AKW22 v Commonwealth of Australia

1. The applicant's interlocutory application dated 7 July 2023 be dismissed.
2. The applicant pay the respondent's costs of the application to be assessed on a lump sum basis by a registrar of this court, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 Late on Friday 9 July 2023 the applicant filed an urgent application for orders restraining his removal from Australia pending the outcome of an application he has brought for leave to appeal from a decision of this Court and the determination of the appeal. 2 His solicitor has filed an affidavit in support of the application indicating that he (the solicitor) discovered on 3 July 2023 that the applicant was due to be deported on Monday 10 July 2023 at 17.10 pm. Accordingly, this matter has come before me today as duty judge on an urgent basis. 3 A brief history provides context. The applicant is a citizen of India. The applicant's skilled independent BN subclass 136 visa was cancelled in 2011 under s 501(2) of the Migration Act 1958 (Cth), following convictions for sexual offending. A review of that decision was unsuccessful. A subsequent application for a protection visa was refused. A review of that decision was also unsuccessful on remittal. The applicant has been detained as an unlawful noncitizen since his release from prison in about January 2013, pending the hearing of a number of applications that he has brought, including further review applications, appeals and unsuccessful applications to the High Court. 4 In December 2021 the applicant commenced these proceedings in this Court. The proceedings were consolidated with other proceedings, and both continued as WAD 292 of 2021. The consolidated application was amended with leave in terms of an application dated 6 May 2022. By that application, the applicant sought a writ of habeas corpus or similar orders, and damages for false imprisonment. The primary judge ordered that the question of whether a writ of habeas corpus should issue was to be determined separately and in advance of any other issues in the consolidated proceeding. 5 In July 2022 the primary judge refused the application for the issue of a writ of habeas corpus or orders in the nature of habeas corpus: AKW22 v Commonwealth of Australia [2022] FCA 869 (AKW22 (No 1)). 6 On 1 February 2023 the primary judge ordered that the applicant file and serve a statement of claim in respect of his claim of false imprisonment. 7 On 3 February 2023 the applicant filed a statement of claim, seeking the relief set out in the 6 May 2022 amended application. 8 The respondent sought summary dismissal of the claim or an order striking out the statement of claim in its entirety. 9 On 14 April 2023 the primary judge ordered that the whole of the statement of claim be struck out and the applicant's claim be dismissed: AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332 (AKW22 (No 2)). 10 On 1 May 2023 the applicant filed an application for an extension of time to seek leave to appeal from the orders made in AKW22 (No 2). I was informed today that it is now accepted that no extension of time is required. However, leave is sought on the basis that s 24(1D) of the Federal Court of Australia Act 1976 (Cth) prescribes that summary dismissal is interlocutory in nature. Whether or not leave is in fact required is put in contest by the applicant, but that contest does not need to be resolved for the purpose of this application. 11 By an affidavit filed by Mr Andrew Gill, the applicant's solicitor, and relied on in support of this application, the applicant asserts that 'It is not apparent from the decision of [the primary judge] on what basis the applicant's claim was dismissed'. The grounds of the leave application are expressed only in a very general manner and state that: The learned judge: 1. failed to refer to the provisions of the Federal Court of Australia Act 1976 and the Federal Court Rules 2011, upon which the parties relied, rendering it impossible to discern any valid reasoning process by which the determination was reached; 2. failed to take into account relevant considerations; 3. had regard to an irrelevant consideration; 4. made a decision that in the circumstances is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and 5. made a decision that is manifestly unjust having regard to 1-3 above and would cause substantial injustice if leave were refused. 12 On 8 June 2023 a registrar of this Court directed that, relevantly, the applicant file and serve a draft notice of appeal setting out particularised grounds of appeal within 10 days of the order. No such draft notice has been filed. 13 The principles relating to a grant of interlocutory relief by the Court are well settled: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [35]; Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]; MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 at [8]; and Frigger v Trenfield [2019] FCA 1746 at [6]. 14 In summary, in order to grant an interlocutory injunction the Court must generally be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction, although those limbs are not to be viewed in isolation. 15 It is not necessary to consider in detail the prospects of success of an application for leave to appeal in addressing the question of whether there is a serious question to be tried. I say that because in this case, it seems to me that the application is determined primarily by reference to the balance of convenience and the question of whether an injunction is justified in order to preserve the subject matter of the appeal. 16 However, I will address the nature of the proposed appeal in summary. 17 In short, the statement of claim filed by the applicant on 3 February 2023 did not plead any cause of action against the respondent. No material facts were identified that were capable of supporting a claim for unlawful detention. All that was pleaded was that the applicant was detained and the dates and location of such detention. The applicant's position was that he had no burden to plead anything for the purpose of a false imprisonment claim. 18 The respondent's position was that the tort of false imprisonment was relevantly indistinguishable from a claim for habeas corpus, and in the context of habeas corpus the Court had already determined that the applicant had to plead some basis for making a claim that detention was unlawful. 19 The primary judge observed that: [2] The Commonwealth has applied to summarily dismiss the applicant's claim, alternatively to strike out the applicant's pleading. The applicant says that he is unable to plead more. He says that he is not in a position to plead any probable cause or basis for the unlawfulness aspect of the claim of unlawful imprisonment. Therefore, if the pleading is insufficient then the appropriate order will be to strike out the claim. 20 As is apparent, his Honour proceeded to strike out the claim. Before doing so, his Honour focused on the issue of onus and the established authorities, in the context of both false imprisonment and habeas corpus. 21 His Honour canvassed the false imprisonment cases upon which the applicant relied (at [11]-[24]), concluding that they did not support the applicant's position because: they did not directly address onus; they did not support the proposition that an action for false imprisonment can be brought by a person who has no basis at all for a view that the detention was not lawfully justified; that they did not address that proposition; and that they were concerned with evidence, rather than what must be pleaded by an applicant bringing a claim for false imprisonment. 22 His Honour also canvassed the habeas corpus authorities in the context of an applicant's pleading onus, concluding that there remains an initial burden on an applicant, referring to the earlier reasons in AKW22 (No 1) at [7]-[9]; and Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at [39]. 23 His Honour concluded that : [26] However, it is not necessary to reason by analogy to the habeas corpus cases. The tort of false imprisonment has two elements; detention and the absence of lawful justification for the detention. In order to bring a claim of false imprisonment an applicant must have a basis for holding a view that both elements are met. Without such a basis a claim could not be properly pleaded. A party who suspects that there is a basis for a claim may avail themselves of the procedures for pre-action discovery. However, such a party is not able to require a respondent to answer a claim in circumstances where the party provides no reason at all to hold the view that there was no legal justification for the detention. [27] In any case where the onus falls upon a respondent to establish that an element of a cause of action is not proven, an applicant must still have some reason to make the claim. Further, as a matter of pleading practice, that reason must be pleaded. To insist upon such a plea is not to require the applicant to prove that in respect of which the respondent has the onus. Nor is it to require an anticipatory plea. It is to require some foundation for the bringing of the case. Even though the onus to prove that there was lawful authority falls upon the detaining party, it is not the case that a plea of lawful authority is to be viewed as a defence. The absence of lawful authority remains an element of the claim of unlawful imprisonment. It is just that the onus of proof falls upon the respondent. In that particular respect there is no difference between a habeas corpus claim and a claim for damages for false imprisonment. 24 Having regard to those reasons, it is not possible to accept at face value the applicant's submission that it is not apparent on what basis his claim was dismissed. It was dismissed because the applicant 'has not discharged the obligation to plead some basis for the claim as to the element of unlawfulness' (at [34]). 25 In his affidavit, Mr Gill also asserts that the primary judge failed to have regard to the (unidentified) Federal Court Rules 2011 (Cth) upon which the applicant relied. By his submissions it became apparent that the applicant considers he should have been exempted from filing a statement of claim and that there should have been other steps put in place such as preliminary discovery. 26 It seems to me there may be little substance to a complaint that the primary judge directed the applicant to file a statement of claim. However a court document might be described, I have little doubt that the applicant would have been ordered to set out in some form the material facts and particulars he sought to rely upon. So much is a fundamental obligation of an applicant pursuing a cause of action, including a cause of action in tort. 27 However, against that backdrop, the applicant submitted that the central question is the nature of the pleading obligation on a person in detention, who has no knowledge of whether officers of the respondent properly determined the nature of their powers or whether they rightly exercised their power to detain the applicant under s 189 of the Migration Act for the relevant period of time. Counsel for the applicant submitted that a person who is in detention cannot know those matters and so should not be required to plead them, so that whatever the ordinary rules of pleading may be, they should not apply to someone in the applicant's position who seeks to maintain a claim for the tort of false imprisonment. The applicant submitted that having regard to the length of detention and the purported limitations on his ability to plead any claim, there is a question of public interest that justifies the appeal being approached on the basis that there is a serious question to be tried. 28 I have taken into account the applicant's submissions as to the pleading point that he wishes to pursue and that apparently ground his proposed appeal. 29 However, the reason why the merits or otherwise of the leave application and appeal are not the central issue in this urgent interlocutory injunction application is that it is to be recalled that the only remaining substantive relief sought, after the application for habeas corpus had been dismissed, is that relating to damages for the alleged false imprisonment. 30 The applicant's remaining claim is for damages for false imprisonment. The judgment the subject of the proposed appeal deals only with that claim in tort. This has a significant effect on the consideration of the balance of convenience, because there is no reason in theory that such a claim cannot be pursued from India: that is, the subject matter of the appeal may be preserved and pursued by the applicant from India. 31 Mr Gill in his affidavit says that: If returned penniless to India, as proposed, the applicant will further be separated from his wife and son both of whom support him and will foreseeably suffer hardship and adverse effects on his mental and physical health for which damages would not provide an adequate remedy. Removal from Australia would make it virtually impossible for the applicant to prosecute his appeal and his claim for damages if the appeal were to be allowed, as there would be significant obstacles to his ability to instruct legal advisers from India, and to pay court fees and any disbursements that may be required. While the applicant would suffer considerable hardship if removed, the Commonwealth would suffer no significant detriment that could not be addressed by granting the residence determination by the Commonwealth Ombudsman in August 2020 that it appears has not been considered by the Minister for Immigration the applicant not having been advised of any determination. 32 I note that I was not taken to any evidence about any determination by the Ombudsman. 33 The respondent points to the fact that nothing in the application before me or the appeal challenges the fact that the applicant is an unlawful noncitizen and liable to be deported. Senior counsel submitted that in a case such as this, where the subject matter of the appeal may in any event be preserved, the question of whether there is a serious question to be tried is less significant because the subject matter of the appeal may be preserved. I accept that submission. 34 The respondent also submitted that to grant an injunction in the circumstances of this application would undermine the public interest in the administration of the Migration Act, because removal could be frustrated by an unlawful noncitizen filing a tort claim (even where only damages are sought by way of relief) and then seeking to remain in the country pending its determination. 35 The respondent also points to the continued costs of detention if such an applicant were to remain in the country for that purpose. Although the applicant contended that such costs might be avoided by permitting a person to reside in the community, that contention does not seem to me to be a practical answer to the submission, at least at a general level. 36 The respondent referred to the decision of Markovic J in Tanioria v Commonwealth of Australia [2016] FCA 1237, in which her Honour dismissed an application for an injunction in somewhat similar, but not identical, circumstances. Her Honour took into account that the applicant, if deported to Fiji, would be able to give instructions and evidence with respect to his claim. In light of the urgency of this application, I extract the following paragraphs which provide a useful example of the balancing of interests required in an application such as this: [41] As I have already observed above, I do not think that there is a need to preserve the status quo in order for the applicant to be able to pursue his proceedings. He will still be able to pursue his claims albeit he will no longer be entitled to claim all of the relief he currently seeks. To the extent that the applicant raises the preservation of the status quo and preserving the subject matter of the proceeding as a matter that weighs in his favour on the balance of convenience I am not persuaded that it does. This is so even taking into account the applicant's undertaking that he will not pursue damages, should the order sought be made, beyond the date of the order in relation to claims other than those seeking equitable compensation. [42] In relation to the convenience and ability to run the proceedings, in my opinion, it is not unusual for a party to instruct lawyers from a different location by electronic means, including telephone and video conference facilities. I do not think that this factor weighs heavily in favour of the applicant. However, the giving of evidence is in a different category. The Commonwealth's unchallenged submission was that the applicant's claims depend principally on legal contentions. Defences have not yet been filed so it is not apparent what is in issue and it is not known to what extent the applicant will need to give evidence and whether there will be any requirement to make credit findings. However, in light of the nature of the claims I accept that there are unlikely to be significant areas of factual dispute. [43] In Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 667 Sackville J refused an application for an injunction restraining the applicant's removal. The applicant had commenced proceedings against the detention centre provider and the Minister alleging breach of duty owed to him and for damages sustained while in immigration detention. The applicant argued that, among other things, his ongoing claim for damages was a reason for the Court to grant the injunction. Sackville J rejected this argument and was not satisfied that the applicant would be unable to prosecute his proceeding. His Honour found that the applicant's legal advisers had ample opportunity to obtain instructions and that, while he had not yet given evidence, oral evidence could be given by video link. The same could occur in this proceeding, to the extent the applicant is required to give evidence. Further I note that the Commonwealth has undertaken to meet the costs of any video link that may be required. [44] I do not accept that the Commonwealth would have an unfair advantage if the applicant is removed because it will make the preparation of his case harder. As I have already observed, the available technology should mean that the applicant is able to give instructions. There is no suggestion that, because of his removal, the applicant will be deprived of his legal representation. If the applicant's residence in another country means that he requires more time to take steps in the proceedings that can be accommodated by appropriate timetabling. [45] In my opinion the applicant has not demonstrated that the inconvenience or injury he would suffer outweighs the injury to the Commonwealth. The issue was finely balanced. But, in my opinion the factors raised do not amount to any injury that would be suffered by the applicant. I accept that there may be some inconvenience to him but that is not of a nature that causes me to alter my view. This is not a case where one can easily assess whether the applicant will suffer irreparable harm if left to pursue a case for declarations and damages only. The applicant would say he will because he will not be able to seek vindication in the terms of the relief currently sought for some of his claims. But the applicant is not left in a position where he cannot pursue his proceedings to their finality and, having carefully considered the matter, I am of the view that he will not suffer irreparable harm, in the sense of not being able to pursue his proceedings, if the injunction is not granted. In considering where the balance of convenience lies I have assumed there is a serious question to be tried. 37 The respondent in this case also referred to the absence of any undertaking as to damages proffered by the applicant and noted that in contrast to the position in Taniorai (see at [34]) the applicant was not proposing to waive any claim for damages for any period of ongoing detention in Australia pending the determination of any appeal. So, in this case the cost of ongoing detention remains in play as prejudice to the respondent. 38 Taking into account the respective submissions and the evidence, the applicant has failed to persuade me that the balance of convenience favours the grant of relief. In short, the applicant has not persuaded me that he should not be deported in order to allow him to pursue an appeal that has at its heart a damages claim in tort. I am not satisfied that the Court's processes will be frustrated if the injunction is not granted. 39 I am not persuaded on the evidence that the applicant will find it more difficult to instruct his solicitor from India than from detention in Australia. I note that the evidence about the difficulties the applicant might face in India were put only at a very general level. I accept the applicant may have some practical difficulties in facilitating his representation, but I do not accept counsel's submission that I cannot assume that his current legal representation will continue. Mr Gill could have addressed specifically any problems he foresaw in continuing to act as the applicant's solicitor in such a scenario but he did not point to anything in particular. 40 Issues such as future court fees and disbursements may be addressed if and when they arise - there may well be the capacity for the applicant to be relieved from some of those fees but these matters are no more than speculative at this point. The applicant is currently unable to work whilst in detention so I cannot safely infer that he will have even greater difficulty meeting any costs and disbursements from India, where he will at least no longer be in detention. 41 Nor is there any reason to assume that the applicant will not be able to participate in video hearings as appropriate, including giving submissions and evidence by video, should that be required at some point in the future. The Court has ample power to tailor case management and hearings to facilitate persons who are overseas, and regularly does so. To the extent the applicant has concerns about the need for medical evidence, again such concerns are speculative but could be accommodated, whether persons giving evidence are within or outside Australia. 42 I accept that the applicant may not have other resources available to him that he currently has available to him in detention. However, there is no evidence that his wife and son will no longer support him financially with respect to his claim if he is deported. 43 The fact that the applicant may find it more difficult to pursue the appeal and any claim from India does not mean that it cannot be done. I must weigh the inconvenience and injury to the respondent by way of additional costs of detention, and having regard to the public interest factor that I have referred to above; that is, an order such as that requested by the applicant has the effect of facilitating a deferral of deportation for the purpose of pursuing private proceedings for relief, proceedings that may be pursued regardless. Even if the claim is one of significant public interest as asserted, deportation does not bring the claim to an end. 44 For these reasons I dismiss the application. Costs should follow the event in the usual way. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.