Burgess v Commonwealth of Australia
[2020] FCA 670
•20 May 2020
FEDERAL COURT OF AUSTRALIA
Burgess v Commonwealth of Australia [2020] FCA 670
File number: SAD 73 of 2018 Judge: BESANKO J Date of judgment: 20 May 2020 Catchwords: MIGRATION — where the applicant held a Class BF (Subclass 155) Resident Return Visa — where the Minister for Immigration and Border Protection purported to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) on two relevant occasions — where the applicant was taken into immigration detention — where the decisions of the Minister were quashed by the Federal Court of Australia — where the effect of the orders of the Court is that the applicant was a lawful non-citizen for the duration of his detention
TORTS — false imprisonment — whether the applicant was unlawfully detained — whether the applicant was detained for the purposes of s 189 of the Act — whether the applicant was detained by officers within the meaning of s 5 of the Act — whether detaining officers held a reasonable suspicion that the applicant was an unlawful non-citizen — whether s 196(4) and (5)(b) of the Act authorises continuing detention irrespective of whether s 189 is satisfied
CONSTITUTIONAL LAW — whether s 196(4) and (5)(b) of the Act are constitutionally valid — whether the operation of s 196(4) and (5)(b) advanced by the respondent would contravene Ch III of the Constitution — whether detention required and authorised by s 196(4) and (5)(b) is limited to what is reasonably capable of being seen as necessary for the purposes of removal or to enable an application for permission to enter and remain in Australia to be made and considered
DAMAGES — general damages — where the applicant seeks compensatory damages in relation to the period of his detention — whether the applicant is entitled to more than nominal damages — whether the applicant would have been lawfully detained as an unlawful non-citizen in any event
DAMAGES — exemplary damages — whether the applicant is entitled to exemplary damages — where the period giving rise to the claim for exemplary damages was short — whether the respondent intentionally or recklessly acted in disregard of the applicant’s rights
DAMAGES — vindicatory damages — whether the applicant is entitled to vindicatory damages — where the applicant contends that he should receive an award of damages to reflect the vindication of his right not to be imprisoned unlawfully — whether vindicatory damages are part of compensatory damages
Legislation: Constitution s 51
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) s 78B
Migration Act 1958 (Cth) ss 5, 13, 14, 15, 189, 196, 198, 501, 501A, 501B, 501BA, 501CA, 501E, 501F
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Amendment (Duration of Detention) Act 2003 (Cth)
Migration Amendment (Duration of Detention) Bill 2003 (Cth)
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Attorney General of Trinidad and Tobago v Ramanoop [2005] 2 WLR 1324; [2006] 1 AC 328
Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604
Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1
Commonwealth of Australia v Marsh [2018] ACTSC 189
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Dehn v Attorney-General [1988] 2 NZLR 564
Electrolux Home Products Pty Ltd v The Australian Workers’ Union [2004] HCA 40; (2005) 221 CLR 309
Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333
Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251
Fernando v Commonwealth of Australia (No 5) [2013] FCA 901
Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422
Graham v Minister for Immigration and Border Protection [2018] FCA 1012; (2018) 265 FCR 634
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31
Hook v Cunard Steamship Co [1953] 1 WLR 682
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Lee v New South WalesCrime Commission [2013] HCA 39; (2013) 251 CLR 196
Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79
Mediana [1900] AC 113
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCFAC 390; (2002) 125 FCR 249
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569
Nye v State of New South Wales [2003] NSWSC 1212
Okwume v Commonwealth of Australia, [2016] FCA 1252
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Plenty v Dillon [1997] SASC 6372
Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107; Dehn v Attorney-General [1988] 2 NZLR 564
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Berchet (1690) 1 Show KB 106
R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207
R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245
R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299
R (on the application of O) v Secretary of State for the Home Department [2016] 1 WLR 1717
Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629
Re Woolley; Ex parte Applicants M276/2003 [2003] HCA 49; (2004) 225 CLR 1
Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Singh v The Commonwealth [2002] HCA 43; (2004) 222 CLR 322
Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002)
The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147
Uren v John Fairfax & Sons Pty Limited [1966] HCA 40; (1966) 117 CLR 118
Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621
Whitfield v De Lauret and Company Limited [1920] HCA 75; (1920) 29 CLR 71
Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278
Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1984] HCA 12; (1985) 155 CLR 448
Barker K, Cane P, Lunney M, Trindade FA, The Law of Torts in Australia (5th ed, Oxford University Press, 2012)
McGregor H, McGregor on Damages, (20th ed, Edelman J (ed), Thomson Reuters (Professional) UK Limited, 2018)
Dates of hearing: 6, 7 June 2019 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 267 Counsel for the Applicant: Mr S McDonald Solicitor for the Applicant: MSM Legal Counsel for the Respondent: Mr G Johnson SC with Mr D O’Leary Solicitor for the Respondent: Australian Government Solicitor ORDERS
SAD 73 of 2018 BETWEEN: PAUL WILLIAM BURGESS
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
20 MAY 2020
THE COURT ORDERS THAT:
1.The applicant file and serve draft minutes of order and submissions as to costs (limited to five pages) within 7 days.
2.The respondent file and serve draft minutes of order (if it disputes those advanced by the applicant) and submissions as to costs (limited to five pages) within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
The applicant in this proceeding is Mr Paul William Burgess and the respondent is the Commonwealth of Australia. The applicant is a British citizen who, prior to 3 June 2016, held a Class BF (Subclass 155) Resident Return Visa (the visa) under the Migration Act 1958 (Cth) (the Act).
On 3 June 2016, the Minister for Immigration and Border Protection (the Minister) purported to cancel the applicant’s visa under s 501(3) of the Act (First Cancellation Decision). On 9 June 2016, the applicant was taken into detention where he remained until 12 February 2018. I will refer to this period as the relevant period. On 16 June 2016, the applicant issued an application for judicial review in this Court (SAD 178 of 2016) seeking an order quashing the First Cancellation Decision (the First Judicial Review Proceeding). On 16 September 2016 at approximately 9.20 am, this Court made an order by consent quashing the First Cancellation Decision.
Approximately 20 minutes after the order quashing the First Cancellation Decision had been made, the Minister made a second decision purporting to cancel the applicant’s visa under s 501(3) of the Act (Second Cancellation Decision). On 21 October 2016, the applicant issued an application for judicial review in this Court (SAD 293 of 2016) seeking an order quashing the Second Cancellation Decision (the Second Judicial Review Proceeding). On 12 February 2018, this Court, after a contested hearing, made an order quashing the Second Cancellation Decision (Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197).
A third cancellation decision was made on 13 February 2018 and that was followed by a Third Judicial Review Proceeding instituted by the applicant. However, both those events are outside what I have defined as the relevant period.
It is not in dispute that the effect of the orders of the Court in the two Judicial Review Proceedings is that the applicant was a lawful non‑citizen within s 13 of the Act throughout the period of his detention. The applicant claims that his detention was unlawful throughout the relevant period and he seeks a declaration to that effect and damages for false imprisonment, including exemplary damages. He seeks compensatory damages in relation to the period of his detention. If compensatory damages are not awarded, the applicant seeks what were referred to in the course of submissions as vindicatory damages. The respondent contends that the applicant’s detention was authorised by s 189 of the Act or s 196(4) and (5)(b) of the Act and was lawful. The respondent further contends that if the applicant’s detention was not lawful (contrary to its primary submission), then nevertheless, he is not entitled to compensatory damages and he is entitled to no more than nominal damages. The respondent contends that the facts do not support an award of exemplary damages.
THE PRINCIPAL ISSUES
It is convenient to begin by setting out the provisions of the Act which provide for the detention of non-citizens who are, or who are reasonably suspected of being, unlawful non-citizens.
Section 13 of the Act provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen, and s 14 provides that a non-citizen who is not a lawful non‑citizen is an unlawful non-citizen. Section 15, subject to an immaterial exception for present purposes, provides that if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
Section 189 of the Act deals with the detention of unlawful non-citizens. It provides:
(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 may detain the person.
(3)If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non‑citizen, the officer must detain the person.
(3A) If an officer knows or reasonably suspects that a person in a protected area:
(a) is a citizen of Papua New Guinea; and
(b) is an unlawful non-citizen;
the officer may detain the person.
(4)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5)In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
Note:See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).
The word “detain” is defined in s 5 of the Act as follows:
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
The term “immigration detention” (a term used in the definition of detain) is defined in s 5 of the Act as follows:
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii)in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i)in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1:Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2:This definition extends to persons covered by residence determinations (see section 197AC).
There are four matters to note at this stage about s 189 of the Act. First, the persons who may exercise the power in s 189 must be officers. The term “officer” is defined in s 5 of the Act. I do not need to discuss the definition because, as I understand it, the applicant does not dispute that all seven persons who gave evidence on behalf of the respondent in this case were officers at the time(s) they were involved with the applicant. Secondly, in order to engage the section, the officer must know or reasonably suspect that the person is an unlawful non-citizen, that is, a non-citizen who does not hold a visa which is in effect. The satisfaction of that requirement is disputed by the applicant in the case of one of the respondent’s seven witnesses, but not in the case of the six other witnesses. Thirdly, in order to engage the section, the officer must detain the person. The satisfaction of that requirement is disputed in the case of four of the respondent’s seven witnesses. Finally, s 189 imposes on an officer an obligation to detain, not simply a power to detain.
Section 196 deals with the duration of detention and is in the following terms:
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is 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 as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A)Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a)whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b)whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A)Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
It is convenient to note at this stage that s 196(4) and (5)(b) deal with a subclass of the class dealt with in s 196(1). The latter subsection deals with unlawful non-citizens generally, whereas s 196(4) and (5)(b) deal with unlawful non-citizens whose visas have been cancelled as a result of decisions made under the “character” provisions in Part 9, Division 2 of the Act.
Section 198 deals with the obligation on officers to remove unlawful non-citizens from Australia as soon as reasonably practicable and in the circumstances specified in the section. It is not necessary to set out the terms of that section.
The respondent relies on s 196(4) and (5)(b) to justify the applicant’s continuing detention, save for a period on 9 June 2016 and a period on 16 September 2016. The respondent accepts that the initial detention of a person must be authorised by s 189, but submits that thereafter s 196(4) and (5)(b) authorise continuing detention of the person independently of s 189, that is to say, irrespective of whether s 189 is satisfied. The applicant submits that that is not the correct construction of the subsections. He submits that on the correct construction of the subsections, they do not provide an obligation or power to detain independent of s 189 and that that section (i.e., s 189) must be complied with at all times throughout the person’s detention. In the alternative, the applicant submits that if he is wrong about the correct construction of the subsections, then they are constitutionally invalid. He has served notices under s 78B of the Judiciary Act 1903 (Cth), but no Attorney-General has sought to intervene in the proceeding.
I will identify the principal issues in relation to relief when I come to that section in these reasons.
THE CIRCUMSTANCES SURROUNDING THE APPLICANT’S DETENTION
There is no dispute that the applicant was detained during the relevant period. The onus is on the respondent to establish on the balance of probabilities that the applicant’s detention was lawful (Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 (Trobridge v Hardy) at 152 per Fullagar J; Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 626 per Walsh J; Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 (Ruddock v Taylor (NSWCA)) at [4] per Spigelman CJ; Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [107] per Besanko J). The respondent accepts that it bears the onus of establishing on the balance of probabilities that the detention of the applicant was lawful.
The applicant was detained early in the morning on 9 June 2016 and thereafter he remained in detention until 12 February 2018. His primary case is that from late in the afternoon on 9 June 2016 until 12 February 2018, and excluding a very short period on 16 September 2016, his detention was unlawful. He also puts alternative cases of unlawful detention relating to particular periods within the relevant period should certain of his primary arguments fail.
The detention centres at which the applicant was detained are not in dispute. The applicant was detained at the Christmas Island Immigration Detention Centre on Christmas Island (CI IDC) from late in the afternoon on 9 June 2016 to 18 August 2016, and again from 21 April 2017 to 12 February 2018. The Territory of Christmas Island is an excised offshore place under the Act (see the definition of “excised offshore place” in s 5). The applicant was detained at the Yongah Hill Detention Centre in Northam, Western Australia (YH IDC) from 18 August 2016 to 16 March 2017, and again from 3 April 2017 to 21 April 2017. The applicant was detained at the Perth Immigration Detention Centre (P IDC) from 16 March 2017 to 3 April 2017.
The seven witnesses who gave evidence on behalf of the respondent each swore an affidavit which was tendered as their evidence-in-chief. None of them were required for cross‑examination.
Each of the seven witnesses had an involvement with the applicant during a particular period or periods within the relevant period. Each witness gave evidence of a belief as to the applicant’s status during the particular period, but did not give evidence of a belief as to the applicant’s status before or after the period of their involvement with the applicant. In other words, none of the seven witnesses suggested that with respect to periods outside the particular period relevant to them, the applicant was being held by others on their behalf.
Before considering the evidence of the seven witnesses in more detail, it is convenient to summarise the facts established in relation to the matters identified in the previous paragraph.
Witness
Position
Period of detention of the applicant
Lawful detention under s 189 of the Act – conceded or disputed by the applicant
Mr Mark Leslie Jamieson
Police Officer
6.30 am to 6.40 am approximately on 9 June 2016
Conceded
Mr Shane David Clifford
Departmental Officer
6.40 am approximately to late in the afternoon (precise time unknown) on 9 June 2016
Conceded
Ms Jennifer Ann Green Departmental Officer and Superintendent of CI IDC Two, possibly three periods:
(1) On or about 24 June 2016 to on or about 23 August 2016;
(2) On or about 24 April 2017 to 19 September 2017;(3) Query as Superintendent of the CI IDC from about October 2017 to 12 February 2018
Disputed Ms Ivy Entoria Drucator
Departmental Officer
23 August 2016 to January 2017
Disputed
Mr Dale Glyn Jones
Field Compliance Officer
For a short period around 12.21 pm on 16 September 2016
Conceded
Mr Paul Godfrey
Departmental Officer
Approximately 9 January 2017 to 7 March 2017
Disputed
Ms Nadia Khalil Departmental Officer About 17 January 2018 to about 12 February 2018 Disputed
In 2016, the Department was known as the Department of Immigration and Border Protection and, in 2018, it was known as the Department of Home Affairs. I will simply refer to it throughout these reasons as the Department.
It will be apparent from the above table that there are periods within the relevant period in relation to which there is no evidence from a witness of their involvement with the applicant and their state of mind during that involvement.
I turn now to set out my findings with respect to the seven witnesses who gave evidence on behalf of the respondent.
As I have previously said, the Minister’s First Cancellation Decision was made on 3 June 2016.
In June 2016, there was a joint operation between the Department and South Australia Police (SAPOL) known as “Operation Ravelin” which involved the detention under s 189 of the Act of persons whose visas had been cancelled by the Minister. The applicant was identified as one such person. Mr Jamieson was a member of SAPOL. He was given the task of detaining the applicant. He attended a meeting with officers of the Department on 8 June 2016. As a result of the briefing he received, he suspected that the applicant was an unlawful non-citizen. He continued to hold that suspicion the following day when he detained the applicant at a residential premises in South Australia at approximately 6.30 am. He had the applicant in his custody for approximately 10 minutes and at the end of this period, he transferred him to the custody of an officer of the Department (Mr Clifford) who was in a waiting vehicle. The applicant had flexi-cuffs applied to his hands which were behind his back. Mr Jamieson completed documents evidencing his detention of the applicant and his transfer of custody to Mr Clifford.
In June 2016, Mr Clifford was an Australian public servant who worked in the Australian Border Force which was part of the Department. He attended the meeting on 8 June 2016 referred to by Mr Jamieson and the operation on the following day during which the applicant was detained. At all relevant times, he suspected that the applicant was an unlawful non‑citizen. He took custody of the applicant from Mr Jamieson and completed a “Transfer of Custody” form. He also completed a “Compliance Client Interview” and prepared some detention notes. It is not necessary to set out the details. He accompanied the applicant on a chartered flight to Christmas Island on 9 June 2016. Upon arriving at the CI IDC, Mr Clifford transferred the applicant into the custody of “Departmental security officers” operating at Christmas Island. He cannot now recall the names of those officers into whose custody he transferred the applicant. Mr Clifford does not identify the time when this transfer of custody occurred. Other evidence before me indicates that it was probably late in the afternoon. It is not possible to be any more precise.
As I have said, the applicant accepts that his detention by Mr Jamieson and then by Mr Clifford was lawful in the sense of being authorised by s 189 of the Act. He contends that his detention became unlawful from the point at which Mr Clifford transferred him into the custody of departmental security officers at the CI IDC late in the afternoon on 9 June 2016. The applicant contends that the only way in which the respondent could prove lawful detention from that point was by adducing evidence of an officer who detained the applicant and who held the reasonable suspicion identified in s 189. No such evidence has been adduced.
The applicant also points out, correctly, the following: (1) Mr Clifford’s evidence of the reasonable suspicion held by him does not extend beyond his transfer of the custody of the applicant to the departmental security officers; (2) Mr Clifford said that from that point he had “nothing further to do with the applicant”; and (3) there is no suggestion by Mr Clifford in his affidavit or in the documentary evidence before the Court that the departmental security officers at CI IDC were holding the applicant on behalf of Mr Clifford (see the definition of “immigration detention” set out above at [10]).
Ms Green is an Australian public servant who works in the Department. At the time she gave evidence, she held the position of Superintendent of the CI IDC and she was responsible for the management of the Centre. She assumed that position in “about October 2017”. She commenced her career in the Australian Public Service as a case manager and thereafter she worked in a variety of managerial positions. From February 2016, she was stationed at the CI IDC and held the position of Acting Director of the Status Resolution Section at the CI IDC. She had oversight of all the case managers at the CI IDC.
Ms Green was on leave when the applicant arrived at the CI IDC on 9 June 2016. She returned from leave on 21 June 2016. On 24 June 2016, she assumed the role of the applicant’s case manager and that continued until 23 August 2016. It may be noted that the applicant was detained at the YH IDC from 18 August 2016. Ms Green took over the applicant’s case from a Mr Steven Caruana who was described by Ms Green as another officer working at the CI IDC in June 2016. Mr Caruana did not give evidence. Ms Green was the applicant’s case manager for a second period from about 24 April 2017 to 19 September 2017. Ms Green gave evidence about the role of a case manager, the departmental records concerning the applicant’s status and her suspicion that the applicant was an unlawful non-citizen.
Ms Green’s evidence about the role of a case manager was adopted by the other case managers who gave evidence, that is to say, Ms Drucator, Mr Godfrey and Ms Khalil.
Ms Green said that the role of a case manager involves five broad tasks.
First, a case manager undertakes a case review every month and this includes a consideration by the case manager of whether a particular detainee is an unlawful non-citizen within the meaning of that term in the Act.
Secondly, a case manager will engage in “escalating cases, where necessary, with other relevant areas of the Department”. Ms Green gave two examples of when this was done. First, a typical example might include fast-tracking a person’s removal from Australia where the person has made a written request for this to occur under s 196(1) of the Act. Secondly, a case manager might escalate a case by taking urgent steps to cross-check a detainee’s status as an unlawful non-citizen where there are doubts as to whether a detainee is an unlawful non-citizen and, therefore, whether the detainee can lawfully be kept in detention.
Thirdly, a case manager’s broad tasks include ensuring the detainees they manage have a clear understanding of their immigration status and the progress of their matters.
Fourthly, a case manager’s broad tasks include responding to inquiries or investigations from external bodies in respect of a detainee, such as the Commonwealth Ombudsman.
Finally, a case manager’s broad tasks include meeting with the detainees as required, including communicating outcomes of visa applications, cancellation decisions and the outcome of Court hearings.
As I have said, Ms Green identified the departmental records available to case managers to determine a detainee’s status. Ms Green said that she satisfied herself that the applicant was an unlawful non-citizen prior to becoming his case manager. Ms Green said that there was no doubt in her mind from at least 24 June 2016 that the applicant was an unlawful non-citizen. She said that she maintained that suspicion at all times during the first period that she was the applicant’s case manager. Ms Green then said the following:
15.I also understand from my review of the types of documents and information referred to in paragraph 11 above in relation to the Applicant’s case that, for a very short period of time on 16 September 2016, the Applicant was a lawful non-citizen. This occurred when the Applicant’s challenge to the Minister’s decision was overturned by the Federal Court on 16 September 2016. For the purposes of the second period, I was aware before I commenced my role as case manager for the second period that, despite the Court ruling in the Applicant’s favour, the Minister exercised his power again, within a short period of time on 16 September 2016 to re-cancel the Applicant’s visa under s 501(3)(b) of the Act. Upon learning of that cancellation decision, I understood, from my review of material outlined in paragraph 16 below, that the Applicant was a lawful non-citizen for a short window of time on 16 September 2016 between the Court’s decision and the Minister’s subsequent decision.
16.As indicated, by the time I commenced the second period as the Applicant’s case manager on or about 24 April 2017, I had appraised myself of the relevant documents on TRIM relevant to the second visa cancellation. This was done in accordance with my usual practice. In particular, I recall viewing TRIM around 24 April 2017 in relation to the CCI completed by Dale Jones — the compliance officer who served the Applicant with the Minister’s decision on 16 September 2016. Annexed and marked JAG4 is a copy of that document.
17.Having sighted JAG4 on or around 24 April 2017, I had, from that time, a reasonable suspicion that the Applicant was an unlawful non-citizen because it contained the same level of information as JAG1 to cause me to form that suspicion. I held a reasonable suspicion that the Applicant was an unlawful non-citizen throughout the second period.
As I have said, Ms Green became the Superintendent of the CI IDC in about October 2017. She said that it was part of her role as Superintendent to ensure that unlawful non-citizens are detained in the CI IDC. She said that she suspected that the applicant was an unlawful non‑citizen beyond the time she was his case manager, that is, from 19 September 2017 to 12 February 2018. The applicant was released from detention on 12 February 2018. Up until that time, Ms Green reasonably suspected that the applicant was an unlawful non-citizen.
Ms Drucator is an Australian public servant. She works in the Department. She was the applicant’s case manager from 23 August 2016 to January 2017. She said that the applicant was transferred from the CI IDC to the YH IDC on about 18 August 2016. His case was regarded as being sensitive because he was alleged to be a member of an outlaw motor cycle gang. Ms Drucator met with the applicant approximately every month during her time as the applicant’s case manager. Ms Drucator’s practice before taking on the role as case manager of a detainee was to check departmental records in relation to a detainee’s case. Ms Drucator believed that she followed her usual practice in the case of the applicant. She believed that she checked the Compliance Client Interview form which had been completed on 9 June 2016 prior to becoming the applicant’s senior case manager on 23 August 2016. Ms Drucator states that she held a reasonable suspicion before 23 August 2016 and at all times afterwards until 16 September 2016 that the applicant was an unlawful non-citizen. She said that if she was not satisfied that the applicant was an unlawful non-citizen she would have taken immediate steps “to escalate the matter within the Department to ensure that he was released from detention”. That was not the case, however, and Ms Drucator said she was satisfied that the applicant’s detention, which was ongoing from the time he arrived at the YH IDC, should continue.
Ms Drucator said in her affidavit that she was alert to the possibility in connection with the events that occurred on 16 September 2016 that the Minister would again exercise his power to cancel the applicant’s visa under s 501(3)(b) of the Act. She said that from her recollection alone, she recalls that the Department’s National Office called her in the days preceding 16 September 2016 to indicate that it was working on a further submission for the Minister’s consideration, should the Federal Court allow the applicant’s challenge to the Minister’s First Cancellation Decision. She has not been able to locate any notes or emails relevant to that conversation.
Although Ms Drucator could not recall the precise details, she was able to say that she was informed that the Minister made a second decision on the morning of 16 September 2016 and shortly after the orders made by the Court quashing the First Cancellation Decision. Ms Drucator said that it was possible that Mr Jones, the compliance officer who attended on the applicant at the YH IDC on 16 September 2016 to hand the applicant the decision package, notified her of that development. Ms Drucator said that irrespective of how she was notified, she is confident that she held a reasonable suspicion that the applicant was an unlawful non‑citizen shortly after the orders quashing the First Cancellation Decision and the Minister’s Second Cancellation Decision on the morning of 16 September 2016.
Ms Drucator said that at all relevant times she reasonably suspected that the applicant was an unlawful non-citizen. She said that she turned her mind to the question of the applicant being an unlawful non-citizen and, “since he was already detained, there was nothing further to do on my part to alter that detention”.
Mr Jones is an Australian public servant and in September 2016 he was employed in the Department as a field compliance officer. That role required him to locate foreign nationals in the community who were unlawful non-citizens or who were working in breach of their visa conditions. Upon locating such persons, Mr Jones was trained to engage with the individuals to confirm their identity and circumstances, and to ascertain their intentions. He said that he would generally make decisions to regularise the status of those individuals whom he identified to be unlawful, either by way of a grant of a temporary visa, or by detaining them if required under s 189 of the Act.
In the days before 16 September 2016, Mr Jones was aware that the Minister and the applicant were engaged in litigation in this Court. He said in his affidavit that he was aware of the possibility that the Minister’s decision to cancel the applicant’s visa under s 501(3)(b) of the Act in June 2016 could be set aside by this Court. Mr Jones said that he cannot recall how he became aware of that fact, but it could have been by the receipt of an email.
By reason of his duties, Mr Jones was on the alert on 16 September 2016, being the date the Court was expected to make a decision in relation to the First Cancellation Decision. In other words, Mr Jones was on standby as a field compliance officer to attend on the applicant at the YH IDC with a fresh decision by the Minister to cancel the applicant’s visa under s 501 of the Act. At that point in time, Mr Jones was only alerted to the possibility that the Minister might make a fresh decision. He said that he was not aware that it was by any means a certain outcome.
At some time on the morning of 16 September 2016, Mr Jones was in the proximity of the Western Australian (WA) State Territory Office and was advised of the fact that the Court had made orders setting aside the First Cancellation Decision and that the Minister had made a fresh decision under s 501(3)(b) of the Act to cancel the applicant’s visa. That is the Second Cancellation Decision. Mr Jones refers to an email chain which accords with his independent recollection. A bundle of documents relating to the Second Cancellation Decision was sent by an officer at the Minister’s office, Ms Sarah Harris, at 9.10 am (AWST) or 10.40 am (ACST). A recipient of the email was Ms Jo Prior, who, at 9.16 am (AWST) emailed a copy to Mr Byron Nunn with the notation “FYSA”, which Mr Jones understood to mean “For Your Situational Awareness”.
Mr Jones attended at a work station at the WA State Territory Office and at that place he accessed and then printed the documents that needed to be delivered to the applicant. He then reviewed them and from that point he suspected that the applicant was an unlawful non-citizen. This occurred at around 10 am (AWST).
Mr Jones drove to the YH IDC to notify the applicant of the Second Cancellation Decision. The journey takes more than an hour. He arrived at the YH IDC at about midday. He attended the interview area and interviewed the applicant. At that time, he suspected that the applicant was the person who was the subject of the Second Cancellation Decision, and that therefore he was an unlawful non-citizen. At that point, Mr Jones caused the applicant to be detained under s 189 of the Act. He then provided the applicant with a notification letter and attachments. He completed a Compliance Client Interview form. The time of detention noted on that form is 12.21 pm. After completing the Compliance Client Interview form, Mr Jones went about his duties and had no further interaction with the applicant.
Mr Godfrey is an Australian public servant. He commenced working in the Department in October 2014 and, since that time, he has been working in the service delivery team at YH IDC fulfilling various roles. He was the applicant’s case manager from 9 January 2017 to 7 March 2017. In addition to the description of the role of case manager given by Ms Green (with which Mr Godfrey agreed), he said that in his role as case manager he considered himself to be the “face of the Department” in relation to any requests by a detainee for whom he was the case manager.
Mr Godfrey inherited the role as the applicant’s case manager from Ms Drucator while the applicant was detained at the YH IDC. He said that he could not recall any “official hand over”. He referred to his usual practice in checking departmental records with respect to the applicant’s status and said that that process led him to reasonably suspect that the applicant was an unlawful non-citizen. Mr Godfrey said that as the applicant was already in detention as required by s 189 of the Act, and given that he had formed a reasonable suspicion that he was an unlawful non‑citizen, he did not take any other action to alter that state of affairs. He is confident that he held a continuing suspicion at all times when he was the applicant’s case manager that the applicant was an unlawful non-citizen and was required to be kept in immigration detention.
Ms Khalil is an Australian public servant. She is employed in the Department. She was the applicant’s case manager at the CI IDC from about 17 January 2018 until 12 February 2018. She referred to her practice of checking departmental records to ascertain the status of a person in respect of whom she is to become case manager. She described what she discovered on examining the records of the Department. She said that by the time she became the applicant’s case manager, she had formed a reasonable suspicion that he was an unlawful non-citizen and was required to be kept in detention. She said that nothing came to her attention to cause her to reconsider the applicant’s status as an unlawful non-citizen up to 12 February 2018. She considered the applicant to be an unlawful non-citizen at all times that she was his case manager.
The above is a summary of the evidence of the seven witnesses who gave evidence on behalf of the respondent. Subject to one matter in relation to the evidence of Ms Green, which was in substance an issue as to how an aspect of her evidence should be interpreted, the evidence was not challenged by the applicant and I accept it. What the evidence establishes in terms of the engagement of s 189 of the Act is dealt with in the next section of these reasons.
THE RESPONDENT’S RELIANCE ON SECTION 189 OF THE ACT
It is common ground that the applicant was lawfully detained by Messrs Jamieson and Clifford on 9 June 2016 and by Mr Jones on 16 September 2016. The issue addressed in this section is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil, or any one or more of them, detained the applicant under s 189 of the Act. A further issue is whether there is any other evidence (e.g., documentary evidence) of the applicant being detained under s 189 of the Act.
The elements of s 189 are as follows: (1) The section applies to an officer as defined in s 5. As I have said, it is not in dispute that all of the respondent’s witnesses were officers at the relevant times; (2) The element that an officer knows that the person is an unlawful non-citizen is unlikely to be satisfied where there is a challenge to the cancellation of the visa; (3) The alternative to this element, namely, that the officer reasonably suspects the person to be an unlawful non-citizen, involves a question of fact. The type of matters the Court will consider in deciding whether the suspicion of an officer was reasonable include the following: What inquiries were made before the detention? Was there a decision of the Minister to cancel the respondent’s visa that appeared on its face to be regular and effective? Did the person hold another visa? Did anything happen during the detainee’s detention that raised a question about his or her status? This is not an exhaustive list of potentially relevant matters. (4) The person in the migration zone (s 189(1)) or an excised offshore place (s 189(3)), must be detained by the officer. The definition of the verb “detain” involves two alternatives: take into immigration detention, or keep or cause to be kept, in immigration detention. The definition of “detain” directs attention to the definition of immigration detention which (relevantly) has two limbs: (a) being in the company of, and restrained by an officer or (b) being held by an officer in a detention centre or being held on behalf of an officer in a detention centre.
The applicant does not dispute that during their involvement with him, Ms Drucator, Mr Godfrey and Ms Khalil held a reasonable suspicion that the applicant was an unlawful non‑citizen. They do dispute that circumstance as far as Ms Green is concerned. Ms Green deposed to a suspicion in the first period and a reasonable suspicion in the second period that the applicant was an unlawful non-citizen. Despite that, the applicant submits that there is other evidence from Ms Green which establishes that she misunderstood a key aspect of the matter such that she did not have a reasonable suspicion that the applicant was an unlawful non-citizen. Ms Green’s suspicion was based on a belief that the applicant did not have a visa that was in effect because the Minister had cancelled the applicant’s visa on two occasions, namely, on 3 June 2016 and on 16 September 2016. As I understand it, the applicant accepts that that would be a sufficient basis if it involved Ms Green concluding that, on the face of it, the Minister’s decision was regular and effective (i.e., legally effective). The applicant’s submission is not that Ms Green knew that the Minister’s decision was legally ineffective, but rather that she did not consider the issue or, at least, did not consider the issue properly. The applicant submits that I should conclude from Ms Green’s evidence that she believed that the mere fact that the Minister purported to cancel the applicant’s visa was effective to make the applicant an unlawful non-citizen. The applicant submits that that conclusion should be drawn by reason of two matters. First, Ms Green said in paragraph 14 of her affidavit that she had no doubt that from at least 24 June 2016 the applicant was an unlawful non-citizen. Secondly, Ms Green said in paragraph 15 of her affidavit (set out in [40] above) that as a result of the orders made by the Court on 16 September 2016, the applicant was a lawful non-citizen for a short period of time on that day. That, the applicant submits, was an erroneous understanding of the position because the orders made by the Court meant that the applicant was and always had been a lawful non-citizen. Another way of putting this argument is that Ms Green erroneously believed that the orders made by the Court only had an effect on the applicant’s status in the future and did not affect his status before the orders were made.
I do not accept either of the applicant’s arguments. As to the first argument, that should be rejected because I consider that, reading Ms Green’s affidavit as a whole, she is deposing at all times to a reasonable suspicion that the applicant was an unlawful non-citizen, rather than knowledge that the applicant was an unlawful non-citizen. As to the second argument, that must also be rejected because there is no reason to conclude that Ms Green did not think the Minister’s cancellation decisions were regular and effective and the important point, it seems to me, is that Ms Green considered the cancellation decisions to be regular and effective to cancel the applicant’s visa so that he no longer held a visa and was an unlawful non-citizen. In my opinion, in terms of holding a reasonable suspicion that the applicant was an unlawful non‑citizen, Ms Green is in the same category as Ms Drucator, Mr Godfrey and Ms Khalil.
The facts as I have found them raise two issues in relation to s 189. The first issue then is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil, all of whom had a reasonable suspicion that the applicant was an unlawful non-citizen during the periods they identified, detained the applicant. What is required to establish that the officer with the reasonable suspicion is the officer detaining the person? The second issue is whether s 189 operates in relation to those periods where there is no evidence that an officer reasonably suspected the applicant to be an unlawful non-citizen.
It is appropriate at this point to examine the respondent’s submissions in support of its case that s 189 was engaged throughout the whole of the period of the applicant’s detention. For the most part, those submissions are set out in paras 20 to 23 of the respondent’s written submissions dated 20 May 2019. The submissions are quite brief and it is fair to say, I think, that the respondent placed primary reliance on s 196(4) and (5)(b) of the Act in support of its case that the applicant’s detention was lawful.
The respondent’s first submission is that the word “officer” is widely defined in s 5 of the Act and the meaning of officer is not to be curtailed or limited by policy documents or administrative duty statements of various positions held in the Department, such as those statements identified by the applicant. This submission is put by the respondent in response to the applicant’s reliance on statements in a policy manual issued by the Department and, in particular, a section entitled “Immigration detention and the powers to detain” in Policy Advice Manual 3 (PAM 3). The relevant section is set out below in the section dealing with the submissions and arguments concerning nominal damages (at [164]). The applicant accepts that “officer” is widely defined in s 5 of the Act, but relies on statements in PAM 3 that, in order to exercise the power in s 189, departmental officers must be appropriately trained field compliance officers or airport officers. Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil are not said to be field compliance officers. The applicant’s argument is, as I understand it, not that the policy curtails the operation of the Act, but that it is suggestive that none of those persons were in fact detaining the applicant. On the face of it, there is force in that argument. On the other hand, there may be an argument that the statements in the policy manual are restricted to the initial act of detention. I have decided that Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil were not detaining the applicant by reference to other matters and, in the circumstances, it is unnecessary for me to resolve this issue.
The respondent’s second submission is that each of the deponents were “officers” within the meaning of the Act at the relevant times identified in their evidence and were authorised (and required) under the Act to detain the applicant once they formed a reasonable suspicion under s 189(1) or (3) following the First Cancellation Decision or the Second Cancellation Decision. Having formed the relevant reasonable suspicion, the detention of the applicant was authorised by s 189(1) of the Act. These propositions are correct and, in the case of Messrs Jamieson, Clifford and Jones, the officers had the required suspicion and they detained the applicant. Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil each held the required suspicion, but what the foregoing propositions do not address is whether they detained the applicant. Before leaving this submission, I will address a further submission by the respondent to the effect that I should find that persons who did not give evidence, but who are identified in the affidavits and the documentary records, were also “officers” within the Act. One example is given in the respondent’s written submissions and that is Ms Green’s reference to the fact that the applicant’s case was transferred to her by Mr Caruana, “another officer who I knew to be working with the Department on CI IDC in June 2016”. Ms Green goes on to say that Mr Caruana is no longer employed by the Department. It is not clear to me what I am asked to make of this evidence. I am prepared to accept that Mr Caruana was an officer who had control of the applicant’s case and that he transferred it to Ms Green. However, Mr Caruana has not given any evidence in the case and, in particular, he has not given evidence that he held a reasonable suspicion that the applicant was an unlawful non-citizen. It is perhaps also convenient to note in this context that the respondent made reference to an email from Mr Matthew Kane to other members of the Department on 16 September 2016 at 8.30 am (AWST) or 10 am (ACST). The contents of that email are set out below and discussed at some length (at [249]). The respondent said in the course of oral submissions that that email is relied upon. Mr Kane was not called to give evidence. It is not clear to me if it is relied upon in relation to the respondent’s s 189 and s 196(4) and (5)(b) arguments and, if so, how it is relied upon. As I have said below, the evidence would not support a finding that Mr Kane detained the applicant (at [250]).
The respondent’s third submission, or perhaps in further development of its second submission, is that “even if an officer who himself/herself is not actually causal in, or responsible for, a person’s detention, in the way that may be required by Fernando [Footnote 2], the fact that the officer has a reasonable suspicion that the applicant is an unlawful non-citizen is nonetheless relevant”. The relevance of the fact is said to be that, noting s 189 places on an officer an obligation to detain, the fact means that the applicant’s detention was inevitable and this circumstance is relevant to the respondent’s submission in relation to nominal damages.
The reference in this section of the respondent’s written submissions to Fernando is a reference to Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 (Fernando (No 1)). The footnote is in the following terms:
The Commonwealth accepts that a single judge is bound to follow Fernando, but does not concede its correctness and reserves the right to contend before another Full Court that it (wholly or in part) contains error and is plainly wrong. Nor does the Commonwealth concede that a reasonable suspicion under s 189 must (in a subjective sense) continue in the mind of the officer for that officer’s reasonable suspicion to continue to justify detention under s 189. That is particularly so where s 196 comes to determine the length of the detention.
I do not need to pause on the reference to s 196 of the Act. That section is addressed below in detail. Otherwise, the footnote contains two propositions which can be expressed separately, albeit they probably overlap. The first proposition identified in the footnote relates to whether it is sufficient for the purposes of s 189 that an officer, other than the detaining officer, has a reasonable suspicion or whether it is necessary that the detaining officer has the reasonable suspicion. As I understand the footnote, the respondent accepts that Fernando (No 1) held that the latter is the correct position and that I am bound by Fernando (No 1). As I will explain, I consider that the position taken by the respondent is correct. The second proposition is that under s 189, and leaving aside whatever effect s 196 might have, it is not necessary for an officer or officers to hold a reasonable suspicion throughout the period of a detainee’s detention. The respondent’s submission appears to be that the opposite of this proposition is not conceded. I reject this submission. As I will explain, for the purposes of s 189, an officer or officers must hold a reasonable suspicion throughout the detainee’s detention.
This then is a summary of the respondent’s written submissions with respect to s 189. The respondent did not put a great deal more in support of its s 189 case in oral submissions. The respondent made the point that where a person is already in immigration detention, then “one can keep the person in immigration detention by being satisfied that they’re an unlawful non‑citizen and leaving them there, not taking any action to remove that situation”. As I will explain, this submission does not meet the point made by the applicant.
I return to the footnote and start with the second proposition I have identified. The issue was considered by Jagot J in Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 (Guo). After analysing at length the decisions in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (Ruddock v Taylor) and Fernando (No 1), her Honour concluded that those decisions supported the following propositions (at [83]):
(1)for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen;
(2)for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person’s detention held a reasonable suspicion that the person was an unlawful non-citizen;
(3)the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen;
(4)as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen;
(5)similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen;
(6)whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct;
(7)the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and
(8)the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.
With respect, I agree that those propositions follow from Ruddock v Taylor and Fernando (No 1).
An immediate consequence of this conclusion is that, with respect to those periods of the applicant’s detention where there is no evidence of an officer holding a reasonable suspicion, the detention is not authorised by s 189.
Turning then to what I have identified as the first (and related) proposition put in the footnote, that is, that the reasonable suspicion must be held by the detaining officer and it is not sufficient in order to satisfy the requirements of s 189 that one officer detain and another hold the required reasonable suspicion. As the above propositions formulated by Jagot J in Guo indicate, that was also the view of her Honour. I agree with that view, subject to it being understood that a detaining officer includes an officer who is causing a person to be kept in immigration detention, and it is sufficient for me to refer to the definitions of “detain” and “immigration detention” in the Act and passages from the decision in Fernando (No 1).
As I have previously said, “detain” and “immigration detention” are defined in s 5 of the Act. The word “detain” appears in s 189, but the expression “immigration detention” does not. The expression does appear in the definition of detain and in s 196. It seems reasonably clear that paragraph (a) of the definition of detain, that is, taking into immigration detention, relates to the first limb of the definition of immigration detention being (relevantly) in the company of, and restrained by, an officer, and paragraph (b) of the definition of detain, that is, keeping or causing to be kept in immigration detention relates to the second limb of the definition of immigration detention, being (relevantly) held by or on behalf of an officer in a detention centre established under this Act. It follows that for Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil to have detained the applicant they must have kept or held him, or caused him to be kept in the sense that another person is detaining the applicant on his or her behalf in immigration detention.
In Graham v Minister for Immigration and Border Protection [2018] FCA 1012; (2018) 265 FCR 634 and, in the context of an argument that there was an implied duty in the Act on those in charge of places referred to in paragraph (b) of the definition of “immigration detention” to receive detainees on request, Tracey J said (at [90]):
The textual source of the pleaded implied duty is the definition of “immigration detention”. The second limb of the definition refers to places where an unlawful non-citizen may be detained. A duty cannot be imposed upon a “place”. The words in the definition of “immigration detention” are not apt to impose a duty upon a manger of a State prison because the words used assume that detention remains the responsibility of the relevant “officer”. It does not purport to impose a duty upon anyone else and, in particular, does not provide any basis to identify which persons associated with places in paragraph (b) of the definition of “immigration detention” are subject to the implied duty. Properly construed these provisions contemplate that the persons associated with the places of detention reach an arrangement or agreement with the detaining “officer” such that the non-citizen is detained thereafter “on behalf of” that officer in the relevant institution.
In Fernando (No 1), the Full Court said (at [69], [84], [97] and [100]):
69Nonetheless, s 189(1) operated to require an officer to whom it applied to detain a person in both senses of “detain”, namely it required an officer with the requisite state of mind to take the person into immigration detention either by physically depriving the person of his or her liberty or transforming the nature of the custody or detention in which the person was held, such as serving a term of imprisonment, into immigration detention. Once the person had been detained, by being taken into detention within the meaning of the first sense of “detain”, ss 189(1) and 196(1) required the initial detaining officer and all other officers with the requisite state of mind, to keep the person, or cause him or her to be kept, in immigration detention.
84The Commonwealth’s argument did not exhaust or exclude the application of s 189(1) to the persons who actually took Mr Fernando into immigration detention. The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen. As Lord Atkin explained in Liversidge v Anderson [1942] AC 206 at 245 (in his speech that was approved in George v Rockett (1990) 170 CLR 104 at 112, itself a case based on a claim of false imprisonment):
“… the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of opinion that they cannot.”
97In those circumstances, the Court should not draw the serious conclusion that perhaps one of the people connected to ACM or the Department to whom Mr Fernando spoke on 6 October 2003, was an “officer” who also formed the state of mind that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen and he or she was then and there taking him into immigration detention. In any event, this was not a case that the Commonwealth pleaded, let alone proved, to justify its detention of Mr Fernando. Once Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so.
100Here, there was no evidence that, at any time during his immigration custody, any officer, as defined, ever took Mr Fernando into detention or kept or caused him to be detained there with any state of mind required in s 189(1). The Commonwealth called no witnesses who were involved in the detention of Mr Fernando other than Ms Lockhart.
In light of the conclusions which I have reached to this point, the remaining issue is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil detained the applicant at the times each of them was the applicant’s case manager and, in addition, in the case of Ms Green, for the period she was the Superintendent of the CI IDC.
The first point to note is that none of Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil gave evidence that they detained the applicant. That is to be contrasted with the evidence of Messrs Jamieson, Clifford and Jones who each said that they detained the applicant at the time of their involvement with him. Furthermore, Ms Drucator, if she was detaining the applicant, did not explain how Mr Jones’ detention of the applicant on 16 September 2016 affected her detention of the applicant during her period as the applicant’s case manager.
The second point to note is that there are no documents put before the Court to show that the case managers were detaining the applicant, or that there was a transfer of his detention from one case manager to another, or that he was being detained on behalf of any of the case managers.
The third point to note is that there was no separate submission made by the respondent about the effect of Ms Green’s position as Superintendent of the CI IDC from about October 2017 to 12 February 2018. I have decided that the case managers did not detain the applicant. In the absence of a submission, I do not propose to treat Ms Green’s position as Superintendent any differently.
The final point to note is as follows. Of the broad tasks undertaken by a case manager, the only task which might suggest that the case managers detained the applicant is the second task. I have described that task above. However, I consider that that task falls short of what is required for it to be said that they were detaining the applicant. I am reluctant to formulate a test in the absence of detailed submissions. I can say that there must be an element of control over the applicant’s detention, either as the decision-maker in terms of whether the applicant’s detention continues or a direct involvement in the decision-making process. Escalating cases with other relevant areas of the Department does not meet either of those criteria.
The respondent also submits that I should infer that the requirements of s 189 were met throughout the applicant’s detention. It submits that his initial detention was lawful and nothing appears to have changed during his detention (Ruddock v Taylor at [51] per Gleeson CJ, Gummow, Hayne and Heydon JJ). There is some force in that submission insofar as the requirement of an ongoing reasonable suspicion is concerned. However, the respondent called evidence as to a reasonable suspicion during some periods within the relevant period, but provided no explanation for the absence of evidence in relation to other periods. More significantly, there is no evidence that the officers who held the reasonable suspicion (to the extent that is proved) were the persons who detained the applicant.
In conclusion, as far as s 189 is concerned, the initial detention of the applicant by Messrs Jamieson and Clifford on 9 June 2016 and by Mr Jones on 16 September 2016 was authorised by s 189 of the Act. The applicant’s detention thereafter, in the periods for which there is no evidence from the respondent of a detaining officer (or indeed any officer) holding a reasonable suspicion that the applicant was an unlawful non-citizen, was not authorised by s 189 because that section requires a detaining officer or officers to hold a reasonable suspicion at all times during a person’s detention. With respect to those periods in which one of Ms Green, Ms Drucator, Mr Godfrey or Ms Khalil was the applicant’s case manager, although each of them held a reasonable suspicion that the applicant was an unlawful non-citizen within s 189, none of them detained the applicant and the detaining officer is the officer who must have the reasonable suspicion referred to in s 189 of the Act.
THE RESPONDENT’S RELIANCE ON SECTION 196 OF THE ACT
The Proper Construction of s 196(4) and (5)(b)
The respondent submits that the applicant’s continued detention after his initial lawful detention on 9 June 2016 by Messrs Jamieson and Clifford under s 189 and again after his initial lawful detention on 16 September 2016 by Mr Jones under s 189 was authorised, and indeed required, by s 196(4) and (5)(b) of the Act. The respondent submits that if this is correct, then should I conclude (as I have) that there is no evidence of compliance with s 189 during the applicant’s continuing detention or any part thereof, nevertheless, that did not affect the lawfulness of the applicant’s continuing detention.
The applicant submits that s 196(4) and (5)(b) should not be construed in the manner advanced by the respondent and he advances a narrower construction of the subsections. Therefore, the first issue to be addressed is the correct construction of s 196(4) and (5)(b). The applicant submits in the alternative that if the correct construction of s 196(4) and (5)(b) is the construction advanced by the respondent, then those subsections are, to that extent, constitutionally invalid and it should be held that the subsections do not operate beyond the applicant’s narrow construction. The basis of the applicant’s constitutional challenge is that the operation of s 196(4) and (5)(b) in the manner advanced by the respondent would contravene the investment of the judicial power of the Commonwealth in Ch III Courts (Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) at 10 per Mason CJ), or to use the words of Brennan, Deane and Dawson JJ in the same case (at 33), that operation “will contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates”.
I begin with the correct construction of s 196(4) and (5)(b). The construction of the statutory provisions “will give effect to the ordinary meaning of [the] text in the wider statutory context and with reference to the purpose of its [provisions]” (North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (North Australian Aboriginal Justice Agency v Northern Territory) at [11] per French CJ, Kiefel J (as her Honour then was) and Bell J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ).
The applicant submits that the construction of s 196(4) and (5)(b) which he advances, although involving a gloss on the statutory provisions, is less of a gloss than that involved in the construction advanced by the respondent. His construction involves reading s 196(4) as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”, whereas the respondent’s construction involves reading the said words as if they read “if the person was detained and the detention was initially lawful under s 189”. These alternative formulations highlight the point of difference between the parties. On the applicant’s proposed construction, s 196(4) is not a separate source of a power (and obligation) to detain and the requirements of s 189 must be met at all times during a person’s detention. On the respondent’s proposed construction, the requirements of s 189 need only be met at the time of the initial detention of the person.
In my opinion, the parties are correct to proceed on the basis that s 196(4) and (5)(b) are predicated on at least an initial lawful detention under s 189. There are two indicators of this. First, s 196(1) identifies the subject matter of the whole section and it provides for the keeping of a person in immigration detention after he or she has been detained under s 189. Secondly, and perhaps no more than a confirmation of the first point, the reference to “the” person in s 196(4) indicates that the subsection is dealing with a subclass (i.e., persons detained under s 189 as a result of the cancellation of his or her visa under ss 501, 501A, 501B, 501BA or 501F) of the class otherwise dealt with by the section (i.e., unlawful non-citizens detained under s 189).
In my opinion, s 196(4) is capable of being read as requiring only an initial lawful detention under s 189, or as requiring an ongoing lawful detention under s 189.
Part of the constructional exercise where two constructions are open involves a consideration of the operation of the statutory provisions on each of the constructions advanced.
Although the respondent’s proposed construction would overcome difficulties for a detaining party in cases where it encountered difficulties of proof or where the reasonable suspicion required by s 189 was held by officers, but not by those officers detaining the persons, logically it would also cover cases in which no officer held the reasonable suspicion required by s 189 and furthermore, cases where officers or members of the Department knew or believed that the person detained was not an unlawful non-citizen. I am not suggesting that the latter circumstances are established in this case, but that is not the point. The point is the latter circumstances would fall within the operation of the subsections on the construction advanced by the respondent. In the latter circumstances, the person detained could not be released without the final determination of a court, possibly on the application of the respondent, that the person’s detention is unlawful or that he or she is not an unlawful non-citizen. In my respectful opinion, it seems unlikely Parliament would intend the system of the detention of unlawful non-citizens or those reasonably suspected of meeting that description to operate in a way that would have that consequence. There is a further point about the operation of the subsection on the respondent’s interpretation. The two events, either of which will bring the detention to an end, are a final determination by a court that the detention is unlawful or a final determination by a court that the person detained is not an unlawful non-citizen. The applicant submits that the first event will never occur on the respondent’s construction because, as a result of that construction, the person’s detention will never be unlawful and this would mean that the only effective terminating event is the second one (i.e., a final determination that the person detained is not an unlawful non-citizen). This appears to be correct and means that, unlike the applicant’s construction, the respondent’s construction results in a phrase being “superfluous, void, or insignificant”, to use the words of Griffith CJ in The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 (referring to R v Berchet (1690) 1 Show KB 106); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ. This is a reason to support the applicant’s construction of s 196(4).
The applicant submits that the principle of legality supports the construction he advances. The steps in his argument are as follows. First, he points out, correctly, that the right of personal liberty is the most elementary and important of all common law rights (Trobridge v Hardy at 152 per Fullagar J; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 per Mason and Brennan JJ). Secondly, the principle of legality means that in the construction of a statute it will be assumed that Parliament did not intend to abrogate or curtail certain human rights or freedoms unless the intention to do so is clearly manifested by unambiguous language. There are many statements of this approach in the authorities. A well‑known statement is that made in the joint reasons of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 (at 437):
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
(See also North Australian Aboriginal Justice Agency v Northern Territory at [11] per French CJ, Kiefel and Bell JJ; Electrolux Home Products Pty Ltd v The Australian Workers’ Union [2004] HCA 40; (2005) 221 CLR 309 at [19]–[22] per Gleeson CJ; Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1 at [42]–[43] per French CJ.)
A statement of the approach made in the particular context of administrative detention by the Executive is that of Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb v Godwin) (at [19]–[20]):
Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness” .
A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
(Citation omitted; see also Mason CJ in Lim at 12.)
In Fernando v Commonwealth of Australia (No 5) [2013] FCA 901, Siopis J would have awarded Mr Fernando the amount of $265,000 in relation to a period of detention of 1,203 days, in the event that his Honour was wrong to award no more than nominal damages (see [139]). Mr Fernando gave evidence that he suffered anxiety and stress during the period of his detention and that he was treated for depression during and after his period of detention (see [130]). Mr Fernando also claimed that he had lost employment and educational opportunities and the capacity to earn an income by reason of his detention (see [131] but cf [136]–[137]). His Honour considered that Mr Fernando’s evidence did not suggest that he was subjected to a harsh “strict protection regime” (cf Taylor v Ruddock) or that he feared for his life at the hands of inmates (cf Nye v State of New South Wales [2003] NSWSC 1212) (see [138]).
Having regard to the authorities to which the applicant referred and the evidence relating to the applicant’s arrest and detention, had I been required to do so, I would have assessed compensatory damages in the amount of $125,000. In reaching this figure, I have considered all the matters to which I have referred, with particular emphasis on the following: (1) compensation is not to be awarded, as it has been in other cases, for the initial shock of arrest; (2) compensation is to be awarded for a lengthy period of unlawful detention and the detention is a serious matter which involves a grave interference with the rights of the individual (Goldie at [17]); and (3) there is no evidence of the conditions of the applicant’s detention or of the effects of it upon him.
Exemplary Damages
In Uren v John Fairfax & Sons Pty Limited [1966] HCA 40; (1966) 117 CLR 118 at 149, Windeyer J described the difference between aggravated damages and exemplary damages in the following terms:
… that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment — moral retribution or deterrence.
A littler later, his Honour, in discussing exemplary damages, referred to a cynical disregard of the plaintiff’s rights by a calculating defendant and posed the question of whether there was evidence in the case of conduct by the defendant “which could merit punishing it by awarding a greater sum to the plaintiff?” (at 154).
In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1984] HCA 12; (1985) 155 CLR 448, Gibbs CJ (at 461) described the conduct of the defendant in that case as conduct undertaken without a care as to whether it was lawful or not and as showing “a high-handed and outrageous disregard of the [plaintiff’s] rights”, Brennan J said (at 471):
As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v. Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying: ‘I wish to know, in a case where man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’
(Citation omitted.)
This passage from the reasons of Brennan J was cited with approval by the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (Lamb v Cotogno) (at 11).
The Court in Lamb v Cotogno also made it clear that the purposes behind an award of exemplary damages included not only moral retribution and deterrence (both general and specific), but appeasement and in order to mark the Court’s condemnation of the defendant’s behaviour (at 10). The Court also said that the act or conduct said by the plaintiff to form the basis of his or her claim for exemplary damages must have been performed by the defendant intentionally (although not necessarily maliciously) or recklessly.
In Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1, Gleeson CJ, McHugh, Gummow and Hayne JJ said that the circumstances in which exemplary damages may be awarded could not be reduced to a single formula and that the phrase used by Knox CJ in Whitfield v De Lauret and Company Limited [1920] HCA 75; (1920) 29 CLR 71 at 77 “conscious wrongdoing in contumelious disregard of another’s rights” — described at least the greater part of the relevant field.
The applicant made a claim for aggravated damages in his Originating application, but I did not understand him to pursue such a claim in closing submissions. In any event, such a claim cannot succeed in light of my conclusion that the applicant is not entitled to compensatory damages and is only entitled to nominal damages (Fernando (No 2) at [97]).
In support of his claim for exemplary damages, the applicant referred to events between 12 September 2016 and 16 September 2016. The significance of 12 September 2016 is that at some time during the afternoon of that day, Mr Peter John Dwyer made a decision in consultation with the Department’s Australian Government Solicitor’s (AGS) “out-posted” special counsel to concede the First Judicial Review Proceeding. Mr Dwyer’s recollection is that the decision was made after 2 pm (AEST) and before 5 pm (AEST). Mr Dwyer is a solicitor and Australian public servant and, at the relevant time, he held the position of Director, AAT and Removal Injunction Section within the Legal Advice and Operational Support Branch of the Department. The Branch is part of the Legal Division. Mr Dwyer’s role as Director included making decisions of a more significant or strategic nature, or both, in relation to matters in which he was involved or otherwise had supervisory oversight. Mr Dwyer was consulted by Ms Marian Kijirah, a senior legal officer in his section, the AGS and the counsel team briefed from time to time in relation to the decision to concede the First Judicial Review Proceeding. Ms Kijirah was the person who provided the day-to-day instructions to the AGS.
The significance of 16 September 2016 includes, as I have previously said, the fact that at approximately 9.20 am (ACST), this Court, in the First Judicial Review Proceeding, quashed the First Cancellation Decision, and at approximately 9.40 am, the Minister made the Second Cancellation Decision.
It is important to identify the applicant’s submissions with respect to two periods he identified, being the first period from 12 June 2016 when Mr Dwyer made his decision that the First Judicial Review Proceeding would be conceded, to 9.20 am on 16 June 2016 when the First Cancellation Decision was quashed by an order of the Court, and the second period from 9.20 am to 9.40 am when the Second Cancellation Decision was made, and possibly thereafter until 12.21 pm when Mr Jones detained the applicant based on the Second Cancellation Decision.
The applicant’s argument in relation to the first period is that the applicant’s detention was unlawful because s 196(4) and (5)(b) did not authorise the detention and there could be no reasonable suspicion by an officer so as to engage s 189 because Mr Dwyer had decided that the First Judicial Review Proceeding would be conceded. This argument was put in the alternative to the applicant’s more general submission and relates to a specific period within the relevant period. I do not need to consider the argument because I have upheld the applicant’s more general submissions. I do not understand the applicant to contend that exemplary damages should be awarded because of conduct or acts during the first period and, in any event, I would reject such a claim because I do not consider that it was contumelious of the applicant’s rights to await the orders of the Court. However, that does not mean that the respondent’s conduct and acts in the first period are irrelevant to the claim for exemplary damages in relation to the second period because events in relation to the first period are relevant to what the respondent should have been ready to do at 9.20 am (ACST) on 16 September 2016.
The applicant submits that the officers who were aware of the orders of the Court on 16 September 2016 were obliged to take all reasonable steps to ensure that the applicant was released from detention as soon as practicable after the orders had been made. Instead of doing that, the applicant submits that the officers deliberately and knowingly took active steps to facilitate the Minister making the Second Cancellation Decision, which, it transpired, was held to be unlawful in the Second Judicial Review Proceeding, while the applicant’s detention was allowed to continue despite the orders of the Court. The course adopted by the respondent was, the applicant submits, to withhold deliberately the necessary information from the officers detaining the applicant while hastily providing that very same information to the Minister, in order to enable him to make a decision that would prevent the applicant being released from detention. The applicant submits that there is an obvious inference to be drawn from the primary facts and this inference forms the basis of his claim for exemplary damages. The inference is that it was decided “by officers” that it was expedient to detain the applicant, unlawfully, to enable the Second Cancellation Decision to be made without releasing him from detention.
Before turning to the evidence with respect to the two periods, it is important to note a discovery order which I made in this proceeding. It is important to note this because one of the applicant’s submissions is that he has done all he can to put relevant evidence before the Court. On 21 August 2018, I made an order that the respondent give discovery of and (subject to any claim of privilege) to produce, among other classes of documents, “[a]ll documents (including electronic documents and notes of conversations) recording or evidencing any communication between any employees or officers of the Department, relating to Mr Burgess and/or his judicial review proceedings in the period between 1:30 pm on 12 September 2016 and 12:30 pm on 16 September 2016”. In relation to that class of documents, the respondent produced three documents. Claims for privilege were made in relation to other documents. I will refer to the three documents produced in due course. The applicant submits that he has done all he could to put relevant evidence before the Court.
I turn now to the events which occurred in the first period. The evidence in relation to this period consisted of the evidence adduced by the respondent in the Second Judicial Review Proceeding, being an affidavit of Ms Phillippa Jane de Veau and an affidavit of Mr Dwyer.
In December 2016, Ms de Veau was a solicitor and Australian public servant and she held the position of General Counsel and First Assistant Secretary of the Legal Division of the Department. She swore her affidavit in support of the Minister’s claim for legal professional privilege in relation to an order for production of documents sought by the applicant in the Second Judicial Review Proceeding. Ms de Veau produced a “Departmental email chain” with redactions commencing with an email from Ms Kristin McGill to Mr Dwyer on 15 September 2016 at 3.33 pm (AEST) (with other officers copied in) and ending with an email from Mr Dwyer to Ms McGill on 16 September 2016 at 9.41 am (ACST) (with various other departmental officers copied in). Ms McGill is “from the Minister’s Office”. I will need to come back to this last email which is relevant to the second period. Ms de Veau also produced a submission signed by the Minister on 16 September 2016 relating to the Second Cancellation Decision and a departmental note which was the covering document provided to the Minister as a package, together with the other substantive documents which were placed before the Minister when he made the decision to cancel the applicant’s visa on 16 September 2016 under s 501(3) of the Act. Ms de Veau was not required for cross-examination in the Second Judicial Review Proceeding.
In his affidavit, Mr Dwyer said that he was aware that on 13 September 2016 at approximately 2.10 pm (AEST), Ms Kijirah advised the AGS by telephone of the Department’s instructions to concede the First Judicial Review Proceeding. He was aware of various other communications that occurred between the provision of those instructions to the AGS on 13 September 2016 and 15 September 2016 at 11.06 am (ACST) when the AGS sent draft consent orders to the applicant’s solicitors. Mr Dwyer claimed legal professional privilege over those communications on behalf of the Minister. He said that those communications occurred for the dominant purpose of existing litigation or the provision of legal advice. Mr Dwyer said that broadly speaking, it was fair to say that the Department, AGS and the counsel team were engaged in extensive confidential legal communications relating to the process of finalising the proceeding.
Mr Dwyer said that he had reviewed an email by Mr Niall Stoddart. In September 2016, Mr Stoddart was the Assistant Director, Ministerial Services Section from the Ministerial, Parliamentary and Coordination Branch, Executive Division within the policy group of the Department. The email is dated 15 September 2016 at 4.55 pm (AEST) and is directed to a DLO email address. DLO stands for “Departmental Liaison Officer” and, as I understand it, it means the Minister’s office. By that email, the Minister’s office was provided with the relevant documents in relation to the Second Cancellation Decision. The attachments to the email comprised a document of five pages entitled “Submission for Decision” dated 16 September 2016. The attachments also comprised a Departmental Issues Paper, an unsigned statement of reasons and attachments A to Q.
Mr Dwyer was cross-examined in the Second Judicial Review Proceeding and a transcript of his cross-examination was put before me. I will refer to one passage in it later in these reasons.
In the Second Judicial Review Proceeding, the Second Cancellation Decision was quashed because this Court held that the Minister had committed a jurisdictional error because he had not engaged in an active intellectual process in reviewing the materials relevant to the decision. In reaching that conclusion, the Court made various findings about the events surrounding the Second Cancellation Decision. I do not understand the respondent to contend that I cannot rely on those findings in this proceeding.
The Court found on the balance of probabilities that the Minister did not consider the materials provided to him and relevant to the Second Cancellation Decision before Mr Dwyer advised Ms McGill, an adviser to the Minister, by telephone of the orders of the Court in the First Judicial Review Proceeding. This was after Mr Dwyer himself had been advised by telephone of the orders of the Court by a solicitor at the AGS (Mr Paul d’Assumpcao). The Court found on the balance of probabilities that the Minister spent no more than 15 minutes considering the materials relevant to the Second Cancellation Decision.
In September 2016, Mr d’Assumpcao was a solicitor employed by the AGS and the AGS acted for the respondent in the First Judicial Review Proceeding. On 15 September 2016, Mr d’Assumpcao engaged in correspondence by email with the solicitors for the applicant about the First Judicial Review Proceeding. The First Judicial Review Proceeding had been listed for hearing in this Court on 22 September 2016.
By email dated 15 September 2016 at 11.06 am, Mr d’Assumpcao advised the applicant’s solicitors that the AGS was instructed to concede the matter and he enclosed draft consent orders. He invited the applicant’s solicitors to sign the draft orders. The applicant’s solicitors responded shortly thereafter raising the prospect of costs being agreed and agreement being reached about the release of the applicant from detention. The applicant’s solicitors also inquired as to the respondent’s intention in terms of making a further decision. Mr d’Assumpcao responded by saying that he was proposing to ask the associate to advise him when the sealed orders are made so that “I might immediately advise the client”. Mr d’Assumpcao said that he was not in a position to say what further action may or may not be taken. The applicant’s solicitors responded by saying that they were instructed by the applicant to seek an order requiring the applicant’s immediate release from detention and the return of the applicant to Adelaide. By email at 4.33 pm, Mr d’Assumpcao responded in the following terms:
For reasons which follow, we think that the further order your client seeks is unnecessary.
First, if the Court makes orders in the terms which we propose, then at that point your client is no longer an ‘unlawful non-citizen’, as that phrase is to be understood in the context of the Migration Act 1958 (Cth). Also at that stage, there is no factual basis to reasonably suspect that your client is an unlawful non-citizen, and we are instructed that, in the ordinary course, your client would be released from detention and he would be returned to Adelaide.
Secondly, as things stand, once the Court sets aside the cancellation decision, there is nothing to prevent the Minister from making a further decision. That is, the Minister will be free to decide what further decision, if any, he wishes to make in relation to your client. Obviously, if the Minister decides to exercise his personal power to again cancel your client’s visa, then your client will be subject to immigration detention in that event.
Against that backdrop, our client does not agree to the additional order your client seeks as outlined below.
In the circumstances, we would be grateful if you could please signify your consent to the proposed orders, and for us to notify her Honour’s chambers in relation to the orders (as agreed) as soon as possible.
Mr d’Assumpcao’s statements in this email about the legal position are accurate and the applicant did not suggest otherwise. Nor did the applicant suggest that there was anything inappropriate about the respondent sending this email. However, he did make the point that there is nothing in this email to indicate to him that the respondent might adopt the course of not taking any steps to effect the applicant’s release between the making of the Court orders and a further cancellation decision.
On the morning of 16 September 2016, and following further discussions between the parties, the applicant gave instructions to his solicitors to sign the draft consent orders without amendment. That was done and the orders were provided to the Court. The orders provided to the Court were as follows:
We consent, for the purposes of r 39.11 of the Federal Court Rules 2011 (Cth), to the making of orders in accordance with the following terms:
1.An order in the nature of certiorari quashing the decision made by the Minister on 3 June 2016 to cancel the applicant’s visa.
2.An order that the Respondent pay the applicant’s costs to be taxed in default of agreement.
3.The application otherwise be dismissed.
STATEMENT PURSUANT TO PRACTICE NOTE CM3
Certiorari is consented to upon the basis that there was an inadvertent error in the recording of the Applicant’s criminal record, as a result of which the Respondent accidentally took into account an error in the Applicant’s criminal record – namely that he had committed a certain offence: “aggravated assault causing harm against police – no weapon”. That is accepted in the present case to have been a jurisdictional error, applying Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [4]–[8], [32]–[33] per Black CJ and at [50]–[52] and [61]–[64] per Sackville J. That is sufficient to ground certiorari without determination of any other issue.
The consent orders made by this Court at approximately 9.20 am (ACST) on 16 September 2016 were effectively in the same terms as the draft consent orders put forward by the parties, save and except that the statement pursuant to Practice Note CM3 was not included in the orders.
Mr Mitchell Travis Simmons swore an affidavit in this proceeding and the affidavit was tendered by the applicant. Mr Simmons was briefly cross-examined by the respondent. Mr Simmons is and has been the applicant’s solicitor since June 2016. He gave evidence about the correspondence with Mr d’Assumpcao on 15 September 2016 and events at Court on the morning of 16 September 2016. Under cross-examination, he agreed that he was in court on 16 September 2016 and that the following occurred:
Immediately prior to court, the applicant’s counsel provided [the respondent’s legal representatives] with a signed copy of the minute which we sent through yesterday. [The respondent’s legal representatives] signed that copy and provided it to the Court before her Honour came onto the bench.
When the matter was called on, her Honour noted that she had been provided with the consent orders. She asked the parties whether they wanted the orders made, which both Mr Ower and Mr O’Leary said that they did. Her Honour then signed the consent minutes.
Mr Simmons agreed that at the hearing on 16 September 2016, Mr Ower, counsel for the applicant, said something to the effect that he expected his client to be released forthwith and returned to Adelaide and that it would be unfortunate for the Minister to take advantage of the error and make another decision while the applicant was in detention. He agreed that her Honour said something to the effect that there were a number of circumstances at play and that that matter was between the parties. Mr Simmons agreed that as at 5.03 pm on the previous day, the applicant was seeking an additional order, namely his release from detention, and that the applicant was not prepared to sign the draft consent orders at that stage without having that additional order. He agreed that there is no record of the applicant consenting to the orders that were ultimately made by her Honour prior to the applicant’s legal representatives arriving at court on the morning of 16 September 2016. He agreed that the applicant was not consenting to the orders without the additional order being made.
I turn now to the events in the second period.
I have referred to the email from Mr Dwyer to Ms McGill on 16 September 2016 at 9.41 am (ACST) (with various other departmental officers copied in). To recapitulate, that email was preceded by the following:
(1)The orders made by the Court in the First Judicial Review Proceeding made at 9.20 am (ACST);
(2)A telephone call between Mr d’Assumpcao and Mr Dwyer wherein Mr Dwyer was advised that the Court had made the orders;
(3)A telephone call between Mr Dwyer and Ms McGill wherein Ms McGill was advised that the Court had made the orders and that the Minister was free to make a second decision from that time;
(4)A written report by Mr d’Assumpcao of the outcome of the Court proceedings earlier that morning, including advice that in Mr d’Assumpcao’s opinion, the orders made by the Court were effective upon being pronounced. Mr d’Assumpcao’s report was included in Mr Dwyer’s email to Ms McGill; and
(5)The Minister’s Second Cancellation Decision. That was the view of the Court in the Second Judicial Review Proceeding.
Mr Dwyer’s email to Ms McGill referred to his call to her “a few minutes ago” and said that the Minister was “now able to consider the matter again and make a fresh decision”.
Meanwhile, the applicant is in detention at the YH IDC which is more than one hour’s drive from the Perth IDC. I referred earlier to the evidence (so far as it goes) of Ms Drucator (at [43]–[44]) and Mr Jones (at [47]–[49]) of their knowledge of events on 16 September 2016.
I also referred earlier to three documents produced by the respondent in response to the order for discovery I made on 21 August 2018 (at [230]). I need refer to only one of these documents because the other two seem to relate to events later in the day on 16 September 2016.
At 8.30 am (AWST) (10 am (ACST)), Mr Matthew Kane wrote an email to various other departmental officers with respect to consent orders having been made by the Federal Court, recancellation by the Minister and detention. Mr Kane is described in his email as the Senior Legal Officer (A/g) AAT and Removals Injunction Section, Legal Advice and Operational Support Branch in the Department and the recipients include “Yongah Hill Detention Operations”. Mr Dwyer and others were sent a copy of the email. The email is in the following terms:
Sensitive:Legal
Client: BURGESS Paul William
CID 21077103828
Dear All,
The Federal Court in Adelaide (Charlesworth J) has just made an order setting aside the Minister’s decision to cancel Mr Burgess’ visa (see below), however the Minister has immediately re-cancelled that BF – 155 Resident Return Visa. CCMD and Daniel, can you please immediately record the set aside and re‑cancellation in all Departmental systems and advise us once this has been done?
YHIDC Mr Burgess cannot now be released from immigration detention as his visa has been re-cancelled.
DIAC LSAdmin Can you record the FC event in ICSE straight away please?
As I understand it, the applicant does not submit in the context of his claim for exemplary damages that there was anything unreasonable in Mr Kane saying that, in view of the Second Cancellation Decision, the applicant could not be released from immigration detention. However, he does challenge the contention (if it is made) that Mr Kane detained or redetained the applicant. It is not clear to me that that contention is advanced. In any event, it is a proposition which is difficult to sustain. There is no evidence of Mr Kane’s status as a detaining officer, he does give a direction to others to detain the applicant on his behalf, and Mr Jones’ evidence is that he detained the applicant a little over two hours later.
I infer from all the evidence in this case that the first time YH IDC, or any officer directly involved in the applicant’s detention, was informed of the orders made by the Court in the First Judicial Review Proceeding was at 10 am (ACST) on 16 September 2016 which was 40 minutes after the orders were made and 20 minutes after the Second Cancellation Decision was made by the Minister.
The claim for exemplary damages relates to the period of 20 minutes between the Court orders in the First Judicial Review Proceeding and the Second Cancellation Decision. It is instructive in terms of understanding how the applicant puts his argument to note the examples he gave of the circumstances in which a period of 20 minutes would not give rise to an award of exemplary damages. The applicant accepted that, depending on all the circumstances, it is unlikely he would have such a claim had Mr Dwyer, or a person with equivalent knowledge, sent an email to the YH IDC, but no-one had managed to check it or had he tried to telephone the detention centre, but could not get through. Another example the applicant gave was where staff at the detention centre were aware of the orders made by the Court, but there was a delay in completing the necessary paperwork.
The applicant submits that the situation in this case is quite different from those examples. For some days prior to the orders made by the Court, relevant officers of the Department were aware that the First Cancellation Decision was going to be quashed. They took no steps to arrange the release of the applicant at the appropriate time. They did not contact any person at the YH IDC. Instead they took steps to facilitate a decision by the Minister shortly after the Court orders they knew were going to be made. Upon the orders of the Court being made, they did not contact any person at the YH IDC, but rather, facilitated the making of the Second Cancellation Decision. In summary, the applicant submits that the relevant officers knowingly favoured administrative expediency over the applicant’s legal right to be released from detention. The applicant went so far as to suggest that the Minister had a policy to proceed in this way. In that respect, he referred to the decision of the Full Court of this Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) and the findings of the Court (at [122]) as to the existence of a policy within the Department in November 2016 (see also [103], [104] and [106]). There is no evidence of such a policy in this case and I am unable to see how it would be appropriate for me to find that there was such a policy in September 2016 based on what was said in Carrascalao.
The applicant submits that it was also relevant that prior to the Court orders being made on 16 September 2016, the applicant’s solicitors sought an order that he be released from detention upon the making of the orders and that the Minister’s solicitor said that such an order was not necessary.
The applicant relies heavily on the decision in Guo. In that case, Jagot J made an award of $35,000 for exemplary damages in relation to a period of detention of almost a day. Her Honour drew the inference (at [239]) that:
… it was decided by officers including the Director/Principal Legal Officer of the Framework and Training Section, that it was expedient to continue to unlawfully detain Mr Guo to enable the third notification letter to be prepared. This was conscious wrongdoing. It was in flagrant disregard of Mr Guo’s rights. It merits an award of exemplary damages.
Her Honour went on to say (at [240]):
… Its officers, I infer, knowingly and in conscious disregard of Mr Guo’s rights, chose expediency for the Department above the rule of law and the right of the individual to be imprisoned only with lawful justification. That choice was reprehensible. It justifies an award of damages which achieves the objects of both punishment and deterrence. It is of the utmost importance that those in positions of such power always choose the law over expediency; to make the choice of expediency when the liberty of an individual is at stake must not be permitted. The primacy of the rule of law over any such consideration must be safeguarded and vindicated by an award which achieves the dual objects of punishment and deterrence. Even in the case of a person such as Mr Guo, who garners little personal sympathy given his choices in life and patterns of anti-social and criminal conduct by which he squandered the opportunity to make a positive contribution to Australian society, the rule of law must remain paramount.
The applicant submits that similar findings to those in Guo should be made in this case.
For its part, the respondent’s submissions involved the following steps. It submits that no-one could be sure beforehand that the Court would make the orders in the draft consent orders and that s 196(4) and (5)(b) meant that the applicant could not be released from detention until the Court orders were made. Mr Dwyer would not have known that those subsections did not have the wider operation advanced by the respondent in this case.
Next, the respondent submits that there is a difference between what the Minister did or did not do, in terms of considering the material relating to the Second Cancellation decision before he made that decision, and Mr Dwyer’s state of mind. Mr Dwyer was cross-examined in the Second Judicial Review Proceeding on the statement he made in his email to Ms McGill at 9.41 am on 16 September 2016 that the Minister was “now able to consider the matter again and make a fresh decision”. The relevant passage is as follows:
Did you consider that the Minister had a restriction on considering the matter again prior to the making of consent orders?---That — that — I don’t — that’s what I’ve said, but what I intended was that the Minister shouldn’t make a fresh decision prior to the court setting aside the previous decision. And that, essentially, what I intended by that sentence was that the Minister — that the court has set aside the previous decision and the Minister can make a fresh decision. He might have, you know — I don’t know but he had the documentation from the previous evening and, you know, I have — I suspect that — well, I don’t know, but he may have read the documents on the previous evening or earlier that morning. I don’t know. But what I intended was that, essentially he shouldn’t make a decision until the court had set aside the earlier decision. And that’s what I intended by that sentence.
Mr Dwyer was described by the Court in the Second Judicial Review Proceeding as a “forthright witness who gave … reliable evidence in respect of those matters within his personal knowledge and actual recollection” (at [55]).
The respondent’s argument is, as I understand it, that the use of hindsight must be avoided and that Mr Dwyer’s state of knowledge was that the Minister could have considered the material overnight or very early in the morning of 16 September 2016. He would therefore have been in a position to make a second decision very quickly. The argument was that it was not unreasonable in those circumstances for Mr Dwyer to check with the Minister’s office before contacting, or arranging for contact to be made with, persons at the YH IDC.
A further strand of the respondent’s argument is that no-one was keeping the YH IDC “in the dark”, as was suggested by the applicant, and that is made plain by the evidence of Ms Drucator and of Mr Jones and by Mr Kane’s email at 10 am on 16 September 2016.
The difficulty with the respondent’s argument is that it is not supported by sufficient evidence. The timeline is quite unclear. For example, Mr Dwyer’s email at 9.41 am on 16 September 2016 seems to have been sent very shortly after the Minister made the Second Cancellation Decision and it referred to his conversation with Ms McGill “a few minutes ago”. The applicant made an application for discovery and tendered such documents as were made available to him (Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969). Mr Dwyer was not called to give evidence of his state of mind and the actions he took at various points of time with a view to supporting the steps in the argument now advanced by the respondent. It seems to me that I can draw the inferences advanced by the applicant with more confidence in the absence of Mr Dwyer, or indeed, any other witness on the respondent’s side who could give evidence of the relevant events (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 per Kitto J).
I infer from the evidence that no arrangements were made prior to 16 September 2016 to facilitate the applicant’s release from detention on that day and no contact was made with the YH IDC immediately upon the making of the Court orders because he was not going to be released pending a second decision by the Minister. It was anticipated that such a decision would be made within a short period. The applicant had a right to be released. The case is similar to Guo in that the respondent intentionally, or at least recklessly, acted in disregard of the applicant’s rights. An award of exemplary damages is called for. The time period is very short and the case is not as serious as Guo. I consider an award of $15,000 is appropriate.
CONCLUSIONS
The applicant was unlawfully detained for a period of 615 days between 9 June 2016 and 12 February 2018, with the exception of a short period on 16 September 2016. However, he is not entitled to compensatory damages because I find that he could and would have been detained in any event. For the reasons I have given, I would not award what have been referred to as vindicatory damages. The applicant is entitled to nominal damages of $1.00. The applicant is entitled to exemplary damages of $15,000 by reason of the respondent’s actions on 16 September 2016.
On the proper construction of s 196(4) and (5)(b), the constitutional validity of those subsections does not arise.
I will hear the parties on the form of the orders and costs.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 20 May 2020
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Detention
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False Imprisonment
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Compensatory Damages
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Exemplary Damages
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Vindicatory Damages
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Jurisdiction
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Constitutional Validity
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Natural Justice & Procedural Fairness
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