Tang Jia Xin v Senator Nick Bolkus, Minister for Immigration & Ethnic Affairs
[1996] FCA 236
•11 APRIL 1996
MIGRATION - Refugee applications - Legislation limiting permissible "application custody" to 273 days subject to extension for certain events - Representative action claiming that detention exceeded permissible limits - Preliminary issue directed to the processing of two applications - Computation of extension.
Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 69 ALJR 8
Migration Act 1958, ss.54K, 54L and 54Q.
TANG JIA XIN v SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and THE COMMONWEALTH OF AUSTRALIA
NO. NG903 of 1994
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 11 APRIL 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)No. NG.903 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:TANG JIA XIN
Applicant
AND:SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
and
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
CORAM:WILCOX J
PLACE: SYDNEY
DATE: 11 APRIL 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter be stood over for mention at 9.30am on Tuesday, 7 May 1996.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)No. NG.903 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:TANG JIA XIN
Applicant
AND:SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
and
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
CORAM:WILCOX J
PLACE: SYDNEY
DATE: 11 APRIL 1996
REASONS FOR JUDGMENT
WILCOX J: This judgment deals with a preliminary issue in an action for damages for unlawful detention.
The background facts and legislation
On 31 December 1991 a boat, later code-named "Isabella", arrived at Swift Bay, in the Northern Territory. It contained 38 people, all ethnic Chinese from southern China. The passengers in the boat commenced to walk overland but were found and taken into custody about 18 January 1992. They applied for recognition as refugees. Their applications were refused and they sought review of the decisions. The review process took a long time. It was not until 25 June 1993 that review decisions were made. Some applicants were granted refugee status but most were not.
While the review applications were under consideration, on 6 May 1992, the Governor-General assented to the Migration Amendment Act 1992. Section 3 of that Act, which commenced immediately, inserted a new Division into Part 2 of the Migration Act 1958. This Division (Div. 4B) related to the keeping in custody of designated persons. Section 54K defined the term "designated person" as:
"a non-citizen who:
(a)has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and
(b)has not presented a visa; and
(c)is in Australia; and
(d)has not been granted an entry permit; and
(e)is a person to whom the Department has given a designation by:
(i)determining and recording which boat he or she was on; and
(ii)giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;
and includes a non-citizen in Australia whose mother is a designated person."
It is common ground that each of the "Isabella" passengers fell within this definition.
Section 54L(1) provided that, subject to subs.(2), a designated person must be kept in custody. Subsection (2) provided for release of a designated person from custody if, and only if, he or she is removed from Australia pursuant to s.54P or given an entry permit. Subsection (3) made s.54L subject to s.54Q.
Section 54Q relevantly provided:
"(1)Sections 54L and 54P cease to apply to a designated person who was in Australia on 27 April 1992 if the person has been in application custody after commencement for a continuous period of, or periods whose sum is, 273 days.
(2)...
(3)For the purposes of this section, 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:
(c)the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;
(d)the dealing with the application is at a stage whose duration is under the control of the person or of an adivser or representative of the person;
(e)court or tribunal proceedings relating to the application have been begun and not finalised;
(f)continued dealing with the application is otherwise beyond the control of the Department."
(4)...
(5) ..."
Section 54R prohibited courts from ordering the release from custody of a designated person.
The constitutional validity of parts of Division 4B was challenged in the High Court: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. By majority, the Court held s.54R invalid; otherwise, the challenge failed. Section 54L was held to be a valid Commonwealth law.
During the period of consideration of the review applications, there was correspondence between Marion Le and the Department of Immigration, Local Government and Ethnic Affairs ("the Department") concerning the computation of the period of 273 days stipulated in s.54Q(1). Ms Le was the President of the Australian Capital Territory Branch of the Indo-China Refugee Association and had been appointed in January 1993 to represent 37 of the 38 applicants for review. It was common ground that the period commenced to run from the date of commencement of Division 4B, 6 May 1992, rather than the date on which the applicants were taken into custody. But there was disagreement as to the extent of any of the "clock stopping" events referred to in paras.(c) to (f) of s.54Q(3). Ms Le argued that the permissible 273 days had expired. The Department maintained that the effect of paras. (c) to (f) was to extend the permissible period of custody at least to the date of the review decisions, 25 June 1993.
The previous proceeding
Tang Jia Xin was one of the applicants for review whose claim was refused. On 27 July 1993 he filed an Application in this Court (ACT G.42 of 1993) seeking judicial review of the refusal decision. He relied on the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903. At the same time he applied to Neaves J for an order directing his release from custody. His argument was that the 273 day period elapsed before 25 June 1993 with the result that he should have been released from custody before that date. Counsel for the Minister apparently accepted that, if the 273 day period expired before 25 June 1993, nothing in Division 4B authorised Mr Tang's continued detention at that date and this situation was not changed by the fact that his application was refused. In other words, if the 273 days ran out before 25 June 1993, he was being unlawfully detained in July and entitled to immediate release from custody.
Neaves J held that the 273 period expired before 25 June 1993: see Tang Jia Xin v Minister for Immigration and Ethnic Affairs (No.1) (1993) 116 ALR 329. After hearing argument concerning orders, on 13 August 1993, he ordered Mr Tang's release from custody: see Tang Jia Xin v Minister for Immigration and Ethnic Affairs (No.2) (1993) 116 ALR 349. Although Mr Tang's action was brought only on his own behalf, and the order applied only to him, the Department apparently also immediately released the other unsuccessful applicants for review.
The Minister appealed against Neaves J's decision, first to the Full Court of this Court - see (1993) 47 FCR 176 - and then to the High Court - see (1994) 69 ALJR 8. Both appeals failed.
The present proceeding
Shortly after the High Court decision, on 21 December 1994, Mr Tang commenced this proceeding. He brought it as a representative action under Part IVA of the Federal Court of Australia Act 1976, the relevant group members being the 38 people on "Isabella", including himself. Mr Tang named as defendants Senator Nick Bolkus, the then Minister for Immigration and Ethnic Affairs, and the Commonwealth of Australia. He sought damages for wrongful imprisonment and trespass to person, including exemplary damages. The filed Application stated there were questions of law or fact common to the claims of all group members, including the question whether the respondents or either of them are liable to compensate the applicant and group members for damages for wrongful detention "it being already found by this Honourable Court in proceedings ACT G.42 of 1993 that the Applicant had been in 'application custody' ... for periods totalling two hundred and seventy three (273) days".
The Statement of Claim filed on behalf of Mr Tang also placed reliance on the outcome of the proceeding heard by Neaves J, it being apparently assumed that the result of that case determined the unlawfulness of the detention of all group members as at 25 June 1993. However, the Statement of Claim also contained a general allegation (para.16) that each of the respondents held the applicant and the group members "in unlawful custody insofar as they were detained for a period in excess of two hundred and seventy three (273) days". Paragraph 17 alleged wrongful imprisonment and consequential damage.
The respondents filed a Defence in which the Minister denied that he detained the applicant or any other person, although the Commonwealth admitted that the group members "were detained" (para.10). In para.12 of the Defence, in response to para.16 of the Statement of Claim:
(a)the Minister declined to admit that he held the applicant or group members in custody;
(b)the Commonwealth admitted that the applicant was held in custody for 101 days beyond the period authorised in Division 4B of the Migration Act;
(c)both respondents claimed that the applicant was estopped by the judgment of Neaves J from asserting any other period of unlawful detention; and
(d)the Commonwealth admitted that "each of the group members was held in custody for a period in excess of 273 days".
Paragraph 13 of the Defence contained a denial of the matters alleged in para.17 of the Statement of Claim. In the result, although the Commonwealth admitted that each group member was held in custody for more than 273 days, it denied unlawful detention; the Commonwealth's case apparently being that the excess was covered by one or more "clock stopping" events referred to in paras. (c) to (f) of s.54Q(3).
At a directions hearing on 12 October 1995, I directed that particulars of the clock stopping events relied on by the respondents be supplied to the applicant's solicitors. This was done. On 5 December 1995, counsel told me that they wished to select some group members whose cases would be the subject of evidence on a test case basis; that is, in relation to the question whether they were unlawfully detained in custody. The idea was that this question would be determined as a preliminary issue and the parties would then consider the future course of the litigation. The parties subsequently selected two group members, Wang Cheng Jian and Jie Shi Fang. On 18 and 19 March 1996, I heard evidence and submissions regarding the handling of the review applications of these two people. These reasons for judgment concern that matter.
Counsel's contentions
Counsel for the respondents, Mr J Basten QC and Mr N Williams contended that there were eight periods of custody during which the clock stopped against both group members: 4-24 June 1992 inclusive (21 days); 10-26 August 1992 (16 days); 17-21 September 1992 (4 days); 22 December 1992 - 18 January 1993 (27 days), 19-25 January 1992 (6 days); 28 January - 16 April 1993 (78 days); 7-17 May 1993 (10 days) and 27 May - 15 June 1993 (19 days). The number of these days totals 181.
If there had been no interruption to the period of 273 days stipulated by s.54Q(1), it would have expired on 3 February 1993; this being 273 days after 6 May 1992. But by 3 February, according to counsel for the respondent, the clock had been stopped for a total of 80 days, so 80 days lawful detention remained available. And, because of later clock stopping, they never got used up.
The period that elapsed between 3 February and 25 June 1993 (the date of the decisions) was 142 days. According to counsel for the respondent, the clock was stopped for a total of 101 days during this period; so only 41 out of the 80 days were used and 39 days lawful detention were still available at 25 June.
Counsel for the applicant, Mr D J Higgs SC and Mr G A Sirtes, contest each of the periods specified by the respondents. They add that, even allowing for whatever clock stopping did occur, the detention of Mr Wang and Ms Jie became unlawful well before the decisions were announced.
It will be necessary for me to deal with the periods relied upon by the respondents. Before doing so, it is desirable to refer to a passage in the High Court's judgment in Tang relating to the interpretation and application of paras.(c) to (f) of s.54Q(3). This interpretation was a little different from that adopted by Neaves J. The parties agree that, partly for that reason but also because the evidence in the two cases is different, there is no advantage in considering the present cases by reference to Neaves J's findings. Whatever significance those findings may have in relation to Mr Tang's personal claim, because of the doctrine of estoppel by judgment, they are immaterial to the claims made by him on behalf of Mr Wang and Ms Jie.
In Tang at 10-11 the High Court said:
"One thing is clear, namely, that pars (c), (d), (e) and (f) all imply by their language something which has happened to interrupt the decision-making by the Department in regard to the application, and something which is beyond the control of the Department. To take the most obvious example, in par (e), if court or tribunal proceedings in relation to the existing application have been begun and not finalised, the decision-making process cannot proceed to finality. Indeed, since par (f) speaks of 'continued dealing with the application [being] otherwise beyond the control of the Department' (italics added), it is implied that the preceding paragraphs relate to situations in which it is beyond the Department's control to continue to deal with an application. Whether or not such an implication is capable of affecting the construction of par (d) or par (e), it does affect the construction of par (c). In other words, par (c) is a particular situation in which continued dealing with the application is beyond the control of the Department. While the present question was not before the Court in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs, in their judgment Brennan, Deane and Dawson JJ commented:
'For the purposes of that maximum period, time does not run while events beyond the control of the Department, such as delays in the supply of information or delay in court or tribunal proceedings, are preventing the finalisation of the entry application.'
Viewed in that light, the application of par (c) is not resolved simply by saying that the Department is 'waiting for information' as soon as it requests information or that the Department is 'waiting for information' only after a reasonable period in which the information might be expected has elapsed. It is necessary for the Department to show not only that a response to a legitimate request for information was awaited but also that the continued departmental dealing with the application was, on that account, interrupted. In the present case the onus is on the appellants to show, as a question of fact, that there was a period, or there were periods, of time during which the Department was unable to continue dealing with the respondent's entry application by reason of its inability to obtain information relating to the application to be given by a person who was not under its control. These are matters very much within the knowledge of the Department. If reasonableness plays any part in the inquiry it is a limited part only. It may have some part to play in asking whether the Department was able to deal with some other aspect of the application. And it may have some part to play in asking whether the information was likely to be provided and, if it was not, whether the Department was waiting for it in the sense required by the Act. The appellants suggested that a person in application custody may contrive a situation so that the period of 273 days expires before determination of his or her entry application. The answer is that if the Department is unable to continue dealing with the application, in that event time would cease to run."
The Department's procedure
In order to put counsel's submissions into context, it is appropriate to outline the procedure for determining applications for recognition of refugee status that applied in 1992-1993. The procedure envisaged the possibility of two decisions: a primary decision and a decision after internal review. The primary decision was made by a delegate of the Minister on the basis of the claims made by the applicant in his or her application for recognition, supplemented by whatever was said at interview and any additional material that might be submitted on the applicant's behalf. The idea was that the primary decision should be made promptly, by the delegate who conducted the interview. The second decision only arose if the primary decision was adverse to the applicant and the applicant requested internal review. In that event the relevant material was submitted to the Refugee Status Review Committee ("RSRC"), a non-statutory body chaired by a member of the Department and comprising, as members, officers of two other government departments and a representative of the Refugee Council of Australia and, as an observer, a representative of the United Nations High Commissioner for Refugees.
The RSRC was not empowered to determine review applications. Its function was confined to making recommendations as to appropriate decisions. After the RSRC determined its recommendation in a particular case, the file was allocated to an officer of the Department called a case officer, whose task it was to prepare a draft decision. The draft decision was not required to point in the same direction as the RSRC recommendation. Julie Higgins, the case officer who dealt with Ms Jie's application, said in evidence that she regarded it as her duty to form her own opinion about a case given to her; "to do my own research for my own reasons".
Notwithstanding this responsibility, the case officer did not make the final decision. A delegate of the Minister who had not previously been involved in the case was nominated as decision maker. Sometimes this was done at about the same time as the case officer; sometimes later. It was the duty of the case officer to prepare a draft decision. It seems that, where a delegate had already been nominated, the case officer would consult the nominated delegate in relation to the claims. Where a delegate had not been nominated, the case officer would have to rely on his or her own judgment. Whether or not there was prior consultation between the two officers, the draft decision would, when ready, go to the delegate for final decision. The delegate's decision was not necessarily to the same effect as the case officer's draft decision; although I suppose this was likely in cases where there had been earlier consultation. It was the case in relation to both Mr Wang and Ms Jie. In both cases the case officers' recommendation was for refusal and this was the final refusal.
The processing of the applications
In the early stages of the "Isabella" applications, all 38 applicants were represented by Michael Kennedy, a solicitor connected with Australian Lawyers for Refugees Incorporated. On 3 April, shortly after primary decisions refusing all the applications, Mr Kennedy wrote to Noel Barnsley, then the Registrar of RSRC, alleging deficiencies in the interviews upon which the decisions were reached. At meetings in mid-April, the RSRC identified a number of actions to be undertaken before it could make recommendations on the "Isabella" applicants. One action was the re-interview of all of them. Another action was to obtain information from officials of the Department of Foreign Affairs and Trade ("DFAT") stationed in Beijing, Hong Kong and Shanghai regarding the treatment by Chinese authorities of people repatriated to China after having illegally departed the country by boat, as had the "Isabella" people.
On 30 April 1992, the Department sent a cable to DFAT seeking information on a number of points. The cable requested a response by 15 May. There was no response by that day. So far as the evidence reveals, the Department did not send a reminder. Eventually, on 24 June, DFAT replied with a lengthy cable prepared in Beijing, covering all the matters asked and incorporating information provided by Hong Kong and Shanghai.
In the meantime, both Mr Wang and Ms Jie were re-interviewed. On 8 June 1992, summaries of the interviews were sent to Mr Kennedy. He was invited to make comments upon them within seven days; that is, by 15 June. He did so but his letter arrived on 18 June.
After receipt of the DFAT cable, the applications went back to the RSRC. The Committee thought that neither Mr Wang nor Ms Jie qualified for recognition. On 10 August, the Department wrote to Mr Kennedy enclosing papers setting out the basis of the Committee's recommendations and inviting comment within seven days. The letter stated that, after that day, "the applications and the assessment and recommendation of the RSRC will be submitted to the Minister for Immigration, Local Government and Ethnic Affairs or his delegate, for decision without further delay".
Mr Kennedy did not respond within seven days. Notwithstanding this, the case was not submitted to the Minister or his delegate for decision. It was not ready to be submitted, according to the procedure then in operation. No draft decision had been prepared. Indeed, no case officer had yet been appointed to prepare a draft decision. Nothing happened at the expiration of the seven days.
On 26 August, Mr Kennedy submitted detailed comments on the claims and RSRC's reasons. In the course of his submission concerning Mr Tang, Mr Kennedy mentioned some matters that, he contended, made it unsafe to rely upon the DFAT cable of 24 June. Accordingly, on 17 September, the Department sent a further cable to DFAT seeking clarification of some matters. DFAT replied on 21 September.
Despite this clarification, no steps were taken towards preparation of a decision. On 20 October, Mr Kennedy wrote a letter seeking to re-open decisions made by the Department concerning people who had travelled from China to Australia in a boat code-named "Jeremiah". His letter included an opinion concerning Chinese law written by Professor Alice Tay of the University of Sydney and a document about the treatment of repatriated boat people prepared by Ms Shelley Warner. In a letter dated 6 November, Mr Kennedy submitted that this material was also relevant to the "Isabella" claimants and requested that it be taken into account in considering their cases.
It took the Department some time to react to this material. Eventually, on 21 December, the Department sent Professor Tay's opinion to DFAT for comment. On the following day, it commissioned an opinion from Professor Raymond Wacks of the University of Hong Kong. Professor Wacks forwarded an opinion dated 7 January 1993 which arrived on 11 January. DFAT responded to the Department's message of 21 December with a cable dated 18 January 1993. The Department then sought DFAT's permission to release the cable to the applicants. This was granted on 25 January.
Early in January 1993, Mr Barnsley, the former RSRC Registrar, was given the task of organising the preparation of "Isabella" draft decisions. He distributed the files to various case officers. Mr Wang's file was given to Waldemar Nowak, an officer who had had some prior experience with refugee applications but had not previously dealt with review applications concerning people from the Peoples Republic of China. Mr Nowak was also given the file of another applicant and files of "general material relating to boat people from China". These were, apparently, what other officers described as "country files"; files dealing with conditions in a particular country and the law and practice relating to the treatment of illegal departers who were returned to that country. "Country files" did not include material concerning particular applicants but were treated in the Department as necessary background material in considering particular applicants' claims. Mr Nowak said in evidence that there was a "lot of general reading on China already on the file". During January he read material on the China file and set up on his computer screen some particulars of the two applicants with whom he was concerned - names, personal details, claims etc. Apparently he did not get beyond that stage until late February or March, when he wrote some material concerning the cases that he showed to a more senior officer for comment.
When Ms Higgins returned from leave in late January, she was assigned to Ms Jie's case. Apparently, her practice was different from that of Mr Nowak. She preferred to read the relevant material and make notes. When all the information was available and considered by her, she would prepare the whole document at one time. Because of her late appointment, by the end of January she was still in the reading stage.
On 25 January, 37 of the 38 applicants for review decided to change their representation, from Mr Kennedy to Ms Le. Ms Le immediately made a request under the Freedom of Information Act 1982 for production of documents relating to each of the 37 applicants and background material. On 28 January, John Forster, an Assistant Secretary of the Department, wrote to Ms Le saying:
"As you are probably aware, the 'Isabella' cases have been considered by the Refugee Status Review Committee and their findings have already been commented upon by the applicants. The cases are now at the stage where the
Minister's delegate will be in a position to decide the Review applications.
There has been certain material forthcoming however since the RSRC deliberations, which the delegate will take into consideration. For reasons of procedural fairness, this material needs to be provided to the applicants for any comments they may wish to make in relation to their applications so that these can be placed before the delegate prior to the taking of the decision.
As you are now representing the 37 applicants would you please arrange for this exposure and any comments the applicants wish to make. We would have asked Australian Lawyers for Refugees to complete this in fifteen (15) working days with an allowance of one week for them to arrange for their team including interpreters to arrive in Port Hedland and commence work.
In line with this, we would expect your organisation to complete the task by Thursday 25 February 1993. The material for disclosure is enclosed herewith."
The enclosures consisted of seven cables from DFAT conveying information about conditions in China.
Ms Le immediately replied to this letter, stating she would be unable to provide comments by 25 February and that various issues needed to be resolved before any deadline was set. In response to this letter, a meeting was convened between Ms Le and Departmental officers on 2 February. During this meeting, Ms Le indicated that she had been asked to represent most of the applicants and was prepared to do so. However, she and her association would be acting on an unpaid basis and she was concerned about her ability to represent them without causing delay in the processing of their claims. She said that she did not wish to get into a position "where it is said that we are now delaying something". Nonetheless, she agreed to take copies of the files concerning the 37 applicants and read them and put further material before the Department. Reference was made to the 25 February deadline but Ms Le said she could not meet this. She said at one stage in the conversation:
"Now if we cannot meet whatever deadline you have got as regards the 25th of February or whatever as regards comments on the files and I repeat that's a total impossibility I mean it may well be when I look at the files that there's no more comments to make. Well fine. But if there are comments to make and we can't make the deadline, then you will just have to go ahead and make your decisions."
The transcript of the meeting shows the following exchange shortly after this (NN and JF being Departmental officers):
"MLIn other words we will look at the files. We're going ahead if we can only get three or four back to you by the time you want to make your decisions then everyone will have to live with that. Because I, you know I'm not going to ask you to change your time table but if you want to extend that by the week or whatever it is now until we get the files and you start the clock ticking again...
NNWhy don't we wait until you've actually had a look at it (ML: Right) and you'll be able to make a much better assessment then. It may be that, that...
JFYou might be able to do it quicker Marion!"
Although Mr Barnsley had asked the officers dealing with the "Isabella" cases to give those cases priority over other work, it seems that none of them made any real progress with draft decisions before March. This was not because they were awaiting submissions from Ms Le but because they were busy on other tasks. During cross-examination, Mr Barnsley said that, from the second week in January until the end of February, his staff were "working full time on the Isabella cases" collating, classifying and up-dating general information regarding China, complying with the FOI request and "starting to write up as much as they could".
It seems that documents were supplied to Ms Le progressively during February. She received the last batch shortly before 24 February. On that day she wrote a letter to Mr Forster confirming a telephone conversation earlier in the day. She said, in part:
"The date of 25 February as initially proposed in your letter of 28 January is recognised by all concerned to be unrealistic in the circumstances, given that I did not have access to the applicants' complete files until this week. ...
As discussed today, it is judged to be in the best interests of the applicants if the cases are completed in two batches - the first to be due by Friday 2 April, 1993 - or earlier if possible. This date to be confirmed or adjusted around 19 March, 1993.
It is anticipated that the Delegate would then make the decisions on the cases presented within the time frame dictated by the Legislation of May, 1993, ie within 273 days of acknowledged detention. You will advise the number of days each individual has in hand - at this time we estimate around 8 to 10 days with some individual variations.
The aim is that this first group of applicants would receive their decisions in the week following the Easter Weekend, during which time
I anticipate being in Port Hedland to finalise interviews with the remaining, if any, case load".
Mr Forster replied on 26 February:
"The timetable that you propose for the forwarding of submission is generally acceptable. I would, however, have a strong preference that if at all possible all submissions that you wish to make on behalf of your clients be with the Department by 2 April 1993. Like you I do not want to see people detained longer than is necessary.
You have indicated in your letter that you will have a better idea of what is achievable by 19 March 1993. Please contact me or Noel Barnsley on or about that day, especially if you are unable to substantially meet the target date of 2 April 1993." [Original emphasis]
At about that same time, Mr Barnsley instructed his case officers to cease work on "Isabella" cases until Ms Le's submissions were received.
On 6 April 1993, Ms Le lodged with the Department a 27 page document which she described as "General summary to be read by all delegates in conjunction with all the 38 ... applicants' applications for refugee status whose cases remain to be decided". She attached to the document a number of other documents, including some published material and a transcript of June 1992 proceedings before a Joint Parliamentary Committee. On the following day, 7 April, Ms Le supplemented this material with a further document headed "The Isabella Women: Some Aspects of their Detention Experiences in Australia".
On 13 April 1993, Ms Le had a further meeting with Departmental officers during which she delivered further material. Mr Barnsley made a file note of the meeting in which he said that Ms Le indicated she would provide individual submissions in connection with some people, including Ms Jie. The note went on:"Ms Le advised that she will be writing to the department to formally indicate those applicants in respect of who she will not be making individual submissions. She stressed that the fact she has not lodged an individual submission should not be construed she is of the view that the claims of the applicant are any less strong.
It was agreed that that the detention clock is not reactivated in respect of her Isabella cases until such time as:
.all general submissions have been received (13 April 1993), and
.all submissions in respect of an individual have been received or she has advised that she will not be making an individual submission in respect of an applicant.
She indicated that any further submissions will be lodged this week.
In response to her enquiry as to when the first decision would be made, she was advised that that first of the decisions would be made at the end of this month at the earliest and that we are endeavouring to, if at all possible, make all decisions at the same time. An undertaking was given to keep her informed if there are any significant changes to this timetable."
Three days later, on 16 April, Ms Le wrote to Chris Conybeare, the Secretary of the Department. In the course of that letter she said:
"At this stage we believe there is now enough information on file to enable the Delegate(s) to make a positive decision on all of the remaining 38 people from the ISABELLA. The work on individual files therefore will cease from this date and only one more will be submitted - that of: [blanked out] - although we reserve the right to update individual files before the Delegates make their final decisions. I will also submit to the DILGEA letters with 'rough' translations from several individuals to complete the record. These will be submitted by Monday."
The blanked out name was that of a person other than Mr Wang or Ms Jie.
There was other correspondence between the Department and Ms Le during the later half of April and May. It is not necessary to detail it; no "clock stopping" claim is made in connection with it. The correspondence mainly concerned calculation of the 273 day "application custody" period. However, reference should be made to the fact that, on 7 May 1993, the Department asked DFAT for information about the fate of a group of Chinese people who had travelled to America on a boat code-named "Eastwood". DFAT supplied the requested information on 17 May. On 26 May Mr Barnsley wrote a letter to Ms Le in which he included the "Eastwood" cables and some other information. He said in his letter:
"I enclose further material for consideration and comment by the 'Isabella' applicants. The material includes information that has become available to the delegates over the last few weeks.
In the light of the disclosures already made, I do not believe that all of this material raises natural justice obligations. Where there is no
obligation, the material has been forwarded to you as a matter of courtesy."
After listing the material, Mr Barnsley concluded:
"Delegates will be taking decisions on these cases no later than 25 June 1993 so that the decision may be handed out to the applicants in Port Hedland on 28 June 1993.
Accordingly, I ask that you have any comments back to me by, preferably, Friday 4 June 1993 and by Monday 7 June 1993 at the absolute latest."
Ms Le responded to this letter on 14 June in a letter to Mr Conybeare that also dealt with other matters.
Mr Nowak, the case officer who handled Mr Wang's claim, said in affidavit evidence that he recalled three distinct periods during which processing of "Isabella" claims was delayed. The first period, he said, commenced in late January, when Ms Le took over representation of most of the "Isabella" applicants. However, in cross examination he was not firm on the date of commencement of this period. He related it to the time when he prepared first drafts of parts of the decision and he said this could have been February or March. The second period was in May, whilst awaiting a response from DFAT to the "Eastwood" inquiry. The third was in late May and June while awaiting Ms Le's comment on the information supplied by DFAT.
The delegate who decided Mr Wang's application was Michael Clisby. He did not become involved in the case until "the second half of May 1993" when he was seconded for a period of four to six weeks to act as a decision maker in respect of two "Labrador" cases and two "Isabella" cases, including Mr Wang. He had little recollection of the cases but his belief was that he dealt first with the "Labrador" cases. The target date for the "Labrador" decisions was 16 June, compared with 25 June for the "Isabella" cases. Mr Clisby said he had no contact with Mr Nowak regarding Mr Wang's case and did not recall whether he ever received a draft decision. He remembered receiving a computer disk containing information about the case. Mr Clisby said he could not recall whether his work on the "Isabella" cases was ever delayed or interrupted. Shown a copy of the letter of 26 May from Mr Barnsley to Ms Le and Ms Le's letter of 14 June, Mr Clisby said he did not recollect these letters but that he believed he would have seen them at the time. He went on:
"On the basis of these letters, I can say that, had I completed the decisions regarding the two Labrador applications by that time, I would not have proceeded with the processing of the Isabella applications until after 7 June 1993, in order to have all relevant material before me for the purposes of considering the applicants' claims. In view of the terms of Mr Barnsley's letter, ... and the strict timetable within which the decisions had to be made, I do not believe, however, that I would have delayed the processing of the applications beyond 7 June 1993 to await a response from the applicants' representative."
Ms Higgins recalled some delay in preparing the draft decision concerning Ms Jie. This occurred after the FOI claim was finalised and she had completed her initial reading,
while she was awaiting Ms Le's submissions. This period concluded on 16 April when the Department received Ms Le's letter stating that there would be no further submissions regarding Ms Jie.
Although she did not recall suffering any delay by reason of the "Eastwood" inquiry and the letter of 26 May to Ms Le inviting her comments, having purused the relevant documents, Ms Higgins said:
"I would not have continued to assess the claims until the information requested had been received by the Department and the applicant's representative had been given an opportunity to make comment upon the material. In particular, I can say that I would not have continued to assess the claims until after 7 June 1993, the day identified in Mr Barnsley's letter of 26 May 1993 as the 'absolute latest' time for comment. To the best of my recollection, I did not in fact resume assessing the claims until sometime during the week commencing 14 June 1993."
Ms Higgins said that, from her perusal of the file, she considers she would have finalised her draft decision with respect to Ms Jie "during the last week prior to the decision being made on 28 June 1998".
Mr Barnsley was the delegate who decided Ms Jie's application. He did not claim that he was delayed in his task.
Conclusions regarding "clock stopping" periods
Against the background of these facts, I turn to the "clock stopping" periods claimed by counsel for the respondents. The first claim relates to the period in June 1992 when the Department was awaiting a response from DFAT to its cable of 30 April 1994. Although DFAT took almost two months to reply, counsel limited their claim to the period after 3 June, when the re-interviews were completed. I think this limitation is proper, given the comments of the High Court concerning computation of time under s.54Q. So the claim is for 21 days, 4 June to 24 June inclusive.
Counsel for the applicant do not contend that the Department could undertake other work on the cases during this period. Clearly, I think, it could not; the next step was to resubmit the cases to RSRC and this could not be done until DFAT's response was received. The answer made by counsel is that the delay could have been avoided by a reminder letter to DFAT after expiry of the deadline for reply, 15 May. If a reminder had been sent, counsel say, DFAT would probably have replied by 4 June.
It would have been appropriate to send a reminder to DFAT after 15 May but I do not see any basis for concluding that this would have generated an earlier substantive response. DFAT was asked to supply information regarding several matters, from three overseas posts. Nothing in the evidence indicates that an earlier reply could have been
furnished, even with pressure from the Department. I propose to allow the whole of this period.
The next four periods may be considered together: 10 August - 26 August, 17 September - 21 September, 22 December 1992 - 18 January 1993, 19 January - 25 January. I propose not to allow any of these periods. I do not doubt that, during each of the periods, the Department was awaiting responses; in the first period by Mr Kennedy to RSRC's assessment and recommendations; in the second period by DFAT to a further request for information; in the third period by DFAT to Professor Tay's opinion and in the fourth period by DFAT to the Department's request for permission to release DFAT's cable to the applicants. The steps taken by the Department in regard to these matters were all reasonably taken. But it is not possible to conclude that the need to obtain the responses delayed the processing of the applications. Once the RSRC had concluded its deliberations, as it did on 15 July, the next step was the preparation of draft decisions. Nobody was assigned to that task until January. Mr Nowak was assigned to Mr Wang's case early in January but he was not delayed by the lack of a DFAT response to Professor Tay's opinion or the lack of comment by the applicants on DFAT's response. As his evidence made clear, he was fully engaged during January in acquainting himself with the already available background material. It seems that it was not until late February, after completion of the FOI compliance work, or March that he found himself delayed in his task. Similarly, in relation to Ms Jie. Ms Higgins was appointed to her case in late January. She said she did not suffer any delay until late February, after she had completed her background reading and the FOI request was satisfied.
The next claim was for the 78 day period between 28 January and 16 April, while the Department was awaiting submissions from Ms Le. It is contended by counsel for the applicant that none of these days should be allowed because Ms Le made it clear at the meeting of 2 February that she did not wish the clock to stop while she prepared her submissions. The problem about that contention is that Ms Le subsequently indicated that she would lodge submissions by early April. Having regard to the circumstances, this was not an excessive time to take. Although, understandably, Ms Le did not wish to be blamed for extending the 273 period, it would not have been proper for a delegate to make a decision refusing an application without waiting for her submission, at least until early April.
However, in the view I take, this is not important. Neither Mr Nowak nor Ms Higgins were delayed by the absence of the submission until about the end of February. By then the 273 day period had expired and the detentions were illegal. I previously stated that a period of 273 days from 6 May 1992 expired on 3 February 1993. In my opinion that period was extended by 21 days because the clock stopped between 4 June and 24 June 1992; but not otherwise. It follows that time ran out on 24 February; that is, before there was any delay caused by the absence of Ms Le's submission. The detentions became unlawful from that day and remained so until Mr Wang and Ms Jie were released in August. This is the case notwithstanding that, between the end of February and 25 June, events occurred that would have stopped the clock if it had still been running. I have in mind the period 1 March - 16 April during which I am satisfied that Mr Nowak and Ms Higgins were delayed by the absence of Ms Le's submission, 7 to 17 May while information was being obtained about the "Eastwood" returnees and part of the last period claimed, 27 May to 15 June. Having regard to the evidence of Ms Higgins and Mr Clisby, I would limit this last period to the 11 days from 27 May to 7 June 1993.
Orders
I do not propose to make any substantive order or declaration at this stage. I will stand over the matter for mention in about three weeks. At that time I will hear submissions regarding the future course of the litigation.
I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment of his
Honour Justice Wilcox.
Associate:
Dated: 11 April 1996
APPEARANCES
Counsel for the Applicant: D J Higgs SC and G A Sirtes
Solicitor for the Applicant: Jill McSpedden & Associates
Counsel for the Respondent: J Basten QC and N Williams
Solicitor for the Respondent: Australian Government Solicitor
Dates of hearing: 18 and 19 March 1996
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