Vergara v Minister for Immigration
[2017] FCCA 865
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERGARA v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 865 |
| Catchwords: MIGRATION – Applicant currently held in immigration detention – application seeking declaration that a decision by the Minister for Immigration to ban mobile phone possession and use in detention is invalid – whether the respondents have the authority to search detainees for and retain mobile phones – whether the applicant was denied procedural fairness in respect of the decision to search for and take all mobile phones off detainees – no reviewable error – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1974 (Cth), s.8(2) |
| Cases cited: SZSZM v Minister for Immigration & Border Protection & Ors [2017] FCCA 819 |
| Applicant: | NICOLAS ESTEBAN VERGARA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| Third Respondent: | SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3464 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 March 2017 |
| Date of Last Submission: | 3 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Counsel for the applicant: | Mr M Seymour as Amicus Curiae |
| Counsel for the First Respondent: | Mr P. Herzfeld |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to file and serve an amended application including a prayer for relief under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) by 17 May 2017.
The time for lodging an application for relief under the ADJR Act be extended until 17 May 2017.
Compliance by the applicant with the requirement in r.42.02(1) of the Federal Circuit Court Rules 2001 (Cth) in connection with any amended application be dispensed with.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3464 of 2016
| NICOLAS ESTEBAN VERGARA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
Third Respondent
REASONS FOR JUDGMENT
The applicant, Mr Vergara, is not a citizen of Australia and does not hold a visa that permits him to stay in Australia. He was detained at the Villawood Immigration Detention Centre (VIDC) in November 2016 and remained there until 22 March 2017 when he departed from Australia.
On 21 November 2016 the applicant was told that he was no longer permitted to “have, own or possess” a mobile phone in detention and that if he were transferred to another detention facility he would immediately lose his phone. He was then handed a document in which it was explained that there was a new policy concerning mobile phones in detention and that:
…
Effective immediately, from 21 November 2016, anyone entering an immigration detention facility or being transferred to another facility is not permitted to have a mobile phone and/or SIM card.
If you are not being transferred to another onshore facility you will have a grace period, until midnight 19 February 2017 in which to voluntarily surrender your mobile phones and SIM cards. These items will be held in your ‘in-trust’ property until you leave immigration detention.
…
From 20 February 2017 you will not be allowed to possess or use mobile phones and SIM cards. You will be provided with additional access to land line phones and you will be able to continue to book time to use the internet. To use landline phones you will need to purchase phone cards from the canteen using your points from the Individual Allowance Programme (IAP).
After the grace period, mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
…
(Emphasis in the original)
On 7 December 2016 the applicant commenced proceedings in this Court seeking, amongst other things, a declaration that the decision to ban and prohibit the use of mobile phones and SIM cards in detention was invalid and an injunction restraining the Minister for Immigration, the Department of Immigration and officers, delegates and agents from acting on that decision. The application was said to have been brought under this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (Act).
On 16 December 2016 the matter came before me for directions together with a two other identical applications brought by others in immigration detention. All three matters were set down for hearing before me on 9 March 2017. In one matter the applicant did not appear and his application was dismissed. In the other matter, SZSZM v Minister for Immigration & Border Protection & Ors [2017] FCCA 819 (“SZSZM”), Mr Seymour of counsel appeared for the applicant. Judgment in SZSZM is handed down at the same time as judgment in this matter.
Mr Seymour was granted leave to appear as amicus curiae for the applicant in these proceedings. He indicated that Mr Vergara wished to rely on the submissions made in SZSZM. Mr Vergara filed no written submissions and made no other submissions at the hearing. For that reason, Mr Vergara has abandoned any ground that he had previously relied on by him and the issues in his proceedings are the same as those determined in SZSZM. As a consequence, the reasons and outcome of SZSZM are determinative of these proceedings and this judgment ought to be read together with the judgment in SZSZM.
That said, there are two differences between the two sets of proceedings that require brief mention: first, Mr Vergara did not file any statement of claim in these proceedings whereas the applicant in SZSZM did. Secondly, unlike the applicant in SZSZM, Mr Vergara did not apply for an interlocutory injunction. However, as noted in SZSZM, on 19 February 2017 Rares J granted an interlocutory injunction in proceedings in the Federal Court (ARJ16 v Minister for Immigration & Border Protection [2017] FCA 263) which were sufficiently broad as to apply to Mr Vergara: see SZSZM at [6]-[7].
Jurisdiction
In SZSZM I concluded that this Court has jurisdiction in these proceedings under two different enactments: first, under the Act insofar as the decision in question was not affected by jurisdictional error (see SZSZM at [11] – [31]); and secondly, under s.8(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) (see SZSZM at [32] – [34]). As in SZSZM, I will grant leave to the applicant to file an amended application seeking orders under the ADJR Act.
Factual background
The evidence concerning the relevant factual background was the same in these proceedings as in SZSZM. I make the same findings as I did in that case and, for ease of reference, I set out below what I said there at [37] – [53].
As will be seen, a non-citizen who is in, or is attempting to enter Australia without a visa, is liable to be detained and kept in detention until, relevantly, he or she is removed from Australia.
The Minister has the power under s.273 of the Act to establish and maintain detention centres for this purpose on behalf of the Commonwealth. A number of these centres have been established around Australia. One such centre is the VIDC where the applicant is detained.
On 12 November 2014, two detainees escaped from a detention centre in Victoria (the Maribyrnong Immigration Detention Centre or MIDC). This was not the first successful escape from that centre. On 14 November 2014, Serco[1] produced a report about the escape. The report noted that shortly before the escape one of the detainees was observed on CCTV[2] talking on a mobile phone. The two escapees made their way to the external perimeter gate where people from the outside were cutting the padlock with bolt cutters. The report concluded that the escape would not have been successful without external assistance.
[1] Serco Australia Pty Limited provides services at the Australian detention centres under contract with the Commonwealth of Australia.
[2] Closed-Circuit Television.
On 1 June 2015, four detainees attempted to escape from a detention centre in Western Australia, the Yongah Hill Immigration Detention Centre (YIDC). Following this attempt, there was an assessment conducted to assess security vulnerabilities relating, amongst other things, to the “management of contraband and potential escape enabling materials.” The report noted that one of the detainees was seen speaking on a mobile phone during the escape attempt and that there was a “suspicious vehicle” parked 200 metres from the entrance of the centre which was suspected to have been the pick-up vehicle (that is, the vehicle in which the planned escapees were hoping to be driven away from the Centre). One of the recommendations made in the report was to “reconsider the policy to remove the possession and use of mobile phones across all detainee cohorts.”
In support of that recommendation the report stated:
…
The use of mobile phone devices is currently excluded to all IMA’s[3] within the detention network and continues to present an increasing problem throughout various centres. The increase in random checks, combined with the targeted or suspected room searches would be an effective step in controlling the use of these items. The current practice and agreement that possession and use of mobile phones are permitted for the s501[4] cohort and not IMAs, has the potential to threaten the security and good order of the centre. The inconsistency in allowing access to mobile phones based on detainee categorisation is emerging as a systemic issue throughout all centres in the network.
…
[3] Illegal Maritime Arrivals.
[4] That is, people whose visas had been cancelled under s.501 of the Act.
The two-tiered approach to the possession of mobile phones in immigration detention referred to in this report had been in place since 2010.
On 14 March 2015, the driver of a car outside the YIDC was seen to be talking on a mobile phone. He then got out of the car and was seen throwing an object over the perimeter fence of the centre. The package was located by an officer and, upon examination, found to contain “green leaf material wrapped in plastic.”
Following a visit to Christmas Island on 7 and 8 October 2015, the Minister requested information on the mobile phone policy within the Immigration Detention Network.
On 28 October 2015, a detainee in the Perth Immigration Detention Centre was threatened by another detainee by text and telephone.
Following a disturbance at the North West Point Immigration Detention Centre (NWPIDC) on Christmas Island in November 2015 all mobile phones were taken from detainees at that centre.
There followed a review of the policy on possession and use of mobile phones in the Immigration Detention Network (IDN). In early 2016 a minute was prepared outlining the conclusions of the review. That minute noted that serious, unmitigated risks arising from the use of mobile phones by detainees had been identified and that the risk was currently assessed as extreme. The major risks identified included the following:
· Escape;
· Use of force incidents;
· Importation of illicit substances;
· Abusive/aggressive behaviour;
· Threats to detainees;
· Contraband;
· Mobile phones being used as currency;
· Protest coordination; and
· Access to inappropriate/abhorrent/radical material.
The control measures recommended to mitigate these risks included the exclusion from the use and possession of all mobile phones from all detainees, within the IDN.
On 27 May 2016, the policy change was approved and the policy entitled “Safety and Security – Items not permitted in immigration detention facilities” issued on 1 July 2016. This policy is contained in Chapter 8 of the Procedures Advice Manual maintained by the Department of Immigration.
An implementation plan, entitled “Operation Ramentum”, was developed following the incidents at NWPIDC. This plan was approved on 17 November 2016. The approval of the plan noted that there had been a significant shift in the composition of detainees within the IDN over the past 12 months. This was due to the increased number of detainees who had been assessed as “presenting unacceptable risks to the Australian community”; that is, people whose visas had been cancelled and who, under the two-tiered policy mentioned at [13] to [14] above, would have been entitled to possess and use mobile phones while in detention.
The plan consisted of a number of stages including:
…
iv)an amnesty period of three months for detainees to hand in mobile phones to Serco
v)staggered ABF[5]-led search operations under the command of IDF[6] Superintendents, starting from 20 February 2017 using Operation Safe Centre protocols
vi)ongoing coordinated search operations in IDFs, as business as usual (authorised under section 252 of the Act).
[5] Australian Border Force.
[6] Immigration Detention Facilities.
On 21 November 2016, an announcement of the new policy concerning mobile phones and its implementation was made. One of the ways in which the announcement was made was by the distribution of a document to detainees. The relevant part of that document is set out above at [2]. The document referred to the amnesty part of the implementation plan as the “grace period” and stated that, after its expiry (that is, 20 February 2017):
… mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
As I have noted, two injunctions were in place by 20 February 2017 restraining the further implementation of Operation Ramentum. For that reason, the applicant continues to have the possession and use of his mobile phone. It is clear from the facts stated above, that unless the injunction is maintained, the applicant’s phone is likely to be taken either by an ABF-led search operation, or as part of ongoing co-ordinated searches conducted in detention centres throughout Australia including, relevantly, VIDC.
Consideration
The applicant argued that the respondents have no authority to take his mobile phone and that to take it would amount to a trespass. He also argued that the decision to take all mobile phones was made in denial of procedural fairness.
Both of those arguments must be rejected for the reasons set out at [54] – [120] in SZSZM. In summary:
a)There is authority under both ss.252 and 273 of the Act to take and retain possession of a mobile phone found in the course of a search of a person in immigration detention, or a search of the clothing or other items of that person; and
b)There was no obligation to give the applicant any right to be heard in connection with the decision to take and retain possession of all mobile phones found during a search made under the Act.
For those reasons, these proceedings must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 3 May 2017
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