Mbugua v Commonwealth of Australia - [2012] WADC 36

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MBUGUA -v- COMMONWEALTH OF AUSTRALIA [2012] WADC 36

CORAM: WISBEY DCJ

HEARD: 18 MAY, 29 JULY & 1 DECEMBER 2010 AND 29 MARCH, 22 JULY & 11 NOVEMBER 2011

DELIVERED : 13 MARCH 2012

FILE NO/S: CIV 313 of 2009

BETWEEN: THOMAS NGUGI MBUGUA
Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER OF IMMIGRATION AND CITIZENSHIP
Second Defendant

Catchwords:

Torts - Alleged misfeasance and/or breach of statutory duty and/or common law duty of care - Cancellation of non-citizen student visa consequent upon service of invalid notice

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s 19, s 20
Migration Act 1958 (Cth), s 137J, s 137K, s 137L, s 189, s 196, s 198

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     B L Nugawela & D Singh
First Defendant            :     P R Macliver
Second Defendant        :     P R Macliver

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First Defendant            :     Australian Government Solicitor
Second Defendant        :     Australian Government Solicitor

Case(s) referred to in judgment(s):

Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Drexel London (a firm) v Gove [2009] WASCA 181
Pyrenees Shire Council v Day (1998) 192 CLR 330
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Uddin v Minister for Immigration [2005] FMCA 841
X (Minors) v Bedfordshire County Council & Ors [1995] 2 AC 633

WISBEY DCJ: Thomas Ngugi Mbugua (the plaintiff) born and domiciled in the Republic of Kenya, was on 27 June 2001 granted a TU subclass 560 visa (student visa) pursuant to the Migration Act 1958 (Cth) to enable him to reside temporarily in Australia to pursue a diploma in computing and information technology at the Perth Institute of Business and Technology (PIBT). He was a non‑citizen as defined in the Migration Act.
The student visa was subject to condition 8202 in item 4 of sch 4 of the Legislation Amendment Migration (Overseas Students) Act 2000 requiring the plaintiff to achieve an academic result that was certified by his education provider to be at least satisfactory for each term and semester of his course. In the result he was in default of that condition, and on 25 February 2002 PIBT issued him a notice purportedly pursuant to s 20(1) of the Education Services for Overseas Students Act 2000 (the Education Services Act) recording that he had breached a condition of his student visa relating to satisfactory academic performance in the course in which he was enrolled, namely that he had failed a unit more than once. The notice stated (inter alia) that:
Pursuant to s 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter. You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office: Australia (Perth, WA), Australian Taxation Office Building William and Francis Streets, Northbridge WA.
The notice went on to advise that if the plaintiff reported as required the automatic cancellation of his student visa would not proceed, but a decision would then be made whether or not there would be cancellation; and that cancellation would not take place if he was able to show that no breach had occurred.
The plaintiff did not attend upon a compliance officer within the time stipulated, and in accordance with the provisions of s 137J of the Migration Act (conditional on a valid s 20 notice having issued) his student visa was cancelled and his status became that of an unlawful non‑citizen.
The plaintiff attended the DIMIA office on 26 March 2002 (outside the 28‑day period stipulated) and was advised that his student visa had been cancelled. He was granted a Bridging E visa valid until 5 April 2002 to enable him to seek revocation of the cancellation, and on 27 March 2002 made such an application pursuant to s 137K(1) of the Migration Act. On 5 April 2002 he was granted a further Bridging E visa valid until 12 April 2002, and on 9 April 2002 a decision was made not to revoke the statutory cancellation.
As a consequence the plaintiff made application pursuant to s 338 of the Migration Act to the Migration Review Tribunal for a review of the non‑revocation decision, and on 11 April 2002 was granted a further Bridging E Visa valid until the expiration of 28 days of notification to him of the Migration Review Tribunal decision. On 16 October 2002 the Migration Review Tribunal affirmed the non‑revocation and advised the plaintiff of its decision by letter bearing that date.
As from 22 November 2002 the plaintiff's status became that of a non‑citizen who was not the holder of any class of visa (an unlawful non‑citizen). As a consequence on 10 February 2003 he was detained and held at the Perth Immigration Detention Centre until 13 February 2003 when he was removed from Australia pursuant to s 198 of the Migration Act.
It was accepted by the first defendant both in its defence at the time of and during trial on 18 May 2010 that the purported notice issued pursuant to s 20 of the Education Services Act did not comply with the mandated statutory requirements, and that as a consequence the statutory cancellation of the student visa was contrary to law, and there was no lawful authorisation for the apprehension, detention and removal of the plaintiff from Australia (see Uddin v Minister for Immigration [2005] FMCA 841.
The statutory requirements for a valid s 20 notice were that it:
(i)was preceded by a breach of a prescribed condition of the student visa;
(ii)was in a form approved by the Secretary of the Immigration Minister's Department;
(iii)(a) contained particulars of the breach;
(b)required the student to attend in person before an officer (as defined in the Migration Act) at a specified place within 28 days after the date of the notice, for the purpose of making submissions about the breach;
(c)required the student to present photographic identification;
(d)set out the effect of s 137J and s 137K of the Migration Act.
Section 137J provides that where a notice is sent (even if not received by the non‑citizen), his visa is cancelled by force by the section, unless before the end of the 28‑day period he:
(a)complies with the notice; or
(b)while attending in person at an Office of Immigration makes himself available to an officer for the purpose of making any submissions about the breach.
Section 137K provides that a non‑citizen whose visa has been cancelled under s 137J may apply in writing to the minister for revocation of the cancellation. If the non‑citizen is in the migration zone he cannot apply for revocation at any time when, because of s 82, the visa would no longer have been in effect anyway.
If the non‑citizen has been detained under s 189 he cannot apply for revocation later than:
(a)Two working days after being informed of his rights; or
(b)If he informs an officer in writing within those two working days of his intention to so apply – within the next five working days after those two working days.
The notice sent to the plaintiff was in form deficient in that it;
(i)required him to attend before a compliance officer rather than an officer, the former being merely one of a range of individuals coming within the definition of officer in s 5 of the Migration Act. Bearing in mind the requirement to attend at a specified place, the default would not seem to be of great moment.
(ii)failed to make it clear that pursuant to s 137J his visa would not be automatically cancelled if he attended in person at an Immigration Office and made himself available to an officer for the purpose of making any submission about the breach. Bearing in mind that the plaintiff failed to report at the nominated venue within the stipulated time, this would again appear to be a matter of little practical consequence.
In the result he did avail himself of the right to apply to the Minister for revocation, although unsuccessfully.
Subsequent to the hearing in these proceedings on 18 May2010 and just before I was to deliver judgment, the solicitors for the first defendant ascertained and properly brought to the attention of the plaintiff that the form of the s 20 default notice sent to the plaintiff which was then in general use (i.e, as in Uddin) had never been approved by the Secretary of the Immigration Minister's Department as required by s 20(3) of the Education Services Act and as a consequence, regardless of its content, was a nullity. It was not until 1 August 2002 that the notice in, as it happens, defective form, received secretarial approval.
As a result of this information I directed on 29 March 2011 (inter alia) that the plaintiff file an amended statement of agreed facts, and the parties have leave to file and serve amended pleadings. As a consequence, on 20 April 2011 the plaintiff filed and served an amended statement of claim; and on 4 May 2011 the first defendant filed and served an amended defence.
On 22 July 2011 the plaintiff applied to re‑open his case to call the Secretary of the Ministers Department to question the Secretary concerning the non‑approval of the notice. The plaintiff did not have a statement from the Secretary about the position, and the proposed step would have been at best 'fishing'. Having regard to the fact that there is no dispute that the s 20 notice served was not in an approved form, the calling of the Secretary was not likely to assist in the resolution of the issues raised on the pleadings. As a consequence I refused the plaintiff's application.
In the statement of claim as amended it is pleaded that the s 20 notice had not been approved by the Secretary, and that the failure to do so constituted negligence and/or reckless indifference and/or deliberate blindness by the Secretary in the discharge of the Secretary's duties pursuant to s 20(3) of the Education Act. It is alleged that the first defendant owed a statutory or common law duty of care to the plaintiff to ensure the Secretary addressed the approval requirement; the statutory duty allegedly arising from s 20. It is pleaded that the first defendant's breach of duty and/or misfeasance in public office has caused the plaintiff injury, loss and damage.
In the amended defence it is accepted that the s 20 notice served had not received secretarial approval, and that it was not until 2 August 2002 that approval was given for a notice in identical form. It is accepted in the defence that the notice served was not in the circumstances sufficient to trigger the automatic cancellation of the student visa. The first defendant maintains its denial that it owed a statutory or general duty of care to the plaintiff and/or that the failure to approve the notice constituted misfeasance in public office.
The plaintiff alleges that his arrest, detention and deportation resulted from:
(i)the failure and/or neglect and/or the reckless indifference or deliberate blindness of the Secretary in carrying out the statutory duty pursuant to s 20(3) of the Education Act.
(ii)the failure and/or neglect and/or refusal and/or reckless indifference and/or deliberate blindness on the part of the agents or employees of the first defendant in determining whether the plaintiff had been sent a valid notice under s 20 of the Education Act.
The plaintiff alleges that the first defendant owed a statutory and/or a common law duty of care to him, and that it was in breach of that duty, as a consequence of which he sustained loss. The duty allegedly owed by the first defendant to the plaintiff is pleaded generally as failing to forward a statutorily compliant s 20 notice; failing to exercise reasonable care to establish prior to the plaintiff's arrest, detention or deportation, that all statutory preconditions had been complied with; and the failure and/or neglect and/or the reckless indifference or deliberate blindness of the secretary in carrying out the statutory duty pursuant to s 20(3) of the Education Act.
The claim against the second defendant was discontinued.

The factual material

The plaintiff submitted and relied upon a statement of agreed facts (exhibit 3); an agreed bundle of trial documents (exhibit 1); and condition 8202 (exhibit 2). He did not give or adduce oral evidence.
The first defendant called two witnesses.
Richard Keane, an employee of the Department of Immigration and Citizenship, was at the relevant time a compliance officer with the department. The compliance section was headed by Mr Kevin O'Connor. Although having no specific recollection of the plaintiff's case, his evidence was that the procedure with respect to unlawful non‑citizens was that they were identified from the Department's records, including its ICSE computer program, following which an attempt would be made to contact them to arrange an interview. When that was not possible there would be a field visit, and in the absence of legitimate explanation the unlawful non‑citizen would be apprehended and given a detention notice and a visa options information document. Once the officer had formed a reasonable suspicion that the person was an unlawful non‑citizen and had not made suitable arrangements or lacked sufficient funds to vacate the country, that person would be detained pursuant to s 189 of the Migration Act and taken to the Perth Immigration Detention Centre, where arrangements would be made for expulsion.
Mr Keane's attention was addressed to his handwritten notes at page 45 and page 46 of the agreed bundle, which record his field visit to the plaintiff on 10 February 2003. The plaintiff originally claimed to be a Tanzanian citizen, Emmanuel Mbutto, before confessing to his true identity.
Adam Logie was at the relevant time a removals/compliance officer with the Department, charged with the responsibility of effecting removal of persons held at the Immigration Detention Centre. Prior to removal, the Department's records would be checked to ensure that there was no lawful impediment to that course of action. Principally the check seemed to have been of the ICSE computer records. The removal of an unlawful non‑citizen required the approval of the Head of Compliance.
Essentially, the facts relevant to a determination of the issues before the court are not in dispute.
The relevant statutory framework against which the issues are to be decided is conveniently set out in the first defendant's outline of opening submissions as follows.

The Education Act

20Sending students notice of visa breaches
(1)A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.

Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2)The registered provider must send the notice as soon as practicable after the breach.
(3)The notice must be in a form approved by the Secretary of the Immigration Minister's Department.
(4)The notice must:
(a)contain particulars of the breach; and
(b)state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c)state that the student must present photographic identification when so attending; and
(d)set out the effect of sections 137J and 137K of that Act.

(5)…

Section 19 of the Education Services Act relevantly provided that:
19Giving information about accepted students
(1)A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
(a)the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b)for each person who becomes an accepted student – the name, starting day and expected duration of the course for which the student is accepted;
(c)the prescribed information about an accepted student who does not begin his or her course when expected;
(d)any termination of studies by an accepted student before the student's course is completed;
(e)any change in the identity or duration of an accepted student's course;
(f)any other prescribed matter relating to accepted students.
(2)A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.
(3)Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(4)…

The Migration Act

Condition 8202

Item 4 of sch 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 provided at the relevant time that:
4.Special condition on certain student visas
(1)This item applies to the following visas (and only those visas):
(a)all student visas that are in effect when this item commences;
(b)all student visas that are granted after this item commences but before 1 July 2001.
(2)Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in sub item (3), instead of as set out in regulations made to the purposes of section 41 of the Migration Act 1958.
(3)The condition is that:
(a)in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full‑time course of study; and
(b)in any other case – the holder is enrolled in a registered course; and
(c)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course; and
(d)any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
Subdivision GB of div 3 of pt 2 of the Migration Act deals with the automatic cancellation of student visas. At the time that PIBT issued the s 20 notice, s 137J, s 137K, s 137L, s 137M, s 137N and s 137P relevantly provided that:
137JNon‑complying students may have their visas automatically cancelled
(1)This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non‑citizen who breaches a condition of the non‑citizen's visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of explaining the breach.
(2)the non‑citizen's visa is cancelled by force of this section at the end of the 28^th day after the day that the notice specifies as the date of the notice unless, before the end of that 28^th day:
(a)the non‑citizen complies with the notice; or
(b)the non‑citizen, while attending in person at an offence of Immigration (within the meaning of the regulations) that is either:
(i)in Australia; or
(ii)approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice
137KApplying for revocation of cancellation
(1)A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.
(2)A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
(3)…
(4)…
(5)…
137LDealing with the application
(1)On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a)that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b)that the breach was due to exceptional circumstances beyond the non-citizen's control; or
(c)of any other matter prescribed in the regulations;
(2)However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
(3)A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
137MNotification of decision
(1)When the Minister decides whether to revoke a cancellation under section137L, he or she must give the non‑citizen written notice of the decision.
(2)Notice of a decision not to revoke a cancellation must:
(a)specify the grounds for the decision; and
(b)state;
(i)that if the non-citizen was in the migration zone when the decision was made, the decision is reviewable under Part 5; and
(ii)the time in which the application for review may be made; and
(iii)who may apply for the review; and
(iv)where the application for review may be made;
(3)Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.
137NMinister may revoke cancellation on his or her own initiative
(1)The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non‑citizen's visa, if the Minister thinks that it is in the public interest to do so.
(2)…
(3)…
(4)…
(5)…
137PEffect of revocation
(1)If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.
(2)If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.
(3)However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.
(4)In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.
(5)Despite subsection (1), any detention of the non‑citizen that occurred during any part of the period:
(a)beginning when the visa was cancelled under section 137J; and
(b)ending at the time of the revocation of the cancellation;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention'.
Divisions 7 and 8 of Part 2 of the Migration Act deal with the detention and removal of unlawful non‑citizens. When the Plaintiff was taken into immigration detention on 10 February 2003 s 189(1) of the Migration Act provided that:
189Detention 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'.
Section 196 of the Migration Act provided at the relevant time that:
196Period of detention
(1)An unlawful non‑citizen detained under section 189 must be kept in immigration detention until he or she is:
(a)removed from Australia under section 198 or 199; or
(b)deported under section 200; or
(c)granted a visa;
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than for removal or deportation) unless the non‑citizen has been granted a visa.
Section 198 of the Migration Act then sets out various circumstances which require the mandatory removal of an unlawful non‑citizen from Australia.

The notice under s 20(1) was in use from the commencement of the Education Services Act until the decision in Uddin v The Minister for Immigration and Multicultural and Indigenous Affairs on 17 June 2005. In other words, it was in use and accepted as complying with the statutory requirements for over 4 1/2 years. In the event however it did not receive secretarial approval until 1 August 2002.
In the plaintiff's outline of submissions he asserts three causes of action:
(i)Misfeasance in public office.
(ii)Breach of statutory duty.
(iii)Common law negligence.

Misfeasance in public office

As pointed out in Fleming's The Law of Torts (10^th ed) 27.160, the central element of the tort is deliberate abuse of the office in the sense that there is a lack of honest belief that the act is lawful. The tort requires bad faith, not just in the sense of personal ill will, but that the act is improper, or done with improper motive. Its purpose is to prevent public officials from maliciously abusing their power to the detriment of others.
In Northern Territory v Mengel (1995) 185 CLR 307 Deane J, in discussing the tort, said (370):
As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172, the tort of misfeasance in public office is 'well established'. Its elements are:
(i)an invalid or unauthorised act;
(ii)done maliciously;
(iii)by a public officer;
(iv)in the purported discharge of his or her public duties;
(v)which causes loss or harm to the plaintiff
…
In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff (see Bourgoin SA v Ministry of Agriculture, Fisheries & Food [1986] QB 716, 776 – 777). Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.
Their Honours Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ stated (345):
However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. (references omitted)
They stated (347):
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton (1897) 2 QB 57, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
Their Honours went on to note that liability requires an act which the public officer knows is beyond power, and which involves a foreseeable risk of harm.
Brennan J said (357):
Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.
The plaintiff faces fundamental and insurmountable difficulties in establishing this cause of action:
(i)The obligation on the Secretary of the Immigration Minister's Department was to approve the form of a written notice which a registered provider was required to send an accepted student where the student had breached the prescribed conditions of the student visa. The failure to approve the form of a s 20 notice is not an invalid or unauthorised act, but a failure to act – non‑feasance rather than misfeasance.
(ii)There is nothing in the material before the court which would enable a conclusion to be drawn that the failure was malicious.
(iii)If the plaintiff was able to establish that the Secretary had acted maliciously in the discharge of the Secretary's duties under the Act, with the intention of disadvantaging the plaintiff, that would only result in personal liability of the Secretary. The first defendant would not be vicariously liable since there is nothing in the material before the court which would establish that the Secretary had de facto authority to act maliciously. The plaintiff would need to establish that the first defendant had authorised a dishonest abuse of power.
(iv)It was not suggested in evidence that the officers executing the detention and removal acted maliciously.

Breach of statutory duty

The plaintiff also asserts as a cause of action, breach of statutory duty simplicita. The breaches alleged are:
(i)the Secretary's failure to prescribe or approve a notice under s 20 of the Education Services Act complying with the statutory requirements of the section;
(ii)the arrest, detention and subsequent removal of the plaintiff from Australia reportedly in the exercise of the statutory authority contained in s 189 and s 198 of the Migration Act when by reason of the invalidity of the s 20 notice, that course of action was not then open to the first defendant.
If such a cause of action exists, it must arise out of the provisions and legislative purpose of the Education Services Act and the Migration Act.
An examination of the Education Services Act indicates that its purpose is to provide education facilities, and control, regulate and supervise non‑citizens who have been authorised to enter and remain in Australia for the purpose of pursuing a course of study.
Section 4A identifies the principal objects of the Act as:
(a)to provide financial and tuition assurance to overseas students for courses for which they have paid; and
(b)to protect and enhance Australia's reputation for quality education and training services; and
(c)to complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
Section 4 of the Migration Act identifies the object of that Act as being:
[t]o regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
In order to advance its object it:
(i)provides for visas permitting non‑citizens to enter or remain in Australia, it being Parliament's intention that the Act is the only source of the right of non‑citizens to so enter or remain;
(ii)requires persons, whether citizens or non‑citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non‑citizens entering the country;
(iii)provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted.
The Education Services Act is necessarily ancillary to the Migration Act.
Section 19 and s 20 of the Education Services Act are directly concerned with ensuring that overseas students who do not meet their student visa requirements have their visa privileges removed. The relevant notice under s 20 is directed to that end, and there is nothing to suggest directly or by implication that the obligation on the Secretary of the Immigration Minister's Department to settle the form of notice is a duty performed for the benefit of the non‑citizen student, or in respect of which he has conferred any rights. Its purpose is ancillary to, and supportive of, the object of the Migration Act.
The provisions contained in s 19 and s 20 of the Education Services Act have as their purpose the regulation and administration of the law governing non‑citizen student visas by requiring the provision of information as to breaches of student visa conditions.
The Education Services Act extends a privilege to non‑citizen students, and it would appear the only protective provisions of the Act are contained in pt IV which provides for the establishment of an assurance fund to guarantee that overseas students will receive the tuition for which they have paid.
In X (Minors) v Bedfordshire County Council & Ors [1995] 2 AC 633, Lord Browne‑Wilkinson, when addressing the issue of public law and private law, stated the basic proposition was that in the ordinary case a breach of statutory duty did not, by itself, give rise to any private law cause of action, although a private law cause of action would arise if it could be shown as a matter of construction of the statute that the statutory duty was imposed for the protection of a limited class of the public, and that parliament intended to confer on members of that class a private right of action for the breach of the duty.
In Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, Brennan CJ, Dawson J and Toohey J stated (424):
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404, 405.
The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v SP Bray Ltd (1937) 56 CLR 464 at 477 ‑ 478 an examination of the statute 'will rarely yield a necessary implication positively giving a civil remedy'.
In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 58, Gummow J when discussing whether there was a claim for breach of statutory duty to be found in the provisions of the Stevedoring Industry Act 1956 (Cth) stated:
The appellant did not contend that, upon its proper construction, the Authority Act had conferred upon her husband a cause of action for the recovery of damages for breach by the Authority of duties imposed upon it by the legislation. Any such argument would have run into difficulties. First, the appellant pointed to no relevant statutory duty attended by a sanction for non‑performance. Secondly, 'there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed': Northern Territory v Mengel (1995) 185 CLR 307 at 343 ‑ 344; and as Dixon J pointed out in O'Connor v SP Bray Ltd (1937) 56 CLR 464 at 477 ‑ 478 the legislation will rarely yield the necessary implication positively giving a civil remedy.
Section 20 of the Education Services Act was not imposed for the protection or benefit of non‑citizen students, but to regulate and supervise student visa privileges, in the national interest. It imposes an obligation on the registered provider and statutory sanctions in the event of non‑compliance.
The plaintiff has failed to establish a cause of action for breach of statutory duty.

Common law negligence

The plaintiff alleges that the first defendant owed a common law duty of care to him and was negligent in the context of that duty in that:
(i)the Secretary failed to prescribe and approve the form of the notice required to be sent to an accepted student if the student had breached the prescribed condition of a student visa pursuant to s 20(3) of the Education Services Act; and
(ii)failed to exercise reasonable care in determining whether the plaintiff had been sent a valid notice before concluding that the plaintiff's student visa had been automatically cancelled with the result that he was arrested, detained and deported.
Generally the argument is that there was a failure to exercise and/or an improper exercise of the statutory responsibilities imposed upon the first defendant, its agents and employees pursuant to the provisions of the Education Services Act and/or the Migration Act 1958.
The gravamen would not appear to be so much the failure to prescribe the form of the notice, but the acting upon a notice that was not statutorily compliant.
In considering the issue it is necessary to examine:
(i)the nature and scope of the duty of care alleged;
(ii)the breach of duty - the particular want of care alleged against the first defendant; and
(iii)the alleged harm suffered and the circumstances in which the plaintiff came to suffer the harm.
It is appropriate to examine the issues in reverse order.
The harm allegedly suffered by the plaintiff is that as a consequence of the presumption that he received a valid notice pursuant to s 20 of the Education Services Act and failed to successfully challenge the validity of the default the basis of the notice, he was categorised as an unlawful non‑citizen, arrested, detained and deported.
The alleged breaches by the first defendant are:
(i)the failure of the Secretary of the Immigration Minister's Department to approve in accordance with the requirements of s 20(3) the form of the notice required to be given to a student in default; and
(ii)the failure to satisfy itself prior to the arrest, detention and deportation of the plaintiff that the statutory requirements conditioning the engagement and application of s 137J of the Migration Act had been established.
The nature and scope of the duty allegedly owed by the first defendant to the plaintiff was essentially a duty to ensure that the plaintiff not be categorised as an unlawful non‑citizen and removed from Australia unless such removal complied with the statutory requirements of the Migration Act. It is to be observed that in that respect the Act provides the plaintiff and all other non‑citizens entering the country with administrative redress if adversely affected by action taken pursuant to the Act: see s 137K, s 137L, s 137N and pt 5 (dealing generally with review of decisions).
As I have already indicated s 19 and s 20 of the Education Services Act are sections the purpose of which is to ensure 'providers collect and report information relevant to the administration of the law relating to student visas'. The obligation on the Secretary to settle the form of notice is not a duty performed for the benefit of the non‑citizen student, or in respect of which the student has conferred any rights.
The suggestion that the officers of the first defendant were under a duty to undertake what would amount to a legal assessment of the validity of the s 20 notice and its subsequent consequences, must be rejected. The officers had a statutory obligation pursuant to s 189 of the Migration Act if they reasonably suspected the plaintiff was an unlawful non‑citizen, to detain him and deal with him pursuant to s 198 of the Act. I am satisfied on the evidence that they were entitled to and held the requisite suspicion – they were entitled to rely upon the correctness of the department records.
In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 405, Kitto J in addressing the issue as to whether a statutory breach would give rise to a common law action for damages stated:
[t]he question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre‑existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.
In Pyrenees Shire Council v Day (1998) 192 CLR 330, 346, Brennan CJ stated [22]:
I further agree that if it be contrary to the policy of the statute to confer a private right to compensation for non‑exercise of statutory power, the common law cannot create that right. A statutory power and its incidents are creatures of the legislature and the common law must conform to the legislative intention.
He stated at (347), [26]:
No duty breach of which sounds in damages can be imposed where the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of particular class.
In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 19, Gaudron J stated [27]:
Legislation establishing a statutory body may exclude the operation of the common law in relation to that body's exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference so that it was intended that the common law should be excluded either in whole or part.
In Drexel London (a firm) v Gove [2009] WASCA 181 her Honour McLure JA (as she then was) stated [264] and [265]:
Generally, reasonableness is the test for the imposition of a duty of care; it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence of a duty of care: Tame [9], [35], [109], [185], [272], [331]. However, the imposition on a public authority of a duty of care directly connected with the existence of a public power or duty raises discrete considerations. For example, there must be no incompatibility between a public authority's statutory powers and duties and its common law duties: Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [78].
Further, the mere existence of a statutory duty or power does not create a common law duty even if harm of the kind suffered is reasonably foreseeable: Sutherland Shire Council v Heyman; Graham Barclay [80] (McHugh J), [145] - [148] (Gummow & Hayne JJ); Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215. Something additional is required. What that something is depends on all the circumstances. Ordinarily, a public authority will have no liability for a pure omission (a term intended to exclude an omission occurring in the course of positive conduct: Bennett (419 - 420)). That is a consequence of the need for an appropriate accommodation of public and private law principles and remedies.
The Education Services Act is, as already indicated, ancillary to and coexists with the Migration Act. Their purpose is to regulate and control the entry into and residence (temporary or otherwise) in Australia of non‑citizens, in the national interest. It would be inconsistent with and have a tendency to frustrate the legislative purpose to impose a common law duty of care on those engaged in its implementation.

The first defendant was not in the circumstances under a duty of care to the plaintiff.
The plaintiff's claim fails.