COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)

CWDS
  Immigration - Detention in custody - Provision requiring "designated person"
to be kept in custody pending removal from Australia or grant of entry permit
- Provision not to apply if person kept in "application custody" for periods
totalling 273 days - Period expires prior to decision refusing application for
refugee status - Proceedings subsequently commenced for judicial review of
refusal of refugee status - Whether statutory authority to detain person in
custody during judicial review proceedings and for period of 90 days after
they end - Whether person entitled to order releasing him from custody -
Whether conditions may be imposed upon order for release being granted.
  Judiciary Act 1903 (Cth), s.39B
  Migration Act 1958 (Cth), Part 2, Division 4B
  Federal Court of Australia Act 1976 (Cth), s.22

HRNG
CANBERRA, 11 August 1993
#DATE 13:8:1993
  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 respondent:    Mr G.K. Downes QC and Mr T.M. Howe
  Solicitor for the respondent :  Australian Government Solicitor

ORDER
THE COURT:
    1. Declares that at some time prior to 25 June 1993 the
       applicant had been in "application custody" within the
       meaning of that expression in subsection 54Q(1) of the
       Migration Act 1958 (Cth) for periods totalling 273 days.
    2. Declares that the decision made on 25 June 1993 that the
       applicant is not 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 is not
       null and void by reason only of the circumstance that at
       some time prior to 25 June 1993 the applicant had been in
       "application custody" as aforesaid for periods totalling 273
       days.
    3. Declares that the first respondent is not obliged to issue
       the applicant with an entry permit by reason only of the
       circumstance that at some time prior to 25 June 1993 the
       applicant had been in "application custody" as aforesaid for
       periods totalling 273 days.
    4. Orders that the applicant be released from the custody in
       which he is presently being held in purported pursuance of
       Division 4B of Part 2 of the Migration Act 1958 (Cth).
    5. Orders that the applicant, at or within the times stated,
       notify the person from time to time nominated for that
       purpose to his solicitors by the Australian Government
       Solicitor of the following matters -
             (a)  The address at which he may be found following
                  his release from custody in accordance with
                  Order 4 - such notification to be given at the
                  time of his release from such custody;
             (b)  If he intends at any time or from time to time
                  to change the address at which he may be found,
                  the fact that he so intends - such notification
                  to be given not later than 48 hours before he
                  moves to the new address; and
             (c)  The fact that he has moved to a new address -
                  such notification to be given not later than 48
                  hours after moving to that address.
    6. Orders that the applicant report personally once in each
       period of 14 days to the person and at the time and place
       from time to time nominated for that purpose to his
       solicitors by the Australian Government Solicitor.
    7. Orders that the respondents pay the applicant's costs of and
       incidental to the application.
    8. Reserves liberty to the parties to apply on two days' notice
       to vary any of the above orders.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
NEAVES J  On 6 August 1993, I published reasons for the conclusions I had then
reached upon the matters that had been argued upon the hearing of the
application by Tang Jia Xin ("the applicant") for an order directing his
release from the custody in which he is being kept at the Immigration
Reception and Processing Centre at Port Hedland in the State of Western
Australia and for other relief.
2.  The conclusions I had reached were -
    (a)   that at some time prior to 25 June 1993 when the decision
          was made that the applicant was not a refugee as defined in
          the relevant Covenant and Protocol the applicant had been in
          "application custody" within the meaning of that expression
          in subs.54Q(1) of the Migration Act 1958 (Cth) ("the Act")
          for periods totalling 273 days;
    (b)   that the decision made on 25 June 1993 that the applicant
          was not a refugee as defined in the Covenant and Protocol
          was not null and void by reason only of the circumstance
          that at some time prior to 25 June 1993 the applicant had
          been in "application custody" for periods totalling 273
          days; and
    (c)   that the first respondent was not obliged to issue the
          applicant with an entry permit by reason only of the
          circumstance that at some time prior to 25 June 1993 the
          applicant had been in "application custody" for periods
          totalling 273 days.
3.  In publishing my reasons, I said:
    "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."
The reference to subs.54Q(3) should have been a reference to subs.54Q(1).
4.  I have now had the benefit of hearing further submissions from counsel for
the applicant and counsel for the respondents.  In order to deal with those
submissions, it is necessary to refer again to some of the provisions of
Division 4B of Part 2 of the Act.
5.  Section 54J provides that Division 4B of Part 2 of the Act was enacted
because the Parliament considered 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 leaves Australia or is given an entry permit. Section 54L provides
that, after commencement, that is to say after 6 May 1992, a designated person
as defined in s.54K must be kept in custody and is to be released if, and only
if, he or she is removed from Australia under s.54P or is given an entry
permit under s.34 or s.115. Section 54N prescribes the circumstances in which
an officer, an expression defined in s.4(1) of the Act, is empowered, without
warrant, to detain a designated person who is not in custody.
6.  Section 54L is expressly made subject to s.54Q (subs.54L(3)).  Subsection
(1) of section 54Q relevantly provides that s.54L is to cease to apply to a
designated person who was in Australia on 27 April 1992 - a description that
applies to the applicant - if the person has been in "application custody"
after 6 May 1992 for a continuous period of, or periods whose sum is, 273
days.  Subsection (2) of s.54Q applies where the designated person was not in
Australia on 27 April 1992 and, as that subsection has no application to the
applicant, its provisions may be put to one side for the purposes of the issue
now under consideration.  For the purposes of s.54Q, a person is in
"application custody" if the person is in custody (an expression defined in
s.54K) and an entry application for the person "is being dealt with" unless
one of the events specified in pars(c), (d), (e) or (f) of subs.54Q(3) is
happening.  The event specified in par.(e) is that court or tribunal
proceedings relating to the entry application have been begun and not
finalised.  Subsections (4), (5) and (6) of s.54Q provide:
    "(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."
Subsections (4), (5) and (6) of s.54Q were inserted in the Principal Act by
s.5 of the Migration Amendment Act (No.4) 1992 (Cth).
7.  The events which have occurred, in terms of the language of pars (a) and
(c) of subs.54Q(6), are that the entry application for the applicant has been
refused - it was refused on 25 June 1993 - and that the applicant has begun
court proceedings in relation to the refusal, such proceedings being an
application under the Administrative Decisions (Judicial Review) Act 1977
(Cth) ("the Judicial Review Act") filed in this Court on 27 July 1993.  If it
be accepted that the events which have occurred bring the applicant within the
terms, properly construed, of pars (a) and (c) of subs.54Q(6), the question
remains, in terms of par.(b) of that subsection, whether, apart from that
subsection, "section 54L would cease to apply" to the applicant.  If pars (a),
(b) and (c) of subs.54Q(6), on their proper construction, are satisfied, the
subsection operates to make s.54L apply to the applicant during the
proceedings under the Judicial Review Act and the period of 90 days after they
end.
8.  In his Second Reading Speech concerning the Migration Amendment Bill
(No.4) 1992, the Minister for Immigration, Local Government and Ethnic
Affairs, after referring to certain other provisions of the Bill, said:
    "In addition, this Bill seeks to put beyond doubt certain aspects
    of the custody scheme embodied in Division 4B of the Migration
    Act, in line with the guiding philosophy of that scheme:  namely
    that designated persons remain in custody until granted an entry
    permit or removed, subject only (to) the proviso that the
    processing of entry applications must be completed within the
    timeframe set down in the legislation.
    Specifically, the Bill introduces a provision to put it beyond
    doubt that custody is to continue between the negative
    determination of an entry application and the removal of the
    applicant.  While removal must be effected as soon as practicable
    after the entry application is refused and all appeals against, or
    reviews of, the refusal have been finalised, there are inevitable
    leadtimes in procuring travel documents and making associated
    arrangements.  It is essential that there be legislative authority
    for continued custody through this period.
    The Bill also introduces a provision to extend the permissible
    period of custody where an entry application decision is reopened
    by an unfavourable ruling of the courts.  This Bill provides that
    the period known as 'application custody', which is limited to 273
    days and which is intended to ensure that a decision is taken by
    the Department within that period, excludes any period of
    reconsideration following an adverse court ruling.  The Bill
    provides an additional 90 days for each such reconsideration."
9.  The Explanatory Memorandum relating to the Bill contained the following
under the heading "Outline":
    "This Bill makes several amendments to the Migration Act 1958 (the
    Act) to clarify the circumstances in which boat people, who
    arrived or will arrive in Australia between 19 November 1989 and 1
    November 1993, may be held in custody...
    Division 4B of the Act, which deals with the custody of
    non-citizens, was inserted into the Act by the Migration Amendment Act
    (No.2) 1992 and commenced operation on 6 May 1992.  Division 4B
    allows the detention in custody of designated persons for a period
    of 273 days where they have applied for an entry permit or a
    determination of refugee status.  This detention is known as
    application custody.  The Department of Immigration, Local
    Government and Ethnic Affairs has 273 days within which to process
    the application.  At the expiration of the 273 days it is intended
    that, under Division 4B, all applications would be finalised and
    designated persons who were not successful in their entry
    applications would remain in custody pending their removal from
    Australia.  The Act is amended to clarify a further circumstance
    in which the 273 day period ceases to run.
    Where an entry application has been refused, the 273 day period
    does not continue to run merely because the person has not sought
    or exhausted all avenues of review.  The Act is also amended to
    remove beyond doubt the power of the Department to continue to
    detain in custody designated persons pending the hearing of court
    or tribunal challenges on the refusal of an entry application and
    any subsequent reconsideration of an application by the
    Department, and further, pending the removal from Australia
    following unsuccessful applications..."
Under the heading "Notes on Individual Clauses", the Explanatory Memorandum
stated:
    "Clause 5      No custody or removal after certain period
    6     This clause amends section 54Q of the Principal Act by
    adding at the end new subsections (4), (5) and (6) to clarify the
    operation of the section.
    7     New subsection (4) clarifies the meaning of application
    custody within the terms of section 54Q.  Section 54Q provides
    that the provisions of sections 54L and 54P, which respectively
    provide for the detention and removal of a designated person,
    cease to apply to a designated person where the person has been
    held in application custody for a continuous period of, or periods
    whose sum is, 273 days.  Subsection 54Q(3) provides that a person
    is in application custody if the person is in custody (paragraph
    54Q(3)(a)) and the entry application for the person is being dealt
    with (paragraph 54Q(3)(b)).  New subsection (4) provides that
    where an entry application has been refused it is not being dealt
    with under paragraph 54Q(3)(b) and the 273 day clock does not run
    from the time of the refusal only because an appeal may lie
    against the refusal or there may be an application to review the
    refusal.
    8     New subsection (5) provides the Department with an extension
    of 90 days on the original 273 day processing period for each
    reconsideration of an application following a direction or
    decision of a court or tribunal where the Department's refusal of
    an application has been challenged in the court or tribunal.  New
    subsection (5) is added following concern that the reconsideration
    of an application following a review by a court or tribunal may
    mean that the Department would not be able to finalise the
    processing of the application in the 273 day period.  The custody
    provisions of section 54L apply to the extended period.
    9     New subsection (6) provides that where a designated person
    has instituted legal proceedings where the Department has refused
    an entry application, the custody provisions of section 54L
    continue to apply to the designated person for the period of the
    legal proceedings and for the period of 90 days following those
    proceedings in which the Department may be required to reconsider
    its refusal."
10.  Under subs.54Q(3), a person is in "application custody" only if an entry
application for the person "is being dealt with". Subsection 54Q(4) appears to
have been inserted to negative a possible argument that, although an entry
application may have been refused, it is to be regarded as still "being dealt
with" during the period within which an appeal against, or an application for
the review of, the refusal may be instituted, with the consequence, so the
argument would run, that the person is in "application custody" between the
date of the refusal and the date on which such appeal or application is
instituted. It is curious that subs.54Q(4) does not deal with the period
during which any proceedings which are commenced are pending.  Paragraph (e)
of subs.54Q(3) would not operate to prevent the number of days in the period
during which such proceedings are pending being counted as days on which the
person is in "application custody" as that paragraph refers to proceedings
relating to the entry application and not to proceedings relating to the
refusal of such an application, a distinction which the legislative provisions
expressly recognise.  Presumably the view was taken that the period during the
pendency of the proceedings would fall outside par.(b) of subs.54Q(3) on the
basis that the entry application is not being dealt with during that period.
11.  The language of subs.54Q(5) is, in my opinion, such as to confine its
operation to a case where the decision refusing the entry application is made
within the period of 273 days referred to in subs.54Q(1).  The operation of
subs.54Q(5) may be illustrated if it be assumed that the decision refusing the
entry application is made when the designated person has been in "application
custody" for 260 days and the designated person thereafter commences court
proceedings which, in due course, result in the decision to refuse the entry
application being set aside and the matter remitted to the decision-maker for
reconsideration.  By virtue of the operation of par.(b) of subs.54Q (3) -
read, if necessary, with the provisions of subs.54Q(4) - the designated person
would not be in "application custody" during the period from the date of
refusal of the entry application until a final order is made by the court.
However, as from the latter date, it would be correct to say that the entry
application is being dealt with within the meaning of par.(b) of subs.54Q(3)
so that the designated person would be in "application custody" from that
date.  If, therefore, the reconsideration of the matter took more than 13
days, s.54L would, absent the provisions of subs.54Q(5), have ceased to apply
to the designated person so that he could no longer be lawfully kept in
custody under Division 4B of Part 2 of the Act.  The effect of subs.54Q(5) is
that, in a case to which it applies, s.54L will not cease to apply to the
designated person until he or she has been in "application custody" for
periods totalling 363 days rather than 273 days.  It is, I think, clear that
the operation of subs.54Q(5) depends upon s.54L not having ceased, by virtue
of subs.(1) or (2) of s.54Q, to apply to the designated person before the
occurrence of the events which bring that subsection into operation. That the
provision was intended not to operate where the period of 273 days had expired
before the decision was made refusing the entry application is consistent with
the Minister's Second Reading Speech and the Explanatory Memorandum to which I
have referred.
12.  The question remains in what circumstances does subs.54Q(6) operate.  The
subsection postulates that the entry application has been refused and that,
apart from the subsection, s.54L "would cease to apply" to the person.
Section 54L "would cease to apply" to the person only if, in terms of
s.54L(2), the person is removed from Australia or is given an entry permit -
situations which are irrelevant for present purposes - or if the person has,
in terms of subs.54Q(1) or (2), been in "application custody" for a continuous
period of, or periods whose sum is, 273 days.  Thus, the subsection
contemplates that, at the time the decision is made to refuse the entry
application, s.54L has not ceased to apply to the person but that it would,
apart from subs.54Q(6), cease to do so at some time thereafter.  The
subsection then provides that s.54L is not to cease to apply, but is to
continue to apply, to the person during the court or tribunal proceedings in
relation to the refusal and for 90 days after they end.
13.  It follows that, if the decision to refuse the entry application is made
before the person has been in "application custody" for 273 days, subs.54Q(6)
will operate only if circumstances can be envisaged in which the person will
be in "application custody" on days later than the day on which the decision
was made to refuse the entry application.  But, if the application is not then
being dealt with within the meaning of par.(b) of subs.54Q(3), that cannot
occur until after the court or tribunal proceedings envisaged by par.(c) of
subs.54Q(6) have been finalised and have resulted in the decision to refuse
the entry application being set aside and the matter being remitted to the
decision-maker for reconsideration.  Such a situation appears to be already
covered by subs.54Q(5) and subs.54Q(6) appears to add nothing.
14.  One must, therefore, ask whether subs.54Q(6) has an operation where the
decision to refuse the entry application is made at a time when the person has
been in "application custody" for 273 days and has, or should have, been
released from custody by virtue of the operation of subs.54Q(1) or (2).  If it
had been intended that subs.54Q(6) would operate in such circumstances, one
would have expected that the words "apart from this subsection" would not have
appeared in par.(b) and that that paragraph would have referred to s.54L as
having already ceased to apply to the person.  One would also have expected
the subsection to substantively enact that, in the circumstances envisaged by
par.(c), the designated person is to be taken into custody (assuming he or she
has been released following the expiration of the 273 days in "application
custody") and to be kept in custody until the happening of one or other of the
events referred to in subs.54L(2).  Section 54N, which, in the circumstances
there mentioned, confers power on an officer, without warrant, to detain a
designated person in custody and to ensure that he or she is kept in custody
for the purposes of s.54L, does not confer such power in a case such as that
being discussed.  That omission reinforces the view I have taken of
subs.54Q(6).
15.  There are clearly textual difficulties in giving subs.54Q(6) an operation
in a case where the decision to refuse the entry application is made after the
person has been in "application custody" for 273 days.  The difficulty in
giving the provision some operation, however, provides no sufficient reason
for straining its language so as to bring within its terms a situation for
which it does not aptly provide.  I should add that there is nothing in the
Minister's Second Reading Speech or in the Explanatory Memorandum to which I
have referred which gives any support to the suggestion that it was the
intention of the Parliament that subs.54Q(6) should operate in a case such as
this. The tenor of what appears in those documents strongly suggests that the
Parliament did not envisage a case in which a decision to refuse an entry
application would be made after the person had been in "application custody"
for 273 days.
16.  But, whatever be the true meaning and effect of subs.54Q(6), it provides
no sound foundation upon which the Court could be satisfied that it requires
the applicant to be kept in custody pending the hearing of the proceeding
under the Judicial Review Act commenced by him on 27 July 1993.  He is,
therefore, entitled to an order that he be released from the custody in which
he is presently being held in purported pursuance of Division 4B of Part 2 of
the Act.
17.  There was some discussion during the course of the hearing of the further
submissions whether, if an order for the release of the applicant from custody
were to be made, it should be subject to conditions requiring the applicant to
notify the first respondent of his address and any change of address and to
report to some appropriate officer at fortnightly intervals.  It was submitted
that the Court had power to impose such conditions pursuant to s.22 of the
Federal Court of Australia Act 1977 (Cth).  That section provides that the
Court is, in every matter before the Court, to grant, either absolutely or on
such terms and conditions as the Court thinks just, all remedies to which any
of the parties appears to be entitled.
18.  Although I initially had some reservation whether the Court should do
more than make an order that the applicant be released from custody, I have,
on reflection, thought it appropriate - being just as between the parties and
having regard to the public interest - to order that the applicant comply with
conditions of the kind proposed.  I am fortified in reaching that conclusion
by the fact that counsel for the applicant did not oppose the imposition of
such conditions if the Court thought it appropriate to impose them.
19.  For the reasons set out above and those published on 6 August 1993, I
make the following declarations and orders -
    1.    Declare that at some time prior to 25 June 1993 the
          applicant had been in "application custody" within the
          meaning of that expression in subsection 54Q(1) of the
          Migration Act 1958 (Cth) for periods totalling 273 days.
    2.    Declare that the decision made on 25 June 1993 that the
          applicant is not 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 is not
          null and void by reason only of the circumstance that at
          some time prior to 25 June 1993 the applicant had been in
          "application custody" as aforesaid for periods totalling 273
          days.
    3.    Declare that the first respondent is not obliged to issue
          the applicant with an entry permit by reason only of the
          circumstance that at some time prior to 25 June 1993 the
          applicant had been in "application custody" as aforesaid for
          periods totalling 273 days.
    4.    Order that the applicant be released from the custody in
          which he is presently being held in purported pursuance of
          Division 4B of Part 2 of the Migration Act 1958 (Cth).
    5.    Order that the applicant, at or within the times stated,
          notify the person from time to time nominated for that
          purpose to his solicitors by the Australian Government
          Solicitor of the following matters:
          (a)   The address at which he may be found following his
                release from custody in accordance with the order made
                this day - such notification to be given at the time
                of his release from such custody;
          (b)   If at any time and from time to time he intends to
                change the address at which he may be found, the fact
                that he so intends - such notification to be given not
                later than 48 hours before he moves to the new
                address; and
          (c)   The fact that he has moved to a new address - such
                notification to be given not later than 48 hours after
                moving to that address.
    6.    Order that the applicant report personally once in each
          period of 14 days to the person and at the time and place
          from time to time nominated for that purpose to his
          solicitors by the Australian Government Solicitor.
    7.    Order that the respondents pay the applicant's costs of and
          incidental to the application.
    8.    Reserve liberty to the parties to apply on two days' notice
          to vary any of the orders made this day.