Soh v Commonwealth

Case [2008] FCA 520

FEDERAL COURT OF AUSTRALIA

Soh v Commonwealth of Australia [2008] FCA 520

TORTS – false imprisonment – lack of authority to detain “unlawful non-citizen” in State prison

TORTS – novel torts – intentional “unconstitutional detention”

TORTS – misfeasance in a public office 

ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – existence of obligation – requirement to give procedural fairness before transferring unlawful non-citizen in immigration detention to State prison

ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – consequence of failure to accord procedural fairness – illegality of detention in State prison

Held:  There is a duty to accord procedural fairness to an unlawful non-citizen in making decision to transfer to a State prison or remand centre – duty breached – allegation of denial of procedure fairness first made 8 years later – no formal declaration of invalidity should be made – no illegality of detention as a result.

WORDS AND PHRASES – “in a prison or remand centre of the Commonwealth, a State or a Territory”   

Migration Act 1958 (Cth) s 5
Correctional Centres Act 1952 (NSW)

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 cited
Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 cited
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 143 FCR 1 cited
Leghaei v Director General of Security [2005] FCA 1576 applied
Miller v The Queen (1985) 24 DLR (4th) 9 cited
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 discussed
Northern Territory v Mengel (1994) 185 CLR 307 cited
Pidoto v Victoria (1943) 68 CLR 87 cited
Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 cited
R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 cited
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited

The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 cited

JAY HO SOH v COMMONWEALTH OF AUSTRALIA

NSD 596 OF 2004

MADGWICK J
18 APRIL 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 596 OF 2004

BETWEEN:

JAY HO SOH
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

MADGWICK J

DATE OF ORDER:

18 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 596 OF 2004

BETWEEN:

JAY HO SOH
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

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Details
AGLC
Soh v Commonwealth [2008] FCA 520
Case
[2008] FCA 520
Decision Date

CaseChat Overview and Summary

In Soh v Commonwealth, the plaintiff, Mr Jay Ho Soh, challenged the decision to transfer him from the Villawood Immigration Detention Centre to the Silverwater Metropolitan Remand and Reception Centre. The central issue was whether the transfer complied with the Migration Act 1958 and the associated regulations. The court had to determine if the process followed was lawful and if Mr Soh's rights under the Act were upheld during his transfer.

The court examined the procedural steps taken by the Commonwealth in transferring Mr Soh. The key question was whether the notice provided to Mr Soh adequately informed him of the reasons for the transfer and his rights, in line with the requirements of the Migration Regulations 1994. The court also considered if the Commonwealth officer's request to the Superintendent of Silverwater was appropriately executed under the Act.

The court concluded that the transfer was lawful and adhered to the Migration Act and regulations. The notice given to Mr Soh was deemed sufficient, as it informed him of the reasons for the transfer, his right to have the continued detention reviewed, and his right to complain to the Commonwealth Ombudsman. The court found that the Commonwealth had properly exercised its powers under the Act and that the procedural steps were correctly followed.

The final orders were that the application was dismissed and that the applicant was to pay the respondent's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs.

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

MADGWICK J
Mr Donatiello wrote a Minute to Mr Nicholls. He forwarded the material received from Mr Furlong and referred to paras 2.1, 4.1, 4.2 and 4.4 of MSI-157. He continued:The incident reports provided by ACM concerning Mr Soh’s behaviour indicate Mr Soh together with two other detainees threatened that if an Indonesian national due for removal on 8/6/99 was not released from a cell within 30 minutes “there would be big trouble” and that if it does not happen they would strike, they do not care what they have to do. As a result of this incident the Asian community in Acacia grouped together and were heard making comments that they would create a disturbance to prevent the Indonesian detainee from leaving and would slice the officers. Mr Soh was observed later in the evening in one of the detainee dormitorys [sic] inciting a group of 20 Chinese and Indonesian detainees from whom the comments “kill them” and “get the knife” were heard.Mr Soh has shown no sign that this behaviour is unacceptable and was later involved in standing guard to prevent ACM officers from removing the Indonesian national. Reports have previously been received regarding Mr Soh’s role in agitating fellow detainees and he has been counselled about his behaviour. His behaviour in this latest incident makes him unsuitable for the low security environment of the VIDC and he poses a risk to the good order and management of the VIDC.RECOMMENDATIONGiven his behaviour and the risk he presents to other detainees and staff, it would seem appropriate to transfer him to a State facility. I recommend that SOH Jay Ho be transferred to a State Facility and that, in accordance with MSI 157 he be provided with the attached Notice of transfer to a Person in Detention.The decision to transfer and the request to the prison governor On 12 June Mr Nicholls signified his agreement with Mr Donatiello’s recommendation. On 16 June Ms Symons sent a request in the following form to the Superintendent of Silverwater:COMMONWEALTH OF AUSTRALIAMIGRATION ACT 1958REQUEST FOR A NON-OFFICER TO HOLD IN IMMIGRATION DETENTION(only to be provided to persons who are not officers for the purposes of the Migration Act 1958)To SuperintendantMetropolitan Reception and Remand CentreSILVERWATER NSWI, Kay Symons, am an officer for the purposes of the Migration Act 1958.SOH Jay Hois liable to be held in Immigration detention under the Act, as he/she is known or reasonably suspected to be:ý an unlawful non-citizen; or¨ a non-citizen who visa is liable for cancellation; or¨ a deporteeUnder section 5 of the Act, a person is in Immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (“a place of Immigration detention”).An officer for the purposes of the Act, I hereby request you to hold him/her on my behalf inSILVERWATER MRRCA place of Immigration detention.K Symons Signature16/6/99 Date That document with another, a “Notice of Transfer to Person in Immigration Detention” was on the same day given to Mr Soh. The Notice informed him:To SOH Jay HoI, Kay Symons, am an officer for the purpose of the Migration Act 1958 (the Act).You are currently detained under the Act atImmigration Detention Centre, Villawoodand are to be transferred toSILVERWATER MRRCOn 16/6/1999Section 5 of the Act states that a person is held in immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (immigration detention).This notice is to inform you that you are to be transferred from your current place of immigration detention to be held in another place of immigration detention (as defined in section 5 of the Act). The reason(s) for this transfer are as follows:You were involved on 7/6/99 in agitating other detainees towards violence to prevent the removal of another detainee. As you made threats to the lives of staff and present a threat to other detainees and to the good management of the low security environment. Your unacceptable behaviour cannot be managed in the low security environment of the IDC. Counselling about your behaviour in the past has not resulted in an improvement and it has been deemed appropriate to transfer you to a state facility.You are to be transferred immediately and there is no review of this act of transfer.REVIEW OF PLACE OF DETENTIONThe continuation of your detention in this other place of immigration detention will be reviewed within 7 days of the date of this notice. The reasons for your transfer will be reviewed at the time to determine whether it is suitable to return you to your current place of immigration detention. This review will be conducted by the Department of Immigration and Multicultural Affairs (DIMA) in conjunction with the Australian Protective Service, and will take into account your behaviour whilst you are detained in this other place of immigration detention.RIGHT TO COMPLAIN TO THE COMMONWEALTH OMBUDSMANThe Commonwealth Ombudsman is an official appointed by the Australian Government to investigate complaints made against Government Departments.If you think that the Department has done something unfair, or unreasonable, or wrong in its dealings with you, then you have the right to contact the Commonwealth Ombudsman to ask them to investigate your complaint.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

On 16 June Ms Symons sent a request in the following form to the Superintendent of Silverwater:COMMONWEALTH OF AUSTRALIAMIGRATION ACT 1958REQUEST FOR A NON-OFFICER TO HOLD IN IMMIGRATION DETENTION(only to be provided to persons who are not officers for the purposes of the Migration Act 1958)To SuperintendantMetropolitan Reception and Remand CentreSILVERWATER NSWI, Kay Symons, am an officer for the purposes of the Migration Act 1958.SOH Jay Hois liable to be held in Immigration detention under the Act, as he/she is known or reasonably suspected to be:ý an unlawful non-citizen; or¨ a non-citizen who visa is liable for cancellation; or¨ a deporteeUnder section 5 of the Act, a person is in Immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (“a place of Immigration detention”).An officer for the purposes of the Act, I hereby request you to hold him/her on my behalf inSILVERWATER MRRCA place of Immigration detention.K Symons Signature16/6/99 Date That document with another, a “Notice of Transfer to Person in Immigration Detention” was on the same day given to Mr Soh. The Notice informed him:To SOH Jay HoI, Kay Symons, am an officer for the purpose of the Migration Act 1958 (the Act).You are currently detained under the Act atImmigration Detention Centre, Villawoodand are to be transferred toSILVERWATER MRRCOn 16/6/1999Section 5 of the Act states that a person is held in immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (immigration detention).This notice is to inform you that you are to be transferred from your current place of immigration detention to be held in another place of immigration detention (as defined in section 5 of the Act). The reason(s) for this transfer are as follows:You were involved on 7/6/99 in agitating other detainees towards violence to prevent the removal of another detainee. As you made threats to the lives of staff and present a threat to other detainees and to the good management of the low security environment. Your unacceptable behaviour cannot be managed in the low security environment of the IDC. Counselling about your behaviour in the past has not resulted in an improvement and it has been deemed appropriate to transfer you to a state facility.You are to be transferred immediately and there is no review of this act of transfer.REVIEW OF PLACE OF DETENTIONThe continuation of your detention in this other place of immigration detention will be reviewed within 7 days of the date of this notice. The reasons for your transfer will be reviewed at the time to determine whether it is suitable to return you to your current place of immigration detention. This review will be conducted by the Department of Immigration and Multicultural Affairs (DIMA) in conjunction with the Australian Protective Service, and will take into account your behaviour whilst you are detained in this other place of immigration detention.RIGHT TO COMPLAIN TO THE COMMONWEALTH OMBUDSMANThe Commonwealth Ombudsman is an official appointed by the Australian Government to investigate complaints made against Government Departments.If you think that the Department has done something unfair, or unreasonable, or wrong in its dealings with you, then you have the right to contact the Commonwealth Ombudsman to ask them to investigate your complaint.