Commonwealth v Okwume

Case [2018] FCAFC 69

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Okwume [2018] FCAFC 69

Appeal from: Okwume v Commonwealth of Australia [2016] FCA 1252
File numbers: SAD 315 of 2016
SAD 317 of 2016
Judges: BESANKO, MORTIMER AND WHITE JJ
Date of judgment: 4 May 2018
Catchwords:

MIGRATION – appeals from orders made by a judge in connection with detention under the Migration Act 1958 (Cth) – where claim for unlawful detention or false imprisonment – where claim for damages and other compensation in relation to detention

MIGRATION – whether the relevant visa was validly cancelled – whether there were jurisdictional errors committed in connection with the decision to cancel the visa – whether there was a failure to comply with s 119(1)(a) of the Migration Act – whether there was a failure to bring an independent mind to bear on the decision to cancel the visa

MIGRATION – whether detention under s 189 of the Migration Act was lawful – whether the primary judge erred in holding that there was no reasonable suspicion for the purposes of s 189 of the Migration Act – whether the primary judge erred in concluding that an officer was empowered under s 189 of the Migration Act to detain a person without making an independent inquiry as to the relevant facts and circumstances regarding the holding of a (cancelled) visa – interpretation of ss 189 and 196 of the Migration Act – whether unlawful detention was established

DAMAGES – whether damages should be awarded for unlawful detention – whether claim for damages ought to be remitted to the primary judge for assessment on the basis of false imprisonment – whether the amount of damages awarded by the primary judge in relation to unlawful detention was manifestly inadequate

PRACTICE AND PROCEDURE – whether primary judge’s orders ought to be set aside – whether appeals ought to be dismissed with costs

Legislation:

Customs Act 1901 (Cth)

Migration Act 1958 (Cth) ss 5, 13, 14, 15, 97, 103, 116, 119, 120, 166, 172, 189, 190, 191, 192, 196, 496

Cases cited:

AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177

ASP15 v Commonwealth of Australia [2016] FCAFC 145; (2016) 248 FCR 372

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486

Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61

Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Goldie v Commonwealth of Australia [2002] FCAFC 100

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Commonwealth v Okwume [2018] FCAFC 69
Case
[2018] FCAFC 69
Decision Date

CaseChat Overview and Summary

In the case of Commonwealth v Okwume, the appellant, Mr Okwume, brought an appeal against a decision of the Federal Court of Australia concerning his detention under the Migration Act 1958 (Cth). Mr Okwume contended that he had been unlawfully detained from 21 July 2005 until his release from Baxter detention centre and sought an order remitting his claim for damages to the primary judge for assessment on the basis of false imprisonment. Additionally, he argued that the damages awarded for the period of unlawful detention were manifestly inadequate. The legal issues before the court included whether the relevant visa was validly cancelled, if there were jurisdictional errors in the decision to cancel the visa, and if there was a failure to comply with certain sections of the Migration Act. The court was also required to decide if the detention under s 189 of the Migration Act was lawful and if the primary judge had erred in various respects concerning the interpretation of ss 189 and 196 of the Migration Act.

The court found that the primary judge was correct in concluding that Mr Andersson failed to comply with s 119(1)(a) in making his decision to cancel Mr Okwume’s visa, which constituted a jurisdictional error. It was also found that Mr Andersson had embarked on the decision-making process on the pre-determined footing to cancel the visa, which was a jurisdictional error. The court further determined that the primary judge’s finding that Ms Trad was lawfully justified in detaining Mr Okwume pursuant to s 189 of the Migration Act was correct. The court rejected the appeal and dismissed the claims for unlawful detention and inadequate damages. The court ordered that the appeal be dismissed and directed the parties to confer on the costs of the appeal, with further submissions to be made if necessary.

Orders

Orders of the court

1. The appeal be dismissed.

2. The parties confer within 7 days about whether they can agree the costs of the appeal or the appropriate order for the disposition of the costs of the appeal.

3. If the parties are unable to agree the costs of the appeal or the order for the disposition of the costs of the appeal, then the respondent is to file and serve written submissions (limited to 4 pages) as to the appropriate order as to costs within 14 days.

4. The appellant is to file and serve written submissions (limited to 4 pages) in response to the respondent’s submissions within 21 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Okwume’s appeal centres on her Honour’s conclusion that he had not established that he had been unlawfully detained after about 8.15 am on 22 July 2005. He contends that he was unlawfully detained until he was released from Baxter and that he should have been awarded damages on that basis. He seeks an order that his claim for damages be remitted to the primary judge for assessment on the basis that he was falsely imprisoned from 21 July 2005 until his release from Baxter. As I understand it, he also claims on his appeal, in addition or in the alternative, that the amount awarded by the primary judge for the period of detention which her Honour found was unlawful, was manifestly inadequate. Mr Okwume does not appeal against the primary judge’s rejection of his claims for misfeasance in public office and negligence. THE FACTS Two or possibly more decisions (and it will become clear what I mean by that later in these reasons) were made on 21 July 2005 which are critical to the issues raised on these appeals. They are a decision to cancel a visa held by Mr Okwume and a decision to detain him. The primary judge went through the events on 21 July 2005 in great detail and it is necessary for me to do the same. The following is based on the primary judge’s findings. The controversial aspects of the primary judge’s conclusions relate to the inferences she drew and her characterisation of conduct. Mr Okwume was a citizen of the Federal Republic of Nigeria. He arrived at the Airport on a flight originating from Lagos at 7.00 am on 21 July 2005. He had with him his personal belongings, a passport and a Business (Short Stay) visa which was due to expire one month after his arrival. Mr Okwume is a nurse and he travelled to Australia ostensibly for the purpose of attending an aged care conference in Brisbane. On 21 July 2005, Ms Kay O’Connell was one of the then Department of Immigration and Multicultural and Indigenous Affairs’ (the Department) Duty Managers at the Airport. She was not called to give evidence at the trial. Mr Glenn Andersson was an Immigration Inspector stationed at the Airport and the Minister had delegated certain decision-making powers under the Act to Mr Andersson (s 496(1)). Mr Andersson, as the Minister’s delegate, made the decision under s 116(1)(d) of the Act to cancel Mr Okwume’s visa. Mr Andersson was called to give evidence at the trial, but he had no independent recollection of the events which took place on 21 July 2005. At the time of the relevant events, Mr Andersson prepared what the primary judge described as a Running Sheet entitled “Immigration Inspector’s Report” which recorded events as they occurred. Except for one entry made by Ms O’Connell, the Running Sheet was made by Mr Andersson. On 21 July 2005, Mr Benjamin Kriss was a document examiner at the Airport. He had commenced employment with the Department in 1998. He underwent three years of in-house training, after which he was assigned the title of Forensic Document Examiner. The primary judge found that Mr Kriss was a qualified and experienced document examiner. Mr Kriss gave evidence at the trial and he said in his affidavit, and initially at least in his oral evidence, that he had no independent recollection of his involvement in the events affecting Mr Okwume on 21 July 2005. Ms Lynette Trad was another Duty Manager of the Department at the Airport on 21 July 2005 and she played a role in the relevant events as I will explain. She did not give evidence at the trial.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I reject Grounds 1 and 4 of the Notice of Appeal. The primary judge was correct to conclude that Mr Andersson failed to comply with s 119(1)(a) in making his decision to cancel Mr Okwume’s visa and that that failure was a jurisdictional error.The jurisdictional error based on Mr Andersson failing to bring an independent mind to the decision to cancel Mr Okwume’s visa (Grounds 2 and 5) As I have said, the primary judge found that Mr Andersson embarked on the decision-making process on the pre-determined footing that grounds for cancellation existed. Her Honour found that he was acting in accordance with a perceived responsibility to act in accordance with the preferences of his Duty Manager, Ms O’Connell. Her Honour described that error as allowing an extraneous circumstance to interfere with his function or a denial of procedural fairness in foreclosing his mind to the matters which he was required to consider. I would have been disposed to characterise the error as found by the primary judge as acting at the dictation of another. Neither party paused on the precise characterisation of the error in administrative law terms. The critical matter is the primary judge’s finding as to the error and that was that Mr Andersson had embarked on the decision-making process on the pre‑determined footing to cancel the visa. Such an error, if established, is a jurisdictional error. The Commonwealth contends that it was denied procedural fairness in relation to this alleged error which was not pleaded or put to Mr Andersson in cross-examination or otherwise raised by Mr Okwume during the trial (Ground 2). It also contends that, in any event, the finding was erroneous on the evidence. In response to the Commonwealth’s procedural fairness argument, Mr Okwume relied on the same two arguments he relied on in relation to the first jurisdictional error (at [106] and [114]) above. I have already given my reasons for rejecting the first argument. The primary Judge found that Ms Trad’s consideration of Mr Okwume’s circumstances had not been affected by the matters which made ineffective the actions of Mr Andersson and Ms O’Connell under s 189 of the Migration Act 1958 (Cth). That was because there had been nothing in the information conveyed to her concerning Mr Okwume which had, or ought to have, put her on notice as to the existence of irregularities affecting the visa cancellation. The Judge concluded: [Ms Trad] was entitled to proceed on the assumption (albeit mistaken) that the decision was legally effective. It follows that Ms Trad was lawfully justified in detaining Mr Okwume pursuant to s 189 of the Act by causing him to be escorted by GSL personnel from the airport to Baxter on 22 July 2005 and to be held in immigration detention there. In reasoning in this way, it is apparent that the primary Judge adopted as an assumption that Ms Trad had herself detained Mr Okwume pursuant to s 189 of the Migration Act. Her Honour’s finding was that Ms Trad had been “lawfully justified” in doing so. The Judge did not address the antecedent question of whether Ms Trad had in fact detained Mr Okwume pursuant to s 189 or otherwise. It is that question which is the subject of the first two grounds in Mr Okwume’s amended notice of appeal. The third ground concerns the assessment of damages. Background

Ratio Decidendi

Legal Principle Established

The term “immigration detention” used in s 196 and in the definition of “detain” is defined in s 5(1):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). A number of features of the operation of s 189 were discussed by the Full Court in Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1. It is not necessary, however, for the resolution of this appeal to refer to the reasons in Fernando in any detail. Section 189(1) operates to impose a positive obligation on an “officer” to take into immigration detention a person in the migration zone who the officer knows or reasonably suspects is an unlawful non‑citizen, and then to keep, or cause to be kept, the person in detention. The effect of s 196(1) is that (subject to the operation of ss 190 and 191) an unlawful non‑citizen detained under s 189 must be kept in immigration detention until one or other of four specified events occurs. That is to say, the detained unlawful non‑citizen must be kept in the company of, and restrained by, one or other of the persons mentioned in subpara (a) of the definition of immigration detention or be held by, or, on behalf of, an officer in one or other of the places specified in subpara (b) of the definition. Whereas the subject matter of s 189 is the imposition of an obligation on an officer to take known or reasonably suspected unlawful non‑citizens into detention, and to keep them there, the subject matter of s 196, at least primarily, is directed to the duration of the detention: Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [11] (Gleeson CJ), [112] (Gummow J), and [224] (Hayne J). Perhaps for this reason, s 196 does not identify the persons who must give effect to the obligation, it being implicit that it is those who have detained the unlawful non‑citizen or those whom the detaining officer has caused to detain the person. Given the definition of “immigration detention”, the subject matter of s 196(1) extends also to aspects of the manner and location of the detention. Read together, ss 189 and 196 require the initial detaining of a known or reasonably suspected unlawful non‑citizen and the continuation of that detention until one of the events specified in s 196(1) has occurred. As seen earlier, an officer may detain a person under s 189 either by taking the person into immigration detention or by keeping or causing the person to be kept in immigration detention. In respect of this feature of the legislation, the Full Court said in Fernando at [72]:[Section] 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.