being put to you, as I

understand it, is that it is not a question of

reasonable period: it is a question of whether, the letter of inquiry having been sent out, anything is
happening in the Department or whether things have

ground to a halt. If they have ground to a halt

for want of a response, then the Department is
waiting. If the Department is continuing to

process, then it is not waiting, even though the

time is running.

MR TRACEY:  Your Honour will be conscious that

paragraphs (c) and the others below it qualify
paragraph (b), amongst others, which contemplates
that there can be an ongoing process of dealing

occurring and the clock can still be stopped. So that, as a matter of statutory construction, that

is not going to produce, in our submission, a

result.

GAUDRON J:  We are concerned only with the expression,

"waiting for", which appears only in (c), not (d)

and ( e).

MR TRACEY:  But you can be waiting, Your Honour, whilst you

are still dealing. Take this example, Your Honour:

Your Honour goes to the bus stop in the morning

earlier than the time that the bus is due to arrive

and Your Honour, whilst waiting, as we would submit

you were, for the bus, notwithstanding the fact

that you were there ahead of the appointed time,

read Your Honour's paper. In our submission, the

fact that you might be doing something else during

that period does not in any way detract from the

fact that you are waiting for the bus.

DAWSON J: Well, you are waiting in the sense that you

cannot reach a final termination without that which

you are waiting for.

MR TRACEY: Yes, that is an additional factor, Your Honour,

but, we would submit, not a determinative one.

TOOHEY J:  Do you gain any understanding of paragraph (c)

from paragraph (f), Mr Tracey, which speaks of:

continued dealing with the application -

which -

is otherwise beyond the control of the

Department?

MR TRACEY:  Yes. Your Honour, we have given some

consideration to that. It is not a matter that

attracted comment at any level in the

Federal Court. Your Honour, we would submit that

Tang(2) 6 11/8/94

what (f) does is certainly to indicate that the
draftsman had in mind that in certain situations

covered by (c), (d) and (e) that the matter would

be beyond the control of the Department, but not

exclusively. If it had been intended exclusively,

one would have expected (f) to appear where (c)

does.

TOOHEY J:  I was not re-adverting to the possibility that it

was exclusive, but whether the word "otherwise"

threw any light upon what preceded it in the

earlier paragraphs.

MR TRACEY:  It does Your Honour, but it, in our submission,

indicates that there are situations contemplated by

(c), (d) and (e) where the matter would be beyond

the control of the Department, but it does not

follow that (c), (d) and (e) only apply where the

matter is beyond the control of the Department.

McHUGH J: But supposing the Department is conducting

inquiries on all fronts and engaging in

correspondence, but there is one outstanding piece
of information it is waiting for and it knows it is

going to take some time to get, why would you say

that the Department is waiting for information

relating to the application? They are not waiting,
are they? They are carrying on; they are

continuing to deal with the application.

MR TRACEY:  They are, Your Honour, but they are waiting for

that information.

McHUGH J: But it is a question, as Justice Toohey pointed

out, as to whether the word "otherwise" in (f)

throws some light. Your construction leads to the

extraordinary conclusion, in this particular case,

that in a 189 day period the respondent was in

application custody for only seven days. One must

surely interpret this section on the basis that the

legislature has given the executive nine months to

process this information while they hold a human
being in custody.	Why should not this section be

interpreted strictly against the Commonwealth?

MR TRACEY: There are a number of responses to that, if I

may, Your Honour. The first is that at no point in

this proceeding has it been suggested that any of

those inquiries were unnecessary. They were all

necessary for the purpose properly of resolving the

application. The second thing is that they were

only the beginning of a process. It could well

have been that the clock was stopped later by

curial proceedings, tribunal proceedings, that

would have added even more days to the waiting

period and the person would still have remained in

custody.

Tang(2) 7 11/8/94

The Court considered all those possibilities

in Lim's case and did not suggest that that created

any constitutional difficulty. The underlying theme of the judgments, as we would read them,

Your Honour, was that so long as you were

legitimately doing things that were necessary to

resolve the application then the nine month period

could be extended and that the legislature had

specifically contemplated that.
It is our submission, in this case, that the

figures that Your Honour does refer to, while
striking, are not figures that should produce, as

it were, a strict construction against the

Commonwealth, in circumstances in which that strict

construction would create a position where the

scheme became unworkable. It would become

unworkable because the custodian and the person in

custody could never, at any given time, during that

period of custody, say with precision, "So many

days had elapsed."

McHUGH J: But there is always going to be a value judgment

as to whether you were waiting for information.

MR TRACEY: Not, Your Honour, if you say, as the Supreme

Court in Western Australia did in Truong's case,

you start counting when the request is made. If

there was a situation in which requests were being

contrived or something untoward of that kind was occurring, there are other remedies available to deal with that situation but, so long as the

request is genuine and it is necessary for the

purpose of resolving the application, then, in our

submission, it is far better that both the person

in custody and the custodian know with precision

what their position is because, if they do not,

then one of two things - - -

McHUGH J:  The person in custody will not know without

litigation, will they, as to whether the Department

is waiting for information?

MR TRACEY: There are two things about that, Your Honour.

Firstly, it is not a question of the Department being able to resolve the problem by erring on the

side of caution, because section 54L demands that

the person be retained in custody right up to the

nine months.	So if they are let out early, it is a
breach of 54L.	If they are let out late because

the wrong estimate is made - and Your Honour will

recall His Honour Mr Justice Neaves was offering

ranges of dates, in some instances five days apart.

He would say it was reasonable to wait 20 to 25

days. If you pick the wrong time, then the person can then sue the Commonwealth for unlawful

detention. Either way it is an unsatisfactory

Tang(2) 11/8/94

situation, Your Honour, and one that is wholly

obviated if time starts running from when the

request for information was made.

TOOHEY J: But there are really two considerations operating

here. One is the processing of the application and

the other is the detention of the person concerned

in custody. It is conceivable - and I am not

expressing a view as to how the legislation

operates - that Parliament could say, "Well, the

Department has X number of days to determine the

application and a person can't be held in custody
beyond that period without the legislation
requiring when the application must be determined",
but how does the Act operate here, Mr Tracey? If
the time has expired, however you arrive at the

calculation of time, and the application has not

been processed by the Department, what is the
position of the person who can no longer be held in

custody?

MR TRACEY:  The short answer is, Your Honour, they must be

released.

TOOHEY J: But must be released unconditionally?

MR TRACEY:  Yes, there is no provision for bail type

conditions or anything of that kind, as I

understand it, Your Honour.	I can confirm that, if
Your Honour will bear with me.	My apprehension was

right, Your Honour; they are released

unconditionally.

TOOHEY J: And if their application is later rejected, then

they are liable to deportation?

MR TRACEY:	Yes, Your Honour.
TOOHEY J:	I am just wondering how section 54L(4) operates

in this context, if indeed it is relevant.	It ties
in with section 54P(3) which speaks of:

An officer must remove a designated person

from Australia as soon as practicable -

That can only be if there has been an entry

application and the application has been refused

and all appeals have been finalized, so that does

not operate in the situation that I am suggesting

here.

MR TRACEY:  I think those provisions are consistent with

what I have just said to Your Honour, namely - - -

TOOHEY J:  It may be that the policy of the legislation is

that there is a finite time.

Tang(2) 9 11/8/94

MR TRACEY:  Yes.

TOOHEY J: At the end of that time, if the Department has

not been able to dispose of the application the

person in custody must be released, and what

happens thereafter is another story.

MR TRACEY:  That is absolutely right, and Your Honour will

see the secondary materials that we have made

reference to at the end of our written submission.

TOOHEY J: But I am not sure that that operates to support

your argument or is against it. I suppose on one

view it might operate against it, might it not?

MR TRACEY:  Your Honour, we would submit that it neither

assists nor detracts from our argument. It is

neutral, it is relevant background, it is relevant

contextually, but - - -

TOOHEY J: It may go a bit further than that. Parliament

may be saying, in effect to the Department, "You

have got 273 days to deal with this application, if

you have not dealt with it within that time then
you can continue to deal with it but the person

cannot be held in custody any longer."

MR TRACEY:  It does, but then it qualifies it by saying that

you do not come up against the 273 day deadline

until periods in which you are seeking information,
waiting for information, have been subtracted from

the formula.

McHUGH J:  Mr Tracey, as a matter of common sense, I say I

find it difficult to accept that Parliament would

have thought that the Department had nine months

simply to make a decision because, on your

argument, the obtaining of information from outside

the Department is all excluded in the period, and

that would mean then that the Department is given

nine months to make a decision about somebody. Why does that not support Mr Justice Neaves'

construction that Parliament accepts that in the

ordinary course of events time will be taken up

where the Department requests information, but you

will get the exceptional case where somebody is

standing by not providing the information within a

reasonable time or the specified time and therefore

time should not run. But, nine months to make a

decision about whether or not some person should be
free or not free seems to me to be a very long

period of time, notwithstanding that there were

23,000 applications for refugee status at the time

this legislation was enacted.

Tang(2) 10 11/8/94

MR TRACEY:  That is a consideration which Your Honour will

recall Your Honour made reference to in Lim's case.

It is one on which we would rely in these

proceedings. It would have been a matter very much

to the forefront of the legislative mind at that

time, and Your Honour will see, in the second
reading speeches and the explanatory material that

accompanied the bill, that the legislature

specifically contemplated that the clock would stop

in those circumstances.

We have put the extracts at the back, but we

have provided the Court with the full context of

those materials and we would submit that when

Your Honour looks at that material Your Honour will

be satisfied that the parliamentary intention was

that the clock should stop during that process, and

any other processes that the applicant might want

to commence of his or her own volition; like an

appeal to the Immigration Review Tribunal, or the
Refugee Tribunal or to the Federal Court.

And just to take that example, if I may, Your Honour, in the context of Your Honour's

question, even though the matter was before the
Federal Court, for example, that would not stop the
Department continuing to receive relevant
information from overseas posts. Clearly these

matters are not static -

McHUGH J: Well, what about (e)? How does (e) fit into

this, unless one of the following is happening:

court or tribunal proceedings relating to the

application have begun and not finalized;

Does the clock stop then?

MR TRACEY:  Yes it does, and that is why I was giving

Your Honour the example. When Your Honour

originally put to me that striking example of the number of days involved in this case, that period could have been doubled by the operation of - - -

McHUGH J:  I appreciate that but, in a sense, that is

because of something that has been done by the

applicant, and it is understandable that if a

person who is asked to give information delays

beyond what you would normally expect, then the

clock should stop. But in the ordinary course of

administration, surely nine months to make a

decision about a human being's freedom seems to me

long enough.

MR TRACEY:  Your Honour, can I say this. Your Honour's assumption about (e) being triggered by something

Tang(2) 11 11/8/94

the applicant does, is not necessarily always the

case.

McHUGH J: Yes, I understand that.

MR TRACEY:  It may be an appeal lodged in the

Federal Court - - -

McHUGH J: The Department may appeal, exactly.

MR TRACEY:  And, in our submission, there is no basis to

read down any of those provisions - - -

McHUGH J: Except that the common law protects the liberty

of the subject and the non-subject, and the word

"waiting for" has got some ambiguity. I think,

literally, the arguments tend to be in your favour,
but when you look at it in its total context and

how it operates in practice, I am not so sure,

Mr Tracey.

I mean, if a brief is sent to you for opinion,

and it is a difficult matter, and you say to the

solicitor, "Look, I cannot get this back to you for

six weeks"; on one view you say, yes, well the

solicitor is waiting for your opinion; on another

view, he is not waiting for your opinion until

after the six weeks are up.

MR TRACEY:  We would submit, Your Honour, that the former view is plainly the better one.

McHUGH J: Yes, I think that is right ordinarily.

MR TRACEY:  And certainly from the client's point of view it

has got to be the better one.

Mc HUGH J: Yes •

MR TRACEY:  The importance in this case is that the

alternative view would simply render the scheme

unworkable and render the custodian potentially

liable to legal proceedings, in circumstances where

reasonable minds, applied to the same facts, might

come to a different view.

There is an additional complication too that I

might draw attention to, Your Honour, if I may and

it is this: if one is looking, as the Federal

Court does, to determine what is a reasonable

period, one has to make that determination in the

circumstances of each individual request. So that

the court would have to be fully appraised of all

the surrounding circumstances.

For example, one might expect a swifter

response from a request that goes to the High

Tang(2) 12 11/8/94

Commissioner in London than one that goes to the

Embassy in Peking, for example. The answer may

well vary depending upon the complexity of the

request, or what inquiries have to be made to

satisfy it. The answer may be in the files at the

embassy. On the other hand, an embassy employee

may have to be sent off to the provinces of China

to make local inquiries about a particular matter.

Indeed, the custodian, before ever it got to court,

would have to be seized of all those considerations

to determine when the reasonable time had elapsed

and the clock had stopped.

In our submission, that is just not a

situation that is conducive to a workable system.

The workable system is produced by giving the words

their ordinary and natural meaning, and that really

sums up our submission in this case, if Your Honour

pleases.

McHUGH J: Yes.

DAWSON J: Legislative policy is clear, is it not, that a

person should remain in custody, a non-subject?

MR TRACEY: Yes, Your Honour.

DAWSON J: Until his application is properly dealt with.

MR TRACEY: Yes, Your Honour.

DAWSON J: And it will be being properly dealt with if

information is properly sought and has not been

obtained.

MR TRACEY:  Yes. That is certainly as we would put it,

Your Honour, yes.

DAWSON J: But given that, then a time limit is set.

MR TRACEY:  Your Honour will find plenty of support for that series of propositions in the secondary material.

DAWSON J: One may question whether a person should be kept

in custody when awaiting the determination of his

application. There are views about that but the

legislature has adopted one clear view.

MR TRACEY: That is so, Your Honour, in our respectful

submission. Unless there are any other matters

with which we can assist the Court, they are the

submissions.

DAWSON J: Thank you, Mr Tracey.

MR TRACEY:  As the Court pleases.

Tang{2) 13 11/8/94

BRENNAN J:	Mr Castan?
MR CASTAN:	May I hand to Your Honours an outline of

argument for the respondent?

BRENNAN J: Yes, Mr Castan?

MR CASTAN:  Your Honours, the matter that we put have

already been the subject of exchange with my

learned friend but I should say that what I might

term the broader proposition as we put it in

paragraph 1 of this outline and as was put by some

of Your Honours to my learned friend, was put to

His Honour Mr Justice Neaves. That is to say,

although His Honour opted for a view favourable to

the present respondent, but which involved a notion
of reasonableness and calculation that our learned
friends have criticized as introducing an element

of uncertainty, the primary submission that was put

below was not to that effect. The primary

submission that was put below was to the effect

that, as put in paragraph 1 here, one does not even

get to that process of engaging in a calculation of reasonableness. That the waiting does not occur at

all unless the process itself is delayed.

That view favourable to the present respondent

did not find favour with His Honour but His Honour

at page 41 to 42 in the appeal book summarized that

view but then said, "No, that is too wide", and

then adopted a view nevertheless favourable to the

respondent by - - -

BRENNAN J: Well, is it clear that it is less favourable?

What is the consequence of accepting your

paragraph 1 proposition in this case? Does it then

appear that you would succeed?

MR CASTAN:	We would succeed.
BRENNAN J:	Why?
MR CASTAN:	Because the position is that the appeal should

nevertheless be dismissed. The 273 days period on

any view had been exceeded. The calculation as

undertaken on the basis as we contended for would

have resulted in an even shorter period than
His Honour calculated. In other words, it is

necessary if one accepts this premise for there to be evidence of an actual delay. If the Department

sent our 10 letters to start a process and it has

received responses to eight of them very shortly

and it commences work, well it is not waiting on

anything, notwithstanding that some of the letters

may take longer than others for the replies to come

in.

Tang(2) 14 11/8/94

In the present case it was clear on the

calculations that either on the, what I will put,

wide view, as embodied in our proposition 1, or on

the somewhat more limited view favourable to us, as

adopted by His Honour Justice Neaves, a longer

period than 273 days had expired and that these

persons must be released from custody. So that the

result is the same; they must be released from

custody. The reasoning by which that result was

reached is reasoning which found favour with

His Honour. It involves a notion of

reasonableness. The submissions that were put to

him as we contended for before him and as we

contend for before this Court, involve no

uncertainties whatsoever.

DAWSON J: Was there evidence that the Department could have

gone on with the application in some other respect

before the information which it sought had come

through?

MR TRACEY:  What was being put to His Honour, and it was

argued, and the whole case was run on the basis

that the contention of the then applicant for

judicial review was that the Department had to

demonstrate that it had been delayed; that there

was a delay in its processing, and that was

the - - -

TOOHEY J:	I do not really understand how paragraph 1 would work, Mr castan. What would you do? Call officers
of the Department, or the relevant officer, to say
what inquiries were being made and how far the file
could be processed.

MR CASTAN: Yes, Your Honour, and there was evidence before

His Honour in various forms:  some of it went in by

consent in the form of charts and so on as to

progress at various stages and the issue that was

argued and there was a great deal of argument put.

DAWSON J:  Why should you restrict it to the particular

application? On your argument the Department is

not waiting for information if it goes on and does

something else with other applications in the

meantime.

MR CASTAN:  No, in relation to any given person, if one

applies section 54Q and one looks at 54Q(3)(b), one

looks to see whether a person is in application

custody if:

an entry application for the person is being

dealt with.

Tang(2) 15 11/8/94

It is either being dealt with or it is not being

dealt with and it is being dealt with and one is

in application custody unless one - - -

DAWSON J: Unless one of the following has happened:

the Department is waiting for information

relating to the application.

But on your view of the word "waiting", it is not

waiting if it is doing something else in the

meantime.

MR CASTAN:  In relation to that application.

DAWSON J: Why in relation to that application? It does not

say that.

MR CASTAN:  In our respectful submission, one looks at each

applicant, one looks to see whether:

a person is in application custody if:

(a) the person is in custody; and

(b) an entry application for the person is

being dealt with;

unless one of the following is happening:

(a) the Department is waiting for information

relating to the application to be given - - -

DAWSON J: But on your construction of the word "waiting",

it is not waiting if it is doing something else

which it has a duty to do in the meantime.

MR CASTAN: Precisely, in relation to

DAWSON J:  It is not dealing with the application but that

is that.	I can see why you want to impose that
restriction but - - -

MR CASTAN: But, Your Honour, the words of the section

relate to the "being dealt with", the application

being dealt with. That is why we put it.

DAWSON J: Yes, but the words of (C) do not embrace that.

It is just a question of whether it is waiting or

not.

MR CASTAN: In our respectful submission, the reasons

why -

DAWSON J:  You say you are not waiting if you are doing something else.

Tang(2) 16 11/8/94

MR CASTAN:  In relation to that application.

DAWSON J: Where does it say that?

MR CASTAN: In our respectful submission, (c) says,

"information relating to the application", so it

is - - -

DAWSON J: That is true, that is the "information relating"

but it is not waiting for that information if it is

doing something else in the meantime - - -

MR CASTAN:  In relation to the application which is being

dealt with. That is what the section is about,

Your Honour. I cannot put it higher than that.

The section is dealing with:

an entry application for the person is being

dealt with; unless -

that has to be read in the context of "the dealing

with the application". One can give any number of examples, but if they send off 10 letters and they

immediately get back responses from, perhaps, the

neighbouring department down the road, which gives

some information and others flow in, it may turn

out that letter No 10, which is sent off to some

authority - perhaps a foreign authority who throws

it in the wastepaper basket - and letter No 10 is

never answered.

McHUGH J: That may indicate that waiting involves some

sense of duty to answer.

MR CASTAN:  Yes, but there may be persons who have no duty

to answer.

McHUGH J:  That is right. I was just wondering whether or

not - this might be a bold construction of (c) - it

is really not concerned with the departmental

requests at all but waiting for information of

people outside the Department, perhaps in support

of the applicants' case in some way.	The words are
too wide to be confined so narrowly.

MR CASTAN:  We respectfully submit that one must look to the

totality of this. 273 days has been set as a

period within which applications should be dealt

with. Manifestly there may be circumstances where,

through no fault, so to speak, or by reason of

matters beyond the control of or outside the cause
of any deficiency within the Department, that

period should not run against the Department, so to

speak; the period should not be counted.

TOOHEY J:  Mr Castan, can I just make sure I understand paragraph 1. In order for the Department to meet

Tang(2) 17 11/8/94

the requirements of paragraph (c), on your

submission would it be necessary for an officer to

give evidence to the effect: "So far my inquiries

have been such-and-such. I'm seeking further

information. Until I get that information, I can

do nothing more with the application"?

MR CASTAN:  Yes, Your Honour.

TOOHEY J: And unless the officer can actually say that,

then there is no waiting for information in terms

of paragraph (c)?

MR CASTAN: Precisely, Your Honour; exactly as would occur

if a question arose under, say, paragraphs (d) or

(f). A similar situation would arise there where

it would be necessary - - -

TOOHEY J: Not quite, because if you take (e), for instance,

that is quite objective.	You can measure that
without any difficulty.

MR CASTAN:  (e) is different, but (d) and (f), if

circumstances arose, it would be necessary for an

officer to come along and say, "Well, continued

dealing with the application is beyond our control because it's not that we're waiting on information but some other circumstance has occurred - the

building burnt down", or - one can imagine - - -

TOOHEY J: But just following through with what I was

putting to you, if the officer - it then becomes

very subjective, does it not? I mean the officer

might be cross-examined on the basis, "You do not

really need that information to determine this

application. You have enough before you now to

enable the Department to reach a conclusion."

There just seems to be a very woolly area on the

construction that you place.

MR CASTAN:  If I may say so, Your Honour, while it is

possible to conceive of some situation which almost

amounted to mala £ides, we do not seek to assume
that. There must be a situation where an officer

can come along and say, "Yes, this particular

application is still current, it is being worked

on, there are steps taken" or, "This application is

on hold. We cannot do anything more with it unless

we get that information from the embassy or unless
we get the response from the applicant concerning
his circumstances, or unless we get the translation

of the documents which are in Chinese, we cannot

proceed. We have done everything else."

Let us assume, for instance, a draft

submission to the decision maker by an officer

lower down the ranks, and he says, "I have done the

Tang(2) 18 11/8/94

draft. So I have done all I can do, but I cannot

complete the draft and send it up until I get the

translation of the document which I received which

is in Chinese. I have sent it off to the

translation service over the other side of town and

I cannot do anything more with it until I get

that." At that point one might know an application

is on hold; they cannot do anything more till he

gets that.

TOOHEY J:  I can understand that illustration. But if the

officer concerned is waiting for a response to a

letter that has been written somewhere overseas, to

a country where the political situation is

unstable, at what point does the officer say, "I

really have to forego an answer to that letter, in

order to reach a decision.	I just cannot hold this
application up indefinitely."

MR CASTAN:  Yes. And our learned friends would say, "So be

it, it will go forever. The time will run

forever." And interestingly, in this very case,

that is what occurred. In this very case the

decision was made, according to our learned

friend's interpretation, while the clock was

stopped, so to speak.

DAWSON J:  That cannot be so. You cannot be said to be

waiting when there is no reasonable expectation of

a reply.

MR CASTAN: According to our learned friends, that is

exactly what they contend for.

DAWSON J:	I am surprised if he says that.
MR CASTAN:	That is exactly what is put, because there was a

particular document sought, some further better

copies of some document in Chinese was sought so

that a further translation could be made and it was

not forthcoming and it simply did not come forth,

would have it, one keeps counting the days and the	and according to the count, as our learned friends
days just run on, or one stops counting the days
and the stoppage continues on, so to speak,
forever, even if there is someone who has got a
document who says I am not going to send it to you,
or who declines to do so, or as they would have it,
if a letter goes astray in the mail. In other
words, one is forced back, we respectfully submit,
either to some objective, albeit perhaps
argumentative criterion that the file itself is
progressing, or it can be said the file cannot progress. Departmental officers know when a file
is on hold and no further step can be taken because
they are waiting on something, or when the situation is they have got 10 pieces of information

Tang(2) 19 11/8/94

which they are working on and another two are still

to come, and they will no doubt give evidence of

that. That is one view, as it was put to

His Honour and His Honour rejected that but took

the reasonableness view that there must be some
point at which you cannot say, "Well, I am going to

wait forever" .

BRENNAN J: This is where I do not quite understand which is

the more generous view. I can understand, to adopt

the words of paragraph (f), that a superior officer
might say, "Are you continuing to deal with the
application?" Answer, "No, I am waiting for

information." Let us assume that situation. As I

understand it, Justice Neaves' proposition is, it

is not the whole time that you are waiting for
information that counts, it is only the reasonable

time.

MR CASTAN:	Yes.
BRENNAN J:	So that the extension of time which he allowed

in this case, as it were, was the unreasonable time

plus 273 days.

MR CASTAN:  Yes.

BRENNAN J: What if you allowed the whole time plus 273 days

because the file was not able to be progressed?

MR CASTAN:  it would depend on the individual case, and it

is a matter for the Department - - -

BRENNAN J: What is the result in this case? Are there

findings of fact which we can look to?

MR CASTAN:  I will have to take Your Honour to them, or

perhaps review them to ensure that I can give

Your Honour this assurance, but I can say that the

case was presented by myself to His Honour

Mr Justice Neaves on the basis of the broadest

submission as put, and as summarized by His Honour
at page 41 and it was presented because the

calculations as done and as presented and as argued

on sheets of calculations - - -

BRENNAN J:  I understand all that. All I am looking for is

a reference in the transcript or the appeal book

which will give me the answer, if the Court should

be in favour of your argument on paragraph 1.

MR CASTAN:  Would Your Honour excuse me for a moment and I

will just ensure that - check whether His Honour

has given the answer to the question in the other

form. Your Honours will see at page 41 - if I

could take Your Honours to it - His Honour sets out

the Department's position and summarizes the

Tang(2) 20 11/8/94

position and says, having expressed his view. It

follows:

I am unable to accept the respondents' broad submission that each of the periods identified

above is a period during which the applicant

was not in "application custody".

And the periods that he is referring to are set out

in a chart on page 19 of the book. Your Honours

will see the determination that was in fact made on

28 June 1993. That appears from page 18. In

respect of a determination made on 28 June 1993 -

that appears at line 11 on page 18 - it was claimed

by the Department that all of these intervening

days were to be excluded from the count of the

days. One of the periods is period K which

Your Honours will see is 23 April 1993 to 28 June

1993, 67 days, so that 28 June 1993 was the day in

which the decision was in fact made, in effect,

terminating the period but of course that is, as

you will see in a moment, a period that terminated

on that day only because the decision was made, not

because some information was received.

Now if we then pass back to page 41 at

line 17, His Honour says:

It follows that I am unable to accept the

respondents' broad submission that each of the
periods identified above is a period during
which the applicant was not in "application
custody".

On the other hand, I am unable to accept the applicant's submission that a designated

person who is in custody is in "application
custody" unless it is positively demonstrated

that, because of circumstances beyond its

control, it is impossible for the Department

to proceed with any aspect of its

investigation and consideration of the

designated person's entry application. In my
opinion, the question whether a designated

person is in "application custody" in a

particular period is to be answered by

considering 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

subs 54Q(l). I shall, later in these reasons,

refer to such an interruption or delay as a

"relevant interruption to, or delay in, the

Tang(2) 21 11/8/94

decision-making process". In my opinion, the

mere circumstance that, notwithstanding such

an interruption or delay, the Department is

able to proceed with some other aspect of its

investigation and consideration of the entry

application does not require the conclusion

that during the period of that interruption or

delay the designated person is to be regarded

as being in "application custody".

What emerges from that, we would respectfully

submit, is that what was being contended for was,

shall we say, a more rigorous view against the

Department in -

BRENNAN J:  I understand that. Is there a finding of fact?

MR CASTAN:  What His Honour is saying here, he finds all

these periods and then deals with each period and

then, in respect of each period, he allows certain

days but, if he was to adopt what I will put as the

more rigorous test, they are days that he would not

adopt.

BRENNAN J:  It may be a matter of agreement between counsel.

If Mr Tracey agrees that if your paragraph 1 is

upheld then the appropriate order should be as

Justice Neaves made it, that is the end of the

problem. If there is a contest of fact, that is

another problem.

MR CASTAN:  It is not in issue between us, Your Honour, that

as a matter of fact if the view is taken that is

contended for in paragraph 1 of our outline and was

put as the broader submission before His Honour we

would succeed in the action.

TOOHEY J:  Mr Castan, is it apparent from Justice Neaves'

judgment that the reference on page 42, line 5, to

something being "outside the Department's control"

is drawn from paragraph (f) of section 54Q(3), or

purposes of the test that he was applying? If you	is it simply language chosen by His Honour for the
cannot answer it immediately, perhaps you could
answer it later.

MR CASTAN:  I do not think I can reliably answer that

question, Your Honour. I do not know that there is

anything in His Honour's reasoning prior to that

passage that leads one to be able to conclude that

that is because he has drawn it from paragraph (f)

or otherwise. I am reminded that at the bottom of

page 39 there is reference to paragraphs (e) and

(f) in His Honour's reasoning.

TOOHEY J: That is apparently where - at least not the

paragraph itself, but His Honour then starts to

Tang(2) 22 11/8/94

formulate this notion of interruption to or delay in the decision-making process which he then uses on page 42 apparently as his measure of

reasonableness; is that right?

MR CASTAN:  That appears to be the process of reasoning. He

draws on (e) and (f) from page 39. He then, at

page 40, raises a question in the middle of the

page as to the kind of situation paragraph (d) is

referring to. That is the one where:

the dealing with the application is at a stage

whose duration is under the control of the

person -

that is to say, the applicant for a permit -

or of an adviser or representative of the

person -

and he says:

The language ...•. appears to require that

control will have passed from the Department

to the designated person or his or her adviser

or representative, not simply that information

is being sought from such persons.

And then he says:

For a happening to fall within

paragraph (c), it is necessary to conclude

that 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". The language used is

capable of applying to a variety of situations

but, considered in its general context, I do

not think it has the meaning that, as soon as

the Department makes a request for

information, it can properly be said to be

"waiting for" that information. If that had

been the intention of Parliament, it would

have been easy enough to formulate a provision

clearly and unambiguously having that result.

In my opinion, in a case where the Department

has requested information from a person who is

not under its control and has nominated what
is seen to be, in the context that a decision
should, if possible, be made upon the

application within the period of "application

custody", a reasonable time within which the
information is to be provided, the Department

cannot be said to be "waiting for" the

information in the relevant sense until after

that nominated time has passed.

Tang(2) 23 11/8/94

His Honour is envisaging the case where the

Department receives a letter saying, "Please reply within 14 days" or some such provision.

Where no time for a response is nominated, the

Department is not properly to be regarded as

"waiting for" the information until after what can be considered, in the context mentioned, a

reasonable time for a response has elapsed.

And then he says, "I cannot therefore accept the

Department's submissions" and then goes on to

reject the wider submission as put on behalf of the

applicant before him.

TOOHEY J:  Is it right to say that Mr Justice Neaves used

reasonableness not as itself the test, but as an

area of inquiry in determining whether or not there

had been, to use his words, "a relevant

interruption to or delay in the decision-making

process"?

MR CASTAN:  We would respectfully agree with that view,

Your Honour.

TOOHEY J: And is that how the Full Court approached the

matter?

MR CASTAN:  The Full Court seemed to have simply adopted or

accepted that His Honour's reasoning was correct

and appropriate. If I could take Your Honours to

page 95 of the appeal book one sees that really

what the Full Court did was simply ~o agree with

His Honour Mr Justice Neaves and at page 96 then to

say, having referred to the second-reading speech:

there is nothing in this explanation which is

inconsistent with the assumptions expressed by

Justice Neaves. The Parliament must be taken

to have legislated on the basis that much, if

not all, of the information needed to make an	application for refugee status would be
available in foreign sources -

and refers to the possibility of taking some time,

and then they used the -

TOOHEY J: For my purposes, it is not necessary to take us

to the judgment; you have answered my question.

MR CASTAN:  I was going to take Your Honour only to the

words "reasonable opportunity" which does appear at

the foot of page 96.

McHUGH J:  Mr Castan, could I ask you about an intermediate

view? Significantly, paragraph· (c) uses the words

"to be given by" rather than the word "from". In

Tang(2) 11/8/94

other words, it does not read, "Unless the

Department is waiting for information from a

person", it is "waiting for information to be given

by a person" and the words "to be given by" seem to

imply that there is some duty or undertaking,
express or implied, by a person to give

information. Now, if you adopted the view that there was no waiting for information until some

person had given an undertaking to provide

information or it was under a duty to give

information, how would that affect the outcome of

this case?

MR CASTAN:  In our respectful submission, it would only tend

to reinforce the result, or support the result,

which was the result found by His Honour, because

the periods that have been counted, or sought to be

counted by our learned friends in their submission,

which are set out in the judgment of His Honour Mr

Justice Neaves from a long list of periods, include

periods longer than, or in addition to, any periods

distinguish between those, where information is

that might be categorized in the way in which Your

sought from a person who has such a duty and simple

inquiries of one kind or another.

McHUGH J:  The argument against you is that time runs from

the moment of request. That could have been said

in terms, I suppose, but one would have thought if

that was what was intended the legislation would

have said, "The Department is waiting for

information from a person." That would achieve the

effect that is sought by the appellant.

MR CASTAN:  Yes.

McHUGH J: But the words "to be given by" seem to me to

imply that ultimately this information will be

forthcoming, and that must be as a result of some

undertaking.

MR CASTAN: Yes. The adoption of that would result in the

elimination - I hesitate to say all - but certainly a large number of the periods that are sought to be

counted as additional days by our learned friends

because there was certainly no evidence of any such

duty or the basis upon which any of the persons

from whom information was so requested, having any

such duty.

McHUGH J:  Or undertaking. Somebody might say I will get

that information for you. There might be an

implied undertaking to get the information.

MR CASTAN:  we would simply submit that there was no

evidence that there were any such undertakings

Tang(2) 25 11/8/94

given or duties imposed, and in a case like this,

if that were the test, there was simply no such

evidence of that and therefore one could not count

periods where persons were not in that category but

letters had been sent. The categories of cases in

the list that are analysed in some detail by

His Honour Mr Justice Neaves are each periods where

a particular inquiry has gone to a particular

person and for one reason or another, some of them

have been the subject of very substantial delay or

the expiry of a long period of time - delay may

have been the wrong word - but the expiry of a long

period of time, in one at least of which the reason

for the expiry of a long period of time was because

there was simply no answer forthcoming, nor did it

ever come forth. And notwithstanding its absence,

ultimately a decision was in fact made, and it was

made during the time - the ultimate deficiency in

our learned friend's submission, as we would submit

it, is that in this particular case, as an

illustration of the difficulty of their approach,

the decision was in fact made while, as they would
say, the clock was stopped, while time was not

running, because they were waiting, because there

was a particular query that was quite clear was

never going to be responded to, relating to the

provision of some further copies of something in

Chinese that needed to be again looked at or

translated.

Manifestly, they certainly were not waiting in

the sense that we have contended for in our

broadest submission and nor were they waiting any

reasonable sense if 60 or 70 days had gone by and

they were not getting any response and were not

going to get any response, but they would

nevertheless say, "We are waiting for information

because we sent off a letter and we never got the

reply". We give the example in our written

summary, how does one cope, on that argument as put

by them, with the case that they send off a letter and it goes astray and they are never going to get a reply. Does time continue to run forever? How

do you cope with the case where they send direct

inquiries to some foreign post in addition to

sending an inquiry to the Australian embassy and

the relevant foreign post or the officer in a
foreign company or a local official throws the

letter in the waste paper bin and says I am not

going to respond to these Australians. Can it be

said by the Department, "We are still waiting, time

commenced running and runs till we get the

response." That cannot be, in our respectful

submission, the way in which one interprets this

legislation, given the framework of it and the

context in which these provisions. appear.

Tang(2) 26 11/8/94

TOOHEY J:  Does it have to be information directly sought by

the Department? Say, for instance, the applicant describes conditions in the town, city or village

from which he or she comes and is asked to provide

some additional evidence of those conditions and
says, "Well, I'll write to my brother or my uncle

or my niece who can support what I'm saying", is

the Department - on whatever view you take of

waiting for information, does that come within

paragraph (c)?

MR CASTAN:  Yes, Your Honour, in the sense that it is the

Department that has initiated the inquiry. They

may have asked the applicant to -

TOOHEY J: It is just that all the examples that we have

been offered have been examples of letters written
by the Department but I take it you do not give it

such a narrow construction.

MR CASTAN:  No, because that would be a case, really, where

the information is sought from an applicant,

although it may be said to the applicant, "Well,
you'll have to tell us more about it or we want

something directly from the local mayor and it's up

to you to provide it", but that is, in fact, a

request addressed to the applicant and they are
waiting for information in substance from the

applicant, albeit the source of the information may

have to come directly and be sought by the

applicant.

McHUGH J: Does such a case fall within (d)? I find' (d) a

curious paragraph at a stage whose duration is

under the control of the person.

MR CASTAN: That perhaps envisages some situation where, by

reason of departmental policy or overall government

policy, a matter may be taken out of the hands of

this Department. One could perhaps imagine some

circumstance where the Department of Foreign

Affairs, for some reason, says all -

McHUGH J: No, but we are talking about its:

duration is under the control of the person or

an advisor or representative - - -

MR CASTAN:  I am sorry, Your Honour.

TOOHEY J: The applicant may simply say, "I don't want you

to deal with this application for a time".

MR CASTAN:  Yes, that would be a case where the applicant himself - - -

Tang(2) 27 11/8/94

McHUGH J:  I wonder whether that might also cover the case

where the applicant could ask to obtain
information, the duration at that stage is under

his control.

MR CASTAN:	Or an applicant may say, "I do not want that application to go further at this stage, I am
waiting on my wife or child to arrive" or there may
be family situations which give rise to some
circumstance where an applicant says, "I would
rather my application wait and go forward" or "My
husband is going to arrive next week and when he
arrives I want our applications to be dealt with
together and I want you to hold it till he
arrives."

One could imagine some such scenario where an

applicant says, "I do not want you to proceed with

it", or not necessarily withdrawing it but saying

for some reason it might be necessary to have it

held over.

The last one continued dealing maybe beyond

the control of the Department because there may be

totally extraneous circumstances, that it be

assumed that -

TOOHEY J:	The building might have burnt down.
MR CASTAN:	The building burns down or there is an

earthquake or circumstances arise where the

Department is unable to continue its works for some

period due to total extraneous circumstances.

So there is a variety of circumstances but

what we put and perhaps it does not need any

further labouring, is that there are in substance

two approaches which give sense and workability to

these provisions. I should just conclude by saying

that the element of uncertainty that my learned

friend has emphasized about the approach adopted by

His Honour Mr Justice Neaves and approved by the

Full Court of the Federal Court does not arise, as

we would contend at all, if one adopts the notion

that one looks to see whether the Department is
truly waiting in its handling of the application.It

no more arises under (c) than it would in giving a

proper interpretation to (d) or to (f). Those are

the submissions, if the Court pleases.

BRENNAN J: Thank you Mr Castan. Mr Tracey?

MR TRACEY: If the Court pleases. There is only one matter

I desire to address by way of reply, and it is the

suggestion that the Department would seek to rely

on a non-response for an indefinite period. It is

no part of our case that we would be waiting beyond

Tang(2) 28 11/8/94

a point where the person concerned was obviously

not game to give the information required. The

very example that our friends gave illustrates that point. Towards the end of April a request had been made of the adviser to the applicant, the

respondent in this case, for the document. There

was no response.

By early June a reminder letter was sent; no

response. 26 June, a further reminder letter; no

response; decision made on 28 June, the point being

that once it became apparent that there was not

going to be a response and the opportunity had been

given for any comment that it was designed to have

made, made, we went ahead and made the decision.

So that it is no part of our case that we would

rely on an indefinite delay just to keep somebody in custody.

McHUGH J: What do you say about the suggestion I put to

Mr Castan that the legislature has not used the
words "waiting for information from a person" but

"waiting for information to be given by a person"?

Does that not imply that that person is either

under a duty or expressly or by implication has

undertaken to give that information? How can you

be waiting for information to be given by a person

if you - the person may be a total stranger, it may

be somebody in China or Asia. You do not know

whether it is going to be given or not.

MR TRACEY:  We would not read in that implication,

Your Honour. To go back to Your Honour's example of somebody who seeks my advice in a matter and I

say to the solicitor, "Look, I can't do it for six

weeks" and they start waiting. During that six

week period it becomes apparent to me that I am not

going to be able to do it for an - - -

McHUGH J:  I know, but that is because it is going to be

given by you.	You have undertaken to give the
opinion, but if you write off to China and ask

somebody for some information, how can it be said

you are waiting for information to be given by him?

He may or may not. If your construction was the

preferred construction, why did the legislature use
the words "to be given by"? They could have
achieved the same result by saying, "Waiting for

information from a person."

MR TRACEY:  Yes, it could have achieved that result by the

use of those words. We would say they are

interchangeable, Your Honour, and that one does not

read in the obligation. In a strict sense somebody

in the Department of Foreign Affairs and Trade at a

foreign post is under no obligation to respond to a

request that comes from the Department of

Tang(2) 29 11/8/94

Immigration and Ethnic Affairs, but there is an

understanding that one arm of government will

assist another arm of government, but there is no

formal obligation and no undertaking to do so.

McHUGH J: That may be. It may be that the words include

"duty", "understanding" or "an undertaking", but

just a mere request may be another matter.

MR TRACEY:  Your Honour, the range of circumstances that

must be intended to be covered by that provision
must be potentially enormous. The Department might

wish to find any amount of information in different

cases. It is not always going to be refugee

applications and, therefore, the persons to whom

one would anticipate such requests being directed

are also extremely diverse and, we would submit,

not confined to people who are under any obligation

to do anything by way of response.

McHUGH J: What is your answer to Mr Castan's illustration

of the letter to the person in another country who

puts it in the bin and never communicates with you?

MR TRACEY:  The answer to that is, Your Honour, that the

Department can either write again as it did when

Ms Le did not respond to the request in relation to

the translation and draw attention to the fact that
the request had been made and it had not been

answered. If, having done that, there is no

further response, then the Department could not

continue to rely indefinitely - - -

McHUGH J:  I appreciate there are a lot of things the

Department could do, but you are asking for an

objective determination about it, and you seem to

be making the concession that a time comes when the

Department can no longer be said to be waiting for

the information.

MR TRACEY:  Yes.

McHUGH J:  How is that determined in the case of the letter

that is sent overseas if they do not get a reply

within a reasonable time?

MR TRACEY: Yes, Your Honour, I think we would have to say

that there comes a point where the Department would

be acting unreasonably in sitting and saying, "We

are waiting", because a point will be reached where

that contention could no longer properly be made

because it would have become obvious that there was

no likelihood of a response.

McHUGH J: Well, there is not much difference then.

Tang(2) 30 11/8/94

MR TRACEY: Well, there is a difference, Your Honour; that

comes at the other end of the process.

McHUGH J: Well, I appreciate it is the other end of the

process.

MR TRACEY:  The argument in this case is where you start

counting from.

BRENNAN J: Well yes, that is the argument in this case, but

the argument in support of that argument is that by

taking your argument, you get a definitive period.

MR TRACEY:	Yes, Your Honour.
BRENNAN J:	If you have the lack of definition at the end of the period, does your argument still stand?
MR TRACEY:	Your Honour, yes, because other principles of

law come into play to protect the individual at

that point. If the Department just sits there

indefinitely doing nothing, then there are other

remedies available.

TOOHEY J: You are really looking at the provisions of the

Judicial Review Act itself really, are you not, in

saying the decision maker has acted so

unreasonably, or whatever the language of the

section is, rather than seeking to construe the

provisions of the Migration Act itself.

MR TRACEY: Exactly, Your Honour.

McHUGH J: But this may have to take place in other

contexts, might it not, habias corpus in this

Court? One just has to determine how this section

applies.

BRENNAN J: That seems to be a curious notion that you have

just advanced though because if the remedy was one

of mandamus to make a decision then another

paragraph would continue the period of application

custody. Litigation would be pending.

MR TRACEY:  It has got to be said, Your Honour, that this

legislation does not in terms deal with all

possibilities.

BRENNAN J:  That is quite right. The problem about the the

legislation is that none of us can resolve it.

Thank you, Mr Tracey.	The Court will consider its
decision in this matter.

AT 11.39 AM THE MATTER WAS ADJOURNED SINE ·orE

Tang(2) 31 11/8/94