The mere making of a request for information does not suspend the 273-day custody time limit; the Department must demonstrate that the request actually interrupted its ability to continue dealing with the application.
Later decisions that cite Bolkus v Tang Jia Xin
Decisions cited by Bolkus v Tang Jia Xin
SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JOANNE
McRAE, MANAGER OF THE IMMIGRATION RECEPTION AND PROCESSING
CENTRE AT PORT
HEDLAND IN THE STATE OF WESTERN AUSTRALIA v. TANG JIA XIN
F.C. 94/051 Number of pages - 5
HIGH COURT OF AUSTRALIA
BRENNAN(1), DAWSON(1), TOOHEY(1), GAUDRON(1) AND McHUGH(1) JJ
CATCHWORDS
HEARING
CANBERRA, 11 August 1994ORDER
Appeal dismissed with costs.
DECISION
BRENNAN, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ Division 4B of Pt 2
2. The reason for the inclusion of Div.4B is expressed in the Act
to be because the Parliament considers that it is in the national
interest that a non-citizen who is a designated person should be kept
in custody until he or she leaves Australia or is given an entry
permit ((3) s.54J). "Designated person" is defined ((4)
s.54K.) to mean a non-citizen who has been on a boat in the
territorial sea of Australia after 19 November 1989 and before 1
November 1993, who has not presented a visa, is in Australia, has not
been granted an entry permit and is a person to whom the Department of
Immigration and Ethnic Affairs ("the Department") has given a
designation in accordance with par.(e) of the definition. The
definition also includes children born in Australia where the mother is
a designated person. The content of the definition of designated
person was discussed in Chu Kheng Lim v. Minister for Immigration
((5) (1992) 176 CLR 1.) which upheld the validity of ss.54L and 54N of
the Act.
3. Division 4B deals with the circumstances in which a designated
person must be kept in custody and must be removed from Australia and,
more particularly for present purposes, the time limit after which the
provisions for custody and removal cease to apply. The formulation of
that time limit has given rise to the present appeal.
4. Section 54Q provides that s.54L (custody) and s.54P (removal)
cease to apply to a designated person who was in Australia on 27 April
1992 (the respondent is such a person) if the person has been in
application custody for a continuous period of, or periods whose sum
is, 273 days. By reason of s.54Q(3), a person is in application
custody if the person is in custody and an entry application for the
person is being dealt with, unless one of certain events is taking
place. While the appeal focused on par.(c) of the enumerated events,
the role of that paragraph is better understood if all the alternative
suspending events are noted. They are:
"(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 (in
custody) 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".
5. The question raised by this appeal is whether, in the
circumstances of the present case, the Department was at any time
waiting for information relating to the respondent's entry application
to be given by a person not under the control of the Department. If
the Department was not so waiting, the period of 273 days mentioned
in s.54Q had expired at some time prior to 25 June 1993 and the
respondent was entitled to be released from custody. The appellants
contended that the Department had been "waiting for information" in
terms of par.(c) of s.54Q(3), with the consequence that the respondent
had not been in custody for 273 days.
6. The Full Court of the Federal Court ((6) Minister for Immigration
and Ethnic Affairs v. Tang Jia Xin (1993) 118 ALR 603.) dismissed an
appeal by the present appellants from the judgment of Neaves J ((7)
Tang Jia Xin v. Minister for Immigration and Ethnic Affairs (No. 1)
[1993] FCA 372; (1993) 116 ALR 329.) declaring that the present respondent had, at
some time prior to 25 June 1993, been in application custody for
periods totalling 273 days and ordering that the respondent be released
from custody. In approaching the meaning of par.(c), the Full Court
said ((8) (1993) 118 ALR at 612.) that the structure of sub-s.(3)
suggests that the onus of establishing that any one of the exceptions
(c), (d), (e) or (f) applies lies upon the party wishing to establish
its application. This is undoubtedly correct ((9) see Vines v.
Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520; Banque Commerciale S.A., en
Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 169 CLR 279 at 285; Avel Pty.
Ltd. v. Multicoin Amusements Pty. Ltd. [1990] HCA 58; (1990) 171 CLR 88 at 119.).
7. As to the meaning of "waiting for", the Full Court considered
dictionary meanings, concluded that the expression was intended to
have its ordinary meaning rather than any special or technical
meaning, and agreed with the primary judge that "some notion of delay
is inherent in the concept of 'waiting for' something" ((10) (1993)
118 ALR at 613.). They rejected the appellants' argument that "any
lapse of time, whether ordinate or inordinate, qualifies as part of a
'waiting' period" ((11) ibid.).
8. The appellants argued in this Court and in the courts below that
the waiting period commences from the moment of making a legitimate
request for information until receipt of the information or of a final
response. It was submitted that any other interpretation leads to
great uncertainty. Evidence, perhaps evidence from overseas, might be
necessary to show that a delay was likely. On the other hand, the
respondent submitted that the interpretation urged by the appellants
could result in a designated person remaining in custody for periods
well beyond 273 days, simply by reason of the Department making an
inquiry, particularly one overseas.
9. The question is a narrow one. 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" (emphasis 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, in their judgment Brennan, Deane and Dawson JJ
commented ((12) (1992) 176 CLR at 33.):
"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."
10. 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.
11. The appellants drew attention to the second reading speech in the
House of Representatives ((13) Commonwealth, House of Representatives,
Parliamentary Debates (Hansard), 5 May 1992 at 2372.) and to the
supplementary explanatory memorandum which, echoing what had been said
by the Minister, reads:
"The period will stop running during any time in whichHowever, a Minister's second reading speech, while available as a
information is being sought from third parties (including
the applicant and his or her advisers)".
12. The appellants also relied on the decision of the Full Court
of the Supreme Court of Western Australia in Truong v. Manager,
Immigration Detention Centre, Port Hedland ((15) (1993) 31 ALD 729.)
in which Malcolm CJ and Seaman J relevantly agreed with Ipp J It
is true that in determining whether the applicants had been in
application custody beyond 273 days, Ipp J spoke of a period of time
between a request by an officer of the Department for information from
the Refugee Council of Australia and the receipt of that information as
a period during which the Department was "waiting for information"
relating to the applications of the applicants and therefore a period
during which they were not in application custody. But the particular
question now before the Court does not appear to have been argued
before their Honours. If it was, the Full Court, in our respectful
view, was in error in concluding that the mere lapse of time meant that
the applicants were not in application custody.
13. The construction we have given to s.54Q(3)(c) is not the same as
that given by Neaves J and the Full Court. Nevertheless, the primary
judge carried out an exhaustive analysis of the various periods during
which the respondent was in custody, looking in each case at the stage
that decision-making had reached, asking himself in each case ((16)
(1993) 116 ALR at 345.):
"whether the circumstances which have occurred and which areWe can discern no error in that general enquiry. It may well be that
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 s.54Q(1)".
14. The Full Court said that the primary judge "undertook a careful
and detailed analysis of the facts" ((17) (1993) 118 ALR at 614.);
there can be no quarrel with that assessment. The Full Court concluded
that his Honour's assessment of the appropriate period to be allowed in
specific instances had not been demonstrated to be a conclusion that
was not reasonably open. Importantly, the Full Court observed #18 :
" Moreover, it is a noticeable feature of the present
case that there was no affidavit or oral evidence before
the trial judge specifically verifying facts crucial to the
operation of any of the paragraphs. A witness may depose
that he or his department was 'waiting for information',
for that would be a fact. Before the trial judge, no
witness did so. The trial judge was left to infer that the
department had been waiting at various stages. But in
respect of those periods in relation to which his Honour
declined to draw the inference, once his Honour rejected
the contention that the department was waiting simply
because it had written seeking information, there was
little if any evidence on which the trial judge could have
found that the statutory criterion was satisfied. In
relation to a time when ongoing inquiries were under way,
the mere making of a request for information may not
establish that there was an interruption to the
decision-making process or that the department was
waiting."
15. In our view the Full Court was correct in dismissing the appeal.
Before Neaves J the appellants failed to discharge the onus of
showing 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. Accordingly the appeal to this Court
should also be dismissed.