Singthong, W. v The Minister for Immigration & Ethnic Affairs

[1988] FCA 143

8        ,

L

.

CATCHWORDS

MIGRATION ACT, s.36A - Interlocutory order for release of applicant for Judicial review pending final hearing - Whether there 1s a serious question as to the applicability of s.36A to a passenger who has been granted a temporary entry permlt and then had It cancelled before she left the alrport - Whether release from Villawood detention centre to live pendlng the hearing at Cremorne would negate s.36A(8) and result in the applicant

entering Australia - Construction of s.5(2) and s.36A(8) and meaning of "deemed to enter Australia" and "shall not, for the purposes of this Act, be deemed to have entered Australia by

reason only ... leaving a proclaimed alrport to the questlon whether that leaving 10 - Irrelevance of actions taken by a person after

was an entry into Australia for the purposes of the Act - Relief

granted.

Migratlon Act 1958, ss.5(2), 36A

NSW G.835 of l988

Burchett J.
Sydney

26 April 1988

.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.835 of 1988
)

DIVISION	GENERAL	1
BETWEEN :

WATSANA SINGTHONG

Applicant

AND :

THE MINISTER FOR
IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

MINUTE OF ORDERS OF THE COURT

Judge Makinq Orders:	Burchett J.
Where Made:	Sydney
Date of Orders:	18 and 19 April 1988

(1) THE COURT NOTES THE FOLLOWING UNDERTAKINGS TO THE COURT

GIVEN BY THE APPLICANT BY HER COUNSEL:

that she will return to Thailand within the time
permitted by the Department of Immigration and Ethnic
Affalrs upon any final determinatlon O E her
application for judlcial review and of any appeal
therefrom which upholds the validity of the decislons

challenged;

that durlng her stay in Australia she wlll not engage

in any employment at all;

that she will reside at 11/32 Gerard Street,

Cremorne, the home of Michael Ault;

that she will report to the Compliance Sectlon of the
Department of Immigration and Ethnic Affairs, 5th

Floor, Chifley Square, Sydney between 9-00 am and 12

noon each Monday, Wednesday and Friday.

(2) THE COURT NOTES THE FOLLOWING UNDERTAKINGS TO THE COURT

GIVEN BY MICHAEL	AULT:
(a)	that he will permit the applicant to reside with him at 11/32 Gerard Street, Cremorne until further order:
(b) that he wlll fully support	the applicant whllst she

remains in Australia and will advise the Department

of Immigratlon and Ethnic Affairs forthwith upon

becomlng aware of any breach by her of her

undertakings to the Court:

(c) that he will not attempt to obtain any refund in

respect of the return airline ticket of the applicant

purchased by him.

( 3 )	THE COURT ORDERS THAT:
( a ) until further order the appllcant be released from custody pending the hearing and determination of her

application for ~udicial review:

( b )	the operation of the above-mentioned order be stayed
untll 1 2 noon on 19 April 1988:
(c)	costs be reserved except in relation to the hearing on 19 April 1988, and that the applicant's costs of the hearing on 19 April 1988 be paid by the respondent.

NOTE :  Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.835 of 1988
)

DIVISION	GENERAL	)
BETWEEN :

WATSANA SINGTHONG

Applicant

AND :

THE MINISTER FOR
IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is an application for an interlocutory order,

pending the hearing of the principal application, for the release

from custody of the applicant, Miss Singthonq, subject to such

undertakings as the Court sees fit to require. Miss Singthong is

a Thal national who, having obtained in Thalland a visa for

Australia, arrived at Sydney Kingsford Smith Airport on Sunday 10

April 1988 aboard a Thai International Airways flight €or which

she was the holder of a ticket that also covered a return flight to Bangkok. She presented her passport and visa to the appropriate officer, in the normal way, after disembarking from the aircraft, and was issued a temporary entry permit for a

period	of six months. However, when she was passing through
customs, she was questioned about a letter	in her possession,

sub~ected to what was described as a "strip search", and taken

into custody. A decision was made to cancel her temporary entry permlt, and that she should be removed from Australia pursuant to

s.36A(3) and ( 4 ) of the Migration Act 1958. She was taken, In

custody, from the airport to Villawood Detention Centre. Her evidence 1s that she was taken there with only the trousers and t-shirt she was wearing, all her clothes and other possessions, Including even her shoes, being left at the airport. She has

since had to borrow clothes from other people at the detention

centre. If this evidence is true, and of course no findlng or conclusion on any matter is made or reached by me at this stage except provisionally and for the purposes only of interlocutory relief, it is necessary to point out that nothing in s.36A

justifies depriving apassenger from the tropics (or any passenger) of clothing, and particularly of her own clothlng. The section was not deslgned to inflict punishment or humiliation upon visitors with Australian visas, or indeed those without

them.

The affidavits of the applicant and one Michael Ault, a
Sydney stockbroker who is a Brltish citizen and permanent

resldent in Australia, indicate that both of them are single and

Mr. Ault, for four months in 1986, and for two and a half weeks	that they formed an attachment during two stays in Thailand by	in 1987. Mr. Ault's father, who is a retired officer of the
British Foreign Service, llves in Thailand, and Mr. Ault speaks a
little Thai. The applicant speaks some English, although the
extent of it may perhaps be gauged by the fact that, at the airport, she found the simple word "occupation" incomprehensible. Mr. Ault contlnued to keep in touch with the applicant by letter and by telephone after his departure from Thailand, and they
arranged that she should visit him in Australia with a view to the development of their relationship and to enable her to flnd out whether she would like 4ustralia. Her intention was to stay for a period of up to two months, if she got on well wlth Mr. Ault in Australia, and then to return to Thailand. The return air ticket was purchased by Mr. Ault, and he was to support the appllcant during her stay In Australia. She had a small amount of spending money of her own.
It appears from the evidence that the circumstance which led to the applicant's difficulties at Sydney Kingsford Smith Airport was the finding in her possession of a letter which Mr. Ault had written to her. The letter was selzed by customs, and the evidence about it consists of references to its contents in
conversatlons, the terms of whlch are In evidence, and of an only
partially legible copy annexed to an affidavit filed on behalf of
the respondent. However, it appears that in the course of
seeking to persuade the applicant that it would be very hot in
Sydney s o that she would like it, Mr. Ault added the comment
that, if I can make out the copy correctly, "(I) t should be easy

to get work and make some money. No-one will know you are only

on a tourist visa which 1s good for about six months."

The affldavit of an immigration inspector, Mr. Shiels,

shows that the applicant readily acknowledged the letter as
written to her by her "boyfriend". In answer to a dlrect
question, she said the reason for her visit to Australia was "to
hollday with my boyfriend". The affidavit indicates that Mr.
Shiels asked a series of questions about how the applicant came
to meet Mr. Ault, about various lobs at which she worked in

Thailand, about her obtainlng	of a visa in Bangkok, and about
certain business cards, showing addresses	in various countries,

which she said she had been glven at the premises of a

hairdresser where she worked in Bangkok. He also asked whether

she had any friends or relatives in Australia, to which she
replied: "Only boyfriend." Mr. Shiels then gives an account of
a conversation wlth Mr. Ault, though he does not explain how he
came to speak to Mr. Ault. Mr. Ault's own account is markedly
different. Accordlng to the immigration inspector's account, Mr.
Ault told hlm he flrst met the applicant in September 1987 in
Phuket. I assume thls meant Phuket Island, but the evidence does
not suggest there was any attempt to clarify the matter with the
applicant who had said (in the context of speaking of a two year
acquaintance) that she had met Mr. Ault in Bangkok, but had not

speciflcally sald, nor been clearly asked, where she had first

met him. Mr. Ault is stated to have told the inspector that the applicant was visiting "to holiday with me for a couple o f

months". She would be staying with him at his home at Cremorne. He added that he went to Thailand quite often as hls father owned

a house there. He asked the inspector:

"What is the problem?"

However the inspector's affidavit does not suggest that he made any reply at all to this question, while Mr. Ault's affidavit asserts that throughout a period of many hours at the alrport, late into the night and into the period after midnight, his

attempts	to	btain	or furnish	informatlon	were	completely
ignored.

The inspector says he returned to the applicant, after speaking to Mr. Ault, and asked her some further questlons.

According to hlm, there was a discrepancy between her statement and Mr. Ault's as to when they flrst met:	she said that she
first met Mr. Ault "two years ago", whereas he	said that he first

met her "in September 1 9 8 7 " . However, Mr. Ault's affldavit

confirms the applicant's statement. Mr. Shiels approached the matter of the place of thelr meeting obliquely, asking whether she had ever been to Phuket, and ellciting the response that she

worked at a named beauty parlour there. He sought no further

explanatlon, but asked about other places, Includlng bars alleged to have been described as "massage bars", where she had worked in Bangkok.

I do not think It is necessary to analyse the evldence

further on this interlocutory applicatlon. In particular, it is

unnecessary, and would be lnappropriate at this stage,	to
endeavour to resolve the confllct between the evidence	of Mr.
Shlels, on the one hand, and the evidence of the applicant and
Mr. Ault on the other.	It is sufficient to note, first, that the
ground on which, on 1 4 April 1 9 8 8 ,	I granted relief against the

then very imminent removal of the applicant from Australia, pending the hearing o f her applicatlon, has not been shaken by the affidavits since filed. That ground was that there was a serious question to be tried whether s.36A has any application to the case of a visltor to whom an entry permit has actually been

g r a n t e d ,	w h e t h e r	or	n o t	t h e	M i n i s t e r	o r	h i s	d e l e g a t e	t h e r e a f t e r
c a n c e l s	t h e	t e m p o r a r y	e n t r y	p e r m i t ,	a n d	t h a t	h e	b a l a n c e	o f

convenience and t h e ~ u s t l c e o f t h e c a s e f a v o u r e d a n e x e r c i s e of

my d i s c r e t i o n i n f a v o u r t h e a p p l l c a n t . o f S e c o n d l y , t h e

a f f i d a v i t s now f i l e d do, I t h i n k , s h o w p r i m a f a c i e t h a t t h e r e 1s

a l s o a s e r i o u s q u e s t i o n t o b e t r i e d w h e t h e r t h e a p p l i c a n t was

d e n i e d n a t u r a l l u s t i c e b y t h e m a n n e r i n w h i c h t h e ma t t e r was

h a n d l e d a t	t h e a i r p o r t .
I n v i e w o f my f i n d i n g on t h e f i r s t p o l n t , i t was

u n n e c e s s a r y t o e x p l o r e t h e s e c o n d i n d e t a i l , b u t a submiss ion was

made, o n b e h a l f o f t h e M i n i s t e r , t h a t I was p r e c l u d e d f r o m t a k i n g

t h e	v i e w	t h a t	h e r e	w a s	a	s e r i o u s	q u e s t i o n	t o	b e	t r i e d	i n
r e l a t i o n	t o a	d e n i a l	o	f	n a t u r a l	l u s t i c e	b e c a u s e	a	Full	C o u r t	had

h e l d i n F a i n g o l d v . Zammit ( 1 9 8 4 ) 1 F.C.R. 8 7 t h a t h e r u l e s o f

n a t u r a l j u s t i c e d o n o t a p p l y t o d e c i s i o n s p u r s u a n t t o s . 3 6 A .

However,

a

g l a n c e

a t

p a g e s

92-93

of

t h e

r e p o r t

o f

t h a t

c a s e

w i l l

show

t h a t

t h i s v i e w

was

h e a v i l y

r e l i a n t

o

n

d e c i s i o n s

o

f

t h e

H i q h

C o u r t w h i c h h a v e s i n c e b e e n e x p l a i n e d I n Kioa v. West (1985) 159

C . L . R . 550 I n terms w h l c h r a i s e d o u b t s a s t o t h e e x t e n t of t h e i r

a p p l i c a b l l i t y t o t h e A c t i n i t s p r e s e n t f o r m . I n G u n a l e e l a v .

Minis te r f o r I m m i g r a t i o n a n d E t h n i c A f f a i r s ( 1 9 8 7 ) 74 A . L . R . 2 6 3

a t 2 8 0 , t h e j o i n t ~udgment o f Sweeney , Lockhar t and Gummow JJ.

d i s c u s s e s t h e p r i n c i p l e s o f n a t u r a l j u s t i c e i n r e l a t i o n t o s . 3 6 A ,

a n d s t a t e s t h a t t h e j u d g m e n t o f Mason J . i n K i o a v . West

" i n d i c a t e s t h a t i n t h e o r d i n a r y c o u r s e t h e r e w i l l n o t b e o c c a s i o n

f o r t h e p r i n c i p l e s o f n a t u r a l u s t i c e t o b e c a l l e d i n t o p l a y . "

T h a t l e a v e s t h e q u e s t i o n w h e t h e r t h i s is a c a s e w h i c h is o u t o f

t h e o r d i n a r y c o u r s e , h a v i n g r e g a r d p a r t i c u l a r l y t o t h e f a c t t h a t

l .

the applicant had already been granted a temporary entry permit,

which it was apparently decided to cancel only after the

department came into possession of information adverse to the

appllcant and then, as she claims, without offering her any
reasonable opportunity of refutation or explanation. There is

also the question whether it is the ordinary course to refuse a

temporary entry permlt when a visa has been granted by the

Australian Embassy in the country from which the vlsltor's

journey commences. To say that this may raise a serlous issue to

be tried is not, of course, to question the undoubted power of the Mlnister to refuse a temporary entry permit	in such a case
(see s.11).

In these circumstances, the dispute to which these

reasons are directed was whether the appllcant should he granted further interlocutory relief by way of an order for her release upon certain undertakings pendlng the hearing. I made such an order in the exercise of the power asserted by Lockhart J. in Unlugenc v. Minister for Immiaration and Ethnic Affairs (1982) 4 3

A.L.R. 569 at 571, but reserved my reasons because of the

importance of some of the issues which were raised.

There was placed before me unequivocal evldence, in the

affidavits of the applicant and Mr. Ault, that the release of the
applicant pending the hearing will involve no risk to the
Australian community, and in partlcular no risk that she wlll
abscond. Appropriate undertaklngs to ensure that she would
reside at the home of Mr. Ault, who lives in a unit in Cremorne,
and that she would report regularly to the compliance sectlon of
the department, were offered and accepted. Indeed, the
representatives of the department reduced somewhat the frequency
of the reporting which had been suggested. The applicant denied
specifically any criminal record, connection wlth political or

extremlst organisatlons, or engagement in the activity of

prostitution. She was not cross-examlned on these denials, nor

was any evidence proffered to establlsh the contrary. As a consequence of her belongings being taken from her, at the date of her affidavit of 1 5 April 1988 she was still wearing the clothes she had on in the plane and clothes borrowed from people

in the detention centre. It appears that, notwithstanding that I

granted interlocutory relief to restrain her emoval from

Australia, her luggage was placed on a flight out of the country,

and had not been retrieved as at the times of the further
interlocutory hearings on 18 and 19 April 1988. I think the

conditlons under which an applicant is detained are relevant to

the exercise of my discretlon, lust as is the location and

circumstances of her proposed residence, if set at liberty.

No evidence or argument being offered to suggest there was any fear of the applicant absconding, the respondent opposed

her release on the ground that it would have final consequences
adverse to the respondent under the terms of s.36A.	It was said

that it would result in the entry of the applicant Into

Australia, thereby preventlng her emoval pursuant to the provlslons of s.36A, and changing the conslderations applicable

to any future decision by the Minlster In respect of her presence

in Australia. It is, of course, trlte law that interlocutory

orders can be made which have a final effect, but in a case of

that klnd the effect of the relief wlll profoundly influence the
prlnclples to be applied by the Court.

The respondent's argument necessltates an examination of the provisions of s.36A, whlch does not appear to have been sublected to detailed judicial analysis, though i t was the sublect of some discusslon in Faingold v. Zammit (supra) and

Gunaleela v. Minister for Immigration and Ethnic Affairs (supra).

The sectlon provides as follows:

"(l)	A person who is on board an aircraft at the tlme of the arrival of the alrcraft at a proclaimed airport, whether or not that airport is the first port of call of the alrcraft in Australia, being a stowaway or a person whom an authorized officer reasonably believes to be seeklng to enter Australia in circumstances in whlch he would become a prohibited non-citizen, may -
(a) if an authorlzed officer so directs; or
(b) if the master of the aircraft so

requests and an authorized officer
approves,

be taken off the aircraft by an officer and kept in such ustody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such tlme as he is removed from Australia in accordance with sub-sectlon ( 4 ) or until such earlier

time as an authorized officer dlrects.

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

the alrcraft in Australia, being a stowaway

or a person whom an authorlzed officer

reasonably believes to be seeking to enter

Australia In circumstances In which he would become a prohlbited non-citizen, may, at any

tlme before he leaves the airport	-
(a)	if an authorized officer so directs: or

(b) if the master of the aircraft so

requests and an authorized officer
approves,

be taken into custody by an offlcer and kept ~n such custody, either at the proclaimed

airport or elsewhere, as an authorized

officer dlrects until such time as he is
removed from Australia ln accordance with
sub-section (4) or until such earlier time as

an authorized officer directs.

( 3 ) Where a person, not being a person

exempted, by instrument under the hand of the

Mlnister, from the requirements of Divislon

lA, who travels by aircraft from a place

outside Australia to a proclaimed airport has

sought and been refused an entry permit at

that airport or at any other airport	~n
Australia at which he has called	in the

course of that travel, he may, if an authorized officer so directs, be taken Into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as

an authorlzed officer directs until such time as he is removed from Australia in accordance

with sub-section (4) or until such earlier

time as an authorized officer directs.

( 4 ) Where a person 1s taken into custody

under sub-section (1 ) , ( 2 ) or ( 3 ) , an

authorized officer may, at any time within 40

hours after the person is so taken into

custody, by notice in wrltlng served on the
master, owner, agent or charterer of the
aircraft on whlch he 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

requlrement within the perlod of 72 hours
commenclng at the	time when the requirement

was served on him or within such further

period as an authorized offlcer allows,

whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of hls removal from Australia.

Penalty: $2,000.

( 6 ) It 1s a defence to a prosecution in

respect of a failure to comply with a

requirement under sub-sectlon (4) if the defendant proves that, after the requirement

was served upon hlm, he gave reasonable

an authorized offlcer of his willingness to receive the person to whom the requirement related on board a specified vessel or aircraft at a speclfled port at a specified time for removal from Australia and the person concerned was not made available at that port at that tune In the custody of an officer for placing on board that vessel or alrcraft.

notlce to

( 7 ) The master, owner, agent and charterer

of an aircraft are, jointly and severally,

liable to pay the Commonwealth a fair sum for the cost of keeping and maintaining a person while he is kept in custody in pursuance of sub-section ( l ) , ( 2 ) or ( 3 ) and, if the person has been kept in custody at a place other than the proclaimed airport, the cost of transporting the person, and a custodian of the person, from the airport to the place of custody and, if the person 1s required to be removed from Australia, from the place of custody to the vessel or aircraft upon which

he is to be so removed.

( 8 ) A person shall not, for the purposes of

this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being

kept in custody at a place outside a

proclalmed airport In pursuance of

sub-sectlon (l), ( 2 ) or ( 3 ) .

(9) A reference in this section to a proclaimed airport shall be read as lncludlng

a reference to an Australian installatlon."

The insertion into the Act, in 1979, of s.36A introduced

of a vlsitor to Australia and of the airllne involved in his	additional severe powers, curtailing the liberty and riqhts both
visit. It is part of the applicant's case that such powers
should not be enlarged by loose lnterpretatlon, but should be confined to authorize the particular matters specified in the
subsections of the section. (Cf. Khera and Khawa~a v. Secretary
of State for the Home Department [l9841 A.C. 74 at 111, per Lord
Scarman. ) I am not now, of course, concerned with the
applicant's contention that the section does not extend to a case
where a temporary entry permit has actually been granted. However, the respondent's argument presently under consideration
does require some interpretation of the section.
The section commences by treating separately, ~n ~ t s first three subsections, three situations which may arise upon the arrival of an aircraft at a proclaimed airport in Australia. (I shall explain later that Sydney Kingsford Smith airport is a proclaimed airport.) The three situations form an ascendlng
order of approach of a passenger on the aircraft towards
acceptance as an entrant into Australia.
Subsection (1) is concerned with the stage at which the person In questlon is still on the aircraft. If the person is a
stowaway or a person whom an authorized officer reasonably
believes to be seeking to enter Australia in circumstances in which he would become a prohibited non-citizen, the subsection applies to him, and includes provision for him to "be taken off the aircraft". It is obvious that this subsection is not applicable to the present case, and the respondent has not
contended that it is.

Subsection ( 2 ) deals with the next step. It 1s

concerned with a person "who disembarks from an aircraft", being also a person of one of the same two descriptlons referred to in subsection (l), and this subsection provides €or his being taken into custody "at any time before he leaves the airport". The applicant contends that this provision also has no application to the circumstances of the present case. At the time a relevant

bellef was formed and the applicant was taken into custody, she already possessed a temporary entry permit for a period of six

months, so that, on her contentlon, the officer could not

reasonably have believed that she was seeking to enter Australia
in circumstances In which she would become a prohlbited
non-citizen. She was, of course, not a stowaway, either in its
ordinary meaning or in the defined meanlng whlch it is given in
this Act in s . 5 .

Whether or not subsection (21, if it stood alone, should be construed so as to support the applicant's argument, - as to which the reasonlng in Falngold v. Zammit (supra, at 92) might perhaps create some difficulties for her - it seems hard, when

the terms of Subsection ( 3 ) are consldered, to read subsection

(2) as intended to apply to the present circumstances. For lt is subsection ( 3 ) whlch is in terms plalnly covering the case of a passenger who has not only arrived in an aircraft which has

landed, and disembarked from that aircraft, but has also "sought
and been refused an entry permit at that airport". In the
circumstances of this case, s.36A can only apply to the applicant

upon cancellatlon of her temporary entry permit, and on the basis

that she should then be regarded as someone seeking an entry
permit at the airport	and being refused it.

At any rate, thls was the view taken at the time, as

appears from a document purporting to be a "REQUIREMENT UNDER

SUB-SECTION 36A(4)" addressed to the station manager of Qantas

Airllnes, apparently on the footing that Qantas was the agent of Thai International Airways. That requirement expressly refers to the applicant as "a person taken into custody at Sydney Alrport under subsectlon 36A(3) of the Migration Act 1 9 5 8 at 2250 hours on 10 Aprll 1988". A departmental report referrlng to "NON BONA FIDE VISITOR/REFUSED ENTRY" states that the appllcant was "taken into custody at 22.50 hours under s.36A(3)". There are also in evldence copies of three documents, each headed with a reference to s.36A of the Migratlon Act and entitled "DIRECTION TO HOLD IN CUSTODY". The documents cover successive periods of the applicant's custody at the Villawood detention centre, and are In

substantially the same terms. Each contains express deletlons of

sections of the form, as printed, which are obviously directed to

the situatlons referred to in subsections (1) and ( 2 ) of s.36A,

and each has been completed to refer to the applicant, in the

language of subsection ( 3 ) , as "a person, not being exempted by

instrument under the hand of the Mlnlster from the requirements

of Dlvision 1A of the Act, who travelled by aircraft from a place

outside Australia to a proclaimed airport (there is some

variation In the name of the airport, but in each case Sydney

Kingsford Smith airport is clearly intended) and who has sought

and been refused an entry permit ..." Such a form, so completed,

unequivocally depends for its force upon subsection (3) of s.36A.

Notwithstandlng these matters, the respondent contended

that I should,	in considering the possible effect of an order
releasing the applicant, take into account	that the respondent

might be able to justlfy the applicant's detentlon in custody, and removal from Australia, by reference to subsection ( 2 ) rather

than subsection (3) of s.36A. If this proposltion becomes

important in the case, it will be necessary to conslder how it

can stand with the Full Court decisions In Australian

Broadcastlng Tribunal v. Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 F.C.R. 1 and Federal Commissioner of Taxation v. Cripps & Jones Holdings Pty Ltd (1987) 76 A.L.R. 619. In the latter

case at 627-8, the Joint judgment of Bowen C.J., Fox and Burchett

JJ. cited from the earlier case a dictum of Bowen C.J.:

"Where a statutory authority has purported to exerclse one of its powers but has In fact acted outside that power, it would only be in exceptional clrcumstances that the act could be upheld as a valid exercise of another head

of power. "

A s the joint ~udgment points out, the alternative discretion does not belong to the Court, and therefore if the original decision is unlawful the Court generally cannot justify it by reference to that discretion. In the present case, the terms of subsection (2) appear to limit the exercise of the discretion, which lt

confers upon the administrator,	to the situation which exists "at
any time before	[a person such as the applicant] leaves the

airport", and that tlme has long passed.

The respondent's first contention was that, if the

applicant is ultimately unsuccessful in having the challenged
decisions set aslde, her earlier release under	an interlocutory

order would nevertheless have the effect of frustrating the
operatlon of s.36A. For some reason which remains obscure to me
(perhaps because of the words "before he leaves the airport" in
subsectlon ( 2 ) ) , it was argued that action under subsection (2)
would in particular be frustrated, and this was the reason why
the possible applicatlon of that subsection was urged upon me.

However, it seems to me that in the case of each of the

subsections, the power conferred by s.36A is condltioned upon

compliance with the terms of the particular subsection In

question, and of subsectlon ( 4 ) . The keeping of the person in

custody is only a means to the	required end, and his temporary
release pending a hearing cannot affect the exerclse	oE the
power.

It was argued that a person taken Into custody under

taken from lt only "for the purpose of being kept in custody at a
place outside a proclaimed alrport in pursuance of subsection
(l), ( 2 ) or (3 ) " ; otherwise he would have entered into Australia

s.36A	must be strictly kept at the proclaimed alrport, or be
and passed irrevocably beyond the reach of s.36A.	Apart from the

more fundamental consideratlons to which I shall turn when I come
to deal with the next argument, this seems a most inconveniently
narrow constructlon to give to the section. One may ask what

would be the effect of an escape from custody, or of a purely

fortuitous	conveyance of the person concerned by ambulance
officers to a hospital,	ln the event of an accldent on the way
from the airport incapacitating both him and his custodians. The
fact is the section contains no trace	of any such absurd

limitatlon upon its operatlon. Repeatedly, lt uses the

expresslon "remove the person from Australia", whlch does not suggest that any distinction between the place of custody and any other part of Australia would have any bearing upon the power to remove from the country.

Furthermore, the idea that a person taken into custody

under s.36A must either be kept at the proclaimed airport in
question, or be dealt with only in the manner specified in

subsection ( e ) , is qulte contrary to the provisions of subsectlon

( 6 ) . That subsectlon contemplates that such a person may be

taken, in the custody of an officer, not for the purpose
specified in subsection (S), but to suit the requirements of the

airline which is to remove him from Australia, to any port

specifled in a particular statutory notlce. By virtue of the

definitlon in s . 5 (1 ) of "port", this would appear to extend to a number of places in Australia, and include even an lnstallation attached to the offshore sea bed (see s . 5 ( 1 ) and s . 5 B ) . It should be noted that subsection (6) would apply in a case where a

person was kept in custody pursuant to subsectlon ( l ) , ( 2 ) or (3) at the airport, as well as a case where he had been removed to a detention centre elsewhere. If he was at the alrport, his

departure for the purposes of subsection (6) would not seem to

fall wlthin the terms of subsection ( 8 ) at all, yet it is plaln

the leglslature contemplated that the power to remove h m from

Australla would contlnue to apply. The conclusion seems clear

that the mere release of the applicant from Villawood detention

centre cannot affect the operation of the decision made under

s.36A. lf that decision is in fact valid.

The other argument put by the respondent was based

directly upon the terms of subsectlon ( 8 ) . The respondent sald, correctly, that this subsection must be read with s . 5 ( 2 ) , whlch relevantly provides:

"For the purposes of this Act, a person shall

be deemed to enter Australia	-
...
(b) in the case of	a person arriving in

Australia by an aircraft - when he

disembarks from the aircraft In Australia or, if he so disembarks at a proclaimed airport, when he leaves the

airport,

whether or not he intends to return to the

. . .	aircraft."
The respondent contended that, as Sydney	Kingsford Smith

alrport is a proclaimed airport (see definition in s.5 and

Customs Proclamatlon No. 1293 published in Commonwealth of Australia Gazette No. 65 of 7 June 1973), the applicant had not for the purposes of the Act entered Australia at the time she was taken into custody, slnce she had not left he airport.

Thereafter, by virtue of subsection ( 8 ) of s.36A, she did not enter Australia when she was taken from the airport to Villawood detentlon centre. (Cf. Faingold v. Zammlt, supra, at 90; Gunaleela v. Minister for Immigration and Ethnic Affairs, supra,

at 276.) But, it is said, if she is released under an

interlocutory order of the Court to reside in Mr. Ault's home at

Cremorne, she will then have entered Australia, with all the

consequences that entry into Australia involves. Harking back to the previous argument, it was said that this would prevent her being removed from Australia even if her application ulttmately falled, although, a s I have pointed out, the terms of S .36A itself do not make entry into Australia an event which puts an end to its operation, but on the contrary refer to its operation as effecting a "removal from Australia" (subsection ( S ) ) , and to the person in question as "removed from Australia" (almost every subsection). In the event of the applicant ultlmately succeedlng ln her application, the respondent contends that her earlier

entry lnto Australia, consequent upon the making of an

interlocutory order for her release, would drastlcally affect the

Minister's powers upon any reconsideration of her position. He would no longer be able to treat her as a person who had not yet entered Australla, and was subject to the terms of s.36A. It was put that the making of an interlocutory order would usurp the

power of the Minister to determine who entered Australia.

The respondent's argument pictures subsectlon ( 8 ) as

creatlng something In the nature of the anclent Hebrew

institution of a city of refuge, or the concept of sanctuary recognlzed by medieval canon law, or even a child's game of "bar". Whilst ever the applicant rernalns on the corridor of the journey undertaken to Villawood for the specified purpose, and at that place, she has not, on this view, entered Australia. But if she succeeds in getting outslde those limits, by whatever means, she has entered Australia.

There are a number of reasons why this argument should not be accepted. In the first place, even if one accepts the picture drawn by the argument, an ultimate judgment by the Court in favour of the applicant would surely have all the consequences the argument attrlbutes to an interlocutory order. If the applicant's temporary entry permit is held not to have been

validly cancelled, how	could her departure from the airport	be
other than an entry lnto Australia?	A	finding in her favour

would mean that it was a lawful entry into Australla by the holder of a valid and subslstlng temporary entry permit. Subsection (8) provides that she shall not be deemed to have entered Australia by reason only of havlng been taken from the airport for the specified purpose " l n pursuance of subsection

(l), (2) or ( 3 ) " . But a favourable finding would demonstrate

that she was not so taken, and her claim to have entered

Australia would not be "by reason only" of her having been so taken, but by vlrtue of her having left the airport in a wrongful custody but with a valid temporary entry permit.

the other hand, an ultimate judgment agalnst the applicant would mean that the steps taken under s . 3 6 A were

O n

validly taken. I n that case, as I have already pointed out, the appllcant would remaln subject to the operation of the sectlon, since it does not make entry lnto Australia an event of any

slgnlficance In relatlon to its effect.

However, there is a more fundamental reason for

rejecting the respondent's argument. I thlnk it involves a confusion of thought as to the nature of entry into Australla,

wlth that topic.	and as to the operation of the provisions of the Act which deal
Subsection ( 8 ) plcks up a concept already lald down by worded. Read alone, it would be very curious that It reads "a person shall not ... be deemed to have entered Australia by s . 5 ( 2 ) . If it had not done s o , ~t would have been differently
reason only . .. ' I . The person to whom ~t refers has clearly

?. . 21.

entered Australla, and the other provlslons of s.36A recognize that plaln fact. There is no need for him to be deemed, or not to be deemed, to have done that which he has actually done. Read

alone, one would have expected the subsectlon to provlde that,
under the circumstances specifled in it, such a person shall be
deemed not to have entered Australia. (Cf. the corresponding
United Kingdom provision quoted in Bugdaycay v. Secretary of
State for the Home Department [l9871 2 W.L.R. 606 at 614.) The
reason for the apparently illogical syntax is to be found ~n

s . 5 ( 2 ) . That provision makes a clear distinction between the

reality of arrival in Australia and an artificlally defined concept of entry into Australia. For the purposes of the Act,

and in the case of a person arriving by air at a proclaimed airport, entry into Australla is deemed to occur when the person leaves the airport. The boundary of the airport is the statutory

Rubicon. All that s.36A(8) does is to qualify the general

provision where the particular clrcumstances which it specifies

exist. A person leavlng the alrport in those particular

circumstances wlll not, for the purposes of the Act, be deemed to have entered Australia by reason only of his having left the

airport ~n those circumstances. There is no doubt that the

person has actually entered Australla in such a case, just as

there is no doubt that he had actually entered Australia upon his
arrival at the airport before he left it. But neither h l s
arrival at the airport nor his subsequent departure from it will,
in the particular circumstances, for the purposes of the Act,
amount to an entry into Australia.

^ ^

f . A L .

.

It only leads to confuslon of thought If the reality and the statutory f lctlon are not kept separate and apart. No commerce can be admitted between fairyland and the real world. There is a real polnt of entry into Australla, and there is a point at whlch the statutory deemed entry happens. In neither case can things done wlthln Australla after entry make any

difference to the point at which the entry occurred. How can
something done when a person is indubltably withln Australia
amount to a deemed entry pursuant to the statute unless It is

something whlch the statute deems an entry? No provision of the

statute deems the movement of a person in the posltion of the

appllcant from a	place of custody, such as Villawood, to be entry
lnto Australla.	That is simply somethlng done withln Australia,

entry into which has already actually occurred, and has either been deemed entry for the purposes of the Act or not, according to the applicatlon either of s.5(2) or of the qualiflcation upon that provision In s.36A(8).

In The King v . Goldie; Ex parte Picklum ( 1 9 3 7 ) 59 C.L.R. 254, the High Court considered the case of an appellant who was

alleged to have been knowingly concerned in the presence of a

prohibited immigrant within the Commonwealth. The appellant had

arranged transport for the prohibited lmmigrant from Geelong in Victorla to Burwood ~n New South Wales after the prohibited immigrant, who had been a stowaway, had lumped shlp In Geelong. The majority of the High Court allowed the appellant's appeal. Dixon J., at 267, related the contravention of the Act which had occurred "rather [to] the manner of [the prohibited lmmlgrant'sl entry into the Commonwealth than his journey from the border of New South Wales to Burwood or any state or conditlon assumed by [him] in that transit. He was no more and no less in the

Commonwealth because of his transportation in New South Wales."

Likewise, it seems to me that the applicant is no more
and no less in Australia, whatever she does after the time when
she left the airport. Elther at that time she was deemed to have

entered Australia by virtue of s.5 ( 2 ) , or she was not deemed to

have entered Australia by vlrtue of s.36A(8). If her application

to the Court ultimately succeeds, and it appears that she left

the airport under circumstances which did not fall within the

terms of s.36A(8), then no action which the Minister or the Court

might seek to take can alter the fact that she did leave the
airport and was thereby, in those assumed circumstances, deemed
under s.5(2) to have entered Australia. On the other hand, if

she ultimately fails in her application, her movement from

Villawood to Cremorne or elsewhere cannot alter the fact that

when she left the airport she did so by reason only of her having been taken from it for the purpose specified In subsection (8). It is because this is so that the draftsman of subsection ( 8 ) found it unnecessary to refer to the several situations, which

must have been readily apparent to him, in which a person might

leave a place of custody, and in particular the situatlon

expressly envisaged by subsection (6). It was unnecessary to
refer to any of those matters because the question was not what
might be done afterwards, but what was the legal effect of the
person leaving the airport. That was decisive of whether the
person was a person deemed for the purposes of the Act to have
entered Australia.

It should be polnted out that, although the Minister

contended for a different construction, the construction which I have given s.36A(8) concedes it a more comprehensive and less

capricious operation, and protects Australia against the

possibility of accidental failures in carrying it into executlon, whlle at the same tlme permitting flexibility in the applicatlon

of s.36A to cases where dispute arises. It would have been

unfortunate If it had been necessary to read the section as so rigidly narrow that the strongest case for the exercise of discretlon might have to be refused.

In all the circumstances, I concluded that the appllcant

had made out a compelllng case for the interlocutory relief

sought, and that there were insufficient grounds upon whlch to

deny her that relief. Accordingly, upon appropriate undertakings from the applicant and Mr. Ault, I made an order for her release

from custody until further	order, reserving my reasons, which I
now deliver.

I certify that this and the

preceding twenty-three (23)
pages are a	true copy of the
Reasons for Judgment herein	of
his Honour Mr.	Justlce
gurche'ct. ,
4wid.tQp.znx	Associate
Dated: 26	April, 1988.

Counsel for the Applicant: Dr. G. Flick

Sollcitors for the Applicant:  Parish Patience

Solicitor for the	Respondent:	Mr. Bayliss of Australian Government Solicitor
Dates of hearing:	18 and 19 April 1988