SZRWS v Minister for Immigration & Ors (No.2)
[2018] FCCA 3876
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRWS v MINISTER FOR IMMIGRATION & ORS (No.2) | [2018] FCCA 3876 |
| Catchwords: MIGRATION – Application for summary judgment – whether the respondents have an answer to the claim or have reasonable prospects of successfully defending it considered. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth) Federal Court Rules 2011 (Cth) Migration Act 1958 (Cth), ss.5, 73, 189, 196, 252-252G, 273, 504 |
| Cases cited: ARJ17 v Minister for Immigration [2018] FCAFC 98 ASIC v Cassimatis (2013) 220 FCR 256 Barker v The Queen (1983) 153 CLR 338 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 Eliezer v University of Sydney (2015) 239 FCR 381 General Steel Industries Inc v Commissioner for Railways (NSW) (1969) 112 CLR 125 Mogilevsky v Leroy (Trustee) [2017] FCAFC 52 SZRWS v Minister for Immigration & Ors [2017] FCCA 3101 |
| Applicant: | SZRWS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| Third Respondent: | SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 2727 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Webb, QC with Mr V Kline |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Mr P Herzfeld |
| Solicitors for the Respondents: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Application in a Case lodged on 28 September 2018 and filed on 4 October 2018 is dismissed insofar as it relates to Orders 1 and 2 sought in that application.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, to be assessed and, if necessary, taxed in the absence of agreement in accordance with the Federal Court Rules 2011 (Cth).
The second respondent is to pay the applicant’s costs of the interlocutory application filed on 30 August 2017, to be assessed and, if necessary, taxed in the absence of agreement in accordance with the Federal Court Rules 2011 (Cth).
The applicant has leave to file and serve on the respondents any second further amended application, giving full particulars of the claim, by 22 February 2019.
The matter is listed for further directions at 9.30am on 28 February 2019.
The matter is provisionally listed for hearing for three days, commencing at 10.15am on 26 June 2019.
The Court notes the applicant’s undertaking as to damages referred to at [66] of the judgment in SZRWS v Minister for Immigration & Ors [2017] FCCA 3101.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2727 of 2017
| SZRWS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Respondent
REASONS FOR JUDGMENT
Introduction and background
On 18 December 2018 I dismissed with costs an Application in a Case filed on 4 October 2018 seeking, relevantly, summary judgment pursuant to the rule 13.07 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) made for the purposes of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act). The following are my reasons for those orders. The application also sought a permanent injunction and other relief. Additional procedural orders were made preparatory to a final hearing.
The background to the proceedings is set out in the judgment of this Court in SZRWS v Minister for Immigration & Ors:[1]
[1] [2017] FCCA 3101.
2.The background to the proceedings is that visitors to the Villawood Immigration Detention Centre (Villawood) were notified earlier this year that, as from 4 September 2017, food could only be brought to detainees during visits if:
a)the food is commercially packaged (so it cannot be tampered with), labelled, factory sealed, has a visible and valid expiry date and is identifiable;
b)the packaging is made of carton or soft plastic (not metal or glass);
c)the amount of food is only that which can be consumed during the visit; and
d)the food is consumed in the visiting area and not taken back to detainee areas.
3. The applicant is a detainee at Villawood.
4.The respondents state, in the notification, that they are doing this to provide detainees with a safe and healthy environment because:
a)cooked and raw food quickly becomes contaminated with bacteria and can cause illness if left at room temperature; and
b)if food is not commercially packaged and sealed, there is a risk of controlled and prohibited items entering the detention centre.
5.The decision then lists foods that are prohibited and these include:
a) all perishable foods;
b) frozen meals;
c) fresh fruit and vegetables;
d) tinned food;
e) home cooked meals.
6.The applicant claims that the decision has, and will have, the following impact on him:
a)he has been separated from his family for approximately five years. Previously, when they visited they could spend the whole day, but without the family being able to bring culturally appropriate food, they can only stay for a few hours, as there is nothing appropriate for them to eat;
b)the sharing of a meal is important to help a family connect and enjoy some time together resembling real family time, despite the circumstances of separation;
c)the visit and the sharing of food not only nourishes the applicant’s body but also his soul, and gives him spiritual energy to ease the suffering and the pressure of detention;
d)his family never brought food that was damaged, but was always fresh;
e)the fourth respondent (Serco) does purport to provide halal food, but it is allegedly sometimes mixed up with non-halal food like pork, due to the “lack of organisation” and “no separate kitchen space” to prepare halal meals, thus further limiting his options; and
f)in any event, lunch and dinner are only provided during certain times by Serco, so that on the days when the family visits, the applicant will miss meals as he cannot leave the visitor area.
Affidavit material
The applicant relies on the affidavit of Christine Helen Jones affirmed 28 September 2018 as well as the affidavit of Sabina Callaghan affirmed 28 November 2017 (Callaghan affidavit) filed for the first to third respondents in SZRWS.
Food Policy
The third respondent, the Secretary of the Minister’s Department (Secretary), has created policies applicable to immigration detention facilities (IDFs), contained in a Detention Services Manual.[2]
[2] Callaghan affidavit at [4].
As referred to in my judgment in SZRWS at [80] and [82]:
One such departmental policy relates to the food which may be brought in to detention facilities by visitors. That policy is contained in Chapter 8 of the Detention Services Manual, which deals with items not permitted in immigration detention facilities. The purpose and scope of Chapter 8 is described as follows:
The instruction provides [Department] employees, FDSP personnel and Detention Health Service Provider (DHSP) Personnel with guidance on the management of items that may represent a risk to the health, security and good order of immigration detention facilities. Discretionary decisions may be made on an individual basis by the Facility Superintendent and/or Commander Detention Operations in relation to issues that have not been anticipated in this policy
…
A minute provided to the Minister in July 2017 explained that the purpose of the outside food policy was to "reduce the opportunity of food entering [IDFs] that could present a health and hygiene risk as well as prevent other prohibited items such as weapons, narcotics/illicit substances being brought into IDFs by concealing them in food items".
The Callaghan affidavit describes the process by which the policy (Food Policy) was developed:
a)in early 2016, a working group conducted a review; [3]
b)on 5 March 2016, the Deputy Commissioner Operations endorsed the working group’s recommendation, which comprised the Food Policy;[4]
c)on 27 May 2016, the Commander Immigration Compliance approved the inclusion of the Food Policy in Chapter 8 of the Detention Services Manual;[5]
d)in mid 2017, a directive “requiring the implementation of the outside food policy across the immigration detention network” was developed under Ms Callaghan’s guidance;[6] and
e)on 8 August 2017, the Minister signed a submission noting the planned implementation of the Food Policy.[7]
[3] Ibid at [5].
[4] Ibid at [6], see also exhibit SC1.
[5] Ibid at [7], see also exhibit SC2.
[6] Ibid at [9].
[7] Ibid at [9], see also exhibit SC3.
The final step in its creation and application was the issue, on 11 August 2017, of a directive (the Directive) requiring the implementation of the Food Policy across the immigration detention network (IDN).[8]
[8] Ibid at [10], see also exhibit SC4.
The Directive provided:
From 11 September 2017, the following policy must be implemented across the IDN as per Detention Services Manual Chapter 8 – Items Not permitted in Immigration Detention Facilities and Detention Standard Operating Procedures 64- Control of Items:
Food - Conditions of entry
For health, safety and security purposes, visitors wishing to bring food items into the visitors' areas of an IDF may do so if they strictly comply with the following conditions:
· the food is commercially packaged and labelled, factory sealed, has a visible and valid expiry date and its prescribed name is easily identifiable and complies with the Australia New Zealand Food Standards Code;
· food is not contained in any metal or glass packaging;
· the amount of food is proportionate to the needs, duration, and intent of the visit;
· the food is consumed in the visits area only; and
· any leftover food must be disposed of at the end of the visit or removed from the premises by the visitor.
Additionally:
· all food brought in by visitors will be screened;
· no food brought in by visitors is permitted in the accommodation area of the IDF.
Food items that arrive in the mail:
Food items are not permitted to enter the IDF via mail. Food that arrives in the mail should only be destroyed if considered necessary to prevent a safety, security or health risk. Should the item not be perishable or not present a threat, it may then be stored as in-trust property, noting that an item does not need to be stored beyond its shelf life. [redacted text]. Staff will need to exercise reasonable judgement on food that does not carry a shelf life. In these circumstances, staff ae to photograph the food items prior to disposal and place the photos on the detainees dossier with a written explanation for disposal.
Birthday cakes and special purpose foods:
Special purpose foods are allowed in the visitors’ area provided that approval has been sought and granted prior to the visit. Special purpose food includes food processed or manufactured for consumption by infants and people suffering medical conditions (e.g. diabetes) that require altered and tailored food, including prescribed medicines or any other products that are regulated as therapeutic goods or food.
Protein Powder:
In concert to this directive, protein powder is no longer allowed to be brought in by visitors or received via mail from 11 September 2017. The FDSP is to ensure that an approved commercial grade protein powder is available for purchase by detainees in each IDF canteen.
Policy exemptions:
This policy is a national policy and is relevant to all IDFs except Christmas Island where food is permitted to be received by mail provided:
· The food is commercially packaged and labelled, factory sealed, has a visible and vailed expiry date and its prescribed name is easily identifiable and complies with the Australian New Zealand Food Standards Code; and
· Food is not contained in any metal or glass packaging.
· Protein powder is not allowed to be received via mail on Christmas Island.
The restriction against visitors bringing home cooked food items into IDFs admits of no exception. The clear language of the Directive is that it is mandatory across the IDN. In particular, the concession (provided permission is obtained in advance) as regards birthday cakes still requires that they be shop purchased.[9]
[9] Exhibit SC9 at [2].
The Food Policy should be considered to be a blanket policy.
The Mobile Phone Policy
The Food Policy was originally fused with the so-called Mobile Phone Policy. The submission noting the planned implementation of the Food Policy[10] explained:
Under the banner of Operation Ramentum, it was intended that the amendments to the food policy would be implemented across the IDN in conjunction with the removal of mobile phones. However, due to the unacceptable level of risk associated with the concurrent implementation of the amended mobile phone and food policy, it was determined that the amended food policy be delayed in implementation as a necessary risk mitigation.[11]
[10] Exhibit SC3.
[11] Callaghan affidavit, exhibit SC3, page 23 at [2].
In ARJ17 v Minister for Immigration[12] the Mobile Phone Policy was challenged as a blanket policy on the basis that neither s.252 nor s.273 of the Migration Act 1958 (Cth) (Migration Act) authorised the policy.
[12] [2018] FCAFC 98.
The Mobile Phone Policy is set out at [10]-[11] of the judgment of Rares J:
10On 27 May 2016, the Secretary decided to adopt a policy reflecting the internal minute. On 1 July 2016, Chapter 8 of the Detention Services Manual (the DSM) maintained by the Secretary was amended to refer to mobile phones and SIM cards. Chapter 8 provides, relevantly:
Introduction
1. Background
The rationale for preventing some items entering immigration detention facilities (IDF) is a risk mitigation strategy used to manage the good order and security within an IDF and to ensure the health and safety of all persons in any facility. A primary risk mitigation strategy is to place conditions on the entry and use of particular items. Those items may be the property of a detainee, the Facilities and Detention Service Provider (FDSP), departmental officers or visitors. Arrangements for exceptional circumstances are also identified in this instruction.
2. Purpose and scope
This instruction provides Department of Immigration and Border Protection (the Department) employees, FDSP personnel and Detention Health Service Provider (DHSP) personnel with guidance on the management of items that may present a risk to the health, security and good order of immigration detention facilities. Discretionary decisions may be made on an individual basis by the Facility Superintendent and/or Commander Detention Operations in relation to issues that have not been anticipated in this policy ...
3. Principles
The Department has a duty of care towards all persons in an IDF and must exercise reasonable care to protect them from any reasonably foreseeable harm by providing a safe and healthy environment, which includes excluding specific categories of items from entering the facility ...
4. Legislative framework
This instruction is based on s252G of the Migration Act (the Act), which outlines the legislative framework for conducting searches and screening procedures in immigration detention centres (IDC). Section 252 allows for a detainee, and the detainees' clothing and property whilst in their immediate control, to be screened and searched without a warrant. The powers under s252G allow screening of a visitor, and their clothing and property, only on entering an IDC.
…
5. Screening and searching detainees
All detainees are subject to screening by FDSP personnel. Section 252(2) permits an officer to search a detainee, their clothing and any property under their immediate control, without a warrant, for a weapon or item capable of inflicting injury or of assisting with escape.
Section 252C(1) allows an authorised officer to take possession of and retain items found in the course of screening or the conduct of a strip search under s252A, if the item found may provide evidence of a commission of an offence against the Act or is forfeited or forfeitable to the Commonwealth.
Should a prohibited item be found during a search or a screening procedure of a detainee under s252(1)(a), s252AA(1) or s252A, the item must be dealt with in accordance with established policy and procedures…
…
9. Prohibited items
Items that are considered illegal by Australian law are not permitted in any IDF. Examples of prohibited items are:
· narcotics/illicit substances
· weapons and
· child pornography materials.
10. Excluded items
Items that are not unlawful in the Australian community but have been deemed to present a risk to the health, privacy, safety, security and/or good order of the facility are not permitted in an IDF in any circumstance. Examples of excluded items are:
· pornographic books, magazines or related material and
· material that incites violence, racism or hatred.
11. Controlled items
Items that are not unlawful in the Australian community but have been deemed by the Department to present a risk to the health, privacy, safety of individuals within an IDF and/or security and good order of the facility may be permitted under specific entry approval. ...
Controlled items that belong to a detainee that are not permitted in the IDF, are, with the exception of perishable food, to be stored as “in-trust” property or otherwise dealt with in accordance with departmental procedures. Refer to DSM- Chapter 3: Entering and leaving detention - Personal property.
The FDSP may permit staff, personal and professional visitors to bring certain 'controlled' items into the facility and apply conditions of entry and use. Prior approval should be sought by visitors should they wish to bring such items into an IDF…
Examples of controlled items are:
· all mobile phones ...
· Subscriber Identity Module (SIM) cards for mobile phones and other communication devices
…
13. Mobile phones
For security and safety purposes all mobile phones are classified as controlled items and are not permitted in IDFs, except under conditions specified by the Department.
…
All detainees within border screening are not permitted to possess a mobile phone …
11.On 15 November 2016, a plan to implement the policy, known as "Operation Ramentum", was approved by the Acting Commissioner of the Australian Border Force. On 17 November 2016, the first respondent signed a document noting the implementation plan. On 21 November 2016, an announcement of the policy and the implementation plan was made in writing. The document stated, relevantly:
Effective immediately, from 21 November 2016, anyone entering an immigration detention facility or being transferred to another facility is not permitted to have a mobile phone and/or SIM card.
If you are not being transferred to another onshore facility you will have a grace period, until midnight 19 February 2017 in which to voluntarily surrender your mobile phones and SIM cards. These items will be held in your ‘in-trust’ property until you leave immigration detention.
…
From 20 February 2017 you will not be allowed to possess or use mobile phones and SIM cards. You will be provided with additional access to land line phones and you will be able to continue to book time to use the internet ...
After the grace period, mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
…
Your mobile phones and SIM cards will be kept in your 'in-trust' property with your other possessions. They will be returned to you when you leave detention.
[emphasis in original]
The Mobile Phone Policy was found to be invalid by the Full Federal Court as further referred to below.
Rule 13.07 provides that:
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party's claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.
Section 17A of the Federal Circuit Court Act is in materially the same terms.
Consideration
Applicant’s contentions
The applicant seeks summary judgment pursuant to rule 13.07 of the Federal Circuit Court Rules or, alternatively, s.17A of the Federal Circuit Court Act. Identical provisions were introduced in order to provide such an application for summary judgment in the High Court, the Federal Court and the then Federal Magistrates Court.
These provisions need not be set out here.
Until the introduction of these provisions, the test to be applied in summary judgment applications required an extraordinarily high bar for success (e.g. “manifestly groundless”).[13]
[13] see Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1969) 112 CLR 125.
Following the introduction of the new provisions, they were considered by a good number of judges in the Federal Court and in the then Federal Magistrates Court. Eventually, the question came before the Full Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited,[14] when the decision was handed down on 15 April 2008. In that case, all three judges resolved to allow the appeal, thus setting aside the summary judgment entered by the trial judge.
[14] [2008] FCAFC 60.
Both Rares and Gordon JJ agreed that the purpose of introducing s.31A (the Federal Court equivalent) into the Court’s armoury for dealing with litigation which ought not to be allowed to go to trial was to expand the capacity of the Court summarily to dismiss matters. Rares J and Gordon J both referred to the Explanatory Memorandum and the Second Reading Speech. At [63] Rares J referred to an observation by Lindgren J concerning the purpose of that provision and noted at [73] that the parties in the case accepted that the test to be applied was that which Rares J himself judge had stated in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd.[15]
[15] (2006) 70 IPR 146.
Gordon J approved the test suggested by Rares J in the Boston Commercial case, and then went on to add some observations of her own between [124] and [132].
This decision of the Full Federal Court confirmed the approach taken by me in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors[16] at [22]-[30].
[16] [2007] FMCA 157.
In this case, the only distinction between the Mobile Phone Policy case and the Food Policy case is said to have been the time of introduction, a matter determined by administrative decision. Otherwise, the principles established in the Mobile Phone Policy case are said to govern the Food Policy, and the applicant seeks summary judgment.
No authority under the Migration Act
In the circumstances, the Migration Act must be examined to see whether there is any authorisation within it sufficient to provide a source of power for a blanket policy.
The Full Federal Court examined this question in ARJ17. In that case, the blanket policy sought to deny detainees possession of mobile phones and SIM cards in immigration detention centres, and provided for search and seizure of mobile telephones and SIM cards.
In the original hearing, the Commonwealth successfully submitted to the trial judge that authority to take and retain mobile phones from detainees arose by implication from the power under s.273 to cause detention centres to be “established and maintained”, carrying an obligation to maintain order and the security of staff and detainees. The trial judge held that as possession of mobile phones in detention had the potential to both assist in escape and cause harm to detainees, it was within the scope of s.273 to take and retain mobile phones which were found in the possession of detainees. The trial judge stated that not only did s.273(2) provide the power to regulate conduct in detention centres, the power in s.273(1) to “maintain” centres provided a broad power to do just that. The trial judge observed that otherwise there would be no power at all to regulate conduct in detention centres.[17] The Commonwealth also argued that s.273(1) authorises the Minister to cause detention centres to be “established and maintained” and the notion of “maintaining” a detention centre in this context necessarily encompassed its order and security, including the safety of staff and detainees. The Commonwealth submitted that this was apparent from the scheme established by ss.252-252G. The Commonwealth posited that the reference to keeping persons in immigration detention must be understood to include keeping them in a safe, ordered and secure place of detention and to taking such action and using such force as is reasonably necessary to do so. Accordingly, the power to detain and keep unlawful non-citizens in immigration detention conferred by ss.189 and 196 includes the power to take such action and use such force as is reasonably necessary to keep places of immigration detention safe, ordered and secure. An aspect of that power must be a power to control physical items which are the property of detainees where they pose a risk to the safety, order and security of places of immigration detention, such as detention centres.[18]
[17] see ARJ17 at [18] and [19].
[18] see [47].
The Commonwealth also raised a further argument that the Mobile Phone Policy was not purported to be made under any statutory power and did not purport to have any legal force. The Commonwealth submitted that the Mobile Phone Policy is merely an expression of opinion and is not binding upon authorised officers. Since the policy had no statutory basis, it could not be ultra vires.
Lastly, the Commonwealth contended that the power in s.73(1) comprehended all that the regulation-making power in s.273(2) and (3) entailed within the word “maintained”. They argued that the word “maintained” gave the Governor-General power to require officers to implement a policy of removing mobile phones from all detainees in detention centres.[19]
[19] see [63].
His Honour Rares J stated at [64]:
That argument must be rejected. The power conferred by s.273(1) enables the Minister on behalf of the Commonwealth to cause detention centres to be established and maintained the power is addressed to the actions of acquiring, leasing or occupying land and buildings, undertaking any necessary building work (in the sense of construction work) and upkeep (in the sense of maintenance) of the physical land and buildings in which persons in immigration detention can be detained, as the definition of “detention centre” in s.273(4) suggests. In contrast, s.273(2) and (3) enable the Minister to make regulations about how the detention centres operate and provide for their internal governance, including in respect of regulating the conduct and supervision of detainees.
Rares J went on to state, in response to an argument that the blanket policy was a direction by the Secretary, that nothing in the Migration Act on which the respondents relied provided a source of power for the making of the blanket policy.[20]
[20] see [95].
Rares J then went on to find that the blanket policy was invalid on the ground that it is not authorised by any provision of the Migration Act, and that the proposed actions of authorised officers to confiscate mobile phones and SIM cards in compliance with the policy would be invalid.[21]
[21] see [97]-[98].
His Honour Flick J observed in relation to the Commonwealth’s arguments the following at [103] and [104]:
... In the absence of statutory authority of a sufficiently unambiguous character, the compulsory taking of mobile phones and SIM cards would constitute a trespass or conversion of the property of detainees.
It is concluded that the policy lacks statutory authority to achieve the objective sought to be pursued ... Nor is legislative support to be found in s.273.
Flick J went on to state at [108]:
More open to argument is the scope of authority conferred by s.273(1) of the Migration Act to “cause detention centres to be established and maintained”. The concept of “maintaining” a detention centre may (perhaps) carry with it the authority to maintain such a facility so that it in fact remains a facility at which detention can be effectively achieved. Preventing that which may facilitate escape from such a facility could potentially, on such an approach, be embraced within the authority to “maintain” the facility. Even if that be accepted, it may be queried whether a power to “maintain” a “detention centre” is a sufficiently certain source of statutory power to search and remove articles from detainees. Even if such a construction of s.273(1) were to be accepted, such a construction would not authorise “maintenance” by way of Ministerial direction or policy. Clearer statutory language than that employed in s.273(1) would be required to permit such an interference with the property rights of those being detained.”
Flick J went onto observe that, however wide the ambit of any power to “maintain” a detention centre facility may be construed, it would not authorise the policy change by mere Ministerial direction. Even the validity of a regulation made pursuant to s.273(2) and s.504 which sought to give effect to the policy objective of confiscating mobile phones and SIM cards would not be free of doubt.[22] He stated that the policy in that case was invalid. He stated the directions to seize and retain the mobile phones and SIM cards of detainees in detention centres are not supported by a sufficiently unambiguous source of legislative power.
[22] see [110].
Rangiah J relevantly agreed with Rares and Flick JJ.[23]
[23] see [112].
This is said to be a much simpler case, involving only one possible provision of the Migration Act, namely, s.273. (Reliance was placed by the Commonwealth in ARJ17 upon a number of different provisions of the Migration Act, but none of them are relevant to the discussion of the validity of the Food Policy).
This decision unanimously rejected any argument that the Mobile Phone Policy could be supported by any provision of the Migration Act. This Court is invited to reject the argument that the Food Policy could be so supported.
Minister’s contentions
The Food Policy involves, relevantly, a generally applicable restriction on the food which visitors to immigration detention centres may bring into those centres. There are said to be at least three sources of power for any such policy.
First, the Commonwealth, as occupier of the premises comprising detention centres, has a common law right to decide who may enter such premises and the conditions upon which they may do so.[24] In the exercise of that right, the Commonwealth may restrict the entry of visitors bearing food which does not comply with the Food Policy.
[24] See for example, Barker v The Queen (1983) 153 CLR 338.
Secondly, s.273 of the Migration Act empowers the Minister, on behalf of the Commonwealth, to “cause detention centres to be established and maintained”. The respondents’ position is that the power to cause detention centres to be “maintained” extends beyond physical upkeep and repair, to taking other steps necessary to maintain detention centres as facilities at which detention can be effectively achieved. The respondents’ position is that, having regard to the aims of the Food Policy, the policy is empowered by s.273 as being directed towards maintaining detention centres in this sense.
Thirdly, s.189(1) of the Migration Act empowers and requires officers to detain any unlawful non-citizen in Australia and s.196(1) requires any such person to be kept in immigration detention until he or she is removed or deported, granted a visa or taken to a regional processing country. Section 5(1) defines “detain” to mean, relevantly, “keep, or cause to be kept, in immigration detention … and includes taking such action and using such force as are reasonably necessary to do so”. The respondents’ position is that, having regard to the risks to which the Food Policy is directed, the policy is reasonably necessary in order to keep detainees in immigration detention.
The correctness, or otherwise, of the Commonwealth’s reliance on these three sources of power is not conclusively answered by the decision in ARJ17. That case concerned a policy decision to remove from detainees their mobile phones upon entry into immigration detention centres. It thus involved the Commonwealth taking away the personal property of detainees. In those circumstances, a statutory source of authority was required, for absent statutory authority the Commonwealth has no right to interfere with private property rights. The Full Federal Court concluded that, relevantly, neither s.273 nor ss.5(1), 189(1) and 196(1) provided such a source of authority.
The Minister submits that the conclusion in ARJ17 says nothing at all about the first source of power relied upon by the Commonwealth in this case, namely the Commonwealth’s common law rights as an occupier of premises. Such a source of power was not relied upon in ARJ17, and therefore was not the subject of consideration by the Full Federal Court, because it could not be relied upon to justify depriving detainees of their own property. But the Food Policy at issue in this case does not do that. That is said to be a critical distinction. The applicant’s submissions are thus said to be wrong to submit that the only distinction between the policy at issue in ARJ17 and the Food Policy at issue in this case is the time of their introduction.
In relation to s.273 of the Migration Act, it may be accepted that Rares J in ARJ17 held that that power was limited to physical upkeep and repair.[25] However, Flick J[26] left open a broader view, consistently with the view on which the respondents rely in this case. His Honour said at [108]:
The concept of “maintaining” a detention centre may (perhaps) carry with it the authority to “maintain” such a facility so that it in fact remains a facility at which detention can be effectively achieved. Preventing that which may facilitate escape from such a facility could potentially, on such an approach, be embraced within the authority to “maintain” the facility.
[25] at [63]–[66].
[26] at [108].
Rangiah J at [112] appears to have agreed with Flick J in this regard.
The reason that Flick J rejected the Commonwealth’s reliance upon s.273 in ARJ17 was that the Mobile Phone Policy involved interference with detainees’ property rights. Once again, because this case does not involve interference with detainees’ property rights, the fact that the Court in ARJ17 rejected the Commonwealth’s reliance on s.273 in that case does not mean that s.273 is unavailable as a source of power in this case.
In relation to ss.5(1), 189(1) and 196(1), Rares J accepted that, provided a particular action is objectively reasonably necessary to keep a detainee in immigration detention, these provisions would justify taking action such as removing a weapon from a detainee.[27] However, his Honour held that removing mobile phones from all detainees was not self-evidently reasonably necessary to keep that detainee, or others, in immigration detention, and that the evidence did not show that that was so.
[27] at [70]–[73].
Flick J rejected the Commonwealth’s reliance on these provisions as follows:[28]
The statutory authority conferred by ss 189 and 252(3) of the Migration Act to “detain” an individual does not of itself expressly confer any authority to take possession of the individual’s property. There may, perhaps, be impliedly embraced within the authority to “detain” an individual an implied authority to also take possession of such goods as have an inherent capacity to frustrate the effectiveness of such detention. Many — and, indeed, various — examples of goods having such an inherent character were advanced during the course of submissions, including weapons of varying degrees of violence. But whatever may be the outer limits of any such implied authority to make good the detention of an individual, the power does not extend to goods not having such an inherent character such as mobile phones and SIM cards.
[28] at [105].
Again, Rangiah J[29] appears to have agreed with Flick J in this regard.
[29] at [112].
Thus, the Court’s rejection of the Commonwealth’s reliance in ARJ17 on ss.5(1), 189(1) and 196(1) was because those provisions did not justify taking away the particular kind of personal property at issue there, ie mobile phones, having regard to the state of the evidence concerning the extent to which mobile phones might lead to the escape of detainees. That does not determine the position in this case. In the first place, once again, the Food Policy does not involve taking away the personal property of detainees. In the second place, the state of the evidence, at a final hearing, concerning the risks posed by outside food that is excluded by the Food Policy will no doubt be different to the state of the evidence concerning mobile phones in ARJ17.
This leads to a more general point, relevant to both s.273, on one hand, and ss.5(1), 189(1) and 196(1), on the other. As is apparent from the reasons in ARJ17 described above, the application of these provisions depends on the particular facts, as shown by the evidence. The respondents submit with some force that they should have the opportunity to lead evidence at a trial directed to showing the engagement of these provisions to support the Food Policy.
Resolution
Relevant principles
There is no dispute between the parties as to the relevant principles to be applied.
Paragraph 1 of the orders sought in the application in a case is expressed to rely on rule 13.07 of the Federal Circuit Court Rules. That rule empowers the giving of summary judgment on a claim or part of a claim if, relevantly, “the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part”.
The applicant, at [18] of his submissions, relies, in addition, on s.17A of the Federal Circuit Court Act. It is expressed in equivalent language to rule 13.07.
The principles applicable to the grant of summary judgment pursuant to one or other of these provisions, or the similarly expressed provisions applicable to the Federal Court, are well established.[30] Relevantly, they include the following:
a)while the test in rule 13.07 and s.17A is more relaxed than the previous approach to summary judgment, an application for summary judgment must nonetheless be approached with caution. The power to give summary judgment is only to be exercised in the more obvious instances. A party seeking summary judgment thus bears a heavy onus;
b)where the case depends on a question of fact, the moving party must show that the defence rests on a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, an application will not succeed if there appears to be a real question of fact to be determined between the parties, especially if that question depends on what evidence will be adduced at the trial; and
c)where the case depends on a question of law, the moving party must show that it is straightforward and confined, or is trite in the sense that it is well-settled on authority, such that the question can be resolved summarily without the necessity for a full trial. Conversely, the application will fail if the Court is satisfied that the case involves a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.
[30] See for example ASIC v Cassimatis (2013) 220 FCR 256 at [15]–[67]; Eliezer v University of Sydney (2015) 239 FCR 381 at [35]–[40]; Mogilevsky v Leroy (Trustee) [2017] FCAFC 52 at [60]–[61]; Kimber v Owners Strata Plan No 48216 [2017] FCAFC 226 at [62].
Application of the principles
The affidavit evidence before the Court goes only part way to establishing the conditions necessary for summary judgment. Importantly, in this case, the proceedings began with an interlocutory application and my interlocutory judgment in SZRWS. That was 12 months ago. In that judgment, I granted an interlocutory injunction having regard to the particular circumstances of the applicant and the impact of the Food Policy upon him.
In the ordinary course, the issues raised in the proceedings would later be dealt with on a final basis in order to determine whether a final injunction should be granted or other relief provided. The only thing which has happened since then which bears on the present application for summary judgment is the decision of the Full Federal Court in ARJ17. The proposition put by the applicant is that that judgment renders summary judgment in this case appropriate.
While these proceedings deal with the Food Policy at detention centres, ARJ17 dealt with a policy concerning mobile phones. The two policies share something of a common history but they are different. The Food Policy regulates what food may be brought into a detention centre by a visitor. The Mobile Phone Policy involved the confiscation of the property of detainees. It follows, in my view, that the findings of the Full Federal Court in ARJ17 do not foreclose arguments available to the Commonwealth in these proceedings.
First, as I have noted, there is a significant difference between a policy restricting the entry of food into Commonwealth-controlled premises and the confiscation of personal property. I accept the Minister’s submission that the decision in ARJ17 does not necessarily prevent arguments being advanced on a final hearing in this matter concerning statutory support for the Food Policy. However, even if those arguments are not available, as put by counsel for the Minister, it would also be open to the Commonwealth to argue that the Commonwealth’s common law rights as an owner or occupier of property might support the Food Policy. Further, the respondents should have the opportunity to lead evidence to attempt to make good their contentions.
This leads me to the view that the present state of these proceedings is not one that could support summary judgment for the applicant. The issues raised in the proceedings should be dealt with at a final hearing.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 January 2019
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