Fernando v Commonwealth of Australia

JUDGE: SIOPIS J DATE: 24 DECEMBER 2010 PLACE: PERTH

REASONS FOR JUDGMENT 1 On 21 July 2010, I delivered reasons for judgment in relation to the application made by Mr Fernando and found that the first and second respondents were liable in damages to Mr Fernando in the sum of $3,000. I found that Mr Fernando had succeeded in his claim against the first respondent, the Commonwealth, for false imprisonment. I also found that Mr Fernando had succeeded in his claim for misfeasance in public office against the second respondent, the Acting Minister. I reserved the question of aggravated and exemplary damages because I had not heard submissions from the parties at the trial in respect of the case of Muuse v Secretary of State for the Home Department [2010] EWCA CIV 453 (Muuse), which was decided after I had reserved my decision. 2 On 22 September 2010, a hearing was held at which the parties made submissions on the question of aggravated and exemplary damages.

aggravated damages 3 Aggravated damages are assessed by reference to the effect that the impugned conduct has had on the applicant. In Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 149, Windeyer J observed: [A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done… 4 The facts in the case of Henry v Thomson [1989] 2 Qd R 412 illustrate the application of the principle. In that case, the respondent was awarded compensatory damages for injuries caused to him by unlawful assault. A senior police officer had urinated on the applicant and aggravated damages were awarded for injury to the respondent's feelings, because although urinating on him had caused no actual physical harm, it had caused the respondent great emotional hurt, insult and humiliation. 5 The award of exemplary damages serves the function of punishment and deterrent of the wrongdoer and, also, particularly in cases involving the abuse of executive power, to vindicate the rule of law. 6 In the case of State of New South Wales v Ibbett [2005] NSWCA 445 at [83], Spigelman CJ referred to the distinction between aggravated and exemplary damages in the following manner: In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation. 7 Mr Fernando was detained in immigration detention following the cancellation of his permanent residency visa for a total period of three years, three months and 13 days. At the trial, I found that the Commonwealth had not discharged the onus of proving that Mr Fernando's detention was lawful in respect of the first day of his detention, but had succeeded in demonstrating that his detention, thereafter, was lawful. 8 Mr Fernando contended that there should be an award by way of aggravated damages because of the inordinate length of his detention and because throughout the whole period of his detention, those detaining him knew that Mr Fernando maintained that his permanent residency visa had been unlawfully cancelled. 9 This contention cannot be accepted. Although it is the fact that Mr Fernando was indeed detained in immigration detention for a very lengthy period of time, I have found that, save for the first day of that detention, the detention was lawful by reason of the operation of s 189 of the Migration Act 1958 (Cth). In my view, aggravated damages are not available in respect of the conduct engaged in by the officers of the first respondent, which was lawful. Further, the fact that those detaining Mr Fernando knew that he was claiming that his visa cancellation was unlawful, did not render their conduct in continuing to detain him, unlawful. The question arising from s 189 of the Migration Act was whether the officers detaining Mr Fernando held a reasonable suspicion that he was an unlawful non-citizen. In the principal judgment, I have found that those detaining Mr Fernando did hold such a suspicion. 10 Mr Fernando also contended that the Court should award him aggravated damages because he was subjected to indignities during the period of his detention. In particular, counsel for Mr Fernando referred to the evidence that whilst he was detained at the Perth immigration detention centre, there was an occasion when Mr Fernando was taken to a medical centre in handcuffs. The act of which Mr Fernando complains, occurred during the period when, on the basis of my findings, Mr Fernando was lawfully detained. The act cannot, therefore, in my view, be treated as an aggravating circumstance in assessing whether to award aggravated damages in respect of the false imprisonment of Mr Fernando by the first respondent, for the first day of his detention. That is not to say that such conduct would not have been an affront to the dignity of Mr Fernando, and could not possibly give rise to a separate claim in tort. However, that is not the way the matter was raised in this case. 11 There was no evidence that Mr Fernando was detained by the officers of the first respondent on 5 October 2003, in such circumstances as would warrant an additional award by way of aggravated damages. As I said in the principal judgment, Mr Goldie was arrested in circumstances capable of giving rise to greater humiliation, embarrassment and distress to Mr Goldie, than the circumstances in which Mr Fernando was detained. French J (as his Honour then was), however, did not make any award for aggravated damages in favour of Mr Goldie. 12 Accordingly, I do not accept Mr Fernando's claim for aggravated damages.

exemplary damages 13 Mr Fernando pleaded that the respondents were liable for exemplary damages on the grounds that the officers of the Commonwealth who procured the making of the visa cancellation decision, and the Acting Minister, who made the visa cancellation decision, acted with contumelious disregard for Mr Fernando's rights. 14 In the case of XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 (XL Petroleum), Brennan J (as he then was) observed at 471: As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying: I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages? (Footnotes omitted.) 15 The XL Petroleum case involved tortious conduct by Caltex against a commercial competitor. It is well accepted in Australia that exemplary damages may also be awarded in circumstances where tortious conduct is engaged in by persons in the course of exercising executive authority. The case of New South Wales v Ibbett (2006) 229 CLR 638 (Ibbett), is an example of the award of exemplary damages in such circumstances. 16 In Ibbett, two plain-clothes police officers had trespassed onto private property late one night whilst pursuing a suspect, Mr Ibbett. The property belonged to the suspect's mother, Mrs Ibbett. One of the police officers pointed a gun at Mrs Ibbett, and demanded that she admit the other police officer into her house. The court at first instance found that there was no lawful justification for the conduct of the plain-clothes police officers and made an award of compensatory damages in respect of the trespass and the assault, and, also, awarded a total of $30,000 as exemplary damages. The award of exemplary damages was increased on appeal to a total of $45,000. The High Court upheld the decision of the New South Wales Court of Appeal. 17 In Ibbett at [38], Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ observed: The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government. (Footnote omitted.) 18 The High Court also cited with approval, at [40], the following observations made by Lord Hutton in Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 (Kuddus), in relation to the award of exemplary damages in a number of cases where members of the security forces in Northern Ireland had, in gross breach of discipline, committed unlawful acts that were arbitrary and oppressive: In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times. 19 The High Court went onto observe at [46]-[47]: Particular considerations respecting exemplary damages apply where the principal or employer is the State or a statutory emanation of the State. Reference has been made already to the views expressed on that subject, at least where military, police and prison officers are concerned, by Lord Hutton in Kuddus. On the other hand, in that case Lord Scott of Foscote did not accept that a deterrent purpose was a sufficient justification for exemplary damages in vicarious liability cases. Shortly thereafter, in S v Attorney-General (NZ), the New Zealand Court of Appeal held that, if not as a matter of power, then at least as a prudential consideration, an award of exemplary damages against the Crown should not be made in respect of the tortious acts of foster parents against children placed in their care by the Superintendent of Child Welfare; this was because the Department was not "directly at fault". However, Blanchard J, who gave the principal reasons in S v AttorneyGeneral, reserved the position where a police officer deliberately or recklessly directly inflicted personal injury on the plaintiff. Moreover, in this Court, it has been said that there may be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. (Footnotes omitted.) 20 The High Court went onto hold that the State of New South Wales was liable for exemplary damages on the basis that it was vicariously liable for the tortious conduct engaged in by its officers. 21 Exemplary damages have also been awarded in cases where officers of the executive had committed the tort of false imprisonment. (See, for example, State of New South Wales v Delly (2007) 70 NSWLR 125.) 22 The case of Muuse, is an instance where exemplary damages were awarded, in respect of the false imprisonment of a person in immigration detention in England. 23 In Muuse, Mr Muuse was, on 7 August 2006, taken into immigration detention in England immediately after he was released from custody after having been convicted of charges of assault and breaches of a restraining order. He was then held in immigration detention pending deportation to Somalia from 7 August 2006 to 15 December 2006. However, Mr Muuse was not a Somali citizen, having taken Dutch citizenship after he had been admitted to the Netherlands as a refugee from Somalia. As a Dutch citizen, Mr Muuse was not liable to deportation from the United Kingdom. Throughout his detention, Mr Muuse protested his detention, on the basis that he was a Dutch citizen. After his release from detention, the trial judge found that at the time that Mr Muuse was detained under the Immigration Act, no proper examination was made by the junior officials in the Immigration Directorate who made the decision to detain Mr Muuse, as to whether there were grounds for his deportation. The Home Office had evidence in its possession of the fact that Mr Muuse was a Dutch citizen, but the officials took no steps to seek to verify the claims made by Mr Muuse. Further, the officials in the Immigration Directorate, whilst ignoring Mr Muuse's protestations that he was a Dutch citizen, sought to fast-track the process for procuring the signing of a deportation order by the Minister of State for the deportation of Mr Muuse to Somalia. The Home Office acknowledged that Mr Muuse was a Dutch citizen only after Mr Muuse had commenced proceedings in the Asylum and Immigration Tribunal. Shortly thereafter, but not immediately thereafter, Mr Muuse was released from immigration detention. 24 Mr Muuse brought proceedings claiming damages on the grounds of false imprisonment and misfeasance in public office. 25 A number of officers from the Immigration Directorate were involved in the making of the decision to detain Mr Muuse and to procure the signing by the Minister of State of the deportation order. There were also officers from the prison service who were involved in the detention of Mr Muuse. However, at the trial, only one of these officers, an officer from the prison service, gave evidence as part of the Home Secretary's case. No officer from the Immigration Directorate gave evidence. 26 The trial judge awarded Mr Muuse £25,000 as basic compensatory damages, £7,500 as aggravated damages and £27,500 as exemplary damages. 27 The Home Secretary appealed against the decision of the trial judge to award exemplary damages. 28 The English Court of Appeal dismissed the appeal. Lord Justice Thomas (with whom the Chancellor of the High Court, and Sir Scott Baker, agreed) found that the conduct of the junior officers of the Immigration Directorate, who had caused the detention of Mr Muuse for more than four months, had been an arbitrary exercise of executive power which was outrageous. 29 Lord Justice Thomas, at [77], observed in relation to the making of an award of exemplary damages: The making of such an award, as Lord Hutton observed in Kuddus, also serves to vindicate the strength of the law. It further demonstrates that the award of punitive damages under the common law has a real role in restraining the arbitrary use of executive power and buttressing civil liberties, given the way the United Kingdom's Parliamentary democracy in fact operates. 30 As to the failure of any person from the Immigration Directorate to give evidence, Lord Justice Thomas observed at [59]: It is, in my view, astonishing that no witnesses were called from the Immigration Directorate. The reason given in the Further Information provided by the Home Secretary was: It is not the [Home Secretary]'s policy to call junior staff workers as witnesses in a trial. This is not acceptable in a case such as this. As was submitted on behalf of Mr Muuse, the inevitable inference that a court would draw is that no one in the Immigration Directorate was prepared to give evidence to explain the decisions made.

statutory context 31 In this case, the statutory context is an important consideration in assessing whether the tortious conduct engaged in by the officers of the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called), and the Acting Minister, was such as to warrant the making of an award of exemplary damages. 32 Section 501 of the Migration Act empowers the Minister to cancel the visa of a noncitizen who is a permanent resident of Australia, where that person has been convicted of a serious crime. Once the visa of the non-citizen permanent resident is cancelled, that person becomes an unlawful non-citizen. 33 Section 189 of the Migration Act requires that an officer (as defined by the Migration Act) is to detain a person whom that officer knows or reasonably suspects, is an unlawful non-citizen. 34 The cases show that among those persons whose visas have been cancelled on character grounds, are a number of persons with a long and close association with Australia. For example, Mr Nystrom only spent the first 28 days of his life in Sweden before coming to Australia with his mother. Mr Nystrom spent the next 30 years of his life in Australia before his permanent residency visa was cancelled on character grounds, and an order was made for his deportation to Sweden (Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420). Mr Shaw came to Australia with his parents from the United Kingdom when he was aged 18 months. By the time his permanent residency visa was cancelled on character grounds, he had lived in Australia for 27 years and was the father of two children who were citizens of Australia (Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402). 35 Parliament has, by s 501(2) of the Migration Act, legislated that, notwithstanding that a non-citizen permanent resident has committed a serious crime, and has, thereby, become liable for visa cancellation on character grounds, the Minister is to have a discretion whether to cancel that person's permanent residency visa. Further, and significantly, Parliament also provided, by s 501 of the Migration Act, that these persons were to be accorded procedural fairness in the making of the decision whether to cancel their permanent residency visas. 36 The provisions of s 189 of the Migration Act provide scant protection against detention, and continuing detention, for a permanent resident whose visa has been unlawfully cancelled. Because s 189 requires the detention of an unlawful non-citizen, even in circumstances where the detaining officer only has a reasonable suspicion that the person is an unlawful non-citizen, it is highly likely that a permanent resident whose visa is cancelled, will be detained, even if the cancellation of that person's visa is unlawful. Further, because the terms of s 189 require no more than a reasonable suspicion on the part of the detaining officer as to the permanent resident's status as an unlawful non-citizen, it is also highly likely that the permanent resident whose visa has been cancelled, will remain in immigration detention whilst lawfulness of the visa is determined by a court. 37 In other words, in the context of s 189, the procedural fairness safeguard which Parliament has, by s 501 of the Migration Act, afforded to non-citizen permanent residents who have committed serious crimes, assumes an enhanced level of importance. The effectiveness of the protection afforded by that procedural fairness safeguard to those persons, depends upon the departmental officers and Minister implementing the safeguard, acting diligently and conscientiously in the discharge of their statutory duties.

whether exemplary damages should be awarded 38 The respondents contended that there was no need to make an award of exemplary damages because the findings in the principal judgment would have a salutary effect upon the departmental officers, and the Acting Minister is no longer in the position to exercise executive power. However, no evidence was led of any changes that have been made, or proposals for changes to be made, to departmental procedures, in response to the commencement of this proceeding by Mr Fernando, or at all. 39 The respondents' contention is to be rejected, and an award of exemplary damages is, for the following reasons, in my view, appropriate in this case. 40 First, the impugned conduct of the departmental officers, who prepared and forwarded the minute and issues paper to the Acting Minister, and the Acting Minister, demonstrated a cynical, conscious and contumelious disregard for the rights of Mr Fernando. I find that each of the departmental officers, including Ms Yole Daniels, who signed the minute, knew on 3 October 2003, that Mr Fernando had sent his submissions to Canberra and that he had a right, as an incident of the right to procedural fairness, to have his submissions considered prior to the cancellation of his visa. I find that each of the departmental officers knew that the Acting Minister would not be in a position to consider those submissions, if the Acting Minister was to make a visa cancellation decision on that day. I find that the departmental officers knew that Mr Fernando could only be detained following the lawful cancellation of his visa, and that a breach of procedural fairness would render the visa cancellation unlawful. I find that the departmental officers, nevertheless, forwarded the minute and issues paper to the Acting Minister on that day, rather than waiting for Mr Fernando's submissions to arrive, so as to facilitate the making of the visa cancellation decision by the Acting Minister on 3 October 2003, if he was so minded. I find that the departmental officers deliberately engaged in this conduct in furtherance of the departmental stratagem to have Mr Fernando detained on 5 October 2003. These findings are to be inferred from the email correspondence referred to in the principal judgment and from the terms of the minute and issues paper themselves, particularly para 9 of the minute. Also, none of the departmental officers, nor the Acting Minister, gave evidence. I infer that their evidence would not have assisted the case of the first and second respondents, respectively. I find, therefore, that in preparing, and forwarding, the minute and issues paper to the Acting Minister, on 3 October 2003, the departmental officers acted with conscious and contumelious disregard for Mr Fernando's right to procedural fairness and his right not to have his liberty curtailed, save by lawful process. 41 Based on the findings in the principal judgment, I find that, in deciding to cancel Mr Fernando's visa without awaiting the arrival of Mr Fernando's submissions, the Acting Minister acted in conscious and contumelious disregard for the rights of Mr Fernando to procedural fairness and his right not to have his liberty curtailed, save by lawful process. 42 For these reasons, particularly having regard to the statutory context in which it occurred, the impugned conduct comprised, applying the epithets sometimes used in the cases, an outrageous, arbitrary and high-handed exercise of executive power. 43 Secondly, among the departmental officers who engaged in the impugned conduct was a person holding a senior position in the department. As mentioned, the minute which accompanied the issues paper forwarded to the Acting Minister on 3 October 2003, was signed by Ms Yole Daniels, an Assistant Secretary of the department. 44 The Muuse case was concerned with the arbitrary conduct of incompetent junior officials. The Court of Appeal emphasised the fact that officials of the Immigration Directorate had the power to deprive a person of his or her liberty, and also emphasised the attendant need for those responsible for the operation of the department, namely, the Home Secretary and the senior officials, to ensure that that power was properly and lawfully exercised. 45 Lord Justice Thomas observed at [74]: [T]hough it is more than sufficient to uphold the decision of the judge to award exemplary damages on the basis of this high handed and outrageous arbitrary conduct of the junior officials, it would not be fair to those officials to say nothing of the system that allowed this to happen. That system was the responsibility of the Home Secretary and his senior officials: i) The power to deprive someone of their liberty is a power that should only be entrusted to those who are competent to exercise that power. The longer the period that a person can be detained pursuant to the powers without judicial authority, the more competent those exercising the power need to be and the greater the checks need to be to see that the power is being properly and lawfully exercised. 46 In this case, departmental officers in relatively junior positions expressed their concern about proceeding with the stratagem of having Mr Fernando's visa cancelled, if the Acting Minister was so minded, by 3 October 2003, without the Acting Minister having regard to Mr Fernando's submissions, so that Mr Fernando could be detained on 5 October 2003. The stratagem was implemented, in any event. 47 As mentioned in the principal judgment, Ms Rebecca Chow was employed at the relevant time, as an officer in the Section 501 Cancellation Team in the Compliance Section of the Perth office of the department. It was part of her usual responsibility in the Western Australian office, to prepare the submission that would be forwarded to the Minister in respect of the cancellation of visas under s 501 of the Migration Act. As recorded in the principal judgment, Ms Chow was engaged on that task in the last week of September 2003. On 30 September 2003, after Ms Chow had been advised that Mr Fernando had already sent his submissions opposing the cancellation of his visa to Canberra, she sent an email to departmental officers in Canberra. The email included the following comments: Also note that his submission is apparently, 256 pages long. In light of the strict time frame we have set for an assessment and finalised decision - and the volume of Mr Fernando's response, Kevin O'Connor is concerned as to whether the Minister will be seen to have properly considered all of his comments. 48 Later that day, Ms Chow was advised by email from a departmental officer in Canberra, that the submission to the Acting Minister, to facilitate the cancellation of Mr Fernando's visa, would now be prepared by departmental officers in Canberra. 49 Further, during cross-examination, Ms Chow said: All right. Did you have any misgivings about the visa being cancelled when there was a possibility that there was material on the way to Canberra?---We did have concerns with regards to that matter. With whom did you raise those concerns?---I'm sure - I read through the documents and we did raise that issue with Canberra. 50 In Muuse, the Court of Appeal regarded the failure of the Home Secretary and his senior officials to supervise and control junior officials in relation to the exercise of the detention power to deprive a person of their liberty, as being a relevant factor supporting the making of an award of exemplary damages. In my view, the position is a fortiori when, as in this case, among those who knew of, and participated, in the impugned conduct, was a senior departmental officer. Further, as mentioned, there was no evidence from the first respondent that any steps have been taken, or are proposed to be taken, to safeguard against the repeat of the impugned conduct. 51 Thirdly, the rule of law embodies the principle that all persons are entitled to the equal protection of the law, whether popular or unpopular. As has been recognised in Kuddus, Ibbett and Muuse, the making of an award of exemplary damages is a means whereby the Court vindicates the rule of law, where, as happened in this case, those exercising executive power, have infringed the rule of law. 52 As mentioned, in the XL Petroleum case, the High Court held that there need not be any proportion between the amount awarded by way of compensatory damages and the amount awarded by way of exemplary damages. In my view, for the reasons set out above, the appropriate amount to be awarded against the first respondent is $25,000. 53 The award of exemplary damages is made against the first respondent only, on the basis that the first respondent accepted, for the purpose of this case only, vicarious responsibility for the actions of the Acting Minister. Further, the circumstances of tort committed by the Acting Minister were not sufficiently distinguishable from the tort committed by the departmental officers to warrant a separate award of exemplary damages. 54 For the sake of completeness, I would add that Mr Fernando relied upon a second ground to claim of exemplary damages, namely, that the respondents had, whilst Mr Fernando was not legally represented, sought to stifle this litigation by bringing an unmeritorious objection as to competency. There is no substance in the ground. The objection to competency brought by the respondents, although dismissed, was not so devoid of legal merit so as to support the inference which Mr Fernando asked the Court to draw. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.