Zheng v Commonwealth of Australia

[2017] NSWSC 795

Supreme Court

New South Wales

Medium Neutral Citation:	Zheng v Commonwealth of Australia [2017] NSWSC 795
Hearing dates:	19 June 2017
Date of orders:	19 June 2017
Decision date:	19 June 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   Strike out paragraphs 7 to 13 inclusive of the amended statement of claim filed on 3 February 2017. (2)   Grant leave to the plaintiff within 28 days to replead so much of her cause of action against the defendant as is framed in negligence or breach of duty. (3)   Order that the costs of the defendant’s motion dated 19 June 2017 should be the defendant’s costs in the proceedings.
Catchwords:	PRACTICE & PROCEDURE – pleadings – application to strike out statement of claim upon the basis that it discloses no reasonable cause of action – whether pleading capable of being redrawn in proper form
Legislation Cited:	Migration Act 1958 Uniform Civil Procedure Rules
Cases Cited:	Fernando v Commonwealth of Australia [2014] FCAFC 181 Scott v Pedler (2003) 74 ALD 424
Category:	Procedural and other rulings
Parties:	Xu Zheng (Plaintiff) Commonwealth of Australia (Defendant)
Representation:	Counsel: Paul S Jones (Defendant)   Solicitors: Sparke Helmore Lawyers (Defendant)
File Number(s):	2016/237975
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Xu Zheng is a citizen of the People’s Republic of China. She arrived at Sydney’s Kingsford Smith Airport on 4 March 2014 on a temporary tourist visa. After being interviewed by Border Protection officials, Ms Zheng’s visa was cancelled under s 116(1)(g) of the Migration Act 1958 and she was detained as an unlawful non-citizen.

2. The decision to cancel Ms Zheng’s visa was illegal. In proceedings in the Federal Court of Australia commenced by Ms Zheng against the Minister for Immigration and Border Protection seeking judicial review of the decision to cancel her visa, the following orders were made by consent on 4 July 2014:

1. A writ of certiorari shall issue removing the record of the visa cancellation decision, being the decision of the delegate dated 4 March 2014 to cancel the applicant’s subclass 600 visa, into the Court to be quashed.

2. The respondent is to pay the costs of the applicant, being $515 which was paid for the filing fee.

3. Following the cancellation of her visa, Ms Zheng was detained, first at the Villawood Detention Centre and later in Darwin pending deportation to China on 2 August 2014. Before that occurred, Ms Zheng had been held in detention in Australia for a period of 151 days. She was subsequently granted a right of re-entry to Australia and currently resides with her partner Warren Oliver in Sydney.

4. Ms Zheng commenced these proceedings by statement of claim filed on 8 August 2016. An amended statement of claim was filed on 3 February 2017. The Commonwealth now seeks orders by notice of motion filed in court on 19 June 2017 to strike out the whole, or part, of the amended statement of claim pursuant to UCPR 14.28. The Commonwealth relies upon the affidavit of Alice Bolt sworn 16 December 2016.

5. Ms Zheng’s claim against the Commonwealth is effectively divided into two parts. The first is a claim in tort claiming damages for false imprisonment. The second is a claim in tort claiming damages for negligence.

False imprisonment

6. Ms Zheng alleges that her visa was erroneously cancelled pursuant to s 116 of the Act and that her detention thereafter was unlawful. Apart from s 116, several other sections of the Act should be noted:

“14 Unlawful non-citizens

(1)    A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

189 Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

196 Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)   an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

198 Removal from Australia of unlawful non-citizens

(1)    …

Removal of unlawful non-citizens in other circumstances

(2)    An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

(b)    who has not subsequently been immigration cleared; and

(c)    who either:

(i)    has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii)    has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

…

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

(ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

7. The Commonwealth contends that even though the decision to cancel Ms Zheng’s visa was quashed on 4 July 2014, that did not affect the rights and obligations of the detaining officer under s 189. That approach is said to have been acknowledged by the Federal Court of Australia in Fernando v Commonwealth of Australia [2014] FCAFC 181 as follows:

“[77] Ruddock and Others v Taylor [2005] HCA 48; (2005) 222 CLR 612 (‘Ruddock (High Court)’) does not provide the solution to this aspect of the case, but it does provide a key element in the resolution of it.

[78] In Ruddock (High Court), the High Court was required to consider whether a noncitizen could be lawfully detained under ss 189 and 196 of the Act in circumstances where the noncitizen’s visa had been cancelled under s 501(2) of the Act, and the noncitizen had been detained before the decision to cancel the visa was subsequently quashed on the ground that it was ultra vires. By a majority, the High Court decided that question in the affirmative if the noncitizen had been detained as a result of an officer, within s 5 of the Act, forming a reasonable suspicion under s 189(1) of the Act that the noncitizen was a person in the migration zone and was an unlawful noncitizen.

[79] The majority of Gleeson CJ, Gummow, Hayne and Heydon JJ said (at 622623, [28]):

That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 – separate, that is, from consideration of the lawfulness of the Minister's exercise of power. If it were suggested that the Minister had exercised power where the Minister knew or ought to have known that what was done was beyond power an action may lie for the tort of misfeasance in public office. But that has never been the respondent's case in this matter.

(Footnotes omitted).

…

This Case

[81] The respondents submitted that, even though the appellant had been unlawfully detained for 1,203 days, he could and would have been lawfully detained in any event, and it followed that he was not entitled to compensatory damages. He could and would have been lawfully detained if the tort had not been committed because, having regard to the cancellation of his visa by the Acting Minister, an officer could and would have formed the reasonable suspicion referred to in s 189(1) of the Act. He would then have been kept in immigration detention under s 196(1) of the Act, and the fact that he was challenging the decision to cancel his visa on the ground that it was unlawful would not have affected the statutory requirement in s 196 of the Act to keep him in immigration detention. We think that contention is correct.

[82] This conclusion certainly goes one step further than Ruddock (High Court) in that it relates to the damages to be awarded, not the lawfulness of the detention. However, the step is consistent with the principle identified in Lumba and subsequent cases in the United Kingdom. We say identified rather than established or enunciated because the principle is not a new one. It is a basic principle relevant to the award of compensatory damages under Australian common law as much as the common law of the United Kingdom. Unless there was reason to think that the principle had been excluded by the particular statutory context, then it should be applied. No statutory provisions suggesting the exclusion of the principle were identified in this case.

…

[86] Thirdly, the appellant submitted that he had not been lawfully detained in the first place and there was nothing to suggest that he would have been detained at any time during which he was kept in detention under s 196(1) of the Act. This seems to us to combine impermissibly what in fact happened with the relevant counter-factual. The relevant counterfactual is that the appellant had not been unlawfully detained in the first place, and requires the Court to consider what could and would have happened had the tort not been committed.

…

[88] The primary judge relied on the provisions of the Act rather than evidence to support his conclusion that the appellant could and would have been lawfully detained by an officer performing his or her duty under s 189(1) of the Act (see [96] of his third judgment). We think that he was correct in doing so. The definition of ‘officer’ in s 5 of the Act is very broad, s 189(1) of the Act places an obligation, not a mere discretion, on an officer to detain a noncitizen in the circumstances envisaged in the section, and, finally, nothing was put to this Court which suggests that any officer would have viewed the cancellation of the appellant’s visa as other than regular and effective.

[89] We uphold the primary judge’s conclusion that the appellant was entitled to nominal damages only and not compensatory damages.”

8. The Commonwealth therefore emphasised that the amended statement of claim proceeds upon the erroneous basis that the wrongful cancellation of a visa necessarily leads to unlawful imprisonment and an associated entitlement to damages.

9. In the present context Ms Zheng has also alleged that after the Commonwealth conceded that her visa had been illegally cancelled, the Minister failed to issue her with a new visa. The Commonwealth submitted that no cause of action arose from that circumstance either, because there is no private right of action that arises from any such failure or refusal: Scott v Pedler (2003) 74 ALD 424 at [44], [45], [60], [65] and [67].

10. In my opinion, Ms Zheng has no cause of action arising from the legality of otherwise of her detention. The authorities upon which the Commonwealth relies are clear. Moreover, it has never been part of Ms Zheng’s case that anyone committed the tort of misfeasance in public office.

Negligence

11. Ms Zheng alleges that her treatment whilst in detention caused her loss and damage. She contends that this loss and damage was caused by a breach of the duty owed to her by the Commonwealth to take reasonable care for her health and safety. Although the precise scope and content of that duty may be in dispute, I do not understand the Commonwealth to contend that no duty of any kind exists.

12. The Commonwealth rather contends that to the extent that the amended statement of claim purports to plead a cause of action in negligence, it fails to do so clearly or more particularly in accordance with the rules. The Commonwealth’s position is underscored by the fact that on 11 October 2016 Ms Bolt wrote to Ms Zheng in great detail seeking further and better particulars of her claim. That letter has remained unanswered and would, if replied to, presumably have better informed the Commonwealth of the claim it is required to meet.

13. UCPR 15.5 provides as follows:

“15.5 Allegations of negligence and breach of statutory duty in common law claims in tort

(1)    The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise):

(a)    must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and

(b)    if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission.

(2)    The particulars to be given by a pleading that alleges breach of statutory duty:

(a)    must state the facts and circumstances on which the party pleading relies as constituting the alleged breach of statutory duty, and

(b)    if the party pleading alleges more than one breach of statutory duty, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged breach of statutory duty.”

14. The amended statement of claim conspicuously fails to conform to this rule. Even though it is possible, on a benign view of the pleading, to discern the framework of Ms Zheng’s complaints, the Commonwealth ought not to be left in the position of having to speculate about the manner in which she frames her cause of action.

Conclusion

15. In my opinion, Ms Zheng has no cause of action against the Commonwealth for false imprisonment. The actions of the Commonwealth employees were authorised by the relevant provisions of the Act, even notwithstanding the later quashing of the decision to cancel Ms Zheng’s visa.

16. I am, however, not satisfied that Ms Zheng has no possible cause of action based upon a breach of the Commonwealth’s duty to take reasonable care for her safety whilst in detention. The matter is not at present properly pleaded. Ms Zheng should have an opportunity to replead that part of the amended statement of claim.

Costs

17. The Commonwealth seeks costs of the motion upon the basis that it has succeeded in disposing of a substantial part of the amended statement of claim. Ms Zheng opposes that order, although she did not articulate her opposition in any precise or persuasive way. I note for present purposes that Ms Zheng appears for herself without legal assistance. A referral for such assistance on a pro bono basis has not advanced Ms Zheng’s position.

18. Doing the best I can it seems to me that these proceedings have the potential to occupy a great deal more of this Court’s time. It is likely, or at least possible, that further matters will emerge that will inform the question of where the burden of costs, as between Ms Zheng and the Commonwealth, should fall. I think the proper order for costs at this time should take account of that prospect.

Miscellaneous

19. It is apparent from submissions made to me by Ms Zheng and by her partner Mr Oliver on her behalf that the events that give rise to these proceedings have been distressing and upsetting for Ms Zheng and her family. This is not in my estimation a case in which a minor slight or insult has led to a disproportionate or obsessive reaction to what occurred. It seems to me that at the centre of Ms Zheng’s concerns is the fact that a little more care and patience, not to say forbearance, in the circumstances at the airport on 4 March 2014 may well have, and on one view certainly would have, avoided this entire misunderstanding. I have no doubt that Ms Zheng’s limited English contributed significantly to what happened. She was evidently unable to communicate sufficiently with her interviewers to make it clear that she had a place to stay and that her visit was legitimate. So much is apparent from the final consent orders made in the Federal Court. It is a matter of substantial regret that Ms Zheng could not have been spared the terrible ordeal of 151 days in detention and deportation, and the subsequent and ongoing unpleasant vicissitudes of litigation, when a little more patience and care might well have avoided everything that went wrong in her case.

Orders

20. I make the following orders:

1. Strike out paragraphs 7 to 13 inclusive of the amended statement of claim filed on 3 February 2017.

2. Grant leave to the plaintiff within 28 days to replead so much of her cause of action against the defendant as is framed in negligence or breach of duty.

3. Order that the costs of the defendant’s motion dated 19 June 2017 should be the defendant’s costs in the proceedings.

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Decision last updated: 19 June 2017