FEDERAL COURT OF AUSTRALIA
Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117
MIGRATION – claim for damages against defendants – plaintiff rescued by ACV Arnhem Bay in international waters – transferred to outer lagoon at Ashmore Reef – transferred from Ashmore Reef to Christmas Island – detained on Christmas Island under s 189(2) of the Migration Act 1958 (Cth) (Migration Act) – transferred from Christmas Island to Nauru via Perth – transferred back to Perth by consent – meaning of ‘enter Australia’ within the Migration Act and the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) – meaning of ‘offshore entry person’ – whether plaintiff precluded from challenging the validity of the second defendant’s ‘Declaration of Nauru’ under s 198A(3) of the Migration Act – whether criteria contained in s 198A(3) constitutes a jurisdictional fact – whether officers or agents of first defendant authorised to take plaintiff from Christmas Island to Nauru – whether plaintiff’s detention in Australia authorised and/or required
MIGRATION – guardianship of child – whether consent in writing of second defendant required for plaintiff to leave Australia – whether second defendant’s actions involved a breach of its duties under ss 6 or 6A of the IGOC Act – whether the IGOC Act imposes any duties on the second defendant as guardian, the breach of which is enforceable by any cause of action sounding in damages
JURISDICTION – whether deployment of Australian Protective Service Officers in Nauru authorised under the Australian Protected Service Act 1987 (Cth) – whether legislation presumed not to have extraterritorial effect – whether actions of foreign sovereign state within its own territory justiciable in Australian Court
PRACTICE AND PROCEDURE – whether preliminary questions appropriate to answer
Acts Interpretation Act 1901 (Cth) ss 15B(1)(a), 15B(2), 15B(4), 15B(4)(ii), 17
Ashmore and Cartier Islands Acceptance Act 1933 (Cth) ss 7, 8(1)
Australia Act 1986 (Cth) s 2
Australian Protective Service Act 1987 (Cth) ss 4, 6, 6(1), 6(2)(a), 13, 14, 16, 18A, 18B, 18C, 21
Customs Act 1901 (Cth) s 15
Immigration (Guardianship of Children) Act 1946 (Cth) ss 4, 4AAA(1), 4AAA(1)(b), 4AAB, 5, 6, 6A, 6A(1), 6A(3), 6A(4), 8, 12
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 5, 5(1), 5(5), 5(5)(a), 6, 6A(3), 7, 7(1), 7(2), 13, 14, 14(1), 46(1), 46A, 80, 189, 189(1), 189(2), 189(3), 189(4), 196, 198A, 198A(1), 198A(3), 198C, 198C(8)(b), 418(1),
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)Immigration Act 1999 (Nauru) ss 5(2), 11(1), 11(4), 11(6)(b), 13(1)
Immigration Regulations 2000 (Nauru)
Federal Court Rules O 11 r 10, O 29 r 2, O 32Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322
Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 1186
Arnold v Attorney-General (VIC) [1995] FCA 727
Associated Provincial Picture Houses Ltd v…
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- AGLC
- Sadiqi v Commonwealth (No 2) [2009] FCA 1117
- Case
- [2009] FCA 1117
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including whether the plaintiff's arrival at Ashmore Reef constituted entering Australia, whether he was in Australia for the purposes of the Migration Act, and if his actions made him an "offshore entry person." Additionally, the court had to address the applicability of section 17 of the AIA and whether a freestanding cause of action could be based on a breach of section 6 of the IGOC Act. The court's reasoning involved a detailed analysis of statutory language and the application of legal principles to the facts of the case.
The court concluded that several of the questions posed were answered in the negative, while others were answered affirmatively based on the specific formulations and the statutory definitions provided. Notably, the court found that the answers to certain questions were inappropriate to provide, and that section 17 of the AIA was a complete answer to specific inquiries. The court also highlighted the contributions of the plaintiff's legal representatives and invited the parties to confer on the consequences of the answers provided. If an agreement could not be reached, the parties were to file written submissions within 28 days.
The final orders of the court required the parties to either confer and file a minute of consent orders or to file and serve written submissions within 28 days. The time for filing and service of any notice of appeal or application for leave to appeal was extended until 21 days from the date of those consent orders or any further consequential orders. The court also granted liberty to apply on three days' notice.
Orders
Orders of the court
1. The answers to the preliminary questions and the defendants’ amended notice of motion are as follows:
1.1 ‘no’
1.2 ‘no’
2.1 ‘no’
2.2 ‘yes’
2.3 ‘no’
3 ‘no’
4 ‘yes’
5.1 ‘yes’
5.2 ‘yes’
5.3 ‘yes’
6.1 ‘no’
6.2 ‘no’
7 ‘yes’
8 ‘no’
9 ‘no’
10 ‘yes’
11.1 ‘no’
11.2 ‘no’
12 ‘yes’
13 Inappropriate to answer
14 ‘no’ (as the question is specifically formulated)
NM-1 Inappropriate to answer
NM-2 Inappropriate to answer
NM-3 Inappropriate to answer
NM-4.1 ‘yes’
NM-4.2 Does not arise
NM-4.3 Does not arise
2. The parties do confer and file a minute of consent orders in relation to costs and the consequences flowing from the answers given to these questions, or if no agreement is reached, the parties do file and serve written submissions within 28 days from today.
3. Time for the filing and service of any notice of appeal or any application for leave to appeal will be extended until 21 days from the date of those consent orders or any further consequential orders made following receipt of written submissions or further order of the Court.
4. There be liberty to apply on three days notice.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MCKERRACHER J
In my view, s 17 of the AIA is a complete answer to questions 1.1 and 1.2 which must be answered ‘no’. Ashmore Reef – Migration Act2.For the purposes of the Migration Act, when the Plaintiff arrived at the outer lagoon at Ashmore Reef on 8 November 2001:2.1.did the Plaintiff “enter Australia” within the meaning of s 5 of the Migration Act?2.2.was the Plaintiff “in Australia” for the purposes of s 189(2) of the Migration Act?2.3.did the Plaintiff become an "offshore entry person" as defined in s 5 of the Migration Act? Relevantly s 5 of the Migration Act provides as follows:5 InterpretationAustralian waters means:(a)in relation to a resources installation—waters above the Australian seabed; and(b)in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.enter includes re‑enter.enter Australia, in relation to a person, means enter the migration zone.entered includes re‑entered.entry includes re‑entry.excised offshore place means any of the following:(a)the Territory of Christmas Island;(b)the Territory of Ashmore and Cartier Islands;(c)the Territory of Cocos (Keeling) Islands;(d)any other external Territory that is prescribed by the regulations for the purposes of this paragraph;(e)any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;(f)an Australian sea installation;(g)an Australian resources installation.Note: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.excision time, for an excised offshore place, means:(a)for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or(b)for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or(c)for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or(d)for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or(e)for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or(f)for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or(g)for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.immigration detention means:(a)being in the company of, and restrained by:(i)an officer; or(ii)in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or(b) being held by, or on behalf of, an officer:(i)in a detention centre established under this Act; or(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or(iii)in a police station or watch house; or(iv)in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or(v)in another place approved by the Minister in writing;but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).lawful non‑citizen has the meaning given by section 13.leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:(a)land that is part of a State or Territory at mean low water; and(b)sea within the limits of both a State or a Territory and a port; and(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;but does not include sea within the limits of a State or Territory but not in a port.non‑citizen means a person who is not an Australian citizen.officer means:(a)an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or(b)a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or(c)a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or(d)a member of the Australian Federal Police or of the police force of a State or an internal Territory; or(e)a member of the police force of an external Territory; or(f)a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or(g)any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.offshore entry person means a person who:(a)entered Australia at an excised offshore place after the excision time for that offshore place; and(b)became an unlawful non‑citizen because of that entry.port means:(a)a proclaimed port; or(b)a proclaimed airport.proclaimed airport means:(a)an airport appointed under section 15 of the Customs Act 1901; or(b)an airport appointed by the Minister under subsection (5).proclaimed port means:(a) a port appointed under section 15 of the Customs Act 1901; or(b) a port appointed by the Minister under subsection (5).protected area means an area that is:(a)part of the migration zone; and(b)in, or in an area in the vicinity of, the Protected Zone.Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.transitory person means:(a)an offshore entry person who was taken to another country under section 198A; or(b)a person who was taken to a place outside Australia under paragraph 245F(9)(b); or(c)a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:(i)was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and(ii)was then taken by HMAS Manoora to another country; and(iii)disembarked in that other country;but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.unlawful non‑citizen has the meaning given by section 14.vessel includes an aircraft or an installation.visa has the meaning given by section 29 and includes an old visa.visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.