Fernando by his Tutor Ley v Commonwealth of Australia & Anor

[2015] HCATrans 286

[2015] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P37 of 2015

B e t w e e n -

W LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY

Appellant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

HONOURABLE GARY HARDGRAVE

Second Respondent

FRENCH CJ
KIEFEL J
BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 NOVEMBER 2015, AT 10.14 AM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the appellant.  (instructed by Mony De Kerloy Barristers & Solicitors)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR R.E. WILLIAMS, QC and MR P.R. MACLIVER for both respondents.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Cameron.

MR CAMERON:   May it please the Court.  It is common ground that the appellant Mr Fernando’s detention by the Commonwealth for 1,203 days was unlawful, and the appeal is against the award of $1 in nominal damages, awarded by the primary judge and upheld by the Full Court.  It was held by the primary judge, and again upheld by the Full Court, that Mr Fernando had suffered no loss because he could and would have been lawfully detained under the provisions of section 189(1) of the Migration Act.

Both the primary judge and the Full Court relied very much on recent decisions of the Supreme Court in the United Kingdom in Lumba and Kambadzi.  It probably would be helpful if I were to take your Honours to the relevant statutory provisions in that case.  Lord Dyson sets out the relevant provisions at paragraph 4 of his judgment and Lady Hale summarises them at paragraph 198 of her judgment.  But it is probably more convenient to go to the first instance decision of his Lordship Mr Justice Davis in Abdi. Your Honours should have copies of that decision.

FRENCH CJ:   What point are you seeking to make in relation to the statutory provisions considered in Lumba?

MR CAMERON:   In Lumba, in my submission, the provisions are similar to those in the Migration Act in section 189(1) but there are significant differences.  The most significant fact in relation to Lumba is that the requirements are statutory and that the Secretary of State already had a power under the provisions of the relevant Immigration Act 1971 to detain Messrs Lumba, Mighty and Kambadzi.  Those powers are set out in section 3(5), which provides that: 

A person who is not [a British citizen] shall be liable to deportation from the United Kingdom‑

. . . 

(b)if the Secretary of State deems his deportation to be conducive to the public good; or

(c)if another person to whose family he belongs is or has been ordered to be deported.

The relevant section is section 6.

FRENCH CJ:   But do you not have a stronger case against you here in the sense that the detention power under section 189 is coupled with an obligation to detain where there are reasonable grounds to suspect that a person is an unlawful non‑citizen?

MR CAMERON:   Yes, indeed, your Honour, but, of course, that part is limited to persons who are in fact unlawful non‑citizens and at no time was Mr Fernando an unlawful non‑citizen, the cancellation of his visa having been invalid and that is the basis upon which it was found that he had been falsely imprisoned and that of course is not ‑ ‑ ‑

FRENCH CJ:  

If an officer knows or reasonably suspects that a person –

et cetera.  The point that is made against you is that an officer aware of the decision, apparently regular on its face, to cancel the visa, would have reasonable grounds to suspect and therefore the obligation would be engaged.

MR CAMERON:   I would accept that, your Honour, but the difficulty with that, with respect, is that as was done by the primary judge and the Full Court, that conflates the power with the capacity to exercise the power and, in my submission, it is clear in both Lumba and Kambadzi that what was in issue there was the exercise of the power rather than the existence of the power and there is no suggestion, in my submission, in either Kambadzi or Lumba, that the principles in those cases extend to cases where there is no power to detain.  It only applies to the public law requirements in respect of the exercise of the power and, of course, in my submission, that does not ‑ ‑ ‑

FRENCH CJ:   Sorry, why do you say there would have been no power or, indeed, correlative to that, I imagine, you are saying no duty to detain on the basis of an apparently regular decision to cancel the visa?

MR CAMERON:   With respect, it is an apparently regular decision to cancel.  If, for example, an officer under the Migration Act had been sued personally then that officer, upon proving that he had knowledge of the cancellation, would have a valid defence upon the basis that he knew or reasonably suspected that Mr Fernando was an unlawful non‑citizen but, in my submission, it cannot be extended to say that the mere existence of the statutory power is sufficient to deprive a person who is wrongfully imprisoned under the power of a right to compensatory damages on the basis that he has suffered no loss. 

FRENCH CJ:   What is put against you is not just the – is the existence of a statutory obligation to detain.

MR CAMERON:   I accept that, your Honour, but it is ‑ ‑ ‑

FRENCH CJ:   Do you deny that that obligation would have been engaged by the appearance to an officer of an apparently regularly made decision to cancel the appellant’s visa?

MR CAMERON:   I accept that on the basis of the section a person could have been detained.  The question is – and that was the question in Lumba and Kambadzi - whether he would have been detained.

KEANE J:   But is there not a difference because here it is not just a question of whether he could be detained.  Here, the relevant officers, whoever they are, within the meaning of section 189, were obliged to detain your client.

MR CAMERON:   Indeed, yes.

KEANE J:   If the damages are regarded as either compensation or vindication for an interference with his right to be at liberty, the situation here is that by reason of section 189, and 196(4) and (5), the relevant officers of the Commonwealth were obliged to detain your client.  He had no right to be at liberty for the interference with which he might be compensated, or for the interference with which he might be vindicated, because the existence of the obligation to detain him is inconsistent with his having a right to be at liberty.

MR CAMERON:   I accept that, your Honour, but the principles in Lumba do not extend as far as that and, in my submission, they should not extend ‑ ‑ ‑

FRENCH CJ:   We are not governed by what was said in Lumba.  What his Honour has just put to you is a matter which you need to deal with on its merits.

MR CAMERON:   Yes, I accept that, your Honour.  I return to the point that it is an error to conflate the capacity to detain with the capacity to detain lawfully under the provisions of section 189(1).  That power, the exercise of the power, can only be exercised by a person who qualifies within the provisions of section 189(1).

In my submission, it is important that section 189(1) be construed strictly when one has regard to the various consequences of it which flow from section 196, and the Parliament has set out those restrictions on the exercise of the power quite clearly in section 189(1).  The person who exercises the power must be an officer, and while the respondents say that is broadly construed, it in fact is quite narrowly construed when one has regard to the fact that under the powers conferred by the Act and conferred by the Gazette, it is quite narrowly restricted. 

In other words, an officer who works for one of the employees for ACM - Australian Correctional Management - must have passed certain training requirements.  The power to deprive somebody of their liberty is a very important power which must be strictly construed and the Parliament has set down very strict limits to the exercise of the power and very appropriately so.  If a respondent wishes to rely upon those powers, then they must comply strictly with the provisions and there must be evidence that they have done so. 

It is not a matter for speculation that because the power existed it was going to be exercised lawfully.  In my submission, that would go a step altogether too far because it could mean that a person – perhaps an Australian citizen – could be detained under section 189(1) and that person would remain in custody until they could prove the fact of their citizenship.  It has happened in the past, it could happen again in the future and, in my submission, it is important that those guidelines be clarified and that they be enforced.

FRENCH CJ:   As I understand it, the point of principle which you are seeking to advance, at least at the application for special leave, was on the assumption that Mr Fernando could have been or would have been lawfully detained under section 189 when in fact he was not lawfully detained for the particular reasons that were found in the Full Court, that he was nevertheless entitled to compensatory damages, notwithstanding that he would have otherwise been detained in the lawful application of section 189.  That is really the question of principle, is it not?

MR CAMERON:   That is the question of principle and, of course, the court has ruled against me.

FRENCH CJ:   So we do not look then to the premise – question the premise that he could have been lawfully detained, indeed would have been lawfully detained under section 189, by an officer aware of the apparently regular cancellation of the visa.

MR CAMERON:   Yes.  Can I take your Honours to the provisions - the English provisions set out in Abdi.  They start at paragraph 9.  Section 6 means that a person who is not a British citizen is liable to deportation if he is convicted of an offence which is punishable by imprisonment and on conviction is recommended for deportation.  Well, that does not apply here.  The relevant provision is on the next page under the schedule and that is (2):

Where notice has been given . . . of a decision to make a deportation order against him, and he is neither detained in pursuance of the sentence or order of a court . . . he may be detained upon the authority of the Secretary of State pending the making of the deportation order. 

So, there are similar provisions here as there are under section 501 that a person who may be subject of an order under section 501 is sent a letter in advance advising them of the possibility and inviting them to make submissions.  Mr Fernando did that.  So that is pending the making of the order and I think the section which provided in Lumba and Kambadzi is when a deportation order actually is enforced then the Secretary of State may make an order directing the deportation. 

So, first of all, Mr Lumba, as I recall, initially he was advised that a deportation order would be made and then later a deportation was made.  So, under either or both of those the Secretary of State had a statutory power similar to the power in section 189(1) to detain him pending his actual deportation.  What happened in Lumba and the basis of the decision is not based on the existence of the power but is based upon the exercise of the power by the Secretary of State.  The existence of the power is not in question. 

Of course, in this case, which is subject to the appeal, it is the existence of the power which is challenged and not the exercise of the power which was apparently carried out in a reasonably efficient way but one has to say that, of course, the provisions which apply in the United Kingdom in relation to the exercise of the power, in other words, reviews at regular stages, do not apply in Australia under section 196.

KEANE J:   So why does that not mean that the present case is a fortiori - the decision of the Full Court that you are challenging is on a stronger footing in terms of its statutory basis than the decision of the Supreme Court of the United Kingdom?

MR CAMERON:   It is, your Honour, and that is the submission which I am seeking to advance.  It is a much stronger case because in the United Kingdom the decisions in Lumba and Kambadzi were based upon the exercise of the power.  The existence of the power to detain was not in question because once he had been convicted of a criminal offence and I think there are a schedule of various offences, once you were convicted of one of those offences, even on the correct published policy, you are liable to be detained. 

So the statutory power to detain him was there and was not in question.  It was the manner in which it was exercised.  In the case of Mr Kambadzi it was exercised wrongly because the reviews had not been carried out.  On that basis, the Supreme Court held that the detention was unlawful.  There are no such provisions here under section 196.  That, in my submission, is another reason why section 189(1) must be strictly construed, because those backup provisions do not exist in Australia.  There are fewer constraints upon the exercise of the power than there were in Lumba and Kambadzi’s Case. 

The relevant principle in Kambadzi is based upon the application of a causation test and that causation test, what in Kambadzi was rejected in relation to liability, but was applied in connection with the damages issues that were before the Supreme Court.  Lord Dyson characterised the decision of whether the causation test applied in respect of liability as the most important one in the case, and Lady Hale qualified the issue of whether it applied to the damages at issue in the case as the most difficult.

BELL J:   Baroness Hale was one of the minority on the damages issue.

MR CAMERON:   On the damages issue, yes, but her Ladyship also acknowledged that that was the more difficult question.  In respect of Lumba and Kambadzi it is, in my submission, less difficult in this case because I rely upon the existence of a power rather than the exercise of the power.  Even in respect of the exercise of the power there was ample evidence that because of their criminal convictions, of which there was evidence, Mr Lumba would have remained in detention even if the published policy had been applied because he fell within the guidelines.  Mr Mighty would also have been detained because of the evidence of his serious offences which brought him within the guidelines and, in the case of Mr Kambadzi, even if the mandated reviews had been carried out, he would have remained in detention because of the guidelines. 

So it is obviously, in my submission, a very different case from this case and, as your Honour Justice Keane has pointed out, in many ways it may be that this is a much stronger case than either Lumba or Kambadzi because ‑ ‑ ‑

KEANE J:   What I was putting to you was that this is a stronger case for the correctness of the decision of the Full Court - a decision of the Full Court against which you are appealing.

MR CAMERON:   I misunderstood your Honour in that respect.

KEANE J:   It is a stronger case because here the counterfactual, which bears upon the question of damages and whether your client has a right to be vindicated – that is, a right to be at liberty to be vindicated – is inconsistent with the obligation in sections 189 and 196(4) and (5) which obliged any officer, within the meaning of 189, with whom your client came in contact, to detain him.

MR CAMERON:   But, with respect, the obligation, the duty to detain, does not affect the power to detain.  In other words, that would be true in respect of a person carrying out the detention who was otherwise qualified, but that person must be qualified under section 189(1), even if one puts to one side the fact that Mr Fernando was at all material times a lawful non‑citizen.  That is accepted because the appeal is against damages.  The fact that his detention was unlawful is not an issue in the appeal.  But the distinction between the duty and the power is an important one.  The power does not confer upon the duty and does not expand the duty in any way.

KEANE J:   But is it not a sound principle of construction that if a statute imposes a duty it necessarily confers such power as is necessary to comply with the duty?

MR CAMERON:   Yes, but, again, that is subject to the qualification of the person exercising the power under the provisions of section 189(1), in other words, that that person is an officer and that that person has knowledge or responsibility – knowledge or suspicion sufficient to qualify him or her under section ‑ ‑ ‑

BELL J:   It is accepted that in the particular circumstances of your client’s case the officers who purported to take him into custody did not have the mental state that made that taking into custody lawful.

MR CAMERON:   Yes.

BELL J:   The counterfactual is that, having regard to the Minister’s decision, which any officer as defined for the purposes of the Migration Act was required to presume to have been regularly arrived at, would have resulted in your client’s detention pursuant to the obligation imposed on officers under 189(1).  The special leave issue, which I thought you accepted in your exchange with the Chief Justice a little earlier, accepts that assuming your client had been lawfully detained – I am sorry, accepts that at issue here is the question of whether you may recover compensatory damages for your admittedly unlawful detention upon acceptance that you would have been lawfully detained under section 189(1).

MR CAMERON:   Yes, your Honour, but I draw a distinction and, in my submission, it is an important distinction between “could” and “would”.  I accept he could have been detained ‑ ‑ ‑

GORDON J:   Our difficulty, Mr Cameron, is that special leave was granted on the assumption that your client would have been lawfully detained.  That was the assumption upon which you were granted special leave.  The question is, if that presumption is to be accepted and at the moment it is, the principles of compensatory damages are you must show loss or damage.  I thought that is what we are to contend and debate about.

MR CAMERON:   Yes.

GORDON J:   What is it that your client is entitled to as a result of having been unlawfully detained when the counterfactual we are required to accept is that he would have been lawfully detained?  That is the question.

MR CAMERON:   Yes.  This is probably an error on my part.  I had not understood that the special leave was limited to the question of “would have been detained”, where it was deemed to have accepted that he would have been detained.  It was certainly not my intention to do so because all along it has been Mr Fernando’s contention that there was no evidence that he would have been detained.  It is accepted as a matter of law that he could have been detained. 

The question has been whether he would have been detained because those are the two principles that must be established for Lumba and Kambadzi to apply.  Lumba and Kambadzi require that both aspects - could and would, the existence of the power and the lawful exercise of the power must be present and, in my submission, as a matter of principle, it should be the same in this case.  In other words, as a matter of law, Mr Fernando could have been detained.  In order to deprive him of his right to compensatory damages there should have been evidence that he would have been detained.

FRENCH CJ:   Well, I think that was raised in one of the grounds in your draft notice of appeal on which you were not granted special leave.

MR CAMERON:   Yes.  I was not granted special leave on the basis that there was no evidence that the persons who detained him were officers but it was not my understanding that the special leave also limited ‑ ‑ ‑

FRENCH CJ:   Well, one of the grounds you advanced was a reference to the failure of the respondents upon remitter to lead evidence in support of the claim that the applicant had suffered no loss by his unlawful imprisonment for 1,203 days.  That was not the subject of the grant of special leave.

MR CAMERON:   That was not the subject of the grant of special leave.  Well, I must accept that.

FRENCH CJ:   It is only paragraph (a) in the draft notice.

MR CAMERON:   Well, if in fact there was - it has to be accepted that he would have been detained then there is a difficulty with compensatory damages but the question of principle is still an important one because it would mean that a person, leaving aside the present case, who was unlawfully detained could - would be denied of the right to compensatory damages in the absence of any evidence at all that he would have been detained.

In other words, that was the position which was taken by the primary judge and the position which was approved by the Full Court that the existence of the power, leaving aside the question of the exercise of the power, is sufficient to deprive a detainee who was falsely imprisoned of his right to compensatory damages.

In my submission, that is a very important principle and it is one that was adopted by the Full Court and, in my submission, should not be extended in that way because of the various dangers which attend it and, of course, Lord Brown in his judgment in Lumba was – and it was in a robust dissent -entirely critical of a procedure or a principle by which a detainee who was falsely imprisoned could be deprived – who would have a causation test applied in respect of liability but would be denied that it would again be applied in – I put that backwards. 

It would not apply in respect of liability but it would apply in respect of damages and his Lordship was of the view that that was illogical and, in my submission, it is illogical.  It would also be unfair.  It is unfair, and it would also devalue the tort of false imprisonment and to extend the principle in the way that was applied by the primary judge and approved by the Full Court also not only tends to devalue the tort but also to open up the abuse.

KEANE J:   But the problem of your relying on Lord Brown’s approach is that on his approach there was not a false imprisonment at all.

MR CAMERON:   That is right, but logically his approach is it is both, but not either/or, in other words you should apply it to both and if you applied it to the issue of liability then they would not have recovered.  But in Lord Brown’s view and other members of the Court – Lord Walker in particular was of the view that that had a certain attraction because, again, it would devalue the value of the tort. 

To extend it in this way, in other words to say that the mere evidence of the power is sufficient to deprive an unlawfully detained person of the right to damages, is an important extension of section 189(1) and it is, in my submission, one that the Parliament could not have intended.  The Parliament must have intended that in fact the provisions of section 189(1) are strictly adhered to, and in the event that they are breached then the person who is detained should receive compensatory damages.

BELL J:   How does one calculate those compensatory damages upon acceptance, as you must, having regard to the single issue on which special leave was granted, that the person would have been detained in any event?  How do you calculate the damages on principles that apply with respect to compensatory damages as distinct to the principles that apply to exemplary damages?

MR CAMERON:   In my submission, in assessing the damages, one of course does not apply the causation principle.  One puts Mr Fernando back in the position that he would have been put if, in fact, he had not been detained for the 1,203 days and on ordinary compensatory principles that he be put back in the position in which he would otherwise have been, to the extent that money is able to do that.  That would be by way of an award of substantial compensatory damages.

KIEFEL J:   But in this context damages would be assessed on the basis of how things would have been if they had been done lawfully and, here, the problem for you is that the detention was, by virtue of section 189, lawful.

MR CAMERON:   In my submission ‑ ‑ ‑

KIEFEL J:   I am sorry, the powers exercised.  So if things were done according to the statute that is the difficulty created by section 189.

MR CAMERON:   No, in my submission, one, in assessing the damages, rules out the causation test and one applies the ordinary compensatory principles ‑ ‑ ‑

GORDON J:   But your difficulty there is that the ordinary compensatory principles require you to prove loss or damage.  What Justice Kiefel is putting to you is that the difficulty for your client is that that question is difficult to assess when the counterfactual which we are obliged to accept is that your client would have been in detention anyway.

MR CAMERON:   Yes.  On the basis that special leave was granted on the “would” question, I must accept that that would be a difficulty.  But in the ordinary run of cases, in my submission, that counterfactual should be ignored, because it is, in fact, not a relevant consideration if one takes into consideration that the man was deprived of his liberty for 1,203 days unlawfully.  If Lumba and Kambadzi do not apply, if those principles ‑ ‑ ‑

GORDON J:   Does that mean, just so that I am clear, that the principle and incidence of nominal damages, which is to reflect that where there is no loss and damage but you wish to acknowledge that a right has been breached, is ignored?

MR CAMERON:   It would be ignored and ordinary compensatory principles would apply.  The question of ‑ ‑ ‑

FRENCH CJ:   In essence, what you say is it is enough that he has been locked up without lawful warrant for 1,203 days.  He is entitled to compensation for having been locked up without lawful warrant for 1,203 days, notwithstanding that upon the counterfactual that he would, in any event, have been subject to be lawfully locked up for 1,203 days.

MR CAMERON:   In terms of special leave - “would”; not in terms of special leave - “could”, that would be different because if you ruled out the causation test then different principles apply.  Counterfactuals have been raised and the Full Court raised the counterfactual.  A counterfactual as conditional is a subjunctive conditional containing an…..clause that is contrary to fact. 
           Now, if one applies that to Lumba, for example, if the Secretary had applied the published policy, Lumba would have been lawfully detained.  That is straightforward.  If the mandated reviews had been carried out, Kambadzi would have been lawfully detained.  If, assuming that their detention was unlawful, which is not what the Court held in CPCF, if the maritime arrivals had not been taken to India they could have been or they would have been lawfully detained in Australia. 

But no such counterfactual is readily identifiable in this case because leaving out the “would” question again, there would have to be a series of counterfactuals.  If the officer was – if the person who detained Mr Fernando was an officer and if he knew or reasonably suspected contrary to fact that Mr Fernando was an unlawful non‑citizen and if that knowledge or suspicion was based on reasonable grounds he could have detained him or he would have been obliged to detain him.  But, in my submission, there must be evidence of that.  The mere existence of a power

and a duty in the statute is not sufficient because it does not provide a sufficient protection. 

Now, I think, in the course of my interchange I probably covered most of the points in my outline.  I would simply turn to the relief.  In addition to the orders sought in the notice of appeal in the appeal book there is a technicality if the appeal were allowed there should be an order that the order 1 of the Full Court be set aside and the appellant accepts that the terms of any remittal should not include a reference to exemplary damages.  Unless your Honours have any further questions, those are my submissions.

FRENCH CJ:   Thank you.  The Court will adjourn briefly to consider what course it should take.

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 AM:

FRENCH CJ:   We will not need to trouble you, Mr Solicitor. 

The argument presented to the Court on behalf of the appellant does not, in our opinion, adequately raise for consideration the question of principle which underpinned the grant of special leave.  That question was whether a person wrongly detained, who would in any event have been lawfully detained, is entitled to compensatory damages.  The premise that the appellant was liable to mandatory detention under section 189 is not open to question in this appeal.  In the circumstances in which the important question of principle has not adequately been exposed by the submissions made on behalf of the appellant, the grant of special leave should be revoked.

The orders of the Court are:  the grant of special leave is revoked; the application for special leave is dismissed and the appellant is to pay the costs of the application and of this hearing.

The Court will now adjourn until 10 o’clock tomorrow.

AT 10.59 AM THE MATTER WAS ADJOURNED