Bills Digest No. 182 2002-03
Migration
Amendment (Duration of Detention) Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Appendix 1: Relevant Provisions of the
Migration Act 1958
Endnotes
Contact Officer & Copyright Details
Passage History
Migration Amendment (Duration of
Detention) Bill 2003
Date Introduced:
18 June 2003
House: House of Representatives
Portfolio: Immigration and Multicultural and
Indigenous Affairs
Commencement:
One day after Royal
Assent.
To amend the
Migration Act 1958 to prevent or limit courts from issuing
interim orders for the release of immigration detainees.
The Bill has been introduced to prevent
interlocutory or interim orders for the release of detainees
whether or not in the context of broader judicial review
proceedings. This has been prompted by several cases where such
release has been ordered by the Federal Court, for example Al
Masri's Case and VFAD's Case discussed below.
Broadly, interlocutory orders may be made on
the balance of convenience where they relate squarely to a decision
under review and where there is a serious question to be tried. The
cases which raise these issues regarding immigration detention
would seem to be rare. Essentially, the basic dispute needs to be
the 'downstream' issue of detention rather than an 'upstream'
issue, such as the decision not to issue a protection visa. The
cases discussed below involve 'downstream' issues: either detention
pending deportation or removal or detention following an apparent
decision to grant a valid protection visa.
Before discussing the recent cases where
release orders have been made, it is worth noting the broader
context and parameters of immigration detention, starting with
Lim's Case. The validity of the existing provisions in the
Migration Act 1958 and proposed provisions in this Bill
will be measured against the parameters set down in such cases.
On 27 November 1989 and 31 March 1990 two
groups of ethnic Chinese and ethnic Vietnamese asylum seekers
arrived in Broome in the Pender Bay and the
Beagle. All the asylum seekers had become Cambodian
nationals. None held valid visas; all were subsequently detained.
Most lodged applications for refugee status but were refused
between 3 and 6 April 1992. The decisions were appealed and were
ultimately set aside on 15 April 1992. As part of the appeal,
applications were made for interim orders to release the detainees,
based on the Federal Court decision in Msilanga (1991)
(see below).
A hearing was set down for 7 May 1992.
Amendment
The Migration Amendment Act 1992 was
introduced and passed on 5 May 1992 and commenced on 6
May,(1) in time to affect hearings in the Federal Court
on the release of the applicants on 7 May. It was expressed to be
an 'interim measure' intended to target 'a specific class of
persons', addressing 'the pressing requirements of the current
situation'.(2)
It applied to 'designated persons' who arrived
by boat between about 1989 and 1994.(3)
The 'interim measure' was later formalised by
the Migration Reform Act 1992 to include all 'unlawful
non-citizens' (ie, persons present in Australia who do not have a
valid visa).(4) Using the Migration Amendment Act
1992 model, the amendments introduced by this Act required
mandatory detention of all boat people, illegal entrants and
deportees. The relevant provisions, now sections 183, 189 and 196,
commenced on 1 September 1994.(5)
Relevant parts of these provisions are
extracted in Appendix 1.
High Court
In 1992, in Lim's Case(6)
the High Court affirmed the constitutionality of 'administrative
detention' under the Migration Act 1958 at least where the
detention is reasonably necessary for immigration processing.
Brennan, Deane and Dawson JJ held that the provisions introduced by
the Migration Amendment Act 1992 would be valid laws:
if the detention which they require and authorize
is limited to what is reasonably capable of being seen as
necessary for the purposes of deportation or necessary to enable an
application for an entry permit to be made and considered. On
the other hand, if the detention which those sections require and
authorize is not so limited, the authority which they purportedly
confer upon the Executive cannot properly be seen as an incident of
the executive powers to exclude, admit and deport an alien. In
that event, they will be of a punitive nature and contravene
Ch.III's insistence that the judicial power of the Commonwealth be
vested exclusively in the courts (7)
The key issue for domestic law is that
administrative detention which is not 'reasonably capable of being
seen as necessary for the purposes of deportation [etc.]' will be
characterised as punitive and will contravene the constitutional
requirement for separation of powers. In the view of Brennan, Deane
and Dawson JJ administrative detention will not be characterised as
punitive if it is reasonably necessary for processing or
deportation. In McHugh J's words, a law permitting administrative
detention 'cannot be so characterised [as punitive] if the purpose
of the imprisonment is to achieve some legitimate non-punitive
object'.(8)
The majority judges commented on the practical
limits of reasonable necessity. They indicated that the various
circumstances surrounding detention might impact upon a
finding as to whether the detention was reasonably necessary for
immigration processing. For example, in the majority judges' view
various aspects of the regime, such as the initial time limit on
detention, the requirement to deport or remove detainees as soon as
practicable and the ability of detainees to unilaterally terminate
their detention (by agreeing to deportation or removal) 'suffice to
preclude a conclusion that the powers of detention which are
conferred upon the Executive exceed what is reasonably capable of
being seen as necessary for the purposes of the making and
consideration of an entry application'.(9) By contrast,
McHugh J emphasised the burden on public administration. He noted
that '[t]he 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'.(10)
In 1991, in Msilanga v. Hand, the
Federal Court considered its power to issue interim orders for the
release of detainees pending the outcome of judicial review
proceedings. The applicant had served a prison sentence for
criminal assault and had been released. He was then the subject of
a deportation order, on character grounds, and was detained under
the Migration Act 1958 pending his deportation.
He appealed the deportation order to the Administrative Appeals
Tribunal. He also sought orders from the Court for his release.
Von Doussa J
Von Doussa J ordered his release, partly on
the basis that detention was for a non-migration purpose to protect
the victim and the community and to prevent flight and that this
might stretch the detention power under the Migration Act
1958:
If the applicant were not a non-citizen under the
Migration Act there would be no question of him being detained in
custody beyond his sentence. It is not open to the authorities to
implement a victim's desire born out of fear of further attack
(11)
Von Doussa J relied on two sections in two
Acts:
section 15 of the Administrative Decisions (Judicial Review)
Act 1977, and/or.
section 23 of the Federal Court of Australia Act 1976.
Section 15 allows the Court to stay or
'suspend the operation' of a decision that is subject to an
application under the Administrative Decisions (Judicial
Review) Act 1977. Section 23 allows the Court to make orders
'of such kinds, including interlocutory orders as the Court thinks
appropriate' provided they relate to 'matters' that are within its
jurisdiction.
Orders must relate to decision under review
Von Doussa J was conscious of reservations
expressed by Gummow J in Elmi v. MIEA. Gummow J said that
while sections 15 and 23 might support interim orders for release,
they could not be used to attack a decision regarding detention
where the judicial review application related to another decision,
for example a decision not to grant a visa:
[G]ranted the scope of the power in s 15 there
remains the difficulty in linking the decision, whose operation is
sought to be suspended, or proceedings under which are sought to be
stayed with the decision sought to be reviewed under the ADJR
Act.(12)
He distinguished the facts in Msilanga v.
Hand from those in Elmi v. MIEA:
In [Elmi], the decision to which the
applicant was held in custody was not the subject of the
application for review. In the present case, both the decisions
pursuant to which the applicant has been, or is being held, are the
subject of the proceedings.
Serious Question and Balance of Convenience
Von Doussa J expressed the key questions as
follows:
On an application for interlocutory relief the
court has to consider 2 questions: first, whether on the
substantive issues there is a serious question to be
tried; and second, if that question is resolved in favour of
the applicant, where the balance of the convenience lies.
If the balance is in favour of the order sought by the applicant it
will be made pending further order of the court or the
determination of the issues.(13)
Full Court
On appeal, a Full Court upheld Von Doussa's
jurisdiction to issue an order for release.
In MILGEA v. Msilanga's Beamont J,
with whom Black CJ agreed, held that:
[Both section 15 and/or section 23] empowers the
court, in an appropriate case to restrain, on an interim basis and
pending final determination of the substantive claim,
administrative action where a serious question arises as to the
validity of that action.(14)
While the question of what was 'appropriate
case' to make an interlocutory order would vary from case to case,
a judge need not require a detainee to establish 'exceptional' or
'extraordinary' circumstances. It was sufficient for the judge to
ask whether a serious question was raised in relation to the
validity of the administrative action and whether the person's
release was consistent with the 'balance of convenience' in all the
circumstances.
(Mr Msilanga lost his appeal to the
Administrative Appeals Tribunal.(15))
Montero's Case
A similar approach was adopted at first
instance an on appeal in Montero's
Case.(16)
The Resulting Amendments
As noted above, the Migration Amendment
Act 1992 and Migration Reform Act 1992 gave
legislative cover to the policy of immigration detention under the
Migration Act 1958. Significantly, they sought to restrict
judicial interference with immigration detention, addressing the
concerns in Msilanga's Case whilst relying on the judgment
in Lim's Case.
In introducing the Migration Amendment Bill
1992 the then Immigration Minister said:
The most important aspect of this legislation is
that it provides that a court cannot interfere with the period of
custody. I repeat: the most important aspect of this legislation is
that it provides that a court cannot interfere with the period of
custody. No law other than the Constitution will have any impact on
it.(17)
So, the period of custody was to depend on the
Migration Act 1958 and the Constitution. For present
purposes, the key limitations were the requirements that
detention:
(a) continue
only until a person is removed, deported or granted a
visa(18) and
(b) be reasonably
capable of being seen as necessary for the purposes of
deportation.
The latter requirement was explored in
Al Masri's Case
and the former in VFAD's Case.
In 2002,
in Al Masri v. MIMIA(19) the Federal
Court considered whether it could issue orders for the release of
immigration detainees notwithstanding the requirement that unlawful
non-citizens must be detained, pending deportation or removal
(section 196).
Merkel J
Broadly,
the key issue was whether the continued lawful detention of the
applicant under the Migration Act 1958 could become
unlawful as a result of circumstances which had frustrated his
removal or deportation. Merkel J held that detention could only be lawful
for so long as removal was 'reasonably practicable' 'in the sense
that there must be a real likelihood or prospect of removal in
the foreseeable future'.(20) Specifically, he found
that certain purposive and temporal limitations acted as a
restraint on the power to detain. That is, detention could only
be for purposes associated with the processing and removal of
aliens. Moreover, it could only last for as long as was reasonably
necessary to give effect to those purposes.
The
purposive limitation was drawn from the terms of the Act and the
decision of the High Court in Lim's
Case.(21) The temporal limitation was drawn
from the terms of the Act and from decisions of the United Kingdom
Privy Council and the United States Supreme Court, 'subject,
however, to appropriate modification'.(22) The Act
required that unlawful non-citizens who request to be removed from
Australia be removed 'as soon as reasonably
practicable'.(23) In Merkel J's view, this requirement
was 'one of the factors that supported the statutory validity [of
immigration detention]' in Lim's Case. The foreign cases
held that, as the power to detain was given 'to enable the
machinery of deportation to be carried out', it was 'impliedly
limited to a period which is reasonably necessary for that
purpose'.(24) So, if it was clear that detention was not
going to be possible within a reasonable time, the conclusion,
rebuttable by clear statutory language, was that the
detention was unlawful.(25)
Full Court
In April 2003, a Full Court unanimously upheld
the approach taken by Merkel J. They took the same view of the
significance of the 'temporal limitation' in Lim's
Case:
the reasoning of the majority of the High Court in
Lim leads us to conclude that unless the power and duty of
detention conferred by s 196 were subject to an implied
temporal limitation broadly of the nature of the second limitation
found by the trial judge, a serious question of invalidity would
arise. Without such a limitation it may well be that the power to
detain would go beyond what the High Court considered to be
reasonably capable of being seen as necessary for the purposes of
deportation.(26)
One aspect of the 'temporal limitation' in
Lim's Case was that a detainee had the 'practical
capacity' to bring about his or her release from detention by
electing to be removed. Another aspect of the 'temporal limitation'
was a statutory time limit on detention. The detention regime for
'designated persons' contained a 273 day time limit on
detention.(27) They considered that this was missing in
the regime for detention pending removal.(28)
One of the implied limitations discussed by
the trial judge was that detention would be permissible until DIMIA
stopped making efforts to deport as soon as was 'reasonable
practicable'. This was based on
the scenario that a detainee had requested to be
deported.
As it
relied on these provisions, it ran the risk that the limitation
only applied where a detainee had requested deportation. So,
Al
Masri
might not have any broader
application. But the Court seemed to reject this approach
in favour of a more general limitation:
The first of the two limitations found by the
trial judge was that s 196 was limited in operation to such
time as the Minister was taking all reasonable steps to remove a
detained person from Australia as soon as reasonably practicable.
This limitation emerged from a reading of the power to detain in s
196(1) as subject to the duty imposed upon the Minister by
s 198(1) to remove as soon as reasonably practicable. Although
the two provisions are part of the same scheme, we would not read
them together in this way. If the Minister were not fulfilling his
duty under s 198(1) to remove as soon as reasonably
practicable the detention would, in our view, still be lawful and
the appropriate remedy would be an order in the nature of mandamus
to compel the Minister to take the steps required for the
performance of his duty.
The Minister's purpose in detaining, however, must
be the bona fide purpose of removal. Otherwise the
detention would not be lawful. If the Minister were to hold a
person in detention without such a purpose, then the detention
would be unlawful and the person entitled to relief in the nature
of habeas corpus.(29)
So, regardless of whether a detainee had
elected to be deported or removed, there might be scope to
apply the purposive limitation to assess the lawfulness of their
detention.
In focusing on purposive and temporal
limitations, the Court did not examine the broader issue of whether
continued detention could be considered 'punitive' in nature. But,
the judges did express the view that the 'punitive detention' issue
might arise in a given case:
[I]t seems to us that if the question is asked
directly, the short answer may well be that in the absence of any
real likelihood or prospect of removal being effected in the
reasonably foreseeable future, the connection between the purpose
of removing aliens and their detention becomes so tenuous, if
indeed it still exists, as to change the character of the detention
so that it becomes essentially punitive in
nature.(30)
These comments might suggest that,
irrespective of any election by the detainee, the lawfulness of
detention is tentative where there is no likelihood of removal or
deportation.
Future Cases
Ultimately, the judgment raises uncertainty as
to continued detention in any given case. It requires an assessment
of whether detention is 'reasonably necessary' in the
circumstances:
It is true that implied limitations such as were
found by the trial judge would give rise to uncertainty as to the
legality of detention, dependent upon an assessment of external
circumstances rather than upon the presence or absence of
indisputable facts. It may be accepted that uncertainty of this
nature is undesirable and that it points to an intention not to
create it. In practical terms, however, the difficulty is likely to
be more apparent than real. The recent endorsement of the
Hardial Singh principles by the House of Lords and by the
Privy Council, many years after their formulation in 1984, suggests
that the less stringent and more flexible concept of reasonableness
which lies at the centre of those principles has not caused undue
difficulty; and this is hardly surprising since reasonableness is a
concept that the courts are accustomed to deal with in many
situations, and not least in situations where personal liberty is
in issue. Moreover, when the demands of certainty and liberty come
into conflict, the tradition of the common law is to lean towards
liberty.(31)
However, the majority did acknowledge that the
application of the purposive and temporal limitations, so as to
ground interlocutory orders for release, was 'not likely to have a
frequent operation'.(32) They cited the view expressed
by French J in WAIS v. MIMIA:
The term "as soon as reasonably practicable" in s
198 is an evaluative term which is to be assessed by reference to
all the circumstances of the case. What is reasonable is to be
determined, inter alia, by reference to the practical difficulties
that may lie in the way of making arrangements for removal which
involve the cooperation of other countries whether in respect of
the particular applicant or generally in relation to the class of
applicants of which he is a part. Provided arrangements are being
sought generically or specifically by reference to the applicant
with reasonable expedition it is difficult to see how delays beyond
the control of the Minister and his officers can be taken into
account in determining what period for removal falls outside the
scope of the term "as soon as reasonably practicable" in s
198.(33)
Hardial Singh
Both Merkel J and the Full Court referred to
the 'Hardial Singh' principles. These arose from a judgment of
Woolf LJ in R v Governor of Durham Prison; Ex
parte Hardial Singh:
Although the power which is given to the Secretary
of State to detain individuals is not subject to any express
limitation of time, I am quite satisfied that it is subject to
limitations. First of all, it can only authorise detention if the
individual is being detained in one case pending the making of a
deportation order and, in the other case, pending his removal. It
cannot be used for any other purpose. Secondly, as the power is
given in order to enable the machinery of deportation to be carried
out, I regard the power of detention as being impliedly limited to
a period which is reasonably necessary for that purpose. The period
which is reasonable will depend upon the circumstances of the
particular case. What is more, if there is a situation where it is
apparent to the Secretary of State that he is not going to be able
to operate the machinery provided in the Act it seems to me that it
would be wrong for the Secretary of State to seek to exercise his
power of detention.
In addition, I would regard it as implicit that
the Secretary of State should exercise all reasonable expedition to
ensure that the steps are taken which will be necessary to ensure
the removal of the individual within a reasonable
time.(34)
Zadvydas
They also referred to a judgment of Breyer J
in Zadvydas v Davis which pointed to a
'reasonable time' limitation on the power to detain aliens, pending
removal or deportation:
Whether a set of particular circumstances amounts
to detention within, or beyond, a period reasonably necessary to
secure removal is determinative of whether the detention is, or is
not, pursuant to statutory authority ... In answering that basic
question, the habeas court must ask whether the detention in
question exceeds a period reasonably necessary to secure removal.
It should measure reasonableness primarily in terms of the
statute's basic purpose, namely assuring the alien's presence at
the moment of removal. Thus, if removal is not reasonably
foreseeable, the court should hold continued detention unreasonable
and no longer authorized by statute. In that case, of course, the
alien's release may and should be conditioned on any of the various
forms of supervised release that are appropriate in the
circumstances.(35)
Recently, there have been a number of cases in
which interlocutory orders were made for the interim release of
immigration detainees on the fairly narrow, and unusual, basis that
a decision regarding their visa
application had been finalised, or purportedly
finalised.(36)
For
example in VFAD of 2002 v. MIMIA a primary decision
maker had prepared and dated an unsigned 'Protection Visa Decision
Record' that purportedly granted the applicant a visa. The
purported decision was in fact made pending an expedited security
assessment. The decision maker went on leave. A positive security
assessment was received. However, in the meantime, the policy had
been changed, resulting in a suspension in processing of visa
applications from Afghan persons pending resolution of the
situation in Afghanistan.
The decision record was obtained under the
Freedom of Information Act 1982 and an application was
made for his release on the basis that the decision record, whether
alone or along with the security assessment, constituted a grant of
visa. Moreover, it was argued, there was a 'serious issue to be
tried' and the balance of convenience favoured release.
Merkel J ordered his release under section 23
of the Federal Court of Australia Act 1976.
Following VFAD, there were at least
three other cases involving similar facts and
orders.(37)
Full Court
On appeal, the Full Court upheld the decision
of Merkel J.(38) They took the view that the
Migration Act 1958 did not confine the power to issue
interlocutory orders for release:(39)
There is nothing in the language of s196(3) which,
expressly or impliedly, prevents this Court from ordering the
release, on an interlocutory basis, of a person who establishes
that there is a serious question to be tried regarding the
lawfulness of that person s detention. Regrettably, although
perhaps inevitably, the task of finally resolving that question may
involve a lengthy process. The right to be free from arbitrary and
unlawful detention is as fundamental a freedom as our system of
values recognises. It is of such paramount importance that it would
be remarkable if this Court, in which is vested the judicial power
of the Commonwealth, could not, in an appropriate case, order the
release of the person from detention at least on an interlocutory
basis. It would require language of much greater clarity to deprive
the Court of the general power to grant interlocutory relief which
is conferred by s23.
In so doing, the Full Court recognised that it
had returned full circle to Msilanga:
The respondent in the present case is in a
position not dissimilar in certain respects to that of the
applicants in Msilanga. While we accept that at a formal
level that case, and the many other cases which have subsequently
followed it, can be distinguished, the principles which underlie
those cases are not distinguishable. Those principles, in our
opinion, remain correct, and are applicable to this
case.(40)
In other words, where the validity of
detention is squarely raised as an issue before a court, it has the
power to issue interlocutory orders for release pending a final
determination. This is so in relation to the Federal Court at least
in the absence of a clear statutory intention, express or implied,
in the Migration Act 1958 to prevent such orders.
Schedule 1 amends the
Migration Act 1958.
Item 1 inserts new
subsections 196(4)‑(5). Detention is to continue
until a court finally determines that detention is unlawful or the
detainee is not an unlawful non-citizen.(41)
Moreover, this rule applies regardless of
whether there is:
a 'real likelihood [of removal or deportation] in the reasonably
forseeable future', or
a judgment as to the lawfulness of a decision relating to a
visa.
Item 2 provides
that the new rules are not retrospective.
Clearly, since Lim's Case, any
case involving indefinite detention, or detention beyond the period
that is reasonably necessary for processing or deportation, may be
unlawful. This is because a question may arise as to whether the
detention is reasonably capable of being seen as necessary for the
purposes of immigration processing or deportation or removal. It
may also raise a question as to whether the detention should be
characterised as punitive.
The issues in Lim's Case, and
explored in Al Masri's Case, arguably reflect the broader
proposition that Australian law does not support arbitrary
detention of asylum seekers. This proposition has also been
extensively explored in the context of international
law.
International Law
The 'legality' of mandatory detention
under international law has been widely canvassed.(42)
It has been argued that mandatory detention is contrary to the
prohibition on unnecessarily restricting the movement of and/or
penalising bona fide asylum seekers in the Convention Relating
to the Status of Refugees (Refugee Convention) (Article 31).
Also, it has been argued that it is contrary to the prohibitions on
cruel, inhuman and degrading punishment in the International
Covenant on Civil and Political Rights (ICCPR) (Article 7) and
the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) (Article 16). It has
also been argued that it is contrary to the prohibition on
arbitrary detention in the ICCPR (Article 9(1)) and the
Convention on the Rights of the Child (CROC) (Article 37).
A wide range of other prohibitions and requirements are cited as
being relevant to the mandatory detention of asylum
seekers.(43)
The key issue appears to be the
prohibition in international conventions on unnecessary or
arbitrary detention. As in the Australian cases, there is a nexus
between arbitrariness and reasonable necessity. Thus, in Alphen
v The Netherlands (1990), the Human Rights Committee (HRC),
the treaty body responsible for the ICCPR, noted that detention
could be arbitrary notwithstanding that it was lawful as the
concept included 'elements of inappropriateness, injustice and lack
of predictability'. The HRC stated that detention 'must not only be
lawful but reasonable in all the circumstances' and, in
addition, 'must be necessary in all the circumstances, for
example, to prevent flight, interference with evidence, or the
recurrence of crime.(44) In
A v Australia (1997)(45)
the HRC commented specifically on the Migration Amendment Act
1992. As in Lim's Case, the HRC clearly articulated a
nexus between necessity and
arbitrariness.(46)
Application in Al
Masri
International law issues may have been a
factor in the Al
Masri decision. Having examined some
international law jurisprudence on arbitrary detention the Full
Court commented:
We are therefore fortified in our conclusion
that s 196(1)(a) should be read subject to an implied
limitation by reference to the principle that, as far as its
language permits, a statute should be read in conformity with
Australia's treaty obligations. To read s 196 conformably with
Australia's obligations under Art 9(1) of the ICCPR, it would
be necessary to read it as subject, at the very least, to an
implied limitation that the period of mandatory detention does not
extend to a time when there is no real likelihood or prospect in
the reasonably foreseeable future of a detained person being
removed and thus released from detention.(47)
A court is not to order the release
from immigration detention of a designated person.
189 Detention of unlawful
non‑citizens
(1) If an officer
knows or reasonably suspects that a person in the migration zone
(other than an excised offshore place) is an unlawful
non‑citizen, the officer must detain the
person.
(2) If an officer
reasonably suspects that a person in
Australia
but outside the
migration zone:
(a) is seeking to
enter the migration zone (other than an excised offshore place);
and
(b) would, if in
the migration zone, be an unlawful
non‑citizen;
the officer must
detain the person.
(3) If
an officer knows or reasonably suspects that a person in an excised
offshore place is an unlawful non‑citizen, the officer may
detain the person
190 Non‑compliance
with immigration clearance basis of detention
For the purposes
of section 189, an officer suspects on reasonable grounds that a
person in Australia
is an unlawful
non‑citizen if, but not only if, the officer knows, or
suspects on reasonable grounds, that the person:
(a) was required
to comply with section 166; and
(b) did
one or more of the following:
(i) bypassed,
attempted to bypass, or appeared to attempt to bypass, immigration
clearance;
(ii) went to a
clearance officer but was not able to show, or otherwise did not
show, evidence required by section 166 to be
shown;
(iii) if a
non‑citizen, went to a clearance officer but was not able to
give, or otherwise did not give, information required by section
166 to be given.
191 End of certain
detention
A person detained
because of section 190 must be released from immigration detention
if:
(a) the person
gives evidence of his or her identity and Australian citizenship;
or
(b) an officer
knows or reasonably believes that the person is an Australian
citizen; or
(c) the person
complies with section 166 and either:
(i) shows an
officer evidence of being a lawful non‑citizen;
or
(ii) is granted a
visa.
196 Period of
detention
(1) An unlawful
non‑citizen detained under section 189 must be kept in
immigration detention until he or she is:
(a) removed
from Australia
under section 198
or 199; or
(b) deported under
section 200; or
(c) granted a
visa.
(2) To avoid
doubt, subsection (1) does not prevent the release from immigration
detention of a citizen or a lawful
non‑citizen.
(3) To avoid
doubt, subsection (1) prevents the release, even by a court, of an
unlawful non‑citizen from detention (otherwise than for
removal or deportation) unless the non‑citizen has been
granted a visa.
Australia
of unlawful non‑citizens
(1) An
officer must remove as soon as reasonably practicable an unlawful
non‑citizen who asks the Minister, in writing, to be so
removed.
- The provisions relating to
mandatory detention commenced on 6 May 1992. Other provisions
commenced 3
June 1992 and 6 November 1992.
- The Hon Gerry Hand, MP, Migration
Amendment Bill 1992,
Second Reading Speech, House of Representatives,
Debates, 5 May 1992, p. 2370.
- Section 183 was inserted as
section 54R in section
3 of the Migration Amendment Act 1992.
- The delay was intended to allow
drafting of subordinate legislation, design and printing of forms,
training, development of new information technology systems and
programs.
- These provisions were inserted as
sections 54W and 54ZD by the Migration Reform Act 1992.
The Migration Reform Act 1992 was due to commence
on 1 November
1993 but was
deferred by the Migration Laws Amendment
Bill
1993
to 1 September
1994.
- Chu Kheng
Lim
v. The Minister
for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR
1.
- Chu Keong
Lim
v The Minister
for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1,
per Brennan, Deane and Dawson JJ, at p. 33 (emphasis
added).
- Chu Keong
Lim
v The Minister
for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1,
per McHugh J, at pp. 71 72.
- Chu Keong
Lim
v The Minister
for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1,
per Brennan, Deane and Dawson JJ, at pp. 33
34.
- Chu Keong
Lim
v The Minister
for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1,
per McHugh J, at pp. 71 72.
- Msilanga v. Hand
(1991) 22 ALD 27 at p.
30.
- Elmi v. Minister for Immigration
and Ethnic Affairs (1988) 17 ALD 471 at p.
472.
- Msilanga v. Hand
(1991) 22 ALD 27 at p.
28.
- Minister for Immigration, Local
Government and Ethnic Affairs v. Msilanga (1992) 105 ALR 301, at p.
313.
- Re Msilanga and the Minister
for Immigration, Local Government
& Multicultural Affairs (1991) 22 ALD 353.
- Minister for Immigration, Local
Government and Ethnic Affairs v. Montero (No 2)
(1992) 26 ALD
158.
- Gerry Hand MP, Migration
Amendment Bill 1992, Second Reading Speech, House
of Representatives, Debates, 5 May 1992, p. 2370.
- Section 196.
- Al
Masri
v. Minister
for Immigration and Multicultural and Indigenous
Affairs [2002] FCA
1009 (15 August
2002).
- Al Masri v.
Minister for Immigration and Multicultural and Indigenous
Affairs [2002] FCA
1009 (15 August
2002)
at [38]
(emphasis added).
- Al
Masri
v. Minister
for Immigration and Multicultural and Indigenous
Affairs [2002] FCA
1009 (15 August
2002)
at
[19].
- Al
Masri
v. Minister
for Immigration and Multicultural and Indigenous
Affairs [2002] FCA
1009 (15 August
2002)
at
[38].
- Migration Act
1958,
section 198.
- R v. Governor of Durham Prison;
Ex parte Hardial Singh [1984] 1 WLR 704, per Woolf J at
p. 706.
- Tan Te Lam v. Superintendent of
Tai A Chau Detention Centre [1997] AC 97.
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [72].
- Migration Act 1958, section
182.
- Migration Act 1958, section
196.
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [135]
[136]..
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [75].
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [129].
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [176].
- WAIS v Minister for Immigration &
Multicultural & Indigenous Affairs [2002]
FCA 1625 (23 December 2002) at [58].
- R v Governor of Durham Prison; Ex parte
Hardial Singh [1984] 1 WLR 704 at p. 706.
- Zadvydas v Davis, 533 U.S. 678
(2001), per Breyer J at pp. 699-700.
- Applicant VFAD of 2002 v. Minister
for Immigration & Multicultural Affairs
[2002]
FCA 1062 ("VFAD"), per Merkel J, VHAF v.
Minister for Immigration and Multicultural and Indigenous
Affairs [2002]
FCA 1243 ("VHAF"), per Gray J and VJAB v.
Minister for Immigration & Multicultural & Indigenous
Affairs [2002]
FCA 1253, per Marshall J.
- Ibid.
- Minister for Immigration &
Multicultural & Indigenous Affairs v. VFAD [2002] FCAFC
390 (9 December 2002).
- Minister for Immigration &
Multicultural & Indigenous Affairs v. VFAD [2002] FCAFC
390 (9 December 2002) at [159].
- Minister for Immigration &
Multicultural & Indigenous Affairs v. VFAD [2002] FCAFC
390 (9 December 2002) at [160].
- New subsection
196(4).
- For example see Chris Sidoti, 'Asylum
seekers: human rights obligations', Migration Action, Vol
22 No. 2, 2000 pp. 13 16.
- See generally Commonwealth Parliament of
Australia, Joint Standing Committee on Migration, Asylum,
Border Control and Detention, February 1994, Chapter 3.
- Communication No. 305/1988, Human Rights
Committee Report 1990, Volume II: UN Doc. A/45/40, paragraph 5.8
(emphasis added).
- CCPR/C/59/D/560/1993.
- '[D]etention should not continue beyond the
period for which the State can provide appropriate justification.
For example, the fact of illegal entry may indicate a need for
investigation and there may be other factors particular to the
individual, such as the likelihood of absconding and lack of
cooperation, which may justify detention for a period. Without such
factors detention may be considered arbitrary, even if entry was
illegal. In the instant case, the State Party has not advanced any
grounds particular to the author's case, which would justify his
continued detention ... The Committee therefore concludes that the
author's detention ... was arbitrary': ibid, page 24.
- Minister for Immigration &
Multicultural & Indigenous Affairs v.
Al
Masri
[2003]
FCAFC 70 (15 April 2003) at [156].
Nathan Hancock
23 June 2003
Bills Digest Service
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