Xin, T.J. v Bolkus, N

TANG JIA XIN v. SENATOR NICK BOLKUS, Minister for Immigration and Ethnic
Affairs and JOANNE McRAE
Nos. ACTG40 and ACTG42 of 1993
FED No. 545
Immigration Number of pages - 21

(1993) 116 ALR 329

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)

CATCHWORDS

Immigration - Detention in custody - Provision requiring "designated person" to be kept in custody pending removal from Australia or grant of entry permit - Provision not applicable if designated person detained in "application custody" for periods totalling 273 days - Application for refugee status refused - Request for review - Decision, on review, that designated person not a refugee - Application for release from custody - Whether prior to decision, on review, refusing refugee status person in "application custody" for periods totalling 273 days - Legislative intention - Whether Department "waiting for information relating to the application to be given by a person who is not under the control of the Department" - Meaning of "waiting for" - Whether decision to refuse refugee status null and void if made after expiration of period of 273 days in "application custody" - Whether failure to make a decision on application within period of 273 days in "application custody" entitles person to grant of entry permit.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), Part 2, Division 4B

Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

HEARING

CANBERRA, 26, 27 July 1993

#DATE 6:8:1993

Counsel for the applicant: Mr A.R. Castan QC

and Mr C.M. Erskine

Solicitors for the applicant: Gallens Crowley and

Chamberlain

Counsel for the respondents: Mr G.K. Downes QC

and Mr T.M. Howe

Solicitor for the respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dimissed.

2. There be no order as to the costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES J Tang Jia Xin ("the applicant") is at present being kept in custody at the Immigration Reception and Processing Centre at Port Hedland in the State of Western Australia. He has applied to the Court by an application framed in terms of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") and s.39B of the Judiciary Act 1903 (Cth) for an order directing his release from custody and for other relief. The first respondent to the application is Senator Nick Bolkus, the Minister for Immigration and Ethnic Affairs. The second respondent is Joanne McRae, the Manager of the Immigration Reception and Processing Centre at Port Hedland. The authority for keeping the applicant in custody is said to be found in Division 4B of Part 2 of the Migration Act 1958 (Cth) ("the Act").

The applicant is a citizen of the People's Republic of China. He is one of a group of persons who arrived in the territorial sea off the north-western coast of Australia by boat on 31 December 1991. The group landed on the coast of Western Australia and spent a number of days wandering in the region searching for assistance. On 18 January 1992 the applicant and other members of the group were taken into custody by officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"). He has since remained in custody at the Immigration Reception and Processing Centre at Port Hedland. No issue arises in the present proceeding as to the lawfulness of the detention of the applicant in custody prior to the commencement of Division 4B of Part 2 of the Act.
The Department assigned to the boat on which the group arrived in the territorial sea of Australia the code name "Isabella" and gave to the applicant the identifier "603".
On 1 March 1992, the applicant lodged an application that he be recognised as a refugee as defined in the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967. Mr Michael Kennedy of the Australian Lawyers for Refugees Incorporated acted as solicitor or agent for the applicant in relation to that application.
A delegate of the Minister for Immigration, Local Government and Ethnic Affairs determined that the applicant was not a refugee and the applicant was so informed by letter dated 14 March 1992. On 24 March 1992, the Department received from the applicant an application (Form 907) for the review by the Refugee Status Review Committee of the determination not to grant him refugee status. The Form 907 completed by the applicant contained a printed notation in the following terms:

"You should now complete Form 909 - 'Application for Review of a Decision to Refuse to Grant a Domestic Protection (Temporary) Entry Permit'. Forms 907 and 909 should be handed in together."

Notwithstanding that notation, there is no evidence before the Court that the applicant completed Form 909 and handed it to the Department or that he made an application for any other kind of entry permit.

The Refugee Status Review Committee is a body established administratively and has no statutory basis. Where an application for refugee status has been refused and a request is made that the refusal be reviewed, the function of the Committee is to review the application for refugee status and make a recommendation whether the application should be granted or refused. A decision whether to grant or refuse the application is to be made subsequently by the Minister or by a delegate of the Minister other than the delegate who had previously refused the application.
It was not until 25 June 1993 that a decision was made upon the application for review received by the Department on 24 March 1992. The decision, which was made by a delegate of the first respondent, was that the applicant was not a refugee. That decision was communicated to the applicant by letter of that date which was received by the applicant on 28 June 1993.
Division 4B of Part 2 of the Act (comprising ss.54J - 54U inclusive) was inserted in the Principal Act by s.3 of the Migration Amendment Act 1992 (Cth), a section which commenced on 6 May 1992. Some of the provisions of that Division were the subject of consideration by the High Court of Australia in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Judgment in that matter was delivered by the High Court on 8 December 1992. On 24 December 1992, Royal Assent was given to the Migration Amendment Act (No.4) 1992 (Cth). That Act, which commenced on the day it received the Royal Assent, amended a number of the sections in Division 4B of Part 2 of the Principal Act. Except where otherwise indicated, the provisions of the legislation to which reference is made hereunder are the provisions as amended by the Migration Amendment Act (No.4) 1992.
Division 4B of Part 2 of the Act has the heading "Custody of certain non-citizens". Section 54J provides:

"This Division is enacted because the Parliament considers that it is in the national interest that each non-citizen who is a designated person should be kept in custody until he or she:

(a) leaves Australia; or

(b) is given an entry permit."

The expression "designated person" is defined in s.54K as follows:

"'designated person' means a non-citizen who:

(a) has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 November 1993; 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 born in Australia whose mother is a designated person."

Prior to 24 December 1992 when the amending Act commenced, the terminal date of the period referred to in par.(a) in the definition of "designated person" was 1 December 1992.

It is not in dispute that on 6 May 1992, the applicant was a "designated person" within the definition as it then stood and that he has remained, and still remains, a "designated person" within the meaning of that definition.
Section 54L provides:

"(1) Subject to subsection (2), after commencement, a designated person must be kept in custody.

(2) A designated person is to be released from custody if, and only if, he or she is:

(a) removed from Australia under section 54P; or

(b) given an entry permit under section 34 or 115.

(3) This section is subject to section 54Q.

(4) To avoid doubt and despite section 54Q, if subsection 54P(3) applies to a designated person, the person must be kept in custody until the person is removed from Australia under that subsection."

The expression "commencement" is defined in s.54K to mean the commencement of Division 4B of Part 2 of the Act. Subsection (4) was inserted by the Migration Amendment Act (No.4) 1992.

The date when a person "begins to be in custody" for the purposes of s.54L is to be determined by reference to the provisions of s.54M. It is common ground that the applicant began to be in custody for the purposes of s.54L on 6 May 1992.
Subsections (1), (2) (3) and (8) of s.54P provide:

"(1) An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed.

(2) An officer must remove a designated person from Australia as soon as practicable if:

(a) the person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period; and

(b) there has not been an entry application for the person.

(3) An officer must remove a designated person from Australia as soon as practicable if:

(a) there has been an entry application for the person; and

(b) the application has been refused; and

(c) all appeals against, or reviews of, the refusal (if any) have been finalised.

...

(8) This section is subject to section 54Q."

The expression "entry application" is defined in s.54K as follows:

"'entry application', in relation to a person, means an application for:

(a) a determination by the Minister that the person is a refugee; or

(b) an entry permit for the person."

Section 54Q provides:

"(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) Sections 54L and 54P cease to apply to a designated person who was not in Australia on 27 April 1992, if:

(a) there has been an entry application for the person; and

(b) the person has been in application custody, after the making of the application, for a continuous period of, or periods whose sum is, 273 days.

(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 adviser 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) To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph

(3)(b) because only there could be an appeal against, or an application for the review of, the refusal.

(5) If:

(a) an entry application for a designated person has been refused; and

(b) because of a direction or decision of a court or tribunal, the application is required to be considered further;

whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before.

(6) If:

(a) an entry application for a designated person has been refused; and

(b) apart from this subsection, section 54L would cease to apply to the person; and

(c) the person begins court or tribunal proceedings in relation to the refusal;

that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before."

Sub-section (4), (5) and (6) of s.54Q were inserted by the Migration Amendment Act (No.4) 1992.

The primary question for determination in the present application is whether, at some time prior to 25 June 1993 when the decision that the applicant was not a refugee was made, the applicant had been in what is referred to in the legislation as "application custody" for periods totalling 273 days. It was not submitted on behalf of the respondents that, even if that question were to be answered in the affirmative, the applicant was none the less, at the date upon which the present application was filed, namely 9 July 1993, in lawful custody by reason of the operation of subss.54L(4), 54P(3) and 54Q(6) of the Act. The hearing proceeded on the basis that, if the applicant succeeded in establishing that at some time prior to 25 June 1993 he had been in "application custody" for more than 273 days, the first respondent would "take steps to permit the applicant to be released from custody". The Court was also informed that the first respondent had no present intention of taking steps to deport the applicant pending any application for review of the refusal to grant him refugee status and pending the determination of a proceeding pending in the Western Australia District Registry of this Court in which Zhang De Yong is the applicant and the first respondent is the respondent. It should be noted that an application under the Judicial Review Act seeking an order of review in respect of the decision that he is not a refugee was filed on behalf of the applicant on the second day of the hearing of the present application, namely 27 July 1993.
On behalf of the applicant, it was submitted that, if the primary question were to be decided in his favour, he would be entitled not only to be released from custody but also to a declaration that the decision to refuse him refugee status is null and void and a further declaration that the first respondent "is obliged to issue an entry permit sought by the Applicant".
A consideration of the primary question requires that reference be made to the stage which, by 6 May 1992 (the date of commencement of Division 4B of Part 2 of the Migration Act), had been reached in the consideration of the application for review by the Refugee Status Review Committee of the determination communicated to the applicant on 14 March 1992 and the steps which were taken thereafter but prior to the making of the determination that was communicated to the applicant on 28 June 1993.
The number of days on which the applicant was in custody, as distinct from "application custody", between 7 May 1992 and 28 June 1993 (both dates inclusive and assuming it be correct to exclude 6 May 1992 from the calculation) is 418. To assist the Court in determining the number of days on which the applicant was in "application custody" during that period, counsel for the respondents identified the periods which, it was said, fell within par.(c), (d), (e) or (f) of subs.54Q(3) and were, therefore, periods in which the applicant was not in "application custody". The following table shows the periods so identified (each of which has been assigned a reference letter for the purposes of these reasons) and the number of days in each of those periods.

Period Period Number reference (Both dates inclusive) of days A 7 May 1992 to 24 June 1992 49 B 10 June 1992 to 12 June 1992 3 C 19 August 1992 to 28 August 1992 10 D 18 September 1992 to 21 September 1992 4 E 22 December 1992 to 18 January 1993 28 F 23 December 1992 to 11 January 1993 20 G 20 January 1993 to 25 January 1993 6 H 29 January 1993 to 16 April 1993 78 J 20 April 1993 to 3 May 1993 14 K 23 April 1993 to 28 June 1993 67 L 1 May 1993 to 21 May 1993 21 M 8 May 1993 to 17 May 1993 10 N 30 May 1993 to 15 June 1993 17

It will be noted that, in some instances, a period so identified falls wholly within another period so identified, an example being Period B which falls wholly within Period A, and, in other instances, the periods so identified overlap. This will need to be borne in mind when resolving the primary question. It is clear that, if the applicant is to be treated as not being in "application custody" during the periods identified by counsel for the respondents as shown in the table above and allowing for the overlapping of some of those periods, the period of 273 days referred to in subs.54Q(1) of the Act had not expired prior to 28 June 1993.
It is convenient at this point to refer to the factual circumstances relating to each of the identified periods.

Period A (7 May 1992 to 24 June 1992)
21. It appears that the Refugee Status Review Committee met in mid-April 1992 to consider the cases of the "Isabella" boat people. By cable dated 30 April 1992 addressed to the Australian Embassy at Beijing and copied to the Australian Consulates-General at Hong Kong and Shanghai, the Department requested information relevant to the consideration by the Committee of what was referred to in the cable as one of the major problems faced by the Committee in arriving at a decision on the refugee claims, namely -

"The question of possible punishment on return as a result of the illegal departure, the subsequent international press coverage of their voyage and their arrival in Australia."

In addition to requesting substantiation of material previously made available by the Department of Foreign Affairs and Trade and general comments upon other material referred to in the cable, the recipients were asked to pay particular attention to a number of specific questions arising from the claims made by the various applicants within "the Isabella group" for the grant of refugee status. A response was requested by 15 May 1992 "with whatever information you have available".

A reply to that cable had not been received by 6 May 1992 when Division 4B of Part 2 of the Act commenced or by 15 May 1992. A reply from the Australian Embassy at Beijing was, however, received by the Department on 24 June 1992, the reply, sent on 23 June 1992, stating that it incorporated the results of consultation with the Australian Consulates-General at Hong Kong and Shanghai and that those posts would not be replying separately.
I am satisfied that the information sought in the cable dated 30 April 1992, being information relevant to the possible treatment of the applicant if he were to return to the People's Republic of China, was of potentially critical importance in reaching a decision whether to grant or refuse his application for refugee status.
The number of days in the period from 7 May 1992 to 24 June 1992 (both dates inclusive) is 49.

Period B (10 June 1992 to 12 June 1992)
25. On 8 June 1992, the applicant had been interviewed in an attempt to resolve inconsistencies between information gathered at earlier interviews between the Department and the applicant on 18 and 20 January and 5 March 1992. A summary of what occurred at the interview was prepared on 9 June 1992 and forwarded to the Refugee Status Review Committee. A copy of the summary was provided to the applicant's legal representative, Mr Kennedy, for comment.

A document dated 10 June 1992 setting out Mr Kennedy's comments was received by the Refugee Status Review Committee Secretariat on 12 June 1992.
The number of days in the period from 10 to 12 June 1992 (both dates inclusive) is 3.

Period C (19 August 1992 to 28 August 1992)
28. The next significant event for present purposes occurred on 18 August 1992. On that day, Mr Kennedy confirmed, by telephone, that he had received a letter dated 17 August 1992 addressed to him by the Department in relation to the applications by eight persons, including the applicant, for review of the decisions to refuse them refugee status. The letter referred to the recommendation made by the Refugee Status Review Committee on 20 July 1992, following upon its consideration on that day of those applications, that those persons, including the applicant, should not be granted refugee status as they did not meet the relevant criteria.

A copy of the documents setting out the basis for the Committee's recommendation was enclosed with the letter and Mr Kennedy was informed that, before the Minister or his delegate made a decision upon the applications, each of the applicants was to have an opportunity to comment upon the assessment by the Committee of their claims to refugee status. Mr Kennedy was further informed that, if a response was not received within seven days from the date of receipt of the letter, the matter would be submitted to the Minister or his delegate for decision.
The matter had not been submitted to the Minister or his delegate by 28 August 1992 when the Refugee Status Review Committee Secretariat received a submission signed by the applicant and dated 26 August 1992. It is clear that the submission was not prepared by the applicant and it may be assumed that it was prepared by Mr Kennedy. The document records, however, that the submission was signed by the applicant after the contents were read to him in Cantonese by an interpreter accredited by the National Accreditation Authority for Translators and Interpreters (NAATI).
The number of days in the period from 19 August to 28 August 1992 (both dates inclusive) is 10.

Period D (18 September 1992 to 21 September 1992)
32. The applicant's submission received on 28 August 1992 referred, in par.3C(iii), to the circumstance that the conclusion reached by the Refugee Status Review Committee as to punishment for illegal departure from the People's Republic of China relied heavily on the cable of 23 June 1992 from the Australian Embassy at Beijing referred to earlier in these reasons. It was submitted that there were various aspects that made reliance on that cable an unsafe approach in dealing with that question. These aspects were then identified. In consequence, the Department, on 17 September 1992, sent a cable addressed to the Australian Embassy at Beijing and copied to the Australian Consulate-General at Shanghai requesting confirmation that the information contained in the cable of 23 June 1992 superseded the information contained in earlier cables dated respectively 27 May 1991, 8 July 1991 and 18 and 27 November 1991. A reply was requested by 21 September 1992.

On that date, the Department received a cable from the Australian Embassy at Beijing in response to the cable of 17 September 1992. On 22 September 1992 the Department received a further cable from the Australian Embassy at Beijing correcting the text of the cable of the previous day. The effect of the reply was to confirm the information contained in the cable of 23 June 1992.
The number of days in the period from 18 September 1992 to 21 September 1992 (both dates inclusive) is 4.

Period E (22 December 1992 to 18 January 1993)
35. By letter dated 21 December 1992, addressed to the Department of Foreign Affairs and Trade, the Department requested urgent advice concerning certain matters that had been raised by Mr Kennedy. One of those matters concerned an opinion provided on 7 October 1992 to Mr Kennedy by Professor A.E.S. Tay, AM, FASSA, Challis Professor of Jurisprudence, Faculty of Law, University of Sydney headed "Opinion on the position of Chinese nationals who have applied for refugee status abroad if they should be returned to China, given in the light of PRC law and legal, administrative and political practice". A copy of that opinion had been provided to the Department on 20 October 1992 as part of a lengthy submission entitled "Arguments and Information in support of the Application". In letters dated 6 November 1992, Mr Kennedy had confirmed the view, previously expressed in oral discussion, that Professor Tay's opinion was relevant to a consideration of the applications for refugee status by the group referred to as "the Isabella group". No explanation has been offered by the Department why the request for advice in relation to the opinion was not made earlier than 21 December 1992.

A response to the letter dated 21 December 1992 was received by the Department on 18 January 1993 by cable from the Australian Embassy at Beijing.
The number of days in the period from 22 December 1992 to 18 January 1993 (both dates inclusive) is 28.

Period F (23 December to 11 January 1993)
38. On 22 December 1992, the Department orally requested officers of the Department of Foreign Affairs and Trade to obtain the comments of Professor R. Wacks, Professor of Law, The University of Hong Kong, upon the material that had been provided by Mr Kennedy on 20 October 1992.

A preliminary opinion by Professor Wacks and Mr A.H.Y. Chen was received on 11 January 1993.
The number of days in the period from 23 December 1992 to 11 January 1993 (both dates inclusive) is 20.

Period G (20 January 1993 to 25 January 1993)
41. By facsimile transmission dated 19 January 1993, the Department asked the Department of Foreign Affairs and Trade whether it had any difficulties with the release to the representatives of "the Isabella group" of seven identified cables. On 22 January 1993 the Department informed the Department of Foreign Affairs and Trade that all but two of the cables had already been cleared for release and that the request of 19 January 1993 was to be confined to those two cables.

On 25 January 1993, the Department of Foreign Affairs and Trade agreed to the release of the two cables.
The number of days in the period between 20 January 1993 and 25 January 1993 (both dates inclusive) is 6.

Period H (29 January 1993 to 16 April 1993)
44. Under cover of a letter dated 28 January 1993, the Department forwarded to Mrs Marion Le, the President of the Indo-China Refugee Association (ACT.), copies of material which was said to have become available since the deliberations of the Refugee Status Review Committee and which, for reasons of procedural fairness, needed to be provided to the members of "the Isabella group" so that they might, if they wished, comment upon that material before decisions were taken on their applications for refugee status. The letter was written to Mrs Le following the receipt by the Department of documents dated 25 January 1993 by which members of the group, including the applicant, had nominated Mrs Le as their representative. The material forwarded with the letter dated 28 January 1993 was a copy of the opinion of Professor Wacks and Mr Chen and copies of the seven cables referred to in the facsimile transmission dated 19 January 1993. The letter stated that the "Isabella" cases had been considered by the Refugee Status Review Committee, that the findings of the Committee had already been commented upon by the applicants and that the cases were "at the stage where the Minister's delegate will be in a position to decide the Review applications". The letter further stated that the Department would have asked Australian Lawyers for Refugees Incorporated to complete the task in 15 working days with an allowance of one week to arrange for their team, including interpreters, to arrive in Port Hedland and commence work and that, as the new representative "would be expected to pick the cases up at their present stage of processing", the Department "would expect your organisation to complete the task by Thursday 25 February 1993".

Prior to the Department sending the letter dated 28 January 1993, Mrs Le had, on 26 January 1993, forwarded to the Department, on behalf of 37 members of "the Isabella group" including the applicant, a request under the Freedom of Information Act 1982 (Cth) for access to a large number of documents. I should interpolate that, although an issue was originally raised on behalf of the applicant that Mrs Le was not his representative for the purposes of his application for refugee status, that issue was not pursued and it may be taken that Mrs Le's involvement was as the duly appointed representative of the applicant and other members of "the Isabella group". She assumed that role in place of Mr Kennedy of the Australian Lawyers for Refugees Incorporated.
By letter dated 29 January 1993, Mrs Le informed the Department that neither those whom she represented nor her organisation had complete files on the applicants and suggested that "the date of 25 February as proposed in your letter is out of the question". The letter also contained the following sentence:

"From my perspective there are some very serious issues here which need to be resolved before any deadline can be set for papers being submitted to the Delegate in the way you suggest in your letter."

On 2 February 1993 a meeting took place between officers of the Department and representatives of the Indo-China Refugee Association (ACT.), including Mrs Le.
Mrs Le wrote to the Department a letter dated 24 February 1993 which contained the following paragraphs:

"This letter is to confirm in essence our conversation by phone today.

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. (In this regard I would like to thank those concerned for their co-operation and assistance). 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."

There is a dispute between the parties as to the dates on which copies of the Departmental files were made available to Mrs Le but I do not think it necessary to resolve that question. Suffice it to say that the bulk of the material was made available on 10 February 1993 with some further material being produced between that date and the date of Mrs Le's letter. I am satisfied there was no undue delay on the part of the Department in making copies of the relevant files available.

By letter dated 26 February 1993, the Department replied saying that the timetable proposed for the forwarding of submissions was generally acceptable. The letter went on to say that there was a strong preference that, if at all possible, all submissions that Mrs Le wished to make be with the Department by 2 April 1993.
On 6 April 1993, the Department received from Mrs Le a general submission dated 5 April 1993 in respect of the applicant and other members of "the Isabella group". A further submission by Mrs Le was received by the Department on 7 April 1993.
On 13 April 1993, Mrs Le met with officers of the Department and presented further material said to be relevant to the consideration of the applications for refugee status by "the Isabella group".
On 16 April 1993, the Department received from Mrs Le a letter, dated that day, which included the following paragraph:

"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 Ms MO FEN ZENG (611) - 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 number of days in the period from 29 January 1993 to 16 April 1993 (both dates inclusive) is 78.

Period J (20 April 1993 to 3 May 1993)
54. By letter dated 16 April 1993 (apparently received on 19 April 1993), Mrs Le was requested to provide further (written) details of one of the matters referred to in her submission dated 5 April 1993, together with any evidentiary material she had supporting what had been said in the submission. That matter concerned the alleged torture on his return to the People's Republic of China of a member of a group other than "the Isabella group". A written response was required by close of business on 21 April 1993.

Mrs Le responded by letter dated 3 May 1993 setting out information in her possession.
The number of days in the period from 20 April 1993 to 3 May 1993 (both dates inclusive) is 14.

Period K (23 April 1993 to 28 June 1993)
57. By letter dated 22 April 1993, the Department requested Mrs Le to provide the originals of certain documents in Chinese script. The letter stated that there were variations between the "rough translation" of a copy document that had been supplied by Mrs Le and the translation of that copy document made by the Department's translation service and that the variations were such as to warrant further translations being made of a number of the documents supplied by Mrs Le. It was further stated that the quality of some of the copy documents in Chinese script that had been supplied by Mrs Le was such "as to make it impractical for a translator to use" those copies for translation purposes.

No reply was received to that letter and despite reminder letters dated 11 and 26 May 1993, the original documents were not made available to the Department. However, the decision-making process continued notwithstanding the absence of the original documents.
The period between 23 April 1993 and 28 June 1993 (both dates inclusive) is 67 days.

Period L (1 May 1993 to 21 May 1993)
60. On 30 April 1993, the Department communicated with the United Nations High Commissioner for Refugees seeking updated information concerning a Ms Lin Gui-zhen following her return to the People's Republic of China after deportation from Japan. Information had previously been provided by the High Commissioner by letter dated 2 July 1992. The Department considered that the information sought would be relevant to a consideration of the applicant's application for refugee status.

On 21 May 1993, the Department was informed that no further information on the subject was available.
The number of days in the period from 1 May 1993 to 21 May 1993 (both dates inclusive) is 21.

Period M (8 May 1993 to 17 May 1993)
63. By cable dated 7 May 1993 addressed to the Australian Embassies at Washington and Beijing, the Department sought information concerning the treatment on their return to the People's Republic of China of persons who had been on boats code-named "Eastwood", "Labrador" and "Norwich". A response was requested by 12 May 1993. This information was also sought as being relevant to a consideration of the applicant's application.

By cable dated 17 May 1993, the Australian Embassy at Beijing provided information in relation to "the Eastwood" group. The evidence does not disclose that a response was received in respect of the other groups.
The number of days in the period from 8 May to 17 May 1993 (both dates inclusive) is 10.

Period N (30 May 1993 to 15 June 1993)
66. Under cover of a letter dated 26 May 1993 and delivered on 29 May 1993, the Department forwarded to Mrs Le for consideration and comment "by the 'Isabella' applicants", further material, including material which was said to have become available "over the last few weeks". Mrs Le was asked to provide any comments "by, preferably, Friday 4 June 1993 and by Monday 7 June 1993 at the absolute latest".

By letter dated 14 June 1993 and received on the following day, Mrs Le responded to the letter dated 26 May 1993 and made further submissions relevant to the applicant's application for refugee status.
The number of days in the period between 30 May 1993 and 15 June 1993 (both dates inclusive) is 17.
It is necessary now to determine which, if any, of the periods so identified falls within par.(c), (d) or (f) of subs.54Q(3) of the Act. Paragraph (e) of that subsection has no application as no relevant court or tribunal proceedings were on foot at the material time.
In construing the provisions of Division 4B of Part 2 of the Act, regard must be had to the limits of the constitutional power (s.51(xix) of the Constitution) that supports their validity. The general nature and extent of the relevant aspect of the power conferred by s.51(xix) of the Constitution appears from the following passage in the judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (supra) at p 32:

"It can therefore be said that the legislative power conferred by s.51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch.III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature (See, generally, Ex parte Walsh and Johnson; In re Yates (1925), 37 CLR, at pp 60-61, 96; O'Keefe v Calwell (1949), 77 CLR at p 278; Koon Wing Lau v Calwell

(1949), 80 CLR, at p 555; Chu Shao Hung v The Queen (1953), 87 CLR, at p 589) nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident."

The power conferred by Division 4B of Part 2 of the Act to detain a "designated person" in custody extends no further than to authorize the detention in custody of such a person for such period as is reasonably capable of being seen as necessary for the purposes of deportation or as necessary to enable an entry application as defined in s.54K to be made considered and determined: ibid. at p 33; see also per Mason CJ at p 10, per Gaudron J at p 58 and per McHugh J at pp 65, 71.

In concluding that ss.54L and 54N were valid enactments, Brennan, Deane and Dawson JJ noted that the power of detention in custody for which those sections provided was limited by a number of significant restraints imposed by other provisions within Division 4B. One of those provisions was s.54Q and, although their Honours did not find it necessary to examine the provisions of that section in any detail, their Honours said of it (at p 33):

"Section 54Q effectively limits the total period during which a designated person can be detained in custody under Div.4B to a maximum total period of 273 days after the making of an application for an entry permit. For the purposes of that maximum period, time does not run while events beyond the control of the Department, such as delay in the supply of information or delay in court or tribunal proceedings, are preventing the finalization of the entry application."

McHugh J put the matter thus (at pp 71-2):

"... a designated person can be detained in custody for a period of nine months together with such additional periods as result from the delays in dealing with the application occasioned by persons or events beyond the control of the Department. In other words, the designated person can be detained for at least nine months for the sole purpose of enabling the Department to consider the application for entry and make its own examination and investigation. Inordinately long as the potential period of detention may seem to be, it has to be evaluated in the context of the allegation in the plaintiffs' statement of claim, which the defendants admit, that, in addition to the plaintiffs, there are approximately 23,000 applicants for refugee status in Australia at the present time. The appropriateness of the period of detention for the individual cannot be isolated from the administrative burden cast on the Department in investigating and determining the vast number of applications by persons claiming refugee status."

Earlier, his Honour had said (p 62):

"'Application custody' refers to the custody of a person while his or her application for refugee status, or for an entry permit, is being dealt with by the Department (but not where continued dealing with the application is beyond the control of the Department)."

In selecting 273 days as the maximum number of days a designated person may be detained in "application custody" (putting to one side the increase in that number for which, in the circumstances there set out, subs.(5) of s.54Q provides), the Parliament must be taken to have been influenced by the fact that the investigation and consideration of an entry application as defined in s.54K would, almost inevitably, involve the making of inquiries into the matters advanced by the designated person in support of the entry application. The inquiries thus contemplated would include inquiries of the designated person, his or her representative or agent (if any), other persons unconnected with the designated person or the Department and, particularly in the case of applications for refugee status, of Australian Embassies and Consulates-General in relevant overseas countries. The Parliament must also have contemplated that, in some instances at least, the requirement that the decision-making process afford procedural fairness to the designated person would necessitate the decision-maker informing the designated person of matters which the decision-maker proposed to take into account and the designated person being afforded an opportunity to comment upon those matters. The period of 273 days must, therefore, be taken to encompass some estimate of reasonable periods within which those steps might be taken. It is against that background that the provisions of subs.54Q(3) are to be considered.
The opening words of that subsection provide that, for the purposes of s.54Q, a person is in "application custody" if the person is in custody (par.(a)) and an entry application for the person "is being dealt with" (par.(b)). Paragraph (b), in my opinion, does not require, in order that the person be in "application custody", that steps are being actively taken by the Department to investigate, consider and determine the entry application in respect of that person. All that par.(b) requires, in my view, is that the entry application be current, in the sense that it has not been withdrawn or abandoned, and a determination has not been made whether it is to be granted or refused.
In the light of the considerations to which I have referred, I am of opinion that, unless the language of subs.54Q(3) is so clear and unambiguous as to require a contrary conclusion, it was not the intention of the Parliament that, on each occasion that the Department considers it appropriate to request information from persons outside the Department, the designated person is, during the period from the time the request is made until a response is received, not in "application custody". I am further of opinion that the language of subs.54Q(3) is not so clear and unambiguous as to compel a contrary conclusion. It may be noted that to ascribe to Parliament the intention set out above and to give effect to that legislative intention in the manner contended for by the respondents would, in the present case, have the result - an extraordinary result one might think - that during the period from 22 December 1992 to 28 June 1993 (both dates inclusive), a period of 189 days, the applicant would have been in "application custody" only for 7 days notwithstanding that during the period from 22 December 1992 to 28 June 1993 the Department was clearly able to deal to finality with the applicant's request for refugee status.
Paragraphs (e) and (f) of subs.54Q(3) envisage an interruption to, or delay in, the decision-making process by reason of circumstances completely outside the control of the Department. In relation to par.(e), for example, the Parliament has clearly taken the view that, if during the course of the period of detention in custody authorized by the provisions of Division 4B of Part 2 of the Act, court or tribunal proceedings relating to the entry application are commenced, it would be inappropriate to treat the designated person as being in "application custody" while such proceedings are pending. No doubt the view was taken that the processes of the court or the tribunal concerned would ensure that no undue delay occurred in having the issues raised in the proceedings resolved.
It is not entirely clear to what kind of situation par.(d) is directed. The language of the paragraph, however, 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.
For a happening to fall within par.(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. 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.
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(1). I shall, later in these reasons, refer to such an interruption or delay as a "relevant interruption to, or delay in, the 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".
In my opinion, the events to which reference is made under the headings "Period A" and "Period H" above are such as to make it proper to conclude that in respect of some part of each of those periods the applicant was not in "application custody". In am satisfied, however, that a conclusion to that effect cannot properly be reached in relation to the events referred to under the headings "Period B" to "Period G" inclusive and "Period J" to "Period N" inclusive.
In relation to the events referred to under the heading "Period A", I am satisfied, notwithstanding the paucity of the evidence, that, having regard to the nature of the information sought and its significance in relation to the consideration of the applicant's application for refugee status, the failure of the Australian Embassy at Beijing to comply with the request that it respond by 15 May 1992 with whatever information was then available did cause a relevant interruption to, or delay in, the decision-making process. The fact that the Department was able, prior to the response being received on 24 June 1992, to interview the applicant in relation to inconsistencies in the information given at earlier interviews does not require a different conclusion.
It is difficult, on the material available, to be precise as to the length of the interruption or delay caused by the circumstance that the Australian Embassy at Beijing did not respond to the request until 24 June 1992. However, I think it appropriate to infer that the interruption or delay was of the order of 35 to 40 days.
In the light of the conclusion that I have reached in relation to the events referred to under the heading "Period A", it is unnecessary further to consider the events referred to under the heading "Period B". I would not, however, regard those events as involving a relevant interruption to, or delay in, the decision-making process.
I am also satisfied that it has not been demonstrated that the events referred to under the headings "Period C" to "Period G" (inclusive) involved a relevant interruption to, or delay in, the decision-making process. In each case the period taken to respond to the request made by the Department was not excessive and such as may reasonably be thought to have been subsumed within the period of 273 days referred to in subs.54Q(1).
In relation to the events referred to under the heading "Period H", I am satisfied that a relevant interruption to, or delay in, the decision-making process occurred by reason of the applicant choosing to nominate Mrs Le as his representative in place of Mr Kennedy. It involves no criticism of Mrs Le to observe that, as she did not have the same background knowledge concerning the applicant's entry application as was possessed by Mr Kennedy by reason of his earlier involvement in the matter, it was understandable that she required a longer period to respond to the letter dated 28 January 1993 than would have been the case if Mr Kennedy had remained the applicant's representative. It is also of significance that Mrs Le wished, amongst other things, to traverse the ground already covered by Mr Kennedy in order to satisfy herself that all material relevant to the applications of those for whom she acted was available to the decision-maker. It is understandable that she adopted that course in view of her belief that those members of "the Isabella group" who had not been granted refugee status were not satisfied that their cases had been adequately put. It is in this context that one must view Mrs Le's request dated 26 January 1993 for access under the Freedom of Information Act to a large number of documents relating to "the Isabella group".
It is clear on the evidence before the Court that, although Mrs Le submitted lengthy documents on 6 and 7 April 1993 and supplemented those with further material on 13 April 1993, it was not until 16 April 1993 that the Department (which had by that date become the Department of Immigration and Ethnic Affairs) was informed that no further material was to be submitted in relation to the individuals, including the applicant, for whom she acted.
In my opinion, the events to which I have referred arising from the decision of the applicant to nominate Mrs Le as his representative instead of Mr Kennedy resulted in a relevant interruption to, or delay in, the decision-making process involving the consequence that during the period of the interruption or delay the applicant was not in "application custody". I should say, in case it be thought that the matter has been overlooked, that I do not regard the circumstance that Mrs Le stated to officers of the Department that she did not wish her intervention in the matter to be taken as an excuse to delay making decisions upon the applications of those for whom she acted as having any relevance to the question whether the events which occurred resulted in the applicant not being in "application custody" during the period of such interruption or delay. I think it is appropriate to regard the relevant interruption or delay as extending from 26 February 1993 (the day after the date nominated by the Department in its letter dated 28 January 1993 as the date by which a response was required) to 16 April 1993 (both dates inclusive), a period of 50 days.
In relation to the events referred to under the heading "Period J", although there was some delay in Mrs Le's response beyond the date by which a reply was requested, I do not think the circumstances warrant the conclusion that during any part of that period there was a relevant interruption to, or delay in, the decision-making process. I should add, however, that even if a contrary view were taken as to the whole or part of this period, it would not affect the conclusion which I have reached on the primary question.
As to "Period K", the evidence does not demonstrate that there was any interruption to, or delay in, the decision-making process by reason of Mrs Le's failure to provide the original documents requested. No doubt the Department made whatever use it could of the copies provided.
Nor, in my opinion, is it appropriate to conclude that any relevant interruption or delay resulted from the events referred to under the headings "Period L" to "Period N" (inclusive). In any event, as will appear, the more significant of those events occurred after the applicant had been in "application custody" for periods totalling 273 days.
The period of 273 days calculated from, and inclusive of, 7 May 1992 (assuming, again, that it is correct to exclude 6 May 1992 from the calculation) would have expired at midnight on 3 February 1993. I have found that two periods, one of 35-40 days and the other of 50 days, are the only periods in which it is proper to conclude that the applicant was not in "application custody" for the purposes of subs.54Q(1). It follows that the periods during which the applicant was in "application custody" reached a total of 273 days at the latest by midnight on 4 May 1993. The applicant is, therefore, entitled to a declaration that at some time prior to 25 June 1993 he had been in "application custody" within the meaning of that expression in subs.54Q(1) of the Act for periods totalling 273 days.
I turn to the further submissions advanced on behalf of the applicant that, solely as a consequence of the above conclusion, the applicant is entitled to a declaration that the decision made on 25 June 1993 to refuse him refugee status is null and void and a further declaration that the first respondent is obliged to issue him with an entry permit.
In my opinion, these submissions cannot be accepted. There is nothing in the language of Division 4B of Part 2 of the Act which supports the proposition that if a decision upon an entry application is to be made, it must be made before the expiration of the maximum period of "application custody" which the provisions of that Division authorize. Nor is there anything in the language of the Division which supports the proposition that, if the maximum period of "application custody" has expired, the designated person must be granted an entry permit. Neither of those topics are the subject of Division 4B. In particular, the circumstances in which a person is entitled to be granted an entry permit are exhaustively provided for in other provisions of the Act and in the regulations made thereunder. There is no warrant for ascribing to the legislature an intention that Division 4B of Part 2 was to provide an alternative means whereby an entry permit may be obtained. The applicant is, therefore, not entitled to the declarations sought.
Although I now publish these reasons, I do not at this stage make any declarations or pronounce any final orders. Before doing so, I wish to hear the further submissions of counsel both as to the relief to which the applicant may be entitled and as to the form of any declarations and consequential orders. Although I have reached the conclusion that the period of 273 days referred to in subs.54Q(3) expired prior to 25 June 1993, the Court should not make an order directing the applicant's release from custody unless it is satisfied that, at the date of the Court's order and having regard to the events which have happened, he is not being lawfully detained under the provisions of Division 4B of Part 2 of the Act. I, therefore, require to hear submissions from counsel why the applicant is not at present being detained in lawful custody pursuant to the provisions of s.54L on the basis that that section applies to the applicant by virtue of the operation of subs.54Q(6). In terms of that subsection it can be said that the entry application of the applicant has been refused (par.(a)) and that the applicant has begun court proceedings in relation to the refusal of that application by reason of the institution on 27 July 1993 of a proceeding under the Judicial Review Act (par.(c)). It is arguable that par.(b) is also satisfied in the case of the applicant.

I have noted earlier in these reasons that counsel for the respondents, on instructions, presented no argument as to the effect, in relation to the applicant, of subss.54L(4), 54P(3) and 54Q(6). However, the matter is not one for instructions. If those provisions or any of them require, as a matter of law, the conclusion that the applicant is presently detained in lawful custody, the Court is bound, no less than the Minister, to give effect to the statutory provisions.
The matter will be listed for the purpose of hearing the further submissions at 10.15 a.m. on Wednesday, 11 August 1993.

[1993] FCA 545

06 AUGUST 1993