SBEG v Commonwealth

Case [2012] FCAFC 189

FEDERAL COURT OF AUSTRALIA

SBEG v Commonwealth of Australia [2012] FCAFC 189

Citation: SBEG v Commonwealth of Australia [2012] FCAFC 189
Appeal from: SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569
Parties: SBEG v COMMONWEALTH OF AUSTRALIA
File number: SAD 139 of 2012
Judges: KEANE CJ, LANDER & SIOPIS JJ
Date of judgment: 20 December 2012
Catchwords: NEGLIGENCE – where appellant unlawful non-citizen refugee in immigration detention – where ASIO issued adverse security assessment against appellant under Australian Security Intelligence Organisation Act 1979 (Cth) – where cl 866.225 of Sch 2 of Migration Regulations 1994 (Cth) prevented the appellant from being granted a protection visa – where High Court has now declared cl 866.225 to be pro tanto invalid: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 (5 October 2012) – where appellant claims place and circumstances of detention causing mental harm – scope of duty of care owed to appellant – whether appropriate to impose duty of care on respondent to exercise statutory power to approve form of detention in which the appellant could come and go as he pleased – whether such form of detention falls within definition of immigration detention in s 5(1)(b)(v) of Migration Act 1958 (Cth) – whether breach of duty by keeping appellant in “environment of incarceration” – whether permanent injunction seeking transfer of appellant should be granted – ss 5(1), 189, 196(3), 197AB, 197AC, 197AE 500(1)(c) of Migration Act 1958 (Cth)
Legislation: Australian Security Intelligence Organisation Act 1979 (Cth)
Migration Act 1958 (Cth) ss 5(1), 189, 196(3), 197AB, 197AC, 197AE 500(1)(c)
Migration Regulations 1994 (Cth) Sch 2 cl 866.225
Cases cited:

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 followed
Crimmins v Stevedoring Committee (1999) 200 CLR 1 discussed
Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102 discussed
Howard v Jarvis (1958) 98 CLR 177 followed
McLean v Tedman (1984) 155 CLR 306 discussed
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 cited
Northern Territory v Mengel (1995) 185 CLR 307 followed

Plaintiff M47/2012 v Director General of Security [2012] HCA 46 (5 October 2012) discussed
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 cited

S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 distinguished
SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 related
SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277 related
Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 distinguished
Sutherland Shire Council v Heyman (1985) 157 CLR 424 cited
VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 discussed
Date of hearing: 27 November 2012
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 85
Counsel for the Appellant: Mr J W K Burnside QC with Ms C M O’Connor and Mr M Manetta
Solicitor for the Appellant: Slater…

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SBEG v Commonwealth of Australia [2012] FCAFC 189
Case
[2012] FCAFC 189
Decision Date

CaseChat Overview and Summary

In the matter of SBEG v Commonwealth, the appellant, an unlawful non-citizen refugee in immigration detention, contested the legality of his detention conditions and sought a permanent injunction for his transfer to a more benign environment. The central issue was whether the respondent, the Commonwealth, owed a duty of care to the appellant in the exercise of its statutory powers to approve the form of detention. This encompassed whether such detention could fall within the definition of immigration detention under the Migration Act 1958 (Cth) and whether the appellant's placement in an "environment of incarceration" constituted a breach of this duty.

The court examined whether the appellant’s detention conditions amounted to a breach of the duty of care, particularly focusing on the nature of the detention environment. The appellant argued that a more therapeutic environment, akin to that provided by the Hotham Mission, was necessary to mitigate his mental health issues. The court noted the differing expert opinions on the therapeutic benefits of such an environment. However, the court held that the Minister does not have a duty to consider the exercise of the power conferred by section 197AB of the Act, which allows the Minister to approve alternative forms of detention. The court also considered the statutory definition of "immigration detention" and concluded that the Minister's decision not to exercise the power under section 197AB was not subject to judicial review.

The court ultimately dismissed the appeal and ordered the appellant to pay the respondent’s costs of the appeal, to be taxed unless otherwise agreed. The reasoning focused on the statutory constraints and the lack of a justiciable duty imposed on the Minister in exercising the power to approve alternative detention forms.

Orders

Orders of the court

1. The appeal should be dismissed.

2. The appellant should pay the respondent’s costs of the appeal to be taxed unless earlier agreed.

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

By virtue of s 197AE of the Act, the Minister does not have a duty to consider the exercise of the power conferred by s 197AB.THE DECISION OF THE PRIMARY JUDGE The appellant’s case was that reasonable care for his mental health required detention in a setting more benign than the “environment of incarceration” in the facilities where he has been detained. This expression was used by Professor Jureidini to include: “the guards, the bureaucratic cruelty, the exposure to other people’s distress, all those things”. The appellant’s case was that the Commonwealth was duty-bound to devise and implement a form of detention which would not have been deleterious to his health. One form of accommodation which would have been less harmful to the appellant, and which was identified in the appellant’s case, was that provided by the Hotham Mission. Professor Jureidini identified the possibility of accommodating the appellant in a house supported by the Hotham Agency, staffed by mature carers who have an educative as well as a supervisory role, as appropriate. Professor Mullen, who was called by the respondent, gave evidence to similar effect. The primary judge said at Reasons [65]-[66]:Again, Professor Jureidini expressed an opinion about the effect of the place of detention on the applicant’s mental condition. He said that the applicant did not require any special environment or hospitalisation, but that it would be therapeutic for him to be in an environment “where he is free to come and go as he pleases and has appropriate social supports”.Professor Jureidini said that the major cause of the applicant’s mental condition was his “detention experience”. In his oral evidence-in-chief he described what he meant by that expression and he said that he was referring to intrusive searches, inspection and monitoring by staff and the frustration caused by the bureaucracy associated with being in detention. Professor Jureidini said that the proper treatment was removal to a more appropriate environment which he described in various ways, including a family-type environment and an environment where he had older people around him who would guide and nurture him. Professor Jureidini said that placing a person who is a suicide risk on close watch is likely to exacerbate their mental problems rather than alleviate them. Evidence was given on behalf of the respondent by Mr Gregory Kelly, an officer of the Department, as to the various forms of detention that are available for the purposes of the Act, and as to his opinion as to the form of detention most appropriate for the appellant. His Honour decided the case without the need to reach a conclusion as to whether Mr Kelly’s opinion should be accepted. The evidence of Ms Pamela Curr, a witness called on behalf of the appellant, was that the Hotham Mission’s facilities are not guarded. The primary judge, at Reasons [53], accepted Mr Kelly’s evidence that the Hotham Mission has provided accommodation pursuant to determinations made under s 197AB of the Act.

Ratio Decidendi

Legal Principle Established

“Immigration detention” is defined by s 5(1) of the Act as follows:(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).Note 1: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.Note 2: This definition extends to persons covered by residence determinations (see section 197AC).(Emphasis in original.) It can be seen that immigration detention may be effected by an officer holding a person in a place, other than the places specified in (b) of the definition, where that other “place has been approved by the Minister in writing.” The Minister has the power to make a determination under s 197AB of the Act which enables a person to reside at a place specified in the determination “instead of being detained at a place covered by the definition of immigration detention.” On 30 December 2011, the Minister declined to consider the exercise of the power in s 197AB of the Act to allow the appellant to reside in the community pending the determination of his application for a protection visa. The Minister’s decision was made having regard to the appellant’s adverse security assessment. Section 197AB is in the following terms:(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).(2) A residence determination must:(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and(b) specify the conditions to be complied with by the person or persons covered by the determination.(3) A residence determination must be made by notice in writing to the person or persons covered by the determination. Section 197AC is referred to in Note 2 to the definition of “immigration detention”. Subsections (1), (2) and (3) of that section provide as follows: (1) While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.(2) If:(a) a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and(b) the person is not breaching any condition specified in the determination by staying there;then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.(3) Subsection (1):(a) does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and(b) does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.