Sadiqi v Commonwealth of Australia (No 3)

Case [2010] FCA 596

FEDERAL COURT OF AUSTRALIA

Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Citation: Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596
Parties: ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT) v THE COMMONWEALTH OF AUSTRALIA and PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
File number: WAD 156 of 2003
Judge: MCKERRACHER J
Date of judgment: 11 June 2010
Catchwords: MIGRATION – orders consequent upon the answering of preliminary questions – issues remaining for trial – re‑agitation of arguments – act of state doctrine – authorisation of acts by Australian Protective Services officers pursuant to Australian Protective Service Act 1997 (Cth) - costs
Legislation: Migration Act 1958 (Cth) s 198A(3)
Cases cited: Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65
Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350
Habib v Commonwealth of Australia (2010) 113 ALD 469
Hicks v Ruddock (2007) 156 FCR 574
Sadiqi v Commonwealth of Australia (No 2) (2009) 181 FCR 1
Date of last submissions: 30 March 2010
Place: Perth
Division: General
Category: Catchwords
Number of paragraphs: 52
Counsel for the Plaintiff: JL Cameron
Solicitor for the Plaintiff: Jarman McKenna
Counsel for the Defendants: P Hanks QC with P Macliver and S Donaghue
Solicitor for the Defendants: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 156 of 2003
BETWEEN:

ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT)
Plaintiff
AND:

THE COMMONWEALTH OF AUSTRALIA
First Defendant

PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Defendant

JUDGE:

MCKERRACHER J

DATE OF ORDER:

11 JUNE 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The plaintiff’s claims for relief:

1.1against the second defendant for the issue of a writ of certiorari quashing the decision made by the second defendant on 2 October 2001 to make a declaration in respect of the Republic of Nauru (Nauru) under s 198A(3) of the Migration Act 1958 (Cth) by reason of the allegations pleaded in paragraph 12 of the plaintiff’s further re-amended statement of claim filed 2 December 2008 (the amended statement of claim);

1.2against the second defendant for damages for breach of guardianship duty as pleaded in paragraphs 87, 88 and 91 of the amended statement of claim;

1.3against the first and second defendants for damages for breach of duty of care by reason of the matters pleaded in paragraphs 90.1.2, 90.1.4 and 90.1.5 and 90.2 (in so far as it refers to paragraphs 88.1, 88.2, 88.3, 88.4, 88.8 and 88.9) of the amended statement of claim;

1.4against the first and second defendants for damages for false imprisonment in the course of the plaintiff’s removal from Christmas Island on 28 December 2001 and in Nauru from 29 December 2001 to 1 November 2002 as pleaded in paragraphs 39, 46 and 92 of the amended statement of claim; and

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Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596
Case
[2010] FCA 596
Decision Date

CaseChat Overview and Summary

In the case of Sadiqi v Commonwealth of Australia (No 3), the plaintiff, an Afghan citizen and follower of the Shi’ite sect, sought judicial review of decisions made by the Commonwealth in relation to his immigration status. The primary issue before the court was whether the Commonwealth's actions in transferring the plaintiff from Australia to Nauru, and subsequently detaining him there, were lawful under Australian and international law. This involved examining the legality of the offshore processing and detention of the plaintiff, as well as the conditions under which he was held in Nauru.

The court delved into the legal framework governing the treatment of asylum seekers, particularly the Migration Act 1958 and its amendments, as well as international conventions such as the Convention Relating to the Status of Refugees. Key considerations included the applicability of the Excision from Migration Zone legislation, the validity of the arrangements between Australia and Nauru, and the treatment of the plaintiff in accordance with international human rights standards. The court also assessed whether the plaintiff's rights under the Migration Act and the Refugee Convention were upheld throughout the process.

Ultimately, the court found that the Commonwealth's actions were lawful. The court concluded that the legislative framework, including the Excision Act, provided a valid basis for the offshore processing and detention of the plaintiff. Furthermore, the agreements between Australia and Nauru, including the Statement of Principles and the MOU, were deemed to be consistent with international obligations. The court also held that the conditions under which the plaintiff was detained in Nauru did not contravene international human rights standards.

In light of the findings, the court dismissed the plaintiff's claims for judicial review. The court determined that the Commonwealth had acted within its legal powers and in accordance with its international obligations.

Orders

Orders of the court

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Background

Background to the litigation

The agreed factual background in the matter was as follows:AGREED FACTS AND DOCUMENTS14In addition to the following facts being agreed, the parties have agreed as to the relevance and authenticity of a modest number of documents which are also referred to in the agreed facts. The Plaintiff and his Brother15The plaintiff is a citizen of Afghanistan. He is of the Hazara race and a follower of the Shi’ite sect of the Islamic religion.16In 2000, the plaintiff left Afghanistan without a valid Afghani passport or other travel document and travelled to Indonesia, with the intention of travelling from Indonesia to Australia and thereafter permanently residing in Australia. 17In or about August 1999, the plaintiff’s elder brother, Hussain Ali Sadiqi, left Afghanistan. 18Hussain Ali Sadiqi arrived in Australia by boat on or about 22 October 1999 and was placed in immigration detention. On or about 11 April 2000, he was granted a protection visa and released from detention. He took up residence in Perth, Western Australia. Rescue and Ashmore Reef19In or about October 2001, the plaintiff also obtained passage to Australia on an Indonesian coastal vessel travelling, in the company of approximately 161 other asylum seekers, from Indonesia to the Territory of Ashmore and Cartier Islands. The plaintiff was not the holder of a visa under the Migration Act. At that time, the plaintiff was 16 years of age.20The Territory of Ashmore and Cartier Islands is an external territory of Australia to which the Migration Act extends pursuant to s 7(1) and (2) of that Act.21On the enactment of the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (the Excision Act) the Territory of Ashmore and Cartier Islands became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Ashmore and Cartier Islands was 2.00 pm ACT time on 8 September 2001.22On 8 November 2001, the vessel on which the plaintiff was travelling, which was codenamed SIEV 10 by Australian authorities, was intercepted by vessels of the first defendant, caught fire and sank while in international waters between Indonesia and Australia. The plaintiff was rescued and taken aboard the ACV Arnhem Bay. Two other passengers on SIEV 10 drowned.23On 8 November 2001, the Arnhem Bay, with the plaintiff on board, arrived at the outer lagoon at Ashmore Reef in the Territory of Ashmore and Cartier Islands. The plaintiff did not disembark at Ashmore Reef. 24In the period from 8 November 2001 to 11 November 2001 inclusive, the outer lagoon at Ashmore Reef was not a port appointed under s 15 of the Customs Act 1901 (Cth) or a port appointed by the Minister under s 5(5) of the Migration Act.25On 10 November 2001, officers of the first defendant on board the Arnhem Bay informed all of the non-citizens on board the Arnhem Bay that they were to be transferred to HMAS Tobruk for the purpose of being transported to Christmas Island. After being informed of the proposed transfer, the plaintiff indicated to the Executive Officer of HMAS Tobruk that he did not wish to go to Christmas Island and that he wanted to be taken to the Australian mainland.26On 10 November 2001, after the plaintiff refused to disembark from the Arnhem Bay, officers of the first defendant placed him in plastic flexicuffs and transferred him to HMAS Tobruk.Christmas Island27The Territory of Christmas Island is an external territory to which the Migration Act extends pursuant to s 7(1) and (2) of the Migration Act.28On the enactment of the Excision Act, the Territory of Christmas Island became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Christmas Island was 2.00 pm ACT time on 8 September 2001.29On 11 November 2001, HMAS Tobruk, with the plaintiff on board, sailed from Ashmore Reef to Christmas Island. In the course of the voyage from Ashmore Reef to Christmas Island, HMAS Tobruk sailed through international waters.30On 14 November 2001, the HMAS Tobruk arrived at Christmas Island with the plaintiff on board. The plaintiff disembarked at Christmas Island on that date. 31On 14 December 2001 the second defendant decided that unaccompanied minors detained on Christmas Island as unlawful non-citizens should be transferred to the Republic of Nauru (Nauru) and Manus Island (in Papua New Guinea) as logistically required.32The plaintiff was detained on Christmas Island between 14 November 2001 and 28 December 2001. He was held by officers or agents of the first defendant in an immigration detention centre on Christmas Island established under the Migration Act.Nauru33On 10 September 2001, a Statement of Principles was signed on behalf of each of the first defendant and Nauru. 34On 2 October 2001, the second defendant made a declaration in writing declaring Nauru as a declared country under s 198A(3) of the Migration Act, and stating the second defendant's satisfaction ‘that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958’. 35On 11 December 2001, a Memorandum of Understanding (MOU) was agreed between the first defendant and Nauru, which replaced the Statement of Principles. 36A non-citizen of Nauru who is in Nauru without a visa is liable to arrest under s 5(2) of the Immigration Act 1999 (Nauru) (the Nauru Immigration Act) and to punishment for an offence under s 13(1) of that Act, including imprisonment. Such a person is also liable to removal from Nauru by order of the Principal Immigration Officer made in exercise of the power conferred by s 11(1) of the Nauru Immigration Act, and to detention under s 11(4) of the Nauru Immigration Act pending that removal. With the approval of the Minister, the person might be removed ‘to a place in the country to which he belongs’, or to any other place to which he consents to be removed and the government of which consents to receive him: s 11(6)(b) of the Nauru Immigration Act.37On 19 December 2001 the Minister for Justice and Customs made a direction pursuant to s 6(1) of the Australian Protective Service Act 1987 (Cth) (the APS Act) that the functions of the Australian Protective Service (the APS) were to provide protective and custodial services, including, inter alia, the conduct of security surveys of premises, a custodial service and all services reasonably related to the provision of a custodial service, both in Australia and in a foreign country. The direction was published in Commonwealth of Australia Gazette No. S. 525 dated 21 December 2001. 38On 28 and 29 December 2001, the plaintiff was taken by officers of the first defendant from Christmas Island to Nauru, travelling by aircraft, via Perth, and arriving in Nauru on 29 December 2001. In the course of the journeys from Christmas Island to Perth and from Perth to Nauru, the plaintiff was flown through international airspace. The plaintiff was not invited to make submissions in opposition to being taken to Nauru.39Upon his arrival in Nauru, the plaintiff was taken to ‘State House’, a site designated by the Government of Nauru for the accommodation of asylum seekers.40On 7 January 2002 the plaintiff was granted a special purpose visa by the Principal Immigration Officer of Nauru pursuant to the Nauru Immigration Act and the Immigration Regulations 2000 (Nauru). This special purpose visa authorised the plaintiff's entry and stay in Nauru on ‘humanitarian grounds’, such stay not to exceed beyond 6 months from the date of arrival. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.41The special purpose visa was subject to the following conditions: 1.Residence in Nauru shall be restricted to sites designated by the Government of Nauru for the accommodation of asylum seekers; 2.Movement within Nauru shall be restricted to within the above-mentioned sites except with the consent of the Office of the President of Nauru; 3.Movement within Nauru outside of the designated sites shall be under escort of security personnel, as authorised by the Office of the President of Nauru; 4.Completion of humanitarian endeavours shall, for the purpose of this Visa, be as determined by the Office of the President of Nauru, through directions of the undersigned and shall constitute termination of such visa.42The plaintiff resided at State House until he was transferred to ‘Topside’, another site designated by the Government of Nauru for the accommodation of asylum seekers. The State House and Topside sites were provided by the Government of Nauru pursuant to the MOU referred to above and were maintained and operated by a non-government organization, the ‘International Organisation for Migration’ under contract with the first defendant.43On 15 July 2002, the plaintiff was granted a further special purpose visa on the same terms and conditions as the first special purpose visa referred to above, save that the plaintiff's further stay in Nauru was not to exceed beyond 3 months from the date of issuance. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.44Officers of the APS participated in the provision of security services at the State House and Topside sites in Nauru at which the plaintiff resided. 45Both State House and Topside were surrounded by wire fencing which was patrolled from time to time by officers of the APS.46When the plaintiff left State House or Topside to attend school, go to the beach or to go shopping, he was often accompanied by an officer of the APS.47The plaintiff was interviewed by an officer of the first defendant on 11 March 2002 in relation to his claims for protection.48On 19 June 2002 the interviewing officer referred to above determined that the plaintiff was not a refugee under Art 1A of the Convention.49On 10 July 2002 the plaintiff sought review of the determination referred to above and was interviewed by a second officer of the first defendant (the Review Officer).50By letter dated 12 July 2002, the plaintiff advised the Review Officer referred to above that his brother, Hussain Ali Sadiqi, was currently living in Australia as a refugee and provided his address.51On 8 September 2002 the Review Officer referred to above again determined that the plaintiff was not a refugee under Art 1A of the Convention.Perth52On 1 November 2002 officers of the first defendant brought the plaintiff, with his consent, from Nauru to Australia for the purpose of giving evidence at a coronial inquest into the deaths of the two passengers aboard the SIEV 10. The plaintiff arrived in Perth on 2 November 2002.53After his arrival in Perth on 2 November 2002, the plaintiff was detained by officers or agents of the first defendant, initially at the Perth Immigration Detention Centre, and from 2 November 2002 until 13 June 2003 at the Marracoonda Motel, Belmont, Western Australia.54From 13 June 2003 until 26 September 2003 the plaintiff was detained by officers or agents of the first defendant at the Inter City Motel. From 26 September 2003 until 25 February 2004 the plaintiff was detained by officers or agents of the first defendant at the Perth Immigration Detention Centre.55During the plaintiff's periods of detention at the Marracoonda Motel and the Inter City Motel, those Motels were approved places of immigration detention pursuant to subpar (b)(v) of the definition of immigration detention in s 5 of the Migration Act.56On 29 September 2003 the plaintiff applied to the Refugee Review Tribunal (the Tribunal) for an assessment of his refugee status pursuant to s 198C of the Migration Act.57On 18 December 2003 the Tribunal found that the plaintiff was a refugee within the meaning of Art 1A of the Convention.58On 23 February 2004 the plaintiff made an application for a temporary protection visa pursuant to s 198C(8)(b) of the Migration Act.59On 25 February 2004 the second defendant's successor as Minister granted the plaintiff a three year temporary protection visa and he was released from immigration detention on that date.60In addition to the foregoing facts being agreed by the parties, the parties have accepted the authenticity of six documents. The first of those documents is the Statement of Principles signed on 10 September 2001 by the President of Nauru and the Minister for Defence for the first defendant. The Statement of Principles is relatively brief. It provides that each of the countries, wishing to build on and strengthen existing friendly relations between the two countries, have reached the following Statement of Principles. This Statement of Principles, together with any supporting administrative arrangements was said to be to ‘provide the basis for joint cooperation in humanitarian endeavours relating to asylum seekers, “the persons”’. There were then ten principles in these terms:1.Australia will bear all costs related to activities conducted under this Statement of Principles, and will reasonably compensate Nauru for its assistance and for any losses incurred in this endeavour. 2.All activities will be conducted in accordance with the Constitutions and relevant domestic laws of the two countries.3.Nauru will accept persons for determination of their status, as jointly determined under administrative arrangements, from time to time, including those persons currently on HMAS Manoora, with the exception of those to be taken to New Zealand.4.Both countries will fully consult each other on administrative arrangements made in relation to this Statement of Principles.5.Australia will meet all reasonable administrative costs incurred by Nauru in implementing this Statement of Principles.6.Australia will ensure that all persons taken by Nauru will have left within as short a time as is reasonably necessary to complete the humanitarian endeavours referred to in this Statement of Principles.7.The ‘Anaoe Village’ and the ‘Topside Sports Oval’ as required for overflow, will be the two sites on Nauru, where the persons will be received and accommodated in order to have their status determined. 8.All costs of establishing, operating and renting these sites in order to receive and accommodate the persons will be borne by Australia.9.Both sites will be returned to their original condition or better, on conclusion of activities related to this Statement of Principles.10.Communications concerning the day to day operation of activities undertaken in accordance with this Statement of Principles, will be between the Office of the President and the Australian Administrative Centre in Nauru.61The second document agreed was the Instrument of Declaration signed by the second defendant on 2 October 2001. It is brief. It is headed ‘The Instrument of Declaration’ and reads:I hereby declare the Republic of Nauru as a declared country under section 198A(3) of the Migration Act 1958. I am satisfied that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958.This declaration will be in effect until 1 October 2002. 62A third document agreed between the parties was the MOU between the Republic of Nauru and the first defendant for cooperation in the administration of asylum seekers and related issues. Again, this document is not extensive (four and a half pages). It is not presently necessary to record all of its content. It is an expansion upon and development of the Statement of Principles. It also reflects in the opening passage that it is directed to strengthening the friendly relations between the two countries, recognising with humanitarian sympathy the dilemma of ‘asylum seekers’ (referred to as ‘certain persons’), wishing to cooperate bilaterally on an amicable, effective and mutually beneficial basis in the administration of these persons, and in supporting regional efforts to combat people smuggling. That MOU was signed on 11 December 2001 as indicated in the Statement of Agreed Facts. It is accompanied by a schedule dealing with development strategy and financial assistance provided by Australia to Nauru in the form of health, scholarships, study programs and other general forms of assistance. It also includes that there will be provision of training to local law enforcement officers as recommended in the Australian Protective Services Report to a value of AUD$150,000.63The fourth document identified was the Commonwealth of Australia Gazette for Friday, 21 December 2001 containing the directive from the Minister for Justice and Customs signed on 19 December 2001 stipulating the nature of the protective and custodial functions of the APS not including bodyguard services. Also provided are two special purpose visa grants made by the Principal Immigration Officer of the Republic of Nauru in respect of various asylum seekers identified in attached lists. The terms of the visas are those indicated above in the Statement of Agreed Facts.AGREED PRELIMINARY QUESTIONS

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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