D1 v Commonwealth of Australia (No 2)

[2021] FCCA 817

FEDERAL CIRCUIT COURT OF AUSTRALIA

D1 v Commonwealth of Australia (No 2) [2021] FCCA 817

File number:

ADG 13 of 2021

Judgment of:

JUDGE YOUNG

Date of judgment:

22 March 2021

Catchwords:

ADMINISTRATIVE LAW – application for an interim injunction in relation to a summons issued by the Australian Criminal Intelligence Commission (ACIC) – applicant summonsed to give evidence at an examination before the ACIC – whether there is a serious question to be tried – whether conducting the examination is outside the purpose of detention under the Migation Act 1958 (Cth) – whether the applicant is to be compelled to attend the examination – where the applicants are held in immigration detention pursuant to the Migration Act 1958 (Cth) – where the examination is to be conducted within the confines of the immigration detention centre – Court not satisfied of any unlawful use of the power of detention – Court not satisfied there is a serious question to be tried – application dismissed

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth) s 57

Migration Act1958 (Cth) s 189

Cases cited:

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR, [1992] HCA 64

Number of paragraphs:

18

Date of hearing:

22 March 2021

Place:

Darwin

Counsel for the Applicant:

Mr Abbott QC and Ms Luu

Solicitor for the Applicant:

Patsouris & Associates

Counsel for the First, Second, Third and Fourth Respondents:

Mr Lenehan SC and Mr Tran

Solicitor for the First, Second, Third and Fourth Respondents:

Australian Government Solicitor

Counsel for the Fifth and Sixth Respondents:

Ms Maharaj QC and Mr Hosking

Solicitor for the Fifth and Sixth Respondents:

Australian Government Solicitor

Table of Corrections

28 April 2021

In the Table of Appearances under Counsel for the Fifth and Sixth Respondents the word “Hoskings” has been replaced with “Hosking”.

ORDERS

ADG 13 of 2021

BETWEEN:

D1

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

MINISTER FOR HOME AFFAIRS (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	22 MARCH 2021

THE COURT ORDERS THAT:

1.The applicant’s application to amend the originating application filed on 22 January 2021 to raise the review of the decision of the Australian Criminal Intelligence Commission Examiner on 15 March 2021 to decline to withdraw the summons dated 4 March 2021 be adjourned to the next court date.

2.The application in a case filed on 19 March 2021 be otherwise dismissed.

3.Where Counsel mentioned the name of the applicant during the course of the proceedings on 22 March 2021 the pseudonym “D1” is to be substituted on the transcript and otherwise the applicant is to be referred to as “D1”.

4.This matter be adjourned to 23 April 2021 at 2:15pm (NT Time) for further consideration.

5.Costs reserved.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application by D1 and D2 arising out of the intersection of two circumstances. Firstly, the applicants’ detention in immigration detention under the Migration Act 1958 (Cth). Secondly, while the applicants have been in detention, the sixth respondent, Mr Lusty, an examiner for the Australian Criminal Intelligence Commission, has served summonses on the applicants to attend for an examination.

2. This same set of circumstances was the subject of an earlier application which was heard by me on 25 January 2021. On that occasion it was proposed that the Commonwealth, by its servants or agents, was to deliver or convey D1 and D2 to an examination before the examiner, Mr Lusty, at the offices of the Australian Criminal Intelligence Commission in Melbourne. The proposal provided for D1 and D2 to be compelled to attend that examination.  The applicants were to be compelled by the Commonwealth, as the controller of the Immigration Detention Centre, placing the applicants in a van and conveying them into the city of Melbourne. 

3. On 25 January 2021 I granted an interim injunction against the Commonwealth and its servants or agents to restrain the Commonwealth from undertaking the course of action outlined above. At that time, I was persuaded that there was, at least, a serious question to be tried – namely, whether that course was one that the Commonwealth had power to undertake. I came to this conclusion having regard to the purpose of detention under section 189 of the Migration Act 1958 (Cth). The case of Chu Kheng Lim v Minister for Immigration (1992) 176 CLR makes it clear the purpose of detention under the Act is only for the purpose of expulsion or deportation of detainees and, perhaps, some ancillary purposes related to visas.  Following the decision of 25 January 2021, the examiner withdrew the summonses.

4. On 5 March 2021 the examiner issued fresh summonses to the applicants.  Those summonses require D1 and D2 to attend an examination on 25 March 2021 and 24 March 2021, respectively, at the Immigration Detention Centre rather than at the offices of the Australian Criminal Intelligence Commission in the city of Melbourne.  The summonses make it clear that D1 and D2 are required to attend an interview room within the confines of the Immigration Detention Centre.

5. The precise details of what is proposed are set out in an affidavit of Mr Halls. This is relied upon by the fifth and sixth respondents.  In summary, it is proposed that the examiner will attend at the interview room within the confines of the Immigration Detention Centre. If D1 and D2 indicate to the Serco employees (the guards at the Immigration Detention Centre) that they wish to attend the examination the six gates that have been identified in Mr Patsouris’s affidavit will be opened and they will be permitted to attend.  Apparently, there have been detailed communications concerning exactly what will take place between the Australian Border Force officials, who are responsible for the administration of the Immigration Detention Centre, and the Australian Criminal Intelligence Commission employees. 

6. Mr Lenehan, senior counsel for the first to fourth respondents, indicated that his instructions from each of his clients were to the effect that if D1 and D2 request to be permitted to attend the examination with the examiner on those days then the guards have been instructed to facilitate their attendance at that examination. For that purpose, the various gates will be opened and they will be permitted to attend the interview room.

7. Mr Lenehan made clear that under no circumstances would D1 and D2 be compelled to attend the interview. In other words, there would not be any requirement to contemplate what may be construed as a power of detention or a detention not authorised by section 189 of the Migration Act 1958 (Cth).

8. Mr Abbott, senior counsel for the applicants, sought a number of orders. First of all, on behalf of his clients, he sought an extension of time to bring an application under section 57 of the Australian Crime Commission Act 2002 (Cth). Section 57 provides that any challenge to the issue of a summons must be made within five days or such further time as the Court (including this Court) allows for special circumstances. The originating application sought a review of the various decisions of the examiner arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

9. Mr Abbott sought an interlocutory injunction directed to the Australian Criminal Intelligence Commission restraining it, or its examiner, Mr Lusty, from undertaking any examination of D1 and D2 on the dates provided for in the summons.

10. Mr Abbott also, in effect, sought an adjournment for the purpose of more properly preparing his arguments. I accept that there has been a degree of haste in responding to the summonses.  However, it should be noted that the correspondence between Mr Patsouris, the solicitor acting for D1 and D2, and the officers of the Australian Criminal Intelligence Commission has been going on since, at least, 12 March 2021.  I accept, nevertheless, that this is a short amount of time and there has been limited opportunity for Mr Abbott to prepare his arguments. 

11. It seems to me that the disposition of all of those matters depends on there being a serious question to be tried.  Mr Abbott’s submissions were, not surprisingly, largely directed to that.  As I understood it, Mr Abbott said that the applicants did not have any choice in attending the examination that the examiner proposed to undertake on 24 and 25 March 2021.  He submitted to me, and I have made a note of what he said:

    D1 and D2 are being detained for the purpose of conducting the Australian Criminal Intelligence Commission examination. 

12. I stated to Mr Abbott that if I was persuaded that that were the case I would likely agree with his argument.  However, I am unable to agree that that is the case.  The affidavit of Mr Halls makes clear that the arrangements put in place by the examiner do not require the servants or agents of the Commonwealth, the Minister or of the Australian Border Force, to compel the applicants in order to facilitate the examinations.  If the applicants request, the various gates will be opened and an Australian Criminal Intelligence Commission officer will accompany the applicants to the examination.

13. I did not understand Mr Abbott to be saying, in any sense, other than a very abstract one, that there was any compulsion contemplated.  I must say, however, that when I refer to an abstract sense it is difficult to see that there is any abstract compulsion either, other than the compulsion inherent in the scheme of the Australian Crime Commission Act 2002 (Cth) itself which criminalises failure to appear for an examination.

14. The affidavit from Mr Halls also explains that there is no reason why the Serco employees would need to know why the applicants were attending for an examination. The examination would be conducted in private in an enclosed interview room.  D1 and D2’s legal advisors would have access to a connecting interview room or a nearby interview room to advise or seek instructions from their clients. 

15. Mr Abbott did not put forward any other argument, at least not any other argument that was clearly outlined, beyond the one that I have described. If there were a detention by the Commonwealth, or its servants or agents, for a purpose other than that provided for in section 189 of the Migration Act 1958 (Cth), I would agree with the submissions that Mr Abbott has made.

16. However, his submissions, in my view, have not pointed to any unlawful use of the power of detention.  That being the case, I am not satisfied that there is a serious question to be tried in the application. 

17. Bearing in mind that the examinations are set for 24 and 25 March 2021 and the pressures of business in this Court, it is unlikely the Court will be able to return to these matters for further argument until Friday, at the earliest.  It appears to me that the fact that the interviews will have taken place by then militates against there being an interim injunction at this stage and an adjournment to permit further argument. 

18. The various applications ought to be dismissed.  

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       23 April 2021

SCHEDULE OF PARTIES

ADG 13 of 2021
Respondents
Fourth Respondent:	COMMISSIONER OF THE AUSTRALIAN BORDER FORCE
Fifth Respondent:	CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION
Sixth Respondent:	DAVID LUSTY