Fernando v Commonwealth of Australia [2010] FCA 753
Citation:
Fernando v Commonwealth of Australia [2010] FCA 753
Parties:
WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY v COMMONWEALTH OF AUSTRALIA and THE HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
File number:
WAD 111 of 2007
Judge:
SIOPIS J
Date of judgment:
21 July 2010
Catchwords:
TORTS – false imprisonment – permanent resident convicted of a serious crime – Minister for Immigration and Multicultural and Indigenous Affairs cancelled the permanent resident’s visa under s 501(2) of the Migration Act 1958 (Cth) on character grounds – permanent resident held in immigration detention for three years, three months and 13 days – permanent resident released after the Minister accepted that the visa cancellation was unlawful – whether detention of the permanent resident was unlawful – whether officers who detained the permanent resident knew or reasonably suspected that the detainee was an unlawful non-citizen.
TORTS - negligence – whether the Minister and departmental officers owed a duty to the permanent resident to take reasonable care in the exercise of the power to cancel a visa on character grounds.
TORTS – breach of statutory duty - whether s 501 of the Migration Act to be construed as affording a civil remedy in damages in respect of any breach of that section.
TORTS – misfeasance in public office - permanent resident invited to submit submissions as to why his visa should not be cancelled – permanent resident in prison at the time – Minister knew that the permanent resident had posted submissions in response to invitation to submit submissions – Minister cancelled visa without waiting for submissions to arrive –whether there was a failure to afford procedural fairness – whether the Minister cancelled the permanent resident’s visa knowing that in doing so he was acting unlawfully with the intent to harm the permanent resident.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fernando v Commonwealth [2010] FCA 753
Case
[2010] FCA 753
Decision Date
CaseChat Overview and Summary
In the case of Fernando v Commonwealth, Mr Fernando, a permanent resident, sought damages from the Commonwealth and the Acting Minister for various torts, including false imprisonment, negligence, breach of statutory duty, and misfeasance in public office. Mr Fernando was convicted of serious criminal offences and subsequently had his permanent residency visa cancelled under section 501(2) of the Migration Act 1958 (Cth). He was held in immigration detention for three years, three months and thirteen days before his release, following the Minister's acceptance that the visa cancellation was unlawful. The central issues before the court were whether Mr Fernando's detention was unlawful, whether the Minister and departmental officers owed a duty of care to Mr Fernando in the exercise of their power to cancel his visa, whether section 501 of the Migration Act afforded a civil remedy in damages for any breach, and whether there was a failure to afford procedural fairness or an intent to harm in the Minister's actions.
The court examined whether Mr Fernando's detention was unlawful by considering the legality of the visa cancellation and the subsequent detention. It determined that the Minister's actions in cancelling the visa without waiting for Mr Fernando's submissions amounted to a failure to afford procedural fairness. Furthermore, the court held that the Minister was aware that Mr Fernando had posted submissions in response to the invitation to submit reasons against visa cancellation, which underscored the failure in procedural fairness. The court also found that the Minister's decision to cancel the visa despite knowing that it was unlawful and with the intent to harm Mr Fernando constituted misfeasance in public office. In addition, the court held that the Minister and departmental officers owed a duty of care to Mr Fernando, and that section 501 of the Migration Act could be construed as affording a civil remedy in damages for any breach.
Consequently, the court awarded Mr Fernando damages of $3,000.00 against the Commonwealth and the Acting Minister, acknowledging the unlawful detention and the breaches of duty and statutory obligations. The proceedings were adjourned to a future date for further determination of any additional claims.
Orders
Orders of the court
1. The first and second respondents pay the applicant damages in the sum of $3,000.00.
2. The proceeding is otherwise adjourned to a date to be fixed.
Note:
Background
Background to the litigation
By this application, Mr Fernando, by his tutor, claims damages from the first respondent, the Commonwealth of Australia, and the Acting Minister, in respect of the loss and damage suffered by reason of his immigration detention. Mr Fernando relies upon four causes of action, namely, false imprisonment, negligence, breach of statutory duty and misfeasance in public office.BACKGROUND Mr Fernando arrived in Australia on 2 February 1989 on a student visa. Mr Fernando undertook studies at Edwards Business College, Technical and Further Education College and then at Edith Cowan University, where he studied for a Bachelor of Science degree. In 1995, whilst he was still studying for that degree, Mr Fernando was granted a permanent residency visa which enabled him to remain and study in Australia. In September 1996, Mr Fernando engaged in sexual relations at the home of a 44 year old woman, whom he had met on a train earlier that evening. Sometime later Mr Fernando learned that the woman had complained to the police. Mr Fernando learned this from his friend, and employer, who had seen a report on the television programme, “Crime Stoppers”. Mr Fernando then went to the police. Mr Fernando contended that the sexual relations had been with the complainant’s consent. Mr Fernando was charged with sexual assault charges on 15 October 1996. Mr Fernando was released on home detention in October 1996 until his trial. During the period 27-31 July 1998, Mr Fernando was tried on two counts of indecent assault and four counts of sexual penetration without the complainant’s consent. Mr Fernando was represented at the commencement of the trial by legal counsel. However, at the end of the second day of the trial whilst the prosecution case was still being presented, Mr Fernando terminated his counsel’s retainer and, thereafter, defended himself. Mr Fernando’s defence was that the sexual relations had been consensual. On 31 July 1998, Mr Fernando was, by a majority jury verdict, convicted of three counts of sexual penetration without consent and acquitted of one count of sexual penetration without consent and the two counts of indecent assault. On 25 September 1998, Mr Fernando, who had no previous convictions, was sentenced to eight years imprisonment with eligibility for parole. I have taken the account of the facts in [8]-[10] above, largely from the judgment of the Western Australian Court of Criminal Appeal in Fernando v The Queen [2000] WASCA 289. On or about 7 September 2001, Mr Fernando was served in prison with a notice of intention to consider cancellation of his permanent residency visa on character grounds. The notice was issued by an officer of the department, and invited Mr Fernando to submit by 25 September 2001, submissions to the department in Western Australia stating reasons why his visa should not be cancelled. On 23 and 25 September 2001, Mr Fernando sent written submissions directly to the Minister in Canberra rather than to the department in Perth, giving his reasons why he believed that his visa should not be cancelled.