DBB16 v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

DBB16 v Commonwealth of Australia [2022] FCA 783  

File number(s): NSD 189 of 2021
Judgment of: RAPER J
Date of judgment: 8 July 2022
Catchwords: MIGRATION – application for a declaration that the applicant’s detention was not authorised for a period by the Migration Act 1958 (Cth) – whether the applicant was falsely imprisoned – whether the applicant was entitled general, special, aggravated and exemplary damages – whether the detaining officers held a reasonable suspicion that the applicant was an “unlawful non-citizen” – application dismissed
Legislation:

Evidence Act 1995 (Cth) s 69

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 13, 14, 476A, 189, 195A, 196
Cases cited:

Alsalih v Manager, Baxter Immigration Detention Facility and Another [2004] FCA 352; 136 FCR 291

AOU21 v Minister for Home Affairs [2021] FCAFC 60

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

Boensch v Pascoe [2019] HCA 49; 268 CLR 593

Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

Commonwealth v AJL20 [2021] HCA 21; 95 ALJR 567

Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471

Goldie v Commonwealth of Australia [2002] FCA 433; 117 FCR 566

Guo v Commonwealth [2017] FCA 1355; 258 FCR 31

Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303

Lin v Tasmania [2012] TASCCA 9

Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54

Ruddock v Taylor [2005] HCA 48; 222 CLR 612

Thoms v Commonwealth of Australia [2022] HCA 20
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 57
Date of hearing: 21 June 2022
Counsel for the Applicant: Ms M Yu with Mr W Chan and Mr A Flick
Solicitor for the Applicant: Human Rights for All Pty Ltd
Counsel for the Respondent: Mr C Lenehan SC with Ms L Coleman
Solicitor for the Respondent: Australian Government Solicitor

 

ORDERS

NSD 189 of 2021
BETWEEN:

DBB16

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

8 JULY 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs as agreed or taxed.

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


REASONS FOR JUDGMENT

RAPER J

  1. By application dated and filed on 5 March 2021, the applicant seeks a declaration that “for a period of six months and seven days, the applicant’s detention was not authorised by the Migration Act 1958 (Cth) (the Act)” and claims associated general, special, aggravated and exemplary damages for false imprisonment against the Commonwealth of Australia.

  2. The applicant alleges his detention for that period was unlawful because the Minister for Immigration, Citizenship, Migrant Services and…

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Details
Case
[2022] FCA 783
Decision Date

CaseChat Overview and Summary

The matter of DBB16 v Commonwealth of Australia involved an application by the applicant, DBB16, for a declaration that his detention under the Migration Act 1958 (Cth) was not authorised for the relevant period. The applicant argued that he was falsely imprisoned and sought general, special, aggravated and exemplary damages. The central legal issue before the Court was whether the applicant’s detention during the relevant period was both authorised and required by sections 189(1) and 196 of the Act. The applicant contended that his detention was unlawful due to a decision by Minister Coleman on 24 July or 24 September 2019 to grant him two visas for a period of six months and seven days. The Court examined the provisions of section 189, which mandates detention if an officer knows or reasonably suspects that a person is an unlawful non-citizen. The Court noted that the detention's purpose is to separate the person from the community until their status and the lawfulness of their presence are investigated and determined. The Court dismissed the application, holding that the detaining officers had a reasonable suspicion that the applicant was an unlawful non-citizen within the meaning of section 189(1), thereby authorising and requiring his detention under sections 189 and 196 of the Act. The Court found that the applicant’s detention was lawful and dismissed the application. The Court ordered that the applicant pay the respondent’s costs as agreed or taxed.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs as agreed or taxed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Lastly, the applicant sought to challenge the admissibility of certain evidence. Given the confined nature by which this matter has been determined, the resolution of those objections is now largely academic but for completeness I will deal with certain of them in the following way. Questions of admissibility of certain parts of the evidence Practical necessity dictated the deferral of the determination of certain objections made by the applicant to the Commonwealth’s evidence – a course with which the parties consented. Given the confined scope of the issues which now need to be determined, I propose to rule only on those relating to evidence relevant to a fact in issue and prima facie entitled to weight. In this regard, consideration needs to be given to those as they relate to evidence of the two detaining officers, namely Mr Dorman and Ms Waweru-Powell. There is overlap between the objections relating to the evidence of both officers, given the objections relate to underlying source materials which they had access to and they comprise:a. Objections to representations comprising “Consider – not intervene” contained in the Dorman affidavit [17], Annexure MD-1 to Dorman affidavit p 12 and Annexure WWP-1 to Waweru-Powell affidavit pp 8, 16, 25, 33 and 41 – Objection based on s 59 (hearsay) and failure to meet s 69(2) (business records exception); and b. Objections to the representations comprising “…Minister Coleman decided not to intervene in the applicant’s case” contained in the Dorman affidavit [18], “24.07.2019 Minister Coleman declined to intervene under s195A of the Act” contained in the Annexure WWP-1 to Waweru-Powell affidavit pp 28 and 44 and “Minister declined to consider intervening on 24.07.2019” contained in the Annexure WWP-1 to Waweru-Powell affidavit pp 12, 29 and 45 – Objection based on s 59 (hearsay) and failure to meet s 69(2) (business records exception). The dispute regarding both grouped objections turns on the meaning and application of s 69(2), in the context of ss 69(1) and 69(5) of the Evidence Act 1995 (Cth), although the Commonwealth relies on an alternative argument that this evidence be admitted for a non-hearsay purpose. The relevant three subsections are as follows:69 Exception: business records(1) This section applies to a document that:(a) either:(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or(ii) at any time was or formed part of such a record; and(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.…(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

Decision

Reasons for decision

There was, however, an Annexure B, titled “Exercise of Ministerial Discretion under section 195A of the Migration Act 1958 Decision Instrument”. This is known as the decision instrument. The decision instrument was signed by Minister Coleman and dated either “24/7/2019” or “24/9/2019”. The body of the decision instrument relevantly contained the following wording:1. The illegal maritime arrivals (IMAs) named in the below table are in detention under section 189 of the Migration Act 1958 (the Act) and I have considered their cases under section 195A of the Act.2. I have determined that it is in the public interest to grant these IMAs a Humanitarian Stay (Temporary) (subclass 449) visa and a final departure Bridging E (subclass 050) visa.3. I therefore exercise my power under section 195A of the Act to grant a Humanitarian Stay (Temporary) (subclass 449) visa valid for seven days and a final departure Bridging E (subclass 050) visa valid for six months to the IMAs named below: As can be seen above, the applicant was named immediately below that statement and was identified with respect to his name, date of birth, country of citizenship and boat identification number, the details of which have been redacted for the purpose of maintaining confidentiality. Relevant legislative provisions 11Sections 13 and 14 of the Act provide:13 Lawful non-citizens(1)A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.(2)An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.14 Unlawful non‑citizens(1)A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.(2)To avoid doubt, a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen. Section 189 provides: 189 Detention of unlawful non‑citizens(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:(a) is seeking to enter the migration zone (other than an excised offshore place); and(b) would, if in the migration zone, be an unlawful non‑citizen;the officer 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).

Ratio Decidendi

Legal Principle Established

Section 196 provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention and relevantly provides:196 Duration of detention(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.…Consideration The primary issue to be determined by this Court is whether the applicant’s detention during the relevant period was both authorised and required by ss 189(1) and 196 of the Act. For the reasons which follow, I am of the view that the relevant detaining officers had a reasonable suspicion over the relevant period that the applicant had the status of being an unlawful non-citizen within the meaning of s 189(1). By reason of this finding, the applicant’s detention during the relevant period was both authorised and required by ss 189 and 196 of the Act. I also am of the view that by reason of this finding there is no need for me to determine the other potential arguments raised by the applicant in this matter. This Court should confine itself to determining only those matters dispositive of the justiciable controversy – an exercise in “judicial economy” which promotes judicial efficiency: see Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7] per Kiefel CJ, Gageler and Keane JJ (although arising in the context of appellate review). The Commonwealth bears the onus of proving that the detention was at all times lawful: AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [185]. By this, the Commonwealth must prove that the detention was authorised by law. In this case, the Commonwealth submits it was so authorised by its powers under s 189 of the Act. Accordingly, this case turns on an interpretation of s 189. By its operation, s 189 provides that a person must be detained if an officer knows or reasonably suspects that the person is “an unlawful non-citizen”. The evident purpose of s 189 and the detention it authorises, is “to separate a person from the community until their status and the lawfulness of their presence is investigated and determined”, as recently elucidated by Kiefel CJ, Keane and Gleeson JJ in Thoms v Commonwealth of Australia [2022] HCA 20 at [25]. In this case, the applicant argues that his detention was unlawful by reason of the purported decision made by Minister Coleman on 24 July or 24 September 2019 to grant him two visas for a period of six months and seven days. In Thoms, the plurality, comprising Kiefel CJ, Keane and Gleeson JJ, considered the decision of Ruddock v Taylor [2005] HCA 48; 222 CLR 612, and in particular a like argument raised by Mr Taylor, to this case. Mr Taylor had argued that because the decision to cancel his visa pursuant to s 501 was unlawful it followed that his detention was unlawful. That argument was rejected, and Kiefel CJ, Keane and Gleeson JJ (Gageler, Gordon and Edelman and Steward JJ agreeing) in Thoms, at [29], extracted the joint judgment in Ruddock v Taylor which explained that the lawfulness of Mr Taylor’s detention was determined by reference to s 189(1) in this way:That argument was rejected. In the joint judgment it was explained that the lawfulness of Mr Taylor's detention was to be determined by reference to s 189(1). The operation of s 189(1) was explained as follows:Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. ... The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens.(Footnotes omitted, emphasis added)