SZVCP v Minister for Immigration & Ors (No 3)
[2016] FCCA 3328
•20 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCP v MINISTER FOR IMMIGRATION & ORS (No.3) | [2016] FCCA 3328 |
| Catchwords: MIGRATION – Application for an extension of time under s.477 – application for an injunction – jurisdiction – no extension – no duty of care owed by Minister – no breach or threatened breach of duty of care by Minister or Commonwealth – no basis for permanent injunction – injunction dissolved. |
| Legislation: Migration Act 1958 (Cth), ss.198, 256, 273, 474, 476, 477, 499. Federal Circuit Court Australia Act 1999 (Cth), s.19. |
| Cases cited: Apotex v Les Laboratoires Servier (No.2) (2012) 293 ALR 272 Hunter and New England Local Health District v McKenna [2014] HCA 44 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 R v Bevan [1942] HCA 12 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Another (2005) 143 FCR 217 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 |
| Applicant: | SZVCP |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Third Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 3004 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 19 and 20 December 2016 |
| Date of Last Submission: | 20 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First and Third Respondents: | Mr P Herzfeld |
| Solicitors for the First and Third Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The application for an extension of time under s.477 of the Act in respect of the alleged decision dated 12 March 2014 is dismissed.
The application for an extension of time under s.477 of the Act in respect of the decision dated 20 October 2016 is dismissed.
The injunction restraining the return of the applicant to Christmas Island is dissolved.
The Applicant to pay the costs of the First Respondent and Third Respondent as taxed or agreed including all reserved costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
No. SYG 3004 of 2014
| SZVCP |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
| COMMONWEALTH OF AUSTRALIA |
Third Respondent
REASONS FOR JUDGMENT
(As corrected)
Application alleging breach of privacy and refugee sur place
These proceedings were commenced on 29 October 2014 by an application seeking a declaration that the first respondent had a legal obligation to provide protection to the applicant and relief in the nature of an order that the decision of the Minister be quashed. The applicant seeks declaratory relief in respect of the decision to transfer the applicant to Christmas Island and the intention to transfer the applicant back to Christmas Island.
The applicant also seeks a declaration that the Minister, his delegates or agents are unfit or unsuitable to assess the data breach regarding the applicant’s case. The applicant seeks a writ of mandamus requiring the issue of a permanent residency visa and an Australian passport, an injunction restraining the Minister himself, his servants or agents from removing the applicant from Australia.
The applicant seeks a declaration that the applicant’s detention is arbitrary and unlawful, as well as an injunction restraining the Minister by himself or by his department officers, delegates or agents from removing the applicant from detention arbitrarily.
Applicant’s migration history
The applicant arrived in Australia on 10 February 1994 as the holder of a student visa which was valid until 17 November 1994. On 17 November 1994, the applicant was granted a further student visa, valid until 15 March 1996.
On 22 December 1995, the applicant applied for a protection visa which was refused on 7 November 1996. The applicant unsuccessfully sought a merits review of that decision as well as judicial review. Until 8 May 1998 the applicant held a bridging visa.
On 30 July 1996 the applicant was convicted of four counts of false pretences for which he was sentenced to 12 months imprisonment. The applicant was granted a bridging visa on 5 July 1999.
The applicant departed Australia for Fiji with his wife and two children on 27 July 1999. While offshore, the applicant applied for a parent visa sponsored by his New Zealand citizen daughter and returned to Australia with his family on a bridging visa on 30 July 1999.
On 3 August 2001, the applicant was convicted of 25 counts of dishonesty offences for which he was sentenced to 12 months imprisonment. On 11 June 2002 the applicant's application for a parent visa was refused on character grounds under s.501 of the Act due to the applicant's then past criminal convictions in Australia.
Consequently the applicant's bridging visa was cancelled and on 13 June 2002, the applicant was detained and later transferred to the Baxter Immigration Detention Centre in South Australia. The applicant was released from immigration detention on 25 March 2004. The applicant held a bridging visa until 30 August 2005.
On 30 May 2007, the applicant was convicted of three counts of sexual intercourse with his 11 year-old daughter and sentenced to five years imprisonment. On 13 September 2007, the applicant was convicted of two counts of threatening to cause harm and given a sentence of five months and three weeks. On 15 January 2009 whilst in prison the applicant lodged another application for protection which was refused on 1 July 2009. The applicant unsuccessfully sought a merits review and judicial review of that decision.
On 2 December 2011, the applicant completed the term of imprisonment from his 2007 convictions. The applicant's criminal justice stay visa that had been granted on 8 June 2006 was cancelled and he became an unlawful non-citizen.
Villawood Immigration Detention Centre
The applicant was detained and transferred to Villawood Immigration Detention Centre (“Villawood”) in Sydney. Whilst at Villawood the applicant was assessed as a high risk detainee. This assessment was made taking into account the applicant's past criminal history, incidents while in detention and other reports in relation to the applicant.
The applicant’s assessment as a high risk detainee was explained by Ms Holben. Ms Holben explained that in determining where to house the applicant, the fact that detention centres can house families, including minors, and the possible risk that someone with a criminal history, such as that of the applicant may pose to other detainees had to be taken into account. Whilst at Villawood the applicant was accommodated in the high risk section.
Further application for a protection visa – 18 September 2012
On 18 September 2012, the applicant lodged a further application for a protection visa after the introduction of the complementary protection provisions. On 28 May 2014 the application was refused and on review, the decision was affirmed by a Tribunal refusing to grant the applicant a protection visa on complementary protection grounds. The Tribunal decision was set aside by consent orders made on 12 November 2014 and a differently constituted Tribunal again affirmed the decision under review on 24 March 2015.
On 16 January 2015 the Department notified the applicant that it had commenced an ITOA assessment. On 10 2015 June the applicant's case was assessed as not engaging Australia's non-refoulement obligations.
North West Point Immigration Detention Centre, (“Christmas Island IDC”) – 12 March 2015
Ms Holben's affidavit identifies that due to limited capacity available in the high risk sector of Villawood, in March 2015 a decision was made to transfer the applicant and certain others accommodated in that section to Christmas Island IDC. At the time of that decision Villawood was over its operating capacity. On Ms Holben’s evidence there was a proper and reasonable basis to transfer the applicant to Christmas Island IDC. The decision to transfer the applicant to Christmas Island was not unreasonable or unlawful.
The applicant was transferred to Christmas Island IDC on 12 March 2015 and was identified as a vulnerable detainee that is, being a person who may be at risk from other detainees. The evidence of Ms Holben establishes that this is still the assessment in relation to the applicant and that the applicant is still considered a vulnerable detainee.
Whilst at Christmas Island IDC, subject to the day on which the applicant arrived and a period between 24 May 2015 and 19 June 2015 when infrastructure works were being carried out, the applicant was housed at a vulnerable detainees compound.
Maribyrnong Immigration Detention Centre (“Maribyrnong”) – 30 August 2015
The applicant was then transferred from Christmas Island IDC to Maribyrnong on 30 August 2015. That transfer was identified as a temporary transfer given that the applicant was required to give evidence at a trial in the Supreme Court of South Australia.
There was no capacity for a high risk detainee in the Adelaide Immigration Transit Accommodation which is the only permanent immigration centre in South Australia. In this regard the Baxter Immigration Detention Centre was closed in 2007. Between 12 and 23 October 2015 the applicant was required to be in Adelaide to give evidence. During that period there was a specific designation as an alternative place of detention for the purpose of the applicant. On 23 October 2015 the applicant completed giving evidence in South Australia and was transferred back to Maribyrnong pending consideration of transfer of the applicant back to Christmas Island IDC.
The Data Breach
The grounds in support of the application made reference to an alleged breach of privacy as a result of the disclosure of information identified in a letter dated 12 March 2014. The applicant alleged by reason of that disclosure that he had become a refugee sur place. The applicant in the grounds also alleged that he had been persecuted because of his race and because the applicant broke the law. The applicant advanced the contention that a refusal to acknowledge that Australia had legal obligations to protect the applicant amounted to a criminal act. The grounds also alleged that the publication of the applicant’s information without his consent was a criminal act and asserted that the applicant’s detention was arbitrary.
The application identified a purported decision made on 12 March 2014 in respect of which an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Act”) is required. The 35 day period had expired in respect of the decision made on 12 March 2014. The application seeking relief in respect of the decision was filed on 29 October 2014.
Unfiled amended application
The applicant prepared an unfiled amended application in which the decision was said to have been made by Mr Josh Smith on 20 October 2015 and in respect of which final orders were sought that the decision or purported decision to send the applicant back to Christmas Island should be quashed.
A writ was sought seeking to have the applicant returned to Villawood Immigration Detention Centre (“Villawood”) or to be released into community detention. An injunction was also sought restraining the Minister, his department officers, delegates or agents from sending or returning the applicant back to Christmas Island to be detained at Christmas Island Immigration Centre (“Christmas Island IDC”).
A final order was sought directing the Minister to review the applicant’s security ratings. A final order was also sought requiring the Minister to stop and cease putting mechanicals onto the applicant. A final order was also sought that the applicant be referred to a psychologist to review the psychological state of the applicant, allegedly as a consequence of the applicant suffering at the hands of Serco officers, cleaners and other detainees and due to his detention at Christmas Island. A further final order was sought that the Minister stop and cease from punishing the applicant, as the alleged detention had now become a form of punishment.
The unfiled amended application also sought interlocutory relief. Relevantly, that interlocutory relief sought an order restraining the applicant from being sent back to Christmas Island IDC and an order that the applicant be sent to an independent forensic psychologist and psychiatrist for assessment. The unfiled amended application sought an order for the Minister to review the applicant’s security ratings, as well as orders for the issuing of subpoenas to eight different persons involved in the detentions. The interlocutory application also sought the production of certain documents. That unfiled document was received by the Court on 6 May 2016.
Grounds in support of the unfiled amended application
The grounds in support of the unfiled amended application referred to a decision to send the applicant back to Christmas Island IDC. The particulars in support allege that the applicant was a vulnerable detainee and alleged that the applicant had informed on Serco staff, and a particular Serco ERT (“Emergency Response Team”) officer, and cleaner, and other detainees as a whistle-blower and that this was known to the Christmas Island community. The applicant contended in the grounds that it was unreasonable for the Minister to decide to send the applicant back to Christmas Island IDC and that his detention at Christmas Island IDC would now be unlawful.
The grounds also alleged that the decision to send the applicant back to Christmas Island IDC would be a breach or a threatened breach of a non-delegable duty of care owed by both the Minister and the Commonwealth to the applicant. The particulars allege that the Minister and the Commonwealth owed the applicant a duty to take reasonable care to avoid causing foreseeable harm to the applicant while in detention, particularly in circumstances where the Minister has noticed and is aware of the applicant’s alleged mental frailty.
The particulars allege that the Minister is aware and knows that the applicant will be harmed and makes reference to alleged past and anticipated future breaches of the Minister’s duty of care to the applicant. The particulars assert that the Minister has a duty of care as a matter of obligation not to send the applicant back to Christmas Island IDC to be detained.
The applicant contended that the Minister’s insistence to send him back to Christmas Island IDC despite his complaints meant that consideration had not been given to the Department’s non-delegable duty of care. The applicant referred to a threat of alleged infringement of the non-delegable duty of care allegedly owed by the Commonwealth and the Minister to the applicant by reason of being a detainee in his care.
The grounds also referred to the decision or purported decision of the Minister to send the applicant back to Christmas Island IDC to be detained as being a breach or breaching of the care and failure by the Minister to consider the potential impact of the vilification, abuse and mental anguish and injury that the applicant alleges that he has suffered at the hands of Serco staff and a particular Serco ERT officer and cleaner and other detainees at Christmas Island.
The grounds also allege that the Minister failed to review the applicant’s security rating leaving a security rating at a high level, since he has been detained. The grounds allege that this was a denial of procedural fairness and a breach of the Minister’s duty to the applicant to ensure that his security ratings are reviewed accordingly and that he should be detained in a less restrictive environment. The grounds also allege that the use of mechanical restraints on the applicant assert that the applicant’s detention is now punishment and unlawful.
Applicant’s affidavit dated 3 September 2015
On 3 September 2015, the applicant filed an affidavit in support of his interlocutory relief and in particular, in relation to the Christmas Island IDC and the problems and difficulties the applicant alleged he had encountered at that location. That affidavit made generalised, conclusive statements that the applicant had been the subject of discrimination, segregation, abuse, vilification, intimidation and bullying by Serco managers, Serco ERT officers, Serco cleaners and Serco staff members from Perth and Darwin and by other detainees.
The affidavit in a conclusory manner asserted that Serco managers and staff have on a consistent basis discussed the applicant’s sex conviction and the victim and that the detainees have continued to treat the applicant and subject the applicant to verbal abuse, intimidation and bullying and request that the applicant buy things from the shop, which the applicant had done, and demanded clothes and other personal items from the applicant. This was said by the applicant to have occurred on a consistent basis in the affidavit.
The applicant also alleged that persons had consistently spat on the ground and on the applicant’s shoes when he walked past, hurled abuses and said that, “You ought to be shot,” or that, “He should put a gun to his head or go hang himself.” The applicant alleges that he had reported the abuse and intimidation to the management of Serco Immigration Services.
The applicant also alleges that he had informed his case manager about these events since March up until August 2015. The applicant also alleged that he informed on a certain person regarding that he had provided information regarding a certain cleaner and Serco officers allegedly bringing drugs and other prohibited items and cannabis into the detention centre for detainees. The applicant alleges that he was called a “rat” by Serco officers the following morning, following his report to the Minister’s office, and that the applicant had continued to be called a “rat” and a “dog” by a Serco officer and detainees, and that that was having a major effect on his mental health and physical wellbeing. The applicant also alleged that he had reported these incidents on a weekly basis since March 2015 to the psychologist, up to 31 July 2015.
The affidavit alleged that the cleaners have all turned against him and knock him when they see him, and that the cleaners deliberately avoid him and continually discuss with other detainees and snub the applicant. The applicant alleged that this had affected him mentally and physically and caused very severe trauma and distress. The applicant noted that he had informed the manager and his psychologist that he did not to want to be at Christmas Island anymore as it was not safe for him. The applicant noted that the people who are meant to protect and take care of him are the people who are instigating and perpetuating the detainees against him.
The applicant alleged it was very unsafe and not tenable for him to continue to be detained at Christmas Island. The applicant alleged that he just wanted to die as there is no place to hide and no matter where in the detention centre, his life is a living hell. The applicant alleged that he did not sleep, had no appetite and no one to confide in.
The applicant made reference to the fact that he has not had visits of the kind he had when he was at Villawood. The applicant made reference to alleged discrimination in relation to his inability to attend church services. The applicant made reference to having written to the Minister requesting an alternative place of detention and alleging that his continued detention on Christmas Island IDC was no longer safe and was a breach of duty of care of the Minister and its agents and Serco Immigration and its staff.
The affidavit alleged that the applicant had been subject to inhumane treatment and experienced severe distressing and traumatic incidents, including verbal abuse on a daily basis at Christmas Island IDC. The affidavit alleged that these incidents had affected the applicant’s mental health and caused him to be depressed and have feelings that his life is not worth living due to the traumatic incidents that he had been subjected to on a daily basis since March 2015 up until now.
Hearing of Interlocutory Application - 15 September 2015
On 15 September 2015, this Court sitting as part of a national relief roster in Perth heard the interlocutory application, as well as identifying two other proceedings by the same applicant in making orders for the concurrent hearing of all matters on 3 December 2015.
The applicant pursued an appeal in relation to the orders of the Court that also dismissed the interlocutory application in respect of the relief restraining the respondent from returning the applicant to Christmas Island IDC.
The Court was sitting in Western Australia in a very busy roster list and delivered an ex tempore judgment at the time of making the orders dealing with the interlocutory application.
Interim injunction granted by the Federal Court of Australia
The Federal Court of Australia entertained an application for leave to appeal from the interlocutory decision of this Court and granted an interim injunction on 28 October 2015. As a result of the interlocutory appeal, the proposed orders for the hearing of the matter in December 2015 were vacated. The Full Court of the Federal Court of Australia on 9 March 2016 granted an interim injunction restraining the first respondent from returning the applicant to Christmas Island until the determination of the proceedings by this Court. The matter was remitted to this Court for further hearing.
Amended application - 14 October 2015
On 14 October 2015, the applicant filed an amended application in these proceedings in which the applicant reverted to identifying the decision the subject of the invocation of this Court’s jurisdiction as being the decision made on 12 March 2014. No application for an extension of time was made.
Reference in relation to the final orders referred to a declaration that the process conducted by the first and second respondents from 12 March 2014 to date, to assess the implication on the applicant of the data breach were procedurally unfair, and seeking an injunction restraining the Minister from removing the applicant from Australia under s.198 of the Act. Reference is also made to the applicant’s original application.
The grounds in support of the relief contended that there had been a denial of procedural fairness and a conflict of interest in the assessment of whether the applicant was the subject of a non-refoulement obligation and alleging that the assessment process in relation to the decision in relation to the disclosure of data referred to in the letter of 12 March 2014 to date have been procedurally unfair. The particulars allege that the applicant was at a procedural disadvantage because the applicant was not informed or did not know the identity of the persons that had access to the information that had been disclosed. The applicant contended he was unable to make submissions about the significance of the data breach in those circumstances and alleged it was procedurally unfair for the applicant to be required to make submissions in those circumstances.
Response by the First Respondent – 29 November 2016
The Minister filed a response on 29 November 2016 to the application filed on 29 October 2014. That response identified in relation to the alleged decision on 12 March 2014, that the application was brought outside the time limit under s.477(1) of the Act and opposed an extension of time.
The Minister's response also alleged that there was no utility in the application by reason of the fact that the data breach had been the subject of a review by the Tribunal and an International Treaties Obligations Assessment (“ITOA”) both of which were being challenged in other proceedings. The response identified that the circumstances stated by the applicant in the application did not disclose any cause of action within the Court's jurisdiction or otherwise.
The first respondent also responded to the amended application filed on 14 October 2015. The first respondent maintained that the applicant was not entitled to any relief and identified the time issue under s.477 of the Act in respect of the decision of 12 March 2014. The first respondent’s response referred to the decision in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 being overturned by the High Court of Australia and the Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 and repeated the Minister's response to the application.
The first respondent’s response also responded to the applicant's application filed on 6 May 2016 denying that the applicant was entitled to any relief and denied that a decision was made on 20 October 2015 to return the applicant to Christmas Island. The first respondent’s response stated that to the extent the applicant seeks relief in respect of any such decision the application was not brought within the relevant time under s.477 of the Act, in respect of the decision of 20 October 2015.
The respondent admits that subject to the orders of the Court, the applicant may be returned to Christmas Island IDC. The response also admits that the third respondent owes the applicant a non-delegable duty of care to ensure that reasonable care is taken of the applicant while held in immigration detention. The response denied that the first respondent, being the Minister, owed the applicant any such duty.
The response also denied that returning the applicant to Christmas Island IDC would constitute a breach or threatened breach of any duty of care owed to the applicant. The response acknowledged the obligation imposed by s.256 of the Act and denied that returning the applicant to Christmas Island would involve a breach or threatened breach of that obligation.
Response by First Respondent and Third Respondent
Pursuant to orders made on 6 December 2016, the Commonwealth of Australia was joined as a party and a further response was directed to be filed. The further response identifies that the third respondent admits that the Commonwealth owes the applicant a non-delegable duty of care to ensure that reasonable care is taken of the applicant while the applicant is held in immigration detention. The third respondent denies that the first respondent owes any duty of care. The third respondent denies that returning the applicant to Christmas Island IDC would constitute a breach or threatened breach of the duty of care owed by the Commonwealth. The third respondent denies any breach or threatened breach of duty by the third respondent and says that the applicant is not entitled to the relief sought. The third respondent admits that s.256 of the Act imposes an obligation on the person responsible for the detention of the applicant to afford the applicant at his request all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his immigration detention. The third respondent denies that returning the applicant to Christmas Island IDC would involve a breach or threatened breach of that obligation.
The first respondent otherwise said that the issues raised by the applicant would not give rise to a cause of action within this Court's jurisdiction. The first respondent contended that the applicant's security rating had been frequently reviewed since he was detained in December 2011 and noted that mechanical restraints had on occasions been used on the applicant, and otherwise took issue with the applicant's grounds for relief.
Jurisdiction
I am satisfied that the allegations in respect of the s.477 applications for an extension of time in respect of the decision dated 12 March 2014 and 20 October 2015 are within this Court’s jurisdiction under s.476 of the Act. I am satisfied that the application for an injunction against the Minister is also within this Court’s jurisdiction under s.476 of the Act. I am satisfied that the allegations are not colourable and that the federal matters have properly invoked this Court’s jurisdiction. Given the federal allegations unless colourable, the Court has jurisdiction. Starke J in R v Bevan [1942] HCA 12 relevantly outlined the above principle as follows :-
And the jurisdiction being thus attracted, this Court is clothed with full authority essential for the complete adjudication of the matter and not merely the interpretation of the Constitution (Troy v. Wrigglesworth; Hume v. Palmer; O. Gilpin Ltd. v. Commissioner for Road Transport & Tramways (N.S.W.); Hopper v. Egg and Egg Pulp Marketing Board (Vict.). Once jurisdiction is acquired by the Court, that jurisdiction is not lost by reason of the rejection of the constitutional point (R. v. Carter; Ex parte Kisch).
I am satisfied that the injunction sought against the Commonwealth in respect of the alleged duty of care is within this Court’s associated jurisdiction under s.19 of the Federal Circuit Court Australia Act 1999. This Court is bound by the decision in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. Section 474 of the Act does not preclude injunctive relief.
Proceedings before this Court - 2016
After the decision of the Full Federal Court on 9 March 2016, this Court fixed the matter for hearing on 19 October 2016. On 19 October 2016, this Court stood over part-heard, an application to set aside the subpoenas and gave the applicant an opportunity to file a consolidated single document replacing the earlier three applications.
On 26 September 2016 this Court made orders vacating the final hearing dated fixed for 19 October 2016 and refixing the matter for a final hearing on 19 and 20 December 2016. A combined Court Book and a Supplementary Court Book was prepared before the Court. Matter SYG 3004 of 2014 was listed to be heard concurrently with matters number PEG 142 of 2015 and PEG 261 of 2015.
On 6 December 2016, the Court made preliminary rulings on evidence under s.192 and s.192A of the Evidence Act 1995 (Cth) and admitted into evidence the combined Court Book and the supplementary Court Book as being before the Court in matter SYG 3004 of 2014 as well as the three volumes of Relevant Documents. The Court confirmed that the affidavits identified in that material were read without objection.
At the commencement of the hearing on 19 December 2016, the Court explained to the applicant that the nature of the hearing was to determine whether the applicant was entitled to relief pursuant to s.477 of the Act in respect of an alleged decision dated 12 March 2014 and an alleged decision made 20 October 2015. The Court explained to the applicant that there were three issues under s.477 of the Act, first whether there was an adequate explanation for the delay, second whether there was any prejudice and thirdly, whether there is a sufficiently arguable case of legal error in respect of the decision. The Court explained that the legal error had to be an excess of statutory power or denial of procedural fairness.
The Court explained that if satisfied that there was a satisfactory explanation for the delay and that there was a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice, the Court would make orders extending time under s.477 of the Act and then hear further argument in relation to the applicant’s entitlement to relief. The Court also explained that it would determine whether the applicant was entitled to relief in respect of the decision to send him to Christmas Island and or the proposed decision to return the applicant to Christmas Island. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant is a citizen of Nigeria. The applicant has been a frequent litigant in the Courts. The applicant has recently commenced fresh proceedings in this Court concerning a mobile phone direction and has three other proceedings in the Federal Court of Australia. The applicant could not recall how many proceedings he has taken in the High Court of Australia. The applicant has been convicted of fraud as well as other serious criminal offences involving a child.
The applicant’s affidavit filed 29 October 2014 referred to the data breach letter dated 12 March 2014 and raised complaint in relation to the alleged disclosure. The affidavit contended that the applicant had been subject to a breach of privacy and had been rendered a refugee sur place. The applicant alleged that he was being persecuted because of his race and because of his breaking of the law. The applicant alleged, in substance, that refusing to find that Australia owed the applicant a protection obligation was a criminal act and that the applicant’s detention is arbitrary.
The applicant has filed and read the affidavits dated: 29 October 2014, 14 September 2015, 18 March 2016, 29 March 2016, 29 August 2016, 20 September 2016, and 5 December 2016. These affidavits principally address and expand on the applicant’s allegations in relation to his treatment on Christmas Island as referred to in the affidavit filed on 3 September 2015 above.
As referred to above, evidence was called by the first and third respondent from Ms Holben explaining the history in relation to the applicant's detention background and the applicant's transfer from Villawood to Christmas Island IDC, as well as from Christmas Island IDC to Maribyrnong Immigration Detention Centre (“Maribyrnong”) and the risk assessments made in relation to the applicant as well as explaining the national network of detention facilities and explaining the reasons in support of the return of the applicant to Christmas Island IDC. The evidence of Ms Holben identified the systems in place for preserving and maintaining the safety of detainees. There is no basis to find that the system in place was unreasonable.
Christmas Island Detention Records
The below chronology records extracts from contemporaneous documents created from information provided by or concerning the applicant during his detention at Christmas Island and shortly thereafter. The chronology includes an extraneous comment as to the absence of recorded complaint as to self-harm, abuse, physical harm, discrimination or mistreatment. The chronology also includes asterisks where complaint of abuse has been raised by the applicant and recorded.
I find that the detention records whilst the applicant was at Christmas Island IDC record the following relevant information in respect of the applicant’s alleged breach or threatened breach of a duty of care owed by the first and third respondents:-
| 11 March 2015 | Interview identifying transfer to Christmas Island IDC |
| 18 March 2015 | Case manager notes:- - No concerns raised about health and welfare (no complaint of harm, discrimination or suggested self-harm) - Applicant unhappy about his transfer to Christmas Island IDC |
| 18 March 2015 | IHMS Clinical Report Record:- – Sleep disturbance. – Focus of discussion was how much he was a good person in order to compensate for the bad person he was when he sexually assaulted his daughter when she was 11 years old. – Has said he has apologised to her 1,000 times. – Self-harm and lip sewing at Baxter. – Fear of shared room, stems back to his youth when he was strangled in his sleep in his shared room at boarding school. – Wife and 25 year old son in Caribbean, 31 year old daughter Canada and 21 year old daughter New Zealand citizen in Adelaide. |
| 25 March 2015 | IHMS Clinical Report Record:- – Spoke of his ministry and subsequent persecution from jealous others. – Has no recollection of assault to his daughter other than reading her statement to the police. – Client struggling with disparity between perception of himself as a good person and his sexual assault of his daughter. – Risk of harm to self or others low. |
| 26 March 2015 | Case manager notes:- - Applicant was confrontational, argumentative and raised his voice. - Applicant informed of formal complaint process for complaints within detention - Applicant alleged that he did not have the same services as was represented to him when he left. - No mention of physical harm, abuse, discrimination or personal threats, or self-harm |
| 30 March 2015 | Complaint record – applicant re computers. |
| 31 March 2015 | Emails re steps taken to address access to computers. |
| 1 April 2015 | IHMS Clinical Report Record:- – Anxiety increased, psychotic symptoms, auditory sensations not experienced since he was 8 years old, internet time reduced. |
| 7 April 2015 | Case manager notes:- - Applicant raised internet access - No mention of complaints of physical harm, abuse or self-harm. |
| 10 April 2015 | IHMS Clinical Report Record:- – Concern at moment over previous 15 years of his life – wonders if it will ever end. 3 children settled respective lives in 3 different countries. |
| 17 April 2015 | IHMS Clinical Report Record:- – Court hearing consuming his time, helpful distraction. |
| 22 April 2015 | Case manager notes:- - Complained about not being able to participate in excursions due to his risk rating. - No complaint about physical harm, abuse or self-harm. |
| 24 April 2015 | IHMS Clinical Report Record:- – Concerned required to share room. |
| 1 May 2015 | IHMS Clinical Report Record:- – Stresses not having any church excursions, ongoing stress that single room may not be permanent. |
| 8 May 2015 | Case manager notes:- - Applicant has had trouble sleeping as a result of his ITOA. - Applicant finding it hard to adjust as does not like the food. - No mention of physical harm, abuse, self-harm |
| 8 May 2015 | IHMS Clinical Report Record:- – Concern as to inability to attend Church and access computer. – Wants to keep single room, thought of sharing increases his anxiety. – Main agenda is to be given psychiatrist certificate to have own room. – Refers to incarceration due to abusing his youngest daughter over a three day period. – Previously diagnosed with Narcissistic Personality Disorder, history of demanding behaviours, tries to impress that he is a good person which possibly tempers narcissistic rage. – Request for single room dates back to 2012. Request for single room is likely based on personal preference. |
| 15 May 2015 | IHMS Clinical Report Record:- – Did not attend. |
| 21 May 2015** | Case manager notes:- - Applicant’s first mention of Serco officers discussing personal details (convictions) with detainees. - Applicant noted that one person no longer speaking with him. - Applicant advised he could submit a formal complaint. - No formal complaint made. |
| 22 May 2015** | IHMS Clinical Report Record:- – Worried about sharing room. – Does not feel safe in detention centre, wants information passed on in relation to need for single room. – Doesn’t feel safe with other detainees namely, Andre who has been pointing him out to other detainees as a paedophile, fears retribution if he completes complaint form against Andre. – Risk of harm to self and others low. |
| 22 May 2015 | Email:- - Email from Roxanne Wilson psychologist re request for single room that he fears may change with his pending transfer from green to blue compound. |
| 29 May 2015 | IHMS Clinical Report Record:- – Risk of harm to self and others low. |
| 3 June 2015** | Case manager notes:- – Applicant advised he had been bullied and passed this info onto Denise Alexander. – Email 4 June records strategy discussed and monitoring by CCTV – applicant stated that the bullying is very quiet and looked like friends from a distance – Earlier email 4 June 12:26 PM made reference to bullying for protection payment. |
| 5 June 2015** | IHMS Clinical Report Record:- – Disclosed that some detainees have asked for items from canteen in exchange for protection. |
| 11 June 2015 | Case manager notes:- – No complaints and declined medical referral to IHMS MH |
| 18 June 2015 | Case manager notes:- - Applicant going to Adelaide later this year, thought of coming back to Christmas Island upsets him and he does not think he will be able to cope. - Applicant maintains he cannot return to Nigeria but would depart to third country - No complaints of physical harm, abuse or self-harm. |
| 19 June 2015 | IHMS Clinical Report Record:- – To be witness in case in September 2015. – Hopeful not to return. – Today moved to different compound recently reopened. – Pleased to maintain single room. |
| 25 June 2015 | IHMS Clinical Report Record:- – Not coping, being denied visits from family and friends, daughter has forgiven sexual assault 10 years ago. – Daughter travelled by plane from Adelaide to visit at Villawood. |
| 26 June 2015 | Case manager notes:- – Applicant feeling much worse since last meeting, asked if any hope of return to VIDC – No complaints of physical harm, abuse or self-harm. |
| 2 July 2015** | IHMS Clinical Report Record:- – Distress at being at Christmas Island IDC without support. – Explained visits gave him escape from detention environment where he has constant abuse from detainees and officers about his sexual abuse background 10 years ago. – Alleged others spit at his feet, others say you should be shot, why don’t you kill yourself. – His main coping technique is avoidance, which is impossible to do at Christmas Island IDC where he has nowhere to escape detainees and officers except his room. – Coping ability and sleep reduced. – Daughter now 21 has been taken to hospital. |
| 9 July 2015** | IHMS Clinical Report Record:- – Ongoing distress from detainees and officers about his sexual abuse background. – Not sustainable to live like this believes it is systematic persecution. – Officer said he is a rat, detainees made dog barking noises. – Risk of self-harm or others is low. |
| 15 July 2016 | IHMS Clinical Report Record:- – No evidence of mood, anxiety or psychotic disorder. |
| 17 July 2015 ** | IHMS Clinical Report Record:- – How to manage ongoing distress at constant abuse from officers and detainees about his sexual background. – In addition to verbal abuse, another detainee threatened to cut him with a blade. – Reluctant to use complaint forms as believes it will only increase abuse relating to sexual abuse background. – Assessment is that anxiety unlikely to reduce while away from support in Sydney and Adelaide. |
| 21 July 2015** | IHMS Clinical Report Record:- – Experienced some kindness and respect from a few detainees and has given him some hope. – Reduced anxiety and increased self-esteem. – No suggestion of self-harm or abuse. |
| 24 July 2015 | IHMS Clinical Report Record:- – Continued to present with reduced anxiety and increased self-esteem. – No suggestion of self-harm or abuse. |
| 28 July 2015 | IHMS Clinical Report Record:- – Reduced anxiety and increased self-esteem. – Change in attitude towards him by some detainees. – No suggestion of self-harm or abuse. |
| 31 July 2015 | IHMS Clinical Report Record:- – Continued to present reduced anxiety and increased self-esteem. – Change in attitude towards him by some detainees. – No complaints of harm or abuse. |
| 7 August 2015 | IHMS Clinical Report Record:- – Reduced anxiety and increased self-esteem, change in attitude towards him by some detainees. – No suggestion of self-harm or abuse. |
| 13 August 2015 | Case manager notes:- – Expected that the applicant will return to Christmas Island IDC after hearings in Adelaide. – Applicant would like to make submission supporting his transfer to mainland. Applicant believes he should no longer be in detention. |
| 18 August 2015 | Case manager notes:- – Submission received requesting placement on Mainland. |
| 18 August 2015 | Handwritten complaint:- - Handwritten complaint to Department of Immigration and Border Force. - Alleges discrimination (plans to take into account high security classification, suggests abused and bullied by detainees, alleges called a rat, alleges incidents harming mental wellbeing – refers to 2002-2004 Baxter Immigration Detention Centre – admitted and detained under Mental Health Act in hospital – cause of the conviction now being used to discriminate and persecute me). - Alleges department breached duty of care whilst he was in Baxter which led to mental health disorder and led to events of sex convictions in 2005. Alleged Department breached duty of care to applicant then. - Refers that lost Federal Court because of statute of limitations in grounds - out of 3 years time allowed for commencing. |
| 31 August 2015 | Case plan report:- – Applicant requires room to himself since transfer from Christmas Island. – Alleges received call from a “bikie boss” in Villawood. – Alleges officers called him “a piece of shit” and a dog. – Applicant advised he will never go back to Christmas Island and would rather die than go back. – Alleges officers are corrupt and that they were importing drugs. |
| 2 September 2015 | Letter to Minister. - Alleges issues of corruption, cannabis and drugs - Alleges transfer of Karen Stewart (then Centre Manager) - Life not safe told I should kill myself. - Life living hell reported to Miss Anna and Ms Denise Alexander. - Alleges on 31 July 2015 spoke to Ms Denise Alexander about tidying up corruption allegations regarding cleaner Zurani. - Alleges on 29 August 2015 arrival at Melbourne, allegation he is an informer with exception of Ms Denise Alexander whom I truly trust – person of integrity – the rest corrupt. |
| 20 September 2015 | Reply by Josh Smith Department of Immigration and Border Protection Force. |
| 22 September 2015 | Case plan report:- – Alleges mental health deteriorating, slowly killing him. – Applicant believes he will be murdered in Nigeria but this is now a better option than returning to Christmas Island. – Applicant complains that he must not be handcuffed. – Applicant advises having thoughts of harming himself but did not provide specific details. |
| October 2015 | Mild heart attack, hospitalised two days allegedly caused by fear and stress of being told I will be going back to Christmas Island when my evidence finished in Adelaide. |
| 1 October 2015 | Review of Escort security and discontinuance of mechanicals restraints. |
| 14 October 2015 | Case plan report:- – Complaint by applicant that the conditions in Adelaide terrible. – Complained about his blood pressure, no cooking facilities, no fresh juice, prevented from using his phone, Serco officer giving him hard time. – Applicant wanted Serco officer changed. – Applicant said “I will only return to Christmas Island over my dead body.” |
| 20 October 2015 | Letter from Department - Letter in response to complaint made on 18 August 2015. - Decided that placement at Christmas Island appropriate. |
| 26 October 2015 | Case plan report:- – Advised applicant placement on Christmas Island has been classed as appropriate. |
| 5 November 2016 | Letter from Julie Campbell - In response to letter to Minister 2 September 2015. - Encouraged to engage with national medical health centres. |
| 2 May 2016 | Response to 1 October 2015 letter – Mechanicals restraints on escort determined by risk assessment. – Complaint issue closed. |
Consideration of Ms Holben’s affidavit in relation to the transferring the applicant to Christmas Island IDC
Ms Holben noted that in light of the orders made by the Federal Court of Australia on 28 October 2015 restraining the respondent from transferring the applicant to Christmas Island until his pending proceedings were determined and the order made on 9 March 2016 restraining the respondent from transferring the applicant to Christmas Island IDC until further order by this Court, that there had been no decision made to transfer the applicant to Christmas Island IDC.
That affidavit also explained the procedure in relation to the risk assessments that had taken place in relation to the applicant as well as the use of mechanical restraints and explained the overflowing state of affairs that gave rise to a potential need to house the applicant as a high risk detainee and as a vulnerable person on Christmas Island IDC.
The affidavit expressly noted that if the Minister is able to transfer the applicant back to Christmas Island, the applicant will be re-assessed to determine his suitability for transfer to that island and that any decision to transfer the applicant back to Christmas Island would take into account the applicant's individual circumstances, medical needs, family and community links and court hearings, as well as operational capacity across the network and defined risk categories and that the applicant would be considered still to be a vulnerable person who would be accommodated in the vulnerable detainees compound.
The affidavit also identified that if issues or complaints were raised by the applicant in respect of other detainees or staff those complaints would be investigated and, if substantiated, appropriate action would be taken. The affidavit identified the limited formal complaints that have been made by the applicant as well as providing case notes in a case plan report and clinical records of IHMS and the professional conduct policy and procedure manual for Serco Immigration Services.
On 5 October 2016 the applicant filed a document. It was a statement of proposed evidence to be adduced and identified the persons the subject of subpoenas issued by the applicant relevantly in matter SYG 3004 of 2014, six of which had been served on individuals, six of which service was accepted by the Commonwealth. Two of the subpoenas had not been properly served on the recipients.
This Court gave the applicant an opportunity to amend the outline of proposed evidence and on 8 November 2016 the applicant filed a revised proposed outline of evidence.
On 6 December 2016 the Court heard an application to set aside the subpoenas in matter SYG 3004 of 2014. That application had been stood over part heard from 29 November 2016. Only one proposed subpoena in matter SYG 3004 of 2014 was set aside and orders were made for the applicant to attend the hearing in person.
Applicant’s written and oral submissions
The applicant filed and served an outline of submissions on 7 December 2016. Those submissions seek to advance that returning the applicant to the Christmas Island would be a breach or threatened breach of the non-delegable duty of care owed by the applicant allegedly by both the first respondent and the third respondent.
The applicant alleged that there had been past breaches due to the applicant being discriminated against, vilified, abused, intimidated and harassed and made to feel a failure at all levels by other detainees on a daily and consistent basis. The applicant alleged that his life had been put in danger due to the alleged ongoing negligence and breach or threatened breach of duty by the first and third respondents. The applicant alleged that he was scared for his life since April 2016 and up until as recently as October 2016. The applicant submitted that he was a whistle blower having informed on Serco officers while at Christmas Island. The applicant alleged that he suffered a psychiatric injury and continued to suffer mental and psychological injury. The applicant alleged that he already had a fragile mental injury from the events that had happened at Christmas Island and that this was exacerbated on a daily and consistent basis at the Maribyrnong Immigration Detention Centre.
The applicant made reference to his demands to be returned to Villawood or to be detained in the community in community detention. The applicant alleged that he had been subjected to inhumane and degrading treatment to bully and intimidate him and to cause him severe harm and persecute and discriminate him for daring to subpoena managers and officers to give evidence. The applicant submitted that the evidence from the witnesses established that the respondents breached and continued to breach s.256 obligations owed to the applicant whilst at Maribyrnong Immigration Detention Centre.
The applicant maintained that returning him to Christmas Island to be detained would be a breach or threatened breach of the non-delegable duty to the first respondent and the third respondent. The applicant alleged that he would be severely harmed physically and psychologically and permanently damaged if not killed should he be returned back to Christmas Island. The applicant alleged that the events and incidents had a negative effect upon his ability to prepare and prosecute his cases and that he had been subjected to daily mistreatment at the Maribyrnong Immigration Detention Centre.
The applicant submitted that his detention and continued detention is arbitrary, unlawful and false imprisonment. The applicant submitted that to return to Christmas Island would be arbitrary, unlawful and false imprisonment and a breach or threatened breach of the third respondent’s non-delegable duty of care. The applicant also put in his submissions a complaint about his risk assessment and made reference to the complaints that he had made about his treatment at Christmas Island. The applicant made reference to the decision of the Full Court of the Federal Court of Australia in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24 dated 9 March 2016 at [43] and [47] relevantly as follows:-
[43] The Minister submitted that even if the matter were remitted to the Federal Circuit Court this Court should not grant an interlocutory injunction or continue the interlocutory injunction issued by a judge of this Court on 28 October 2015. We do not accept that submission.
[47] For these reasons we would allow the appeal, remit the matter to the Federal Circuit Court of Australia to determine the relevant parts of the interlocutory applications, and grant an interlocutory injunction until the Federal Circuit Court of Australia otherwise orders. For completeness we note that there are consent orders dated 20 October 2015 in the Federal Circuit Court adjourning the matters pending determination of the Minister’s applications for special leave to appeal and any subsequent appeals from the judgment given by this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1, but with liberty to apply on five days’ notice.
The applicant maintained that the first and third respondents had failed to consider and take into account detaining the applicant in the community in community detention. The applicant submitted that the compound in which he was detained on Christmas Island was described as a vulnerable detainee compound and that was the same compound in which he was abused, vilified and discriminated against and told that he should kill himself. The applicant submitted that it was untenable, unreasonable and unjust to return him to Christmas Island.
The applicant made reference to an authority supporting that the third respondent has a non-delegable duty in relation to immigration detainees in its care, S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Another (2005) 143 FCR 217 at [205] and submitted the duty is not only to take care but ensure that care is taken. The applicant also made reference to the power of the Court to restrain the first respondent from causing the person’s immigration detention to continue at a particular place or in a form that constitutes a continuing tort.
The applicant submitted that returning him to Christmas Island would be unreasonable and a breach or threatened breach of the statutory obligation under s.256 of the Act. The applicant alleged that the level of intimidation, bullying and harassment that he was made to endure and experience on a daily and consistent basis was a breach or threatened breach of s.256 of the Act. The applicant also alleges that he was denied adequate access to facilities for the purpose of conducting his legal proceedings. Highlighting in that regard that he was a self-represented litigant and continues to be unrepresented. The applicant sought a permanent injunction restraining the first respondent from transferring him back to Christmas Island. The applicant sought orders that the use of mechanical constraints and the security assessment of him is now a form of punishment.
The applicant submitted that he was entitled to injunctive relief to restrain a continuing tort. The applicant alleged that there had been a total disregard for the complaints he had made. The applicant alleged that there had been a breach or threatened breach of the statutory obligation of s.256 of the Act. The applicant submitted that damages could not be said to be a sufficient remedy. The applicant contended that there was a continuing tort by the respondents in respect of which injunctive relief should be granted.
The applicant also put oral submissions which in substance repeated the content of the written submissions.
Consideration of records alleging bullying, victimisation, harassment, discrimination or mistreatment.
It is apparent from the above chronology, that the records at Christmas Island IDC, the entries for the first 10 weeks from 12 March 2015 until 21 May 2015, do not reflect any issue being raised by the applicant of abuse or self-harm. The first recorded informal complaint of abuse by the applicant was made on 21 May 2015 and was of a generalised nature in respect of which the applicant declined the invitation to make a formal complaint.
I do not accept that the applicant refrained from making a formal complaint due to any apprehension or concern as to consequences from others. I find that the absence of formal complaint in writing by the applicant was due to the absence of any real abuse or mistreatment and that the absence of complaint supports the applicant not being the subject of any thoughts of self-harm due to the conduct of detainees or Serco officers. The applicant is highly articulate and I find the applicant has a history of being more willing to make complaints where he perceives it as in his interest to do so. I also take into account that the applicant was still on Christmas Island when he made his first complaint on 18 August 2015 and this is inconsistent with the applicant’s alleged fear. I also find that the willingness of the applicant to make the complaint made on 5 November 2012 similarly alleging discrimination, persecution, harassment, vilification and unfair treatment is inconsistent with the explanation by the applicant as to why no formal complaint was made.
I find that the absence of earlier recorded complaints is consistent with the absence of anything occurring for the applicant to complain about. I find that for the first 10 weeks the applicant was not subject to any form of abuse. I do not accept that the applicant made complaints in the first 10 week period which were not recorded. I find that the contemporaneous records for the first nine weeks are inconsistent with the applicant’s allegations and evidence of daily abuse and bullying. I find that the content of the complaints recorded between 21 May and 2 July 2015 accurately record the only complaints made prior to the end of July 2015 and are inconsistent with the daily abuse subsequently alleged by the applicant.
In relation to the conduct raised on 3 June 2015 of specific bullying which the applicant described as being very quiet and looked like friends from a distance, reasonable steps were taken by the case manager by identifying the monitoring by CCTV to prevent any ongoing issue. There was no unreasonable conduct by the case manager in response to the alleged bullying. I also take into account that the applicant refused to identify any detainees. The response taken was reasonable by identifying a CCTV monitoring. I find the description by the applicant that the bullying is very quiet and looked like friends from a distance undermines the truth of the assertion by the applicant that there was bullying. Materially, there is no further bullying complaint made thereafter in circumstances where the applicant knew there was CCTV footage. The steps taken in response by the case manager to this information was reasonable.
I find that the first recorded complaint of constant abuse was on 2 July 2015 and I find that this was an untrue assertion by the applicant. I find the absence of any formal complaint by the applicant prior to 18 August 2015 as being consistent with the fact that the applicant had not been exposed to any real abuse or mistreatment on Christmas Island. I find that the assertion of reluctance to complain as recorded on 17 July 2015 was not true. I find that the reason for the absence of complaint was that the applicant was not telling the truth as to constant abuse.
I find the recorded entries between 21 July and 7 August 2015 are inconsistent with the applicant’s assertions of constant or daily abuse and mistreatment. I accept that there was an informal complaint at the end of July 2015 of abuse to one person and otherwise I find those entries were accurate and that no other complaint of abuse was made by the applicant. I also find those entries are inconsistent with the applicant’s allegations as to fear from detainees or others and with the applicant’s assertions of self-harm.
I find that the majority of the entries recorded in the above records whilst the applicant was on Christmas Island IDC are inconsistent with the applicant’s assertion of daily bullying, victimisation, harassment, discrimination or mistreatment. I find that the information provided by the applicant of constant abuse in the above records was false. I find that from 18 August 2015 onwards the applicant falsely asserted misconduct and falsely asserted abuse so as to manipulate his non-return to Christmas Island IDC.
I find the applicant was quick to complain in writing at any point in which he perceived it was in his interests to do so regardless of the truth. I find that the applicant grossly exaggerated the extent of any unpleasant interaction he had had with detainees in an endeavour to manipulate an outcome of his removal and non-return to Christmas Island IDC. I find that the applicant grossly exaggerated the impact of his encounters with fellow detainees and fellow officers in order to endeavour to create a false basis upon which he could assert that he should not be returned to Christmas Island IDC. I find that there was no abuse of the applicant by any detainee. I find that there was no abuse of the applicant by any Serco officer or cleaner. I find that the applicant manipulated a cleaner in a romantic endeavour to advance his own interests and then falsely complained about the cleaner when his advances were spurned. I find that the applicant suffered no mental injury and no physical injury at all on Christmas Island IDC. I find that the applicant did not have any real self-harm thoughts whilst on Christmas Island IDC. I find that the fears from detainees and Serco officers by the applicant and threats of self-harm by the applicant if returned to Christmas Island IDC are manipulative fabrications by the applicant. I find that at no stage was the applicant at risk of any self-harm whilst on Christmas Island. In this regard, the psychologist gave evidence that there was nothing said by the applicant to indicate that he was at risk of self-harm.
I accept the case note entry on 26 March 2015 that the applicant was confrontational, argumentative and raising his voice. Another record was tendered and marked as an exhibit of similar aggressive conduct at Villawood by the applicant. I take into account the subjective circumstances of the applicant and his plight in detention however, the aggression and confrontation by the applicant I find cannot be excused on that ground. That recurring aggressive behaviour of the applicant I find is consistent with the applicant being a manipulative and deceptive person who remains a real risk of danger to the community.
Applicant’s complaint dated 18 August 2015
I find that that the complaint made on 18 August 2015 by the applicant was a deliberate manipulative attempt by the applicant to ensure that he was not returned to Christmas Island IDC by making false and untrue allegations as abuse and bullying.
Applicant’s letter to the Minister dated 2 September 2015
I find that the subsequent letter to the Minister dated 2 September 2015 alleging disclosure of misconduct by Serco officers and abuse was a further deliberate manipulative attempt to prevent his return to Christmas Island IDC by making false and untrue allegations as to misconduct and as to abuse. I find that the applicant fabricated the complaints so as to try and represent himself as entitled to protection and as a whistle blower. These allegations by the applicant were untrue.
Responses to the complaints
I find that the records support that there was in place a proper place a proper system to respond to formal complaints made by the applicant. There was in place a system whereby an applicant could make requests which would be actioned and if appropriate investigated if details were provided in respect of an incident or an incident was identified, it would be recorded on an incidents log that would then be the subject of investigation. If a formal complaint was made, it too would be the subject of investigation. A formal complaint procedure included preserving appropriate confidentiality and raising of conduct with alleged perpetrators. Where appropriate following investigation, the matter would be escalated to the Australian Federal Police of the Australian Border Force. I find that there was and is a sound system in place to preserve and maintain the safety of detainees.
Response to 18 August 2015 complaint
The complaint dated 18 August 2015 was responded to by letter dated 20 October 2015. That letter explained that Christmas Island was an appropriate placement for the applicant. There was no unreasonable conduct in response to the applicant’s complaint. The response dated 20 October 2015 was reasonable and consistent with there being in place a sound system to maintain and preserve the safety of detainees.
Response to the 2 September 2015 letter
I note the letter dated 2 September 2015 was the subject of a reply on 20 September 2015. Again, there was no unreasonable conduct in response to the applicant’s letter of complaint to the Minister. The response by Mr Smith on 20 September 2015, I find is consistent with there being in place a sound system to preserve and maintain the safety of detainees.
The issue raised by the applicant in respect of security escorts and mechanical restraints does not reflect any unreasonable conduct and the applicant’s concerns were the subject of a response sent on 2 May 2016. The response was reasonable and does not reflect any basis upon which there could be said to be a failure to maintain a sound system for preserving and maintaining the safety of detainees.
Summary of the applicant’s oral evidence
The applicant was cross-examined. The applicant confirmed that he knew that he could make a formal written complaint in relation to any matter including his safety. The applicant confirmed that the only written complaint made by him about bullying was at a time that he knew he was going to leave Christmas Island IDC. The applicant initially asserted that he did not know that he was leaving Christmas Island IDC at the time of making the complaint on 18 August 2015 and then gave contradictory evidence. The applicant gave evidence that he did not recall any details of the assault upon his daughter. The cross-examination also focused upon inconsistencies between the applicant’s assertion of the absence of incidents at Villawood and the existence of actual complaints and incidents concerning the applicant. The applicant on a number of occasions was evasive and unresponsive to the questions asked. The applicant asserted that he had been identified as a whistle blower as a result of providing information. I do not accept that the applicant ever provided information giving rise to him being in fact or perceived to be a whistle blower whilst on Christmas Island. The whistle blower allegations was another false manipulative attempt by the applicant to obtain his desired outcome.
The applicant was cross-examined in regards to his allegations of a cleaner bringing in drugs and the entries in the applicant’s journals supporting romantic advances by the applicant to the cleaner. The applicant asserted that his journal entries supported the allegation of him making notes about drugs being brought onto Christmas Island and then recanted from that evidence when asked to identify the entries in his journal. I find that the evidence that the applicant gave about drugs and criminal activity on Christmas Island was deliberately untrue. The applicant also gave evidence that he was not a homosexual but was bisexual and denied that he had alleged that he was a homosexual to the Tribunal. That proposition by the applicant is not true. It is apparent that the applicant initially informed the Tribunal he was a homosexual and then alleged that he was both homosexual and bisexual. The applicant was invited to and declined to tender his journal. I find the evidence given by the applicant as to the journal entries about romantic encounters with the cleaner, were inconsistent with the evidence of the applicant about the cleaner.
The applicant also dissembled with the truth in relation to his bringing of proceedings unsuccessfully against the Commonwealth in relation to his detention at Baxter. The applicant suggested that those proceedings did not involve an allegation of a breach or threatened breach of a duty of care. That evidence is inconsistent with the handwritten complaint by the applicant dated 18 August 2015 referred to in the chronology above. This inconsistency further reinforces the adverse finding made by this Court as to the applicant not being a witness of truth.
Oral evidence of Dessi Broughton
Ms Broughton is an Intelligence Analyst with Serco Immigration Services and had one meeting of approximately one hour with the applicant about three months after his arrival at Christmas Island. The applicant put to Ms Broughton that he raised issues of drugs and matters concerning his safety at the meeting. Ms Broughton responded that she could not recall any such issues. Ms Broughton completed a report on 22 September 2015 that recorded that the applicant had not raised any issues concerning his personal safety with her at Christmas Island. Ms Broughton I accept as a witness of truth. Ms Broughton’s evidence is consistent with there being in place a proper system for preserving and maintaining the safety of the applicant. Ms Broughton’s evidence is inconsistent with the applicant having been subjected to abuse or being a whistleblower whilst on Christmas Island.
Oral evidence of David Tooley
Mr Tooley is the Operations Manager at Serco Immigration Services Christmas Island IDC. Mr Tooley was asked a number of questions by the applicant about his relocation into different compounds and the provision of a single room. Mr Tooley did not recall the background of other detainees in respect of which the applicant asked questions. Mr Tooley gave evidence that there was a cleaner to whom the applicant gave unwanted romantic attention and in respect of whom the cleaner was transferred to another compound by her supervisor. Mr Tooley gave evidence that the applicant raised an issue concerning a stapler with him. Mr Tooley gave evidence that there was no issue of bullying raised by the applicant with him. I accept Mr Tooley as a witness of truth. I find the evidence of Mr Tooley is inconsistent with the evidence of the applicant as to daily and constant abuse.
Oral evidence of Anna Ochoki
Ms Ochoki is a Case Manager for the Department of Immigration and Border Protection at Christmas Island IDC. Ms Ochoki gave evidence in that the first time the applicant expressed unhappiness as to being on Christmas Island was on 8 May 2015. Ms Ochoki gave evidence that the first incident that the applicant raised in the nature of bullying occurred on 21 May 2015 and that the applicant declined to make a formal complaint. Ms Ochoki confirmed that there was in place a formal complaint procedure in relation to preserving and maintaining the safety of detainees. Ms Ochoki confirmed that there was no complaint made to her by the applicant in relation to Serco officers.
Ms Ochoki gave evidence of issues being raised by the applicant as to computer access that were the subject of ongoing action. Ms Ochoki gave evidence that the applicant had explained he did not wish to make a formal complaint because he did not trust the security of the complaint system. Ms Ochoki gave evidence that the applicant raised a more general bullying issue on 3 June 2015 which she understood the applicant was taking up with Ms Denise Alexander. I accept the evidence of Ms Ochoki as a witness of truth. Ms Ochoki’s evidence is inconsistent with the applicant’s assertions of daily and constant abuse and is inconsistent with the assertion of bullying by Serco officers.
Oral evidence of Denise Alexander
Ms Alexander is the Centre Manager Serco Immigration Services and Christmas Island IDC gave evidence that she had three meetings with the applicant the first in early May at which the applicant raised an issue of bullying by a detainee. Ms Alexander gave evidence that no bullying by Serco staff was raised by the applicant. Ms Alexander gave evidence that there was also an issue raised as to Church attendance by the applicant and access to computers. Ms Alexander gave evidence that she issued an instruction where staff were able to in accordance with operational demands to open the education centre early in the morning to permit the applicant additional access time. Ms Alexander gave evidence that the computer access early in the morning was an ongoing intermittent issue due to operational staffing and that her instruction for the applicant to have additional access time remained in place.
Ms Alexander gave evidence that at the second meeting, an issue was raised in relation to a cleaner and also in relation to the canteen and the taking of the applicant’s possessions by detainees. Ms Alexander asked the applicant to provide names which the applicant refused. Ms Alexander asked for times and dates so she could monitor the CCTV and the applicant refused to provide the same. The applicant proffered and explanation to Ms Alexander that it was hard to tell the intimidation from a distance and that it looked like friends. Ms Alexander gave evidence that the CCTV monitoring continued and while she was senior manager, there was no independent evidence obtained of any bullying or intimidation by other detainees. Ms Alexander gave evidence that detainees could each access the computer for one hour a day depending upon a booking system.
I accept Ms Alexander as a witness of truth. I find that Ms Alexander’s evidence is inconsistent with the applicant’s evidence of daily and constant bullying. I find that appropriate steps were taken by Ms Alexander in response to the applicant’s complaints concerning computer access and that the applicant was provided whilst on Christmas Island with reasonable access to the computers. Ms Alexander’s evidence did not in any way support the applicant as being subject of any discriminatory treatment due to his s.501 background. Ms Alexander’s evidence was that she had instructed staff to treat s.501 detainees in the same manner as other detainees. Ms Alexander confirmed that there was a system in place for responding to formal complaints to maintain and preserve the safety of employees. Ms Alexander gave evidence that there is no identification of the applicant as a whistleblower.
Oral evidence of Roxanne Wilson
Ms Wilson was a psychologist from IHMS Immigration Services at Christmas Island IDC between 13 March 2015 to 31 July 2015. Ms Wilson said that on more than one occasion the applicant appeared to be peering towards the door windows which gave rise to what she described as vigilante behaviour which she said was consistent with anxiety. Ms Wilson said that the applicant raised with her concerns in respect of a specific detainee on 22 May 2015 and that this was the first complaint of any bullying by the applicant. Ms Wilson confirmed that her opinion as to the applicant’s mental state was based on the truth of what she was telling him. I find Ms Wilson to be a witness of truth.
Oral evidence of Adrian Bain
Mr Bain was the AG Centre Manager of Christmas Island Detention Centre between 1 August 2015 to 28 August 2015. Mr Bain explained that a detainee could make a request if concerned about a particular matter or could complete a complaint form. Mr Bain also explained that there was an incident reporting process where any incident was observed or identified by staff. Mr Bain confirmed that in late July, the applicant raised with him alleged bullying and informed the applicant he required names. The applicant declined to provide any names. Mr Bain also informed the applicant that he could complete a request of complaint if he wanted further steps to be taken. Mr Bain also confirmed that the complaint system was one which was the subject of a confidentiality regime. Mr Bain confirmed that the person the subject of the complaint would be interviewed in respect of the alleged conduct. I accept Mr Bain as a witness of truth.
Application to recall Ms Broughton
The applicant made an application in the afternoon of 19 December 2016 for Ms Broughton to be recalled so that he could ask her about the destruction of her computer and conversation he had with her about complaints to the Minister the applicant was opposed. Nothing said by the applicant identified any proper basis upon which Ms Broughton should be recalled in the interests of the administration of justice. Ms Broughton had been released from her subpoena without objection from the applicant and the applicant had a proper and fair opportunity to explore both matters with Ms Broughton. Further the applicant did in fact ask Ms Broughton questions on each topic. Nothing said by the applicant identified any sufficiently relevant issue to warrant a recalling of Ms Broughton in the interests of the administration of justice.
Oral evidence of Vanessa Holben
Ms Holben is now the Commander, Detention Operations Section of the Detention Compliance and Removals Division in the Australian Border Force which is part of the Department of Immigration and Border Protection. Ms Holben gave evidence as referred to above and updated the figures in relation to detainees and high risk detainees at particular centres. Ms Holben also explained the reasons why the applicant was likely to remain a high risk detainee. Those reasons included a combination of matters as well as the applicant’s criminal history. The applicant suggested that including his criminal history was punishing him a second time. It is perfectly proper and reasonable for the risk assessment to take into account an individual’s criminal history. There was no irrelevant consideration identified in respect of the applicant’s security risk assessment. There was nothing put by the applicant to Ms Holben that identified any real challenge to her evidence. I accept Ms Holben as a witness of truth. Materially, Ms Holben’s affidavit explains the increase in computer access now available to employees on Christmas Island and that there is in place a sound system to maintain and preserve the safety of detainees.
Assessment of the Applicant’s credibility
The applicant is a highly intelligent person and a very experienced litigant. The evidence reveals a willingness by the applicant to manipulate facts to advance what he perceives as his best interests regardless of the truth. The evidence by the applicant that he was intimidated, harassed, vilified and discriminated against on a daily basis was a gross exaggeration and was I find not true. I find the evidence by the applicant that he was bullied by Serco staff to be untrue.
The applicant’s willingness to assert being harassment, bullying and intimidation on a daily and continuing basis reflects the applicant’s willingness to fabricate evidence to advance what he perceives to be in his interest regardless of the truth. Further, the applicant endeavoured to reconstruct what had occurred at Christmas Island IDC once he perceived it was in his interest to do so.
The allegations of daily intimidation, bullying and harassment of the applicant at Christmas Island I find are not true. I find the allegations by the applicant as to his mistreatment and the conduct of Serco officers and detainees whilst on Christmas Island in the affidavit dated 3 September 2015 were fabrications and not true. I find that the allegation of abuse and mistreatment and being a whistle blower in the applicant’s affidavits are false. I find that the applicant deliberately overstated the interactions he had had with detainees whilst on Christmas Island so as to manipulate an outcome where he would remain on the Australian mainland. I find that the applicant deliberately overstated the impact of his detention on Christmas Island to the psychologist and in the complaints that he made from the end of July 2015 onwards. I also find that the complaints made by the applicant in May and June 2015 as to bullying were untrue. I find that the complaints made in August 2015 and to the Minister by the applicant were untrue. The applicant gave inconsistent and evasive evidence as referred to above.
I find that the applicant’s assertion of not recalling the assault on his daughter to be untrue. I find this assertion to be a deliberate attempt by the applicant to diminish the seriousness and gravity of his violent offence and breach of trust. I also find this assertion is an endeavour by the applicant to conceal the extent of the danger he represents to the Australian community. I find the applicant is not a witness of truth. In closing submissions, the applicant said:-
“You see, you can do whatever you like. I don’t really care. Because what I’m saying is the truth. They can cover the truth. Do everything, but the truth always prevails. Because a lot of people that have done things harms to me, I forgive from my heart, but what has happened to them? They have either died of cancer, had an accident, become sick because I am a Child of God.”
This was an implied threat to the Court and a contempt.
Adequate opportunity to properly conduct litigation
I find that the applicant has had a meaningful and genuine opportunity to properly conduct his legal proceedings and has had adequate access to facilities for that purpose. The applicant has been extremely proactive in asserting his alleged rights while in detention and in relation to each of the proceedings the subject of hearing by this Court. Notwithstanding the psychological evidence, the applicant has displayed no signs of any inability to articulate and develop his alleged case and to give evidence.
I do not accept that the applicant is suffering from any mental incapacity that has impaired his ability to adequately and properly participate in the proceedings before this Court. I am satisfied that the applicant has had an adequate and proper opportunity consistent with the principles of procedural fairness to participate and conduct these proceedings. The applicant’s applications, affidavits, evidence and submissions all reinforce these findings.
No extension of time under s.477 in respect of the alleged decision made on 12 March 2014
Insofar as the letter dated 12 March 2014 is alleged to be a decision within this Court’s jurisdiction under s.476 of the Act, the applicant has filed the application outside the 35 day period under s.477 of the Act. An extension of time requires an adequate explanation for the delay in making the application a consideration of whether there is any prejudice and a consideration of the merits of the alleged grounds of jurisdictional error in determining whether an extension of time is necessary in the interests of the administration of justice.
The better view is that the letter dated 12 March 2014 is not a decision within the expanded meaning of decision under s.474 of the Act. The letter does not purport to determine any matter but rather provided information to the applicant. Insofar as the letter constitutes a decision, no adequate explanation has been provided by the applicant for his delay in bringing proceedings in relation to the same. I do not accept that his detention or being unrepresented is an adequate explanation.
I do not accept that the limited disclosure gave rise to any breach of privacy. Further, a breach of the Privacy Act 1988 does not give any entitlement to relief under the Act or in relation to the decisions made under the Act. For the reasons given by the assessor in matter PEG 261 of 2015, Australia does not owe the applicant any protection obligation and the applicant is not a refugee sur place. For the reasons given in PEG 142 of 2015, Australia does not owe the applicant any protection obligation and the continued detention of the applicant is not arbitrary. The denial of any protection obligation to the applicant is not a criminal act. The continued detention of the applicant is lawful under the Act. Nothing said by the applicant in his affidavits or submissions identify any proper basis upon which it could be said that the decision made on 12 March 2014 was unlawful or unfair.
I note that no prejudice was identified by the first respondent. However, the material consideration in the present case are the merits. In that regard, there is no argument that has been advanced by the applicant that makes out any reasonably arguable error of law by the first respondent in the issuing of the letter. I do not accept that there is any arguable excess of statutory power by the first respondent in the issuing of the letter. The applicant had an opportunity to respond to the letter and I do not accept that there is any reasonably arguable case of denial of procedural fairness in relation to the first respondent’s communication made on 12 March 2014 to assess the consequence of the data breach in relation to the applicant.
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am not satisfied that there is any sufficiently arguable case of jurisdictional error in the making of the decision in 12 March 2014 to warrant an extension of time under s.477 of the Act.
The request for an extension of time under s.477 of the Act in respect of the decision made on 12 March 2014 is dismissed.
No extension of time under s.477 in respect of the alleged decision made on 20 October 2015
The prayer for relief in the amended application challenging the decision made on 20 October 2015 was filed on 18 March 2016. Insofar as there was a decision by Mr Smith within the meaning of s.474(2) of the Act, the applicant, under s.477, had 35 days in which to seek relief under s.477. Further, there was no express reference completed on the amended application making an application for an extension of time under s.477.
As earlier indicated, an extension of time requires a satisfactory explanation, consideration of whether there is any prejudice, and a sufficiently arguable case on the merits to warrant an extension of time in the interests of the administration of justice. The Court notes that there was no satisfactory explanation for the delay. No submissions have been developed by the application identifying any basis for a finding of jurisdictional error insofar as the decision of Mr Smith made on 20 October 2015 falls within s.474(2) of the Act.
I am not satisfied that there is any sufficiently arguable case of jurisdictional error in relation to the decision of Mr Smith made on 20 October 2015 to warrant an extension of time in the interests of the administration of justice. Insofar as the applicant has made application for an extension of time under s.477 of the Act to challenge the decision made on 20 October 2015, that application should be dismissed.
No duty of care owed by the Minister
I take into account what was said in the High Court of Australia in Hunter and New England Local Health District v McKenna [2014] HCA 44 at [17] – [18] and [29]- [33]. I have taken into account the object, structure, content and powers conferred on the Minister under the Act. These statutory considerations are material in determining whether the salient features give rise to relationship whereby a duty of care is owed by the Minister, as well as informing the nature and scope of any such duty.
Of material significance is s.273 of the Act which relevantly provides as follows:-
Detention centres
(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2) The regulations may make provision in relation to the operation and regulation of detention centres.
(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
"detention centre " means a centre for the detention of persons whose detention is authorised under this Act.
The specification that the detention centres are to be established and maintained “on behalf of the Commonwealth” is of material significance. The statutory authority conferred on the Minister to establish and maintain detention centres is one in which parliament has made clear that the detention centres are in fact established and maintained by the third respondent. This provision also makes clear the power by regulation to make provision in relation to the operation and regulation of detention centres. The scheme of this provision is inconsistent with a personal duty of care being owed by the Minister to persons detained at the detention centres. The extension of the regulation making power to the conduct and supervision of detainees does not support a relationship of proximity with the Minister. The regulatory power over persons performing functions in connection with the supervision of detainees is circumscribed by the Act and is not consistent with a duty of care for the safety of detainees being imposed upon the Minister.
I have taken into account that the Minister has a power to give directions in writing under s.499 of the Act in relation to the performance of a person or body having functions under this Act as well as directions about the exercise of powers by person or body under the Act. That power is also circumscribed by the Act and does not support a relationship of sufficient proximity between the Minster and detainees to give rise to a duty of care owed by the Minister. I have taken into account that there are pursuant to s.273 of the Act detention centres on the mainland as well as on Christmas Island IDC.
I have taken into account that there are detention centres maintained on the mainland that have compounds for high risk and vulnerable detainees. I do not accept that there is a sufficient propinquity of the relationship between the Minister and the detainees to give rise to an alleged duty of care to ensure that reasonable care is taken of detainees whilst held in detention. I find that the imposition of such a common law duty of care is inconsistent and incompatible with the statutory duties and obligations imposed on the first respondent under the Act.
I do not accept that the applicant was a whistle blower or is believed by detainees or Serco officers to be a whistle blower. The complaints made by the applicant to the Minister do not give rise to a duty of care. The applicant cannot create a duty of care owed by the first respondent through the making of complaints.
I find that the first respondent is not the gaoler or detainer of the applicant. I find that it is the third respondent that detains the applicant. I find that the third respondent, subject to the statutory regime of the Act, owes a common law duty to exercise reasonable care for the safety of a person held in detention. That is not an absolute duty. Nor does the third respondent guarantee the safety of detainees from each other or other persons. The nature and scope of the duty is limited by the concept of reasonableness. The common law duty arises from relationship between the third respondent and the detainee and is a duty to take reasonable steps to maintain the safety of persons held in detention. The reasonable steps require a sound system for monitoring and maintaining the safety of detainees. The duty is not one whereby the third respondent is vicariously liable for tortious conduct of detainees or others at a detention centre. Rather the third respondent has a non-delegable duty to take all reasonable steps to keep detainees in a detention centre reasonably safe. The third respondent did take all reasonable steps in the Christmas Island IDC to keep detainees reasonably safe.
If contrary to the finding made that there was no duty of care owed by the first respondent, a different view was found to be correct, I find that there was no breach or threatened breach of any such duty of care owed by the Minister. The duty of care is not a guarantee of safety of the detainee but rather, it is an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by a third person or the detainee.
I find the third respondent has in place a national placement model for the placement of detainees, I find that national placement model is sound system and reasonably takes into account the risk of harm to the detainee both from third persons and the detainee. I find that there was and is a sound system for the monitoring and preservation of the safety of persons held in detention at Christmas Island IDC. I find that there is a sound system for the monitoring and preservation of the physical and mental health of the applicant at Christmas Island IDC. I find that there was and is a sound system for the making of complaints by detainees in relation to their wellbeing and safety at Christmas Island IDC.
I find that the applicant has failed to establish any unreasonable conduct by the third respondent in the systems in place at Christmas Island IDC for the maintenance and preservation of the safety of detainees. I find that there has been no authorised disclosure of the applicant’s criminal history by any person at Christmas Island IDC. I find that the applicant has not been the subject of any discriminatory treatment at Christmas Island IDC. I find that the applicant did not receive certain benefits due to sound security and operational reasons and not for any discriminatory reason.
I find that the applicant was not the subject of bullying, harassment, discrimination and vilification or mistreatment. I find that there was no breach or threatened breach of any non-delegable duty of care by the first or third respondent to ensure that reasonable care is taken for the safety of the applicant while held in immigration detention at Christmas Island IDC. I find that there has been no tortious conduct by the first or third respondent in detaining the applicant at Christmas Island IDC. I find that returning the applicant to Christmas Island IDC would not constitute any breach or threatened breach of a duty of care owed by the first or third respondent. I find that there is no threatened tortious conduct by the first respondent that founds a proper basis for the ground of any injunctive relief.
No breach or threatened breach of duty of care in returning the Applicant to Christmas Island
I take into account the principles in respect of a quia timet injunction as identified in Apotex v Les Laboratoires Servier (No.2) (2012) 293 ALR 272 at [46] and what was said by the learned Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 at [467] - [490]. I accept the submissions of the first and third respondents that returning the applicant to Christmas Island IDC does not constitute any breach, or threatened breach of the duty of care owed by the first or third respondent to the applicant. The applicant has not shown that the first or third respondent is threatening an infringement of the rights of the applicant. The applicant has not shown that the first or third respondents by returning the applicant to Christmas Island IDC is a threatened infringement or will cause imminent and substantial damage to the applicant. The Court finds that the degree of probability of the applicant suffering injury by being returned to Christmas Island IDC is fanciful and that neither the alleged seriousness of the applicant’s alleged mental anguish or the requirements of justice warrant a grant of any injunctive relief. The applicant has been assessed on a number of occasions to be a high risk detainee. Those assessments cannot be said to lack and evident and intelligible justification.
On the evidence before the Court, the applicant remains a person who is likely to constitute a real risk to the safety of the Australian community. The crimes of the applicant, committed over a substantial period of time, involve serious dishonesty, violence and gross abuse of trust. On the face of the material before the Court, the applicant is not a person in respect of whom release into the community, on the basis of community detention, would appear to be reasonable or consistent with the need to protect the Australian community. On the evidence before this Court, the applicant is a person who because of his convictions would not pass the current character test and in respect of whom there remains every reason to have a serious concern in respect of the safety of the Australian community if the applicant were released from detention.
Whilst the applicant has also been assessed as a vulnerable detainee because of the nature of the sexual crime that he committed, I am satisfied that there are adequate and proper facilities on Christmas Island IDC for the applicant both as a high risk detainee and a vulnerable detainee. I reject the applicant’s assertions that he was or is a whistle blower or that he is perceived as such.
I find that the sending of the applicant to Christmas Island in 2015 was reasonable and did not reflect any breach, or threatened breach of a duty of care owed by the first or third respondent. I find that the applicant was not subjected to daily victimisation, bullying, vilification, discrimination or harassment. I find that the Serco officers on Christmas Island took appropriate steps in relation to the limited informal complaints that the applicant made to management whilst on Christmas Island. I find that the applicant was provided with proper psychological assessment and support. I find that proper and reasonable steps were taken in respect of the applicant’s formal complaints on 18 August and letter to the Minister dated 2 September 2015. I find that the applicant failed to provide any details in respect of the informal complaints and that reasonable steps were taken to inform the applicant. The formal complaint procedure and also CCTV monitoring.
I find that the applicant was afforded reasonable facilities for obtaining legal advice and taking legal proceedings whilst detained on Christmas Island. I find that the applicant had reasonable access to computers on Christmas Island. I find that Christmas Island continues to have reasonable facilities for the applicant to obtain legal advice and for the taking of legal proceedings. I find that there was no tortious conduct by the first or third respondent in the applicant being taken to Christmas Island. I find that there was no tortious conduct by the first or third respondent whilst the applicant was detained at Christmas Island. I find that a decision to return the applicant to Christmas Island is not a breach or threatened breach of a non-delegable duty of care of the first or third respondent. I find that there is no basis for any injunctive relief to be granted against the first or third respondent to prevent the applicant’s return to Christmas Island.
No other error in assessment of the Applicant being a high risk detainee
The assessment of the applicant being a high risk detainee is I find, a reasonable assessment given the applicant’s history and what I find to be the applicant’s untruthful attempt to manipulate facts to his own advantage. The applicant is a person who poses a risk to the Australian community and potentially to other detainees. There is no material before the Court to warrant any degrading in the high risk assessment of the applicant. The high risk assessment is not a form of punishment and cannot be said to be unreasonable.
No error in relation to use of mechanical restraints
Given that the applicant is a high risk detainee, the use of mechanical restraints from time to time upon the applicant is I find reasonable. The applicant’s endeavours to manipulate circumstances despite the truth to advance his own interests together with the applicant’s criminal history may well justify the use of mechanical restraints on the applicant.
There was evidence before the Court of two occasions when the applicant has acted in an aggressive and confrontational manner. Whether mechanical restraints are necessary is a matter for security assessment and no unreasonableness or error of law has been made out in relation to the use of restraints on the applicant.
No breach or threatened breach of obligation under s.256 of the Act
I find that the applicant was afforded all reasonable facilities for obtaining legal advice or taking legal proceedings whilst on Christmas Island. I accept that the direction made for additional time for the applicant to access computers was intermittently complied with due to the operational issues was reasonable and meant the statutory obligation. However, I regard the taking of the steps for additional access subject to operational staffing as reasonable. I find that the applicant’s detention on Christmas Island did not give rise to any breach or threatened breach of s.256 of the Act. I reject the submission that the applicant has been the subject of any breach or threatened breach of s.256 of the Act at the detention centre in Melbourne. I find that returning the applicant to Christmas Island would not constitute any breach or threatened breach of s.256 of the Act.
Lawful Detention
The applicant’s continued detention remains lawful under the Act and there is no substance in the applicant’s submissions that he is entitled to be released or that his continued detention is a form of punishment.
Dissolving of injunction
I find the applicant obtained the interlocutory injunction from return to Christmas Island based on false evidence as to alleged abuse and vilification. There is no evidence of any improper conduct by Serco officers at Christmas Island. The applicant’s allegations as to abuse by detainees at Christmas Island I find was untrue. The applicant did not suffer any mental or physical injury at Christmas Island. The assertion that the applicant was a whistle blower or perceived as such at Christmas Island is untrue.
The facilities at Christmas Island are reasonable and comply with the obligation imposed by s.256 of the Act. Returning the applicant to Christmas Island does not give rise to any breach or threatened breach of s.256 of the Act or any breach or threatened breach of a duty of care owed by the Commonwealth or if found to exist, the Minister. Further, on the evidence before the Court, and the capacity to accommodate high risk detainees, a decision to return the applicant to Christmas Island on the evidence before the Court is not unreasonable, illogical or irrational. There is no basis on the evidence, to find that the applicant will be subjected to harm on Christmas Island. I find there is no basis to believe that the applicant would engage in any self-harm. There is no proper basis to grant any permanent injunction in relation to the return of the applicant to Christmas Island or in relation to the return of the applicant to Nigeria.
Conclusion
Returning the applicant to Christmas Island does not constitute a tort. There is no basis upon which any relief could be granted in relation to the second respondent. The applicant is not a refugee sur place. The applicant suffered no injury, physical or mental on Christmas Island. The applicant is not entitled to a residency visa or Australian passport. The continuing detention of the applicant pending his return to Nigeria is not punishment, arbitrary, false imprisonment or unlawful. The applicant was not subjected to any discrimination. No basis has been made out for obtaining any psychiatric review of the applicant. No basis for any declaratory relief has been made out. None of the grounds for relief against the first and third respondents have been made out by the applicant.
There is no proper basis to grant any permanent injunction and the interim injunction should be discharged forthwith. There is no basis to grant an injunction to prevent the applicant’s removal from Australia. It remains a matter for the first respondent as to where the applicant should be held in detention pending his return to Nigeria. It also remains a matter for the first respondent as to the ongoing security risk assessment of the applicant and assessment of his status of vulnerability.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Street.
Date: 20 December 2016
CORRECTIONS
Reasons for Judgment: Page 38, Paragraph 118, insert “In closing submissions, the applicant said:-
“You see, you can do whatever you like. I don’t really care. Because what I’m saying is the truth. They can cover the truth. Do everything, but the truth always prevails. Because a lot of people that have done things harms to me, I forgive from my heart, but what has happened to them? They have either died of cancer, had an accident, become sick because I am a Child of God.”
This was an implied threat to the Court and a contempt”.
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